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THE ALBANY LAW JOURNAL.

the relative situation of the lot to the surrounding
lands, but by the manner in which that lot has been
built upon. The actual enjoyment of the light and air
by the owner of the house is upon his land only. He
makes no tangible or visible use of the adjoining lands,
nor indeed any use of them which can be made the
subject of an action by their owner, or which in any
way interferes with the latter's enjoyment of light and
air upon his own land with any use of those lands in
their existing condition. In short, the owner of the
adjoining land has submitted to nothing which ac-
tually encroached upon his rights, and cannot there-
fore be presumed to have assented to any such en-
croachment. The use and enjoyment of the adjoin-
ing lands are no more subordinate to those of the
house where both are owned by one man, than where
the owners are different. The reasons upon which it
has been held that no grant of a right to light and air
can be implied from any length of continuous enjoy-
ment are equally strong against implying a grant of
such a right from the mere conveyance of a house with
windows overlooking the land of the grantor. To im-
ply the right of such a grant in either case without ex-
press words would greatly embarrass the improvement
of estates, and by reason of the very indefinite char-
acter of the right asserted, promote litigation. The
simplest rule, and that best suited to a country like
ours, in which changes are continually taking place in
the ownership and use of lands, is that no right of this
character shall be acquired without express grant of
an interest in, or covenant relating to, the lands over
* * * Considering,
which the right is claimed.
therefore, that by the preponderance of reason and
authority no grant of any right of light and air over
adjoining lands is to be implied from the conveyance
of a house, we have only to apply this rule to the
facts." In 1876, N. Y., Doyle v. Lloyd, per Earl, J.,
this doctrine, there styled the "American doctrine," as
to light and air, is distinctly recognized, the learned
judge citing Keats v. Hugo, supra; Parker v. Foote,
19 Wend. 315; 2 Sandf. Sup. Ct. Reports, 316; Myers
v. Genmell, 10 Barb. 537; Mullen v. Stricker, 19 Ohio
St. 135; Haverstick v. Sipe, 33 Penn. St. 368.

Doyle v. Lloyd, supra, it may be parenthetically remarked, involves the distinction which seems to sustain the ruling in Kay v. Stallman, by Finletter, J.

In Turner v. Thompson, 58 Ga. 268, reported in 24 Am. Rep. 497, it was ruled that where land was sold with a house on it having windows overlooking the adjacent land of the grantor, that the latter was not estopped from obstructing the windows, unless they were necessary to give light and air to the house; or, if sufficient light and air could be derived from other windows open, or that might be commonly opened elsewhere in the house. This case was evidently most carefully considered; it reviews the earlier Massachusetts and New York decisions, adopts Keats v. Hugo, and the reasoning of Chief Justice Gray, and of Mitchell v. City of Rome, 49 Ga. 19; 15 Am. Rep. 669. It is worthy of remark, however, that this case limits the general application of Keats v. Hugo as between dominant and servient tenement in one important respect. I think the limitation is wise and right. It is that an implied easement of light and air will Powell v. be sustained in case of real necessity. Sims, 5 W. V. 1; 13 Am. Rep. 629. Many more cases might be cited, and I have examined every case on the briefs of counsel, save one from Lord Raymond; but enough has been done to justify the conclusions of law which I am about to reach, and which I think should become the law of Pennsylvania:

1. No implication of a grant of the right to light and air arises upon a sale of one of two adjacent lots having a house upon it with windows overlooking the land of the grantor.

2. The grantor, by such sale, is not estopped from

improving his retained lot by building upon it, though
his erection darkens the windows of his vendee, and
excludes the access of light and air from such win-
dows.

3. That the limitation of these two propositions de-
pends upon the fact as to whether such windows are a
real necessity for the enjoyment of the grantee's prop-
erty. If they be, then the implication of the grant of
an easement of light and air will be sustained; if they
be not, or can be substituted at a reasonable cost, with
a view to the purposes of the dominant tenement, then
such implication will be denied and rejected.

4. The American doctrine as to light and air requires an express grant or agreement, unless a real and actual necessity exists, to vest a dominant tenement with such right.

5. The doctrine of ancient lights is not recognized in Pennsylvania.

These principles being determined, and there being no express grant or agreement disclosed in the facts reported by the master, but one question of fact arises upon the case as presented by the master.

Are the windows, closed by the defendant's erection upon his own lot, a real and actual necessity for the purpose of furnishing the necessary light and air to the house of the plaintiff? The master has found they were not, and when it is remembered that the house of the plaintiff is at the corner of a street in an incorporated borough, it is hard to conceive how the master could reach a different conclusion, particularly in the light of the testimony of the witnesses.

One other inquiry remains. Mr. Widdicombe, a former owner of the premises, declares that he bought the lot now owned by the defendants for two purposes, one of which was to obtain more light and ventilation, and that he sold the two lots together to Mr. Wotton as a whole. I cannot see how this can affect the case. The purposes for which a former owner purchased property cannot affect the use and rights of his vendees or alienees, unless such purposes are covenanted for, are actually or constructively known to such alienees, and are in the nature of contracts or covenants which may be enforced between themselves or by others. The deed in fee bars the grantor, and a mere purpose on his part will not control his alienees. Mr. Widdecombe could have changed his purpose and built upon the lot while he was owner of both; his vendee, unrestricted The bill cannot be by covenant, may do the same. sustained on this ground.

The master has elaborated the other questions with sufficient clearness, and all the exceptions to his report are overruled.

In conclusion, it seems proper to add one word. The motion for a preliminary injunction was refused after brief hearing; and though I then formed a clear idea of what the "American doctrine" ought to be, no time was given, nor argument made, to and upon that hearing, which involved the exhaustive research displayed by counsel in the final argument.

I have carefully and patiently considered all the cases cited, and tested the clear and forcible reasoning of counsel by the authorities now within my reach, and have endeavored, I believe successfully, to hear the But were there no authorities, I am case de novo. clearly of opinion that the law should be as I have found it. Public policy requires that in a new and developing country the spirit of improvement, of betterments, should not be changed and handicapped by the law. With the limitation of an implication arising from real and actual necessity, the time honored and equitable maxim of sic utere tuo non alienum lædas, is If the principles of Story v. Odin carefully observed. were to prevail, one with a series of town lots would, after the sale of one, imply a grant as to the two others immediately adjoining that would destroy them for building purposes, and a one-story house would be

compelled to remain one story because its dominant tenement had two. All improvement would be stayed, values would be destroyed, and alienations, except under special contracts, rendered dangerous for the future and ruinous in the past.

Our court of last resort, in Bentz v. Armstrong, 8 W. & S. 40, approved in Young v. Leedom, 67 Penn. St. 351, indicated that the agricultural rule of drainage as between servient and dominant tenements cannot apply in boroughs and incorporated towns. The reason is that no lot could be filled up and graded or be adapted to building purposes if such rule prevailed in towns. If that conclusion be sound within the scope of the maxim, sic utere tuo, etc., surely the same spirit of public policy would protect lot-holders in boroughs, towns and villages in regard to implied rights of light and air, even though a different rule prevailed in agricultural lands.

But I think this opinion shows that, except in Maryland and New Jersey, a different rule does not prevail.

And now January 25th, 1879, the exceptions to the report of the master are overruled, and the report is confirmed, and it is now ordered that decree be drawn by counsel under the equity rules.

PER CURIAM. The learned president of the court below has discussed the question involved in this case in an opinion so able and exhaustive that it is unnecessary that we should add any thing to it. We affirm this decree upon that opinion.

Decree affirmed and appeal dismissed, at the costs of the appellant.

NEW YORK COURT OF APPEALS ABSTRACT.

CONSTITUTIONAL LAW-STATUTE SHORTENING TERM OF OFFICE OF ALDERMAN VALID-NEW YORK CITY.— The fact that an act of the Legislature (Laws 1870, ch. 137), amending the charter of the city of New York, shortens the duration of the term of office of an alderman of said city, so that the term declared by statute in force when he was elected to be for two years, is made by the amending act a term for five months, held, not to make such act invalid. The office not being created or regulated by the Constitution, the Legislature has entire control over the matter. The office was created and its term was fixed by that body, and it could be changed by it. The legislation was aimed at the office not at the incumbent. However viewed, the act was within the lawful exercise of power by the Legislature, and within the principle that a public office is not a grant, and that the right to it does not depend upon or partake of the nature of a contract. Conner v. Mayor of New York, 2 Sandf. 355, 369; affirmed 5 N. Y. 285; Smith v. Mayor of New York, 37 N. Y. 518. Judgment affirmed. Long, appellant, v. Mayor, etc., of New York. Opinion by Dauforth, J. [Decided June 15, 1880.]

RAILROAD FARM CROSSINGS- CONSTRUCTION MAY BE COMPELLED BY ACTION. Under the statute requiring railroad companies to construct and maintain farm crossings, the location of the crossing is to be made somewhat with reference to the necessities and convenience of the owner of the farm, and he is entitled to be reasonably and fairly accommodated. The railroad company, in the exercise of its duty in providing farm crossings, is not vested with any such absolute discretion or arbitrary power that its decision is final and conclusive and cannot be reviewed or disturbed. Wademan v. Albany & S. R. Co., 51 N. Y. 568. An action will lie to compel the company to make a suitable crossing. In this case the farm of plaintiff was so divided by the railroad that it was necessary for the cattle and stock kept on the greater part of the farm to cross the railroad to obtain water. Held, that the

owner of the land was entitled to such a crossing as was suitable under the circumstances, and an order by the trial judge directing that the crossing should be constructed under the track was proper. The right of a crossing under the track was a necessity, if for sufficient reasons a construction over the surface of the road was not practicable or would not answer the purpose intended. In such a case the right to relief must rest in the sound discretion of the judge and must be entirely equitable and just. Clarke v. Rochester, etc., R. Co., 18 Barb. 350; Wheeler v. Rensselaer, etc., R. Co., 12 id. 227. The proceedings taken to condemn the land of plaintiff and damages paid by reason thereof, held not to preclude plaintiff from maintaining an action to compel the corporation to erect crossings. The proposition that when lands are taken compulsorily, the proceedings for condemnation contemplate and provide for every form of damage or inconvenience to the owner, is not well founded and cannot be upheld. Smith v. New York, etc., R. R. Co., 63 N. Y. 58. Judgment affirmed. Jones v. Seligman et al., trustees, appellants. Opinion by Miller, J. [Decided June 1, 1880.]

SLANDER- -MITIGATION OF DAMAGES-REPUTATION OF PLAINTIFF UNKNOWN TO DEFENDANT NOT PROVABLE.- While a defendant in an action for slander may show in mitigation of damages that information received from others or the existence of facts within his knowledge induced him to believe that the charge made by him was true, he cannot show that the reputation of the plaintiff was bad in order to prove that the words spoken by him could not injure it. And he cannot show in mitigation of damages the existence of facts which were not known to him when he uttered the slanderous words. Bush v. Prosser, 17 N. Y. 347. Such facts have effect by showing that the defendant was not malicious in the utterance of the disparaging words. Cooper v. Barber, 24 Wend. 105; Bisbey v. Shaw, 12 N. Y. 67; Willover v. Hill, 72 id. 30. The provision of the Code in respect to this matter (old Code, § 165; new Code, § 535), was meant to change the rule of pleading and not the effect or admissibility of evidence further than the change in form of pleading did so. Spoouer v. Keeler, 51 N. Y. 527. The doctrine that a person of disparaged fame is not entitled to the same measure of damages with one whose character is unblemished, and that it is competent to show that by such evidence (Earl of Leicester v. Walter, 2 Camph. 251; v. Moor, 1 M. & S. 284), is not the rule in Root v. King, 7 Cow. 629; Gilman v. Judgment affirmed. Hatfield Opinion by Folger, C. J.

this State. Lowell, 8 Wend. 579. v. Lasher, appellant. [Decided June 1, 1880.]

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PRIVILEGED COMMUNICATION CRITICISM OF CONDUCT OF PUBLIC OFFICER.- The official act of public functionary may be freely criticised and entire freedom of expression used in argument, sarcasm and ridicule upon the act itself, and then the occasion will excuse every thing but actual malice and evil purpose in the critic. But the occasion will not of itself excuse an aspersive attack upon the character and motives of the officer, and to be excused the critic must show the truth of what he has uttered of that kind. A person in a public office is no less to be protected than one who is a candidate for public office, and the law of libel must be the same in each case. It is the law of this State that to accuse a candidate for public office of an offense is not privileged, though the charge was made without evil motive and in the exercise of a political right (Lewis v. Few, 5 Johns. 1), and though the libel relate to a public act of the candidate in his offi cial place. Root v. King, 7 Cow. 613; affirmed, Wend. 113. It cannot be different when the charge against one holding an office. See Edsall v. Brooks, arh Abb. Pr. 221. So it seems to be in other States. Co

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monwealth v. Clapp, 4 Mass. 163; Curtis v. Mussey, 6 Gray, 261; Seely v. Blair, Wright (Ohio), 358, 683; Brewer v. Weakley, 2 Overton (Tenn.), 99; Mayrant v. Richardson, 1 N. & McC. (S. Car.) 347. Judgment affirmed. Hamilton v. Eno, appellant. Opinion by Folger, C. J.

[Decided June 1, 1880.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

ALTERATION - PRESUMPTION AS TO INTERLINEATIONS. In deciding as to whether an interlineation in an instrument is an unauthorized alteration or not, the rule is that if the interlineation is in itself suspicious, as, if it appears to be contrary to the probable meaning of the instrument as it stood before the insertion of the interlined words; or if it is in a handwriting different from the body of the instrument, or appears to have been written with different ink-in

all such cases, if the court considers the interlineation suspicious on its face, the presumption will be that it

was an unauthorized alteration after execution. On the other hand, if the interlineation appears in the same handwriting with the original instrument, and bears no evidence on its face of having been made subsequent to the execution of the instrument, and especially if it only makes clear what was the evident intention of the parties, the law will presume that it was made in good faith, and before execution. Stoner v. Ellis, 6 Ind. 152; Huntington et al. v. Finch & Co., 3 Ohio St. 445; Nichols v. Johnson, 10 Conn. 192; Burnham v. Ayer, 35 N. H. 351; Beaman v. Russell, 20 Vt. 205.

Circuit Minnesota, June, 1880. Co. v. Palmer et al. Opinion by McCrary, C. J.

EQUITABLE ACTION—AGAINST WAREHOUSEMAN BY

HOLDER OF NEGOTIABLE WAREHOUSE RECEIPT-PARTIES.

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When a warehouseman, having in store a quantity of wheat deposited by several persons, for which, under the statute of a State which provides that receipts therefor shall be negotiable and evidence of the title to the wheat named therein, he issues receipts to each depositor, fraudulently disposes of part of the wheat, the receipt holders must share in what remains according to the equitable interest of each, to be ascertained by an accounting. No one of such receipt holders can recover at law the whole, nor could any number of such holders, less than the whole number, recover possession as against the remainder. This case must be brought in a court of equity, where all the claimants can be heard and decree can be rendered

establishing the rights of each with respect to the property in controversy. It is a controversy which cannot be settled at law. Circuit Minnesota, June, 1880. Dows et al. v. Eckstrone. Opinion by McCrary, C. J.

LIMITATION-STATUTE OF ACTION AGAINST INDORSER OF FORGED PAPER BY DRAWEE. -The United States treasurer, in 1867, made a draft on the First National Bank of B. to the order of O. The name of

O. was forged and the check was sent by a third party

to the M. bank for collection. The M. bank indorsed it and presented it to the drawee by which it was paid and forwarded to the United States treasury, and credit therefor allowed the drawee. In 1877 the United States sued the drawee, the First National Bank of B., for the amount of the draft, on the ground that the indorsement was forged, of which suit the M. bank was notified and employed counsel in defending the suit. Judgment was rendered against the First National Bank of B. Held, in an action by that bank against the M. bank to recover the amount paid on the judgment, that the statute of limitations as against the * Appearing in 3d Federal Reporter.

defendant did not begin to run at the time of the payment of the draft, nor until the United States elected to insist on the defect of title and cancel the credit given plaintiff on the draft. The case of Cowper v. Godmond, 9 Bing. 788, 23 E. C. L. 452, is in principle much like this. There the question was whether a plea of the statute of limitations was a bar to an action for money had and received to recover the consideration money of a void annuity, when the annuity was granted more than six years before the action was brought, but was treated by the grantor as an existing annuity within that period. "That question," said the court," depends upon another: at what time did the cause of action arise? The cause of action comthe money by the grantee; the second is the grantor's prises two steps. The first is the original advance of election to avail himself of the defect in the memorial of the annuity. The cause of action was not complete until the last step was taken." In the present case, also, the warranty contemplated two things: First, the giving of the credit by the United States; and, As the first requirement of second, its continuance.

this undertaking was complied with, no right of action could arise until the second was broken. That certainly did not occur until the United States elected to take back the credit it had given. Circuit Maryland, June 30, 1880. Merchants' National Bank of Baltimore v. First National Bank of Baltimore. Opinion by Waite, C. J.

IOWA SUPREME COURT ABSTRACT.

JUNE, 1880.

ACKNOWLEDGMENT — BY MARRIED WOMAN - STRONG EVIDENCE REQUIRED TO CONTRADICT CERTIFICATE. — In this case the question was whether a married woman joined in the execution of a mortgage executed by her husband. She could not write and her name was signed by another and her mark made. The mortgagee testified that she acknowledged the execution; there was a certificate of a justice of the peace that she did, and he also testified to the same. This was denied by the wife and three or four members of her family or relatives. Held, that the testimony did not overcome the certificate of the justice. In such a case great weight should be given to the certificate of the officer, and his direct and positive testimony upon the subject. He is elected expressly with reference to his integrity and other qualifications for taking acknowledgments of instruments. It is true that in this matter he may be corrupt or mistaken, but the presumption is very strong in his favor. Morris v. Sargent, 18 Iowa, 90; Van Orman v. McGregor, 23 id. 302; Borland v. Walrath, 33 id. 133. This is certainly the theory of the law, and any other would have a great tendency to unsettle titles and securities. Bailey, Wood & Co. v. Landingham. Opinion by Adams, C. J.

ARBITRATOR-ACTS JUDICIALLY AND IS NOT LIABLE TO CIVIL ACTION FOR WRONGFUL AWARD. —An arbitrator having jurisdiction to make an award acts judicially in so doing and is not liable in a civil action for damages for an award alleged to have been made by him fraudulently and corruptly. Perhaps no branch of the law has undergone more thorough discussion than the question as to the liability of judges to civil actions for their judicial acts. The cases which treat of the subject are so numerous, both in England and in this country, that it is impracticable to do more than to refer to them generally. In the case of Yates V. Lansing, 5 Johns. 28, there is an elaborate review of land v. Parsons, 25 Am. Rep. 694, we have the subthe authorities upon the subject. In a note to Burstance of a large number of cases, English and American. See, also, Bradley v. Fisher, 13 Wall. 335, and in the late case of Lange v. Benedict, 73 N. Y. 12,

very many authorities are reviewed and commented upon. By these authorities it is settled beyond all controversy, that a judge of any court, whether of limited or general jurisdiction, is not liable in a civil action for acts done in his judicial capacity, and within his jurisdiction, even though it be alleged that the aets complained of were done maliciously and corruptly. In Pratt v. Grordner, 2 Cush. 68, Shaw, C. J., said: "It is a principle lying at the foundation of all well-❘ ordered jurisprudence, that every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law, and deciding upon the rights of others, should act upon his own free, unbiased convictions, uninfluenced by any apprehension of consequences." In some of the cases, as in Bradley v. Fisher, 13 Wall. 335, it is held that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly; and a distinction is made between excess of jurisdiction and the clear absence of jurisdiction over the subject-matter. In other cases it is held that judges of courts of limited jurisdiction are liable to civil actions for their acts done in excess of their jurisdiction. The case of Gowing v. Congal, 12 Iowa, 495, does not hold that an inferior judicial officer is liable where he has jurisdiction. Warren v. Mitchell, 18 Iowa, 155; Landegan v. Harmer, 30 id. 155. Jones v. Brown. Opinion by Rothrock, J.

MORTGAGE MORTGAGEE IN POSSESSION MUST AC- When a mortgagee goes into possession of the mortgaged premises and does not rent the same to another, he must account for the reasonable rental value thereof and not for the net proceeds therefrom. In Sanders v. Wilson, 34 Vt. 318, it is said: "When the mortgagee himself occupies, and especially when the premises are a farm in cultivation, upon which labor and expenditure are to be bestowed to produce annual crops and profits, the mortgagee will be charged with such sums as will be a fair rent of the premises, without regard to what he may in fact have realized as profits from the use of it. The rule is founded in sound policy, for the reason that the particular items of expenditure in labor or otherwise, as well as the profits received, are wholly within the knowledge of the mortgagee; and if he is not disposed to render a full and honest account, it would be impossible for the mortgagor to show them, or to establish errors in the mortgagee's account. To the same effect, see, also, 1 Hilliard on Mort. 33; Daniell's Ch. Pr. (4th ed.) 2223; Washburn on Real Prop. 578; Gordon v. Lewis, 2 Sumn. 143; Kel- | logg v. Rockwell, 19 Conn. 446; Trimleston v. Hamill, 1 Ball & B. 379; Bainbridge v. Owen, 2 J. J. Marsh. 465; Van Buren v. Olmstead, 5 Paige, 9; Strong v. Blanchard, 4 Allen, 538. Barnett v. Nelson. Opinion by Day, C. J.

COUNT FOR RENTAL VALUE OF PREMISES.

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MICHIGAN SUPREME COURT ABSTRACT.

CONVERSION

JUNE, 1880.

- WHEN ACTION FOR, WILL NOT LIE. —

A sub-contractor for building a railroad, without right, took ties belonging to plaintiff below and put them among other ties forming the superstructure of the railroad. In June, 1878, plaintiff notified the president of the railroad company that the ties were his, but took no steps to recover them though they might easily have been identified. The railroad had not then passed under the control of the company and did not pass under its control until nearly six months later. Held, that plaintiff could not then maintain an action against the company for the conversion of the ties.

Having deliberately chosen to wait until the property not only changed custody, but was also annexed still more firmly by ballasting, he could not then treat as personalty in the hands of the railroad company, converted by a mere failure to give it up on demand, what became to his knowledge a part of realty in the hands of the contractors, against whom he had a remedy for the only conversion that ever took place. Morrison v. Berry, 42 Mich.; 4 N. W. Rep. 739; Pierce v. Goddard, 22 Pick. 559; Fryatt v. Sullivan Company, 5 Hill, 116; 7 id. 529; Cooley on Torts, 55. Detroit & Bay City Railroad Co. v. Burch. Opinion by Campbell, J.

MARRIED WOMAN-NOT LIABLE FOR IMPROVEMENTS TO SEPARATE PROPERTY MADE ON HUSBAND'S CREDIT. -Plaintiffs placed a furnace in the house of a married woman upon the request of her husband and gave him credit for the purchase-price. Afterward, on ascertaining that the house did not belong to the husband but to the wife, the plaintiffs, after demanding payment, returned the note they had taken from him and brought action against the wife. Held, that they could not recover. Morrison v. Berry, 4 Nev. 739; Newcomb v. Andrews, 41 Mich. 518; Vanneman v. Powers, 56 N. Y. 39; Woodruff Iron Works v. Adams, 39 id. 233; Wright v. Hood, 5 N. W. Rep. 488. Holmes & Webster v. Bronson. Opinion by Graves, J.

SURETYSHIP

OFFICIAL BOND WHEN SURETIES NOT LIABLE AS TO DUTIES IMPOSED BY LAW PASSED SUBSEQUENT TO EXECUTION. - After the official bond of a sheriff had been given, an act of the Legislature taxing the business of manufacturing and selling intoxicating liquors was passed, and sheriffs were required to collect the tax when warrants therefor were issued by county treasurers. Held, that the duty of collecting taxes was not germane to the office of sheriff, and the sureties on his official bond would not be liable for his default therein, in the absence of a clear provision in the bond to meet such a case. Gaussen v. United States, 97 U. S. 584; Converse v. United States, 21 How. 463; Commonwealth v. Holmes, 25 Gratt. 771. And it must be observed further that in proceeding to ascertain whether the new duties were or were not adventitious, they cannot be considered otherwise as against these sureties, unless their affinity to the office is plain and obvious. The rule is one of manifest justice. St. Louis v. Sickles, 52 Mo. 122; Mayor of Rahway v. Crowell, 11 Vroom, 207; Citizens' Loan Association v. Nugent, id. 215; Amherst Bank v. Root, 2 Metc. 536; Kitson y. Julian, 30 E. L. & E. 326. When an obligation of this kind is created, the parties, unless they express themselves very clearly to the contrary, must be understood as referring to the kind of duties which are fairly appropriate to the office, as it then exists, distinct from others. In case something beyond is meant to be provided for, the provision should be made so plain as to leave no reasonable ground for sureties to allege the failure to understand it. The duties prescribed by the act mentioned were not equivocal. Their character could not be mistaken. They were those of a tax collector, and as distinguishable from such as are properly incident to the office of sheriff, as are the common functions of a township treasurer from those of a constable. As stated by Field, J., "the duties of sheriff, as such, relate to the execution of the orders, judgments and process of the courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offense; the service of papers in actions, and the like. They are more or less directly connected with the administration of justice; they have no relation to the collection of the revenue.' People v. Edwards, 9 Cal. 286. See, also, Pybus v. Gibbs, 88 E. C. L. 902; Oswald v. Mayor of Berwick, 26 E. L. & E. &; Skillett v. Fletcher, L. R., 2 C. P. 469. White v. City of East Saginaw. Opinion by Graves, J.

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OFFICIAL BOND MISTAKE IN NAME OF OBLIGEE

cedure. This subdivision has not been attempted to be changed and is in full force.

By

By chapter 245 of the Laws of 1880, passed May 10, 1880, chapter 467 of the Laws of 1870 were expressly repealed. Laws 1880, p. 373, last clause of No. 46. chapter 480 of the Laws of 1880, subsequently, May 28, 1880 (Laws 1880, p. 690), the Legislature perpetrated the blunder of amending section 1 of chap. 467, Laws 1870, which it had previously repealed.

Chap. 480, Laws 1880, is clearly unconstitutional and the jurisdiction of the court depends upon the provisions of the Constitution and of section 440 of the Code of Civil Procedure. Yours truly,

NATHANIEL C. MOAK.

ALBANY, Aug. 30, 1880.
ANSWERS TO "MIDSUMMER"- PRIORITY AMONG
MORTGAGEES.

To the Editor of the Albany Law Journal:

DOES NOT INVALIDATE. —The statute of Michigan requires the sheriff of a county to give a bond to the State for the purpose of indemnifying all persons in whose favor a duty may arise, to be performed by him. This bond is required to be approved by the county board of supervisors. A sheriff gave a bond which was duly approved, wherein the county in which he was sheriff, and not the State, was made the obligee. Held, that the bond was valid so as to sustain an action thereon by a party injured by a neglect on the part of the sheriff to levy an execution and a making by him of a false return thereon. If the several duties which the sheriff is called upon to perform could only arise because of the statute requiring the giving of the bond, there would be abundant reason for saying that until a bond in conformity with the statute was produced, no recovery could be had. But the statute does not impose the duties; they would be the same if no official bond were required, and a sheriff de facto is charged with them under the same circumstances as is a sheriff de jure. It needs no statute to enable the officer to give a valid bond to perform any such duty; and had the sheriff executed to the plaintiffs a common-law bond, conditioned that he would duly levy and return the execution they placed in his hands, there could have been no doubt of its validity. United States v. Tingrey, 5 Pet. 115; Thompson v. Buckhannon, 2 J. J. Marsh. 416; Governor v. Allen, 8 Humph. 176; Montrille v. Haughton, 7 Conn. 743; Commonwealth v. Wolbert, 6 Binn. 292. And any bond that may voluntarily be given to a party for his benefit will be equally valid if given to another for him. Van Hook v. Barnett, 4 Dev. 268. And in the case last cited this principle was applied to the bond of office of an administrator, which, though given to the county justices, when the statute required it to be given to the governor, was held to be a valid common-law bond, and available as such to any person in whose favor a cause of action against the administrator might arise. County of Bay v. Brock. Opinion by Cooley, J.; Graves, J.,ceive as second distributee, that is, an amount not ex

dissented.

CORRESPONDENCE.

To the Editor of the Albany Law Journal:

In re as to whether Dr. Buchanan's bail could be held in the case of his death by suicide?

I suggest this solution of "Midsummer's "legal problem, published in your last number:

The order of record of the mortgages being C, B, A, and C, having knowledge of B's mortgage only, it is clear that C's mortgage must be paid in full, excepting as he is affected by his knowledge of B's mortgage, that is, after deducting the amount of B's mortgage, C must be paid in full. B, however, is entitled to receive the amount of his mortgage only after A's mortgage, of which he knew, is satisfied. The only fund out of which A can be paid, however, is the amount reserved as against C to pay B's mortgage. The order of payment would therefore be:

1. To A, the amount of his mortgage, not however exceeding the amount of B's mortgage. 2. To B, the amount, if any, by which his mortgage exceeds A's mortgage. 3. To C, the entire amount of his mortgage. 4. To A, the amount, if any, by which his mortgage fell short of the amount of B's mortgage. 5. To B, such part of his mortgage as he did not re

ceeding the amount of A's mortgage.

In the case supposed by "Midsummer," of each mortgage being $5,000, and the property bringing $10,000 (disregarding expenses, taxes, etc.), the distribution would be: 1. $5,000 to A; 2. $5,000 to C; 3. Nothing to B.

gage for $5,000, of which he knew.

B cannot complain because he took subject to C's I don't understand his bail were under bonds to pre-prior recorded mortgage for $5,000, and to A's mortsent his soul (if he has any), and if they produce his "body," though dead by his own hands or by any other means, why should they not be exonerated? but I forget; this is asking you a question.

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COUNTY COURT JURISDICTION.

To the Editor of the Albany Law Journal:

I see several of your correspondents are "exercised" over chapter 480 of the Laws of 1880, which attempted to give county courts jurisdiction "when the relief demanded for the recovery of a sum of money not exceeding $3,000," etc. It seems to me there need be little apprehension of difficulty.

The Constitution, art, 6, § 15, provides that county courts shall "have original jurisdiction in all cases where the defendants reside in the county and in which the damages claimed shall not exceed $1,000."

This provision per se confers jurisdiction in cases where the relief sought is a money judgment not exceeding $1,000 if defendants reside in the county. No legislative provision was necessary in that class of cases. The Legislature has however provided therefor in subdivision 3 of section 340 of the Code of Civil Pro

The problem is more interesting if A's mortgage be less than $5,000, say $4,000, and B's mortgage more than $5,000, say $6,000. The distribution would then be: 1. To A, $4,000. 2. To B, $2,000. 3. To C, $4,000. C cannot complain, for he took with knowledge of a prior mortgage of $6,000, and it does not concern him how or to whom the $6,000 is paid. And B cannot complain for the reason mentioned in the former case.

If A's mortgage were $6,000, and B's $4,000, the distribution would be: 1. To A, $4,000. 2. To C, $5,000; $1,000 less than his mortgage. 3. To A, $1,000 additional, receiving in all $5,000; being

A cannot complain, because he took subject to the prior recorded mortgage for $5,000, of C, who was innocent as to A, nor for the same reason as before can B complain.

Did this problem ever really arise?
NEW YORK, August 21, 1880.

66

E. M. S.

To the Editor of the Albany Law Journal:
Your correspondent, Midsummer," in No. 8 of
current volume, puts a question which at first sight
appears to be a puzzler; but referring to his communi-
cation for a full statement of the case, it seems to me
that his figures as to amounts of mortgages, amount

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