knew of the breach. "Mere mutual knowledge by the assured and the agents of the insurer of the falsity of the fact warranted, is entirely in adequate to induce a reformation of the policy so as to make it conform with the truth. It is rather evidence of guilt collusion between the agents and the assured, from which the latter can derive no advantage." Knowledge by the underwriter, or by him and the assured, of the breach of a warranty, at the time it is made, does not relieve the assured from the consequences of the breach, and is no basis for reforming the policy, though equity will reform it, in the case of mutual mistake of facts. It is not true that the It is not true that the rule which prevails in sales of personal property namely, that a warranty does not embrace defects known to the purchaser, is also extended to warranties contained in policies of insurance. The purpose in requiring a warranty is to dispense with inquiry and cast upon the assured the obligation that the facts shall be as represented. A representation and a warranty are essentially different things and call for the application of different rules of law. Knowledge that the answer was untrue' might relieve against a false or imperfect representation: State Mutual Fire Insurance Co. v. Arthur, 6 Casey, 315. This doctrine, enunciated in that case, has not since been doubted in Pennsylvania. made; they relate to the admissibility of evidence to show fraud or mistake by an agent of the company of which the assured had no knowledge till after his loss, and his right to recover upon his policy, notwithstanding such fraud or mistake. Of like purport is the decision in insurance Co. v. Wilkinson, 11 Amer. L. Register, 485, where it said in the opinion, that the insured did not intend to make the representation when he signed the paper, did not know he was doing so, and had refused to make any representation on the subject; it was held that the answer written by the agent was his, not the applicant's, and his principal, the company was bound by it. We are of the opinion that the plaintiff's fifth point should have been refused, and the defendant's point affirmed. If the jury believed the evidence of Ziebach, the plaintiff was not entitled to recover. The facts assumed in the defendant's point were shown by written evidence, and were not disputed.. The conditions of insurance provided that notice of additional insurance, or of any change in existing insurance shall be given to the company by the insured in writing, and shall be acknowledged in writing by the secretary; and no other notice shall be binding or any force against the company. In the absence of evidence of waiver of the notice required in this stipulation, we do not think "the jury would be justified in inferring that knowledge of the agent will bind the principal of notice of subsequent insurance or surrender of previous insurance." The parties agreed that written notice should be given, and in like manner acknowledged by the secretary; mere knowledge of an agent is not equivalent of Judginent reversed. SUPREME COURT OF PENNSYLVANIA. COMMONWEALTH, TO USE OF PRICE, V. HAINES ET AL. In Cooper v. Farmers' Mutual Insurance Co., 14 Wright, 209, it was held that that which is a warranty in a policy of insurance by its terms, cannot be shown by parol evidence to have been inserted by mistake. This certainly is sound, if understood with reference to such mistakes of the assured as where he makes a false statement believing it to be true, without having been deceived and misled by the other party. No principle of law will enable a party, who guarantees a fact upon which a contract for insurance is based, which fact is afterwards found not to exist, to enforce the contract. He agrees to answer for the truth of the fact, and cannot escape on the ground of his mistake as to its existence. But if a fraud or mistake of the other party, or of the agent of the other party while acting within his authority, he be induced to sign a statement which he did not make and did not intend to make, such statement is not only void as to himself, but he shall not lose the benefit of a contract for which he paid the stipulated consideration, and held without knowledge of the mistake or fraud. If an agent for an insurance company intending to write an answer to his question as made by the applicant, write something else, and the paper is signed, both believing the answer correctly written, there is a mutual mistake and the policy may be reformed. Where the answer is written as made, there is no mutual mistake, and no relief for him who warranted it, unless the agent deceived him into the making of it. The case of Smith v. Farmers' and Mechanics' Mutual Fire Insurance Co., 8 Nor. 287, and Eil-made the acknowledgment was not Abram P. Beecher, enberger v. Protective Mutual Fire Insurance Co., Id., 464, are not all in conflict with prior decisions as to the effect of a warranty actually MAY 2, 1881. The certificate of a notary public of the acknowledgment of a deed or mortgage is a judicial act. The notary, who has been imposed upon by a personation, is liable only for a clear and intentional dereliction of duty; and in the absence of such evidence he is protected by the legal presumption that he did his full duty. A mere inistaken conclusion imposes no liability on him. Error to the Court of Common Pleas, No. 2, of Philadelphia County. MERCUR, J. This action was against a notary public and his sureties on his official bond. The complaint is that he certified to one Abram P. Beecher having personally appeared before him, and, in due form of law, acknowledged a certain indenture of mortgage to be his act and deed, when in fact the person who appeared before him and whereby said plaintiff was injured. The plaintiff called Abrain P. Beecher, who owned the lot described in the mortgage on which the notary made the certificate. He testified that this mortgage was not executed by him, nor by his authority, and that he never made any acknowledgment thereof, or of any mortgage on that property before the notary, or before any person. The plaintiff testified that, relying on the supposed validity of the mortgage and the record thereof, he bought and paid for the mortgage. The question to be considered is, what proof is necessary to make the notary legally liable to one injured by the making of such certificate untrue in fact. It is well settled that the certificate of a judge, or of a justice of the peace, of the acknowledgment of a deed or mortgage is a judicial act: Withers v. Baird, 7 Watts, 227; Jamison v. Jamison, 3 Whar., 457; Heeler v. Glasgow, 29 P. F. Smith, 79; Singer Manufacturing Co. r. Rook, 3 Norris, 442. Conceding such to be the effect of a certificate of a judge or justice, yet it was contended, on the argument, that like effect should not be given to the certificate of a notary. Why not? He is a public officer, commissioned by the Governor. He is acting under oath, like other officials in the performance of judicial duties, to "well and faithfully perform the duties of his office." The second section of the Act of 10th of August, 1864, Pur. Dig., 1097, expressly gives power to "each notary public of this Commonwealth," inter alia, "to take and receive the acknowledgment or proof of all deeds, conveyances, mortgages, or other instruments of writing, touching or concerning any lands, tenements or hereditaments situate, lying and being in any part of this State, *** as fully to all intents and purposes whatsoever as any judge of the Supreme Court, or president or associate judge of any of the Courts of Common Pleas, or any, alderman or justice of the peace within this Commonwealth." As then the notary is authorized to take the acknowledgment as fully, to all intents and purposes, as a magistrate can do, it follows the same effect should be given to his certificate of acknowledgment. It was so held in Hornbeck v. Building Association, decided in this court. Whatever officer is authorized to take the acknowledgment, to him is given a judicial duty, and when he performs it, it becomes a judicial act, and has the effect of & record. This action, then, is to recover damages flowing from the incorrect manner in which the defendant performed a judicial act. The rule as to the liability of an officer performing a ministerial duty does not apply. The plaintiff also called and examined the defendant notary. He testified that at the time of putting his hand and seal to the acknowledgment he did not know Abram P. Beecher; did not remember that he had ever seen or heard of him before; had no knowledge of the matter, except what appears on the acknowledgment; frequently some whom he knew brought in the person and introduced him; he was satisfied at the time it was all right; but does not remember what took place, He added, "the paper was undoubtedly signed before me; I don't remember that I did or did not take any precaution to identify the person making the acknowledgment; but I know I must have been satisfied at the time." The substance of his evidence, therefore, is that, while he does not recollect what inquiries or statements were made, yet he knows he must have been satisfied as to the identity of the person, and that it was all right at the time the acknowledgment was taken. No evidence was given conflicting with or impairing this evidence of the defendant. The legal presumption is, he acted on reasonable information, and did his full duty. His absence of mem ory as to the details of what occurred does not destroy that presumption. The burden of proof is on the plaintiff to prove a clear and intentional dereliction of duty; this is neither proved nor averred. A mere mistaken conclusion imposes no legal liability on the defendant. The learned judge was clearly right in ordering a compulsory non suit and in refusing to take it off. Judgment affirmed Agreement between Father and Son for Conveyance in Consideration of Service and Support-Specific Performance. A father and son agreed together that if the son would remain with and support the father and his wife (the son's step-mother) during their lives, and work the farm under the father's directions, the farm should, at his death, belong to the son. The son, on his part, carried out the agreement during a period of seventeen years, and until both the father and step-mother were dead. The father, for the purpose of carrying out the agreement on his part, made and delivered to the son a will devising the farm to him. The will made no mention of the testator's other children, and for that reason was void. Held, that the son was entitled to have the agreement enforced against the other children. The failure of the attempt, to carry it out by will could not be allowed to prejudice his rights. Hiatt v. Williams, 72 Mo. Evidence of one Offense on Trial for another.-Upon the trial of one offense, evidence of an entirely distinct offense is inadmissible; but if the evidence tends to prove the commission of the of fense for which the prisoner stands indicted, it is no valid objection to it that it also tends to prove another and distinct offence, Thus, where the two offences are committed at the same place and within a few minutes of each other, under such circumstances as together to constitute a single and continuous accomplishment of a fixed and common design, evidence of both is admissible upon a trial for one. State v. Greenwade, 72 Mo. Maintenance of Child-Step-Child. - While in general a parent is bound to maintain and educate his children at his own expense, yet, where the circumstances of the parties are such as to render it necessary or proper, the courts may make an allowance to the parent from the child's property to defray in whole or in part the expense of his maintenance. Gerdes v. Weiser, 54 Iowa. Where a man receives into his family, as a member thereof, the child of his wife by a former marriage, he stands in loco parentis to such chilu, and is bound for its support the same as though it were his own.-Ibid. Evidence-Privilege of Witness.-The refusal of a witness in a criminal trial to answer a question, upon the ground that he may thereby criminate himself, cannot be shown as a circumstance against him in a' subsequent trial of the witness for the same offense. State v. Bailey, 54 Iowa. -James McKirchner, Esq., of Sidney, a member of the Shelby County Bar, was in the city on professional business, last week. -A. J. Green, Esq., of Gallipolis, paid the LAW JOURNAL a short, but pleasant visit last week. Mr. Green visited the Capital on business with the Governor's office. -A. J. Woolf and J. P. Wilson, two of the young Democratic lawyers of Youngstown, have been nominated for the offices of Probate Judge and Prosecuting Attorney respectively. Should both or either be elected the people of Mahoning County will be well served, as both ure good lawyers and reputable young men. -C. M. Lotze, Esq., of the Hamilton County Bar, at Cincinnati, while in the city on business in the Supreme Court, this week, inade the LAW JOURNAL office a pleasant call and received the warm welcomo that awaits all such genial members of the profession throughout the State. We are always glad to meet our friends. -Hon. Chauncey N. Olds, of this city, attended District Court in Perry County, last woek, where the OHIO LAW JOURNAL was called into requisition by the, presiding judge, in setting forth the latest construction of the law by the Supreme Court. We are glad to hear, as we do continually, of the just appreciation of the Law JOURNAL throughout the State. -Hon. William Lawrence, First Comptroller of the U. S. Treasury Department, has rendered an important decision relative to the fees of U. S. Marshals, Clerks of the Circuit and District Courts, and Commissioners of the Circuit courts for issue and service of subpoenas. The act of February 22, 1875, is interpreted to protect litigants in United States Courts, from the enormous costs, and especially in the service of writs and subpœnas. It was long the practice of the Marshals to send these subpoenas by mail long distances, have them served, then charge mileage and service on oach process therein as though the distance had been really traveled. The Clerks too, included but one name in each subpœna, and charged likewise for each one separately. By this decision all this is rendered impossible and the comptroller is entitled to the thanks of long suffering litigants for his just and manly disposition of the case. Judge Lawrence, through the LAW JOURNAL this week, addresses an open letter to the Commissioner of the Land Department upon the subject of the Virginia Military Lands in Ohio, which is valuable and will prove interesting to persons residing in that district; as well as to the profession generally. CORRECTIONS. In the case of Melvin v. Weiant, printed in the Law JOURNAL of August 25, page 24, the compositor has made the Court say, in referring to the case of Davis v. Brown. 27 Ohio State, that "We are all agreed, however, that that case ought to be overruled." It should read, “We are all agreed, however, that that case ought NOT to be overruled." The absence of the little word not in our is sue above given, makes the Supreme Court say the reverse of what was intended. In the case of Andrews v. Campbell, published in OHIO LAW JOURNAL, last week, the advance sheets--page 364Ohio State Reports, in the statement of the case, read: "This judgment was affirmed in the district court. To secure so much of the samo as allows six per cent., &c., &c., is the object of the present proceeding." The word "secure" should be "reverse." It is correctly printed in the LAW JOURNAL, on page 38 of the present volume. The pages of the State Reports, being electrotyped, all the edition will read as above quoted. This correction will give a proper understanding of the case. THE VIRGINIA MILITARY LANDS IN OHIO. AN OPEN LETTER TO COMMISSIONER MCFARLAND. BELLEFONTAINE, OHIO, August 23, 1881. HON. N. C. MCFARLAND, Commissioner of the General Land Office. SIR: I know how earnestly you desire to perform every duty aright, and that you will be ready to hear any suggestions that are proper for your consideration. My long residence in Ohio, and particularly in the Virginia Military district has made me somewhat familiar with land titles in that district; I have, perhaps, as good means of knowing the law upon the subject of military titles and what justice requires for the people who live in that district, as lawyers generally, possibly more than many others who only recently commenced the law practice. The act of Congress, approved May 27, 1880, (21 Statutes p. 142), authorizes the issue of patents in certain cases. From what I have learned I feel confident that on examination of this statute and others bearing upon the subject, that you will not issue patents in a class of cases in which I understand patents have been asked for since that act was passed. Let me call your attention, therefore, briefly to some considerations and statutes upon this subject. During the Revolutionary war the State of Virginia, then claiming to own the Northwestern Territory, provided by law that her soldiers in the Virginia line on continental establishments, should have warrants with which they should be entitled to locate lands. A Land Office was established at Richmond, Va., to issue land warrants. These warrants authorized the soldier's to make a location of land which should be subsequently surveyed and upon the production of the original warrant and the veys and warrants were returned prior to March original survey, a patent was to issue. 3, 1857. See Copp's Land Owner, Vol. 7, p. 69, for August, 1880. When the State of Virginia ceded the Northwestern Territory to the United States, the land between the Little Miami and Scioto rivers, in the State of Ohio, was reserved to satisfy these warrants. An office was located at Chillicothe, at which entries were to be made, and to which surveys were to be returned, and recorded. Entries were sometimes made and many years would elapse before surveys were made, and in some cases very many years would still further elapse before the warrant and survey would be returned to the General Land Office to procure a patent. As soon as the lands were entered they became taxable in Ohio, and were sold without regard to the issuing of a patent; judicial sales were made, they were sold by order of probate courts, sold for taxes, &c. The supreme court held that the statute of limitations did not run in favor of a party in possession of these lands until a patent was issued, and many years after the owner of an entry and survey had sold it, and, especially when the evidence of the sale had been lost, some person claiming to be heir, or some lawyer fishing for old claims would, in some cases, get out a patent to the heirs of the deceased locators of surveys, and bring ejectment suits to turn out parties who had been long in possession. This was regarded as a great evil, and Congress consequently limited the time within which warrants and surveys were to be returned to the General Land Office to procure patents. The act of March 3, 1853, (10 Statutes 701), was the last act until that of 1880, to authorize the return of warrants and surveys and the issue of patents. The act of 1853 "allowed the further time of two years to make and return surveys and warrants to the General Land Office." Its title declared that it was "an act allowing the further time of two years to those holding lands by entries in the Virginia military district of Ohio, made prior to January 1, 1852, to have the same surveyed and patented." The effect of this act was, that if surveys were not returned to the General Land Office by March 3, 1857, no patent could issue for lands, even if the survey was afterwards returned. Some patents were issued, however, on surveys returned after that time, but on the 3d of April, 1880, the commissioner of the General Land Office decided that there was no authority to issue patents unless the sur In a case in which I was counsel in the Circuit Court of the United States, for the northern district of Ohio, Mr. Justice Stanley Matthews, as I understand, has just decided that patents issued upon warrants and surveys returned to the General Land Office after March 3, 1857, are void. Repeated efforts were made in Congress between March 3, 1857, and May, 1880, to obtain further time for the return of warrants and surveys, and to obtain patents, but Congress uniformly refused to extend the time. An effort was made while I was in Congress, which, I suppose, I may say I had the honor of defeating. My predecessor in Congress, Hon. Benjamin Stanton, defeated a similar attempt. The act of May 27, 1880, seems to have been passed, possibly, without much consideration, and I doubt if it would have passed, in its present form, if it had been understood in Congress. I invite your attention particularly to its provisions. Before doing this, let me state that the act of February 18, 1871, ceded to the State of Ohio, as its title says, "the unsurveyed and unsold lands in the Virginia military district in said State.". The State then ceded these lands to the Ohio Agricultural College. The act of February 18, 1871, was not carefully worded, and the Ohio Agricultural College claimed that it was entitled to all the unsurveyed lands, that is, if lands had been entered but never surveyed, the college claimed such lands. It was found that this would disturb so many titles, even of lands which had been occupied for half a century, or more, but for which no survey had beeen made or patent issued, that public indignation became so great that the college was compelled to abandon this claim. The act of May 27, 1880, was passed in part to give construction to the act of February 18, 1871, and declared that in ceding the lands to the State, it was not the purpose of Congress to include any land which had been surveyed. The courts would undoubtedly have held this, but Congress very properly gave this construction to the act. In this respect the act of May 27, 1880, was all right. It then goes on to provide. "Section 2. That all legal surveys returned to the Land Office on or before March 3, 1857, on entries made on or before January 1, 1852, and founded on unsatisfied Virginia military continental warrants are hereby declared valid." It will be observed that this only applies to legal surveys returned to the Land Office before March 3, 1857. This assumes that the decision of the commissioner of the General Land Office of April, 1880, holding that patents could not be issued on surveys returned after March 3, 1857, is correct. It does not authorize a survey to be returned which had been made prior to March 3, 1857. It left those exactly where it found them with the parties in possession of the lands entitled to hold them, and with no provisions for the issue of a patent to the original holder of the survey which might disturb them and give rise to litigation. It is then provided in section 3 of the act, "That the officers and soldiers of the Virginia Line on continental establishments, their heirs and assigns entitled to bounty lands, which have,. on or before January 1, 1852, been entered within the tract reserved by Virginia, between the Little Miami and Scito rivers, for satisfying the legal bounties to her officers and soldiers upon continental establishment, shall be allowed three years from and after the passage of this act to make and return their surveys for record to the office of the principal surveyor of said district and may file their plats and certificates, warrants, or certified copies of warrants, at the General Land Office, and receive patents for the same.” It is to be observed that this gives three years from May 27, 1880, to make and return surveys. This can only apply to those lands which had been entered but never had been surveyed. This is rendered clear by section one, of the act which declares a purpose not to disturb lands which had been previously surveyed. 'It does not authorize a new survey to be made upon lands which had been previously surveyed. It does not authorize a patent to be issued on lands which had been previously surveyed. The act is to be strictly construed because it is a special statutory proceeding in favor of those who had entries which had never been surveyed, and all such statutes are, by a well-known rule, to be strictly construed. Besides, as it endangers many homes, it should, for that reason, be strictly construed. It would be very unjust and absurd to say that it authorizes the issue of a patent on lands which had been previously surveyed. Their status and all rights relating to them are elsewhere determined, as already shown. Let me say to you that there are 130,000 acres of land in the Virginia military district of Ohio now occupied by a vast number of people who have resided thereon, probably from ten to fifty years without any knowledge that there was any difficulty about their titles. In some instances the lands have been entered only without a survey; in others they have been surveyed prior to March 3, 1857. They have been sold and conveyed through many years. If you shall now by virtue of this act of May 27, 1880, continue to issue patents, you will give to the parties to whom patents are issued an opportunity to commence law suits and harrass and disturb hundreds of homes. I invite your personal study to this, and respectfully urge you to suspend the issue of patents as to the cases to which I refer, until you can fully consider the subject, or if necessary, until Congress can act. I may say that, although I own some land in the Virginia military district, I have none to be affected by any decision you may make on this subject. My purpose is to contribute if I can, to the protection of hundreds of people, some of whom are being harrassed by vexatious, and, I think I may properly say, outrageous litigations, commenced and being prosecuted against them, to recover lands they have occupied for many long years. If patents shall issue indiscriminately under the act of May 27, 1880, it seems to me it will give rise to a vast number of law suits that will work great injustice to hundreds of people who have been occupying their homes in fancied security, and who upon every principle of justice, reason, and sound law ought not to be disturbed; and in this connection I should state that as a matter of fact and of strict law, no patent can issue in any case unless the entry has been made prior to January 1, 1852. You will see this in the perusal of the statutes. I have the honor to be Very Respectfully, CONTRIBUTORY NEGLIGENCE BY PERSONS WITH DEFECTIVE SENSES. The frequency of cases where suits are brought for damages arising from the negligence of the defendant, brings into unusual prominence the doctrine of contributory negligence. The general doctrine of contributory negligence is weli settled, but its application in many cases seems difficult, and the dicta of judges in adjudicating upon cases where this defense is introduced, present contradictions which are apparently |