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In excepting to the opinion of the Court upon questions of evidence, be careful to have the question reduced to writing, the decision and the exception noted and signed by the judge. A life was once nearly lost by these matters not having been strictly attended to. Our most valuable knowledge sometimes springs from having fallen into dangerous errors. Habit should strengthen wisdom. Adopt, therefore, an inflexible rule and never waive its application. Remember a writ of error is of no use, nor will an allocatur even be granted, unless the error be explicitly presented upon the judge's notes.
If the charge be against you, except to it, but not in the presence of the jury; and to make matters “doubly sure," as judges do not often write their entire charges, a phonographer should be employed to furnish a literal copy and thereby prevent future difficulty, should ulterior proceedings become necessary.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF MASSACHUSETTS."
Attorney-Claim for Services --Statute of Limitations.—The statute of limitations does not begin to run against any part of the claim of an attorney at law for services rendered and moneys paid in conducting a suit to its termination, under a general employment, until the final entry of judgment therein : Eliot vs. Lawton.
Contract—Lien— Vesscl.—Under a contract to build three light vessels for the United States, and to deliver them completed within a fixed time, and to be governed during the progress of the building of them by the directions of an agent of the United States, and to perform the work to his satisfaction, for a price to be paid after their completion, with a provision that the United States may at any time declare the contract null, no title to the vessels passes to the United States until their completion and delivery, and a lien exists and may be enforced upon one of them in favor of one who has furnished to their builder timber which has been used in its construction, although no specific portion of the timber was designated or appropriated to each of the vessels; and the United States, by accepting the vessels upon their completion, take a title subject to the lien: Briggs et al. vs. A Light Boat.
1 From Charles Allen, Esq., Reporter, to appear in Vol. VII. of his Reports. The abstracts in our June number, erroneously stated as from Vol. VI., will also appear in Vol. VII.
A light boat built and adapted to be used as a floating light is a vessel upon which a lien for materials furnished may attach, under Gen. Sts. c. 151, $ 12: ld.
The city ordinance of New Bedford, prohibiting the sale of any timber brought into the city for sale, without a survey, does not apply to timber delivered there to be used for a specific purpose under a special contract made elsewhere: Id.
Promissory Note.—A written contract in this form : “Twelve months after date, we promise to pay to ourselves or order three hundred and twenty-one dollars for value received, payable in Boston, and subject to the policy. J. S. & Co.” (Indorsed) “Pay to the order of the Anchor Insurance Co. J. S. & Co.,” is not a negotiable promissory note : American Exchange Bank vs. Blanchard.
Promissory Note- Liability of One not the Maker- Authority to Sign.-Liability as the maker of a promissory note which is signed by another person with his own name alone, without words of procuration, cannot be established by proof that the person sought to be charged employed the signer of the note to carry on business for him, that the note was given for the price of articles used in the business, and that he subsequently admitted the signer's authority "to sign the note for him :" Brown vs. Parker.
Promissory Notes-Collateral Security - Application by Holder.- A creditor who holds security, without special stipulations for its application, for various notes due from his debtor, some of which bear the names of sureties, may, in case of the insolvency of the principal debtor and of some of the sureties, apply the same towards the payment of such of the notes as may be necessary for his own protection ; and solvent sureties upon other of the notes cannot avail themselves thereof in any way, in equity, without paying or offering to pay the whole of the notes for which the security was given : Wilcox et al. vs. The Fairhaven Bank et al.
Railroad Company-Loss of Baggage-Connecting Lines.-If various railroad companies whose lines connect together from Massachusetts into the British Provinces have arranged together for an excursion train over their several roads, and the company at this end of the route issues tickets with coupons attached for the whole distance, and its agent refuses to give a check for the luggage of a purchaser of such ticket, saying that the same “would be perfectly safe, as he was to go through with them,” and the luggage is accordingly put into one of the company's baggagecars, which is sent through the whole distance in charge of its agent, the company is liable if the luggage is lost anywhere upon the route : Najac vs. Boston and Lowell Railroad Company.
Right of Way- Acquisition of by User.-A right of way as appurtenant to land, may be acquired by the adverse use, for twenty years together, of several persons in succession, who claim under the same title; and a grant of the land," with the privileges thereunto belonging,” to have and to hold the same “with all the privileges and appurtenances,” by an owner who has commenced such use, constitutes a sufficient privity of estate to enable the purchaser to avail himself of his grantor's use: Leonard vs. Leonard.
Polygamy—Indictment for—Divorce as a Defence— Onus Probandi.If the defendant in an indictment for polygamy relies upon a divorce as a justification of a second marriage, it is incumbent on him to prove it: Commonwealth vs. Boyer.
COURT OF APPEALS OF NEW YORK.'
Arbitration— Void for Want of Jurisdiction of Subject-Matter- Mar. ried Woman--Separate Estate.—The submission to arbitration of any claim to a freehold in real estate, being prohibited by statute, is not merely voidable, but is void and incapable of ratification : Wiles vs. Peck.
Since the act of 1819, for the protection of the rights of married women, it seems that no acknowledgment is requisite to a conveyance of the separate estate of one : Id.
Married Woman-Coercion-Policy of Insurance-- Transfer.—Terri. fying a woman so as nearly to produce hysterics by threats of prosecuting her husband for alleged embezzlement, is such coercion as to aroid a transfer of her separate property thus obtained : Eadie vs. Slimmon.
To appear in Vol. XII. of E. P. Smith's Reports.
A policy of insurance to a married woman, made under chapter 80 of 1840, for her benefit and that of her children in case of her death, cannot be transferred so as to divest the interest of the wife or her children: Id.
Insurance — Death of Insured-Upon whom the Interest devolves. Upon the death of one who has effected an insurance against fire of his house, the interest in the policy devolves upon his heirs at law, and, in case of loss, the damages accrue to them: Wyman, Administratrix, vs. Wyman et al.
Where the policy runs to the assured, his executors or administrators, the personal representative may, it seems, maintain an action, as trustee, for those beneficially interested in the real estate : 11.
The damages recovered stand in the hands of the administrator, not as personal assets, but as realty, subject to dower and to the lien of creditors by judgment before distribution among the heirs at law.
Criminal Law, Seduction-Previous Chaste Character--Evidence. Under the act to punish seduction as a crime (ch. 111 of 1818) it is sufficient that the defendant effected his object by a conditional promise that, if the girl would permit his illicit connection, he would marry her: Kenyon vs. The People.
The submitting to his embraces upon this proposition is, it seems, a promise to marry on her part: ld.
Evidence of general reputation of the girl's want of chastity is inadmissible. Previous chaste character, in this statute, means actual personal virtue—not reputation; and can be impeached only by specific proof of lewdness : Id.
The corroboration of the seduced female, required by the statute, relates to the promise and the intercourse : it is not necessary
in respect to her chastity or to her being unmarried: Id.
The evidence of the seduced female is admissible that the promise of marriage was the inducement to the illicit intercourse : la.
It is unnecessary that the promise should be a valid one, or that the defendant be of full age. It is sufficient that he has arrived at the age of puberty: 1a.
Criminal Law-Counterfeiting Bank Check-Averment of ForgeryCertified Check. --To convict one charged with uttering a counterfeit bank check set out in the indictment and purporting to have been certified by some person purporting to be connected with the bank on which the check was drawn, it is sufficient to prove that the words of certification were false, and that no person of the name signed to the certificate was connected with the bank, without showing that the signature of the drawers was a forgery: The People vs. Clements.
A certified check on a bank is an instrument which, as an entirety, comes within the statute of forgery; and where evidence, received without objection, shows that any material part of it was forged, e.g., the certificate, it is immaterial that the indictment does not specify that the forgery was of the certification, and not of the check itself: Id.
The indictment need not aver that the paper is, in the words of the statute, "an order for the payment of money, or any instrument by which a pecuniary demand is created :” Id.
Rex vs. Horwell, 6 Carr. & Pa. 148, distinguished, on the diversity between our statute and the British: Id
Promissory Note- Alternative Condition-Notice.--A promissory note was payable in four annual instalments, or when $50,000 should have been subscribed for the endowment of a college, the payee, at the election of the maker. The four years having expired, the payee may recover without proof of notice that the subscription was completed, or of demand of payment: The Genesee College vs. Dodge.
Genesee College could lawfully stipulate, in consideration of a subscription to its endowment, to give one free scholarship for ever to the subscriber, his heirs or assigns, in another incorporated seminary of learning: ld.
Mortgage of Vessel- Act of Congress of July 29, 1850.-The Act of Congress of July 29, 1850, for the recording in a collector's office of mortgages of vessels, does not supersede a state law requiring the record of such mortgage with a state officer as the condition of its validity against third persons : The Ætna Insurance Co. vs. Aldrich et al.
Held, accordingly, that the mortgage of a vessel recorded in the collector's office at Chicago, where the parties resided, was void as against a creditor in this state, because not recorded as required by the law of Illinois : Id.
Sale- Vendor and Vendee-Defective Title - Action for Price- Waiver of Fraud.—One who was entitled to logs which he had cut upon the land of another, under an agreement that they were to be his when he paid a certain sum, greatly inferior to their value as logs, sold them, without