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some of the provisions of this act." Held, that such violation must be mad
to appear by the judgment of a court, and could not be adjudged by the legis-
lature. 1872. Flint d FmtonviUe Plank^oad Co. v. WoodhuU (25 Mich. 99),

XU,288.

See Municipal cobporation ; Trust ; Wills.

COUNTY — See Municipal corporation

(X)UPONS — See Bonds.

COURTS — See Judicial power ; Jurisdiction.

COVENANTS.

1. Independent or dependent. In a contract for the sale of land, the vendee

agreed to pay the purchase-money in installments, and the vendor executed a

bond conditioned to deliver the deed upon the payment of the last installment ;

held, that the covenants were independent and that the vendor might enforce

17



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130 COVENANTS.

payment of all the installments withoat first tendering a deed. 1S$9. Baw&n
y. Bailey (43 Miss. 406), n, 001.

2. H. sold to B. lands at an agreed price, part of which was paid in

cash and R.'s note given for the balance. H., at the same time, executed and
delivered his bond conditioned to make title to R. when said note was paid.
H. afterward assigned the note before its matarity to M., who brought action
thereon after maturity. R. demurred on the ground that no deed of the land
had been tendered. HM, that the covenant in the note and that ir the bond
were dependent, and that the demurrer was well taken. 1869. RdbiTison v.
Barbour (43 Miss. 797), II, 671. See eorUra Bowen, 1 Bailey, eupra.

3. Of title and <iuiet ei4o3rmeat — breach o£ It is not necessary that there
should be an actual eviction by process of law to constitute a breach of cove-
nant of title and quiet enjoyment. Such covenant is broken whenever there
has been an involuntary loss of possession by reason of the hostile assertion
of an irresistible paramount title, whether that title be established by judg-
ment or not. 1870. McOary v. Eastings (89 Cal. 860), II, 456.

4. To stand seized. A deed of land, reciting a pecuniary consideration, and
tb take effect after the decease of the grantor, upon condition of certain services
to be rendered him, may be maintained as a covenant to stand seized to the
grantee's use, notwithstanding the absence of the relation of blood or marriage
between the grantor and grantee. 1869. Tr(tfton v. Bdwes (103 Mass. 533),
III, 494.

5. Against Inonmbranoe — right of way of raihroad. The owner of a par-
cel of land, through which a railroad ran, conveyed the land by a deed pur-
porting to convey the entire parcel without reservations as to the right of way
of the railroad. In an action of covenant, held, that this right of way was such
an incumbrance as would constitute a breach of a covenant against incum-

-brance contained in the deed. 1869. Beach v. MOier (51 111. 306), II, 390.

6. Easements. Defendant conveyed to plaintiff', by deed of warranty,

premises, a portion of which he had previously conveyed and given possession
of to another. The premises were subject aiso to certain easements, such as a
right of way, and the right to maintain a dam. Held, that the covenant of
seizin, so far as it related to the portion previously conveyed, was broken at
the date of the deed, and that the existence of the outstanding easements was
a breach of the covenants of warranty. 1871. Lamb v. Danforth (59 Me. 833),
VIII, 436.

7. Defendant conveyed to plaintiff, by a deed containing the usual

covenants, land, part of which was occupied by a railroad. In an action upon
the covenant of seizin, heldt that the covenant of seizin was not broken ; but,
semble that the covenant against incumbrance was. 1873. Kellogg v. MaUn
(50 Mo. 496), XI, 436, and note, 481.

8. A oorenant of seizin runs with the land, and is divisible, so that if the
land be sold in parcels to different purchasers, each may maintain an action
upon the covenant 1871. SchofiM v. The Eomestead Company (83 Iowa, 817),
VII, 197.



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COVENANTS. 131

9. Of warranty rona with land. Where the covenantee, in a deed of land,
takes possession and conveys, a covenant of warranty in the deed to him will
pass to his grantee, although the covenantor was not in possession at the time
of his conveyance. 1870. Weed v. Larkin (54 111. 489). V, 149.

10. To oonT«y in lease running with the land. A lease of premises con-
tained covenants to the effect that, upon the payment of $500, the rent should
cease and the premises be conveyed to the lessee ; that the rent should be
paid semi-annually, in April and October, and that if the lessee neglected to
build a house and make repairs as covenanted, or neglected to pay rent, the
lessor should have the right to enter upon the premises and take possession
thereof. The lessee assigned his interest and the assignee went into posses-
sion, but neither the lessee nor assignee fulfilled the covenant to build and
repair. The rent was paid for four years ; in the fifth year, the October rent
was accepted, but in January following, the lessor entered upon and took pos-
sesion of the premises, complaining that the building and repairs had not been
made as covenanted. In March, the orator, administrators of the assignee who
died intestate, tendered the lessor $500, with the semi-annual rent due the
following month, and demanded a conveyance of the premises. The lessor
had conveyed the premises to G. a few days previous, and refused to comply
with the orator's demand. Held, that the covenant to convey, contained in
the lease, ran with the land, and was assignable ; that the lessor had waived
his right to enter and take possession, until the right of the assignee had
become valuable, that, if there were any forfeiture, the tender of payment of
the $500, and the accruing rent saved it ; and that as G., the grantee, stood in
no better position than the lessor, a decree shoold be entered for a conveyance
of the premises to the orator. 1872. Uagar v. Buck (44 Vt. 285), VIU, 868.

11. To make and maintain fence — when runs with land — inoombranoe
damages for breach. The owner of a farm conveyed to a railroad company a
strip of it by a deed containing this clanse : " I hereby covenant that I and my
heirs and assigns wiU make and maintain a sufficient fence through the whole
length of that part of the railroad which runs throngh my farm ; this covenant
of maintaining the fence to be perpetual and obligatory on me and all persons
who shall become owners of the land on each side of said railroad." Held, (1)
that this covenant gave to the railroad company an interest in the nature of
an easement in the grantor's adjoining land, and ran with that land, and was
an incumbrance within the meaning of the covenant against incumbrance! in
a subsequent conveyance thereof ; (2) that the obligation to maintain the fence
was not impaired by the omission to perform it for twenty years, without any
evidence of its having been released or extinguished ; (8) that an action for a
breach of the covenant against incumbrances in the second deed was not barred
by the statute of limitations' until twenty years after the date of that deed ; (4)
that the fence was to be maintained on each side of the railroad, and wholly
OD the land retained by the grantor in the first deed ; (5) that the measore of
damages for a breach of the covenant against incumbrances was a just com-
pensation for the real injnry resulting from the incnmbrance, to be estimated
by the difference in the fair market value of the estate by reason of the exist-
•Doa of the incnmbrance, and taking into consideration the coat of fendnic. io



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132 COVENANTS,

for only m it exceeded the ooet of anj fences which the aitiifttion and dream
stances of the estate would otherwise have required the maintenance of. 1871.
Bromon y. Coffin (108 Mass. 175), XI, 885.

12. Against use. A grantee under a conveyance with a restriction that none
but a dwelling-house shall be erected on the premises, and that the " building,
when erected, is not to be occupied for the purpose of carrying on any offen-
sive trade or calling whatever,'* cannot use a part of a dwelling, so erected, as
a grocery store. 1869. Dorr v. Harrahan, (101 Miss. 681), III, 898.

13. The owner of a hxm granted to plaintiff the right to dig out and box
np a spring thereon, and to put a pipe in it leading to plaintiff's house, and
warranted these rights to plaintiff. Held, that the owner did not thereby
covenant that he should not dig a spring on another part of his farm (twenty-
seven feet distant) to supply his buildings with water, although, by so doing,
plaintiff's spring should become useless, on account of the underground per^
oolaUon being reduced. 1871. BHssy. Oreeley (45^. Y.Q71\Yl, 1^7,

14. Oovenant of title — action on. In an action on a covenant of warranty
in a deed of land, brought against the warrantor, after a judgment of eviction
against the warrantee, the warrantor is not concluded from showing Utle in
himself, unless he had due notice of the ejectment suit. 1869. Somers v.
Solimidt {24 Wis. 417), 1, 191.

16. To have the efibct of depriving the warrantor of the right to show

title, the notice should be from the warrantee, should be unequivocal, certain
and explidt, should request the warrantor to defend the title, and should be
given in time to enable him to prepare for such defense. lb,

16. Knowledge of the action and a notice to attend the trial is not

enough to work an estoppel. lb.

17. Action of parties. Tenants in common have several freeholds and are
not obliged to join in an action against their grantor for breach of covenant
of warranty in his deed. 1871. Xomft v. DaT^/brfA (59 Me. 823). VUI, 486.

18. —^ An action on a covenant against incumbrances broken during the
life time of the ancestors should be brought by the administrator, not the
heir. 1870. i^Wn* v. jKettis (83 Ind. 185), V, 193.

19. Action of oorenant for rent by lessor against lessee, on a lease by
deed-poll, signed and sealed by the lessor only, and which the lessee had
accepted and occupied under. Held, that the action would not lie. 1873.
Johnstma v. Mueey (45 Vt. 419), Xn,214

See Dahaqbb ; Landlord akd Tjesaxtt,

COVENANTS IN RESTRAINT OF TRADE— 5^ Contraotb.
COVERTURE — fl^ Mabriagb.



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CRIMINAL LAW. 133

CRIMINAL LAW.
I. Qknsrallt.

IL Iin>IOTMSNT.
IIL DBFEN8B8.

IV. Tbial.

y. Verdict, jxtdombnt Ain) bbntbigh.
VI. Eyidencb.
Vn. Sfbcifio offbnsbb.

1. Arson,

2. Burglary.

8. FcUu preten9«i,

4. ffamieide,

5. HUgal voting.

6. Larceny.

7. Perjury.

8. Profane ewsaring.

9. Bape.

10. Becevoing stolen goods.

11. Bobbery.

L Qbnsrallt.

1. Attempt to oommit crime. Whenever the law makes one step toward
the accomplishment of an nnlawf ul ohjeot, with the intent of accomplishing
it, criminal, the person taking that step with that intent, and capahle of doing
everj act on his part to accomplish that ohject, cannot protect himself hy
showing that hj reason of some fact unknown at the time to him, it could not
have been carried into effeet. 1871. JffamiUon ▼. State (86 Ind. 280), X, 22.

2. Thus the indictment charged the prisoner with assault with intent to

take from Q. H. J. a $5 bilL Held, that a conviotion might be had, notwith-
standing it appeared that Q. H. J. did not have a $5 bill in his possession at
the time of the assault. 3.

3. So where the eyidence on a trial for assault, with intent to murder, tended
to show that the accused presented a loaded gun and snapped it three times,
but there was no cap on it, the court charged the jurj that the absence of the
cap would not avail the accused if he supposed it was on the gun, but the
jury must be satisfied, bejond all reasonable doubt, that he did not know
there was no cap on the gun. Held, correct. 1871. MuUen ▼. State (45 Ala.
48), VI, 691.

4i In assault with intent to murder, assuming the necessary intent to

exist, the act performed must have some adaptation to accomplish the par-
ticular thing intended ; but this adaptation need only be apparent, not perfect.
lb.

6. Arrest without warrant. A constable or police officer is not bound to
procure a warrant, before arresting a person whom he has probable cause to
believe guilty of a felony, even though there may be no reason to fear the
escape of such person in consequence of the delay in procuring the warrant.
1866. Wade v. Chaffee (8 R, I. 224), V, 572, and rwU, 574. See Areebt.



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t^ CRIMINAL LAW.

6. Jqriidiotiop. Where a complaint before a police court charges the lar
cenj of goods of saffldent value to make it an offense, the maxtmum punish-
ment of which is greater than a police court has power to impose, such court
cannot go on and try the cause and impose a peiialtj within its jurisdiction.
1870. iSSfflrfd V. 2>o/«^ (49 N. H. 483), VI, 588.

7. The allegation of yalue in such a complaint governs the question of

jurisdiction, and not the value as found at the trial ; and the defect cannot be
remedied hy amendment in an appellate court, lb,

8. Penalty. When a penal statute provides that the penalty may be
recovered by indictment or dvil action, one moietj to go to the State and the
other to the prosecutor, it must appear of record who the prosecutor is in
order to entitle him to his share of the penalty, otherwise the whole penalty
goes to the State. 1870. State v. SmUh (49 N. H. 155), VI, 480.

9. Zlsoape evidence of guilt. On the trial of a prisoner indicted for mur-
der, after the case had been given to the jury, and while the jury were
deliberating, the prisoner escaped. The jury disagreed; the prisoner was
re-arrested and again brought to trial on the same indictment Held, evidence
of guilt, though not conclusive. 1871. Murrell v. ITie State (46 Ala. 89), VII,
592.

II. Indictment.

10. Grand Jury, A judge cannot require a grand jury to' have witnesses
examined publidy. 1878. State v. Branch (eSN,C.im),Xll9S8.

11. Information. A constitutional provision that no person shall be held
to answer for the criminal offense *' unless upon presentment or indictment of
a grand jury" was made to read " without due process of law." Ifeld, that a
statute giving courts jurisdiction of felonies upon information was valid.
1872. Bov>an v. State (80 Wis. 129). XI, 559.

12. *<Wi]]fiiU7 and maliciously.'* The statute made the "willfully and
maliciously " doing a certain act criminal. An indictment, under the statute,
charged that the defendant did the act " unlawfully and maliciously." Held,
that the indictment was bad. 1872. State v. Hussey (60 Me. 410), XI, 209.

13. Under an indictment, alleging that the accused " feloniously, will-
fully, and of his malice aforethought, did kill and murder," the defendant may
be convicted of murder in the first degree upon proof of murder by a deliber
ate and premeditated killing. Dos. J., and Smith. J., dissenting. 1870. State
V. Pike (49 N. H. 899), VI. 533.

14. Information for laro«ny of " one hundred and thirty-five dollars of the
property, goods and chattels" of C. Held, bad for uncertainty. 1878. Mer-
yfin V. PeapU (26 Mich. 298), XII, 814.

16. Oonokiding words — waiver by prisoner. The constitution of West
Virginia provides that indictments shall conclude "against the peace and
dignity of the State of West Virginia." Held (1) that an indictment concluding
" against the peace and dignity of the State of West Virginia was insufildent, a
literal compliance with the constitutional requirement being necessary ; and
(2), that a prisoner, by ftiiling to demur or to move to quash, or in arrest of



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CRIMINAL LAW. 135

Jndgment, ooold not be deemed to have waived all objections to an indict-
ment thus defective, and he was not precluded from making the objection on
appeal, the right being a constitutional one. 1870. Lemons v. The 8UUe
(4 W. Va. 755), VI, 298.

16. Neither the indorsements upon a check, nor a revenue stamp attached
thereto, form any part of the instrument ; and an omission to set them forth
in an indictment for forging and uttering the check constitutes no variance.
1878. MiUer v. The People (52 N. Y. 804), XI. 706; SMe v. MoU (16 Minn.
472), X, 152, and note, 154.

III. DEFENSB&

17. Onoe in Jeopardy. Under an indictment for murder, the defendant
plead not guilty, issue was joined, a jury impaneled, the witnesses sworn, and
the ca«e stated to the jury by counsel for both defendant and the State. At
this stage of the proceedings, the prosecuting attorney suggested to the court
a variance between the date on which the murder was alleged in the indict-
ment to have been committed, and the d|tte alleged in the original affidavit ;
whereupon the court dismissed the indictment. Held, that the dismissal of
the indictment operated as an acquittal of defendant, and that to a second
indictment a plea that he had been ^ once before put in jeopardy of life for
the same offense " was good. 1870. Lee v. The State (26 Ark. 260), VII, 611.

18. Onoe in Jeopardy — plea of upon new tiiaL Defendant was tried upon
an indictment for murder, and was found " not guilty of murder, but guilty of
manslaughter in the second degree." Upon a new trial upon the same indict-
ment, granted upon his own motions, held, that he could not be convicted of
murder. 1872. SttUe v. MarHn (30 Wis. 216). XI. 567.

19. A statute provided that *' the granting of a new trial places the

parties in the same position as if no trial had been had.'' Defendant was con-
victed of manslaughter, on an information charging murder ; and a new trial
was granted on his own motion. Held, that the defendant had waived the
constitutional safeguard against being twice put in jeopardy for the same
offense, and that on the second trial he could be convicted of murder. 1871 .
StcUe V. McCord (8 Eans. 282), XII, 469 ; $ee contra, note, 478.

20. 7ormer aoqnlttaL The discharge of the jury impaneled in a criminal
case, without the consent of the defendant, because, after mature deliberation,
they are unable to agree on a verdict, is not an acquittal of the defendant, and
does not entitle him to immunity from further prosecution for the same offense.
1871. Ex parte McLaughlin (41 CaL 211), X, 272.

21. Neither an aoqnifctal upon an indictment for larceny, nor a conviction
upon an indictment for receiving stolen goods, is a bar to a subsequent indict-
ment, charging the same respondent with being an accessory before the fact
to the stealing of the same goods. 1869. . StaU v. Larkin (49 N. H. 86), VI,
456.

22. Self dileiMa. Where one's life has been repeatedly threatened by an
enemy, a desperate and lawless man, an actual attempt been made to assassin
ate him, and the members of his family been informed by such enemy that
he is to be killed on sight, he may lawfully arm himself to resist the threat-



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136 CRIMINAL LAW.

ened attack ; he maj leave his home for the transaction of his legitimate hoai-
ness, or for any lawful and proper purpose, and if, on such occasion, he casoally
meets his enemy, having reason to believe 1iim to be armed and ready to
execute his murderous intentions, and he does believe, and from the threats,
the previous assault, the character of the man and the circumstances attending
the meeting, he has reason to believe that the presence of .his enemy puts his
life in imminent peril, and that he can secure his personal safety in no other
way than to kill him, he is not obliged to wait until he is actually assailed.
1871. Bohannon v. CkmmonweaUh (8 Bush. [Ky.], 481), VIII. 474.

23. On the trial of an indictment for homicide, wliere the facts proved

by the prosecution show that the defendant claimed to do the act resulting in
death in self-defense, the burden of proof rests upon the prosecution to show,
beyond reasonable doubt, that the act was criminal 1873. State v. Pattenon
(45 Vt. 808). Xn, 200.

24i A man's house is bis castle only in the respect that it is sacred for the
protection of his person and family. * An assault on the house can be lawfully
resisted to the extent of using deadly weapons, only in case the assault is made
with the intent either of taking the life of the inmate, or of doing him great
bodily harm, and such resistance is necessary to prevent such crime ; or in
case the inmate has reason to believe from the circumstances, and, in fact, does
believe, that it is necessary to prevent the commission of such crime. 1878.
State V. Patterson (45 Vt. 808), XII, 200, and note, 212.

25. Drunkenness. The voluntary drunkenness of a murderer neither
excuses the crime nor mitigates the punishment. The rule is, that one in a state
of voluntary intoxication is subject to the same rule of conduct, and to the
same rules and principles of law, that a sober man is ; and that where a provo-
cation is offered, and the one offering it is killed, if it mitigates the offense
of the man drunk, it should also mitigate the offense of the man sober. 1871 .
Shannahan v. Chmmonwedtth (8 Bush. [Ky.]. 468), VIII, 465.

26. Insanity. On the trial of an indictment for murder, the jury were
Instructed that, if the defendant killed his wife in a manner that would be
criminal and unlawful if the defendant were sane, the verdict should be '* not
guilty by reason of insanity," if the killing was the offspring or product of
mental disease in the defendant. Hdd correct. 1871. State v. Jonee (50 N.
H. 869), IX, 242.

27. The test of responsibility for criminal acts, where unsoundness of mind
is set up as a defense, is the capacity of the defendant to distinguish between
right and wrong, at the time of and with respect to the act which is the sub-
ject of the inquiry. 1878. Flanagan v. The People (52 N. Y. 467), XI, 781.

28. Neglect of wounds. If death ensues from a wound given in malice but
not in its nature mortal, but from which, being neglected or mismanaged, the
party dies, this will not excuse the prisoner who gave it, but he will be held
guilty of the murder, unless he can make it cle^ly appear that the maltreat-
ment of the wound, or the medicine administered to the patient, or his own
misconduct, and not the wound itself, was the sole cause of his death. 1871.
8taU V. Morphy (88 Iowa, 270), XI, 122, and note, 125.



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OEntm AL LAW. 137

IV. Tbiai,.

29« Bh«c¥Ji. A prisoner is entitled to appear for trial, upon his own plea
of not gniltj, free from all manner of shackles or bonds, unless there is danger
of his escape . 1871 . People ▼. Harrington (42 Gal . 165), X, 296.

30. Impaneling Jnxy. When the name of a juror is drawn in making up
the jurj for a murder trial, it is the right of the accused to have him put upon
the jury or challenged by the State, although, since such juror was summoned,
he has been convicted of an assault, and at the time he is drawn is confined in
the county jail. The court cannot discharge such a juror of its own motion.
1871. Bogge ▼. 8kUe(^ Ala. 80). VI, 689.

31. Whether a juror Is indifierent, and whether a confession was made

in consequence of inducements, are questions of fact to be decided by the
court at the'trial, and that decision is final. 1870. State ▼. Pike (49 N. H.
899), VI, 688.

32. Polling Jury. The consent of the defendant in a criminal trial to have
a sealed verdict returned is no waiver of his right to have the jury polled.

1871 . Stewart v. People (28 Mich. 68), IX, 78.

33. Separation of Jury. On the trial of an information for murder, which
lasted through five days, the jury was permitted to separate for meals and at
night and during one Sunday. The defendant was convicted of manslaughter.
Held, that in the absence of proof that this separation of the jury worked no
harm to the defendant, the verdict was void and should be set aside, and a
new trial granted. 1872. Botoan v. State (80 Wis. 129). XI, 559.

34i Merger. In offenses of an equal grade there can be no merger, and
where the facts will make out a case under more than one statute, the State
has a right to elect under which one it will proceed. 1871. Hamilton v. State
(86Ind. 28(9,X,22.

36. Nolle proseqiiL A prosecuting oflioer has the power, frirtute officii, to
enter a nolle prosequi in ordinary indictments ; and this power may be exer-
dsed before a jury is impaneled or while the case is on trial, with the consent
of the respondent, or after a verdict la rendered against him. The exercise
of this power being discretionary on the part of the prosecuting officer, the
court has no right to interfere, after a nolle prosequi has been entered, and allow
the complainant to appear and prosecute the indictment. 1870. State v. Smith



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 18 of 51)