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Digest of Decisions.


SUPREME COURT OF PENNSYLVANIA. were cited in support of this motion and also as

bearing upon the case on its merits. No dispoJOHN W. SEAMAN, Defendant Below, sition was made of the motion to quash.


The offense is sufficiently charged in the in

formation. The finding of facts by the alderOctober 17, 1881.

man is clear, full and specific, and brings the The owner of a store who permits his clerk to sell for

case within the statute. The evidence showed him on the Lord's day, commonly called Sunday, as well the place of business was kept open on Sunday as the clerk, is liable to the penalty imposed by the Act of Assembly of April 22, 1794, and its supplements.

and an employee was selling cigars. The plaint

iff in error was present a part of the day and Certiorari to the Court of Common Pleas, No. 2, the conclusion is fully justified that the busiof Allegheny county.

ness was carried on with his knowledge and by This was a summary conviction had before his authority. The principal, as well as the Alderman John Allen, of the Nineteenth ward, clerk, was liable under the statute. Pittsburgh, under the Act of Assembly of April Judgment affirmed. 22, 1794, and its supplement of April 26, 1855.

The evidence showed that the place of business was open and a clerk was selling. The defendant, Seaman, was present part of the time.

The alderman adjudged the defendant guilty and imposed the penalty provided, thereupon defendant issued a certiorari out of the Court of

NEW YORK. Common Pleas, No. 2. After argument in that court, Judge White, on March 5, 1881, affirmed

(Court of Appeals.) the judgment of the alderman, filing the following opinion :

BURKITT v. TAYLOR ET AL. October 4, 1881. We reversed the judgment in No. 260 because there was no evidence that Seaman au

Brokers-Sale- Evidence.-In an action against thorized his clerk to open his store on the Sab

brokers for a wrongful sale of stocks, where the bath referred to, in that case, or knew that the

answer simply sets up a former agreement by store was open. But in this case the evidence

which defendant was authorized, in case plaintwas, that he was present in the store on this

iff failed to keep his margins good, to sell his Sabbath. It is incredible that the clerk was stock without notice or demand, and also an inselling on this day without his knowledge and struction by plaintiff to sell when the margin authority; he was there present, when the store

was exhausted, and that it was exhausted at the was open to the public, thus carrying on his time of the sale, evidence of unsuccessful efforts wordly business, besides he had been prosecuted

to notify plaintiff is inadmissible. only a few days before that (in No. 260) for sell

Evidence showing that the lowest price for ing on Sunday. It is very clear he was there

which this stock sold in the market on the day carrying on his business, knowing he was vio

it was claimed this sale was made was greater lating the law. The evidence was amply suffi

than that for which plaintiff's stock was sold cient to prove that he was carrying on a worldly would bear on the question of a bona fide sale, and business, prohibited by the law."

is not so irrelevant as to render its admission On the 23d of March, 1881, Seaman appealed

error. to the supreme court and obtained a writ of The agreement set forth in the answer was certiorari.

made in 1870, and the transaction in relation to On the argument the following cases were

the stock in suit was entered upon in 1873. All cited by appellant's attorneys: Commonwealth prior transactions had been closed. The quesv. Nesbit, io Casey 403; Johnston v. Common- tion whether this transaction was made under wealth, 10 Harris, 106; Commonwealth v. Jean- that agreement was submitted to the jury, who dell, 2 Grant 510; Commonwealth ex rel. Barr

found for plaintiff

. Held, That the verdict env. Naylor, 10 Casey 86; Commonwealth v. Cane, tablished that the agreement of 1870 did not ap2 Pars. It was argued that Seaman could not ply to this transaction. be convicted for an act done by his agent, even though done by his knowledge and consent. The appellee did not furnish a paper-book, but

Rich v. HERR. October 11, 1881. filed a motion to quash the appeal, assigning as Practice. In an action to cancel a satisfaction a reason therefor that appellant's remedy was by of a mortgage, where the answer alleged that a writ of error and not by appeal. In support of new mortgage was given for it and that the origthis view it was argued that after the proceed inal mortgage was void for usury, the evidence ings were removed from before the alderman, was conflicting, but defendant's evidence was they were then according to the course of com- suficient, if believed, to sustain the defense. mon law," and the remedy was error: Common- | Held, That this court was concluded by the findwealth 0. Betta, 26 P. F. S., 471, and Same v. ings of the trial judge in favor of defendant, Burkhart, 12 Harris 133, and other authorities based upon such evidence.

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In re ACCOUNTING OF DEAN, ASSIGNEE. October track has a right to assume that the company 11, 1881.

will do its duty and ring a bell, he is not thereby Assignment for Creditors.-An assignee for the

relieved from vigilantly using his senses to avoid benefit of creditors has no right to carry on the

danger. The court left to the jury the question business of his assignor, and the trust estate can

whether or not the instinct of self-preservation not be charged with a loss incurred by him

will prevent a man from attempting to cross a therein.

railroad if he sees that an engine is bound to The assignee is bound to exercise the diligence

reach the crossing before he can pass. Held, No required of a paid agent or of a provident owner, and is liable for ordinary negligence or the want of that degree of diligence which persons of ordi

HOLSAPPLE V. THE ROME, W. & O. R. R. Co. nary prudence are accustomed to use about their October 11, 1881. own business and affiairs.

Common Carrier Stock Release.— A stock release An assignee is entitled only to commissions on

which provides for the release of the carrier from the amount received by him on the sale of the liability originating in the viciousness or weakproperty.

ness of the animals, or from delays, or in comse

quence of heat, suffocation or being crowded, or SCHRAUTH V. THE DRY Dock SAVINGS BANK. on account of being injured, whether such injury October 11, 1881.

shall be caused by burning of hay, straw or any

other material used for feeding said animals or Payment.—Supplemetary proceedings were instituted on a judgment against plaintiff's thereby, does not release the carrier from the

otherwise, and for any damage occasioned husband and an order procured for the examination of defendant's president or

consequences of his own negligence. treasurer. Orders were also procured for the examination of plaintiff and her hus

SHIPPLY v. THE PEOPLE. October 11, 1881. band. No attempt was made to show that

Larceny-Sale.—One S. agreed to buy certain plaintiff had in her possession any of her hus- goods of one H. and directed them to be sent to band's property. On the report of the referee, him C. 0. D., saying he would send an exan order was made requiring defendant to pay to


One R. called and said he was an the judgment creditor the amount of a deposit expressman, and H. delivered the goods to him made with it by plaintiff, and such payment with a bill and instructions to collect the money. was made. In an action to recover the amount

R. returned with a check which proved to be of such deposit it did not appear that plaintiff worthless, and S. refused either to pay or return had notice of the application for the order, was the goods. It appeared that R. was in the emheard, or was in any way a party thereto. Held, ploy of S. Held, That there was no sale and that That 'defendant was not protected in its pay: S. was guilty of larceny. ment by the order; that it should have resisted

In a prosecution for larceny, evidence of a simpayment or in some way have had plaintiff made ilar transaction by the accused with other parties a party to the proceeding; that plaintiff had had at about the same time is admissible upon the no day in court, and was not bound by the pro, question of intent. ceedings, although she had made an unsuccessful motion to set them aside.

Potts v. MAYER, IMPL'D. October 11, 1881. SHAW v. JEWETT, REC'R. October 4, 1881.

Evidence. On the trial of an action on a note

made by the firm of H. & M., defendant had read Negligence-Practice.--In disposing of a

in his behalf the testimony of his deceased parttion for non-suit on the ground that the evidence of the plaintiff's freedom from

ner, M., given on a former trial, in which he

stated that the endorser paid nothing for the contributory negligence was insufficient to

note, and added that he (H.) paid for it to dego to the jury, it is not necessary for the fendant. Plaintiff then read the cross-examinacourt to consider the lack of an issue as to such

tion of H., in which he stated that defendant fact in the pleadings, where there is testimony

was indebted to him on a private account, for that makes it incumbent on the court to leave

which the note was given and received. Held, the case to the jury on the question of negli- That plaintiff having, in his own behalf, put in gence.

evidence important declarations of the deceased, In an action for negligence, plaintiff cannot defendant, having asked no question which inrecover unless he establishes that he was using volved his personal dealings with H., had a right lue care, did no act contributing to the injury, to give evidence contradicting such declarations. and omitted no precaution that would have prevented it. Where the evidence as to whether a bell was

BECKER v. HALLGARTEN ET AL. October 4, 1881. rung is conflicting, and the witnesses had equal

Stoppage in Transitu.-A firm in

in Berlin means of knowing what was the fact it is for the sold certain goods to another firm and, by jury to decide which are creditable.

direction of the vendees, shipped them to Although a person about to cross a railroad the plaintiff at Bremen. 'The vendees there

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after procured a loan from one G., on security of these goods, and gave him an order on plaintiff therefor. By direction of G. plaintiff shipped these goods to defendants, and took bills of lading in his own name as shipper, one of which he sent to defendants, and the other to the vendees, who sent it to G. The vendors afterwards assigned their claim against the vendees to plaintiff, who demanded the goods of defendants. In an action for conversion it was claimed it was found that plaintiff had, in behalf of the vendors, stopped the goods in transit. Held, Error: that plaintiff was at no time the agent of the vendors; that the transit was over when the goods arrived at Bremen, and that the transaction between the vendees and G. was effectual to pass the property to him, and defeated the vendors' right of stoppage if it otherwise existed.

The German law, which provides that a transfer of the legal title to the goods covered by a bill of lading can only be made by the written endorsement of the consignee, applies only when the bill of lading is taken in the name of the vendee, or of some person through whom the party claiming its benefit must make title.

principal on a promissory note upon the same, within sixteen years before suit brought, not expressly authorized by the surety before being made, nor assented to by him afterwards, do not afford sufficient evidence of a new promise by the surety to remove the bar of the Statute of Limitations as to him.

2. Same-Effect of new promise.-A parol promise reviving a debt barred by the statute, has the same effect as payment under the statute. It revives or renews the debt, so that the period of limitations commences anew, to run from the date of the promise. In the case of a promissory note it operates as a new delivery of it.

3. Same- What necessary to make new promise available.To bind a party in this State to a new promise, there must exist the elements essential to a new contract, express or implied. There must be such circumstances as reasonably authorize an inference of an intention to waive the bar of the statute. A party, to be bound to a new promise by the fact of payment, must have an af. firmative intention in making the payment to revive the debt.

4. One joint debtor cannot bind his co-debtor by a payment before the bar of the Statute is complete, so as to remove the bar, any more than by a payment after the debt is barred.

5. Agency Power of joint debtor to bind all by his admissions.-One joint debtor may affect bis co-debtor by making admissions that the debt has not been paid or discharged, but he has no power growing out of his relation to bind the other to a new contract, althougb it may be in regard to the old debt.


READ V. THE PEOPLE. October 11. 1881. Lotteries-Indictment.-An indictment under the lottery law which charges that the accused “did unlawfully and knowingly offer to vend and to sell and to barter and to furnish and supply, and to procure and to cause to be furnished and procured to and for” the complainant a lottery ticket, does not charge a sale but an offer to procure and sell, and does not charge two offenses. Such offer is a single act, although it embraces several things, each of which were illegal.


by DICKEY, J., reversing and remanding. Filed Sept. 1881,

1. Homestead— IVhen debt is for purchase money.Where the assigneo of notes given for a part of the purchase price of land by an arrangement with the principal maker, who was the purchaser of the land, surrenders the notes and takes from him in lieu thereof the noto of the purchaser alone, with a trust deed on the land to secure the note, the debt will be unchanged, and will remain a debt incurred for the purchase money.

2. Same-- E.cception in statute is not confined to vendor's lien. The object of the limitation of the homestead exemption to debts not incurred for the purchase money is not merely to protect the vendor's lien, and a waiver of the lien will lose the protection of the statute of a liability for the purcbase money.




Hon. John W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

(Supreme Court.) WILLIAM B. HODGE, JR., v. JOHN LINN.-Opinion by

SHELDON, J., reversing and remanding. Filed Sept. 1881, 1. Election - Irregularities in conducting are not fatal.Mere irregularities in conducting an election and counting the votes not proceeding from any wrongful intent, which deprives no legal voter of his vote, and does not change the result, will not vitiate the election, so as to Justiły the rejection of the entire poll of the town or precinct.

2. The failure to number the ballots cast at an election, and to count the votes as required by the statute, and to string the ballots on a thread or twine in the order of their reading, and the allowance of persons not judges or clerks of the election to assist in counting the votes, and the presence of persons in the room during the count, pot challengers or officers, when nothing appears to show any injurious effect, or that the votes were not truly counted, will not justify the court on a contest of the election to exclude the entire poll and vote of a town as fraudulent and void.

TUESDAY, November 22, 1881.


GENERAL DOCKET. No. 144. Frederick Bacon v. Titus Daniels. Error to the District Court of Erie County.

LONGWORTH, J. 1. Where a contract, not required by the Statute of Frauds to be in writing, has been reduced to writing and signed by one contracting party only, it is error to treat such contract as of no validity for the reason that it is not signed by the party to be charged.

2. An agreement between the parties to a contract and a third person, whereby one party is released from tbe o'ligations of the contract and the third person substituted in his stead, is a novation, and requires no further consideration than such release and substitution.

Judgment reversed and cause remanded.

164. David Wert v. T. H. B. Clutter. Error to the Dis. trict Court of Crawford County.

1. Under the Act of May 6, 1868 (85 Ohio L. 146), to

lon by SOHOLFIELD, J., afirming. Filed Sept. 30,

1. Limitation Payment by one joint debtor does not remove the bar as to other not assenting.-Payments by the

protect the citizens of Ohio from empiricism, it is not unlawful for a person of good moral character to practice medicine and surgery for reward or compensation, who has been engaged in the continuous practice for ten years or more.

2. Such ten years of continuous practice may embrace time since, as well as before, the taking effect of said act.

3. It is immaterial whether the services rendered during such period of practice were gratuitous or for compensation,

Judgment affirmed.
Okey, C. J. and White, J., dissented.
137. Mary Fanning v. The Hibernia Insurance Co.
Error to the District Court of Cuyaboga County.
JOHNSON, J. Held :

1. To entitle a person to become a member of a corporation, which is being organized under“ An act to regulate insurance companies” (S. & S. 205), his contract to take shares therein,

must be in writing, and be mutually binding on both parties.

2. A verbal promise to take shares, while the stock is being subscribed which is necessary to authorize an organization, does not constitute the promisor a stock. holder or member of such corporation, and a promise to pay for such shares is without a sufficient consideration to support it. A recovery op such promise to pay cannot be had, in the absence of facts showing that the promisor is estopped from setting up such want of consideration.

Judgment reversed.

385. Mary Fanning v. The Hibernia Insurance Co. Error to the District Court of Cuyahoga County. JOHNSON, J. Held:

1. The plaintiff may, in reply to new matter set up in the answer by way of defense, allege any new matter, not inconsistent with the petition, which in law constitutes an answer to the new matter relied on by the defendant.

2. If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer, as an estoppel, he should plead such former judgment.' It is not admissible in evidence under a general or special denial of the new matter contained in the answer.

Judgment reversed.

156. Lucinda Francis Piatt v. David Sinton et al. Error to the Superior Court of Cincinnati.

WHITE, J. Held :

1. A devise by a testator of all of his property of every description, whether real, personal ur mixed, after paying all his just debts, is a devise of the fee, without the aid of a statute declaring such to be the effect of the devise.

2. Where there is a devise in fee, with a provision in the will that in case the devisée should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the fee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death, Niles v. Gray (12 Obio S. 320), followed.

Judgment affirmed.

163. George W. Hamet v. Orlando T. Letcher and others. Error to the District Court of Williams County. OKEY, C. J.

H., the owner of chattels, relying on the representations of R. that he was the agent of L., agreed to sell the same to L. on credit, and H., in the belief that R. was such agent, delivered the chattels to him, when in fact he was not such agent, nor had he authority to purchase for L., as he well knew : Held, That the property in the chattels did not pass from H., and that L., who bought the chattels of R. and converted them to his own use, without knowledge of the fraud, was liable to H. for their value; and the fact that R., at the time the chattels were delivered to him, paid H. part of the price agreed on, will make no difference, except as to the amount of recovery against L.

Judgment reversed, and judgment in favor of Hamet for $137.28, with interest from June 11, 1877, and costs.

Judgment reversed and cause dismissed.

147. Lyman E. Scovill v. Samuel W. Stage et al. Error to the District Court of Pickaway County: Judgment reversed for error in dismissing the appeal, and cause remanded to the District Court for further proceedings. There will be no further report.

149. John G. Smith v. Steamer, “ Young Reindeer." Error to the District Court of Sandusky County, Passed under rule 4 for proof of service of brief and printed record.

152. William Brown v. F. A. Kinery. Error to the District Court of Lawrence County. Cause dismissed for want of preparation.

153. William B. Millikin, administrator &c. v. A. J. B. Welliver, administrator &c. Error to the District Court of Butler County. Dismissed for want of preparation.

155. English, Miller & Co. v. First National Bank of Athens. Error to the District Court of Athens County. Dismissed for want of preparation.

159. George W. Castlen v. Thomas Roberts et al. Error to the District Court of Clermont County. Dismissed for want of preparation.

160. Jonathan Hamilton v. Merrill & Shepherd, administrators et al. Error to the District Court of Gallia County. Passed for proof of service of printed record and plaintiff's printed brief on defendants, according to rule 4.

MOTION DOCKET. No. 200. David H. Bailey v. George D. H. Glass, administrator. Motion to dismiss No. 957 on the General Docket for want of printed record. Motion overruled and leave granted to file printed record within 60 days.

201. W. W. Moore Jr. v. John B. Moore. Motion to dismiss No. 1081, on the General Docket, for want of printing &c. Motion granted and counter motion for leave to to Alle printed record overruled.

202. James C. Elliott et al. v. S. B. Berry, Auditor &c. Motion to take cause No. 1220, on the General Docket, out of order. Motion granted.

203. Emanuel O. Craighead v. Elizabeth Huston et al. Motion for rebearing of cause No. 115, on the General Docket, in which judgment below was affirmed. Motion overruled. The judgment below was affirmed on the ground that errors committed in the court below were not prejudicial to plaintiff in error.

204. The State ex rel. The State Treasurer v. Luke A. Staley, Treasurer of Hamilton County. Motion for an ålternative writ of mandainus. Motion allowed.

205. J. K. White et al. v. John T. Deweese et al. Motion to dismiss No. 968, on the General Docket, for want of compliance with former order to print. Motion granted.

206. Henry Tilden, executor et al. v. James F. Barker. Mtoion to take cause No. 993, on the General Docket, out of its order, Motion overruled.

207. Sophia P. Ford et al. v. Jesse Hildebrant. Motion in cause No. 1223, on the General Docket, to dispense with printing, record. Motion granted, and the case to be heard with the case of Ford et al. v. Johnson, No. 1222 on the General Docket.


(New cases filed since our last report, up to Nov. 22, 1881.]

No. 1221. James Mairs v, Jerusha Mairs. Error to the District Court of Harrison County. J. F. Daton for plaintiff.

1222. Sophia P. Ford et al. v. Alfred Johnson al. Error to the District Court of Clinton County. A. Harris and Slone & Walker for plaintiffs ; LeRoy Pope for defendants.

148. M. T. Hornbuckle and others v. The State of Ohio for the use of Lewis Smith. Error to the District Court of Lawrence County.


A justice of the peace has no jurisdiction of an action on the bond of a constable.

1223. Sophia P. Ford et al. v. Jesse Hildebrant. Error to the District Court of Clinton County. A. Harris and Slone & Walker for plaintiffs ; A. D. Diball for defendant.

1224. Ohio ex rel. Joseph Turney Treasurer &c. v. Luke A. Staley Treasurer &c. Mandamus. Hon. George K, Nash for the State.

Ohio Law Journal.

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evading the New York law; and it was held that the second marriage of Barker Van Voorhis

was null and void, and that the child was, conCOLUMBUS, OHIO,

DEC. 1, 1881.

sequently, illegitimate and not entitled to any share in the property disposed of in the will of

Elias W. Van Voorhis. Ex-JUDGE BOYNTON of the Supreme Court, we The General Term affirmed the judgment, but are informed will resume the practice of the law

the Court of Appeals have directed a reversal at Cleveland, where he now resides.

and granted a new trial.- The Daily (N. Y.) Reg

ister. A LAWYER by the name of Clendenning has

SUPREME COURT OF OHIO. just been arrested at Celina, Ohio, on a charge of blackmail. We trust the accused may be able CINCINNATI, SANDUSKY AND CLEVELAND RAILfully to vindicate himself of such a charge, if not,

ROAD COMPANY his name should be forthwith wiped off the roll


ELIZA COOK. of attorneys, which it would disgrace.

November 15, 1881. The Supreme Court made no report this week. The cases examined into and disposed of last

1. The act of April 20, 1874 (71 Ohio L. 146), giving a

penalty of $150.00, to the party aggrieved by a railroad corweek, will be embodied in the report of next poration for overcharging for the transportation of passen

gers or property, is not in contravention of the constituTuesday. The regular motion day was dispensed tion. with last week, owing to the fact of it coming on

2. A petition under said act against a corporation for

demanding and receiving excessive fare ,in the sale of a Thanksgiving day. Judges White, Johnson, passenger ticket to a person desirous of travelling on its McIlvaine and Longworth, spent that day at

road between the points named on the ticket, is not bad,

on demurrer, for want of an averment that the purtheir respective homes, leaving Chief Justice chaser of the ticket was, in fact, transported on the

ticket for which excessive fare was exacted. Okey, the only representative of the court in the

3. A petition under said act is not bad for want of an city.

averment that the excessive fare was paid by the plaintiff in the due course of business, although judgment was

not rendered thereon until after said act was repealed IMPORTANT DIVORCE DECISION.

by the act of March 30, 1875 (72 Ohio L. 143), saving only pending actions and causes of action under the repealed

statute, where the excessive fare was paid in the due The Court of Appeals, in the case of Van Voor- course of business and not for the purpose of obtaining his et al., executors, against Brintnell, have just

the penalty. rendered a decision setting at rest the question

4. Several causes of action for penalties under said

act may be united in the same petition. adversely to the rulings of the General Terms of 5. Where such action stands for judgment on the the Supreme Court in the First and Second Dis- petition, it is not error to refuse to empannel a jury to tricts, and of the Superior Court in this city,

assess damages. whether a defendant, in a suit for absolute di

Error to the District Court of Logan County. vorce, against whom a judgment has been ren- The original action was brought on the 15th dered dissolving the marriage and prohibiting of August, 1874, in the Court of Common Pleas him or her from marrying again during the life- of Logan County, by the defendant in error, time of the plaintiff, may, notwithstanding the against the plaintiff in error, for overcharging prohibition, contract a valid marriage while the passenger fare in violation of the Act of April plaintiff is living, by going into another State 20, 1874, (71 Ohio Laws 146.) for the purpose of entering into a marriage con- The petition contained two causes of action. tract. The wife of Barker Van Voorhis obtained The first count charged that the defendant, on a judgment of divorce against him in April, June 10, 1874, had demanded and received from 1872, the decree adjudging that it should not be the plaintiff, the sum of thirty-five cents for a lawful for him to marry again until the said passenger ticket on its railroad, from BellefontElizabeth Van Voorhis shall be actually dead. aine to New Richland, a distance of 9 9–10 miles, Subsequently, Elizabeth Van Voorhis still liv

over which portion of the defendant's road the ing, Barker Van Voorhis left New York, and in plaintiff desired to be transported. The second New Haven Conn., was married to Ida Schroeder. count charged that the defendant, on the same A daughter was the issue of this marriage. She day, had collected from plaintiff who was then was born in the State of New York., On Febru

a passenger on its cars, the sum of thirty-five ary 27, 1880, Barker Van Voorhis died. The ex

cents for fare from New Richland to Bellefontecutors of his father's will declined to admit the aine, a distance of 9 9–10 miles. Prayer for child of Barker Van Voorhis, whose name was judgment on each count for $150.00. Rose, to a share in the trust allotted to her Defendant demurred to this petition on the father, questioning her legitimacy. Judge Barn- ground, among others, that several causes of ard, upon the trial, in the Second District, in April, action were improperly joined, and to each 1880, found that Barker Van Voorhis' and Ida count, that it did not state facts sufficie:t to Schroeder went to New Haven for the purpose of constitute a cause of action. These demurrers

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