Gambar halaman

sustained, because the plaintiff was legally imprisoned as illegal in the cases which have been referred to by under a warrant of a magistrate who had jurisdiction Mr. Horton Smith. That may be dealt with shortly. to grant that warrant. That contention therefore The second point was this: It was said that the defailed. It was then suggested that the plaintiff could tainer under the attachment was in violation of the not be detained on the ground of this contempt of express provision of the Extradition Act, and the 19th court, because that was an offense within the 19th sec- section of that act was referred to. (His lordship read tion of the Extradition Act, committed before he was the section and continued :) It is difficult to see here surrendered to this country. It was suggested that what can be said to the trial of Mr. Pooley when he the act only applied to former political offenses, and was taken under the proceedings; but I do not decide that the meaning of it was, that the plaintiff could not on that ground. In my opinion, it is not sufficient to be tried here for a former political offense, but that he say that what is here represented is his being tried, might be tried for a former offense which was not poli- whatever that may mean, for an offense against the tical. Now it seems to me that that is a plain error, criminal law. In a former part and in a subsequent and that the act of Parliament plainly applies to all part of that section mention is made of crimes in reoffenses committed in this country before the time of spect of which a person can be taken under the act; the surrender. The next question is, whether the and although the word “crime" is not used where we attachment for contempt is, even though the contempt find the prohibition, yet the offense there, coupling it were committed before surrender, an offense such as is with what goes before and wbat goes after, must, in mentioned in the 19th section. A contempt is not a my opinion, mean an offense against a criminal law, matter which is a triable offense. The attachment is that is to say, a crime for which an action can be tried, a civil process under which the contemnor is detained, in the ordinary sense of the word, under the criminal and which he can get rid of at any time by purging his law. But here there was nothing criminal. Incorcontempt, and it is not, in my opinion, a triable offense, rectly, we say a man is guilty of a gross contempt; or an offense upon which a man can be tried at all. that is to say, he has disobeyed an order of the court The real truth is, that the word “offense" in the 19th in a civil proceeding. But that is not a crime, an section means a criminal charge, whether a felony or a offense against the criminal law; it is an offense which misdemeanor is immaterial, but an offense which would the court is bound to deal with by committing the man be triable in a criminal court. Therefore the 19th sec- to prison, but that is simply for the purpose of enabling tion does not apply to civil process, and the objections a litigant, who has got an order which has been diswhich were taken on that reading of the statute all obeyed, to obtain his civil rights, and it is a mere profail. Then it was said that bringing the plaintiff here, cess to enforce civil rights, and not any proceeding for under the warrant which was granted under the Ex- punishing a crime as suggested. Therefore, in my tradition Act, was an abuse of the process of the court; opinion, the second objection also fails. I will now that is to say, that he was not brought here bona fide deal with the third objection, that the whole proceedfor the purpose of being charged with an offense ing had been collusive, that is to say, that the proagainst the bankruptcy law at all, but that that process ceedings under the Extradition Act had been taken was used indirectly and improperly in order to bring not for the purpose of getting Mr. Pooley here in him here for the purpose of taking him under the order that he might be tried for an offense against the attachment. If that had been made out, or if the criminal law, but had been taken for the purpose of motive had been made out, whether there were ground getting him here in order to enforce.the attachment. for it or not - the indirect motive - I should have It is not to the point to show that some one else, other thought there had been an abuse of the process of the than the person who sought to enforce and did enforce court. Whether the person who was using the process the attachment, had some indirect object in prosecutmight have had colorable evidence or not, it it could ing the plaintiff. Even if that were made out it would be made out that in his own mind he was using the avail nothing, unless it could be shown that the persons process indirectly and dishonestly - not with the in- who enforced the attachment were parties to that intention of prosecuting, but with the intention of drop- direct object, so that it might be established to the ping the prosecution and bringing him here only for satisfaction of the court, that on their part, there was the purpose of being enabled to enforce the attachment such fraudulent conduct, such abuse of the process of - I should think the court would not allow its process the court, as to justify the court in saying that those to be abused, and that therefore it would set aside who had so unduly used the process of the court by the attachment at once. Then comes the question fraudulent and collusive conduct should not retain the whether that is proved. Now it seems to me that it benefit of it. Fraud on the part of the defendants is not. Therefore there was no abuse of the process must be established. I give no opinion at all as to of the court, and if there was no abuse of the process whether there was reasonable or sufficient ground for of the court, this attachment may remain.

taking these criminal proceedings. I do not in the

least (intimate an opinion that there was not. But COTTON, L. J. I am also of opinion that the appeal | assuming for the purpose of the argument that it is fails. It was put by Mr. Horton Smith on three doubtful whether there was sufficient reason for takgrounds, on two of which we did not hear the responding those criminal proceedings, assume, if you will, ents. The first ground was, that the arrest of the that it was ill-judged to take those proceedings. That plaintiff was illegal — that thereupon he could not be is nothing. Possibly, if there was no ground for detained under the attachment. Now that was based criminal proceedings, it may be a step; but what the simply upon this, that the charge was not sustained, court must be satisfied of, in order to discharge the and that when the matter came before the magistrates order upon this ground, is, that there was a fraud on they said, that as far as that charge went, the plaintiff the part of the defendants who were seeking to enforce must be discharged. But that does not show that the the attachment. The evidence does not in any way arrest was illegal in the sense of having been void, or show, or in my mind lead to a suspicion, that the bank that it should be treated in a court of law as void. I in what they did were authorizing Mr. Barnett to take do not go into the question as to whether or not there these criminal proceedings for the purpose of enabling were reasonable grounds for the arrest. Even if there them to enforce their attachment, or in any way raise were no reasonable gounds for the arrest, yet the a suspicion of any such fraudulent conduct on the part arrest was legal; that is to say, it was under a warrant of the bank, or those acting for the bank, as to justify issued by a magistrate who had authority to issue the the court in saying that there has been here an abuse warrant, and it cannot be considered as null and legally of the process of the court, and upon that ground disvoid in the sense in which processes have been treated charging the attachment.

JAMES, L. J. The appeal will be dismissed with while yet on the ways," while “unfinished on the costs.

ways," when “not launched,” only refer to the facts

existing in those cases, and not with any view of deNOTE. — In the foregoing case the English Court of claring a rule that after launching every contract relatAppeal adopt a doctrine similar to that in Adriance v.

ing to a vessel is purely maritime. No case holds that Lagrave, 59 N. Y. 110, where a person extradited from the work of building or constructing a vessel cannot France to this country was detained by arrest under proceed after the launch. Indeed, no case could hold civil process. It was there claimed by the defendant that, for it is purely a question of fact. There is, in that the extradition proceedings were not in good

the case at bar, no difficulty in the conclusion that the faith but were fraudulently instituted to bring him sails were furnished as part of the process of construcwithin the jurisdiction of the courts of New York. tion. In Roach v. Chapman, supra, an engine and It appeared that the plaintiffs in the civil action were boilers were furnished, and the court held that “a not concerned in the alleged fraud. The court held contract for building a ship or supplying engines, timthat there was no ground for setting aside the order of ber or other materials for her construction, is clearly arrest; that in the absence of treaty stipulation there

not a maritime contract." If an engine is an essenis no implied obligation, binding upon and enforceable tial part of a vessel propelled by steam, why are not by the State courts, not to detain an extradited person the sails an essential part of the construction of a brought within their jurisdiction for any act criminal sailing vessel? In Edwards v. Elliot, supra, the court or civil committed prior to the extradition, except the say: "No reason is perceived why a contract to build crime specified in the proceedings under which he was

a ship, any more than a contract for the materials of surrendered. The New York Court of Appeals, in

which a ship is composed, or for the instruments or this decision, refer to the Caldwell case, 8 Blatch. C. C.,

appurtenances to manage or propel the ship, should be as sustaining the doctrine adopted. In United States regarded as maritime.” The contract in the case at v. Lawrence, 13 id. 295, United States Circuit Judge bar was a land contract, and a lien under the State law Benedict sustained a demurrer to a plea to the juris- would attach. Judgment affirmed. Wilson et al. v. diction, by the defendant to an indictment claimed to Laurence et al., appellants. Opinion by Finch, J. be for an offense other than that for which he had been

[Deoided Nov. 9, 1880.] indicted. In his opinion the judge refers to the cases

PUBLIC POLICY - MONEY PAID BY THIRD PERSON TO of Lagrave and Caldwell as settling the question. In

CREDITOR TO INDUCE HIM TO JOIN IN COMPROMISE NOT consequence of the decision in the Lawrence case, the

RECOVERABLE BACK. — Plaintiff, to induce defendants English government refused, in February, 1876, to sur

to unite with other creditors of the firm of N. & B., render one Winslow, who was demanded by the United

in the composition of its debts, gave to them his negoStates on the charge of forgery, without an assurance

tiable note for a portion of the debt due defendants, that Winslow would not be tried for any other than

beyond the amount to be paid by the composition the particular offense to which the proceedings related.

agreement. Defendants signed the agreement, transThe result of this action on the part of the English ferred the note to a bona fide holder, and plaintiff government led to an extended correspondence be

having been compelled to pay it brought this action to tween the two countries, and we believe, to a modifi

recover the amount paid. The complaint alleged that cation of the then existing extradition treaty. The

plaintiff was a brother-in-law of N., a member of the position taken by the English government met our

firm named, had an affection for him and was solicitapproval at the time, as it did that of a number of dis

ous to aid him, and that defendants, knowing of these tinguished jurists and writers upon international law.

facts, took an unfair advantage and extorted the girIn the case above reported the English Court of Ap

ing of the note. Held, that the action was not mainpeal seem to have disregarded the view maintained by

tainable. The composition agreement is an agreement Great Britain in tho Winslow case. See, upon this

between creditors; and a secret agreement by which & subject, 13 Alb. L. J. 345, the letters of Hon. W. B.

friend of the debtor undertakes to pay one creditor Lawrence, 14 id. 85, 162, and 15 id. 224, the able

more than his pro rata share to induce him to join in and exhaustive articles of Dr. Spear, in 16, 17 and 18

the composition, is as much a fraud upon the other id., where every phase of the subject is carefully ex

creditors as if the agreement was directly between the amined. Commonwealth v. Hawes (Ky. Ct. Appeals), debtor and such creditor. If the defendants were 17 id. 325.- ED. ALB. L. J.

plaintiffs seeking to enforce the note, it is clear that

they could not recover. Cockshott v. Bennett, 2 NEW YORK COURT OF APPEALS ABSTRACT. Term Rep. 763; Leicester v. Rose, 4 East, 372. But if

plaintiff has voluntarily paid the note he could not, MARITIME LAW - CONTRACT TO FURNISH SAILS TO according to the general principle applicable to exeVESSEL BUILDING, FURNISHED AFTER LAUNCHING, A cuted contracts, void for illegality, have maintained LAND CONTRACT AND LIEN UNDER STATE LAW VALID.— au action to recover back the money paid. Nellis v. A contracted to furnish sails to a schooner, which was Clark, 4 Hill, 424. It was claimed that the general rule being built. After the schooner was launched, work did not apply to money paid by the debtor or in his continued upon it, it was drawu out of the water and behalf, in pursuance of a secret agreement exacted by put again upon the ways, and while there caulked, the creditor, in fraud of the composition, and the painted and fastened, and the sails in question fur- cases of Smith v. Bromley, 2 Doug. 696; Smith v. Cuff, nished to it. The vessel was a sailing one, and the sails 6 M. & S. 160, and Atkinson v. Denby, 7 H. & N. 934, were furnished to complete its building, and were a were relied upon to sustain this claim. But these part of its construction. Held, that the contract of A cases go no further than to hold that the debtor himwas a-land contract, and a lien against the vessel could self, or a near relative, who, out of compassion for him, be enforced under the State law. The authorities are pays the money upon the exaction of the creditor as a very clear that an agreement for the building and con- condition of his signing the composition, may be restruction of a vessel is not maritime. Peoples' Ferry garded as having paid under duress and as not equally Co. v. Beers, 20 How. (U. S.) 402; Roach v. Chapman, criminal with the creditor. They cannot be upheld 22 id. 129; Morewood v. Eueyuish, 23 id. 491; Edwards on the ground simply that such payment was against v. Elliot, 21 Wall. 532; Cunningham v. Hall, 1 Clifford, public policy. It was conceded by Lord Mansfield, in 46; Young v. The Orphans, 2 id. 29. The cases, Shep-Smith v. Bromley, that where both parties are equally pard v. Steele, 43 N. Y. 52; Brookman v. Hamill, id. criminal against the general laws of publio policy the 554; Happy v. Mosher, 48 id. 313; King v. Greenway, 71 rule is potior est conditio defendentis. Lord Kenyon id. 417, in the use of the words "before launching, said, in Howson v. Hancock, 8 Term Rep. 575: “There is no case where money has been actually paid by one certainly to be required that the surety deal fairly of two parties to the other upon an illegal contract, and plainly with the creditor and give him to know both being particeps criminis, where an action has been that he intends to put him upon his equitable duty. maintained to recover it back.” It is said in Cro. Jac. The notice to the creditor should clearly inform him 187, that “a man shall not avoid his deed by duress of that he is required to take proceedings in the courts to a stranger." This rule was applied in Robinson v. enforce the mortgage. Singer v. Troutman, 49 Barb. Gould, 11 Cush. 57, where a surety sought to plead the 182, citing Remsen v. Beekman, 25 N. Y. 552. Judgduress of bis principal. The rule has been modified ment affirmed. Hunt V. Purdy et al., appellants. so as to allow a father to plead tho duress of his child, Opinion by Folger, C. J. or a husband the duress of his wife, or a child that of [Decided Nov. 9, 1880.! his parent. Wayne v. Sands, 1 Freeman, 161; Bayley

TRADE-MARK “RYE AND ROCK" TO DESIGNATE v.Clare, 2 Browne, 276; 1 Rolle's Abr. 687; Jacobs L.

MIXTURE OF RYE WHISKY AND ROCK CANDY NOT.-It Diot., “Duress." Plaintiff, in tho case at bar, was in

is a rule in the law of trade-marks that the use of any pari delicto with defendants, being only remotely re

name or symbol as a trade-mark must be new to make lated by marriage to the debtor. Plaintiff cannot

an exclusive right to use it as such. If the term has complain that defendants negotiated tho note so as to

ever before been used as applicable to a like article, it shut out the equities, as the words of negotiability therein show that its negotiation was contemplated

cannot be exclusively appropriated. It is also a rule

of that law that if the article is known to commerce when it was givep. Judgmeut affirmed. Solinger,

in general by the term claimed as a trade-mark, the appellant, v. Earle. Opinion by Andrews, J.

claim is ill-founded. It is also a rule that if the term [Decided Nov. 9, 1880.]

employed indicates the nature, kind or quality of the STATUTE OF LIMITATIONS — BEGINS TO RUN ON article, instead of showing the origin of it, an exCHECK AT TIME OF MAKING IF DRAWER HAS NO FUNDS clusive right to the use of the term may not be mainWITH DRAWEE.-Defendant gavo a check upon a bank tained. Plaintiff claimed as a trade-mark the words where he had no funds at tho timo or for more than “Rye and Rock," to designate as a beverage a mixture six years thereafter. The check was not presented for of white rock candy dissolved in rye whisky, and payment until. ten years after it was made. Ileld, alleged that plaintiff had for ten years used the words that the statute of limitations began to run at the to designato the mixture; that in 1877 defendants time the check was made, and an action thereon began to use the same words to designate a like mixagainst the maker was barred after six years. The ture; that in 1878 the commissioner of patents granted rule is well established that if the drawer has no funds plaintiff's application for a trade-mark in the words in the hands of the drawee, an action can be main- “Rye and Rock,” etc. Held, that under the rules tained against the former without presentment or above mentioned, plaintiff was not entitled to claim as notice of non-payment. Mohawk Bank v. Broderick, a trade-mark tho words mentioned to designate the 10 Wend. 304; Fitch v. Redding, 4 Sandf. 130; Healy mixture named. Judgment affirmed. Van Beil, apv. Gilman, 1 Bosw. 235; Johnson v. Bank of North pellant, v. Prescott et al. Opinion by Folger, C. J. America, 5 Robt. 554. The circumstance that the want [Decided Nov. 9, 1880.] of funds was the result of the fraudulent act of the

WILL- CONSTRUCTION — DEVISE TO WIFE WITH DISdrawer would not estop him from setting up the de

CRETION TO DEVISE TO CHILDREN GIVES HER FEE.-A fense of the statute. In such a case the check is due

will read thus, “1 do give and bequeath all my propwithout presentment and demand. The breach of the

erty, both real and personal, to my beloved wife Mary, contract is the cause of the action, and the statute

only requesting her at the close of her life to make begins to run from the time of such breach even if

such disposition of the same among my children and there is fraud on the part of the defendant. East

grandchildren as shall seem to her good.Held, that India Co. v. Paul, 1 Eng. L. & Eq. 44, 49; Battley v.

the wife took the testator's estate in fee and that the Faulkner, 3 Barn. & Ald. 288; Whitehouse v. Fellowes,

qualifying sentence would not be construed to create 100 Eng. C. L. 795; Wilkinsou v. Verity, L. R., 6 C.

a trust. The tendency of modern decisions is not to P. 206. Order affirmed. Brush, appellant, v. Barrett.

extend the rule or practice which from words of doubtOpinion by Miller, J.

ful meaning deduces or implies a trust. 2 Story's Eq. [Decided Nov. 9, 1880.]

Jur., $ 1069; Lamb v. Eames, L. R., 10 Eq. Cas. 267. In SURETYSHIP - WHAT NOTICE SURETY MUST GIVE TO

re Hutchinson v. Tennant, L. R., 8 Ch. Div. 540, the CREDITOR TO COMPEL LEGAL ACTION AGAINST DEBTOR.

doctrines set forth in tho cases or text-books are sub-F., who stood in the relation of a surety for the pay

ject to the rule in Williams v. Williams, 1 Sim. (N. S.) ment of a bond and mortgage not due, told plaintiff 358, that “the real question always is whether the wish who held the mortgage, in January or February, to

or desire or recommendation of the testator is meant • collect that mortgage in the spring and not let it run to govern the conduct of the party to whom it is adover the time it is due." There was nothing due and

dressed, or whether it is merely an indication of that payable until the 23d of May in that year. Held, not

which he thinks would bo a reasonable exercise of the a sufficient notice to plaintiff to release F. from lia

discretion of tho party, leaving it, however, to the bility where plaintiff neglected to foreclose when the party to exercise his own discretion.” This rule is apbond and mortgage becamo due. Plaintiff might well

plied and illustrated in Bernard v. Minshell, Johns. have understood defendant to mean that when the

Ch. (Eng.) 276, and in Howarth v. Dewell, 6 Jur. (N. bond became payable payment should be asked, for be

S.) 1360, where a devise by a testator of all the residue was not forced by the words used at the time when

of his property, real and personal, to his wife, with they were used to understand that collection by legal power to dispose of tho same among his children in proceedings was meant. The doctrine that a surety

her discretion, was held an absolute gift to the wife. may give the creditor notice to proceed against the

In Hutchinson v. Tenant, supra, testator gave all his principal, and if the latter refuses, to the damage of property to his wife "absolutely with full power to the surety, the obligation of the surety is discharged

her to dispose of the same as she may think fit for the or diminished, is not a favorite in the law and is not

benefit of my family, having full confidence that she accepted in all forums. 3 Kent's Com. 124, note c. It

will do so." "The court said: “ Both on principle and

in consonance with the most modern authorities, I dewas against opposition that it was adopted into the law

cide that the widow took absolutely.” Judgment of this State. See King v. Baldwin, 17 Johns. 384, 390, affirmed. Foose, appellant, v. Whitmore. Opinion by 394, 396, 397, 402; Colgrove v. Tallman, 67 N. Y. 95, 99. Danforth, J. It is not one that is to be applied with laxity. It is [Decided Nov. 9, 1880.]


able time after the trial is over. U. States v. Breit

ling, 20 How. 254; Stanton v. Embry, 93 U. S. 5o; STRACT.

Dredge v. Forsythe, 2 Black. 568; Genesee v. Bonna

mer, 7 Wall. 565. (2) Defendants sued out this writ of PATENT — RE-ISSUE BY COMMISSIONERS MUST BE FOR

error before the signature of the judge to their excepSAME INVENTION.-Under the statute in force in 1869

tions was obtained. Held, that they did not thereby and 1870, the commissioner of patents had authority

waive their exceptions. See Taylor v. Williams, 2 B. to grant re-issues only in certain specified cases. These

& Ad. 846; S. C., 6 Bing, 512, and 4 M. & P. 257. A were whenever a patent was inoperative or invalid by

contrary rule is not settled in England; nor is it asreason of a defective or insufficient specification, or by

serted in this country save in one New York decision. reason of the patentee's claiming as his own invention

See Brown v. Bissell, 1 Doug. (Mich.) 273; also Witbeck or discovery more than he had a right to claim as new,

v. Waine, 8 How. Pr. 433. (3) The bills were not sigued if the error had arisen by inadvertence, accident, or

nunc pro tunc, but appeared on their face to have been mistake, without any fraudulent or deceptive inten

signed ten days after tho trial. Held, not an objection. tion. The commissioner was invested with authority

The date of tho signature was at most an irregularity. to determine whether the surrendered patent was

Dictum to the contrary effect in Walton v. United valid by reason of a defective or insufficient specifica

States, 9 Wheat. 657, disapproved of. See Ex parte tion, or because the patentee had claimed more than

Bradstreet, 4 Pet. 107; Neece v. Healey, 23 Ill. 416; he had a right to claim as new; and if he found such

Illinois R. Co. v. Palmer, 24 id. 416; Dean v. Gridley, 10 to be the case, and found also that the error had been

Weud. 254; Hollowell v. Hollowell, 1 Monroe, 130; due to inadvertence, accident, or mistake, without

Hughes v. Robertson, id. 215. (4) A witness called to fraud, his decision was conclusive, and not subject to

prove the location of private lands was allowed to tesreview by the courts. But the law did not confer

tify that one M., a surveyor, had, while absent from the upon him jurisdiction to grant a re-issue embracing

lands in question, told him tho location and direction new matter, or a broader invention than what was

of certain boundary lines which M. said to witness be revealed by his original specification, or drawings, or

(M.) had surveyed, and witness was allowed to state models, except in some cases where there was neither

what the declarations of M. were. Held error. Ellimodel nor drawing. A re-issue for any thing more was

cott v. Pearl, 10 Pet. 412; Bartlett v. Emerson, 7 Gray, therefore inoperative and void. Acoordingly this

74; 5 Meto. 223; Long v. Cotton, 116 Mass. 414; Bender

v. Pierce, 27 Penn. St. 335. The conclusions to which court has repeatedly held, that if on comparing a reissue with its original, the former appears on its face

a great majority of the decisions of State courts lead to be for a different invention from that described or

upon this subject is this: In questions of private indicated in the latter, it must be declared invalid.

boundary, declarations of particular facts, as distinSeymour v. Osborn, 11 Wall. 544; Russell v. Dodge, guished from reputation, made by deceased persons, 93 U. S. 461. In this case in the issue of an original

are not admissible, unless they were made by persons patent for improvements in ovens, it appeared by the

shown to have had knowledge of that whereof they specifications that the products of combustion were

spoke, or persons on the land, or in possession of it carried on their way to the chimney through flues ex

when the declarations were made. To be evidence, terior to the oven proper and could not pass through it.

they must have been made when the declarant was In the re-issue the specifications showed that the pro

pointing out or marking the boundaries or discharging ducts of combustion passed through the oven. Held,

some duties relating thereto. A declaration which is a different invention, and the commissioner had po

a mere recital of something past is not an exception authority to grant a re-issue of the patent. Decree of

to the rule that excludes hearsay evidence. The Texas U.S. Ciro. Court Louisiana affirmed.

Ball et al., ap

decisions do not essentially vary this rule. George v. pellants, v. Langles et al. Opinion by Strong, J.

Thomas, 16 Tex. 74; Blaythe v. Sutherland, 3 McCord, [Decided Nov. 15, 1880.]

258; Stroud v. Springfield, 28 Tex. 649; Spear v. Coate,

3 McCord, 229; Weller v. Carroll, 29 Tex. 333; Evans PRACTICE -TIME WHEN JUDGE MUST SIGN EXCEP- v. Hunt, 34 id. 111; S. C., 49 id. 311; Smith v. Russell, TIONS - WRIT OF ERROR BEFORE EXCEPTIONS SIGNED 37 id. 247. (5) While when a person enters upon unWAIVER - DATE

SIGNATURE EVIDENCE occupied land, under a deed or title, and holds adPROOF OF BOUNDARY LINES BY REPUTATION — STATE- versely, his possession is construed to be co-extensire MENTS BY DECEASED PERSONS — ADVERSE POSSESSION with his deed or title, and the true owner will be — TRUE OWNER IN POSSESSION OF PART OF LOT.-(1) deemed to be disseized to the extent of the boundaries The rule requiring the presentation of bills of excep- described in that title, still, his possession beyond the tion for the signature of the judge within five days is limits of his actual occupancy is only a coustructive not a rule which controls his action. He may depart one. If the true owner be at the same time in actual from it in order to effectuate justice. Stanton v. possession of part of the land, claiming title to the Embry, 93 U. S. 552. It is a direction to the parties whole, the constructive possession is in him of all the and it expressly reserves the power to enlarge the land not in the actual possession of the intruder, and time. It is no doubt necessary that exceptions should this though the owner's actual possession is not within be taken, and at least, noted before the rendition of the limits of the defective title. “The reason is plain. the verdict, but the reduction of the bills to form, and Both parties cannot be seized at the same time by the the signature of the judge to the bills, required for same land under different titles. The law therefore their attestation, or as said in the statute of West- adjudges the seizure of all that is not in the actual 00minster, “for a testimony," may be afterward, during cupancy of the adverse party to bim who has the better the term. In practice it is not usual to reduce bills of title." Clarke v. Courtney, 5 Pet. 354. In Altemus y. exception to form and to obtain the signature of the Long, 4 Penn. St. 254, it was ruled that though actual judge during the progress of the trial. Nor is it neces- possession under a junior title of part of a tract of sary. The statute of Westminster did not require it. land, which interfered with an older grant, gave posIt would greatly and uselessly retard the business of session of the whole to the holder of the junior title, courts were it required that every time an excep- yet a subsequent entry of the true owner upon any tion is taken the progress of the trial should be stayed part of his land was an ouster of the intruder from until the bill could be reduced to form and signed by what he had in constructive possession merely. There tho judge. For this reason it has always been held is no authoritative decision that is in conflict with that the exception need only be noted at the time it is this. Judgment of U. S. Circ. Ct., W. D. Texas, romade, and may be reduced to form within a reason- versed and new trial granted. Hunnicut et al., plaint



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iffs in error, v. Peyton et al. Opinion by Strong, J. the deed L. was granted expressly the privilege of [Decided Nov. 15, 1880.]

alienating this right. To utilize this water he conTRIAL — EXCEPTIONS ON.--Where a counsel at trial

structed a tank cistern and bath-room in the said asked of the court to give a charge, consisting of four dwelling-house which were supplied with the water. propositions, which were set out, and “which instruc

He also used it in irrigating the land. L. thereafter tions,” according to the bill of exceptions, the court conveyed the land to another, through which conveyrefused to give," and the counsel excepted, held, that

ance plaintiff acquired title thereto. Subsequently according to the well-settled rule of this court, if L. conveyed to T. the water right. Held, that the either of these four propositions were erroneous, or in right to water was appurtenant to the land at the other words, if all tho charge thus asked was not sound

time L. conveyed it, and passed to his grantee, and law, the court did right in refusing the prayer which

defendant had no right to deprivo plaintiff of water. presented them as a whole. See Johnson v. Jones, 1 Appartenants may be of a corporeal or incorporeal

nature. Black, 120; Harvey v. Tyler, 2 Wall. 338; Lincoln v.

Jackson v. Stryker, 1 Johns. Ca. 284. In Claflin, 7 id. 139; Brown v. Taylor, 93 U. 8. 54.

Nicholas v. Chamberlain, Cro. James, 121, Croke says: Judgment of U.S. Circ. Ct., W. D. Tennessee, affirmed.

“It is held by all the court, upon demurrer, that if United States v. Hough et al. Opinion by Miller, J.

one erects a house, and builds a conduit thereto in an[Decided Nov. 15, 1880.]

other part of his land, and conveys water by pipes to the house, and afterward sells the house with the ap

purtenances, excepting the land, or sells the land to KANSAS SUPREME COURT ABSTRACT.

another, reserving to himself the house, the conduit JULY TERM, 1880.*

and the pipes pass with the house, because they are

necessary and appurtenant thereto." An appurtenant DELIVERY - WHAT DOES NOT CONSTITUTE


is that which belongs to another thing, but which has GATHERED CROP. – A., being the owner of sixty acres

not belonged to it immemorially. 1Ventris, 407; Coke of ungathered corn, and in debt to B. in a certain

on Litt. 121 b, and 122 a; ·Moore, 682. * Appurtenant amount, and to L. in another sum, made an agreement denotes annexed or belonging to; hut in law it denotes with them, by which he was to deliver to B., in satis

an annexation which is of convenience merely and not faction of his debt, 500 bushels of corn, the same to be

of necessity, and which may have had its origin at any gathered by B., out of the said sixty acres, and a pair time, in both of which respects it is distinguished of mules upon which L. held a chattel mortgage, and

from appendant." Abb. L. Dict., “Appurtenance." also to deliver to L., on the latter's farm, and to be An appurtenance may be annexed at any time. It is weighed on his scales, corn to the amount of $250, at the nature and use of the thing annexed which makes the price of fifteen cents per bushel, and in the rise up

it appurtenant or not, as the case may be. Farmer v. to twenty cents per bushel, on the delivery of which Ukiah Water Co. Opinion by Sharpstein, J. L. was to credit his claim against A. with $250, and to EVIDENCE- - EXCEPTION TO TESTIMONY OFFERED IN release his lien upon the mules. There was no separa- GROSS NOT GOOD IF ANY OF TESTIMONY COMPETENT. tion of the corn, and it was estimated that there would Where a mass of evidence is offered as an entirety and be corn enough to satisfy the agreement with B. and part of it is competent and part incompetent, an obL., and also what A. should want for his own use. jection to it as an entirety should not be sustained. After some of the corn had been delivered to L. (but Upon this subject there is a conflict of opinion. In New how much is not shown), a constable, with an execu- York and Pennsylvania it has been held, that if an offer tion against A., levied upon thirty acres of standing contains any matter not admissible as evidence, the corn, being a part of the corn above mentioned, and of whole may be rejected. Hosley v. Black, 28 N. Y. 444; the value of $240. L. thereupon brought replevin, Gardner v. Barden, 34 id. 436; Wharton v. Douglass, 76 claiming to be the owner. Held, that upon the facts Penn. St. 273. But in Alabama and Maryland, and in as stated, no delivery and no separation having been the Supreme Court of the United States, the contrary made, and both price and number of bushels as yet is held to be the moro correct rule. In Buffington v. unsettled, the title had not passed away from A., and Cook, 39 Ala. 66, a motion was made to exclude from L. could not maintain his action. Bailey v. Long. the jury all the indorsements on an execution; but a Opinion by Brewer, J.

part of them was legal evidence, and the court said: PARENT AND CHILD-STEP-CHILD. — It is well set

“If a portion of the testimony was illegal, the court tled, that in the absence of statutes, a person is not

was not bound to separate the legal from the illegal entitled to the custody and earnings of step-children, evidence, but might properly overrule the whole monor bound by law to maintain them. Yet if a step- tion." In Carroll's Lessee v. Granite Manufacturing father voluntarily assumes the care and support of a

Co., 11 Md. 403, and Curtis v. Moore, 20 id. 97, the rule step-child, he stands in loco parentis ; and the pre

is thus declared: “When an offer is made of a mass of sumption is, that they deal with each other as parent evidence complex in its character, and the whole of it is and child, and not as master and servant; in which objected to in such case, if any part of it is admissible, case the ordinary rule of parent and child will be held it is error to exclude the whole.” In Moore v. Bank to apply, and neither compensation for board is pre- of the Metropolis, 13 Pet. 302, it is said: “It is the sumed on the one hand, nor for services on the other. duty of the party taking exceptions to the admissiSmith v. Rogers. Opinion by Valentine, J.

bility 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 adSEPTEMBER, 1880.

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

Kinstry, J., dissented.

RECEIVER- WHERE MORTGAGE CONDITIONED land with a dwelling-house and buildings thereon,

MORTGAGEE MAY TAKE POSSESSION UPON DEFAULT, acquired by deed from defendant, a water company,

RECEIVER MAY BE APPOINTED IF DEFAULT OCCURS.80 much water as could be conveyed through a half- A mortgage given by a railroad company provided that inch pipe which tapped the pipes of defendant. By in case of default in the payment of the principal or

interest secured thereby, the mortgagees might take * To appear in 24 Kansas Reports.

possession of the mortgaged railroad. Held, that in


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