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an admission of the defendant that there had been a general resistance
and refusal to pay rent, for the last twenty-five years, by the tenants of
the manor of which the lands in question constituted a part : Id.



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762 ABSTRACTS OF RECENT DECISIONS.

Corporation.

Bonds and Bondholders — Coupons. — A coupon, payable to bearer,
detached from a bond, and owned by one party, while the bond is owned
by another, is still a lien under the mortgage given to secure the bond :
Miller and Knapp, Trustees y v. The Rutland and Washington RaMroad
Co. and Others, 40 Vt.

The coupon, when payable, is a part of the mortgage-debt, and an
assignment of a portion of the mortgage carries with it, in equity, a cor-
responding interest in the mortgage security; and the coupon holder, in
a foreclosure of the mortgage, is entitled to a pro raid, distribution with
the holders of the residue of the mortgage-debt : Id.

The loss of a bond is no objection to its being paid, provided an indem-
nity is furnished against its being enforced in the hands of others : Id

Deed.

Reservation. — Beservation of the use and occupancy for a stated period
in a deed by the grantor, will not be determined either in whole or in
part, if the grantor leases a portion of that which he has reserved, if the
reservation is not explicitly personal in its terms : Cooney v. Hayes and
Others, 40 Vt.

In construing reservations in deeds, the intent of the parties to be
gathered from the nature of the subject-matter, and the language used,
must control ; Id.

English Language.

Signs and Figures. — The signs of degrees and minutes (° ') commonly
in use to show the meaning of figures with which they are connected
are not part of the English language within the statute of this state,
which requires declarations and other pleadings to be drawn in the Eng-
lish language ; and an indictment for not making a highway pursuant to
an order of the court, which was described by courses and distances only,
and in the description these signs were used instead of words, was held
insufficient on demurrer : State of Vermont v. Taum of Jericho, 40 Vt.

Fixtures.

What are such. — The more sensible rule, in regard to what are to be
deemed fixtures, seems to be that if articles are essential to the use of the
realty, have been applied exclusively to use in connection with it, are
necessary for that purpose, and without such or similar articles, the
realty would cease to be of value, then they may properly be considered
as fixtures, and should pass with it : Hoyle et al. v. The Flattsburgh and
Montreal Railroad Co. et al.^ 51 Barb.

Husband and Wife.

Marriage Settlement. — A marriage settlement, by which an intended
wife conveyed to trustees all property which she then had, and to which
she might thereafter become entitled, does not, at law, convey the after-
acquired property. Equity will construe such instrument as a contract
to convey and enforce its performance only when necessary to effect the
p^iin intent of the parties: Steinberger's Tnistees v. Potter , S C. E.
Creen



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ABSTRACTS OF RECENT DECISIONS. ['63

Such settlement construed as an agreement to convey only such pro*
pertj as the wife might acquire during tiuiTriage : Id.

Insurance (Fire).

What Property is covered hy Policy. — The plaintiffs, as trustees of a
railroad company, effected a policy of insurance with the defendants •' on
any property belonging to the said trust company, as trustees and lessees
as aforesaid, and on any property for which they may be liable, it matters
not of what the property may consist, nor where it niay be, provided the
property is on premises owned or occupied by the said trustees, and
situate on their railroad premises in the city of Racine, Wisconsin."
Held^ that a dredge-boat belonging to the plaintiffs, in their employ in
the city of Racine and attached to their wharf where the road termi-
nated, was thereby in the plaintiffs' possession and annexed to the rail-
road premises, and therefore covered by the policy : The Farmers^ Loan
and Trust Co. v. The Harmony Fire and Marine Insurance Co.^ 51
Barb.

Held, also, that whether the plaintiffs (a New York corporation) could
hold real estate in Wisconsin must depend on the statutes of that state.
But that so long as they were allowed to remain in possession and use
the railroad property conveyed to them in trust, they had such an inte-
rest as would bring all their property connected therewith under the
terms of the policy : Id,

Landlord and Tenant.

Right to Assign. — ^The words " the right to use and occupy," are equi-
valent to the right to the use and occupancy, and import a general right
in the grantoi*s to use and occupy, either by themselves or others, limited
only by the implied legal duty to occupy in a prudent manner : Cooney
V. Hayes, 40 Vt.

A tenant has a right to occupy by himself, his agent, or assignee,
unless restrained by express stipulations in the lease. It is not necessary
that the word " assigns" should be used to give this right : Id.

Mortgage.

Separate Defeasance — Fraud on Creditors. — If a mortgage was given
in the form of an absolute dee4, and the defeasance withheld from the
records for the purpose of misleading and delaying the mortgagor's cre-
ditors, the right of redemption will not thereby be lost. In such case,
the aid of the court is not asked to enforce a fraudulent instrument. The
fraud, if any, is in the deed, not in the defeasance which the complain-
ant claims to enforce according to its legal effect. The defeasance is
honest as between the parties, and was not to injure creditors : Clark y
Condit, 3 C. E. Green.

Negligence.

A Question of Fact. — The question of negligence is peculiarly a ques-
tion of fact to be determined by the jury ; and the case must be very
clear which will justify the court in withholding it fro'A their considera-
tion : Wooden v. Austin, 51 Barb.



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764 ABSTRACTS OF RECENT DECISIONS.

Nuisance.

Suit hy Private Person. — The grant of a franchise to operate a rail-
road does not confer the right to use upon it locomotives so constructed
as to throw out burning coals that may set fire to buildings along the line.
Hut the road must be operated with engines so constructed as to cause
the least danger : King v. Morris and Essex Railroad Co,, 3 C. E.
Green.

That a building was erected after a railroad was laid out and con-
structed is no impediment to relief against any nuisance arising from
operating the road. The owner of a lot does not lose the right of using
it for any lawful purpose by reason of any erection on adjoining property,
or any use to which the same was put while the lot was vacant : Id.

Where a nuisance is an injury to the property of an individual a suit
to restrain it may be brought in his name, although many others are
injured in the same way by it, and it is not necessary to proceed in the
name of the Attorney-General. The proceeding must be in the name
of the Attorney -General only in case of a public nuisance, which is a
nuisance that interferes with the enjoyment of a public or common right :
Jd.

Where a defendant, who has been doing what amounts to a nuisance,
disclaims the intention to continue it, and is proceeding with diligence
to remove and abate it, the court will, if satisfied that the cause of com-
plaint will be removed as speedily as practicable, refuse an injunction :
Jd,

Parent and Child.

Contract — Implied Promise. — The rule, that where a child, after
becoming of age, remains in a parent's service, the law will imply no
promise, on the part of the parent, to pay for the labor, but an express
promise must be proved, applies also to adopted children : Lunay v.
Vantyne^ 40 Vt.

1'he plaintiff was an adopted daughter of the defendant. After it was
understood she was of age, the defendant agreed to pay her for her labor.
Subsequent to this agreement she and her foster parents learned that
they had been mist^iken one year in her age, that she, in fact, arrived at
her majority one year earlier than she had supposed, and, consequently,
had been in the defendant's service for one year after she became of age
without pay, and without any agreement or expectation of pay. Ueld^
that the law would imply no promise or contract to pay her for that
year: Id.

Partnership.

Arbitrament and Award. — The presence of one partner, who was a
Frenchman, and understood English imperfectly, at, and participation
to some extent in, a conversation between his co partner and the defend-
ant, concerning a matter in dispute between the plaintiff partnership and
the defendant, which resulted in a submission by the copartner and the
defendant of the matter to arbitration, held, not to be conclusive of the
Frenchman's assent to the award, he not having understood that his co-
partner agreed to submit, and having never assented thereto : St. Martin
y. Thrasher, 40 Vt.

A partner has no authority, by virtue of his relation as partner, to
bind his copartner by a submission of a copartnership matter to arbitra-



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ABSTRACTS OF RECENT DECISIONS. 765

tion, so as to make the award in pursuance of such agreement binding
on the firm : Id,

Dissolution — Distribution of Effects. — Tf articles of partnership pro-
vide for its continuance during the existence of a lease renewable at the
option of one of the partners, it is at the option of such partner to con-
tinue the partnership by renewing the lease, or to end it by refusing to
renew. He has a right to refuse to renew for the purpose of ending the
partnership: Phillips v. Reeder, 8 C. E. Green.

That a partner having the option to renew such lease and continue
the partnership may have talked and acted as if he intended so to do,
will not bind him to renew if he made no contract to do it : Id,

Upon the dissolution of a partnership in which the articles provided
that the eflfects, on dissolution, were to be equally divided among the
partners, the property and effects of the firm belong to the individuals
who compose it as tenants in common ; part of the former members of
tho firm cannot dispose of the property of any other member without
his consent : Id,

If some of the members of a dissolved partnership dispose of the pro-
perty of one of the partners without his consent, he may, at his option,
call on them to account for its value : Id.

In many oases if some of the partners afler dissolution continue the
business with the property of the late firm, the retiring partner will be
entitled to call on them for a share of the profits, as well as for his
capital : Id,

But this principle will not be applied to a case when the chief contri-
bution to the business was personal skill and labor, and a new partner-
ship was formed with strangers, merely because some of the property of
the retiring partner was used in the new business after being sold to the
new firm by the continuing partners, without authority so to sell it : Id

A majority. of the partners of a firm that is dissolved, have no right,
without judicial proceedings, to compel another partner to sell or divide
the property, or to choose an appraiser for the purpose of valuation ; or
if he refuses, to choose appraisers themselves and purchase or sell his
share at such valuation. But if they have appropriated or sold the pro-
perty they must account to him for the real value of his share and inte-
rest thereon : Id.

Failure of one Partner to Pay in his Share of Capital. — A part of
the partners cannot exclude from the partnership one of their number
who has failed to pay in part of the amount which he agreed to contri-
bute as his share of the capital; but if part of his capital has been paid
in, accepted, and used, and the business has been commenced in the
name of the firm, he is a partner until the partnership is legally dis-
solved: Unrtman v. Wofhr di StegmuUer^ 3 C. E. Green.

A partner excluded from the business of the firm by the illegal acts
of his copartners is entitled to an account of profits, and to his share of
them until the partnership is legally dissolved ; and is entitled to a
decree of dissolution on the ground of such illegal exclusion from the
business: Id,

Real Estate.

Conversion, — The surplus of the proceeds of lands of a decedent, sold



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766 ABSTRACTS OF RECENT DECISIONS.

by order of the Orphans' Court for the payment of his debts, above the
amount needed for the payment of debts, retains the character of real
estate, and upon the death of the person entitled thereto, will pass by
succession as real estate. So also will the proceeds of lands sold by
order of a court on proceedings for partition, because incapable of parti-
tion : Oherle v. Lerch^ 3 C E. Green.

Such proceeds retain their character of real estate for the purposes of
succession until they vest in some person who is not an infant or lunatic,
and who has capacity to change the nature of the estate, and who by
accepting it as money,.or doing some act recognising it as personal estate,
gives it the character of personalty : Id.

The income from lands and the interest on the proceeds of the sale of
lands are personal estate, and will, upon the death of an infant to whom
they belong, be transmitted as such, while the lands and the proceeds
of their sale pass as real estate : Id.

Where lands of an infant in another state are sold by partition pro-
ceedings there, if by the law of that state the proceeds are to be con-
sidered personal estate and to be transmitted as such, they will pass as
such in this state, although they are at the death of the infant in the
hands of the guardian appointed in this state, and the infant is a resi-
dent of this state : Id.

Replevin.

Bond or Und^takxng. — Where the plaintiff in an action for the claim
and delivery of personal property, dies after the execution of an under-
taking to him by the defendant for the purpose of regaining possession
of the property, and before the trial, and another person is substitut<?d
in his place, as plaintiff, the person so substituted is the party entitled
to recover, and as such, the undertaking takes effect in his favor as the
plaintiff entitled to a return of the property : Emerson v. Booth, 51
Barb.

The defendant's liability becomes fixed on the recovery of a judgment
by the plaintiff, either to return to the plaintiff the property, or to pay
the value thereof, to the extent of the penalty : Id.

In a suit upon such an undertaking judgment may be rendered for the
plaintiff for the penalty of the undertaking and interest thereon from
the date of the judgment : Id.

Statute.

Construction. — The only just rule of construction of a law, especially
among a free people, is the meaning of the law as expressed to those to
whom it is prescribed and who are to be governed by it : Keyport Stean-
hoat Co. V. Transportation Co., 3 C. E. Green.

If the legislator who enacted the law should afterward be the judge
who expounded it, his own intention which he hath not skill to express,
ought not to govern. But circumstances known to all the public, such
as what the law was at the time, or what it was supposed to be, are pro-
per to be considered in looking for the intention of the legislature when
not explicitly expressed : Id.

Streams. See Constitutional Law.
Rights of Riparian Owners. — Where an old division line between



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ABSTRACTS OF RECENT DECISIONS. 767

lands lying on tide-water has for more than forty years been treated by
the owners as extending over the shore or the lands between high and
low water, and regarded as the division line of their right upon the
shore, the line so recognised will be established as the line which will
govern their rights to reclaim and appropriate the shore under the
Wharf Act : Stockham v. Browning, 3 C. E. Green.

No rule for ascertaining the line by which the shore in front of co-
tei minous shore-owners shall be divided between them has been adopted
in New Jersey. But if a line claimed by one of them is more favorable
to the other than that given by any of the different rules adopted by the
courts of the several states, he will be protected to the line so claimed
unless a different line has been adopted by the owners, by acquiescence
or otherwise : Id.

The owner of lands along tide-waters has an easement in the shore in
front of them, and the inchoate right to appropriate them to his exclu-
sive use. But until reclaimed the fee is in the state, and he cannot main-
tain ejectment. But as he has a vested right in the shore, he will be
protected in equity against any encroachment on or appropriation of
them : Id.

Trust and Trustee.

Contributions to Fund for Specific Purpose, — The contributors to a
fund, raised and placed in the hands of trustees for a specific purpose,
have a right to have any surplus not needed for the object, repaid to them
in proportion to their contributions. The claim is founded in equity and
will be enforced in this court : Abels and Others v. McKeen and Others^
3 C. E. Green.

The fund is in the control of the association only for the purposes for
which it was raised. It may be disposed of for any purpose within the
object for which it was contributed at any regular meeting of the asso-
ciation, by the voice of the majority of the members present, even if a
minority of the whole number : Id.

But the vote must be for some purpose for which the money was con-
tributed. A majority cannot devote the money of the minority, or even
of a single member, to any other purpose, without his consent : Id.

So surplus funds, contributed for enlisting men to fill the quota of a
city or ward, under a call of the President, and to clear the contributors
from draft, cannot, by a vote of the majority, be donated to a charitable
institution, without the consent of the minority : Id.

All persons present at the meeting at which the vote is tnken dispos-
ing of the fund, if no one dissents, are considered as voting with the
majority for the motion and assenting thereto ; their right to the fund ia
concluded. Aliter, as to those not present: Id.

AVhere, under a resolution of the majority, the surplus fund has passed
into the hands of new trustees, between whom and the original contri-
butors there is no privity, such trustees are not accountable to them for
the fund ; their remedy is against the original trustees only : Id.

Compensation to Trustee who has abused, the Trust.-^-A trustee who
has abused his trust, is entitled to no commissions as trustee but he will
be allowed reasonable compensation for special and extraordinary services
rendered to the cestui que trust : Moore v. Zabriskie, 3 C. E. Green.



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768 UST OF NEW LAW BOOKS.

Trustee Process.

Contingency, — Money held as security for becoming bail, does not
depen<l on such a contingency as is within the meaning of the 6th sec-
tion of chapter 34 of the General Statutes, and is not exempt from
trustee process. The trustee, when discharged as bail, becomes account-
able, under the trustee process, for said money, with the right only of
retaining so much of it as is necessary to make good the indemnity for
which he had received and was holding it : Ellis dh Co. v. Goodm ?r, 40
Vt.

No agreement or arrangement between the debtor and trustee, after
service of the trustee process, could change the relation in which they
then stood, as to this money, so as to affect the plaintiff's right under his
attachment : Id.

Evidence tending to prove previous acts, declarations, and agreements
of the trustee with the plaintiff, were admissible to show the condition
on which the trustee received the money, and as tending to prove a state
of facts that would estop him from setting up a claim to the money after
he was discharged as bail as against the plaintiff: Id,

Witness.

Competent when offered. — If a defendant in a suit dies aft^r the com-
plainant has been examined as a witness and his administrators are made
defendants in his place, this evidence will be admitted at the hearing.
The complainant was competent at the time when it was taken, and that
18 the test of admissibility. It cannot be rejected because the defendant
was prevented from testifying by his death : Marlatt v. Warwick, 3 C-
E. Green.



NEW LAW BOOKS RECEIVED BY THE PUBLISHERS OF THE
AMERICAN LAW REGISTER.

Browne. — A Treatise on The Companies Act, 1862, with special reference
to Winding-up, for the purposes of Reconstruction or Amalgamation. Ac.
With Supplement containing The Companies Act of 1867, notes, and a
Digest of Additional Cases. By G. Latuom Browne, of the Middle Temple.
Barrister at Law. 8vo., pp. 460, 73. London: Stevens & Haynes, 1867.
f.'i.. 2\s.

Wisconsin. — Reports of Cases in the Supreme Court of Wisconsin, with
Tables of the Cases and Principal Matters. By 0. M. Conoveb, Official
Reporter. Vol. 21, containing all the Cases decided before September Term
I ^67, and not previously reported. Madison, Wis. : Attwood & Rublee, pre.,
1868. Shp. $6.



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THB



AMERICAN LAW REaiSTER.



NOVEMBER, 1868.



THE CRIME OP ADULTERY.



The trial of General George W. Cole for the murder of L.
Harris Hiscox, which recently took place at Albany and resulted
in the disagreement of the jury, was in some respects extraordi-
nary, and gives rise to serious reflection. The parties were of
the highest social standing. The accused had served with great
distinction and usefulness in the Union army in the late war,
having been promoted a number of times, and severely wounded.
He is a brother of the United States Senator from California.
The deceased was a prominent lawyer, who had occupied, with
credit, several positions of political and pecuniary trust, and at
the time of his death was a member of the Constitutional Con-
vention of the State of New York, then sitting at Albany. Mrs.
Cole, who was said to be the " meritorious cause of action^^^ was
of an old, wealthy, and influential family, and a woman of edu-
cation, refinement, and social distinction. Her brother was also
a member of the Constitutional Convention. The deceased had
been the legal adviser and intimate friend of the accused.

The commission of the murder by the defendant was unques-
tioned. It occurred at a hotel in Albany, in the presence of
several witnesses. The crime was characterized by some circum-
stances showing coolness and deliberation.

It appeared that the defendant, on his return from the war,
having his suspicions excited, induced his wife to confess in
writing, first, that during the husband's absence at the war. His-

Vol. XVI.— 49 ^"69)



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770 THE CRIME OF ADULTERY.

COX had made repeated attempts to seduce her, which she claimed
she had uniformly and successfully resisted, but which, through
shame and fear of the effect on her husband, she had refrained
from disclosing ; and, by a subsequent statement in writing, that
Hiscox had actually seduced her. Both statements were clearly
dictated by Cole. After the procuring of these confessions, and
the lapse of several days, during which time it was to be inferred
from the evidence that he cohabited with his wife, and having
meanwhile, although he owned and carried a pistol, purchased
in addition a Derringer revolver, making especial inquiry as to
the efficiency of the cartridges, he rode in company with his
wife one hundred and fifty miles to Albany, with the avowed
purpose of proceeding to Brooklyn, and there went with her to
a hotel and took rooms. Then, going to the Stanwix Hall Hotel,
he walked up to Hiscox, who was conversing with a friend, and,
without the interchange of a single word, killed him by shooting
him through the head with the Derringer revolver. After the
commission of the act, he said to the bystanders that the dead
man had been his bosom friend, but during his absence at the
war had dishonored his wife.

In his opening at the trial, the defendant's counsel, who is
perhaps the most adroit criminal lawyer at the New York bar,
boldly and emphatically claimed an acquittal on the ground of jus-
tifiable homicide, quoting Scripture and twenty-eight adjudged
cases, and expressly declaring that his client wanted no compro-
mise verdict from the jury. He based his argument on the
theory, that as the law metes out no punishment to the seducer,
the injured man has a right to take the law into his own hands.
He made no suggestion that his client was insane, but consider-



Online LibraryAndrew PritchardThe American law register, Volume 7 → online text (page 81 of 93)