II. In a suit for restitution of conjugal rights, brought by the wife, respondent set up a charge of cruelty, and prayed for a judicial separation. The cruelty alleged was the writing a letter charging the respondent with unnatural practices. The respondent asked that the hearing be before the court itself in private, but the petitioner objected, and applied to have the case tried by a special jury in open court. Held, The Judge Ordinary. Where it is desirable, for the sake of public decency, the court has power to hold the investigation in private. III. The wife of a convict in the prison of Portland Island petitioned for a dissolution of her marriage, for adultery and cruelty, and prayed for the custody of the children. As personal service could not be effected in the usual way, application was made to the governor of the prison to effect a personal service; and the application was referred to the Secretary of State, who refused to permit the service to be made. The Court was moved to substitute some other service in place of a personal service, and it was suggested that a copy of the citation and the petition should be left with the governor of the jail. Bland v. Bland. Law Reports, 3 Probate and Divorce, pp. 233-234. February 16, 1875. EQUITY. Hard bargain. Reasonableness of contract. Relief. Costs on better offer than judgment recovered—and on "appeal. In July, 1861, C advanced to B the sum of £85 on his promissory note for £100, payable six months after date. The payment of the note was collaterally secured by a mortgage of the same date, whereby B assigned to C a certain bond. for £600, payable upon the death of B's father. The assignment declared that C should hold the bond in trust, and, in case the note was not paid at maturity, that he should sell the bond, and retain his costs, charges, and expenses, and the £100, with interest thereon, from the 16th of January, at the rate of 5 per cent. per month. B died in October, 1872, leaving his widow, the plaintiff, his legal personal representative. His father died a year later, and in December, 1873, the plaintiff offered to return to C the money actually advanced, with interest compounded at 5 per cent., to the date of the offer; but C refused to take less than £400, and plaintiff filed her bill against C, praying that it might be declared that the promissory note and mortgage should stand as securities only for the money actually advanced, with such interest as the Court might allow, and for proper relief. The Judge Ordinary declined to make an C, by his answer, submitted that his order substituting service, as he was not terms were not unconscionable, and that satisfied that the documents, if served upon B had never made any attempt to oppose the governor, could come to the knowl- his claim, and never made any complaint edge of the convict. In proceedings of against its terms. Besides, the lapse of this kind the court cannot depart from time was conclusive, and must be taken the principle that the accused shall have as a confirmation by acquiescence. knowledge of the proceedings, and an opportunity to defend himself. Held, Sir G. Jessel, M. R. That it was obviously a very hard bargain, and one which cannot be treated as being within of Dobson & Schofield's goods was to be the rule of reasonableness which has been the minimum price of the plaintiffs' laid down by so many judges. As to the blankets. The market price of goods is suggestion that the bill was filed too late, fixed every day by what they can be the nature of these cases is that the dis- bought for, as well as by actual sales; tress continues while the interest is run- and such prices are competent evidence ning. I therefore make a decree for the of market value. delivery up of the securities on the payment of the amount actually advanced, with simple interest at 5 per cent.; and, as more than that was offered before the bill was filed, I order C to pay the costs. Harrison et al., respdts., v. Glover et N. Y. Supreme Court, Gen'l T., 2d I. Charles Prothero, by his will, appointed his wife sole executrix and residuary legatee. He made a codicil thereto, in which he devised and bequeathed to Burton Fox all property held by him upon any trust, or by way of mortgage. Plaintiffs supplied defendants with woollen blankets to sell for them on commission, and the action arose out of the following clause of the agreement between them, which was in writing: "It is He died insolvent, but left trust estates, hereby agreed that the blankets shall not hereditaments, and premises of great be sold for less than those made by Dob- variety and value, to be administered. son & Schofield, of Philadelphia, at the The widow, as executrix, renounced proproper time for selling them." The debate of the will and codicil, and, as resifendants sold a large quantity of the duary legatee, administration of will and blankets for a less price than Dobson & codicil annexed. The next of kin, three Schofield's blankets were sold for, and a adult children of the deceased, were will'suit was brought to recover the differ- ing to renounce administration of the ence between these prices. The defen- goods; and, as parties entitled in distridants showed on the trial, that before making the sale in dispute, that Dobson & Schofield's agent, in New York, had offered to sell their blankets at the price which they had obtained in this sale. Judgment was for plaintiffs, and, on appeal, bution, there were two infant grandchildren of the deceased. On motion for administration with the will and codicil annexed, to be granted to Mr. Fox, limited to the trust estates devised to him, Held, Sir J. Hannen. Administration may be granted as to the personal propHeld, That the fair meaning of the lan-erty vested in the applicant under the guage employed is that the market price provisions of the codicil of the will. In the goods of Prothero. Law Reports, 3d Probate and Divorce, pp. 209, 210. Nov. 18, 1874. Effect of granting administration on the fact of the death of intestate. Debtor may rely on the letters granted. Evidence as to conversations with intestate, by one in his own behalf, to disprove death of intestate, not competent. In 1858, Henry A. Cleveland was a sailor, and went to sea. He has not been heard of since. In 1871, letters of administration upon his estate were issued to plaintiffs, who brought suit against defendant, as the attorney of Cleveland, to recover money in his hands, part of which was from the sale of Cleveland's share of land sold under a judgment of partition in 1867. Defendant, as a witness on his own behalf, offered to show certain conversations between himself and Cleveland in 1858, which was objected to as incompetent, under Sec. 399 of the Code, and was excluded. He testified, on cross-examination that he had neither seen Cleveland, nor heard from him, since he left, and that the moneys of Cleveland were mingled with his own. Held, 1. That the letters of administration were conclusive evidence of the authority of the persons to whom they were granted; and the surrogate's decision, he being required to take proof of the fact of death and of intestacy before issuing letters of administration, is a judicial determination of the death of the intestate, and is conclusive, until reversed or vacated. 3. A debtor may safely pay the administrator without inquiry as to the actual fact of the death of the alleged intestate, ánd the objection that Cleveland is alive, or that he must be presumed to be dead in 1865, and therefore that the proceeds of the lands sold in 1867 went to his heirs, are quite immaterial to the defendant. Parhan, admtrx., et al., admtr. of Cleveland, deceased, respt., v. Moran, applt. N. Y. Supreme Court, Gen'l T., 3d Dept. June, 1875. Opinion by Learned, P. J. FALSE IMPRISONMENT. What is not. Process of justice, when acting judicially, voidable, not void. Justice not liable for erroneous determination. An affidavit containing most of the facts necessary to justify the issuing of a civil warrant against the appellant was presented to the defendant, as a justice of the peace; but it failed to show that appellant was a resident of the county, and a freeholder. He was such resident and freeholder; but, upon the warrant issued upon the affidavit, he was arrested, and after a hearing before the defendant, and one adjournment, he was discharged. Action was brought for false imprisonment, and the complaint was dismissed, on the ground that the defendant acted judicially in issuing a warrant upon such affidavit. Held, That the dismissal was correct. 2. The defendant was not a competent The defendant, acting as a court of limiwitness as to conversations between him- ted powers, had jurisdiction of the subself and Cleveland prior to the granting ject matter involved, and the right to of the letters of administration. The object of this testimony, it is said, was to prove that Cleveland was yet alive; but, in point of law, Cleveland was proved to be dead. issue process against the plaintiff. He had to determine as to the appropriate process, and in doing so he acted judicially, and his proceedings, if erroneous, were voidable, not void. Harrison, applt., v. Clark, respdt. FRAUDS, STATUTE OF. Acceptance necessary to bind purchaser. mortgage for $3,000, the following agreement: "In consideration of the sum of one dollar, to me in hand paid by Arthur Childs, the receipt whereof is hereby acknowledged, and for other valuable considerations, I, Frederick W. Starr, of Brooklyn, do, for myself, my heirs, executors, and administrators, guarantee the payment of principal and interest of a certain bond and mortgage, made by Marian Sutherland and Spencer Sutherland, her husband, dated February 1st, Defendant offered $125 for certain fur1872, to secure the sum of $3,000 and inniture, which the plaintiff accepted. Afterest, *to Arthur Childs, the terwards, as plaintiff testified, defendant present owner and holder of such bond asked plaintiff to send the furniture down; and mortgage, his executors and adminand the reply was made that "all of the istrators, according to the terms and conarticles could not be delivered, as some ditions thereof, together with any costs, were worn out and some were in another allowances, and disbursements, attending place." The defendant then said, "I know the foreclosure of the same." Childs asall about that; send them down, and we signed the bond and mortgage, but not will have no trouble about it." The the guarantee, to the plaintiff's testatrix; furniture was left at defendant's house in and this suit was brought upon the guarhis absence, and, on his return, he re-antee for a deficiency upon foreclosure, fused to take it. The defence was, the on the ground that the guarantee was Statute of Frauds. collateral to the mortgage and passed with it. Held, 1. That under the Statute there must be a sale, acts of part payment, delivery, and acceptance. Mere words of contract for sale are not acceptance; there must be some act to show that the property was treated as the property of the buyer. 2. There was no act of acceptance here, but, on the contrary, a refusal to accept. Ham, respdt., v. Van Orden, applt. *** Held, On the guarantee, no other evidence having been given, that the legal import of its language is an engagement to Childs only. It is well settled that a mere surety cannot be bound beyond the scope of his engagement. Smith, executor, etc., applt., v. Starr, respdt. New York Supreme Court, Gen'l Term, 2d Dept. March, 1875. Opinion by Gilbert, J. GUARANTY. Scope of the agreement of the surety. It cannot be extended. On the 7th of September, 1872, the defendant gave to Arthur Childs, to whom had been assigned a bond and LANDLORD AND TENANT. Notice to quit. When term begins. Effect of making rent payable on the regular quarter-day. I. On the 20th Dec., 1872, plaintiff, in writing, leased premises to defendant, from year to year, and no date was stated when the term should commence; but lied on the waiver of the breach, and the the first quarter's rent was to be paid on acceptance of rent under the distress, the the 25th of March succeeding. It was agreed that a half year's notice to quit should be given by either party, and plaintiff gave notice on the 24th of June, 1874. Defendant refused to leave, and in an action of ejection pleaded that the notice was not sufficient. Held. That the tenancy began on the 25th of December, the usual quarter-day, by reason of fixing the payment of the rent for the first quarter on the 25th March succeeding. Sandill v. Franklin. Law Reports, 10 Common Pleas. PP. 377, 378. Opinion by Coleridge, C. J.; Brett, Archibald, and Huddleston, JJ, concurring. April 15, 1875. Effect of taking rent on the breach of a covenant not to sublet, with knowledge of such breach. II. Plaintiff leased to defendant a farm, and there was, among other covenants, a covenant on the part of the lessee that he would not "assign, or demise to, or permit any other person to occupy the said premises, or any part thereof, without the consent in writing of said B. Walrond, his heirs or assigns, for that purpose being had and obtained;" and there was a clause of re-entry for breach of any of the covenants of the lease. On the 31st January, 1873, the defendant let to one John Trood, without the consent of the plaintiff in writing, or otherwise, the dairy-house and some land. In September, 1873, the plaintiff distrained for the quarter's rent, which fell due on the 29th of September, 1873, and defendant paid it. The jury found that the plaintiff was aware of the occupation of Trood at the time he distrained. The action was for ejectment upon the alleged forfeiture, and the defendant re plaintiff being aware of the breach. But the plaintiff insisted that, assuming the plaintiff had waived the original breach, that Trood remaining in occupation was a continuing breach. Held, The acceptance of the rent, under the circumstances was a waiver of the breach. The tenant could not put an end to Trood's occupation until the expiration of the year. The breach was the under-leting of a portion of the premises for a year; and the plaintiff, knowing of the demise for a year, by his acceptance of the rent, sanctions the continuance of that state of things for the year. To hold that every day's occupation by Trood, although the defendant could not himself occupy during the remainder of the year, was a continuing breach, would be a most unreasonable construction of the covenant. Walrond v. Hawkins. Law Reports, 10 Common Pleas, pp. 342-353. Opinion by Coleridge, C. J., Grove and Denman, JJ., Keating, J., concurring. Jan. 27, 1875. |