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two. (Dr. T. D. Woolsey, Dr. Nathan Allen, and easily chaste than himself, views with pain others, in various recent publications, have whatever embraces he bestows upon others of commented upon these startling statis
statis- | her sex. Her personal influence over him, altics. North American Review, June, 1880.) ways strong, enlarges its scope as the State adWhat makes the parallel more marked, vances in arts and retinement, until at length continence has not accompanied the condition of woman, as the maiden, the wife, and the matron, celibacy. Apart from the abandoned criminal becomes intellectually cultivated—a recognized class stand the women divorced from unhappy social power in the community. Yearning now marriages, and maidens who are pushing in life for a wider influence and equal conditions, her for themselves, both classes assailable because attention strongly concentrated upon the mardeprived of those social safeguards which all riage relation, she seeks to make the marriage their sex need. One perceives in public com- terms equal. First, she desires her property separatively little of that manly courtesy and def-cured to her own use, whether married or single; erence to ladies which was formerly character and, indignant at the remedies afforded under istic of Americans. Meantime, as statistics show the law for wifely wrongs, demands the right of us, infanticides and abortions multiply, and the dismissing an unworthy husband at pleasure. number of children born out of wedlock increases Moreover, as a mother, she claims that the chil. in proportion. In a word, indications are strong dren shall be hers not less than the father's. that in an old settled section of this Union, These first in roads are easily made, for what she where the marriage relation was once remarkably demands is theoretically just. But just at this pure, as well as prolific, men, as in the age of point the peril of female influence is developed. Augustus, are beginning to decline marriage for Woman rarely .comprehends the violence of the sake of concubinage. Their selfishness de- man's unbridled appetite, or perceives clearly clines the responsibilities, and their self-respect that, after all, in the moral purity and sweetthe possible mortifications, of wedlock with a ness of her own sex, such as excites man's devodual government. Nor, probably, is this the tion and makes home attractive, is the fundadrift of social events in New England alone. mental safeguard of life and her most powerful
The conclusions to which the writer's investi- lever in society, besides the surest means of gation upon this subject conducts him are these: keeping men themselves continent. She forMarriage is a relation divinely instituted for gets, too, that to protect that purity and mainthe mutual comfort, well-being, and happiness tain her moral elevation, a certain seclusion is of both man and woman, for the proper nurture needful, which seclusion is highly favorable to and maintenance of offspring, and for the educa- those domestic duties which nature assigns as tion in turn of the whole human race. Its ap- her own. More is granted woman. The bond plication to society being universal, the funda- of marriage being loosened, posterity degenermental rights and duties involved 'in this rela- ates, society goes headlong; and the floodgates of tion are recognized by something akin to in- licentiousness once fully opened, the hand must stinct, and often designated by that name, so as be strong that can close them again. to require by no means an intellectual insight; Happiness, we may admit, differs with the intellect, in fact, impairing often that devoted-capacity, like the great and small glass equally ness of affection which is the essential ingredi- full, which Dr. Johnson mentions. Yet marent and charm of the relation. Indeed, the riage is suited to all capacities, and men and rudest savages understand how to bear and women are the complement of one another in all bring up healthy offspring. Legal and political ages, neither being greatly the intellectual susystems are accretions based upon marriage and perior of the other at any epoch, but the man property; but in the family, rather than indi- always baving necessarily the advantage in vidualism, we find the incentive to accumula- physical strength and the power to rule. The tion, and in the home the primary school of the best-ordered marriage union for any community virtues, private and public. At the same time, is that in which each sex accepts its natural marriage affords necessarily a discipline to both place; where woman is neither the slave nor sexes; sexual indulgence is mutually permitted the rival of man, but his intelligent helpmate; under healthy restraints; women's condition where a sound progeny is brought up under becomes necessarily one of comparative subject-healthful home-influences. The worst is that ion; man is tamed by her gentleness and the where conjugal and parental affection fails, and helplessness of tender offspring, and for their all is discord and unrest—a sea without a safe sake he puts a check upon his baser appetites, harbor. To the household, stability may prove and concentrates his affection upon the home he more essential than freedom, and woman's status has founded. Such is the conjugal union in more dignified or more degraded, as the case may what we term a state of nature. And now, be, than the law assumes to fix it. while man frames the laws of that union, as he In fine. society and the Church should, while always does in primitive society, he regards elevating woman, reconcile her to those funchimself as the rightful head of the family, and tions-life-giving: life-preserving, educational, lord of his spouse; and somewhat indulgent of his and refining-to which nature consecrates her own errant passions, he makes the chastity of his being.
being. Marriage should be held the universal wife the one indispensable condition of their state of honor, a state of security, a state ecojoint companionship. She, on her part, more nomical for all men, as compared with pampered
celibacy. Both sexes should be encouraged in draw an order for ore on the Iron Mountain Comconstancy, affection, and interdependence. The pany, but denies the plaintiffs are entitled to policy of every government should be to encour- recover, because the contract is entire and they age and strengthen matrimony, before public failed to deliver to the corporation ore in the sentiment shifts in the direction of requiring fall of 1872, in pursuance of the contract; and concubinage to be legalized in its stead. Such for the further reasons that the plaintiffs did not is the force of the sexual passion, we may feel demand the ore to be delivered in 1873 at the assured, that when marriage has ceased to at- proper time or place, did not have any boat at tract mankind, the mistress has usurped the Carondelet landing to receive it, and were not place of the wife, even prostitution may become ready and willing to pay for such ore; and, by the secret protest of mankind against a prosti- way of counterclaim, the corporation asked damtuted marriage.
ages for such failure to deliver ore in 1872. To
JAMES SCHOULER. this counterclaim there was a reply. Southern Law Review.
A verdict was rendered in favor of Dewey,
Vance & Co. for $3,090; and the cause having SUPREME COURT OF OHIO.
been reserved to the general term on a motion
for a new trial, the motion was overrated, and Swift's IRON AND STEEL WORKS
judgment was rendered on the verdict. On
leave, this petition in error was filed to reverse v. DEWY, VANCE & Co.
The material facts, either admitted or shown November 1, 1881.
by the evidence, are as follows: During the
year 1873, and during many preceding years, 1. D. agreed in writing to deliver to S. a certain quantity of iron ore, at a specified price per ton, “ on the land- Dewy, Vance & Co. was a firm engaged in the ing at C.," and gave him an order therefor, and S. manufacture of iron at Wheeling; Swift's Iron brought an action on the agreement, alleging that D. re- and Steel Works was a corporation engaged in fused to deliver the ore: Held, it is competent to show that by the settled, uniform usage at C., well known to
the manufacture of iron and steel at Cincinnati the parties when they contracted,
one holding such order and New port; and the Iron Mountain Company is entitled to have the ore taken from the pile on the landmg and placed in his boats ; that ore is not permitted
was a corporation at St. Louis, having a monopto be removed, nor is it practicable to remove it, in any
oly of the kind of iron ore mentioned in the other manner; and that the ore is weighed when it is above agreement. carried in the boats to its destination, and then payment The Carondelet landing referred to in the contherefor is inade. 2. In an action for refusing to deliver ore, prosecuted
tract is owned by the Iron Mountain Company, on an agreement in the same form, it appeared that the is situated on the Mississippi river within the seller resided at another place, where he refused to deliver
corporate limits of St. Louis, and the company such order, and informed the purchaser that he would not coinply with the agreement: Held, that it was not
owns all the ore ever placed thereon. The ore is necessary for the purchaser, after such refusal by the kept in a pile, from which the boats of the comseller, to take boats to C. for the ore, or demand the ore at C., the purchaser being able and willing to comply
pany's customers are loaded. No particular part with such agreement as it existed in view of the usage.
of the ore is set apart to any customer, but the Error to the Superior Court of Cincinnati.
loading is done from that part of the pile near
est the boats. The ore is not weighed at the brought suit in the Superior Court of Cincin: landing, but the weight is estimated by the dis
placement of the boats when loaded, a memorannati, against Swift's Iron and Steel Works, a
dum of the weight thus approximated is made, corporation, on the following instrument:
and that governs in the settlement and payment, “ Alex. Swift, Pres. Office of Swift's Iron and Steel if the ore or any part of it is lost in transit; but Geo. E. Clymer, Vice Pres. Works No. 26 W. Third St., Edwin Swift, Treas. Masonic Temple.
if none of it is thus lost, the actual weight is
ascertained when the ore arrives at its destina"CINCINNATI, October 1, 1872. “ A. Swift, Esq., Cincinnati, Ohio:
tion, and payment is then made. “ DEAR SIR:—We propose to deliver to you
The Iron Mountain Company, during the fall on the landing at Carondelet, 1,000 to 1,200 tons
or early part of winter in each year, sends a cirIron Mountain ore, near St. Louis, you to take it, price of ore for the ensuing year. The price so
cular letter to each of its customers, fixing the away during 1872, paying for the same $5.50 per ton, cash-it being understood that you are to
fixed remains unchanged during such year. In deliver to us next spring, at the same place, the
the fall of 1871, the company fixed the price of
ore for 1872,"on the landing at Carondelet," at same quantity.of ore at the same price. " Yours truly
five dollars and fifty cents per ton. Ore ordered (Signed) “DEWY, VANCE & Co.
in pursuance of such circular must be taken Accepted :
away during such succeeding year, as the con
tract is cancelled, at the end of such year, as to (Signed) “ ALEX. SWIFT, Pres't.
any ore not removed. The company never perThe plaintiff sought in the action to recover mits ore to be taken from the landing in any damages from the corporation for its refusal to other manner or upon any other terms than as deliver to them ore in the spring of 1873.
above stated; but where a customer who has The corporation admits the non-delivery of agreed to také ore, gives orders to others for part the ore in the spring of 1873, and its failure to or all the ore he contracted for, the company fills such orders, but still looks to the customer Company for ore. They demanded of Swift's for payment.
Iron and Steel Works repeatedly, at Cincinnati, This mode of dealing with respect to Iron during May, 1873, compliance with the agreeMountain ore at Carondelet landing, has been ment as to the delivery of ore in the spring of for many years uniform, invariable and well 1873, insisting on an order on the Iron Mounknown, and the parties to this suit were familiar tain Company for such ore. The only reason with the usage, when the agreement was made, given for non-compliance with the demand was and contracted with reference to such usage. the alleged non-compliance by Dewey, Vance &
As early as May, 1872, Swift's Iron and Steel Co. with their agreement to deliver ore in 1872. Works had exhausted all the ore due to it for | Dewey, Vance & Co. were ready and willing to that year, under its contract with the Iron Moun- pay for the ore according to the custom already tain Company made the preceding autumn. In stated, that is, according to weight as ascerthat month and again in August, Mr. Swift ap- tained on arrival of the ore at its destination, plied to the company for more ore, but the com- or in case of the loss of ore or any part of it pany refused, as it had contracted with others while in transit, according to its weight as asfor all it could deliver during 1872. In that con- certained by displacement, in the way stated. dition of things, Mr. Swift applied to Dewy, The objections of Swift's Iron and Steel Works Vance & Co. That firm had contracted with the to a recovery on the part of Dewey Vance & Co., Iron Mountain Company for more ore than it could and the grounds of recovery on the part of the use during 1872, and knowing that the contract former on their counterclaim, are presented in would be cancelled on January 1, 1873, as to any exceptions to the refusal of the court below to ore not taken away in 1872, it was willing to let give certain instructions to the jury, and in exSwift's Iron and Steel Works have ore, provided ceptions to certain portions of the charge given. it could obtain, in the spring of 1873, an equal So far as it is necessary to state these exceptions, quantity of ore at the price prevailing in 1872, they will be found in the opinion of the court. that is, at five dollars and fifty cents per ton, for it was then manifest that the price for 1873 Hoadly, Johnson & Colston and John Johnston, would be much higher, and in fact, in the fall of for plaintiffs in error. 1872 the Iron Mountain Company fixed the price of ore for 1873 at ten dollars per ton. Un
No valid usage was shown. S. W. Freight der these circumstances, the contract of October
and Cotton Press Co. v. Standard, 44 Mo. 71; 1, 1872, was made at Cincinnati and far the Ober v. Carson, 62 Mo. 209; Inglebright v. Hamreasons stated, it was advantageous to both par- mond, 19 Ohio 337; Edie v. East India Co., 2 ties. An order was at the same time delivered Burr 1216; Homer v. Dorr, 10 Mass. 26; Frith o. to Mr. Swift in the following form :
Barker, 2 John 327, 335; Thompson v. Riggs, 5
Wall. 663; Robinson v. U. S. 13 Wall. 363; Savings “ Alex. Swift, Pres. Office of Swift's Iron and Steel
Bank v. Ward, 100 U.S. 166, 206; Randall v. Smith, Geo. E. Clymer, Vice Pres. Works, No, 26 W. Third St., Edwin Swift, Treas. Masonic Temple.
63 Maine 105 ; Eager 0. Atlas Ins. Co., 14 Pick. “CINCINNATI, October 1, 1872.
141; Reed v. Richardson, 98 Mass. 216; Warren “Iron Mountain Co., St. Louis, Mo.
v. Franklin Ins. Co., 104 Mass. 518; Hone v. Mu“Gents: Please deliver to the order of A.
tual Safety Ins. Co., 1 Sandf. 137; Bargett v. Swift, Esq., one thousand to twelve hundred Orient Ins. Co. 3. Bosw. 385; Minnesota Central tons of iron ore out of the quantity contracted R’y Co. v. Morgan, 52 Barb. 217; Bank of Comfor by us, and oblige, yours truly,
merce v. Bissell, 72 N. Y. 615; Rapp v. Palmer, 3 “DEWY, VANCE & Co."
Watts, 78; Raisin v. Clark, 41 Md. 158; Dewees
v. Lockhart, 1 Texas 535; The Pacific, Deady, 17; The Iron Mountain Company, was immedi- 6 South. L. Rev. (N. S.) 845 ; Schooner Reeside, ately informed of such order, and the amount of
2 Sum. 569. And see Tilley v. County of Cook, ore therein specified was placed on its books to
103 U.S. 146, 162. the credit of Swift's Iron and Steel Works.
The water in the Ohio and Mississippi rivers Follett & Cochran, for defendants in error. was low in October and the early part of November, 1872, and no boats were sent for the ore. The usage shown is part of the contract. Later in November and during. December, the Broom's Leg. Max. Ch. x.; 2 Parsons on Con. 499, rivers became so full of ice that it was impossi-535; Starkie on Ev. *710; Wigram on Ex. Ev. ble to remove the ore by boat during that year. 57; Thompson 9. Riggs, 5 Wall. 663; Barnard v. Swift's Iron and Steel Works applied to the Iron Kellogg, 10 Wall
. 384; Robinson v. U. S. 13 Wall. Mountain Company, while the river was thus 363; Bradley v. PacketCo., 13 Peters 89; Reed v. Ins. filled with ice, for leave to remove the ore in Co., 95 U. S. 23; U. S. v. Peck, 102 U. S. 64; some other manner than by boats, but the Iron Doane v. Dunham, 79 III. 131 ; Lyon v. CulbertMountain Company declined to grant the re- son, 83 Ill. 33; Bailey v. Benseley, 87 Ill. 556; quest, and the ore was never obtained. In fact, Scudder v. Bradbury, 106 Mass. 423; McMasters there is no other practicable way by which tó v. Penn, R. Co., 69 Pa. St 374; Lucy v. Green, 84 remove ore from the landing than by.boat. Pa. St. 514; Brackett v. Egerton; 14 Minn. 174;
As already stated, no ore was delivered to Rindskoff %. Barrett, 14 Iowa 101 ; Karmuller v. Dewey, Vance & Co. under the agreement, nor Kootz, 18 Iowa 352; Hovey v. Pitcher, 13 Mo. did they receive any order on the Iron Mountain 191 ; Sontier v. Kellerman, 18 Mo. 509; Patterson v. Canden, 25 Mo. 13; Gray v. Clark, 11 Vt. part of it is lost in transit, in which case pay, 385; 1 Taylor's Ev. 178; 2 Ib. 990, 1002; Story ment is made according to the weight estimated on Sales, $ 230; 2 Phillips on Ev. 726, 787; 1 from the displacement of the boats at the time Greenleaf's Ev. SS 292, 295; 2 Ib. 8 251 ; Gibson they are loaded. It further appears, that it was v. Stevens, 8 How. 384; Corbett v. Berryhill, 29 well known to both parties to the contract, at Iowa 157; Boorman v. Johnson, 12 Wend. 573; the time it was made, that the Iron Mountain Stapenhorst v. Wolff
, 35 Sup. Ct. N. Y. 25; Heald Company never permits ore to be removed from v. Cooper, 8 Greenl. 32; Cushing v. Breed, 14 the landing in any other manner or upon any Allen 376; Lockhart v. Bonsall, 77 Pa. St. 53; other terms or conditions; indeed, that there is Carter v. Phil. Coal Co., 77 Pa. St. 286; How v. no other practicable mode of removing such ore. Barker, 8 Col. 608; Edwards v. Smith, 62 Mo. The question, therefore, is whether it was com119; Hall v. Smith, 16 Minn. 58; Hunter v. Salt petent to show such facts by such evidence, the Co., 14 Mich. 98; Douglass v. Garrett, 5 Wis. 85;, plaintiff in error objecting; for if it was, the Rice v. Cutter, 17 Wis. 351; Lamb v. Klaus, 36 plaintiff in error, not being able or willing to reWis. 94, Lowber v. Bangs, 2 Wall. 737. And move the ore by boat, cannot recover damages see Wiggleworth v. Dallison, 1 Smith's Led. Cas. for a refusal to deliver to it such ore. 546; Benj. on Sales (2 Am. ed) $ 215, note; Extrinsic evidence is admissible to show that Leake on Con. 196; Anson on Con. 238; Bishop the parties to a written agreement have conon Con. SS 571, 572.
tracted upon a common basis of usage, applicaOKEY, J.
ble to the business in which the contract is The question presented in this case is whether made, whereby they have impliedly assented to a purchaser of iron ore, to be delivered at a spec- certain conditions not mentioned in the contract. ified place, may be bound by usage as to the With respect to usage of the character relied on manner of delivering and place of weighing and here, it must appear, in order to be valid, that making payment for the ore.
when the contract was made, such usage was The written contract sued on is, as we have uniform, well established, and known to the parseen, an agreement on the part of Dewey, Vance ties; but that the agreement is on its face free & Co., defendants in error, to deliver to Swift's from ambiguity, or that such agreement with, Iron and Steel Works, plaintiff in error, "on the and the same agreement without the incidents landing at Carondelet,” at five dollars and fifty annexed, imports very different rights and oblicents per ton, cash, one thousand to twelve hun- gations, affords no valid objection to such evidred tons of Iron Mountain ore, to be taken dence. In Hunfrey v. Dale, 7 E. & B. (90 Eng. away by the latter during the year 1872; and, C. L.) 266, Lord Campbell said: “In a certain also, an agreement on the part of the latter to sense, every material incident which is added to deliver to the former, in the spring of 1873, at a written contract varies it, makes it difthe same place and price, the same quantity ferent from what it appeared to be, and of ore. If the parties are bound by the terms of so far is inconsistent with it. If by the this contract, unaided by extraneous testimony, side of the written contract without, you write it is clear that the judgment is erroneous. The the same contract with the added incident, the plaintiff in error demanded the delivery of the two would seem to import different obligations ore, at the place named in the contract, and and be different contracts.” And see Myers v. within the time there stated, and was then able Sarl, 3 E. & E. (107 Eng. C. L.) 306. The usage, and willing to pay for it, while the defendants however, must not be inconsistent with the in error did not demand ore at Carondelet, in the words of the agreement, nor must it be unreasspring of 1873, nor were they there ready to pay onable; but the usage here shown seems not to for it Under such circumstances, looking alone be obnoxious to either of these objections. to the face of the agreement, the defendant in Cuthbert v. Cumming, 10 Hurl. & Gord. 809, aferror would not be entitled to recover, but the firmed, 11 Ib. 205. plaintiff in error could maintain an action. Ex- The cases relating to usage of this character traneous evidence, however, shows the rights seems not to be in entire harmony. It is diffiand obligations of the parties to this in- cult to extract from them any more definite rules strument to be very different from those implied by which to determine the validity of such in the absence of such evidence. Such evidence usage than those already stated. It is some shows, as we have seen, that there is a uniform, times difficult, moreover, to determine whether the settled custom at Carondelet, well known to the law,in a particular case, willor will not permit such parties, and with reference to which they con- proof.
proof. Each case must be determined by itself, tracted, according to which a party holding such aided by such light as may be derived from the an order for ore as the plaintiff in error had, may judgments in other cases where the facts are present it to the agent of the Iron Mountain analogous. Upon consideration of the cases Company, at the landing, and have placed in cited in argument, and others, we unite in holdhis boats, from the pile there collected, the ore ing that the proof offered in this case to show specified in the order, the Iron Mountain Com
usage was competent; and there being no subpany being the owner of the landing and the stantial conflict as to the facts, the rights of the ore thereon; and that payment is made when parties are determined by such proof. As the the ore is carried by the boats to its place of des- plaintiff in error never demanded the ore upon tination and there weighed, unless the ore or the order, though the defendants in error were able and willing to deliver it, in pursuance of ROGERS v. ROGERS. Filed September 27, 1881. the contract with such incidents annexed, right to recover damages, with respect
to the ore
1. Deed-Delivery.-The legal effect of the deof 1872, never accrued to the plaintiff in error;
livery of a deed of conveyance by the grantor to and, for the same reason, it is wholly immate
the grantee, with intent to pass the title, is not rial' whether the covenants in the agreement
altered by its subsequent re-delivery to and deshould be regarded as dependent or independent.
struction by the grantor. So, it is immaterial whether the court properly
2. The grantee in a deed is not affected by a construed the contract, in charging the jury that
declaration of a trust as to the lands conveyed, if Dewey, Vance & Co. were entitled to recover,
made by the grantor in a separate paper, not reone thousand tons of ore would be the basis of ferred to in such deed, nor assented to or even such recovery; for if the construction was erro
known by the grantee when he took the title. neous, the error was favorable to the plaintiff in error. And these views likewise dispose of the
REILEY v. Timm, Filed September 27, 1881. remaining question, as to the right of the de- Slander.-While in slander, under section 2678, fendants in error to recover for the failure of the Rev. St., mitigating circumstances not pleaded plaintiff in error to deliver to them ore in the cannot in general be shown by affirmative proof, spring of 1873, and sustain such recovery; for still, where plaintiff has put in evidence a fact the ore could only be obtained on the order of not pleaded by him, tending to create an inferthe plaintiff in error; and when the defendants
ence of express malice, defendant may rebut that in error, at Cincinnati, in the spring of 1873, inference by evidence explanatory of such fact. demanded such order, the plaintiff in error refused to give it, or to comply with the contract, MESSER V. OESTREICH. Filed September 27, the defendants in error being at the time able 1881. and willing to comply with the agreement in accordance with its terms and such annexed in
1. A deed executed since the Revision of 1878, cidents. In view of these facts, the defendants
in the form prescribed for a warranty deed by in error were not required to demand the ore at
section 2208, Rev. St., must be regarded as conCarondelet in the spring of 1873, or have boats
taining the covenants named in that section. there to receive it. Lowry v. Barrelli, 21 Ohio
2. Where the description in a deed of the land St. 324. And this is not inconsistent with conveyed is otherwise uncertain, evidence will Mowry v. Kirk, 19 Ohio St. 375, or Simmons v.
be admitted of the state of the property when Green, 35 Ohio St. 104.
the deed was executed, to aid in its construction. The rulings in the court below are not incon
3. Where a deed purports to convey a strip sistent with the views here expressed, nor is
of land of a certain width along a line already there any error in the record, and therefore the located, but without prescribing the lateral judgment will be affirmed.
boundaries or designating the particular portion Judgment affirmed.
of the strip traversed by such line, if the grantee [This case will appear in 37 0. S.]
thereupon goes into possession under such deed, and designates the lateral boundaries by substantial fences, and continues in the exclusive poesession for many years with the acquiescence and consent of the grantor, this is a practical construction of the deed, binding upon the par
ties and those claiming under them. WISCONSIN.
4. It seems that such a deed with full cove
nants of warranty, for a valuable consideration (Supreme Court.)
paid, would be valid as a covenant, and, if execu
ted to a railroad company, would authorize it to MERRIAM v. LYNCH AND OTHERS. Filed Septem
appropriate such a strip of land of the width 27, 1881.
named, along the line already located, as might 1. Replevin.—A judgment in replevin will not be necessary to the construction of its contembe reversed for a refusal to receive in evidence of plated road; and that, after such actual approappellant's title a former valid judgment in re
priation of the land, the grantor would be estopplevin between the same parties, where the iden- ped from denying that he had conveyed it. tity of the property in the two suits was directly
5. A prior valid deed to a railroad company and submitted to the jury upon evidence of a doubt- ite assigns of a strip of land along the line of its ful character, (including the former. writ of re- railroad, for the uses and purposes of said complevin, and the return of the officer thereon,) and pany, is a breach of the covenant of seizin, in a the jury were instructed that appellant was enti- subsequent deed by the same grantor to a third tled to recover if the property was the same. person of the parcel of land which includes such 2. Where A. undertakes, in a lawful manner,
strip, although the company is in occupancy of to remove chattels, as his own, from the posses
the strip for the purposes of a railroad when such sion of B., and the latter objects to his doing so,
subsequent deed is executed. Kutz v. McCune, denying that A. has any property there, this is
22 Wis. 598, and Smith v. Hughes, 50 Wis. 620, equivalent to a formal demand and refusal,
Digest of Decisions.