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pairs when notified by D., and no notice Decided April, 1876. was given, yet defendant was liable if Where a person really having the title this agreement was not known to plain to land, allows another having the tift, and the accident occurred from apparent title to go on and do cerneglect to repair, and without negli

tain acts, such person is estopped gence on the part of plaintiff'; to which

from questioning such acts. propositions defendant's counsel ex

Appeal from a judgment in favor of cepted.

plaintiff. lield, That the exceptions were well

This was an action for rent of certain taken. In order to establish a liability premises situate in the city of Water

town. of one person for the negligence of another, it is not enough to show that the

In 1955 John O'D. was the owner of person whose negligence caused the in- the premises in suit, and leased the jury was at the time acting under an same to defendants for twelve years, at employment by the person sought to an annual rental of $600. be charged. It must also be shown

John O'D., prior to his death in that the employment created the rela-| 1862, deeded to one Anna M. O'D., tion of master and servant between

wife of P. O’D., the premises in questhem; if the person who was the im- tion, and gave deed to P. O'D. to demediate cause of the injury is a con

liver same to Anna on his death. P.

O'D., after the death of John, delivered tractor engaged in performing a contract to do a specific work, the relation deed to Anna, but deed was not re

corded until 1868. of master and servant does not arise, and for the contractor's negligence

In 1862, and after delivery of deed, while performing the work, the other Aana gave to P. O'D. power of attorparty is not liable 1 Seld., 48; 7 A. ney to lease or sell her real estate as he & E., 971; 5 B. & C. 517; 4 Exch., saw fit, and agreeing to adopt and rati24., 253; 8 N. Y., 222; 11 Id., 432.

fy the same. This rule does not apply to a case

The rent was paid on said preinises where the thing contracted to be done up to 1866 to P. O’D. P. O'D. was is unlawful, or where a public duty is the only heir of John O'D. imposed upon an officer or public body,

In April, 1866, P. O'D. entered into and the officer or body charged with a contract for the sale of premises for the duty commits its performance to $20,000, the purchase money to be paid another. 17 N. Y., 104; Add. on during the month of May ensuing. By Torts, 197.

this contract $500 rent was to be paid Judgment of General Term, affirming to P.JO'D. up to July, 1866. This con judgment in favor of plaintiff, reversed, tract was never carried out. and new trial granted.

This action was brought to recover Opinion by Andrews, J.

$150 rent, due by the terms of the

lease on January 1, 1867, and was asLEASE. ESTOPPEL. signed by Mrs. O'D. to plaintiff, her N. Y. SUPREME COURT. GEN'L TERM, son FOURTH DEPARTMENT.

The conveyance by John to Mrs. O'Dougherty, respt., v. Remington, O’D. was without any consideration applt. .

other than love and affection, and de

fendants never knew of the existence N. Y. COURT OF APPEALS. of this conveyance.

Marsh, et al., applts., v. Russell, et After the contract to sell the paper al., respts. mill, defendants went into possession, made repairs, paid taxes and insurance, a contract between several parties to

Decided May 30, 1876. and collected rents from tenants living

engage in the business of furnishing thereon, with the knowledge of P.O'D.

recruits under an anticipated call A deed pursuant to said contract was for volunteers for the army, and afterwards made, and was in hand which fices a minimum price at writing of Mrs. O'D. The defendants which they are to be furnished, is paid O'D. $1,000 on purchase price,

not against public policy. and were in possession up to Septem

The complaint in this action set forth ber, 1869, when P. OʻD. served on de a contract between the parties to the fendants a notice that he intended to effect that if either of them should make rescind said contract. Mrs. O'D. was a contract with any of the towns of cognizant of and assented to the vari- Washingto:1 county to furnish recruits, ous transactions between P. O'D. and under an anticipated call for volunteers, the defendants.

that all gains or profits which might Jell, That third persons had the accrue in such business should be diright to treat with P. O'D. as the vided equally; that no contract should owner of said property, as the real be made at less than $500 per man

The comowner concealed her title and acqui- without the consent of all. esced in and ratified his acts, and as

plaint then alleged that the anticipated between defendants and Mrs. O'D., she call was soon after made; that detendwas estopped from questioning her hus. ants entered into contracts as to various band's acts done in good faith under towns; that plaintiffs and defendants the power, and in equity she and the furnished men to fill said contracts, and property was bound by his acts and large profits were made, which were re

ceived and retained by defendants. contracts.

Plaintiffs asked for an accounting, By the acceptance and occupation under the contract of sale the lease &c. The complaint was dismissed on was ended, and their occupation was the trial on the ground that the coninconsistent with the relation of land-tract was upon its face against public lord and tenant. Mrs. O'D., for the policy.

Esek Cowen, for applts. purposes of this case, must be treated

N. C. Doak, for respts. as the party contracting to sell, and that this lease was surrendered. That

Ileld, error; tlmt the contract made defendants not being in possession the parties partners in furnishing reunder the lease, they were not tenants, cruits; that as it did not appear that and no rent could be collected.

the parties had control of any recruits, Judgment reversed.

much less a monopoly of them, or that Opinion by Mullin, P. J.

they could by the contract put up the price or embarrass the towns, or that

the price was unreasonable, that it was CONTRACTS AGAINST PUBLIC not a necessary inference from the POLICY,

I terms of the contract that the purpose

of the parties was an improper or un- case the suilding on the mortgaged lawful one, or that its effect would be premises burned, he would pay the to thwart the policy of any law, or to amount of the liens (the two mortgages) injure or jeopardize any public inter- at the time the $500 mortgage became est : that the business of furnishing re. due. In August, 1871, the mortgagor cruits was a lawful one, and could be in the $500 mortgage conveyed to one carried on by individuals or firms; that of the trustees, B., who agreed to pay when carried on by a firm ts members the prior mortgage. In May, 1872, the could regulate the prices at which they building was burned. The plaintiff's would furnish the same as if they had paid up the prior liens. For a failure been dealers in other articles. .13 N. to pay interest, the plaintiffs, under a Y.,147; 3 Met., 384. Gedick v. Ward, clause in the $500 mortgage, elected 5 Halst., 87; Gardiner v. Moore, 25 that the whole amount should become Me., 140; Doolin v. Ward, 6 J. R., due. Thereafter the trustees tendered 194; Hooker v. Vandeventer, 4 Den., the defendant a warranty deed of B. 319 ; Stanton . Allen, 5 Id., 534, dis- and wife of the premises to him, the tinguished.

$500 bond and mı rtgage with the asJudgment of General Term, affirm- signment thereof made by him to plaining judgment on report of referee dis- tiff's, and the mortgage of S. with satismissing complaint, reversed, and new faction. Demand of the amount due trial granted.

on the two mortgages was made by Opinion by Earl, J.

plaintiffs before suit, and payment re

fused. The referee found that the AGREEMENT FOR SALE OF

plaintiff's were entitled to the amount LANDS. MERGER.

due on the mortgages, and the defendN. Y. SUPREME Court. GENERAL Term. ant entitled to the deed, the satisfaction

of the S. mortgage, and the $500 bond THIRD DEPARTMENT.

and mortgage, and the assignment Beach, et al., trustees, v. Allen.

thereof. Decided May, 1576.

D. P. Loomis, for applt. An agreement that in case buildings N. C. & M. W. Marvin, for respt.

burn, one will pay the amount of the liens thereon, is not an agree Ild, That the building, severed ment for the sale of lands.

from the realty, became personal propMerger will depend upon the intention of the parties.

erty, and could be sold without any Damages determined in a peculiar order of the court. The agreement of

the plaintiffs and defendant was not The plaintiffs, trustees of a religious void. It was not an agreement to sell corporation, in Oetoler, 1870, exchang- lands. The defendant's agreement ed their old church, which had been was similar to a guaranty that on a foresevered from the realty, for a $500 closure sale a guarantor will bid a cermortgage owned by the defendant. On tain amount. The agreement is not the mortgaged premises there was a void for want of mutuality. The trusprior mortgage of $1,000 owned by one tees -old the churc'ı in consideration of S. At the time of the exchange de- the assignment of the mortgage and fendant executed an agreement that in the execution of the agreement in suit.


The deed of the mortgagor to the trus- years before the commencement of the tee B. was not a payment or merger of prosecution. the mortgage. The defendant agreed The court ruled that bigamy was a to pay the amount of the mortgages. continuous offense, and that the statute He received a good title, and cannot did not apply. complain. In such cases the intention The defendant was convicted and of the parties will control as to merger. sentenced; and from this conviction he The referee erred in regarding the brings this writ of error. agreement as one for the purchase and Paxson, J.-What our statute forsale of lands, and awarding specific bids is the contracting of a second mar. performance. It is only an agreement riage during the lifetime of a former with one person to pay a certain sim husband or wife. 2 Ired., 316; 1 Cox for premises of another. If the defend. C. C., 34. ant had fulfilled his agreement the The doctrine, now for the first time plaintiff's would have received the asserted, that the continuing cohabitaamount of their $300 mortgage and in- tion is the offence, does not need an exterest. This, then, is the amount they tended discussion. It is not necessary have been damı iied by the breach of to allege or prove cohabitation upon an the agreement.

indictment for bigamy. 7 Greenl., 58; Judgment accordingly, and without Gahagen v. The People, 9 Parker; 2 prejudice to the rights, if any, which Ired., 347. On the contrary, a man the defendant may hereafter have, after may be convicted of bigamy who sepsuch payment, to demand an assign- arated from his second wife at the a!. ment of ile $500 mortgage.

tar, and never cohabited with her at all. No costs to either party.

The gravamen of the offense is the secOpinion by Learned, P.J.

ond marriage contract, by means of

which the offending party fraudulently BIGAMY.

obtains dominion or control over the SUPREME COURT OF PENNSYLVANIA. body of the other.

The doctrine ot continuous offences Gise, plff

" in error, v. The Common- is novel. No text writer in England or wealth, deft. in error.

America has ever asserted it. No reDecided May 18, 1876.

spectable authority has ever recognized Bigamy consists in the unlawful con- it. It is wholly unknown to the crimi

tracting of a second marriage. Co- nal law.
habitation forms no element of the
offense, and does not perpetuate it

There is a period in the history of day by day.

every crime when it is completed, and The statute of limitations runs from the offender becomes liable to the

penthe time of the illegal contract of alties of the law. From that moment marriage.

the statute of limitations commences to In error to the Quarter Sessions of run. The crime of bigamy occurs and Luzerne county.

is complete when the second marriage The plaintiff in error was indicted is accomplished, and the statute would for bigamy. The defence set up the commence to run from that time. statute of limitations.

The second The statute of limitations is a bar to marriage took place more than two this prosecution. The plaintiff in error

was illegally convicted and sentenced, “ Dated, San Francisco, this sth day and should be restored to his liberty. of November, A. D., 1855. Judgment reversed, and record re

" DAVID SCANNELL, mitted to the Quarter Sessions, with

Sheriff'. directions to carry the order into effect. “By E. W. CORBETT,

Deputy Sheriff.Defendant moved to dismiss the

complaint on the ground that it did not ACTION ON JUDGMENT. STAT-appear on the record that service had UTE OF LIMITATIONS.

ever been effected in Charles J. Bren. N. Y. SUPREME COURT. GENERAL TERM. ham, which motion was denied. It was FIRST DEPARTMENT.

further argued that by the California W. D. Miller, et al., respts., v. Betty statute of limitations, the judgment on Brenham, ex'x, &c., applt.

a cause of action was extinguished after Decided May 26, 1876.

five years from the entry thereof.

C. II. De Costa, for respt.
Clerical error in defendant's name in
Sheriff's certificate of service, does

Starr & Ruggles, for applt. not vitiate judgment afterwards ob

On appeal, tained. Action may be maintained in this

Hell, That, as the sheriff's certii. State on judgment barreld in State cate stated the service to have been on where recovered by lapse of time. the defendant, the name given was

Appeal from judgment recovered on doubtless an error of the sheriff, as the verdict of jury.

names are quite similar. This action was brought in 1873, on ment is direct and positive that he a judgment recovered in November, served the defendant, which only 1855, in the Superior Court of the City could be true on the supposition that of San Francisco, California, by plaintift he was the person mistakenly called

Brennan. The certificate was acted againstone Sanders and defendant's

upon in the court where the action was testator, C. J. Brenham,

brought, as showing proper service on The Sheriff s return of service

the defendant there'n, and as no Brendorsed on the summons in said action

nan was named or was a party in the was as follows:

action, there is no doubt but what the 6. OEFICE OF THE SHERIFF

proper defendant was served.


was the error such a variance as would

be regarded as material under $ 169 of " I hereby certify that I received the

the Code. within summons on the 5th day of No

The not bringing of this action upon vember, 1855, and personally served the saine on the 5th day of November, limited by the statute of,

the said judgment within the period 18.5, on defendant Brennan * *

neither discharged or extinguished the by delivering to said defendant person- judgment, but merely deprived the ally, in the city of San Francisco, a copy of said summons, attached to a certified party of the remedy. The statute did

not äffect the demand in any other recopy of the complaint.

spect. It is necessarily purely Joca!,

His state




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