Tender on Condition.-Where a tender sufficient in amount to discharge a mechanic's lien upon personal property, was made on condition that the property be delivered up, and the only objection made to the tender was that the amount was insufficient; held, that the tender was not vitiated by the condition: Moynahan vs. Moore.

Record of an Instrument referring to another Instrument.—Where a writing is recorded as a separate paper, which refers to "the within mortgage," but does not in any way describe or identify the mortgage, the record is no evidence or notice that the writing recorded was indorsed upon any particular mortgage not recorded with it, as that is an extrinsic fact not within the purview of the registry laws: Bassett vs. Hathaway.

Common Law Certiorari, what it brings up-Power of the Court upon it. The return to a common law writ of certiorari should set out the evidence upon which the conviction or other judicial act complained of was founded: Jackson vs. People.

The office of a certiorari is not, however, to review questions of fact, but questions of law. And, in examining into the evidence, the appellate court does so, not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal: Id.

But the appellate court will review the rulings of law upon the admission or exclusion of evidence, or other rulings in the proceedings having a bearing upon the result: Id.

On certiorari to the Recorder's Court of Detroit, to remove the proceedings on conviction for a violation of a city ordinance, the evidence was embodied in the return by the clerk. Held, to be properly before the court: Id.

Carnal Knowledge and Abuse of a Female Child—Assault-Evidence. -Under an indictment for carnal knowledge and abuse of a female child under ten years of age, the defendant may be convicted of a simple assault, notwithstanding the child consented. The offence charged is rape, and the child has no capacity to consent: People vs. McDonald.

Liability of Municipal Corporations for Injuries caused by its Streets being out of repair.-The city of Detroit let to the lowest bidder, as

required by its charter, a contract for the construction of a sewer througa one of its public streets. The contract bound the contractor at all times to keep the excavation fenced in, and carefully guarded to prevent accidents, and provided that the contractor should be liable for all damages that might arise from accident occasioned by his neglect. For want of proper guards to the excavation, an injury occurred to a person driving along the street. Held, that the city was liable: City of Detroit vs. Corey.


Constitutional Law-Obligation of Contract-Taking Franchise for Public Use, what-Construction of Statute-Ferries.-The Hartford Bridge Company was incorporated in 1808, with power to erect and maintain a toll bridge across the Connecticut River, between Hartford and East Hartford. There were, at this time, two legally established ferries between these towns, and belonging to the towns, located below the proposed site of the bridge, and within a quarter of a mile of it. In 1818, the bridge which had been erected soon after the incorporation of the company, having been greatly damaged by a flood, and requiring to be rebuilt, and the company being unwilling to incur the expense of rebuilding it without the grant of further privileges, the Legislature passed a resolution that, upon the bridge being rebuilt to the acceptance of a committee appointed for the purpose, the ferries, by law, established between the towns of Hartford and East Hartford, should be discontinued, and said towns should never thereafter be permitted to transport passengers across said river; with a provision that if the company should neglect to maintain the bridge, the towns might open the ferries. In 1857, the Legislature incorporated the Union Ferry Company, with power to establish a ferry across the Connecticut River, between the towns of Hartford and East Hartford. at a point not less than a mile below the bridge, but made no provision in the charter for compensation to the bridge company for the injury to its franchise. The Ferry Company immediately after established the ferry at a point a mile and a half below the bridge, and were using it for the conveyance of passengers, and a considerable amount of tolls was thereby diverted from the bridge. The line of travel was not the same with that

1 We are indebted to John Hooker, Esq., the Reporter of the Court, for the points decided in the following cases, which will be reported in the 29th volume of the Connecticut Reports, and for which he will accept our thanks.-Eds. Am. Law Reg.

accommodated by the bridge, and the growth of the city of Hartford in that direction had been such as to require the accommodation. On a bill in equity brought by the bridge company, to restrain the ferry company from the use of the ferry, it was held, that the resolution of 1818 was to be construed as a contract on the part of the Legislature, only that the then existing ferries should be discontinued, and that the towns should not be allowed to revive them; and that the resolution of 1857, establishing the Union Ferry, was not a violation of the contract, and was not unconstitutional. Storrs, C. J., dissenting: Hartford Bridge Company vs. Union Ferry Company.

The same general rules of construction are to be applied to both public and private grants. The intent of the contract is to be ascertained by a fair and rational interpretation of the language used, and, when the intent is ascertained, it is to be carried out against the State as fully as against an individual: Id.

Where, however, the language of a public grant will equally admit of two constructions, so that the intent cannot be ascertained, then that construction is to be adopted which is most favorable to the State. This is but the application of the ordinary rule that the language of a contract shall be taken most strongly against the party using it, the language of a public grant being regarded as the language of the party obtaining it: ld.

In the present case, the contract of the State that the ferries then exist. ing should be discontinued and never afterwards revived, should be construed as meaning that no ferries substantially the same, and accommodating the same line of travel, should be established: Id.

Remarks on the history of legislation in this State on the subject of ferries: Id.

Assumpsit-Pleading-Previous Liability as Consideration-Action for Contribution.-Although an existing liability is a good consideration for a promise, whether expressed or implied, to pay money on request, yet it is not sufficient that a declaration on such a promise should merely state that there existed such a liability. It must state the facts on which it arose, and in such a manner that the court can see that there was such a liability Bailey vs. Bussing.

The statement of the liability without the facts on which it arose, is a statement of a mere legal inference, which it is never necessary to allege in pleading, and which, if alleged, is never traversable: Id.

A declaration in an action of assumpsit for a contribution, alleged that a joint judgment had been recovered against the plaintiff, the defendant and another, which the plaintiff had been compelled to pay, and that the defendant was in duty bound and liable to pay to the plaintiff onethird of the amount, and being so liable promised, &c., but contained no allegation as to the cause of action upon which the judgment had been rendered. Held, that the court could not infer, as a matter of law, that the cause of action was one which imposed upon the defendant the duty to contribute, and therefore that no sufficient consideration for the promise was alleged: Id.

Held, also, that the defect of the declaration was not cured by verdict. One judge dissenting: Id.

Trespass, Damages in-Illegal Possession-Liquor Law.-In trespass for taking personal property, where the property has been taken without malice and under a claim of right, and the controversy relates only to the title, the rule of damages is the value of the property at the time of the taking, and interest from that time to the time of the judgment: Oviatt vs. Pond.

Where, in such a case, the plaintiff claimed that, by the taking of the property, he had been broken up in his business, and the judge charged the jury that the defendant must make the plaintiff good for all the actual damage sustained by him at the defendant's hands, resulting directly and naturally from the injury, a new trial was granted on motion of the defendant: Id.

Under the 27th section of the statute with regard to intemperance, which provides that "no action shall be maintained for the recovery or possession of spirituous liquors, or the value thereof, except in cases where persons owning or possessing such liquors, with lawful intent, may have been illegally deprived of the same," there can be no recovery in an action of trespass for the value of liquors taken, where the same were kept for illegal sale: Id.

And this rule was applied where the liquors of the plaintiff had been attached and taken away by the defendant, an officer, as the property of another party against whom he held a writ of attachment: Id.

Liquors kept for sale contrary to law, are regarded by the law as having no lawful value, or value for lawful purposes: Id.

This provision of the statute is constitutional and valid: Id.



This volume contains cases decided at the November Term, 1859, and the June Term, 1860, and it fully sustains the long-established reputation of that ancient State for thoroughness and research in the decisions of its highest judicial tribunals. We have been gratified to find so large a proportion of the cases of so important a character. For it is unfortunately true, that by far the largest number of cases which find their way into the reports in this country are too insignificant, both in importance and amount, to command that serious examination or consideration, either by court or counsel, which is requisite to give the decision the character of authoritative precedent. And the wonder often is how they happen to have been O worse handled than they were.

In equity, certainly, and, we believe, the same holds true in law also, the cases which come before the English Courts in London and Westminster, equal, if they do not exceed in real importance, both as to the question involved and the value of property affected, all, or nearly all, those which are decided by all the Superior Courts in the whole United States, including the National as well as the State Courts. And when it is further considered, at what immense disadvantages as to time and opportunity for the use of books, the majority of these cases are examined and determined, the wonder is just and natural which we have already expressed.

But New Jersey is one of the oldest and most favored of the States, both in regard to general learning in the profession and ample facilities for the use of books, always in the vicinity if not immediately at hand.

The volume now before us, while it presents the usual number of questions of the nature of proceedings by certiorari, mandamus, and other sessions matters, which are not of much general interest out of the particular State, has also a considerable number of cases of marked general interest. We could not particularize all of this class, and it might, therefore, seem invidious to name any. But we venture to name a few which have seemed to us worthy of special commendation. The case of Edwards vs. Derrickson, pp. 39-79, occupies a large space in a very careful examination of several questions in regard to the mechanics' lien and the mode of enforcing it. The State vs. The City of Elizabeth, pp.

« ElőzőTovább »