then growing upon it, which, when matured and gathered, he sold, and of the proceeds loaned his wife $300, with which she purchased other land, taking the deed in her own name. The court held that the land so purchased was not exempt from the husband's debts. It was urged, in behalf of defendant, that a homestead having been secured to the debtor by law, all income derived from its user is merely an incident which follows the principal and belongs absolutely to him, and may be used either in improving the property, or in other investments; and that, unless this be so, the law rather discourages than invites improvements and enterprise, by cutting off all inducement to industry, the legitimate reward of which, when in excess of the exemption, would be seized and sold by the creditor. BYNUM, J., who delivered the opinion of the court, said: "There is some misconception as to the nature of the homestead law. The homestead is not the creature of any new estate, vesting in the owner new rights of property. His dominion and power of disposition over it are precisely the same as before the assignment of homestead. The law is aimed at the creditor only, and it is upon him that all the restrictions are imposed, and the extent of these restrictions is the measure of the privilege secured to the debtor. And these restrictions imposed on the creditor are, that in seeking satisfaction of his debt he shall leave to the debtor, untouched, $500 of his personal, and $1,000 of his real estate. With this limitation upon the rights of the creditor it is manifest that all the obligations of the debtor to pay his debts, and all his rights to acquire and dispose of property, are the same after as before the assignment of homestead. The homestead has been called a determinable fee, but as we have seen that no new estate has been conferred upon the owner, and no limitation upon his old estate imposed, it is obvious that it would be more correct to say that there is conferred upon him a determinable exemption from payment of his debts in respect to the particular property allotted to him. Suppose A has had assigned to him his homestead and personal exemption, and by good management, he has acquired other lands of the value of $5,000. It is asked, why should not these acquisitions belong to him, as the natural fruit and product of the exempted property? The answer is, they do, undoubtedly. No one disputes that proposition; on the contrary, it is the very proposition we affirm. All such property does belong to him, absolutely; and with it he may buy and furnish fine houses, have his carriage and horses and supply his table with the costliest luxuries. But when he refuses to pay his butcher, the latter might well exclaim: "Upon what meat doth this, our Cæsar, feed, As in respect to land, so as to the personal exemption. Suppose B has had assigned to him, as a part thereof, stock, cattle or brood mares, it is again asked, do not the increase belong to the owner of the dam? Undoubtedly. Partus sequitur ventrem, and he may increase the stock, by continued production and reproduction, to an unlimited extent and value, and it would still be all his, absolutely. But the question is, what sanctity distinguishes and protects this new wealth, which is not equally vouchsafed to the same kind of property belonging to other men? Again, suppose A, having accumulated out of the homestead, other land of the value of $10,000, dies, leaving a child. Under the law of 1876-'77, this land would descend as homestead, and all the additions made to it by the heir would also be homestead, and so ad infinitum, exempt from the debts of all the proprietors. If the construction of the law should be, that all acquisitions of property are exempt from execution, it would be the interest of all men at once to take the benefit of the homestead, as well the rich as the poor, for thereby all income derived from it could be capitalized and recapitalized from that one nucleus to the building up of colossal fortunes, in defiance of debts, past or future. And what a door would be open to frauds and perjuries, as each owner of a homestead would be tempted to allege and establish that all his estate, no difference how acquired, was but the increasement of his own or the homestead of some remote ancestor." A NEW law periodical comes to us from the Pacific coast. It is called the California Legal Record, and is issued weekly by Messrs. Scofield & Palmer, San Francisco. In appearance it resembles very closely the Pacific Coast Law Journal. IN FRANCE, not long ago, a man was tried for murder. He was found guilty and condemned, and in the usual course the jurors were applied to to sign the petition for a commutation of his sentence. One of them did so with the postscript, "On condition that he hangs himself." OF ELECTION WITH REGARD TO In the case put in our former remarks on this subject, it is said that the widow should have her dower out of Whiteacre, because it is not inconsistent with the intention of the testator as to the disposition of that property -for his intention is to give only what he can give, viz.: an estate subject to its incidents, one of which is dower. unconscientious in the devisee to claim a right to retain his own property, and take the ben-efit of the devise as well. If this doctrine be applied to the case of the widow, as being an analogous one, there is no reason apparent why it should not be applied, with all its characteristics, and to the same effect. Though she may say, "You can not deprive me of my dower," yet, by accepting the devise she consummates the hitherto impossible act of deprivation commenced by the will; and, as in the case of the stranger, she should be compelled to carry out the obligation imposed upon her as devisee by force of the doctrine already alluded to. The testator, as it were, makes an offer to her of so much, in exchange for which she is to release her interest for the benefit of his nominee, in all of his property otherwise subject to dower. In the case of a total stranger he may accept the offer or not; but he can not accept both benefits in their entirety. In order to do this, he must remove the onus which is cast on him, to show an intention on the part of the testator to make a voluntary gift to him of the subject of the devise. But the rule is reversed in the case of the widow; for there is a presumption in her favor, and the onus is here cast on the contestant, to show that a voluntary gift was not intended. Thus the principle of election is outraged by her taking, in addition to her devise, dower in those lands which were attempted to be released from that burden, in consideration of the devise. that It is, in effect, We have already, on other grounds, criticised the meaning of the words of the will, which are said to show the intention of the testator to be to assign dower, in addition to the widow's devise. And here it is also submitted, that if the adoption of the meaning of the words themselves, as the rule by which the disposition of the property is to be effected, do not outrage any rule of law, such meaning should be given effect to, instead of its being modified by the application of a rule of construction, or of law, of which the most that can be said in its favor is that it is not inconsistent with the intention of the testator. We shall test this proposition by means of the touchstone of the doctrine of election, as well as by a comparison of the meaning of the words themselves, with that ascribed to them by the law. To say that everything devised to the widow is a 66 voluntary gift," because the law has already given her her dower, and she does not want the testator's expression in her favor, is to say that the doctrine of election never could apply to dower. To say the testator can not devise land, except subject to dower, may be true enough when stated in the abstract; because he would be devising an interest therein which does not belong to him. But it is equally true that he can not devise the property of a stranger, in which he has no interest whatever himself, unless, indeed, he give that stranger something in lieu thereof. And in the latter case, the doctrine of election, which is founded upon intention, is applied, and the testator is understood to have intended the devise to be in lieu of that which he intends to take away. The devisee is put under an obligation to fulfil the work commenced by the will, by conveying away his own property to the nominee of the testator, if he would accept the benefit to be derived from the will. For the doctrine of election is much more an argument of conscience than anything else; and it would be the case of the grantor or relessor taking the consideration for the release, and at the same time claiming to retain the subject of it. No reason is given-no satisfactory reason, it is submitted, can be given-for the variation of the rule in its application to the case of the widow. There is none attempted to be based upon the peculiar relationship of the parties; and if not, and there be one at all, it must be one that will apply as well to the case of a total stranger. Otherwise, we must expect to find the doctrine of election modified in its every application. If the presumption of a voluntary gift is to arise in one of these cases and not in the other, reason demands that it be in that of the stranger, whose property the testator has no shadow of right to dispose of, rather than in that of the widow, where the property he affects to devise is his own, subject to a cer construction, which he probably never heard HABEAS CORPUS-JUDGMENT ENTERED IN RE GORMAN. Supreme Judicial Court of Massachusetts-November tain interest only in favour of the widow. But, assuming that the intention of the testator is that expressed in the enunciation, let us pursue the argument on which it is founded, and if it lead to consequences which are absurd, the proposition must be abandoned. On this assumption the words used by the testator are inconsistent with his alleged intention. If he had known, and, knowing, had intended the devise to be a voluntary gift, in addition to what the law would give her in any event, and his intention was that she should have all of Blackacre and one-third of Whiteacre, he would have sufficiently and intelligibly expressed himself by saying, "I devise to my wife two-thirds of Blackacre, knowing," to follow the train of thought attributed to him by the law, "that the law will first allot to her one-third of Whiteacre and the other third of Blackacre." To have used these, or equivalent words would have been quite consistent, and the only mode of being consistent, with his assumed intention that she should have all his land, except two-thirds of Whiteacre. From this it follows that two very different forms of phraseology express, on their faces, exactly execution, can not be allowed to show, at the hearing the same meaning, viz: "I devise Blackacre to my wife, and Whiteacre to my son "; and "I devise Blackacre and one-third of Whiteacre for life to my wife in lieu of dower, and two-thirds of Whiteacre to my son." If, however, this be not true, and it be said that the two forms of expression are so different as to convey different meanings, then, when the testator departs from the latter form and uses the former one, it is doing no violence to reason, to say that he thereby rebuts the presumption that his meaning is to be found in the abandoned form of words. If it be answered that understood, by the first form of words, to mean what the second form imports, in reply, we say, that if he intended to convey the meaning ascribed to him, is it not fair to presume that he would have expressed himself in the terms of the form of words which are alleged to contain his meaning; and, if he have expressed himself at all, is it not also fair to presume that he has fully expressed himself? To answer in the negative is to assert that it is not probable only, but in fact only reasonable that he should express part of his intention on the face of his will, and leave us to find out the remainder, by means of rules of HON. HORACE GRAY, Chief Justice. 66 66 SETH AMES, 66 MARCUS MORTON, 66 66 WILLIAM C. ENDICOTT, Associate Justices. 1. JUDGMENT-VALID TILL PROPERLY REVERSED. Where the court rendering a judgment had jurisdiction, the regularity of its proceedings will not be inquired into collaterally, and its judgment stands good till reversed or annulled by a proper course of proceedings for the purpose. 2. HABEAS CORPUS-IDENTITY OF DEBTOR.-A defendant upon whom process has been properly served, and who has been defaulted and arrested on a valid on a writ of habeas corpus, that he is not the true defendant, whose name he bears. On or about April 9, 1875, one F. H. McCaffrey brought an action of replevin against Michael McCarthy, giving a replevin bond, signed by McCaffrey as principal, and Merrick S. Creagh, Henry Pazolt and W. P. Gorman as sureties. The replevin suit not having been entered, McCarthy brought suit on the bond against Merrick S. Creagh and W. P. Gorman, and the action was entered at the January term of the Superior Court for Suffolk county, A. D. 1876. At the same term and on March 30, 1876, judgment was entered against both defendants, and May 12, 1876, execution issued on said judgment against Merrick S.. Creagh and W. P. Gorman. On June 23, 1876, this execution was returned to court, and was indorsed with the words "returned and cancelled" only; and on the same day the attorneys for said McCarthy filed a written statement and motion, representing that by a mistake of the officer, personal service had been made upon one W. P. Gorman, who was not the true defendant, and that personal service had not been made upon the true defendant W. P. Gorman; adding the words "otherwise known as William Gorman;" praying that the judgment be vacated, and for an order of notice on W. P. Gorman. Whereupon said judgment was stricken off, and an order of notice issued to W. P. Gorman to appear and answer to said suit at the October term, 1876, which notice, by the direction of the attorneys for said McCarthy, was served upon William Gorman, the petitioner, who informed the officer that he was not the defendant, W. P. Gorman. The officer returned that, by direction of the plaintiff's attorney, he had served the notice on the petitioner, William Gorman. The original summons in the action was not served on the petitioner. On December 4, 1876, judgment was entered by default in the action against both defendants, the petitioner, William Gorman, not appearing; and on December 6, 1876, execution issued on said judgment against both defendants, said W. P. Gorman being described as "otherwise known as William Gorman," which execution was afterwards returned in no part satisfied. On March 9, 1877, said McCarthy commenced an action against "William P. Gorman, otherwise known as William Gorman," returnable to the Municipal Court of the city of Boston, March 24, 1877, which action was duly entered, and the judgment of the Superior Court, hereinbefore recited, was declared on. The summons in this action was served upon the petitioner, who appeared, and, when the case came to trial, admitted that the order of notice in the Superior Court action was served on him; and he offered, in the Municipal Court, to prove, as were the facts, that he did not sign said bond, that his name was not W. P. Gorman, that he was not the defendant, and that he was not in any manner indebted to said McCarthy. To such proof the attorney who acted for McCarthy objected; and at his request the presiding justice declined to hear such proof, and ruled that, as the action was brought on a domestic judgment which could not be impeached, the court could not go into the question of identity, and ordered judgment to be entered for the plaintiff, after the writ and declaration had been amended by striking out the "m" after the first initial of defendant's name. Upon this judgment execution issued June 25, 1877, against "W. P. Gorman, otherwise known as William Gorman;” an affidavit of arrest in the usual form was attached thereto, the execution was handed to E. W. Farr, a constable of the city of Boston, by the attorney for said McCarthy, with instructions to arrest the petitioner, William Gorman as the judgment debtor named in the execution; and on July 20, 1877, the petitioner was arrested by said Farr on said execution; and on the same day, on the petition of said William Gorman, a writ of habeas corpus, issued from the Supreme Judicial Court for said county, was served and returned, and said William Gorman was admitted to bail thereon. On August 21, 1877, a hearing was had before COLT, J., at which the records, papers and proceedings of the Superior and Municipal Courts, in the two actions aforesaid, were produced and proved; and the petitioner proved that he was not the defendant, W. P. Gorman; that he never signed the bond in question, and owed the plaintiffs in said action nothing; also that he notified said McCarthy's attorneys and said Farr, before said arrest, that he was not the defendant, and informed them where the defendant was. The presiding justice found as a fact that the petitioner was not the person who signed the replevin bond. The case was reserved for the consideration of the full court. SOULE, J., delivered the opinion of the court. The petitioner was served with notice to appear and defend the action in the Superior Court, founded on the replevin bond. The allegation in the declaration was that the defendants executed and delivered the bond, and that there had been breach of the condition. If the petitioner had seen fit to do so, he could have appeared in that suit, denied the allegations in the declaration, and tried the issue whether he executed the bond or not, as well as the question of the breach of the condition. He elected not to do so, and ma de default. This was an admission of the truth of the matters set up in the declaration of so deliberate and solemn a character that he cannot be heard in denial of it so long as the judgment rendered in that suit remains unreversed. This is so familiar law that it is unnecessary to cite cases in support of the position. It follows that, when suit was brought on that judgment, he was not permitted to impeach it by showing that he did not in fact execute the bond. His arrest on the execution issued on the second judgment was merely a proceeding in the exercise of the rights of the creditor, to enforce collection of the judgment debt, and it is not competent for the petitioner to impeach collaterally a judgment, by evidence which it was incompetent for him to introduce at the trial of the suit in which the judgment was rendered. There was no mistake on his part, no fraud upon him, no false testimony used to obtain the original judgment; and even if it was otherwise, the original was valid against him till reversed; and no defense would be open to him founded on facts which existed before it was rendered; nor could such facts avail him in equity more than at law. Sheldon v. Kendall, 7 Cush. 217; Bost. & War. R. R. Co. v. Sparhawk, 1 Allen 448. See also, O'Shaughnessy v. Baxter, 121 Mass. 515. It is only when the prisoner has been placed in custody as the result of proceedings before a tribunal which had no jurisdiction, so that its judgment is void, that he is entitled to his discharge on habeas corpus. Where, as here, the court rendering the judgment had jurisdiction, the regularity of its proceedings will not be inquired into collaterally, and its judgment stands good till reversed or annulled by a proper course of proceedings for the purpose. Herrick v. Smith, 1 Gray, 49; Adams v. Vose, 1 Gray, 51. For these reasons it is ordered that the prisoner be remanded. OF SERGEANT ARMSTRONG, a leading Irish couusel, an English paper says: Much learning has made the Sergeant mad, and he is now unhappily under restraint. The manifestations of the mania took place under extraor dinary circumstances. The Sergeant was one time a member of Parliament, and at the beginning of this session, when the Home Rulers were returning to London, the Sergeant appeared with his portmanteau ready packed. There was nothing remarkable about this. But, in the course of the journey, it became clear that the learned Sergeant was under the impression that he was still a member of Parlia ment, and that he was bound for London with other honorable members. He was tenderly humored till the party arrived, when he was taken care of till his friends arrived, and carried him back to Ireland. NUISANCE-ALTERATION OF THE LEVEL OF LAND-RAIN-PERCOLATION-NATURAL USER. HURDMAN V. THE NORTH-EASTERN R. R. English Court of Appeal, March 1, 1878. AN OCCUPIER OF LAND may maintain an action against any one who allows filth or other noxious things produced on the latter's land to interfere with the reasonable enjoyment of his land by the former. Therefore, if any one, by an artificial erection on his own land,causes water, even though only arising from natural rain-fall, to pass into his neighbor's land, he is liable to an action at the suit of the person so injured. This is, however, subject to the principle that the owner of land holds his right to the enjoyment thereof, subject to any annoyance arising from the natural user by his neighbor of his land, as in the case of an adjoining mine owner. This was an appeal of the defendants from a judgment of MANISTY, J., on a demurrer to a statement of claim. The first six paragraphs only of the claim are material for this report: 1. At the time of and before the commencement of the damage hereinafter mentioned, the plaintiff was, and is still, possessed of a house known as No. 16 Lodge-terrace, Sunderland. 2. The defendants then were, and still are, possessed of a certain close of land adjoining the said house of the plaintiff. 3. The defendants placed and deposited in and upon the said close of the defendants, and upon and against a wall of the defendants which adjoins and abuts against the house of the plaintiff, large quantities of soil, clay, limestone, and other refuse, close to and adjoining the said house of the plaintiff, and thereby raised the surface of the defendants' land above the level of the land upon which the plaintiff's house was built. 4. The rain which fell upon the said soil, clay, limestone, and other refuse so placed as aforesaid, oozed and percolated through the said wall of the defendants into the said house of the plaintiff, and the plaintiff's house thereby became wet, damp, unwholesome and unhealthy, and less commodious for habitation. 5. By reason of the said acts of the defendants the walls of the house of the plaintiff became and were very much injured, and the paper and plaster upon the said walls have been destroyed. 6. In the alternative the plaintiff alleges that the defendants so negligently and improperly placed and deposited the said soil, clay, limestone, and refuse upon the defendants' said land, that the rain water falling thereon oozed and percolated through and into the plaintiff's house, whereby the plaintiff's house was damaged as before mentioned. Herschell. Q. C., and Gainsford Bruce, for the defendants, in support of the demurrer. The water comes merely by the force of gravitation and by percolation, and the plaintiff must keep it out of his house himself. Smith v. Kendrick, 7 C. B. 515. In Baird v. Williamson, 12 W. R. 150 15 C. B. N. S. 376, there were three classes of water, the first of which could not be complained of, while the others could; the distinction being between what is artificially brought on the land and what nature brings there. Broder v. Saillard, 24 W. R. 1011, L. R. 2 Ch. D. 692, is distinguishable. If I may not deal with my land like this, it must be because there is some limita tion on the rights of property, which it is for the court to find. [BRAMWELL, L. J. Sic utere tuo ut alienum non lædas.] That can not mean that you may not use your land so as to injure your neighbor; because, in some circumstances, you may—e. g., you may build up against your neighbor's light, where he has not acquired an easement by prescription; but you must not inflict legal injuria. Popplewell v. Hodgkinson, 17 W. R. 806, L. R. 4 Ex. 249, shows that the rule does not mean that you may not deal with your land so as in any way to affect your neighbor's land-that you must leave it as it always was. In Wilson v. Waddell, L. R. 2 App. Cas. 95, 25 W. R. 157, the House of Lords decided that no cause of action arises from your altering the way in which the water percolated; and they have approved of Smith v. Kenrick, as laying down the same doctrine. In Rylands v. Fletcher, L. R. 3 H. L. 330, 17 W. R. H. L. Dig. 17, the defendant had created a large pool of water, and, therefore, was responsible for keeping it in. Brine v. Great Western Railway Company, 10 W. R. 341, 2 B & S. 402, was only a decision on a point of pleading, and does not touch this case. Baird v. Williamson goes the whole length we argue for. [COTTON, L. J. Getting coal is a natural user of the land.] They also cited Nicholls ▼, Marsland, 25 W. R. 173, L. R. 2 Ex. D. 1; 2 Cent. L. J. 523; 4 Cent. L. J. 319. Waddy, Q. C., and J. Edge, for the plaintiff. The defendants have so used their land that what would have been harmless in the usual course of nature became harmful and injurious to us in consequence of what they did. We do not only complain of the percolation and oozing, turning the land into an artificial sponge, but of the alteration in the level of the land, which prevents the water coming down to the level of our land and flowing away, and causes it to percolate through our wall. The mining cases are all commented upon and disposed of in Crompton v. Lea, 23 W. R. 53, L. R. 19 Eq. 125, where the Vice-Chancellor draws a distinction between ordinary cases such as this and mining cases as to working mines in the usual way, and the interference of subterranean water. Altering the level of land is not a natural user of it. A man is entitled to enjoy his land without foreign water being brought upon it. They cited in support of their argument, in addition to cases mentioned on behalf of defendants, Sutton ▼. 'Clarke, 6 Taunt. 29; Lawrence v. Great Northern Railway, 16 Q. B. 643; Humphreys ▼. Cousins, 25 W. R. 371, L. R. 2 C. P. D. 239; Crossley v. Lightowler, L. R. 3 Eq. 279, 15 W. R. Ch. Dig. 95. Herschell, Q. C., was heard in reply. Cur. adv. vult. |