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inception at the time defendant transferred it to F See Dowe v. Schutt, 2 Den. 6:21; Cameron v. Chappell, :24 Wend. 94. Judgment affirmed. Bayliss v. Cockroft et al., appellants. Opinion by Folger, C. J. [Decided June 8, 1880.]





cretion so to do. They do not show that it is always discreet and proper and conducive to justice to exercise the power. In Atkiuson v. Bayntun the facts were thought to be peculiar. In Patten v. Harris, 10 Wend. 623, at the time when a demurrer was adjudged frivolous, permission was given to make a special application for leave to plead. Even then the Special Term with great reluctance consented to give leave. Matters of practice, while in the first instance, in the absence of statute, they are in the discretion of the court, come after a while to be governed absolutely by the custom of the courts, and what is found in any case to have been held by authoritative decisions to be the custom of the courts becomes thus the way in which discretion must go. It is a general principle in the exercise of discretion for or against the withdrawal of a demurrer with leave to plead to the merits, that it is not to be done when there has been judgment upon the demurrer overruling it without leave to answer or with leave to answer not availed of by the demurrant. See Saxby v. Kirker, Sayer, 11; Seaman v. Haskins, 2 Johns. Cas. 284; Hildreth v. Harvey, 3 id. 301; Furman v. Haskin, 2 Cai. 369; Currie v. Henry, 3 Johns. 140. As to exception see Miller v. Heath, 7 Cow. 101. Order affirmed. Fisher v. Gould, appellant. Opinion by Folger, C. J. [Decided June 1, 1880.]



OBLIGATIONS. In an action upon a promissory note the defense of usury was set up. Defendaut claimed that the note was made by him for the accommodation of F., and was by F. transferred to plaintiff for the usurious cousideration, and F. gave testimony tending to establish these facts. Plaintiff introduced a written statement made by defendant, setting forth that the note was business paper, and that there was no defense to the same in law or in equity. Held, a sufficient conflict in evidence to forbid this court interfering with the finding of the referee that tbo note was a business note, especially where he was not asked to find otherwise. Prima facie the note was given for value by defendant and the burden was on him to prove the congenital defect alleged. (2) The note in question was with other notes presented to plaintiffs to discount and he discounted the lot at a discount of more than the legal rate of interest. Held, that prima facie the price paid was in part for each one of the notes in such ratio to the whole price paid as the apparent value of each noto bore to the apparent value of the whole, and if such proportionate price should bring the transaction within the provisions of the usury law the note would prima facie be void. But this presumption is capable of being rebutted by evidence that the paper presented was that of different persons of varying credit. (3) In this case the note, when offered for discount, was accompanied by a certificate of defendant that it was business paper and free from defenses. Held, that permitting plaintiff to testify to his belief in the truth of the certificate, and that he had no purpose or intent to use it to evade the statute of usury, was not error. While the reception of this kind of evidence is not to be encouraged, parties have been permitted to speak as to their mental operations in the doing of an act that is called in question where the intent with which it is done serves to characterize it. McKown v. Hunter, 30 N. Y. 625; Thurston v. Cornell, 38 id. 281; Bedell v. Chase, 34 id. 386. See, also, Dillon v. Anderson, 43 N. Y. 231; Fiedler v. Darrin, 50 id. 437. (4) A chattel mortgage from F. to defendant, if shown to be given to secure defendant against loss by reason of the making of the note, held, admissible, the mortgage constituting a consideration for the note and giving it

EXECUTOR - -ADMISSION OF ASSETS IN PLEA CONCLUDES ESTOPPEL – PRACTICE. --- Appellees filed a bill for themselves and other creditors against an executor and devisees, praying for an account of testator's personal estate, setting forth that he held tesa tator's noto for $12,000, which was due and unpaid; that testator's personal estate was insufficient to pay his debts in full; that the executor had paid some debts in full and left others unpaid; that testator left real estate, etc. The defendants, in their plea, set forth that the executor had in his hands assets sufficient to satisfy complainants' and all other claims known against testator's estate, when proved in a tribunal of competent jurisdiction, according to law, but that the executor disputes the said claim and denies the justice thereof; that the claimant has not sought to enforce the claim against executor and the assets by proper proceedings at law. Wherefore defendants plead the premises in bar and pray that complainants be required to enforce their claim by proper proceedings at law, etc. To this plea complainants filed a replication and proved their claim, and that by the accounts filed by the executor he claimed credit for moneys paid, etc., $27,014.75, and charged himself with assets, $31,794.6, showing a balance in his hands of $4,729.87. Held, that the complainants were entitled to a decree for the amount of their debt. Having put the plaintiff to the trouble and delay of an issue, the defendant cannot, after it is found against him, claim the right to file an answer; although, if the complainant desires a discovery which the plea sought to avoid, he may undoubtedly insist upon it. But that is the complainants' right, not the defendants'. Lord Hardwicke said: “ All pleas must suggest a fact; it must go to a hearing; and if the party does not prove that fact which is necessary to support the plea, the plaintiff is uot to lose the benefit of his discovery, but tho court may direct an examination on interrogatories in order to supply that.” Brownsword v. Edwards, 2 Ves. 247. This statement is adopted by Lord Redesdale and by Mr. Beames and all subsequent writers on equity pleading. Mitford's Pleadings (4th ed.), 302; Beames on Pleas in Equity, 318; Story's Eq. Plead., 697. If the plea is found to be false it would seem to be just and equitable that the case should stand as if the defendant had admitted the allegations of the plaintiff. Sir Thomas Plumer states tho matter thus: “Supposing a plea to be correct in form, but proved false, it seems to be conceived that the course of the hearing is to take it up just as if there was no answer. That is not correct. Upon a plea, found false, the plaintiff is entitled to a decree; and if a discovery is wanted, the defendant is ordered to be examined upon interrogatories." Wood v. Strickland, 2 Ves. & Beam. 158. Chancellor Walworth, in a case before him, where the defendant produced no evidence to establish the truth of his plea, said: “Where a plea in bar to the whole bill is put in, if the complainant takes issue thereon he admits the sufficiency of the plea, and leaves nothing in question but the truth thereof. If at the hearing the plea is found to be true the bill must be dismissed. But if the plea is untrue the complainaut will be entitled to a degree against the defendant in the same manner as if the several matters charged in

the bill had been confessed or admitted. If a dis- a partition and exchange, as to the interests of the covery is necessary to enable the complainant to obtain parties, are precisely the same. Sir Edward then the relief sought for by his bill, the defendant cannot notices tho decision of Lord Eldon in the case of Mcevade answering by putting in a plea which turns out Queen v. Farqubar, 11 Ves. 457, that a power to sell to be false. In such a case, after the plea is overruled simply does not authorize a partition. He then adds: as false, the complainant may have an order that the “Until the question shall receive further decision, it defendant be examined on interrogatories before a can scarcely be considered clear that a power to exmaster as to the several matters in relation to which a change will authorize a partition; " but he proceeds to discovery was sought by the bill." Dows v. McMichael, show that the decision in Abel v. Heathcote must have 2 Paige, 345. In the present case, the complainants been based on tho power to exchange, and not on any did not see fit to insist on a further discovery. Being additional words. After referring to the case of Atty.entitled to a decree pro confesso as to the principal Gen. v. Hamilton, 1 Madd. 214, which was not decisivo charges of their bill, and the executor having admitted of the point, Sugden closes his discussion by saying: sufficient assets to pay the debts of the estate they “But as Lord Rosslyn has observed, this objection were content to take a decree against him for the may be obviated where there is a power of sale. The amount of the debt. The executor's admission, as we undivided part of the estate may be sold, the trustees have before said, was a good ground for charging him may receive the money and then lay it out in the purwith the liability, though he could not urge it as evi- chase of the divided part, and although the sale is dence in support of his plea. Aud as an admission of merely fictitious in order to effect the partition, it assets renders the executor personally liable, a decree should seem that the transaction cannot be imagainst him was proper. The usual decree on a cred- peached.” 2 Sugden on Powers, 479-482 (7th ed.), 1845. itor's bill is for an account, but as said by Vice-See, also, Doe v. Spencer, 2 Exch. 752; Bradshaw v. Chancellor Wigram in a similar case, “the reason for Fane, 2 Jurist (N. S.), 247. In a recent case, however, and the principle of the usual form of decree have no In re Frith and Osborne, L. R., 3 Ch. Div. 618, decided application where assets are admitted, for the executor in 1876, by Sir George Jessell, master of the rolls, it thereby makes himself liable to the payment of the was distinctly adjudged, after a masterly review of all debt. In such a case, the other creditors cannot be the previous authorities, that a power to sell and exprejudiced by a decree for the payment of the plaint-change does include the power to make partition. In iff's debt; and the object of the special form of the delivering his judgment, the master of the rolls condecree in a creditor's suit fails. * * I am satisfied cludes as follows: “This is the state of the authorities. that in this case there ought to be a decree for imme- Lord St. Leonards says that it wants another decision diate payment." Wingate v. Field, 2 Hare, 211, 212; to make it quite clear. I am willing to give the decisStory's Eq. Jur., $ 5482. Decree of Dist. Columbia ion (supposing the doubt is not taken away by the Sup. Ct. affirmed. Kennedy, appellant, v. Crasswell et decision of the Court of Exchequer followed by al. Opinion by Bradley, J.

the vice-chancellor Kindersly) that the passage in the

Touchstone (declaring that joint tenants, tenants in TRUST -- NAKED POWER TO SELL OR MAKE EXCHANGE

common and coparceners, cannot exchange the lands IMPLIES POWER TO MAKE PARTITION. — By the pro

they do so hold, one with another, before they make visions of certain instruments relating to specified real

partition] is not good law, and that you can have such estate, a trustee named therein was in one case given

an exchange, and if you can have such an exchange, power to sell and exchange, superintend, possess,

why could not the power authorize the exchange of an manage and control for the benefit of all concerned;

undivided moiety in Whiteacre for another undivided in the other, full power to dispose of all or any portion moiety in Blackacre? I decide that it does. We have and invest the proceeds any manner he might think conflicting opinions between what the judges said in proper for the benefit of those holding the beneficiary

Doe v. Spencer, and what the vice-chancellor intimated interest. IIeld, that under either power the trustee

his opinion to be. It is not necessary for me to decide had authority to make partition. The guestion whether

that question. I must say, if I had to decide it, I a naked power to sell or exchange implies a power to

should be inclined to follow the opinion of the vice. make partition is discussed by Sir Edward Sugden in

chancellor instead of the Court of Exchequer, for if it his work on Powers. He says: “It is clear that a

can be done as between two, I do not see why it could power to make partition of an estate will not author

not be done as between more than two, but I have not ize a sale or exchange of it; but it has frequently been

to decide that question now." Decree of U. S. Cir. a question amongst conveyancers whether the usual

Ct., S. D. Mississippi, affirmed. Phelps et al., plaintiffs power of sale and exchange does not authorize a par

in error, v. Shrader. Opinion by Bradley, J. tition, and several partitions have been made by force of such powers, under the direction of men of emi. nence. This point underwent considerable discussion

VIRGINIA SUPREME COURT OF APPEALS on the title which afterward led to the case of Abel v.

REPORTS.* Heathcote, 4 Bro. C. C. 278; 2 Ves. Jr. 98. Mr. Fearne thought the power did authorize a partition, on the ground that a partition was in effect an ex- CONSTITUTIONAL LAW-STATUTE ABOLISHING PENchange. Sugden adds, that the lords commissioners, ALTY FOR USURY AFFECTS EXISTING DEFENSES AND Eyre, Ashurst and Wilson, before whom the case was IS VALID. - Though the statute of usury, at the time first heard, all thought that the power was to receive a a contract was made, declares the contract to be null liberal construction, as its object was to meliorate the and void, if at the time of the decree in the case the estate. Eyre thought, that upon the word “sell," the statute has been amended and only avoids the contract trustees should have a power of making partition, be- for the interest, the decree should be for the princause it was in effect to take quite a new estate. cipal loaned, with interest from the date of the decree. Ashurst and Wilson thought, that whatever power See Town of Danville v. Pace, 25 Gratt. 1, and cases might be derived from the word "sell," the other cited; and also the leading case of Curtis v. Leavitt, words of the power, “convey for an equivalent” 15 N. Y. 229. Paige, J., there says: “The defense of (which were also used), were sufficient. But they usury is in the nature of a penalty or forfeiture, and made no decision. Upon the cause coming before may at any time be taken away by the Legislature in Lord Rosslyn, he determined that the power was well respect to previous as well as subsequent contracts, executed, and founded his opinion upon its being in effect an exchange, as the consequences and effects of

* To appear in 31 G rattan's Reports.


without trenching upon any vested right. A proposi- such a partial dedication is simply void and will not tion that a party can have a vested right in enforcing operate in law as a dedication to the wholo public. a penalty or forfeiture, against which it is the office of There may be a dedication of a way to the public for a a court of equity to relieve, is a legal solecism. Stat- limited use, but there cannot be a dedication to a limutes of usury are highly penal in their character, and ited part of the public. Poole v. Huskinson, 11 M. &W. the defense of usury has always been regarded as an 827. There does not appear any dedication, partial or unconscientious defense, and has never received the otherwise, intended. The language of the deed, fairly favor either of courts of law or equity. No penalty construed, manifests a purpose merely to adjust and can be enforced after the repeal of the law imposing fix with certainty the boundary between the two lots, it, unless saved by express words in the repealing act. and establish a common right of way to be annexed as The repealing statute obliterates the statute repealed a permanent easement to the lots, and not for the acas completely as if it had not been passed, and it must commodation of the public. Talbott v. Richmond & be considered as a law that never existed, except for Danville Railroad Co. Opinion by Burks, J. the purpose of those actions which were commenced, SALE - OF PERSONAL PROPERTY - TITLE OF INNOprosecuted and concluded while it was an existing

CENT VENDEE FROM FRAUDULENT PURCHASER GOOD law.” Selden, J., said: “Usury being a mere statu

DELIVERY.- Where a vendee obtains possession of a tory defense, not founded upon any common-law chattel with the intention by the vendor to transfer right, either legal or equitable, it was clearly within both the property and possession, although the vendee the power of the Legislature to take it away." Mosby has committed a false and fraudulent misrepresentav. St. Louis Mutual Insurance Co. Opinion by Chris- tion in order to affect the contract and obtain the postian, J.

session, the property vests in the vendee until the HIGHWAY – DEDICATION TO

vendor has done some act to disaffirm the transaction.


And the legal consequence is, that if before the disafPUBLIC. - C. and G.

firmance the fraudulent vendee has transferred either owning lots in Richmond, each bounded east by Seventeenth street, and separated by what was at one

the whole or a partial interest in the chattel to an intime the bed of Shockoe creek, but from which the

nocent transferee, the title of such transferee is good water of the creek had been diverted, enter into a

against the vendor. See Benjamin on Sales, $ 4.33; deed by which they fix the boundaries of their lots re

Williams v. Given, 6 Gratt. 268; Wickham v. Martin, spectively, and they covenant and agree that there

13 id. 4.27; Rowley v. Bigelow, 12 Pick. 307; Hall v. shall be between their lots a street thirty feet wide ex

Hinks, 21 Md. 406. on the sale of a chattel, to be tending from Seventeenth street westwardly to the paid for on delivery, if possession is delivered without eastern boundary of their lots, and that said street

the payment, and before the vendor claims the chattel shall be forever kept open as a highway and common

it is sold by the vendee to an innocent purchaser and for the use of the persons who may be the owners of

paid for, the vendor cannot recover the chattel from the lots or land bounded on either side of said street.

the innocent purchaser. But if there has not been a The street thus provided for did not extend west to

contract of sale, but only a transfer of possession, to any street or alley. Held, looking to the whole deed

become a contract of sale when payment is made, the and the surrounding circumstances, there was not a

person in possession has no title to the chattel, and dedication of the street to the public generally, but

can therefore convey none to an innocent purchaser, only to the owners of the lots or parts of the lots

and the owner may recover the chattel. See as to spoken of in the deed; and it is not, therefore, a street

subject of sales on condition: Wait v. Green, 36 N. Y. over which the city authorities have control, and can

556; Hoffman v. Noble, 6 Metc. 68; Western Transp.

Co. v. Marshall, 37 Barb. 509. Old Dominion Steamauthorize a railroad company to lay its track along it. Intent is the vital principle of dedication. In a case

ship Co. v. Burckhardt. Opinion by Christian, J. where acts and declarations are relied upon to show such intent, to be effectual, they must be unmistakable in their purpose and decisive in their character;

CALIFORNIA SUPREME COURT ABSTRACT. and in every case it must be unequivocally and satisfactorily proved. Harris' case, 20 Gratt. 833; Holdane


FOR TORT NOT DIVISIBLE. v. Trustees of Cold Spring, 21 N. Y. 474; Washburn on

- McCool sued Mahoney Easm., 133, 134; 2 Dill. on Mun. Corp., $ 499. To ascer

and Small jointly for malicious arrest and prosecution. tain the intent of the parties is said to be the funda

The defendants answered separately. The cause was mental rule in the construction of agreements (Canal

tried with a jury, and this verdict was returned: Co. v. Hill, 15 Wall. 91); and in such construction

“We, the jury in the above entitled action, find for courts look to the language employed, the subject

plaiutiff against Mahoney $3,000, and against Small matter and the surrounding circumstances. They are

$500.” Judgment was thereupon rendered that plaintnever shut out from the same light which the parties

iff recover from Mahoney $3,000, of Small $500, and of enjoyed when the contract was executed, and in that

Mahoney and Small $282.75 costs of suit. Held, that view they are entitled to place themselves in the same

the judgment was erroneous. The action being for a situation which the parties who made the contract

wrong in which both defendants joined, the damages occupied, so to view the circumstances as they

could not be severed. Beal v. Finch, 11 N. Y. 128; viewed them, and so to judge of the meaning of the

Halsey v. Woodruf, 9 Pick. 555; O'Shea v. Kirker, 8 words and of the correct application of the language to

Abb. Pr. 69; Bohun v. Taylor, 6 Cow. 313; Minor v. the things described. Nash v. Towne, 5 Wall. 689, 699.

Mechanics' Bank, 1 Peters, 74; Layman v. Hendrix, 1 See, also, Maryland v. Railroad Co., 22 id. 105; Moran

Ala. 212; Hardy v. Thomas, 23 Miss. 544; Riley v. Mcv. Prather, 23 id. 492. The term “highway” is a gen. Gee, 1 A. K. Marsh, 432; Salmons v. Smith, i Saund. eric name for all kinds of public ways.

207, note 23. McCool v. Mahoney. Opinion by Ross, J.

- ways common to all the people of the State having occasion to pass

[Decided April 6, 1880.] over them. Holt, C. J., Queen v. Saintiff, 6 Mod. 255, RAILROADS CONSTRUCTION OF STATUTE RELATING 258: To constitute a highway, it must be one over TO FENCES - OWNER OF LEASED ROAD LIABLE FOR which all the people of the State have a common and CATTLE KILLED BY FAILURE TO FEXCE. --- The statute equal right to travel, and which they have a common, of California provides thus in reference to railroad or at least a general interest to keep unobstructed. fences: “ It shall be the duty of the railroad company People v. Jackson, 7 Mich. 433. Here the attempted to make and maintain a good and sufficient fence on dedication was to a limited portion of the public, and either or both sides of their property; and in case any


company do not make and maintain such fence, il harbor commissioners of that State, “no contract or their engine or cars shall kill, maim or destroy any obligation entered into by the commissioners, which cattle or other domestic animals, when they stray upon creates a liability or authorizes the payment of money, their line of road where it passes through or alongside | is valid and of binding force, unless the same is signed of the property of the owners thereof, they shall pay by all the conmissioners and countersigned by the to the owner or owners of such cattle or other domes- secretary of the board.” Plaintiffs entered into a contic animals a fair market price for the same, unless the tract with the board, the entire board concurring, and owner or owners of the animals so killed, maimed or performed it on their part. The board refused the destroyed shall be negligent or at fault." Held, that a payment agreed upon, on the ground that plaintiffs' company owning a railroad is not exempted from lia- claim was an equitable one only. Tho Legislature of bility for the destruction of cattle by the fact that its the State passed a special act authorizing tho board to road is leased. A strictly literal interpretation of the audit and pay such amount as plaintiffs should be statute might exempt both the lessor and the lessee equitably entitled to for their work and materials furfrom liability, as the statuto does not in terms provide nished under the contract. Held, that the board for a case in which one company owns and another could, by a majority vote, audit and pay plaintiffs' operates a railroad. The duty, however, of fencing claim, and the concurrence of all three of the commisdevolves upon the company owning tho road; and if sioners was not necessary for that purpose. The auit leases the road in an unfenced condition to be ope-| thority exercised by the board in this case was given rated by another company, it is liable within the spirit, to them by a special act, and it is nowhere provided in if not within the letter, of the law to the same extent said act that the concurrence of all three of the memas it would be if its instead of its lessee's engine and

bers of the board shall be necessary for the proper cars had run over the plaintiff's cattle. As was said exercise of such authority. In People v. Nichols, 52 N. in Tracy v. Troy & Boston R. Co., 38 N. Y. 437, in Y. 478, the common-law principle on this subject is reference to a similar statute: “The passage of this stated. In that case the court had under consideraact being induced by public considerations, and its tion an act of the Legislature appropriating $20,000, or purpose being to protect the travelling public and the so much thereof as might be necessary, for the purchase owners of domestic animals along tho line of their of certain relics of George Washington, to be paid road, it should receive a liberal construction to effectu- only upon the certificate of three persons named ate the benign purpose of its framers. A rigid and therein. Held, that a certificate signed by two of the literal reading would in many cases defeat the very persons named, stating that the third met with them object of the statute, and would exemplify the maxim but refused to join in the certificate, was sufficient. that •the letter killeth, while the spirit keepeth alive. The court say that Grindley v. Barker, 1 Bos. & Pul. Every statute ought to be expounded, uot according 229, is in point as to the general rule. Eyre, C. J., to the letter, but according to the meaning. Qui hæret there said: “I think it is now pretty well established in litera haret in cortice. Dwar. on Stat. 695. And that where a number of persons are intrusted with the intention is to govern, although such construction powers not of mere private confidence, but in some may not in all respects agree with the letter of the respects of a general nature, and all of them are regustatute. Plowd. 205. The reason and object of a larly assembled, the majority will conclude the minorstatute are a clue to its meaning (Dwar. on Stat, 695), ity, and their act will be the act of the whole.” The and the spirit of the law and the intention of its cases hold that arbitrators, to determine controversies makers are diligently to be sought after, and the letter between individuals, are engaged in matters of private must bend to these. 6 Bac. Abr. 384 (6th ed.), London, concern.

Green v. Miller, 6 Johns. 39. The same 1807; Kent's Com. 465; Smith's Com. on Stat., $$ 709, principle was recognized by the Court of King's Bench 710. In Illinois Cent. R. Co. v. Kanouse, 39 Ill. 272, in the case of The King v. Beeston, 3 T. R. 592, which which was an action against the lessees of the road, arose under the statute of George I, that enables the tho court says: “In the case before us, admitting it churchwardens and overseers to contract for the prowas the duty of the first party to the agreement (the viding for the poor. It was held that it was not necescompany owning the road) to fence this road, that they sary that all the churchwardens and overseers should would be liable for this injury had they been sued, concur, as the contract of the majority would bind thero can be no question.” And in Toledo, etc., R.

the rest. When appraisers act between individuals Co. v. Rumbold, 40 111. 113, the same court said, in an and the State, it is a matter of “public concern, action against the lessors of the same road: “ It was a majority act as the whole when all have met.

E. the duty of appellants to have fenced the road, and parte Rogers, 7 Cow. 526. Tallcott v. Blanding. Opinpublic safety demands that they should be held liable ion by Morrison, C. J. for all damages resulting from the neglect to fence it.[Decided March 10, 1880.] And the same policy would require that the Illinois Central (the lessee) should be held responsible for pre- MARYLAND COURT OF APPEALS REsuming to use the road of another company fenceless

PORTS.* and unprotected. Either company would be liable for the injury. Redfield, in a note to Parker v. Rensselaer

CORPORATION – WHEN LIABLE TO OFFICER OF, FOR & Sar. R. Co., 16 Barb. 315, in which it was held that

SERVICES. — To entitle a president or director of a corthe defendant, being the lessee of the road upon which the injury was committed, was not liable under the poration to recover for services rendered his corporastatute, says the only question in regard to the sound-tion, he must prove an express contract of employment,

if the services for which he claims compensation are ness of the decision is, whether both companies were not chargeable with negligence — the one for suffering within the line and scope of his duties as president or

director. But if a president or director of a corporathe road to be used, and the other for using it in that condition. 1 Redf, on Railw. 618 (5th ed.). Fontain v.

tion renders service to his corporation which are not Southern Pacific Railroad Co. Opinion by Sharp

within the scope of, and are not required of him by stein, J.

his duties as president or director, but are such as are [Decided May 7, 1880.]

properly to be performed by an agent, broker or attor

ney, he may recover compensation for such services STATUTORY CONSTRUCTION --- SPECIAL ACT CONTROLL- upon an implied promise. See Angell & A. on ('orp., ING GENERAL — MAJORITY OF OFFICIAL BOARD ACT IN $ 317; Chandler v. Monmouth Bank, 1 Green (N. J.), ABSENCE OF DIRECTION OTHERWISE. – By a provision of the general statutes of California relative to the

· Appearing in 49 Maryland Reports.

" and


260; Henry v. Rutland & Burlington R. Co., 27 Vt. 435; give the particular shares which the testator had in his Hall v. Vermont & Mass. R. Co., 28 id. 408; New possession at the time, the legacy must be construed York & New Haven R. Co. v. Ketchum, 27 Conn. 181; as general, and not specific. According, then, to well Evans v. City of Trenton, 4 Zabr. 769. Agency for settled rules of construction, in order to constitute a a corporation is not required to be shown by a resolu-specific legacy, it is necessary for tho testator to distion of the board of directors or other written evi-tinguish or identify the stock or thing given by saying dence, but it may be inferred from facts and circum-stock now in my possession, or now standing in my stances. Union Bank v. Ridgely, 1 H. & G. 326; 1 Md. name, or some other equivalent expression, marking Chan. Dec. 393; Elysville Man. Co. v. Okisko Co., 5 the corpus of the stock bequeathed, and showing tho Md. 159; N. C. Railway Co. v. Bastian, 15 id. 501; testator meant that identical stock, and no other Bank of United States v. Daudridge, 12 Wheat. 69. should pass to the legatee. See upon the subject: Santa Clara Mining Association of Baltimore v. Mere- Purse v. Snaplin, 1 Atkyns, 414; Bronsdon v. Winter, dith. Opiuion by Grason, J.

Ambler, 57; Avelyn v. Ward, 1 Vesey, Sr., 4:4; Sibley HUSBAND AND WIFE — CONVEYANCE OF

v. Perry, 7 Vesey, Jr., 522; Webster v. Hale, 8 id. 410;


Gillaume v. Adderly, 15 id. 384; Innes v. Johnson, 4 id. law of England which is the law of this State, except

568. Dryden v. Owings. Opinion by Robinson, J where it has been changed or modified by statute, a conveyance to husband and wife does not constitute them joint tenants, nor are they tenants in common.

NEW BOOKS AND NEW EDITIONS. They are in the contemplation of the common law but ono person, and hence they take, not by moieties, but

GODDARD'S LAW OF EASEMENTS. the entirety. They are each seized of the entirety and

A Treatise on the Law of Easements. By John Leybourn the survivor takes the whole. 2 Black. Com. 182; Litt.

Goddard, Esq., of the Middle Temple, Barrister-at-Law. Tenures, $ 291; Coke Litt. 187; Cruise's Dig. 492; 1

Much enlarged from the second English edition of 1877, Trest. Est. 131, 132; 4 Kent's Com. 362; 1 Washb. Real by Edmund H. Bennett, LL.D., Professor of Law in the Prop. 672; Dias v. Glover, 1 Hoff. Ch. 71; Stuckey v. Boston University. Boston: Houghton, Millin & ComKeefe's Ex'r, 26 Penn. St. 397. Similar statutes to our pany, 1880. Pp. lviii, 542 own exist in a large number of the States of the

R. GODDARD'S original treatise has received Union, converting joint tenancies at the common law

high encomiums from the English bench. It into tenancies in common, except where in the instru

divides the subject into five branches, namely: the ment it is otherwise expressly declared, and the invariable construction has been that they do not apply to

nature of easements; the modes of acquiring them; or affect the peculiar estate taken by husband and

the mode and extent of enjoyment; the disturbance wife, under a deed to them jointly. Rogers v. Ben

and its remedy; how they may be lost and extinson, 5 Johns. Ch. 431; Jackson v. Stevens, 16 id. 110; guished. Each is treated generally, and subsequently, Shaw v. Hearsey, 5 Mass. 5:21; Brownsn v. Hull, 16

specifically, as applicable to the different easements of Vt. 309; Thornton v. Thornton, 3 Rand. 179; Diver v.

air, light, support, water-courses, and ways. Mr. Ben

nett's additions have been very important, as the Diver, 56 Peun. St. 106; 4 Kent's Com. 362; 1 Bish.

American doctrine as to light and air differs widely Mar. W., $ 615; Bates v. Seely, 46 Pem. St. 248; Far.

from the English. He has added about 100 pages, and & Mec. Bk. of Rochester v. Gregory, 49 Barb. 155. Mc

cited some 500 new cases. His high reputation is a Curdy v. Canning, 01 Penn. St. 39. Marburg et al. v. Cole. Opinion by Alvey, J.

guaranty that this labor has been conscientiously and

intelligently performed, and from our own examinaWILL-CONSTRUCTION


tion we find that the ground is well covered. The Courts lean against construing a legacy to be specific,

work stands as the latest on the subject in either and have gone so far as to say that in no case ought a

England or America, and this fact alone must recomwill be so construed uniess the language imperatively mend it to the practical lawyer. It has moreover the requires it. In case of a bequest generally of stocks, merit of being a critical and excursive treatise, and or of a sum of money in stocks without further ex

not a mere digest. The subject is of prime practical planation and without more particularly referring to importance, and beside is one of the most interesting or marking the corpus of the identical stock, the fact

to the scholar. The English prescription act is added, that the testator possessed such stock at the time of and there are an ample table of contents, table of cases the execution of the will is not sufficient to justify cited, and general index. The volume elegantly the court in declaring the legacy to be specific. In or- printed on fine paper, and well bound, der to constitute a specific legacy it is necessary for the testator to identify the property bequeathed. A

XVII AMERICAN DECISIONS. testator by his last will and testament bequeathed as follows: “I give and bequeath to Virginia M. Owings, This volume contains selections from 5, 6 T. B. Mon. eight thousand dollars in State of Maryland bonds."

6 Martin, N. S., 5 Greenleaf, 1 Bland's Chancery, 6 Among the assets of the testator were found eight Pickering, 4 New Hampshire, 4 Halsted, 7 Cowen, 1 thousand dollars in State of Missouri bonds, and these Devereux's Law, 3 Ohio, 17 Sergeant & Rawlu, 4 Mcwere the only State of Missouri bonds owned by testa- Cord, 1 Martin and Yerger. There are important notes tor. Held, not a specific legacy. The general rule to on the following topics: conflict of laws relating to be deduced from the cases is that in a bequest geuer- age of majority; effect of executors' covenants in ally of stocks, or a sum of money in stocks, without their own conveyances; waiving tort; compensation further explanation, and without more particularly of trustees; absolute deed and agreement to recouvey; referring to or making the corpus of the identical when apparent principal may show himself to be a stock, the fact that the testator possessed such stock surety; exemption from seizure under distress; reat the time of the execution of the will is not suficient citals in tax deeds as evidence; acknowledging receipt to justify the court in declaring the legacy to be spe- of consideration in deed; reasonable time, when a quescific. Thus in Robinson v. Addison, 2 Beav. 515, where tion of law; what are fixtures; when conviction of the testator had fifteen and a half of Leeds and Liver- Felony bars other prosecutions. The series is now being pool Canal shares, and bequeathed five and a half issued rapidly, and grows in importance with every shares in the Leeds and Liverpool Canalto A, and five volume. Its completion is now assured, and we to B, and five to C, it was held that inasmuch as there do not see how any lawyer can well afford to do withwas no reference in the will showing an intention to out it.



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