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Item 11. Copies for Town Clerk and Defendant. This item of $21.25 is admitted by the auditor, and is allowed. These copies are required under the practice in the state of Connecticut. Upon item 11 the amount allowed is $21.25.

Item 12. Releases on Bail before Commissioner. These amount to $3.50, of which 50 cents has since been allowed. As each re lease involved the taking of a bail bond, for which the marshal had a right, under Rev. St. U. S. & 829, to charge 50 cents, I allow the whole of said charge. Upon item 12 the amount allowed is $3.50.

Item 13. Transportation of Prisoners, and Service. These two items of carriage hire in order to transport prisoners and serve process are allowed. The evidence upon this point shows that the services were of great value, and that the charges include only amounts allowed for travel or actual expenses. Harmon v. U. S., supra. Upon item 13 the amount allowed is $5.

Item 14. Stationery for Courts. This charge is found to be proper. The stationery was furnished by the marshal, and proper vouchers for the cost of the same were duly produced. Upon item 14 the amount allowed is $17.45.

Item 15. Court Messengers, Criers, and Bailiffs. These items were merely suspended. Nearly all of them have since been allowed. The evidence shows, and I find, that all these payments were made by the marshal to the officers in question, in pursuance of his legal duty according to the statutes. The charges` must be allowed. Upon item 15 the amount allowed is the whole charge, to wit, $148.

All of the accounts involved in the case were presented by the marshal, and all his rights accrued under them within six years before the commencement of this suit, which was on June 15, 1891. It follows from the above conclusions that the sum of $1,134.53, or the whole demand of the plaintiff, is divided thus: Now disallowed, $41.05; now allowed, $846.64. Formerly allowed, but not paid, $246.84. The sum of the last two items is the amount which the plaintiff is entitled to recover. Let judgment be entered in favor of the plaintiff for the sum of $1,093.48, with costs.

HENDERSON et al. V. HENSHALL

(Circuit Court of Appeals, Ninth Circuit. January 30, 1893.)

No. 69.

1. DECEIT-FALSE REPRESENTATIONS.

To induce plaintiff to make an exchange of lands, defendant stated that the tract owned by him contained about 560 acres, mortgaged for $3,000, was worth $32 an acre; that 80 acres were fenced, 160 planted, and 240 cleared; and to prevent inspection of the land assured plaintiff's husband that the representations could be relied on, and introduced a person. represented as a wealthy banker, as one who was disinterested, and knew all about the land. Such person repeated the representations, and plaintiff's husband executed a contract of exchange. Plaintiff, desiring an op

portunity to determine the quality and condition of the land before exe cuting a deed, was dissuaded therefrom by defendant's repetition of the representations, and statements that examination was unnecessary, that the transaction must be closed at once, and threats of legal proceedings; and thereupon the deeds were executed. In fact, the land was wild, rocky, and unfit for cultivation, mortgaged for $700, worth but $5 per acre, no part was cleared, cultivated, or planted except about four acres, and no part was fenced. Held, that these facts constituted a cause of action for

damages for false representations. 2. APPEALABLE ORDERS-RULING ON MOTION TO DISMISS.

The circuit court of appeals will review a decision of the circuit court denying a motion to dismiss an action on the ground that it abated by the death of the original plaintiff, where such motion involves the jurisdiction

of the court over the parties to the action. 8. SURVIVAL OF ACTIONS-ACTION FOR DECEIT.

Under Civil Code Cal. 88 953, 954, defining a thing in action, and providing that, when arising out of a right of property, on the death of the owner it passes to his personal representatives, a cause of action for damages by reason of false representations as to the value of land, whereby one is induced to part with his land in exchange, will survive. In Error to the Circuit Court of the United States for the Northern District of California.

Action by Mary Alice Henshall against Charles Henderson, W. D. Holcom, and John Purcell for damages for false representations leading to an exchange of lands. Plaintiff having died pending the suit, John Henshall, special administrator of her estate, was substituted as plaintiff. Defendants moved to dismiss the action, on the ground that it had abated by the death of the original plaintiff, and for judgment on the ground that the complaint failed to state a cause of action. The motion was denied, and judgment was entered on verdict for plaintiff as against defendants Henderson and Holcom. Said defendants bring error. Affirmed.

Dorn & Dorn, for plaintiff in error Charles Henderson.

W. G. Witter, (S. C. Denson, of counsel) for plaintiff in error W.
D. Holcom.

Norman H. Hurd, for defendant in error.
Before MCKENNA, Circuit Judge, and MORROW, District Judge.

1

MORROW, District Judge. This was an action at law commenced in the circuit court by Mary Alice Henshall, a citizen of the kingdom of Great Britain, against Charles Henderson, W. D. Holcom, and John Purcell, citizens of the state of California, to recover the sum of $30,000 for damages alleged to have been sustained by plaintiff in the exchange of certain lands in California. It is charged that false representations were made by the defendants Henderson and Holcom as to the value, character, and quality of certain lands in Shasta county, whereby they induced the plaintiff to exchange her lands in Tulare county for the lands in Shasta cou to her damage in the amount stated. The defendants demurred to the complaint, and the demurrers were sustained. An amended com. plaint was filed, to which demurrers were interposed, alleging, among other things, that the complaint did not state facts sufficient to constitute a cause of action. The demurrers were overruled, and

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the defendants thereupon answered. Thereafter, upon the written suggestion of the death of the plaintiff, it was ordered by the court that John Henshall, special administrator of the estate of Mary Alice Henshall, deceased, be substituted as plaintiff. There was a jury trial, and a verdict and judgment against the defendants Henderson and Holcom for $6,000, and the defendants sued out this writ of error.

It appears from the bill of exceptions that when the case was called for trial, and before the jury had been impaneled and sworn, the defendanty moved the court to dismiss the action, on the ground that it had abated by the death of the original plaintiff; that the cause of action did not survive her death; and that John Henshall, as special administrator, could not maintain the action. The motion was denied, and defendants excepted. It further appears that during the trial of the case, and after all the evidence had been introduced on behalf of the plaintiff, and he had rested, and before the defendants had introduced any evidence on their part, the defendants moved the court to instruct the jury to render a verdict in favor of the defendants, upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action The motion was granted as to the defendant Purcell, but denied as to the other defendants, who duly excepted.

The case presents two questions for determination: (1) Whether the complaint states facts sufficient to constitute a cause of action. (2) Did the action abate by the death of the plaintiff?

The complaint alleges, among other things, that the tract of land owned by plaintiff in Tulare county contained 440 acres; that it was her separate property, and was all agricultural or farming land of the best quality, of the value of $75 per acre. The complaint charges that the defendants conspired with each other to defraud the plaintiff, and deprive her of said land; that the defendant Henderson, in pursuance of the conspiracy, and with intent to defraud the plaintiff, falsely stated to John Henshall, plaintiff's husband, that he (Henderson) was about to become the owner of a ranch or tract of land in Shasta county, Cal., containing about 560 acres, of the value of $32 per acre; that there was a mortgage on the land for the sum of $3,000; that there was a fence around 80 acres of the land; that 160 acres had been planted in grain, and 240 acres had been cleared; that Henderson proposed to exchange the tract of land in Shasta county for plaintiff's tract of land in Tulare county, whereupon Henshall suggested that it would be better for him to visit the land in Shasta county, and inform himself as to the quality and condition of the land, but Henderson represented that it was not necessary for Henshall to do so; that he could rely upon his (Henderson's) representations. The complaint further charges that Henderson represented to Henshall that his real-estate business was extending and becoming so large that he could not conduct it alone, and he proposed to form a partnership, and take Henshall in as one of the partners; that he (Henderson) was a church member and a Christian. It is charged also that Henderson referred Henshall to the defendant Holcom, representing that the latter was a wealthy

banker and resident of Yolo county, above suspicion, and entirely
disinterested, and that he knew all about the Shasta county land;
that Henderson thereupon introduced Henshall to Holcom; that
the latter repeated to Henshall all the statements previously made
by Henderson; that Henshall, relying upon and believing that all
of said representations were true, gave to Henderson a writing pur-
porting to agree to an exchange of the land in Tulare county, subject
to a mortgage for $7,000, for the land in Shasta county, subject to
a mortgage for $3,000. It is alleged in the complaint that Henshall
did not have the legal authority to bind the plaintiff, but he acted
upon the belief that plaintiff would acquiesce in his suggestions in
regard to her property. It is further alleged that, after delivering
the agreement for the exchange of plaintiff's land in Tulare county
for the lands mentioned in Shasta county, Henshall wrote to Hen-
derson that the transaction had better be left in abeyance until he
could better inform himself as to the condition and value of the land
in Shasta county, whereupon Henderson, in pursuance
spiracy, and with the intention of intimidating and defrauding plain-
tiff, went to her, and falsely stated that he had already sold the land
in Tulare county to the defendant Purcell, who was in great haste
to go into possession, and, unless the trade was carried out, the
purchaser would "law him," and he in turn would 'law her;" and,
further, that he was in possession of papers signed by her husband,
which he would at once record in Tulare county; that, for the pur.
pose of deceiving and defrauding plaintiff, Henderson repeated to
her all the representations made to her husband as to the character,
value, and quality of the land in Shasta county, and stated that
the whole of the land could be cultivated; that it was not neces-
sary to make any examination of the land, but that it was necessary
to close up the transaction at once. It was alleged that plaintiff
believed these representations, and was induced by them and by
threats and through fear to sign an agreement concurring in the
previous agreement made by her husband for the conveyance of her
lands in Tulare county to Henderson, and thereafter, in pursuance of
further representations made to herself and husband as to the
character, quality, and value of the land in Shasta county, and be-
ing urged by Henderson to close up the matter at once, to avoid
trouble she executed a deed conveying to Henderson her land in
Tulare county, and took from him a deed for the land in Shasta
county, but without an opportunity to examine into its value and
character.

There are other allegations in the complaint relating to the detail of this transaction, but enough has been stated to disclose the basis of the charge of misrepresentation and fraud contained in the closing paragraphs of the complaint as follows:

"As a matter of fact, the said land in Shasta county was at all said times the property of the defendant Holcom, and he conveyed it to the defendant Henderson on the thirteenth (13) day of September, 1990, for the purpose of carrying out the said conspiracy. No mort age for three thousand dollars, ($3,000) or any sum except seren hundred dollars, ($700,) was on said land before said exchange. The true value of said land in Shasta county was at all the times aforesaid, and is now, five dollars ($5) per acre. No part of said

ARVARD LAW LIBRAN

land was ever cleared, cultivated, or sown in grain, except about four (4) acres thereof, and no part of said land was ever fenced. The whole of said land, with said exceptions, is wild, uncleared land, and a large part thereof is rocky, and untit for cultivation. The defendants well knew that all of the said representations made by them, and by each of them, were untrue. In further pursuance of said conspiracy, and for the purpose of preventing the plaintiff from rescinding said transaction, the defendant Henderson did, immediately after obtaining the said conveyance of said land from this plaintiff, convey the said land to a sister of said defendant John Purcell, who had represented, as hereinbefore alleged, that he was in great haste, and was very anxious to purchase said land; and the said land now remains in the possession of said sister of the defendant Purcell, and said Purcell has never become the owner thereof, nor has he ever moved upon the same, or lived there."

1

It is contended on behalf of the plaintiffs in error that the facts stated in the complaint are not sufficient in law to support the judgment; that the representations as to the land in Shasta county were made with respect to matters equally within the power of both parties to ascertain; that the doctrine of caveat emptor applies in such a case, and to such representations; and that, where a buyer could by reasonable or ordinary diligence have discovered the truth, the law provides no remedy for damages sustained under such circumstances. It is undoubtedly the law that a party to a contract is required to exercise reasonable care and caution to prevent being defrauded. He must not close his eyes to matters directly before him, and, when he finds he has been deceived, expect favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by overconfidence in the statements of others. Slaughters' Adm'r v. Gerson, 13 Wall. 379--383. But is this the position of the defendant in error? appears from the complaint, the allegations of which, for the present purpose, must be accepted as true, that the negotiations in this case took place and the bargain was consummated in San Fran. cisco, Now, while it may not be within the province of the court to take judicial notice of the distance from San Francisco to Shasta county, nevertheless it sufficiently appears from the complaint that the land was not near enough to the purchaser to afford her or her husband an opportunity for an immediate and convenient inspection. It is alleged in relation to the first negotiations that John Henshall proposed to visit the land in Shasta county, and inform himself as to its quality and condition, but was dissuaded there from by Henderson, who said that it was not necessary to do so, as Henshall could rely upon his representations. Then followed the preliminary agreement between Henshall and Henderson, and, soon after, Henshall, in a letter to Henderson, suggested that the transaction be held in abeyance until he could better inform himself as to the condition and value of the land. Then again, after the second agreement, and before the conveyance of the land, there was a renewal of the proposition by the purchaser to ascertain its value and character. To these suggestions Henderson urged haste in closing up the transaction, giving such reasons therefor as would have a tendency to influence the purchaser to close the bargain without an examination of the premises. From these allegations we are authorized to draw the conclusion that the land was not

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