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credit for necessaries; that the goods supplied by the band's liability is founded upon some law other than plaintiffs were, as it is admitted they were, necessar- that which governs in general the relations of principal ies; and that, as a consequence, an implied authority and agent. It is urged that it is hard to throw upon a is established. This contention is founded upon an tradesman the burden of inquiring into the fact of a erroneous view of what is meant by the term “pre-wife's authority to buy necessaries upon her husband's sumption," in cases where it has been used with refer- credit. I assent to the answer that while the tradesence to a wife's authority to pledge her husband's man has at least the power to inquire or to forbear from credit for necessaries. There is a presumption that giving credit, it is still harder and is contrary, if not she has such authority in the sense that a tradesman to public policy, yet to general principles of justice, to supplying her with necessaries upon her husband's cast upon the husband the burden of debts which he credit, and suing him, makes out a prima facie case has no power to control at all except by a public adagainst him, upon proof of that fact and of the cohab-vertisement that his wife is not to be trusted, and in itation. But this is a mere presumption of fact, respect to which, even after such advertisement, he founded upou the supposition that wives cohabiting may be made liable to a tradesman who is able to with their husbands ordinarily have authority to man- swear that he never saw it. It appears to me that the age in their own way certain departments of the decision of the majority of the judges in the case of household expenditure, and to pledge their husband's Jolly v. Rees has put the law as regards this matter credit in respect of matters coming within those de- upon a proper footing, and that there is no ground for partments. Such a presumption or prima facie case is disturbing the judgment in this case which the defendrebuttable, and is rebutted when it is proved in the ant has obtained. particular case, as here, that the wife has not that

Appeal dismissed with costs. authority. If this were not so, the principles of agency upon which, ex hypothesi, the liability of the husband

NEW YORK COURT OF APPEALS ABSTRACT. is founded, would be of practically no effect. Feeling this difficulty, the appellants' counsel shift their

ACTION LIABILITY INCURRED THROUGH WRONGground, and contend, that although under the circum

FUL ACT OF ANOTHER GIVES RIGHT OF ACTION. – Destances of this case, the wife may have had no authority in fact or in law to pledge her husband's credit,

fendant, an oil company, represented to S., the master

of a vessel, that it had placed on his vessel 110 barrels yet the defendant must be taken to hare held out his

of oil, and he, supposing the representation to be corwife as having authority to pledge his credit to all

rect, signed a bill of lading therefor, and delivered it persons supplying her with necessaries, without notice

to H., who sold it for value to B. Not being able to that she had not authority in fact, and consequently is estopped as between him and the plaintiffs from deny- ship, to B., he paid B. the value thereof. Held, that

deliver the oil, which had never been placed upon his ing her authority. This contention appears to me to have no better ground of support than the one with

S. or his assignee could maintain an action against de

fendant for the value so paid. The payment by S. to which I have just dealt. If a tradesman has had deal

B. was a compulsory payment, caused by the act of the ings with the wife upon the credit of the husband, and

defendant, and the law will imply a promise on its the husband has paid him without demur in respect of

part to repay the money. For the failure of S. to such dealings, the tradesman has a right to assume, in the absence of notice to the contrary, that the author

deliver the oil, B. had a remedy by action and could

euforce the claim against S. or his ship (Merchants Bk. ity of the wife which the husband has recognized con

of Canada v. Uniou & T. Co., 69 N. Y. 373; McLaughtinges. The husband's quiescenco is in such a case tantamount to acquiescence, and forbids his denying 271), and as B. was a purchaser of the oil for value,

lan's Merch. Ship, 371; Evans v. Marlett, 1 Ld, Raym. an authority which his own conduct has invited the tradesman to assume, just as it would forbid his deny-defense, show that he had not in fact received the

upon the faith of the bill of lading, S. could not, in ing the authority of a servant who had been in the

number of barrels in the bill of lading specified. Nor habit of ordering goods for him from the tradesman,

was it necessary that he should withhold payment and whose authority he had secretly revoked. But

until suit brought. It was enough that the demand what, in the case of a tradesman dealing with his wife

was legal and one which could be enforced. Maydew for the first time, has the husband done or omitted to

v. Forrester, 5 Taunt. 615. See, also, Leake ou Cont. do which renders it inequitable for him to deny his

77; Moule v, Garrett, L. R., 7 Exch. 101. Judgment wife's authority? For the tradesman, it is said that

affirmed. Van Santen v. Standard Oil Co., appellant. the mere relationship of husband and wife entitles

Opinion by Danforth, J. him to assume, in the absence of notice to the contrary, that the wife has authority to pledge her husband's

APPEAL-DISCRETIONARY ORDER — EXONERATION credit for necessaries. But this is a fallacy. The trades

OF BAIL. — Under section 191 of the old Code, bail man must be taken to know the law; he knows (for might be exonerated, among other ways, by the legal the present argument proceeds upon that supposition) discharge of the principal from the obligation to renthat the wife has no authority, in fact or in law, to

der himself amenable to process within twenty days pledge the husband's credit, even for necessaries, un

after the commencement of the action against the less he gives it her, and that what the husband ex- bail, or within such further time as might be granted pressly or impliedly gives he may take away. How

by the court. Held, that whilo exoneration within then can the tradesman dealing with the wife for the twenty days was matter of right, after that time it first time, and without any communication with or depended upon favor or the discretion of the court, knowledge on the part of the husband, say that he is

and the action of the court could not be reviewed by induced or invited, either by law or the husband, or

this court. Brady v. Brundage, 59 N. Y. 310; Anonyby both combined, to deal with the wife upon the faith

mous, id. 313; Alling v. Fahey, 70 id. 571. Appeal disand in the belief of her being in fact authorized to

missed. Mills v. Hildreth, appellant. Opinion by pledge her husband's credit? If he be so induced or

Danforth, J. invited, it can only be upon the footing of the law

[Decided June 1, 1880.] making a husband absolutely liable for necessaries EVIDENCE OF VALUE – purchased by his wife to any person dealing with her, ISTENCE OF CONTRACT - JOINT DEBTORS DECLARAalthough for the first time, without notice that her au- TIONS BY ONE DO NOT BIND OTHERS. --(1) In an action thority is limited; but if the law does so make him to recover the balance of the purchase-money of a liable, there is no need for any estoppel, and we are farm sold by plaintiff to defendant, the defense litidriven back upon the exploded notion that the hus- gated was whether a mortgage executed by other par

WHEN ADMISSIBLE - EX

ties on other property and transferred to plaintiff was course runs to have the same kept open and to distaken as payment, or as plaintiff claimed, as security. charge therein the surface-water which naturally flows Plaintiff testified in his own behalf that when the thereto, is not limited to the drainage and discharge transaction occurred plaintiff objected to taking the of surface water into the stream in the same precise mortgage; that defendant represented that the mort- manner as when the land was in a state of nature and gage (which was a second one) was ample security; unchanged by cultivation or improvements. The that the farm was worth it; that the farm was subse- owner of lands drained by a water-course may change quently sold upon a foreclosure of the first mortgage and control the natural flow of the surface-water and brought only enough to pay such mortgage. Held, therein, and by ditches or otherwise accelerate the that evidence upon the part of defendant, showing flow or increase the volume of water which reaches the what the value of the farm was when the transaction stream, and if he does this in the reasonable use of his took place, was admissible. This does not conflict with own premises he exercises only a legal right and incurs Green v. Disbrow, 50 N. Y. 334, the authority of which no liability to the lower proprietor. Waffle v. New is not disturbed. (2) A witness testified that a con- York Cent. R. R. Co., 53 N. Y. 11. The natural catract had been abandoned and another verbal contract pacity of the stream cannot be exceeded however. made. Held, not objectionable on the ground that it Accordingly where plaintiffs, who had excavated a was a conclusion of law, or that the facts and circum- quarry, formed thereby a reservoir into which the stances constituting the contract or the abandonment surface water from the contiguous lands drained in were not stated. It has frequently been held that a the spring, when they commenced their operations, witness cognizant of the fact can state whether an pumped this water together with that arising from the agreement was made, without detailing the circum- melting snow and what came from small water-courses stances showing that it was made. Sweet v. Tuttle, cut off by the excavation into a water-course which 14 N. Y. 465; Frost v. Benedict, 21 Barb. 247; Ayrault further down crossed defendant's lands, there being v. Chainberlain, 33 id. 229; Union Sem. v. McDonald, no more water sent down than would have naturally 34 N. Y. 379; Osborn v. Robbins, 36 id. 365. (3) A joint flowed if the excavation had not been made, held, debtor has no authority to bind any other person that plaintiffs were exercising their lawful rights, and jointly liable with him, by his statements or admis- defendant had no right to obstruct the channel, even sions, unless he is the agent or in some other way the though the pumping caused a larger flow than there representative of such person. The mere fact that he otherwise would have been, the water-course being is a joint debtor never gives the authority. Van sufficient to carry off all the water flowing or pumped Keuren v. Parmelee, 2 N. Y. 528; Shoemaker v. Bene- into it, and it not appearing that defendant has sufdict, 11 id. 176. Judgment affirmed. Wallis, appellant, fered any injury. Judgment affirmed. McCormick v. Randall. Opinion by Earl, J.

et al v. Horan, appellant. Opiniou by Andrews, J. [Decided June 1, 1880.]

[Decided June 1, 1880.] SURETYSHIP - OFFICIAL BOND — TAX COLLECTOR – HOW FAR SURETY LIABLE.-In an action upon a bond INDIANA SUPREME COURT ABSTRACT. it appeared that the bond set forth that plaintiff hav

MAY 24, 1880. ing been appainted treasurer of the village of Edgewater, appointed one M. “collector, to collect the

ESCHEAT - WHAT STEPS NECESSARY FOR STATE TO taxes to be levied and assessed upon said village," and

SECURE

-ESTOPPEL. - (1) Where lands are contained a condition that if M. “ shall well and truly

escheated, by the death of an alien, to the State, there collect the tax which may be delivered to him and

seems to be a difference between cases where the alien faithfully discharge his duties as such collector and

dies intestate, leaving no one in possession, and where pay over all moneys which he shall receive for taxes as

he makes a devise, as to the steps to be taken to secure such collector and render a true and faithful account,'

possession. In the former case there are no known etc., the obligation shall be void. By the charter of

heirs, and no claimant appearing, the State therefore the village (Laws 1870, ch. 674), the property within

has title at once, and may enter and take possession. the village was made liable to assessment for village,

In the latter case there are known devisees claiming county and State purposes, and all was to be collected

the land; the State therefore must first establish her by the village treasurer. The village of Edgewater is

title to the land by information found, before she is in two towns, a part being in Middletown and a part

entitled to possession. See Eldon v. Doe, 6 Blackf. in Southfield. Held, that the sureties on the bond

341; Doe v. Lazenby, 1 Ind. 234; Murray v. Kelly, 27 id. would be liable for a breach of the collector's duty in

42; Fuhrer v. State, 55 id. 160; Halstead v. Board of respect to taxes for which the whole property of the

Commissioners, 56 id. 363; Dale v. Frisbie, 59 id. 530; village was subject to assessment, namely, village,

State v. Meyer, 63 id. 33; Fairfax v. Hunter, i county, and State taxes; but would not be liable for

Cranch, 603; Wilbur v. Tobey, 16 Pick. 177; White s. the taxes collected for the two towns, the tax of each

White, 2 Hetl. 185; O'Hanlin v. Den, Spencer, 31; town being leviable on only a part of the property in

Dew v. Colgrave, 4 Zabr. 66; Rubeck v. Gardiner, 7 the village. The liability of a surety is limited to the

Watts, 455; Farar v. Dean, 24 Mo. 16; Crane v. Reeder, express terms of the contract, and his obligation

21 Mich. 24. (2) When such escheated land has been should be construed strictly and favorably to the

sold for taxes, after the State has become entitled surety so far as is warranted by the terms employed.

thereto by reason of the escheat, the State is estopped Ludlow v. Simond, 2 Cai. Cas. 1. Judgment affirmed.

from setting up its title against one purchasing at such Ward, appellant, v. Stahl et al. Opinion by Miller, J.

tax sale. Dezell v. Odell, 3 Hill, 215. The courts in [Decided June 15, 1880.]

some of the States hold that a sovereignty, or ComWATER-COURSE RIGHT OF SUPERIOR OWNER TO monwealth, or State, is not bound by an estoppel; but USE AS OUTLET - ARTIFICIAL CHANGE IN FLOW.- this court does not approve of the doctrine. States While the right to the use of a water-course upon the exact justice, and they must do justice. Commonlands of another as an outlet for water exists only in wealth v. Andre, 3 Pick. 224, is quite in point. In that respect to the waters of which the water-course is the case the Legislature, for a valuable consideration, had natural outlet, and does not justify the diversion and granted certain lands to an alien, his heirs and assigns; turning of the waters of one stream into another and it was held upon the death of the alien that the (Merritt v. Parker, 1 N. J. 460; Tillotson v. Smith, 32 N. lands descended to his heirs, although they were also H. 90; Mayor of Baltimore v. Appold, 42 Md. 442), the aliens; and that upon inquest of office the Commonright of the owner of lands through which a water- wealth was estopped from setting up the alienage of

TITLE

the grantee, or his heirs, as the ground of an escheat. unquestionable in the several opinions delivered in the This is the better doctrine. See, also, Bigelow on Sinking Fund Cases, 99 U. S. 700. But for the proEscheat, 246, and the authorities there cited; Nieto v. vision in the Constitution of the United States which Carpenter, 7 Cal. 527. In support of the general doc- forbids impairing the obligation of contracts, the trine of estoppel see the following authorities: Wel- power to amend and repeal corporate charters would land, etc., Co. v. Hathaway, 8 Wend. 480; Carver v. be ample without being expressly reserved. The resJackson, 4 Peters, 1; Laney v. Laney, 4 Ind. 149; Gat- ervation of the right leaves the State where any soveling v. Rodman, 6 id. 289; Conklin v. Smith, 7 id. 107; reignty would be if unrestrained by express constituBarnes v. McKay, id. 301; Morris v. Stewart, 14 id. tional limitations, and with the powers which it 334; State v. Stanley, id. 409; Junction R. Co. v. Har- would then possess. It might therefore do what it pold, 19 id. 347; Burton v. Reeds, 20 id. 87; Berry v. would be admissible for any constitutional governAnderson, 22 id. 36; Fletcher v. Holmes, 25 id. 458; ment to do when not thus restrained, but it could not Love y. Wells, id. 503; Joyce v. First Nat. Bank of do what would be inconsistent with constitutional Madison, 62 id. 188; Hadley v. State, 66 id. 271. Reid principles. And it cannot be necessary at this day to et al. v. State of Indiana. Opinion by Biddle, J. enter upon a discussion in denial of the right of the EVIDENCE-ON ACTION FOR SEDUCTION – ILLICIT

government to take from either individuals or corporINTERCOURSE OF FEMALE. — It is abundantly estab

ations any property which they may rightfully have lished that in an action for seduction the woman

acquired. In the most arbitrary times such an act was seduced cannot be asked on cross-examination, for the recognized as pure tyranny, and it has been forbidden purpose of showing her bad character, whether she has

in England ever since Magna Charta, and in this counnot had criminal intercourse with other men, nor for

try always. It is immaterial in what way the property the purpose of impeaching her if she deny it. Shattuck

was lawfully acquired; whether by labor in the ordinv. Myers, 13 Ind. 46; 5 Wait's Act. and Def. 667; 1

ary avocations of life, by gift or descent, or by making Greenl. Ev., $ 458; 2 id., $ 577; Hoffman v. Kemerer,

profitable use of a franchise granted by the State; it 44 Penn. 452; Doyle v. Jessup, 29 Ill. 460. In the lan

is enough that it has become private property, and it guage of this court in the case of Bell v. Rinker, 29

is then protected by the law of the land.” Even Ind. 267, supra, “character could not be attacked or

municipal corporations, though their charters are in sustained by proof of specific acts." But in such an

no sense contracts, are protected by the Constitution action by a woman seduced, under a statute allowing

in the property they rightfully acquire for local purher to bring it, such questions may be asked for the

poses, and the State cannot despoil them of it. Terrett purpose of showing the paternity of a child brought

v. Taylor, 9 Cranch, 43; Pawlet v. Clark, 9 id. 292; forth by her and of affecting the damages. Walker v.

State v. Haben, 22 Wis. 660; People v. Common CounState, 6 Blackf. 1; Hill v. State, 4 Ind. 112; Townsend

cil, 28 Mich. 228. City of Detroit v. Detroit & Howell v. State, 13 id. 357; Whitman v. State, 34 id. 360. Smith

Plank Road Co. Opinion by Cooley, J. v. Garagan. Opinion by Worden, J.

HIGHWAY ALLEY IN CITY NOT.- An alley in a city can in no proper or legal sense be considered as a

public highway, or governed by rules relating thereto. MICHIGAN SUPREME COURT ABSTRACT. While the city may have, and undoubtedly has, cerAPRIL, 1880.

tain limited rights therein for municipal purposes, yet

the public have no general right of way over or through CONSTITUTIONAL LAW — STATE UNDER POWER TO

the same. It is designed more especially for the use AMEND CHARTER CANNOT TAKE AWAY PROPERTY

and accommodation of the owners of property abutRIGHTS FROM CORPORATION.- A State statute pro

ting thereon, and to give the public the same unqualividing that no plank road company organized under a

fied rights therein that they have in and to the use of general act mentioned, to which the statute was an

the public streets would defeat the very end and obamendment, should maintaiu a toll-gate within the

ject intended. Paul v. Detroit, 32 Mich. 110. corporate limits of a city or village without the con

Any obstruction to the right of passage through sent of the local authorities,for collect toll for any por

or to the proper use of any alley, by those entition of its road within such limits in which a pave

tled thereto, cannot, therefore, be considered as a ment was maintained by the municipality, held,

publio wrong. The grievance, if any, is an individual invalid where the effect of its enforcement would be

one, and for which there may, for a willful or unnecesto deprive a company of the right to take toll on two

sary obstruction, be a private remedy. Bagley v. and a half miles of its road, and the fact that the People. Opinion by Marston, C. J. general act contained a provision authorizing the MARRIED WOMAN - MAY BE ENTITLED TO SERVICES Legislature to amend, repeal, or alter such act, would PERFORMED IN HUSBAND'S FAMILY.- Under a statute not affect the result. There is no well-considered which had been held to authorize a married woman to case in which it has been held that a Legislature under carry on business on her own account with the consent the 'power to amend a charter might take from the of her husband, held, that she might with his consent corporation any of its substantial property or property be entitled to perform for compensation services in his rights. See Albany, etc., R. R. Co. v. Brownell, 24 N. family, such as attending upon his aged, blind and imY. 345. It was there decided that although the Legis- becile father, who lived with her husband. No dislature might require railroad companies to suffer high- tinotion can be drawn between the services of the wife ways to cross their tracks, they could not subject the performed in and about the house and those perlands which the companies had acquired for other formed elsewhere, as a foundation for a claim to repurposes to the same burden, except in connection covery for her own benefit. If the husband can with provision for compensation. The decision was consent to her giving her time and attention to the in accord with that in Commonwealth v. Essex Co., 13 management of a millinery or dress-making establishGray, 239, 253, in which, while the power to alter, ment, or to any other regular business, away from her amend or repeal the corporate franchises was sus- own, and if this makes the business her own, there tained, it was at the same time declared that “no seems to be no conclusive reason why she may not amendment or alteration of the charter can take away consent to her making her services in the household the property or rights which have become vested un- available in the accumulation of independent means der a legitimate exercise of the powers granted.” The on her own behalf. He relinquishes her right to her same doctrine is clearly asserted and affirmed in Rail- services in the one case no more than in the other, and road Co. v. Maine, 96 U. 8. 499, and is assumed to be perhaps in the last case the ordinary course of marital

[blocks in formation]

relations is least disturbed. In Tillman v. Shackleton, gence cannot be determined until one or the other of 15 Mich. 447, the business for which the wife was pre- these conclusions has been drawn by the jury. The paring was that of keeping boarders; and in Merri- inference to be drawn from the evidence must be weather v. Smith, 44 Ga. 541, she was to give her certain and incontrovertible, or they cannot be depersonal labor in the cultivation of a cotton crop. In cided by the court. Negligence cannot be conclusively the well considered case of Peterson v. Mulford, 36 N. established by a state of facts upon which fair-minded J. 481, the labor in the proceeds of which the wife was men may well differ. Detroit & M. R. Co. v. Van protected was picking berries, boarding children, sell- Steinberg, 17 Mich. 99; Railroad Co. v. Stout, 17 Wall. ing milk, butter, eggs, etc. Mason & Dunbar. Opin- 657; West Chester & P. R. Co. v. McElwee, 67 Peun. ion by Cooley, J.

St. 311; Barron v. Eldredge, 100 Mass. 455; Doorman

V. Jenkins, 2 Ad. & El. 256. The degree of negligence VIRGINIA SUPREME COURT OF APPEALS is a question for the jury. How much care will, in ABSTRACT.

a given case, relieve a party from the imputation of JANUARY TERM, 1880.*

gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending

upon a great variety of circumstances, which the law MORTGAGE — OF GOODS TO BE MANUFACTURED

cannot exactly define. Storer v. Gowen, 18 Me. 174. WHEN VALID IN EQUITY.- A., being the owner of a

177. The question of gross negligence was left to the cotton factory, enters into a covenant under seal with

jury by Mr. Justice Story in Tracy v. Wood, 3 Mason, T., which is duly admitted to record, which, reciting a

132. Carrington v. Ficklin's Eær. Opinion by Burks, previous deed of trust by A. to secure advancements

J. made or to be made by T. to A., witnesses that in consideration of the premises and of the advances already SURETYSHIP-UNDERTAKING FOR EMPLOYEE OF CORmade and to be thereafter made by T. for the purchase PORATION - CONSTRUCTION OF INSTRUMENT --CHANGE of cotton or for other expenditures connected with OF EMPLOYMENT.— E. was employed by the S. Express the manufacture of cotton goods at A.'s factory, the Company as freight clerk at P., and whilst su emsaid A. covenants to deliver to the said T. each yard of ployed executed a bond, with sureties, by which, after cotton goods manufactured by him at the said factory. reciting that whereas E. is to be hereafter employed And T. covenants that he will, from time to time, ad- by the S. Express Company in its business of forwardvance such sums of money as may be required for the ing by different railroads, etc., packages of any and all purchase of cotton manufactured in said factory, and kinds, and movable property, including money and sethat he will advance further sums of money as inay be curities for money, E., in consideration of said emrequired to pay hands and necessary expenses incurred ployment and the compensation he is to receive from in running the machinery in said factory, etc. And it said company for his services, covenants, etc., that he was further agreed between the parties that the said A. will well and truly perform all the duties required of shall sell no goods manufactured in the said factory, him in said employment, and truly account for all unless upon receipt of a written authority from T. to money, etc., which may come to his possession or conthat effect, specifying the amounts of goods to be sold, trol by said employment, eto. And E, and his sureties the price and terms of sale, and approving the credit bound themselves for the faithful performance of the of the purchaser; and T. shall receive five per cent for above covenants by E. in the penalty of $2,000. After commissions and guaranty on the entire product of the execution of this bond, E. was raised to the office said factory, whether sold by T. or A., by the authority of principal agent of the company at P., and whilst of T. as aforesaid. And T. is to have the same security acting as such principal agent embezzled money which under the said deed of trust as if this covenant had came into his hands. Held, there being no dispute been executed at the same time as the deed. Held, about the facts, it is for the court to construe the inthat the covenant by A. is valid in equity to secure to strument, and the jury are bound to take the conT. the cotton and goods thereafter purchased and made struction of the court as correct. The rule, as laid at the said factory, for the repayment to him of all down by Baron Parke in Neilson v. Harford, 8 M. & money advanced or paid by him for cotton to be W. 806, 823, is generally accepted. “The instruction manufactured at said factory and the expenses in- of all written instruments," he says, “belongs to the curred in running the said machinery, whether said court alone, whose duty it is to construe all such inadvances were made before the date of said covenant struments as soon as the words in which they are or afterward. That the covenant having been duly re- couched, and the surrounding circumstances, if any, corded, it is notice to all parties claiming under A. have been ascertained as facts by the jury; and it is That the right of T. to the raw cotton, cotton yarn and the duty of the jury to take the construction from the cotton cloth on hand is preferable to the right of an court, either absolutely, if there be no words of art or execution creditor of A. on an execution issued since phrases used in commerce, and no surrounding cirthe covenant was executed. Holroyd v. Marshal, L. cumstances to be ascertained ; or conditionally, when R., 10 H. L. 19; Beall v. White, 94 U. S. 382, 387; those words or circumstances are necessarily referred Story's Eq. Jur. (9th ed.), $ 1040; Dunham v. Railway to them. Unless this were so there would be no cerCo., 1 Wall. 254; United States v. New Orleans Rail- tainty in the law,” etc. See, also, Brown's Leg. Max. road, 12 id. 362; Borst v. Nalle, 28 Gratt. 4:23. First | 104, (side p.); 1 Chitty on Cont. (11th Am. ed.), 103; TalNational Bank of Alexandria v. Turnbull & Co. Opin-bot v. R. & D. R. R. Co., 31 Gratt. 685. And surroundion by Anderson, J.

ing circumstances relied on may be accepted as facts NEGLIGENCE - BAILMENT - - QUESTION FOR JURY.

established, iu like manner as if found by the jury. It A gratuitous bailee is only liable for gross negligence.

is the province of the court to construe in the light of The question of negligence on the part of au agent, as

the facts, but the construction is limited by the rules a general rule, is a question of fact, and not of law. It

of law to the language employed in the instrument. is only in that class of cases where a party has failed

• The writing," says Greenleaf, "may be read by the in the performance of a clear legal duty, that when

light of surrounding circumstances in order more perthe facts are undisputed, the question of negligence is fectly to understand the intent and meaning of the necessarily one of law. When the question arises parties; but as they have constituted the writing to upon a state of facts on which reasonable men may

be the only outward and reliable expression of their fairly arrive at different conclusions, the fact of negli - meaning, no other words are to be added to it, nor sub

stituted in its stead. The duty of the court in such * To appear in 32 Grattan's Reports.

cases is to ascertain, not what the parties may have secretly intended, as contradistinguished from what corporation, pursuant to the statute of 1854, chap. 87, their words expressed; but what is the meaning of the buildings erected thereon do not become the property words they have used.” 1 Greenl. on Ev., $277; Beau- of the person owning the fee of the highway upon mout v. Field, 18 Eng. Com. L. Rep. 334; Doe v. Tem- which they stand, even though they are allowed to replemau, 24 id. 336, 343. In the case at bar, the obliga- main thereon a considerable length of time; and an tion, by its terms, extends to any employment of E. injunction cannot be maintained at the suit of such by the express company, and the sureties are liable to person against a purchaser of the buildings from one the company for the money embezzled by E. whilst of the directors of the late company to restrain him acting as principal agent of the company at P. Collier from removing them. Johnson v. Heiser. Opinion v. Southern Express Co. Opinion by Burks, J.

by Beckwith, J.

FORECLOSURE — RIGHTS OF MORTGAGEES AS TO SALE SUPERIOR COURT OF BUFFALO.

OF PARCELS.—A mortgagee of two lots of land released GENERAL TERM ABSTRACT.

one of them from the lien of his mortgage, and at the

same time the mortgagor gave a mortgage to B. on the HUSBAND AND WIFE — LIABILITY OF HUSBAND FOR

lot released. Held, that the former mortgagee had a REPAIRS ON WIFE'S HOUSE. — For many purposes a

right to insist that the lot released, the title to which house belonging to the wife, but occupied by the hus

still remained in the mortgagor, should be first sold to band as the home and residence of himself and family, hardt v. Lymburner. Opinion by James M. Smith, J.

satisfy a prior mortgage held by another party. Bernmay be regarded as in his possession rather than that of the wife. Alexander v. Hard, 64 N. Y. 228. When PLEADING INFANCY — EVIDENCE NOT OBJECTED repairs become necessary upon the premises, and no ar

TO,—

:- The defense of infancy must be pleaded in order rangement on the subject exists between them, it would to be available. Where defendant's counsel asked appear to be as much his duty as that of the wife to bear him his age, and the question was not objected to, and the expense, since he has the beneficial use of the prem- no further evidence was given upon the subject, held, ises. In ordering the repairs, she may be regarded as that plaintiff was not precluded from raising the obacting consistently with either character, that of owner, jection, upon exception to the judge's charge to the or as agent of her husband. Where, therefore, the wife jury, that the defense of infancy not being pleaded, directed the person who performed the work to her hus- | the testimony admitted was, under the issues, wholly band, and the latter promised to pay the bill, and he immaterial. See Hamilton v. N. Y. Cent. R. R. Co., paid similar bills to other persons, it was left to the 51 N. Y. 100. Cutter v. Getz. Opinion by James M. jury to find whether the wife acted as his agent in or- Smith, J. dering the repairs — whether he intended to adopt and

JUSTICES' COURTS — MISJOINDER OF DEFENDANTS.-ratify her act as his agent, and make the debt his The common-law rule that in an action upon contract own; and a verdict for the plaintiff was sustained. In against several persons alleged to be jointly liable, the such case, therefore, he promises to pay his own debt, plaintiff must establish the joint liability of all the deand not merely that of a third person. Ross v. Janes. feudants in order to recover against any of them, no Opinion by Beckwith, J.

longer prevails even in justices' courts. That rule was FORECLOSURE – DEFENDANT CANNOT SET UP PARA- adopted when the rules of pleading and practice were MOUNT TITLE.-The only proper parties in a foreclos- highly artificial and technical, and the rule itself is ure suit are the mortgagor and mortgagee and those purely technical. It rested upon the doctrine that the who have acquired rights or interests under them sub- allegations of the pleading must be proved exactly and sequent to the mortgage. The rights of those claiming without the slightest variance. Now, no variance beby title paramount, or in hostility to the title of the tween the pleadings and proofs is regarded, unless it mortgagor, cannot be litigated in such an action. affects the merits and the essential rights of the parWhere, therefore, the complaint) avers that a de- ties, and amendments are allowed upon very liberal fendant claims an interest in the premises accruing terms. The rule should cease with the reason for it. subsequent to the mortgage and inferior thereto, it is It was adopted in justices' courts from courts of record not necessary or proper for such defendant to set up a and was enforced in the former merely because it was title existing in him which is paramount to the mort established and enforced in the latter. As to the latgage, since no decree can be made in the action which ter, the Code has changed it ($ 1204), and there ought will affect such title. Banks v. Walker, 3 Barb. Ch. not to be any difference between the practice in such 158; Holcomb v. Holcomb, 2 Barb. 20; Lee v. Parker, cases in the courts of record and in the inferior courts. 43 id. 611; Brundage v. Dom. & For. Miss. Soc., 60 id. Otherwise, upon a new trial in the higher court (old 204; Lewis v. Smith, 9 N. Y. 502; Merchants’ Bank v. Code, $ 352), there would be this anomaly in the law : Thomson, 55 id. 7. Yerkes y. Roots. Opinion by plaintiff could recover against one defendant and disJames M. Smith, J.

miss as to the other, while he could not do so in the MUNICIPAL CORPORATION - NEGLIGENCE.- A por

court below. Therefore, where in an action against tion of the plank of a cross-walk was gone, leaving a several, upon an alleged joint contract, plaintiff proves space about four feet long, fifteen inches wide, and lish the liability of the others, he may have judgment

one of them liable upon the contract, but fails to estabeight inches deep, and the plaintiff, before reaching this space, accidentally tripped and fell therein, breaks against one, and be dismissed as to the others. Lowe ing his collar bone. Held, (1) that the defect in the McGuire v. Johnson, 2 Lans. 305. Hammer v. Knell.

v. Rommel, 5 Daly, 17; Ackley v. Tarbox, 31 N. Y.564; walk was not the cause of plaintiff's fall. (2) That the Opinion by James M. Smith, J. evidence is insufficient to warrant the conclusion that the hole or space was the cause of the injury received, and that the injury would not have been the same if

CRIMINAL LAW. the plank had remained there and he had fallen upon that. The burden was upon the plaintiff to show that

CONSTITUTIONAL LAW – RIGHT OF TRIAL BY JURY the defect in the walk caused the injury. Luedecke v.

IN VICINAGE. — Under constitutional provisions that Buffalo. Opinion by James M. Smith, J.

“The right of trial by jury shall remain," etc., and TURNPIKE ROAD - ABANDONMENT OF OWNERSHIP that this method of trial shall be guaranteed in every OF BUILDINGS REMAINING THEREON.- Upon the re- criminal prosecution, held, that a statute providing Deal of the charter of a turnpike company, and the that an accused person may be tried in another county abandonment or surrender of its road to a municipal | than that where the offense was committed, the selec

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