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LIEN. VENDOR'S LIEN. Continued.
2. And if the subsequent purchaser sells such machinery, he will hold
subject to a lien. Hammer v. Johnson et al. 193.
Rights of the party holding such lien. See MORTGAGES, 7, 8, 9.
Whether barred by lapse of time. See LIMITATIONS, 1 to 4.
1. Creditor of an estate—when his lien is barred. In determining the
2. And in cases where the delay of the creditors is unexplained, and even
3. And in many cases a much shorter limitation may be applied, to pro-
4. Where a person died in Ohio, having devised all of his real estate in
that the estate was still unsettled in Ohio. Ibid. 202.
Mortgagee cannot avail of the statute. See MORTGAGES, 12.
MARINE COURT OF NEW YORK.
Has no jurisdiction. See NATURALIZATION, 2.
1. What is sufficient. In a proceeding to revoke letters of administra-
MARRIAGE. PROOF OF MARRIAGE. Continued.
one W., then living,-held, that the proof, of such former marriage, consisting simply of general report to that effect, and of the fact of cohabitation together as husband and wife, with one or more children born to them, is not sufficient to establish it. Myatt v. Myatt, Admz., et al. 473.
2. While the presumption of law is always in favor of a marriage between parties cohabiting together as man and wife, yet such presumption may be rebutted. Ibid. 473.
3. Nor, in such case, will proof of her admissions that she was married to such other person, coupled with the fact of cohabitation as man and
wife, establish such former marriage. Ibid. 473. LEGALITY OF MARRIAGE.
4 Should not be determined in a collateral proceeding. The legality of the marriage ought not to be determined in a collateral proceeding to revoke letters of administration granted to the widow; other proceedings should be instituted, whereby the whole merits of the case can be fully investigated. Ibid. 473.
1. The husband must join. The act of 1861, entitled "An act to protect married women in their separate property," does not empower a wife to convey her real estate without the consent and joinder of her husband in the deed, as required by section seventeen of our statute of conveyances. And although the act modifies during coverture the husband's estate by the curtesy, it does not enable the wife to divest him thereof, or prevent
its taking effect after her death. Cole v. Van Riper, 58. ESTATE OF THE HUSBAND IN THE WIFE'S LAND.
2. Estate during coverture. The estate during coverture which, at the common law, the husband held in the lands of the wife, would doubtless be held, under the act of 1861, to be substantially abolished, in cases where the estate did not become vested before the passage of the act. Ibid. 65.
3. As tenant by the curtesy. But the estate of the husband as tenant by the curtesy is not totally abolished by that act, though it is materially modified. Where no interest vested in the husband prior to the passage of the law, he has no control over the wife's lands during her life, nor has he an interest in them subject to execution ; but his estate as tenant by
the curtesy may take effect on the death of the wife. Ibid. 65. GIFT FROM HUSBAND TO WIFE.
4. Not embraced in the act of 1861. A gift from the husband to the wife is not embraced in the act of 1861, concerning the separate property of married women, as that act has reference only to property acquired by the wife through some source other than her husband. Manny v. Rizford, 132. DISTRIBUTION OF THEIR PERSONAL ESTATE.
5. And herein, of the rights of the husband, as administrator of his wife. See ADMINISTRATION OF ESTATES, 4, 5.
And where it may prevail. See PERSONAL LIBERTY, 6 to 10.
MASTER IN CHANCERY.
Whether sufficient. See NOTICE, 1.
Whether exceptions thereto necessary. See CHANCERY, 17.
MASTER AND SERVANT.
For acts of the latter. See AGISTMENT, 1, 2.
MEASURE OF DAMAGES.
1. For personal injuries. In an action of trespass, for personal injuries, when the act complained of is without malice, vindictive damages cannot be given. Pierce v. Millay, 189.
2. In such case, full compensation for the pain and suffering, loss of time, expenses incurred for medical treatment, and compensation for the injury,
if permanent, is all that should be given. Ibid. 189. IN TRESPASS AGAINST AN OFFICER.
3. For levying upon and selling the property of plaintiff under execution against another. While it is true, as a general rule, that the value of property wrongfully sold on execution is the measure of damages sus. tained by the owner, still, that is not true except in cases where the purchaser bas obtained the property. Warner v. Ostrander, 356.
4. A rule of more general application is, that in cases not requiring punitive damages, the loss actually sustained is the true measure. Ibid. 356.
5. So, where the property of the plaintiff was levied upon and sold under an execution against another person, but remained in the possession of the owner, who sold it and received the benefit of the proceeds beyond the amount for which it had been sold on the execution, there being no circumstances connected with the levy and sale calling for punitive damages, the proper measure of damages in an action of trespass by the owner against the officer would be the actual damage sustained,– that is, the amount for which the property was sold on the execution. Ibid. 356.
6. Where goods are wrongfully levied upon. If the goods of one person are wrongfully levied on under an attachment against another, the statute does not contemplate that the rightful owner is to be permitted to recover only such a sum in damages as his property may have brought under a forced sale. Whitaker v. Wheeler, 440.
MEASURE OF DAMAGES. Continued.
7. For conversion of a note. In an action of trover and conversion for a note, the measure of damages, prima facie, is the sum due on the instru.
ment. American Express Co. v. Parsons, 312. IN AN ACTION ON THE CASE
8. Against an express company – for loss of a note. In case, and other actions for wrongs, where there are no circumstances which authorize punitive damages, the true measure is the amount the plaintiff has really sustained. Where it appears that a note intrusted to an express company was lost through negligence, the injury is the same as if it had been converted, and the measure of damages should be the same. American Express Co. v. Parsons, 312.
9. Notwithstanding the company is prima facie liable for the sum of money due on the note, they have the right to establish, by any legitimate evidence, that the damages were less in fact. Should it appear that the maker was insolvent, or that there was a legal defense to the note, or other facts rebutting the presumption of loss, it will reduce the damages.
10. Liability of the sureties. The obligation of a surety upon a supersedeas bond, is limited to the prosecution of the writ of error with effect, and his undertaking is, that if the writ is not so prosecuted he will pay all resulting damages. Cook v. Marsh, 178.
11. In an action on such a bond, where it appeared that real and per. sonal property had been decreed to be sold, and the sale suspended by the supersedeas, the property in the mean time having deteriorated in value, the extent of the deterioration of the property would constitute the dam. ages, which the plaintiff would be entitled to recover. Ibid. 178.
12. And in such case, a claim by the plaintiff for the rents received by the defendant from the real estate, after the rendition of the decree, will not be allowed, plaintiff having no right by the decree, nor under the law, to its possession, or the rents thereof. Ibid. 178.
ON CONTRACT TO FURNISH CARS.
13. Measure of damages for breach thereof. In an action against a rail. road company for a failure to furnish passenger cars, as agreed upon, for an excursion, at a stipulated price, the measure of recovery would be the amount the plaintiff would have received as passage money, if the train had gone as proposed, less the amount agreed to be paid for the use of
the cars. Illinois Central Railroad Co. v. Demars, 292. FOR NEGLECT TO ASSIGN DOWER. See DOWER, 8, 9, 10.
WHAT CONSTITUTES. See PERSONAL LIBERTY, 6 to 10.
MISJOINDER OF PARTIES.
WHAT CONSTITUTES. See PARTIES, 9.
1. A court of chancery will correct a written instrument, where clearly
2. The fact that a party had brought an action at law upon the instru-
MITIGATION OF DAMAGES. See DAMAGES, 1.
1. Intention of parties governs. To ascertain whether a transaction
2. When in form a sale - proof must be clear to change its character.
3. What will be considered a mortgage. T., desirous of entering certain