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authorities have power, as a police regulation, to punish for the continuance of such nuisance, as would subject the offender to indictment after notice to abate. But where the offence is complete they have only the power to bind over the offender to the proper court to answer for the offence: Vason v. The City of Augusta, 38 Georgia.
A landlord who has leased premises to a tenant is not liable for a nuisance maintained upon the premises by a tenant during the lease. If the nuisance existed on the premises when the lease was made, the landlord is liable. But if the tenant continues the nuisance after he obtains exclusive possession and control, he alone is liable for its continuance. As the landlord, under our statute, is liable for necessary repairs on the premises, if the nuisance grows out of his neglect to make the repairs, the tenant may make them, and set off the reasonable value against the rent due the landlord : Id.
PARTNERSHIP. Lien of Creditors on separate and joint Property.-Cake took a mortgage on Snyder's interest in land, appearing by the record to be held in common with Bergstresser, without notice that it was partnership property. He afterwards took another mortgage on the land from Snyder and Bergstresser, for a partnership debt; and at the same time Snyder confessed to Cake a judgment on his individual property, as collateral security for the latter mortgage. The land was sold under both mortgages, but did not pay the debts. Held, that the collateral judgment was not extinguished by the sale : Vandike's Appeal, 57 Penna.
The personal property of the partnership was sold on an execution on the judgment against Snyder and on executions against Bergstresser. Held, that the proceeds should be divided between the executions against Snyder and those against Bergstresser : Id.
When partnership property is sold under separate executions against the partners individually, the proceeds represent the several interests of the partners and not that of the partnership: Id.
RECEIVER. See Land.
SEDUCTION. Pleading and Evidence in Action for.-In an action on the case by a father for the seduction of his daughter, under twenty-one years of age, per quod servitium amisit, the relation of master and servant, at the time of the seduction, must be averred in pleading, and established by proof: Greenwood v. Greenwood, 28 Md.
A farther may maintain an action for debauching his daughter, under age, per quod servitium amisit, although she was not living with him at the time the offence was committed, unless by some act of his own, he has destroyed the relation of master and servant, which the law implies from the legal control he has over her services : Id.
SHERIFF. Right to return " Nulla Bona" where Title is doubtful— False Return. In an action for a false return of “nulla bona," unless it appear that the property pointed out belonged to the defendant in the execution, an offer to indemnify the sheriff will not make him liable: Com. monwealth ex rel. Hood v. Vandyke, 57 Penna.
The Interpleader Act of April 10th 1848 is not imperative on the sheriff; but it affords him a means of relieving himself from responsibility. He may take the risk of returning "nulla bona" or levying and selling: Id.
When there is a claim of property adverse to the defendants which would raise a reasonable doubt as to title, or create a pause in the mind of a constant man, the sheriff has a right to call on the plaintiff for indemnity, and if refused, may ask the court to enlarge the time for his return till indemnity be given : Id.
Whether the insufficiency of the indemnity, although it may justify no return, is a defence to an action for false return. Dubitatur, per SHARSWOOD, J.: Id.
A sheriff has a right to require that the sureties in a bond of indemnity to him should reside in his county: Id.
Whether the indemnity is reasonable ought not to be too broadly submitted to the jury without instructions, but is within the province of the court, leaving the facts, if disputed, to the jury: Id.
STAMP Letters— When to be Stamped.- A debtor placed a note due him in the hands of a creditor to receive the amount, and afterwards wrote to another creditor that he should receive his debt from the proceeds of the note after the first creditor should be paid ; the second creditor, by direction of the debtor, showed the letter to the first, who promised to pay the money when received. Held, that the letter was not an instrument requiring a revenue stamp: Boyd v. Hood, 57 Penna.
A tax law cannot be extended by construction to things not described as the subject of taxation : Id.
A letter in the character of a substantial instrument cannot be used to evade taxation : Id.
Accidental Omission to Stamp at the Proper Time.-A note having been executed at a time when the parties did not know it was necessary to place a revenue stamp upon it, and on the fact being ascertained, the maker having voluntarily placed the necessary stamp on the note, and again delivered it to the payee, whereby the government received the revenue to which it was entitled, the maker will not now be allowed to controvert the fact that the note was legally stamped : Green v. Lowry, 38 Georgia.
SURETY. Discharge of.-As Congress has the power, under the Constitution, to establish uniform laws on the subject of bankruptcies throughout the United States, and as the Act of Congress forbids the prosecution of an action against a person adjudged a bankrupt, until the question of his discharge has been determined, and relieves him, when discharged, from all debts, liabilities, &c., which might have been proved against his estate; a surety on an appeal bond in this state is no longer liable, when the principal is discharged in bankruptcy, which discharge of the prin. cipal terminates the case pending in the state courts against him, and
prevents any judgment. The surety on the appeal does not contract to pay the debt, but the judgment that may be entered in the suit then pending: Odell v. Wooten, 38 Georgia.
TRUSTEES. Ordinary Care by.-A trustee in possession of the trust property, is only bound to ordinary diligence in its preservation and protection : Campbell v. Miller, 38 Georgia.
If the trust property consists of promissory notes the trustee may receive payment of the notes when due, in such currency as a prudent man would receive for debts due him under similar circumstances : Id.
If the trustee changes the investment with the consent of the cestui que trust who is of legal age, he is not liable for any loss growing out of any such new investment: Id.
VENDOR AND PURCHASER. Constructive Delivery-Symbolical Delivery-Vendor's Lien-Stoppage in Transitu as between Vendor and Vendee.-A quantity of piy iron lying in piles at a furnace and on the road was sold, and the parcels constituting the whole were pointed out and shown by the agent of the vendor to the agent of the vendees, and the whole was charged in the books of the vendor to the vendees by their agent, under the direction of the vendor. Held: That these acts being done with the intent and for the purpose of making delivery, constituted such a constructive delivery as would pass the title to the vendees: Thompson v. B. &: (). R. R. Co., 28 Md.
Where ponderous articles incapable in the ordinary course of business of actual manual delivery, are the subject of sale, symbolical or constructive delivery is sufficient, and such constructive delivery may be implied from the acts of the parties : Id.
There is a marked distinction between those acts, which as between vendor and vendor, upon a contract of sale, go to make a constructive delivery and to vest the property in the vendee, and that actual delivery by the vendor to the vendee, which puts an end to the right of the vendor to hold the goods as security for the price; and the law in holding that a vendor who has given credit for goods, waives his lien for the price, does so on one implied condition, which is, that the vendee shall keep his credit good. If, therefore, before payment, the vendee become bankrupt or insolvent, and the vendor still retains the custody of the goods, or any part of them; or if the goods are in the hands of a carrier, or middleman, on their way to the vendee, and have not yet got into his actual possession, and the vendor, before they do so, can regain his actual possession, by a stoppage in transitu, then his lien is restored, and he may hold the goods as security for the price : ld.
The lien of the vendor always exists until he voluntarily and utterly resigns the possession of the goods sold, and all right to detain them. So long as the vendor does not surrender actual possession, his lien remains, although he may have performed acts which amount to a conclusive delivery, so as to pass the title or avoid the statute : Id.
In all cases of symbolical delivery, which is the only species of con. structive delivery sufficient to give a final possession to the vendee, it
is only because of the manifest intention of the vendor utterly to abandon all claim and right of possession, taken in connection with the difficulty or impossibility of making an actual and manual transfer, that such a delivery is considered as sufficient to annul the lien of the vendor: Id.
When Title does not pass.—The title to property sold does not pass to the vendee, where anything remains to be done in order to escertain the precise property sold or the price to be paid : Camp v. Norton et al., 52 Barb.
But whether the kind, or the quantity of property has been ascer. tained, so as to pass the title, are facts to be proved in each case, and cannot, ordinarily, arise upon a complaint properly drawn : Id.
Complaint in Action for Refusal to Deliver.-In an action by a vendee against the vendor to recover damages for not delivering the property sold, it is only necessary for him to aver, in his complaint, the making of the contract, performance or readiness to perform, on his part, and neglect or refusal to deliver on the part of the vendor after demand, when demand is required by the contract : Id.
Separating, Weighing or Measuring of Property.—There is no presumption of law that property sold has not been separated, weighed or measured, so as to pass the title. If these acts are not done, it devolves on the party insisting on these omissions to show them, and thus discharge himself from a liability which would otherwise devolve upon him: Id.
WASTE. Opinion of Witness---Cutting of Timber.-In an action for waste, a witness must state facts, and while he may give his opinion accompanied by the facts upon which it is predicated, as to the number of acres from which the timber has been cut, the value of the land before and after it was cut, the whole number of acres in the tract, the proportion of the timbered land, and the like; it is error in the court to permit him to give in evidence his opinion that the estate of the remainderman bas been damaged a certain amount by the acts of the defendant. It is the province of the jury to draw from the facts stated, their own conclusion as to the amount of damage, if any, sustained by the plaintiff : Woodvard v. Gates et al., 38 Georgia.
The stringent rules of the English laws relative to waste were not applicable to our condition, and were not embraced in our adopting statute. It is not always waste for a tenant for life to cut growing timber or clear land. Regard must be had to the condition of the premises ; and the proper question for the jury to decide under the instructions of the court will be, did good husbandry require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed : Jd.
WITNESS. Mileage.—A witness for the state in a criminal case, who, in obedience to a subpæna served upon him while temporarily in this state, actually comes from his home in a distant state, where he resided when the subpæna was served upon him, and testifies in the case, is entitled to mileage from the county treasury for the whole distance travelled in coming from aud returning to his home: Ducher v. Justices of Inferior Court, 38 Georgia.
NEW LAW BOOKS.
Balcı.—The Case of The Meteor, libelled for violation of the Neutrality Act. Edited by F. V. Balci. Vol. 1. Boston: Little, Brown & Co. 1869. Shp. $3.
CaliforNIA.—Reports of Cases in the Supreme Court. Vol. 34. By J. E. Hale. 8vo. San Francisco: S. Whitney. Shp. $17.50.
CLIFFORD.—Reports of Cases in the Circuit Court of the United States for the First Circuit. Reported by Wu. H. CLIFFORD. Vol. 1. Boston: Little, Brown & Co. 1869.
CONNECTICUT.-Reports of Cases in the Supreme Court of Errors. Vol. 34. By John Hooker. Hartford : Case, Lockwood & Brainard. 1869.
DEAN.—A History of Civilization. By Amos Dean, LL.D. Vol. 2, 8vo. pp. 533. Albany: J. Munsell. 1869. Cl. $4.
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GERARD.— Titles to Real Estate in the State of New York. By J. W. GERARD, Jr. New York: Baker, Voorhis & Co. 1869. $5.
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Hurlstone & COLTMAN.—Reports of Cases in the Court of Exchequer and Exchequer Chamber. By E. T. HURLstone and F. J. COLTMAN. Vol. 3. Edited by James Parsons. Philadelphia : T. & J. W. Johnson & Co. 1869. Shp. $4.
KEYES.-Reports of Cases in the Court of Appeals of New York. By E. W. Keyes. Vol. 3. Albany: W. C. Little. Shp. $5.
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SHARSWOOD.-An Essay on Professional Ethics. By George SHARSWOOD. 3d ed. Philadelphia: T. & J. W. Johnson & Co. 1869. Cl. $2.
UNITED States.—Statutes at Large, passed at the Second Session of the Fortieth Congress. 1867–8. Roy. 8vo. Boston: Little, Brown & Co. Pap. $2.50.