« AnteriorContinuar »
motion in their favor, involves an absurdity. And with the timber on and the value after it was taken when oue construction of the law will lead to absurd off. Van Deuseu V. Young, 24 N, Y. 9. See, also, consequences, and another will not, it is the duty of Easterbrook v. Erie Railway Co., 51 Barb. 94. Tho the court to adopt the latter. One construction of the cases of Whitlock v. New York Cent. R. R. Co., 36 Barb. law in this case would have set the statute in motion 641; Cook v. Brockway, 21 id. 331, do not conflict with at the time of the delivery of the goods from Baux to this rule. "(4) In a case where tho damages are such as defendants if they had known that he was not the would necessarily and naturally result from the inowner of them; but as they did not know that fact, Iiury complained of, it is not necessary that they the statute did not commence running until they sold should be specially averred to authorize a recovery. or otherwise converted the goods. That is more favor Jutte v. Hughes, 67 N. Y. 267 ; Vaudersbee v. Newton, able to the mala fide than to the bona fide purchaser. | 4 id. 132. Judgment affirmed. Argotsinger v. Vines But that must be the obvious result if we apply to this et al., appellants. Opinion by Miller, J. oase the rule contended for by the appellant. We are [Decided Oct. 12, 1880.] unwilling to give a conscious wrong-doer any advantage over a constructive wrong-doer. And the rule CRIMINAL LAW — RECEIVING STOLEN GOODS-MARwhich we shall apply in this case will simply have the RIED WOMAN - MAY BE CONVICTED WHEN ACTIVE IN effect to put them on an equal footing. We shall hold, CRIME - JOINT INDICTMENT OF HUSBAND AND WIFE in accordance with the rule adopted in Maine, Michi. PRESUMPTION FROM POSSESSION. - Defendants, who gan, Vermont and Massachusetts, that the defendants were husband and wife, were jointly indicted for re. having acquired the possession of plaintiff's property ceiving stolen goods, knowing them to be stolen. The by and through the tortious act of Baux and not other goods, which were stolen from R., were found in a wise, such possession was tortious from its commence room of whicb defendants had control, adjoining the ment, and constituted a conversion of the plaintiff's room occupied by defendants and communicating with property, for which she might at any time within three it by a door. In her husband's absence the wife, by years thereafter have maintained an action without words and active opposition, attempted to prevent the previously making any demand, and that the omission searching officers from entering the room where the to commence an action within that time constituted a goods were. At the trial the judge instructed the jury bar to tbis action.
that in law the wife was presumed to be under the conJudgment affirmed.
trol of tho husband and to have been driven to the Myrick and McKee, JJ., dissented.
offense by him, and consequently should be acquitted, unless the evidence was, in their judgment, sufficient
to overcome or rebut the presumption. Held, that NEW YORK COURT OF APPEALS ABSTRACT.
there was no error in thus submitting the question of
the wife's guilt to tho jury. Marriage is no protection ADVERSE POSSESSION OF WOODLAND - WHAT SUF to the wifo against conviction for a crimo where she is FICIENT – EJECTMENT NOT REQUIRED TO OBTAIN shown to have taken an activo and willing art in its RIGHTS FROM TRESPASSER — RULL OF DAMAGES FOR commission. 2 Lewin's C. C. 229; State v. Nelson, 29 TRESPASS IN CUTTING TIMBER. — (1) In an action for | Me. 329; Cassin v. Delany, 38 N. Y. 178; Seiler v. damages for cutting timber from eleven acres of People, 77 id. 411. It follows that when the husband land claimed by plaintiff, plaintiff proved title to a is guilty of the offense charged, and the wife also, and farm of 122 acres, of which 22 acres (including tho 11) coercion is shown not to exist and therefore each is liawere woodland. The chain of titlo cominenced in ble to punishment, they may be jointly indicted and 1847; plaintiff's father took a deed in 1855, and by convicted; for in such a case the wife acts in her own descent and transfer from the widow and heirs of his capacity as one able to commit crime, and of her own father, he acquired title. The woodland was contigu. accord and intent, as much so as would an unmarried ous to the cultivated land, and was not fenced or in person, and to that effect aro the authorities. King v. closed, which was in accordance with tho custom of Chedwick, 1 Kible, 575; King v. Thomas, Cas. temp. the country. Wood was cut by plaintiff or his prede Hardwicke, 278; Rex v. Cross, 1 Raym. 711; Rex cessors in title, from the 22 acres, for fuel, fencing and v. Stapleton, 1 Crawf. & Dix's C. R. 163; State v, boards, every year since 1847, whenever required, and Bentz, 11 Mo. 27; King V. Morris, 2 Leach (4th appropriated for the benefit of the farm. Defendant ed.), 1096; Reg. v. Ingrabam, 1 Salk. 384; 1 Russ claimed title through a deed to ono W. from the State, on Crimes, 20. In Commonwealth v. Trimmer, 1 in 18:29, and a conveyanco by W.'s heirs in 1877, to Mass. 476, the contrary was held, but in Commonone M., who the same year conveyed to defendant, wealth v. Murphy, 2 Gray, 512, the court held that “a who cut the wood that year. It was in evidence that wife may be indicted jointly with her husband," and W. at one time lived on a farm contiguous to the 11 say “the authorities on this point, notwithstanding acres and to which they belonged. There was no Commonwealth v. Trimmer, are too numerous and proof that W. was ever in possession of the 11 acres or decisivo to be withstood. Whether sho can be conmade any claim to them, and it was shown that he victed separately or jointly with him is a question to died some forty years previous to 1877. For thirty | be determined by direct evidenco or by legal presumpyears no one but plaintiff or his predecessors cut wooctions concerning the freedom of her action or the from the land, and they paid taxes on tho entire farm coercion of her husband.” Barb. Cr. Law, 250; Wagduring that time. Held, sufficient to establish title by I goner v. Bill, 18 Barb. 321; State v. Parkerson, 1 Strobh. adverse possession in plaintiff, and the existence of a | 169; Penny baker v. State, 2 Blackf. 484. Tho line of marked trees through the wood lot would not court charged that “the possession of stolen goods establish a claim against plaiutiff's title. (2) Plaintiff immediately after the larceny, if under peculiar and was not bound to resort to ejectment or any other suspicious circumstauces, when there is evidence tendremedy to vindicate his rights, but was entitled to ing to show that some other persons stole the property, maintain an action for trespass. Machin v. Geortner, such possession not being satisfactorily explained, 14 Wend. 239. (3) The trial court held the rule of would warrant the jury in convicting the accused of damages in such action to be the difference in the receiving stolen goods knowing them to have been value of the farm with the timber on and the value stolen." Held, not error. Rex V. Matthews, 1 Den. after it was cut. Held no error. In an action to re C. C. 596. Judgment affirmed. Goldstein et al., plaintcover damages for such an injury doue to the inherit iffs in error, v. People of New York. Opinion by Danance, it has been held that it is competent for a wit- | forth, J. ness to give his opinion as to the value of the farm 1 [Decided Sept. 28, 1880.)
NEGLIGENCE – OBJECTS LIABLE TO FRIGHTEN | ment is to be implied from the law itself. Stuyvesant HORSES — NOTICE TO CORPORATION. - Plaintiff's horse v. Mayor of New York, 7 Cow. 606; Martin v. Mott, 12 was frightened by a pile of stones, placed near the Wheat. 19; Rector of Trinity v. Siiggins, 1 Robt. 1. travelled part of a turnpike, under the direction of Judgment affirmed. Cronins, plaintiff in error, v. the turupike company, for the purpose of repairing a People of New York. Opinion by Finch, J. bridge, and sprang in such a way as to injure himself | [Decided Oct. 12, 1880.] and the wagon to which he was attached, and to injure plaintiff, who was driving. There was evidence show
CONNECTICUT SUPREME COURT OF ERRORS ing that otier horses had been frightened by the same
ABSTRACT.* pile. Held, that if the pile had a tendency to frighten horses and was of a dangerous character, although not techuically a defect or obstruction in tho highway, the
CONSIDERATION - COMPOUNDING A CRIME - NEED turnpike company could be made liable for damages | NOT BE FELONY TO AVOID CONTRACT. - A man having caused to travellers thereby, after notice of its charac been arrested and lodged in jail upon a criminal proseter and neglect to remove the same. Waterford, etc., cution against himself and his son, for obtaining goods T. Co. v. People, 9 Barb. 161; Wendell v. Mayor of
under false pretenses, his wife agreed with the parties Troy, 39 id. 3:29; Davis v. City of Bangor, 42 Me. 522;
from whom the goods were obtained and who had proDimmick v. Town of Suffield, 30 Coun. 129; Winship cured the prosecution, that she would give a note with v. Enfield, 42 N. II. 199; Bartlett v. Hooksett, 48 id. her husband for the value of the goods and for the 18; Moore v. Town of Richmond, 41 Vt. 435; Shearm costs made, and secure it by a mortgage of her real & R. on Neg. 445-466. Notice to a secretary of the
estate, if they would procure tbe abaudonment of the company held sufficient. Judgment reversed on ground criminal proceeding and tho release of her husband. of admission in evidence of conversation between
The note and mortgage were given and the prosecution witness and third person. Eggleston v. President, etc.,
was withdrawn. Held, ou a bill to foreclose the mortof Columbia Turnpike Road, appellants. Opinion by
gage, (1) that a court of equity would not enforce a Earl, J.
contract of suretyship so procured; (2) that the note [Decided October 5, 1880.]
was void as being upon an illegal consideration. Town
of Sharon v. Gager, 46 Conu. 189; Williams v. Bayley, MUNICIPAL ORDINANCE EXCLUDING SLAUGHTER- L. R., 1 H. L. Eng. & Ir. App. 200; Davies v. Lond., HOUSES FROM FIXED AREA IN CITY — STATUTORY CON etc., Ins. Co., L. R., 8 Ch. 469. To render such an STRUCTION -- POWER TO REGULATE INCLUDES POWER agreement void it is not necessary that the crime comTO PROHIBIT -- REASON FOR STATUTE NEED NOT BE pounded should be a felony. It is enough if it be a SET FORTH.-(1) By the amended charter of the city public offense. All the authorities hold that an agreeof Albany (Laws 1870, chap. —-) the common council ment to compound a felouy will not be enforced, and is authorized to enact ordinances, among other things that any security based upon such a cousideration is "to regulate the erection, use and continualice of void. But as to misdemeanors a distinction has been slaughter-houses." Held, that under this the com made. Some authorities hold that those misdemeanmon council could pass an ordinance forbidding the ors which are personal in their nature between the slaughtering of cattle within prescribed limits within parties, such as bastardy and a common assault, unacthe city specifically named, and such an ordinance companied with riot or intent to kill, may be comprocould not be assailed on the ground that authority to mised. Maurer v. Mitchell, 9 Watts & Serg. 69; Rob" regulate" slaughter-houses could not be construed inson v. Crenshaw, 2 Stew. & Port. 276; Price v. to permit a total prohibition of them in particular Summers, 2 Southard, 578; Holcomb v. Stimpson, 8 Vt. areas or localities. The use of the word "regulate"
| 141. The last case was a prosecution for bastardy, in the statute is not confined merely to the manner in and the decision was placed on the ground that it was which the business of slaughtering animals is carried a civil suit. But where the offense is in whole or in on. To regulate implies a power of restriction and re part of a public nature, nearly all the authorities hold straint. It is the plain purpose of the statute to give that no agreement to stifle a public prosecution for it to the common council the right to fix and determine can be valid. Fay v. Oatley, 6 Wis. 42; Commonthe limits and localities within which new slaughter wealth v. Johuson, 3 Cush. 454; Hinesborough v. Sumhouses may be erected and the areas from which they ner, 9 Vt. 23; Bowen v. Buck, 28 id. 308; Shaw v. may be excluded, and to prohibit their coutinuance Reed, 30 Me. 105; Shaw v. Spooner, 9 N. H. 197; Clark whenever and wherever they become sources of danger v. Ricker, 14 id. 44; Kimbrough v. Lane, 11 Bush (Ky.), to the health and comfort of the community. Iu Vil 550; Peed v. McKee, 42 lowa, 649; Buck v. First NaJage of Buffalo v. Webster, 10 Wend. 100, a similar tional Bank, 27 Mich. 293; Garduer v. Maxey, I B. ordinance was assailed as being in restraint of trade, | Mouroe, 90; Kier v. Lehman, 6 C. B. 308. In the last and it was held that a provision of the ordinance that case cited it is said: “If the matter were res integra
meat shall not be sold in a particular place is good, we should have no doubt iu holding that any compronot being a restraint of the right to sell meat but a mise of any misdemeanor or any publio offense was an regulation of that right." The same authority held to illegal consideration to support a promise, and it is dispose of an objection that the ordinance in question remarkable what very little authority, consisting was void as being in restraint of trade following in that rather of dicta thau decision, there is to support such respect. Bush v. Seabury, 8 Johns. 418; Purce v. considerations." McMahon v. Smith. Opinion by Bertram, Cowp. 209, and to justify the principle of the Loomis, J. latter authorities in which the exercise of such powers
MUNICIPAL CORPORATION - LIMIT OF DUTY AS TO by boards of health have been sustained. Metropolitan
HIGHWAYS-EVIDENCE-COMMUNICATIONS OF PATIENT Bd. of Health v. Heister, 37 N. Y. 662; Poliusky v.
TO PHYSICIAN. — (1) The limit of duty on the part of People, 73 id. 65. (2) An objection was raised to the
a towu, with regard to the condition of its highways, ordinance that it punished the prohibited acts “with
falls far short of making them absolutely safe under out pretense or any form of proof that they were in
all circumstances, even for those who use them propjurious to the well being of the town, or that prudence
erly. And where the use is one that reasonable care required its passage.” Held, not tenable. Neither in
and prudence could never have anticipated, there is no the ordinance itself, nor in the indictment under it, is
duty on the town at all in reference to it. And it it necessary to explain the reasons for its enactment.
makes no difference that the injury in such a case is It is of the nature of legislative bodies to judge for themselves, and the fact and the exercise of that judg
* To appear in 47 Connecticut Reports.
the result of defects in a highway for which a town it may be regarded as evidence of malice in the origiwould be responsible in case of injury to individuals nal speaking of the words, and may thus tend indiin the lawful and proper use of it. In Gregory v. rectly to increase the damages, but it is not of itself a Adams, 44 Gray, 242, it is said: “This is the measure cause for which damages may be directly assessed. and extent of tho obligation of towns in reference to Williams v. Miner, 18 Conn. 472; Swift v. Dickerman, the support and maintenance of public highways. 31 id. 289. 'Ward v. Dick. Opinion by Granger, J. They are not required to make preparations for the safety or convenience of those who undertake to use | CALIFORNIA SUPREME COURT ABSTRACT. those ways in an unusual or extraordinary manner, involving peculiar and special peril and danger,
COMMON CARRIER - LIEN FOR FREIGHT ON GOODS whether it be in respect to the kind or character of
SHIPPED BY CONSIGNEE OF OWNER - WHEN LIEN ATanimals led or driven, or the magnitude or construc
TACHES. — A firm which was engaged in buying and tion of carriages used, or the bulk or weight of prop
selling wheat and in chartering vessels to transport the erty transported. And if any person undertakes to
same to Europe, to be there sold by the master for tho use or travel upon a public highway in an unusual or
benefit of the firm, and who also acted as agents for extraordinary manner, or with animals, vehicles or
farmers for shipping wheat, which was knowu to defreight not suitable or adapted to a way opened and
fendant, chartered defendant's ship to take wheat to prepared for the public use in tho common intercourse
Europe. The ship proceeded to the port of V. and of society and in the transaction of usual and ordi
took on board wheat belonging to plaintiff, which had nary affairs of business, he then takes every possible
been consigued by him to the firm at that place. The risk of loss and damage upon himself; and he can have
wheat was shipped in the name of the firm and deno remedy against the town to recover recompense for
fendant received it not knowing that it belonged to injuries sustained, although they be the direct result
any one else. Afterward the firm became insolvent of defects and imperfections in a way for which it
and broke the charter party by not completing the would be responsible in case of injury to individuals
loading of the ship. Held, that defendant had a lien in the lawful and proper use of it." See, also, Blodgett
on the wheat for his freight and that plaintiff could v. City of Boston, 8 Allen, 237, and cases there refer
not retake the wheat from defendant upon payment red to. (2) The plaintiff, who was riding upon a load
of tho expense of loading and unloading the same. which broke through a town bridge, had received a
The firm bad authority, when plaintiff put his wheat personal injury when it broke through. In an action
in its hands, to ship it in their own names, and plaintagainst the town for such injury, held, that his state
iff was chargeable with knowledge that he had placed ments to a physician who attended upon him for the
his property in the hands of his agents for the very purpose of giving him treatment, with regard to the
purpose of enabling them to make such contracts as character and seat of his sufferings, were admissible.
might bo necessary and proper for transmitting it to Barber v. Merriam, 11 Allen, 322; Howo v. Plainfield,
Europe for sale on his account. He knew that in exe41 N. H. 135; Perkins v. Ooncord R. R. Co., 44 id. 223;
cution of tho agency they had to make contracts to Kent v. Town of Lincoln, 3: Vt. 591; Caldwell v. Mur
which the law would attach a lien upon the property. phy, 1 Kern. 416; Denton v. Tho State, 1 Swan, 279.
When, therefore, the factors shipped the wheat in Wilson v. Tour of Granbij. Opinion by Loomis, J.
their own names, they were the only persons to whom NEGLIGENCE - OBSTRUCTING NATURAL STREAM — tho defendant could look, and with whom he dealt in ARTIFICIAL INCREASE IN VOLUME OF STREAM BY ACT receiving it. In tho absenco of knowledge that it beOF ANOTHER. — The defeudant had constructed a cor longed to the plaintiff, they, as shippers, were to him, ered channel for a small brook that ran through his in contemplation of law, tho owners. From them and premises in the city of N. This channel proved in- for them ho received it as a common carrier for car. sufficient for the flow of all the water that came down riage; and the legal rights and duties of both parties tho brook in times of heary raili, and by its obstruc became fixed by law the moment tho wheat was placed tion caused tho water to overflow upon and injure the on board the ship. Ilaving received it for the purpose adjoining premises of tho plaintiff. The city, since of carriage, the defendant became bound to the shipthe defendant's channel was made, had constructed pers for the safe transportation and delivery of the several sewers and drains which emptied into the wheat at the port of destination, and he was entitled brook above his premises, by which a considerable to a lien on it for payment of his freight and charges quantity of sewage, and of surface water that it was on the completion of the voyage. Bulkely v. Naumclaimed would havo gone in other directions, was let keag Steam Cotton Co., 24 How. 391. This lien was into the brook. In a suit for the damage to the plainte created the moment the goods wero shipped and deiff's property it was held, (1) that tho defendant was fendant might retain the wheat until bis freight was not liable for any damage beyond that caused by the paid. Bird of Paradise, 5 Wall. 555; McCardier v. natural flow of the water, including its increased flow Chesapeake Ius. Co., 8 Cr. 39; Certain Logs, 2 Sumn. from heavy rains and other ordinary patural causes; 596. Although the insolvency of tho firm, before the (2) that it was no reason for holding the defendant ship was laden but after the wheat was placed on liable for more than this that tho proportion of the board, may havo ended the transaction between them damage done by the overflow of the natural water of | and the plaintiff as to the shipment and sale of the the brook was difficult of ascertainment; (3) that the wheat, and dispersed with its carriage, yet the plaintiff defendant and the city could not be regarded as joint was not entitled to the possession until he extintort-feasors. Sellick v. Ilall. Opinion by Granger, J. guished, or offered to extinguish, the lien which had SLANDER-DAMAGES — SUBSEQUENT REPETITION OF
attached to it. The defendant was not bound to reland SLANDEROUS WORDS — EVIDENCE OF MALICE. - In an
it and deliver it to the plaintiff at the port of outfit action of slander the plaintiff can recover damages
without tender or payment of the freight, or such only for the slanderous words charged in the declara
| other charges as were liens upon it. Story on Bailm., tion. Where the same slander has been sinco re
| $ 585; Campbell v. Connor, 70 N. Y. 424; Hutch. on peated, evidence of the repetition is admissible for the
Car., § 476, note; Abbott on Shipp. 595. Hayes v. purpose of showing malice in the original speaking,
Campbell. Opinion by McKee, J. but not as a ground in itself for additional damages.
[Decided Aug. 26, 1880.] Whero a defendant maliciously and for the purpose of NOTICE— RECORDING ACTS - HUSBAND AND WIFE-spreading and perpetuating the slander, pleads the PURCHASE BY DEBTOR OF SURETY'S LAND UNDER truth of the words in justification and fails to prove it, | MORTGAGE SALE. - A wife owned separate real estate and mortgaged the samo to L. to secure a debt owed of life unlawfully, no such criminal liability will attach by her husband to him. L. foreclosed the mortgage merely from being a party to such an agreement. 1 and at the sale the land was purchased by B. for the Bish. Crim. L. (6th ed.) $ 641; Hawkins' P. C., book husband, with his money. Thereafter B. conveyed 2, chap. 29, SS 19, 20, 21; Foster, 369, 370; Regina v. the same to the husband, who afterward, in considera. Franz, 2 F. & F. 580; Regina v. Horsey, 3 id. 278; tion of an old debt, conveyed the same to defendant. Regina v. Luck, id. 443; Roscoe's Crim. Ev. 655, 673; • The deed giving the wife title, the mortgage, and all | Regina v. Tyler, 8 C. & P. 616; Regina v. Lee et al., the subsequent conveyances, were on record. Held, F. & F. 63; Regina v. Turner et al., 4 id. 339; Rex v. that the husband, in taking title under the foreclosure Hawkins, 3 C. & P. 392; Watts v. The State, 5 W. Va. sale, took in trust for his wife, and that defendant 532; Rex v. IIowell, 9 C. & P. 437. Illinois Sup. Ct., took title subject to such trust. The wife in mort Sept. 22, 1880. Lamb v. People of Illinois. Opinion by gaging her separate property to secure the payment of Mulkey, J. her husband's debt to L., became, as between herself LARCENY – TO BE PRINCIPAL MUST BE CONCERNED and husband, a surety only. Spear v. Ward, 20 Cal.
IN ORIGINAL TAKING.- A person cannot be a principal 674; Loomis v. Wheelwright, 3 Sandt. Ch. 155; Bank
in a theft unless he is concerned in the original taking. of Albion v. Burns 46 N. Y. 70: 1 Bish. on Mar.
It is often said that theft is a continuous offense, but Wom. 604. The husband, in purchasing through B. at cases wherein this doctrine is announced, upon exthe foreclosure sale, was but paying his own debt; and amination, are generally found to be those in which a he took and thereafter heid the title to the prop
theft is perpetrated in one county, State or country, erty in trust for plaintiff. Fitch v. Cotheal, 2 Sandf.
and the stolen property is then carried by him into anCh. 29. In 1 Story's Eg. Jur., $ 403, it is said: “In
other. In accordance with established principles at America it is uniformly held that the registration of a
common law, which the statutes of all our States have conveyance operates as constructive notice to all
embodied, it is universally held that the thief may be subsequent purchasers of any estate, legal or equitable,
prosecuted either in the locality of the original capin the same property. To the same effect are the
tion or in that to which the property has been carried, statutory provisions. Tho record was at least suffi.
upon the principle that the legal possession of the true cient to put defendant upon inquiry; and he was
owner continues, notwithstanding tho larceny, during bound, at bis peril, to inform himself as to the facts.
each moment of the fraudulent possession of the thief, Ramsdell v. Fuller, 28 Cal. 37: Neison v. Allen, 1 Yerg.
and tho offense is continuous so long as the property is 366; Bank of Albion v. Burns, 46 N. Y. 170. Hassey
in course of transportation or in the actual possession v. Wilke. Opinion by Ross, J.
of tho thief. It does not follow, inevitably, that any [Decided Aug. 18, 1880.]
person who joins in the enterprise, after tbo original
caption is perfected, is necessarily a principal in such CRIMINAL LAW.
original caption. The better doctrine seems to be, that in order to bring the latter within the category of &
principal he must have been concerned in the original CONSPIRACY - TO MAKE LIABLE, PARTY MUST CON
theft. Commonwealth v. DeWitt, 10 Mass. 153. He SENT TO CRIMINAL ACT — NO IMPLIED ASSENT - UN
need not be actually present at the taking, if the act LAWFUL ACT NOT OF DANGEROUS CHARACTER.-- It may
was committed in pursuance of a commou intent and be stated, as a general propositiou, that no one can be
a previously-formed design, in which his mind united properly convicted of a crime to the commission of
and concurred with that of the actual taker. Welsh which he has never expressly or impliedly given his
v. Stato, 3 Tex. Ct. App. 413; Scales v. State, 7 id. 361. assent. Where the accused was present and coinmit
Texas Ct. of Appeals, June 16, 1880. Cohea v. State of ted the crime with his own hands, or aided and abetted
Texas. Opinion by Clark, J. another in its commission, he will be conceded as haying expressly assented thereto. So, where he has en PERJURY - EVIDENCE - TESTIMONY OF TWO WITtered into a conspiracy with others to commit a felony, NESSES NECESSARY TO CONVICT.- It is a general rule or other offense, under such circumstances as will: that the testimony of a single witness to the falsity of wbeu tested by experience, probably result in the un the matter on which the perjury is assigued is insuffilawful taking of human life, he will be presumed to cieut to convict on a charge of perjury. Two witnesses have understood the consequences which might rea- are not essentially requisite, for if any material circumsonably have been expected to follow from carrying stance be proved by other witnesses in confirmation of into effect the purpose of the unlawful combination, the witness who gives the direct testimony of perjury, and also to have assented to the doing of whatever it may turn the scale, and warrant a conviction. would reasonably or probably be necessary to accom “When there are several assignments of perjury, it plish the objects of the conspiracy, even to the taking does not seem clearly settled whether, in addition to of life. But further than this the law does not go. If the testimony of a single witness, thero must be corthe accused in such case has not expressly assented to roborative proof with respect to each, but the better the commission of the crime which happened to be the opinion is that such proof is necessary, and that, too, result of attempting to carry into effect the purpose of although all the perjuries were committed at one time tho conspiracy, and the unlawful enterprise was not of and place." 1 Greenl. Ev., 8 257 a. Thus A, in an affidasuch character as would probably involve the necessity vit, stated that he had paid all the debts proved auder of taking life in carrying it into execution, then there his bankruptcy except two. On an indictment for percan be no implied assent, and consequently no criminal jury on this aridavit, one of the assiguments was that liability for the unexpected result. If the unlawful act A had not paid all the debts proveu except two, and agreed to be done is dangerous or bomicidal in its charac another that certain other creditors were not paid in ter, or if its accomplishment will necessarily or probably full. In support of the indictment several creditors require the use of force and violence which may result were called, who each proved the non-payment of his in the taking of life unlawfully, every party to such own debt. Held, that this was not sufficient to war. agreement will be held criminally liable for whatever rant conviction, and that as to the non-payment of any of his co-conspirators may do in furtherance of the each debt, it was necessary to have the testimony of common design, whether he is present or not. But two witnesses, or of one witness and some circumstance where the unlawful act agreed to be done is not of a to supply the place of a second witness. Regina v. dangerous or homicidal character, and its accomplish- | Parker, 1 C. & M. 639; 41 E. C. & E. R. 346. See 2 ment does not necessarily or probably require the use Russ, on Cr. 654. The weight of authority and the of forco and violence which may result in the taking general rule require that where an indictment contains
sereral assignments of perjury, in order to convict on referred to: Harris v. Wall, 1 Ex. 122; Rowe v. Hopany one there must be either two witnesses or ono wit- wood, L. R., 4 Q. B. 1; DeThoren v. Att'y-Gen., 1 ness and corroborative evidence to negative the truth | App. Cas. 686. Com. Pleas Div., Juuo 23, 1880. Ditcham of the matter in such assignment. Pennsylvania Sup. / v. Worrall, L. R., 5 C. P. D. 410. Ct., Jan., 1880. Williams v. Commonwealth of Penn
INJUNCTION - PUBLICATION INJURIOUS TO TRADE.sylvania. Opinion by Trunkey, J.
It is not necessary to provo actual damage in an action
to restrain the issue of a circular which is calculated RECENT ENGLISH DECISIONS.
to do serious injury to the plaintiff's business. Ch.
Div., May 7, 1880. Thomas v. Williams. Opinion by CONTRACT - REPRESENTATIONS INFLUENCING CON
Fry, J., 43 L. T. Rep. (N. S.) 91.
| SALE-OF PERSONAL PROPERTY-CONDITIONAL SALE resentation, which influences the conduct of a person | OF A HORSE DELIVERED - DEATH OF HORSE BEFORE to whom it is made, is not legally enforceable against | SALE BECAME ABSOLUTE.--A horso the person who makes it unless it operates either as a
plaintiff to the defendant upon condition that it should contract or as an estoppel. The plaintiff, as heir-at be taken away by the defendant and tried by him for law of an intestate, claimed the title deeds of the in eight days, and returned at tho end of eight day's if testate's farm, of which the defendant had taken | the defendant did not think it suitable for his purposes.. possession on his death. The defendaut counter-claimed
The horse died on the third day after it was placed in a declaration that she was entitled to a life estate in
the defendant's stable, without fault of either party. the farm, and to retain the title deeds for her life. Held, that the plaintiff could not maintain an action The jury found that the defendant was induced to for the price, as for goods sold and delivered. Com. serve the intestate as his housekeeper without wages
Pl. Div., March 13, 1880. Elphick v. Barnes. Opinion gears, and to give up other prospects of | by Denman, J. L. R., 5 C. P. D. 321. establishment in life, by his promise to make a will leaving her a life estate in his farm, if, and when, it
CORRESPONDENCE. became his property. Held, first, that the finding,
Is It A Joke? taken with the facts, amounted to a finding that there
Editor of the Albany Law Journal was a contract to the abovo effect between the intestato
Mr. William Eggleston, in the Preface of his work and the defendant, and that such a contract being based on a good consideration (whether it could or
on Damages, just published, says: “In submitting
this work to the profession, I feel great anxiety as to could not have been enforced by the intestate) was
its reception by the public.” And well he may, for of binding on him and his estate; and secondly, that
| all the outrages ever perpetrated upon the patient law. since the contract had been completely performed on
book-buying public, this is the acme in what is known the defendaut's part, section 4 of the statute of frauds
as padding. During the recent presidential compaign did not apply; and that the defendant was entitled to
there appeared a peat little publication comprising the declaratior asked in the counter-claim. Cases
somo 37 sheets of puro white paper, entitled, “Life referred to: Packard v. Sears, 6 A. & E. 469; Ham
and Public Services of Winfield Scott Hancock. Every mersley v. De Biel, 12 Cl. & Fiu. 45; Loffus v. Mayo, 3 Giff. 592; Luders v. Anstey, 4 Ves. 501; Prole v. Soady,
lawyer who received a copy of said book was highly 2 Giff. 1; Coles v. Pilkington, L. R., 19 Eq. 574; Cover
amused, and pronounced it a huge joke. Little did
the publishers of that unique book dream, however, dale v. Eastwood, L. R., 15 Eq. 21; Jorden v. Money,
that they wero establishing a precedent to be handed 5 H. L. C. 185; Maunsell v. Hedges, 4 H. L. C. 1039;
down and slavishly followed by future generations, and Caton v. Caton, L. R., 2 H. L. 127; Dashwood v.
I seriously question, Mr. Editor, whether there will be Jermyn, 12 Ch. D. 776. Exch. Div., June 2, 1880.
found among the bench and bar of this State, a single Alderson v. Maddison. Opinion by Stepheu, J. L. R., |
legal-bibliomaniac willing to vote the 58 pages of plain 5 Ex. D. 293.
white paper, found in Mr. Eggleston's work, any thing INFANT – PROMISE TO MARRY — RATIFICATION OR save an uumitigated outrage upon the legal profession. FRESU PROMISE.-Iu July, 1875, the plaintiff and de
Yours, etc., fendant (both being then under the age of twenty-one)
WILLIAM J. C. BERRY, mutually agreed to marry one another. The engage
Librarian N. Y. Bar Association. ment continued without any definite understanding as to when the marriage was to take place, until March,
FORM OF BALLOTS. 1879, when (both having attained the age of twenty Editor of the Albany Law Journal : one) the defendant asked the plaintiff, in the presence I note what you say in last JOURNAL about the electof her father, to fix the wedding-day. She fixed it for oral ballot. It would be well for some level-headed the 5th of June, to which the defendant assented, but legislator to revise the whole legislation about ballots, ultimately he broke his promise. In an action for this for it is now muddled. The Revised Statutes (1 R. S. breach of promise, in which it was agreed that the [5th ed.] 427, $ 9), required ballots to be "endorsed." damages should be assessed, subject to the opinion of | The amendment, Laws 1880, chapter 553, section 1, rethe court as to whether or not that which took place quires them to be “indorsed.” 1 Revised Statutes in March, 1879, was evidence from which the jury (5th ed.), 429, S 15, requires ballots for electors to be might and ought to infer a fresh promise to marry after “indorsed. Chapter 366 of 1880, section 2, says: tbe defendant had attained twenty-one, within section “ Every ballot shall have a caption (as provided by 2 of the Infauts' Relief Act, 1874 (37 and 38 Vict., ch.62), law).” This implies that some previous law required or a mere ratification of the original void promise. a "caption." What law? That is a conundrum, which Held, by Denman and Lindley, JJ., that what took the draughtsman of that act should answer. No one place in March, 1879, when the wedding-day was fixed, I else can! I believe the above refers to all the legislawas a fresh promise made after the defendant came of tion about the form of ballots, except chapter 513, age, and upon a good consideration. By Lord Cole Laws of 1855, relating to the city of New York, which ridge, C. J., that it was a mere ratification of the provides that the ballot for electors shall be “tho samo original promise made by the defendant during his as now prescribed by law," and when folded shall be minority, and not a binding promise within the statute. | indorsed or show on the outside tho words "presiCoxhead v. Mullis, 3 C. P. D. 433, and Northcott v. dent," etc., and the same words “when folded, shall Doughty, 4 C. P. D. 435, commented upon. Cases | be indorsed or show on the outside," otc., are used