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of his employer for the amount, payable after the time when the money would become due, and his right to file a petition to enforce his lien would expire, and actually negotiates the same, and there is no evidence of the actual intent of the parties in giving and receiving them; and the fact that he afterwards takes them up and offers to surrender them in court is immaterial : Green vs. Fox and Others.
Mortgage-Surrender of Defeasance and Acceptance of new Bond.If a bond of defeasance which was executed by the grantee of land to the grantor at the time of taking the deed is surrendered and destroyed at the expiration of the time limited therein, and a new bond is given upon a consideration partly new, by which the grantee agrees to reconvey the premises to his grantor upon the payment within an additional time of a larger sum, the grantor thereby surrenders and abandons his title as mortgagor, and the grantee becomes the owner of the land in fee: Falls vs. Conway Mutual Fire Insurance Co.
Judgment - Conclusiveness of - Want of Authority in Attorney.--A domestic judgment rendered by a court of general jurisdiction in favor of the defendant, for costs, in an action between citizens of this common. wealth, canuot, if there was no fraud, and no want of jurisdiction is apparent on the record, be impeached in an action upon it, by proof that the action in which it was rendered was prosecuted by an attorney without authority, and without the knowledge of the party for whom he assumed to act: Finneran and Wife vs. Leonard and Wife.
Insolvency-Property in another State-Attachment by Citizen of this State enjoined. - If a citizen of this commonwealth has attached, in another state, personal property of a debtor who resides here, and who is insolvent under the laws of this commonwealth, it is the duty of this court, in the exercise of a sound judicial discretion, to enjoin the creditor from proceeding with his suit, if thereby the property will come to the hands of the assignees in insolvency: Dehon and Others vs. Foster and Others.
Sale by Sample-Latent Defect in Goods and Sample-Implied Warranty.--If manufactured goods are sold by sample, by a merchant who is not a manufacturer, and both the sample and the bulk of the goods contain a latent defect, there is no implied warranty against the defect, and evidence is inadmissible to show that by the usage of merchants the seller is responsible therefor; and if such sale is made through a commission merchant, who is not authorized to sell on credit, he must account to the consignor for the price without deduction for such defect : Dickinson vs. Gay and Another.
Deed executed during Insanity-Ratification-Prior Unrecorded Deed. -The ratification of a deed executed during insanity will not make it effectual as against the grantor's prior deed, executed while he was sane, and recorded after the formal execution, but before the ratification, of the second deed: Bond vs. Bond.
A party seeking to establish a deed, the validity of which is questioned on the ground that the grantor was insane at the time of its execution, has no ground of exception to an instruction to the jury that “ if the insane delusion was such that the party, though knowing that he was making a deed, and what its effect would be, yet was rendered indifferent to property by an insane delusion that he was about to perish, or that others who would be affected injuriously were about to perish, so that he was incapacitated from a rational care for his interests or theirs, then the deed may be avoided :" Id.
A party seeking to establish a deed of an insane person, on the ground that the grantor, after his restoration to sanity, has ratified it by receiving and accepting the consideration, has no ground of exception to an instruction to the jury that such acceptance must, to have this effect, “ be the intelligent act of the grantor, knowing that he was acting under the contract contained in the deed, and understandingly availing himself of the provisions of the contract in his favor :" Id.
Executor— Usury on Note due to Testator- Personal Liability. If an executor innocently receives unlawful interest reserved in a note due to his testator, an action cannot be maintained against him personally to recover back threefold the amount of the usury so paid, although he is described in the writ as executor: Heath and Another vs. Cook.
Grant of Land Condition Subsequent.--A grant of land, which has been used as a burying-place, to a town, " for a burying-place for ever," in consideration of love and affection," and divers other valuable considerations,” is not a grant upon a condition subsequent: Rawson vs. School District No. 5 in U.cbridge.
Insurance-Time Policy-Implied Warranty of Seaworthiness.—In a time policy on a vessel which, at the commencement of the risk, is in a foreign port, where full repairs may be made, there is an implied warranty of seaworthiness, both for port and in setting out therefrom: lloxie vs. Pacific Mutual Insurance Co.
SUPREME COURT OF WISCONSIN.1
Contract— Failure to deliver according to.—The defendant ordered a reaper, to be warranted in certain respects, and to be delivered to him on, &c., at M., to the care of D. & Co. When he called for the reaper at the time and place specified, he was shown the separate pieces of a large number of reapers of identical form and size, and was told by D. & Co. that one of them was designed for him, and that they would put one up for him if he would take it; but he refused. In an action by the manufacturers for the contract price, it was held, that if the machines were such as the order called for, the plaintiffs, having been ready and willing to perform the contract on their part, would have been entitled to compensation for any actual loss or expense which they had incurred in consequence of the defendant's refusal to take one of them ; but that there was no such delivery of any machine as vested the title in the defendant, and entitled the plaintiffs to recover the contract price : Ganson et al vs. Madigan.
Contract for Reaper— What a proper Delivery under.-If the plaintiffs had at the proper time set apart for the defendant, so as to make it capable of identification, a machine answering to the order, they might, on his refusal to accept it, either have sold it, with due precautions, to satisfy their lien for the purchase-money, and then have recovered any unpaid balance of the price, or have held it subject to the defendant's order, and recovered the whole contract price: ld.
Patent Ambiguity; Evidence to explain admitted.—The contract contained a warranty that the machine furnished should be “capable, with one man and a good team, of cutting and raking off * * from twelve to twenty acres of grain a day.” Held, that although the ambiguity in the contract, arising from the use of the word team (which may designate either one or more pairs of any kind of draught animals), is a patent ambiguity, yet it is of such a nature that it may be explained by oral evidence of the circumstances which attended the making of the contract; and it was not error for the court to admit in evidence declarations of the plaintiffs' agent who procured the order, made to the defendant at the time the order was given, as to the amount of power which the machine would require : ld.
From P. L. Spooner, Esq., to appear in Wisconsin Reports, Vol. XV.
Partition-Effect of Judgment in, upon Unknown Owners.—Where proceedings in partition are properly taken to bind unknown owners, the judgment not only concludes them in respect to any interest they may have as tenants in common, but precludes them from showing afterwards that they had a paramount title in severalty to any part of the partitioned premises : Kane vs. The Rock River Canal Company.
A complaint for partition stated that the plaintiff owned the undivided three-eighths of the land; that A., one of the defendants, owned an undivided one-eighth; that it appeared by the records that B., another defendant, owned one-sixteenth, and C., another defendant, one-fourth, and that F. did own the remaining three-sixteenths, but had died, leaving divers persons, to the plaintiffs unknown, his heirs; and that if said A., B., and C. did not own the interests so mentioned as belonging to them, such interests belonged to unknown owners, whose names, as also the names of said heirs, the plaintiffs were unable to ascertain. Held, that the allegations were sufficiently comprehensive to include any and all unknown owners, provided the title to any portion proved to be in different parties from those supposed : ld.
Where there are several plaintiffs in a suit for partition, an affidavit made by one of them only, stating merely, in the general language of the statute, that there are parties interested in the premises who are unknown," is not sufficient to authorize an order of publication which will give jurisdiction over unknown owners, there being nothing to show that there were not other owners known to the other plaintiffs : Id.
Garnishment— Municipal Corporation.—A municipal corporation is not liable to be made a garnishee in attachment: Burnham vs. The City of Fond-du-Lac.
Property of Married Woman— Trespass.-In trespass by a firm, one member of which is a married woman, against an officer, for taking, on an execution against the husband of the female plaintiff, goods which are alleged to belong to the firm, it is necessary for the plaintiffs to show that the interest of the female plaintiff in the goods was her separate estate: Duress et al. vs. Homeffer.
Voluntary Conveyance-Grantors in, will not be compelled to reform Deed.-Equity will not interfere to compel the affixing of a seal to a voluntary instrument of conveyance which was invalid for want of a seal : Eaton vs. Eaton et al.
NOTICES OF NEW BOOKS.
Reports of Cases ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT OP
MASSACHUSETTS. By CHARLES ALLEN. Volume VI. Boston: Little, Brown & Company, 1864.
We have another volume of Mr. Allen's valuable Reports, which contains many important cases, thoroughly considered and carefully reported. The subject of corporations, especially railways, occupies a large space in this volume. The question of easements, of light, air, and exemption from annoying or offensive trades and occupations attached to dwellinghouses, is here carefully reviewed by the court. And that is a subject beginning to occupy a large share of interest and attention in the cities and large towns in this country, as it long has done in England. We hope to present our readers with a paper upon the subject before
I. F. R.
A TREATISE ON THE LAW OF DOWER. By CHARLES H. SCRIBNER. In two vols.
Volume I. Philadelphia : J. B. Lippincott & Co., 1864. Shp., $6.
It was anciently said that the law had three favorites, life, liberty, and dower. Without discussing the reasons why a mere right of property should have been thus classed with the highest personal rights, we may say, that few subjects of so much importance have received so little separate treatment, and especially in the United States, where, if we except the brief though admirable compendium of Chancellor Kent (4 Comm.), and the small volume by Mr. Lambert, published in 1831, we have had no original work devoted to this important branch of the law.
In a great degree, doubtless, this has been attributable to an idea very general among the profession, that the common law doctrines, though forming the basis of the system in all the states, had been so universally and so materially changed by statutory enactments, that they could not be reduced to a systematic American treatise within any convenient limits.
The profession, we think, will be agreeably surprised to find how completely the work of Mr. Scribner has shown the error of this popular notion. The changes, though made at different times and expressed in every variety of legal phraseology, are shown to have followed, perbaps unconsciously to the innovators, the clear current of American opinion, which, in extending the modern principles of liberal equity into the