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disclosing his defect of title. The vendee, after learning the facts, agreed to pay upon a deduction being made from the price upon other ground than the defect of title. This was a waiver of defence on the grounds of fraud : Sweetman vs. Prince et al.
Assuming that the vendor was guilty of deceit, and that the vendee had not waived his defence, whether he could set it up, not having been disturbed in the possession by the person having the legal title, and not having offered to return the property to the vendor, quere : Per MarVIN, J.: ld.
The vendee of chattels may, it seems, voluntarily yield possession to a claimant, and recover against the vendor on the implied warranty of title, upon showing that the claimant had title paramount: Per MARVIN, J.: Id.
Vendor und Vendee-Failure to deliver proper Quantity of GoodsWaiver of Defence for such Failure.—Where goods are received and used by the vendee under a contract for the delivery of specified quantities in each of three successive months, the quantity delivered being less than that required by the contract, such breach is a bar to an action by the vendor for the price of the goods delivered : Catlin vs. Tobias.
The vendee under such a contract has a right to expend the goods delivered, as required in his business, without waiting for the expiration of the month to see whether the vendor will fully perform his contract, and such use is no waiver of his defence in case of the vendor's breach of contract: Id.
SUPREME COURT OF PENNSYLVANIA.?
Assumpsit for Money had and received against One to whom Money was delivered by Debtor for Plaintifi.-One in whose hands money is placed by a debtor for the payment of a debt, is liable in an action for money had and received, at the suit of the creditor to whom the payment was to have been made : Stoudt vs. Hine.
As the defendant was liable as agent rather than as surety, it was not necessary that his promise should have been in writing, and hence the Statute of Frauds does not apply: ld.
Liability of Railroad Company for Baggage of Passenger lost in passing over Connecting Rouds for which Ticket was sold.—Where the ticket sold by a railroad company to a point upon a connecting road, contained a printed stipulation, that in selling the company acted as agent only for roads beyond the terminus of their road, and assumed no responsibility therefor, the
1 From Robert E. Wright, Esq., Reporter; to appear in Vol. IX. of his Reports.
company is not liable to a passenger for the loss of baggage not occurring upon the line of their own road : Pennsylvania Central Railroad Co. vs. Schwarzenberger.
Settlement by Husband on Wife, when good in Law-Fraud a Question of Fact for the Jury-Settlement made in another State, effect of on Claim of subsequent Local Creditor—Declaration of Parties relative to Transaction, when Evidence.—A husband may, without the intervention of a trustee, settle upon his wife a reasonable portion of his estate, if it be not done in contemplation of future indebtedness and he be free from debt or perfectly solvent after payment of all his existing debts : but the settlement must be in such a form as to place the gift within her power and under her control: Townsend et al. vs. Maynard.
Upon such a settlement no legal presumption of fraud arises, but the question is one of fact for the jury as to the intention of the parties : N.
Where a settlement by a husband was made in another state, by permitting a mortgage taken for real estate sold by him to be made to his wife, who, on payment of the amount due, loaned it to him upon his note to a trustee for her use; such settlement cannot be impeached by creditors in this state, whose claims arose several years thereafter and more than one year after the husband had removed and engaged in business here, the transaction being valid under the lex loci contractus : Id.
•The declarations of the husband and wife, not relating to the original ownership of the money by her, but only to its transmission by her to her husband as a loan evidenced by a note given by him to her trustee, occur. ring before any claims of creditors existed, are competent evidence: Id.
Liability of Firm, for Debts contracted by Partner in his Own Nome, in Trust for Partnership Purposes. - Where a partner buys real estate in his own name and gives his individual bonds and mortgage in part payment therefor, the firm is not liable to the seller for the unpaid purchasemoney, though it appear by the firm-books that the land was bought on firm account, and a declaration of trust was afterwards executed by the purchaser, but not recorded, declaring that the money paid was partnership funds, and that the land was held by him in trust as partnership property: North Pennsylvania Coal Company's Appeal.
After failure of the firm, on sale of the land by their assignee, the partnership creditors were held alone entitled to share in the proceeds, and not the vendors, who could claim only against the purchasing partner: Id.
Unrecorded Mortgage, Valility of as to subsequent Judgment-Creditors.A mortgage given for the purchase-money of real estate, executed before, but not recorded until after judgments had been entered against the mortgagor, is entitled to priority over them in the distribution of the proceeds of a sheriff's sale of the land where the judgment-creditors had actual knowledge of the mortgage before the debts were contracted for which the judgments were obtained : Britton's Appeal.
Detention or Stoppage in Transitu of Goods sold, not a Rescission of the Contract.—The detention, by vendors, of goods sold, on the insolvency, and assignment for benefit of creditors by the vendees, does not rescind the contract of sale : and the vendors are entitled to pro rata distribution out of the assigned estate: Patten's Appeal.
Where a part of the goods had been delivered, and the balance which had been detained was sold by the vendors, who applied proceeds to the payment of the notes given upon the sale, leaving a balance still due, it was held, that they were entitled to a dividend upon the whole amount of their claim at the date of the assignment: Id.
Water-Rights - Right of Plaintiff to recover Damages for swelling Water restricted to Six Years without Plea of Statute of LimitationsEffect of Natural Obstruction in Stream in connection with Dam, complained of—Rights of Riparian Owner controlled by actual visible Facts rather than instrumental Measurement.-In an action for swelling back water in a creek upon plaintiff's land, by a dam erected by defendant, the instruction of the court to the jury that the plaintiff could recover damages only for six years prior to bringing suit, though undecessary, as the Statute of Limitations had not been pleaded, was harmless to the defendant and cannot be assigned as error by him: Brown vs. Bush.
Where a natural or artificial “ stone row" had existed in the bed of the stream on land of the defendant for many years, forming, as alleged, a dam which flooded the plaintiff's land, it was error to instruct the jury that the “stone row” was not such an obstruction as would acquire a right from lapse of time: but where, in direct connection therewith, the court charged that if the stone row did form a dam and raise the water, the question was whether the dam did not swell back the water still farther upon plaintiff's land, the error was immaterial and formed no ground for reversal: Id.
The water-power of a riparian owner consists of the difference of level between the surface of the stream at its entry on, and the surface at its exit from his land: but though instrumental levelling shows more fall on the land than the owner has height at his dam, yet if" actual visible facts” show a swelling back of the water upon the adjoining owner's land farther than before the erection of the dam complained of, the instrumental measurements must give way to the actual facts as shown on the ground: and instruction to the jury to give preference to the actual facts over the instrumental evidence, is not error: Id.
Account Render-Party incompetent as Witness-Dismissal of Bill in Equity filed by Plaintiff, no bar to Action after Plea of Quod ComputetAccount of Auditor, what to be included in.-In account render after judgment of quod computet confessed by the defendant, he is not a competent witness in his own behalf before the auditor appointed to ascertain the amount due and make report: Tutton vs. Addams.
Where a bill filed by plaintiff had been dismissed at his costs, before the institution of the action of account, the defendant cannot, after his confession of judgment therein, set up the decree in equity as a bar to the action : ld.
It is the duty of the auditor to include all matters of account between the parties arising subsequently to the institution of the action, down to the time of filing his report: Id.
Quo Warranto to try Right to Office must be brought during the Official Lifetime of the Officer-Officer de facto will be considered also de jure as to all Official Acts, unless judicially removed before Expiration of Term.—If an election for managers of a corporation be not disputed during their term of office by quo warranto, and they are permitted to act throughout their term as managers de facto, the legality of the next election cannot be questioned for any vice or irregularity in the first: Commonwealth ex rel. Jackson vs. Smith.
Where the charter did not fix the place at which the annual elections should be held, the board of managers for the time, had the right to fix it as officers de facto : their title could only be tested by quo warranto brought in the lifetime of their office: Id.
A writ of quo warranto brought within the term of að office may
tried after the term has expired: but title to a past and defunct office cannot be tried in a proceeding instituted, not against incumbents during its lifetime, but against those succeeding the next year: Id.
Husband and Wife-Declaration of Husband as to Wife's Ownership of Property inadmissible Testimony for Her-Possession by Wife no Evidence of Ownership-Gift to Wife not a Settlement. The declaration of the husband that certain property belonged to his wife, is not admissible as evidence in favor of the wife: Parvin vs. Capewell.
The mere possession of money by a wife is no evidence of her title to it for the purposes of the statute; it ordinarily implies that she is holding it for her husband : ld.
The mere gift of money by the husband to the wife, is not a settlement of it as her separate estate: Id.
Construction of Will - Meaning of Word "Heirs," in Residuary Clause of Will containing Legacies to Persons who were Heirs at Law and Others not related to Testator.—In a bequest by a testator of his residuary estate to be equally divided amongst the whole of heirs already named in this my will proportioned agreeably to the several amounts given to each in the body of this my will," the word "heirs," is to be taken in its technical signification, as referring to those named in the will who would have been his legal heirs had he died intestate, and not to legatees who were strangers to his blood : Porter's Appeal.
NOTICES OF NEW BOOKS.
REPORTS OF CASES ARGUED AND DETERMINED IN THE SURROGATES' COURTS OF THE
STATE OF New YORK. By AMASA A. REDFIELD, Counsellor at Law. Vol. I. New York: John S. VOORHIES, Law Publisher and Bookseller, 20 Nassau street. 1864.
This volume is a continuation of Bradford's Surrogate Reports, and forms the fifth of that Series. We are very glad to see that the publication of this class of reports is resumed. Bradford's Reports were heartily welcomed by the profession, and contained cases of great interest which were thoroughly and learnedly discussed by the Court. They were confined, however, to the City of New York. Mr. Redfield's volume is of