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ordinary care and prudence by plaintiff, and for a defective fire escape. Scott v. Simnions, 54 both parties believed the same sufficient, though N. H. 426, in which the court strongly support it was not examined by defendant; and the the doctrine of the cases above cited, was based same was in fact sufficient in ordinary storms, on a charge of negligence. Cesar v. Karntz, 60 but proved insufficient and inadequate in a N. Y. 229: A landlord had knowingly leased heavy rain storm of exceptional severity, premises infected with contagious disease. which occurred while defendant wag occupying Others cited, are cases where the course of consaid premises, in July, 1879, and said sewer was duct of the landlord in reference to the premises broken, and the said basement flooded with has been adjudged equivalent to eviction. The water therefrom, in connection also with a large evidence objected to on the trial by defendant as amount of surface water, and said defendant's to the size, and manner of construction of said goods therein were greatly damaged. No other sewer, also the advice and opinion of the city endamage is complained of in the case.
gineer, an expert, about the same, were proper, The findings of the court; embracing the fore- and went to the question of plaintiff's good going facts, are fully supported by the evidence, faith and due care in its construction. The eviand, we think, constitute no defence to plaint- dence as to the nature of the storm in question, iff's claim for rent, or cause of action for dam
proper, to show how the premises were ages by way of counter-claim.
It is apparent affected by it, and to a full understanding of the that the lease was made in entire good faith, and real cause of the injury. But the cvidence in the plaintiff having exercised the care of a man chief sought to be introduced, of subsequent of ordinary prudence in the constructon of said storms, which are not complained of, was immasewer, which is the only matter complained of, terial.' And the rejection of the same offer upon his general statement in reference to the condi- cross-examination could in no event have tion and character of the preinises must be con- wrought any prejudice, as we view the case. sidered as the expression of his opinion and The order denying a new trial : should be judgment in the matter, and is insufficient to affirmed. establish the fraud charged. It was not properly matter of false description, or erroneous JUROR-COMPETENT EVIDENCE. statement of facts not known to be true, which might mislead the party to his injury; neither
SUPREME COURT OF IOWA. was it competent evidence of the agreement and understanding of the parties, being outside the
STATE OF IOWA writing. Denton v. Serrish, 9 Cush. 93-4. Laying out of view the question of fraud in
Nelson. the case, the plaintiff's obligation and duty rest wholly in the written contract. The words “de
April 21, 1882. mise or let," or their equivalent, in a lease, im- Where a juror, on his examination on trial of an inply a covenant for title and for quiet enjoyment,
dictment against the defendant for selling intoxicating but no other covenants on the part of the lessor
liquors contrary to law, expressed himself as being op
posed to the law, and a challenge for cause was overare implied therein. Foster v. Peyser, 9 Cush. ruled, held, proper. 246. There is no implied covenant in this lease When the reputation of a witness for general morality that said stores were provided with drainage fa
and truth is assailed, it is competent to sustain his char
acter by showing that those having the best opportunity cilities suitable for their location, or that said of knowing his reputation have heard nothing said restores were suitable for defendant's business for specting his character. Such negative evidence, while that or any other reason. The lessee is the
not the best evidenco, is competent proof of good repu.
tation, and should be accepted and weighed by the jury. perty most deeply interested in protecting him- A statement by the court during the trial that such eviself against casualities of storm and fire, and he dence is the best evidence to prove a good reputation, is should see to it that proper stipulations are em
a mere abstraction, and can have no bearing upon the
ultimate decision, where the court leaves to the jury the braced in the contract for his own security. And weight and effect of the evidence. as said in the case just cited, (page 247), “ if he
Where testimony was excluded by the court, if the really mean a lease to be void by reason of any
ruling, was erroneous, the error is cured by the testi
mony being subsequently admitted. unfitness in the subject for the purpose intended Where the witness called for the prosecution testified he should express that meaning: Sed, also, that he drank liquor in defendant's saloon, and defendWells v. Castles, 3 Gray, 323; McGlashan'v Tal
ant, as witness on his own behalf, testified that he did
not remember selling whisky to the witness, the evimage, 37 Barc. 315; Jeffe v. Hartean, 56 N. Y.
dence was deemed sutficient to sustain the verdict, in a 398. There may be one or two exceptions to
prosecution for the sale of liquor contrary to law. this rule, as in the case of houses or rooms The defendant was indicted for, tried, and conrented ready-furnished, not, however, material victed of the crime of nuisance, committed by to be considered here.
using a building for the purpose of keeping and The case of Whittle v. Webster, 55 Ga. 180, selling therein intoxicating liquors contrary to relied on by appellant, turned upon the statute law. The defendant appeals. of the State. Swift v. Hotel Co., 40 Iowa, 322, DAY, J. also cited, was an action by the tenant for dam- 1. The jury being filled for the trial of the cause, ages for not furnishing a hotel as covenanted. with the exception of one man, and the defendMcAlpin v. Powell, 1 Abb. (New Cases ), 427, ant having exhausted his peremptory chalwas an action for negligence under the statute, lenges, H. Monroe was called by the sheriff, and upon examination answered as follows: "I have that time, he ever heard his character called in no opinion in this case; I would try my best to question. I do not decide that that is conclusdo justice to a man on trial for an offense of this ive proof, but it is good proof tending to show a kind. Almost every one knows that I am op- man's good character. If you have associated and posed to the business of saloon keeping. I am done business with the same people, and never opposed to the law regulating the sale of intox- | heard his character called in question, you may icating liquors, but as long as it stands as it is take it as good evidence tending to establish his now, I am not prejudiced against a man for sell. character. It is the strongest kind of evidence ing beer or wine. I am not a license man. I in that direction.” The defendant. excepted to mean just what I say.” The defendant there- this statement of the court. The State then upon challenged the juror for cause, because of asked the following question: "You may state his opposition to the law as it now exists. The whether, while you knew Mr. Spencer in Jaschallenge was overruled and the defendant ex- per County, you ever heard anything against cepted. It appears from the answers of the his reputation or character.” To this the witjuror that his opposition to the law grows out of ness answered: “I do not.” Respecting this evthe fact that it does not prohibit the sale of wine idence the court instructed the jury as follows: and beer. Still the juror testifies that as the “When there has been testimony introduced law stands he is not prejudiced against a man for for the purpose of showing that a witness who selling beer or wine. In other words, that proof has testified in a case has a bad moral character of the sale of beer or wine would not have any in- and a bad reputation for truth, and witnesses fluence upon him in considering the case. From are introduced to rebut such testimony, and they the juror's statement it appears that his opposi- testify that they have lived in the same neighbortion to the law would not affect him in the con
hood with the witness for four, five, or six years, sideration of the case, and that, notwithstanding and show that they have mixed, done business and such opposition he could render an impartial associated with the same people that the witverdict. The challenge to the juror was prop- ness has lived among for five or six years, and erly overruled.
then testify in substance that they never heard 2. The only witness introduced in chief on anything against the witness' moral character, the part of the State was James Spencer. For and that they have never heard his reputation the purpose of impeaching the witness, the de- for truth called in question, that is anong the fendant introduced a number of witnesses, who best of evidence tending to show that the wittestified that the general moral character of ness has a good reputation in both of said reJames Spencer in the neighborhood where he spects, and such testimony is entitled to just lives is bad. To sustain the character of the such weight and credit, and just such weight witness, the State introduced one J. C. Painter, and credit only, as you may think it entiwho testified that he had known the witness about five years, and had never heard anything To this instruction the defendant excepted. worse of him than drinking. Upon cross-exam- The defendant assigns as error the several acination, Painter testified that Spencer had been tions of the court above objected to. It must be in his employ for two or three years and had competent for one, whose reputation for general handled thousands of dollars for him. When morality and truth is assailed, to sustain his called upon to name some person he had heard character by showing that those having the speak well of Spencer, the witness said, “I best opportunity of knowing his reputation don't know that I ever heard any person speak have heard nothing said respecting his characgood or bad of him." The court thereupon said: ter. Otherwise, the person who has so far lived "Where a man has lived for five years in the a blameless life as to provoke but little discusneighborhood of a man, and been his employ for sion respecting his character, would oftentimes two or three years, and mixed with the same be utterly unable to support his character when people, and the witness who is on the stand never assailed. We are inclined to think, however, heard that man's character or honor called in that the court was not strictly correct in charquestion, that is the best kind of evidence that acterizing this evidence the best evidence of he is a man of good moral character, for the rea- reputation. It cannot fairly be said that proof son that we have but few trumpeters for what that one's neighbors have never heard his chargood we do in this world, but we have acter canvassed, is better proof of his good repumany trumpeters for the evil we do. It is gen- tation than proof that his neighbors generally erally like rolling snow-the further it goes the speak in terms of commendation of his characlarger it gets." The defendant objected to this ter. All that can properly be said of the kind statement, for the reason that the jury are the of negative proof under consideration is that it judges of the testimony.
is competent proof of good reputation, and The State also introduced one D. B. Got- should be accepted and weighed by the jury. schall, who testified that he was somewhat ac- Still, taking the whole action of the court to quainted with James Spencer, and knew him for gether, we are unable to see how the defendant two years in Jasper County, but did not know could have been prejudiced by it. The statehis general moral character in that.county be- ment during the trial that the evidence pro fore he came to Polk County. The court there- posed was the best evidence, and the direction upon said: You can ask him whether during all to the jury that it was among the best evidence,
was the statement of a mere abstraction, having ing notice from the wife of defendant that the said goods no practical bearing upon the ultimate decision, so
were her own by virtue of a parental gift.
Held, that the sheriff was liable in an action of trepass, long as the court left to the jury the question of although he may never bare actually taken manual pos. the weight and effect of the evidence, and di- session of the goods levied on. His return that he had rected them that it was entitled to such weight
taken and sold" is conclusive. and credit, and such weight and credit only, as
The fact that after the sale the husband had rented the
goods from the purchaser does not affect the wife's right they might think it entitled to.
or the sheriff's liability. 3. The witness, Jan.cs Spencer, upon cross-ex- STERRETT, J. amination, testified: “I make my headquarters In taking the case from the jury and directing on the east side, at Mr. Stolgren's. He fur- a verdict for the defendants, the court below nished me all the money I wanted.” He was virtually ruled that the sheriff was not liable in then asked the following question: "Do you trespass for advertising and selling the separate know of Stolgren and Nelson having had personal property of the beneficial plaintiff on trouble a short time ago ?" This was objected to an execution against her husband, after being as immaterial, and the objection was sustained. duly notified in writing of her title thereto. It is It is insisted that as Spencer made his head- contended there was error in this. quarters at, and was furnished money by Stol- The uncontradicted testimony is that the propgren, it was competent to show the relations erty which was the subject of the alleged trespass, existing between Stolgren and the defendant, as was given to Mrs. Freeman by her parents shortly having some bearing upon the interest which after her marriage in 1870, and continued to be the witness might feel in the prosecution. But her separate property.until it was advertised and the witness did subsequently, in the further sold by the defendant, Sheriff Apple, on the progress of the cross-examination,state all that he execution against her husband, in disregard of knew about the difficulty between Stolgren and the notice that it was owned and claimed by her the defendant, and when he learned it. If, then, as a parental gift. If the case had been submitted the ruling of the court was erroneous, which we to the jury, it would have been impossible for them do not determine, the error was cured by the tes- to have found otherwise without disregarding the timony subsequently admitted.
evidence. So clearly and conclusively were these 4. The witness, Spencer, was asked, upon facts proved that the learned judge in his charge cross-examination, what was his condition as to assu nied Mrs. Freeman's ownership of the being sober when he testified before the grand property in question as an established fact; but, jury. The State objected to the question as not notwithstanding all this, he refused to affirm the proper cross-examination, and the objection was plaintiff's first point, and thereby instruct the sustained. The appellant insists that this ex- jury that the sheriff was liable in trespass, if they amination was proper, because the witness ad- believed the property belonged to her at the mits that he had refreshed his recollection by refer- time of the sale, and was purchased by Mr. ence to his testimony before the grand jury. Slocum on his own account, and is still owned by Upon the contrary, the witness testified that he
him. On the contrary, he withdrew the case had not refreshed his memory by his testimony from the jury by charging that “the right to the before the grand jury, and that he had not seen occupancy and enjoyment of the property has the minutes of that testimony since he gave it. not been interfered with by the sherift, nor was
5. The defendant insists that the evidence is it so interfered with at the time of bringing this not sufficient to support the verdict. The wit- suit, and your verdict will be for the defendants." ness Spencer testified that he bought whisky In this we think there was error. If the allefrom the defendant, in his saloon. The defend- gations of fact embodied in plaintiffs' point ant was a witness on his own behalf. In his tes- had been found in their favor they would timony, he does not deny that he sold whisky to clearly have been entitled to a verdict; and for Spencer, but simply states that he does not re
present purposes, it must be assumed they would member doing so. In our opinion the evidence have so found. As has already been suggested, supports the verdict.. The instructions given there was no testimony on which a contrary properly reflect the law of the case. Those asked finding, as to the main facts, could have been and refused, so far as they embody the law, were based. The fact that the levy was made by his embraced in the instructions given.
predecessor in office furnished no justification or We discover no error in the case. Affirmed. excuse to the sheriff for enforcing the levy by
advertising and selling the wife's property on TRESPASS BY SHERIFF – RIGHTS OF
the execution against her husband, especially afMARRIED WOMEN.
ter having received written notice of her title; nor
was the trespass in any wise condoned by the SUPREME COURT OF PENNSYLVANIA, arrangement made with the purchaser, by which
he permitted the property to remain in the FREEMAN AND WIFE v. APPLE ET AL.
possession of the plaintiffs in consideration of &
certain rental for the use thereof. While it is January 2, 1882.
true the maxim, caveat emptor, was applicable to
the purchaser, and he took such title only as the Certain property had been seized and taken.in execution as the property of the defendant in the execution,
defendant in the execution had in the property, which was afterwards sold by the sheriff, notwithstand- it may have been both prudent and economical to recognize his title and make an amicable arrang- ments and associations, for the opportunity it afment as to the retention and use of the property fords him to participate in the administration of rather than einbark in a controversy that might justice, which he always loves for its commandhave involved both inconvenience and expense. ing influence in politics and government, and But, it is claimed, that, inasmuch as there was no for the part it performs in moulding the civilimanual seizure or removal of the property by the zation of his country and age. He accepts the sheriff, no trespass was committed. We cannot re- honors and emoluments of his profession as togard this position as tenable. There was at least a kens of approbation from his clients, his fellows constructive seizure and delivery to the purchaser. and his country; and not as the tradesman or By disregarding the notice of title that was given, speculator receives his gains, as the reward of and proceeding to advertise and-sell the goods of his shrewdness. Again, our typical lawyer prea stranger to the execution, he unlawfully pares himself to serve his clients, and patiently exercised an authority over them against the waits for them to come and employ him. Some will of the owner, and so far invaded her right very distinguished lawyers have waited long, of property as to subject himself to an action of but still, with commendable patience, they trespass : Paxton v. Steckel, 2. Barr, 93, and waited. In this mercenary age, when moneycases there cited. In that case the court say: making is so much prized, when expensive "It is not necessary to constitute trespass by an habits of life prevail, we should guard against officer, who executes a writ of attachmenton chat | its demoralizing influence, and see to it that our tels, to prove any manual bandling of the prop- ambition to be rich, or the pecuniary demands erty, or taking them into possession. The levying upon us, shall never become a factor in the deof the attachment may be done without these acts termination of our compensation, which should and the property be fully bound by it. * * * always be regulated by the meritoriousness of Trespass de bonis asportatis against a sheriff is the services rendered, the value of the matter in maintained by proof that he unlawfully exercised controversy, and the ability of the client to pay. an authority over the chattels against the will | Again, we should be careful that this mercenary and to the exclusion of the owner, though there spirit, this love of employment for gain, should was no manual taking or removal when he took not induce us to countenance the methods of the them under process of law and by virtue of his modern charlatan. A shyster hunts up an apoffice.” In the case before us, the sheriff return- | parent cause of action, and obtains leave to bring ed that, after having given duc and legal notice, à suit, upon condition of employing a reputable he did, on the 16th day of January, 1879, sell the lawyer to aid him. The suit is brought, and property, etc. According to the authorities the though successful for a time, ends in the defeat return is conclusive upon him, and neither and ruin of the client, who was lured into the manual taking, occupation or removal was essen- suit by the association of the reputable lawyer tial to render him liable to the beneficial plaint- with the shyster. Though the shyster was the iff. The first and fourth assignments of error are party guilty of thus seeking practice and ruin- . therefore sustained.
ing à too credulous client, yet he received the It follows also, from what has been said, that countenance of the man of standing, upon the the plaintiff's second point should have been reputation of whom he obtained the employment affirmed. The wife's right of action against the and who thus gave sanction and encouragement sheriff for illegally advertising and selling her to such practices, and is responsible, by such property could not be defeated by the act of her countenance, for the ruin of the client. Again, husband in recognizing the right of the pur- in this commercial age, when every man offers chaser at sheriff's sale and agreeing to pay his wares in the market, and the seller solicits him a stipulated sum
for the use of the buyer, and carries his goods to him and the property. It would be a novel doctrine, shows them to him, and when the charlatan, the indeed, to hold that her right of action against quack, and the shyster imitate the peddler, it the sheriff could be preserved only by permitting seems difficult for even reputable lawyers pasthe purchaser to remove the property, and thus sively to wait for business; indeed, there are deprive her of household furniture, beds, bed strong grounds to suspect that many of them ding and other articles necessary to the com- not only countenance these charlatans above alfort of herself and family. No such unreason- luded to, by association with them, but indiable technicality as that can be invoked for the rectly resort to solicitation for business.-Hon. protection of a wrong-doer.
Asa Iglehart, before Indiana Stale Bur Association. Judgment reversed, and a venire facias de novo awarded.
SCENE IN A CHICAGO COURT.
A and B were attorneys on opposite sides of a
suit on a promissory note. The case was exOur highest ideal of a lawyer is not a man who pected momentarily to be called for trial, and simply works for success that he may gain large both were watching it attentively, when A was fees, become wealthy and have the luxuries of called away a few moments from the court room. affluence, and enjoy the renown of a rich man; Before going he went to B and asked as a profesbut rather, a man who lives and cherishes his sional courtesy, that should the case be called beprofession for its high and ennobling employ- fore his return he should be sent for, and no advan
tage taken of his absence. B cordially assented on their lots respectively should be used exclusively for
dwelling-houses. and A retired. Scarcely was he outside of the
In an action to restrain defendant
from permitting the use of his building for business purcourt room when the case, was called, and B poses, it appeared that the current of business bad' ensprang to his feet immediately. “We are ready croached on the neighborhood, and that since the action for trial, your honor."
had commenced a railroad had been built, with a station
in front of the premises. Held, that the premises being “How will you try it," said the court. "I see thereby rendered unsuitable for the use contemplated by there is no regular panel of the jury present?” the covenant, defendant was made incapable of carrying "Just fill up the jury from the bystanders,” said
it ont, and that the action, therefore, could not be main
tained. B. "It is but a short case, will only take a few minutes.”
It was done immediately and the case pro- PuÆNIX Ins. Co. v. CONTINENTAL INS. Co. Jan. 17, 1882. ceeded, and was well nigh completion when A Corenant-Specific Performance.- A deed to defendant's came walking in.
grantor contained a covenant by him that he would not He comprehended the situation at once and
erect or cause to be erected any building on a certain
strip of the land conveyed, and ihat for a violation of such informed the court of the arrangement between covenant he should pay a certain sum as liquidated himself and the opposite counsel, but was coolly damages. The strip in question adjoined the wall of a told that it was his place to have been present,
building, afterwards conveyed to plaintiff, in which were
windows which were necessary to admit light and air to and the court could not recognize any such ar- the building. In an action to restrain defendant from rangements between counsel. Just then A hap-building on said strip of land, -- Held, that plaintiff was
entitled to the reliet demanded; that defendant did not pened to glance around at the jury and his
have the option to leave the strip yacant or to build upon countenance lighted up. "Well,” said he, “I guess it on payment of the sum specified. its all right. I don't think our interests are likely to suffer, for I see you have got my client on'that jury." And sure enough they had
FARMERS' & MECHANICS' NATIONAL BANK v. LANG. Dec. placed the defendant in the case on the jury. 13, 1881. The above is an actual occurence, and is not a
Guaranty, Pledge-. Evidence- A written instrument
executed and delivered to a bank, whereby defendant whit more ridiculous than other incidents occur
promises and guarantees to said bank all pledges of propring almost daily under our present system of erty, warehouse receipts, and other vouchers that may selection of jurors. For instance: A short time be given by W. as collateral security, and promises that
the property so set over shall not be misapplied, and that ago the keeper of one of the worst gambling hells
if any default or inisappropriation thereof shall be made, in Chicago was indicted for keeping a gambling defendant will make good any deficiency and fully satishouse. That he did keep such a house was as fy the stipulation in receipts, -renders defendant liable patent and well known a fact to every man,
only to make good a deficiency caused by diversion of
property actually pledged. woman and child in the city as it is that the In an action on such guaranty to recover the amount filthy water of the Chicago river washes out to of loans to W., evidence showing that when they were the Črib, and yet a jury selected from the patrons
made and the pledges given there was no such property
on hand as they called for; that plaintiff allowed W. to of the house by a bailiff whom the gambler ship away property covered by the receipts, and owned, only required three minutes to agree pledge the shipping receipt for a new discount, is material upon a verdict of “not guilty," although it took
and competent. them fifteen minutes to sign their names to the verdict, SO unaccustomed were they to the
WISCONSIN. practice of so high an art as that of writing their names.-The American Law Magazine.
Digest of Decisions.
TURNER, FRAZER & Co. v. KILLIAN. April 25, 1882.
Misconduct of Sheriff-1. Where a sheriff, with a pro cess against the property of one person, seizes, by virtue
thereof, the property of another, he is guilty of official NEW YORK.
misconduct, for which he and his su reties are liable in an action on his official bond; nor does it matter, as to the
liability of his sureties, whether he do this knowingly (Court of Appeals.)
and wilfully, or through gross carelessness, or mere in
difference to official duty. DERRENBACHER v. LEHIGH VALLEY R. R. Co. January 2. Where, not withstanding formal defects in a peti24, 1882.
tion, enough is alleged to support a judgment in favor
of the plaintiff, it is not subject to general demurrer. Master and Servant–Negligence-Plaintiff was injured 3. As to attachment creditors of the mortgagor a preby the breaking of the rope of a derrick, while assisting existing debt already due is a gon I consideration for a in discharging ore from his boat to defendant's cars. It
chattel mortgage, and protects the mortgagee to the did not appear that the derricks were used for defend
same extent as would a new consideration given at the ant's benefit, that its officers had any control over them,
time of making the mortgage. or that it furnished the rope. It appeared that for a long 4. A chattel mortgage of a stock of goods, containing time the derrick was under the control of M. & 1o., who
a clause by which the mortgagor is given possession employed the men who discharged the cargo. Held, that
with power of sale in the usual course of trade, the prodefendant was not liable.
ceeds to go in satisfaction of the mortgage debt, although by our statute made presumptively fraudulent, is not
conclusively so, and inay, by satisfactory evidence, be TRUSTEES OF COLUMBIA COLLEGE v. THATCHER. Jan. 17,
shown to have been made in good faith. 1882.
5. The question whether there was fraudulent intent Covenant-Specific. Performance-Change of Circumstan- in the giving of a chattel mortgage is, in all cases, one ces.-An agreement was entered into between plaintiff's of fact, and must be raised, if at all, by suitable pleadand defendant's grantor that the buildings to be erected ing.