People, Plffs. in Error, v. John Park et al., Defts. in Error.

The defendants in error were tried and convicted at the Rensselaer Sessions on an indictment for burglary. On the trial one Corbin was offered as a witness for the prosecution, and objected to as incompetent, it being shown that he had been previously convicted and sentenced for the crime of burglary in the third degree, and had never been pardoned or restored to his rights as a citizen. It also appeared that at the time of such conviction said Corbin was under the age of sixteen years, and was sentenced to the House of Refuge. The prosecution insisted that the term "felony," for which crime only persons are disqualified as witnesses (2 R. S. 707, 23), meant only such crimes as are punishable by death or imprisonment in State prison (2 R. S. 707, ? 30), and that as the witness offered was under sixteen, and therefore not liable by law to imprisonment in State prison, he had not been convicted of a felony and was competent. The objection was overruled and the witness admitted. Held, that the objection was well taken; that whether or not an offense is a felony does not depend on the personal status of the criminal or his personal exemption from a particular punishment by reason of age or mental incapacity; and that the term " felony " means any crime which is punishable by death or by imprisonment in the State prison without reference to the personal exemptions or exceptions of the criminal.

John Fulton v. Francis S. Staats.

This was an action against the defendant for false imprisonment. The defendant was a policeman, and having received information that led him to believe that plaintiff was committing a felony, proceeded to arrest him. The plaintiff resisted an arrest and was very violent and abusive. Evidence was introduced by the plaintiff tending to show that the defendant used unnecessary violence in making the arrest. Defendant offered evidence to show that the plaintiff had, on the way to the station house, threatened to murder any one who arrested him. The offer was excluded. Held, that such evidence was competent and the exclusion erroneous. Whatever occurred between the place of arrest and the station house was part of the transaction, and whatever was then said or done was competent evidence for either party.

TERMS OF THE SUPREME COURT FOR THE COMING

WEEK.

January 24- General Term, Sixth District, at court house in Broome county.

January 25-Special Term, at Albany, by Justice Hogeboom.

U. S. CIRCUIT COURT.

Notice to the Bar.-Judge Woodruff will take up the calendar of admiralty appeals on the first day of February, and it will then have precedence. He will also then hear, if there be time, all other cases and matters except the trial of civil and criminal cases by a jury. A new calendar of appeals and admiralty will be made up, for which notes of issue must be filed by the 27th of January.

DIGEST OF RECENT ENGLISH DECISIONS. [Q. B. refers to the Queen's Bench, C. P. to the Common Pleas, Ex. to the Exchequer, and L. J. R. to the Law Journal Reports.]

ARREST.

Privilege of person accused of criminal charge out on remand. The privilege from arrest on civil process of a person whose attendance in court is required for the due administration of justice, extends to the party accused of a criminal charge when out on bail on remand, as well as to the prosecutor and witnesses. Gilpin v. Benjamin, Ex. 38; L. J. R. 50.

ATTORNEY.

Lien for costs. The lien of an attorney for costs is confined to cases where there are fruits of the litigation actually acquired, such as a clean verdict or a judgment or an acknowledgment of a debt; but the court will not interfere to cause it to attach where after verdict and before judgment a rule for a new trial has been obtained, so as to prevent a settlement of the action between the parties, without a prior satisfaction of the attorney's costs. Sullivan v. Pearson, Q. B. 38; L. J. R. 65.

APPRENTICE.

Covenant for personal services: performance impossible by act of God. A covenant in an apprenticeship deed that the apprentice will honestly remain with and serve his master for a certain term is, though in terms absolute, subject to an implied condition that the apprentice shall continue in a state of ability to perform his contract. To an action, therefore, by the master for breach of the covenant, a plea that the apprentice was prevented by the act of God, to wit, permanent illness, which arose after the making of the deed and before breach, is good. Boast v. Firth, C. P. 38; L. J. R. 1.

BARON AND FEME.

Chose in action: money received for use of wife. - Defendant received money for the use of a married woman, and wrote offering to forward it to her if required. The wife shortly afterward died, and there was no evidence that her husband, who survived her, had in any way interfered, either to allow his wife to have the control of the money, or to prevent her from dealing with it. The wife's administratrix having brought an action against defendant for money had and received to the use of the wife: Held, by the majority of the Court (Channell, B., Keating, J., Montague Smith, J., and Cleasby, B.), that plaintiff was entitled to recover, as the right to the money was a chose in action, like a bond or promissory note, and had never been reduced into possession by the husband. But held, by Kelly, C. B., that plaintiff was not entitled to recover, as the husband and wife could not have joined in an action for money had and received against defendants, and because no action could be maintained by the representative of a married woman in respect of a chose in action where the wife's interest did not appear on the face of the record. Fleet v. Perrins (Ex. Ch.) Q. B., 38 L. J. R. 257. BILLS AND NOTES.

1. Presentment: notice of dishonor: reasonable expectation of payment. The drawer of a cheque, the state of whose account with the drawee is such that he has no reasonable expectation that the cheque will be paid on presentment, is not entitled to notice of dishonor before being sued by the holder of the cheque. Carew v. Duckworth, Ex. 38; L. J. R. 149.

2. Notice of dishonor, where excused: ostensible place of business. - A bill of exchange was accepted by a joint-stock company and indorsed by defendant, who was a director of the company. The bill was accepted and indorsed at the office of the company, which defendant was in the habit of attending. A notice of dishonor was sent by the holders to defendant, addressed to him at the office of the

company, but as he had ceased to attend the office it did not reach him until some time afterward. The holders also made inquiries, as to defendant's private residence, of other directors of the company, and at an office with which the company had had dealings, but not at the office of the company itself: Held, that there had been sufficient notice of dishonor. Berridge v. Fitzgerald, Q. B. 38; L. J. R. 335.

3. Acceptor charged in execution by holder after payment by indorser: indorser's remedy over against acceptor. - The drawer or indorser of a dishonored bill of exchange becomes entitled, by paying the amount of it to the holder, to an immediate right of action against the acceptor, although the holder continues to retain the bill as security for costs; and the right of such drawer or indorser to sue the acceptor is not affected by the circumstance that the holder, after receiving the amount and before payment of his costs, has charged the acceptor in execution for the amount of the bill and then released him from custody. Woodward v. Pell, Q. B. 38; L. J. R. 30.

4. Signature obtained by fraud without negligence: action by bona fide holder. — In an action by a bona fide holder for the value of a bill of exchange against defendant as indorser, the Judge directed the jury that if defendant's signature was obtained upon a fraudulent representation that the instrument was a guarantee, and defendant signed it without knowing that it was a bill, and under the belief that it was a guarantee, and if defendant was not guilty of any negligence in so signing, he was entitled to the verdict: Held, a right direction. Foster v. Mackinnon, C. P. 38; L. J. R 310.

5. Principal and agent. - A promissory note, in form "On demand I promise to pay Messrs. A. £1,500, with legal interest until paid, value received," was signed, "For the M. Railway Company, J. S, Secretary." It was proved at the trial that the money had been applied to the purposes of the company: Held, that J. S. was not personally liable on the instrument. Alexander v. Sizer, Ex. 38; L. J. R. 59.

CARRIERS BY RAILWAY.

1. Different rates of charge made to different persons for carriage of the same class of goods. - Plaintiff, a carrier, was in the habit of collecting small parcels and sending them together in large packages by defendants' railway. Defendants charged different rates of carriage for different classes of goods, the highest charge being for packed parcels. A declaration was required from plaintiff as to the description of his parcels. He declared them as "packed parcels," and was charged and paid accordingly. Plaintiff, finding that other firms sent packed parcels, from whom no declaration was required, and who were charged for them at a less rate, sued the company to recover the alleged excess as for money had and received. On the trial he gave evidence that the practice of the other firms in sending "packed parcels" was notorious. Held, affirming the judgment of the Court of Exchequer Chamber, that the evidence produced was admissible, and was sufficient to show that defendants knew of the practice of other firms to pack their parcels, and that with such knowledge they had improperly charged plaintiff with a higher rate of charge, and had thus infringed the equality clauses; and that plaintiff was entitled to recover the amount so charged in excess in an action for money had and received. Great West. Rail. Co. v. Sutton (House of Lords), Ex. 38; L. J. R. 177.

2. Loss of passenger's luggage: special contract: foreign line: through ticket.- Plaintiff was booked through from London to Paris by defendants, who were carriers, by their railway from London to Dover. He traveled on their railway to Dover, from thence to Calais by steamboat, and from Calais to Paris by a French line of railway. He registered his luggage at the London station of defendants, who thereupon took possession of such luggage. Upon the through ticket, which he received from defendants, was the following: "The English railway companies are not

responsible for loss or detention of, or injury to, luggage of the passenger traveling by this through ticket, except while the passenger is traveling by their trains or boats, and in this latter case only when the passenger complies with the by-laws and regulations of the companies; and in no case for luggage of greater value than 51. Each company incurs no responsibility of any kind beyond what arises in connection with its own trains and boats, in consequence of passengers being 'booked' to travel over the railways of other companies, such through-booking being only for the convenience of the passengers. Nor will the companies be responsible for the trains or boats being delayed, or not meeting the trains in correspondence, nor for any consequences that may result to a passenger thereby." This ticket was not signed by plaintiff. The luggage was lost upon the French railway. Held, in an action brought by plaintiff to recover damages in respect of such loss, that defendants were protected from responsibility by this special contract, and that they did not lose such protection by reason of its not being signed by plaintiff, the provision to that effect in the Railway and Canal Traffic Act, 1854, only applying to the receiving, forwarding or delivering of goods upon the line belonging to or worked by, the company making the special contract. Zunz v. The Southeastern Rail. Co., Q. B. 38; L. J. R. 209.

3. Contract with passengers: latent defect in carriage: warranty and insurance. — Plaintiff, a passenger for hire on defendants' railway, suffered an injury in consequence of the carriage in which he was traveling getting off the line and upsetting. The accident was caused by the breaking of the tire of one of the wheels of the carriage, owing to a latent defect in the tire, which was not attributable to any fault on the part of the manufacturer, and could not be detected previously to the breaking. Held, affirming the judgment of the Court of Queen's Bench, that the company were not liable in respect of such injury, there being no contract of warranty and insurance in the case of passengers that the carriage should be, in all respects, perfect for its purpose; that is to say, free from all defects likely to cause peril. Readhead v. Midland R. R. Co. (Ex. Ch.) Q. B. 28; L. J. R. 109.

CONSIGNOR AND CONSIGNEE.

Acceptance of bill of exchange with bill of lading: condition precedent to vesting of property.—Plaintiff, a merchant, at Manchester, sent an order to P. N. & Co., at Pernambuco, to purchase on his account cotton, upon certain terms. P. N. & Co. accordingly purchased and shipped cotton in the defendants' vessel, and wrote to plaintiff, saying, "Inclosed please find invoice and bill of lading of 200 bales of cotton. We have drawn upon you in favor of our agents, to which we beg your protection." The invoice, which was headed" on account and risk of S. & Co." (plaintiff'), was sent to plaintiff as stated in the letter; the bill of lading, however, which made the cotton deliverable to order or assigns, was not inclosed therewith, but was sent to the agents of P. N. & Co., together with a bill of exchange drawn for the price of the cotton. The agents thereupon wrote to plaintiff inclosing the bill of lading and the bill of exchange, for which they requested protection. Plaintiff retained the bill of lading, but returned the bill of exchange unaccepted, on the grounds of non-compliance with the terms of the order. On presentment of the bill of lading to defendants they refused to deliver the cotton, having been advised of the circumstances under which plaintiff became possessed thereof, who thereupon sued them in trover: - Held (affirming the judgment of the Court of Queen's Bench upon a case embodying the above particulars and empowering them to draw inferences of fact), that the acceptance of the bill of exchange was a condition precedent to the passing of the property, and that this having been refused, defendants were justified in withholding the cotton. Shepherd v. Harrison (Ex. Ch.) Q. B. 38; L. J. R. 177.

CONTRACT.

1. Restraint of trade: action for consideration of executed agreement: divisibility of contract. - An action was brought to recover arrears of an annuity, the consideration for which was an agreement by the annuitant, a commercial traveler in the hop trade, “that he would not, at any time thereafter, either on his own account or on account of any other person or persons whomsoever, excepting the defendants, solicit orders for hops from any of the customers in the west of England or in South Wales or any district whatsoever." Held, without deciding whether the restraint of trade, so far as it regarded the west of England and South Wales, could be enforced, that the plaintiff, who had performed his part of the contract, was entitled to recover the consideration due in respect of it. Bishop v. Kitchin, Q. B. 38; L. J. R. 20.

2. Detinue for bank note deposited to secure payment of money advanced for immoral purposes. -To a declaration containing two counts, the first for the breach of a contract to redeliver a bank note to the plaintiff, the second, detinue for the same note, the defendant pleaded that it was deposited by way of pledge to secure the repayment of money advanced to the plaintiff. Replication, that the money was knowingly advanced for immoral purposes. Upon the trial the facts were proved as stated in the pleadings. Held, that upon the whole record the defendant was entitled to judgment, as it was impossible that the plaintiff could recover, except through the medium and by the aid of an immoral transaction to which he was himself a party, so that the maxim In pari delicto potior est conditio possidentis was applicable. Taylor v. Chester, Q. B. 38; L. J. R. 235.

3. Construction of, as to right to determine it on an event happening according to opinion of architect. — By a builder's contract the contractor was to do certain works for a burial board by a certain time for a specified sum, subject to certain conditions, by one of which the architect had power to give such further drawings as might appear to him proper. By another of such conditions the architect was empowered to grant an extension of time, if by reason of any additions to the works or other cause the contractor should, in the opinion of the architect, have been unduly delayed in the completion of his contract; and by another of such conditions, it was provided that it should be lawful for the burial board, in case the contractor should fail in the due performance of any part of the undertaking, or should become bankrupt or compound with his creditors, or should not, in the opinion and according to the determination of the said architect, exercise due diligence and make such due progress as would enable the works to be effectually completed at the time contracted for, to determine the contract and take possession of the works. Held, that the burial board was entitled to determine the contract, and take possession of the works upon the certificate of the architect, that in his opinion the contractor had so failed to exercise due diligence and make due progress, although he had been prevented from making such progress by delay in supplying him with the necessary plans and in defining roads which had to be made, the opinion of the architect being conclusive and binding on the contractor in the absence of fraud and collusion. Roberts v. The Bury Improvement Commissioners, C. P. 38; L. J. R. 367.

COVENANT.

1. "Assigns": land taken by railway company under compulsory powers: repeal of covenant by operation of laws. — A landowner who has covenanted in the usual form that neither he nor his "assigns" shall build upon his land, is discharged from his covenant after selling the premises to a railway company under their compulsory powers, as the company become assignees of the land, not by the voluntary act of the former owner, but by compulsion of law. Baily v. De Crespigny, Q. B. 38; L. J. R. 98.

as a beer-shop and public-house, contained a covenant by the lessor, for himself and his assigns, not to build, erect, or keep, or be interested or concerned in building, erecting or keeping, any house for the sale of spirits or beer within half a mile of the demised premises: Held, that the covenant did not run with the land, and could not therefore be sued upon by an assignee of the lease. Thomas v. Hayward, Ex. 38; L. J. R. 175.

DAMAGES.

1. Measure of: vendor and purchaser: power of transferring property, and default in delivering possession: profit on resale. Where the lease of a house was sold by auction the conditions of sale providing that possession should be given on the completion of the purchase, and the vendors, who were mortgagees of the property and entitled to convey it, failed to give possession because of their unwillingness to incur the expense of an ejectment against the mortgagor, who refused to quit the premises,-Held, that the ordinary rule limiting the damages in sales of real property did not apply, and that the purchaser could recover, not only the amount of the deposit and the expense of examining the title, but the loss of the profit on a resale of the premises, and the cost of the conveyance to the subvendee. Engell v. Fitch (Ex. Ch.), Q. B. 38; L. J. R. 304.

2. Proximate cause: negligence. - Defendants were com missioners under an act of parliament for improving the drainage of the fen lands, and in consequence of their negligence, the western bank of a cut made by them under their act gave way, and through the breach in the said bank the waters of a tidal river overflowed the lowlands lying west of the cut. Plaintiff was possessed of land on the eastern side of the cut, the water from which land used to drain to the west side through a culvert of defendants, which by their act of parliament they were to maintain open for a free passage of such water. After the bank had given way, but before the waters of the flood had reached the culvert, plaintiff stopped up the culvert, but the occupiers of lands on the west side of the cut, considering that the stopping of the culvert would be injurious to their lands, by preventing the great body of advancing water from finding an outlet there, removed the stoppage and the result was that the flood waters passed through the culvert from the western to the eastern side of the cut, and reached and inundated plaintiff's land. In an action by plaintiff for the damage sustained by his land being so inundated, Held, that plaintiff was entitled to recover such damage, notwithstanding it arose in part by the opening of the culvert after plaintiff had stopped it up, as such damage was the natural result of defendants' negligence. Collins v. The Middle Level Commissioners, C. P. 38; L. J. R. 236.

DEVISE.

Construction: estate tail by implication: failure of “issue:" power of appointment to children. — By will, taking effect before the Wills Act, lands were devised to the testator's grandson without words of limitation, and it was provided that if he should die without issue, the property should return to the testator's family, but if he should live to have children, he should have power to make a will of it to his children. Held, that "without issue" meant" without children," and not an indefinite failure of issue; and therefore that the testator's grandson took only an estate for life, and not an estate in tail by implication. Eastwood v. Avison, Ex. 38; L. J. R. 74.

FISHERY.

Tidal river: change of its course: non-user.-The tidal river Eden in the seventeenth century deserted its old channel, called the Loop, and formed a new channel, since called the Goat. The plaintiffs, having had a several fishery in the Loop created before Magna Charta, claimed a right to a several fishery in the Goat, as representing their several fishery in the Loop: Held, that their right was confined to a right to fish over the soil of the Loop, and was not transferred from the old to the new channel. The Mayor, Aldermen and Citizens of Carlisle v. Graham, Ex. 38; L. J. R. 226.

FIXTURES.

Trade fixtures; mortgagor and mortgagee.—The fixtures, though annexed to the freehold for the more convenient use of them, and not to improve the inheritance, and capable of being removed without any appreciable damage to the freehold, pass under a mortgage of the lands to the mortgagee. Climie v. Wood (Ex. Ch.), Ex. 38; L. J. R. 223.

FREIGHT.

Bill of lading: freight payable before delivery of goods: readiness to deliver. The defendants shipped a quantity of Portland cement on the plaintiffs' ship to be carried from London to Sydney, under a bill of lading by which "freight was to be paid within three days after the arrival of the ship, and before the delivery of any portion of the goods." After the arrival of the ship at Sydney, and before the expiration of such three days, the ship was obliged to be sunk in order to extinguish an accidental fire which had occurred in her hold. When the ship was afterward raised, the defendants' goods were found to be no longer existing as cement, and the consignees accordingly refused to accept them or to pay freight: Held, that as the plaintiffs were not during the three days after the arrival of the ship at Sydney ready and willing to deliver the goods, they could not recover freight. Duthie v. Hilton, C. P. 38; L. J. R. 93.

INFANT.

1. Contract during infancy: subsequent recognition of debt: construction of document. - To a declaration for goods sold and delivered, defendant pleaded infancy, and plaintiff replied a ratification of the debt after majority: in support of the replication a copy of the items of the account was put in evidence, at the foot of which defendant, after he came of age, had written, "Particulars of account to end of year 1867, amounting to 1627. 11s. 6d. I certify to be correct and satisfactory," with the addition of his signature. Held, not a sufficient recognition of the debt to satisfy 9 Geo. IV, ch. 12, § 5; and that the construction of the document was for the court and not for the jury. Rowe v. Hopwood, Q. B. 38; L. J. R. 1.

2. Necessaries: evidence: question of mixed law and fact. An infant (the son of a baronet, and having an income of 5001. a year, with the prospect of 20,0007. on attaining his majority) bought on credit a pair of solitaires, or shirtsleeve studs, composed of crystals adorned with diamonds and rubies, and a silver goblet, for presentation to a friend, at whose house he had been staying. No evidence was given of any thing peculiar in the defendant's station rendering it exceptionally necessary for him to have such articles. The jury, in answer to the questions put to them, found that the articles were necessaries, and suitable to the defendant's station and degree. Held, that, as the onus was on the plaintiff, and he gave no evidence to show that the articles were necessaries, the question ought not to have been left to the jury. Ryder v. Wombwell (Ex. Ch.), Eq. 38; L. J. R. 8.

The question in all such cases is one of mixed law and fact, the preliminary question being (as in all other cases), whether there is any evidence on which the jury could properly find for the party on whom the onus of proof lies. The judge (who must be supposed to know as well as a jury can know without evidence, what is the usual and normal state of things, and whether any particular article is of such a description that it may be a necessary under such usual state of things), must determine, first, whether the case is such as to cast on the plaintiff the onus of proving that the articles in question are necessaries, and then whether there is any sufficient evidence for the jury to satisfy that onus; and if there is not, he ought to direct a nonsuit. Ib.

LANDLORD AND TENANT.

Implied contract for delivery of possession: under-tenant holding over: damage: ejectment : amendment : payment into court. -Defendant held a house and premises as tenant of plaintiff, but without any lease or written agreement. He let

part of the house to T., and, having received notice to quit on the 25th of December, 1866, he gave notice to T, to quit on the 21st of December. T. refused to go out; defendant did ali in his power to give up possession. Plaintiff brought an action of ejectment against him and T.; judgment was signed on the 21st of May, 1867, and on the 29th of May possession was given by the sheriff to plaintiff:- Held, that plaintiff was entitled to recover rent for one-half year, and also the costs of the ejectment, on the ground that there was an implied contract that defendant would deliver up the absolute possession of the house and premises at the expiration of the tenancy. Henderson v. Squire, Q. B. 38; L. J. R. 73.

LIBEL.

1. Privilege: presumption as to absence of malice. - Where a letter containing defamatory words is written upon a privileged occasion, surrounding circumstances are to be considered in determining whether the words used are so much too violent for the occasion as to rebut the presumption of the absence of malice arising from the privilege of the occasion; and if from surrounding circumstances it appears that the words are capable of two constructions, one of which is compatible with the absence of malice, then the presumption of the absence of malice which existed in the first instance from the privilege of the occasion should be allowed to prevail throughout. Spill v. Maule (Ex. Ch.), Ex. 38; L. J. R. 138.

2. Privileged publication: parliamentary debates: articles commenting upon parliamentary debates. - The publication of a faithful report of a debate in either House of Parliament is privileged, so that the publisher is not responsible for defamatory statements made in the course of the debate so reported and published; and the publication of articles fairly commenting upon the debate so reported and published is equally privileged. Wason v. Walter, Q. B. 38; L. J. R. 34.

3. Privileged communication: publication of auditors' report by a company. - Plaintiff was the agent of defendants, a trading company, and it was part of his duty to furnish them with an account of his transactions, to enable them to prepare the balance-sheet for the inspection of the shareholders. This balance-sheet was duly referred to auditors, who reported that there was a deficiency for which plaintiff was responsible, and that his accounts had been badly kept. There was evidence that an explanation had been offered to the auditors, which they had disregarded; but no evidence that they had any knowledge of this explanation. The directors, after laying the accounts before a general meeting of the shareholders, caused a letter containing the part of the report which affected the character of plaintiff to be printed and forwarded to the absent shareholders: Held, first, that such letter was published on a privileged occasion, as it was the duty of defendants to communicate to all the shareholders any part of the report of the auditors which materially affected the accounts of the company; secondly, that there was no intrinsic or extrinsic evidence of malice to be left to the jury, as the report of the auditors was published without comment; that the explanations offered to the auditors did not come before the defendants, and that causing the letter to be printed was a reasonable and necessary mode of publishing it to the absent shareholders. Lawless v. The Anglo-Egyptian Cotton and Oil Co., Q. B. 38; L. J. R. 129.

4. In newspaper charging ingratitude: explanation accompanying charge. — A charge of ingratitude is actionable as libel; and, although facts be stated as the ground of the charge which do not warrant the opinion founded on them, the charge may still be libelous by raising a doubt whether there are not other facts justifying the charge. Therefore, though the charge be coupled with statements tending to explain it, it is still a question for the jury whether the words were used under such circumstances as to make them libelous. Cox v. Lee, Ex. 38; L. J. R. 219. (Balance next week.)