See EVIDENCE, 30; GIFTS, 4.
See EQUITY PLEADING AND PRACTICE, 14.
See LAND GRANTS, 9; PARTITION, 6; RAILROADS, 8.
See ARBITRATION, 1-4; DEEDS, 4; HIGHWAYS, 7-10; REGISTRY,
1-6.
See EQUITY PLEADING AND PRACTICE, 21-26.
See PRACTICE IN SUPREME COURT, 9.
REGISTER OF DEEDS.
See REGISTRY, 2-5.
1. The record of a deed with a defective acknowledgment is not
evidence of the original instrument, but under the curative act
of 1861 (Sess. L., 1861, p. 16) such record operates as a notice of
the rights secured by the deed, where the instrument was made
in good faith and on valuable consideration, and intended to op.
erate as a conveyance.-Brown v. McCormick, 215.
2. For the purpose of determining how far the absence on the reg-
istry of a deed, of any mark or device indicating a seal, or of
any statement of the register that the original was sealed, would
affect the validity of the record entry as evidence of title, the
statute governing the execution and sealing of deeds, and that
governing their registry, at the time, are regarded as in pari
materia.-Starkweather v. Martin, 471.
3. Under the laws in force in 1830 upon these subjects, the absence
of any trace of the "device by way of seal" which a grantor
was authorized to adopt as a sufficient seal, upon the record of a
deed, is not sufficient to warrant an inference that the original
was unsealed, or to justify the rejection of the record as evidence.
-Ibid.
Where such record entry is made by the proper officer and in
the appropriate place for the registry of deeds, under a law per-
mitting the registry of only sealed instruments, and the instrument
is in the form of a warranty deed purporting to be acknowledged
and dated at a time when it was the common and lawful course
to seal conveyances and contrary to official duty to take the
acknowledgment unless the conveyance was sealed, and where
the conclusion, attestation clause, and certificate of acknowledg.
ment of the instrument, all speak of it as under seal, it will be
presumed that the original was sealed.-Ibid.
5. Whether or not it was the duty of the register under the law as
it then stood, to put something of his own upon the record to
indicate that the paper he recorded was sealed, his omission to
do so will not overcome the presumption in such a case that the
instrument itself was sealed.-Ibid.
An objection to the record of a power of attorney to sell lands,
that the law did not authorize such an instrument to be recorded
"among" the records of deeds, is construed to mean that the
law made no provision for the registry of powers in the books
of deeds, and is held to be completely answered by the statute
(Comp. L., § 4238).—Morse v. Hewett, 481.
See ARBITRATION, 4; GIFTs, 4.
RELIGIOUS SOCIETIES.
See EVIDENCE, 14-19.
REMEDIAL STATUTES.
See PROMISSORY NOTES, 1-1.
Error, and not certiorari, is the proper remedy to review a joint
judgment against a principal and his sureties upon a bond on an
appeal of the cause from a justice's court.-Evers v. Sager, 47.
See LACHES, 2; PARTITION, 9; TRANSFER OF CAUSES, 1; TRES-
PASS, 1; WRIT OF ERROR, 1, 2.
The act of 1861 (Sess. L. 1861, p. 16) was not repealed by the act of 1867
(Sess. L., 1867, p. 139) adding new sections to the general chapter
on alienation by deed. Repeals by implication are not favored.
-Brown v. McCormick, 215.
1. In an action of replevin a defendant whose lien under a chattel
mortgage upon the goods replevied is sustained, cannot, in any
event, recover beyond the value of the goods; and in the absence
of any proof of such value, the appraisal made under the writ
will govern.-Walrath v. Campbell, 111.
Where the affidavit, writ and declaration in replevin before a
justice of the peace set forth the value of the property as less
than one hundred dollars, and the defendant has pleaded the
general issue, the fact that the plaintiff's own testimony shows
the value of the property to be more than one hundred dollars
does not oust the justice of jurisdiction; the question of jurisdic-
tion, as depending on the value of the property, if not closed by
the affidavit for the writ, was certainly not open under the gen-
eral issue.-Henderson v. Desborough, 170.
Whenever in a replevin before a justice, the defendant becomes
entitled to recover for the value of the property taken from him
on the writ at the instance of the plaintiff, the judgment for the
value and for damages in the aggregate is not limited to one
hundred dollars, but may be for the real amount proved by the
evidence, not exceeding five hundred dollars, the limit fixed by
our constitution.-Ibid.
In an action of replevin against the sheriff to recover possession
of certain lumber held by him by virtue of an attachment against
a third person, where the plaintiffs claim title by purchase from
the attachment debtor, and it appears that the purchase was by
written contract, and the question in dispute is whether the sale
had been completed before the levy of the attachment, the pro-
visions of the contract of purchase become important, and it is
error to admit parol evidence of the sale when the written evi-
dence is accessible.-Hatch v. Fowler, 205.
While the action of replevin is a possessory action, and, as a
general rule, one in the actual and undisputed possession of prop-
erty cannot be required, as against a mere intruder, to show
title; yet where, as in this case, the plaintiffs undertake to prove
title instead of possession, and set out by showing title in a third
person, and attempt to deduce it from him, and the evidence as
to possession is incidental merely to the question of title, the case
really turns upon whether there was a completed sale.-Ibid.
The mere delivery of a symbolical possession would not be con-
clusive of the question of title passing, nor of itself would it be
so significant as the fact that the quantity and amount to be
paid were not determined.—Ibid.
7. It was error to refuse to charge as requested that if the sale was
made by the attachment debtor to the plaintiffs, but they left the
lumber with him, and he acted with and treated it as his own,
such sale would be deemed fraudulent and void as against his
creditors; this request only laid down the rule established by the
statute (Comp. L., § 4703), and should have been given.-Ibid.
8. Where a sheriff has levied an attachment on lumber and duly
endorsed the levy on his writ and claimed afterwards to hold
the property by virtue thereof and refuses to give it up on
demand, it cannot be said that he has no such possession as jus-
tifies replevin because he has not removed the lumber or left any
one in charge of it, where there is no actual manual possession
in any one else.-Ibid.
9. A mortgagee of chattels cannot maintain replevin against an offi-
cer who has taken the goods from the possession of the mort-
gagor before foreclosure, under an execution against him, not-
withstanding the mortgage is past due and unpaid, so long as
the officer is proceeding in due course under the statute to a sale
of the mortgagor's interest.—Macomber v. Saxton, 516.
10. A stipulation in such a suit, that if the court should find the
defendant was lawfully entitled to the possession by virtue of
the levy, judgment should be rendered for the defendant for a
specified sum, is an admission of record that is conclusive and
supersedes all inquiry into the value of the defendant's interest,
and precludes the plaintiff from claiming that defendant's right
was one possessing only a nominal value.—Ibid.
11. In such a suit, submitted upon agreed facts and under such a
stipulation, the omission of the court below to respond to prop-
ositions of law submitted for special findings under rule 87,
worked no prejudice to the plaintiff, as upon the facts the right
of possession was lawfully in defendant, and consequently under
the stipulation no other judgment than that agreed upon could
be rendered.-Ibid.
See CHARGE TO THE JURY, 1; FRAUD, 2.
REPORT OF MASTER.
See EQUITY PLEADING AND PRACTICE, 20.
REPRESENTATIONS.
See EVIDENCE, 1-7.
REPRESENTATIVES.
See MUNICIPAL Corporations, 6-9.
The practice sometimes adopted in presenting requests to charge,
of clothing substantially the same proposition in various forms of
words, so shaded as to produce a first impression of a slightly
different meaning, criticised and condemned.—-Daniels v. Clegg, 32.
A request to charge which only differs from the instruction act-
ually given on the same subject in the general charge, in being
more verbose and less explicit and clear, may well be declined.—
Continental Ins. Co. v. Horton, 173.
Where an instruction requested is given with a modification con-
taining an element of error, and the request contained precisely
the same error, and it is not certain that it could have misled
the jury, the judgment will not be reversed on this ground, at
the instance of the party preferring the request.-Ibid.
The practice of asking a multitude of slightly varying charges in
an abstract form is criticised as being mischievous, and tending
frequently only to befog the jury.-Mich. Cent. R. R. Co. v. Cole-
man, 440.
See INSURANCE, 2; NEGLIGENCE, 4, 5.
RES GESTÆ.
See EVIDENCE, 2, 38, 39.
1. Resulting trusts, even before the statute abolishing them, were
not in harmony with our land system; and are not to be ex-
tended beyond the line of authority.- Waterman v. Seeley, 77.
2. To maintain a resulting trust there must have been an intention
to create it; and the proofs should show, beyond any doubt, the
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