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 the premises in suit, and leased the same to defendants for twelve years, at an annual rental of $600. 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 injury was at the time acting under an employment by the person sought to be charged. It must also be shown John O'D., prior to his death in that the employment created the relation 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. 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 Torts, 197. Judgment of General Term, affirming judgment in favor of plaintiff, reversed, and new trial granted. Opinion by Andrews, J. LEASE. ESTOPPEL. applt. a 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 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 attor ney 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. A N. Y. COURT OF APPEALS. Marsh, et al., applts., v. Russell, et Decided May 30, 1876. 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. After the contract to sell the paper al., respts. 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 dea 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. The complaint in this action set forth 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. 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. purposes of this case, must be treated as the party contracting to sell, and that this lease was surrendered. That defendants not being in possession Esek Cowen, for applts. 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 amount of the liens (the two mortgages) at the time the $500 mortgage became due. In August, 1871, the mortgagor in the $500 mortgage conveyed to one of the trustees, B., who agreed to pay the prior mortgage. In May, 1872, the The plaintiff's to thwart the policy of any law, or to injure or jeopardize any public interest that the business of furnishing re cruits was a lawful one, and could be carried on by individuals or firms; that when carried on by a firm ts members could regulate the prices at which they building was burned. 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 asJudgment of General Term, affirm-signment thereof made by him to plaining judgment on report of referee dis- tiffs, and the mortgage of S. with satismissing complaint, reversed, and new trial granted. Opinion by Earl, J. AGREEMENT FOR SALE OF LANDS. MERGER. faction. Demand of the amount due on the two mortgages was made by plaintiffs before suit, and payment refused. The referee found that the plaintiff's were entitled to the amount. due on the mortgages, and the defend N. Y. SUPREME COURT. GENERAL TERM. ant entitled to the deed, the satisfaction THIRD DEPARTMENT. Beach, et al., trustees, v. Allen. Decided May, 1876. case. of the S. mortgage, and the $500 bond and mortgage, and the assignment thereof. D. P. Loomis, for applt. N. C. & M. W. Marvin, for respt. Held, That the building, severed inten-from the realty, became personal property, and could be sold without any 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 tion of the parties. Damages determined in a peculiar order of the court. The agreement of the plaintiff's 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 trus prior 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 tee B. was not a payment or merger of prosecution. the mortgage. The defendant agreed The defendant was convicted and sentenced; and from this conviction he brings this writ of error. 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 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 damified by the breach of the agreement. 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; 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 al ment of the $500 mortgage. No costs to either party. BIGAMY. SUPREME COURT OF PENNSYLVANIA. Gise, plff in error, v. The Commonwealth, deft. in error. Decided May 18, 1876. tar, and never cohabited with her at all. The gravamen of the offense is the second marriage contract, by means of which the offending party fraudulently obtains dominion or control over the body of the other. 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- The statute of limitations runs from 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 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 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 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. Decided May 26, 1876. Clerical error in defendant's name in Sheriff's certificate of service, does not vitiate judgment afterwards obtained, 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. a cause of action was extinguished after C. M. De Costa, for respt. 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 of San Francisco, California, by plaintiff against one Sanders and defendant's testator, C. J. Brenham. could be true on the supposition that 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 no 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. "I hereby certify that I received the within summons on the 5th day of NoThe not bringing of this action upon vember, 1855, and personally served the same on the 5th day of November, limited by the statute of Califor..ia, the said judgment within the period 1855, on defendant Brennan * * * by delivering to said defendant person-judgment, but merely deprived the neither discharged or extinguished the ally, in the city of San Francisco, a copy party of the remedy. The statute did of said summons, attached to a certified copy of the complaint. not affect the demand in any other respect. It is necessarily purely local, |