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STATUTE OF FRAUDS-AGENT TAKING TITLE TO LAND of making reasonable exertions to render the injury as IN OWN NAME-PAROL AGREEMENT TO RECONVEY light as possible. Where this duty exists, the labor or DAM AGES. --A.and B.made a verbal agreement by which expense which its performance involves is chargeable B., as A.'s agent, was to buy certain land, take the to the party liable for the injury thus mitigated. Long deed in his own name, hold it till A. was ready to pay v. Clapp. Opinion by Cobb, C. J. for it, and then, retaining a part of the land for his [Decided May 28, 1884.) services, convey the rest to A. The purchase was

STOPPAGE IN TRANSITU-GARNISHMENT made by B., who refused to carry out the contract,

DEE'S CREDITORS. -The law is well settled that the whereupon A. sued in assumpsit for damages arising right of stoppage in transitu arises upon the discovery from the breach. B. pleaded under the statute of frauds that the agreement was not in writing, to which by a vendor, after sale on credit, of the insolvency of

the vendee, and the right continues until the goods plea A. demurred. Held, that the plea was good, and that the action could not be sustained. The fact that the

bave reached the vendee, and the delivery to him or

his agent is complete. Hutch. Carr., $ 499; O'Neil v. defeudant brought the estate for the plaintiff, as his

Garrett, 6 Iowa, 480; Calahan v. Babcock, 21 Ohio St. Agent, does not make him ang the less its legal owner, and therefore his agreement to convey the greater part Sutro v. Hoile, 2 Neb. 186; 2 Redf. Rail. 132. This

281; Reynolds v. Boston & M. R. ('o., 43 N. H. 580; of it to the plaintiff for what he paid for the whole of right is based upon the just and equitable rule of law it is, notwithstanding the agency, an agreement to sell

that the property of one man shall not be taken to pay the greater part of it for the price which the defend

another man's debts, and is recognized in all civilized ant paid for the whole of it. There are numerous cases which support this view. Bartlett v. Pickersgill

, this right cannot be impaired or extinguished, during

countries. We think it is equally well settled that 4 East, 577, n.; Botsford v. Burr, 2 Johns. Ch. 406,

its existence, by the acts or interference of a third 409; Lathrop v. Hoyt, 7 Barb. S. C. 59, approved in Wbeeler v. Reynolds, 66 N. Y. 227, 236; Bauman v.

party, but will follow the goods and attach to them. Holzbausen, 26 Hun, 505; Levy v. Brush, 45 N. Y. 589;

Hence it is held that the seizure of such goods by an Harrison v. Bailey, 14 8. Car. 334; Jackman v. Ring itor, dies not destroy the right; but that the vendor

officer, under legal process in favor of some other credland, 4 W. & Serg. 149; Payne's Admr. v. Pattersou's

may follow the officer and retake the goods. Rucker Admrs., 77 Penn. St. 134; Howland v. Blake, 7 Otto,

v. Donovan, 13 Kan. 251; Greve v. Duuham (Iowa), 14 624; Wetmore v. Neuberger, 44 Mich. 362; Horsey v.

N. W. Rep. 130. In the case of O'Neil v. Garrett, Grabam, L. R., 5 C. P. 9. In most of these cases the attempt was to charge the purchaser as trustee, and supra, the court says: “As to the effect of the levy

upon the goods by the defendant, Garrett, as sheriff, the attempt failed, but in all of them the contract was recognized as a contract for the sale of land, or for the Holmes, there can be no doubt but that the plaintiff's

by virtue of an attachment at the suit of a creditor of creation of an interest or trust in land, and therefore right as vendor is not divested by the levy before the ineffectual because not in writing. Spencer v. Lawton.goods came into the possession of the buyer. The Opinion by Durfee, C. J.

plaintiff has the preference over the legal process of a [Decided April 12, 1884.]

general creditor, although but for the suit, they would have fallen into the hands of the vendee.” In support

of which the court cites the following cases : Covell NEBRASKA SUPREME COURT ABSTRACT. v. Hitchcock, 23 Wend. 611; Buckley v. Furniss, 15 id.

137; 17 Wend. 505; Naylor v. Deunie, 8 Pick. 198; SawATTORNEY-COLLECTING MONEY-SUMMARY POWER

yer v. Joslin, 20 Vt. 172; Hause v. Judson, 4 Dana, 11; OF COURT.-The jurisdiction of the District Court to

Cox v. Burns, 1 Iowa, 64. If the right of stoppage com pel an attorney to pay money into court which continues until delivery of the goods, and a levy had been collected by the attorney for the client can

thereon does not divest this right, it seems clear on not be questioned; but when the client has received principle, that the right of the vendor cannot be imall the money to which he is entitled, the power of the paired or extinguished by the garnishment of the carDistrict Court ceases, and it cannot in a summary way rier, for the process of garnishment can have no greater com pel the attorney to pay money into court for other force than the levying upon the goods, as it is simply parties claiming a sbare in the fees retained by the at

one of the methods of reaching the property of the torney. That questiou must be settled by an action debtor in the possession of a third party, which canbetween themselves. Baldwin v. Foss. Opinion by not be reached by the ordinary levy and seizure. Reese, J.

Chicago, etc., Railroad Co. v. Painler. Opicion by [Decided May 28, 1884.)

Reese, J.

[Decided May 28, 1884.] TRESPASS-ASSUMING TO ACT AS CONSTABLE-SALE BY, GIVES NO TITLE.-(1) When a private person, without authority or appointment from any source,assumes WEST VIRGINIA SUPREME COURT OF APto act as a constable, and seizes the chattele of another,

PEALS ABSTRACT. be becomes a trespasser; and it is no difference to him that he then and there had in his possession an execu

MASTER AND SERVAXT — ACCIDENT BURDEN OF tion against such person issued by a justice of the peace. (2) A sale by sucb unauthorized person of such

PROOF-"FELLOW SERVANT”-ERRONEOUS CHARGE.chattels, as upon execution, couveys no title. (3) The It was certainly incumbent on the defendant company plaintiff in such execution cannot be held responsible upon the facts shown by the record to show affirmafor the acts of such person in seizing or converting tively and positively that the accident was vot caused such chattels, unless he requested or authorized such by its negligence, or the negligence of any agent for seizure in fact, or in some way ratified the same.

whose conduct the company itself was responsible. McMillan v. Rowe. Opinion by Cobb, C. J.

Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 14. And

the evidence showing, by the defendaut's own wit[Decided May 28, 1884.]

nesses, that the train was not made up in the usual DAMAGES-EXPENSE RENDERING INJURY LIGHT.-In and proper way, and that the conductor was not a feladdition to the general measure of damages, the law low servant of Moon, but his superior, and in a posiin some cases imposes upou a party injured from tion wherein he exercised discretionary authority, and another's breach of contract or tort, the active duty was charged with certain duties for the proper per


formance of which the law holds the company itself GIFT-PAROL OF LANDS-EQUITY WILL EN FORCEresponsible, any negligence on his part in this behalf is STATUTE OF FRAUDS-PART PERFORMANCE-MAKING the negligence of the company itself. Railroad Co. v. IMPROVEMENTS.-A court of equity will compel the Fort, 17 Wall. 553; Brothers v. Cortter, 52 Mo.373; Pat- conveyance of the legal title of laud claimed under a terson v. Pittsburg and Connellsville R., 76 Penn. parol gift supported by a meritorious consideration, 389. H., the section master, in charge of a squad of and by reason of whicb the donee has been induced to hands working, altering and repairing the road, could alter his coudition, and make expenditures of money in no sense be regarded a fellow servant, in the same in valuable improvements upon the land, and equity common employment or department of service with will protect a parol gift of land equally with a parol Moon, who was a trainhand and brakesman. Connolly agreement to sell it, if accompanied by possession, and v. Davidson, 15 Minn. 519. They were not co-employ- the donee, induced by the promise to give it, bas made ees, thrown together in a common duty, and having valuable improvements on the property. No writing opportunity to observe and judge of the babits and is necessary to create a good equitable title to real esqualifications of each other. Lewis v. St. Louis, etc., tate. If the contract, when in writing, would be enR. Co., 59 Mo. 495; Ryan v. Chicago & N. W. R. Co., forced as founded upon a valuable consideration, it 60 Ill. 171. And where a company delegates to an would in like manner be deemed a valuable consideraagent or employee the performance of duties which tion when the contract was by parol. In the the law makes it incumbent on the company to per

of Neale v. Neales, 9 Wall, 1, in the form, his acts are the acts of the company-his negli- Supreme Court of the United States, Mr. Jusgence is the negligence of the company. Brothers v. tice Davis delivering the unanimous opinion of Cortter, 52 M0.373; Flike v. Boston and Albany R.Co., the court, said: “The statute of frauds requires a con53 N. Y. 549; Corcoran v. Holbrook, 59 id. 517; Mullan tract concerning real estate to be in writing, but courts v. Philadelphia & Southern S. S. Co., 78 Penn. 25; of equity-whether wisely or not it is now too late to Ryan v. Chicago & N. W. R. Co., 60 Ill. 171. If corpo- inquire-have stepped in and relaxed the rigidity of rations could in such cases escape liability on the plea this rule, and hold that a part performance remores that its agent was fellow servant or co-employee of the bar of the statute, on the ground that it is a fraud the party injured, it follows that they could never be for the vendor to insist on the absence of a written inheld liable at all, since such corporations must need strument, when he had permitted the contract to be perform their duties always through agents, who partly executed. And equity protects a parol gift of have a common employer. Flike v. Boston and Al. land equally with a parol agreement to sell it, if acbany R. Co., 53 N. Y. 549, supra; Hough v. Railroad companied by possessiou, and the donee, induced by Co., 10 Otto, 218-19; Whart. Neg., § 232. The fellow the promise to give it, has made valuable improveservant and co-employee, for whose negligence the ments on the property; and this is particularly true company is not responsible, is one who is in the same

when the donor stipulates that the expenditure shall common employment; that is, in the same shop or be made, and by doing tbis makes it the consideration place with, and having no authority over the one in- or condition of the gift.” In the case at bar it must be jured, and who is no more charged with the discre- borue in mind, as has been stated, that the agreement tionary exercise of powers and duties imperatively sought to be enforced is a parol agreement to give the resting on the company than the injured party; but land in question. It has been held in many reported where a person is placed in charge of the "construc- cases that a court of equity will compel the conveytion or repair of machinery," the “dispatching of ance of the legal title to the land claimed under a patrains," the “maintenance of way," etc., he is not a rol gift supported by a meritorious consideration, and fellow servant with those under him, nor with those by reason of which the donee ha been induced to al. in a different department of the company's service. ter his condition and make large expenditures of He is the agent of the company, which has assumed money in valuable improvements on the land; and through him the performance of duties which are abso- that the donee under such circumstances becomes the lute and imperative, the omission or the negligence of equitable owner of the land, and may demand the leperforming which the law will in nowise excuse. gal title. In the case of Syler v. Eckhart, 1 Biuney, Clarke v. Holmes, 7 Hurls. & Nor. 937; Ford v. Fitch- 380, Tilghman, C. J., said: “It has been settled that burg R. Co., 110 Mass. 241; Hough v. Railroad Co., 10 when a parol agreement is clearly proved, in conseOtto, supra. The second instruction given by the quence of which one of the parties bas taken possession court was: “And the jury are further instructed that and made valuable improvements, such agreement if they believe the accident which caused his death shall be carried into effect. We see no material differwas occasioned by any negligence of H., the section ence between a sale and a gift; because it certainly foreman, in failing to signal the train, they cannot im- would be fraudulent conduct in a parent to make a pute such negligence in this case to the defendant,and gift which he knew to be void, and thus entice his should find for the defendant." This instruction is child into a great expenditure of money and labor, of erroneous, and is against law and reason. An instruction which he meant to reap the benefit himself." See also which assumes that an employee “takes all risks" is Eckert, etc., v. Eckert, 3 Penn. 362; Eckert v. Mace erroneous. His contract is based on the implied duty and others, id. 364; Stewart v. Stewart, 3 Watts, and undertaking of the company to provide safe and 253; France v. France, 4 Halstead Ch. 619; Lobdell adequate machinery, competent and vigilant agents, v. Lobdell, 36 N. Y. 327; Bright v. Bright, 41 Ill. 97; and to keep its roadway and structures always in good Law v. Henry, 39 Ind. 414; Young v. Glendening, 6 and safe condition when he is required to go over Watts, 509; Mahon v. Baker, 2 Casey, 519; Atkinson 5. them. Chicago & N. W. R. Co. v. Jackson, 55 III. 492; Jackson, 8 Ind. 31; Freeman v. Freeman, 43 N. Y. 34; Corcoran v. Holbrook, 59 N. Y. 517; Baxter v. Roberts, Peters v. Jones, 35 Iowa, 512; Rerick v. Kern, 14 Serg. 44 Cal. 187; Snow v. Housatonic R. Co., 8 Allen, 441; & Rawle, 267; Sheppard v. Bevin and others, 9 Gill, Lewis' Admr. v. St. Louis & Iron Mountain R., 59 Mo. 32; Shobe's Exrs. v. Carr, etc., 3 Mun. 10. In the case 495; Patteson v.Pittsburgh & Connellville R.,76 Penn.

of Freeman v. Freeman, 43 N. Y. 34, Grover, J., said: 389; Drymala v. Thompson, 20 Minn. 40; R. & D. R.

"It is insisted that an executory promise, not founded v. Moore's Admr., 8 Va. L. J. 84. Moon v. Richmond

upon any valuable consideration, is a mere nude pact,

furnishing no grounds for an action at law, and that & A. R. Co. Opinion by Fauntleroy, J.

performance of such a promise will not be enforced in [Decided April 24, 1884.)

equity. This is true so long as the promise has no con

sideration. Any thing that may be detrimental to the penses, and commissions are paid, and this right is not promisee or beneficial to the promisor in legal estima- limited to charges on the particular cousigument of tion will constitute a good consideration for a promise. goods, but covers a general balance on the accounts Expenditures made upon permanent improvements between the factor and the principal, so far as concerns upon land with the knowledge of the owner, induoed the business of factorage. Whart. Ag., $ 767; Edw. by his promise made to the party making the expendi- Fact., $$ 71, 72; Story Ag.,$ 376; Matthews v. Menedge, ture, to give the lands to such party, constitute in 2 McLean, 145; Bryce v. Brooks, 26 Wend. 374; Kruger equity a consideration for the promise. Citing Lobdell v. Wilcox, 1 Amb. 252; Jordan v. James, 5 Ohio, 99; v. Lobdell, 33 How. 347; ('rosbie v. McDoual, 13 Ves. Weed v. Adams, 37 Conn. 378. The statute of this 147; Shepherd v. Bevin, 9 Gill, 32; 3 Parg. on Con., State in this respect would seem to be in confirmation 359. The statute of frauds has no bearing on the case. of the common law. Rev. Stat., $ 3345. But where If the promise, reduced to writing, could under the cir- the general balance on the accounts of the factorage is cumstances be enforced in equity,it may be although by largely against the factor and in favor of the principarol." It is agains: conscience to suffer a party who had pal, the former can have no lien upon the property in entered and expended money on the faith of a parol his possession, for he has no enforceable claim. Godagreement to be treated as a trespasser, and for the frey y. Furzo, 3 P. Wmg. 185; Zinck v. Walker, 2 W. other party, in fraud of his engagement, though that Bl. 1154; Tooke v.Hollingworth,2 H. B1.501 ; Walker v. was verbal, to enjoy the advantage of the money laid Birch, 6 Term R. 258; Weed v. Adams, supra; Jordan out. Courts interfere in such cases not on the ground v. James, supra; Euoch v. Wehrkamp, 3 Bosw. 398; of a breach of the verbal agreement, but because of the Beebe v. Mead, 33 N. Y. 587. In such case the factor's aets done under it on the faith of its terms, and which right of retention and sale is merely to reimburse himit would be bad faith in the vendor not to carry out self for the balance due him on the general account of by executing its terms, and a court of equity will the factorage. Brown v. M'Gran, 14 Pet. 479; Overt. always enforce a promise upon which reliance is Liens, $ 105. Neither can a factor, who is indebted to placed, and which induces the expenditure of labor his principal on account of previous sales, acquire a and money in the improvement of land. Such a prom- particular lien upon goods subsequently sent to him ise rests upon valuable consideration. The promisee for sale for expenses incurred on account of them, unacts upon the faith of the promise, and we can per- less such expenses exceed the amount of his indebtedceive no important distinction between such a promise ness. Edw. Fact., $ 72; Enoch v. Wehrkamp, supra. and a sale. Permitting the promisor to avoid perform- The lien of an agent and factor on the goods of his auce operates as a fraud as much in the case of a gift principal for specific expenses does not exist when the as in the case of a sale, so far as expenditures upon im- general balance of account is against him. Id. We provements are concerned, when possession has been must therefore hold that where a factor is largely intaken and valuable improvements made upon the faith debted to his principal on account of the factorage, of the promise. These acts constitute part perform- and thereupon voluntarily makes advances in the busianoe by the donee, and the agreement will be specifi- ness not exceeding such indebtedness, such advances, cally enforced by a court of equity. Halsey v. Peters. being made for and in behalf of his principal, must be Opinion by Lacy, J. (See 27 Am. Rep. 535.)

deemed to have been so made by the factor in liquida[Decided May 1, 1884.)

tion of his own indebtedness pro tanto. McGraft v. Rugee. Opinion by Cassoday, J.



NEGLIGENCE DEFENDANT PROVING PLAINTIFF'S CONTRIBUTORY.-In an action for negligence, if the plaintiff can prove his case without disclosing his owu contributory negligence, then such contributory negligence is purely a matter of defense to be proved by the defendant. Randall v. N. W. P. Co., 54 Wis. 147; Hoth v. Peters, 55 id. 405. The same rule prevails in the Supreme Court of the United States and many of the States. See cases cited in Abb. Tr. Ev. 595. The burden of proving such contributory negligence being ordinarily upon the defendant, there would seem to be no objection to his affirmatively alleging a fact which he may thus be required to prove. Kelley v. Chicago, etc., R. Co. Opinion by Cassoday, J. [Decided May 15, 1884.)

AGENCY - FAOTOR-LIEN FOR ADVANCES WHEN DOES NOT EXIST.-An agent employed to sell, or to purchase and sell, goods or other personal property intrusted to his possession, by or for his principal, for a compensation, commorly called factorage or commission, may properly be regarded as a factor. Story Ag., $$ 33, 34a; Edw. Fact., § 1; Whart. Ag., § 735. Here the duties, powers, and compensation of the factors, and their relation to their principals, were originally regulated by agreement. True there were some departures after the business had continued for a while, but there is nothing to indicate any change as to the title of the property, or the measure or source of compensation. Undoubtedly a factor is entitled to retain goods in his possession as such until his advances, ex

MARRIAGE-ANTE-NUPTIAL AGREEMENT- SPECIFIC PERFORMANCE-MONEY VALUE IN LIEU.–By an antenuptial settlement it was covenanted that the intended wife, if she survived the husband, should receive at bis death one dwelling-house, to be vested in her ab. solutely, in lieu of dower, or distributive share in his estate. The husband, having become estranged from the wife shortly before his death, left her in his will a dwelling-house of comparatively small value and subject to an annual ground rent of $64, which she renounced. He disposed of his entire estate by will, which he made during the period of alienation from his wife. On a bill by the widow asking for a specific execution of the covenant, and that she migbt have a dwelling-house suitable to her and her late husband's rank in life, and pecuniary circumstances, assigned to her, to be vested in her absolutely, or in lieu thereof a sum of money which the court might deem adequate, it was held that the complainant had a right to renounce the bequest, and was entitled under the covenant to receive from her husband's estate a dwellinge house suitable to his pecuniary circumstances, and position in society. But in all such cases, the agreement must be sufficiently definite to guide the court in the direction to be given for the specific performance, or at any rate, that it may be made certain and definite upon proper inquiry, Storer v. Great W. R. Co., 2 Y. & Coll. Ch. 48, 53; Wilson v. Furness R. Co.,

*Appearing in 61 Maryland Reports,

L. R., 9 Eq. 28; Lytton v. Great N. R. Co., 2 Kay & J. ferent disposition of the estate is sought to be made 394; Hood v. North-East. R. Co., L. R., 8 Eq. 666; L. will be held void, and the will will operate as origiR., 5 Ch. App. 525; Wilson v. Northampton & Banbury wally executed. Every alteration in a testamentary Junc. R. C., L. R., 9 Ch. App. 279. Iu the last men- disposition of real estate must be authenticated in tioned case, a railroad company agreed, for valuable the mauner prescribed by the statute Eschbach v. consideration, with the land-owner to erect and fit up Collins. Opinion by Yellott, J. Alvey, C. J., cona station on certain lands which they had bought from curs. [All the authorities including those cited by the him; but the agreement.contained no further descrip- court are collated iu 45 Am. Rep. 327, note.-ED.) tion of the station, por any stipulation as to the use of it. The company refused to erect the station in the

MARRIAGE-ANTE-NUPTIAL DEED-CONSTRUCTIOSspecified place, but substituted one at a distance of

INTENTION.– Whenever it appears from the face of a

deed executed in contemplation of marriage, and as an two miles therefrom. This substituted station the

aute-nuptial settlement of the property of the woman, landowner refused to accept in lieu of the one to wbich he was entitled under the agreement. And the court

that the intention is to carry the title to the property upon application for specific performance, while hold

beyond the period of the wife's death, and to exclude

the husband, that intention must prevail, and the ing that the case was fully within the jurisdiction for

court will give a liberal construction to its language in specific performance of the agreement, concluded that

order to discover and effectuate such intent. Ward r. because of the indefinite character of the agreement,

Thompson, 6 G. & J. 349; Waters v. Tazewell, 9 Md. more complete justice could be done by awarding com

291; Townshend v. Matthews, 10 id. 251; Hutchins v. pensation, by way of damages, under the Stat. 21 & 22 Vict., known as Lord Cairu's Act, wbich only applies

Dixon, 11 id. 29; Deuton v. Denton, 17 id. 403; Marsh

all v. Beall, 6 How. 70. In some of these cases the proin cases where the court has jurisdiction to entertain the application for specific performance. But as in

visions of the conveyances are very similar to those in

the present deed, while in others the intention to exthis case the specific execution of the covenant would be attended with no little difficulty, and as the relief

clude the husband is much less apparent; but the rule

of decision is the same in all. A deed executed in prayed by the bill was in the alternative, she was entitled to receive a sum of money equivalent to the

contemplation of marriage conveyed certaiu property value of such house in lieu thereof. 2 Story Eq., $

iu trust, the grantor to be permitted to take and re799; Rider v. Gray, 10 Md. 282, 300; Bowie v. Stone

ceive during her life the net income aud profits

thereof, to her sole and separate use, full power to street,6 id. 419,431. This case would seem to fall within

dispose of the same by deed or will being reserved, the reason and scope of the principle upon which com

and failing so to do, and dying intestate, the same to pensation may be awarded. Busey v. Curley. Opin

be held for her children or their descendants if she iou by Alvey, C. J.

left any, if not, for her heirs-at-law. The intended JURISDICTION-OVER PERSON WAIVED BY APPEAR- husband was one of tbe wituesses to the deed, wbich ANCE.- Where the subject matter of the suit is one was placed on record after the marriage. The grantor over which the court has jurisdiction, the appearance died intestate without issue, leaving her husband sur of the defendant by attorney waives the objection to viving her. Held, that the intent of the grantor to carry the jurisdiction. Iu Oulton v. Radcliffe, L. R ,9 Com. the title to the property beyond her life and to er. Pleas, 195, Denman, J., says: “Actual service of the clude her husband, was plainly mauifest, and he was writ is not essential. If the defendant appears, that not entitled to any interest or share therein. Voody T. gives the court jurisdiction to proceed, provided the Hall. Opinion by Miller, J. subject-matter of the action is one over which the court has jurisdiction.” Keating, J., says in the same

STATUTE OF FRAUDS- MEMORANDUM-TIME OF DE“The question is, whether the fact of the writ

LIVERY-CUSTOM-INSTRUCTION MUST PREJUDICE TO having been served out of the jurisdiction makes the

REVERSE.-It is not necessary in the written note or subsequent proceedings void ; in other words, whether

memorandum of the sale of goods, required by the the appearance of the defendant by his attorney,

Statute of Frauds, that the time of the delivery sbould though the service was such that he was not bound to

be stated, provided no time was fixed in the parol appear, gives the palatinate court jurisdiction. I am

agreement. But if a time for the delivery of the goods of opinion that the appearance did waive the objection be fixed in the verbal agreement of sale, such time to the jurisdiction.” After an appearance it is too

must be incorporated in the written note or memolate to object to any infirmity in respect to the service randum thereof. 1 Benj. on Sales, 277. If no time be of the writ or summons, except where the appearance fixed in the agreement, for the delivery of the goods is made for the special purpose of raising the objection.

sold, the law will imply that it is the duty of the selIreton v. Mayor, etc. Opinion by Irving, J.

ler to deliver them in a reasonable time, and what is

a reasonable time must depend upon the circumstanWILL-OBLITERATION---INOPERATIVE ALTERATION

ces surrounding the case, and the character of the STATUTE MUST BE FOLLOWED.-A testator cannot by

goods dealt in. If there be an established custom the obliteration of certain words in his will, convert a

among merchants who deal in the particular goods life estate into a fee simple. A testator left ten chil

sold, regulating the time of such delivery, the delir. dren--seven sons and three daughters. By his will be directed that his estate be divided into ten equal parts 2 Benj. on Sales, 891; Williams v. Woods, Bridges &

ery will be regulated and controlled by such custom. or sbares, and he gave to all his children life estates in

Co., 16 Md. 220; Salmon Falls Manf. Co. v. Goddard, their respective shares, with remainders over to their

14 How. (U. S.) 446. Before a case will be reversed, it children, except his sons J. E. and L., to whom he

must appear, not only that the iustruction complained gave their respective shares absolutely and in fee.

of was erroneous, but that the appellant was prejaSome time after the execution of the will, the testator

diced thereby. Young v. Mertens, 27 Md. 114; Parker erased or obliterated the names of his sons J. E. and

v. Wallin, 60 id. 15. Kriete v. Myer. Opinion by L., wherever they occurred by drawing a line through

Stone, J. them with his pen, but leaving the names legible. The erasures operated to confer estates in fee simple on all the sons. Held, that the attempted obliterations were

CRIMINAL LAW. inoperative, and the will should be read as it was originally written and executed. Any alteration in a

LARCENY-PRESUMPTION FROM POSSESSION.- A pris. will by interlineation or obliteration, whereby a dif

oner's exclusive and unexplained possession of stolen


property, recently after a theft, raises a presumption 28 Eng. Rep. 534; per Bramwell, B., followed. Cir. Cas. that he is the thief, and such presumption takes the Res., April 5, 1884. Reg. v. Carter. Opinion by Coleburden of proof from the prosecution and lays it upon ridge, C. J. (50 L. T. Rep. (N. S.) 596.] tbe prisoner. Roscoe Crim. Ev. 18; 2 Russ Cr. 338. To

JUROR-DISQUALIFICATION— NEW TRIAL VIEW the same effect see Phil. Ev. (7th ed.) 186; Knicker

WAIVER. -A petition for a new trial ou the ground bocker v. People, 43 N. Y. 177; People v. Walker, 38

that one of the jurors was disqualified by a relationMich. 156; State v. Brady, 27 [owa, 126; State v.

ship of consauguivity is addressed to the discretion of Creson, 38 Mo. 372; State v. Turner, 65 N. C. 592; Wal

the court. Such a petition will not be granted when ters v. People, 104 III. 544; Sablinger v. People, 102 id.

the relationship was by consanguinity in the sixtb de242. And so far as we have been able to discover, the

gree, was probably unknown to the juror, and was not California courts (18 Cal. 383; 48 id. 253) stand almost alone in the modification of the doctrine. Sup. Ct.

shown to have injuriously affected the accused. “A

new trial will not be granted in a criminal case," says Arizoua, Jan., 1884. Territory v. Casio. Opinion by

the Supreme Court of West Virginia, in a case similar Penney, J. (2 Pac. R. 755.) [See 58 Ind. 310; 56 N. Y.

to the case at bar, “for matter that is a principal cause 315; 6 Neb. 102; 52 Miss. 695; 114 Mass. 299; 1 Hun, 670; 54 III. 405.-ED.]

of challenge to a juror, which existed before he was

elected and sworn as such juror, but which was uuACCESSORY-RECORD OF CONVICTION-REMARKS OF known to the prisoner until after the verdict, and PROSECUTING OFFICER-WHEN NOT ERROR. —The stat- which could not have been discovered before the juror ute authorizes the charging of an accessory before the was so sworn by the exercise of ordinary diligence; fact as a principal. State v. Cassady, 12 Kas. 550. unless it appears from the whole case that the prisoner Upon the trial of an accessory before the fact, the re- suffered injustice from the fact that such juror sat cord of the conviction of the principal is proof prima upon the case." State v. Williams, 14 W. Va. 851, 869; facie of that fact; but this is not conclusive, and other State v. McDonald, 9 id. 456; McDonald v. Beall, 55 Ga. evidence of the commission of the crime by the prin. 288, 293. When a view is bad in a criminal case the accipal is admissible. Levy v. People, 80 N. Y. 327; cused may waive his right to be present at tte view. Arnold v. State, 9 Tex. Ct. App. 435. (2) Upon the Such a waiver is presumed when he does not ask to be trial of a defendant charged with a criminal offense,the present and makes no objection in the course of the latter rested without testifying. The State introduced trial after the view; and when the view was allowed at a witness and offered to prove certain facts, to which the request of his counsel, who stated that the health the defendant objected as not being proper rebuttal. of the accused precluded his attendance. A reporter Thereupon the county attorney said to the court, in who was present at the trial, whose occupation would the hearing and presence of the jury: “Your honor, naturally lead him to note and remember the incidents we had a right to presume that the defendant would of it, makes affidavit that the court spoke to one of the testify as a witness in his own behalf, in which case counsel for the prisoner in regard to wbat was to be this evidence would have been proper rebuttal, and we done with him, and that the counsel replied that his having failed to do so, we claim the right to introduce health was such that it would not be prudent for bim it now." Held, that these remarks to the court were to go with the jury on such a severe day. We think not such an infringement upon the statute forbidding that under these circumstances the prisoner must be the prosecuting attorney to refer to the fact that the held to have waived his privilege, which in our opindefendant did not testify in his own behalf as requires ion it was competent for him to do. State v. Adams, us under the circumstances of this case to grant a new 20 Kans. 311, 323; United States v. Sacramento, 2 Mont. trial. We understand the statute is explicit tbat 239, 241; People v. Murray, 5 Crim. Law Mag. 223 ; State when a defendant in a criminal cause declines to tes- v. Polson, 29 Iowa, 133; Carroll v. State, 5 Neb. 31; Hill tify in his own behalf, absolute silence on the subject v. State, 17 Wis. 697; Fight v. State, 7 Ohio, 180; Mcis enjoined on counsel in their argument on the trial, Corkle v. State, 14 Iud. 39. Sup. Ct. Rhode Island, and that the courts will hold prosecuting attorneys to April 4, 1884. State v. Congdon. Opinion by Durfee, a strict observance of their duty in this respect. State C. J. (As to first point see 6 Allen [N. B.), 389. [14 V. Graham, 17 N. W. Rep. 192; Long v. State, 56 Ind. R. I.] 182; 26 Am. Rep. 19; Commonwealth v. Scott, 123

EVIDENCE-LEADING QUESTION-ASSUMING FACT.Mass. 239; 25 Am. Rep. 87. Yet we do not think the

A question which assumes the existence of a fact esincideutal allusion to the court by the county at

sential to a conviction, where there was no evidence torney, under the circumstances, was such miscon

that the fact existed, is entirely inadmissible. The duct as requires us to grant a new trial. Tbe reinarks

question is leading, as are all questions to a witness of the county attorney were not made in an address

which assume the existence of facts material to the isto the jury, were not directed to the jury, nor in

sue, which have not been proved. 1 Greeul. Ev. $ 434; tended for the jury. It is possible and more than

Starkie Ev. (10th ed.) 197; Turney v. State, 8 Smedes probable that the members of the jury heard the re

& M. 104. Hence the specific objection was well taken marks, as they were uttered in their presence, but the

and ought to have been sustained. But it is sometimes county attoruey evidently did not intend to infringe

said that it rests in the sound discretion of the trial upon the provision of the foregoing statute, and we

court to allow leading questions to be put to wituesses, cannot regard his remarks, made as they were, as ma

and that error cannot be assigned on the rulings in tcrial error. Calkins v. State, 18 Ohio St. 366. Sup.

that behalf. It is undoubtedly the law that if a witCt. Kansas, Jan., 1884. State v. Mosley. Opinion by

ness appears to be hostile to the party producing him, Horton, C. J. (31 Kans. 355.) [See 2 Pao. Rep. 609;

or unwilling so give evidence, it is in the discretion of 61 Iowa, 559; 32 Eng. Rep. 277-9.-ED.]

the court to allow leading questions to be put to him, EVIDENCE-POSSESSION OF STOLEN GOODS.-On an and in such cases error cannot, in general, be assigned indictment for stealing goods, and also for receiving upon the ruling. 1 Greenl. Ev., $ 255. But here the ing them knowing them to have been stolen, under witness does not appear to have manifested any hostilsection 19 of the Prevention of Crimes Act 1871, evi- ity to the prosecution, or any unwillingness to testify. dence of other stolen goods being found in the posses- Under all the circumstances of the case, we think the sion of the prisoner is not admissible unless they are ruling of the court permitting the above question to found in his possession at the same time; that is, at be put to the female witness was not a proper exercise the time he was found in possession of the goods he is of the discretion of the court, and that such ruling indioted for stealing Reg. v. Drage, 14 Cox C. C. 85; may be assigned as error. See opinion by Chief Jus

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