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local statutes and local usages of the character before statute which makes the laws of the States rules of destated, and does not extend to contracts and other cision in trials at common law.' We apprehend, howinstruments of a commercial nature, the true inter- ever, that no one would go thus far in asserting the pretation and effect whereof are to be sought, not in binding force of State decisions upon the courts of the the decisions of the local tribunals, but in the general United States when the latter are required, in the disprinciples and doctrines of commercial jurisprudence. charge of their judical functions, to consider questions Undoubtedly the decisions of the local tribunals upon of general law, arising in suits to which their jurisdicsuch subjects are entitled to and will receive the most tion extends. To so hold would be to defeat one of the deliberate attention and respect of this court; but objects for which those courts were established, and they cannot furnish positive rules, or conclusive au- introduce infinite confusion in their decisions of such thority, by which our own judgments are to be bound questions. Further elaboration would seem to be unup and governed."

necessary. The judgment is affirmed. In Carpenter v. Providence Washington Ins. Co., 16 Mr. Justice Miller dissents. Pet. 495, decided at the same term with Swift v. Tyson, it was necessary to determine certain questions in the law of insurance. The court said: “The questions IMPLIED COVENANT AS TO ANCIENT under our consideration are questions of general com

LIGHTS. mercial law, and depend upon the construction of a contract of insurance, which is by no means local in its

PENNSYLVANIA SUPREME COURT, MAY 3, 1880. character, or regulated by any local policy or customs. Whatever respect therefore the decisions of State

RENNYSON'S APPEAL. tribunals may have on such a subject, and they certainly are entitled to great respect, they cannot con- There is no rule of the English courts in regard to ancient clude the judgment of this court. On the contrary,

lights which is final and conclusive in Pennsylvania. we are bound to interpret this instrument according Defendant owned a house which had been erected more

than twenty-one years, containing windows overlookto our own opinion of its true intent and objects, aided

ing his land which were in rooms having other winby all the lights which can be obtained from all exter

dows. He conveyed this house, making no agreement nal sources whatsoever; and if the result to which we

as to the right of light or air through the overlooking have arrived differs from these learned State courts, windows. Held, that defendant was entitled to erect a we may regret it, but it cannot be permitted to alter structure on his own land shutting off light and air our judgment."

from such windows. In Oates v. National Bank, 100 U. S. 239, we had The American doctrine as to light and air requires an exbefore us the precise question now under considera

press grant or agreement, unless a real and actual ne

cessity exists, to vest a dominant tenement with such tion. That was an action by a National bank, located

right. in Alabama, against a citizen of that State, upon a promissory note there executed and negotiated HILL restrain defendant from erecting a building

99

of Alabama should be accepted as the law governing in plaintiff's house. Defendant at one time owned two the rights of parties. We however held — referring lots of land upon one of which was a house containing to some of our previous decisions — that the Federal windows overlooking the other lot. This house had courts were not bound by the decisions of the State been erected for more than twenty-one years when he courts “upon questions of general commercial law. sold and conveyed the lot containing it to plaintiff's We have already seen that the statutes of

grantor. There was in the conveyance, or when it Alabama placed under the protection of the commer- was made, no express grant or agreement on the part cial law, promissory notes payable in money at a cer- of defendant in reference to the windows or a right to tain designated place, but how far the rights of parties light through them. There were other wiudows in here are affected by the rules and doctrines of that law

the building affording light and air to the rooms in is for the Federal courts to determine upon their own which the windows in question were. The Court of judgment as to what these rules and doctrines are." Common Pleas of Montgomery county denied the in

To this doctrine, which received the approval of all junction and dismissed tho bill, the following opinion the members of this court when first announced, we being delivered by Ross, P. J., which was adopted by have, as our decisions show, steadily adhered. We

the Supreme Court: perceive no reason for its modification in any degree whatever. We could not infringe upon it in this case Churles Hunsicker and E. Coppee Mitchell, Esq., for without disturbing or endangering that stability which appellant. is essential to be maintaiued in the rules of commercial

B. M. Boyer, Esq., for appellee. law. The decisions of the New York court, which we are asked to follow in determining the rights of parties Ross, P. J. It is certainly true that the question under a contract there made, are not in exposition of presented by this record has not been definitely ruled any legislative enactment of that State. They express in Pennsylvania; and it is equally true that the English the opinion of that court, not as to the rights of parties authorities have not been recoguized or adopted by under any law local to that State, but as to their rights our court of last resort. The doctrine of ancient lights, under the general commercial law existing throughout and the right to light and air, by prescription, has as the Union, except wbere it may have been modified or yet no recognition in our Commonwealth. Hazlitt v. changed by some local statute. It is a law not peculiar Powell, 6 Casey, 296; Wheatley v. Baugh, 1 id. 5:28; to one State, or dependent upon local authority, but Hoy v. Sterretl, 2 W. 331. one arising out of the usages of the commercial world. In Wheatley v. Baugh, supra, Lewis C. J., says: Suppose a State court, in a case before it, should deter- “The Roman law, founded upon an enlightened conmine what were the laws of war as applicable to that sideration of the rights of property, declared 'that he and similar cases. The Federal courts, sitting in that who in making a new work upon his own estate, uses State, possessing, it must be conceded, equal power with his right without trespassing either against any law, the State court in the determination of such questions, custom, title or possession which may subject him to must, upon the theory of counsel for the plaiutiff in any service toward his neighbors, is not answerable for error, accept the conclusions of the State court as the the damages which they may chance to sustain thereby, true interpretation, for that locality, of the laws of unless it be that he made that change merely with a war, and as the 'law' of the State in the sense of the ' view to hurt others without any advantage to himself.

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He may raise his house as high as he pleases, although extent irreconcilable upon general principles, and are by the elevation he should darken the light of his pressed upon the court by the able contending counsel, neighbor's house.' * * These principles of the who have made this case a specialty, and who by their civil law are also the recognized doctrine of the com- intellectual exertions have awakened a vivid interest mon law. Birg v. Pope, 1 Cro. Eliz. 118; Parker v. in the court. It cannot be denied that Story v. Odin, Wendell, 19 Wend. 309; 2 id. 331; 18 Pick. 121. It is 12 Mass. 157, rules the point at issue, so far as the true that several nisi prius decisions introduced a opinion of the court is concerned, squarely; for it does modern doctrine in relation to ancient lights, in oppo- declare that the owner of a servient tenement may not sition to that held in the reign of Queen Elizabeth by interfere with the light and air of the owner of the all the judges in the Exchequer Chamber. 1 Cro. Eliz., dominant tenement. This clearly is the force and supra. But the modern doctrine was uever recognized scope of the opinion, though the special facts of the by the King's Bench until the decision in 2 Saunders, case would have sustained the judgment on the ground 175, note 2. As that decision was since the American of necessity. If it stood alone I should be governed Revolution, after which the English courts ceased to by it, notwithstanding the wise dictum of Haverstick have authority here, and is an anomaly in the law, the v. Sipe, supra, and the modifying influences of Keiffer modern doctrine founded upon it has not been received V. Imhoj, 2 Casey, 445; 6 id. 293–299, as well as of as suitable to the condition of the country. 19 Wend. Washburn on Easements, 589, 590, and authorities 309; 2 Watts, 331."

there cited. A careful examination of Maynard F. It is clear from this extensively cited authority Escher, 5 Harr. 226 (a case miscited through error in that the English rule of new adoption compara- the syllabus), 6 Casey, supra, of 14 Wr. 423, and the tively does not prevail in Pennsylvania. Following authorities cited by Agnew, J., will demonstrate that this case, Lowrie, C. J., says, in Haverstick v. Sipe, 9 the broad ruling of Odin v. Story, supra, has not been Casey, 370: “It has never been considered in this adopted in Pennsylvania. Still, as has been said, a State that a contract for the privilege of light and respectful regard for the Supreme Court of Massachu. air, over another man's ground, could be implied from setts would induce me to follow its ruling, were there the fact that such a privilege has been long enjoyed, no other adjudicated cases. But the same tribunal, at or that on a sale of a house and lot, such a contract a much later period, in Keats v. Hugo, 115 Mass. 208, would be implied from the fact that such a privilege adopts a different rule, and one which accords with my has been long enjoyed, or that on a sale of a house and own views of this question, as affected by public policy lot such a contract could be implied from the character and business interests. I understand this case to overof the improvements on the lot sold and the adjoining rule Story v. Odin, or, at least, to explain it to such an lots."

extent that its right as a precedent fails. Story v. There is, therefore, no rule of the English courts Odin was ruled in 1815 by Jackson, J., and it will be which is final and conclusive in Pennsylvania. The noticed that it is based upon English authorities, and case is to be adjudged therefore either upon general that its reasoning is therefore weakened in Pennsylprinciples applicable to our civilization, and in accord- vania by what is said by our Supreme Court in ance with general public policy, or to be determined Wheatley v. Baugh, supra. by the light cast by the decisions of our sister Com- Keals v. Hugo was ruled iq June, 1874, and beginmonwealths.

ning with Story v. Odin reviews in analytical detail all To adjudicate the question fully the proposition to the cases adjudicated in Massachusetts and some other be adjudged must be distinctly stated and clearly un- States upon this question. This case rules that the derstood.

easement of light and air is not implied from the grant It is clear that Mr. Rozell, the defendant, is the of a house having windows overlooking land retained owner of the servient tenement. The plaintiff pur- by the grantor. It declares that since Story v. Odin chased with his house and windows overlooking the and the obiter dicta in 12 Mass. 220, 17 id. 443, 1 Sumner, lot of the defendant. The latter built, closing the 492, the cases have been more fully considered on prinwindows of the former, and the question presented is, ciple, and that the tendency of judicial decisions in whether a servient tenement can close the windows on Massachusetts and most other States has been to deny one side, and thus deprive the dominant tenant of the tho doctrivo of acquiring a right to light and air by light and air which he desires from that side. I think presumption or implication. Chief Justice Gray adds: I have stated the question fairly. It is new in Penn- “In no judgment of this court since Odin v. Story, has sylvania, and it is entitled to a broad ruling. The law any right of light or air been upheld, except by express should be clear on so important a topic, and this court grant or agreement.” In this most learned and exwill endeavor to rule su explicitly that all doubt will haustive opinion the learned judge first notes that be at an end when its conclusion is affirmed or denied Odin v. Story is based upon English authorities; that by the court of last resort.

neither in the opinion of the court nor in tho arguThe inquiry is by no means free from difficulty. ment of counsel is it suggested that a different rule This question has never been distinctly met and ruled may be required by the exigencies of a new country, in Pennsylvania; and in other States the rulings are with new wants, under a new and developing system conflicting. Haverstick v. Sipe, supra, is the case of a of civilization and improvement, and that the facts of dominant tenant, and while in dictum it is decisive, is, the case themselves did not require a decision upon upon the question involved by this record, no more the general principle. He then reviews the authorities than a dictum. Though largely cited, it does not at great length. Among these is Collier v. Pierce, 1 definitely rule, as contended or as quoted. One case Gray, 18, which has the authority of Chief Justice has been ruled in Pennsylvania, by Finletter, J., Kay Shaw to uphold it. I will not pause to cite the other v. Stallman, 2 Weekly Notes, 613. This stands alone, authorities quoted in the opinion. Many of them are and is, I have no doubt, well ruled under the special used to show the tendency of the courts to hold in this facts of the case, which, when understood, demon- country, that easements of light, air, overhanging prostrate that the domiuant tenement would have lost its jections, are not implied in favor of the dominant as light and air and also its means of access, if the erection against the servient tenement. The principal case is upon the servient tenement had been maintained. strong, clear, and most emphatic, and its concluding This case, therefore, involves the question of necessity reasoning is so sound that I cannot forbear quoting it -an element which the master here has found is not in extenso. “By nature air and light do not flow in involved by this record.

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

* Considering, One other inquiry remains. Mr. Widdicombe, a therefore, that by the preponderance of reason and former owner of the premises, declares that he bought authority no grant of any right of light and air over the lot now owned by the defendants for two purposes, adjoining lands is to be implied from the conveyance one of which was to obtain more light and ventilation, of a house, we have only to apply this rule to the and that he sold the two lots together to Mr. Wotton facts.” In 1876, N. Y., Doyle v. Lloyd, per Earl, J., as a whole. I cannot see how this can affect the case. this doctrine, there styled the “American doctrine," as The purposes for which a former owner purchased to light and air, is distinctly recognized, the learned property cannot affect the use and rights of his vendees judge citing Keats v. Hugo, supra; Parker v. Foote, or alienees, unless such purposes are covenanted for, are 19 Wend. 315; 2 Sandf. Sup. Ct. Reports, 316; Myers actually or constructively known to such alienees, and 1. Genmell, 10 Barb. 537; Mullen v. Stricker, 19 Ohio are in the nature of contracts or covenants which may St. 135; Haverstick v. Sipe, 33 Penn. St. 368.

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

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

others immediately adjoining that would destroy them 4 The grantor, by such sale, is not estopped from for building purposes, and a one-story house would be

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compelled to remain one story because its dominant owner of the land was entitled to such a crossing as tenement had two. All improvement would be stayed, was suitable under the circumstances, and an order by values would be destroyed, and alienations, except the trial judge directing that the crossing should be under special contracts, rendered dangerous for the constructed under the track was proper. The right of future and ruinous in the past.

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

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

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

SLANDER — MITIGATION OF DAMAGES - REPUTATION Per CURIAM. The learned president of the court

OF PLAINTIFF UNKNOWN TO DEFENDANT NOT PROVbelow has discussed the question involved in this case

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

may show in mitigation of damages that information

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

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

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

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

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

facts which were not kuown to him when he uttered

the slanderous words. Bush v. Prosser, 17 N. Y. 347. CONSTITUTIONAL LAW – STATUTE SHORTENING TERM Such facts have effect by showing that the defendant OF OFFICE OF ALDERMAN VALID – NEW YORK CITY.- was not malicious in the utterance of the disparaging The fact that an act of the Legislature (Laws 1870, words. Cooper v. Barber, 24 Wend. 105; Bisbey v. ch. 137), amending the charter of the city of New Shaw, 12 N. Y. 67; Willover v. Hill, 72 id. 30. The York, shortens the duration of the term of office of an provision of the Code iu respect to this matter (old alderman of said city, so that the term declared by Code, $ 165; new Code, $ 535), was meant to change the statute in force when he was elected to be for two rule of pleading and not the effect or admissibility of years, is made by the amending act a term for five evidence further than the change in form of pleading months, held, not to make such act invalid. The office did so. Spooner v. Keeler, 51 N. Y. 527. The doctrine not being created or regulated by the Constitution, the that a person of disparaged fame is not entitled to the Legislature has entire control over the atter. The same measure of dainages wi one whose character is office was created and its term was fixed by that body, unblemished, and that it is competent to show that by and it could be changed by it. The legislation was such evidence (Earl of Leicester v. Walter, 2 Camph. aimed at the office not at the incumbent. However

- v. Moor, 1 M. & S. 284), is not the rule in viewed, the act was within the lawful exercise of power this State. Root v. King, Cow. 029; Gilman v. by the Legislature, and within the principle that a Lowell, 8 Wend. 579. Judgment affirmed. Hatfield public office is not a grant, and that the right to it does v. Lasher, appellant. Opinion by Folger, C. J. not depend upon or partake of the nature of a contract. [Decided June 1, 1880.] Conner v. Mayor of New York, 2 Sandf. 355, 369; af

PRIVILEGED COMMUNICATION - CRITICISM OF firmed 5 N. Y. 285; Smith v. Mayor of New York, 37 N. Y. 518. Judgment affirmed. Long, appellant, v.

CONDUCT OF PUBLIC OFFICER. - The official act of a Mayor, etc., of New York. Opinion by Danforth, J.

publio functionary may be freely criticised and entire [Decided June 15, 1880.]

freedom of expression used in argument, sarcasm and

ridicule upon the act itself, and then the occasion will RAILROAD — FARM CROSSINGS - CONSTRUCTION MAY excuse every thing but actual malice and evil purpose BE COMPELLED BY ACTION. — Under the statute requir- in the critic. But the occasion will not of itself excuse ing railroad companies to construct and maintain farm an aspersive attack upon the character and motives of crossings, the location of the crossing is to be made the officer, and to be excused the critic must show the somewhat with reference to the necessities and con

truth of what he has uttered of that kind. A person venience of the owner of the farm, and he is entitled in a public office is no less to be protected than one to be reasonably and fairly accommodated. The rail- who is a candidate for public office, and the law of road company, in the exercise of its duty in providing libel must be the same in each case. It is the law of farm crossings, is not vested with any such absolute this State that to accuse a candidate for public office discretion or arbitrary power that its decision is final of an offense is not privileged, though the charge was and conclusive and cannot be reviewed or disturbed. made without evil motive and in the exercise of a poWademan v. Albany & S. R. Co., 51 N. Y. 568. An litical right (Lewis v. Few, 5 Johus. 1), and though the action will lie to compel the company to make a suita- libel relate to a public act of the candidate in his offible crossing. In this case the farm of plaintiff was so cial place. Root v. King. Cow. 613; affirmed, 4 divided by the railroad that it was necessary for the Wend. 113. It cannot be different when the charge is cattle and stock kept on the greater part of the farm against one holding an office. See Edsall v. Brooks, 17 to cross the railroad to obtain water. Held, that the Abb. Pr. 221. So it seems to be in other States. Com

251;

monwealth v. Clapp, 4 Mass. 163; Curtis v. Mussey, 6 defendant did not begin to run at the time of the payGray, 261; Seely v. Blair, Wright (Ohio), 358, 683; ment of the draft, nor until the United States elected Brewer v. Weakley, 2 Overton (Tenn.), 99; Mayrant v. to insist on the defect of title and cancel the credit Richardson, 1 N. & McC. (S. Car.) 347. Judgment given plaintiff on the draft. The case of Cowper v. affirmed. Hamilton v. Eno, appellant. Opinion by Godmond, 9 Bing. 788, 23 E. C. L. 452, is in principle Folger, C. J.

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

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

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

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

granted more than six years before the action was

brought, but was treated by the grantor as an existing ALTERATION — PRESUMPTION AS TO INTERLINEA

annuity within that period. "That question,” said TIONS. - In deciding as to whether an interlineation

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

the cause of action arise? The cause of action comthe rule is that if the interlineation is in itself suspi- prises two steps. The first is the original advance of cious, as, if it appears to be contrary to the probable election to avail himself of the defect in the memorial

the money by the grantee; the second is the grantor's meaning of the instrument as it stood before the insertion of the interlined words; or if it is in a hand

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

until the last step was taken.” In the present case, appears to have been written with different ink-in also, the warranty contemplated two things: First, all such cases, if the court considers the interlineation

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

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

could arise until the second was broken. That cersame handwriting with the original instrument, and tainly did not occur until the United States elected to bears no evidence on its face of having been made sub

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

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

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

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

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

JUNE, 1880. ham v. Ayer, 35 N. H. 351; Beaman v. Russell, 20 Vt. 205. Circuit Minnesota, June, 1880. Cox v. Palmer et

ACKNOWLEDGMENT — BY MARRIED WOMAN – STRONG al. Opinion by McCrary, C. J.

EVIDENCE REQUIRED TO CONTRADICT CERTIFICATE.

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

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

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

signed by another and her mark made. The mortquantity of wheat deposited by several persons, for gagee testified that she acknowledged the execution; which, under the statute of a State which provides there was a certificate of a justice of the peace that that receipts therefor shall be negotiable and evidence she did, and he also testified to the same. This was of the title to the wheat named therein, he issues re

denied by the wife and three or four members of her ceipts to each depositor, fraudulently disposes of part family or relatives. Held, that the testimony did not of the wheat, the receipt holders must share in what

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

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

officer, and his direct and positive testimony upon the ceipt holders can recover at law the whole, nor could subject. He is elected expressly with reference to his any number of such holders, less than the whole num

integrity and other qualifications for taking acknowl. ber, recover possession as against the remainder. This edgments of instruments. It is true that in this matcase must be brought in a court of equity, where all ter he may be corrupt or mistaken, but the presumption the claimants can be heard and decree can be rendered is very strong in his favor. Morris v. Sargent, 18 Iowa, establishing the rights of each with respect to the 90; Van Orman v. McGregor, 23 id. 302; Borland v. property in controversy. It is a controversy which Walrath, 33 id. 133. This is certainly the theory of the cannot be settled at law. Circuit Minnesota, June, law, and any other would have a great tendency to 1850. Dows et al. v. Eckstrone. Opinion by McCrary, unsettle titles and securities. Bailey, Wood & Co. v. C. J.

Landingham. Opinion by Adams, C. J. LIMITATION -- STATUTE

ARBITRATOR - ACTS JUDICIALLY AND IS NOT LIABLE DORSER OF FORGED PAPER BY DRAWEE. — The United

TO CIVIL ACTION FOR WRONGFUL AWARD. — An arbiStates treasurer, in 1867, made a draft on the First trator having jurisdiction to make an award acts judiNational Bank of B. to the order of 0. The name of cially in so doing and is not liable in a civil action for 0. was forged and the check was sent by a third party damages for an award alleged to have been made by to the M. bank for collection. The M. bank indorsed him fraudulently and corruptly. Perhaps 'no branch it and presented it to the drawee by which it was paid of the law has undergone more thorough discussion and forwarded to the United States treasury, and

than the question as to the liability of judges to civil credit therefor allowed the drawee. In 1877 the United actions for their judicial acts. The cases which treat States sued the drawee, the First National Bank of B.,

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

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

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

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

the authorities upon the subject. In a note to Burtional Bank of B. Held, in an action by that bank land v. Parsons, 25 Am. Rep. 694, we have the subagainst the M. bank to recover the amount paid on the stance of a large number of cases, English and judgment, that the statute of limitations as against the American. See, also, Bradley v. Fisher, 13 Wall. 335, Appearing in 3d Federal Reporter.

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

OF-ACTION

AGAINST IN

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