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Elves v.

good consideration. 3d. It must be reasonable; that tion as to time is indefinite or perpetual will not of is, it should afford only a fair protection to the inter- itself avoid the contract if it is limited as to place, ests of the party in whose favor it is made, and must and is reasonable and proper in all other respects. not be so large in its operation as to iuterfere with the Hitchcock v. Coker, 6 Ad. & El. 447; Bun v. Guy, 4 interests of the public.

East, 190; Chesman v. Nainby, 2 Strange, 739; S. C., 2 The motion does not disclose that it was claimed in Ld. Raym. 1456; Wilkins v. Evans, 3 Younge & Jerv. the court below that the contract was lacking in any 318; Mallen v. May, 11 Mees. & Wels. 652; Hastings v. of these elements, but only that it was too indefinite Whitley, 2 Exch. 611; Story on Sales (1st ed.), $ 493 ; and uncertain in its language to be enforced. The re- Pierce v. Woodward, 6 Pick. 206; Bowser v. Bliss, 7 spondent admits the making of the contract and full Blackf. 344. performance on the part of the petitioner, but con- It is said that the petitioner may cease to practice cedes that he has paid no attention to it whatever, dentistry, and that in such case the respondent ought except to keep the money paid uuder it. This is not not to remain under a perpetual injunction. The very creditable, to say the least, and the excuse given court in its discretion might in the decree have anticidoes not at all relieve him in a moral point of view. pated such a contingency and provided for it, but the He says, in effect, that inasmuch as he did not under- decree is not invalid on account of such omission, any stand, by the language which he used in the contract, more than the contract is. where the circle with its ten-mile radius would be The rule as to the contract is, that if it is reasonable drawn, he will locate within the town of Litchfield, when made, subsequent circumstances, such as the fact where he can do the other party the most injury, and of the covenantee ceasing business, so as no longer appropriate to himself the good-will of the business he to need the protection, do not affect its operation. had sold, knowing absolutely such conduct to be con

Crofts, 10 C. B. 241. trary even to his own understanding of the coutract. A new trial is not advised. Such a position might well excuse a court of equity from giving any construction to the contract merely for his future guidance. But he says that he stands

WHEN DEMAND BEFORE ACTION FOR CONsimply on his legal rights, and he insists that the con

VERSION NOT NECESSARY. tract by the rules of law is too uncertain and indefinite, both as to territory and time, to be binding. This

CALIFORNIA SUPREME COURT, AUGUST 31, 1880. question is involved in the motion for a new trial, and calls for a decision; and with a view to prevent future

HARPENDING V. MYERS. litigation between the parties, we will discuss it briefly. Where one in good faith purchases personal property from

The counsel for the respondeut ask in their brief, one having no authority to dispose of the same, an ac“How can the court determine under this contract the tion to recover such property may be commenced by the territory from which the respondent is excluded from true owner against the purchaser without demand, and practicing dentistry by the provision, 'within a radius

the statute begins to run from the time of the purchase. of ten miles from Litchfield?' At what point is the CTION to recover possession of personal property. radius to be taken? From the center of the town of

AO

The facts appear in the opinion. Litchfield? Or is it to be taken from the extreme

Warren Olney, for appellant. boundaries of the town?” The construction suggested

J. C. Bates and C. L. Ackerman, for respondents. by the last interrogatory is manifestly unnatural and unreasonable. The large extent and irregularity of SHARPSTEIN, J. By the findings of fact, which are the boundary lines of the town would extend the pro- conceded to be correct, it appears that on the 5th day hibited territory much further from the respondent's of April, 1873, the plaintiff deposited with one Baux, former place of business at certain points than at at San Francisco, certain jewelry. Iu about one month others, without any reason for it founded on the extent thereafter the plaintiff, being about to leave San Franof the good-will of the business iu reference to which cisco and go to St. Louis, demanded her jewelry of it is to be presumed the limits were prescribed. And said Baux; and he, pretending that his father had the besides, the term “radius,” which means “a right line key to the safe, induced her to leave without ber jewdrawn or extending from the center of a circle to its elry, promising to forward it by express to her at St. periphery,” is wholly inapplicable to such a construc- Louis, so that it would reach there nearly as soon as tion. But in making such a contract the parties would she would. In fact, however, he had then pawned and naturally take tbeir stand at the place where the busi- | delivered a part of said jewelry to the defendants, who ness to be sold had been carried on, and would fix the were pawubrokers, and on the 17th day of May, 1873, utmost limits of the territory at equal distance from he pawned and delivered a part of the residue of said that point in every direction, and as far at least as they jewelry to them, and on the following 9th of July he supposed the good-will might attract customers. Now, pawned and delivered the entire residue thereof to the contract is dated at “Litchfield,” where the post- them. Baux did not redeem the pledge, and on the office of that name was located, and the ten miles are 6th day of June, 1874, defendants sold it in the manner to be computed from “said Litchfield,” referring to provided by law. On the 24th of July, 1876, plaintiff the place where it was dated. It is also to be remarked demanded said jewelry of the defendants, or its value, that the precise point in the village of Litchfield where and said demand not being complied with, she comthe business referred to had been carried on by the menced this action. She alleges, among other things, respondent is mentioned, namely, “in the rooms over that the defendants, on the 6th day of June, 1874, unDr, Beckwith's drug store."

lawfully converted and disposed of said jewelry, and Now, if we put ourselves in the position of the par- then alleges that on the 24th day of July, 1876, she deties it would seem that the language which they used manded it as above stated. The judgment demanded is capable of very easy and definite application, and is for the possession of the property, or, if that cannot thus construed the contract means ten miles in every be had, for the value of it. direction from the center of the village of Litchfield. One of the allegations of the answer is that the cause

The only remaining inquiry is, whether any more of action did not arise or accrue within three years definite limitation as to time is required. The con- before the commencement of the action, and that it is tract is silent in respect to the time of its duration. barred by subdivision 3 of section 338 of the Code of But there is a well-settled distinction between a general Civil Procedure. The court reudered judgment in restriction as to place and a general restriction as to favor of the defendant, and from that judgment the time. The mere fact that the duration of the restrio- ' plaintiff appeals to this court.

The sole question which we have to consider is erty for a special purpose sells it without right, the whether the action was commenced within three years purchaser does not thereby acquire a lawful title or after the right of action accrued. All the cases possession. Iu the case before us the defendant came agree in this, that a right of action accrues in favor of honestly by the horse, but he did not receive possession the owner of goods as soon as they are wrongfully of him from one authorized to give it, and is theretaken from his possession, or wrongfully converted by for liable civiliter to the true owner for the taking as one who rightfully came into the possession of them. well as for the detention.'" No right of action accrued against the defendants in Stanley v. Gaylord, supra, was a case where the bailee this case until they took the plaintiff's property with- bad mortgaged, as security for his own debt, the propout her consent, and according to the New York cases erty of bis bailor, and the mortgagee took possession of and decisions in some of the other States, no right of it under his mortgage, and the bailor sued the mortaction, in the absence of a demand, accrued until they gagee in trespass. sold it. So far as we are advised, neither that nor the Iu Galvin v. Bacon, supra, the plaintiff being the opposite doctrine has ever been expressly adopted in owner of a horse, bailed him to A for use for a limited this State. We are therefore at liberty to adopt the period, under the expectation of a purchase by the latdoctrine which we think to be the more reasonable. ter. During the time A, for a valuable consideration

The reason of the New York rule, as stated by Mr. and without notice, sold the horse to B, and he in like Justice Bronson in Barrett v. Warren, 6 Hill, 348, is manuer to the defendant; and the court held that no that “a man who innocently purchases property, sup- previous demand was necessary to enable the owner to posing that he should acquire a good title, ought not be maintain replevin against the last purchaser. In Mich. subjected to an action until he has an opportunity to igan and Vermont the same doctrine prevails. restore the goods to the true owner.” In this case the In WeUs v. Raylan, 1 Swan (Tenn.), 501, it is distinctly reason of the rule ceases, because if the defendants had held that where the possession of property is obtained pot supposed that Baux bad a good title to the prop- from one who had no rigbt to transfer it, a right of acerty, a cause of action would have accrued in favor of tion by the owner against the transferee accrues as the plaintiff at the moment of their obtaining posses- soon as the latter acquires possession of it; that the sion of it, and consequently would have been barred bare taking of possession under such circumstances by the Statute of Limitations when this action was constitutes a new conversion on the part of the person commenced. It clearly was not the intention of the takiug it, and that from the time of the comunission of courts which laid down or adopted that rule to place that act the statute will commence running. an innocent bona fide purchaser in a worse condition It has been held in this State that the exemption than an original wrong-doer would occupy, as it obvi- from being sued without previous demand does not ously would when applied to a case like that now be- apply to sheriffs who seize upon execution property in fore us.

the possession of, but not belonging to, the execution Of tho New York doctrino Mr. Justice Cowen, in debtor. Sedly v. Hays, 1 Cal. 160; Boulware v. CradBarrett v. Warren, supra, says: “I will not, however, dock, 30 id. 190; Wellman v. English, 38 id. 583. Nor deny that an exception in favor of the taker, where he to an execution debtor who purchases at sheriff's sale is a bona fide purchaser from the wrong-doer, has found property so seized. Sargent v. Sterm, 23 id. 359. Nor its way into the books; nor that however discordant to a purchaser for value who had notice, before he reit be with established principles, it may at least in this moved the property, sufficient to put him upon inquiry State have become too inveterate to be displaced.” as to the true ownership, even though such notice was Again, in the same opinion he says: “The result is, not received until payment of the purchase-price. that no English adjudication creates an exception in Scribner v. Martin, 11 id. 203. None of these cases favor of one who purchases from the tortious-taker of conflict with any decision made elsewhere upon the another's property.” He further expresses the opinion points involved in them, so far as we are advised; and that the New York rule originated in a misconception they are not cited because of any bearing that they are of the English cases upon the subject. In this view of supposed to have upon the point now under considerathe matter he is sustained by Mr. Justice Metcalf, tion, but merely for the purpose of showing that the whose opinion was concurred in bs Justices Shaw and question under consideration is an open one in this Dewey in Stanley v. Guylord, 1 Cush. 536, who, in re- State. ferring to the remarks of Mr. Justice Cowen that the It will be observed that wherever the doctrine of exrule which created an exception in favor of a bona fide emption prevails it is strictly limited to what are purchaser might have become too inveterate in New termed bona fide purchasers for value and without York to be displaced, says: We are not embarrassed notice. by any decisions in this Commonwealth which are dis- We are unable to perceive, however, that a person cordant with established principles; and therefore we can ever be considered a bona fide purchaser of goods deem ourselves not only warranted, but bound, to de- from one who has no right to sell in a case where the cide this case according to those principles which we rule caveat emptor applies. The law imputes notice to find well stated by Weston, J., in Galvin v. Bacon, 2 him. Under that rule he is not only put upon inquiry, Fairf. 30-1, as follows: "Whoever takes the property of but he is conclusively presumed to have ascertained another without his assent, express or implied, or the true ownership of the property before purchasing without the assent of some one authorized to act in it. If he has notice in fact, no demand upon him for his behalf, takes it, in the eye of the law, tortiously. the property is necessary before commencing the aoHis possession is not lawful against the true owner. tion to recover it. If he is chargeable with construotThat is unlawful which is uot justified or warranted by ive notice, the result in all other cases is the same. But law; and of this character may be some acts which are as we have before stated, the operation of a rule wbich not attended with any moral turpitude. A party hon- exempts a bona fide purchaser from being sued until estly and fairly, and for a valuable consideration, buys after demand is made is, in all cases to which it has goods from one who has stolen them. He acquires no been applied, favorable to the bona fide purchaser, and rights under his purchase. The guilty party had no is claimed to have been devised for his protection. If rightful possession against the true owner, and he applied to this case, its operation is exactly the reverse could convey none to another. The purchaser is not of that. To hold that the statute did not commence liable to be charged criminally, because innocent of running in favor of these defendants from the time of any intentional wrong; but the owner may avail him- the delivery of the goods to them, because at that self against him of all civil remedies provided by law time they were conscious of no wrong-doing, which it for the protection of property. If the bailee of prop- they had been conscious of would have set the statute in motion in their favor, involves an absurdity. And with the timber on and the value after it was taken when oue construction of the law will lead to absurd off. Van Deusen v. Young, 24 N. Y. 9. See, also, consequences, and another will not, it is the duty of Easterbrook v. Erie Railway Co., 51 Barb. 94. Tho the court to adopt the latter. One construction of the cases of Whitlock v. New York Cent. R. R. Co., 36 Barb. law in this case would have set the statute in motion

641; Cook v. Brockway, 21 id. 331, do uot conflict with at the time of the delivery of the goods from Baux to this rule. (4) In a case where tho damages are such as defendants if they had known that he was not the would necessarily and naturally result from the inowner of them; but as they did not know that fact, jury complained of, it is not necessary that they the statute did not commence running until they sold should be specially averred to authorize a recovery. or otherwise couverted the goods. That is more favor- Jutte v. Hughes, 67 N. Y. 267; Vaudershee v. Newton, able to the mala fide than to the bona fide purchaser. 4 id. 132. Judgment affirmed. Argotsinger v. Vines But that must be the obvious result if we apply to this et al., appellants. Opinion by Miller, J. case the rule contended for by the appellant. We are [Decided Oct. 12, 1880.] unwilling to give a conscious wrong-doer any advantage over a constructive wrong-doer. And the rule CRIMINAL LAW - RECEIVING STOLEN GOODS-MARwhich we shall apply in this case will simply have the RIED WOMAN - MAY BE CONVICTED WHEN ACTIVE IN effect to put them on an equal footing. We shall hold, CRIME-JOINT INDICTMENT OF HUSBAND AND WIFE in accordance with the rule adopted in Maine, Michi- PRESUMPTION FROM POSSESSION. — Defendants, who gan, Vermont and Massachusetts, that the defendants were husband and wife, were jointly indicted for rehaving acquired the possession of plaintiff's property ceiving stolen goods, knowing them to bo stolen. The by and through the tortious act of Baux and not other goods, which were stolen from R., were found in a wise, such possession was tortious from its commence- room of which defendants had control, adjoining the ment, and constituted a conversion of the plaintiff's room occupied by defendants and communicating with property, for which she might at any time within three it by a door. In her husband's absence the wife, by years thereafter have maintained an action without words and active opposition, attempted to prevent the previously making any demand, and that the omission searching officers from entering the room where the to commence an action within that time constituted a goods were. At the trial the judge instructed the jury bar to tbis action.

that in law the wife was presumed to be under the conJudgment affirmed.

trol of tho husband and to havo been driven to tho Myrick and McKee, JJ., dissented.

offense by him, and consequently should be acquitted, unless the evidence was, in their judgment, sufficient

to overcome or rebut the presumption. Held, that NEW YORK COURT OF APPEALS ABSTRACT. there was no error in thus submitting the question of

the wife's guilt to tho jury. Marriage is no protection ADVERSE POSSESSION - OF WOODLAND - WHAT SUF- to the wifo against conviction for a crimo where she is FICIENT EJECTMENT NOT REQUIRED TO OBTAIN shown to have taken an activo and willing art in its RIGHTS FROM TRESPASSER - RULE OF DAMAGES FOR commission. 2 Lewin's C. C. 229; State v. Nelson, 29 TRESPASS IN CUTTING TIMBER. - (1) In an action for Me. 329; Cassin v. Delany, 38 N. Y. 178; Seiler v. damages for cutting timber from eleven acres of People, 77 id. 411. It follows that when the husband land claimed by plaintiff, plaintiff proved title to a is guilty of the offense charged, and the wife also, and farm of 122 acres, of which 22 acres (including tho 11) coercion is shown not to exist and therefore each is liawere woodland. The chain of titlo commenced in ble to punishment, they may be jointly indicted and 1847; plaintiff*s father took a deed in 1855, and by convicted; for in such a case the wife acts in her own descent and transfer from the widow and heirs of his capacity as one able to commit crime, and of her own father, he acquired title. The woodland was contigu- accord and intent, as much so as would an unmarried ous to the cultivated land, and was not fenced or in- person, and to that effect aro the authorities. King v. closed, which was in accordance with tho custom of Chedwick, 1 Kible, 575; King v. Thomas, Cas. temp. the country. Wood was cut by plaiutiff or his prede- Hardwicke, 278; Rex v. Cross, 1 Raym. 711; Rex cessors in title, from the 22 aores, for fuel, fencing and v. Stapleton, 1 Crawf. & Dix's C. R. 163; State v, boards, every year since 1847, whenever required, and Bentz, 11 Mo. 27; King v. Morris, 2 Leach (4th appropriated for the benefit of the farm. Defendaut ed.), 1096; Reg. v. Ingrabam, 1 Salk. 384; 1 Russ elaimed title through a deed to ono W. from the State, on Crimes, 20. In Commonwealth v. Trimmer, 1 in 1829, and a conveyance by W.'s heirs in 1877, to Mass. 476, the contrary was held, but in Commonone M., who the same year conveyed to defendant, wealth v. Murphy, 2 Gray, 512, the court held that who cut the wood that year. It was in evidence that wife may be iudicted jointly with her husband," and W. at one time lived on a farm contiguous to the 11 say “the authorities on this point, notwithstanding acres and to which they belonged. There was no Commonwealth v. Trimmer, are too numerous and proof that W. was ever in possession of the 11 acres or decisivo to be withstood. Whether sho cau be conmade any claim to them, and it was shown that he victed separately or jointly with him is a question to died some forty years previous to 1877. For thirty be determined by direct evidenco or by legal presumpyears no one but plaintiff or his predecessors cut wooc tions conceruing the freedom of her action or the from the land, and they paid taxes on tho entire farm coercion of her husband.” Barb. Cr. Law, 250; Wagduring that time. Held, sufficient to establish title by goner v. Bill, 18 Barb. 321; State v. Parkerson, 1 Strobh. adverse possession in plaintiff, and the existence of a 169; Penny baker v. State, 2 Blackf.' 484. Tho line of marked trees through the wood lot would not court charged that “the possession of stolen goods establish a claim against plaintiff's title. (2) Plaintiff immediately after the larceny, if under peculiar and was not bound to resort to ejectment or any other suspicious circumstances, when there is evidence tendremedy to vindicate his rights, but was entitled to ing to show that some other persons stole the property, maintain an action for trespass. Machin v. Geortner, such possession not being satisfactorily explained, 14 Wend. 239. (3) The trial court held the rule of would warrant tho jury in convicting the accused of damages in such action to be the difference in the receiving stolen goods knowing them to have been value of the farm with the timber on and the value stolen." Held, not error. Rex v. Matthews, 1 Den. after it was cut. Held no error. In an action to re- C. C. 696. Judgment affirmed. Goldstein et al., plaintcover damages for such an injury done to the inherit- iffs in error, v. People of New York. Opiniou by Danance, it has been held that it is competent for a wit- forth, J. ness to give his opinion as to the value of the farm [Decided Sept. 28, 1880.)

LIABLE

TO

NEGLIGENCE - OBJECTS

FRIGHTEN ment is to be implied from the law itself. Stuyvesant HORSES - NOTICE TO CORPORATION. – Plaintiff's horse v. Mayor of New York, 7 Cow. 606; Martin v. Mott, 12 was frightened by a pile of stones, placed near the Wheat. 19; Rector of Trinity v. Stiggins, 1 Robt. l. travelled part of a turnpike, under the direction of Judgment affirmed. Cronins, plaintiff in error, v. the turnpike company, for the purpose of repairing a People of New York. Opinion by Finch, J. bridge, and sprang in such a way as to injure himself (Decided Oct. 12, 1880.] and the wagon to which he was attached, and to injure plaintiff, who was driving. There was evidence show

CONNECTICUT SUPREME COURT OF ERRORS ing that otoer horses had been frightened by the same pile. Held, tbat if the pile had a tendency to frighten

ABSTRACT.* horses and was of a dangerous character, although not technically a defect or obstruction in tho highway, the CONSIDERATION - COMPOUNDING A CRIME — NEED turnpike company could be made liable for damages NOT BE FELONY TO AVOID CONTRACT. - A man having caused to travellers thereby, after notice of its charac- been arrested and lodged in jail upon a criminal proseter and neglect to remove the same. Waterford, etc.,

cution against himself and his son, for obtaining goods T. Co. v. People, 9 Barb. 161; Wendell v. Mayor of under false pretenses, his wife agreed with the parties Troy, 39 id. 329; Davis v. City of Bavgor, 42 Me. 522; from whom the goods were obtained and who had proDimmick v. Town of Suffield, 30 Conn. 129; Winship cured the prosecution, that she would give a note with v. Enfield, 42 N. II. 199; Bartlett v. Hooksett, 48 id. her husband for the value of the goods and for the 18; Moore v. Town of Richmond, 41 Vt. 435; Shearm

costs made, and secure it by a mortgage of her real & R. on Neg. 445-466. Notice to a secretary of the estate, if they would procure the abandonment of the company held sufficient. Judgment reversed on ground criminal proceeding and the release of her husband. of admission in evidence of conversation between

The note and mortgage were given and the prosecution witness and third person. Eggleston v. President, etc.,

was withdrawn. Held, on a bill to foreclose the mortof Columbia Turnpike. Road, appellants. Opinion by gage, (1) that a court of equity would not enforce a Earl, J.

contract of suretyship so procured; (2) that the pote [Decided October 5, 1880.]

was void as being upon an illegal consideration. Town

of Sharon v. Gager, 46 Conn. 189; Williams v. Bayley, MUNICIPAL ORDINANCE EXCLUDING SLAUGHTER- L. R., 1 H. L. Eng. & Ir. App. 200; Davies v. Lond. HOUSES FROM FIXED AREA IN CITY - STATUTORY CON- eto., Ins. Co., L. R., 8 Ch. 469. To render such an STRUCTION - POWER TO REGULATE INCLUDES POWER agreement void it is not necessary that the crime comTO PROHIBIT - REASON FOR STATUTE NEED NOT BE pounded should be a felong. It is enough if it be a SET FORTH.--(1) By the amended charter of the city public offense. All the authorities hold that an agreeof Albany (Laws 1870, chap.) the common council ment to compound a felony will not be enforced, and is authorized to enact ordinances, among other things that any security based upon such a consideration is "to regulate the erection, use and continuance of void. But as to misdemeanors a distinction has been slaughter-houses.” Held, that under this the com- made. Some authorities hold that those misdemeanmon council could pass an ordinance forbidding the ors which are personal in their nature between the slaughtering of cattle within prescribed limits within parties, such as bastardy and a common assault, unacthe city specifically named, and such an ordinance companied with riot or intent to kill, may be comprocould not be assailed on the ground that authority to mised. Maurer v. Mitchell, 9 Watts & Serg. 69; Rob“ regulate” slaughter-houses could not be construed inson v. Crenshaw, 2 Stew. & Port. 276; Price v. to permit a total prohibition of them in particular Summers, 2 Southard, 578; Holcomb v. Stimpson, 8 Vt. areas or localities. The use of the word “ regulate” 141. The last case was a prosecution for bastardy, in the statute is not confined merely to the manner in and the decision was placed on the ground that it was which the business of slaughtering animals is carried a civil suit. But where the offense is in whole or in on. To regulate implies a power of restriction and re- part of a public nature, nearly all the authorities hold straint. It is the piain purpose of the statute to give that no agreement to stifle a public prosecution for it to the common council the right to fix and determine can be valid. Fay v. Oatley, 6 Wis. 42; Commonthe limits and localities within which new slaughter- wealth v. Johnson, 3 Cush. 454; Hinesborough v. Sumhouses may be erected and the areas from which they ner, 9 Vt. 23; Boweni v. Buck, 28 id. 308; Shaw v. may be excluded, and to prohibit their continuance Reed, 30 Me. 105; Shaw v. Spooner, 9 N. H. 197; Clark whenever and wherever they become sources of danger v. Ricker, 14 id. 44; Kimbrough v. Lane, 11 Bush (Ky.), to the health and comfort of the community. In Vil- 550; Peed v. McKee, 42 lowa, 649; Buck v. First NaJage of Buffalo v. Webster, 10 Wend. 100, a similar tional Bank, 27 Mich. 293; Gardner v. Maxey, 9 B. ordinance was assailed as being in restraint of trade, Monroe, 90; Kier v. Lebman, 6 C. B. 308. In the last and it was held that a provision of the ordinance that

case cited it

said: “If the matter were res integra ,'meat shall not be sold in a particular place is good, we should have no doubt in holding that any compronot being a restraint of the right to sell meat but a mise of any misdemeanor or any public offense was an regulation of that right.” The same authority held to illegal consideration to support a promise, and it is dispose of an objection that the ordinance in question remarkable what very little authority, consisting was void as being in restraint of trade following in that rather of dicta than decision, there is to support such respect. Bush v. Seabury, 8 Jobus. 418; Purce v. consideratious." McMahon v. Smith. Opinion by Bertram, Cowp. 209, and to justify the principle of the Loomis, J. latter authorities in which the exercise of such powers

MUNICIPAL CORPORATION - LIMIT OF DUTY AS TO by boards of health have been sustained. Metropolitan

HIGHWAYS-EVIDENCE-COMMUNICATIONS OF PATIENT Bd. of Health v. Heister, 37 N. Y. 662; Polinsky v. People, 73 id. 65. (2) An objection was raised to the

TO PHYSICIAN. - (1) The limit of duty on the part of ordinance that it punished the prohibited acts “with

a town, with regard to the condition of its highways,

falls far short of making them absolutely safe under out pretense or any form of proof that they were in

all circumstances, even for those who use them propjurious to the well being of the town, or that prudence required its passage." Held, not tenable. Neither in

erly. Aud where the use is one that reasonable care the ordinance itself, nor in the indictment under it, is

and prudence could never bave anticipated, there is no it necessary to explain the reasons for its enactment.

duty on the town at all in reference to it. And it It is of the nature of legislative bodies to judge for

makes no difference that the injury in such a case is themselves, and the fact and the exercise of that judg

* To appear in 47 Connecticut Reports.

the result of defects in a highway for which a town it may be regarded as evidence of malice in the origiwould be responsible in case of injury to individuals nal speaking of tho words, and may thus tend indiin the lawful and proper use of it. In Gregory v. rectly to increase the damages, but it is not of itself a Adams, 44 Gray, 242, it is said: “This is the measure cause for which damages may be directly assessed. and extent of tho obligation of towns in reference to Williams v. Miner, 19 Conn. 472; Swift v. Dickerman, the support and maintenance of public highways. 31 id. 289. Ward v. Dick. Opinion by Granger, J. They are not required to make preparations for the safety or convenience of those who undertake to use

CALIFORNIA SUPREME COURT ABSTRACT. those ways in an unusual or extraordinary manner, involving peculiar and special peril and danger,

COMMON CARRIER - LIEN FOR FREIGHT ON GOODS whether it be in respect to the kind or character of

SHIPPED BY CONSIGNEE OF OWNER - WHEN LIEN ATanimals led or driven, or the maguitude or construc

TACHES. - A firm which was engaged in buying and tion of carriages used, or the bulk or weight of prop- selling wheat and in chartering vessels to transport the erty transported. And if any person undertakes to

same to Europe, to be there sold by the master for tho use or travel upon a public highway in an unusual or

benefit of the firm, and who also acted as agents for extraordinary manner, or with animals, vehicles or

farmers for shipping wheat, which was known to defreight not suitable or adapted to a way opened and

fendant, chartered defendant's ship to take wheat to prepared for the public use in tho common intercourse Europe. The ship proceeded to the port of V. and of society and in the transaction of usual and ordi- took on board wheat belonging to plaintiff, which had nary affairs of business, ho then takes every possible been consigned by him to the firm at that place. The risk of loss and damage upon himself; and he can have

wheat was shipped in the name of the firm and deno remedy against the town to recover recompense for fendant received it not knowing that it belonged to injuries sustained, although they be the direct result of defects and imperfections in a way for which it and broke the charter party by not completing the

any one else. Afterward the firm became insolveut would be responsible in case of injury to individuals loading of the ship. Held, that defendant had a lien in the lawful and proper use of it.” See, also, Blodgett

on the wheat for his freight and that plaintiff could F. City of Boston, 8 Allen, 237, and cases there refer

not retake the wheat from defendant upon payment red to. (2) The plaintiff, who was riding upon a load which broke through a town bridge, had received a

of tho expense of loading and unloading the same.

The firm had authority, when plaintiff put his wheat personal injury when it broke through. In an action against the town for such injury, held, that his state- iff was chargeable with knowledge that ho had placed

in its hands, to ship it in their own names, and plaintments to a physician who attended upon him for the his property in the hands of his agents for tho very purpose of giving him treatment, with regard to the

purpose of enabling them to make such contracts as character and seat of his sufferings, were admissible. I might bo necessary and proper for transmitting it to Barber v. Merriam, 11 Allen, 322; Howo v. Plainfield, Europe for sale on his account. He knew that in ext41 N. H. 135; Perkins v. Concord R. R. Co., 44 id. 223;cution of tho agency they had to make contracts to Kent v. Town of Lincoln, 3.2 Vt. 591; Caldwell v. Mur

which the law would attach a lien upon the property. phy, 1 Kern, 416; Denton v. Tho State, 1 Swan, 279.

When, therefore, tho factors shipped the wheat in Wilson v. Toun of Granby. Opiuiou by Loomis, J.

their own names, they were the only persons to whom NEGLIGENCE - OBSTRUCTING

the defendant could look, and with whom he dealt in ARTIFICIAL INCREASE IN VOLUME OF STREAM BY ACT receiving it. In the absence of knowledge that it beOF ANOTHER. — The defendant had constructed a cov- longed to tbe plaintiff, they, as shippers, were to him, ered channel for a small brook that ran through his in contemplatiou of law, tho owners. From them and premises in the city of N. This channel proved in- for them ho received it as a common carrier for carsufficient for the flow of all the water that came down riage; and the legal rights and duties of both parties tho brook in times of heavy rain, and by its obstruc- became fixed by law the moment tho wheat was placed tion caused tho water to overflow upon and injure the on board the ship. IIaving received it for the purpose adjoining premises of tho plaintiff. The city, since of carriage, the defendant became bound to the shipthe defendant's channel was made, had constructed pers for the safe transportation and delivery of the several sewers and drains which emptied into the wheat at the port of destination, and he was entitled brook abovo his premises, by which a considerable to a lien on it for payment of his freight and charges quantity of sewage, and of surface water that it was on the completion of tho voyage. Bulkely v. Naumclaimed would havo gone in other directions, was let keag Steam Cotton Co., 24 How. 391. This lien was into the brook. In a suit for the damage to the plaint- created the moment the goods were shipped and deiffs property it was held, (1) that tho defendant was fendant might retain the wheat until his freight was not liable for any damage beyond that caused by the paid. Bird of Paradise, 5 Wall. 555; McCardier v. natural flow of the water, including its increased flow | Chesapeake Ins. Co., 8 Cr. 39; Certain Logs, 2 Sumn. from heavy rains and other ordinary natural causes; 596. Although the insolvency of tho firm, before the (2) that it was no reason for holding tho defendant ship was laden but after the wheat was placed on liable for more than this that the proportion of the board, may have ended the transaction between them damage done by the overflow of the natural water of and the plaintiff as to the shipment and sale of the the brook was difficult of ascertainment; (3) that the wheat, and dispensed with its carriage, yet the plaintiff defendant and the city could not be regarded as joint was not entitled to the possession until he extintort-feasors. Sellick v. Ilall. Opinion by Granger, J. guished, or offered to extinguish, the lien which had SLANDER-- DAMAGES -- SUBSEQUENT REPETITION OF

attached to it. The defendant was not bound to reland SLANDEROUS WORDS -- EVIDENCE OF MALICE. — In an

it and deliver it to the plaintiff at the port of outfit action of slander the plaintiff can recover damages other charges as were liens upon it. Story on Bailm.,

without tender or payment of the freight, or such ouly for the slauderous words charged in the declaration. Whero the same slander has been since re

$ 585; Campbell v. Connor, 70 N. Y. 424; Hutch. on

Hayes v. peated, evidence of the repetition is admissible for the car., $ 476, note; Abbott on Shipp. 595. purpose of showing malico in the original speaking, Campbell. Opinion by MoKee, J. but not as a ground in itself for additional damages.

[Decided Aug. 26, 1880.] Whero a defendant maliciously and for the purpose of NOTICE- RECORDING ACTS — HUSBAND AND WIFE spreading and perpetuating the slander, pleads the PURCHASE BY DEBTOR OF SURETY'S LAND UNDER truth of the words in justification and fails to prove it, MORTGAGE SALE. A wife owned separate real estate

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