that the plaintiff was entitled to recover solution of the trust at the time of of the defendants the amount of both

the purchase. these judgnients with interest from their This Court will not examine the testidate; and this being refused, he asked mony with a view of ascertaining

the merits where the case was disthe same instruction as to the second judgment, which was refused. Except

posed of below upon an erroneous

idea of the law. ions were taken to both these refusals, and to the following language in the It is error for the General Term on charge which the court did deliver :

reversing a judgment, to direct judg

ment absolute unless it clearly ap“ The jury are instructed upon the

pears that no evidence, upon a new whole evidence in the case, that the plain trial, could change the result. tiff is entitled to recover nominal damages from the defendants by reason of

This action was brought by the survivtheir failure to direct the levy of the tax ing executor of C. R., deceased, to de

termine which of the two defendants is in question. The plaintiff is not entitled to recover any more, because he has not

entitled to a residuary share in this estate. shown that he has suffered any injury certain specific legacies, so much of the

By the will of C. R., after the gift of from the neglect or omission of the defendants to cause the clerk to put the judg- for the widow during her life, was set

estate as would produce $600 per annum ment on the next tax roll of the town.”

. At her death, this was Held, That by their simple failure to apart for her use. place the judgments on the tax list, de to be divided equally among his heirs. fendants did not become debtors to the

All the residue of the estate was to be amounts; that in the absence of proof it

divided equally among the testator's chilmust be presumed that the taxable proprived at the age of twenty-five. E. C. R.

dren, when the youngest living child arerty of Waldwick township remains today as it was when the levy should have

was one of the children, and when he bebeen made ; that a levy this year would came of age received his specific legacy as surely produce the money as if it had under the will, and went into business,

and became insolvent. Afterward he rebeen made last year; the debt is not lost, and that plaintiff was limited, there being

turned to the house of his mother, who no proof of actual damages, to a recovery ished him with board and clothes and ne

was an executrix of C. R., and she furnof nominal damages and costs. 2. That the first judgment was proper- and while in New York attending medic

cessary spending money while there, ly excluded.

al lectures from her own funds. After Judgment affirmed. Opinion by Miller, J.; Clifford, J., de

his return from attending said lectures, senting

E. C. R. executed, at his mother's request, under hand and seal, a writing as

signing to her all the right, title and inTRUSTEE

terest, which he had as heir at law, de

visee or legatee of C. R. The consideraN. Y. COURT OF APPEALS.

tion expressed was one dollar and the aid Graves, respt., v. Waterman, Admr., and assistance furnished him by her. The &c., et al., applts.

instrument was duly acknowledged and Decided January 18, 1876.

delivered, and recorded in the Clerk's

office. His mother continued after that A trustee may purchase from the ces- to furnish him with board, &c. When . tui que trust, under circumstances the assignment was made, E. C. R. was

amounting to a fair and distinct dis-'indebted to various persons.

The defendants in this action were the The judgment of General Term, so far administrators of the widow, and the ad. as it refused judgment below, affirmed; so ministratrix of E. C. R.

far as it decided judgment absolute The referee found that the administra- against defendants, with costs, reversed trix was entitled to the fund; that the and new trial granted. purchase of the interest of E. C. R. by Opinion by Folger, J. the widow, she being at the time executrix and trustee of C. R., was void, as

TRESPASS. CONTAGIOUS DISany purchase of a trust estate, or any por

EASE. tion of it to a trustee was illegal.

SUPREME COURT OF ERRORS OF ConH. Sturges, for respt.

Samuel A. Bowen, for applts.
Held, error. That the rule, that a

Beckwith, et al., v. Sturtevant. trustee, or one who, having been employed A person has no right to place a family or concerned in the affairs of another, has infected with small-pox in an unocacquired a knowledge of his property is

cupied dwelling house belonging to incapable of purchasing such property

another, without the consent of the himself, does not mean as an absolute in

owner, or authority from the board

of health of the town, although such variable rule that he cannot buy from removal of the family may be necesthe cestui que trust, who is sui juris. 20

sary to prevent the spread of the Atk., 58; 12 Ves. jr., 555; 2 J. Ch. disease. 252-3.

Trespass qu. cl. fr., brought to the SuA trustee may purchase from the cestui perior Court in New London County. que trust, under circumstances amount

On the trial the plaintiffs offered eviing to a fair and distinct dissolution of dence to prove that on the 4th day of the trust connection at the time of the January, 1872, and ever since, they had purchase. The contract must be distinct been the owners of the land described in and clear, and it must be apparent that the declaration, upon which there was an it was the intent of the cestui que trust unoccupied dwelling house, and that on that the trustee should buy and that said 4th day of January the defendant, there was no fraud, concealment or ad- without the license or knowledge of the vantage taken by the trustee, of informa- plaintiffs, or any of them, took forcible tion acquired in the character of trustee. possession of the dwelling house, effecting 3 Myl. & K., 113-135.

an entrance by breaking in the front door Also held, That the case having been with an axe, and shortly after, on the disposed of upon an erroneous idea of the same day, placed therein a certain Gerlaw, this court wold not look into the tes- man family, one of whose members was timony to see whether the circumstances sick with the small-pox; and that the brought the case within the safeguards family continued in the occupancy of the against an improper dealing by a trustee house until the 19th day of February folwith the trust estate.

lowing, when it was destroyed by fire. But held that the case was not so clear- How the fire originated was not disclosed ly made out for sustaining the validity of by the evidence. the assignment, as that it could be said The defendant did not deny that he evidence upon a new trial would not broke and entered the house, as claimed change it, and that therefore a judgment by the plaintiffs, but offered evidence to absolute for the administrators was er- prove that at the time a member of the

family in question, which was then in the

occupancy of a tenement house belonging and to place the family therein, even to the defendant, upon the factory grounds though the jury should find that to preof the Niantic Woolen Company, and in a vent the spread of the small pox such recomparatively thickly settled neighbor- moval of the family was necessary. As hood, was sick with the small pox, and to the second portion of the request, the that there was danger that the disease court charged substantially as requested. would spread if the person thus affected The jury returned a verdict in favor should be permitted to remain where she the plaintiffs for the sum of $480 damages then was, and that he entered and took and their costs; and the defendant moved possession of the plaintiffs' house for the for a new trial for error in the charge of purpose of placing the family therein, and the court. for no other purpose.

Held, The instruction given was clearly The defendant further offered evidence correct. The statute has made all reasonto prove that he acted under the direction able and practicable provision to prevent of one Richard W. Lee, a selectman of the spreading of such diseases, consistent the town of East Lyme, and who was with the right of domicile and property. also president of the board of health of the New trial not advised. town. He also offered evidence to prove Opinion by Phelps, J. that the destruction of the building by fire was not owing to any acts or neglect OFFICIAL CERTIFICATE. AGENT. of his own, or of the family so by him placed in the house. There was no hos

SUPREME COURT OF PENNSYLVANIA. pital in the town at the time.

Houseman v. The Girard Mutual The defendant requested the court to Building and Loan Association. charge the jury that if they should find Decided March 13, 1876. that the removal of the family from the The Recorder of Deeds is liable in damages dwelling house which they were occupy for losses suffered by a mortgagee by ing to the house of the plaintiffs, was ne reason of a false certificate of mortgage cessary to prevent the spread of the small search issued from the recorder's office. pox ; or, if the removal was made in pur- A principal is bound by the knowledge of suance of an order of the board of health,

his agent only so far as it was gained in

the transaction in which he was employed. or of a health officer of the town of East It is not prima facie negligence in a mortLyme, for the purpose of preventing the gagee or his conveyancer, to allow the spread of the disease, the verdict should proposed mortgagor to procure the necesbe in his favor, unless the jury should

sary mortgage search. further find that the house was destroyed

Error to the District Court for the City by his act or neglect.

and County of Philadelphia. The court charged the jury that the The action was in trespass on the case acts of the defendant were a trespass, for for damages alleged to have been suffered which he was liable in damages to the by the plaintiffs, by reason of the inaccuplaintiffs to the extent they had suffered racy of certain certificates of search given by reason of such acts, unless he was jus- by the defendant in his official capacity as tified on one or other of the grounds set Recorder of Deeds of Philadelphia. up in his plea and notice. As to the first In 1871, C. M. S. Leslie, a conveyancer portion of the defendant's request, the of good standing, applied to the Girard court charged them that the defendant Mutual Building and Loan Association had no individual right, without the li- |(the plaintiff) for two loans of two thoucense or permission of the plaintiffs, to sand dollars and sixteen hundred dollars, enter and take possession of their house, to be respectively secured by mortgages,

which were duly executed upon premises applicant for the loan to procure the belonging to Leslie.

searches. It was testified by the association's con

Judgment affirmed. veyancer, that Leslie was in haste, and

Opinion by Sharswood, J. had offered to procure the searches for him, saying that he could get them more quickly out of the recorder's

PRACTICE. TESTIMONY IN office, as he had more facilities. He was

EQUITY CASES. permitted to do so. The searches failed

U.S. SUPREME COURT. to show any prior mortgages, and were received and examined by the conveyancer Henry H. Blease, applt., v. Albert C. before the money was paid Leslie. Garlington. Prior mortages existed which rendered

Decided January, 1876. those in question valueless.

Circuit Courts are not required to The court below instructed the jury as

hear orul testimony in equity cases, follows:

but if they do it must be reduced to “If the jury believe the evidence of the writing and sent here as part of the

record, and must include testimony plaintiff, there is negligence in law, and

objected to and ruled out, subject to the damages are the total amounts loaned

the objection. This court will not on the said mortgages and interest, less

send the case back to have the rejected such sums as Leslie may have paid on

testimony taken. account,” reserving the following points

Appeal from the Circuit Court of the for the decision of the court.

United States for the District of South 1. Is there evidence of negligence ? Carolina. 2. Leslie having been the agent to pro

This suit was brought for the forecure the searches, does the knowledge by closure of a mortgage m:ide by Blease to him of the fact of the prior mortgages Garlington. The bill is in the ordinary estop the plaintiffs from alleging that the

form. Blease, in his answer, admits the defendant was negligent, or that he made execution of the note and mortgage, but a false certificate ?

insists, by way of defence, that GarlingThese questions reserved were decided

ton deceived him as to the value of the in favor of the plaintiff, and judgment consideration of the said note and mortrendered thereon.

gage and has not complied with his posiHeld, 1, The Recorder was liable for the tive agreement. damages caused by the false certificate.

Upon the hearing in the court below, 2. That the knowledge by Leslie of the after the plaintiff had submitted his case prior mortgages did not affect the plain- upon the pleadings and his mortgage, the tiff, inasmuch as it was not acquired in defendant presented himself as a witness the course of the business in which he to be examined orally in open court, and was employed. This rule does not depend proposed to testify to certain facts. upon the reason that no man can be sup His proposition made in writing is sent posed to always carry in his mind a recol- here as part of the record. The court relection of former accuracy; the true fused to receive the testimony, and it was reason is a technical one—that it is only not taken. A decree having been entered during the agency that the agent rep in favor of Garlington, Blease brings the resents and stands in the shoes of the case here by appeal. principal.

Held, That Circuit Courts are not by 3. It was not negligent to allow the I law required to permit the examination of

witnesses orally in open court upon the promissory note for the sum of $598.00, hearing of equity cases, and that if such payable thirty days after date, the considpractice is adopted in any cas., the testi- eration for said note being the proceeds of mony presented in that form must be a buggy which Pollard & Co. had placed taken down or its substance stated in in said Griffin's hands for sale, and which writing and made part of the record, or it he had sold, and used and appropriated will be entirely disregarded here on an the money. The payees in said note being appeal. So, too, if testimony is objected indebted to the plaintiff Gosling in the to and ruled out, it must still be sent here sum of $554.25, evidenced by their acwith the record, subject to the objection, ceptance, which matured 1st and 3d of or the ruling will not be considered by us. January, 1871, and which had been placed A case will not be sent back to have the in the hands of attorneys at Memphis for rejected testimony taken, even though we collection, on the 10th day of January, might on examination be of the opinion 1871, indorsed in blank the defendant's that the objection ought not to have been said note for $598.00, and delivered it to sustained.

the plaintiff's attorney as collateral seThe act of 1872 (17 Stat. 197; Rev. curity for the indorser's acceptance, which Stat., sec. 914) providing that the prac- said attorneys held for collection. Said tice, pleadings, and forms, and modes of attorneys, at the time of receiving defendproceeding in civil causes in the Circuit ant's note from said Pollard & Co., gave and District Courts shall conform, as near to the latter a receipt specifying that said as may be, to the practice, &c., of the note was received by them as collateral Courts of the States, has no application security for the payment of said Pollard & to this case, because it is in equity, and Co.'s acceptance for $554.25, due 1st and equity and admiralty causes are in express 3d of Ja: uary, 1871. It appears that the terms excepted from the operation of defendant, after the date of this transfer, that act.

and before the maturity of his said note, Decree affirmed.

delivered to Pollard & Co, several lots of Opinion by Wait, C. J.

flour and meal in payment and satisfaction of his note. This flour and meal, to

the amount of $613.00, was delivered on NEGOTIABLE PAPER. PAYMENT

the 26th and 29th of January, 1871, withIN ABSENCE OF NOTE.

out notice or knowledge on the part of deSUPREME COURT OF TENNESSEE.

fendant that this note had been previously Gosling v. Griffin.

endorsed and transferred by Pollard & Co. Decided November 27, 1875.

to the plaintiff. He accordingly refused Payments of negotiable paper before it to pay the note at its maturity, and was

is due, and in the absence of such sued thereon by the plaintiff in the First paper, are not made in due course of Circuit Court of Shelby county. business, and the party 80 paying

Amongst other pleas not necessary to should be held to do so at his own risk. Therefore, the maker of nego- be noticed, the defendants plead that said tiable paper is not discharged, if be- note was not transferred to the plaintiff in fore the maturity of the paper, and due course of trade, but was given to the "after its transfer, even as collateral plaintiff by the firm of Pollard & Co. as

security, he makes payment to any collateral security for a debt which the person other than the real holder.

said Pollard & Co. owed the plaintiff, and On the 9th day of January, 1871, the further, that the defendant paid said note defendant, T. S. Griffin, executed and de- to the firm of Pollard & Co., without nolivered to Pollard & Co., his negotiable' tice from the plaintiff that he had the note

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