fendants. Opinion by MORTON, J.-Bowman v. Hiller.

SLANDER-MITIGATION OF DAMAGES-EVIDENCE.-1. In an action for slander it is competent for the defendant, in mitigation of damages, to put in evidence slanderous statements made by the plaintiff to a third person concerning the defendant, and by such third person communicated to the defendant before the speaking of the slanderous words by the latter. 2. The whole of the conversation in which slanderous words are used may be put in evidence by the defendant as a part of the res gesta. Opinion by MORTON, J.— Walker. Flynn.

TRUSTEE AND CESTUI QUE TRUST-COMPENSATION-SALE OF TRUST PROPERTY.-1. An agreement between cestuis que trust, who are sui juris and competent to act, and a trustee whom they desire to have appointed, that, in consideration of his assuming the trust, he shall receive for his services a fixed sum per year, is not invalid, if made without fraud or any undue advantage taken of them, and may and should be considered by the court in determining the compensation which the trustee is entitled to charge. 2. Where a part of the trust estate consisted of shares of a certain railroad company, which were purchased by the creator of the trust before his death, and which, when they came to the hands of the trustee, were appraised at par; and it appeared that the company met with reverses and ceased to pay dividends, and the value of its stock gradually decreased until it became nearly worthless, and the rustee declined, though requested by the cestuis que trust, to sell the stock and convert the same into more profitable securities, it was held, that in determining whether he would sell this stock, all that was required of the trustee was that he should act with good faith and in the exercise of a sound discretion. Opinion by MORTON, J.-Bowker v. Pierce.

TORT-CONVERSION - HUSBAND AND WIFE— RULING. In an action of tort against the defendant, for the conversion of plaintiff's property, it appeared that the plaintiff bought a portion of the property, which was the stock of a livery stable, of third persons, with her own money, in good faith, and that the remainder was conveyed to her by her husband; that she allowed her husband to use said property in carrying on the business, for the use of which he agreed to pay her one-half of the profits of the business; that the attachments were made in several suits against her husband. The evidence as to which carried on the business was conflicting. The defendant requested the court to rule, as matter of law, upon the evidence, that the neglect of the plaintiff to file a certificate under St. 1862, c. 198 (providing that any married woman "doing business on her separate account" shall file a certificate setting forth the nature of the business, etc.), was a bar to her recovery in this case, and

that the property, although owned by her, was liable to be attached by her husband's creditors. The court declined so to rule, but submitted the case to the jury, and instructed them, among other things, that they would consider whether the business was that of the wife, or that of her husband; and that if they should find that the business was hers, then, although the property was hers, it would be liable to be attached by the creditors of her husband, and she could not recover in this action; but if it was her husband's business, and the property hers, she could recovThe jury returned a verdict for the plaintiff for the value of the property, which she had bought from third persons. Held, that the verdict imported a finding that the conveyance by the husband to the plaintiff was fraudulent as to his creditors, and that the business was carried on by him; that, therefore, the wife's property could not be attached by her husband's creditors; and that the court rightly refused to rule as requested by the defendant. Exceptions overruled. Opinion by MORTON, J.-Wheeler v. Raymond.

er.

SUPREME COURT OF ILLINOIS.

February 7, 1881.

SUBROGATION-TENANT IN COMMON PAYING MORTGAGE-INTEREST.-1. Where two persons purchased a tract of land, receiving a deed therefor, not in severalty, but to them in common, gave their joint notes for the unpaid purchase money, secured by their joint mortgage on the entire tract, and one of them died, so that the other was compelled to pay the whole amount of the notes and interest to save his own share in the land, it was held, that the party so paying off the incumbrance was entitled to contribution and to be subrogated to the rights of the mortgagee and to enforce the lien of the mortgage as to the money paid above his own proper share. 2. Where one of two tenants in common is obliged to pay off an incumbrance upon the entire estate to save his own interest therein, and the debt so paid by him is drawing ten per cent. interest on bill for contribution and to be subrogated to the rights of the holder of the incumbrance, he will be entitled to recover the same rate of interest. Affirmed. Opinion by WALKER, J.-Simpson v.Gardiner.

ec.

DEED-FORGERY - ESTOPPEL-TENANTS IN COMMON-CONTRIBUTION FOR IMPROVEMENTSCHANCERY PLEADING.-1. Nothing short of clear and satisfactory proof, convincing beyond a reasonable doubt, can overcome the proof of the exn of a deed afforded by the certificate of its acknowledgment. 2. When a forged deed, purporting to have been made in 1868 by one brother to the other, was duly recorded, and in 1872, the brother, whose deed had been forged, agreed with the other to rebuild the buildings on the property which had been burned, soon after which the lat

ter procured a large loan on the lots, giving a deed of trust thereon, and until some time in 1876, while the buildings were being erected, the former largely superintended their construction, and saw the trustee and agent of the lender from time to time examining the work to make advances on the loan as the work progressed towards completion, and paid contractors on checks drawn by the grantee out of the moneys so advanced, and when the buildings were completed, he drew leases in his brother's name, and collected rents for him, giving receipts in his brother's name, and placing the money to his brother's credit in the bank, which continued until 1876, and up to this time having never asserted any claim to the property, it was held, that by thus holding his brother out to the world as the sole owner, while the buildings were in progress, he was estopped to claim that his interest in the property should not be liable for his share of the cost of the improvements. 3. It is a familiar and elementary rule, that where & tenant in common makes necessary repairs on the property, necessarily purchases an incumbrance or outstanding title, or improves the property with the express or implied assent of his co-tenants, these all inure to the benefit of all the tenants, and the law requires each to contribute to the expense in proportion to his interest in the property. 4. All improvements placed on real estate by the owner while it is encumbered, inure to the benefit of the holder of the incumbrance, and their value can not be claimed against the lien, when they savor of the realty, but are subject to it. So, where one tenant in common, by the express assent of his co-tenant, places valuable buildings on the common property, and thereby acquires a lien on his cotenant's interest for a proportionate share of the cost of the improvement, it will be an accession to his interest, which will be subject to a deed of trust given by him on the property, and it will pass to the trustee to the same extent, in the same manner and for the same reasons that the improvements became liable to the lien of the trust deed. 5. The acts and conduct of a party claiming a deed purporting to be made by him is a forgery, before such deed is placed on record, can have no bearing on the question as to the genuineness of such deed, and can not be used to contradict his testimony that the deed is not his. 6. Where one of two brothers being tenants in common of certain real estate, sold the same, making a warranty deed, and took back notes for the deferred payments, secured by trust deed on the property sold, and the other tenant in common, when called on by a bank officer to indorse some of the notes, said they were all right, but desired to see his brother before indorsing, and it appeared he never did indorse them, and after his brother's sale he ceased to collect rents for him, it was held that these facts could have no bearing upon a forged deed from him to his brother, not put upon record for about

a year afterwards, and did not estop him from showing such deed a forgery. 7. As the statute contemplates that more than one tract of land, and even separate tracts in different counties, may be embraced in one bill for partition, a bill seeking partition of two distinct parcels of land, held by different claimants, and to have forged deeds made in his name for the same, set aside as clouds upon his title, is not multifarious, but the claimants of one lot of the land should only be taxed with one-half of the cost in such a case. 8. Courts of chancery will always exercise a sound discretion in determining whether the subject-matters of a bill are properly joined or not, and whether the parties, plaintiffs or defendants, are properly joined, each particular case, to some extent, depending upon its own facts. Reversed in part and affirmed in part. Opinion by WALKER, J.-Baird v. Jackson.

SUPREME COURT OF MISSOURI.

February 7, 1881.

JUDGMENT INJUNCTION AGAINST SUFFICIENT GROUNDS.-A petition for an injunction to enjoin defendant from levying execution under a judgment he had obtained before a justice of the peace, after stating facts which would have constituted a good defense before the justice, alleged that said facts first came to the knowledge of plaintiff since the rendition of the justice's judgment and the time allowed by law for an appeal. Held, that sufficient facts were not stated to entitle plaintiff to the relief sought. The plaintiff should have shown that the failure to discover and avail himself of such defense, was not attributable to any negligence or want of diligence on his part, but to fraud, accident or act of the opposite party; the mere allegation that he was ignorant of the facts constituting his defense is not sufficient. Taliaferro v. Bank, 23 Ala. 755; Story's Eq., sec. 895; Ritter v. Democratic Press Co., 68 Mo. 458. Affirmed. Opinion by NORTON, J.Carolus v. Koch.

EJECTMENT-ESCROW- EVIDENCE OF WIFE, WHEN ADMISSIBLE-DEFECTIVE ACKNOWLEDGMENT BY WIFE-WHERE DEED CALLS FOR SALE AT COURT-HOUSE DOOR.-Ejectment and answer, consisting of a general denial, and as special defenses, that plaintiff's claim was by purchase under a deed of trust executed by defendant and wife; that the title was vested at the date of the deed in said wife, and that she did not execute the deed as the law directs, and that the note and deed of trust were obtained by fraud. 1. At the trial, defendant offered to prove that the deed of trust and note secured by it were executed in lieu of a note and deed of trust of a prior date for the same debt, and the latter were to be surrendered and canceled; and the later trust deed was to be held by one Spenser, and not to be delivered until

the first note and deed were delivered up and canceled. Held, that the rejection of the evidence was error, it going to show that the deed was in escrow, and had never taken effect, and was therefore admissible. 2. Defendant also offered to prove, by wife of plaintiff, that she could not read English, that the deed of trust was not read or explained to her, and that her signature was procured by the fraudulent representations of one of the beneficiaries in the trust deed. Held, that the wife, being neither a party to the suit nor an agent of the husband, was not a competent witness to prove above facts. Also held, that other evidence offered to prove same facts was admiisible. If the wife did not acknowledge the deed, as required by law, or if her signature was obtained by fraud, it did not pass her title, and under sec. 14, Wag. St. p. 935, it was ineffectual to convey her husband's interest. Clark v. Bank, 47 Mo. 17; Wannall v. Kem, 51 Mo. 150. 8. The trust deed provided in case of default on the note, that the land should be sold "at the court-house door in the City of Joplin, Jasper County, Missouri." Held, there being two court houses, one for the common pleas court at Ferguson Hall, and the other for the police court, at a different building, at the date of the execution of the deed, parol evidence was admissible to explain the one meant by the parties to the deed, and a sale made elsewhere was invalid (Napton v. Hunt, 70 Mo. 497); and the defense that the sale was invalid, because not made at the proper place, was not an equitable defense, and hence was admissible under a general denial. Reversed and remanded. Opinion by HENRY, J.-Gof v. Roberts.

CONTRACT

ACCEPTANCE OF BRIDGE BY COUNTY-DEFECTS-WAIVER.-Suit by Johnson County on bond for breach of same in not constructing a bridge according to contract. Defendant in his answer set out that the bridge was constructed as required by the contract; that it had been inspected by a commissioner appointed by the county court, who reported that it conformed to the contract, and that the county court had received it and paid for the same; defendant also averred that the plans and specifications provided for him were defective, and whatsoever defects might be found were the result thereof. Plaintiff and defendant offered evidence to sustain their respective issues, except that none was offered by defendant to show any defect in the plans. Held, that the acceptance of the bridge, and the payment therefor, did not amount to a waiver by the county of any defects in the bridge, of which its agents were ignorant at the time of such acceptance and payment. There must be both knowledge and acquiescence to constitute a waiver in such a case, (Haysler v. Owens, 61 Mo. 270), and the burden of proof was on the defendant to show that the county-court judges or the commissioner knew of the defects complained of when they accepted the bridge and paid for it. Any thing that defendant may have said to plaintiff, to

induce him to accept the bridge, was admissible in evidence against him. Affirmed. Opinion by HOUGH, J.-Johnson v. Lowe.

ADMINISTRATOR'S DEED EQUITABLE DEFENSE. Where plaintiffs are heirs at law, the land which they claim being sold at an administrator's sale for the debts of their ancestor, the fact that the administrator's deed is lacking in a seal or formality, will not avail plaintiffs; for the purchaser at said sale acquires an equitable title which constitutes, when properly pleaded, a good defense to an ejectment. Long v. Joplin Mining Co., 68 Mo. 422. Reversed. Opinion by SHERWOOD, C. J.-Snider v. Coleman.

RECENT LEGAL LITERATURE.

DILLON'S CIRCUIT COURT REPORTS. VOL. V Cases determined in the United States Circuit Courts for the Eighth Circuit, reported by John F. Dillon, the Circuit Judge. Egbert, Fidlar & Chambers, Davenport, Iowa, 1880. This admirable series of reports is too well and favorably known to the profession, for this concluding volume to need any other commendation from us than the statement that it is fully up to the standard of its predecessors. The majority of the cases contained in this volume are naturally upon the subjects about which litigation usually arises in Federal courts. Many of them are upon questions concerning Иunicipal Bonds, Municipal Corporations, Removal of Causes, Bankruptcy, National Banks, Federal Jurisdiction, Indians, Railway Mortgages, Patents, Revenue Laws, and other matters which are rarely litigated in the State courts, and consequently are of but little interest to those of the profession whose practice is chiefly or altogether before these tribunals. This class of lawyers, however, is constantly growing smaller with the growth of the importance and jurisdiction of the Federal courts and of the amount of business which they transact. There are, however, in this volume, many adjudications which are of interest even to the practitioner whose business lies chiefly in the State courts; notably Howenstein v. Barnes, (p. 482), as to a stipulation in a note for attorney's fees, and lex loci contractus; McCabe v. McKinstry, (p. 509), of the criteria between bailments and sales, and of warehouse receipts; Re Goodwin (p. 140), as to when an accommodation indorser is entitled to the rights of a surety; Hagan's Petition in Morgan v. Illinois, etc. Bridge Co., (p.96), as to imputed negligence and the burden of proof in damage cases; Phelan v. Hazard, (p. 45), and Steacy v. Little Rock, etc. R. Co., (p. 348), as to what is full-paid stock; Flint v. Russell, (p. 151), of nuisance, and the remedy by injunction; Lewis v. Kinney, (p. 159), of the partition of a steamboat; Re Kirkbride, (p. 117), of chattel mortgage with power of sale in the mortgagor.

The Central Law Journal,

ST. LOUIS, FEBRUARY 25, 1881.

CURRENT TOPICS.

The vexed question of what is to be regarded as purchase-money of real estate, with relation to the homestead exemption, or to the priorities of equities, has recently been passed upon by the Supreme Courts of Iowa and Wisconsin. In the Iowa case (Kaiser v. Lembeck), the facts are somewhat intricate. The owners, tenants in common of real estate, executed a mortgage to the plaintiff to secure borrowed money. The land was afterwards sold for delinquent taxes, and the tax-title, which was conceded to be perfect, came into the hands of a third party. The original owners applied to other parties for a loan to enable them to purchase the taxtitle, and executed a mortgage to secure the money. The action was by the first mortgagees to foreclose, and the second mortgagees were made parties defendant. They defended on the ground that the money furnished by them to purchase the outstanding tax-title was, in the contemplation of equity, purchasemoney, and therefore entitled to a priority. The court took this view of the case, resting its decision upon the authority of Clark v. Munroe, 14 Mass. 351; Kittle v. Van Dyck, 1 Sandf. 76; Adams v. Hill, 9 Foster, (N. H.) 202; Jackson v. Antrim, 15 Johns. 477; Haywood v. Nooney, 3 Barb. 645; Curtis v. Root, 20 Ill. 53, and 4 Kent's Com. 39.

This case is not in conflict with the doctrine of Burnap v. Cook (16 Iowa, 149), though a cursory examination of that decision might lead to such a conclusion. That was a homestead case. The material facts were as follows: Butler purchased real estate of Ezra Leland, executing a mortgage to secure the purchase-money, after which a portion of the premises was used and occupied as a homestead. Butler was the surety of a note from Levi Leland to Ann Leland, and in consideration of his undertaking its payment, Levi procured of Ezra a credit upon the mortgage for purchase-money of the amount of the note in question. To secure the payment of this note, Butler executed a Vol. 12-No. 8.

second mortgage to Ann Leland, his wife not joining in it. The statute of that State makes a conveyance of the homestead inoperative, unless the wife joins in the deed. An exception, however, to this rule arises in favor of a mortgage to secure the payment of purchase-money. In this case the question was as to the validity of the mortgage to Ann Leland; but the court held that the credit given by Ezra Leland, in consideration of the execution of this mortgage, did not invest it with the character of a security for purchase-money, and consequently that it was inoperative without the wife's signature.

The Wisconsin case, Jones v. Parker, illustrates a distinction which the courts have, in some instances, made in cases of this nature. There the purchase of the land, the execution of the mortgage to secure the purchase-money, and the lending of the money, were simultaneous acts, and a part of the same transaction. The mortgage was made by the vendee and his wife, to the third party advancing the money, directly. The court held that such money was unquestionably purchase-money. A further feature of this case, which gives it additional interest, is the fact that thé vendee and his wife subsequently conveyed the land to another person who assumed a part of the debt to the party advancing the purchase-money in the former conveyance, and executed a mortgage for such proportionate sum to him. As he was unwilling to release the former vendee from his liability, said vendee executed a second mortgage for the same sum as that secured by the mortgage of the grantee in the second conveyance. In this second mortgage, however, the vendee's wife did not join, but the mortgagee released the former mortgage, in which she had joined, upon the record. The court held that the second or substituted mortgage remained a security for the original purchasemoney, and that, inasmuch as the first mortgage would have been valid against a claim of homestead, without the signature of the wife of the original vendee, the substituted mortgage was also valid to the same extent without it. Although the subject is involved inextricably in a conflict of authority, there can be but little doubt that the above decision is most in consonance with the general current of authorities and principles laid down in the

books. In California it has been held, that one advancing money to discharge a pre-existing vendor's lien is subrogated to his rights, and neither the purchaser nor his wife will be allowed, as against him, to set up a homestead in the property thus paid for with his money. Carr v. Caldwell, 10 Cal. 385. So also in Illinois, Silsbee v. Lucas, 36 Ill. 462. In Texas a contrary rule prevails. Malone v. Kaufman, 38 Tex. 454. See an able discussion of this subject in Thompson on Homesteads, § 338, et seq.

NEGLIGENCE AS AFFECTED BY CUS

TOM.

I.

Judge Story,1in stating the degrees of negligence and the measure of diligence in different relations, says: "Indeed, what is common or ordinary diligence is more a matter of fact than of law. And in every community it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers, as well as the institutions peculiar to the age. So that, although it may not be possible to lay down any very exact rule applicable to all times and all circumstances, yet that may be said to be common or ordinary diligence in the sense of the law, which men of common prudence generally exercise about their own affairs in the age and country in which they live. It will thence follow that in different times and in different countries, the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle. So that it may happen that the same acts, which in one country or in one age may be deemed negligent acts, may at another time or in another country be justly deemed an exercise of ordinary diligence. It is important to attend to this consideration, not merely to deduce the implied obligations of a bailee in a given case, but also to possess ourselves of the true measure by which to fix the application of the general rule. Thus, in times of primitive or pastoral simplicity, when it is customary to leave flocks to roam at large by night, it would not be a want of or

1 Story on Bailments, § 11.

dinary diligence to allow a neighbor's flock, which is deposited with us, to roam in the same manner. But if the general custom were to pen such flocks at night in a fold, it would doubtless be a want of such diligence not to do the same with them. In many parts of America, especially in the interior, where there are, comparatively speaking, few temptations to theft, it is usual to leave barns in which horses and other cattle are kept without being under lock by night. But in our cities, where the danger is much greater, and the temptation more pressing, it would be deemed a great want of caution to act in the same manner. If a man were, in many country towns, to leave his friend's horse in his field or in his open barn all night, and the horse were stolen, it would not be imagined that any responsibility was incurred. But if in a large city the same want of precaution were shown, it would be deemed in many cases a gross neglect. If robbers were known to frequent a particular district of country, much more precaution would be there required than in districts where robberies were of very rare occurrence. What then is usually done by prudent men in a particular country in respect to things of a like nature, whether it be more or less in point of diligence than what is exacted in another country, becomes in fact the general measure of diligence.

And the customs of trade and the course of business have also an important influence. If in the course of a particular trade, particular goods, as for instance coals, are usually left on a wharf without any guard or protection during the night, and they are stolen, the wharfinger or other person having the custody, might not be responsible for the loss, although for a like loss of other goods, not falling under a like predicament, he might be responsible. If a chaise were left during the night under an open shed and were stolen, the bailee might not be liable for the loss, if such was the usual practice of the town or place; and yet he might be liable if greater precautions were there usually taken. In short, diligence is usually proportioned to the degree of danger of loss; and that danger is in different states of society compounded of very different elements. Men intrusted with money might at some times and in some places be required to go armed; when at other times and in other places, such a precaution would