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NEW YORK COURT OF APPEALS ABSTRACT.

second demise if they so intended. Taylor Landl. and Ten. (7th ed. 109, notes 16, 5a; Washb. Real Es tate (4th ed.) 515, n. 6; Adams v. Beach, 1 Phil. 99, 170; Indianapolis, etc., R. Co. v. Cleveland, etc., R., 45 Ind. 281; Lee v. Payn, 4 Mich. 106; Lloyd v. Cosens, 2 Ashm. 138; Wood Landl. and Ten., § 347 (Banks' ed.). These rules are fully recognized in this State. Prescott v. De Forest. 16 Johns. 159; Bedford v. Terhune, 30 N. Y. 453, 457; Davy v. Morris, 36 id. 569; Woodhull v. Rosenthal, 61 id. 391, 392. The fact that the lease to the defendant reserves a different rent from that reserved in the original lease, with a clause for a re-entry, cannot affect the question as between the parties to the present controversy of its operating

were expressly adjudicated in the cases of Doe v. Bateman, 2 B. & A. 168; Wollaston v. Hakewell, 3 Scott N. R. 616. Neither can the covenant to surrender have any bearing. It was a covenant to surrender at the expiration of the ninety-nine years' lease, long after the expiration of the fifty years' lease. Where, in an assignment of a lease or in a demise by the lessee for the same term as that granted by the original lease, there is a covenant to surrender to the assignor, this has in some cases been held to prevent the sub-lease from operating as an assignment; but this has been because the whole instrument, taken together, has been held to reserve to the original lessee some fragment of the original term, though almost inappreciable in point of duration, as in the case of Post v. Kearney, 2 N. Y. 394, where the assignee of a lease demised the premises for the residue of his term, reserving the right to a delivery of possession by his assignee to him on the last day of the term, and a

LANDLORD AND TENANT-ASSIGNMENT OF TERMLIABILITY FOR RENT.-S. leased a railroad which he owned on Long Island to the Central Railroad Company of Long Island, for a term of fifty years. The lease contained a covenant that at the expiration of the term the lessee should pay to the lessor a sum equal to the cost of the road, and thereupon the lessee should become the owner in fee of the road. The lease contained the usual covenants for re-entry for non-payment of rent or breach of other covenants. Thereafter the entire interests of the Central Railroad Company, under this lease and contract, became vested in the Flushing, North Shore and Central Rail-in law as an assignment of the term. These points road Company, and the latter company then leased to the defendant the S. road for the term of ninety-nine years. Held, that the lease to the defendant having transferred to it the entire term of the original lessee, that operated as an assignment of the lease, and the defendant thereby became liable directly to S., the original lessor, for the rent reserved in the original lease. Where a lessee assigns his whole estate without reserving any reversion therein in himself, a privity of estate is at once created between his assignee and the original lessor, and the latter has a right of action directly against the assignee on the covenant to pay rent, or any other covenant in the lease which runs with the land; but if the lessee sublets the premises, reserving or retaining any such reversion, however small, the privity of the estate is not established, and the original landlord has no right of action against the sub-lessee, there being neither privity of contract nor of estate between them. Where a lessee of land leases the same land to a third party, the ques-right to intermediate possession in case the buildings tion has often arisen whether the second lease is in legal effect an assignment of the original lease or a mere sub-lease. The question has frequently, and probably most generally arisen between the lessee and his transferee, and much confusion will be avoided by observing the distinction between those cases and cases where the question has been between the transferee and the original landlord. In the latter class of cases the rule is well settled that if the lessee parts with his whole term, or interest as lessee, or makes a lease for a period exceeding his whole term, it will, as to the landlord, amount to an assignment of the lease, and the essence of the instrument as an assignment, so far as the original lessor is concerned, will not be destroyed by its reserving a new rent to the assignor, with a power of re-entry for non-payment, nor by its assuming, by the use of the word demise, or otherwise, the character of a sub-lease; and the assignee, so long as he continues to hold the estate, is liable directly to the original lessor on all covenants in the original lease which run with the land, including the covenant to pay rent. Taylor Landl. and Ten. (7th ed.) 109; Hicks v. Downing, 1 Ld. Raym. 99; Palmer v. Edwards, 1 Doug. 187; Smith v. Maplebark, 1 T. R. 441; Porter v. French, 9 Irish L. R. 514; Parmerter v. Weber, 8 Taunt. 593; Doe v. Bateman, 2 Barn. & Ald. 168; Wollaston v. Hakewell, 3 Scott N. R. 616; Pluck v. Digges, 5 Bligh (N. S.), 21; Beaumont v. Marquis of Salisbury, 19 Beav. 197; Thorne v. Woolcombe, 3 Barn. & Ald. 586. But as between the orig inal lessee and his lessee or transferee, even though the original lessee demises his whole term, if the parties intend a lease, the relation of landlord and tenant, as to all but strict reversionary rights, will arise between them. The effect therefore of a demise by a lessee for a period equal to or exceeding his whole term, is to divest him of any reversionary right and renter his lessee liable, as assignee to the original lessor, but at the same time the relation of landlord and tenant is created between the parties to the

should be destroyed by fire. These reservations were held sufficient to characterize the demise as a sublease and not an assignment. The right to. possession on the last day would leave a fragment of that day of the term in the assignor, and was sufficient to create a technical reversion and thus prevent privity of estate between his lessee and the original lessor. The question of privity of estate between the original lessor and the lessee of his lessee depends upon whether the whole of the term of the original lessee became vested in his lessee, and the circumstances that the second lease reserves a different rent or a right of reentry for breach of condition are immaterial. Doe v. Bateman, 2 B. & A. 168; Wollaston v. Hakewell, 3 Scott N. R. 616; Prescott v. De Forest, 16 Johns. 159; Bacon Abr. Leases, 1, 3; Palmer v. Edwards, 1 Doug. 187; Smith v. Mapleback, 1 T. R. 441: Smiley v. Van Winkle, 6 Cal. 605; Lloyd v. Cozens, 2 Ash. 138; 2 Preston Con. 124; Taylor Landl. and Ten. (7th ed.), § 109: 1 Wash. Real Prop. 515, n. 6; Collins v. Hasbrouck, 65 N. Y. 157, distinguished. The cases which hold that where a lessee sub-leases the demised premises for the whole of his term, but his lessee covenants to surrender to him at the end of the term, the sub-lease does not operate as an assignment, proceed upon the theory that by reason of this covenant to surrender, some fragment of the term remains in the original lessor. In most of the cases, and in the earlier cases in which this doctrine was broached, the language of the covenant was that the sub-lessee would surrender the demised premises on the last day of the term. In Piggott v. Marvin, 1 Paige, 412, by the original lease, the lessee had thirty days after the expiration of the lease to remove buildings from the demised premises. His assignee sub-leased for the residue of the term, and his lessee covenanted to surrender possession "on the last day of the term." In Post v. Kearney, 2 N. Y. 394, the covenant of the sub-lessee was that "on the last day of his term he would surrender the possession of the demised premises to his lessor." Id. 395.

Some fragment of that last day was therefore reserved to the original lessee, for he was entitled to the surrender during some portion of the last day. This was held sufficient to establish a techinical reversion in the original lessee and thus prevented a privity of estate from arising between his lessee and the original landlord. The same theory has been subsequently adopted in cases where the language of the covenant has been that the second lessee would surrender to his lessor at the expiration of the term of the sublease, without adverting to any distinction. In Ganson v. Tifft, 71 N. Y. 48, 54, the sub-lease provided that at the expiration of the term, or other sooner determination of the demise, the lessee should surrender the demised premises to the lessor, and the court say: "This constituted a sub-lease of the premises, and not an assignment of the entire term." It is obvious that the covenant to surrender cannot, in the present case, have the effect which was given to it in the cases cited, for it was to surrender at the expiration of a term of ninety-nine years, the original lease being for only fifty years, and there is no theory upon which it it can be pretended that any vestige of that term or of any reversion therein remains in the lessor of the defendaut. The agreement to transfer the fee to the lessee did not merge the term of fifty years, nor prevent the relation of landlord and tenant subsisting between the original lessee or its transferee of the term, during its continuance. The lessee was to become entitled to the fee only in case it performed the covenants and paid the principal of the cost of the road, and the lease provides in terms that on such payment having been made, but not before, the rent reserved in the lease shall cease. The payment of this principal sum at the end of the fifty years, as well as of the other sums reserved, was by the very terms of the contract made a condition precedent to the vesting of the fee in the lessee. In this respect the case does not differ in substance from Bostwick v. Frankfield, 74 N. Y. 207. See also Prescott v. De Forest, 16 Johns. 159; Langford v. Seames, 3 Kay & Johns. 220. Oct. 4, 1886. Stewart v. Long Island R. Co. Opinion by Rapallo, J.

SURROGATE -DISPUTED CLAIM-REFERENCE-COMMISSION TO EXAMINE WITNESS IN ANOTHER STATE.

On a reference to determine the validity of a disputed claim against the estate of a decedent, by consent and with the approval of the surrogate, as provided by the Revised Statutes, a commission may issue to take the testimony of a witness out of the State. The power to issue a commission to take testimony out of the State depends entirely upon statutory provisions, and is regulated now by section 888 of the Code of Civil Procedure, which is in substance a re-enactment of a like provision of the Revised Statutes. Section 888 provides for the issuing of such a commission only "where an issue of fact has been joined in an action pending in a court of record." The appellant contends that this reference was not an action but a special proceeding, citing Roe v. Boyle, 81 N. Y. 305, 308, and Mowry v. Peet, 88 id. 453, and that consequently the power to issue a commission in an action did not extend to it. Roe v. Boyle decided that such a reference being a special proceeding, an appeal from an order made therein was governed by the provisions of the Code expressly applicable to orders in special proceed ings. In Mowry v. Peet, it was held that in such a proceeding there was no power in the referee or in the court to render an affirmative judgment against the claimant on a counter-claim for the reason that on such a reference the only question submitted to the referee was whether the claimant had a just claim against the estate of the deceased over and above all offsets, and although in trying and adjudicating upon

those matters which were within the scope of the reference, the statute (2 Rev. Stat. 88, § 36) conferred upon the referee and the court the same powers as if the reference had been made in an action, yet the proceeding was not an action and no power was given to render an affirmative judgment for the executors against the claimant or to certify a balance in their favor. As to the powers of the court and referees in such a proceeding with respect to the determination of the matter in controversy, the terms of the statute are very broad. Section 36 provides for the entry of a rule in the Supreme Court or Court of Common Pleas referring the matter in controversy, and section 37 provides that "the same proceedings shall be had in all respects, the referees shall have the same powers, * * * as if the reference had been made in an action in which such court might by law direct a reference, ," and the judgment of the court on the report of the referees shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process. We think this provision is sufficiently broad to authorize the issue of a commission to take testimony out of the State. The necessity for such process is quite as great as in an action, and neither the executor nor the claimant should be deemed to have forfeited that advantage by consenting to such a reference. It is to a certain extent compulsory so far as costs are concerned. § 41. The case of Wood v. Howard Ins. Co., 18 Wend. 646, and Matter of Whitney, 4 Hill, 533, are cited as authorities for the proposition that the provision that in cases of reference of disputed claims against executors, etc., the same proceedings shall be had in all respects and the referees shall have the same powers as if the reference had been made in an action (2 Rev. Stat. 89, § 37) is not sufficient to authorize the issuing of a commission. We do not think that the cases cited sustain the proposition. The references in those cases were governed by the statute in relation to the powers and duties of trustees and assignees of absconding and insolvent debtors. 2 Rev. Stat. 40. That statute authorized the reference of controversies relating to demands against or debts due to the debtor, and it provided (2 Rev. Stat. 45, § 24), that the referees so appointed should have the same powers as referees appointed by the Supreme Court in personal actions. That provision clearly did not affect the power of the court to issue a commission. It related solely to the powers of the referees. The statute in respect to references of disputed claims against executors, etc., is much more comprehensive. It not only provides that in cases of such references the referees shall have the same powers, but it contains the further express provision that "the same proceedings shall be had in all respects as if the reference had been made in an action. We think this includes the proceeding by commission to obtain the testimony of absent witnesses. Oct. 4, 1886. Paddock v. Kircham. Opinion by Rapallo, J.

ABSTRACTS OF VARIOUS RECENT DE CISIONS.

CONFLICT OF LAWS INSOLVENT DISCHARGE IN ANOTHER STATE.-A discharge under the insolvency laws of Massachusetts is not a bar to the recovery upon a contract made in that State, when it appears that it was to be performed elsewhere, and the plaintiff was not a resident of the State at the commencement of the proceedings. The insolvency laws of Massachusetts have no operation beyond the limits of the jurisdiction of that State, and the defendant's debt to the plaintiffs was not discharged by the insolvency pro ceedings unless the creditors were citizens of that State

at the time of the proceedings, or voluntarily submitted to the jurisdiction and assented to the discharge. Baldwin v. Hale, 1 Wall. 223; Bank v. Butler, 45 N. H. 236; Dunlap v. Rogers, 47 id. 281; Kelly v. Drury, 9 Allen, 27. The law of Massachusetts, under which the discharge was granted, provides that the debtor shall be discharged from all debts provable and founded on any contract made within the State, and to be performed there' or due to any person resident therein at the time of the first publication of notice of the proceedings. In this case Atkinson's contract was not to be performed in the State, nor was the creditor Norris, who is sole owner of the claim here prosecuted at the time the insolvency proceedings commenced a resident there. The certificate of discharge does not in terms undertake to release the debtor from his obligation to pay a debt due a citizen of another State, but limits the discharge to debts due to persons who are residents within the Commonwealth on the day of the first publication of notice of the proceedings. Neither by the certificate of discharge, nor by the insolvent laws of Massachusetts (Bell v. Lamprey, 57 N. H. 168), nor by the general law was Atkinson discharged from the debt, and the certificate of discharge is no bar to the plaintiff's right of recovery. N. H. Sup. Ct., July 29, 1886. Norris v. Atkinson. Opinion by Allen, J.

CONSTITUTIONAL LAW-INFORMATION.-The Legislative Assembly of the Territory, by a law which was approved March 12, 1885, provided for the prosecution of crimes, misdemeanors and offenses by information. The validity of this law is the question presented here. "The legislative power of every Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States." Section 1851, Rev. Stat. U. S. This limitation upon the legislative power of the Territories is the organic law which must govern them. A law of the Territory which is not consistent with the Constitution of the United States is beyond its powers, aud invalid. Again: "The Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within all the organized Territories." etc., "as elsewhere in the United States." Section 1891, Rev. Stat. U. S. The Territories are under the complete control of Congress. "The Congress shall have power to dispose of and make all need ful rules and regulations respecting the Territories." Section 3, art. 4, Const. U. S. The fifth amendment to the Constitution of the United States, which provides that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," must be held to reach as far as the Congress has power to legislate, and to embrace the whole jurisdiction of the acts of Congress. Clearly this includes the Territories. In the case of Scott v. Sandford, 19 How. 449, 451, it was declared by the court that the bill of rights of the Federal Constitution protects and defends a citizen of the Territory. "The Federal government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any rights which it has reserved." And if Congress itself cannot do that, "if it is beyond the powers conferred on the Federal government, it will be admitted, we presume, that it could not authorize a Territorial government to exercise them. It could confer no power on any local government established by its authority to violate the provisions of the Constitution." Prosecution for infamous offenses by indictment by a grand jury is as firmly guaranteed by the Constitution as the right of trial by jury. Congress may not take away this right; a fortiori, the Territories may not. A crime punishable by imprisonment for a term of years at hard labor is an "infamous crime." Ex parte Wilson,

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DAMAGES INJUNCTION-COUNSEL FEES.-As to the allowance to plaintiffs of counsel fees paid by them in procuring a dissolution of the injunction, whatever may have been held by other tribunals, we consider that by the United States Supreme Court and by our own Court of Appeals it has already been decided that such an expenditure cannot be recovered for in a suit on an injunction bond. The case of Wallis v. Dilley, 7 Md. 237, is conclusive. In that case the defendant's prayer was, "that the plaintiffs are not entitled to recover upon the bond in suit for any counsel fees which they or any of them may have proven themselves to have paid for the defense of their interests in the equity proceedings offered in evidence." language covers fees paid for procuring the dissolution of the injunction. The court says this prayer should have been granted, and explicitly adds: "Whatever may be the justice of the rule, it seems to be well established that on all matters arising ex contractu, the successful party is not entitled to recover the fees which he may have paid his counsel," and refers to Day v. Wentworth, 13 How. 363. The case of Oelrichs v. Spain, 15 Wall. 211, was a case in equity to enforce liabilities for damages arising under certain injunction bonds and to marshal assets. In considering the report of the master and the decree of the report below, the Supreme Court says: "We think that both the master and the court erred in allowing counsel fees as a part of the damages covered by the bonds." The court then cites the case of Day v. Wentworth, as was done by this court in 7 Mo. in support of the position, and says: "The point here in question has never been expressly decided by this court, but is within the reasoning of the case last referred to (13 How. 370), and we think substantially de termined by that adjudication, in debt, covenant and assumpsit damages are recovered, but counsel fees are never included. So in equity cases where there is no injunction bond, only the taxable costs are allowed to the complainant. The same rule is applied to the defendant, however unjust the litigation on the other side, and however large the expenses to which he may have been subjected. The parties in this respect are on a footing of equality. * We think the principle of disallowance rests on a solid foundation, and that the opposite rule is forbidden by the analysis of the law and sound public policy." Md. Ct. App., July 15, 1886. Wood v. State. Opinion by Ritchie, J.

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EVIDENCE-EXPERT-OPINION AS TO NEGLIGENCE.— This cause involved the question of care, or the want of it, by the defendant in the performance of the service he had engaged to perform for the plaintiff, and that was the real issue in the case. An hypothetical question containing the facts that the defendant claimed had been proved on the trial was put to the witness Rohu, an expert witness for the defendant, as follows: "Is that the ordinary, careful, prudent and safe manner [of performing the service?]" The plaintiff objected to the question, and his objection was overruled, aud the witness answered "Yes." The plaintiff appealed. The question was clearly improper. This question and the answer substituted the opinion of the witness for the opinion or judgment of the jury. It was so held by this court in Oleson v. Tolford, 37 Wis. 327. The question disapproved in that case was, "What would be the chances for a stagecoach to tip over, being driven by an ordinarily careful, prudent driver?" This was to be answered from the witness' knowledge of the condition of the road.

The question called upon the witness to state his couclusion from the facts stated, which it was the province of the jury only to draw. An expert must give an opinion upon facts. He may be asked whether certain things were properly or skillfully done, but not whether the defendant was guilty of want of ordinary care or of negligence in the doing of such things. "When scientific men are called as witnesses they cannot give their opinions as to the general merits of the cause, but only their opinions upon the facts proved." 1 Greenl. Ev., § 440. It would be improper to ask an expert witness whether a certain act was an act of insanity. Rex v. Wright, Russ. & R. 456. "The ques

tion of due care or negligence is for the jury. The witness cannot be asked whether a party to a suit exercised due care" (Hopkins v. Railroad Co., 78 Ill. 32), "or whether a person is a careful driver." Morris v: East Haven, 41 Conn. 252; 1 Greenl. Ev., § 441, note b. Wis. Sup. Ct., Sept. 21, 1886. Selliger v. Bastian. Opinion by Orton, J.

EXTRADITION-INTERSTATE - ESCAPE.-The appellant committed a felony in Michigan, and fled to Indiana, where he committed another felony, for which he was indicted, arrested and imprisoned. While he was in prison a requisition from the governor of Michigan was delivered to the governor of Indiana, who issued his warrant. After this warrant was issued the

appellant escaped and fled to Ohio, whereupon a requisition was obtained, and on a warrant issued by the governor of Ohio, the appellant was brought back to the prison from which he had escaped, and after a time the prosecutor entered a nolle prosequi. Held, that the appellant was rightfully surrendered to the agents of the State of Michigan. It would be an unsubstantial refinement to hold that the escape from jail and flight to Ohio deprived the governor's warrant of force, and required our officers to permit the appellant to again flee to that or some other State. We are not dealing with a case in which Indiana seeks to try a man for a violation of an Indiana law, nor are we dealing with a case where the officers of the State have brought a man within our territory for the purpose of subjecting him to the demands of another State. On the contrary, we have before us a case where the accused had voluntarily come into our State, was arrested for a violation of our laws, was imprisoned in one of the jails of the State when the demand reached our officers, and had succeeded in getting out of our territory by his escape from jail and flight to another jurisdiction. The fugitive was voluntarily in Indiana when our governor issued the warrant. He was not brought here to make that warrant operative, for he had come here by his own voluntary act. The Michigan authorities now demand him, and all that Indiana does in surrendering him is to yield to the demand of a sister State a fugitive who was voluntarily in our State before that demand reached its officers. A case is referred to by Mr. Spear as reported in Burn's Justice, where in was held: "Where a defendant is brought into a State as a fugitive from justice after conviction and pardon, he cannot be surrendered to the authorities of another State as a fugitive, but must be allowed an opportunity to return to the State in which he is domiciled." Spear Extr. (2d ed.) 558. We cannot ascertain the facts of that case, but we know that it was the decision of the Court of Quarter Sessions, and therefore of but little value as an authority. So far as we can judge of the case, it is different from the present, as it does not there appear that when the demand from the sister State reached the State to which it was addressed, the accused was confined to jail for an offense committed after he had voluntarily come into the State. This we regard as an essential fact exerting an important influence in the

case. But conceding that the case is directly opposed to our views, it is difficult, if not impossible, to reconcile it with the decision in Dow's case, 18 Penn. St. 37, where it was said by the court, speaking through one of the ablest judges that ever occupied its bench, Gibson, C. J., that "a judge at the place of arrest could not be bound to discharge a prisoner proved to have fled from a well grounded accusation of murder." The decision in People v. Sennott, 20 Alb. L. J. 230, is here strongly in point, in support of our conclusion, although the case before us is a stronger one against the accused than was that; for there the accused was not in the State of Illinois by his voluntary act when the warrant upon the requisition reached the hands of the sheriff, while here the fact is that at the time the governor of Indiana issued his warrant this appellant was in this State, not brought here upon compulsory process, but here by his own act. The fact just mentioned exerts an important influence upon this case, and had it existed in the Illinois case, would have disarmed Mr. Spear's criticism of much of its force. The same case came before Judge Drummond, of the United States Circuit Court, and he decided as the State court had done. 12 Chic. Leg. News, 115. We have no doubt that the authority of these decisions, waiving all other considerations except the rank and the standing of the courts, is much weightier than that of the Quarter Sessions of Philadelphia. Our conclusion is further supported by the decision of the Court of Appeals of New York in Adriance v. La Grave, 59 N. Y. 110; S. C., 17 Am. Rep. 217, where this statement of the law was approved: "We admit in this country, that if a man is bona fide tried for the offense for which he was given up, there is nothing to prevent his being subsequently tried for another offense, either antecedently committed or not. Clark Extr. 90." In this instance the agents of the State of Michigan were not guilty of any wrong, for they are simply attempting to enforce a warrant issued by the governor of Indiana at a time when the fugitive from Michigan was in Indiana by his own act; and Indiana is not acting in bad faith, for there is no effort to try the petitioner for a crime different from that upon which he was extradited. Ind. Sup. Ct., June 26, 1886. Hackney v. Welsh. Opinion by Elliott, J.

FALSE IMPRISONMENT-DAMAGES-MISTAKEN IDENTITY.-Where a person was imprisoned by mistake for another, such mistake may be considered in mitigation of damages and on the question of malice; but it will not justify the imprisonment. Hayes v. Creary, 60 Tex. 445. Appellant's counsel challenge the doctrine announced in that case, but the cases cited do not support their views. In Holly v. Mix, 3 Wend. 351, there was no mistake of one person for another, and the party arrested, it was claimed, was suspected to be guilty of a crime known to have been committed. In the case before this court no persons engaged in the arrest of the plaintiff are shown to have entertained any suspicion whatsoever against him. In Rohan v. Sawin, 5 Cush. 285, there was no mistake. The person imprisoned was supposed by the officer, upon reasonable grounds, to be guilty of a crime. Mitchell v. Wall, 111 Mass. 493, was a suit against the instigator of the prosecution in which the plaintiff was imprisoned. Malice and want of probable cause had to be averred. Defendant admitted that he had prosecuted the wrong person, but claimed that he honestly mistook the plaintiff for the guilty party, there being between them a strong resemblance. The suit was in effect for malicious prosecution, and of course the plaintiff had to allege and prove malice and want of probable cause. In this case the plaintiff was not prosecuted at all. He was not suspected of any offense. He was arrested without warrant-without a suspicion

against him. In Leddy v. Crossman, 108 Mass. 237, the plaintiff was arrested in the actual commission of an offense. He was assaulting the officer, whom he sued for damages. The citation in 1 Hill. Torts, 217, § 22, note a, has reference to the class of cases of which Mitchell v. Wall, supra, is an example. The distinction between those cases and the one now before the court is pointed out by that author on pages 414 and 415 of the same volume. In one case there is a trespass, no matter how innocently the parties acted in arresting the wrong person; in the other, the arrest is not a trespass, no matter how malicious and groundless the prosecution in its beginning. If an execution against A. is levied upon the goods of B., the officer is a trespasser. If a warrant against A. is executed by the arrest of B., the officer is a trespasser. If a crime has been committed, and there is ground for suspecting A., these suspicions cannot justify the imprisonment of B. The doctrine of Hays v. Creary is supported by Wait, cited in the opinion, who cites Addison on Torts, 579; and also by Waterman on Trespass, §§ 339 and 352, and by sound legal principles. Tex. Sup. Ct., June 1, 1886. Formwalt v. Hylton. Opinion by Robertson, J.

NEGLIGENCE-PASSENGER ON CAR OF ONE COMPANY INJURED BY CAR OF ANOTHER COMPANY.-The tracks of B., a horse car company, for a short distance on a portion of its line, ran in so close proximity to the tracks of C., another company, as to cause the cars of the two to rub should they chance to pass each other upon this portion of the lines. In order to avoid which it was customary for the drivers of the two companies when approaching this point about the same time to recognize a right of way existing in the car first reaching the close part of the lines. A. was being carried as a passenger upon a westward bound car of B. when it passed on to his part of the tracks; he had his arm resting upon the window sill, with his hand grasping the upright of the window frame, the fingers outside of the car; an eastward bound car of C. entered upon the narrow part of the line at the same time; whilst the two cars were attempting to pass, the fingers of A. were caught between them; his arm was dragged out and broken. In an action to recover damages against C., held, that A. was bound to show B. had committed no act of negligence, and that C. alone was guilty of the negligence that caused the injury. Penn. Sup. Ct., April 5, 1886. People's Passenger Ry. Co. v. Lauderbach. Opinion per Curiam.

PARENT AND CHILD-MOTHER DIED IN DAUGHTER'S HOUSE-FUNERAL EXPENSES- NECESSARIES.-When a mother dies in the household of her daughter it is the duty of the latter to provide for her dead parent a suitable burial. In the absence of ability on the part of the husband of the daughter to pay the reasonable expenses attending the funeral, if the daughter contracts therefor she possesses the legal ability to bind herself to pay for them as for necessaries. Penn. Sup. Ct., April 5, 1886. Robinson v. Bair. Opinion per

Curiam.

RECEIVER-DISSOLUTION OF PARTNERSHIP-RIGHT TO SUE. A receiver of partnership property, appointed by the court in an action to dissolve the partnership, with authority to bring suits to collect debts due the firm, may maintain such actions in his own name. The receiver is appointed for the benefit of all concerned. He is the representative of the court, and of all parties interested in the litigation wherein he is appointed. He is the right arm of the court in exercising the jurisdiction invoked in such cases of administering the property. The court can only administer and dispose of it through a receiver. For this reason all suits to collect or obtain possession of the

property must be prosecuted by the receiver, and the proceeds received and controlled by him alone. If the suit be nominally prosecuted in the name of the original owners of the property, it is an inconvenient as well as useless form; for they had no discretion as to instituting the suit, and no control over its management, and no right to the possession of the proceeds. The receiver, as an officer of the court which has taken control of the property, is for the time being, and for the purpose of the administration of the assets, the real party in interest in the litigation. There is no reason therefore why the suit should not be instituted in his own name. Hence in many States it is so provided by statute. But in many jurisdictions, in the absence of such statute, it has been held that the courts may, by virtue of their inherent equity powers, authorize their receivers to institute suits in their own names. Davis v. Gray, 16 Wall. 203; Hardwick v. Hook, 8 Ga. 354; Leonard v. Storrs, 31 Ala. 488; Wray v. Jamison, 10 Humph. 186; Tillinghast v. Champlin, 4 R. I. 173. Whatever technical reasons may have existed for refusing to permit common-law receivers to sue in their own names, they exist no longer, under our Code. As an officer of the court, intrusted with the administration of the partnership assets, we do not see why plaintiff has not such a special property in them as to constitute him "the real party in interest," within the meaning of the statute. But inasmuch as, in his official capacity, he acts as "the trustee of an express trust," he has in any event a right to maintain this action on that ground. See Person v. Warren, 14 Barb. 488; Thomas v. Bennett, 56 id. 197. Miun. Sup. Ct., June 25, 1886. Henning v. Raymond. Opinion by Mitchell, J.

SALE-WARRANTY-IMPLIED CONDITION-PARTICULAR PURPOSE.-A contract for the sale of a specified lot of logs at a stated price per thousand feet to be transported by the vendor to a distant place of delivery, and there measured, delivered and paid for, is an executory, and not an executed sale. Martin v. Hurlbut, 9 Minu. 142 (Gil. 132); Sherwin v. Mudge, 127 Mass. 547; Lingham v. Eggleston, 27 Mich. 324; Kein v. Tupper, 52 N. Y. 550; Devine v. Edwards, 101 Ill. 138; Olson v. Mayer, 56 Wis. 551; Nicholson v. Taylor, 31 Penn. St. 128. The contract being executory, the assumed implication that the property was of a merchantable quality is to be treated as a condition rather than a warranty. As to defects which were obvious upon inspection, and which were, or might have been, discovered when the contract was performed by the delivery of the logs; and the receiving and retaining of the logs under the contract, with knowledge of such defects, had the effect of an acceptance of the property delivered, as a performance of the executory contract, and a waiver of the implied condition. Haase v. Nonnemacher, 21 Minn. 486, and cases cited; Maxwell v. Lee, 27 N. W. Rep. 196; Gaylord Manuf'g Co. v. Allen, 53 N. Y. 515; Locke v. Williamson, 40 Wis. 377; Olson V. PolMayer, 56 id. 551; lock Cont. 464. The fact alleged, that the defendant "complained" aud 'objected' that the logs were unsound, would not affect the application of this principle to this case, in the face of the fact that he did receive the property delivered under this contract, and retained and used it without making any other contract. Olson v. Mayer, supra. No warranty was implied merely from the fact that when the defendant contracted for the purchase of this specific property, then existing, the plaintiff knew that the defendant intended to use it for the manufacture of lumber. Cosgrove v. Bennett, 32 Minn. 371; Whitmore v. South Boston Iron Co., 2 Allen, 52, 58; Hight v. Bacon, 126 Mass. 10; Port Carbon Iron Co. v. Groves, 68 Penn. St. 149; Mason v. Chappell, 15 Grat.

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