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an hereditament, descendible and inheritable. Cases above, and McCall v. N. Y. & Erie R. R., 12 N. Y. 131. It follows that any release of the rent must be by deed, therefore there can be no presumption of law from lapse of time, but a presumption in the nature of evideuce may be drawn from all the facts in the case as a jury would draw an inference of fact. Lapse of time is a circumstance, but, perhaps, not of itself sufficient. In this case, the period from 1817 to 1839 must be laid out of account, because it does not appear, affirmatively, that the rent has not been paid. Tyler v. Heidorn, 46 Barb. 461, there remains a period of twentyfive years during which rent has not been paid, or demanded. It is claimed that the presumption of release is rebutted by the proof that no release has been given. It is answered that the presumption does not at all depend upon the truth of the matter.

In Hillary v. Waller, 12 Ves. 252, 266, it is said to rest upon the ground that there are no means of creating belief or disbelief, but it is not saying that you can presume against your belief. In Eldridge v. Knott, Cowp. 214, it is said to be for the purpose of quieting the possession. But the same case draws a distinction between a presumption to sustain a right and one to defeat a right. But many cases put it upon the presumed intention of the releasor. Giles v. Baremore, 5 Johns. Ch. 550; Jackson v. Welden, 3 Johns. 283, 290. If this be so, then, as soon as the intention is established, the fact becomes immaterial. But this is opposed to the rule under which the presumption is drawn. It is said to be in the nature of evidence of a release. But, if that is all, evidence that a release has not been given will rebut it. Again, all the cases hold that an acknowledgment by the releasee will rebut it. But, if the intention of the releasor is the ground, how can the admission of any one else affect that? The conclusion is, that some weight must be given to the proof that there is no release. That fact may be important in ascertaining the releasor's intention, and a greater lapse of time and more unequivocal acts ought to be required, than if there were no such fact. On the former appeal there was no such proof, and it was held, that the presumption should have been drawn after twenty-two years. Lyon v. Chase, 51 Barb. 14. That is the only reported case where a presumption has been drawn in less than thirty years. The proof that no release has been given is sufficient to distinguish the cases, and sustain the referee's finding. Held, also, that the rule that persons of the same name will be presumed to be the same person, in absence of proof that there are two persons of that name (2 Cow. and Hill's Notes, 130, ed. 1839) should be applied to parcels of land owned by the same person, in ascertaining facts relating to ancient possession; that, therefore, "the Abner Bull farm" will be presumed to be the land described in the indenture. Held, also, that the indenture was properly admitted as an ancient deed (Clark v. Owens, 18 N. Y. 437; Enders v. Steinberg, 1 Keyes, 268; Jackson v. Laraway, 3 Johns. Cas. 288; Kewlett v. Cook, 7 W. 371; Bogardus v. Trinity Church, 4 Sand. Ch. 633); its existence is traced back twentyfive years. Held, also, that the indenture, if admissible, proves Van Rensselaer's seizin. Judgment affirmed, with costs. Lyon v. Brown. Opinion by Potter, J., Miller, P. J., and Parker, J., concurring in the result. 3. Admission of party's declaration in his own behalf. - Action upon a warranty of a horse sold by defendant to plaintiff. There was a bunch upon the horse's leg at the time of the sale, which defendant warranted to

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get well if treated with salt and vinegar. At the trial defendant, to show negligence on plaintiff's part, proved, by a farmer, that he had been consulted by plaintiff as to the bunch upon the horse's leg, but his advice had not been followed. Plaintiff's counsel then put this question to the witness: "What reason did he give for not adopting your treatment on that day?" This was allowed under defendant's objection and exception, and the answer was, that plaintiff said he had no right to pursue that course, because he had been instructed by defendant to use salt and vinegar. Plaintiff had a verdict, and the exceptions were ordered to be heard in the first instance at the general term. Held, that, although had this been affirmative evidence on plaintiff's part it would have been improper, yet, as it was introduced to rebut the charge of negligence, and in explanation of what otherwise might have been so considered, and which had been called out by defendant, it was not error under all the circumstances. Judgment ordered on verdict. Smith v. Borst. Opinion by Potter, J., Parker, J., concurring in the result.

4. Evidence in mitigation of damages. In an action for assault and battery defendant offered to prove in mitigation of damages a series of provocations by the plaintiff, continued from day to day, and that at every time the parties met plaintiff took occasion to insult defendant with most opprobrious language, and to such an extent as to render defendant wild, excited, frantic, and partially insane. The court ruled that defendant might show what took place on the day of the assault or the day before; but not what happened several days before, as defendant had time for his passions to cool. To this defendant excepted. The plaintiff had a verdict, upon which judgment was entered, and the exceptions were ordered to be heard, in the first instance, at the general term. Held, by the general term, that the question is not how many hours have elapsed since the provocations were given, but whether, in view of the circumstances of the case, the party has had a reasonable time to cool his blood. The courts have never adopted an arbitrary rule fixing a precise period of time by days and hours by which to limit the time for the passions of a party to cool. Ordinarily one day would be sufficient, but where there has been a determined design to continue and repeat insults for the very purpose of exciting another, and to keep him excited, and this course of conduct has been repeated every day and on every occasion, it is not reasonable to suppose that such a case is to be controlled or limited by a few hours or by a single day. Richardson v. Montross, 56 Barb. 109; Stellar v. Nellis, 42 How. Pr. 163. Judgment reversed; new trial ordered, costs to abide event. Dolan v. Fagan. Opinion by Potter, J. 5. Handwriting. — Action for value of standing timber, under an instrument called a bill of sale. The case has been four times tried. At the first trial, before a referee, the plaintiff had a report, the judgment entered upon which was reversed by the general term, reported in 57 Barb. 243; 39 How. Pr. 377. At the second trial, by a jury, the defendant had a verdict, which was set aside by the general term, reported in 41 How. Pr. 421. At the third trial the jury disagreed. At the fourth trial, which is the one in question, one of the matters in controversy was as to the genuineness of the signature of one Walley, as subscribing witness to the bill of sale. Walley had been dead many years, and the plaintiff offered evidence to prove the genuineness of the signature, and rested, having, among other

things, read in evidence a certain lease. The defendant then offered an assignment of that lease, to which assignment Walley appeared as a witness. Plaintiff objected, that it was offered only for the purpose of comparing Walley's two signatures; but the court overruled the objection, and it appeared from the subsequent rulings of the court that it was admitted upon that ground. One Smith was then called as a witness, and asked to compare the two signatures, and was allowed, under plaintiff's objection and exception, to show the dissimilarity of the two signatures; that the one was a natural, the other an unnatural hand; the difference in the color of the ink, the writing and slant of the letters, and to say that if one was genuine he should reject the other. It was conceded, and the objections stated the facts, that the witness never had any knowledge of the handwriting about which he was testifying. The defendant had a verdict, and the exceptions were ordered to be heard, in the first instance, at the general term.

Held, by the general term, that the questions put to the expert would have been proper, within the rule of Van Wyck v. McIntosh, 14 N. Y. 439; Dubois v. Baker, 30 N. Y. 355 to 366; Johnson v. Hicks, 1 Lans. 150, 162; Ellis v. The People, 21 How. Pr. 356; and the former opinions in this same case, if the witness had been acquainted with the handwriting in question, or if the assignment had been properly in evidence for other purposes. But that the admission of the assignment, solely for the purpose of getting a signature for comparison, was error, upon the authority of those cases. New trial ordered, costs to abide event. Goodyear v. Vosburgh. Opinion by Potter, J., Miller, P. J., concurring in the result, Parker, J., dissenting, upon the ground that the assignment was properly in evidence, for other purposes, and that therefore the rule stated above did not apply.

6. Witness who has sworn falsely. - Action on a promissory note made by the defendants to one Warner and alleged by the plaintiff to have been transferred to him. Defense, that the note was not the property of the plaintiff, but of one Newton. At the trial defendant read in evidence a written transfer of the note from Warner to Newton, dated April 5, 1870, and Warner then testified that he had never transferred the note to plaintiff, but had left it with his daughter. Warner's daughter then testified that the note was in her possession January 21, 1870, that Warner was then in prison charged with felony; that plaintiff, who was an attorney, employed by Warner, called upon her that day, and told her that her father "would have to go up," and that he had come to get the notes to turn them into money for herself and sister, and that she then gave him the note and took his receipt, which was put in evidence. On the other hand, plaintiff testified that this note, with others, had been transferred to himself and one Miner, by Warner, orally, for professional services, and that he had obtained them from Warner's daughter by Warner's direction, and that he had acquired Miner's share, and that he denied the declarations testified to by Warner's daughter. Miner then testified to the same facts. Plaintiffs then read a portion of Warner's sworn answer in a suit by Newton against Warner, these defendants and others, for the recovery of several notes. The answer alleged that Warner had held "some obligation" against some of the defendants in that action, "but that he does not now hold or own the same, and has not since this action was commenced." That action was begun January

21, 1870. Miner then testified that the note in suit was one of the notes referred to in that answer. Warner then swore that he verified the answer without reading it. Upon this evidence the court directed a verdict for the plaintiff for the amount due, and denied the defendant's motion to submit the question of ownership to the jury. Held, by the general term, that a witness is competent until a judgment for felony is brought against him, and that the question of his credibility is entirely for the jury, under proper instructions from the court; that, therefore, the testimony of a witness who is shown to have sworn falsely, though upon a question material to the issue, cannot be entirely disregarded. The case of Dunlop v. Patterson, 5 Cow. 243, relied upon to sustain the contrary view, is ambiguous. It does not appear whether the judgment was reversed because the testimony of the perjured witness should have been entirely disregarded, or because the court had not properly instructed the jury in regard to its weight. And its authority upon the point in question has been destroyed by Dunn v. The People, 29 N. Y. 526, 528; and is qualified by The People v. Evans, 40 id. 6. The court should instruct the jury as to the weight to be given to such evidence; should call their attention to the circumstances under which apparently contradictory evidence was given; to the influences under which such statements were obtained or made; if made in writing, whether deliberately written by the witness himself, or whether prepared by another whose interest it was to have the statement in a particular form; whether the statement was read and fully understood by the witness, or whether it was signed in the full confidence that it was right upon the statement of another. Held, also, that the false swearing was not sufficiently proved. The identity of the note in suit with either of those referred to in the answer was shown only by Miner's testimony. It was, therefore, simply oath against oath. And that the answer was not necessarily contradictory of Warner's testimony that he had never transferred the note to plaintiff. Held, also, that there was evidence for the defendant beside Warner's. The plaintiff's declarations, sworn to by Warner's daughter, would warrant an inference that plaintiff received the note by an authority from Warner which he could revoke. Judgment reversed; new trial ordered, costs to abide event. Warren v. Haight and Lusk. Opinion by Porter, J., Miller, P. J., and Balcom, J., concurring.

HUSBAND AND WIFE.

Action for services. - Plaintiff is the husband of defendant, and the services were rendered while they were living together as man and wife. Before a justice of the peace, plaintiff obtained a verdict which was affirmed by the county court. Defendant appealed. Held, by the general term, that a husband cannot sue his wife. At common law the husband and wife became, by marriage, one person; her legal existence was incorporated in his. 1 Black. Com. 442; Littleton, §§ 168-291; Bright on Husb. and Wife, 2. In consequence of this unity neither could make a contract with or a grant to the other. Shepherd v. Shepherd, 7 Johns. Ch. 60; Voorhees v. Pres. Church, 17 Barb. 104, 105; White v. Wager, 25 N. Y. 329; McQueen on Husb. & Wife, 18. The wife's incapacity to make contracts has to some extent been removed by the married woman's act. But, except as her incapacity has been thus removed, the unity of the marriage relation remains unchanged as at common

law. The new powers conferred were in derogation of the common law, and those statutes are therefore to be construed strictly. Coke's Inst. 97 b; Graham v. Van Wyck, 14 Barb. 531, 532; 4 Sandf. 236. They are also to be construed with reference to the common law. It is presumed that the legislature did not intend to make any innovation further than the case absolutely required. 1 Kent's Com. 464, citing Dwarris. The married woman's acts relate only to the management by a wife of her separate property. They have conferred no new powers upon the husband, nor have they released him from any of his duties. His condition remains unchanged as far as the unity of the marriage relation is concerned. White v. Wager, 25 N. Y. 333. There is no expression in either the titles, enacting clauses, letter or spirit of those statutes, of an intent to destroy that unity. On the contrary they recognize the disqualification of husband and wife, in the right which they give the wife to take estates from any other person than the husband. The husband is still liable to support his wife, and a tradesman can sue him for necessaries furnished for her support, but he cannot sue the wife, and no law has given the husband a greater right than a stranger. It is true the statute confers upon her the power to "sue and be sued," but the husband always possessed that power at common law, and still he could not sue his wife or be sued by her. If the unity of the marriage is abrogated by the gift of this power to the wife, therefore, it ought to have been destroyed by the like power which the common law conferred upon the husband, and have never existed at all. The legislature, in the last of these statutes (ch. 887, Laws 1867), has expressly recognized this unity. The conclusion is, that the statutes referred to have not destroyed the unity of the marriage relation; and husband and wife have not the power to contract with each other, nor has the husband power to sue his wife. And this has been twice adjudged by this court. Gould v. Gould, 29 How. Pr. 441; Longendyke v. Longendyke, 44 Barb. 366. The decisions that a wife, having a separate estate, may employ her husband as agent do not conflict with this view. The wife could be employed by the husband at common law. Fairbanks v. Mather, 60 Barb. 407, holds nothing more than this, that there may be a contract of agency. The wife there gave her husband a job of building a cellar for a price, but the case does not hold that he could have enforced it at law, and the jury found as a fact that he was her agent. Adams v. Curtis, 4 Lans. 164, is not in conflict with this view. There a wife sued upon a contract with a copartnership of which her husband was a member, but he did not appear in the action, nor any one for him. The opinion of Miller, Ch. J., is simply that such a contract could be made and maintained; that of Hogeboom, J., is that even if the husband could not be sued, still the copartner is bound. Minier v. Minier, 4 Lans. 421, is not in conflict. It holds that a wife may sue her husband for moneys intrusted to him by her, or for lands which he had bought with such moneys. But such has always been the rule in equity; and, because a wife can sue her husband, it does not follow that he can sue her. See this distinction in Hunt v. Johnson, 44 N. Y. 27. The obiter remark in Minier v. Minier is in conflict with White v. Wager, 25 id. 328. A construction similar to this view has been given to the Pennsylvania statute (Laws of 1848, p. 536), which is very like ours. Diver v. Diver, 56 Penn. St. 109. Judgment of the county court and of the justice reversed,

with costs. Perkins v. Perkins. Opinion by Potter, J.; Balcom, J., concurring; Miller, Ch. J., concurring in the result.

DIGEST OF RECENT AMERICAN DECISIONS.*

ADMINISTRATION.

1. Where, on the final settlement of an administration, ancillary to another in another State of the Union, under a will, the administrator is allowed credit for proceeds of the sale of land for division, which he had previously transmitted to the principal administrator, this court will not reverse the decree, at the instance of a resident devisee, when no injury is shown. Cochran v. Martin.

2. When a person who is indebted to an estate becomes the administrator, he is chargeable with the amount of the debt, as assets collected, although he is but the surety of another. But to reverse a decree of the probate court refusing to charge him with it, enough of the evidence must be set out to show error. Ib.

ASSAULT.

1. On the trial for an assault with a gun, if the evidence leaves it in doubt whether the gun was presented, it is an error to refuse to charge the jury, on the written request of the defendant, that, "to constitute an assault with a gun, it is necessary that the gun be presented at the party charged to be assaulted." Fisher v. State of Alabama.

2. Threatening words, although the party threatened be thereby frightened and flee, do not constitute an assault. They may be sufficient to justify a prosecution to keep the peace, but they do not make an assault. Ib.

CONVERSION.

1. In trover for conversion of promissory notes, it is error for the court to refuse to charge the jury on motion of the plaintiff, that the measure of damages is the sum due on the notes at conversion of principal and interest on this sum of principal and interest from the conversion to the judgment. Ferguson v. Morris. 2. Bad faith or wrongful intention is not a necessary element of a conversion in trover, but a conversion may accrue consistently with good faith and honest motives. The injury lies in the conversion, not in the intent with which it has been done. Ib

CONVEYANCE.

1. A deed in the nature of a mortgage, to secure the payment of certain enumerated debts, creates an incumbrance on the whole property conveyed for the payment of the whole indebtedness secured, and if the mortgagor sells a portion of the land thus incumbered on credit, and takes a promissory note for the price agreed upon from the purchaser, the transfer of this note by the purchaser, to one of the mortgage creditors, does not release the mortgage on the portion of the land thus sold by the mortgagor, unless it was so agreed between the parties to the mortgage. Colby v. Cato. 2. A conveyance in the nature of a mortgage containing this recital: "This grant is intended as a security for the payment of the draft and notes herein described; if not paid the said E. B. Y. has power to sell for cash, or on time, as he may think best, upon giving ten days' notice, by notice put up at the post-office, in the city of Eufaula, and the proceeds to be applied to

* Supreme Court Alabama, January Term, 1872.

the payment of said draft and notes, and to re-imburse him fully for all damages he may sustain on account of said endorsement," is a sufficient authority for said E. B. Y. to make said sale in the event of default in the payment of either said draft or said notes, or any balance thereof, remaining unpaid. Ib.

CRIMINAL LAW.

A charge, that if the jury believe" from the evidence that the defendant killed the deceased by shooting him with a pistol, the law presumes it was done with malice," when the evidence tended to show that the It pistol was resorted to in self-defense, is erroneous. is too broad, and ignores all the evidence of selfdefense. Martin v. State of Alabama.

DEBTOR AND CREDITOR.

1. Where a debtor pays the principal of his debt, which is received by the creditor in full satisfaction, whether the debt be passed due or running to maturity, it is a good defense, and may be pleaded as an award and satisfaction. Westcott v. Waller.

EQUITY.

1. As a general rule equity will not help, aid or carry into effect the defective execution of power created by statute, especially defects which are of the essence or substance of the power will not be aided. Ellett v. Wade.

2. A compromise, made in good faith, and without fraud, where the debtor is in doubtful circumstances, by which a less sum than the whole debt is received by the creditor, in satisfaction, the debtor is thereby discharged from all further liability. Ib.

3. Courts of equity will not decree the specific execution of a contract for the sale of real estate, where the contract is founded in fraud, imposition, mistake, undue advantage or gross misapprehension, or where from a change of circumstances or otherwise it would be unconscientious to enforce it. Ib.

1. Generally, equity will not grant relief to a complainant by way of compensation, who has made improvements upon lands, the legal title to which is in the defendant, where there has been neither fraud nor acquiescence, on the part of the latter, after he has knowledge of his legal rights. Ib.

5. Equity will not only regard the nature of the bargain, but also the sex and circumstances of the parties to it, when the controversy involves a question of fraud. A widow woman, in feeble health, with a family of children in helpless poverty, will not be treated as the equal in a business transaction with a well-informed, influential and prosperous merchant. Balkum v. Briare.

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3. If he neglect his ward, committing her to one who compels service from her, while her education and culture are wholly disregarded, he will not be allowed credit for expenditures beyond the capital of the estate, when she is able to maintain herself, or for board within the value of her services. Ib.

4. The guardian is a competent witness to prove the correctness of his account. Ib.

(To be continued.)

BOOK NOTICE.

The Indirect Claims of the United States under the Treaty of Washington, by William Beach Lawrence, LL. D. Providence: Sidney S. Rider & Brother.

This little publication consists of the letters of the author to the New York World and the Providence Journal, upon the "American case," with an introduction and notes by the same erudite and able pen. Perhaps no man in America has a higher reputation for ability in the domain of international law than Mr. Lawrence; and whatever he may say about such subjects is sure to be abundantly worth reading and preserving. It is unnecessary to state that we agreed with Mr. Lawrence in his opposition to the presentation of the indirect claims, as the pages of this journal clearly show this fact. The pamphlet is a valuable contribution to the literature of the Washington Treaty

ACTIONS FOR BREACH OF PROMISE of marriage seem to be even more common during the present assizes than usual. It is a question worthy of consideration whether these actions should be allowed to continue. Under the present system juries are called upon to assess damages for outraged feelings, for loss of caste, and for loss of worldly wealth, all in one case. Surely it is a hard task to place upon unfortunate jurymen to ask them to say how deeply a young lady's feelings are injured. At the Leeds assizes recently Mr. Justice Blackburn very truly said, that as soon as an action is brought for breach of promise the contract of marriage is reduced to a mere commercial transaction. If so, then the juries ought to be asked to decide only what depreciation in the marriage market the plaintiff has sustained by reason of the refusal of the defendant to marry her; and when once a young lady chooses to put herself forward as a marketable article, she is apt, through her very act, to be very much depreciated in value. We are, therefore, inclined to regret she has the chance of so doing. Any woman who brings such an action can have very little self respect, and any man who breaks his promise in such a case is rather a good riddance than a loss for which a woman should seek a money compensation. - Law Times.

A long summary of the arguments of Messrs. Waite, Evarts and Cushing before the Alabama claims arbitration tribunal, is published in the Swiss Times. Counsel impugn the conduct of the British government in relation to the confederate cruisers, not only for allowing their escape, but because they were not subsequently seized, and were permitted to coal in British colonial ports. The report, which has currency, that the board of arbitration has awarded a lump sum of £4,000,000 damages to the United States, is pronounced premature. The strictest secresy will be maintained until the decision of the board is officially announced.

LEGAL

INTELLIGENCE.

COURT OF APPEALS.

ALPHABETICAL LIST OF DECISIONS IN THIS COURT FROM 1ST JULY, 1870, TO AND INCLUDING 21ST JUNE, 1872.

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