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sustained, because the plaintiff was legally imprisoned under a warrant of a magistrate who had jurisdiction to grant that warrant. That contention therefore failed. It was then suggested that the plaintiff could not be detained on the ground of this contempt of court, because that was an offense within the 19th section of the Extradition Act, committed before he was surrendered to this country. It was suggested that the act only applied to former political offenses, and that the meaning of it was, that the plaintiff could not be tried here for a former political offense, but that he might be tried for a former offense which was not political. Now it seems to me that that is a plain error, and that the act of Parliament plainly applies to all offenses committed in this country before the time of the surrender. The next question is, whether the attachment for contempt is, even though the contempt were committed before surrender, an offense such as is mentioned in the 19th section. A contempt is not a matter which is a triable offense. The attachment is a civil process under which the contemnor is detained, and which he can get rid of at any time by purging his contempt, and it is not, in my opinion, a triable offense, or an offense upon which a man can be tried at all. The real truth is, that the word "offense" in the 19th section means a criminal charge, whether a felony or a misdemeanor is immaterial, but an offense which would be triable in a criminal court. Therefore the 19th section does not apply to civil process, and the objections which were taken on that reading of the statute all fail. Then it was said that bringing the plaintiff here, under the warrant which was granted under the Extradition Act, was an abuse of the process of the court; that is to say, that he was not brought here bona fide for the purpose of being charged with an offense against the bankruptcy law at all, but that that process was used indirectly and improperly in order to bring him here for the purpose of taking him under the attachment. If that had been made out, or if the motive had been made out, whether there were ground for it or not - the indirect motive-I should have thought there had been an abuse of the process of the court. Whether the person who was using the process might have had colorable evidence or not, if it could be made out that in his own mind he was using the process indirectly and dishonestly-not with the intention of prosecuting, but with the intention of dropping the prosecution and bringing him here only for the purpose of being enabled to enforce the attachment -I should think the court would not allow its process to be abused, and that therefore it would set aside the attachment at once. Then comes the question whether that is proved. Now it seems to me that it is not. Therefore there was no abuse of the process of the court, and if there was no abuse of the process of the court, this attachment may remain.

COTTON, L. J. I am also of opinion that the appeal fails. It was put by Mr. Horton Smith on three grounds, on two of which we did not hear the respondents. The first ground was, that the arrest of the plaintiff was illegal-that thereupon he could not be detained under the attachment. Now that was based simply upon this, that the charge was not sustained, and that when the matter came before the magistrates they said, that as far as that charge went, the plaintiff must be discharged. But that does not show that the arrest was illegal in the sense of having been void, or that it should be treated in a court of law as void. do not go into the question as to whether or not there were reasonable grounds for the arrest. Even if there were no reasonable gounds for the arrest, yet the arrest was legal; that is to say, it was under a warrant issued by a magistrate who had authority to issue the warrant, and it cannot be considered as null and legally void in the sense in which processes have been treated

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as illegal in the cases which have been referred to by Mr. Horton Smith. That may be dealt with shortly. The second point was this: It was said that the detainer under the attachment was in violation of the express provision of the Extradition Act, and the 19th section of that act was referred to. [His lordship read the section and continued:] It is difficult to see here what can be said to the trial of Mr. Pooley when he was taken under the proceedings; but I do not decide on that ground. In my opinion, it is not sufficient to say that what is here represented is his being tried, whatever that may mean, for an offense against the criminal law. In a former part and in a subsequent part of that section mention is made of crimes in respect of which a person can be taken under the act; and although the word "crime" is not used where we find the prohibition, yet the offense there, coupling it with what goes before and what goes after, must, in my opinion, mean an offense against a criminal law, that is to say, a crime for which an action can be tried, in the ordinary sense of the word, under the criminal law. But here there was nothing criminal. Incorrectly, we say a man is guilty of a gross contempt; that is to say, he has disobeyed an order of the court in a civil proceeding. But that is not a crime, an offense against the criminal law; it is an offense which the court is bound to deal with by committing the man to prison, but that is simply for the purpose of enabling a litigant, who has got an order which has been disobeyed, to obtain his civil rights, and it is a mere process to enforce civil rights, and not any proceeding for punishing a crime as suggested. Therefore, in my opinion, the second objection also fails. I will now deal with the third objection, that the whole proceeding had been collusive, that is to say, that the proceedings under the Extradition Act had been taken not for the purpose of getting Mr. Pooley here in order that he might be tried for an offense against the criminal law, but had been taken for the purpose of getting him here in order to enforce the attachment. It is not to the point to show that some one else, other than the person who sought to enforce and did enforce the attachment, had some indirect object in prosecuting the plaintiff. Even if that were made out it would avail nothing, unless it could be shown that the persons who enforced the attachment were parties to that indirect object, so that it might be established to the satisfaction of the court, that on their part, there was such fraudulent conduct, such abuse of the process of the court, as to justify the court in saying that those who had so unduly used the process of the court by fraudulent and collusive conduct should not retain the benefit of it. Fraud on the part of the defendants must be established. I give no opinion at all as to whether there was reasonable or sufficient ground for taking these criminal proceedings. I do not in the least intimate an opinion that there was not. But assuming for the purpose of the argument that it is doubtful whether there was sufficient reason for taking those criminal proceedings, assume, if you will, that it was ill-judged to take those proceedings. That is nothing. Possibly, if there was no ground for criminal proceedings, it may be a step; but what the court must be satisfied of, in order to discharge the order upon this ground, is, that there was a fraud on the part of the defendants who were seeking to enforce the attachment. The evidence does not in any way show, or in my mind lead to a suspicion, that the bank in what they did were authorizing Mr. Barnett to take these criminal proceedings for the purpose of enabling them to enforce their attachment, or in any way raise a suspicion of any such fraudulent conduct on the part of the bank, or those acting for the bank, as to justify the court in saying that there has been here an abuse of the process of the court, and upon that ground discharging the attachment.

JAMES, L. J. costs.

The appeal will be dismissed with

NOTE. In the foregoing case the English Court of Appeal adopt a doctrine similar to that in Adriance v. Lagrave, 59 N. Y. 110, where a person extradited from France to this country was detained by arrest under civil process. It was there claimed by the defendant that the extradition proceedings were not in good faith but were fraudulently iustituted to bring him within the jurisdiction of the courts of New York. It appeared that the plaintiffs in the civil action were not concerned in the alleged fraud. The court held that there was no ground for setting aside the order of arrest; that in the absence of treaty stipulation there is no implied obligation, binding upon and enforceable by the State courts, not to detain an extradited person brought within their jurisdiction for any act criminal or civil committed prior to the extradition, except the crime specified in the proceedings under which he was surrendered. The New York Court of Appeals, in this decision, refer to the Caldwell case, 8 Blatch. C. C., as sustaining the doctrine adopted. In United States v. Lawrence, 13 id. [295, United States Circuit Judge Benedict sustained a demurrer to a plea to the jurisdiction, by the defendant to an indictment claimed to be for an offense other than that for which he had been indicted. In his opinion the judge refers to the cases of Lagrave and Caldwell as settling the question. In consequence of the decision in the Lawrence case, the English government refused, in February, 1876, to surrender one Winslow, who was demanded by the United States on the charge of forgery, without an assurance that Winslow would not be tried for any other than the particular offense to which the proceedings related. The result of this action on the part of the English government led to an extended correspondence between the two countries, and we believe, to a modification of the then existing extradition treaty. The position taken by the English government met our approval at the time, as it did that of a number of distinguished jurists and writers upon international law. In the case above reported the English Court of Appeal seem to have disregarded the view maintained by Great Britain in tho Winslow case. See, upon this subject, 13 Alb. L. J. 345, the letters of Hon. W. B. Lawrence, 14 id. 85, 162, and 15 id. 224, the able and exhaustive articles of Dr. Spear, in 16, 17 and 18 id., where every phase of the subject is carefully examined. Commonwealth v. Hawes (Ky. Ct. Appeals), 17 id. 325.-ED. ALB. L. J.

NEW YORK COURT OF APPEALS ABSTRACT.

MARITIME LAW-CONTRACT TO FURNISH SAILS TO VESSEL BUILDING, FURNISHED AFTER LAUNCHING, A LAND CONTRACT AND LIEN UNDER STATE LAW VALID.— A contracted to furnish sails to a schooner, which was being built. After the schooner was launched, work continued upon it, it was drawn out of the water and put again upon the ways, and while there caulked, painted and fastened, and the sails in question furnished to it. The vessel was a sailing one, and the sails were furnished to complete its building, and were a part of its construction. Held, that the contract of A was a land contract, and a lien against the vessel could be enforced under the State law. The authorities are very clear that an agreement for the building and construction of a vessel is not maritime. Peoples' Ferry Co. v. Beers, 20 How. (U. S.) 402; Roach v. Chapman, 22 id. 129; Morewood v. Eneyuish, 23 id. 491; Edwards v. Elliot, 21 Wall. 532; Cunningham v. Hall, 1 Clifford, 46; Young v. The Orphans, 2 id. 29. The cases, Sheppard v. Steele, 43 N. Y. 52; Brookman v. Hamill, id. 554; Happy v. Mosher, 48 id. 313; King v. Greenway, 71 id. 417, in the use of the words "before launching,

while yet on the ways," while "unfinished on the ways," when "not launched," only refer to the facts existing in those cases, and not with any view of declaring a rule that after launching every contract relating to a vessel is purely maritime. No case holds that the work of building or constructing a vessel cannot proceed after the launch. Indeed, no case could hold that, for it is purely a question of fact. There is, in the case at bar, no difficulty in the conclusion that the sails were furnished as part of the process of construction. In Roach v. Chapman, supra, an engine and boilers were furnished, and the court held that "a contract for building a ship or supplying engines, timber or other materials for her construction, is clearly not a maritime contract." If an engine is an essential part of a vessel propelled by steam, why are not the sails an essential part of the construction of a sailing vessel? In Edwards v. Elliot, supra, the court say: "No reason is perceived why a contract to build a ship, any more than a contract for the materials of which a ship is composed, or for the instruments or appurtenances to manage or propel the ship, should be regarded as maritime." The contract in the case at bar was a land contract, and a lien under the State law would attach. Judgment affirmed. Wilson et al. v. Laurence et al., appellants. Opinion by Finch, J. [Decided Nov. 9, 1880.]

PUBLIC POLICY -MONEY PAID BY THIRD PERSON TO CREDITOR TO INDUCE HIM TO JOIN IN COMPROMISE NOT RECOVERABLE BACK. - Plaintiff, to induce defendants to unite with other creditors of the firm of N. & B., in the composition of its debts, gave to them his negotiable note for a portion of the debt due defendants, beyond the amount to be paid by the composition agreement. Defendants signed the agreement, transferred the note to a bona fide holder, and plaintiff having been compelled to pay it brought this action to recover the amount paid. The complaint alleged that plaintiff was a brother-in-law of N., a member of the firm named, had an affection for him and was solicitous to aid him, and that defendants, knowing of these facts, took an unfair advantage and extorted the giving of the note. Held, that the action was not maintainable. The composition agreement is an agreement between creditors; and a secret agreement by which a friend of the debtor undertakes to pay one creditor more than his pro rata share to induce him to join in the composition, is as much a fraud upon the other creditors as if the agreement was directly between the debtor and such creditor. If the defendants were plaintiffs seeking to enforce the note, it is clear that they could not recover. Cockshott v. Bennett, 2 Term Rep. 763; Leicester v. Rose, 4 East, 372. But if plaintiff has voluntarily paid the note he could not, according to the general principle applicable to executed contracts, void for illegality, have maintained au action to recover back the money paid. Nellis v. Clark, 4 Hill, 424. It was claimed that the general rule did not apply to money paid by the debtor or in his behalf, in pursuance of a secret agreement exacted by the creditor, in fraud of the composition, and the cases of Smith v. Bromley, 2 Doug. 696; Smith v. Cuff, 6 M. & S. 160, and Atkinson v. Denby, 7 H. & N. 934, were relied upon to sustain this claim. But these cases go no further than to hold that the debtor himself, or a near relative, who, out of compassion for him, pays the money upon the exaction of the creditor as a condition of his signing the composition, may be regarded as having paid under duress and as not equally criminal with the creditor. They cannot be upheld on the ground simply that such payment was against public policy. It was conceded by Lord Mansfield, in Smith v. Bromley, that where both parties are equally criminal against the general laws of public policy the rule is potior est conditio defendentis. Lord Kenyon said, in Howson v. Hancock, 8 Term Rep. 575: “There

is no case where money has been actually paid by one of two parties to the other upon an illegal contract, both being particeps criminis, where an action has been maintained to recover it back." It is said in Cro. Jac. 187, that "a man shall not avoid his deed by duress of a stranger." This rule was applied in Robinson v. Gould, 11 Cush. 57, where a surety sought to plead the duress of his principal. The rule has been modified so as to allow a father to plead the duress of his child, or a husband the duress of his wife, or a child that of his parent. Wayne v. Sands, 1 Freeman, 161; Bayley v. Clare, 2 Browne, 276; 1 Rolle's Abr. 687; Jacobs' L. Dict., "Duress." Plaintiff, in the case at bar, was in pari delicto with defendants, being only remotely related by marriage to the debtor. Plaintiff cannot complain that defendants negotiated the note so as to shut out the equities, as the words of negotiability therein show that its negotiation was contemplated when it was given. Judgment affirmed. Solinger, appellant, v. Earle. Opinion by Andrews, J. [Decided Nov. 9, 1880.]

STATUTE OF LIMITATIONS -BEGINS TO RUN ON CHECK AT TIME OF MAKING IF DRAWER HAS NO FUNDS WITH DRAWEE.-Defendant gavo a check upon a bank where he had no funds at the time or for more than six years thereafter. The check was not presented for payment until ten years after it was made. Ileld, that the statute of limitations began to run at the time the check was made, and an action thereon against the maker was barred after six years. The rule is well established that if the drawer has no funds in the hands of the drawee, an action can be maintained against the former without presentment or notice of non-payment. Mohawk Bank v. Broderick, 10 Wend. 304; Fitch v. Redding, 4 Sandf. 130; Healy v. Gilman, 1 Bosw. 235; Johnson v. Bank of North America, 5 Robt. 554. The circumstance that the want of funds was the result of the fraudulent act of the drawer would not estop him from setting up the defense of the statute. In such a case the check is due without presentment and demand. The breach of the contract is the cause of the action, and the statute begins to run from the time of such breach even if there is fraud on the part of the defendant. East India Co. v. Paul, 1 Eng. L. & Eq. 44, 49; Battley v. Faulkner, 3 Barn. & Ald. 288; Whitehouse v. Fellowes, 100 Eng. C. L. 795; Wilkinson v. Verity, L. R., 6 C. P. 206. Order affirmed. Brush, appellant, v. Barrett. Opinion by Miller, J. [Decided Nov. 9, 1880.]

SURETYSHIP

-WHAT NOTICE SURETY MUST GIVE TO CREDITOR TO COMPEL LEGAL ACTION AGAINST DEBTOR.

-F., who stood in the relation of a surety for the payment of a bond and mortgage not due, told plaintiff who held the mortgage, in January or February, to collect that mortgage in the spring and not let it run over the time it is due." There was nothing due and payable until the 23d of May in that year. Held, not a sufficient notice to plaintiff to release F. from liability where plaintiff neglected to foreclose when the bond and mortgage became due. Plaintiff might well have understood defendant to mean that when the boud became payable payment should be asked, for he was not forced by the words used at the time when they were used to understand that collection by legal proceedings was meant. The doctrine that a surety may give the creditor notice to proceed against the principal, and if the latter refuses, to the damage of the surety, the obligation of the surety is discharged or diminished, is not a favorite in the law and is not accepted in all forums. 3 Kent's Com. 124, note c. It was against opposition that it was adopted into the law of this State. See King v. Baldwin, 17 Johns. 384, 390, 394, 396, 397, 402; Colgrove v. Tallman, 67 N. Y. 95, 99. It is not one that is to be applied with laxity. It is

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certainly to be required that the surety deal fairly and plainly with the creditor and give him to know that he intends to put him upon his equitable duty. The notice to the creditor should clearly inform him that he is required to take proceedings in the courts to enforce the mortgage. Singer v. Troutman, 49 Barb. 182, citing Remsen v. Beekman, 25 N. Y. 552. Judgment affirmed. Hunt v. Purdy et al., appellants. Opinion by Folger, C. J. [Decided Nov. 9, 1880.1 TRADE-MARK "RYE AND ROCK" TO DESIGNATE MIXTURE OF RYE WHISKY AND ROCK CANDY NOT.-It is a rule in the law of trade-marks that the use of any name or symbol as a trade-mark must be new to make an exclusive right to use it as such. If the term has ever before been used as applicable to a like article, it cannot be exclusively appropriated. It is also a rule of that law that if the article is known to commerce in general by the term claimed as a trade-mark, the claim is ill-founded. It is also a rule that if the term employed indicates the nature, kind or quality of the article, instead of showing the origin of it, an exclusive right to the use of the term may not be maintained. Plaintiff claimed as a trade-mark the words "Rye and Rock," to designate as a beverage a mixture of white rock candy dissolved in rye whisky, and alleged that plaintiff had for ten years used the words to designate the mixture; that in 1877 defendants began to use the same words to designate a like mixture; that in 1878 the commissioner of patents granted plaintiff's application for a trade-mark in the words "Rye and Rock," etc. Held, that under the rules above mentioned, plaintiff was not entitled to claim as a trade-mark the words mentioned to designate the mixture named. Judgment affirmed. Van Beil, appellant, v. Prescott et al. Opinion by Folger, C. J. [Decided Nov. 9, 1880.]

WILL- CONSTRUCTION-DEVISE TO WIFE WITH DISCRETION TO DEVISE TO CHILDREN GIVES HER FEE.-A will read thus, "I do give and bequeath all my property, both real and personal, to my beloved wife Mary, only requesting her at the close of her life to make such disposition of the same among my children and grandchildren as shall seem to her good." Held, that the wife took the testator's estate in fee and that the qualifying sentence would not be construed to create a trust. The tendency of modern decisions is not to extend the rule or practice which from words of doubtful meaning deduces or implies a trust. 2 Story's Eq. Jur., § 1069; Lamb v. Eames, L. R., 10 Eq. Cas. 267. In re Hutchinson v. Tennant, L. R., 8 Ch. Div. 540, the doctrines set forth in the cases or text-books are subject to the rule in Williams v. Williams, 1 Sim. (N. S.) 358, that "the real question always is whether the wish or desire or recommendation of the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would bo a reasonable exercise of the discretion of the party, leaving it, however, to the party to exercise his own discretion." This rule is applied and illustrated in Bernard v. Minshell, Johns. Ch. (Eng.) 276, and in Howarth v. Dewell, 6 Jur. (N. S.) 1360, where a devise by a testator of all the residue of his property, real and personal, to his wife, with power to dispose of the same among his children in her discretion, was held an absolute gift to the wife. In Hutchinson v. Tenant, supra, testator gave all his property to his wife "absolutely with full power to her to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so." The court said: "Both on principle and in consonance with the most modern authorities, I decide that the widow took absolutely." Judgment affirmed. Foose, appellant, v. Whitmore. Opinion by Danforth, J.

[Decided Nov. 9, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

PATENT-RE-ISSUE BY COMMISSIONERS MUST BE FOR SAME INVENTION.-Under the statute in force in 1869 and 1870, the commissioner of patents had authority to grant re-issues only in certain specified cases. These were whenever a patent was inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee's claiming as his own invention or discovery more than he had a right to claim as new, if the error had arisen by inadvertence, accident, or mistake, without any fraudulent or deceptive intention. The commissioner was invested with authority to determine whether the surrendered patent was valid by reason of a defective or insufficient specification, or because the patentee had claimed more than he had a right to claim as new; and if he found such to be the case, and found also that the error had been due to inadvertence, accident, or mistake, without fraud, his decision was conclusive, and not subject to review by the courts. But the law did not confer upon him jurisdiction to grant a re-issue embracing new matter, or a broader invention than what was revealed by his original specification, or drawings, or models, except in some cases where there was neither model nor drawing. A re-issue for any thing more was therefore inoperative and void. Accordingly this court has repeatedly held, that if on comparing a reissue with its original, the former appears on its face to be for a different invention from that described or indicated in the latter, it must be declared invalid. Seymour v. Osborn, 11 Wall. 544; Russell v. Dodge, 93 U. S. 461. In this case in the issue of an original patent for improvements in ovens, it appeared by the specifications that the products of combustion were carried on their way to the chimney through flues exterior to the oven proper and could not pass through it. In the re-issue the specifications showed that the products of combustion passed through the oven. Held, a different invention, and the commissioner had no authority to grant a re-issue of the patent. Decree of U. S. Circ. Court Louisiana affirmed. Ball et al., appellants, v. Langles et al. Opinion by Strong, J. [Decided Nov. 15, 1880.]

PRACTICE- -TIME WHEN JUDGE MUST SIGN EXCEPTIONS WRIT OF ERROR BEFORE EXCEPTIONS SIGNED ΝΟ WAIVER DATE OF SIGNATURE EVIDENCEPROOF OF BOUNDARY LINES BY REPUTATION-STATEMENTS BY DECEASED PERSONS-ADVERSE POSSESSION -TRUE OWNER IN POSSESSION OF PART OF LOT.—(1) The rule requiring the presentation of bills of exception for the signature of the judge within five days is not a rule which controls his action. He may depart from it in order to effectuate justice. Stanton v. Embry, 93 U. S. 552. It is a direction to the parties and it expressly reserves the power to enlarge the time. It is no doubt necessary that exceptions should be taken, and at least, noted before the rendition of the verdict, but the reduction of the bills to form, and the signature of the judge to the bills, required for their attestation, or as said in the statute of Westminster, "for a testimony," may be afterward, during the term. In practice it is not usual to reduce bills of exception to form and to obtain the signature of the judge during the progress of the trial. Nor is it necessary. The statute of Westminster did not require it. It would greatly and uselessly retard the business of courts were it required that every time au exception is taken the progress of the trial should be stayed until the bill could be reduced to form and signed by tho judge. For this reason it has always been held that the exception need only be noted at the time it is made, and may be reduced to form within a reason

able time after the trial is over. U. States v. Breitling, 20 How. 254; Stanton v. Embry, 93 U. S. 555; Dredge v. Forsythe, 2 Black. 568; Genesee v. Bonnamer, 7 Wall. 565. (2) Defendants sued out this writ of error before the signature of the judge to their exceptions was obtained. Held, that they did not thereby waive their exceptions. See Taylor v. Williams, 2 B. & Ad. 846; S. C., 6 Bing. 512, and 4 M. & P. 257. A contrary rule is not settled in England; nor is it asserted in this country save in one New York decision. See Brown v. Bissell, 1 Doug. (Mich.) 273; also Witbeck v. Waine, 8 How. Pr. 433. (3) The bills were not signed nunc pro tunc, but appeared on their face to have been signed ten days after the trial. Held, not an objection. The date of the signature was at most an irregularity. Dictum to the contrary effect in Walton v. United States, 9 Wheat. 657, disapproved of. See Ex parte Bradstreet, 4 Pet. 107; Neece v. Healey, 23 Ill. 416; Illinois R. Co. v. Palmer, 24 id. 416; Dean v. Gridley, 10 Wend. 254; Hollowell v. Hollowell, 1 Monroe, 130; Hughes v. Robertson, id. 215. (4) A witness called to prove the location of private lands was allowed to testify that one M., a surveyor, had, while absent from the lands in question, told him the location and direction of certain boundary lines which M. said to witness he (M.) had surveyed, and witness was allowed to state what the declarations of M. were. Held error. Ellicott v. Pearl, 10 Pet. 412; Bartlett v. Emerson, 7 Gray, 74; 5 Metc. 223; Long v. Cotton, 116 Mass. 414; Bender v. Pierce, 27 Penn. St. 335. The conclusions to which a great majority of the decisions of State courts lead upon this subject is this: In questions of private boundary, declarations of particular facts, as distinguished from reputation, made by deceased persons, are not admissible, unless they were made by persons shown to have had knowledge of that whereof they spoke, or persons on the land, or in possession of it when the declarations were made. To be evidence, they must have been made when the declarant was pointing out or marking the boundaries or discharging some duties relating thereto. A declaration which is a mere recital of something past is not an exception to the rule that excludes hearsay evidence. The Texas decisions do not essentially vary this rule. George v. Thomas, 16 Tex. 74; Blaythe v. Sutherland, 3 McCord, 258; Stroud v. Springfield, 28 Tex. 649; Spear v. Coate, 3 McCord, 229; Weller v. Carroll, 29 Tex. 333; Evans v. Hunt, 34 id. 111; S. C., 49 id. 311; Smith v. Russell, 37 id. 247. (5) While when a person enters upon unoccupied land, under a deed or title, and holds adversely, his possession is construed to be co-extensive with his deed or title, and the true owner will be deemed to be disseized to the extent of the boundaries described in that title, still, his possession beyond the limits of his actual occupancy is only a constructive If the true owner be at the same time in actual possession of part of the land, claiming title to the whole, the constructive possession is in him of all the land not in the actual possession of the intruder, and this though the owner's actual possession is not within the limits of the defective title. "The reason is plain. Both parties cannot be seized at the same time by the same land under different titles. The law therefore adjudges the seizure of all that is not in the actual occupancy of the adverse party to him who has the better title." Clarke v. Courtney, 5 Pet. 354. In Altemus v. Long, 4 Penn. St. 254, it was ruled that though actual possession under a junior title of part of a tract of land, which interfered with an older grant, gave possession of the whole to the holder of the junior title, yet a subsequent entry of the true owner upon any part of his land was an ouster of the intruder from what he had in constructive possession merely. There is no authoritative decision that is in conflict with this. Judgment of U. S. Circ. Ct., W. D. Texas, reversed and new trial granted. Hunnicut et al., plaint

one.

iffs in error, v. Peyton et al. Opinion by Strong, J. [Decided Nov. 15, 1880.]

TRIAL EXCEPTIONS ON.--Where a counsel at trial

asked of the court to give a charge, consisting of four propositions, which were set out, and "which instructions," according to the bill of exceptions, "the court refused to give," and the counsel excepted, held, that according to the well-settled rule of this court, if either of these four propositions were erroneous, or in other words, if all the charge thus asked was not sound law, the court did right in refusing the prayer which presented them as a whole. See Johnson v. Jones, 1 Black, 120; Harvey v. Tyler, 2 Wall. 338; Lincoln v. Claflin, 7 id. 139; Brown v. Taylor, 93 U. S. 54. Judgment of U. S. Circ. Ct., W. D. Tennessee, affirmed. United States v. Hough et al. Opinion by Miller, J. [Decided Nov. 15, 1880.]

KANSAS SUPREME COURT ABSTRACT. JULY TERM, 1880.*

DELIVERY WHAT DOES NOT CONSTITUTE - UNGATHERED CROP.-A., being the owner of sixty acres of ungathered corn, and in debt to B. in a certain amount, and to L. in another sum, made an agreement with them, by which he was to deliver to B., in satisfaction of his debt, 500 bushels of corn, the same to be gathered by B., out of the said sixty acres, and a pair of mules upon which L. held a chattel mortgage, and also to deliver to L., on the latter's farm, and to be weighed on his scales, corn to the amount of $250, at the price of fifteen cents per bushel, and in the rise up to twenty cents per bushel, on the delivery of which L. was to credit his claim against A. with $250, and to release his lien upon the mules. There was no separation of the corn, and it was estimated that there would be corn enough to satisfy the agreement with B. and L., and also what A. should want for his own use. After some of the corn had been delivered to L. (but how much is not shown), a constable, with an execution against A., levied upon thirty acres of standing corn, being a part of the corn above mentioned, and of the value of $240. L. thereupon brought replevin, claiming to be the owner. Held, that upon the facts as stated, no delivery and no separation having been made, and both price and number of bushels as yet unsettled, the title had not passed away from A., and L. could not maintain his action. Bailey v. Long. Opinion by Brewer, J.

PARENT AND CHILD-STEP-CHILD.— It is well settled, that in the absence of statutes, a person is not entitled to the custody and earnings of step-children, nor bound by law to maintain them. Yet if a stepfather voluntarily assumes the care and support of a step-child, he stands in loco parentis; and the presumption is, that they deal with each other as parent and child, and not as master and servant; in which case the ordinary rule of parent and child will be held to apply, and neither compensation for board is presumed on the one hand, nor for services on the other. Smith v. Rogers. Opinion by Valentine, J.

the deed L. was granted expressly the privilege of alienating this right. To utilize this water he constructed a tank cistern and bath-room in the said

dwelling-house which were supplied with the water. He also used it in irrigating the land. L. thereafter conveyed the land to another, through which conveyance plaintiff acquired title thereto. Subsequently L. conveyed to T. the water right. Held, that the right to water was appurtenant to the land at the time L. conveyed it, and passed to his grantee, and defendant had no right to deprive plaintiff of water. Appurtenants may be of a corporeal or incorporeal nature. Jackson v. Stryker, 1 Johns. Ca. 284. In Nicholas v. Chamberlain, Cro. James, 121, Croke says: "It is held by all the court, upon demurrer, that if one erects a house, and builds a conduit thereto in another part of his land, and conveys water by pipes to the house, and afterward sells the house with the appurtenances, excepting the land, or sells the land to another, reserving to himself the house, the conduit and the pipes pass with the house, because they are necessary and appurtenant thereto." An appurtenant is that which belongs to another thing, but which has not belonged to it immemorially. 1 Ventris, 407; Coke on Litt. 121 b, and 122 a; Moore, 682. "Appurtenant denotes annexed or belonging to; but in law it denotes an annexation which is of convenience merely and not of necessity, and which may have had its origin at any time, in both of which respects it is distinguished from appendant." Abb. L. Dict., Appurtenance.' An appurtenance may be annexed at any time. It is the nature and use of the thing annexed which makes it appurtenant or not, as the case may be. Farmer v. Ukiah Water Co. Opinion by Sharpstein, J.

46

EVIDENCE-EXCEPTION TO TESTIMONY OFFERED IN GROSS NOT GOOD IF ANY OF TESTIMONY COMPETENT.—

Where a mass of evidence is offered as an entirety and part of it is competent and part incompetent, an objection to it as an entirety should not be sustained. Upon this subject there is a conflict of opinion. In New York and Pennsylvania it has been held, that if an offer contains any matter not admissible as evidence, the whole may be rejected. Hosley v. Black, 28 N. Y. 444; Gardner v. Barden, 34 id. 436; Wharton v. Douglass, 76 Penn. St. 273. But in Alabama and Maryland, and in the Supreme Court of the United States, the contrary is held to be the more correct rule. In Buffington v. Cook, 39 Ala. 66, a motion was made to exclude from the jury all the indorsements on an execution; but a part of them was legal evidence, and the court said: "If a portion of the testimony was illegal, the court was not bound to separate the legal from the illegal evidence, but might properly overrule the whole motion." In Carroll's Lessee v. Granite Manufacturing Co., 11 Md. 403, and Curtis v. Moore, 20 id. 97, the rule is thus declared: "When an offer is made of a mass of evidence complex in its character, and the whole of it is objected to in such case, if any part of it is admissible, it is error to exclude the whole." In Moore v. Bank of the Metropolis, 13 Pet. 302, it is said: "It is the duty of the party taking exceptions to the admissibility of evidence to point the part out excepted to, when the evidence consists of a number of particulars, so that the attention of the court may be drawn to the

CALIFORNIA SUPREME COURT ABSTRACT. particular objection. If the exception covers any ad

SEPTEMBER, 1880.

APPURTENANCE-RIGHT TO TAKE WATER BY CONDUIT FROM CONDUIT OF ANOTHER.-L., who owned land with a dwelling-house and buildings thereon, acquired by deed from defendant, a water company, so much water as could be conveyed through a halfinch pipe which tapped the pipes of defendant. By *To appear in 24 Kansas Reports.

missible evidence, it is rightly overruled." Board of Education v. Keenan. Opinion by McKee, J.; McKinstry, J., dissented.

RECEIVER-WHERE MORTGAGE CONDITIONED THAT MORTGAGEE MAY TAKE POSSESSION UPON DEFAULT, RECEIVER MAY BE APPOINTED IF DEFAULT OCCURS.—

A mortgage given by a railroad company provided that in case of default in the payment of the principal or interest secured thereby, the mortgagees might take possession of the mortgaged railroad. Held, that in

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