5. Defendants in ejectment having produced a regular chain of title under
a deed from a grandson of the original owner of a lot in Rhode Island,
including the land in controversy, which was executed in 1768 and
recorded soon afterwards in the land records of the town in which it
was situated; and having shown that the ancestors in title paid the
taxes on said lot for twenty years preceding 1805, and that afterward,
up to the trial of the action in 1882, a period of seventy-seven years,
they or their ancestors in title had uninterruptedly paid the taxes on
the lot; and having shown an entry in 1835 by their ancestor upon the
lot under a deed, for the purpose of quarrying a ledge of rock running
through it, and the quarrying of the ledge with occasional intervals
from 1846 to the commencement of this action in 1874, a period of
twenty-eight years, the said entry being made with claim of title to
the whole lot. Held, in an action brought by the heirs of the devisee
of the original proprietor, under a will executed in 1749, and pro-
bated in 1756, none of whom had made any claim to the premises for
three-quarters of a century after the death of the original proprietor,
under whose will they now assert title, nor paid taxes on the property,
nor after that time ever taken possession of the premises or paid taxes
upon them, that the jury might presume a deed to the grandson from
the original proprietor, or from his devisee, to quiet the possession of
the defendants claiming under such grandson; and that in making
such presumption the jury were not to be restricted to consideration
of what they fairly supposed actually occurred, but to what may have
occurred, and seems requisite to quiet title in the possessors. It is
sufficient that the evidence leads to the conclusion, that the deed
might have been executed, and that its execution would be a solution
of difficulties arising from its non-execution. Fletcher v. Fuller, 534.
6. Though a presumption of a deed may be rebutted by proof of facts
inconsistent with its supposed existence, yet, where no such facts are
shown, and the things done and the things omitted, with regard to
the property in controversy, by the respective parties for long periods
of time after the execution of the supposed conveyance can be ex-
plained satisfactorily only upon the hypothesis of its existence, the
jury may be instructed that it is their duty to presume such a convey-
ance, and thus quiet the possession. Ib.
7. Though as a general rule, it is only where the possession has been actual,
open, and exclusive for the period prescribed by the statute of limi-
tations to bar an action for the recovery of land, that the presumption
of a deed can be invoked; yet that presumption may properly be
invoked where a proprietary right has been exercised beyond such
statutory period, although the exclusive possession of the whole prop-
erty, to which the right is asserted, may have been occasionally inter-
rupted during such period if, in addition to the actual possession, there
have been other open acts of ownership. Ib.
8. The assessment of taxes on an entire parcel of real estate to the person
in possession under claim of title, and to his ancestors and privies in
estate, for over a hundred years, is powerful evidence of a claim of
right to the whole lot; and, taken in connection with the exclusive
working of a quarry on the estate for more than twenty years under
claim of title to the whole tract, by virtue of conveyances in which it
was described, may authorize a jury to infer continuous possession of
the whole, notwithstanding a temporary and occasional intrusion by
others upon a different part of the tract, which did not interfere with
the work. lb.
9. If rags sold as clean and free from infection, and fit to be manufactured
into paper, are proved to have been infected with the small-pox, and
to have caused it to break out in the buyer's paper-mill, whereby some
of the workmen died, others were disabled from working, and the
buyer paid certain sums to support those so disabled, and was obliged
to run his mill short-handed, and lost a considerable part of a profit-
able trade; and the seller testifies that he bought the rags in a region
where he knew the small-pox was epidemic, from any and all dealers,
not knowing where they were collected, and that they were assorted
and baled up under his instructions; and falsely testifies that the rags
sold had been baled up in his warehouse for a year before, and had no
disinfectants in them; this is sufficient evidence to be submitted to
a jury of a breach of warranty or a fraudulent representation on the
part of the seller, and of damages to the buyer. But the court may
properly decline to permit the buyer to testify in general terms what
he estimates the amounts of his damages to be, without stating the
items of damage, or any facts upon which his opinion is based. Du-
shane v. Benedict, 630.
10. The testimony of witnesses, not shown to be experts, that the infected
condition of rags was the cause of a breaking out of the small-pox is
incompetent. Ib.
See ADMIRALTY, 1, 2, 3;
LOCAL LAW, 4, 12, 14;
PATENT FOR INVENTION, 2;
TEXAS LAND GRANTS, 1, 3, 6, 9.
1. A bill of exceptions should not contain the whole charge of the court
to the jury, but should only state distinctly the several matters of law
excepted to. Phænix Life Ins. Co. v. Raddin, 183.
2. A bill of exceptions cannot be sustained to an instruction or to a refusal
to instruct in matter of law, without showing that there was evidence
to which the instruction given or refused was applicable. Ib.
The authority of the head of an Executive Department to issue orders
and regulations under directions of the President to have the force of
law is subject to the condition that they conflict with no act of Con-
gress; and an order by the Secretary of the Navy that a service shall
not be a sea service which Congress has directed shall be a sea service
is invalid. United States v. Symonds, 46; United States v. Bishop, 51.
EXECUTOR AND ADMINISTRATOR.
A clause in a will gave to C the interest of $4000 for life, "the said sum"
of $1000' to be equally divided, at C's death, between M, S, and J, or
so many of them as should then be living. The will appointed P
executor for New York, and G and D executors for Michigan. G
and D, before the death of C, executed a paper and recorded it in
Michigan, by which they, as executors, "set apart for the benefit of"
C and "to be held" by them "in trust for the purpose of paying"
said interest, and, upon the death of C, "for distribution" among M,
S, and J, a bond and mortgage for $4000, on land in Michigan, given
to the testator in his lifetime, which was overdue seventeen months
when the paper was executed. None of the legatees assented to this
proceeding or ratified it or waived their rights, nor was it authorized
by any order of any court. C having died without the full interest on
the $4000 having been paid to him, his administrator, and M, S, and
J, filed a bill in equity in Michigan against G and D, as executors,
praying for an accounting and for the payment of the legacies. The
executors set up as a defence that the bond and mortgage were the
sole fund for the payment of the legacy, and that the general estate
was not liable for it; Held, that the paper was revocable at any time,
and did not amount to the decisive and irrevocable act which must
exist to have the effect to transmute the property. Sherman v.
Jerome, 319.
See LIMITATION, STATUTES of, 2, 3.
It was the custom in the United States courts in Massachusetts, from 1839
to December, 1884, known and approved by the judges, for the clerk
to charge $3 as fees in naturalization proceedings. The clerk of the
District Court never included those fees in his returns. That fact was
known to the judges to whom his accounts were semiannually exhib-
ited, and by whom they were passed without objection in that particu-
lar. Relying on that custom, and believing that those fees formed no
part of the emoluments to be returned, the clerk of the District Court
appointed in 1879 did not include those fees in his accounts. This
was known to the district judge when he examined and certified the
accounts, and his accounts so made out, to July, 1884, were examined
and adjusted by the accounting officers of the Treasury. Under a
rule made by the District Court in 1855, the clerk had charged and
received the $3 as a gross sum, for examining, in advance of their
presentation to the court, the application papers, and reporting to the
court whether they were in conformity with law; and had made no
division for specific services, according to any items of the fee bill
in §§ 823 et seq. of the Revised Statutes. In a suit brought in Decem-
ber, 1844, on the official bond of the clerk, against him and his surety,
to recover the amount of the naturalization fees; Held, that the pro-
vision in § 823, taken from § 1 of the act of February 26, 1853, c. 80
(10 Stat. 161), that the fees to clerks shall be "taxed and allowed,"
applies, prima facie, to taxable fees and costs in ordinary suits between
party and party, prosecuted in a court; and there is no specification
of naturalization matters in fees of clerks. United States v. Hill, 169.
FINAL DECREE.
FORTUITOUS EVENT.
See LANDLORD AND TENANT, 2.
See CHATTEL MORTGAGE;
LIMITATION, STATUTES OF, 1;
EQUITY PLEADING, 1.
FRAUDULENT REPRESENTATIONS.
See ASSUMPSIT;
EVIDENCE, 9, 10.
GARNISHEE.
A garnishee has a right to set up any defence against the attachment pro-
cess which he could have done against the debtor in the principal
action; and if the debtor be insolvent, and owes the garnishee on a
note not due for which he has no sufficient security, he is not bound
to risk the loss of his debt in answer to the garnishee process.
Schuler v. Israel, 506.
HABEAS CORPUS.
See JURISDICTION, A, 4, 6; B, 1;
CRIMINAL LAW, 2.
1. While a creditor who finds specific property of his debtor in the hands
of the debtor's wife to whom it had been assigned by the debtor be-
fore bankruptcy may follow it and have it appropriated to the pay-
ment of his debt, a judgment in personam for its value cannot be taken
against her in case the property itself cannot be found. Huntington
v. Saunders, 78.
2. In a suit in equity by a wife against a life insurance company and her
husband, in the Circuit Court of the United States in Kentucky, to
recover, as assignee of her husband by a written assignment, the
amount insured by a policy issued by the company in favor of the
husband and his assigns, on the life of a debtor of his, for $20,000,
the husband having, after the date of such assignment and before the
death of the debtor, delivered the policy to the company, with a writ-
ten assignment by him to it, indorsed on the policy of "all right and
title to the within policy," and expressing a consideration of $4000,
and received the $4000, the Circuit Court having dismissed the bill,
this court, on appeal, affirmed the decree, on the ground that the as-
signment to the wife was not satisfactorily proved to have been made
or delivered before the transaction between the husband and the com-
pany. Roberts v. Phoenix Life Ins. Co., 86.
See DEED, 1, 2, 3;
EQUITY PLEADING, 1.
1. The question whether either of the counts in an indictment charges an
offence under the laws of the United States, is too vague and general
to be certified in a Certificate of Division of Opinion. United States
v. Northway, 327.
2. An indictment charging that the defendant, "as president and agent"
of a national bank, did the acts forbidden by Rev. Stat. § 5209, does
not vitiate the counts in which he is so described. ib.
3. In an indictment, under Rev. Stat. § 5209, for wilfully misapplying the
funds of a national bank, it is not necessary to charge that the moneys
and funds alleged to have been misapplied had been previously in-
trusted to the defendant; since a wilful and criminal misapplication
of the funds of the association may be made by its officer or agent
without having previously received them into his manual possession. Ib.
4. In charging, in an indictment, the president of a bank with aiding
and abetting its cashier in the misapplication of the funds of the
bank, it is not necessary to aver that he then and there knew that the
person so aided and abetted was the cashier. Ib.
5. An indictment which charges in substance that the defendant was pres-
ident and agent of a certain national bank theretofore duly organized
and established, and then existing and doing business, under the laws
of the United States, and that, being such president and agent, he did
then and there " wilfully and unlawfully and with intent to injure the
said national banking association, and without the knowledge and
consent thereof, abstract and convert to his own use certain moneys
and funds of the property of the said association of the amount and
value," &c., sufficiently describes and identifies the crime of abstract-
ing the funds of the bank created by Rev. Stat. § 5209. Ib.
6. An indictment which charges that the defendant" was then and there
president and agent of a certain national banking association, to wit:
|