Gambar halaman
PDF
ePub

local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly the decisions of the local tribunals upon such subjects are entitled to and will receive the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed."

In Carpenter v. Providence Washington Ins. Co., 16 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 under our consideration are questions of general commercial law, and depend upon the construction of a contract of insurance, which is by no means local in its character, or regulated by any local policy or customs. Whatever respect therefore the decisions of State tribunals may have on such a subject, and they certainly are entitled to great respect, they cannot conclude the judgment of this court. On the contrary, we are bound to interpret this instrument according to our own opinion of its true intent and objects, aided by all the lights which can be obtained from all external sources whatsoever; and if the result to which we have arrived differs from these learned State courts, we may regret it, but it cannot be permitted to alter our judgment."

In Oates v. National Bank, 100 U. S. 239, we had before us the precise question now under consideration. That was an action by a National bank, located in Alabama, against a citizen of that State, upon a promissory note there executed and negotiated. It was contended that the decision of the Supreme Court of Alabama should be accepted as the law governing the rights of parties. We however held - referring to some of our previous decisions that the Federal courts were not bound by the decisions of the State courts "upon questions of general commercial law. * * * We have already seen that the statutes of Alabama placed under the protection of the commercial law, promissory notes payable in money at a certain designated place, but how far the rights of parties here are affected by the rules and doctrines of that law is for the Federal courts to determine upon their own judgment as to what these rules and doctrines are."

To this doctrine, which received the approval of all the members of this court when first announced, we have, as our decisions show, steadily adhered. We perceive no reason for its modification in any degree whatever. We could not infringe upon it in this case without disturbing or endangering that stability which is essential to be maintained in the rules of commercial law. The decisions of the New York court, which we are asked to follow in determining the rights of parties under a contract there made, are not in exposition of any legislative enactment of that State. They express the opinion of that court, not as to the rights of parties under any law local to that State, but as to their rights under the general commercial law existing throughout the Union, except where it may have been modified or changed by some local statute. It is a law not peculiar to one State, or dependent upon local authority, but one arising out of the usages of the commercial world. Suppose a State court, in a case before it, should determine what were the laws of war as applicable to that and similar cases. The Federal courts, sitting in that State, possessing, it must be conceded, equal power with the State court in the determination of such questions, must, upon the theory of counsel for the plaintiff in error, accept the conclusions of the State court as the true interpretation, for that locality, of the laws of war, and as the 'law' of the State in the sense of the

statute which makes the 'laws of the States rules of decision in trials at common law.' We apprehend, however, that no one would go thus far in asserting the binding force of State decisions upon the courts of the United States when the latter are required, in the discharge of their judical functions, to consider questions of general law, arising in suits to which their jurisdiction extends. To so hold would be to defeat one of the objects for which those courts were established, and introduce infinite confusion in their decisions of such questions. Further elaboration would seem to be unnecessary. The judgment is affirmed.

Mr. Justice Miller dissents.

IMPLIED COVENANT AS TO ANCIENT

LIGHTS.

PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

RENNYSON'S APPEAL.

There is no rule of the English courts in regard to ancient lights which is final and conclusive in Pennsylvania. Defendant owned a house which had been erected more than twenty-one years, containing windows overlooking his land which were in rooms having other windows. He conveyed this house, making no agreement as to the right of light or air through the overlooking windows. Held, that defendant was entitled to erect a structure on his own land shutting off light and air from such windows.

The American doctrine as to light and air requires an express grant or agreement, unless a real and actual necessity exists, to vest a dominant tenement with such right.

BILL

ILL to restrain defendant from erecting a building on his own premises which would shut off windows in plaintiff's house. Defendant at one time owned two lots of land upon one of which was a house containing windows overlooking the other lot. This house had been erected for more than twenty-one years when he sold and conveyed the lot containing it to plaintiff's grantor. There was in the conveyance, or when it was made, no express grant or agreement on the part of defendant in reference to the windows or a right to light through them. There were other windows in the building affording light and air to the rooms in which the windows in question were. The Court of Common Pleas of Montgomery county denied the injunction and dismissed the bill, the following opinion being delivered by Ross, P. J., which was adopted by the Supreme Court:

Churles Hunsicker and E. Coppee Mitchell, Esq., for appellant.

B. M. Boyer, Esq., for appellee.

Ross, P. J. It is certainly true that the question presented by this record has not been definitely ruled in Pennsylvania; and it is equally true that the English authorities have not been recognized or adopted by our court of last resort. The doctrine of ancient lights, and the right to light and air, by prescription, has as yet no recognition in our Commonwealth. Hazlitt v. Powell, 6 Casey, 296; Wheatley v. Baugh, 1 id. 528; Hoy v. Sterrett, 2 W. 331.

In Wheatley v. Baugh, supra, Lewis C. J., says: "The Roman law, founded upon an enlightened consideration of the rights of property, declared that he who in making a new work upon his own estate, uses his right without trespassing either against any law, custom, title or possession which may subject him to any service toward his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without any advantage to himself.

**

He may raise his house as high as he pleases, although by the elevation he should darken the light of his neighbor's house.' ** These principles of the civil law are also the recognized doctrine of the common law. Birg v. Pope, 1 Cro. Eliz. 118; Parker v. Wendell, 19 Wend. 309; 2 id. 331; 18 Pick. 121. It is true that several nisi prius decisions introduced a modern doctrine in relation to ancient lights, in opposition to that held in the reign of Queen Elizabeth by all the judges in the Exchequer Chamber. 1 Cro. Eliz., supra. But the modern doctrine was never recognized by the King's Bench until the decision in 2 Saunders, 175, note 2. As that decision was since the American Revolution, after which the English courts ceased to have authority here, and is an anomaly in the law, the modern doctrine founded upon it has not been received as suitable to the condition of the country. 19 Wend. 309; 2 Watts, 331."

It is clear from this extensively cited authority that the English rule of new adoption comparatively does not prevail in Pennsylvania. Following this case, Lowrie, C. J., says, in Haverstick v. Sipe, 9 Casey, 370: "It has never been considered in this State that a contract for the privilege of light and air, over another man's ground, could be implied from the fact that such a privilege has been long enjoyed, or that on a sale of a house and lot, such a contract would be implied from the fact that such a privilege has been long enjoyed, or that on a sale of a house and lot such a contract could be implied from the character of the improvements on the lot sold and the adjoining lots."

There is, therefore, no rule of the English courts which is final and conclusive in Pennsylvania. The case is to be adjudged therefore either upon general principles applicable to our civilization, and in accordance with general public policy, or to be determined by the light cast by the decisions of our sister Commonwealths.

To adjudicate the question fully the proposition to be adjudged must be distinctly stated and clearly understood.

It is clear that Mr. Rozell, the defendant, is the owner of the servient tenement. The plaintiff purchased with his house and windows overlooking the lot of the defendant. The latter built, closing the windows of the former, and the question presented is, whether a servient tenement can close the windows on one side, and thus deprive the dominant tenant of the light and air which he desires from that side. I think I have stated the question fairly. It is new in Pennsylvania, and it is entitled to a broad ruling. The law should be clear on so important a topic, and this court will endeavor to rule so explicitly that all doubt will be at an end when its conclusion is affirmed or denied by the court of last resort.

The inquiry is by no means free from difficulty. This question has never been distinctly met and ruled in Pennsylvania; and in other States the rulings are conflicting. Haverstick v. Sipe, supra, is the case of a dominant tenant, and while in dictum it is decisive, is, upon the question involved by this record, no more than a dictum. Though largely cited, it does not definitely rule, as contended or as quoted. One case has been ruled in Pennsylvania, by Finletter, J., Kay v. Stallman, 2 Weekly Notes, 643. This stands alone, and is, I have no doubt, well ruled under the special facts of the case, which, when understood, demonstrate that the dominant tenement would have lost its light and air and also its means of access, if the erection upon the servient tenement had been maintained. This case, therefore, involves the question of necessity -an element which the master here has found is not involved by this record.

In other States two cases stand prominently forward. They conflict as to their conclusions; are to a great

extent irreconcilable upon general principles, and are pressed upon the court by the able contending counsel, who have made this case a specialty, and who by their intellectual exertions have awakened a vivid interest in the court. It cannot be denied that Story v. Odin, 12 Mass. 157, rules the point at issue, so far as the opinion of the court is concerned, squarely; for it does declare that the owner of a servient tenement may not interfere with the light and air of the owner of the dominant tenement. This clearly is the force and scope of the opinion, though the special facts of the case would have sustained the judgment on the ground of necessity. If it stood alone I should be governed by it, notwithstanding the wise dictum of Haverstick v. Sipe, supra, and the modifying influences of Keiffer v. Imhoff, 2 Casey, 445; 6 id. 293–299, as well as of Washburn on Easements, 589, 590, and authorities there cited. A careful examination of Maynard v. Escher, 5 Harr. 226 (a case miscited through error in the syllabus), 6 Casey, supra, of 14 Wr. 423, and the authorities cited by Agnew, J., will demonstrate that the broad ruling of Odin v. Story, supra, has not been adopted in Pennsylvania. Still, as has been said, a respectful regard for the Supreme Court of Massachusetts would induce me to follow its ruling, were there no other adjudicated cases. But the same tribunal, at a much later period, in Keats v. Hugo, 115 Mass. 208, adopts a different rule, and one which accords with my own views of this question, as affected by public policy and business interests. I understand this case to overrule Story v. Odin, or, at least, to explain it to such an extent that its right as a precedent fails. Story v. Odin was ruled in 1815 by Jackson, J., and it will be noticed that it is based upon English authorities, and that its reasoning is therefore weakened in Pennsylvania by what is said by our Supreme Court in Wheatley v. Baugh, supra.

Keats v. Hugo was ruled in June, 1874, and beginning with Story v. Odin reviews in analytical detail all the cases adjudicated in Massachusetts and some other States upon this question. This case rules that the easement of light and air is not implied from the grant of a house having windows overlooking land retained by the grantor. It declares that since Story v. Odin and the obiter dicta in 12 Mass. 220, 17 id. 443, 1 Sumner, 492, the cases have been more fully considered on principle, and that the tendency of judicial decisions in Massachusetts and most other States has been to deny the doctrine of acquiring a right to light and air by presumption or implication. Chief Justice Gray adds: "In no judgment of this court since Odin v. Story, has any right of light or air been upheld, except by express grant or agreement." In this most learned and exhaustive opinion the learned judge first notes that Odin v. Story is based upon English authorities; that neither in the opinion of the court nor in the argument of counsel is it suggested that a different rule may be required by the exigencies of a new country, with new wants, under a new and developing system of civilization and improvement, and that the facts of the case themselves did not require a decision upon the general principle. He then reviews the authorities at great length. Among these is Collier v. Pierce, 7 Gray, 18, which has the authority of Chief Justice Shaw to uphold it. I will not pause to cite the other authorities quoted in the opinion. Many of them are used to show the tendency of the courts to hold in this country, that easements of light, air, overhanging projections, are not implied in favor of the dominant as against the servient tenement. The principal case is strong, clear, and most emphatic, and its concluding reasoning is so sound that I cannot forbear quoting it in extenso. "By nature air and light do not flow in definite channels, but are universally diffused. The supposed necessity for their passage in a particular line or direction to any lot of laud is created not by

the relative situation of the lot to the surrounding lands, but by the manner in which that lot has been built upon. The actual enjoyment of the light and air by the owner of the house is upon his land only. He makes no tangible or visible use of the adjoining lands, nor indeed any use of them which can be made the subject of an action by their owner, or which in any way interferes with the latter's enjoyment of light and air upon his own land with any use of those lands in their existing condition. In short, the owner of the adjoining land has submitted to nothing which actually encroached upon his rights, and cannot therefore be presumed to have assented to any such encroachment. The use and enjoyment of the adjoining lands are no more subordinate to those of the house where both are owned by one man, than where the owners are different. The reasons upon which it has been held that no grant of a right to light and air can be implied from any length of continuous enjoyment are equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To imply the right of such a grant in either case without express words would greatly embarrass the improvement of estates, and by reason of the very indefinite character of the right asserted, promote litigation. The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and use of lands, is that no right of this character shall be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed. * *Considering, therefore, that by the preponderance of reason and authority no grant of any right of light and air over adjoining lands is to be implied from the conveyance of a house, we have only to apply this rule to the facts." In 1876, N. Y., Doyle v. Lloyd, per Earl, J., this doctrine, there styled the "American doctrine," as to light and air, is distinctly recognized, the learned judge citing Keats v. Hugo, supra; Parker v. Foote, 19 Wend. 315; 2 Sandf. Sup. Ct. Reports, 316; Myers v. Genmell, 10 Barb. 537; Mullen v. Stricker, 19 Ohio St. 135; Haverstick v. Sipe, 33 Penn. St. 368.

*

Doyle v. Lloyd, supra, it may be parenthetically remarked, involves the distinction which seems to sustain the ruling in Kay v. Stallman, by Finletter, J.

In Turner v. Thompson, 58 Ga. 268, reported in 24 Am. Rep. 497, it was ruled that where land was sold with a house on it having windows overlooking the adjacent land of the grantor, that the latter was not estopped from obstructing the windows, unless they were necessary to give light and air to the house; or, if sufficient light and air could be derived from other windows open, or that might be commonly opened elsewhere in the house. This case was evidently most carefully considered; it reviews the earlier Massachusetts and New York decisions, adopts Keats v. Hugo, and the reasoning of Chief Justice Gray, and of Mitchell v. City of Rome, 49 Ga. 19; 15 Am. Rep. 669. It is worthy of remark, however, that this case limits the general application of Keats v. Hugo as between dominant and servient tenement in one important respect. I think the limitation is wise aud right. It is that an implied easement of light and air will be sustained in case of real necessity. Powell v. Sims, 5 W. V. 1; 13 Am. Rep. 629. Many more cases might be cited, and I have examined every case on the briefs of counsel, save one from Lord Ray- | mond; but enough has been done to justify the conclusions of law which I am about to reach, and which I think should become the law of Pennsylvania:

1. No implication of a grant of the right to light and air arises upon a sale of one of two adjacent lots having a house upon it with windows overlooking the land of the grantor.

2. The grantor, by such sale, is not estopped from

improving his retained lot by building upon it, though his erection darkens the windows of his vendee, and excludes the access of light and air from such windows.

3. That the limitation of these two propositions depends upon the fact as to whether such windows are a real necessity for the enjoyment of the grantee's property. If they be, then the implication of the grant of an easement of light and air will be sustained; if they be not, or can be substituted at a reasonable cost, with a view to the purposes of the dominant tenement, then such implication will be denied and rejected.

4. The American doctrine as to light and air requires an express grant or agreement, unless a real and actual necessity exists, to vest a dominant tenement with such right.

5. The doctrine of ancient lights is not recognized in Pennsylvania.

These principles being determined, and there being no express grant or agreement disclosed in the facts reported by the master, but one question of fact arises upon the case as presented by the master.

Are the windows, closed by the defendant's erection upon his own lot, a real and actual necessity for the purpose of furnishing the necessary light and air to the house of the plaintiff? The master has found they were not, and when it is remembered that the house of the plaintiff is at the corner of a street in an incorporated borough, it is hard to conceive how the master could reach a different conclusion, particularly in the light of the testimony of the witnesses.

One other inquiry remains. Mr. Widdicombe, a former owner of the premises, declares that he bought the lot now owned by the defendants for two purposes, one of which was to obtain more light and ventilation, and that he sold the two lots together to Mr. Wotton as a whole. I cannot see how this can affect the case. The purposes for which a former owner purchased property cannot affect the use and rights of his vendees or alienees, unless such purposes are covenanted for, are actually or constructively known to such alienees, and are in the nature of contracts or covenants which may be enforced between themselves or by others. The deed in fee bars the grantor, and a mere purpose on his part will not control his alienees. Mr. Widdecombe could have changed his purpose and built upon the lot while he was owner of both; his vendee, unrestricted by covenant, may do the same. The bill cannot be sustained on this ground.

The master has elaborated the other questions with sufficient clearness, and all the exceptions to his report are overruled.

In conclusion, it seems proper to add one word. The motion for a preliminary injunction was refused after brief hearing; and though I then formed a clear idea of what the " American doctrine" ought to be, no time was given, nor argument made, to and upon that hearing, which involved the exhaustive research displayed by counsel in the final argument.

I have carefully and patiently considered all the cases cited, and tested the clear and forcible reasoning of counsel by the authorities now within my reach, and have endeavored, I believe successfully, to hear the case de novo. But were there no authorities, I am clearly of opinion that the law should be as I have found it. Public policy requires that in a new and developing country the spirit of improvement, of betterments, should not be changed and handicapped by the law. With the limitation of an implication arising from real and actual necessity, the time honored and equitable maxim of sic utere tuo non alienum lædas, is carefully observed. If the principles of Story v. Odin were to prevail, one with a series of town lots would, after the sale of one, imply a grant as to the two others immediately adjoining that would destroy them for building purposes, and a one-story house would be

compelled to remain one story because its dominant tenement had two. All improvement would be stayed, values would be destroyed, and alienations, except under special contracts, rendered dangerous for the future and ruinous in the past.

Our court of last resort, in Bentz v. Armstrong, 8 W. & S. 40, approved in Young v. Leedom, 67 Penn. St. 351, indicated that the agricultural rule of drainage as between servient and dominant tenements cannot apply in boroughs and incorporated towns. The reason is that no lot could be filled up and graded or be adapted to building purposes if such rule prevailed in towns.

If that conclusion be sound within the scope of the maxim, sic utere tuo, etc., surely the same spirit of public policy would protect lot-holders in boroughs, towns and villages in regard to implied rights of light and air, even though a different rule prevailed in agricultural lands.

But I think this opinion shows that, except in Maryland and New Jersey, a different rule does not prevail.

And now January 25th, 1879, the exceptions to the report of the master are overruled, and the report is confirmed, and it is now ordered that decree be drawn by counsel under the equity rules.

PER CURIAM. The learned president of the court below has discussed the question involved in this case in an opinion so able and exhaustive that it is unnecessary that we should add any thing to it. We affirm this decree upon that opinion.

Decree affirmed and appeal dismissed, at the costs of the appellant.

NEW YORK COURT OF APPEALS ABSTRACT.

CONSTITUTIONAL LAW-STATUTE SHORTENING TERM OF OFFICE OF ALDERMAN VALID-NEW YORK CITY.The fact that an act of the Legislature (Laws 1870, ch. 137), amending the charter of the city of New York, shortens the duration of the term of office of an alderman of said city, so that the term declared by statute in force when he was elected to be for two years, is made by the amending act a term for five months, held, not to make such act invalid. The office not being created or regulated by the Constitution, the Legislature has entire control over the matter. The office was created and its term was fixed by that body, and it could be changed by it. The legislation was aimed at the office not at the incumbent. However viewed, the act was within the lawful exercise of power by the Legislature, and within the principle that a public office is not a grant, and that the right to it does not depend upon or partake of the nature of a contract. Conner v. Mayor of New York, 2 Sandf. 355, 369; affirmed 5 N. Y. 285; Smith v. Mayor of New York, 37 N. Y. 518. Judgment affirmed. Long, appellant, v. Mayor, etc., of New York. Opinion by Danforth, J. [Decided June 15, 1880.]

RAILROAD -FARM CROSSINGS-CONSTRUCTION MAY BE COMPELLED BY ACTION.- Under the statute requiring railroad companies to construct and maintain farm crossings, the location of the crossing is to be made somewhat with reference to the necessities and convenience of the owner of the farm, and he is entitled to be reasonably and fairly accommodated. The railroad company, in the exercise of its duty in providing farm crossings, is not vested with any such absolute discretion or arbitrary power that its decision is final and conclusive and cannot be reviewed or disturbed. Wademan v. Albany & S. R. Co., 51 N. Y. 568. An action will lie to compel the company to make a suitable crossing. In this case the farm of plaintiff was so divided by the railroad that it was necessary for the cattle and stock kept on the greater part of the farm to cross the railroad to obtain water. Held, that the

owner of the land was entitled to such a crossing as was suitable under the circumstances, and an order by the trial judge directing that the crossing should be constructed under the track was proper. The right of a crossing under the track was a necessity, if for sufficient reasons a construction over the surface of the road was not practicable or would not answer the purpose intended. In such a case the right to relief must rest in the sound discretion of the judge and must be entirely equitable and just. Clarke v. Rochester, etc., R. Co., 18 Barb. 350; Wheeler v. Rensselaer, etc., R. Co., 12 id. 227. The proceedings taken to condemn the land of plaintiff and damages paid by reason thereof, held not to preclude plaintiff from maintaining an action to compel the corporation to erect crossings. The proposition that when lands are taken compulsorily, the proceedings for condemnation contemplate and provide for every form of damage or inconvenience to the owner, is not well founded and cannot be upheld. Smith v. New York, etc., R. R. Co., 63 N. Y. 58. Judg ment affirmed. Jones v. Seligman et al., trustees, appellants. Opinion by Miller, J. [Decided June 1, 1880.]

SLANDER -MITIGATION OF DAMAGES - REPUTATION OF PLAINTIFF UNKNOWN TO DEFENDANT NOT PROVABLE.- While a defendant in an action for slander may show in mitigation of damages that information received from others or the existence of facts within his knowledge induced him to believe that the charge made by him was true, he cannot show that the reputation 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 facts which were not known to him when he uttered the slanderous words. Bush v. Prosser, 17 N. Y. 347. Such facts have effect by showing that the defendant was not malicious in the utterance of the disparaging words. Cooper v. Barber, 24 Wend. 105; Bisbey v. Shaw, 12 N. Y. 67; Willover v. Hill, 72 id. 30. The provision of the Code in respect to this matter (old Code, § 165; new Code, § 535), was meant to change the rule of pleading and not the effect or admissibility of evidence further than the change in form of pleading did so. Spooner v. Keeler, 51 N. Y. 527. The doctrine that a person of disparaged fame is not entitled to the same measure of damages with one whose character is unblemished, and that it is competent to show that by such evidence (Earl of Leicester v. Walter, 2 Camph. 251; v. Moor, 1 M. & S. 284), is not the rule in this State. Root v. King, 7 Cow. 629; Gilman v. Lowell, 8 Wend. 579. Judgment affirmed. Hatfield v. Lasher, appellant. Opinion by Folger, C. J. [Decided June 1, 1880.]

[ocr errors]

OF

PRIVILEGED COMMUNICATION — CRITICISM CONDUCT OF PUBLIC OFFICER.-The official act of a public functionary may be freely criticised and entire freedom of expression used in argument, sarcasm and ridicule upon the act itself, and then the occasion will excuse every thing but actual malice and evil purpose in the critic. But the occasion will not of itself excuse an aspersive attack upon the character and motives of the officer, and to be excused the critic must show the truth of what he has uttered of that kind. A person in a public office is no less to be protected than one who is a candidate for public office, aud the law of libel must be the same in each case. It is the law of this State that to accuse a candidate for public office of an offense is not privileged, though the charge was made without evil motive and in the exercise of a political right (Lewis v. Few, 5 Johus. 1), and though the libel relate to a public act of the candidate in his ofcial place. Root v. King, 7 Cow. 613; affirmed, 4 Wend. 113. It cannot be different when the charge is against one holding an office. See Edsall v. Brooks, 17 Abb. Pr. 221. So it seems to be in other States. Com

[blocks in formation]

defendant did not begin to run at the time of the payment of the draft, nor until the United States elected to insist on the defect of title and cancel the credit given plaintiff on the draft. The case of Cowper v. Godmond, 9 Bing. 788, 23 E. C. L. 452, is in principle much like this. There the question was whether a plea of the statute of limitations was a bar to an action for money had and received to recover the consideration money of a void annuity, when the annuity was granted more than six years before the action was brought, but was treated by the grantor as an existing annuity within that period. "That question," said the court, "depends upon another: at what time did the cause of action arise? The cause of action com

TIONS. In deciding as to whether an interlineation in an instrument is an unauthorized alteration or not, the 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 meaning of the instrument as it stood before the insertion of the interlined words; or if it is in a handwriting different from the body of the instrument, or appears to have been written with different ink-in

On

all such cases, if the court considers the interlineation suspicious on its face, the presumption will be that it was an unauthorized alteration after execution. the other hand, if the interlineation appears in the same handwriting with the original instrument, and bears no evidence on its face of having been made subsequent to the execution of the instrument, and especially if it only makes clear what was the evident intention of the parties, the law will presume that it was made in good faith, and before execution. Stoner v. Ellis, 6 Ind. 152; Huntington et al. v. Finch & Co., 3 Ohio St. 445; Nichols v. Johnson, 10 Conn. 192; Burnham v. Ayer, 35 N. H. 351; Beaman v. Russell, 20 Vt. 205.

Circuit Minnesota, June, 1880. Cox v. Palmer el al. Opinion by McCrary, C. J.

EQUITABLE ACTION-AGAINST WAREHOUSEMAN BY HOLDER OF NEGOTIABLE WAREHOUSE RECEIPT-PAR

TIES. When a warehouseman, having in store a quantity of wheat deposited by several persons, for which, under the statute of a State which provides that receipts therefor shall be negotiable and evidence of the title to the wheat named therein, he issues receipts to each depositor, fraudulently disposes of part of the wheat, the receipt holders must share in what remains according to the equitable interest of each, to be ascertained by an accounting. No one of such receipt holders can recover at law the whole, nor could any number of such holders, less than the whole number, recover possession as against the remainder. This case must be brought in a court of equity, where all the claimants can be heard and decree can be rendered establishing the rights of each with respect to the property in controversy. It is a controversy which cannot be settled at law. Circuit Minnesota, June, 1880. Dows et al. v. Eckstrone. Opinion by McCrary, C. J.

LIMITATION -STATUTE OF ACTION AGAINST INDORSER OF FORGED PAPER BY DRAWEE.-The United States treasurer, in 1867, made a draft on the First National Bank of B. to the order of O. The name of

O. was forged and the check was sent by a third party to the M. bank for collection. The M. bank indorsed it and presented it to the drawee by which it was paid and forwarded to the United States treasury, and credit therefor allowed the drawee. In 1877 the United States sued the drawee, the First National Bank of B., for the amount of the draft, on the ground that the indorsement was forged, of which suit the M. bank was notified and employed counsel in defending the suit. Judgment was rendered against the First National Bank of B. Held, in an action by that bank against the M. bank to recover the amount paid on the judgment, that the statute of limitations as against the Appearing in 3d Federal Reporter.

the money by the grantee; the second is the grantor's election to avail himself of the defect in the memorial of the annuity. The cause of action was not complete until the last step was taken." In the present case, also, the warranty contemplated two things: First, the giving of the credit by the United States; and, second, its continuance. As the first requirement of this undertaking was complied with, no right of action could arise until the second was broken. That cer

tainly did not occur until the United States elected to take back the credit it had given. Circuit Maryland, June 30, 1880. Merchants' National Bank of Baltimore v. First National Bank of Baltimore. Opinion by Waite, C. J.

IOWA SUPREME COURT ABSTRACT.

JUNE, 1880.

ACKNOWLEDGMENT - BY MARRIED WOMAN-STRONG EVIDENCE REQUIRED TO CONTRADICT CERTIFICATE. In this case the question was whether a married woman joined in the execution of a mortgage executed by her husband. She could not write and her name was signed by another and her mark made. The mortgagee testified that she acknowledged the execution; there was a certificate of a justice of the peace that she did, and he also testified to the same. This was denied by the wife and three or four members of her family or relatives. Held, that the testimony did not overcome the certificate of the justice. In such a case great weight should be given to the certificate of the officer, and his direct and positive testimony upon the subject. He is elected expressly with reference to his integrity and other qualifications for taking acknowledgments of instruments. It is true that in this matter he may be corrupt or mistaken, but the presumption is very strong in his favor. Morris v. Sargent, 18 Iowa, 90; Van Orman v. McGregor, 23 id. 302; Borland v. Walrath, 33 id. 133. This is certainly the theory of the law, and any other would have a great tendency to unsettle titles and securities. Bailey, Wood & Co. v. Landingham. Opinion by Adams, C. J.

ARBITRATOR — ACTS JUDICIALLY AND IS NOT LIABLE TO CIVIL ACTION FOR WRONGFUL AWARD. - An arbitrator having jurisdiction to make an award acts judicially in so doing and is not liable in a civil action for damages for an award alleged to have been made by of the law has undergone more thorough discussion him fraudulently and corruptly. Perhaps no branch than the question as to the liability of judges to civil actions for their judicial acts. The cases which treat of the subject are so numerous, both in England and in this country, that it is impracticable to do more than to refer to them generally. In the case of Yates v. Lansing, 5 Johns. 28, there is an elaborate review of the authorities upon the subject. In a note to Burland v. Parsons, 25 Am. Rep. 694, we have the substance of a large number of cases, English and American. See, also, Bradley v. Fisher, 13 Wall. 335, and in the late case of Lange v. Benedict, 73 N. Y. 12,

« SebelumnyaLanjutkan »