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SCHOOLS-CHASTISEMENT OF PUPIL.

ALABAMA SUPREME COURT, JAN. 29, 1890.

BOYD V. STATE.

On the trial of a schoolmaster for assault and battery committed upon a pupil, the evidence showed that, after a severe chastisement administered in the school-room, defendant followed the pupil into the school-yard, and struck him with "a limb or stick," and then "put his hands in his pocket as if to draw a knife; "that he "afterward struck him in the face three licks with his fist, and hit him several licks over the head with the butt end of the switch." From these blows the eye of the boy was "considerably swollen," and was closed for several days." Defendant was apparently very angry all the time, and was very much excited; and, after he got through with the whipping, he remarked, in an excited, angry voice, in the presence of the school, and others, that he could whip any man in China Grove beat.' Held, that there was ample room for the inference of legal malice, such as to warrant a verdict of guilty.

APPEAL from Criminal Court, Pike county; W. H.

Parks, J.

The defendant Boyd, a schoolmaster, was indicted for an assault and battery ou Lee Crowder, one of his scholars; and the case being submitted to the court without a jury, he was convicted, and fined $25.

W. L. Parks, for appellant.

Attorney-General Martin, for State.

SOMERVILLE, J. The defendant, a schoolmaster, being indicted, was convicted of an assault and battery on one Lee Crowder, a pupil in his school, who is shown to have been about eighteen years of age. The defense is that the alleged battery was a reasonable chastisement inflicted by the master in just maintenance of discipline, and in punishment of conduct on the part of the pupil which tended to the subversion of good order in the school.

The case involves a consideration of the proper rule of law prescribing the extent of the schoolmaster's authority to administer corporal correction to a pupil. The principle is commonly stated to be that the schoolmaster, like the parent, and others in foro domestico, has the authority to moderately chastise pupils under his care, or, as stated by Chancellor Kent, the "right of inflicting moderate correction, under the exercise of a sound discretion." 2 Kent Com. *203-*206. In other words, he may administer reasonable correction, which must not "exceed the bounds of due moderation, either in the measure of it, or in the instrument made use of for the purpose." If he go beyond this extent, he becomes criminally liable; and, if death ensues from the brutal injuries inflicted, he may be liable, not only for assault and battery, but to the penalties of manslaughter, or even of murder, according to the circumstances of the case. 1 Archb. Crim. Proc. *218; 1 Bish. Crim. Law (7th ed.), §§ 881, 882.

This power of correction vested by law in parents is founded on their duty to maintain and educate their offspring. In support of that authority, they must have "a right to the exercise of such discipline as may be requisite for the discharge of their sacred trust." 2 Kent Com. *203. And this power allowed by law to the parent over the person of the child " may be delegated to a tutor or instructor, the better to accomplish the purpose of education." Id. *205; 1 Bl. Com. *507. The better doctrine of the adjudged cases therefore is that the teacher is, within reasonable bounds, the substitute for the parent, exercising his delegated authority. He is vested with the power to administer moderate correction, with a proper instrument, in cases of misconduct, which ought to have some refer

ence to the character of the offense, the sex, age, size and physical strength of the pupil. When the teacher keeps within the circumscribed sphere of his authority, the degree of correction must be left to his discretion, as it is to that of the parent, under like circumstances. Within this limit, he has the authority to determine the gravity or heinousness of the offense, and to mete out to the offender the punishment which he thinks his conduct justly merits; and hence the parent or teacher is often said pro hac vice to exercise judicial functions. All of the authorities agree that he will not be permitted to deal brutally with his victim, so as to endanger life, limb or health. He will not be permitted to inflict "cruel and merciless punishment." Schoul. Dom. Rel. (4th ed.), § 244. He cannot lawfully disfigure him, or perpetrate on his person any other permanent injury. As said by Gaston, J., in State v. Pendergrass, 2 Dev. & B. 365, a case generally approved by the weight of American authority: "It may be laid down as a general rule that teachers exceed the limits of their authority when they cause lasting mischief, but act within the limits of it when they inflict temporary pain."

There are some well-considered authorities which hold teachers and parents alike liable, criminally, if, in the infliction of chastisement, they act clearly without the exercise of reasonable judgment and discretion. The test which seems to be fixed by these cases is the general judgment of reasonable men. Patterson v. Nutter, 78 Me. 509. The more correct view however, and the one better sustained by authority, seems to be that when, in the judgment of reasonable men, the punishment inflicted is immoderate or excessive, and a jury would be authorized, from the facts of the case, to infer that, it was induced by legal malice, or wickedness of motive, the limit of lawful authority may be adjudged to be passed. In determining this question, the nature of the instrument of correction used may have a strong bearing on the inquiry as to motive or intention. The latter view is indorsed by Mr. Freeman in his note to the case of State v. Pendergrass, 31 Am. Dec. 419, as the more correct. The qualifica-tion," he observes, "that the schoolmaster shall not act from malice, will protect his pupils from outbursts of brutality, whilst, upon the other hand, he is protected from liability for mere errors of judgment." Lander v. Seaver, 32 Vt. 114; 76 Am. Dec. 156, and note on pages 164-167; State v. Alford, 68 N. C. 322; State v. Harris, 63 id. 1.

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Judge Reeve, in his work on Domestic Relations, indorses the same view, asserting that the parent and schoolmaster, in imposing chastisement for cause, must be considered as acting in a judicial capacity, and are not to be held legally responsible for errors of judgment, although the punishment may appear to the trial court or jury to be unreasonably severe, and not proportioned to the offense, provided they act "conscientiously, and from motives of duty.” But," he says further, "when the punishment is, in their opinion, thus unreasonable, and it appears that the parent acted malo animo--from wicked motives-under the influence of an unsocial heart, he ought to be liable to damages. For error of opinion he ought to be excused, but for malice of heart he must not be shielded from the just claims of the child. Whether there was malice may be collected from the circumstances attending the punishment." Reeve Dom. Rel. (4th ed.) 357, 358.

Dr. Wharton, in his work on Criminal Law, thus states the principle: "The law confides to schoolmasters and teachers a discretionary power in the infliction of punishment upon their pupils, and will not hold them responsible unless the punishment be such as naturally to occasion permanent injury to the child, or be inflicted merely to gratify their own evil passions. The teacher must be governed, when chastisement is proper, as to the mode and severity of the pun

ishment, by the nature of the offense, the age, size and apparent powers of endurance of the pupil. It is for the jury to decide whether the punishment is excessive." 1 Whart. Crim. Law (9th ed.), § 632.

Mr. Bishop adds, pertinent to the same subject: "The law has provided no means whereby a parent, meditating chastisement, can first obtain a judicial opinion as to its necessity, the proper instruments, and its due extent. In reason therefore if he acts in good faith, prompted by true parental love, without passion, and inflicts no permanent injury on the child, he should not be punished merely because a jury, reviewing the case, do not deem that it was wise to proceed so far." 1 Bish. Crim. Law (7th ed.), § 882. See also Schoul. Dom. Rel. (4th ed.), § 244; 1 Bl. Com. *556; 2 Greenl. Ev., § 97; 2 Add. Torts (Wood), § 840; Danenhoffer v. State, 69 Ind. 295; Com. v. Randall, 4 Gray, 36; State v. Burton, 45 Wis. 150.

To the foregoing authorities I may add, as a matter of literary curiosity rather than legal authority, the following views expressed on this subject by Dr. Samuel Johnson to his biographer, Boswell, as far back as 1772. Boswell was of counsel for a schoolmaster in Scotland who had been somewhat severe in his chastisement of one of his pupils, and the case was pending on appeal from the Court of Session before the English House of Lords, in a proceeding to remove him from his office. The opinion of this most learned of literary philosophers having been solicited, he discoursed as follows: "The government of the schoolmaster is somewhat of the nature of a military government-that is to say, it must be arbitrary; it must be exercised by the will of one man according to particular circumstances. A schoolmaster has a prescriptive right to beat; and an action of assault and.battery cannot be admitted against him unless there be some great excess, some barbarity. In our schools in England many boys have been maimed, yet I never heard of an action against a schoolmaster on that account. Puffendorf, I think, maintains the right of a schoolmaster to beat his scholars." Boswell's Life of Johnson, vol. 2, pp. 89-96.

While, on the one hand, we should recognize that every child has rights which ought to be protected against the brutality of a cruel teacher or barbarous parent, on the other, it is equally important not to paralyze that power of correction and discipline by the rod given, as Blackstone asserts, "for the benefit of education," which has for ages been deemed necessary alike, on the part of parents, to prevent their children from becoming the victims of bad habits, and thereby proving a nuisance to the community," and on the part of teachers, to preserve that discipline of the schools without which all efforts to promote the education of the present and future generations will prove a lamentable failure. Reeve Dom. Rel. 357. No regulation of the school-room, any more than a law of the State, can be successfully enforced without the aid of coercive penalties. A law without a penalty is in practice a dead letter. Moderate chastisement is estab lished by immemorial usage as the only available terror to vicious and incorrigible evil-doers, both in the homestead and the school-room, at least in cases where the more humane law of kindness and moral suasion has proved ineffectual. "Foolishness," said Solomon, is bound up in the heart of a child, but the rod of correction shall drive it far from him." "The rod and reproof give wisdom, but a child left to himself causeth shame to his mother." And again: "Train up a child in the way in which he should go, and even when he is old he will not depart from it." These words are as true now as they were a hundred generations ago, when they were uttered by the wise mau. This right of discipline with the rod, administered without malice or immoderation, has been well characterized as a part❘ of the common law of the school-room. The more

thoroughly the right is established, as experience in all discipline shows, the less frequent will be the necessity of resorting to its exercise to enforce obedience to the lawful mandates of the parent or the schoolmaster.

We have said thus much in order that we may not be misunderstood in the conclusion reached by us, not to disturb the judgment of conviction in this case. We cannot say, under the principles above stated, that the judge of the Criminal Court reached an erroneous conclusion in adjudging that the defendant exceeded his lawful authority, so as to render himself liable for an assault and battery.

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There was evidence in this case from which the inference of malice could have been deduced as influencing the conduct of the defendant in his chastisement of young Crowder, both as to his outbursts of temper, and in the use of improper instruments of correction, Taking, as we must, every reasonable inference which the judge, acting as a jury, could have drawn from the evidence, we take as true, among others, the following facts: That after the severe chastisement administered in the school-room the defendant followed Crowder into the school-yard, and struck him with "a limb or stick," and then "put his hands in his pocket, as if to draw a knife;" that, although Crowder did not strike back, but only protested against, and resisted, castigation, and after apologizing for the objectionable lan guage imputed to him asked permission to withdraw from the school, the defendant after promising not to strike him, "afterward struck him, in the face, three licks with his fist, and hit him several licks over the head with the butt end of the switch." From these blows the eye of the young man was considerably swollen," and was "closed for several days." The attending physician testified that there were "marks on his head, make by a stick, in his opinion." One witness asserts that the defendant declared he "would conquer him [Crowder] or kill him." All the wit nesses for the State say that the defendant was appar ently very angry all the time, and was very much excited; and, after he got through whipping Crowder, he remarked, in an excited, angry voice, in the presence of the school, and others, that he "could whip any man in China Grove beat!" From this unseemly cou duct on the part of one whose duty it was to set a good example of self-restraint and gentlemanly deportment to his pupils, there was ample room for the inference of legal malice, in connection with unreasonable and immoderate correction. Nor was the limb of a tree of the size indicated by the evidence, nor a clinched fist. applied in bruising the pupil's eye, after the manner of a prize-fighter, a proper instrument of correction to be used on such an occasion.

The conviction must accordingly be sustained, without assuming any jurisdiction to review the correctness of the judge's finding on the facts. Affirmed.

NEW YORK COURT OF APPEALS ABSTRACTS.

AGENCY-RATIFICATION.-Where a lease is executed by an unauthorized agent, the principal, by accepting the rent for five years without objection and permitting the tenants to make alterations, ratifies the acts of her agent, and waives any right to disaffirm upon any ground. Hoyt v. Thompson's Ex'r, 19 N. Y. 207; Alexander v. Jones, 64 Iowa, 207; Heyn v. O'Hagen, 60 Mich. 150; 2 Greenl. .v., §§ 66, 67. Second Division, Feb. 25, 1890. Clark v. Hyatt; Hyatt v. Clark. Opinion bv Vano, J. Affirming 55 N. Y. Super. Ct. 98.

APPEAL- REVIEW

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ADMISSIONS IN PLEADINGS.

Where a case on appeal contains only a portion of the evidence, it cannot be successfully claimed that a certain fact admitted by the pleadings did not in truth exist, merely because it did not happen to appear in the case. Second Division, Feb. 25, 1890. Sweet v. Morrison. Opinion per Curiam.

BANKS-COLLECTION-MISTAKE.-(1) A check drawn on plaintiff was indorsed, "For collection," and handed defendant to be collected. The same day, defendant's agent indorsed it in his own name, and presented it to plaintiff, and received the mouey, which was delivered by defendant to the party from whom it received the check. It was subsequently discovered that the check had been raised before it came to the hands of defendant's correspondent. Held, that defendant was not liable to plaintiff as for money paid under mistake; and that the indorsement by the agent, appearing to have been made individual, could not be treated as that of defendant. (2) An allegation that the check, properly indorsed, was presented to plaintiff by D., as agent of defendant, was not a charge that defendant indorsed the check. Slocum v. Clark, 2 Hill, 475; Clark v. Dillon, 97 N. Y. 370. Second Division, Feb. 25, 1890. National City Bank of Brooklyn v. Westcott. Opinion by Bradley, J. Reversing 43 Hun, 637.

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(1) Where a bank receives from a customer bonds and other securities as collateral security for loans and discounts, the bank is not a gratuitous bailee, but is li able for the want of ordinary and reasonable care in the custody of such securities, which liability continues until the securities are redelivered to the owner. Pattison v. Bank, 80 N. Y. 82. (2) In an action to re

cover securities so deposited with a bank, it appeared that securities so held were ordinarily kept in a safe having a lock whose combination was known only to the president and cashier, and that some time after plaintiff had demanded the return of his securities, and been informed that they could not be found, the cashier was alleged to be a defaulter, and removed from office. All the officers of the bank, except the cashier, who was not a witness, testified that they did not know where the securities were kept, and had not abstracted them. It further appeared that no record or account was ever kept of such securities, as was done in the case of property belonging to the bank, and no examination in relation thereto was made, except once in six months. Held, that the evidence shows a want of ordinary and reasonable care on the part of the bank in regard to such securities. Feb. 25, 1890. Ouderkirk v. Central Nat. Bank. Opinion by Ruger, C. J. Affirming 4 N. Y. Supp. 734.

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DAMAGES BY ELEVATED RAILROADS - ABUTTING PROPERTY.—In an action against an elevated railroad company to recover damages for the maintenance of its railroad in front of plaintiff's premises, an instruction that, in estimating the damages caused by the interference with the light, air and access appurtenant to the premises, the jury may take into consideration any benefits peculiar to plaintiff's house which have arisen by the construction of the road, as shown by the evidence," is not in conflict with the Laws of New York, 1850, chapter 140, section 16, and Laws of 1875, chapter 606, section 20, providing that in determining the amount of compensation for lands taken, no allowance shall be made on account of the benefits derived from the construction of the road. The principle upon which compensation is to be made to the owner of lands taken by proceedings under the General Railroad Law has been frequently considered by the courts of this State; and the rule is now established that such owner is to receive, first, the full value of the land taken; and, second, where a part only of land is taken,

a fair and adequate compensation for all injury to the residue sustained, or to be sustained, by the construction and operation of the railroad. Railroad Co. v. Lee, 13 Barb. 169; In re Utica R. Co., 56 id. 456; In re Prospect Park & C. I. R. Co., 13 Hun, 345; In re New York C. & H. R. R. Co., 15 id. 63; In re New York, L. & W. R. Co., 29 id. 1; 2 N. Y. Supp. 478; Henderson v. Railroad Co., 78 N. Y. 423. The first element in the award represents the compensation for land which the railroad takes, and to which it acquires title. The second element represents damages which are the result or consequences of the construction of the road upon property not taken, and which the owner still retains. Such damages are wholly consequential, and to ascertain them, necessarily involves an inquiry into the effect of the road upon the property, and a consideration of all the advantages and disadvantages resulting, and to result, therefrom. Lewis Em. Dom., § 471. Where part of a tract is taken, just compensation would therefore consist of the value of the part taken, and damages to the remainder, less any special benefits to such remainder by reason of the taking and use of the part for the purpose proposed. In this rule, thus settled in this State, and which controls all awards for taking of land under the General Railroad Act, is to be found the true application of the statutory provision which forbids deductions and allowances to be made by commissioners for any real or supposed benefits which the parties interested may derive from the construction of the railroad. Whatever land is taken must be paid for by the railroad company at its full market value; and from such value no deduction can be made, although the remainder of the land-owner's property may be largely enhanced in value as a result of the operation of the railroad. But in considering the question of damages to the remainder of the land not taken, the commissioner must consider the effect of the road upon the whole of that remainder, its advantages and disadvantages, benefits and injuries; and, if the result is beneficial, there is no damage, and nothing can be awarded. The rule established under the General Railroad Law must govern and control awards made under the Rapid Transit Act. The last-named act confers upon corporations formed thereunder the power to acquire property for railroad purposes; and the statutory proceedings prescribed are substantially the same as those under the General Railroad Act; and no reason is apparent why the same rule should not apply to proceedings under both acts. This court has decided that owners of land abutting upon public streets have easements therein for ingress and egress to and from their premises, and for the free circulation of light and air to their property; which easements are interests in real estate, and constitute property, within the meaning of that term as used in the Constitution. The easement is the property taken by the railroad company. But in estimating its value it is impossible to consider it as a piece of property, separate and distinct from the land to which it is appurteuant; and the right of the property owner to compensation is measured, not by the value of the easement in the street separate from his abutting property, but by the damages which the abutting property sustains as a result or consequence of the loss of the easement. It follows that in making an award to a party situated as the plaintiff was with reference to the defendants' railroad, there would be no compensation for property taken beyond a nominal sum, and that his right to recover would rest chiefly upon proof of consequential damages. An estimate of such damages, as I have already shown, involves an inquiry into the effect of the railroad upon the whole property and a consideration of all its advantages and disadvan tages. If the rental value of the whole building was shown to have been diminished, there was injury, for which plaintiff was entitled to recover; but if the di

minished rental value of the upper floors was equalled or overcome by increased rental value in the store, then there was no injury, and no basis for a recovery of substantial damages against the defendants. While the precise question presented by the exception in this case has not heretofore been decided in this court, it is covered by the decisions under the General Railroad Law which have been cited; and the rule established by those decisions has recently been applied in the second judicial department to the case of an elevated railroad. In re Brooklyn El. R. Co., 8 N. Y. Supp. 78; Drucker v. Railway Co., 106 N. Y. 157. The question whether, in awarding damages flowing from the construction of a railroad, its injurious effect upon a part of a residue of a tract of land could aloue be considered, has been expressly decided in Illinois. Page v. Railroad Co., 70 Ill. 324. That case was an assessment of damages for a right of way across a tract of forty acres of land. Compensation was awarded for the part taken, but, the evidence showing that the residue of the tract would be enhanced in value by the construction and operation of the road, no consequential damages were allowed to the land-owner. The owner claimed that a strip of land next to the railroad was lessened in value by the proximity of the road. The constitutional provision in Illinois relating to the taking of property for public use is the same as our own, and the statute under which the assessment was made provided that benefits should not be set off against or deducted from compensation. The award was sustained on appeal; the court holding that "it was not the damages to a strip of land lying within a limited number of feet of the road-bed that the jury were required to assess, but the damages, if any, to the entire tract; "that the effect of the road upon a part of the tract was not to be considered, but upon the whole tract. "This," the court said, "is not deducting benefits or advantages from damages, but it is ascertaining whether there be damages or not.” To the same effect is the case of Railroad Co. v. Wait, 3 Or. 91. The statutes we have considered are founded upon the provision of the Constitution forbidding the taking of private property for public purposes without just compensation. Their purpose was to do exact aud equal justice among all citizens of the State, and to award to every one full and fair compensation for all property takeu for public use, or injured by the erection of public improvements. The rule established by the courts, and prevailing under the General Railroad Law, accomplished in a broad and liberal manner that object. The meaning of the expression "just compensation" has not been limited to the value of property actually taken, but has been held to include all consequential injuries which the land-owner may sustain by reason of depreciation of value in the residue of the property by reason of the taking of a part, and the construction thereon of the public improvement. This rule affords full indemnity to the property owner, and leaves him in as good condition as he was before the construction of the road. And this is all that any citizen has a right to ask. If the rule which the court held in this case is to govern awards made against railroad companies when structures are erected in the public streets under public authority, when no land is taken, and the compensation is confined to injuries sustained by abutting property, the companies will be compelled, in many instances, to pay where no injury has been done, and parties will recover who have sustained no loss. Such a rule has not yet received judicial sanction. The increase of value resulting from the growth of public improvements, the construction of railroads, and improved means of transit accrues to the public benefit generally, and the general appreciation of property consequent upon such improvements belongs to the property owner, and the railroad company is not entitled to the conside. ation of that ele

ment in the ascertainment of the compensation it must pay to the abutting proprietor. But the special and peculiar advantages which property receives from the construction and operation of the road, and the location of the stations, are elements which enter largely into the inquiry whether there is injury or not; and the jury must consider them, and give to them due weight in their verdict. Between this rule and the statutory provision quoted there is no conflict. The property owner will in every instance receive the "just compensation" which the Constitution secures to him for his property which is taken or injured by the railroad, and the corporation will be compelled to pay whenever damages result from the erection of their structures and the construction of the road. Second Division, March 4, 1890. Newman v. Metropolitan El. Ry. Co. Opinion by Brown, J. Reversing 45 Hun, 590. DOWER-FOREIGN DIVORCE.-The Revised Statutes of New York, page 741, section 8, provides that in case of divorce dissolving the marriage contract for the "misconduct of the wife, she shall not be endowed." The Code of Civil Procedure of New York, sections 1759, 1760, provide that where final judgment is rendered dissolving a marriage in an action brought by the husband, the wife shall not be entitled to dower in any of his real estate. Held, that as nothing except adultery is, in New York, regarded as misconduct with reference to the subject of absolute divorce, no other misconduct will deprive a wife of dower, even if it is the basis of a judgment of divorce lawfully ren dered in another State, unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered. Second Division, Feb. 25, 1890. Van Cleaf v. Burns. Opinion by Vann, J.; Follett, C. J., dissenting, Reversing 43 Hun, 461.

FACTORS AND BROKERS-LARCENY.-(1) A broker who, by falsely representing to the consignee of goods livery order on the carrier, giving the consignee a that he has secured a purchaser therefor, obtains a dememorandum containing the fictitious contract of sale, purporting to be on the consignee's account, and who thereafter takes possession of the goods, and stores them in his own name, is guilty of a common-law larceny. The fact that he afterward induces the consignee to give him another delivery order for the goods on a warehouseman, in whose warehouse he falsely represents the goods to be stored in the consignee's name, does not change the character of his possession. Independently of statute, he can pass no title to the goods to another than the alleged purchaser. Kinsey v. Leggett, 71 N. Y. 387; Howland v. Woodruff, 60 id. 73; Collins v. Ralli, 20 Hun, 246; affirmed, 85 N. Y. 637; Baines v. Swainson, 4 Best & S. 270, distinguished. (2) Nor can he pass title to such goods under the Factors' Act (Laws N. Y., 1830, chap. 179), section 3 of which provides that " * every factor * intrusted with the possession of any bill of lading, custom-house permit, or warehouse keeper's receipt, for the delivery of any such merchandise, and every such factor, ** * ** not having the documentary evidence of title, who shall be intrusted with the possession of any mer chandise for the purpose of sale, or as a security, * *shall be deemed to be the true owner," so far as to render valid any contract of sale of the merchandise made by such factor. This does not apply where the goods are obtained by larceny, and the delivery order given the broker was not documentary evidence of title, nor was he intrusted with possession of the goods "for the purpose of sale," within the meaning of the act. Feb. 25, 1890. Soltau v. Gerdau. Opin. ion by Earl, J. Affirming 1 N. Y. Supp. 163.

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GUARANTY CONSIDERATION — PAROL EVIDENCE.— (1) Defendant's firm secured the services of M. for their house in China. M. had incurred au indebted

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ness to plaintiffs for which they held bonds as collateral. To enable M. to keep his contract with his firm, defendant wrote plaintiffs a letter, referring to M.'s employment, and stating: "I will undertake that the agreement made by him [M.] to pay a certain amount each year shall be carried out until the indebtedness to your firm is liquidated." Accompanying this letter was one from M., also referring to his engagement with defendant's firm, and to the letter inclosed" of defendant, and agreeing to pay $3,000 per annum to liquidate his indebtedness. Upon receiving these letters, plaintiffs released the bonds. Held, that defendant's guaranty was supported by a valid consideration, as, read together, the letters showed on their face that it was given to procure the release of the bonds. (2) It was competent to show by parol evidence that both letters were inclosed in an envelope, and sent by defendant to the plaintiffs. Second Division, Feb. 25, 1890. Barney v. Forbes. Opinion by Follett, C. J. Affirming 44 Hun, 446.

INSURANCE-INCUMBRANCE-MISREPRESENTATION. -A fire insurance policy expressly stipulated that if the property, or any part of it, "be incumbered, it must be so represented to the company in the application; otherwise, the entire policy, and every part of it, shall be void." Held, that an answer, that the property was incumbered " for over $2,000," to the question, is there a $1,000 incumbrance?" was not notice to the company that the property was then incumbered for over $5,000, but a misrepresentation which avoided the policy. Second Division, Feb. 25, 1890. Smith v. Agricultural Ins. Co. Opinion by Follett, C. J.; Brown, J. dissenting. Reversing 43 Hun, 634.

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gage, and the several assiguments thereof, defendant was permitted to show, without objection, that the mortgaged premises were conveyed to him by F, $500 of price being paid in cash, and the balance secured by the mortgage in question; that at the same time F. released the five acres from the mortgage; and that then defendant conveyed the same to S., who paid therefor $150, which went to make up the $500 received by F. Held, that the parties had evidently ignored the issue raised by pleadings, and by mutual assent tried the issue whether the five acres had ever been subject to the mortgage; and that a finding that they had not would not be disturbed. (2) A question put to S. as to whether the execution and delivery of the deeds were simultaneous acts, made at the same time and place, and one and the same transaction, was objected to as calling for a conclusion. Held, that there was no error in overruling the objection, the witness having previously testified to every fact contained in the question without objection. (3) As the mortgage was never a lien on the five acres, the rights of the parties are in no wise affected by the recording acts. (4) The deed to the five acres containing a covenant of warranty of quiet enjoyment, the grantor had an interest to protect as against the mortgage, and could avail himself of the defense that the tract was not included in the mortgage. Second Division, Feb. 25, 1890. Frear v. Sweet. Opinion by Potter, J. Follett, C. J., and Vann, J., dissenting. Affirming 42 Hun, 657.

ACTIONS

MUNICIPAL CORPORATIONS — COSTS.-(1) The statutes of New York do not empower a municipal corporation, either expressly or by implication, to borrow money to defray the expenses of a suit instituted in its behalf. (2) The statutes authorizing municipal corporations to "raise" money for prosecuting and defending such suits as they may deem necessary, and for other municipal purposes, mean that money is to be raised by taxation, and not by borrowing. Stetson v. Kempton, 13 Mass. 271; Frost v. Inhabitants of Belmont, 6 Allen, 152; Claflin v. Inhabitants of Hopkinton, 4 Gray, 502; Minot v. Inhabitants of West Roxbury, 112 Mass. 1; Mead v. Acton, 139 id. 341; Hanger v. City of Des Moines, 52 Iowa, 193; Minot v. Inhabitants of West Roxbury, supra; Anthony v. Inhabitants of Adams, 1 Metc. 284; Parsous v. Inhabitants of Goshen, 11 Pick. 396; Lemon v. City of Newtou, 134 Mass. 476; Cornell v. Town of Guilford, 1 Denio, 510; Board v. Ellis, 59 N. Y. 620; Town of Hackettstown v. Swackhamer, 37 N. J. Law, 191; Ketchum v. City of Buffalo, 14 N. Y. 356; Starin v. Town of Genoa, 23 id. 439; Parker v. Board, 106 1d. 392; Mayor v. Ray, 19 Wall. 468; McDonald v. Mayor, 68 N. Y. 23; Dickinson v. City of Poughkeepsie, 75 id. 65. Feb. 25, 1890. Wells v. Town of Salina. Opinion by Earl, J. Reversing 49 Hun, 610.

LANDLORD AND TENANT-RECOVERY OF POSSESSION. -A deed contained a covenant by the grantees to pay a yearly rent thereby reserved to the grantor at the time and in the manner mentioned. It also provided that if the rent should be unpaid for twenty-eight days the grantor might "enter, and there to distrain," and by a sale collect the rents and costs. Immediately following this provision was the final clause, providing that "if it should at any time happen that no sufficient distress can be found upon the premises to satisfy such rent, * * or if either of the covenants and conditions hereinbefore contained *shall not be fulfilled and kept, or shall be broken, that then, and in each and every such case," the grantor or his successors might re-enter and re-enjoy the premises, etc. Held, that the right to re-enter for non-payment of rent was entirely distinct from the stipulation giving that right in case of a failure of distress; and that upon six months' rent becoming due, the Code of Civil Procedure of New York, section 1504, providing that "when six months' rent or more is in arrear upon a grant reserving rent, * ** and the grantor * * * has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear, or re-entry on the property," became applicable. Van Rensselaer v. Suy-hole was on private land, about sixty feet from the

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der, 13 N. Y. 299; Van Rensselaer v. Slingerland, 26 id. 580, 585; Van Rensselaer v. Ball, 19 id. 100; Van Rensselaer v. Jewett, 2 id. 141; Snyder's Case, 13 id. 299; Slingerland's Case, 26 id. 580; Hosford v. Ballard, 39 id. 147, 152; Van Rensselaer v. Dennison, 35 id. 393; Cruger v. McLaury, 41 id. 219; Keeler v. Davis, 5 Duer, 507. Second Division, Feb. 25, 1890. Martin v. Rector. Opinion by Vann, J. Reversing 43 Hun, 371.

MORTGAGES-PROPERTY COVERED-EVIDENCE. — (1) In an action to foreclose a mortgage given by defendant to F., and subsequently assigned to plaintiff, the issue raised by the pleadings was whether five acres of the land described in the mortgage had been released therefrom. After plaintiff had introduced the mort

NEGLIGENCE-DANGEROUS PREMISES-TRESPASSERS. -A boy was found drowned in a bole caused by the pressure of sewerage from an adjoining sewer. The

street, and separated therefrom by an embankment, faced with a wall, upon which was a fence. There was nothing to show but that the sewer had been constructed with the consent of the owner of the land, or that any objection had been made to its location or maintenance. Held, that it was not a nuisance as to deceased; and that the facts that one of the bars of the fence was down at the point where he entered the premises, and that for about ten feet in the direction of the hole there appeared to be a trail or path, indicating that others had been accustomed to walk over the land, did not render the city chargeable with negligence in permitting the hole to remain. Second Division, Feb. 25, 1890. Murphy v. City of Brooklyn. Opinion by Parker, J.

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