Imágenes de páginas


the relative situation of the lot to the surrounding improving his retained lot by building upon it, though lands, but by the manner in which that lot has been his erection darkens the windows of his vendee, and built upon. The actual enjoyment of the light and air excludes the access of light and air from such winby the owner of the house is upon his land only. He dows. makes no tangible or visible use of the adjoining lands, 3. That the limitation of these two propositions denor indeed any use of them which can be made the pends upon the fact as to whether such windows are a subject of an action by their owner, or which in any real necessity for the enjoyment of the grantee's propway interferes with the latter's enjoyment of light and erty. If they be, then the implication of the grant of air upon his own land with any use of those lands in an easement of light and air will be sustained; if they their existing condition. In short, the owner of the be not, or can be substituted at a reasonable cost, with adjoining land has submitted to nothing which ac- a view to the purposes of the dominant tenement, then tually encroached upon his rights, and cannot there- such implication will be denied and rejected. fore be presumed to have assented to any such eu- 4. The American doctrine as to light and air requires croachment. The use and enjoyment of the adjoin- an express grant or agreement, unless a real and actual ing lands are no more subordinate to those of the necessity exists, to vest a dominant tenement with house where both are owned by one man, than where such right. the owners are different. The reasons upon which it 5. The doctrine of ancient lights is not recognized has been held that no grant of a right to light and air in Pennsylvania. can be implied from any length of continuous enjoy- These principles being determined, and there being ment are equally strong against implying a grant of no express grant or agreement disclosed in the facts such a right from the mere conveyance of a house with reported by the master, but one question of fact arises windows overlooking the land of the grantor. To im- upon the case as presented by the master. ply the right of such a grant in either case without ex- Are the windows, closed by the defendant's erecpress words would greatly embarrass the improvement tion upon his own lot, a real and actual necessity for of estates, and by reason of the very indefinite char- the purpose of furnishing the necessary light and air acter of the right asserted, promote litigation. The to the house of the plaintiff? The master has found simplest rule, and that best suited to a country like they were not, and when it is remembered that the ours, in which changes are coutinually taking place in house of the plaintiff is at the corner of a street in an the ownership and use of lands, is that no right of this incorporated borough, it is hard to conceive how the character shall be acquired without express grant of master could reach a different conclusion, particularly an interest in, or covenant relating to, the lands over in the light of the testimony of the witnesses. which the right is claimed.

* Considering, One other inquiry remains.' Mr. Widdicombe, a therefore, that by the preponderance of reason and former owner of the premises, declares that he bought authority no grant of any right of light and air over the lot now owned by the defendants for two purposes, adjoining lands is to be implied from the conveyance one of which was to obtain more light and ventilation, of a house, we have only to apply this rule to the and that he sold the two lots together to Mr. Wotton facts.” In 1876, N. Y., Doyle v. Lloyd, per Earl, J., as a whole. I cannot see how this can affect the case. this doctrine, there styled the "American doctrine,” as The purposes for which a former owner purchased to light and air, is distinctly recognized, the learned property cannot affect the use and rights of his vendees judge citing Keats v. Hugo, supra; Parker v. Foote, or alienees, unless such purposes are covenanted for, are 19 Wend. 315; 2 Sandf. Sup. Ct. Reports, 316; Myers actually or constructively known to such alienees, and v. Genmell, 10 Barb. 537; Mullen v. Stricker, 19 Ohio are in the nature of contracts or covenants which may St. 135; Haverstick v. Sipe, 33 Penn. St. 368.

be enforced between themselves or by others. The Doyle v. Lloyd, supra, it may be parenthetically re- deed in fee bars the grantor, and a mere purpose on bis marked, involves the distinction which seems to sus- part will not control his alienees. Mr. Widdecombe tain the ruling in Kay v. Stallman, by Finletter, J. could have changed his purpose and built upon the lot

In Turner v. Thompson, 58 Ga. 268, reported in 24 while he was owner of both; his vendee, unrestricted Am. Rep. 497, it was ruled that where land was sold by covenant, may do the same. The bill cannot be with a house on it having windows overlooking the sustained on this ground. adjacent land of the grantor, that the latter was not The master has elaborated the other questions with estopped from obstructing the windows, unless they sufficient clearness, and all the exceptions to his report were necessary to give light and air to the house; or, are overruled. if sufficient light and air could be derived from other In conclusion, it seems proper to add one word. windows open, or that might be commonly opened | The motion for a preliminary injunction was refused elsewhere in the house. This case was evidently most after brief hearing; and though I then formed a clear carefully considered; it reviews the earlier Massachu- idea of what the “American doctrine" ought to be, no setts aud New York decisions, adopts Keats v. Hugo, time was given, nor argument made, to and upon that and the reasoning of Chief Justice Gray, and of hearing, which involved the exhaustive research disMitchell v. City of Rome, 49 Ga. 19; 15 Am. Rep. 669. It played by counsel in the final argument. is worthy of remark, however, that this case limits I have carefully and patiently considered all the the general application of Keats v. Hugo as between cases cited, and tested the clear and forcible reasoning dominant and servient tenement in one important of counsel by the authorities now within my reach, respect. I think the limitation is wise aud right. It and have endeavored, I believe successfully, to hear the is that an implied easement of light and air will case de novo. But were there no authorities, I am be sustained in case of real necessity. Powell v. clearly of opinion that the law should be as I have Sims, 5 W. V. 1; 13 Am. Rep. 629. Many more cases found it. Public policy requires that in a new and demight be cited, and I have examined every caso veloping country the spirit of improvement, of betteron the briefs of counsel, save one from Lord Ray- ments, should not be changed and handicapped by the mond; but enough has been done to justify the con- law. With the limitation of an implication arising clusions of law which I am about to reach, and which from real and actual necessity, the time honored and I think should become the law of Pennsylvania : equitable maxim of sic utere tuo non alienum lædas, is

1. No implication of a grant of the right to light and carefully observed. If the principles of Story v. Odin air arises upon a sale of one of two adjacent lots hav- were to prevail, one with a series of town lots would, ing a house upon it with windows overlooking the land after the sale of one, imply a grant as to the two of the grantor.

others immediately adjoining that would destroy them 2. The grantor, by such sale, is not estopped from for building purposes, and a one-story house would be compelled to remain one story because its dominant owner of the land was entitled to such a crossing as tenement had two. All improvement would be stayed, was suitable under the circumstances, and an order by values would be destroyed, and alienations, except the trial judge directing that the crossing should be under special contracts, rendered dangerous for the constructed under the track was proper. The right of future and ruinous in the past.

a crossing under the track was a necessity, if for suffiOur court of last resort, in Be V. Armstrong, 8 cient reasons a construction over the surface of the W. & S. 40, approved in Young v. Leedom, 67 Penn. St. road was not practicable or would not answer the pur351, indicated that the agricultural rule of drainage as pose iutended. In such a case the right to relief must between servient and dominant tenements cannot rest in the sound discretion of the judge and must be apply in boroughs and incorporated towns. The reason entirely equitable and just. Clarke v. Rochester, etc., is that no lot could be filled up and graded or be R. Co., 18 Barb. 350; Wheeler v. Rensselaer, etc., R. Co., adapted to building purposes if such rule prevailed in 12 id. 227. The proceedings taken to condemn the land towns. If that conclusion be sound within the scope of plaintiff and damages paid by reason thereof, held of the maxim, sic utere tuo, etc., surely the same spirit not to preclude plaintiff from maintaining an action of public policy would protect lot-holders in boroughs, to compel the corporation to erect crossings. The towns and villages in regard to implied rights of light proposition that when lands are taken compulsorily, and air, even though a different rule prevailed in agri- the proceedings for condemnation contemplate and cultural lands.

provide for every form of damage or inconvenience to But I think this opinion shows that, except in the owner, is not well founded and cannot be upheld. Maryland and New Jersey, a different rule does not Smith v. New York, etc., R. R. Co., 63 N. Y. 58. Judgprevail.

ment affirmed. Jones v. Seligman et al., trustees, apAnd now January 25th, 1879, tho exceptions to the pellants. Opinion by Miller, J. report of the master are overruled, and the report is [Decided June 1, 1880.] confirmed, and it is now ordered that decree be drawn by counsel under the equity rules.


OF PLAINTIFF UNKNOWN TO DEFENDANT NOT PROVPER CURIAM. The learned president of the court below has discussed the questiou involved in this case

ABLE.— While a defendant in an action for slander in an opinion so able and exhaustive that it is unneces

may show in mitigation of damages that information

received from others or the existence of faots within sary that we should add any thing to it. We affirm this decree upon that opinion.

his knowledge induced him to believe that the charge Decree affirmed and appeal dismissed, at the costs of

made by him was true, he cannot show that the reputhe appellant.

tation of the plaintiff was bad in order to prove that the words spoken by him could not injure it. And he

cannot show in mitigation of damages the existence of NEW YORK COURT OF APPEALS ABSTRACT.

facts which were not known to him when he uttered

the slanderous words. Bush v. Prosser, 17 N. Y. 317. CONSTITUTIONAL LAW -- STATUTE SHORTENING TERM Such facts have effect by showing that the defendant OF OFFICE OF ALDERMAN VALID - NEW YORK CITY.- was not malicious in the utterance of the disparaging The fact that an act of the Legislature (Laws 1870, words. Cooper v. Barber, 24 Wend. 105; Bisbey v. ch. 137), amending the charter of the city of New Shaw, 12 N. Y. 67; Willover v. Hill, 72 id. 30. The York, shorteus the duration of the term of office of an provision of the Code in respect to this matter (old alderman of said city, so that the term declared by Code, $ 165; new Code, $ 535), was meant to change the statute in force when he was elected to be for two rule of pleading and not the effect or admissibility of years, is made by the amending act a term for five evidence further than the change in form of pleading months, held, not to make such act invalid. The oflico did so. Spoouer v. Keeler, 51 N. Y. 527. The doctrine not being created or regulated by the Constitution,fthe that a person of disparaged fame is not entitled to the Legislature has entire control over the matter. The same measure of damages with one whose character is office was created and its term was fixed by that body, unblemished, and that it is competent to show that by and it could be changed by it. The legislation was such evidence (Earl of Leicester v. Walter, 2 Camph. aimed at the office not at the incumbent. However

v. Moor, 1 M. & S. 284), is not the rule in viewed, the act was within the lawful exercise of power this State. Root v. King, Cow. 629; Gilman v. by the Legislature, and within the principle that a Lowell, 8 Wend. 579. Judgment affirmed. Hatfield public office is not a grant, and that the right to it does v. Lasher, appellant. Opinion by Folger, C. J. not depend upon or partake of the nature of a contract.

[Decided June 1, 1880.] Comer v. Mayor of New York, 2 Sandf. 355, 369; af

PRIVILEGED COMMUNICATION - CRITICISM OF firmed 5 N. Y. 285; Sinith v. Mayor of New York, 37

CONDUCT OF PUBLIC OFFICER. - The official act of N. Y. 518. Judgment affirmed. Long, appellant, v.

public functionary may be freely criticised and entire Mayor, etc., of New York. Opinion by Dauforth, J. [Decided June 15, 1880.]

freedom of expression used in argument, sarcasm and

ridicule upon the act itself, and then the occasion will RAILROAD- - FARM CROSSINGS -- CONSTRUCTION MAY excuse every thing but actual malice and evil purpose BE COMPELLED BY ACTION. - Under the statute requir

in the critic. But the occasion will not of itself excuso ing railroad companies to construct and maintaiu farm an aspersive attack upon the character and motives of crossings, the location of the crossing is to be made the oflicer, and to be excused the critic must show the somewhat with reference to the necessities and con- truth of what he has uttered of that kind. A person venience of the owner of the farm, and he is entitled in a public office is no less to be protected than one to be reasonably and fairly accommodated. The rail- who is a caudidate for public office, and the law of road company, in the exercise of its duty in providing libel must be the same in each case. It is the law of farm crossings, is not vested with any such absolute this State that to accuse a candidate for publio office discretion or arbitrary power that its decision is final of an offense is not privileged, though the charge was and conclusive and cannot be reviewed or disturbed. made without evil motive and in the exercise of a poWademan v. Albany & S. R. Co., 51 N. Y. 568. An litical right (Lewis v. Few, 5 Johns. 1), and though the action will lie to compel the company to make a suita- | libel relate to a public act of the candidate in his offi ble crossing. In this case the farm of plaintiff was so cial place. Root v. King, 7 Cow. 613; affirmed, divided by the railroad that it was necessary for the Wend. 113. It cannot be different when the charge is cattle and stock kept on the greater part of the farm against one holding au office. See Edsall v. Brooks, ar h7 to cross the railroad to obtain water. Held, that the Abb. Pr. 221. So it seems to be in other States. Corsa




monwealth v. Clapp, 4 Mass. 163; Curtis v. Mussey, 6 defendant did not begin to run at the time of the payGray, 261; Seely v. Blair, Wright (Ohio), 358, 683; ment of the draft, nor until the United States elected Brewer v. Weakley, 2 Overton (Tenn.), 99; Mayrant v. to insist on the defect of title and cancel the credit Richardson, 1 N. & McC. (s. Car.) 317. Judgment given plaintiff on the draft. The case of Cowper v. affirmed. Hamilton v. Eno, appellant. Opinion by Godmond, 9 Bing. 788, 23 E. C. L. 452, is in principle Folger, C. J.

much like this. There the question was whether a [Decided June 1, 1880.]

plea of the statute of limitations was a bar to an action

for money had and received to recover the consideraUNITED STATES CIRCUIT COURT AB

tion money of a void annuity, when the annuity was STRACT.*

granted more than six years before the action was

brought, but was treated by the grantor as an existing ALTERATION - PRESUMPTION

annuity within that period. “That question," said

INTERLINEATIONS. — In deciding as to whether an interlineation

the court, “depends upon another: at what time did in an instrument is an unauthorized alteration or not,

the cause of action arise? The cause of action comthe rule is that if the interlineation is in itself suspi

prises two steps. The first is the original advance of cious, as, if it appears to be contrary to the probable

the money by the grantee; the second is the grantor's

election to avail himself of the defect in the memorial meaning of the instrument as it stood before the insertion of the interlined words; or if it is in a hand

of the annuity. The cause of action was not complete writing different from the body of the instrument, or

until the last step was taken.” In the present case, appears to have been written with different ivk-in

also, the warranty contemplated two things: First, all such cases, if the court considers the interlineation

the giving of the credit by the United States; and, suspicious on its face, the presumption will be that it second, its continuance. As the first requirement of was an unauthorized alteration after execution. On

this undertaking was complied with, no right of action the other hand, if the interlineation appears in the

could arise until the second was broken. That cersame handwriting with the original instrument, and

tainly did not occur until the United States elected to bears no evidence on its face of having been made sub

take back the credit it had given. Circuit Maryland, sequent to the execution of the instrument, and espe

June 30, 1880. Merchants' National Bank of Baltimore cially if it only makes clear what was the evident

v. First National Bank of Baltimore. Opinion by intention of the parties, the law will presumo that it

Waite, C. J. was made in good faith, and before execution. Stoner

TOWA SUPREME COURT ABSTRACT. v. Ellis, 6 Ind. 152; Huutington et al. v. Finch & Co., 3 Ohio St. 445; Nichols v. Johnson, 10 Conn. 192; Burn

JUNE, 1880. ham v. Ayer, 35 N. H. 351; Beaman v. Russell, 20 Vt.

ACKNOWLEDGMENT 205. Circuit Minnesota, June, 1880. Cox v. Palmer et

-BY MARRIED WOMAN-STRONG al. Opinion by McCrary, C. J.


In this case the question was whether a married woman EQUITABLE ACTION AGAINST WAREHOUSEMAN BY

joined in the execution of a mortgage executed by her HOLDER OF NEGOTIABLE WAREHOUSE RECEIPT - PAR

husband. She could not write and her name was TIES. - When a warehouseman, having in store a

signed by another and her mark made. The mortquantity of wheat deposited by several persons, for

gagee testified that she acknowledged the execution; which, under the statute of a State which provides

there was a certificate of a justice of the peace that that receipts therefor shall be negotiable and evidence

she did, and he also testified to the same.

This was of the title to the wheat named therein, he issues re

denied by the wife and three or four members of her ceipts to each depositor, fraudulently disposes of part

family or relatives. Held, that the testimony did not of the wheat, the receipt holders must share in what

overcome the certificate of the justice. In such a case remains according to the equitable interest of each, to

great weight should be given to the certificate of the be ascertained by an accounting. No one of such re

officer, and his direct and positive testimony upon the ceipt holders can recover at law the whole, nor could

subject. He is elected expressly with reference to his any number of such holders, less than the whole num

integrity and other qualifications for taking acknowlber, recover possession as against the remainder. This

edgments of instruments. It is true that in this matcase must be brought in a court of equity, where all

ter he may be corrupt or mistaken, but the presumption the claimants can be heard and decree can be rendered

is very strong in his favor. Morris v. Sargent, 18 Iowa, establishing the rights of each with respect to the

90; Van Orman v. McGregor, 23 id. 302; Borland v. property in controversy. It is a controversy which

Walrath, 33 id. 133. This is certainly the theory of the cannot be settled at law. Circuit Minnesota, June,

law, and any other would have a great tendency to 1880. Dows et al. v. Eckstrone. Opinion by McCrary,

unsettle titles and securities. Bailey, Wood & Co. v. C. J.

Landingham. Opinion by Adams, C. J. LIMITATION — STATUTE OF- ACTION AGAINST IN


TO CIVIL ACTION FOR WRONGFUL AWARD. — An arbiStates treasurer, in 1867, made a draft on the First

trator having jurisdiction to make an award acts judiNational Bank of B. to the order of O. The name of

cially in so doing and is not liable in a civil action for 0. was forged and the check was sent by a third party to the M, bank for collection. The M. bank indorsed

damages for an award alleged to have been made by

him fraudulently and corruptly. Perhaps no branch it and presented it to the drawee by which it was paid

of the law has undergone more thorough discussion and forwarded to the United States treasury, and

than the question as to the liability of judges to civil credit therefor allowed the drawee. In 1877 the United

actions for their judicial acts. The cases which treat States sued the drawee, the First National Bank of B.,

of the subject are so numerous, both in England and for the amount of the draft, on the ground that the

in this country, that it is impracticable to do more indorsement was forged, of which suit the M. bank

than to refer to them generally. In the case of Yates was notified and employed counsel in defending the

v. Lansing, 5 Johns. 28, there is an elaborate review of suit. Judgment was rendered against the First Na

the authorities upon the subject. In a note to Burtional Bank of B. Held, in an action by that bank

land v. Parsons, 25 Am. Rep. 694, we have the subagainst the M. bank to recover the amount paid on the

stance of a large number of cases, English and judgment, that the statute of limitations as against the

American. See, also, Bradley v. Fisher, 13 Wall. 335, * Appearing in 3d Federal Reporter.

and in the late case of Lange v. Benedict, 73 N. Y. 12,





very many authorities are reviewed and commented Having deliberately chosen to wait until the property upon. By these authorities it is settled beyond all not only changed custody, but was also annexed still controversy, that a judge of any court, whether of more firmly by ballasting, he could not then treat as limited or general jurisdiction, is not liable in a civil personalty in the hands of the railroad company, conaction for acts done in his judicial capacity, and within verted by a mere failure to give it up on demand, what his jurisdiction, even though it be alleged that the aets became to his knowledge a part of realty in the hands complained of were done maliciously and corruptly. of the contractors, against whom he had a remedy for In Pratt v. Grordner, 2 Cush. 68, Shaw, C. J., said: “It the only conversion that ever took place. Morrison v. is a principle lying at the foundation of all well- Berry, 42 Mich. —; 4 N. W. Rep. 739; Pierce v. Godordered jurisprudence, that every judge, whether of a dard, 22 Pick. 559; Fryatt v. Sullivan Company, 5 Hill, higher or lower court, exercising the jurisdiction | 116; 7 id. 529; Cooley on Torts, 55. Detroit & Bay City vested in him by law, and deciding upon the rights of Railroad Co. v. Burch. Opinion by Campbell, J. others, should act upon his own free, unbiased convic- MARRIED WOMAN — NOT LIABLE FOR IMPROVEMENTS tions, uninfluenced by any apprehension of conse- TO SEPARATE PROPERTY MADE ON HUSBAND'S CREDIT. quences.” In some of the cases, as in Bradley v.

- Plaintiffs placed a furnace in the house of a married Fisher, 13 Wall. 335, it is held that judges of courts of

woman upon the request of her husband and gave him superior or general jurisdiction are not liable to civil

credit for the purchase-price. Afterward, on asceractions for their judicial acts, even when such acts are

taining that the house did not belong to the husband in excess of their jurisdiction, and are alleged to have

but to the wife, the plaintiffs, after demanding paybeen done maliciously or corruptly; and a distinction ment, returned the note they had taken from him and is made between excess of jurisdiction and the clear brought action against the wife. Held, that they could absence of jurisdiction over the subject-matter. In

not recover. Morrison v. Berry, 4 Nev. 739; Newcomb other cases it is held that judges of courts of limited

v. Andrews, 41 Mich. 518; Vanneman v. Powers, 56 N. jurisdiction are liable to civil actions for their acts

Y. 39; Woodruff Iron Works v. Adams, 39 id. 233; done in excess of their jurisdiction. The case of

Wright v. Hood, 5 N. W. Rep. 488. Holmes & Webster Gowing v. Congal, 12 Iowa, 495, does not hold that an

v. Bronson. Opinion by Graves, J. inferior judicial officer is liable where he has jurisdic

SURETYSHIP tion. Warren v. Mitchell, 18 Iowa, 155; Landegan v.

OFFICIAL Hariner, 30 id. 155. Jones v. Brown. Opinion by


SUBSEQUENT TO EXECUTION. After the official boud

of a sheriff had been given, an act of the Legislature MORTGAGE

taxing the business of manufacturing and selling inCOUNT FOR RENTAL VALUE OF PREMISES, - - When a toxicating liquors was passed, and sheriffs were remortgagee goes into possession of the mortgaged prem- | quired to collect the tax when warrants therefor were ises and does not rent the same to another, he must issued by county treasurers. Held, that the duty of account for the reasonable rental value thereof and collecting taxes was not germane to the office of not for the net proceeds therefrom. In Sanders v. sheriff, and the sureties on his official bond would not Wilson, 34 Vt. 318, it is said: “When the mortgagee be liable for his default therein, in the absence of a himself occupies, and especially when the premises are clear provision in the bond to meet such a case. Gausa farm in cultivation, upon which labor and expendi- sen v. United States, 97 U. S. 584; Converse v. United ture are to be bestowed to produce annual crops and States, 21 How. 463; Commonwealth v. Holmes, 25 profits, the mortgagee will be charged with such sums Gratt. 771. And it must be observed further that in as will be a fair rent of the premises, without regard proceeding to ascertain whether the new duties were to what he may in fact have realized as profits from or were not adventitious, they cannot be considered the use of it. The rule is founded in sound policy, for otherwise as against these sureties, unless their affinity the reason that the particular items of expenditure in to the office is plain and obvious. The rule is one of labor or otherwise, as well as the profits received, are manifest justice. St. Louis v. Sickles, 52 Mo. 122; wholly within the knowledge of the mortgagee; and Mayor of Rahway v. Crowell, 11 Vroom, 207; Citizens' if he is not disposed to render a full and honest ac- Loan Association v. Nugent, id. 215; Amherst Bank count, it would be impossible for the mortgagor to v. Root, 2 Meto. 536; Kitson k. Julian, 30 E. L. & E. show them, or to establish errors in the mortgagee's 326. When an obligation of this kind is created, the account.” To the same effect, see, also, 1 Hilliard on parties, unless they express themselves very clearly to Mort. 33; Daniell's Ch. Pr. (4th ed.) 2223; Washburn the contrary, must be understood as referring to the on Real Prop. 578; Gordon v. Lewis, 2 Sumu. 143; Kel-kind of duties which are fairly appropriate to the office, logg v. Rockwell, 19 Conn. 446; Trimleston v. Hamill, as it then exists, distinct from others. In case some1 Ball & B. 379; Bainbridge v. Owen, 2 J. J. Marsh. thing beyond is meant to be provided for, the provis465; Van Buren v. Olmstead, 5 Paige, 9; Strong v. ion should be made so plain as to leave no reasonable Blanchard, 4 Allen, 538. Barnett v. Nelson. Opinion ground for sureties to allege the failure to understand by Day, C. J.

it. The duties prescribed by the act mentioned were

not equivocal. Their character could not be mistaken. MICHIGAN SUPREME COURT ABSTRACT. They were those of a tax collector, and as distinguish

able from such as are properly incident to the office of JUNE, 1880.

sheriff, as are the common functions of a township

treasurer from those of a constable. As stated by CONVERSION — WHEN ACTION FOR, WILL NOT LIE. - Field, J., “the duties of sheriff, as such, relate to the A sub-contractor for building a railroad, without right, execution of the orders, judgments and process of the took ties belonging to plaintiff below and put them courts; the preservation of the peace; the arrest and among other ties forming the superstructure of the detention of persons charged with the commission of railroad. In June, 1878, plaintiff notified the presi- a public offense; the service of papers in actions, and dent of the railroad company that the ties were his, the like. They are more or less directly connected but took no steps to recover them though they might with the administration of justice; they have no relaeasily have been identified. The railroad had not then tion to the collection of the revenue." People v. Edpassed under the control of the company and did not wards, 9 Cal. 286. See, also, Pybus v. Gibbs, 88 E. C. pass under its control until nearly six months later. L. 902; Oswald v. Mayor of Berwick, 26 E. L. & E. 5; Held, that plaintiff could not then maintain an action Skillett v. Fletcher, L. R., 2 C. P. 469. White v. City against the company for the conversion of the ties. I of East Saginaw. Opinion by Graves, J.

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OFFICIAL BOND - MISTAKE IN NAME OF OBLIGEE cedure. This subdivision has not been attempted to DOES NOT INVALIDATE. — The statute of Michigan re- be changed and is in full force. quires the sheriff of a county to give a bond to the By chapter 245 of the Laws of 1880, passed May 10, State for the purpose of indemnifying all persons in 1880, chapter 467 of the Laws of 1870 were expressly rewhose favor a duty may arise, to be performed by him. peuled. Laws 1880, p. 373, last clause of No. 46. By This bond is required to be approved by the county chapter 480 of the Laws of 1880, subsequently, May 28, board of supervisors. A sheriff gave a bond which 1880 (Laws 1880, p. 690), the Legislature perpetrated the was duly approved, wherein the county in which he blunder of amending section 1 of chap. 467, Laws 1870, was sheriff, and not the State, was made the obligee. which it had previously repealed. Held, that the bond was valid so as to sustain an action Chap. 480, Laws 1880, is clearly unconstitutional and thereon by a party injured by a neglect on the part of the jurisdiction of the court depends upon the provisthe sheriff to levy au execution and a making by him ions of the Constitution and of section 440 of the Code of a false return thereon. If the several duties which of Civil Procedure. the sheriff is called upon to perform could only arise

Yours truly, because of the statute requiring the giving of the bond,

NATHANIEL C. MOAK. there would be abundant reason for saying that until a ALBANY, Aug. 30, 1880. bond in conformity with the statute was produced, no recovery could be had. But the statute does not im- ANSWERS TO MIDSUMMER - PRIORITY AMONG pose the duties; they would be the same if no official

MORTGAGEES. bond were required, and a sheriff de facto is charged To the Editor of the Albany Law Journal : with them under the same circumstances as is a sheriff

I suggest this solution of “Midsummer's" legal probde jure. It needs no statute to enable the officer to

lem, published in your last number: give a valid bond to perform any such duty; and had

The order of record of the mortgages being C, B, A, the sheriff executed to the plaintiffs a common-law and C, having knowledge of B's mortgage only, it is bond, conditioned that he would duly levy and return

clear that C's mortgage must be paid in full, excepting the execution they placed in his hands, there could

as he is affected by his knowledge of B's mortgage, have been no doubt of its validity. United States v.

that is, after deducting the amount of B's mortgage, C Tingrey, 5 Pet. 115; Thompson v. Buckhannon, 2 J.J.

must be paid in full. B, however, is entitled to reMarsh. 416; Governor v. Allen, 8 Humph. 176; Mon

ceive the amount of his mortgage only after A's morttrille v. Haughton, 7 Conn. 743; Commonwealth v.

gage, of which he knew, is satisfied. The only fund Wolbert, 6 Binn. 292. And any bond that may vol

out of which A can be paid, however, is the amount untarily be given to a party for his benefit will be

reserved as against C to pay B's mortgage. The order equally valid if given to another for him. Van Hook

of payment would therefore be: v. Barnett, 4 Dev. 268. And in the case last cited this

1. To A, the amount of his mortgage, not however principle was applied to the bond of offico of an administrator,which, though given to the county justices, amount, if any, by which his mortgage exceeds A's

exceeding the amount of B's mortgage. 2. To B, the when the statute required it to be given to the gov; mortgage. 3. To C, the entire amount of his morteruor, was held to be a valid common-law bond, and

gage. 4. To A, the amount, if any, by which his available as such to any person in whose favor a cause

mortgage fell short of the amount of B's mortgage. of action against the administrator might arise. County 5. To B, such part of his mortgage as he did not reof Bay v. Brock. Opinion by Cooley, J.; Graves, J., ceive as second distributee, that is, an amount not exdissented.

ceeding the amount of A's mortgage. CORRESPONDENCE.

In the case supposed by “Midsummer," of each mortgage being $5,000, and the property bringing

$10,000 (disregarding expenses, taxes, etc.), the distriTo the Editor of the Albany Law Journal :

bution would be: 1. $5,000 to A; 2. $5,000 to C; 3. In re as to whether Dr. Buchanan's bail could be Nothing to B. held in the case of his death by suicide?

B cannot complain because he took subject to C's I don't understand his bail were under bonds to pre-prior recorded mortgage for $5,000, and to A's mortsent his soul (if he has any), and if they produce his

gage for $5,000, of which he knew. body," though dead by his own hands or by any other

The problem is more interesting if A's mortgage be means, why should they not be exonerated ? but I for- less than $5,000, say $4,000, and B's mortgage more get; this is asking you a question.

than $5,000, say $6,000. The distribution would then Yours truly,

be: 1. To A, $4,000. 2. To B, $2,000. 3. To C, $4,000.

E. O. STEBBINS. C cannot complain, for he took with knowledge of a LOCKPORT, N. Y., August 28, 1880.

prior mortgage of $6,000, and it does not concern him

how or to whom the $6,000 is paid. And B cannot comCOUNTY COURT JURISDICTION.

plain for the reason mentioned in the former case.

If A's mortgage were $6,000, and B's $4,000, the disTo the Editor of the Albany Law Journal :

tribution would be: 1. To A, $4,000. 2. To C, $5,000; I see several of your correspondents are "exercised' over chapter 480 of the Laws of 1880, which attempted $1,000 less than his mortgage.

3. To A, $1,000 additional, receiving in all $5,000; being to give county courts jurisdiction " when the relief

A cannot complain, because he took subject to the demanded for the recovery of a sum of money not exceeding $3,000,” etc. It seems to me there need be prior recorded mortgage for $5,000, of C, who was in

nocent as to A, nor for the same reason as before can little apprehension of difficulty.

B complain. The Constitution, art, 6, § 15, provides that county

Did this problem ever really arise ? courts shall “have original jurisdiction in all cases

NEW YORK, August 21, 1880.

E. M. S. where the defendants reside in the county and in which the damages claimed shall not exceed $1,000.”

This provision per se confers jurisdiction in cases To the Editor of the Albany Law Journal: where the relief sought is a money judgment not ex- Your correspondent, Midsummer," in No. 8 of ceeding $1,000 if defendants reside in the county. No current volume, puts a question which at first sight legislative provision was necessary in that class of appears to be a puzzler; but referring to his communicases. The Legislature has however provided therefor cation for a full statement of the case, it seems to me in subdivision 3 of section 340 of the Code of Civil Pro- | that his figures as to amounts of mortgages, amount


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