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Johnson v. Rich.

reason assigned is, that many of the most profound constitutional lawyers in the Union, were in congress at the time, and participated in its enactment.

I have bestowed more attention upon the case of Parker v. The Commonwealth than the occasion would seem to justify, were it not that it has been the great source of mischief, and confusion of ideas, upon subjects of this character. But since the supreme court in that state have wisely retreated from the position there assumed, I trust that it will no longer be permitted to vex and confound us here.

The decisions in the supreme court of our sister state are now clearly in favor of the constitutionality of the act under consideration. The case of Cargo of the Brig Aurora v. The United States, (7 Cranch, 382,) is also a strong case in support of the same general principle. In every one of these cases, even that of Parker v. The Commonwealth, the constitutional power of the legislature to enact laws to take effect at a future time, upon the happening of some event which is uncertain and contingent, is fully recognized and asserted. But it seems to me that no authority is necessary to sustain such a proposition. The exigencies of the government, both state and national, must often call for the exercise of such a power by their respective legislative bodies, and it can not be doubted that it is clearly within the large grant of legislative power conferred by our constitution. It has also the sanction of long usage, without dissent or question till recently.

I am therefore clearly of the opinion that the act in question is constitutional, and that the judgment of the county court should be reversed, and that of the justice affirmed.

SELDEN, J. concurred.

WELLES, J. dissented.


Judgment reversed,





A mistake in the names of the plain-
tiffs is not a ground of nonsuit. The
only remedy of the defendant is by
a plea in abatement. Barnes v.


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1. The rule that a man may lose his
own property by mixing it with the
property of another, applies only to
cases where the property of one can
not be distinguished from that of
the other, after the admixture. Frost
v. Willard,

2. How far the admixture of property
mortgaged, with other property, will
destroy the lien of the mortgage.
Dunning v. Stearns,


Where the grantee in a deed for lands
in fee enters in the lifetime of the
grantor and holds both the lands and
the deed, for a period of time suffi-
cient-if adverse-to bar an entry,
in the absence of all other evidence,
the character of his possession may
be ascertained from the language of
the deed; and if that professes to
convey an absolute estate in fee, the
inference is inevitable that both the
entry and the possession were ad-
verse. BARCULO, J. dissented. Cor-
win v. Corwin,

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made on the ground that the defend-
ant "has assigned or secreted his
property with intent to defraud his
creditors," although according to the
words of the statute, is insufficient,
unless the facts and circumstances
stated therein are enough to justify
a belief that the defendant has as-
signed or secreted his property with
intent to defraud his creditors.

See JUDGMENT, 2, 3.


1. It is not necessary that a considera-
tion should exist at the time a prom-
ise is made. Thus if one party
promise another to pay him a sum
of money if he will do a particular
act, and the latter does the act be-
fore the revocation of the promise,
the promise thereupon becomes
binding, although the promisee does
not, at the time, engage to do the
act. Barnes v. Perine,

2. In such a case the doing the act is
a good consideration for the previous
promise; and the promise amounts
to a request to do the act.

that this was prima facie evidence
that the makers of the note were
good for the whole amount or some
part thereof, and that therefore the
defendant was liable for not going
to their place of residence and at-
tempting to collect the note of them.
Walrod v. Ball,

4. Held also, that, admitting this was
not a case for presumption, but that
evidence should be adduced in re-
spect to the pecuniary condition of
the makers of the note, the onus was
on the defendant, to furnish the evi-
dence; and that if they were insol-
vent, he was bound to show it, inas-
much as it was only upon its turning
out that they were insolvent, that he
was excused from suing them.



3. On the 21st of April, 1842, a sealed
note for $350, made by S. and oth-
ers, payable to the defendant B. with
an indorsement thereon by B., guar-
antying the payment thereof to P.
was delivered by P., the owner
thereof, to B. "to collect or secure, 7.
as soon as convenient or may be;"
and B. agreed to pay over to P. $88
of the first money that should be
collected or secured, as soon as he
should collect or secure the same or
any part thereof. But he was not
bound to sue the makers of the note
unless there should be a reasonable
prospect of collecting the same, or
some part of it. In an action against
B. for his neglect and refusal to per-
form the agreement to collect or se-
cure the note, and for his refusal to
pay over the money due, or deliver
up the note, it was proved that when
the defendant received the note and
executed the agreement he said that
he presumed the makers of the note
were good, but did not know-that
they were good when they moved
out of the state, and that he would
go and see them immediately. Held


A promise, by a father, to his daugh-
ter, to pay her a certain sum per
week, for labor thereafter to be per-
formed by her for him, is not void
because of the infancy of the daugh-
ter, at the time of making the agree-
ment. Fort v. Gooding,

Even though such an agreement
were void because made with an in-
fant, yet in an action by the daugh-
ter to recover for the value of her
services, evidence of the agreement
would be admissible, upon the ques-
tion of damages, as showing the
value put upon her services by the

Evidence of the special agreement is
admissible in such action, although
the plaintiffs, in their reply, claim
to recover upon an implied agree-
ment only. Such an objection for a
variance between the pleadings and
the evidence is provided for by the
169th and 170th sections of the code
of procedure.

8. Such objection is also answered by
the rule that when work and labor
is done under a special agreement,
and the agreement is performed,
and nothing remains to be done but
the payment of the money, the par-
ty entitled to compensation may
recover under the common counts. ib


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12. Where the plaintiff's had possession
of 190 barrels, 40 of which were
their property, and under a contract
with F. the manufacturer, they had
an absolute right to sell the others,
retain out of the proceeds what was
due them from F., and account to
him for the surplus, and the defend-
ant, by virtue of an attachment
against the goods of F. took the
barrels out of the plaintiffs' posses-
sion; Held that the plaintiffs were
entitled to recover the amount of
their advances to F. Frost v. Wi-


13. Contracts for the sale of land are,
in their nature, executory; and gen-
erally, the acceptance of a deed, in
pursuance of a contract, is prima
facie an execution thereof, and the
rights and remedies of the parties
are to be determined by the deed,
and the agreement thenceforth be-
comes void, and of no further effect.
But parties may enter into cove-
nants collateral to the deed; and
cases may arise in which the deed
would be regarded as only a part
execution of the contract, where the
provisions of the two instruments
clearly manifest such to have been
the intention of the parties. Bull
r. Willard,

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not look to, nor be connected with
the title, possession, quantity, or
emblements of the land which is
the subject of the contract. If it
does so, the execution of the deed,
in pursuance of the contract, will
operate as an extinguishment of

16. An agreement was made between
the plaintiff and defendant, by which
the latter, upon certain payments
being made by the plaintiff, was to
convey to him a certain quantity of
land therein described. And the
defendant further covenanted and
agreed, that he would redeem that
part of the land (amounting to
about 17 acres) which had been
sold for taxes; and that if it should
be redeemed by the plaintiff, the
amount paid by him should apply
as so much paid on the contract;
and that if the land could not be
redeemed, a deduction should be
made from the contract. Held, that
this covenant was inserted for the
benefit of the vendee, for the pur-
pose of removing an incumbrance
then resting upon a portion of the
premises, and that it looked solely
to the title which the purchaser
was to receive. That the defend-
ant was legally bound to make the
redemption; and the title to the 17
acres having been lost, by his ne-
glect to redeem, held also, that the
plaintiff was not bound to pay for
that part of the land, nor to take a
deed including it.


17. Held further, that the vendee hav-

ing voluntarily paid the purchase
money for the 17 acres as well as
for the rest of the land, and de-
manded and received a deed for the
whole, he could not maintain an ac-
tion upon the contract, to recover
the value of the 17 acres sold for
taxes; his only remedy being upon
the covenants in his deed




1. Aliens are incapable of taking by de-
vise, any interest in real property,
in this state. But this disability

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