Imágenes de páginas
PDF
EPUB

other time requested her to meet her husband. Objection to this evidence was overruled, and the same was admitted as tending to negative the presumption of coercion of the defendant by her husband.

The court, we think, correctly instructed the jury that a prima facie case of coercion was established when it was shown that the defendant was a married woman; and that the criminal act was done in the presence of the husband; and that this presumption might be rebutted by evidence that the acts of the wife were done by her while not in her husband's presence, or so immediately near him as fairly to be held under his control, and in his presence, Now, how the consent of the wife to the husband's illicit intercourse with the prosecuting witness months before the alleged crime was committed would tend to rebut the presumption of coercion, in the attempt to produce a miscarriage, we are at a loss to discover. True, it tends to show that the wife connived at her husband's adultery, but its effect would rather be to show that instead of acting independent of the coercion of her husband she was so entirely under his control as to consent to his adulterous intercourse with the prosecuting witness.

No wife of any individuality, self-respect or independence of thought or action, would consent to such a crime against herself.

In our opinion this evidence should not have been admitted. If it had no other tendency it was calculated to prejudice the defendant in the estimation of the jury. We are the more ready to so hold in view of the fact that the defendant showed, by quite a number of witnesses, that she was a woman of good character and reputation.

Other objections to the rulings of the court we do not regard as well taken, unless it may be the exception to the instruction upon the force to be given to the evidence as to the good character of the defendant. This instruction seems to be contrary to the rule established by this court, in the case of State v. Northrup, June term, 1878. The judgment is reversed.

[blocks in formation]

versy in August, 1871. Plaintiff claims by deed from Arnes, executed in September, 1872, and by regular claim of title from Arnes' grantee. Defendant claims title by virtue of sheriff's deed, executed in 1873, made in pursuance of execution founded on judgment against Arnes, December, 1871. When the indebtedness accrued upon which the judgment was rendered, Arnes had a wife living in Illinois, but had left her prior to that time, and had removed to Kansas City, where he purchased property, hired a woman to live with him as his housekeeper, paying her as compensation therefor "her victuals and clothes," and continued to reside on that property until he purchased, with a portion of the proceeds derived from sale thereof, premises in controversy, and afterwards continued to live on premises in dispute, without any family or any person dependent upon him for support, save the woman, who was his hired domestic, and so lived there at the time of the rendition of judgment against him, which was foundation of defendant's title. Arnes had no children, and his wife in Illinois never came to Missouri or resided here with him. Judgment for plaintiff, from which defendant appeals.

Moore & Tomlinson for respondent; Ballingal & Gnume for appellant.

SHERWOOD, C. J., delivered the opinion of the

court:

The controlling question in this case is whether Arnes was the head of a family. This point is established unmistakeably by the evidence that he had a wife living in Quincy, Illinois, who had deserted him for another. This desertion on the part of the wife, did not, however, sunder the existing marital relation, or make Arnes any the less a house-keeper, or head of a family, than he was prior to that occurrence. The recent case of Brown v. Stratton, 8 Cent. L. J. 46, decided at the last term, is directly in point.

Anterior to the date of obtaining a divorce from his first wife it was perfectly within Arnes' power to have forgiven her short-comings, and condoned her roving fancy; and the mere fact that this never occurred did not alter the status of the parties, enter se. Arnes was still a married man, and consequently the head of a family-being so, evidence that improper relations were maintained between Arnes and the woman who lived with him in the same house with him, was irrelevant and properly rejected—since the domicil of the husband draws after it that of the wife, and so soon as it became the homestead of the husband, it became also the homestead of the wife,-and that, too, though the wife lived in another State. Thompson on Homesteads, § 259, and cases cited. Under this view it becomes unnecessary to closely scrutinize the instructions given for plaintiff or those refused defendant, and we affirm the judgment. All con

cur.

IN Jordan v. Eve, 3 Va. L. J. 290, it was held that a public highway through lands is not within a covenant against "incumbrances."

SOME RECENT FOREIGN DECISIONS.

--

LIFE INSURANCE-CONCEALMENT OF MATERIAL FACT PROPOSALS TO OTHER OFFICES. London Assurance Co. v. Mansel. English High Court, Chy. Div., 27 W. R. 444.-1. In contract of life assurance the not fairly answering a question as to proposals made to other offices is concealment of a material fact sufficient to avoid the contract. 2. Where there was appended to the question, and signed by the proposer, a declaration that the above written particulars were true, and an agreement that they should be the basis of the contract: Held, on the authority of Anderson v. Fitzgerald, 4 H. L. C. 484, that the proposer could not contend that any question was not material.

CHARITABLE BEQUEST-EQUIVOCAL DESCRIPTION -EVIDENCE OF INTENTION.-Fearn's Will. English High Court, Chy. Div., 27 W. R. 392. A testatrix bequeathed a legacy to the treasurer" of the society for the propagation of the Gospel among the Jews," in aid of the general purposes of that society. There was not any society with this exact name; but there were two societies for the purpose indicated in the description, namely: "The London Society for Promoting Christianity among the Jews," and "the British Society for the Propagation of the Gospel among the Jews." Held, (1) that there was an equivocal description of the society to be benefited so as to render evidence of intention admissible; and (2), that the fact that the testatrix had, on one occasion, subscribed to the London society, was sufficient to turn the scale in favor of that society.

COVENANT WITH "OWNERS or OwNER" OF CERTAIN LAND-LESSEE WHETHER "OWNER" WITHIN THE COVENANT.-Taile v. Gosling. English High Court, Chy. Div. 27 W. R. 394. Where the purchaser of a piece of land covenanted with the vendors, and also with the "owners or owner of any other land" to which the benefit of the covenant extended, not to carry on certain trades on the purchased land, and afterwards began to carry on one of such trades there, Held, that a lessee of a portion of the land, entitled to the benefit of the covenant, was an "owner" of the land within the meaning of the covenant, and entitled to an injunction to restrain the breach.

WILL-CONSTRUCTION-" CHILDREN "-ILLEGITIMATE AND LEGITIMATE CHILDREN.— Ellis v. Houston. English High Court, Chy. Div., 27 W. R. 501. Where a will contains a gift to the "children" of a person, and there is no indication on the face of the will of any intention to include illegitimate children, the court will disregard all circumstances, however strong, from which an intention to include illegitimate children might be inferred. Lake v. Hornden, 24 W. R. 543. L. R. 1 Chy. Div. 644, doubted.

HUSBAND AND WIFE-AGREEMENT TO LIVE SEPARATELY NOT ILLEGAL INJUNCTION.-Marshall v. Marshall. English High Court, Prob. and Adm. and Div. Div., 27 W. R. 399. A deed of separation between husband and wife is not contrary to public policy, and may be a good answer to a suit for restitution of conjugal rights. HANNEN, P.: "The legality of a covenant not to sue for restitution of conjugal rights being clear, the next question is whether a court of equity would enforce it by injunction restraining its breach. It appears to me that this question also is now concluded by authority which is binding upon me. In Hunt v. Hunt, 10 W. R. 215, 4 De G. F. & J. 221, on appeal from the late Master of the Rolls, Lord West

[ocr errors]

bury held that a covenant by a husband not to sue for restitution of conjugal rights could be enforced by a court of equity by restraining the husband from proceding in a suit in the divorce court. It is true that in Hunt v. Hunt, the husband was restrained, and not the wife; but the question whether a wife could be so restrained was raised in that case, and the supposed immunity of the wife from injunction against prosecuting such a suit as the present was assumed by the Master of the Rolls, and formed one of the grounds of his judgment. It is clear, however, that Lord Westbury did not adopt this view, but considered that Hill v. Turner, 1 Atk. 515, was an authority e-tablishing that a court of equity has jurisdiction to grant an injunction against a feme covert to restrain her from suing in the Ecclesiastical court for restitution of conjugal rights; and the observation of the late Master of the Rolls that the Lord Chancel lor there intended to confine his interference to a question of property does not appear to me to be well founded. If he had so intended he might have limited his decree to restraining the enforcement of any claim to alimony, instead of which he added to the injunetion for that purpose an injunction restraining the wife from proceeding for restitution of conjugal rights. Considering, therefore, that I am bound by Lord Westbury's decision in Hunt v. Hunt, I hold that the respondent's answer is sufficient."

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January-March, 1879.

PROMISSORY NOTE-BONA FIDE HOLDER.-L indorsed in blank an unsigned promissory note in the words," we promise to pay to the order of L," etc., and left it with his book-keeper with instructions to deliver it to N upon his signing the name of his firm; and the book-keeper delivered it to N, who signed it with his own name alone, and then procured and afterwards erased the name of S as an additional maker, and sold the note to the plaintiff, who bought it in good faith. The judge, before whom the case was tried without a jury, found, as a fact, that the plaintiffs were not negligent in failing to observe the form of the note, or the erasure of S's name. Held, that the plaintiff could maintain an action on the note against L. Putnam v. Sullivan, 4 Mass. 45; Greenfield Sav. Bank v. Stowell, 123 Mass. 196; Angle v. Northwestern Ins. Co., 92 U. S. 330; Rice v. Gooe, 22 Pick. 158. Opinion by GRAY, C. J.-Whitmore v. Nickelson.

ACTION AT LAW-SUGGESTION OF BANKRUPTCY FILED ON DAY OF ENTRY OF JUDGMENT-REVIEW. -In an action pending in the superior court, an agree ment by the attorneys of the parties, that judgment should be entered for the plaintiff on the "fifth day of July next," was made and filed in court. On the third day of said July, the defendant filed his voluntary pe tition in bankruptcy, and, on the fifth, about ten o'clock A. M., he filed a suggestion of his bankruptcy in the superior court. On the seventh, execution issued in said action, and, on the eighth of August fol lowing, the defendant petitioned for a writ of review, which was granted. To the writ of review the defend. ant in review pleaded in abatement, and the plaintiff in review filed a replication setting up his composition with his creditors in bankruptcy. The action in review was tried by the court without a jury, and the judge

found, as a matter of fact, that the suggestion of bankruptcy was filed before the rendering of the original judgment. Held, that if that suggestion had been brought to the notice of the court before the actual entry of judgment, the case must have been continued to await the results of the bankruptcy proceedings, and the suggestion could not have been defeated by an entry of judgment nunc pro tunc. U. S. Rev. Sts., § 5106; Ray v. Wright, 119 Mass. 426. And it was in the discretion of the court to grant a review for the purpose of enabling the proceeding in bankruptcy to be set up in defense. Gen. Sts., c. 146, § 21; Todd v. Barton, 117 Mass. 291; Shurtleff v. Thompson, 63 Me. 118. If the judgment could have the unjust operation contended for-i. e., that it took effect at the earliest minute of the day on which it was entered, and, therefore, in law, took precedence of the suggestion, it was certainly within the discretion of the court to grant a writ of review in order to prevent that consequence. The previous agreement for the entry of judgment, though a waiver of a review as of right, could not control the discretion of the court in granting a review upon petition. Opinion by GRAY, C. J.-Golden v. Blaskopf.

MONEY HAD AND RECEIVED-PROMISSORY NOTES. -In an action for money had and received, the plaintiff testified that he went to the defendant with a promissory note of R & Co., payable to the order of, and indorsed by the plaintiff, and asked defendant to get said note discounted at defendant's bank, and allow the plaintiff to take the proceeds for his own use; that the defendant thereupon produced a promissory note of P & Co., payable to the order of, and indorsed by D, and offered to loan it to plaintiff, if that would answer the plaintiff's purpose: that the plaintiff said it would, and offered to give a receipt for the note, and that the defendant suggested that, in place of a receipt, he would retain the note of R & Co., and take the note of the plaintiff for the difference in amount between that note and the note of P & Co., and hold said note as collateral for the loan of the P & Co. note; that plaintiff assented to this proposal, and gave his own note for said difference to the defendant. The defendant claimed that the transaction was an exchange of notes, and objected to the above testimony as to the conversation between the parties at the time said note was given, on the ground that the admission of such testimony was an attempt to contradict by parol the terms of written instruments, and to any testimony in regard to the notes except to show a want of consideration, for which he claimed the P & Co. note was sufficient. The plaintiff had the P & Co. note discounted, and testified that, a few days before the other note became due, he learned that said notes were held by a bank, and that he then saw defendant, who said that he had used the notes, and that when the note of P & Co., who had failed before this conversation occurred, became due, he, the defendant, would take care of it. The plaintiff paid all of said notes at maturity, and offered the P & Co. note to defendant, and demanded of defendant the money paid on the other notes. Held, that the evidence was competent and admissible, and, if it were believed by the jury, it would follow that, on returning the P & Co. note to the defendant, the plaintiff would be entitled to take back and have returned to him the collateral security which he had previously deposited; that plaintiff could not be held responsible for the loss arising from the insolvency of P & Co.; that, by said evidence, the plaintiff night show a failure of consideration in regard to his own note; and that if the other notes were deposited simply as collateral, the defendant might be justly held accountable as for money had and received which equitably belonged to the plaintiff. Opinion by AMES, J.-Mayo v. Peterson.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, February 22, 1879.] MORTGAGE-POWER OF SALE-FORECLOSURE AND SALE BY ADMINISTRATOR OF DECEASED MORTGAGEE. -This is an appeal from a judgment for the plaintiff in a suit of forcible detainer, by William E. Lewis against Richard Munin, to recover possession of a certain quarter-section of land. Richard Munin and A. J. Munin, his son, had each, on May 25, 1869, executed to David Matthews separate mortgages of two-eighties of the quarter section to secure the payment of the purchase money therefor-promissory notes to Matthews being given by each purchaser for the purchase money of his own eighty. Default having been made in the payment of the notes, the mortgages were foreclosed by a sale of the mortgaged premises in pursuance of a power of sale given by the mortgages, Lewis becoming the purchaser, to whom deeds were accordingly executed, and he thereafterwards brought this suit for possession. It appeared that, after the execution of the mortgages, and before the foreclosure sale, David Matthews, the mortgagee, died, and the power of sale was exercised by his administrator. Objection is made that the power of sale conferred by the mortgagee could not be exercised by the administrator. SHELDON, J., says: "The power of sale was given to the mortgagee, his legal representatives or attorney. 71 Ill. 91, is relied upon in support of the objection, where, in the case of a trust deed, land being conveyed to a trustee, to secure the payment of indebtedness, with power upon default of payment to the trustee or his legal representative, to sell and convey the land as the attorney of the grantor, it was held that the administrator of the deceased trustee could not rightfully make the sale, and that, in that case, 'legal representative' meant a new trustee. But no such meaning can be attached to those words in the present case. The words here admit of no other application than to the administrator of heirs, and it was said in the case cited, that legal representative or personal representative, in the commonly accepted sense, means administrator or executor. See 31 Ill. 174; 54 Ill. 413. Upon the death of the mortgagee here, the notes then held by him passed to his administrator as his assignee in law, and the administrator stood in all respects as the legal representative of the mortgagee with respect to the notes; they were the principal thing, and the mortgage but the incident, and the power of sale was properly exercised by the administrator.-Murrin v. Lewis. Affirmed.

PRACTICE-APPEAL FROM APPELLATE TO SUPREME COURT-NECESSITY OF CERTIFICATE BY APPELLATE COURT.-This case was tried by the appellate court for the first district. It appears from the record that the case does not involve a franchise, a freehold, or the validity of a statute; nor is it a criminal case, and, if it appears that the amount involved is less than one thousand dollars, and the judges of that court, or a majority of them, have failed, on the petition of the parties, to certify that the case, although involving less than one thousand dollars; exclusive of costs, involves questions of law, of such importance, either on account of principal or collateral interest, as that it should be passed upon by this court. Nor has the appellate court certified to this court the grounds of granting the appeal. It is only on one of the grounds enumerated in the statute creating or conferring jurisdiction and regulating the practice of the appellate court, that there is any power to grant an appeal so as to confer jurisdiction on this court; and it fails to appear, from the transcript from the appellate court, that any of the statutory grounds exist which authorize this appeal. It therefore follows that the effort

1

of the appellate court to grant the appeal was unauthorized, and did not become effective to confer any Jurisdiction on this court. PER CURIAM. Appeal dismissed.-McGurick v. Burry.

NEGLIGENCE - INJURY IN CROSSING RAILROAD TRACK-RULE AS TO COMPARATIVE NEGLIGENCE.This was a suit by the plaintiff against the Chicago, Burlington & Quincy R. Co. to recover damages for the killing of one A while crossing the track of defendant. Plaintiff recovered and defendant appeals. Appellee's first instruction informed the jury that, although the deceased did not observe the precautions which an ordinary prudent man would have observed | before attempting to cross defendant's track, still there may be a recovery, if the jury shall believe from the evidence, that this negligence of the deceased was slight in comparison with that of the defendant." SCHOLFIELD, J., says: "The doctrine of comparative negligence, recognized by this court, is that, although the plaintiff may have been guilty of slight negligence, contributing to the injury complained of, this will not bar a recovery, provided the negligence of the defendant, resulting in the injury, was gross in comparison with that of the plaintiff. The cases in which this doctrine has been announced are numerous. Notwithstanding the expression of one of these terms of comparison may imply its correlative, to avoid misleading the jury it has been held both terms should be expressed in all instructions assuming to lay down the rule. The jury must be told to authorize a recovery, it must appear from the evidence that the negligence of the plaintiff is slight, and that of the defendant gross, in comparison with each other; and it will not be sufficient simply to say the plaintiff may recover, though negligent, provided his negligence is slight in comparison with that of the defendant. See 72 Ill. 351." Reversed.-Chicago, etc., R. Co. v. Harwood.

SUPREME COURT OF PENNSYLVANIA.

January-March, 1879.

FORGERY-DUTY OF COURT-EVIDENCE.-1. The interlineation of a lease to make it conform to what was the understanding and agreement of the parties at the time it was executed, is not such a fraudulent alteration as to make it a forgery. 2. A judge should exercise great care in commenting upon the evidence. 3. General evidence that defendant is a bad man is not admissible in a forgery case. Opinion by PAXSON, J. Pauli v. Com. 36 Leg. Int. 194.

LIABILITY OF RECORDER OF DEEDS-PRINCIPAL AND AGENT.-The mortgagor of certain premises was permitted by the conveyancer of the mortgagee, to obtain a search from the recorder of deeds upon the representation that he (the mortgagor, himself a conveyancer in good standing) "was in a hurry for the money, and could obtain the search more quickly." The recorder's deputy issued the search, knowing that plaintiff was about to loan money upon the faith of it, omitting a certain mortgage, upon the mortgagor's assurance that it would be satisfied out of the money to be received by him. The premises were sold under the omitted mortgage, and the money loaned by plaintiff wholly lost. In a suit to recover the loss, by the mortgagee against the recorder: Held, 1. That the mortgagor had not been made the agent of the plaintiff, mortgagee, for any purpose. 2. That plaintiff's conveyancer, being employed for the special purpose of preparing the papers and procuring the necessary searches, could not, without express authority, employ one or more agents under him so as to bind his prin

cipal. 3. That the recorder had no right to throw the disastrous results of the misplaced confidence of his clerk upon those who loaned their money upon the faith of his official certificate, and that the plaintiff was entitled to recover. Opinion by PAXSON, J.-George Peabody Building Ass'n. v. Houseman. 36 Leg. Int. 137.

SUPREME COURT OF MARYLAND.

[Advance Sheets of 49 Md.]

CHARGE OF

SLANDER - HUSBAND AND WIFE · ADULTERY NOT ACTIONABLE PER SE-SPECIAL DAMAGE.-1. In suits for slander, pecuniary loss to the plaintiff is the gist of the action, and courts at an early day recognized a distinction between words action. able, and words not actionable in themselves. In the former, the law presumes pecuniary loss, whilst in the latter it is necessary to prove special damage to the plaintiff. 2. When one charges another with the commission of an offense, it must be such an offense as subjects the party to corporal punishment, in order to render the words actionable per se. 3. The crime of adultery is not so punishable, and hence to charge one with adultery is not actionable per se, and the plaintiff must prove special damage. 4. Special damage in such cases is that which is naturally the consequence of the words spoken, and not such as is occasional and accidental. Sickness of the person slandered, resulting from the slanderous charge, is not sufficient to prove special damage. Opinion by ROBINSON, J.—Shafer v. Aralt.

CONSTRUCTION OF WILL" MATURITY" OF FEMALE-CONSTRUCTION OF "OR."-1. The will of Richard Biddle contained the following clause: "Item. I furthermore give and bequeath to the aforesaid Laura L. Biddle the sum of $2,800 in cash, which sum is hereby directed to be placed at interest, according tothe wise discretion of her guardian, and the interest arising therefrom to be appropriated to the benefit and support of said Laura during her minority, and when at lawful age, the aforesaid sum of $2,800 must be paid over to her in good faith. It is provided, however, that in the event of death of the aforesaid Laura L. Biddle before maturity or without issue, then, in such case, the money thus bequeathed to her shall revert to the children of George R. Carpenter and Leonis, his wife." Laura died aged nineteen years and some days, intestate, and without issue, never having been married. Held, (1.) That the testator, by the word “maturity,” meant the same thing as he had before expressed by the words "lawful age," the time by him designated for the payment of the legacy; which lawful age, under the provisions of sec. 142 of art. 93 of the Code, is eighteen years. (2.) That Laura Biddle having attained the age of eighteen years, the legacy became vested in her absolutely, and was not divested by her subsequent death without issue. 2. It has been settled by repeated decisions in this State, that in a devise or bequest of the kind in this case, in order to effectuate the general intent of the testator, the word "or" must be construed to mean "and," so that the limitation over can not take effect, except upon the happening of both contingencies. Opinion by BARTOL, C. J.-Carpenter v. Boulden.

CRIMINAL LAW-HOMICIDE-Evidence-PRACTICE ON APPEAL.-1. On an indictment for murder, prisoner's counsel offered to prove by the widow of the mur dered man that her husband was jealous of her, and had accused her of being too intimate with other men than the prisoner, and stated to the court at the time of the offer that he proposed to follow up this proof by evidence tending to prove that the killing for which the prisoner was indicted grew out of a quarrel between the

prisoner and deceased, occasioned by the deceased having charged the prisoner with being too intimate with the wife of the deceased. Held, (1.) That the proof offered, whether considered by itself or in connection with the evidence with which it was proposed to follow it up, was inadmissible. (2.) That the general reputation in the neighborhood that the deceased was jealous of his wife, could not possibly furnish any explanation of the circumstances under which his life was taken, and was therefore not admissible in evidence. 2. A motion in arrest of judgment after verdict, for alleged defects in an indictment for murder, can not be sustained, such defects being the proper subject of a demurrer. And the only mode of bringing up to the court of appeals the points raised by such motion, is by a proceeding in the nature of a writ of error. Opinion by GRAYSON, J.-Costley v. State.

SUPREME COURT OF INDIANA.

November Term, 1878.

BREACH OF MARRIAGE CONTRACT-PLEADING.— In an action by a woman for the breach of a contract of marriage, it is not necessary for the plaintiff to aver that she requested the defendant to marry her, a promise to marry on a particular day being alleged. Where nothing is said as to the place, in such contract, the house of the prospective bride would, prima facie, by the custom of society, be the place contemplated for the marriage; and, by that custom, it would be the duty of the groom to present himself at the place without special request to fulfill the marriage engagement. The man is ducere uxorem. 2. Pars. Cont., 6th ed., p. 61; 2 Chitty Plead. 205; 108 Mass. 324. In such case, it being averred in the complaint that there was a mutual promise to marry, and that the plaintiff was ready on her part to fulfill the engagement, these averments must be proved. In such case evidence of preparations for performing the contract, made by the plaintiff in the absence of the defendant, and not in any way connected with him, is inadmissible to prove the plaintiff's assent to a mutual promise of marriage. Opinion by PERKINS, J.-Graham v. Martin.

JUDICIAL OFFICER-LIABILITY FOR FRAUD-CONCLUSIVENESS OF JUDGMENT.-This was a suit upon the official bond of a justice of the peace, alleging the fraudulent entry of a judgment in favor of the relator for $66, when it should have been for $166. Held, the judgment was conclusive and could not be attacked collaterally, either in a pleading or by evidence. Held, also, that judicial officers, as judges of courts and justices of the peace, although they may be impeached for corrupt actions, can not be held pecuniarily responsible to the party injured. A stranger to the record may attack a judgment for fraud in obtaining the judgment (not for fraud in the course of action), because, not being a party to it, he can not appeal; but in no case can even a stranger attack a judgment for fraud in the judge or justice who rendered it, much less a party to the judgment who can appeal. Opinion by BIDDLE, J.-Kress v. State.

FRAUD IN EXECUTING LEASE-PLEADING COUNTERCLAIM.-Suit by appellee against appellant, on a promissory note executed by the latter for the rental of certain land leased to him by appellee. The appellant answered, by way of counterclaim, that he was induced to lease the farm and give the note by the false and fraudulent representations of the lessor, that the land was thoroughly underdrained and suitable for tillage, both in wet and dry seasons, whereas the land was not underdrained, and was unsuited for tillage in wet seasons. The answer alleged, further, that the appellant,

prior to the execution of said lease and note, had no means of ascertaining the falsity of said representations, and relied upon the same as true. He prayed for damages against the plaintiff, etc. Held, the appellant had a right to maintain an action for damages for the fraud, and recover such damages upon a counterclaim in the action by the fraudulent lessor to recover the price agreed to be paid upon the lease, and it was error to sustain a demurrer to such answer. Opinion by PERKINS, J.-Norris v. Tharp.

SUPREME COURT OF RHODE ISLAND.

[Advance sheets of 12 R. I.]

OPINION EVIDENCE-EXPERTS.-1. In proceedings to obtain compensation for damages when land has been condemned to a public use, witnesses will not be allowed to give their opinion as to the amount of damage suffered. Tingley v. City of Providence, 8 R. I.. 493, affirmed. 2. A farmer may, as an expert, give his estimate of the value of farm land of realty so condemned, but his opinion generally of the value of such realty is inadmissible, since the market value of a farm may be much greater than its agricultural value. Opinion by DURFEE, C. J.-Brown v. Providence, &c., R. Co.

CONFLICT OF LAWS.-H sold to J certain goods. The sale took place in Rhode Island, and the contract was valid there. The delivery was to take place in New York, and the contract was invalid by the statute of frauds of that State. In assumpsit brought by H against J for breach of this contract: Held, that I was entitled to recover. Opinion by DURFEE, C. J.—Hunt v. Jones.

PROMISSORY NOTE-ILLEGALITY-ACTION.—A and C made a bet on the presidental election and deposited the stakes with W. Afterwards, becoming dissatisfied with the stakeholder, they demanded their money and received W's note for the amount, with two indorsers.. A had the note discounted at bank, and, while it was in bank, assigned it to the plaintiff. The note went to protest. In an action by the plaintiff against W and his indorsers, the jury found that the plaintiff was not a bona fide holder for value and without notice. Held, that the plaintiff could not recover. Held, further, that the note was tainted with illegality on its origin,. and could therefore be good only in the hands of a purchaser for value in good faith and without notice.. Opinion by DURFEE, C. J.-Atwood v. Wieden.

PRACTICE-OFFICER ACTING AS AGENT.-A statute prescribed the form of an affidavit to be indorsed on all writs of attachment. This statute being in force, an officer first made the required affidavit as the plaintiff's agent, and then as officer served the writ by garnishment: Held, that his act, although improper, was not illegal, and that the attachment was valid. DURFEE, C. J.: "The statute permits the affidavit to be made either by the plaintiff himself, or by his agent or atattorney, and, therefore, if the officer was the agent of the plaintiff, the affidavit made by him was legal. We strongly disapprove the practice of such affidavit-making by officers, on account of its liability to abuse; but we are not prepared, on that account, to go so far as to hold that, as a matter of public policy, an officer is incapable of making the affidavit. It is not for the court to interpolate such an exception into the statute without some stronger reason. We likewise think the officer was not incompetent to serve the writ because he was the plaintiff's agent. A writ can not be served by an

« AnteriorContinuar »