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don an easement will operate to extinguish it, unless other persons have been led by treat of the owner of the easement to trial the servient estate as if free of the servitude. 8 E. & B. 31.

Corning v. Gould, 16 Wend., 531, and Craine v. Fox, 161 Barb., 184, distinguished.

Plaintiff was not, as against defendant, entitled to a judgment without qualification, and which might be held to destroy the easement. A judgment for the possession, subject to the easement, gave it all to whfch it was entitled.

Judgment of General Term, modify judgment at circuit by making plaintiff's title subject to the easement of defendant, affirmed.

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N. Y. SUPREME COURT-GENERAL TERM
FOURTH DEPT.

Stewart, resp't v. Patrick, applt.

Decided January, 1876.

A line between adjoining owners located
and recognized as such for 20 years
becomes a fixed boundary.
Judge's charge must be excepted to in
order to bring same up for review.
Appeal from Judgment upon a verdict
at the Circuit in favor of the Plaintiff.

This is an action of ejectment brought to recover a small strip of land in the possession of the defendant, and involves the question of a disputed boundary between the parties in respect to two adjacent village lots in the village of Herkimer.

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This action was brought to recover a balance due on account, for goods consigned to defendants for sale. It appeared that plaintiff agreed with one O. to make advances on his growing crops, which were to be shipped to him at S., and by him consigned to defendants and others, for sale. Plaintiff made the advances; O. reThe case was put to the jury upon the ceived the crops and consigned them as question whether the line which the plain-agreed, with bills of lading in plaintiff's tiff claimed to be the true line had been own name, and letters were written by practically located and recognized as the him to defendants from time to time, line between the parties for 20 years and directing them to sell on his account. upwards, and they were instructed if that Defendants offered to prove upon the trial were so "it put an end to the case, and an agreement between O. and them of the the plaintiff was entitled to recover accord-previous year, by which they were to ading to his occupation for 20 years.”

vance money for the crops, and which

was to continue in force until a final settlement was had, and all allowances paid, and that they had made advances thereunder. Plaintiff did not know of this

agreement.

Simeon E. Church, for applts.
W. W. Goodrich, for respt.

Held, That plaintiff by his advance became possessed of the crops, and was entitled to the proceeds of the sale of them;

Judgment of General Term affirming judgment entered on verdict directed for plaintiff, affirmed.

Opinion by Miller, J.

EVIDENCE. VOLUNTARY STATE-
MENT.

N. Y. COURT OF APPEALS.

Murphy, plaintiff in error v. The Peo

Decided January 18, 1876.

that the prior agreement with defendants ple, defendants in error.
did not alter plaintiff's rights, as he had
no notice of it, and had full possession of
the crops; that defendants could not
claim the crop under an older title, as they
were not sold or delivered to defendants,
but shipped on behalf of plaintiff, with a
notice to that effect.

Defendants claimed that notice of their claim was given in a letter to plaintiff in answer to a letter from him complaining of delay, which stated that plaintiff could change his consignments if he would pay the amount defendants had advanced to O. To this plaintiff replied, that as he had made the shipments in his own name, he supposed defendants could have no doubt who was entitled to the returns, and that he sent other articles for defendants to sell on his account. Defendants continued to sell the crops on plaintiff's account, which were forwarded with bills of lading in plaintiff's name.

Held, That plaintiff's reply to defendants' letter was a direct notification to them that the sales were made for plaintiff, and they are estopped now from claiming that they were made upon any other account.

Upon the trial of an indictment for murder, it is competent for the prosecution to show, as bearing upon the question of motive, that deceased had attended Court several times with a party against whom the prisoner was prosecuting several suits, and the objection that parol evidence of the nature of the suits could not be given is not available on appeal.

A statement made by the prisoner, shortly after the murder, and while he was in custody of the Sheriff, in response to the question, "do you desire to make any statement," is voluntary.

The plaintiff in error was convicted of the murder of one H., by the firing of a gun or pistol. The evidence was entirely. circumstantial, and tended to show that the shot was fired by some one standing outside of the house in which the deceased and one G., the prisoner's brother-in-law, resided, and near a window of a room in which they were sitting. Upon the trial G. was produced as a witness for the people, and testified, among other things, that he was the defendant in three suits commenced by the prisoner against him and others, and had been several times to attend the trial of them, and that H., the deceased, had accompanied him, and that the suits were brought to set aside deeds from his wife to him. It appeared that the witness' wife was dead, and that the

Held, also, That as the case appears to have been tried upon the theory that the balance claimed by plaintiff was actually due unless defendants were entitled to deduct their advances to O. of the previous year, although no proof was given that there was anything due plaintiff, defendants are concluded from raising the ques-suits were to be tried on the Monday after tion here. the murder. This evidence was objected

to generally by the prisoner's counsel, and conversation between the officer and the the objection was overruled. prisoner, when he made his statement, the James Emott and H. Daily, Jr., for prisoner was asked "where did that mask plaintiff in error.

Seth B. Cole for defendants in error.

Held, no error; that the evidence was competent as bearing upon the question of motive; that it was always competent upon such a trial to show the relations between the prisoner and the persons against whom the murderous act was directed; that the objection having been made generally, the objection that parol evidence could not be given of the suits, and that the pleadings should have been produced, is not available on appeal; that the objection should have been specifically

made upon the trial. 17 Wend, 257; 3 N. Y., 243; 12 id., 442; 32 id. 440; 45 id., 753; 50 id. 392.

The prosecution proved that the prisoner, when brought to the Sheriff's office, on the day after the murder, was asked if he desired to make any statement of his "whereabouts on Sunday and Saturday," and upon being informed that if he desired to do so the statement would be reduced to writing for him, and the prisoner replied that he did, and then proceeded, without any further request, to make a statement. This statement was offered in evidence and received under objection by the prisoner that it was not voluntary.

Held, no error; that the statement was not to be so considered simply because made after the prisoners' arrest to the officer who had arrested him, and while in his actual custody. 15 N. Y., 9; 37 id., 303 10 id. 13; 15id., 384; 41 id., 9. It was for the jury to determine the weight to be given to the statement, taking into consideration the circumstances under which it was made. Evidence was received under objection which showed that after the murder, and on the same evening, a mark was found under the window where the shot was fired, and that during the

come from," and replied, "the children. got that from the ragamuffins," and immediately added, as if recollecting himself, "that mask had a black nose and was torn down the face." The prisoner's counsel moved to have this testimony stricken out, "as not having been connected with the prisoner," and the motion was denied. The fact that a mask had been found had not been communicated to the prisoner when the conversation occurred.

Held, no error; that the reply of the prisoner indicated that he knew that a mask was in some way connected with the

transaction, and that it was proper to show the conversation as tending to connect the prisoner with the mask found on the night of the murder.

Judgment of General Term, affirming judgment of conviction, affirmed. Opinion by Andrews, J.

FAILURE

OF

CONSIDERATION.

SALE OF NEGOTIABLE BONDS. U. S. SUPREME COURT.

Otis, et al., plaintiffs in error, v. Cullum, receiver, &c., defendant in error.

Decided October Term, 1875.

In the absence of fraud or warranty, the vendor of negotiable town bonds, which, after the sale, are declared void by the courts, is not bound to repay to the vendee the purchase price.

In error to the Circuit Court of the United States for the District of Kansas.

The Legislature of Kansas passed two acts under which the City of Topeka was authorized to issue bonds for certain specified purposes, the amount in each case to be within the limit prescribed. A hundred

FRAUDULENT PURCHASER.

EQUITABLE RELIEF.

UNITED STATES SUPREME COURT. Neblett v. Macfarland.

Decided October Term, 1875.

In setting aside a conveyance procured by fraud, equity will allow the purchaser to receive back only the identical property by which he effected the bargain, whether it has greatly depreciated in value or not; and even if it has become worthless.

coupon bonds of one thousand dollars each, payable to a party named or bearer, were executed and delivered to that party. They became the property of the First National Bank of Topeka. That bank put them upon the market and disposed of them. Eighteen of them were sold to the plaintiffs in error for the sum of $12,852, and the residue to another party. There was default in the payment of interest. The other party brought suit. This court held that the Legislature had no power to pass the acts, and that the bonds were, therefore, void. This action was brought to set aside (Loan Association v. Topeka, 20 Wall. 655.) the conveyance of a plantation in LouisiThis suit was brought by the plaintiffs in ana, made by Macfarland to the appellant error to recover from the receiver the Neblett, upon the allegation that the conamount paid to the bank for the eighteen veyance was obtained by the fraudulent bonds, with interest upon that sum. The acts and representations of Neblett and ground relied upon is failure of considera- his father.

tion. The good faith of the bank was con- The only consideration given, or proceded, as also that there was no warranty. fessed to be given, by Neblett for the conHeld, The plaintiffs in error got ex-veyance was the cancellation of a certain actly what they intended to buy, and did bond for the sum of $14,464.51, executed buy. They took no guaranty. They are by Macfarland to Sterling Neblett, the seeking to recover, as it were, upon one, father, and alleged to be the property of while none exists. They are not clothed Henry Neblett. with the rights which such a stipulation would have given them. Not having taken it, they cannot have the benefit of it. The bank cannot be charged with a liability which it did not assume.

Such securities throng the channels of commerce, which they are made to seek, and where they find their market. They pass from hand to hand like bank notes The seller is liable ex delicto for bad faith, and ex contractu there is an implied warranty on his part that they belong to him, and that they are not forgeries.

It would be unreasonably harsh to hold all those through whose hands such instruments may have passed liable according to the principles which the plaintiffs in error insist shall be applied in this case. (Lambert v. Heath, 15 Meeson & W. 486.)

Judgment affirmed.

Opinion by Swayne, J.

The Court below adjudged the transaction to be fraudulent, directed the execution of a deed reconveying the property, and ordered the return and re-delivery of the bond for $14,464.51, unaffected by any endorsement of credit or payment thereon, and the same, with the mortgage made for its security, to retain the same lien thereon and the same force and effect as if the deed had not been made or any cancellation of the bond taken place.

It was claimed that, instead of directing a return of the bond in specie, as a condition for the return of the land, the court should have directed the payment of the amount of the money secured thereby.

Held, 1. In cases of this character the general principle is that he who seeks equity must do equity; that the party against whom relief is sought shall be remitted to the position he occupied before the transaction complained of. The court

proceeds on the principle that as the tran- supra, it is said: "The party defendant saction ought never to have taken place, is not bound to rescind until the lapse of a the parties are to be placed as far as pos- reasonable time after discovering the sible in the situation in which they would fraud. Hence the parties cannot be placed have stood if there had never been any in statu quo as to time." such transaction. Judgment affirmed. Opinion by Hunt, J.

But this principle will not benefit the complaining party in this suit.

INSURANCE.

CONN. SUPREME COURT OF ERRORS.
Continental Life Insurance Co. v. Ben-
jamin H. Palmer and others.
Decided February 1875.

He is restored here to his property that he had and parted with when he received his deed, to wit, his bond and mortgage. If he had paid $14,500 in money and received in return only a bond for the like amount, of doubtful security and impaired by the lapse of time, he might well have com-A wife insured the life of her husband, plained. But he paid no money.

Whether good or bad, he receives now the same security that he gave to his vendor. It would be a perversion of justice to give him the full amount in money for a security then worth but fifty cents on the dollar. If, on the other hand, it was then an adequate security, it is the

same now.

2. It is no objection to a restoration of property received on a fraudulent sale that it has fallen in value since the date of the transaction.-(Blake v. Morrell, 21 Beavan, 613; Veazie v. Williams, 8 How., 134, 158.) Nor if the property is of a perishable nature, is the holder bound to keep it in a state of preservation until the bill is filed.(Scott v. Perrin, 4 Bibb, 360; Kerr, 337).

the amount payable to herself if living, if not, to their children. She died before her husband, and one of the children before him, leaving a child.

Held, that a transmissible interest vested in the children upon the issuing of the policy, and that the child of the deceased child took by descent the interest of its parent, and was entitled to the portion of the fund which the parent would have received if living.

Plaintiffs brought bill of interpleader against certain parties claiming interest adversely to each other, in the amount of a life insurance policy payable by petitioners. It was found upon the petition and answer that Betsy A. Palmer insured the life of her husband, Benjamin W. Palmer, in the sum of $3,000, payable to herself, if living, if not, to their children. She died

A party seeking to set aside a sale of shares is not bound to pay calls on them to prevent forfeiture after filing his bill.-before her husband. Amos F. Palmer, (Same auth.) Nor is it fatal to his right of rescission that some of the shares have been thus forfeited.

one of the children, also died during the life of his father, leaving issue, Charles P. Palmer, one of the respondents.

That on death of Benjamin W. Palmer there was due and payable on policy the sum of $2,826.79 cents, which petitioners were ready and willing to pay to the persons entitled to receive same.

We have no means of knowing whether there can be a defence made to the bond, arising from the statute of limitations. But of this the appellant must take his chance. If the bond has become thus impaired it is no worse than the loss of a perishable The question here being whether Chas. article, or a forfeiture of shares during the P. Palmer takes an interest in the policy, litigation. These circumstances do not or whether the whole sum insured vests in alter the rule of law. In Gatley v. Newell, the surviving children.

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