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and the indictment must undertake, or pro- ninety-nine years renewable forever, it fails fess to do so, by the use of appropriate lan- to show it personalty, for it is difficult to imguage. The excepted cases occur whenever agine anything more uncertain than the length a publication of this character is so obscene of time that such a lease may endure. Such as to render it improper that it should appear a lease has both of the essential qualities on the record ; and, then, the statement of which distinguish real from personal property; the contents may be omitted altogether, and immobility of the subject matter, and a legal a description thereof substituted; but in this indeterminate duration of estate. 2 Black. case a reason for the omission must appear in 385. Speaking of a lease for two thousand the indictment by proper averments.” See, years, Lord Mansfield says, 1 Cowper, 599: also, State v. Harmon, 23 Tex. 232 ; State v. “No man holds such a lease as a lease," and Brown, 1 Williams (Vt.), 619.

the Supreme Court of Massachusetts, speaking of one for nine hundred and ninety-nine

years, in Montague v. Smith, 13 Mass. 396, LEASES FOR YEARS RENEWABLE FOR- say, that “it is to all imaginable purposes a EVER.

fee clogged with a ground rent." These were Though the distinction between real and only leases for a long term, but a term cerpersonal property is, ordinarily, a very obvi- tain; and when we come to take such a lease ous one, yet there are circumstances under and add to it the elements of uncertainty of which it becomes a question of the greatest duration of the term by making it renewable nicety whether a given article falls within forever, why should it not be so viewed as to the one class or the other. This is notably make it technically, as well as practically, a so in case of questions arising under the law fee granted upon fee farm rents ? Such fees, of fixtures. So, also, although it is usually though not common, have been recognized in perfectly obvious that a lease of realty for the law of this country. Adams v. Bucklin, 7 years is personal property, yet when we come Pick. 121; Alexander v. Warrance, 17 Mo. to consider the case of so-called perpetual 228; Farley v. Craig, 6 Halst, 262; Wartenby leases, leases for ninety-nine years renewable v. Moran, 3 Call, 491; Scott v. Lunt, 7 forever, it becomes difficult to say why they Peters, 596 ; Van Rensselaer v. Hays, 19 N. are not real property.

Y. 68; Wallace v. Harmstad, 44 Penn. St. The test by which to determine whether an 492 ; and leases granted to endure “as long

tate in land is realty or personalty is the as wood grows, and water runs,” have been certainty or uncertainty of its duration. An declared to pass the fee subject to a rent estate for a term uncertain, no matter how charge. Arms v. Burt, 1 Vt. 303; Stevens v. short, is realty; and although originally leases Dewing, 2 Vt. 411. could not be made for a term to endure be- Indeed, it would seem that unless a lease yond a generation, forty years, Coke Litt. 45b, for ninety-nine years renewable forever is 46a, Theobalds v. Duffoy, 9 Mod. 101, yet it held to be a fee subject to a ground rent, it is now settled that a lease of land for a term

can not be sustained at all, and must be void certain, of no matter how many years duration, within the doctrine against perpetuities. The is good, and is but a chattel. This distinction rules against perpetuities apply to leases, 1 between real and personal estate in land, Washburn on Real Prop. 439, and such a lease based on the certainty or uncertainty of the has been held within them, and void, in Morduration of the tenure, is essentially a feudal rison v. Rossignol, 5 Cal. 64. In granting one, made arbitrarily, on no principle save such a leasehold, the lessor either grants an that of caste, at a time when only the warrior entire estate which may endure forever, or he was thought worthy to own land, and the grants an estate for ninety-nine years with the husbandman, who merely tilled instead of covenant to renew it, to grant another just like killed, could hold nothing higher than an es- it, at the expiration of every ninety-nine years, tate for years--a chattel. But even if this to the end of time. If every renewal is not test of certainty or uncertainty of the dura- the creation of a new estate, then the original tion of the term, founded as it is on feudal estate granted is one in perpetuity, subject to distinctions, is to be retained in this country, a condition subsequent that it shall determine yet when it is applied to the case of a lease for if the holder shall fail to do either of two


things, namely: elect to renew at the end of exist for making judgments liens on land withany ninety-nine years, or pay the rent; a base out a levy, exist to make them liens on such fee, perhaps, but still an estate in land which leaseholds; and the same reasons of convenimay endure forever, and, therefore, a fee. ence and safety, which make recording desirIf each renewal is the creation of a new es- able when lands are sold, require it in case of tate, then the covenant to renew forever is the assignment of such a lease. void, as it is for the creation of a series of These are probably some of the reasons estates, one of which must, in time, certainly which led to the passage of the statutes found take effect beyond the period of "a life or in many of the states some making leases which lives in being and twenty-one years after.” have more than a certain number of years to

That such a lease is practically a fee is pa- run, realty, as in Massachusetts, others detent, and the objections against holding it claring leases renewable forever to be real estate technically something else numerous. for certain purposes, as in Ohio. In the latThus, if the holder of one of these leases, to ter state permanent leaseholds are, by statute, all imaginable purposes a fee, were to die out made real estate for purposes of descent and of the state where the land lies, it would, distribution, of sales on execution, and judgas to distribution, be governed, not by ment liens. But in passing upon their nature, the lex loci rei sitoe, but by the lex fori. In the courts have gone beyond the terms of the leases of this kind, the lessee's estate usually statute, and have declared them real estate becomes the really beneficial and valuable for all purposes.

In Murdock v. Reed, 1 one, as compared with the estate of the

Disney 274, a husband was held to be entitled lessor; but if the lessee should, by any to curtesy in the perpetual leasehold lands mischance, have the life estate in the re- of his wife, though the estate by curtesy version cast upon him, as by curtesy, the comes neither by descent nor on distribution. leasehold, the estate most worth having, would In Loring v. Melendy, 11 Ohio 355, the court be merged in it. 1 Washburn on Real Prop., say: “ To withdraw permanent leasehold 465. Lord Bacon remarks, Law Tracts, 331, estates from their anomalous position between that “it is the common byword of the law, chattels and realty, and by calling them what that the law favoreth three things; life, liberty in truth they are, lands, we relieve them from and dower;" but if such a lease is a chattel, all doubt as to the principles and laws which then unless widows are by statute made dow- shall control them, and assign to them a certain able of such estates, they can be deprived of and fixed place in the law. A permanent their dower altogether. All that is necessary leasehold estate is not a chattel, but is, in is, that when a man buys land, instead of tak- truth, land carrying the fee. Such is the naing a fee, he should, while paying the price of ture of the estate, and so it has been considone, take a lease for ninety-nine years, renew- ered and treated in the legislation of our able forever at the annual rent, say of a pepper- state. We, therefore, declare that permanent corn; then holding a chattel he would have all leasehold estates are lands, subject to all the the benefit of a fee, relieved of the burden of rules and laws which attach to land for all dower. By the same means the laws of de

purposes.” scent could be evaded. Again, any owner of In Worthington v. Hewes and McCann, 19 land could grant it to a beggar, taking back a Ohio St.66, where it was held that, after assignlease renewable forever at a nominal rent. ment of his interest, a lessee, under a lease Now in cases of leases for years the lessor is renewable forever, was not liable on his corliable for the taxes. Taylor on Land. and enant to pay rent, the court say: · The naTen., § 341. But if an estate is thus held, ture of the estate forbids any such constructhe lessor's personal responsibility for taxes tion” (as would make him liable). “For would amount to nothing, and if the land were all substantial purposes it is a leasehold estate offered for sale for taxes, as it never would in name and in form only. The lessor, in effect, yield anything, no one would buy it, and it parts at once with his entire estate, for a stipwould eventually be forfeited to the state. ulated consideration in money, payable in That is to say, unless the leasehold was made specified installments, and secured by a lien realty for purposes of taxation, the land would on the land ; and the lessee takes the entire simply be exempt. The same reasons which estate, an estate of inheritance, subject only


to the payment of the money.

In form damages in two ways only-first, by showing the merely is it a chattel; it is in fact an estate in

general bad character of the plaintiff; and, sec

ond, by showing any circumstances which tend to fee."

disprove malice, but do not tend to prove the Since, therefore, by holding such leaseholds

truth of the charge." Before that time it had to be personalty, the laws relating to dower, been a question whether, under the general issue, curtesy and taxation of land, can be evaded;

the defendant could be permitted to show specific

facts, which tend to cast suspicion of guilt upon since the policy of making judgments liens on

the plaintift, upon which (it is there said), there land, and requiring conveyances of land to be

had been a conflict of authority. The authorities recorded, applies with equal force to such in other states and in England were, in that case, leases, and, above all, since they possess the examined, and the rule with its qualifications was

laid down, as stated above. In an earlier case, two indispensible qualities of realty, immo

Young v. Bennett, 4 Scam. 46, it had been decided, bility of the subject matter, and an indetermin

where defendant had pleaded the general issue ate duration of estate, it is submitted that to the whole declaration, and justified as to part such leaseholds are, in fact, as well as in of the counts, that it is not competent to prove in form, technically, as well as practically, real

mitigation of damages “that a particular rumor estate, estates in fee.

G. H. W.

prevailed in the neighborhood that plaintiff was guilty of the charge." In Sheahan v. Collins, 20 n. 328, the rule laid down in Cabot's case,

supra, was again laid down and applied. That LIBEL-GENERAL ISSUE-EVIDENCE.

action was for libel, and it was then held incom

petent to show that the libelous article had apSTOREY V. EARLY.

peared in another newspaper in the city shortly

before its publication by the defendants. The Supreme Court of Ilinois.

qualification to the proposition that defendant, (Filed February 7th, 1878.]

in such case, “ may prove any circumstances

which tend to rebut malice," is that if such cirHON. JOHN SCHOLFIELD, Chief Justice.

cumstances tend to prove the truth of the charges SIDNEY BREESE, T. LYLE DICKEY,

expressed in the slander or Jibel, the proof must BENJAMIN R. SHELDON,

be rejected, This qualification excludes not only " PINCKNEY H. WALKER,

Associate Justices.

such circumstances as the law recognizes as com" JOHN M. SCOTT,

petent evidence tending to prove the truth of the ALFRED M. CRAIG,

charge, but all circumstances which, in the popu1. LIBEL-GENERAL ISSUE-EVIDENCE -In an ac. lar mind, tend to cast suspicion of guilt upon the tion for libel, where the defendant pleads the general plaintiff. issue and does not justify, evidence tending to prove the

There can be no question that the proof offered truth of the charge or of circumstances which, in the popular mind, tend to cast suspicion upon the plaintiff

in the case at bar and hereinafter mentioned, tends is inadmissible. But where defendant offered evi.

to rebut the inference of actual malice in the dence showing that the plaintiff was an estimable

defendant. The turpitude of the publication young woman, and that two letters purporting to have of matter believed to be true is plainly of a been written by two respectable citizens of the town character much less malignant than that of where she lived were received through the post-office

the publication of the same matter when known by defendant, which letters were forgeries, and thereby he was imposed upon and induced to print the charges to be false, and less than the publication of

the same matter without any reason to suppose it therein contained; that no one had ever heard of the charges until then, but on the contrary they excited uni- to be true. The proof offered plainly did tend, in versal indignation, which the trial court rejected: Held, some degree, to rebut malice. It tended to reduce error, as the proof offered did not fall within the above the offense of defendant from that of vindictive, rule. CRAIG, SCOTT and SHELDON, J.J., dissenting. virulent malice, or that of utter recklessness, to

2. LIBEL-DAMAGES --WEALTH AND STANDING OF that of a want of proper care in ascertaining the DEFENDANT.-Aninstruction that in fixing the amount truth before publication. It was, therefore, comof damages to be awarded as compensation to plaintiff

petent, unless it be excluded by the qualification for the injury she has sustained, “the wealth and stand

to the rule. ing of defendant might properly be considered,” is improper. Per BREESE, J.

The question in this case is, did the proof so of

fered tend to cast suspicion of guilt upon the 3. “ THERE IS A CLEAR DISTINCTION between a publication of a slanderous matter in a newspaper as

plaintiff? If so, it was properly rejected by the matter of news, and the publication of slanderous

circuit court; if not, it ought to have been admatter upon the personal truthfulness and responsi.

mitted. The substance of what defendant offered bility of the defendant.” Per BREESE, J.

to show to the jury was, that plaintiff was a worthy

and estimable young woman, living in Rockford, BREESE. J., delivered the opinion of the court:

Illinois, and that two letters purporting to be writIn the case of Regnier v. Cabot, 2 Gilm, 38, this ten by two respectable citizens of Rockford were court, apparently with great care, laid down, as a forged by some unknown person and sent through rule of law, in actions of this kind, “that where the post-office to defendant in Chicago, and that a defendant does not justify he may mitigate defendant was thereby imposed upon and induced

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to publish the libelous article at the time, suppo- that question. The wealth of the publisher might sing the charge to be true, and that no one in be great and his social standing high, and yet the Rockford had ever heard a suspicion of the purity paper might be of such character as to exert but of plaintiff until the publication of defendant, and little influence upon the public mind. On the that the publication excited universal indignation. other hand the publisher might be insolvent, and Does this statement tend in the slightest degree his position in society very low, and yet the paper to excite in the minds of the jury, the bystanders might be very attractive and have a very large or the public a suspicion of the probability of guilt circulation and enjoy the confidence of the public on the part of the plaintiff—we think not. On the to such a degree for justice and truth, that statecontrary, it furnishes a vindication of her purity ments in its columns might carry great weight. more complete than could any verdict of a jury- | There is a clear distinction between a publicasaying merely, “ she was innocent and the publi- tion of slanderous matter in a newspaper as cation malicious." The proof here offered differs a matter of news, and the publication of slanfrom the case of an attempt to prove that rumors derous matter upon the personal truthfulness in support of the charge were in circulation before and responsibility of the defendant. Again, the the publication, and from the case where it was injury actually suffered in no sense is to be measproposed merely to prove that a like charge had ured by the wealth of the defendant. It must be been published in another journal. Proof that prior observed that this instruction does not relate to rumors existed, or that a prior publication of a vindictive or punitive damages, but solely to comcharge had been made in another journal, would pensatory damages. For the errors stated the tend to excite in the minds of the jury a suspicion | judgment must be reversed and the cause reagainst the purity of plaintiff, and would tend to manded. cast additional reproach upon the plaintiff. That Reversed and remanded. CRAIG,J., dissenting. would be simply a repetition of the slander with no WALKER, J. accompanying antidote to neutralize the virus. In I concur in this opinion, so far as it holds that fact a statement by a defendant that rumors were the forged letters should have been admitted in prevalent against the chastity of a woman, or that evidence in mitigation of damag

but not as to an article charging impurity upon her had been what is said in regard to the instruction. published in a public journal, would constitute of Scott, J., dissenting. itself ground for another action. Not

The libel, published in defendant's newspaper with the statement offered to be proved in this was a great wrong to the character of plaintiff. case. The publication of the statement offered in Its publication can not be justified or palliated for proof could not be made the subject of action by any reason or for any cause. It was not legitimate the plaintiff, for ii in no way suggests to the mind news fit for publication, and, if defendant wished a su-picion of impurity in her. In many cases the to permit the scandalous matter to appear in the application of this rule of exclusion may be diffi- columns of his paper, he ought, in justice to the cult. It may not be easy at all times to distin- parties accused, to have first ascertained whether guish between that which is free from the sugges- it was true or false, which he could have done in tion of guilt in plaintiff and that which is not. a few hours by the use of the telegraph. Not to The propriety of this exclusion of some matters, do so shows a reckless disregard of the rights and though they may seem to rebut malice, seems to feelings of innocent parties that might be affected rest upon the idea, that while the law will allow by the publication of such defamatory matter. a guilty defendant to mitigate, if he can, the de- That part of the opinion by Mr. Justice Breese, gree of his guilt, this is a privilege which must not which condemns an instruction given for plaintiff, be exercised, if to do so involves the necessity of is not concurred in by any four members of the casting reproach upon an innocent plaintiff who court, and hence the views expressed have no sanchas done no wrong. The proof on this point of- tion from the court. The only cause for refered in this case, taken as a whole, tended in no versing the judgment, which has the sanction of a degree to cast additional reproach upon the plain- majority of the court, is that the court below ertiff, and ought to have been admitted.

red in excluding from the jury certain letters reThe sixth instruction for plaintiff was improper- ceived, which it is said, contain the substance of ly given—it in substance says to the jury that in the libelous publication. The fact that such fixing the amount of damages to be awarded as letters were received was proven, and that the arcompensation to the plaintiff for the injury she has ticle published was based on them was also proven, sustained, “the wealth and standing of the de- and that was all defendant was entitled to prove fendant” might properly be considered. It is not in that connection. No other legitimate use could perceived how the injury actually done to the be made of the letters, and, indeed, the rulings of plaintiff by the publication of this libel could be the court in that respect were quite favorable to affected either by the wealth or standing of Wil. defendant. It must be conceded that, under the bur F. Storey. This is not a slander uttered per- former decisions of this court, if the signasonally by the defendant, nor is the libelous mat- tures to the letters were genuine, or there had ter contained in any communication having the been no signature at all to them, such letters sanction of his name. The extent of the circula- would not have been admissible in evidence. If tion of the newspaper of defendant, and the char- they would tend to prove anything, it would be acter and standing of that newspaper for fairness, the truth of the libel, and that is not allowable justice and truth might well be considered upon under the plea of not guilty. How the fact the

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signatures to the letters may be forgeries, can “The person accepting this free ticket in considchange the rule of law on this subject, is to me eration thereof assumes all risk of all accidents, and inexplicible. The introduction and reading of expressly agrees that the company shall not be liasuch letters, had the court permitted it, to the ble, under any circumstances, whether of neglijury, in the presence of the court, would have gence by their agents or otherwise, for any injury been simply a repetition of the libel. Conceding to the person, or for any loss or injury to the propthe signatures to the letters were forgeries, the erty of the passenger using the ticket. If precontents were nevertheless libelous and defama- sented by any other person than the individual tory in the highest degree. Believing there is no named therein, the conductor will take up this error in the record, the judgment ought to be af- ticket and collect fare." firmed.

The plaintiff testified that he put the pass into SHELDON, J., concurring with SCOTT, J.

his pocket without looking at it, and the jury found specially that he did not read the indorsement pre

vious to the accident, and did not know what was RAILWAY NEGLIGENCE PASSENGER

indorsed upon it. He had been a railroad conTRAVELING ON FREE PASS.

ductor, however, and had seen many free passes,

some with a statement on the back, others withGRAND TRUNK R. R. V. STEVENS.


During the passage from Portland to Montreal, Supreme Court of the United States October Term,

the car in which the plaintiff was riding ran off the 1877.

track and was precipitated down an embankment, PLAINTIFF below was negotiating, at Portland, Me.,

and the plaintiff was much injured. The direct with defendant below, a railroad company, for the in- cause of the accident, according to the proof, was troduction on its road of a patent car-coupling, and that at the place where it occurred, and for some was requested by defendant to go to Montreal and see

considerable distance in each direction, the bolts one of its officers there, defendant agreeing to pay his

had been broken off the fish-plates which hold the expenses. He was given a pass directing conductors to pass him from Portland to Montreal. The pass con

ends of the rails together, so that many of these tained this condition: “The person accepting this free

plates had fallen off on each side, leaving the rails ticket in consideration thereof assumes all risk of all

without lateral support. The consequence was accidents, and expressly agrees that the company shall that the track spread, and the cars ran off as before not be liable under any circumstances, whether of stated. There was also evidence that at this place negligence by their agents or otherwise, for any injury the track was made of old rails patched up. to the person or for any loss or injury to the property

The above facts appeared on the plaintiff's case, of the passenger using the ticket. If presented by any other person than the individual named therein, the

and the defendant offered no evidence, but reconductor will take up this ticket and collect fare." quested the court to instruct the jury as follows: While traveling from Portland to Montreal, on this 1. That if the plaintiff, at the time of sustain . pass, on one of defendant's trains, plaintiff was in- the injury, was traveling under and by virtue of me jured by defendant's negligence. Held, 1. That plaintiff pass produced in evidence in the case, he was travwas carried for hire, in pursuance of an agreement,

eling upon the conditions annexed to it. and not as a gratuitous passenger; 2. That it was not

2. That if the plaintiff, at the time of sustaining competent for defendant to stipulate against liability for its own negligence in such a case, and it was liable

the injury, was traveling under and by virtue of the for the injury.

pass produced iu evidence in the case, the defend

ants are not liable. In error to the Circuit Court of the United

3. That if the plaintiff, at the time of sustaining States for the District of Maine. The facts ap

the injury, was traveling as a free passenger, the pear in the opinion.

defendants are not liable. Mr. Justice BRADLEY delivered the opinion of 4. That if the plaintiff, at the time of sustaining cou

the injury, was traveling as a gratuitous passenger, This was an action on the case for negligence, without any consideration to the defendants for his brought to recover damages for injuries received transportation, the defendants are not liable. by the plaintiff (now defendant in error) whilst a The court refused these instructions as inapplipassenger in the defendant's cars. The plaintiff, cable to the evidence produced, and instructed the being owner of a patented car-coupling, was ne- jury as follows, viz: gotiating with the defendant at Portland, Maine, That if the jury find that in May, 1873, the plainfor its adoption and use by the latter; and was tiff was interested in a car-coupling, which had requested by the defendant to go to Montreal to been used on the cars of the defendant since lesee the superintendent of its car department in cember previous, and that the officers of the comrelation to the matter, the defendant offering to pany were desirous that the plaintiff should meet pay his expenses. The plaintiff consented to do them at Montreal, to arrange about the use of such this, and in pursuance of the arrangement, he was couplings on their cars by defendant, and they furnished with a pass to carry him in the defend- agreed with him to pay his expenses if he would ant's cars.

This pass was in the usual form of come to Montreal, and he agreed so to do, and free passes, thus: “ Pass Mr. Stevens from Port- took passage on defendant's cars, and was by the land to Montreal," and signed by the proper offi- reckless misconduct and negligence of the defend

On its back was the following printed in- ant, and without negligence on his part, injured dorsement:

whilst thus a passenger in defendant's car, the de


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