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stone necessary, C. drew an order on defendant requesting him to pay plaintiff or order $650 when the brown stone work was "topped out," $400 when the stoops of the houses were set, and $375 when the work was completed. This order was accepted by defendant, and thereupon plaintiff furnished stone to C., some or all of which was used in the performance of the contract; he so far performed that the first installment became due and was paid to plaintiff by defendant. C. failed to perform the residue of contract, and it was cancelled by him and defendant, the latter finishing the work at his own expense. In an action to recover the other two installments, held, that plaintiff was not entitled to recover, that the order was not a bill of exchange, because it was not absolutely payable. Cook v. Satterlee, 6 Cow. 108; Seacord v. Burling, 5 Denio, 444; Van Wagner v. Terrett, 27 Barb. 181; Prindle v. Caruthers, 15 N. Y. 426. It was payable only upon condition that the work should be done as specified, and might never become payable. It cannot therefore have the force or effect of a bill of exchange. It does not purport upon its face to be founded upon any consideration, and none can be presumed. Hence it was necessary for the plaintiff to prove the consideration upon which it was given, and that brought into the case all the circumstances under which it was given. It could operate only as an assignment to the plaintiff of what should become due to C. from the defendant, or as a contract on the part of the defendant to pay the plaintiff the sums mentioned in the order upon the terms specified. As to the two sums last mentioned in the order, it never operated as an assignment, because C. never earned them, and they never became due. As a contract it never made the defendant liable to pay the two sums, because it is clear that he was not to be liable to pay those sums until C. did the work, and then he was to pay the two sums which would otherwise be payable to C. to the plaintiff. The defendant limited the conditions upon which he would make payments, and those conditions were never performed. Duffield v. Johnston. Opinion by Earl, J. [Decided June 24, 1884.]


DENCE DISCLOSES.-When a broker purchases property without disclosing the name of the principal for whom he acts, he becomes liable personally for the purchase-price, and is entitled to collect such price from the principal, and the latter can relieve himself from such liability only by showing payment to the vendor, or a release for a good and valid consideration from the broker. Cobb v. Knapp, 71 N. Y. 348; Seymour v. Minturn, 17 Johns. 170. As affecting such liability, it is immaterial whether the broker disclosed to the vendor the fact that he was acting as agent for some principal or made the purchase ostensibly as principal. The statute of limitations begins to run against a claim by the broker from the time of the purchase, the same as if he had himself been the vendor. Considerant v. Brisbane, 22 N. Y. 389. In the absence of objections to the sufficiency of the complaint it is the duty of the trial court to give the plaintiff the benefit of any cause of action established by the evidence, and upon appeal this court will consider the cause of action disclosed by the evidence, without regard to any objections to the sufficiency of the pleadings, which were not made in the court below. Southwick v. First Nat. Bank, 84 N. Y. 420; Cowing v. Altman, 79 id. 167; McGoldrick v. Willits, 52 N. Y. 612. Knapp v. Simon. Opinion by Ruger, C. J.

[Decided June 10, 1884.1


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LIBEL DOCTOR AND CORONER. -The plaintiff, describing himself in his complaint as both physician and coroner, alleged that defendant printed and published in its newspaper the following article: "A Narrow Escape from being Buried Alive. A well-to-do farmer found stiff and cold by the road side. He is supposed to have been frozen to death. A coroner takes charge of the case and impanels a jury. The inquest interrupted by a physician who declares the man to be alive. Animation restored." It appears from the complaint and evidence that the plaintiff was by profession a physician and by office a coroner. In the article complained of he is referred to in the latter capacity only, and nowhere can be found a word or suggestion from which the most astute inquirer could infer that he had any other than that public occupation. As the language used did not relate to his profession in any way, so as to his office of coroner, it exhibits on his part a prompt and efficient performance of its duties, and it is impossible to see how any person reading it could ascribe to the words used a defamatory meaning, or without the innuendo, apply them to the plaintiff in his professional capacity, and there is no evidence that such application was intended. The case of Sanderson v. Caldwell, 45 N. Y. 398, is cited by the respondent, but it is not any authority against this view. There the plaintiff was not only in fact a lawyer engaged in the practice of his profession, but the libel spoke of him as collecting claims of soldiers and sailors against the government-a professional actand it was thought to be a just inference that the injurious words used by the defendant related to him in that character. Here it is quite otherwise. There is nothing to show that the words were so spoken of the plaintiff. They do not charge him with doing any act whatever as a physician, nor were they spoken of him in his business as such. In Oakley v. Farrington, 1 Johns. Cas. 130, the plaintiff was a justice of the peace, and sued the defendant because the latter called him a "damned rogue." In Van Tassel v. Capron, 1 Den. 250, the plaintiff was a magistrate also, and sued because the defendant had charged him as one who had combined with others to cheat strangers. In the first the plaintiff was nonsuited, and in the last a demurrer to the complaint was sustained for the reason that the words did not touch the plaintiff in his office. So in the case before us. The plaintiff was not spoken of as a physician; he was not described as acting as such on the occasion in question, and if we assume with the plaintiff's counsel-as I cannot in fact concede-that the language of the defendant could in any connection be deemed actionable, it is not so here. Purdy v. Rochester Printing Co. Opinion by Danforth, J. [Decided June 24, 1884.]


PATENT-EARLIER PUBLICATION.-A patent is not invalidated by statements in an earlier publication, unless those statements are full and definite enough to inform those skilled in the art how to put in practice the invention now patented. Betts v. Menzies, 10 H. L. Cas. 117; Neilson v. Betts, L. R., 5 H. L. 1; Seymour v. Osborne, 11 Wall. 516, 555; Cawood Patent, 94 U. S. 695, 703, 704; United Nickel Co. v. Anthes, Holmes, 155; Same v. Manhattan Brass Co., 16 Blatch. 68. Cir. Ct., D. Mass., July 25, 1884. Hocd v. Boston Car Spring Co. Opinion by Gray, J.

*Appearing in 21 Federal Reporter.



CARRIER CONNECTING-LOSS BY GENCE.-(1) Several connecting carriers, having entered into certain contract arrangements for continuous transportation on through bills of lading, at settled rates of compensation, providing that each line should be responsible alone for its acts or omissions, do not thereby become liable as partners for the undertakings, representations, or misconduct of the carrier who receives merchandise from a shipper. It was the point directly involved and decided in Insurance Co. v. Railroad Co., 104 U. S. 146. The defendant's obligations were therefore those of an intermediate carrier, arising out of the implied contract springing | from receipt of the goods. These bound it for safe carriage over its own line, and for delivery or tender to the next carrier beyond, within reasonable time. Insurance Co. v. Railroad Co., supra; Empire Co. v. Wallace, 18 P. F. S. 302; Myrick v. R. Co.. 107 U. S. 102; S. C., 1 Sup. Ct. R. 425; Railroad Co. v. Manfg. Co., 16 Wall. 318; Am. & Eng. R. Cas. 271. It must not be overlooked that the question here is not (as in Railroad Co. v. Manfg. Co., 16 Wall. 318) whether the defendant remained liable under his obligations as carrier to the date of loss, but whether he was guilty of willful fault, and consequently forfeited the exemptions in the bill of lading, and thus became responsible for the consequences of the fire. That he was not guilty of such fault seems reasonably clear. (2) Where cotton was delivered to a carrier to be transported from Memphis, Tennessee, to Woonsocket, Rhode Island, upon through bills of lading, exempting liability for fire, issued by the receiving carrier in pursuance of such arrangement between the connecting carriers, and the cotton was delayed at Norfolk by reason of a block caused by accumulation of freight on the line intended to convey it therefrom, and was stored in the defendant's warehouses, where it was burned, held, that the company so storing the cotton was not bound to send the cotton forward' by other lines, and was not liable for the loss. The fact that the company had effected an insurance on the cotton is unimportant. Cir. Ct., E. D. Penn., June, 1884. Deming v. Norfolk. Opinion by Butler, J.


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States courts for this State in accordance with the opinion in Martin v. Hausman, supra, and until there be some authoritative construction of the statute by the Supreme Court of the United States, or of the State, I shall follow the rule laid down as above. (2) Federal courts have authority to take possession of property so assigned, and dispose of it in accordance with the provisions of the State statute; and where a form of procedure is prescribed by the State statute, which may be pursued by the State courts of general jurisdiction, it may also be pursued in the correspond. ing Federal courts. Strong v. Goldman, 8 Biss. 552; 2 Story Eq. Jur., § 1057; Lackland v. Garesche, 56 Mo. 267. (3) It is insisted that the plaintiffs, being only general creditors, and not having as yet reduced their claims to judgment, have no standing in a court of equity to enforce such claims as against these transfers. The opinion in the case of Dahlman v. Jacobs, supra, sustains this view, but the decision there was subsequently set aside in the same case. 16 Fed. Rep. 614. True, in this latter opinion nothing is said as to the specific ground upon which the former was based, so that opinion was not expressly overruled; but in view of the decision of the Supreme Court of the United States in Case v. Beauregard, 101 U. S. 688, I am constrained to rule against the defendants on this proposition. In that case it was decided that "whenever a creditor has a trust in his favor, or a lien upon property for the debt due him, he may go into equity without exhausting his remedy at law." The first clause of this decision covers this case. The plaintiffs seek to charge the defendants, holding certain property as trustees for them and other creditors. The gravamen of the suit is the enforcement of a trust. Strike that out and nothing is left. And in accordance with that decision, it must be held that a general creditor may, without reducing his claim to judgment, proceed in equity to charge one holding the property of his debtor received under such an assignment or transfer as a trustee for the benefit of creditors. Ins. Co. v. Transp. Co., 10 Fed. Rep. 596; Same v. Same, 13 id. 516; Batchelder v. Altheimer, 10 Mo. App. 181; Holt v. Bancroft, 30 Ala. 193; 1 Story Eq. Jur., §§ 546, 547. Cir. Ct., E. D. Mo., July 25, 1884. Clapp v. Dittman. Opinion by Brewer, J.

SHIP AND SHIPPING CHARTER-PARTY -BILL OF LADING--EMBEZZLEMENT BY MASTER-FRUIT CARGOGOLD COIN-USAGE OF TRADE.-A vessel was specially chartered for a lump sum to make a voyage from Baltimore to the Bahama islands, the charterers to furnish "ballast out and a cargo of fruit back." A sum in gold coin was given by charterers to the master, for which he gave a bill of lading, "freight as per

CLAIM TO JUDGMENT.—(1) Where a debtor who is insolvent transfers all his property to a single party, and under such circumstances that it is obvious that there was no intention of merely giving security, and with the idea of paying the debt and reclaiming the property, such transfer, no matter by what form of instrument, whether that of a chattel mortgage or otherwise, and whether made to the creditor directly or to a trustee, must be treated as a general assign-charter-party." On the voyage out the master left ment, and for the benefit of all creditors. This question was fully considered by this court in the case of Martin v. Hausman, 14 Fed. Rep. 160, and after a full examination of the statutes of Missouri and the decisions of its Supreme Court, it was answered in the affirmative. The opinion in that case was written by Judge Krekel, and was concurred in by my predecessor, Judge McCrary. That opinion was followed in Dahlman v. Jacobs, 15 Fed. Rep. 863, in Kellogg v. Richardson, an unreported case in the Western District, and also, I am informed, in other cases in this court, as well as in some of the District Courts of the State.

While if this was a new question, I confess my own conclusions would be different, and in harmony with the decisions of National Bank v. Sprague, 20 N. J. Eq. 28; Farwell v. Howard, 26 Iowa, 381; Doremus v. O'Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, id. 241; and other cases cited by counsel for defendants; yet I think there has been such a course of decision in this Circuit as to establish the rule in the United

the ship, having embezzled the money. Held, that under the charter-party the owners did not contract for the safe carriage of gold coin, and that the bill of lading was given without authority. Held further, that the alleged usage in the fruit trade with the Bahamas to send out in the vessel gold coin with which to purchase the return cargo was not proved to be such a usage as would bind a specially chartered vessel as carrier of the gold, and that in this case the master received the gold as bailee of the charterers. Dist. Ct., D. Maryland, July 5, 1884. Hart v. Leach. Opinion by Morris, J.

TAXATION-SHARES OF NATIONAL BANK-ACT OF 1883, CH. 345-VALIDATING LEGISLATION. (1) The Legislature of a State cannot validate a tax which is prohibited by the laws of the United States; but it is competent for it to sanction retroactively such pro ceedings in the assessment of a tax as they could have legitimately sanctioned in advance. (2) In the act of 1881, ch. 271, Laws of New York, the fatal vice was the

denial of an opportunity to those assessed to be heard and permitted to obtain the deductions and corrections allowed by the general system of assessments. Albany City Nat. Bank v. Maher, 9 Fed. Rep. 884. (3) The general rule has often been declared that the Legislature may validate retrospectively any proceedings which they may have authorized in advance; and it is immaterial that such legislation may operate to divest an individual of a right of action existing in his favor, or subject him to a liability which did not exist originally. In a large class of cases this is the paramount object of such legislation. (4) If it was within the power of the Legislature to provide for the collection of a tax by a system which requires the tax-payers to pay in advance of an opportunity to be heard, but permits them to have a subsequent hearing and to obtain restitution, if restitution ought to be made, the validating act was constitutional. Undoubtedly it is beyond the power of the Legislature to validate the acts of taxing officers of a character which cannot be justified as an exercise of the taxing power; as where a part of the property in a taxing district should be assessed at one rate and a part at another, or if persons or property should be assessed for taxation in a district which did not include them. And it is stated in general terms, by a text writer of high authority, that a validating act cannot cure the illegality of an assessment made without any notice to the persons interested. Cooley Taxn. 227, 228. The case of Marsh v. Chesnut, 14 Ill. 223, and Billings v. Detten, 15 id. 218, are referred to as sustaining the proposition. These were cases where the curative act was held bad for the same reason that the curative act of 1881 was held to be nugatory by this court, because it did not provide for an assessment upon notice to the taxpayer, and thus perpetuated the vice of the original assessment. The present act, as has been said, is framed to obviate this objection. No adjudged case .has been cited by counsel or has met the attention of the court where such an act has been considered. It is asserted in many cases that notice and an opportunity for hearing of some description are matters of constitutional right; but it has nowhere been declared that it is indispensable that the hearing should be one in advance of the collection of the tax. The operation of the present act is to preserve substantially to the tax-payers the right of which they were originally deprived, to give them an opportunity to question the justice of the assessment, and to restore to them the sums which were illegally collected of them. In view of the large and almost unlimited discretion which resides in the Legislature to regulate the mode and conditions of taxation, it is believed to be valid and effectual to legalize the proceedings here. (5) In judicial proceedings due process of law requires a hearing before condemnation, and judgment before dispossession; but when property is appropriated to or under the power of taxation, different considerations from those which prevail between individuals obtain. It is not indispensable that a hearing be secured before assessment or before collection of the tax; but it is sufficient if reasonable provision is made for a hearing afterward, a correction of errors, or a restitution of the tax or part of a tax unjustly imposed. Cir. Ct., 8. D. New York, July 23, 1884. Williams v. Board of Supervisors of Albany County. Opinion by Wallace, J.

REMOVAL OF CAUSE-ACT OF 1875-CITIZENSHIPCONTROVERSY.-Where all the parties on the one side are residents of different States from any of the parties on the other side, a suit containing but a single controversy may be removed by either one of the plaintiffs or defendants, under the second clause of section 2 of the act of 1875; or by all the plaintiffs or

by all the defendants jointly under the first clause. (2) The natural import of the language of one part of a statute should not be narrowed by construction though it overlap in part the provisions of another part of the same statute, where both will still have a distinct and exclusive purpose to subserve. (3) Only the first clause of the above section embraces cases of a single plaintiff and defendant; only the second clause embraces cases in which removable and non-removable controversies are joined in the same suit; both clauses cover cases having several plaintiffs or defendants, and only a single controversy, and that a removable one. If the point raised by this motion has not been expressly decided, it has been at least suggested by the Supreme Court, without deciding the question, and without any adverse intimation, that a single controversy might possibly be removable under the second clause as well as under the first. Removal Cases, 100 U. S. 470. The decisions upon the second clause are not inharmonious with the construction here given, and any different construction would involve anomalies altogether inadmissible. In the leading case of Hyde v. Ruble, 104 U. S. 407, the Supreme Court,in defining when a cause is removable under the second clause, make no mention of the existence of several controversies in the suit as one of its conditions. The court say: "To entitle to removal under this clause, there must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of different States from those on the other." (4) Where a controversy is a removable one under the United States Constitution by reason of the citizenship of the several plaintiffs and defendants in different States, the individual right of either defendant to remove the cause has been recognized by Congress in the second clause of section 2 of the act of 1875; and this clause should therefore be construed as embracing suits having but a single controversy, in furtherance of the apparent general intent of the act of 1875, to provide for the removal of causes between individuals up to the limits of the undoubted intent of the constitution, since the language of the second clause is broad enough to include this, and there is no other clause sufficient for that purpose. It is an unsettled question whether the phrase "controversies * * * between citizens of different States means a controversy which is wholly between citizens of different States, or whether it may include controversies in which some only, but not all of the parties on opposite sides are citizens of different States. The question was elaborately argued, but not decided in the case of the Sewing Machine Companies, 18 Wall. 553. It was again referred to in Blake v. McKim, 103 U. S. 336, 338. In the Removal Cases, 100 U. S. 479, Justices Bradley and Swayne expressed the opinion that it embraces every controversy in which any of the opposing parties are citizens of different States; and entertaining that view they differed from the majority of the court, and held that the word "party," in the first clause, should have a wider construction than the word "plaintiff" or "defendant " under the judiciary act, and should include any one of several plaintiffs or defendants, and not be limited to all jointly. Cir. Ct., S. D. New York, July, 1884. Mutual Life Ins. Co. v. Champlin. Opinion by Brown, J.


COVENANT-PLEADING-MINING SPECIFIC AMOUNT OF ORE-NON-EXISTENCE OF ORE.-In covenant, if non est factum is not pleaded, the plaintiff need offer no

*Appearing in 46 N. J. L. Reports.

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proof of the execution of the instrument. Where a mining lease stipulated for raising annually a specified quantity of ore or to pay a stipulated rent, held, under the provisions of the instrument in question, that the non-existence of the quantity of ore agreed to be taken out was no defense to an action for the rent. This construction is in all respects in harmony with the decided cases; for in all the precedents the distinction is drawn between an agreement to pay a royalty, which is held to be dependent on the existence of the ore out of which it is to arise, and an agreement to pay a fixed sum in lieu of such royalty, in which latter condition of things such rent is held to be collectible irrespectively of the state of the mine. The rule of law upon this subject is accurately stated by Mr. Wharton in his treatise on Contracts. 1 Whart. on Cont., § 298. This author says: "But a specific agreement to pay rent is not vacated by the fact that the property leased turns out, without the fault of the lessor, of far less value than was supposed. This, as is elsewhere seen, is the case with leases of improved land where the improvements have been destroyed by fire, and the same rule is applied to leases of mines when the mine turns out to be unworkable, which if there be a lease covenanting to pay a fixed rent is no defense on the covenant. On the other hand, where the rent is payable in the shape of a royalty on minerals in the soil, no royalty is payable when no minerals are found." The same principle is propounded and illustrated in the following authorities, viz.: Ridgway v. Sneyd, Kay, 627; Phillips v. Jones, 9 Sim. 519; Marquis of Bute v. Thompson, 13 M. & W. 487; Jefferys v. Fairs, L. R., 4 Ch. Div. 448. Wharton v. Stoutenburgh. Opinion by Beasley, C. J.

DAMAGES-EJECTING PASSENGER-INJURY TO FEELINGS. A passenger upon a ferry boat, who has paid his fare and is forcibly and unlawfully ejected by an agent of the company, is entitled by way of damages to a reasonable compensation for the indignity and consequen. injury to his feelings on being thus treated. At the trial the judge charged that if the jury should find that the plaintiff did pay his fare, the damages, under the evidence and pleadings in the cause, should be only compensation for his loss of time for the period that he was detained from his business, and the money he paid, or its equivalent, to go across the river at the Market street (another) ferry, and the injury (if any) to his clothing, and other actual damages (if any), and that it was not a case, under the evidence and pleadings, in which they legally could give what are termed punitive, vindictive, or exemplary damages, and that there was no evidence that the plaintiff was injured in his person. The plaintiff's counsel excepted to this charge, and requested the court to instruct the jury that if they should find that the plaintiff had paid his fare before he was ejected from the boat, he would be entitled to be awarded a fair and reasonable compensation for the indignity and consequent injury to his feelings on being thus treated, but the court refused, and again charged on the subject of damages as above stated. The charge was erroneous; the judge should have charged as requested. The judgment should be reversed. Allen v. Camden and Philadelphia Ferry Co. Opinion by Runyon, Chan.


EVIDENCE-TERMS OF ART-MAY BE EXPLAINEDLATENT AMBIGUITY.-(1) In cases where terms of art or science occur, in mercantile contracts where a peculiar language is used, employed by those only who are conversant in trade and commerce, and all other

instances in which words, besides their general, common meaning, have acquired by custom or otherwise, a well known, peculiar, idiomatic meaning in a par ticular country or a particular society, the sense and meaning of such language or words may be explained by evidence dehors the instrument itself. (2) Where the contract was that S. was to saw lumber for H. "at the price of two dollars per thousand feet to include thirty feet logs," held, that the "per thousand feet" in the written contract is a latent ambiguity not appearing in the face of the instrument and may be explained by oral proof. 1 Greenl. Ev., § 278; Gunn v. Clendenin, 68 Ala. 294; Chambers v. Ringstaff, 69 id. 140. In the case of Drake v. Goree, 22 Ala. 409, Justice Goldthwaite employed the following clear and forci ble language: "The contract may relate to the time required for the making of an article, the process of which is known only to those actually engaged in its manufacture; to a thousand matters of art or skill, where truth is only to be obtained through the med ium of experts; and in cases of this character, is the court blindly to grope its way to conclusions for noother reason than because the construction of a writ ten instrument is involved, or to obtain through testimony that information upon which alone it can decide understandingly? Upon principle as well as authority, we entertain no doubt that in all cases where a written contract, although complete in itself, contains a term which it is impossible for the court to construe without the aid of evidence aliunde, it is proper to resort to evidence for that purpose." Smith v. Aiken. Opinion by Stone, J.

EMINENT DOMAIN-TRESPASS-INJUNCTION - COM. PENSATION-LACHES-A court of equity has jurisdiction to restrain the commission or continuance of trespasses to lands. But when as in the present case, the title is purely legal, and the property not of peculiar value, the court will not intervene unless the remedy at law is inadequate, or there is a necessity for intervention to prevent irreparable injury. M. & W. P. R. Co. v. Walton, 14 Ala. 207; Burnett v. Craig, 30 id. 135; Brooks v. Diaz, 35 id. 599; Nevers v. Myer, 52 id. 198; Boulo v. R. Co., 55 id. 480. "There must be," says Judge Story, "such an injury, as from its nature is not susceptible of being compensated by damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring griev ance, which cannot be prevented otherwise but by an injunction." 2 Story Eq., § 925; see also High on Inj., § 697. There is no authority which authorizes the interference of the court to prevent the mere taking pos session of lands and holding them vi et armis; nor is there any authority which will justify interference be cause of the mere continuance of a tortious possession. The entry and possession however long it may con tinue, forms but one grievance, a single and indivisi ble cause of action, capable of full redress by legal remedies. Ballantine v. Town of Harrison, 37 N. J. Eq. 560; S. C., 45 Am. Rep. 667. The general rule is, that a corporation having the right to take lands in the exercise of the power of eminent domain, if it enters upon them without making just compensation to the owner, a court of equity will intervene for the protec tion of the owner until just compensation is made, if applies seasonably. High on Inj., § 622; Pierce on Railroads, 167-68. But the application must be made seasonably-the right to relief is lost by laches in seeking the protection of the court. High on Iuj., § 643. In Bassett v. Salisbury Manfg. Co., 47 N. H. 439, the court said: "Another principle which is held to govern the discretion of the court in these cases is that the application for injunction must be seasonably made; and therefore if it appears that the owner of the property supposed to be affected by a nuisance

has allowed it to exist for several years, with a knowledge of its existence and without any objection, and especially if he has acquiesced in the claim of another to use and enjoy the subject of complaint as of right, and to expend money upon the strength of it, with his knowledge and without objection, courts of equity will decline to grant an injunction, but leave him to his remedy at law." It was said in Goodin v. Cincinnati R. Co., 18 Ohio St. 169: "Considerations of public policy, as well as recognized principles of justice between parties, require that we should hold that the property of the owner cannot be reclaimed, and that there only remains to him a right of compensation." This is the doctrine of all the courts, and it is rigidly applied even by those courts which interfere most liberally for the protection of the owners of lands against the unlawful entry of railroad and similar corporations. Binney's case, 2 Bland Ch. 99; M. & E. R. Co. v. Prudden, 20 N. J. Eq. 530; Easten v. N. Y. & L. B. R. Co., 26 id. 359; Traphager v. Mayor, 29 id. 206. Western Union Tel. Co. v. Judkins. Opinion by Brickell, C. J.


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-Equity will interfere to rectify a misdescription of certain lands conveyed in a mortgage executed by a married man and his wife, and intended by them to embrace their homestead; the mortgage being executed with all the formalities required by the statute to convey the homestead. Styer v.Robbins,76 Ind.547; Hamar v. Medskar, 60 id.413; Carper v. Munger, 62 id. 481; Houx v. County of Bates, 61 Mo. 391. (2) Equity will not reform a conveyance by a femme covert of her statutory separate estate or homestead when the rectification requires an order at the hands of the court for re-execution, or such reformation operates strictly as the creation of a new conveyance. Knowles v. McCamley, 10 Paige, 342; Purcell v. Goshorn, 17 Ohio, 105; Lead. Cas. Eq. 1002; 3 Pom. Eq. Jur., § 1375. The rule may be conceded to be generally settled, both in England and in this country, that a court of equity will not entervene to decree the specific execution of an agreement made by a married woman during her coverture. Her ouly mode of conveying real estate was by uniting with her husband in the solemn proceeding of record known as fine and recovery. Martin v. Dwelly, 6 Wend. (N. Y.) 9. In a recent case, Jenkins v. Harrison, 66 Ala. 345, decided by this court, where an instrument was held defective and inoperative as a deed for want of delivery, but was deemed good only as a contract to convey by husband and wife, specific performance of it was refused after the death of the husband, against the objection of the surviving wife, as to the homestead of the parties. See also Butts v. Broughton, 72 Ala. 294. The reason upon which the two cases are based is essentially the same-that a married woman has no authority, under the statutes of this State, to enter into an executory agreement to sell either her separate estate under the statute, or the homestead occupied by herself and husband. No attempted conveyance of either is binding on her unless it is executed with due formality and in substantial conformity to the requirements of the statute. Waddell v. Weaver, 42 Ala. 293; Bish. on Marr. Wom., § 601; Cross v. Everts, 28 Tex. 523; Thomp. Homest. & Exemp., § 491. The wife possesses no authority to convey except in the mode prescribed by the statute. Her power to sell and convey is a statutory power, and a court of equity has no jurisdiction to aid the defective execution of such a power by supplying elements of form made prerequisite by statute to its valid execution. McBryde v. Wilkinson, 29 Ala. 662; Tiernan v. Poor, 19 Am. Dec. 225; note, p. 230; Blythe v. Dargin, 68 Ala. 370, supra; Gebb

v. Rose, 40 Md. 387. For these reasons equity will refuse to enforce the specific performance of a married woman's contract to convey real estate, whether made alone or by uniting with her husband, where her power to convey is derived from the statute. Nor will it any more intervene to give effect to an instrument executed by her which is inoperative for want of compliance with a statutory requirement. Pilcher v. Smith, 2 Head (Tenn.), 208; Carr v. Williams, 10 Ohio, 305; Cont. of Mar. Wom. (Kelly) 100-105; Holland v. Moon, 39 Ark. 120. Gardner v. Moore. Opinion by Somerville, J.


DAMAGES - UNINTENTIONAL TRESPASS. - When a trespass is the result of inadvertence or mistake, and there is no intentional wrong, the value of the property when first taken must govern; or if the conversion sued for was after value had been added to it by the work of the defendant, he should in such cases be credited with this addition. Defendant peaceably entered on the premises in controversy under a bona fide claim of title, and cut and removed the grass growing thereon. The title having been subsequently adjudged to be in the plaintiff, held, in an action by him for the conversion of the hay, that the proper measure of his damages was the value of the standing grass, and not the value of the hay after it was removed. In Washburn v. Cutter, 17 Minn. 361 (Gil. 335), the plaintiff was the owner and constructively in the possession of pine lands which were unoccupied, and upon which defendant entered and cut and carried away pine logs and timber, under a claim of title based upon a tax deed which was in fact void. The court held that such entry and removal of the timber did not constitute a disseisin or adverse possession, and that defendant was to be regarded as a trespasser, and plaintiff entitled to follow and recover the logs in replevin. Whether if he had waived his right to reclaim the property itself, and had sued for damages in trover or trespass, he would have been entitled to have recovered the full value of the logs, was not considered. Had that issue been involved in the case, its determination might have been influenced by the character of defendant's claim and the nature of his title, as well as the circumstances of the alleged trespass, as bearing on the good faith of the transaction. Grant v. Smith, 26 Mich. 201; Winchester v. Craig, 33 id. 221. In Nesbitt v. Lumber Co., 21 Minn. 492, logs appeared to have been wrongfully cut and carried away from plaintiff's land without his permission, and without any color or claim of title, and this court held that plaintiff was entitled to recover in trover the full value of the logs which had been driven into the boom and sold to the defendants, who were innocent purchasers. The defendants could not claim to be credited with the additional value which the wrong-doers had imparted to the logs by acts involving a willful trespass upon the rights of plaintiff. Had the value of the logs been enhanced by the expenditure of further labor thereon by defendants in good faith before demand by plaintiff, as to such additional value, a different question would have been presented. The case of Nesbitt v. Lumber Co. is approved and followed by the Supreme Court of the United States in Bolles Wooden Ware Co. v. United States, 106 U. S. 433. The court in that case also declares that the weight of authority, both in this country and in England, is that where a trespass is the result of inadvertence or mistake, and the wrong is not intentional, the value of the property when first taken must govern; or if the conversion sued for was after value had been added to it by the

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