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good consideration. 3d. It must be reasonable; that is, it should afford only a fair protection to the interests of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public.
The motion does not disclose that it was claimed in the court below that the contract was lacking in any of these elements, but only that it was too indefinite and uncertain in its language to be enforced. The respondent admits the making of the contract and full performance on the part of the petitioner, but concedes that he has paid no attention to it whatever, except to keep the money paid under it. This is not very creditable, to say the least, and the excuse given does not at all relieve him in a moral point of view. He says, in effect, that inasmuch as he did not understand, by the language which he used in the contract, where the circle with its ten-mile radius would be drawn, he will locate within the town of Litchfield, where he can do the other party the most injury, and appropriate to himself the good-will of the business he had sold, knowing absolutely such conduct to be contrary even to his own understanding of the contract. Such a position might well excuse a court of equity from giving any construction to the contract merely for his future guidance. But he says that he stands simply on his legal rights, and he insists that the contract by the rules of law is too uncertain and indefinite, both as to territory and time, to be binding. This question is involved in the motion for a new trial, and calls for a decision; and with a view to prevent future litigation between the parties, we will discuss it briefly.
The counsel for the respondent ask in their brief, "How can the court determine under this contract the territory from which the respondent is excluded from practicing dentistry by the provision, within a radius of ten miles from Litchfield?' At what point is the radius to be taken? From the center of the town of Litchfield? Or is it to be taken from the extreme boundaries of the town?" The construction suggested by the last interrogatory is manifestly unnatural and unreasonable. The large extent and irregularity of the boundary lines of the town would extend the prohibited territory much further from the respondent's former place of business at certain points than at others, without any reason for it founded on the extent of the good-will of the business in reference to which it is to be presumed the limits were prescribed. And besides, the term "radius," which means "a right line drawn or extending from the center of a circle to its periphery," is wholly inapplicable to such a construction. But in making such a contract the parties would naturally take their stand at the place where the business to be sold had been carried on, and would fix the utmost limits of the territory at equal distance from that point in every direction, and as far at least as they supposed the good-will might attract customers. Now, the contract is dated at "Litchfield," where the postoffice of that name was located, and the ten miles are to be computed from "said Litchfield," referring to the place where it was dated. It is also to be remarked that the precise point in the village of Litchfield where the business referred to had been carried on by the respondent is mentioned, namely, "in the rooms over Dr. Beckwith's drug store."
Now, if we put ourselves in the position of the parties it would seem that the language which they used is capable of very easy and definite application, and thus construed the contract means ten miles in every direction from the center of the village of Litchfield.
tion as to time is indefinite or perpetual will not of itself avoid the contract if it is limited as to place, and is reasonable and proper in all other respects. Hitchcock v. Coker, 6 Ad. & El. 447; Bun v. Guy, 4 East, 190; Chesman v. Nainby, 2 Strange, 739; S. C., 2 Ld. Raym. 1456; Wilkins v. Evans, 3 Younge & Jerv. 318; Mallen v. May, 11 Mees. & Wels. 652; Hastings v. Whitley, 2 Exch. 611; Story on Sales (1st ed.). § 493; Pierce v. Woodward, 6 Pick. 206; Bowser v. Bliss, 7 Blackf. 344.
It is said that the petitioner may cease to practice dentistry, and that in such case the respondent ought not to remain under a perpetual injunction. The court in its discretion might in the decree have anticipated such a contingency and provided for it, but the decree is not invalid on account of such omission, any more than the contract is.
The rule as to the contract is, that if it is reasonable when made, subsequent circumstances, such as the fact of the covenantee ceasing business, so as no longer to need the protection, do not affect its operation. Elves v. Crofts, 10 C. B. 241.
A new trial is not advised.
WHEN DEMAND BEFORE ACTION FOR CON-
CALIFORNIA SUPREME COURT, AUGUST 31, 1880.
HARPENDING V. MYERS.
Where one in good faith purchases personal property from
J. C. Bates and C. L. Ackerman, for respondents. SHARPSTEIN, J. By the findings of fact, which are conceded to be correct, it appears that on the 5th day of April, 1873, the plaintiff deposited with one Baux, at San Francisco, certain jewelry. In about one month thereafter the plaintiff, being about to leave San Francisco and go to St. Louis, demanded her jewelry of said Baux; and he, pretending that his father had the key to the safe, induced her to leave without her jewelry, promising to forward it by express to her at St. Louis, so that it would reach there nearly as soon as she would. In fact, however, he had then pawned and delivered a part of said jewelry to the defendants, who were pawnbrokers, and on the 17th day of May, 1873, he pawned and delivered a part of the residue of said jewelry to them, and on the following 9th of July he pawned and delivered the entire residue thereof to them. Baux did not redeem the pledge, and on the 6th day of June, 1874, defendants sold it in the manner provided by law. On the 24th of July, 1876, plaintiff demanded said jewelry of the defendants, or its value, and said demand not being complied with, she commenced this action. She alleges, among other things, that the defendants, on the 6th day of June, 1874, unlawfully converted and disposed of said jewelry, and then alleges that on the 24th day of July, 1876, she demanded it as above stated. The judgment demanded is for the possession of the property, or, if that cannot be had, for the value of it.
One of the allegations of the answer is that the cause of action did not arise or accrue within three years before the commencement of the action, and that it is barred by subdivision 3 of section 338 of the Code of Civil Procedure. The court reudered judgment in favor of the defendant, and from that judgment the
The only remaining inquiry is, whether any more definite limitation as to time is required. The contract is silent in respect to the time of its duration. But there is a well-settled distinction between a general restriction as to place and a general restriction as to time. The mere fact that the duration of the restric-plaintiff appeals to this court.
The sole question which we have to consider is whether the action was commenced within three years after the right of action accrued. All the cases agree in this, that a right of action accrues in favor of the owner of goods as soon as they are wrongfully taken from his possession, or wrongfully converted by one who rightfully came into the possession of them. No right of action accrued against the defendants in this case until they took the plaintiff's property without her consent, and according to the New York cases and decisions in some of the other States, no right of action, in the absence of a demand, accrued until they sold it. So far as we are advised, neither that nor the opposite doctrine has ever been expressly adopted in this State. We are therefore at liberty to adopt the doctrine which we think to be the more reasonable.
The reason of the New York rule, as stated by Mr. Justice Bronson in Barrett v. Warren, 6 Hill, 348, is that "a man who innocently purchases property, supposing that he should acquire a good title, ought not be subjected to an action until he has an opportunity to restore the goods to the true owner." In this case the reason of the rule ceases, because if the defendants had not supposed that Baux had a good title to the property, a cause of action would have accrued in favor of the plaintiff at the moment of their obtaining possession of it, and consequently would have been barred by the Statute of Limitations when this action was commenced. It clearly was not the intention of the courts which laid down or adopted that rule to place an innocent bona fide purchaser in a worse condition than an original wrong-doer would occupy, as it obviously would when applied to a case like that now before us.
Of the New York doctrine Mr. Justice Cowen, in Barrett v. Warren, supra, says: "I will not, however, deny that an exception in favor of the taker, where he is a bona fide purchaser from the wrong-doer, has found its way into the books; nor that however discordant it be with established principles, it may at least in this State have become too inveterate to be displaced." Again, in the same opinion he says: "The result is, that no English adjudication creates an exception in favor of one who purchases from the tortious-taker of another's property." He further expresses the opinion that the New York rule originated in a misconception of the English cases upon the subject. In this view of the matter he is sustained by Mr. Justice Metcalf, whose opinion was concurred in by Justices Shaw and Dewey in Stanley v. Gaylord, 1 Cush. 536, who, in referring to the remarks of Mr. Justice Cowen that the rule which created an exception in favor of a bona fide purchaser might have become too inveterate in New York to be displaced, says: "We are not embarrassed by any decisions in this Commonwealth which are discordant with established principles; and therefore we deem ourselves not only warranted, but bound, to decide this case according to those principles which we find well stated by Weston, J., in Galvin v. Bacon, 2 Fairf. 30-1, as follows: Whoever takes the property of another without his assent, express or implied, or without the assent of some one authorized to act in his behalf, takes it, in the eye of the law, tortiously. His possession is not lawful against the true owner. That is unlawful which is not justified or warranted by law; and of this character may be some acts which are not attended with any moral turpitude. A party honestly and fairly, and for a valuable consideration, buys goods from one who has stolen them. He acquires no rights under his purchase. The guilty party had no rightful possession against the true owner, and he could convey none to another. The purchaser is not liable to be charged criminally, because innocent of any intentional wrong; but the owner may avail himself against him of all civil remedies provided by law for the protection of property. If the bailee of prop
Stanley v. Gaylord, supra, was a case where the bailee had mortgaged, as security for his own debt, the property of his bailor, and the mortgagee took possession of it under his mortgage, and the bailor sued the mortgagee in trespass.
In Galvin v. Bacon, supra, the plaintiff being the owner of a horse, bailed him to A for use for a limited period, under the expectation of a purchase by the latter. During the time A, for a valuable consideration and without notice, sold the horse to B, and he in like manner to the defendant; and the court held that no previous demand was necessary to enable the owner to maintain replevin against the last purchaser. In Mich. igan and Vermont the same doctrine prevails.
In Wells v. Raylan, 1 Swan (Tenn.), 501, it is distinctly held that where the possession of property is obtained from one who had no right to transfer it, a right of action by the owner against the transferee accrues as soon as the latter acquires possession of it; that the bare taking of possession under such circumstances constitutes a new conversion on the part of the person taking it, and that from the time of the commission of that act the statute will commence running.
It has been held in this State that the exemption from being sued without previous demand does not apply to sheriffs who seize upon execution property in the possession of, but not belonging to, the execution debtor. Sedly v. Hays, 1 Cal. 160; Boulware v. Craddock, 30 id. 190; Wellman v. English, 38 id. 583. Nor to an execution debtor who purchases at sheriff's sale property so seized. Sargent v. Sterm, 23 id. 359. Nor to a purchaser for value who had notice, before he removed the property, sufficient to put him upon inquiry as to the true ownership, even though such notice was not received until payment of the purchase-price. Scribner v. Martin, 11 id. 203. None of these cases conflict with any decision made elsewhere upon the points involved in them, so far as we are advised; and they are not cited because of any bearing that they are supposed to have upon the point now under consideration, but merely for the purpose of showing that the question under consideration is an open one in this State.
It will be observed that wherever the doctrine of exemption prevails it is strictly limited to what are termed bona fide purchasers for value and without notice.
We are unable to perceive, however, that a person can ever be considered a bona fide purchaser of goods from one who has no right to sell in a case where the rule caveat emptor applies. The law imputes notice to him. Under that rule he is not only put upon inquiry, but he is conclusively presumed to have ascertained the true ownership of the property before purchasing it. If he has notice in fact, no demand upon him for the property is necessary before commencing the action to recover it. If he is chargeable with constructive notice, the result in all other cases is the same. But as we have before stated, the operation of a rule which exempts a bona fide purchaser from being sued until after demand is made is, in all cases to which it has been applied, favorable to the bona fide purchaser, and is claimed to have been devised for his protection. If applied to this case, its operation is exactly the reverse of that. To hold that the statute did not commence running in favor of these defendants from the time of the delivery of the goods to them, because at that time they were conscious of no wrong-doing, which if they had been conscious of would have set the statute in
motion in their favor, involves an absurdity. And when oue construction of the law will lead to absurd consequences, and another will not, it is the duty of the court to adopt the latter. One construction of the law in this case would have set the statute in motion at the time of the delivery of the goods from Baux to defendants if they had known that he was not the owner of them; but as they did not know that fact, the statute did not commence running until they sold or otherwise converted the goods. That is more favorable to the mala fide than to the bona fide purchaser. But that must be the obvious result if we apply to this case the rule contended for by the appellant. We are unwilling to give a conscious wrong-doer any advantage over a constructive wrong-doer. And the rule which we shall apply in this case will simply have the effect to put them on an equal footing. We shall hold, in accordance with the rule adopted in Maine, Michigan, Vermont and Massachusetts, that the defendants having acquired the possession of plaintiff's property by and through the tortious act of Baux and not otherwise, such possession was tortious from its commencement, and constituted a conversion of the plaintiff's property, for which she might at any time within three years thereafter have maintained an action without previously making any demand, and that the omission to commence an action within that time constituted a bar to this action.
Myrick and McKee, JJ., dissented.
NEW YORK COURT OF APPEALS ABSTRACT.
ADVERSE POSSESSION OF WOODLAND-WHAT SUFFICIENT -EJECTMENT NOT REQUIRED TO OBTAIN RIGHTS FROM TRESPASSER - RULE OF DAMAGES FOR TRESPASS IN CUTTING TIMBER. — (1) In an action for damages for cutting timber from eleven acres of land claimed by plaintiff, plaintiff proved title to a farm of 122 acres, of which 22 acres (including the 11) were woodland. The chain of titlo commenced in 1847; plaintiff's father took a deed in 1855, and by descent and transfer from the widow and heirs of his father, he acquired title. The woodland was contiguous to the cultivated land, and was not fenced or inclosed, which was in accordance with the custom of the country. Wood was cut by plaintiff or his predecessors in title, from the 22 acres, for fuel, fencing and boards, every year since 1847, whenever required, and appropriated for the benefit of the farm. Defendant claimed title through a deed to ono W. from the State, in 1829, and a conveyance by W.'s heirs in 1877, to one M., who the same year conveyed to defendant, who cut the wood that year. It was in evidence that W. at one time lived on a farm contiguous to the 11 acres and to which they belonged. There was no proof that W. was ever in possession of the 11 acres or made any claim to them, and it was shown that he died some forty years previous to 1877. For thirty years no one but plaintiff or his predecessors cut wood from the land, and they paid taxes on the entire farm during that time. Held, sufficient to establish title by adverse possession in plaintiff, and the existence of a line of marked trees through the wood lot would not establish a claim against plaintiff's title. (2) Plaintiff was not bound to resort to ejectment or any other remedy to vindicate his rights, but was entitled to maintain an action for trespass. Machin v. Geortner, 14 Wend. 239. (3) The trial court held the rule of damages in such action to be the difference in the value of the farm with the timber on and the value after it was cut. Held no error. In an action to recover damages for such an injury done to the inherit- | ance, it has been held that it is competent for a witness to give his opinion as to the value of the farm
with the timber on and the value after it was taken off. Van Deusen v. Young, 24 N. Y. 9. See, also, Easterbrook v. Erie Railway Co., 51 Barb. 94. Tho cases of Whitlock v. New York Cent. R. R. Co., 36 Barb. 644: Cook v. Brockway, 21 id. 331, do not conflict with this rule. (4) In a case where tho damages are such as would necessarily and naturally result from the injury complained of, it is not necessary that they should be specially averred to authorize a recovery. Jutte v. Hughes, 67 N. Y. 267; Vandershee v. Newton, 4 id. 132. Judgment affirmed. Argotsinger v. Vines et al., appellants. Opinion by Miller, J. [Decided Oct. 12, 1880.]
CRIMINAL LAW-RECEIVING STOLEN GOODS-MARRIED WOMAN MAY BE CONVICTED WHEN ACTIVE IN CRIME JOINT INDICTMENT OF HUSBAND AND WIFEPRESUMPTION FROM POSSESSION. - Defendants, who were husband and wife, were jointly indicted for receiving stolen goods, knowing them to be stolen. The goods, which were stolen from R., were found in a room of which defendants had control, adjoining the room occupied by defendants and communicating with it by a door. In her husband's absence the wife, by words and active opposition, attempted to prevent the searching officers from entering the room where the goods were. At the trial the judge instructed the jury that in law the wife was presumed to be under the control of tho husband and to have been driven to the offense by him, and consequently should be acquitted, unless the evidence was, in their judgment, sufficient to overcome or rebut the presumption. Held, that there was no error in thus submitting the question of the wife's guilt to the jury. Marriage is no protection to the wife against conviction for a crime where she is shown to have taken an activo and willing art in its commission. 2 Lewin's C. C. 229; State v. Nelson, 29 Me. 329; Cassin v. Delany, 38 N. Y. 178; Seiler v. People, 77 id. 411. It follows that when the husband is guilty of the offense charged, and the wife also, and coercion is shown not to exist and therefore each is liable to punishment, they may be jointly indicted and convicted; for in such a case the wife acts in her own capacity as one able to commit crime, and of her own accord and intent, as much so as would an unmarried person, and to that effect aro the authorities. Chedwick, 1 Kible, 575; King v. Thomas, Cas. temp. Hardwicke, 278; Rex v. Cross, 1 Raym. 711; Rex v. Stapleton, 1 Crawf. & Dix's C. R. 163; State v. Bentz, 11 Mo. 27; King v. Morris, 2 Leach (4th ed.), 1096; Reg. v. Ingraham, 1 Salk. 384; 1 Russ on Crimes, 20. In Commonwealth v. Trimmer, 1 Mass. 476, the contrary was held, but in Commonwealth v. Murphy, 2 Gray, 512, the court held that wife may be indicted jointly with her husband," and say "the authorities on this point, notwithstanding Commonwealth v. Trimmer, are too numerous and decisivo to be withstood. Whether sho can be convicted separately or jointly with him is a question to be determined by direct evidenco or by legal presumptions concerning the freedom of her action or the coercion of her husband." Barb. Cr. Law, 250; Waggoner v. Bill, 18 Barb. 321; State v. Parkerson, 1 Strobh. 169; Pennybaker v. State, 2 Blackf. 484. Tho court charged that "the possession of stolen goods immediately after the larceny, if under peculiar and suspicious circumstances, when there is evidence tending to show that some other persons stole the property, such possession not being satisfactorily explained, would warrant the jury in convicting the accused of receiving stolen goods knowing them to have been stolen." Held, not error. Rex v. Matthews, 1 Den. C. C. 596. Judgment affirmed. Goldstein et al., plaintiffs in error, v. People of New York. Opinion by Danforth, J.
[Decided Sept. 28, 1880.]
NEGLIGENCE OBJECTS LIABLE ΤΟ FRIGHTEN HORSES - NOTICE TO CORPORATION. — Plaintiff's horse was frightened by a pile of stones, placed near the travelled part of a turnpike, under the direction of the turnpike company, for the purpose of repairing a bridge, and sprang in such a way as to injure himself and the wagon to which he was attached, and to injure plaintiff, who was driving. There was evidence showing that other horses had been frightened by the same pile. Held, that if the pile had a tendency to frighten horses and was of a dangerous character, although not techuically a defect or obstruction in the highway, the turnpike company could be made liable for damages caused to travellers thereby, after notice of its character and neglect to remove the same. Waterford, etc., T. Co. v. People, 9 Barb. 161; Wendell v. Mayor of Troy, 39 id. 329; Davis v. City of Bangor, 42 Me. 522; Dimmick v. Town of Suffield, 30 Conn. 129; Winship v. Enfield, 42 N. II. 199; Bartlett v. Hooksett, 48 id. 18; Moore v. Town of Richmond, 41 Vt. 435; Shearm & R. on Neg. 445-466. Notice to a secretary of the company held sufficient. Judgment reversed on ground of admission in evidence of conversation between witness and third person. Eggleston v. President, etc., of Columbia Turnpike Road, appellants. Opinion by Earl, J.
MUNICIPAL ORDINANCE HOUSES FROM FIXED AREA IN CITY-STATUTORY CONSTRUCTION - POWER TO REGULATE INCLUDES POWER TO PROHIBIT REASON FOR STATUTE NEED NOT BE
SET FORTH.-(1) By the amended charter of the city of Albany (Laws 1870, chap.-) the common council is authorized to enact ordinances, among other things "to regulate the erection, use and continuance of slaughter-houses." Held, that under this the common council could pass an ordinance forbidding the slaughtering of cattle within prescribed limits within the city specifically named, and such an ordinance could not be assailed on the ground that authority to "regulate slaughter-houses could not be construed to permit a total prohibition of them in particular areas or localities. The use of the word "regulate" in the statute is not confined merely to the manner in which the business of slaughtering animals is carried on. To regulate implies a power of restriction and restraint. It is the plain purpose of the statute to give to the common council the right to fix and determine the limits and localities within which new slaughterhouses may be erected and the areas from which they may be excluded, and to prohibit their continuance whenever and wherever they become sources of danger to the health and comfort of the community. In Village of Buffalo v. Webster, 10 Wend. 100, a similar ordinance was assailed as being in restraint of trade, and it was held that a provision of the ordinance that , meat shall not be sold in a particular place is good, not being a restraint of the right to sell meat but a regulation of that right." The same authority held to dispose of an objection that the ordinance in question was void as being in restraint of trade following in that respect. Bush v. Seabury, 8 Johns. 418; Purce v. Bertram, Cowp. 209, and to justify the principle of the latter authorities in which the exercise of such powers by boards of health have been sustained. Metropolitan Bd. of Health v. Heister, 37 N. Y. 662; Polinsky v. People, 73 id. 65. (2) An objection was raised to the ordinance that it punished the prohibited acts" without pretense or any form of proof that they were in
ment is to be implied from the law itself. Stuyvesant v. Mayor of New York, 7 Cow. 606; Martin v. Mott, 12 Wheat. 19; Rector of Trinity v. Stiggins, 1 Robt. 1. Judgment affirmed. Cronins, plaintiff in error, v. People of New York. Opinion by Finch, J. [Decided Oct. 12, 1880.]
CONNECTICUT SUPREME COURT OF ERRORS ABSTRACT.*
CONSIDERATION-COMPOUNDING A CRIME-NEED NOT BE FELONY TO AVOID CONTRACT. — A man having been arrested and lodged in jail upon a criminal prosecution against himself and his son, for obtaining goods under false pretenses, his wife agreed with the parties from whom the goods were obtained and who had procured the prosecution, that she would give a note with her husband for the value of the goods and for the costs made, and secure it by a mortgage of her real estate, if they would procure the abandonment of the criminal proceeding and the release of her husband. The note and mortgage were given and the prosecution was withdrawn. Held, on a bill to foreclose the mortgage, (1) that a court of equity would not enforce a contract of suretyship so procured; (2) that the note was void as being upon an illegal consideration. Town of Sharon v. Gager, 46 Conu. 189; Williams v. Bayley, L. R., 1 H. L. Eng. & Ir. App. 200; Davies v. Lond., etc., Ins. Co., L. R., 8 Ch. 469. To render such an agreement void it is not necessary that the crime compounded should be a felony. It is enough if it be a public offense. All the authorities hold that an agreement to compound a felony will not be enforced, and that any security based upon such a consideration is void. But as to misdemeanors a distinction has been made. Some authorities hold that those misdemeanors which are personal in their nature between the parties, such as bastardy and a common assault, unaccompanied with riot or intent to kill, may be compromised. Maurer v. Mitchell, 9 Watts & Serg. 69; Robinson v. Crenshaw, 2 Stew. & Port. 276; Price v. Summers, 2 Southard, 578; Holcomb v. Stimpson, 8 Vt. 141. The last case was a prosecution for bastardy, and the decision was placed on the ground that it was a civil suit. But where the offense is in whole or in part of a public nature, nearly all the authorities hold that no agreement to stifle a public prosecution for it can be valid. Fay v. Oatley, 6 Wis. 42; Commonwealth v. Johnson, 3 Cush. 454; Hinesborough v. Sumner, 9 Vt. 23; Bowen v. Buck, 28 id. 308; Shaw v. Reed, 30 Me. 105; Shaw v. Spooner, 9 N. H. 197; Clark v. Ricker, 14 id. 44; Kimbrough v. Lane, 11 Bush (Ky.), 550; Peed v. McKee, 42 Iowa, 649; Buck v. First National Bank, 27 Mich. 293; Gardner v. Maxey, 9 B. Monroe, 90; Kier v. Lehman, 6 C. B. 308. In the last case cited it is said: "If the matter were res integra we should have no doubt in holding that any compromise of any misdemeanor or any public offense was an illegal consideration to support a promise, and it is remarkable what very little authority, consisting rather of dicta thau decision, there is to support such considerations." McMahon v. Smith. Opinion by Loomis, J.
MUNICIPAL CORPORATION-LIMIT OF DUTY AS TO HIGHWAYS-EVIDENCE-COMMUNICATIONS OF PATIENT TO PHYSICIAN. -(1) The limit of duty on the part of a town, with regard to the condition of its highways, falls far short of making them absolutely safe under all circumstances, even for those who use them prop
jurious to the well being of the town, or that prudence erly. And where the use is one that reasonable care
required its passage." Held, not tenable. Neither in the ordinance itself, nor in the indictment under it, is it necessary to explain the reasons for its enactment. It is of the nature of legislative bodies to judge for themselves, and the fact and the exercise of that judg
and prudence could never have anticipated, there is no duty on the town at all in reference to it. And it makes no difference that the injury in such a case is * To appear in 47 Connecticut Reports.
it may be regarded as evidence of malice in the original speaking of the words, and may thus tend indirectly to increase the damages, but it is not of itself a cause for which damages may be directly assessed. Williams v. Miner, 18 Conn. 472; Swift v. Dickerman, 31 id. 289. Ward v. Dick. Opinion by Granger, J.
CALIFORNIA SUPREME COURT ABSTRACT.
COMMON CARRIER-LIEN FOR FREIGHT ON GOODS SHIPPED BY CONSIGNEE OF OWNER-WHEN LIEN ATTACHES.
A firm which was engaged in buying and
the result of defects in a highway for which a town would be responsible in case of injury to individuals in the lawful and proper use of it. In Gregory v. Adams, 44 Gray, 242, it is said: "This is the measure and extent of the obligation of towns in reference to the support and maintenance of public highways. They are not required to make preparations for the safety or convenience of those who undertake to use those ways in an unusual or extraordinary manner, involving peculiar and special peril and danger, whether it be in respect to the kind or character of animals led or driven, or the magnitude or construction of carriages used, or the bulk or weight of prop-selling wheat and in chartering vessels to transport the erty transported. And if any person undertakes to use or travel upon a public highway in an unusual or extraordinary manner, or with animals, vehicles or freight not suitable or adapted to a way opened and prepared for the public use in the common intercourse of society and in the transaction of usual and ordinary affairs of business, he then takes every possible risk of loss and damage upon himself; and he can have no remedy against the town to recover recompense for injuries sustained, although they be the direct result of defects and imperfections in a way for which it would be responsible in case of injury to individuals in the lawful and proper use of it." See, also, Blodgett V. City of Boston, 8 Allen, 237, and cases there referred to. (2) The plaintiff, who was riding upon a load which broke through a town bridge, had received a personal injury when it broke through. In an action against the town for such injury, held, that his statements to a physician who attended upon him for the purpose of giving him treatment, with regard to the character and seat of his sufferings, were admissible. Barber v. Merriam, 11 Allen, 322; Howo v. Plainfield, 41 N. H. 135; Perkins v. Concord R. R. Co., 44 id. 223; Kent v. Town of Lincoln, 32 Vt. 591; Caldwell v. Murphy, 1 Kern. 416; Denton v. Tho State, 1 Swan, 279. Wilson v. Town of Granby. Opinion by Loomis, J. NEGLIGENCE- OBSTRUCTING NATURAL STREAMARTIFICIAL INCREASE IN VOLUME OF STREAM BY ACT OF ANOTHER. -The defendant had constructed a covered channel for a small brook that ran through his premises in the city of N. This channel proved insufficient for the flow of all the water that came down the brook in times of heavy rain, and by its obstruction caused the water to overflow upon and injure the adjoining premises of the plaintiff. The city, since the defendant's channel was made, had constructed several sewers and drains which emptied into the brook above his premises, by which a considerable quantity of sewage, and of surface water that it was claimed would have gone in other directions, was let into the brook. In a suit for the damage to the plaintiff's property it was held, (1) that the defendant was not liable for any damage beyond that caused by the natural flow of the water, including its increased flow from heavy rains and other ordinary natural causes; (2) that it was no reason for holding the defendant liable for more than this that the proportion of the damage done by the overflow of the natural water of the brook was difficult of ascertainment; (3) that the defendant and the city could not be regarded as joint tort-feasors. Sellick v. Hall. Opinion by Granger, J.
SLANDER-DAMAGES-SUBSEQUENT REPETITION OF SLANDEROUS WORDS- EVIDENCE OF MALICE. -In an action of slander the plaintiff can recover damages only for the slanderous words charged in the declaration. Whero the same slander has been since repeated, evidence of the repetition is admissible for the
purpose of showing malico in the original speaking, but not as a ground in itself for additional damages. Where a defendant maliciously and for the purpose of spreading and perpetuating the slander, pleads the truth of the words in justification and fails to prove it,
same to Europe, to be there sold by the master for tho benefit of the firm, and who also acted as agents for farmers for shipping wheat, which was known to defendant, chartered defendant's ship to take wheat to Europe. The ship proceeded to the port of V. and took on board wheat belonging to plaintiff, which had been consigned by him to the firm at that place. The wheat was shipped in the name of the firm and defendant received it not knowing that it belonged to any one else. Afterward the firm became insolvent and broke the charter party by not completing the loading of the ship. Held, that defendant had a lien on the wheat for his freight and that plaintiff could not retake the wheat from defendant upon payment of the expense of loading and unloading the same. The firm had authority, when plaintiff put his wheat in its hands, to ship it in their own names, and plaintiff was chargeable with knowledge that ho had placed his property in the hands of his agents for the very purpose of enabling them to make such contracts as might bo necessary and proper for transmitting it to Europe for sale on his account. He knew that in execution of tho agency they had to make contracts to which the law would attach a lien upon the property. When, therefore, the factors shipped the wheat in their own names, they were the only persons to whom the defendant could look, and with whom he dealt in receiving it. In the absence of knowledge that it belonged to the plaintiff, they, as shippers, were to him, in contemplation of law, tho owners. From them and for them ho received it as a common carrier for carriage; and the legal rights and duties of both parties became fixed by law the moment tho wheat was placed on board the ship. IIaving received it for the purpose of carriage, the defendant became bound to the shippers for the safe transportation and delivery of the wheat at the port of destination, and he was entitled to a lien on it for payment of his freight and charges on the completion of the voyage. Bulkely v. Naumkeag Steam Cotton Co., 24 How. 391. This lien was created the moment the goods were shipped and defendant might retain the wheat until his freight was paid. Bird of Paradise, 5 Wall. 555; McCardier v. Chesapeake Ins. Co., 8 Cr. 39; Certain Logs, 2 Sumn. 596.
Although the insolvency of the firm, before the ship was laden but after the wheat was placed on board, may have ended the transaction between them and the plaintiff as to the shipment and sale of the wheat, and dispensed with its carriage, yet the plaintiff was not entitled to the possession until he extinguished, or offered to extinguish, the lien which had attached to it. The defendant was not bound to reland it and deliver it to the plaintiff at the port of outfit without tender or payment of the freight, or such other charges as were liens upon it. Story on Bailm., § 585; Campbell v. Connor, 70 N. Y. 424; Hutch. on Car., § 476, note; Abbott on Shipp. 595. Hayes v. Campbell. Opinion by McKee, J. [Decided Aug. 26, 1880.]
NOTICE-RECORDING ACTS-HUSBAND AND WIFEPURCHASE BY DEBTOR OF SURETY'S LAND UNDER MORTGAGE SALE. — A wife owned separate real estate