Mariano F. Medrano.

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Coataining Nambcn 47 and 48, for October 1840, and Janoarj 1841,
being Volome XXTV. of the entire Collection.




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Alt. Fftge.

I. — Law of CJontbacts. No. 9. Construction of Con-
tracts. . . . . . .1

n. — ^Biographical Notice of James Smith. . . 16

in. — Codification and Reform of the Law. No. 9. . 32
rV. — On the Present State of Criminal Legislation in
Germany. By Professor C. J. A. Mittermaier, of
Heidelberg. . . . . .62

y. — Of the Causes of Pauperism and Criminal Legisla-
tion. . . . . . .79

YI. — ^Biographical Sketch of Benjamin Lynde. . .115

VII. — ^RuLEs OF Evidence. No. 11. Hearsay Evidence. 118
L — ^Digest of English Cases.

Common Law. ..... 163

Equity. .179

Admiralty. .184

House of Lords. .189

n. — ^Digest of American Cases. .... 191

ID. — Miscellaneous Cases.

Case of certain alleged Fugitives from Justice, de-
manded by the Governor of Massachusetts of the
Governor of Maine. .... 226

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In the goods of Betty Russell, widow. . 236

Iq the goods of Marie de Blanco.

. 236


New York. ....

. 237




. 240


. 240


. 241


. 242

New Jersey.

. 243




. 244

Maryland. .

. 245


. 245

Critical Notices.

1. — ^Lieber on International Copjrright

. 246

2.— Metcalfs Reports. .

. 248

3. — Blackford's Indiana Reports.

. 249

4. — Jouffroy on Natural Law.

. 249

5. — Little and Brown's Catalogue.

. 250

6. — Statutes of Mississippi.

. 251

7.— Troubat's Tidd's Practice. .

. 251

8.— Day's Digest.

. 253

Quarterly List of New Publications.

United States.

. 254

In Press. .

. 255

Standard Law Bool



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Alt. Ptge.

I. — Law op Contracts. No. 10. Obligation of Contracts. 257
II. — ^Perjitrt in a Deposition which is Invalid as

Eyidbncb in a Civil Suit. . . 281

in. — Medical Evidence. ..... 294

rV. — Of the Duty of Society in regard to Criminal

Legislation and Prison Discipline. . 306

v.— Estoppel. . . . . .328

VI. — Reports and Reporters. .... 33b

Vn. — ^Biographical Sketch of Samuel Sewall. . . 345

VIU. — Celebrated Criminal and Political Trials. . 350

K. — Life of Sir Samuel Romilly. .371

X. — Enlargement of the Admiralty Jurisdiction in

England. ..... 405


L^Diobst of, English Cases.

Common Law. ..... 410

Equity. . . .426

n. — ^Digest of American Cases. . . 438


Bonney v. The Huntress. .... 486


Michigan. ...... 495

Pennsylvania. ..... 498

Critical Notices.

1.— The d'Hauteville Case. .500

2. — ^Angell on Watercourses. .... 502

8. — Claus on Time and Space. .... 503

4. — ^Ahrens on Natural Right .... 504

Quarterly List of New Publications.

Great Britain. .506

United States. .507

Quarterly Advertiser. .... 508

Indbx. ....... 512


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OCTOBER, 1840.


No. 9. — Construction of Contracts.

6. If the words of a contract do not fully express, or even
if they are contrary to, the evident intention of the parties,
the intention is to be preferred to the expression.'

Thus the condition of a bond of £2000 being " to render
a fair, just and perfect account in writing of all sums re-
ceived " was held to be broken by ihe obligor's neglect to
pay over such sums. Lord Mansfield said, it was clearly
the intention of the parties, that the money should be paid.
Buller, J., said, it never could be meant that so large a
penalty should be taken merely to enforce the making out
of a paper of items and figures.* So a proviso, that an
annuity to a married woman should cease, if she should
" associate, continue to keep company with, or criminally
correspond with J. F.," was extended to all intercourse, so
that J. F.'s calling and leaving his card at the house, and
sometimes being admitted, though no improper behavior on

1 Domat, 37, § 11. * Bache v. Proctor, 1 Douf . 88SL

VOL. XXrV. — NO. XLHI. 1

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2 Law of Contracts. [Oct

his part, or levity on her's, was shown, was decided to be
sufficient cause to stop the annuity.' A covenant that the
lessee shall not exercise the trade of a butcher upon the
demised premises, is broken by his there selling raw meat
by retail, though no beasts were slaughtered there ; the in-
tention being to prevent the lowering of the tenement in the
scale of houses, by the exercise, whether wholly or partially,
of a trade which the lessor supposed would depreciate its
value in future.* So a covenant by a lessee not to use or
exercise, or suffer to be used or exercised upon the premises,
any trade or business whatsoever without license of the
lessor, was held to be broken by assigning the lease to a
schoolmaster who kept a school in the house.'

These, and numerous other cases, come under the first
part of rule, namely, when the words ** do not fully ex-
press " the intention of the contracting parties. They might,
perhaps, be as properly classed under the third rule, that
" the subject-matter of an agreement is to be considered in
construing the terms of it," &c.

The following examples fall under the latter part of the
rule; that is, where the words are contrary to the evident
intent of the parties ; as Vernon v, Alsop,* and the other
cases mentioned in our last number, where the condition of
a bond was wholly contrary to the bond itself and nullified
it ; and the cases of evident mistake, cited under the fifth
rule. So of a note or bill of exchange made payable to the
order of a fictitious person, which is held to be payable to

> Donner «. Knight, ] Taunt 417.

* Doe V. Spry, 1 Barn. & AM. 617.

' Doe t». Keeling, 1 M. ^Ec S. 95. See also Doe v. Worsley, 1 Campb. 20;
Doe V. Laming, 4 Catnpb. 77 ; Torabs r. Painter, 13 East, 1 ; Quackenboss r.
Lansing, 6 Johns. 49. For construction of a co?enant not to assign a lease
wiUiout license, see 2 Selw. N. P. (Ist ed.) 408-412; 3 M. dt S. 3&3; 16
Johns. 278 ; 3 Pick. 221 ; 2 Stark. Ev. 433 ; 7 Johns. 227.

* 1 Lev. 77; 1 Sid. 105; T. Ray. 68.

* Kyd on Bills, 208-268; Gould on Pleading, 159.

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1840.] ConstrucHon of Contracts, 3

Posthumtis pro nato habettur. Therefore where one gave
a bond to pay £900 to his daughter, if he should have no
son living at the time of his decease, chancery relieved
against the bond, upon its being shown that there was a
posthumous son who would receive less of the obligor's
property than the daughter, if the bond should be paid.'

> Gibson v. Gibson, 2 Freem. 223. See also Millar «. Turner, 1 Ves. sen. 86.
It has been the statute law of Massachusetts, for about a century and a half,
that posthumous children shall have the same share in their father's estate,
when he makes a will in which they are not provided for, as if he had died
intestate ; to be taken proportionally from the devisees and legatees who claim
under the will. (Ancient Charters, &jc. 361 ; St. of 1783, c. 24 ; Revised
Statutes, c. (i2.) This statute provision assumes, that if the father die intes-
tate, a posthumous child will inherit ; and such is the common law. Introduc-
tion to Reeve on Descents, p. lii, liii. Lands descend to the children already
bom, and vest ; but are devested by the birth of a posthumous child. This
devesting, however, takes place, in England, only when a son is bom, the
other children being daughters. 2 BI. Com. 211. In New England, there is
no distinction of sex in the law of descents.

In Reeve v. Long, 4 Mod. 282, (and in several other books) the courts of
C. B. and B. R. decided that a remainder to A's first son, after a life estate
limited to A, could not be taken by A's posthumous son. But the house of
lords reversed the decision, though all the judges retained their first opinion.
Thereupon the statute of 10 &, 11 W. Ill, c. 16, was passed, to enable posthu-
mous children to take remainders limited to the children of the first or other
person to whom the freehold is previously granted or devised. See Bac. Ab.
RtmaindtT if Reversion, D. Bui. N. P. 105. Stedfast v. Nicoll, 3 Johns.
Cas. 18.

A child in ventre sa mere is now considered as bom for all purposes which
are for his benefit. Hale v Hale, Prec. Ch. 50 ; White v. Barber, 5 Bur. 2703;
Doe V. Lancashire, 5 D. & E. 49 ; Doe v. Clarke, 2 H. B. 399 ; Hall v. Han-
cock, 15 Pick. 255 ; Trover v. Butts, 1 Sim. & Stu. 181 ; Heinec. Pand. Pars
I, § 124, 125 ; Pars V, § 22; 1 Domat, 277, § 14. The statutes of Massa-
chusetts assume that effectual provision may be made by will for such child ;
and the cases above cited show that such is the law.

Technically, a posthumous child is one who is bom afler the death of the
father. But a child bom afler the death of the mother has the same righti,
and is « of the same condition with other children." 1 Domat, 20, § 7, 8 —
625, § 6. There is no statute provision in Massachusetts respecting children
born afler the mother's death. If therefore a mother, having property, phould
die before delivery, the rights of the child subsequenUy delivered (eisectvt vel

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4 Law of CarUracts. [Oct

It is, perhaps, rather by legal operation, than by construc-
tion, that a contract, '^ if it will not take effect that way it is
intended, it may take effect another way/' The general
intention of the parties is, in this manner, effected, though
the particular intention fails. This usually happens where
some legal impediment withstands the particular intent of
the parties ; ' as in case, abovementioned, of a note or bill
payable to the order of a fictitious person.

A freehold cannot be made to commence infuturo. There-
fore a grant of land, by bargain and sale, from a father to a
son, ^' to have and to hold after the death of the grantor,"
cannot operate as a bargain and sale, though so intended.
But it shall operate as a covenant by the father to stand
seized to his own use during life, and to the use of the son
after the father's death. Thus the son has full title to the
land after his father's decease, which was the chief purpose
of the parties.* The same effect is given to a release at-
temptipg to convey a freehold infuturo* So a deed, meant
for a release, but not legally operative as such, is held to
operate as a grant^ A grant in consideration of natural

editus) not technically born (ntUus), would be wholly g^vetned by the comroon
law. If the father were previously dead, doubtlem the child would be strictly
and technically posthumous, and clearly within the existing statutes. And if
the father were alive, the child would inherit from the mother ; and by the
civil law mi^ht succeed to the property, pro rata^ against a will omitting to
provide for him. 2 Domat, 109, § 8. By that law, a father might disinherit
a posthumous child. If he omitted to mention such child in his will, the will
was inofficious, so far as such child was concerned. If he were provided for,
the will, h.c. was valid, as at common law. 2 Domat, 109, § 8. Just. Inst.
Lib. II, tit. 13.

The Massachusetts statutes seem to have prohibited a father from disinher-
iting such child. It may, however, be questionable. Justinian reformed the
Roman law, by prohibiting a parent from disinheriting such child. Nov. 115.
Did this Novel extend to mothers.' Heinec. Recit. Lib. II, § 524.

> Shep. Touch. 82 ; 6 East, 105 ; WiUes, 686 ; Gould on Pleading, 156-160.

' Doe V. Simpson, 2 Wils 22 ; Wallis v. Wallis, 4. Mass. R. 135 ; Doe v.
Salkeld, Willes, 673 ; Doe v. Whittingham, 4 Taunt. 20.

• Roe r. Tranmarr, Willes, 682.

« GoodtiUe v. Bailey, Cowp. 597 ; Hastings v. Blue Hill Turnpike, 9 Pick. 80.

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1840.] OmstrwHm of Contracts. S

affection may operate as a covenant to stand seized to the
use of the grantee.' The words " limit and appoint" may
operate as a grant of a reversion, though intended as an
appointment of uses, but not being sufficient for that pur-
pose.' A release from a trustee to his cestui que trust may
be considered as a bargain and sale.' A release to one not
in possession, does not, as such, pass any estate ; but if made
for a valuable consideration, and registered, it will operate
as a bargain and sale, or other lawful conveyance, as, by
the Massachusetts statutes, the recording of a deed duly
executed is equivalent to actual livery of seizin.^

In all these and similar cases, the deeds, which are per-
mitted to have an operation different from what was designed,
must be consistent, in their terms and incidents, with the
operation allowed. If the terms, &c. are repugnant to such
kgal operation, the deed cannot have its intended operation.
It will be void.

An agreement between a lessor and the assignee of his
lessee, that the lessor shall have the premises as mentioned
in the lease, &c. shall operate as a surrender.*

A covenant never to sue shall operate as a release or de*
feasance, to prevent circuity of action.' Aliter, of a cove-'

* Vanhom v. Harrison, 1 Dallas, 137.
« Shore v. Pincke, 5 D. &: E. 124.

> Jackson v. Beach, 1 Johns. Gas. 399.

« Pray v. Pierce, 7 Mass. R. 381 ; Russell v. Coffin, 8 Pick. 143. S. P. 6
Mass. R. 32 ; 3 Pick. 521 ; 4 Mason, 45 ; 7 Mass. R. 494 ; Steams on Real
Actions, 12, 13 ; Bac, Ab. PUas and PUadings, 1. 7} 2 Saond. 97, noU; Gould
on Pleading, 156-159.

* Smith 9. Mapleback, 1 D. & E. 441. Lord Hale and his associates, 1
Vent 141, approved of lord Hobart's commendation of judges that are curious
and almost subtile {oituti) to invent reasons and means to make acts efiectual
according to the just intent of the parties. Hob. 277. And lord Willes says,
Judges, in these later times, have (and I think very rightly) gone further than
formerly, and have had more consideration for the substance, to wit, the pass*
ing of the estate according to the intention of the parties, than to the shadow,
to wit, the manner of passing it." Willes, 664, referring to 3 Lev. 372.

' Deuj r. Jefferies, Cro. £)iz. 352 ; 2 Saund. 48, note (1).

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6 Ijxw of Contracts. [Oct.

nant not to sue within a specified time.' A covenant not
to sue within a limited time, and also that if a suit be
brought within the time, the cause of action shall cease,
or that the defendant shall be discharged from the debt or
duty, or the plaintiff shall forfeit the debt, will be a bar to
the suit. The defendant is not turned round to a suit on
the covenant. But if the covenant is successfully pleaded
to a suit on the original cause of action, the whole purpose
of the covenant is answered, and the covenantee cannot
maintain an action against the covenantor for disturbing
him by suit.* Such covenant, however, is not a bar to a
suit on the original cause of action, when it is made with
one of two or more joint contractors ; for it would defeat the
intention of the parties.' A covenant never to sue one of
two or more joint or joint and several obligors or promisors
does not operate as a release ; for a release of one, in such
case, is a release of all, and the intention is not to discharge
the debt, but to exempt one of the parties from liability. The
only remedy of the covenantee, if afterwards sued, is on
his covenant.* In 12 Mod. 415, Holt, C. J. is reported to
have said that a covenant not to sue for a specified time is
a defeasance. If it be so, it might be pleaded in bar to a
suit brought within the time. But the law is clearly other-
wise.* If, however, there be in such covenant a provision
that the covenantee may plead it in bar of a suit commenced
before the time has elapsed, the law may be different.

1 Deux V. Jefferies, Cro. Eliz 352 ; 2 Saund. 48, wAa (I) ; Clarivil t>. Edwards,
1 Show. 331 ; Perkins v. Gilman, 8 Pick. 229 ; Garnett v. Macon, 2 Brock.
185; Bac. Ab Rdeasej A. 2.

* White V. Din^ley, 4 Mass. R. 433. See Upbam v. Smith, 7 Mass. R.
265 ; 8 Johns. 58 *, fiac. Ab. Pleas and Pleadings, I. 7

» Button V. Eyre, 6 Taunt. 289 ; Garnett v. Macon, 2 Brock. 185.

* March, 95 j Fitzgerald v. Trant, 1 1 Mod. 254 ; Lacy v. Kynaston, 12 Mod.
551 ; Dean v. Newhall, 8 D & E. 168 ; Shed v. Pierce, 17 Mass. R. 623 ;
Tuckerroan v. Newhall, 17 Mass. R. 584 ; Harrison v. Close, 2 Johns. 448;
Walker o. M'cCulloch, 4 Greenleaf, 421. See also Brooks v. Stuart, 1 Perry
&. Davison, 615.

* See Aloff v. Scrimshaw, 2 Salk. 573, and the cases above cited.

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1840.] Construction of Contracts, 7

A license to enclose common may operate as a release of
common, if so intended ; for, as a license, it is determined
by the death of the party granting it.* Licenses, that con-
vey any interest in land, must be by deed ; and Parker, C. J.
says " they are considered as leases, and must always be
pleaded as such." * But in Bacon's Abridgment* it is said,
" if one license another to enjoy such a house or land till
such a time, this amounts to a present and certain lease or
interest for that lime, and may be pleaded as such, though
it may be also pleaded as a license."

A perpetual license in form would doubtless operate as a
grant of an easement, and might be pleaded as a grant.
Indeed a prescriptive right rests on the presumption of a
grant; and so does the right acquired by adverse enjoyment
for twenty years. These rights, however, are not often
pleaded as acquisitions by grant.

It is a rule of pleading, that things must be pleaded ac-
cording to their legal operation. But where a thing may
operate in two ways, at the election of the party, he may
plead it in one way or the other, according to his election,
as in the case of a license, before mentioned.^

7. The time when a contract was made is to be regarded
in expounding it; and contemporsoieous exposition is of
great weight in construction.

" Every grant shajl be expounded as the intent was at
the time of the grant. As, if I grant an annuity to J. S.
until he be promoted to a competent benefice, and at the
time of the grant he was but a mean person, and afterwards
is made an archdeacon, yet if I offer him a competent ben-
fice according to his estate at the time of the grant, the
annuity doth cease." •

> Semb. Miles v. Etteridge, 1 Show. 34^

* 11 Mass. R. 538.

•* Bac. Ab. Leases t &c., K. Pleas and Pleadings, I. 7.

* Goald oo Pleading, 160. » Per Wray, C. J. Cro. Elii. 35.

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8 Law of Contraeis. [Oct

Ancient grants are to be expounded as the law was at
the time of making them.' Modern methods of convey-
ancing are not to be construed to affect ancient notions of
equity.' So the state of the country, and of the manners of
society, is to be regarded, in expounding contracts. Thus,
in Adams v. Frothingham,* where a vote of the town of
Newbury came in question, " granting W. Noyes a piece
of land below high water mark, to set a shop upon, and not
exceeding forty feet in the front," the question was whether
the lot should extend back to low water mark, or only to a
distance sufficient to accommodate a shop. The vote was
passed in 1680. The court held that the lot extended to
low water mark ; though such words, in a recent grant, in
times of precision and accuracy, and when flats have be-
come valuable, might receive a different construction. It
was also supposed, from the state of the times and the
country, that the proprietors of Newbury desired to settle
the township, and to afford advantageous situations, on the
river, to the settlers. The court also relied, in part, upon
the fact that those, who occupied under Noyes's grant,
claimed and used the flats, as they needed them, for nearly
a century, without complaint from the grantors; and thus
a practical construction, by both parties, had been given to
the grant, sufficient to remove any doubts that might have
arisen from its terms. This practical construction of the
parties, immediately after the grant, is what is generally
called contemporaneous exposition — which is said to be
optima et fortissima in lege.*

Where, in a deed given in 1694, the grantor gave the
privilege of cutting timber, for the purpose of building on

> Co. Lit. 8 b. ; Amb. 2iS
* See remarks of Spencer, J. 16 Johns. 23.
s 3 Mass. R. 3(>0.

« See Branch's Maxims, (Hening's ed.) 30 ', Codman v. Winslow, 10 Mass.
R. 149.

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1840.] Construction of Contracts. 9

Online LibraryMariano F. MedranoThe American jurist and law magazine, Volume 21 → online text (page 1 of 45)