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is the subject of controversy. George W. McClure was the source of title, common to plaintiffs and defendant. McClure had made a mortgage on the lots to defeudants in error, to secure payment of the tum of $18,000.

A suit to foreclose this mortgage was instituted in the district court in 1868, which proceeded to a decree and sale, and plaintiffs became the purchasers, receiving the master's deed, which was duly confirmed by the court.

This action was brought by plaintiff as trustee of the estate of F., under a deed of trust executed by F., to recover money loaned by F. to the defendant. The defendant pleaded payment and gave evidence showing payment to F. after the execution of the deed. Plaintiff's counsel, upon the trial, requested the Judge to This decree was rendered July 1, 1870. charge the jury that the burden of proof On the 9th day of May preceeding, the was upon the defendant, to show that the mortgagor, McClure, filed a petition in payment was made without notice of bankruptcy, and on the 11th day of May plaintiff's rights, and in good faith. This he was adjudged a bankrupt, and on the request was refused, and plaintiff ex4th day of June John Mechling was duly cepted, and also excepted to the charge on appointed assignee. The bankrupt filed this point, that the burden of proof was schedules in which these lots, and the upon him. mortgage of the Gaffs on them, were set

out.

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signee of a debt, to establish that the debtor was notified of the assignment in order to protect himself against payment to the assignor.

A. Hadden for applt.

Geo. B. Bradley, for respt.

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CONTRACTS.

the supervisor's acts in accepting or rejecting the work as coming up to U. S. SUPREME COURT. these specifications. This Allen did in Gilbert Woodruff, et al, plffs. in error, V. his contract with them. The supervisors Benjamin F. Hough, et al., defts in error reserved the right to decide as between Decided October Term, 1875. them and Allen whether the work conA contractor is liable to his sub-con- formed to the specifications. Allen retractor for work done, although such served no such power in his contract with work may be rejected by the party defendants. These latter had a right, in who originally let the contract; there the event of a difference on that subject, being nothing in the agreement be- to have the difference settled by a court of law. and Allen run that risk if he rejected any of their work. But the supervisors could reject work without such hazard, because Allen had agreed to submit to their judgment in case of such a difference. Judgment affirmed. Opinion by Miller, J.

tween the contractor and sub-contractor, which makes the approval of the work by the original party

necessary.

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

John Allen having contracted with the supervisors of the County of Winnebago, Illinois, for the building of a county jail, made another contract with defendants in error, who were plaintiffs below, for all the wrought-iron work necessary in the construction of the building. The plaintiffs here, who were defendants below, became sureties for Allen by a written guaranty that he would perform his part of the contract; that is, would pay as he had promised these sub-contractors.

Growx, respt. v. McCrum, applt.
Decided February 7, 1876.

A

notice of appeal from a Justice's Court, where the recovery was over one hundred dollars, to a County Court, which states as ground of appeal" that the Justice erred in finding that plaintiff rendered services in a sum exceeding in value the sum of twenty-five dollars," is sufficient to entitle the appealing party to costs in the County Court, if recovery therein is reduced more than ten dollars.

COSTS. PRACTICE.

N. Y. SUPREME COURT-GENERAL TERM,
SECOND DEPARTMENT.

In the progress of the work differences arose between Allen and his sub contractors, growing out of the refusal of the supervisors to accept the work furnished by the latter, on the ground that it was not in compliance with the specifications of Allen's contract with the supervisors, and with the defendants in error. After much of the work was done and put in place, it was condemned, and the work abandoned by defendants in error, who brought this suit against Allen's sureties for his failure The action was re-tried there and reto pay as they had guarantied he would. sulted in a judgment for the plaintiff for Held, That Hough and Butler, the sub- $93. contractors under Allen, were not bound The defendant, in his notice of appeal by all Allen's contract with the super- to the County Court, stated the followvisors. But while they accepted specifica- ing, among other grounds of appeal. tions for the wrought-iron work which First, That the Justice erred in finding were in Allen's contract with the super-that the plaintiff rendered services for the visors, they did not agree to be bound by defendant in a sum exceeding in value

The plaintiff recovered a judgment for $125, besides costs, in a Justice's Court, and the defendant appealed to the County Court.

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the sum of twenty-five dollars.

logs. It appeared on the trial that de

The question is presented as to which fendants were the owners of the N. party is entitled to costs.

of sec. 33, t. 21, N. r. 6 E, in this State; that they contracted with one Smith to lumber on said land; that by mistake Smith cut the logs in question upon the south half of said section, caused the same to be hauled a distance of about five miles to the Ausable river, thence run to the boom at the mouth of said river, there rafted and towed from thence to

Roger H. Lyon, for applt. H. B. Davis, for respt. Held, The appellant's right to costs depends upon his notice of appeal. He must state in his notice in what particular or particulars he claims the judgment should have been more favorable to him. Sec. 371 of the Code.

In this case the first particular ground of appeal is that the Justice erred in finding a sum exceeding $25. This means the judgment is for too much, and should only have been for $25.

DAMAGES.

Toledo in the State of Ohio, where they were sold at twelve dollars per thousand feet.

This threw upon respondent the necessity of making an offer to correct the judgment in the amount, or to be liable to pay costs if the judgment was reduced $10. No offer was made, and the judgment was so reduced.

The appellant was entitled to costs in the County Court.

The Court charged the jury, that if

Order reversed, with $10 costs, besides they found no wilful wrong on the part of disbursements.

Opinion by Barnard, J.

the defendant, they might award as damages the value of the property where it was taken, viz: one dollar and fifty cents per thousand, together with the profits, INVOLUNTARY CON- which might have been derived from its VERSION.

value in the ordinary market. Or, that they might take the market value at Toledo, deduct precisely the sum defendants expended in bringing it to that market, and putting it in condition for sale, and award the difference between these two sums, with interest in either case from the time the conversion took place; and refused to charge that the plaintiff would recover as damages the price for which the logs were sold in Toledo.

SUPREME COURT OF MICHIGAN. Winchester v. Craig et al.

Decided January Term, 1876. The measure of damages in trover for conversion by an involuntary tres passer, is the market value of the property at the point where it is sold by the trespasser, less the expense of getting it there. Where it is not sold, or the market

value does not cover the expense, the measure is its value when first taken, together with any profits that might be derived from its value in the ordinary market, with interest.

It also appeared that when these logs were cut the south half of said section was owned by Eben B. Ward, and that he afterward, and before suit brought, assigned all his claim and right of action for such cutting, to the plaintiff.

The plaintiff ciaimed to recover the price at which the timber was sold in Toledo.

The finding of the jury, as appears from the printed record, was as follows: "The defendants cut the timber on the land of Ward by mistake; the quantity cut was 193,786 feet; the value on the land after it was cut was two dollars per

Winchester brought an action of trover to recover damages for the conversion by thousand feet; the value at Toledo, and defendants of a quantity of pine saw- for which the defendants sold the timber

was twelve dollars per thousand; the ex- formed the consideration of the defendpenses of the defendants on the timber in ant's alleged indorsement had a valid incutting and removing the same to Toledo, ception. Defendant subsequently moved nine dollars and thirty-seven cents per to strike the drafts, and all evidence rethousand," and they assessed the plaintiff's lating thereto, out of the case. This was damages at the sum of $3,631 40. denied, and defendant excepted.

Held, That the instructions given the jury were correct.

Judgment affirmed.

Opinion by Marston, J.

Held, no error; that the denial of the motion did not constitute any ground of a legal exception; that evidence received under objection, which for any reason should not be considered by the jury is not necessarily to be stricken out, but may be retained in the discretion of the court, and the remedy is for the party to ask for instructions to the jury to disregard it.

Plaintiff offered in evidence a check

EVIDENCE.

PRACTICE.

N. Y. COURT OF APPEALS, Marks, respt. v. King, applt. Decided February 8, 1876. In an action upon a note where the defense is forgery, other notes and checks of defendants, tending to connect defendant with the origin of the debt, for which the note in suit was given are admissible in evidence. A refusal to strike out evidence re ceived under objection constitutes no ground for an exception; if for any reason it should not be considered, the remedy is to ask for instruc- discounted having been made for the actions that it be disregarded. commodation of the maker of the note in

signed by defendant upon the Second National Bank of Jersey City, given for the avails of a note made by defendant and claimed to have been discounted by said bank, which it was claimed was paid and taken up by the drafts, which were the

avails of the note, to take up which the note in suit was given, the note then

suit. Defendant objected that the witness, who was cashier of the Jersey City Bank, had no knowledge of the note or drafts, and chat it was not the best evidence of the discount of the note.

This action was brought against detendant as the indorser of a promissory note. The defense was that the indorsement was a forgery. Upon the trial, certain drafts given to B., the maker of the note in suit, as the avails of the discount of a note to take up which the note instance connecting the defendant with the snit was given, were received in evidence origin of the debt for which the note in under defendant's exception. The dis- suit was given. count of the note taken up had already been proved without objection.

Held, That the check was a circum

G. W. Hotchkiss, for respt.
O. W. Chapman, for applt.

Defendant offered to prove that a witness for the plaintiff had been active in procuring the indictment of B. for counterfeiting the indorsement. The evidence was excluded.

Held, That the evidence was competent as part of the res gesta; that their admis Held, no error; that this fact would not sion, without other evidence, did not ne-ave discredited his testimony either in cessarily affect defendant, or tend to es- respect to declarations and admissions of tablish the genuineness of his indorse- the defendant, or his opinion as to the ment of the note in suit; that the evi- genuineness of the indorsement as given dence was also competent as laying a under oath. That the fact offered was foundation for other evidence which might entirely collateral, and was properly reconnect defendant with the note; that it jected. 32 N. Y., 127. was proper as showing that the note which

Judgment of General Term, denying

defendant's motion for a new trial, af- FRAUD. PRINCIPAL AND AGENT. firmed. N. Y. COURT OF APPEALS.

Opinion by Allen, J.

FENCES. RAILROAD.

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

Spinner v. N. Y. C. and H. R. R. R.

Co.

Decided January Term. 1876. A railroad company must maintain fences along the line of its road and at crossings, gates, &c. Failure to keep gates shut is evidence of negligence.

In September, 1872, plaintiff was in possession of a farm near Ilion, Herkimer County, on which he had a herd of cattle. Defendant's railroad ran along the side of the farm adjoining the highway, which lay between the railroad and the farm.

Between the highway and the railroad defendant had built a fence, and in the fence, near the house of one Farrington, a gate was placed, as well to enable him to pass to and from a part of his farm, lving on the opposite side of the railroad lving on the opposite side of the railroad from his house, as to enable persons carrying freight to and from defendant's pot, near Ilion, to pass to and from said depot with freight.

On the night of September 30, 1872 the plaintiff's fence was in some way torn down, and plaintiff's cattle passed through it on to the highway, and the gate near Farrington's being open, the cattle passed through on to the track of the defendant, and some of them were killed.

Indianapolis, Peru & Chicago R. R. Co., respt. v. Tyng, applt.

Verdict for plaintiff.

Held, That a railroad company is bound to see to it that all gates on its road are kept closed, and it is liable if they are left open, even by the owner of land for whose convenience they are constructed. Such owner owes no duty to the owner of cat

tle that may be in the highway or adjoining fields.

Decided January 18, 1876.

A party induced by fraud to make a purchase of property, and to take a warranty therefor in writing, and under seal, may disregard the latter, sue directly for the fraud, and give parol evidence of the fraudulent representations.

A principal can enforce all rights of action acquired on his behalf by his agent, irrespective of any obligations or liabilities arising in the transaction between the principal and agent.

In fixing the value of such property as a locomotive engine, the whole country is but a single market.

This was an action to recover damages for the alleged fraud and deceit of defendant in the sale to plaintiff of two locopurchase by plaintiff through C., its agent, motive engines. The complaint alleged a purchase by plaintiff through C., its agent, induced by the representations made by de-lied upon them; that they were false and defendant, that plaintiff believed and re

made with intent to defraud, and that That defendant gave a warranty in writing by means thereof plaintiff suffered loss. of the character and quality of the engines.

Held, That the complaint contained facts sufficient to constitute a cause of action for fraud.

Also, held, That an action ex delicto cau be maintained, where after fraudulent rep resentations have been made, a personal undertaking had been given, which would not have been taken but for the confidence induced by the representation, and where these have been relied upon, both in mak

ing the contract and in taking the warranty of quality, and it was shown that the deceit was the moving cause of both

Judgment affirmed.

Opinion by Mullan, P. J.; Smith and acts, thongh the contract was in writing. Gilbert, J. J., concurring. and sealed, and contained covenants of

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