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pairs when notified by D., and no notice was given, yet defendant was liable if this agreement was not known to plaintiff, and the accident occurred from neglect to repair, and without negligence on the part of plaintiff'; to which propositions defendant's counsel excepted.

Decided April, 1876.

Where a person really having the title to land, allows another having the apparent title to go on and do certain acts, such person is estopped from questioning such acts.

Appeal from a judgment in favor of plaintiff.

This was an action for rent of certain

town.

In 1855 John O'D. was the owner of

Held, That the exceptions were well taken. In order to establish a liability premises situate in the city of Waterof one person for the negligence of another, it is not enough to show that the 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., wife of P. O'D., the premises in question, and gave deed to P. O'D. to deliver same to Anna on his death. P. O'D., after the death of John, delivered

tion of master and servant between

them; if the person who was the immediate cause of the injury is a contractor engaged in performing a contract to do a specific work, the relation of master and servant does not arise, and for the contractor's negligence while performing the work, the other party is not liable 1 Seld., 48; 7 A. & E., 974; 5 B. & C. 547; 4 Exch., 241, 253; 8 N. Y., 222; 11 Id., 432.

Torts, 197.

Judgment of General Term, affirming judgment in favor of plaintiff, reversed, and new trial granted. Opinion by Andrews, J.

LEASE. ESTOPPEL.

N. Y. SUPREME COURT. GEN'L TERM,
FOURTH DEPARTMENT.
O'Dougherty, respt,, v. Remington,

applt.

This rule does not apply to a case where the thing contracted to be done is unlawful, or where a public duty is imposed upon an officer or public body, and the officer or body charged with the duty commits its performance to another. 17 N. Y., 104; Add. on

a

deed to Anna, but deed was not re

corded until 1868.

In 1862, and after delivery of deed, Anna gave to P. O'D. power of attorney to lease or sell her real estate as he saw fit, and agreeing to adopt and ratify the same.

The rent was paid on said premises up to 1866 to P. O'D. P. O'D. was the only heir of John O'D.

In April, 1866, P. O'D. entered into contract for the sale of premises for $20,000, the purchase money to be paid during the month of May ensuing. By this contract $500 rent was to be paid to P.JO'D. up to July, 1866. This con tract was never carried out.

This action was brought to recover $450 rent, due by the terms of the lease on January 1, 1867, and was assigned by Mrs. O'D. to plaintiff, her Son.

The conveyance by John to Mrs. O'D. was without any consideration other than love and affection, and de

fendants never knew of the existence of this conveyance.

After the contract to sell the paper mill, defendants went into possession, made repairs, paid taxes and insurance, and collected rents from tenants living thereon, with the knowledge of P. O'D. A deed pursuant to said contract was afterwards made, and was in handwriting of Mrs. O'D. The defendants paid O'D. $1,000 on purchase price, and were in possession up to September, 1869, when P. O'D. served on de fendants a notice that he intended to rescind said contract. Mrs. O'D. was

cognizant of and assented to the various transactions between P. O'D. and the defendants.

N. Y. COURT OF APPEALS. al., respts. Marsh, et al., applts., v. Russell, et

Decided May 30, 1876.

A contract between several parties to engage in the business of furnishing recruits under an anticipated call for volunteers for the army, and which fixes a minimum price at which they are to be furnished, is not against public policy.

The complaint in this action set forth a contract between the parties to the effect that if either of them should make a contract with any of the towns of Washington county to furnish recruits, under an anticipated call for volunteers, that all gains or profits which might Held, 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 owner concealed her title and acqui- without the consent of all. The comesced 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 defendwas 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 received and retained by defendants.

contracts.

Judgment reversed.

Opinion by Mullin, P. J.

Plaintiffs asked for an accounting,

By the acceptance and occupation

was ended, and their occupation was inconsistent with the relation of landlord and tenant. Mrs. O'D., for the purposes of this case, must be treated as the party contracting to sell, and that this lease was surrendered. That

under the contract of sale the lease &c. The complaint was dismissed on the trial on the ground that the contract was upon its face against public. policy.

Esek Cowen, for applts.
N. C. Moak, for respts.

defendants not being in possession
under the lease, they were not tenants,

and no rent could be collected.

Held, error; that the contract made the parties partners in furnishing recruits; that as it did not appear that the parties had control of any recruits, much less a monopoly of them, or that 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.

terms of the contract that the purpose

of the parties was an improper or un- case the building 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. 43 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. 349; Stanton Allen, 5 Id., 534, dis- and wife of the premises to him, the tinguished. $500 bond and mortgage with the assignment thereof made by him to plaintiffs, and the mortgage of S. with satisfaction. Demand of the amount due on the two mortgages was made by plaintiffs before suit, and payment refused. The referee found that the plaintiffs were entitled to the amount due on the mortgages, and the defendant entitled to the deed, the satisfaction of the S. mortgage, and the $500 bond and mortgage, and the assignment thereof.

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Judgment of General Term, affirming judgment on report of referee dismissing complaint, reversed, and new trial granted. Opinion by Earl, J.

AGREEMENT FOR SALE OF
LANDS. MERGER.

N. Y. SUPREME COURT. GENERAL TERM.
THIRD DEPARTMENT.

Beach, et al., trustees, v. Allen.
Decided May, 1876.

An agreement that in case buildings
burn, one will pay the amount of
the liens thereon, is not an agree
ment for the sale of lands.
Merger will depend upon the inten-
tion of the parties.
Damages determined in a peculiar

case.

D. P. Loomis, for applt.

N. C. & M. W. Marvin, for respt.

Held, That the building, severed from the realty, became personal property, and could be sold without any 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 October, 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 sold the church 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

The defendant was convicted and sentenced; and from this conviction he brings this writ of error.

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 of the parties will control as to merger. The referee erred in regarding the agreement as one for the purchase and sale of lands, and awarding specific performance. It is only an agreement with one person to pay a certain sum for premises of another. If the defendant had fulfilled his agreement the plaintiff's would have received the amount of their $500 mortgage and interest. This, then, is the amount they have been dam ified by the breach of the agreement.

Paxson, J.-What our statute forbids is the contracting of a second marriage during the lifetime of a former husband or wife. 2 Ired., 346; 1 Cox C. C., 34.

The doctrine, now for the first time asserted, that the continuing cohabitation is the offence, does not need an extended discussion. It is not necessary to allege or prove cohabitation upon an indictment for bigamy. 7 Greenl., 58; Gahagen v. The People, 9 Parker; 2 Ired., 347. On the contrary, a man may be convicted of bigamy who sep

Judgment accordingly, and without prejudice to the rights, if any, which the defendant may hereafter have, after such payment, to demand an assign-arated from his second wife at the a!ment of the $500 mortgage.

No costs to either party.
Opinion by Learned, P. J.

tar, and never cohabited with her at all.
The gravamen of the offense is the sec-
ond marriage contract, by means of
which the offending party fraudulently
obtains dominion or control over the
body of the other.

BIGAMY.

SUPREME COURT OF PENNSYLVANIA. Gise, plff in error, v. The Commonwealth, deft. in error.

Decided May 18, 1876.

The doctrine of continuous offences is novel. No text writer in England or America has ever asserted it. No respectable authority has ever recognized it. It is wholly unknown to the crimi

Bigamy consists in the unlawful con-
tracting of a second marriage. Co-nal law.
habitation forms no element of the
offense, and does not perpetuate it
day by day.

The statute of limitations runs from
the time of the illegal contract of
marriage.

There is a period in the history of every crime when it is completed, and the offender becomes liable to the penalties of the law. From that moment. 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 is accomplished, and the statute would commence to run from that time.

The plaintiff in error was indicted for bigamy. The defence set up the 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, and should be restored to his liberty.

Judgment reversed, and record remitted to the Quarter Sessions, with directions to carry the order into effect.

Clerical error in defendant's name in Sheriff's certificate of service, does not vitiate judgment afterwards ob tained.

"Dated, San Francisco, this 8th day of November, A. D., 1855. "DAVID SCANNELL,

66

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.
N. Y. SUPREME COURT. GENERAL TERM.
FIRST DEPARTMENT.

ever been effected on Charles J. Brenham, which motion was denied. It was 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 five years from the entry thereof. C. M. De Costa, for respt. Starr & Ruggles, for applt. On appeal,

Decided May 26, 1876.

Action may be maintained in this State on judgment barred in State where recovered by lapse of time. Appeal from judgment recovered on verdict of jury.

"By E. W. CORBETT,

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"Deputy Sheriff."

Hell, That, as the sheriff's certiicate stated the service to have been on the defendant, the name given was doubtless an error of the sheriff, as the names are quite similar. His stateThis 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 suppos

that

of San Francisco, California, by plaintiff against one Sanders and defendant's testator, C. J. Brenham.

The Sheriff s return of service endorsed on the summons in said action was as follows:

he was the person mistakenly called Brennan. The certificate was acted upon in the court where the action was brought, as showing proper service on the defendant there'n, and as uc Brennan was named or was a party in the action, there is no doubt but what the proper defendant was served. Nor was the error such a variance as would be regarded as material under $169 of the Code.

"OEFICE OF THE SHERIFF

OF THE

COUNTY OF SAN FRANCISCO.

"I hereby certify that I received the within summons on the 5th day of November, 1855, and personally served the

The not bringing of this action upon the said judgment within the period on the 5th day of November, limited by the statute of Califori.ia, 1855, on defendant Brennan *

saine

* *

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 copy of the complaint.

party of the remedy. The statute did not affect the demand in any other respect. It is necessarily purely local,

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