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EVIDENCE-REBUTTAL-LEADING QUESTIONS DISCRETIONARY WITH COURT, AND NOT GROUND FOR REVERSAL.-Farmers Mutual Ins. Co. v. Bair. Supreme Court of Pennsylvania, 6 W. N. 40. Opinion by PAXSON, J. 1. The admission of evidence not strictly in rebuttal is in the discretion of the court, and not error. The exercise of such discretion is not reviewable, unless for gross abuse. 2. When a witness is called to contradict a previous witness, the correct practice is to put the question to him in the same language in which it has been put to the witness sought to be contradicted. 3. Whilst it is error not to allow a leading question where a party has a right to put it, the improper allowance of a leading question is no ground for reversal. "While there are instances in the books where judgments have been reversed for the refusal to allow leading questions where the party was entitled to put them, I know of no reversal in Pennsylvania for allowing a leading question. Susquehanna Coal Co. v. Quick, 11 P. F. Smith, 328 is not an exception, as in that case there were a number of other assignments of error which were sustained. The reason for this is manifest. The form of a question, whether it shall be put as leading or otherwise, depends not upon an inflexible rule, but upon a variety of circumstances which must of necessity be left to the discretion of the court below. Thus a party may be surprised by his own witness, and after he has placed him on the stand discover that he is hostile, in which case it is settled law that he may be asked leading questions as if upon cross-examination. The rule is thus laid down in Starkie on Evidence, at page 147: Thus, a party's own witness who, having given one account of the matter, when called on the trial gives a different account, may be asked by the party calling him whether he had given such account, stating it, to the attorney. And if a witness called stands in a situation which, of necessity, makes him adverse to the party calling him, counsel may cross-examine him.' The mere manner of the witness, when on the stand, may be such as to justify the court in permitting leading questions. It is needless to multiply instances. It is said in Sharswood's Notes to Starkie, at page 150, that 'the allowance of a leading question is within the discretion of the court, and not the subject of a writ of error, although the refusal to allow a party to put a leading question, who is entitled to do so upon cross-examination is,' and a number of authorities are cited in support of the text. The same doctrine is laid down in Greenleaf, sec. 435."
CONTRACTS-SUBSCRIPTIONS IN AID OF COLLEGE. -Sturges v. Denison University. United States District Court, Northern District of Ohio, 10 Ch. L. N. 395. Opinion by WELKER, J.-1. Subscriptions made in aid of endowments to a college become fixed and legal obligations as soon as the college performs the undertaking on its part, and are provable in bankruptcy, as other claims. 2. Where such subscriptions are settled by giving promissory notes therefor, every presumption of law is in favor of the validity of the transaction, and the burden of proof is on the party opposing, if he would impeach it. In Ohio it is the policy of the law to promote and favor the interests of education. In Ohio Female College v. Love, 16 Obio St. 27, Scott, J., says: "It has at all times been the declared policy of this state to favor and promote the interests of education and the general diffusion of knowledge among the people. To this fact the provisions of the constitution itself, our system of school laws and acts providing for the incorporation of institutions of learning bear ample testimony." *
This subscription was then authorized by law. It was evidently intended by the maker that the managing officers of the corporation should rely on it as a part of the means and resources of the institution. It was
but reasonable that they should rely upon the solemn pledge thus given, and incur liabilities upon the faith of it. And that such liabilities were in fact incurred, the petition distinctly avers." The question here raised is not a new question in courts of bankruptcy. It was before the United States Court in and for the District of Deleware, and was decided about the year 1875, in the case of Capelle v. Trinity M. E. Church, 11 B. R., 536. The following is the syllabus of the case: "A claim was proved by a church corporation, founded upon a verbal promise by a bankrupt to M, that he (the bankrupt) would pay $800 if M would subscribe a portion of the indebtedness due from the church to M, the promise being subsequently publicly announced in the church in the presence of the congregation. It appeared by the proof that the expenses had been incurred by the trustees of the church upon the faith of the subscriptions generally, though not that any definite expenditure was made on the faith of this particular subscription. Held, that the promise was founded on a good legal consideration upon two alternative grounds. It was one of the two mutual promises for the benefit of the church, each being the consideration of the other, and the claim provable by the beneficiary; and, secondly, as a promise to the church, partly upon which expenses were incurred, it would sustain an action of assumpsit, and might be proved in bankruptcy. See also Amherst Academy v. Cowles, 6 Pick. 427, particularly as to consideration and burden of proof, notes being given. The case of Farmers' College v. Executors of McMicken, 2 Disney, 495, is another Ohio authority supporting the claim of the University. In this case it is distinctly held: 1. A gratuitous subscription, to pay certain moneys towards a particular stated fund to be raised for the endowment of certain professorships in a college, becomes a fixed legal obligation as soon as the college has performed its undertaking and raised the required amount of reliable subscriptions. 2. Such subscriptions to the college to do an act, if the college will perform a prescribed duty on its part, if accepted, the contract is complete.
SOME RECENT FOREIGN DECISIONS.
SPECIFIC PERFORMANCE-CONDITIONAL CONTRACT -"SUBJECT TO THE TITLE BEING APPROVED BY OUR SOLICITORS."-Hussey v. Horne Payne. English Court of Appeal, 26 W. R. 703. When an offer for the sale of an estate is accepted "subject to the title being approved by our solicitors," a new term is introduced, and there being no unconditional acceptance of the offer there is no contract. Decision of MALINS, V. C., reversed.
EMPLOYER AND EMPLOYED-CONTRACT BETWEEN EMPLOYED AND THIRD PARTY HAVING CONTRACT WITH EMPLOYER-CORRUPT BARGAIN BIAS-ABSENCE OF DAMAGE TO EMPLOYER.-Harrington v. Victoria Graving Dock Co. English High Court, Q. B. Div. 26 W. R. 740. Where a bargain is made between one who is in the employ of another and a third party who has contracted with the employer, which bargain is calculated to bias the wind of the employed and cause him to act to the prejudice of the employer, such bargain is corrupt, even though it does not actually bias the mind of the employed, and though no damage results to the employer.
SURETY UBERRIMA FIDES-PRESSURE-DISCLOSURE-AGREEMENT TO STIFLE PROSECUTION-ILLEGALITY OF CONTRACT — RIGHT TO RELIEF.-Davies v. L. & P. M. Ins. Co.-English High Court, Chy. Div., 26 W. R. 794. 1. A contract between a
surety for a debtor and a creditor is not one in which there is an universal obligation of disclosure on the part of the creditor-is not uberrima fides; but it is one which must be based on the free and voluntary agency of the individual who enters into it, especially where there is no consideration. In such a contract very little will affect its validity. 2. Illegality of a contract, when resulting from pressure, and from an attempt to stifle a prosecution, does not induce the court to refuse relief at the suit of the party who has paid money when subject to the pressure. 3. There is a great difficulty in applying the principle melior est positio defendentis to the case of an action to set aside an illegal contract whereby money has been placed in medio.
LANDLORD AND TENANT-COVENANT-QUIET ENJOYMENT-PREMISES LET FOR A PURPOSE SUBSEQUENTLY MADE ILLEGAL.-Newby v. Sharpe. EngLish Court of Appeal, 26 W. R. 685. The defendant let the basement of a store to the plaintiff, and covenanted to keep the premises in proper repair and condition, so that the same might be available for storing cartridges and for quite enjoyment by the plaintiff. Other parts of the store were let to other persons for the storage of gunpowder. Soon afterwards the Explosives Act, 1875, was passed, making it illegal to store cartridges and gunpowder in the same store, without a license, under pain of forfeiture. On the act coming into operation the defendant removed the cartridges which the plaintiff had deposited in the store, and gave notice that he would inform the authorities if the plaintiff stored any more. Held, that there had been a trespass but no eviction by the defendant, and that there had been no breach of covenant by the defendant, the covenant to keep the demised premises in proper condition for storing cartridges only referring to physical condition, and there being no obligation on the defendant to procure a license to make the storage legal notwithstanding the act.
COMPANY-LIABILITY OF DIRECTORS FOR FRAUD OF AGENT-BROKER'S PROSPECTUS-PRINCIPAI. AND AGENT-PERCEPTION OF BENEFIT FROM FRAUD.— Weir v. Barnett. English Court of Appeal. 26 W. R. 746. At a general meeting of a company formed to work a mine the directors, one of whom was defendant Bell, were authorized to raise money by debentures. The directors accordingly, by the secretary, employed brokers to place the debentures; and the brokers prepared and issued a prospectus bearing the name of Bell, amongst others, containing statements as to the company which were false to the knowledge of the brokers, and which induced the plaintiff to subscribe and pay for debentures. None of the statements were made by Bell personally or by his personal authority, but they were within the anthority of the brokers as agents to make. Bell derived no benefit from the fraud. Held (by COCKBURN, C. J., and BRAMWELL and BRETT, L. JJ.; COTTON. L. J., diss.), that Bell was not liable to the plaintiff. Judgment of Exchequer Division (L. R. 3 Ex. D. 32) aflirmed so far as relates to the defendant Bell, but on different grounds, Remarks by BRAMWELL, L. J., on Barwick v. English Joint Stock Bank, 15 W. R. 877, L. R. 2 Ex.
PRINCIPAL AND AGENT - PAYMENT-ALLOWANCE IN ACCOUNT-STOCK EXCHANGE CUSTOMS.-Pearson v. Scott.-English High Court, Chy. Div. 26 W. R. 796. Trustees instructed S., their solicitor, to have shares standing in their names sold out. S. instructed A., a stock broker, to sell out the shares, and subsequently, as to some of the proceeds, to make him an allowance in account in respect of the same, S. being then indebted to A. S. had no authority from the trustees, going beyond an authority to receive payment
in money. A. denied knowledge that the shares were not the absolute property of S. Held, on the evidence, that A. had notice that S. was only an agent. On an action by the trustees against A. for the amount allowed in account, Held, that there was no payment by A. to S. which could be a defense for A. Bridges v. Garrett, 18 W. R. 815, L. R. 5 C. P. 451, distinguished. Held, also, that the Stock Exchange Customs were not a defense to the action. A custom whereby a London stock broker, who has notice that the person instructing him is an agent, is bound only to recognize the person actually employing and instructing him, and to obey the directions of that person only as to the mode of payment, and as to the application and disposal of the proceeds of sale, is unreasonable in the absence of knowledge in the principal.
DIVORCE-JURISDICTION of Court IN ACTION ON BOND TO SECURE ALIMONY.- 1. No other court, without leave of the court in which a divorce has been granted, can take jurisdietion of an action on the bond given by order of the divorce court to secure payment of alimony; and, upon application for such leave, the divorce court may order or withhold payment of the arrears in whole or in part, and inay grant or refuse leave to enforce such payment by action at law upon the bond; and the action, when brought with its leave, is as subject to its discretionary control as the judgment for alimony itself. 2. A judgment in the circuit court for arrears of alimony, in an action upon such bond, is reversed on the ground that the action was brought without leave of the court by which the divorce was granted. [TAYLOR, J., dissents, holding: 1. That the order of the divorce court requiring a bond implies leave to the plaintiff to sue it upon a breach, and no further leave is required, though the liability upon the bond is limited by any subsequent modification of the judgment for alimony. 2. That, if otherwise, the failure to obtain leave was merely an irregularity, which was waived by defendant's going to trial on the merits without objection on that ground.] Opinion by RYAN, C. J.-Guenther v. Jacobs.
COMMON CARRIER-CARRIAGE OF HORSES-CUSTOM-DEFECT IN CAR.-1. The complaint herein is held to go upon defendant's negligence in causing injury to plaintiff's horses carried on defendant's railroad, and not upon any absolute liability of the defendant carrier as an insurer of the property. 2. A railroad company may, by express contract, limit its liability in the carriage of horses. Betts v. F. & L. T. Co., 21 Wis. 80. 3. Possession by a shipper of a carrier's receipt for the property, containing special terms, is at least prima facie evidence of his assent to them, and in most cases may be conclusive. 4. Defendant's custom was to carry horses at the owner's risk, and at reduced rates for that reason; and the letters "O. R." signifying "Owner's Risk," were upon the receipt given plaintiff for his horses, and retained and put in evidence by him; and he testifies that he "did not see" those letters, but not that he did not understand their meaning Held, that the restricted liability of the company
clearly appears from plaintiff's evidence. 5. The injury was caused by the breaking of a wheel under a freight car in the train, which threw the car containing plaintiff's horses from the track. The track was in good order, the wheels had been used for only a short time, and, upon inspection after the accident, showed no flaw or defect; and there was no evidence, except the mere fact of its breaking, which tended to show negligence of the company. Held, that there was no error in directing a verdict for the defendant. Opinion by ORTON, J.-Morrison v. Phillip Colby Construction Co.
MORTGAGE BY HUSBAND AND WIFE-CERTIFICATE OF ACKNOWLEDGMENT.-This was a bill to set aside a mortgage made by complainant and wife, and upon property of the latter, which contained the usual recitals, and, as appeared by a certificate of a justice of the peace attached thereto, was acknowledged in due form of law by the parties. The main objection urged by the complainants to the deed is that the certificate of acknowledgment is false, that she never, in fact, acknowledged the deed in the presence of or before the justice of the peace. The only evidence contained in the record to impeach the certificate is the testimony of complainant. CRAIG, J.: "The question presented assumes this form-can an acknowledgment of a deed be impeached by the uncorroborated testimoney of the grantor? A like point has been before us in other cases. In 76 Ill. 611, where a like question arose, it was said: "To impeach such a certificate the evidence should do more than produce a mere preponderance against its integrity in the balancing of probabilities.' See also 62 Ill. 524. In this record the testimony is clear that Sanborn, the mortgagee, acted in perfect good faith; he neither conspired with the husband of the complainent or the officer who took the acknowledgment.
Under such circumstances, to hold that the deed could be impeached by the uncorroborated testimony of complainant, would be establishing a precedent of the most dangerous character, which we are not prepared to sanction. The safe rule is, and the one, too, in harmony with the authorities, to require very clear and satisfactory proof to impeach an acknowledgment of a deed or mortgage." Affirmed.-McPherson v. Sanborn.
CERTIORARI-REVIEWING PROCEEDINGS Of TrusTEES OF SCHOOLS.-This was a petition for a common law writ of certiorari to bring before the circuit court the record of the proceedings of the trustees of schools in uniting certain school districts. The defendants appeared before the circuit court, and, upon motion, the court quashed the writ. This decision is assigned for error. It is claimed by appellees that the proper remedy was not by the common law writ of certiorari, but by information in the nature of a quo warranto. CRAIG, J., who delivered the opinion of the court, says: "The illegal action of the trustees here appears upon the face of the proceedings of the board, which the court could determine by an inspection of the record
containing the action of the trustees. The legislature has made no provision for an appeal from the decisions of trustees of schools for the purpose of reviewing their action, where they have created new districts or consolidated two or more districts into a new one. Hence arises the necessity for the exercise of the common law writ of certiorari. This court has held in a number of cases that the common law writ of certiorari may issue to all inferior tribunals and jurisdictions in cases where they exceed their jurisdiction, and in cases where they proceed illegally. See 14 Ill. 381; 27 Ill. 140; 38 Ill. 103. The rule adopted in the cases cited is in harmony with the law as settled in England and in this country. See Dillon on Munic. Corp, Sec. 739. We have, however, been referred by the defendants in error, to Trumbo v. People, 75 Ill. 561, as an authority sustaining their position. Some expressions may have been used in deciding that case from which it might be inferred that the proper mode to test the legality of the formation of a school district was by information in the nature of a quo warranto; but the question whether the legality of the action of the trustees of schools could be tested by the common law writ of certiorari was not before the court and was not decided." Reversed and remanded.
-Miller v. Trustees of Schools.
TAXATION-BANK STOCK-TANGIBLE PROPERTY— DOUBLE TAXATION.-This was an injunction asked for by a banking corporation and its stockholders to restrain the collection of certain taxes. In the lower court the bill was dismissed, and complainants appeal, assigning various errors: 1st. That the tax levied upon the tangible property, not upon the shares of stock of the bank, is invalid; that the same is double taxation, and in contravention of the constitution of the state. 2d. That the shares of stock are not, under the laws of this state, liable to be taxed in the district or township where the bank is situated; and, 3d, that the bank and shares of stock are only liable to be taxed in accordance with the provisions of the general law and its amendments under which the bank was incorporated. BREESE, J.: "As to the first point, this court has repeatedly held that the tangible property of a corporation and the shares of stock are separate and distinct kinds of property, * both of which,
under the revenue law, being subject to taxation. See 76 Ill. 561; 18 Wall. 206; 2 Otto, 575. These cases hold that such taxation is neither double nor unconstitutional. As to the second point, that is settled by this court in the case of First Nat. Bank v. Smith, 65 Ill. 44, where, in discussing the power of the legislature to fix the situs of shares of stock in a bank for purposes of taxation, it was said, while at common law, and, as a general rule, personal property has no situs of its own, but follows the person of the owner, the rule is one of convenience only, and there is no constitutional prohibition on the legislature to change the rule, and, therefore, the act of 1867, providing for taxing the shares of national banks, at the place where such banks are located, without regard to the residence of the owners of such shares, was constitutional and valid. As to the third point, the general law and amendments under which appellants claim this property should be taxed, have been repealed." Affirmed. -Danville Banking Co. v. Parks.
their successors were elected and qualified. In October, 1873, A and B executed a note, payable to D, for the $200, signed by them as "School Trustees." This note was endorsed by D to the bank as security. After the maturity D was compelled to pay it, and this is an action brought by D against the trustees of schools of Cahokia, to recover the money paid on the note. In the lower court judgment was given for plaintiff, and the trustees appeal. DICKEY, J., who delivered the opinion, says: "It is not perceived upon what ground this judgment can be sustained. The money was not borrowed from the bank on the credit of the school district, but on the individual credit of these two trustees. The note does not purport to be one given in behalf of the district, but is in such form that, by the decision of this court (even if the maker had authority to make such note in behalf of the district) no action could have been maintained upon it against the corporation known as the "Trustees of Schools." A and B, by their note, charged themselves personally. The words "School Trustees" are simply descriptio personarum, and a false description at that, for they had ceased to be such trustees before the note was made. D, when he indorsed the paper, charged himself as security for the makers of the note. He must look to his principals, A and B, for indemnity. If they used the money for the district, it is a matter between them and their successors." Reversed.-Trustees of Schools v. Raukenburg.
DIVORCE-DESERTION.-This was a suit for divorce on the ground of desertion. The defense set up and relied on was that plaintiff left her by removing to his new home; that she was willing to live with him at their old home, but was unwilling to go to the new one, etc.; that he was addicted to the use of liquor, and she feared to live alone with him and away from her brother and sister, who had lived with them at their old home; that she had urged him to remain and live with her and her brother and sister, but he refused; that during the two years he at one time returned and remained two days and one night with her at the old place. The jury found a verdict in favor of the complainant, and the court rendered a decree granting a divorce, from which defendant appeals. WALKER, J., who delivered the opinion, says: "In the case of Davis v. Davis, 30 Ill. 180, the general and well-established rule of law was announced that the domicil of the husband is that of the wife. This, then, made appellee's new home appellant's home, and she deserted it and him for the period of more than two years without any just cause. Under the marriage relation it was her duty to go with him, but this she refused to do without justification. And this entitled appellee, under the statute, to the decree of divorce, unless he has done some act to bar his right. Then does the fact that he, within the space of two years, went to her brother's and remained with her during one night and a portion of two days, change the attitude of the case? After discussing this question, the court say: "It can not be inferred from that single act, nor is there any evidence to show that she agreed or intended to permanently resume their marriage relations, or that it was understood that her absence might continue." Affirmed.-Kennedy v. Kennedy.
tinuance was made on the ground of an absent witness. and the only proof of diligence is the statement of the party that the witness promised to attend, and there is no showing of any attempt to use the legal means to obtain his testimony: Held, that the motion was properly overruled. 2. Where the petition in an action on a note and mortgage showed that the mortgage contained a stipulation that, on the failure to pay any interest when due, the principal should immediately become due and payable, and alleged a failure to pay interest, by reason whereof "the whole amount of money became due and payable and the said deed had become absolute," and the answer denied under oath the execution of the note and mortgage, and this was the issue really tried: Held, that a judgment for the plaintiff will not be reversed, although the petition failed to contain the specific allegation that no portion of the money had been paid, or that the same was at the time of filing still due and owing. 3. The acknowledgment of a deed is prima facie evidence of its execution, and a deed properly acknowledged may be given in evidence without further proof, although its execution is denied under oath in the answer. 4. Communications from a client to his attorney are privileged and inadmissible in evidence, exeept so far as the client voluntarily offers himself as a witness concerning them. Opinion by BREWER, J. Affirmed. All the justices concurring.-Wilkins v. Moore.
RAILROAD SUBSCRIPTION BY COUNTY BOARDVOID ACTS OF COUNTY COMMISSIONERS-ILLEGAL BONDS.-Where the record shows that in September, 1871, a vote was had, by which the county board was authorized to subscribe to the capital stock of a certain railway company, and to issue the bonds of the county in payment therefor, and in September, 1873, two of the members of such board met in a supposed special session, but without any previous request or call therefor, and without any notice thereof to the third member, although he was present in the county and could easily have been served with notice, and this was not a regular session or an adjourned session of the board, and these two members, at such session, passed resolutions directing a subscription to the capital stock of said railway company, and also directing the issuance of certain county bonds, to be deposited with the state treasurer, to be held by him in escrow until certain conditions should be fulfilled by the railroad company, and then to be delivered to such company, and such subscriptions were so made and the bonds were so issued and deposited: Held, upon the foregoing facts, that said subscription and said bonds are not legal and binding obligations upon the county, and that the county may maintain an action to set them aside and cancel them. Opinion by BREWER, J. Reversed. All the justices concurring.-Commrs. of Anderson Co. v. Paola & Fall River Railway Co.
NEGLIGENCE-STOCK LAW OF 1874 - ATTORNEYFEES.-The track of the railroad company being unfenced two mares belonging to E got on to it and, walking along, attempted to cross a bridge. The bridge being built of ties, with open spaces between, their legs slipped into these open spaces and the animals became fastened in the bridge, receiving certain injuries therefrom. There was negligence, as the jury found, on the part of the company in the construction of the bridge, causing these injuries. Afterwards, a train approaching finds the animals still fastened in the bridge. The train men proceed to remove them therefrom, and in so doing the animals sustained still further injuries. Held, that the injuries done in removing the animals from the track were done in operating the road, within the meaning of the law of 1874, concerning injuries to stock. Held, further, that the injuries resulting from the animals falling into the bridge was not within the scope of that act, although
the company might be liable therefor on account of its negligence. And, further, that where there was nothing in the record by which this court could apportion the damage resulting from these two different injuries, no apportionment could be made of attorneys fees allowed on the total recovery, and they must be stricken out altogether. Opinion by BREWER, J. Modified. Valentine, J., concurring. Horton, C. J., not sitting, having been of counsel in the court below.-A., T. &S, F. R. R. Co. v. Edwards.
BILLS OE LADING-ESTOPPEL.-Where the agent of a railroad corporation, which is engaged as a common carrier, has authority to receive grain for shipment over its road, and issue in the name of the corporation a single bill of lading for each consignment received, on September 4th, 1876, received 23,000 pounds of wheat for transportation to St. Louis, Mo., and at the instance of the shipper, issues in the name of the corporation two original bills of lading, of the same terms, tenor and effect, for the wheat, and each of which shows the receipt of 23,000 pounds of wheat and its consignment to the order of the shipper at St. Louis, Mo., and the shipper on September 5th, 1876, negotiates one of the bills to W, who, as holder of snch bill of lading receives all the wheat forwarded to St. Louis, and on September 6th, 1876, negotiates and transfers by indorsement in writing the other bill of lading to the Wichita Bank, and the bank, knowing the custom of the railroad corporation to issue only one bill of lading for each shipment, and relying wholly on the bill for its security, accepted the same, advanced money thereon of less amount than the value of the wheat called for in good faith and in the regular course of business and having knowledge of the issuance of the two original bills of fading: Held, that the railway corporation is estopped by its statement and promise in the bill of lading to deny that it has received the grain mentioned therein, and is liable to the indorsee and assignee for its advances made in good faith on the bill of lading. Opinion by HORTON, C. J. Reversed. All the justices concurring.-Wtchita Bank v. A., T. & S. F. R. R. Co.
NEGOTIABLE PAPER-RIGHTS OF TRANSFEREE. Where a promissory note was endorsed by the payee, "I hereby transfer my right, title and interest of the within note to," etc. Held, That the transferee took subject to all defenses that would have been available against the payee. Opinion by MARSTON, J.-Aniba v. leomans.
MORTGAGOR'S COVENANT WITH GRANTEE TO PAY MORTGAGE-MEASURE OF DAMAGES.-A mortgagor, in conveying a small part of the mortgaged, premises, covenanted to pay the mortgage when due, but failed to do so, and the grantee, though never having paid or been called to pay anything because of the mortgage, brought suit for the breach, neither averring nor offering to prove special damages. Held, that he was not entitled to more than nominal damages. Opinion by GRAVES, J.-Wilcox v. Mussche.
SLANDER-EVIDENCE-PECUNIARY CIRCUMSTANCES OF DEFENDANT.-The defendant in a slander case may be asked concerning his pecuniary circum
stances at the time of the slander, under cautions from the court against allowing the testimony weight beyond what it deserves, and especially against allowing it to swell the damages on its own account. The mischief of slander depends much upon its author's influence and standing, and pecuniary standing is one of the important elements considered in determining the position of others. Opinion by CAMPBELL, C. J.Brown v. Barnes.
TROVER BY CO-TENANT OR MORTGAGEE OF CHATTELS.-Held: 1. That a tenant in common of chattels may maintain an action of trover against his co-tenant after demand made that he be admitted to his rights as a co-tenant, and a refusal to recognize such rights, coupled with a distinct claim of entire ownership. Bray v. Bray, 30 Mich. 479; Webb. v. Mann, 3 Mich. 139. 2. That a mortgagee of chattels entitled to take possession thereof under his mortgage, may maintain trover for their conversion. The mortgagee has a sufficient property to enable him to take possession as against the mortgagor and those claiming under him, as well as against strangers to the title. Harvey v. McAdams, 32 Mich. 472. Opinion by MARSTON, J.— Grove v. Wise.
CRIMINAL PRACTICE-SURPLUSAGE IN VERDICT.The crime of manslaughter subjects the party guilty thereof to imprisonment, but does not subject him to any fine. But when a jury returns a verdict in such a case, of imprisonment, and also assesses a fine, such fine does not vitiate the verdict, but may be regarded as surplusage, and the judgment may be rendered on the verdict as if no fine had been assessed. Such a verdict is not an entirety, and the part in reference to the fine can be omitted in the judgment, without modifying or detracting from that in reference to the imprisonment. Opinion by WORDEN, J.- Veatch v. State.
REVIEW OF JUDGMENT RIGHTS OF MARRIED WOMEN. Complaint for a review of judgment. The judgment sought to be reviewed, was founded on a promissory note and mortgage, executed by Edith A. Emmett and Robert Emmett, and was rendered in the usual form of foreclosure, for the sale of the premises, etc., and that execution issue, as on other judgments for the amount remaining unpaid. As to Edith, the judgment was rendered on default. The ground for review was that Edith, at the time she executed the note and mortgage, was a married woman. BIDDLE, J. (abstract of opinion): A married woman may interpose the defense of coverture to an action against her on her contracts, but if she fails to make defense and lets judgment go against her by default, she is bound by the judgment. But in this case the fact that Edith was a married woman when she executed the note and mortgage is shown upon the face of the complaint. The mortgage runs "Edith A. Emmett and Robert Emmett, her husband, mortgage and warrant," etc. The note and mortgage were necessary exhibits filed with, and thus became a part of the complaint. It appearing, therefore, on the face of the complaint that Edith was a married woman at the