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STATUTE OF FRAUDS-AGENT TAKING TITLE TO LAND of making reasonable exertions to render the injury as

OWN NAME-PAROL AGREEMENT TO RECONVEY light as possible. Where this duty exists, the labor or DAMAGES. --A.and B.made a verbal agreement by which expense which its performance involves is chargeable B., as A.'s agent, was to buy certain land, take the to the party liable for the injury thus mitigated. Long deed in his own name, hold it till A. was ready to pay v. Clapp. Opinion by Cobb, C. J. for it, and then, retaining a part of the land for his [Decided May 28, 1884.) services, convey the rest to A. The purchase was

STOPPAGE IN TRANSITU-GARNISHMENT made by B., who refused to carry out the contract, wbereupon A. sued in assumpsit for damages arising right of stoppage in transitu arises upon the discovery

DEE'S CREDITORS.-The law is .well settled that the from the breach. B. pleaded under the statute of frauds that tbe agreement was not in writing, to which

by a vendor, after sale on credit, of the insolvency of

the vendee, and the right continues until the goods plea A. demurred. Held, that the plea was good, and

have reached the vendee, and the delivery to him or tbat the action could not be sustained. The fact that the defeudant brought the estate for the plaintiff, as his

his agent is complete. Hutch. Carr., $ 499; O'Neil v.

Garrett, 6 Iowa, 480; Calahan v. Babcock, 21 Ohio St. agent, does not make him any the less its legal owner, and therefore his agreement to convey the greater part

281; Reynolds v. Boston & M. R. Co., 43 N. H. 580;

Sutro v. Hoile, 2 Neb. 186; 2 Redf. Rail. 132. This of it to the plaintiff for what he paid for the whole of it is, notwithstanding the agency, an agreement to sell right is based upon the just and equitable rule of law

that the property of one man shall not be taken to pay the greater part of it for the price which the defendant paid for the whole of it. There are numerous

another man's debts, and is recognized in all civilized cases which support this view. Bartlett v. Pickersgill,

countries. We think it is equally well settled that

this right cannot be impaired or extinguished, during 4 East, 577, n.; Botsford v. Burr, 2 Johns. Ch. 406,

its existence, by the acts or interference of a third 409; Lathrop v. Hoyt, 7 Barb. S. C. 59, approved in Wheeler v. Reynolds, 66 N. Y. 227, 236; Bauman v.

party, but will follow the goods and attach to them.

Hence it is held that the seizure of such goods by an Holzbausen, 26 Hun, 505; Levy v. Brush, 45 N. Y. 589; Harrison v. Bailey, 14 S. Car. 334; Jackman v. Ring:itor, dies not destroy the right; but that the vendor

officer, under legal process in favor of some other credland, 4 W. & Serg. 149; Payne's Admr. v. Patterson's

may follow the officer and retake the goods. Rucker Admrs., 77 Penn. St. 134; Howland v. Blake, 7 Otto,

v. Donovan, 13 Kan. 251; Greve v. Duuham (Iowa), 14 624; Wetmore v. Neuberger, 44 Mich. 362; Horsey v.

N. W. Rep. 130. In the case of O'Neil v. Garrett, Graham, L. R., 5 C. P. 9. In most of these cases the

supra, the court says: “As to the effect of the levy attempt was to charge the purchaser as trustee, and

upon the goods by the defendant, Garrett, as sheriff, the attempt failed, but in all of them the contract was recognized as a contract for the sale of land, or for the by virtue of an attachment at the suit of a creditor of

Holmes, there can be no doubt but that the plaintiff's creation of an interest or trust in land, and therefore right as vendor is not divested by the levy before the ineffectual because not in writing. Spencer v. Lawton. goods came into the possession of the buyer. The Opinion by Durfee, C. J.

plaintiff has the preference over the legal process of a [Deeided April 12, 1884. ]

general creditor, although but for the suit, they would have fallen into the hands of the vendee.” In support

of which the court cites the following cases: Covell NEBRASKA SUPREME COURT ABSTRACT. v. Hitchcock, 23 Wend. 611; Buckley v. Furniss, 15 id.

137; 17 Wend. 505; Naylor v. Dennie, 8 Pick. 198; SawATTORNEY-COLLECTING MONEY-SUMMARY POWER yer v. Joslin, 20 Vt. 172; Hause v. Judson, 4 Dana, 11; OF COURT.-The jurisdiction of the District Court to

Cox v. Burns, 1 Iowa, 64. If the right of stoppage compel an attorney to pay money into court which continues until delivery of the goods, and a levy had been collected by the attorney for the client can

thereon does not divest this right, it seems clear on not be questioned; but when the client has received principle, that the right of the vendor cannot be imall the money to which he is entitled, the power of the paired or extinguished by the garnishment of the carDistrict Court ceases, and it cannot in a summary way rier, for the process of garnishment can have no greater compel the attorney to pay money into court for other

force than the levying upon the goods, as it is simply parties claining a share in the fees retained by the at

one of the methods of reaching the property of the torney. That questiou must be settled by an action debtor in the possession of a third party, which canbetween themselves. Baldwin v. Foss. Opinion by

not be reached by the ordinary levy and seizure. Reese, J.

Chicago, etc., Railroad Co. v. Painler. Opinion by (Decided May 28, 1884.)

Reese, J.

[Decided May 28, 1884.] TRESPASS-ASSUMING TO BY, GIVES NO TITLE.-(1) When a private person, without authority or appointment from any source,assumes WEST VIRGINIA SUPREME COURT OF APto act as a cunstable, and seizes the cbattele of another,

PEALS ABSTRACT. he becomes a trespasser; and it is no difference to him that he then and there had in his possession an execu

MASTER AND SERVANT ACCIDENT - BURDEN OF tion against such person issued by a justice of the

PROOF–“FELLOW SERVANT”-ERRONEOUS CHARGE.peace. (2) A sale by such unauthorized person of such chattels, as upon execution, conveys no title. (3) The It was certainly incumbent on the defendant company plaintiff in such execution cannot be held responsible

upon the facts shown by the record to show affirmafor the acts of such person in seizing or converting tively and positively that the accident was not caused such chattels, unless he requested or authorized such by its negligence, or the negligence of any agent for seizure in fact, or in some way ratified the same.

whose conduct the company itself was responsible. McMillan v. Rowe. Opinion by Cobb, C. J.

Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 14. And

the evidence showing, by the defendant's own wit. [Decided May 28, 1884.]

nesses, that the train was not made up in the usual DAMAGES-EXPENSE RENDERING INJURY LIGHT.-In and proper way, and that the conductor was not a feladdition to the general measure of damages, the law low servant of Moon, but his superior, and in a posiin some cases imposes upon a party injured from tion wherein he exercised discretionary authority, and another's breach of contract or tort, the active duty was charged with certain duties for the proper per

ACT AS CONSTABLE-SALE

.

case

formance of which the law holds the company itself GIFT-PAROL OF LANDS-EQUITY WILL EN FORCEresponsible, any negligence on his part in this behalf is STATUTE OF FRAUDS-PART PERFORMANCE-MAKING the negligence of the company itself. Railroad Co. v. IMPROVEMENTS.—A court of equity will compel the Fort, 17 Wall. 553; Brothers v. Cortter, 52 M0.373; Pat- conveyance of the legal title of land claimed under a terson v. Pittsburg and Connellsville R., 76 Peun. parol gift supported by a meritorious consideration, 389. H., the section master, in charge of a squad of and by reason of whicb the douee has been induced to hands working, altering and repairing the road, could alter his coudition, and make expenditures of money in no sense be regarded a fellow servant, in the same in valuable improvements upon the land, and equity common employment or department of service with will protect a parol gift of land equally with a parol Moon, who was a trainhand and brakesman. Connolly agreement to sell it, if accompanied by possession, and v. Davidson, 15 Minn. 519. They were not co-employ- the donee, induced by the promise to give it, has made ees, thrown together in a common duty, and having valuable improvements on the property. No writing opportunity to observe and judge of the babits and is necessary to create a good equitable title to real esqualifications of each other. Lewis v. St. Louis, etc., tate. If the contract, when in writing, would be enR. Co., 59 Mo. 495; Ryan v. Chicago & N. W. R. Co., forced as founded upon a valuable consideration, it 60 Ill. 171. And where a company delegates to an would in like manner be deemed a valuable consideraagent or employee the performauce of duties which tion when the contract was by parol. In the the law makes it incumbent on the company to per

of Neale v. Neales, 9 Wall. 1, in the form, his acts are the acts of the company-his negli- Supreme Court of the United States, Mr. Jusgence is the negligence of the company. Brothers v. tice Davis delivering the unanimous opinion of Cortter, 52 M0.373; Flike v. Boston and Albany R.Co., the court, said: “The statute of frauds requires a con53 N. Y. 549; Corcoran v. Holbrook, 59 id. 517; Mullan tract concerning real estate to be in writing, but courts v. Philadelphia & Southern S. S. Co., 78 Penn. 25; of equity-whether wisely or not it is now too late to Ryan v. Chicago & N. W. R. Co., 60 Ill. 171. If corpo- inquire-have stepped in and relaxed the rigidity of rations could in such cases escape liability on the plea this rule, and hold that a part performance removes that its agent was fellow servant or co-employee of the bar of the statute, on the ground that it is a fraud the party injured, it follows that they could never be for the vendor to insist on the abseuce of a written inheld liable at all, since such corporations must need strument, when he had permitted the contract to be perform their duties always through agents, who partly executed. And equity protects a parol gift of have a common employer. Flike v. Boston and Al. land equally with a parol agreement to sell it, if acbany R. Co., 53 N. Y. 519, supra; Hough v. Railroad companied by possession, and the donee, induced by Co., 10 Otto, 218-19; Whart. Neg., § 232. The fellow

the promise to give it, has made valuable improveservant and co-employee, for whose negligence the ments on the property; and this is particularly true company is not responsible, is one who is in the same when the donor stipulates that the expenditure shall common employment; that is, in the same shop or be made, and by doing this makes it the consideration place with, and having no authority over the one in- or condition of the gift.” In the case at bar it must be jured, and who is no more charged with the discre- borue in mind, as has been stated, that the agreement tionary exercise of powers and duties imperatively sought to be enforced is a parol agreement to give the resting on the company than the injured party; but land in question. It has been held in many reported where a person is placed in charge of the construc- cases that a court of equity will compel the conveytion or repair of machinery," the “dispatching of ance of the legal title to the laud claimed under a patrains," the “maintenance of way,” etc., he is not a rol gift supported by a meritorious consideration, and fellow servant with those under him, nor with those by reason of which the donee has been induced to alin a different department of the company's service. ter his condition and make large expenditures of He is the agent of the company, which has assumed money in valuable improvements on the land; and through him the performance of duties which are abso- that the donee under such circumstances becomes the lute and imperative, the omission or the negligence of equitable owner of the land, and may demand the leperforming wbich the law will in nowise excuse. gal title. In the case of Syler v. Eckhart, 1 Binney, Clarke v. Holmes, 7 Hurls. & Nor. 937; Ford v. Fitch- 380, Tilghman, C. J., said: “It has been settled that burg R. Co., 110 Mass. 241; Hough v. Railroad Co., 10 when a parol agreement is clearly proved, in conseOtto, supra. The second instruction given by the quence of which one of the parties has taken possession court was: “And the jury are further instructed that and made valuable improvements, such agreement if they believe the accident which caused his death shall be carried into effect. We see no material differwas occasioned by any negligence of H., the section ence between a sale and a gift; because it certainly foreman, in failing to signal the train, they cannot im. would be fraudulent conduct in a parent to make a pute such negligence in this case to the defendant, and gift which he knew to be void, and thus entice his should find for the defendant.” This instruction is child into a great expenditure of money and labor, of erroneous, and is against law and reason. An instruction which he meant to reap the benefit himself." See also which assumes that an employee “takes all risks" is Eckert, etc., v. Eckert, 3 Penn. 362; Eckert v. Mace erroneous. His contract is based on the implied duty and others, id. 364; Stewart v. Stewart, 3 Watts, and undertaking of the company to provide safe and 253; France v. France, 4 Halstead Ch. 619; Lobdell adequate machinery, competent and vigilant agents, v. Lobdell, 36 N. Y. 327; Bright v. Bright, 41 Ill. 97; and to keep its roadway and structures always in good Law v. Henry, 39 Ind. 414; Young v. Glendening, 6 and safe condition when he is required to go over Watts, 509; Mahon v. Baker, 2 Casey, 519; Atkinson v. them. Chicago & N. W. R. Co. v. Jackson, 55 III. 492; Jackson, 8 Ind. 31; Freeman v. Freeman, 43 N. Y. 34; Corcoran v. Holbrook, 59 N. Y.517; Baxter v. Roberts, Peters v. Jones, 35 Iowa, 512; Rerick v. Kern, 14 Serg. 44 Cal. 187; Snow v. Housatonio R. Co., 8 Allen, 441; & Rawle, 267; Sheppard v. Bevin and others, 9 Gill, Lewis' Admr. v. St. Louis & Iron Mountain R., 59 Mo. 32; Shobe's Exrs. v. Carr, etc., 3 Mun. 10. In the case 495; Patteson v.Pittsburgh & Connellville R.,76 Penn.

of Freeman v. Freeman, 43 N. Y. 34, Grover, J., said: 389; Drymala v. Thompson, 26 Minn. 40; R. & D. R.

“It is insisted that an executory promise, not founded

upon any valuable consideration, is a mere nude pact, v. Moore's Admr., 8 Va. L. J. 84. Moon v. Richmond

furnishing no grounds for an action at law, and that & A. R. Co. Opinion by Fauntleroy, J.

performance of such a promise will not be enforced in [Decided April 24, 1884.)

equity. This is true so long as the promise has no con

a

sideration. Any thing that may be detrimental to the penses, and commissions are paid, and this right is not promisee or beneficial to the promisor in legal estima- limited to charges on the particular cousigument of tion will constitute a good consideration for a promise. goods, but covers a general balance on the accounts Expenditures made upon permanent improvements between the factor and the principal, so far as concerns upon land with the knowledge of the owner, induoed the business of factorage. Whart. Ag., § 767; Edw. by his promise made to the party making the expendi- | Fact., 8$ 71, 72; Story Ag., $ 376; Matthews v. Menedge, ture, to give the lands to such party, constitute in 2 McLean, 145; Bryce v. Brooks, 26 Weud. 374; Kruger equity a consideration for the promise. Citing Lobdell v. Wilcox, 1 Amb. 252; Jordan v. James, 5 Ohio, 99; 7. Lobdell, 33 How. 347; ('rosbie v. McDoual, 13 Ves. Weed v. Adams, 37 Conn. 378. The statute of this 147; Shepherd v. Bevin, 9 Gill, 32; 3 Pars. on Con., State in this respect would seem to be in confirmation 359. The statute of frauds has no bearing on the case. of the common law. Rev. Stat., 8 3315. But where If the promise, reduced to writing, could under the cir- the general balance on the accounts of the factorage is cumstances be enforced in equity, it may be although by largely against the factor and in favor of the principarol.” It isagains: conscience to suffer a party who had pal, the former can have no lien upon the property in eutered and expended money on the faith of a parol bis possession, for he has no enforceable claim. Godagreement to be treated as a trespasser, and for the frey y. Furzo, 3 P. Wmg. 185; Zinck v. Walker, 2 W. other party, in fraud of his engagement, though that Bl. 1154; Tooke v.Hollingworth,2 H. B1.501 ; Walker v. was verbal, to enjoy the advantage of the money laid Birch, 6 Term R. 258; Weed v. Adams, supra; Jordan out. Courts interfere in such cases not on the ground v. James, supra; Enoch v. Wehrkamp, 3 Bosw. 398; of a breach of the verbal agreement, but because of the Beebe v. Mead, 33 N. Y. 587. In such case the factor's acts done under it on the faith of its terms, and which right of retention and sale is merely to reimburse himit would be bad faith in the vendor not to carry out self for the balance due him on the general account of by executing its terms, and a court of equity will the factorage. Brown v. M'Gran, 14 Pet. 479; Overt. always enforce a promise upon which reliance is Liens, S 105. Neither can a factor, who is indebted to placed, and which induces the expenditure of labor his principal on account of previous sales, acquire a and money in the improvement of land. Such a prom- particular lien upon goods subsequently sent to him ise rests upon valuable cousideration. The promisee for sale for expenses incurred on account of them, unacts upon the faith of the promise, and we can per- less such expenses exceed the amount of his indebtedceive no important distinction between such a promise ness. Edw. Fact., $ 72; Enoch v. Wehrkamp, supra. and a sale. Permitting the promisor to avoid perform- The lie of an agent and factor on the goods of his ance operates as a fraud as much in the case of a gift principal for specific expenses does not exist when the as in the case of a sale, so far as expenditures upon im- general balance of account is against him. Id. We provements are concerned, when possession has been must therefore hold that where a factor is largely intaken and valuable improvements made upon the faith debted to his principal on account of the factorage, of the promise. These acts constitute part perform- and thereupon voluntarily makes advances in the busiance by the donee, and the agreement will be specifi- ness not exceeding such indebtedness, such advances, cally en forced by a court of equity. Halsey v. Peters. being made for and in behalf of his principal, must be Opinion by Lacy, J. (See 27 Am. Rep. 535.)

deemed to have been so made by the factor in liquida[Decided May 1, 1884.)

tion of his own indebtedness pro tanto. McGraft v. Rugee. Opinion by Cassoday, J.

[Decided May 15, 1884.) WISCONSIN SUPREME COURT ABSTRACT.

NEGLIGENCE DEFENDANT PROVING PLAINTIFF'S

MARYLAND COURT OF APPEALS ABSTRACT.* CONTRIBUTORY.-In an action for negligence, if the plaintiff can prove his case without disclosing his owu MARRIAGE-ANTE-NUPTIAL AGREEMENT- SPECIFIC contributory negligence, then such contributory PERFORMANCE-MONEY VALUE IN LIEU.-By an antenegligence is purely a matter of defense to be proved nuptial settlement it was covenanted that the intended by the defendant. Randall v. N. W. P. Co., 54 Wis. wife, if she survived the husband, should receive at 147; Hoth v. Peters, 55 id. 405. The same rule bis death one dwelling-house, to be vested in her ab. prevails in the Supreme Court of the United States solutely, in lieu of dower, or distributive share in his and many of the States. See cases cited in Abb. Tr. estate. The husband, having become estranged from Ev. 595. The burden of proving such contributory the wife shortly before his death, left her in his will a negligence being ordinarily upon the fendant, there dwelling-house of comparatively small value and sub. would seem to be no objection to his affirmatively al- ject to an annual ground rent of $64, which she releging a fact which he may thus be required to prove. nounced. He disposed of his entire estate by will, Kelley v. Chicago, etc., R. Co. Opinion by Casso- which he made during the period of alienation from day, J.

his wife. On a bill by the widow asking for a specific [Decided May 15, 1884.)

execution of the covenant, and that she might have a AGENCY - FACTOR-LIEN FOR ADVANCES WHEN

dwelling-house suitable to her and her late husband's DOES NOT EXIST.-An agent employed to sell, or to

rank in life, and pecuniary circumstances, assigned to purchase and sell, goods or other personal property in

her, to be vested in her absolutely, or in lieu thereof trusted to his possession, by or for his principal, for a

a sum of money which the court might deem adequate, compensation, commorly called factorage or commis

it was held that the complainant had a right to resion, may properly be regarded as a factor. Story Ag.,

nounce the bequest, and was entitled under the cove$$ 33, 34a ; Edw. Fact., § 1; Whart. Ag., § 735. Here

nant to receive from her husband's estate a dwelling. the duties, powers, and compensation of the factors,

house suitable to his pecuniary circumstances, and and their relation to their principals, were originally position in society. But in all such cases, the agreeregulated by agreement. True there were some de

ment must be sufficiently definite to guide the court partures after the business had continued for a while,

in the direction to be given for the specific performbut there is nothing to indicate any change as to the

ance, or at any rate, that it may be made certain and title of the property, or the measure or source of com

definite upon proper inquiryStorer v. Great W. R. pensation. Undoubtedly a factor is entitled to retain

Co., 2 Y. & Coll. Ch. 48, 53; Wilson v. Furness R. Co., goods in his possession as such until his advances, ex.

* Appearing in 61 Maryland Reports,

L. R., 9 Eq. 28; Lytton v. Great N. R. Co., 2 Kay & J. 394; Hood v. North-East. R. Co., L. R., 8 Eq. 666; L. R., 5 Ch. App. 5:25; Wilson v. Northampton & Banbury Junc. R. C., L. R., 9 Ch. App. 279. In the last mentioned case, a railroad company agreed, for valuable consideration, with the laud-owner to erect and fit up a station on certain lands which they had bought from him; but the agreement.contained no further description of the station, nor any stipulation as to the use of it. The company refused to erect the station in the specified place, but substituted one at a distance of two miles therefrom. This substituted station the landowner refused to accept in lieu of the one to which he was entitled under the agreement. And the court upon application for specific performance, while holding that the case was fully within the jurisdiction for specific performance of the agreeniont, concluded that because of the indefinite character of the agreement, more complete justice could be done by awarding compensation, by way of damages, under the Stat. 21 & 22 Vict., known as Lord Cairn's Act, wbich only applies in cases where the court has jurisdiction to entertain the application for specific performance. But as in this case the specific execution of the covenant would be attended with no little difficulty, and as the relief prayed by the bill was in the alternative, she was entitled to receive a sum of money equivalent to the value of such house in lieu thereof. 2 Story Eq., S 799; Rider v. Gray, 10 Md. 282, 300; Bowie v. Stonestreet,6 id. 419, 431. This case would seem to fall within the reason and scope of the principle upon which compensation may be awarded. Busey y. Curley. Opiniou by Alvey, C. J.

JURISDICTION-over PERSON WAIVED BY APPEARANCE.- Where the subject-matter of the suit is one over which the court has jurisdiction, the appearance of the defendant by attorney waives the objection to the jurisdiction. Iu Qulton v. Radcliffe, L. R ,9 Com. Pleas, 195, Denman, J., says: “Actual service of the writ is not essential. If the defendant appears, that gives the court jurisdiction to proceed, provided the subject-matter of the action is one over which the court has jurisdiction." Keating, J., says in the same

“The question is, whether the fact of the writ having been served out of the jurisdiction makes the subsequent proceedings void ; in other words, whether the appearance of the defendant by his attorney, though the service was such that he was not bound to appear, gives the palatinate court jurisdiction. I am of opinion that the appearance did waive the objection to the jurisdiction." After an appearance it is too late to object to any infirmity in respect to the service of the writ or summons, except where the appearance is made for the special purpose of raising the objection. Ireton v. Mayor, etc. Opinion by Irving, J.

WILL-OBLITERATION --INOPERATIVE ALTERATIONSTATUTE MUST BE FOLLOWED.-A testator cannot by the obliteration of certain words in his will, convert a life estate into a fee simple. A testator left ten children-.seven sons and three daughters. By his will he directed that his estate be divided into ten equal parts or shares, and he gave to all his children life estates in their respective shares, with remainders over to their children, except his sons J. E. and L., to whom he gave their respective shares absolutely and in fee. Some time after the execution of the will, the testator erased or obliterated the names of his sons J. E. and L., wherever they occurred by drawing a live through them with his pen, but leaving the names legible. The erasures operated to confer estates in fee simple on all the sons. Held, that the attempted obliterations were inoperative, and the will should be read as it was originally written and executed. Any alteration in a will by interlineation or obliteration, whereby a dif

ferent disposition of the estate is sought to be made, will be held void, and the will will operate as origiwally executed. Every alteration in a testamentary disposition of real estate must be authenticated in the manner prescribed by the statute. Eschbach , Collins. Opinion by Yellott, J. Alrey, C. J., concurs. (All the authorities including those cited by the court are collated iu 45 Am. Rep. 327, note.-ED.)

MARRIAGE-ANTE-NUPTIAL DEED-CONSTRUCTIOXINTENTION.– Whenever it appears from the face of a deed executed in contemplation of marriage, and as an aute-nuptial settlement of the property of the woman, that the intention is to carry the title to the property beyond the period of the wife's death, and to exclude the husband, that intention must prevail, and the court will give a liberal construction to its language in order to discover and effectuate such intent. Ward v. Thompson, 6 G. & J. 349; Waters v. Tazewell, 9 Md. 291; Townshend v. Matthews, 10 id. 251; Hutchins v. Dixon, 11 id. 29; Denton v. Denton, 17 id. 403; Marshall v. Beall, 6 How. 70. In some of these cases the provisions of the conveyances are very similar to those in the present deed, while in others the intention to exclude the husband is much less apparent; but the rule of decision is the same in all. A deed executed in contemplation of marriage conveyed certain property in trust, the grantor to be permitted to take and receive during her life the net income aud profits thereof, to her sole and separate use, full power to dispose of the same by deed or will being reserved, and failing so to do, and dying intestate, the same to be held for her children or their descendants if she left any, if not, for her heirs-at-law. The intended husband was one of the witnesses to the deed, which was placed on record after the marriage. The grantor died intestate without issue, leaving her husband surviving her. Held, that the intent of the grantor to carry the title to the property beyond her life and to exclude her husband, was plainly manifest, and he was not entitled to any interest or share therein. Moody v. Hall. Opinion by Miller, J.

STATUTE OF FRAUDS- MEMORANDUM-TIME OF DELIVERY-CUSTOM-INSTRUCTION MUST PREJUDICE TO REVERSE.-It is not necessary in the written pote or memorandum of the sale of goods, required by the Statute of Frauds, that the time of the delivery should be stated, provided no time was fixed in the parol agreement. But if a time for the delivery of the goods be fixed in the verbal agreement of sale, such time must be incorporated in the written note or memo. randum thereof. 1 Benj. on Sales, 277. If no time be fixed in the agreement, for the delivery of the goods sold, the law will imply that it is the duty of the seller to deliver them in a reasonable time, and what is a reasonable time must depend upon the circumstances surrounding the case, and the character of the goods dealt in. If there be an established custom among merchants who deal in the particular goods sold, regulating the time of such delivery, the delive ery will be regulated and controlled by such custom. 2 Benj. on Sales, 891; Williams v. Woods, Bridges & Co., 16 Md. 220; Salmon Falls Manf. Co. v. Goddard, 14 How. (U. S.) 446. Before a case will be reversed, it must appear, not only that the instruction complained of was erroneous, but that the appellant was preju. diced thereby. Young v. Mertens, 27 Md. 114; Parker v. Wallis, 60 id. 15. Kriete v. Myer. Opinion by Stone, J.

case:

CRIMINAL LAW.

LARCENY-PRESUMPTION FROM POSSESSION.- A prisoner's exclusive and unexplained possession of stolen

property, recently after a theft, raises a presumption 28 Eng. Rep. 534; per Bramwell, B., followed. Cir. Cas. tbat he is the thief, and such presumption takes the Res., April 5, 1884. Reg. v. Carter. Opinion by Coleburden of proof from the prosecution and lays it upon ridge, C. J. (50 L. T. Rep. (N. S.) 596.) the prisoner. Roscoe Crim. Ev. 18; 2 Russ Cr. 338. To

JUROR-DISQUALIFICATION, NEW TRIALVIEW the same effect see Phil. Ev. (7th ed.) 186; Knicker

WAIVER.-A petition for a new trial on the ground bocker 5. People, 43 N. Y. 177; People v. Walker, 38

that one of the jurors was disqualified by a relationMich. 156; State v. Brady, 27 Iowa, 126; State v.

ship of cousanguinity is addressed to the discretion of Creson, 38 Mo. 372; State v. Turner, 65 N. C. 592; Wal

the court. Such a petition will not be granted wben ters v. People, 104 III. 544; Sablinger v. People, 102 id.

the relationship was by consanguinity in the sixth de242. And so far as we bave been able to discover, the

gree, was probably unknown to the juror, and was not Califoruia courts (18 Cal. 383; 48 id. 253) stand almost

shown to have injuriously affected the accused. “A aloue in the modification of the doctrine. Sup. Ct.

new trial will not be granted in a criminal case, says Arizona, Jan., 1884. Territory v. Casio. Opinion by

the Supreme Court of West Virginia, in a case similar Pemey, J. (2 Pac. R. 755.) [See 58 Ind. 310; 56 N. Y.

to the case at bar, “for matter that is a principal cause 315; 6 Neb. 102; 52 Miss. 695; 114 Mass. 299; 1 Hun, 670; 54 III. 405.- ED.)

of challenge to a juror, which existed before he was

elected and sworn as such juror, but which was unACCESSORY-RECORD OF CONVICTION-REMARKS OF known to the prisoner until after the verdict, and PROSECUTING OFFICER-WHEN NOT ERROR. —The stat- which could not have been discovered before the juror ute authorizes the charging of an accessory before the was so sworn by the exercise of ordinary diligence; fact as a principal. State v. Cassady, 12 Kas. 550. unless it appears from the whole case that the prisoner Upon the trial of an accessory before the fuct, the re- suffered injustice from the fact that such juror sat cord of the conviction of the principal is proof prima upon the case." State v. Williams, 14 W. Va. 851, 869; facie of that fact; but this is not conclusive, and other State v. McDonald,9 id. 456; McDonald v. Beall,655 Ga. evidence of the commission of the crime by the prin- 288, 293. When a view is bad in a criminal case the accipal is admissible. Levy v. People, 80 N. Y. 327; cused may waive his right to be present at tte view. Arnold v. State, 9 Tex. Ct. App. 435. (2) Upon the Such a waiver is presumed when he does not ask to be trial of a defendant charged with a criminal offense,the present and makes no objection in the course of the latter rested without testifying. The State introduced trial after the view; and when the view was allowed at a witness and offered to prove certain facts, to which the request of his counsel, who stated that the health the defendant objected as not bein proper rebuttal. of the accused precluded his attendance. A reporter Thereupon the county attorney said to the court, in who was present at the trial, whose occupation would the hearing and presence of the jury: “Your honor, naturally lead him to note and remember the incidents we bad a right to presume that the defendant would of it, makes affidavit that the court spoke to one ibe testify as a witness in his own behalf, in which case counsel for the prisoner in regard to wbat was to be this evidence would have been proper rebuttal, and we done with him, and that tho counsel replied that his having failed to do so, we claim the right to introduce health was such that it would not be prudent for him it now." Held, that these remarks to the court were to go with the jury on such a severe day. We think not such an infringement upon the statute forbidding that under these circumstances the prisoner must be the prosecuting attorney to refer to the fact that the held to have waived his privilege, which in our opindefendant did not testify in his own behalf as requires ion it was competent for him to do. State v. Adams, us ander the circumstances of this case to grant a new 20 Kans. 311, 323; United States v. Sacramento, 2 Mont. trial. We understand the statute is explicit that 239, 241; People v. Murray, 5 Crim. Law Mag. 223; State when a defendant in a criminal cause declines to tes- v. Polson, 29 Iowa, 133; Carroll v. State, 5 Neb. 31; Hill tify in his own behalf, absolute silence on the subject v. State, 17 Wis. 697 ; Fight v. State, 7 Ohio, 180; Mcis enjoined on counsel in their argument on the trial, Corkle v. State, 14 Iud. 39. Sup. Ct. Rhode Island, and that the courts will hold prosecuting attorneys to April 4, 1884. State v. Congdon. Opinion by Durfee, a strict observance of their duty in this respect. State C. J. (As to first point see 6 Allen [N. B.), 389. [14 5. Graham, 17 N. W. Rep. 192; Long v. State, 56 Ind.

R. I.] 18%; 26 Am. Rep. 19; Commonwealth v. Scott, 123

EVIDENCE-LEADING QUESTION-ASSUMING FACT.Mass. 239; 25 Am. Rep. 87. Yet we do not think the incideutal allusion to the court by the county at

A question which assumes the existence of a fact es

sential to a conviction, where there was no evidence torney, under the circumstances, was such miscon

that the fact existed, is entirely inadmissible. The duct as requires us to grant a new trial. The remarks

question is leading, as are all questions to a witness of the county attorney were not made in an address

which assume the existence

material to the isto the jury, were not directed to the jury, nor in

sue, which have not been proved. 1 Greenl. Ev. § 434; tended for the jury. It is possible and more than

1 Starkie Ev. (10th ed.) 197; Turney v. State, 8 Smedes probable that the members of the jury heard the re

& M. 104. Hence the specific objection was well taken marks, as they were uttered in their presence, but the

and ought to have been sustained. But it is sometimes county attorney evidently did not intend to infringe

said that it rests in the sound discretion of the trial upon the provision of the foregoing statute, and we

court to allow leading questions to be put to witnesses, cannot regard his remarks, made as they were, as ma

and that error cannot be assigued on the rulings in torial error. Calkins v. State, 18 Ohio St. 366. Sup.

that behalf. It is undoubtedly the law that if a witCt. Kansas, Jan., 1884. State v. Mosley. Opinion by Horton, C. J. (31 Kans. 355.) [See 2 Pao. Rep. 609;

ness appears to be hostile to the party producing him,

or unwilling so give evidence, it is in the discretion of 61 Iowa, 559; 32 Eng. Rep. 277-9.-ED.]

the court to allow leading questions to be put to him, EVIDENCE-POSSESSION OF STOLEN GOODS.-On an aud in such cases error cannot, in general, be assigned indictment for stealing goods, and also for receiving upon the ruling. 1 Greenl. Ev., $ 255. But here the ing them knowing them to have been stolen, under witness does not appear to have manifested any hostil. section 19 of the Prevention of Crimes Act 1871, evi- ity to the prosecution, or any unwillingness to testify. deuce of other stolen goods being found in the posses- Under all the circumstances of the case, we think the sion of the prisoner is not admissible unless they are ruling of the court permitting the above question to found in bis possession at the same time; that is, at be put to the female witness was not a proper exercise the time he was found in possession of the goods he is of the discretion of the court, and that such ruling indioted for stealing Reg. y. Drage, 14 Cox C. C. 85; may be assigned as error. See opinion by Chief Jus

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