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examining it, is not such a carrying as is punishable anything, about trying to show off before the bridge under the act of 1870, ch. 13, § 1. Thomps. & S. Rev. hands?" Held, that an objection to the question as Code, $ 4759b. "To constitute the carrying criminal,

leading was erroneously sustained. 3. Where the the intent with which it is carried must be that of go.

plaintiff, a section band, was injured, after his hours ing armed, or being armed, or wearing it for the pur

of work forihe day, and while off his section performpose of being armed.” Acc. Page v. State, 3 Heisk. 198.

ing a service for the foreman personally: Held, that the Opinion by DEADERICK, C. J.-Cameron v. Slate. railroad company would not be liable, unless the

ARREST- RESISTANCE - TRESPASS — WITNESS - plaintiff had reason to believe from its conduct that PARTICEPS CRIMINIS - DYING DECLARATIONS. -I. the foreman had authority to engage him in such em. A mittimus issued by the clerk of a court improperly | ployment. Opinion by DAY, J.-Hurst v. C., R. I. & and in violation of the law, and directing the sheriff to

P. R. R. Co. arrest and imprison the party named, will not justily the officer in attempting to make such arrest; and the resistance of the party by killing the officer does not

ABSTRACT OF DECISIONS OF SUPREME amount to murder. The officer must at his peril see JUDICIAL COURT OF MASSACHUSETTS. that he has valid process in his hands to authorize an arrest. 2. A party jointly indicted for tbe same offense,

March Term, 1878. but who has obtained a severance and is not put on joint trial, is a competent witness for the defendant fox HORACE GRAY, Chief Justice. 3. The dying declarations of a witness to a homicide

JAMES D. COLT, are not admissible in evidence. Only such are admis

SETH AMES, sible as are made by him for whose homicide the pris

MARCUS MORTON, oner is on trial. Acc. Hudson v. State, 3 Cold. 359.

WILLIAM C. Endico'rt. | Associate Justices.

Oris P. LORD, Opinion by FREEMAN, J.-Poteele v. State.



RECOGNIZANCE. — Payment of a judgment by one of COURT OF IOWA.

joict debtors will operate as a discharge as to all. Holmes

v. Day, 108 Mass. 563. And such payment excuses anJune Term (Des Moines), 1878,

other of the debtors from a strict compliance with the

terms of his recognizance, which stipulates for his apHon. JAMES H, ROTHROCK, Chief Justice.

pearance for examination touching his estate before a " WM. H. SEEVERS, “ JAMES G. DAY,

magistrate, and his failure to appear would not be a I JOSEPH M. BECK,

Associate Justices. breach thereof. Opinion by MORTON, J.-Nat. Secu. " AUSTIN ADAMS,

rity Bank v. Hunnewell.


No action can be maintained upon a defendant's promand 3157 of the code, authorizing the granting of new

ise to pay when he should be able without proof of trials in certain cases upon proceedings commenced

such ability. Tanner v. Smart, 6 B. & C. 603; Gould within one year from the time the judgment is rend v. Shirley, 2 Mo. & Payne, 581; Hart v. Pendergast, 14 ered, the limitation of one year runs from the date of M. & W. 740; Tompkins v. Brown, 1 Den, 247. And the judgment of the court wherein the new trial is

transcripts from the tax-books of a town are incompesought and not from the judgineut of the supreme

tent to prove the value of the defendant's property for court on appeal. By an appeal, a party waives his

any other purpose than the assessment and collection of right to claim a new trial. Opinion by BECK, J.-Gray I the tax. Com. v. Heffron, 102 Mass. 148, 154. Opin: v. Coan.

ion by GRAY, C. J.--Randige v. 0. Lyman. ScuooL DISTRICT-POWER TO BORROW MONEY.

COMMON CARRIER–AGREEMENT-BREACH--DAM. While a district township has no express power con

AGES.-1. An agreement by which a common carrier ferred upon it by statute to borrow money, yet an or

undertakes to transport goods from certain stations to der issued by the board of directors for money bor

another, at a certain rate of freight, for a period rowed to pay indebtedness contracted by them in

of twelve months, is a continuing offer on the building a school house is valid and binding upon the

part of the carrier to transport such goods as the district, even though the cost of the building exceeded

other party should furnish at the specified points the amount authorized by the vote of the district. Beck

during the period named, and is binding on the carrier and Day, J.J., dissenting. Opinion by ADAMS, J.

whenever, during that time, the other party tenders Austin v. District Township of Colony.

goods for transportation, according to its terms; and RAILROADS-PERSONAL INJURY- DAMAGE TO Es failure to transport goods so tendered is a breach of TATE-EVIDENCE.-In an action to recover of a rail the contract. Bornstein v. Lans, 104 Mass. 215. 2. road company the loss sustained by the estate of a dece The damages for which a carrier is liable upon failure dent by reason of his death from a personal injury, the to perform his contract, are those which result from plaintitt introduced the life tables and evidence show the natural and ordinary consequences contemplated ing the earnings of deceased at the time of his death;

at the time of the making of the contract; and a larger thereupon the defendant offered to prove in reduction liability can be imposed on him only when it is in tbe of damages the average cost of living at the time and

contemplation of the parties that the carrier is to replace of decedent's death for a man of his age and con

spond in case of a breach for special and exceptional dition in life: Held, that the evidence was properly re

damages. Opinion by ENDICOTT, J.-Harvey v. Conn. fused. Opinion by ADAMS, J,-Simonson v. C., R. I.

& Pass. R. R. Co. & P. R. R. Co.


DEGREE OF PROOF IN QUASI CRIMINAL PROCEEDWhere an attorney stated a hypothetical case which was

INGS.- 1. In actions brought under the statutes of not warranted by the evidence, to a witness, and asked

1875, ch. 99, $ 15, providing that “whoever by himsell, his opinion thereon as an expert: Held, that the testi or his agent, or servant, shall sell or give intoxicating mony was inadmissible. 2. A witness was asked the liquors to any minor, or allows a minor to loiter upon following question; “You may state what he said, if the premises where such sales shall be made, shall forleit,” etc. Knowledge or guilty intent is not an ele- | fixtures by not having removed them during the first ment of the defendant's liability. See Com. v. Em term. Davis v. Moss, 38 Penn. St. 346, approved; mons, 98 Mass, 6. Evidence, therefore, that the agent

Fitzherbert y. Shaw, 1 H. Bl. 248; Lyde v- Russell, i who made the sale did not know that the purchaser B. & Ad. 394; Thrasher v. East London, 2 B. & C. 608; was a minor, and that the defendant had instructed Shepard v. Spaulding, 4 Met. 416, distinguished. Merbim not to sell to minors, is immaterial. 2. The rule of ritt v. Judd, 14 Cal. 59; Loughran v. Ross, 45 N. Y. evidence requiring proof beyond a reasonable doubt is 292, disapproved. The second lease ought not to be generally applicable only in strictly criminal proceed held as including the building, unless from the lease ings. In proceedings under the statute for the main itself an understanding to that effect is plainly intenance of bastard children, proceedings to obtain a ferrable. Opinion by COOLEY, J.-Kerr v. Kingsbury. divorce for adultery, actions for assaults, actions for CIRCUIT COURT COMMIASIONERS-HABEAS CORPUS "criminal conversation," or for seduction, or other FOR DISCHARGE OF CONVICT-MISNOMER OF PRISON. actions brought for the determination of civil rights, -Held, 1. That a circuit court commissioner has no the general rule or preponderance of evidence prevails. jurisdiction to hear applications for discharge of prig. Richardson v. Burleigh, 3 Allen, 479; Young v. Make

oners held under the order, sentence or process of peace, 103 Mass. 50. And the same rules applies in courts of any grade. Tbe determination whether the the case at bar. Opinion by MORTON, J.-Roberge v. judicial function has been properly exercised in any Burnham.

case is necessarily the exercise of judicial power, and therefore jurisdiction in respect to it can not be con

ferred on an officer elected merely for ministerial and ABSTRACT OF DECISIONS OF SUPREME

chamber duties. Constitution of Mich., Art. 6, $S 16 COURT OF MICHIGAN.

and 1; Waldley v. Callendar, 8 Mich. 430; Case v. Dean,

16 Mich. 12; Rowe v. Rowe, 28 Mich. 4532, That no June Term, 1878.

mere misnomer of the prison in the sentence is reason

for discharge when it is sufficiently designated to preHon. J. V. CAMPBELL, Chief Justice. . T. M. COOLEY, )

vent a mistake, Opinion by COOLEY, J.-In re Burger. " ISAAC MARSTON, Associate Justices. 16 B. F. GRAVES, )

sory pote given January 10, 1869. payable on or before
October 15, 1870, with interest at the rate of ten per

QUERIES. cent., was altered by adding thereto the word "annu

54. DEED, MISTAKE-DAMAGE — REMEDY.--1. A ally." Held, that the proper construction of the note as

sells B lot 20. In making the deed A makes a mistake thus changed was as though it had been made to read

and makes B a deed to lot 26. B takes possession of lot, ten per cent. per annum; so that the alteration did not

20. B sells to C, not knowing the error, and takes a increase the maker's liability, and was therefore not

mortgage back on 26, to secure bim for unpaid purmaterial. Opinion by MARSTON, J.- Leonard v.

chase money, C sells to D, D to F; F discovers that Phillips.

he has possession of lot 20, but has a deed to 26. F sells CORPORATION STOCKHOLDERS - INDIVIDUAL LIA to G, and makes bis deed for lot 20, being the correct BILITY-DEFINITION OF LABOR."--Held, that the ex description. G sells to H, H sells to I. C failing to pay ceptional liability provided by the constitution and the mortgage, B brings a suit to foreclose, asking to statutes against corporation stockholders for “labor bave the mortgage reformed. Upon trial in the circuit performed for such corporation," does not include the court it is decided that I had no notice of the mortgage service performed for a railroad by its assistant chief of B upon his lot 20, and, as an innocent purchaser, he engineer. His position is not that of a laborer nor holds the same against C's claim. 2. Through the misis bis work labor in the popular sense; it is mostly take of A in drawing his deed, B relying upon his deed direction and scientific work, involving much more as correct, the land lying in a distant county, fell into superintendence than personal exertion in manual la the same error wben he sold to C. Is A liable to B for bor. Opinion by CAMPBELL, C. J.-Brockway v. the loss suffered in consequence of the mistake? If not, Innes.

what remedy has B?

J. NATURE OF PROBATE PROCEEDINGS-APPEAL NOT SEVERABLE.-From the allowance and probate of a 55. CAN A PAROL CONTRACT BETWEEN PRINCIPAL will in the probate court appeals were taken severally, AND AGENT, whereby the agent is to sell lands and so as to facilitate a removal, as to the non-resident

sign principal's name, as agent of principal, be encontestants, into the United States court. Held, on ap forced in equity, and can evidence of third parties, plication for a mandamus to compel the circuit court who heard principal and agent separately ratify said to rescind its order consolidating the appeals, that parol contract, be introduced? No writing of any kind since probate proceedings are statutory prerogative in regard to the parol contract. proceedings to determine the status of a deceased man's estate, and in no sense to be regarded as contentious litigation inter partes, the probate of every will,

ANSWERS. whether in the original or appellate court, must al.

No. 37. ways be single and complete in one hearing. No mat

(6 Cent. L. J. 499.) ter bow many appeal, they can raise only one issue,

This query is defective in statement. It does not apthat of testacy or intestacy, and there can be but one

pear whether D, at th: time be sold and conveyed land trial of that issue, Allison v. Smith, 16 Mich, 405.

to the administrator (E), had notice that the money he Opinion by CAMPBELL, C. J.-People v. Wayne.

received therefor belonged to the estate. If he knew FIXTURES – RENEWAL OF LEASE – Rights OF that the administrator was trading with the estate MORTGAGEE.-On a foreclosure bill, buildings erected funds, he can not claim to be a bona fide purchaser of by tenants were claimed as subject to a mortgage the money received for the land, and the cestui que given by the landlord upon the premises. Held, that trust creditors or distributees, could elect to follow & tenant who, instead of surrendering possession, lakes the money, or take the land. See case in 11 a renewal of his lease, does not lose his right to th 'Wall. 217. If they made no such election, so as to

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make the land assets of the estate, the other sureties editor of the Albany Law Journal, secretaries. A conof the administrator, after having paid the creditors, stitution was reported and adopted, among whose certainly would be entitled to make D refund, for the provisions are the following: common benefit of all the sureties, the money received The association shall be known as “The American from the administrator belonging to the estate. No Bar Association;" its object shall be to advance the principle can be clearer than that the use of the money science of jurisprudence, promote the administration by the administrator, in the purchase of the land, was of justice, and the uniformity of legislation through. outside of his duty and beyoud his authority, and that, out the Union, uphold the power of the profession of consequently, the act was a conversion to his own use law, and encourage cordial intercourse among the of trust funds, and a fraud upon all persons interested members of the American bar. Annual dues $5.00. in the due administration of the estate. And it is Any person shall be eligible to membership who shall clear that D, having bad notice of the improper use, be and shall for five years have been a member in good becomes a trustee in invitum. The sureties by satis standing of the bar of any state. The following officers fying all defaults of the administrator to creditors and shall be elected at each annual meeting, for the year distributees, becomes the equitable assignees of all ! ensuing; a president, (the same person shall not be claims of such creditors and distributees against the elected president two years in succession); one viceadministrator. And this subrogation gives them the president from each state; a secretary and treasuier; undoubted right to hold: one of their number to ac a council consisting of one member from each state count for participation in the devastavit. .1 Brightley's (the council shall be a standing committee on nominaFed. Dig. 820; 13 Wall. 368. It is plain that if D parted tions for office); an executive committee, to be com. with his land for money which he had no reason to be- posed of the secretary and treasurer, together with three lieve did not belong to E, he is an innocent purcha | members of the council, to be chosen by the associaser for value, and can in no contingency be made to re tion. The following committees shall te annually ap. fund it.

W. A. G. pointed by the president for a year, and shall consist Montgomery, Ala.

of five members each: on jurisprudence and law reform; on judicial administration and remedial pro

cedure; on legal education and admission to the bar; • NOTES.

on commercial law; on international law; on publi.

cation and on grievances. A majority of members of HENRY ARMITT BROWN, the prominent young law any committee, including council, who may be pres. yer and orator of Philadelphia, died in that city on the ent at any meeting of tbe association, shall constitute 21st inst. He was a member of the Cobden Club, of a quorum of such committee for the purposes of the London, England. The Supreme Court of Mexico meeting. The vice-president for each state, and not has decided, reversing the ruling of an inferior tribu less than two other members from such state, sball nal, that the laws of Mexico will permit the delivery constitute a local council for such state, to wbich sball up of fugitives from justice upon the demand of any be referred all applications for membership from such of our states. The Irish Law Times is of opinion state. The vice-president shall be ex-officio chairman that “among the most serviceable transatlantic text of such council. The president shall open each annual books, Mr. Bishop's work on Contracts should be ac- · meeting of the association with an address, in which corded a conspicuous place.”—Mr. Justice Mellor, of he shall communicate the most noteworthy changes in the English High Court of Justice, is about to retire. statute law on points of general interest, made in the He was appointed to the bench in 1861—Judge Ke several states and by Congress during the preceding ogh, the Irish judge who, while insane, attempted to year. It shall be the duty of the members of the kill his servant the other day, is the judge whợ tried general council from each state to report to the presthe celebrated election case at Galway, in 1872, by ident, on or before the first day of May, annually, any which the priests' candidate was unseated on the such legislation in their states. The association shall ground of intimidation—the priests having threatened meet annually in the month of July or August, at such to excommunicate all who should vote against their time and place as the executive committee shall select, candidate--and forty-two priests and two bishops were and those present at such meeting sball constitute a suspended from the exercise of the franchise for seven quorum. The word "state" shall be deemed to be years. The indignation thus stirred up against Judge equivalent to State, Territory, and the District of CoKeogh, who is a Roman Catholic, was most intense. Jumbia. When he returned to his home in Dublin, he had con The following permanent officers were elected: stantly shadowing bim several prominent detectives, as President-James 0. Broadhead, St. Louis, Missouri. it was expected that he would be assassinated. Cardi Vice-Presidents – Arkansas, Geo. A. Gallagher; nal Cullen was reported to have denounced him from Connecticut, Origen S. Seymour; Delaware, Anthony the altar. When Judge Keogh again traveled on cir Higgins; District of Columbia, H. H. Wells; Florida, cuit, a train preceded the one on which he was by ten Chas. W. Jones; Georgia, A. R. Lawton; Illinois, Daminutes. It carried a company of military who cleared vid Davis; Indiana, Thomas F. Davidson; Iowa, W. each depot, and no one was admitted to the platforms G. Hammond; Kentucky, Benjamin H. Bristow; Loui. but responsible officials. The train on which the judge siana, Thomas J. Semmes; Maryland, Richard J. Gittraveled also carried a guard of soldiers, constabulary tings; Maine, A. A. Sirout; Massachusetts, Wm. Gasand detectives, Perhaps the intense strain to which he ton; Michigan, Thomas M. Cooley; Mississippi, Jas. has been subjected has had much to do with his report T. Harrison; Missouri, Henry Hitchcuck; Nebraska, ed insanity.

George K. Amory; New Hampshire, C. W. Stanley;

New Jersey, A. Q. Keasbey; New York, Clarkson N. The organzation of a National Bar Association, Potter; Obio, Rufus King; Pennsylvania, George M. which took place at Saratoga last week, is an event of Biddle; Rhode Island, C. C. Van Zant; South Carono small importance. The call to meet at Saratoga, lina, H. E. Young; Tennessee, Wm. F. Cooper; Verwas in pursuance of a resolution adopted by the juris mont, Edward J. Phelps; Virginia, J. Randolph Tuck. prudence department of the American Social Science er; West Virginia, John A. Hutchinson. Congress at its last session, and the invitations wbich Secretary-Edward Otis Hinkley, Baltimore. were sent brought together over two bundred of the Treasurer-Francis Rawle, Philadelphia. leading lawyers of the different states. B. H. Bris A local council for each state was also elected. That tow, of Kentucky, was elected chairman, and Francis for Missouri is composed of John B. Henderson and Rawle, of Philadelphia, and Isaac Grant Thompson, Albert Todd, of this city.

wien control pe plaintiff was out in fact d

The Central Law Journal.

plaintiff was engaged in labor does it therefore follow he cannot recover? He is not

seeking to enforce any contract which is proSAINT LOUIS, SEPTEMBER 6, 1878.

hibited by law; nor is he seeking to enforce

any right obtained by the breach of any law. CURRENT TOPICS.

Suppose it be said the plaintiff was doing something prohibited by law, but which in no

manner concerned the defendant, or disturbed The Supreme Court of the United States him in any of his rights or privileges, will it during its last term, in the case of Brine v. do in such case to say that the plaintiff is no Hartford Ins. Co., rendered a decision of longer under the protection of the law, and considerable importance as to the effect in ! that the defendant may with impunity, by the proceedings in the Federal courts of state use of positive force or through negligence statute, regulating the transfer and mortgage do him an injury, and that no civil liability is of real estate. The court held: 1. The laws incurred thereby? Can the defendant be of the state in wbich land is situated control permitted to set up as a defense the fact that exclusively its descent, alienation and trans the plaintiff was doing something prohibited fer from one person to another, and the effect by law which did not in fact directly contriband construction of instruments intended to ute to the injury? We think not.” It has convey it. All such laws in existence when a been held that a trespasser may recover damcontract in regard to real estate is made, in ages from one who sets spring guns on his cluding the contract of mortgage, enter into premises in a negligent manner, whereby the and become a part of such contract. 2. A trespasser is injured. Bird v. Holbrook, 4 state statute, therefore, which allows to the Burg. 624; Hooker v. Miller, 37 Iowa 613. mortgagor twelve months to redeem after a And so may one who while trespassing on sale under a decree of foreclosure, and to a the lands of another is bitten by dogs. judgment creditor of his three months after Loomis v. Terry, 17 Wend. 496. In Massathat, governs to that extent the mode of chusetts, New York, and other states traveltransferring the title and confers a substan ing on the Sabbath is expressly prohibited, tial right, and thereby becomes a rule of and in the former state it has been held that a property. This right of redemption after person who travels on business or for pleassale is, therefore, obligatory on the Federal ure cannot recover of a street railway comcourts, sitting in equity, as on the state pany for injuries received in consequence of courts, and the rules of practice of such negligence of the company while so traveling courts must be made to conform to the law in their cars. Stanton v. Metropolitan R. R. of the state, so far as may be necessary to | Co., 14 Allen 485. The contrary doctrine is give substantial effect to the right. See held in New York. Carroll v. Staten Island R. Olcott v. Bynam, 17 Wall 58; Ex parte Mc R.. 59 N. Y. 126. In the former state it was Neil, 13 Wall. 243; United States v. Crosby,

held in Gregg v. Wyman, 4 Cush. 322, that 7 Cranch., 115; Clark v. Graham, 9 Wheat. the “ owner of a horse who lets it, on the 177; McGoon v. Scales, 9 Wall 27.

Lord's day, to be driven for pleasure to a par

ticular place, could not maintain an action of IN Schmid v. Humphrey, 2 West. Jur. 475,

tort against the hirer for driving it to a difdecided by the Supreme Court of Iowa at its

ference piace, and in so doing injuring it.”

This doctrine is repudiated in Woodman v. last term, an action was brought to recover damages for injuries received by plaintiff

Hubbard, 25 N. H. (5 Foster), 67; and More while traveling on a highway, by reason of de

ton v. Gloster, 46 Maine 420; and it has fendant's dogs frightening bis horse. The

been abandoned in Massachusetts, and Gregg

v. Wyman expressly overruled in Hall v. defense was that the plaintiff, at the time of

Corcoran, 107 Mass. 251. Bosworth v. the injury, was engaged in labor on the Sabbath contrary to the statute law of the state.

Swansey, 10 Met. 363, and other cases in that The court held that this did not bar a recov

state which bold that towns are not liable for ery. SEEVERS, -Jug said: “Conceding the

ipjuries caused to one who is traveling on the Vol. 7-No. 10.


Sabbath, by reason of a defective highway, zen is entitled to redress. But his redress are much modified by Hall v. Corcoran. See cannot extend beyond his injury. It cannot also Bigelow v. Reed, 51 Maine 325; Baker extend to taking the personal chattels of the v. City of Portland, 58 Ib. 199; Moheny v. railroad company. They are not his, and Cook, 26 Pa. St. 312; Sutton v. Wauwatosa, cannot increase his remedy. The injury was 29 Wis. 21; Kerwhacker v. C. C. & C. R. R. to what the landholder had himself, not to Co., 3 Ohio St. 172; Phil., Wil. & Balt R. what he had not. Then why should the maR. v. Phil. Tow Boat Co., 23 How. 209. terials laid down for the benefit of the public See also 6 Cent. L. J., 401.

be treated as dedicated to him? In the case of a common trespasser the owner of the

land may take and keep his structures nolens In a recent Pennsylvania case, Justice ».

volens, but not so in this case, for though Nesquehoning Valley Railroad Co., 18 Alb.

the original entry was a trespass, it is well L. J. 171, a railroad company, authorized

settled that the company can proceed in due by its charter to appropriate lands under the

course of law to appropriate the land, and power of eminent domain, entered upon lands

consequently to reclaim and avail itself of without objection from the owner, but with

the structures laid theron. Harrisburg v. out taking the proper proceedings to acquire

Crangle, 3 W. & S. 464; McClinton v. Railthe lands, and laid its ties and rails. Upon

road Co., 16 P. F. Smith 409; Railroad Co. subsequent proceedings being taken to acquire

v. Burton, 11 id. 379. And in Harvey v. the land it was held that, although the com

Thomas, 10 Watts 63, it was held that the pany was a trespasser, yet the ties and rails

subsequent proceeding to assess compensadid not enure to the owner of the land so as

tion was a protection against a recovery of to entitle him to claim allowance for their

vindictive damages." See also Meigs' Apvalue. The common law rule is that a tres

peal, 12 P. F. Smith 28. There are some passer wbo builds on another's land dedi

analogies bearing remotely on this question cates his structures to the owner. The rea

and showing that property is not gained by son is that having affixed his chattels to the

the owner of land because found upon it. realty, they become part of it, and he cannot

Thus in case of property carried off by a add further injury by tearing them down.

flood and stranded on the premises of another, Even a tenant is, to a modified extent, affect the owner may follow it, enter and take it, or ed by the same rule. If he improves under

if the owner of the land convert it, may rea covenant, the covenant governs his right of

cover its value. Foster V. Bindle Co., 4 removal. So if in favor of trade he erects

Harris, 393; Ellis v. Edwards, 4 Watts 63. structures for his business, doing no unneces

And even a sale will not carry unknown sary or irreparable injury to the land, yet

secreted valuables. Hutchison v. Harris, having done this without consent, he must

2 Wright 491. remove his erections before the expiration of his term, otherwise he will be presumed to dedicate them to his lessor. AGNEW, C. J.,


RIED WOMAN. who delivered the opinion of the court in the case at bar distinguished it from these, saying: “This is not a case of a mere trespass by In Shroyer v. Nickell, 55 Mo. 264, where & one having no authority to enter, but of one hnsband and wife, jointly seized of land, made representing the state herself, clothed with the | a conveyance duly acknowledged, whereby power of eminent domain, having a right to they intended to convey that land to a certain enter and to place these materials on the land person, but failed to do so, because the land taken for a public use-materials essential to was incorrectly described, it was held that the very purpose which the state has declared equity could not reform the deed in the parin the grant of the charter. It is true the ticular referred to. entry was a trespass, by reason of the omis This ruling was placed in substance upon sion to do an act required for the security of the grounds: That the reforming power of a the citizen, to-wit, to make compensation or court of equity could only be exercised where give security for it. For this injury the citi- | there was a valid contract whereon such power

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