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then growing upon it, which, when matured The answer is, they do, undoubtedly. No and gathered, he sold, and of the proceeds one disputes that proposition; on the conloaned his wife $300, with which she pur- | trary, it is the very proposition we affirm. chased other land, taking the deed in her own All such property does belong to him, absoname. The court held that the land so pur- | lutely; and with it he may buy and furnish chased was not exempt from the husband's fine houses, have his carriage and horses and debts. It was urged, in behalf of defendant, supply his table with the costliest luxuries. that a homestead having been secured to the But when he refuses to pay his butcher, the debtor by law, all income derived from its latter might well exclaim : user is merely an incident which follows the
“Upon what meat doth this, our Cæsar, feed, principal and belongs absolutely to him, and
That he has grown so great? may be used either in improving the property,
As in respect to land, so as to the personal exor in other investments; and that, unless this emption. Suppose B has had assigned to him, be so, the law rather discourages than invites
as a part thereof, stock, cattle or brood mares, improvements and enterprise, by cutting off it is again asked, do not the increase belong to all inducement to industry, the legitimate re- the owner of the dam? Undoubtedly. Partus ward of which, when in excess of the ex- sequitur ventrem, and he may increase the emption, would be seized and sold by the stock, by continued production and reproduccreditor. BYNUM, J., who delivered the tion, to an unlimited extent and value, and it opinion of the court, said: “ There is some would still be all his, absolutely. But the misconception as to the nature of the home- question is, what sanctity distinguishes and stead law. The homestead is not the creature protects this new wealth, which is not equally of any new estate, vesting in the owner new vouchsafed to the same kind of property berights of property. His dominion and power longing to other men? Again, suppose A, of disposition over it are precisely the same as having accumulated out of the homestead, before the assignment of homestead. The other land of the value of $10,000, dies, leavlaw is aimed at the creditor only, and it is ing a child. Under the law of 1876–77, this upon him that all the restrictions are imposed, land would descend as homestead, and all the and the extent of these restrictions is the additions made to it by the heir would also be measure of the privilege secured to the debtor. homestead, and so ad infinitum, exempt from And these restrictions imposed on the creditor the debts of all the proprietors. If the conare, that in seeking satisfaction of his debt struction of the law should be, that all acquihe shall leave to the debtor, untouched, $500 sitions of property are exempt from execution, of his personal, and $1,000 of his real estate. it would be the interest of all men at once to With this limitation upon the rights of the take the benefit of the homestead, as well the creditor it is manifest that all the obligations rich as the poor, for thereby all income derived of the debtor to pay his debts, and all his from it could be capitalized and recapitalized rights to acquire and dispose of property, are from that one nucleus to the building up of the same after as before the assignment of colossal fortunes, in defiance of debts, past or homestead. The homestead has been called future. And what a door would be open to a determinable fee, but as we have seen that frauds and perjuries, as each owner of a homeno new estate has been conferred upon the stead would be tempted to allege and estabowner, and no limitation upon his old estate lish that all his estate, no difference how acimposed, it is obvious that it would be more quired, was but the increasement of his own or correct to say that there is conferred upon the homestead of some remote ancestor.” him a determinable exemption from payment of his debts in respect to the particular property allotted to him.
A NEw law periodical comes to us from the Pacific coast.
It is called the California Legal Record, and is issued weekly has had assigned to him his homestead and by Messrs. Scofield & Palmer, San Francisco. In appear. personal exemption, and by good manage
ance it resembles very closely the Pacific Coast Law Jourment, he has acquired other lands of the value
IN FRANCE, not long ago, a man was tried for murder. of $5,000. It is asked, why should not these He was found guilty and condemned, and in the usual acquisitions belong to him, as the natural
course the jurors were applied to to sign the petition for a
commutation of his sentence. One of them did so with the fruit and product of the exempted property? postscript, “On condition that he hangs himself."
OF ELECTION WITH REGARD TO unconscientious in the devisee to claim a right DOWER. II.
to retain his own property, and take the ben-In the case put in our former remarks on
efit of the devise as well. If this doctrine be this subject, it is said that the widow should applied to the case of the widow, as being an have her dower out of Whiteacre, because it analogous one, there is no reason apparent is not inconsistent with the intention of the why it should not be applied, with all its chartestator as to the disposition of that property | acteristics, and to the same effect. Though -for his intention is to give only what he
she may say,
6. You can not deprive me of my can give, viz. : an estate subject to its inci-dower,”' yet, by accepting the devise she condents, one of which is dower.
summates the hitherto impossible act of depriWe have already, on other grounds, criti
vation commenced by the will; and, as in the cised the meaning of the words of the will,
case of the stranger, she should be compelled which are said to show the intention of the to carry out the obligation imposed upon her testator to be to assign dower, in addition to
as devisee by force of the doctrine already the widow's devise. And here it is also sub- alluded :0. The testator, as it were, makes an mitted, that if the adoption of the meaning of
offer to her of so much, in exchange for which the words themselves, as the rule by which
she is to release her interest for the benefit of the disposition of the property is to be ef- his nominee, in all of his property otherwise fected, do not outrage any rule of law, such
subject to dower. In the case of a total meaning should be given effect to, instead of its stranger he may accept the offer or not; but being modified by the application of a rule of he can not accept both benefits in their entirety. construction, or of law, of which the most In order to do this, he must remove the onus that can be said in its favor is that it is not which is cast on him, to show an intention on inconsistent with the intention of the testator. the part of the testator to make a voluntary
We shall test this proposition by means of gift to him of the subject of the devise. But the touchstone of the doctrine of election, as
the rule is reversed in the case of the widow; well as by a comparison of the meaning of the for there is a presumption in her favor, and the words themselves, with that 'ascribed to them onus is here cast on the contestant, to show by the law. To say that everything devised that a voluntary gift was not intended. Thus to the widow is a 6 voluntary gift,” because
the principle of election is outraged ty the law has already given her her dower, and her taking, in additi' n to her devise, dowshe does not want the testator's expression in
er in those lands which were attempted her favor, is to say that the doctrine of elec
to be released from that burden, in contion never could apply to dower. To say that
sideration of the devise. It is, in effect, the testator can not devise land, except sub
the case of the grantor or relessor taking the ject to dower, may be true enough when
consideration for the release, and at the same stated in the abstract; because he would be
time claiming to retain the subject of it." No devising an interest therein which does not be
reason is given-no satisfactory reason, it is long to him. But it is equally true that he submitted, can be given--for the variation of can not devise the property of a stranger, in
the rule in its application to the case of the which he has no interest whatever himself,
widow. There is none attempted to be based unless, indeed, he give that stranger some
upon the peculiar relationship of the parties; thing in lieu thereof. And in the latter case,
and if not, and there be one at all, it must be the doctrine of election, which is founded one that will apply as well to the case of a toupon intention, is applied, and the testator is tal stranger. Otherwise, we must expect to understood to have intended the devise to be find the doctrine of election modified in its evin lieu of that which he intends to take away.
ery application. The devisee is put under an obligation to fulfil If the presumption of a voluntary gift is the work commenced by the will, by convey
to arise in one of these cases and not in the ing away his own property to the nominee of other, reason demands that it be in that of the the testator, if he would accept the benefit to stranger, whose property the testator has no be derived from the will. For the doctrine of shadow of right to dispose of, rather than in election is much more an argument of con- that of the widow, where the property he afscience than anything else; and it would be fects to devise is his own, subject to a cer
tain interest only in favour of the widow. construction, which he probably never heard
But, assuming that the intention of the tes- of—and that too, when, in our effort to ascertator is that expressed in the enunciation, let us tain bis unexpressed intention, we deprive his pursue the argument on which it is founded, expressed intention of one-third of its meanand if it lead to consequences which are ab- ing!
E. D. A. surd, the proposition must be abandoned. On this assumption the words used by the testator are inconsistent with his alleged in
HABEAS CORPUS-JUDGMENT ENTERED tention. If he had known, and, kňowing, had
BY DEFAULT AGAINST A DEFENDANT
NOT A DEBTOR. intended the devise to be a voluntary gift, in addition to what the law would give her in
IN RE GORMAN. event, and his intention was that she should have all of Blackacre and one-third of Supreme Judicial Court of Massachusetts- November Whiteacre, he would have sufficiently and
Term, 1877. intelligibly expressed himself by saying, “I
Hon. HORACE GRAY, Chief Justice.
JAMES D. COLT, devise to my wife two-thirds of Blackacre,
MARCUS MORTON, knowing,” to follow the train of thought at
WILLIAM C. ENDICOTT,
Associate Justices. tributed to him by the law, so that the law
AUGUSTUS L. SOULE,
OTIS P. LORD, will first allot to her one-third of Whiteacre and the other third of Blackacre.” 1. JUDGMENT-VALID TILL PROPERLY REVERSED. To have used these, or equivalent words
Where the court rendering a judgment had jurisdicwould have been quite consistent, and the
tion, the regularity of its proceedings will not be in
quired into collaterally, and its judgment stands good only mode of being consistent, with his till reversed or annulled by a proper course of proassumed intention that she should have all his
ceedings for the purpose. land, except two-thirds of Whiteacre. From
2. HABEAS CORPUS-IDENTITY OF DEBTOR.-A de
fendant upon whom process has been properly served, this it follows that two very different forms of and who has been defaulted and arrested on a valid phraseology express, on their faces, exactly execution, can not be allowed to show, at the hearing
on a writ of habeas corpus, that he is not the true dethe same meaning, viz: 6 I devise Blackacre
fendant, whose name he bears. to my wife, and Whiteacre to my son”; and “I devise Blackacre and one-third of White
On or about April 9, 1875, one F. H. McCaffrey
brought an action of replevin against Michael Mcacre for life to my wife in lieu of dower, and
Carthy, giving a replevin bond, signed by Mctwo-thirds of Whiteacre to my son. If,
Caffrey as principal, and Merrick S. Creagh, Henhowever, this be not true, and it be said that ry Pazolt and W. P. Gorman as sureties. The rethe two forms of expression are so different as to
plevin suit not having been entered, McCarthy convey different meanings, then, when the tes
brought suit on the bond against Merrick S.
Creagh and W. P. Gorman, and the action was tator departs from the latter form and uses the
entered at the January term of the Superior Court former one, it is doing no violence to reason, for Suffolk county, A. D. 1876. At the same term to say that he thereby rebuts the presumption and on March 30, 1876, judgment was entered that his meaning is to be found in the aban
against both defendants, and May 12, 1876, execudoned form of words. If it be answered that
tion issued on said judgment against Merrick S.,
Creagh and W. P. Gorman. On June 23, 1876, he is understood, by the first form of words, this execution was returned to court, and was into mean what the second form imports, in re- dorsed with the words - returned and cancelled" ply, we say, that if he intended to convey the
only; and on the same day the attorneys for said meaning ascribed to him, is it not fair to pre
McCarthy filed a written statement and motion,
representing that by a mistake of the officer, persume that he would have expressed himself in sonal service had been made upon one W. P. Gorthe terms of the form of words which are al- man, who was not the true defendant, and that leged to contain his meaning; and, if he have
personal service had not been made upon the true expressed himself at all, is it not also fair to
defendant W. P. Gorman; adding the words “oth
erwise known as William Gorman;" praying that presume that he has fully expressed himself?
the judgment be vacated, and for an order of noTo answer in the negative is to assert that it tice on W. P. Gorman. Whereupon said judgment is not probable only, but in fact only reason
was stricken off, and an order of notice issued to able that he should express part of his inten
W. P. Gorman to appear and answer to said suit
at the October term, 1876, which notice, by the dition on the face of his will, and leave us to
rection of the attorneys for said McCarthy, was find out the remainder, by means of rules of served upon William Gorman, the petitioner, who
informed the officer that he was not the defend- The case was reserved for the consideration of ant, W. P. Gorman. The officer returned that, by the full court. direction of the plaintiff's attorney, he had served SOULE, J., delivered the opinion of the court. the notice on the petitioner, William Gorman. The petitioner was served with notice to appear The original summons in the action was not served and defend the action in the Superior Court, on the petitioner. On December 4, 1876, judg- founded on the replevin bond. The allegation in ment was entered by default in the action against the declaration was that the defendants executed both defendants, the petitioner, William Gorman, and delivered the bond, and that there had been not appearing; and on December 6, 1876, execu- breach of the condition. If the petitioner had tion issued on said judgment against both defend- seen fit to do so, he could have appeared in that ants, said W. P. Gorman being described as “oth- suit, denied the allegations in the declaration, and erwise known as William Gorman,” which execu- tried the issue whether he executed the bond or tion was afterwards returned in no part satis- not, as well as the question of the breach of the fied.
condition. He elected not to do so, and ma de deOn March 9, 1877, said McCarthy commenced an fault. This was an admission of the truth of the action against “ William P. Gorman, otherwise matters set up in the declaration of so deliberate known as William Gorman," returnable to the and solemn a character that he cannot be heard Municipal Court of the city of Boston, March 24, in denial of it so long as the judgment ren1877, which action was duly entered, and the dered in that suit remains unreversed. This judgment of the Superior Court, hereinbefore re
is so familiar law that it is unnecessary to cited, was declared on. The summons in this ac- cite cases in support of the position. It foltion was served upon the petitioner, who appeared, lows that, when suit was brought on that judgand, when the case came to trial, admitted that the ment, he was not permitted to impeach it by order of notice in the Superior Court action was showing that he did not in fact execute the bond. served on him; and he offered, in the Municipal
His arrest on the execution issued on the second Court, to prove, as were the facts, that he did not judgment was merely a proceeding in the exercise sign said bond, that his name was not W. P. Gor. of the rights of the creditor, to enforce collection man, that he was not the defendant, and that he of the judgment debt, and it is not competent for was not in any manner indebted to said McCarthy.
the petitioner to impeach collaterally a judgment, To such proof the attorney who acted for Mc- by evidence which it was incompetent for him to Carthy objected; and at his request the presiding introduce at the trial of the suit in which the judgjustice declined to hear such proof, and ruled that,
ment was rendered. There was ro mistake on his as the action was brought on a domestic judgment part, no fraud upon him, no false testimony used which could not be impeached, the court could not to obtain the original judgment; and even if it was go into the question of identity, and ordered judg- otherwise, the original was valid against him till ment to be entered for the plaintiff, after the writ
reversed; and no defense would be open to him and declaration had been amended by striking out
founded on facts which existed before it was renthe “m" after the first initial of defendant's name. dered; nor could such facts avail him in equity Upon this judgment execution issued June 25, more than at law. Sheldon v. Kendall, 7 Cush. 1877, against “W. P. Gorman, otherwise known as 217; Bost. & War. R. R. Co. v. Sparbawk, 1 Allen William Gorman;" an affidavit of arrest in the us- 448. See also, O'Shaughnessy V. Baxter, 121 ual form was attached thereto, the execution was Mass. 515. It is only when the prisoner has been handed to E. W. Farr, a constable of the city of placed in custody as the result of proceedings beBoston, by the attorney for said McCarthy, with fore a tribunal which had no jurisdiction, so that instructions to arrest the petitioner, William Gor- its judgment is void, that he is entitled to his disman as the judgment debtor named in the execu- charge on habeas corpus. Where, as here, the tion; and on July 20, 1877, the petitioner was ar- court rendering the judgment had jurisdiction, the rested by said Farr on said execution; and on the regularity of its proceedings will not be inquired same day, on the petition of said William Gorman, into collaterally, and its judgment stands good till a writ of habeas corpus, issued from the Supreme
reversed or annulled by a proper course of proJudicial Court for said county, was served and re- ceedings for the purpose. Herrick v. Smith, 1 turned, and said William Gorman was admitted to Gray, 49; Adams v. Vose, 1 Gray, 51. bail thereon.
For these reasons it is ordered that the prisoner On August 21, 1877, a hearing was had before
be remanded. COLT, J., at which the records, papers and pro
OF SERGEANT ARMSTRONG, a leading Irish couusel, an ceedings of the Superior and Municipal Courts, in English paper says: Much learning has made the Ser. the two actions aforesaid, were produced and geant mad, and he is now unhappily under restraint. The proved; and the petitioner proved that he was not
manifestations of the mania iook place under extraor. the defendant, W. P. Gorman; that he never
dinary circumstances. The Sergeant was one time a member of Parliament, and at the beginning of this session,
when the Home Rulers were returning to London, the Ser. tiffs in said action nothing; also that he notified
geant appeared with his portmanteau ready packed. There said McCarthy's attorneys and said Farr, before
was nothing remarkable about this. But, in the course of
the journey, it became clear that the learned Sergeant was said arrest, that he was not the defendant, and under the impression that he was still a member of Parlia. informed them where the defendant was. The ment, and that he was bound for London with other honor. presiding justice found as a fact that the petitioner
able members. He was tenderly humored till the party was not the person who signed the replevin bond. I arrived, when he was taken care of till his friends arrived,
NUISANCE-ALTERATION OF THE LEVEL OF LAND-RAIN-PERCOLATION-NATURAL USER.
HURDMAN V. THE NORTH-EASTERN R. R.
English Court of Appeal, March 1, 1878. AN OCCUPIER OF LAND may maintain an action against any one who allows filth or other noxious things produced on the latter's land to interfere with the reasonable enjoyment of his land by the former. Therefore, if any one, by an artificial erection on his own land,causes water,even though only arising from natural rain-fall, to pass into his neigbbor's land, he is liable to an action at the suit of the person so injured. This is, however, subject to the principle that the owner of land holds his right to the enjoyment thereof, subject to any annoyance arising from the natural user by his neighbor of his land, as in the case of an adjoining mine owner.
This was an appeal of the defendants from a judgment of MANISTY, J., on a demurrer to a statement of claim.
The first six paragraphs only of the claim are material for this report:
1. At the time of and before the commencement of the damage hereinafter mentioned, the plaintiff was, and is still, possessed of a house known as No. 16 Lodge-terrace, Sunderland.
2. The defendants then were, and still are, possessed of a certain close of land adjoining the said house of the plaintiff.
3. The defendants placed and deposited in and upon the said close of the defendants, and upon and against a wall of the defendants which adjoins and abuts against the house of the plaintiff, large quantities of soil, clay, limestone, and other refuse, close to and adjoining the said house of the plaintiff, and thereby raised the surface of the defendants' land above the level of the land upon which the plaintiff's house was built.
4. The rain which fell upon the said soil, clay, limestone, and other refuse so placed as aforesaid, oozed and percolated through the said wall of the defendants into the said house of the plaintiff, and the plaintiff's house thereby became wet, damp, unwholesome and unhealthy, and less commodious for habitation.
5. By reason of the said acts of the defendants the walls of the house of the plaintiff became and were very much injured, and the paper and plaster upon the said walls have been destroyed. 6. In the alternative the plaintiff
' alleges that the defendants so negligently and improperly placed and deposited the said soil, clay, limestone, and refuse upon the defendants' said land, that the rain water falling thereon oozed and percolated through and into the plaintiff's house, whereby the plaintiff's house was damaged as before mentioned.
Herschell. Q. C., and Gainsford Bruce, for the defendants, in support of the demurrer. The water comes merely by the force of gravitation and by percolation, and the plaintiff must keep it out of his house himself. Smith v. Kendrick, 7 C. B. 515. In Baird v. Williamson, 12 W. R. 150
15 C. B. N. S. 376, there were three classes of water, the first of which could not be complained of, while the others could; the distinction being between what is artificially brought on the land and what nature brings there. Broder v. Saillard, 24 W. R. 1011, L.R. 2 Ch. D. 692, is distinguishable. If I may not deal with my land like this, it must be because there is some limita tion on the rights of property, which it is for the court to find. [BRAMWELL, L. J. Sic utere tuo ut alienum non lædas.] That can not mean that you may not use your land so as to injure your neighbor; because, in some circumstances, you may-e. g., you may build up against your neighbor's light, where he has not acquired an eas nent by prescription; but you must not inflict legal injuria. Popplewell v. Hodgkinson, 17 W. R. 806, L. R. 4 Ex. 249, shows that the rule does not mean that you may not deal with your land so as in any way to affect your neighbor's land—that you must leave it as it always was. In Wilson v. Waddell, L. R. 2 App. Cas. 95, 25 W. R. 157, the House of Lords decided that no cause of action arises from your altering the way in which the water percolated; and they have approved of Smith v. Kenrick, as laying down the same doctrine. In Rylands v. Fletcher, L. R. 3 H. L. 330, 17 W. R. H. L. Dig. 17, the defendant had created a large pool of water, and, therefore, was responsible for keeping it in. Brine v. Great Western Railway Company, 10 W. R. 341, 2 B & S. 402, was only a decision on a point of pleading, and does not touch this case. Baird v. Williamson goes the whole length we argue for. [COTTON, L. J. Getting coal is a natural user of the land.] They also cited Nicholls v, Marsland, 25 W.R. 173, L. R. 2 Ex. D. 1; 2 Cent. L. J. 523; 4 Cent. L. J. 319.
Waddy, Q. C., and J. Edge, for the plaintiff. The defendants have so used their land that what would have been harmless in the usual course of nature became harmful and injurious to us in consequence of what they did. We do not only complain of the percolation and oozing, turning the land into an artificial sponge, but of the alteration in the level of the land, which prevents the water coming down to the level of our land and flowing away, and causes it to percolate through our wall. The mining cases are all commented upon and disposed of in Crompton v. Lea, 23 W. R. 53, L. R. 19 Eq. 125, where the Vice-Chancellor draws a distinction between ordinary cases such as this and mining cases as to working mines in the usual way, and the interference of subterranean water. Altering the level of land is not a natural user of it. A man is entitled to enjoy his land without foreign water being brought upon it. They cited in support of their argument, in addition to cases mentioned on behalf of defendants, Sutton V. Clarke, 6 Taunt. 29; Lawrence v. Great Northern Railway, 16 Q. B. 643; Humphreys V. Cousins, 25 W. R. 371, L. R. 2 C. P. D. 239; Crossley v. Lightowler, L. R. 3 Eq. 279, 15 W. R. Ch. Dig. 95. Herschell, Q. C., was heard in reply.
Cur. adv. vult.