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"from No. 12 Atlantic dock." A por-
tion of the wheat required to fill this
order was taken from a lot of wheat
belonging to the plaintiff, stored
with J. W. & Co. in building No. 11
Atlantic dock. It was taken by the
direction of J. W. the store-keeper,
and not by the direction or authority
of D. & G. or their principals, C. &
B., and there was no proof that either
of them knew that the wheat deliv-
ered to H. G. & Co. had not been
taken from building No. 12, until
after the purchase money was paid
by H. G. & Co. to D. & G. and by
them paid over to their principals,
C. & B. In an action by the plain-
tiff against D. G. C. & B. to recover
the value of the wheat so taken
from No. 11 as for a conversion, on
the ground that D. & G. without the
authority or consent of the plaintiff,
took the plaintiff's wheat from the
storehouse as the property of C. &
B. and sold the same and paid over
the proceeds of the sales to C. & B.
without the authority, knowledge or
consent of the plaintiff; Held, that
the action would not lie. Cobb v.
Dows,
230

To maintain an action for the con-
version of goods, under such circum-
stances, the plaintiff must do some-
thing more than establish his right
of property. He must show that
the goods were taken by the defend-
ants, or that they have done some
other act which in law will amount
to a conversion.

ib

But the proof need not show a tor-
tious taking, or that the defendants
acted in bad faith. If it appears
that they obtained the goods fairly,
from a person whom they had rea-
son to think was the true owner; or
if they acted under a mistake as to
the plaintiff's title, or under an hon-
est but mistaken belief that the
property was their own, they are
still liable to the true owner, if their
acts in regard to it amount to a con-
version; as if they have taken the
property into their own hands, or
disposed of it to others, or exercised
any dominion whatever over it. ib

COSTS.

1. A creditor ought not to be required,
as a condition to entitle him to costs,

to ask executors to refer a claim af-
ter the latter have rejected it, as un-
just and not due. Fort v. Gooding,
388

2. Where a suit was brought against
executors, upon a claim for personal
services rendered the testator, and
the defendants unnecessarily sever-
ed in their defenses, employing three
separate attorneys, thereby increas-2.
ing the labor of the plaintiff's attor-
ney threefold, and the trial of the
cause occupied sixteen days; Held
that it was an "extraordinary case,"
justifying an extra allowance under
308 of the code.
ib

See EXECUTORS, &c. 2, 3.

COVENANT.

1. Although natural love and affection,
between near relatives, is a sufficient
consideration to support a deed, or
an executed contract, yet it will not
render obligatory a mere covenant
or promise, or executory agreement.
Duvoll v. Wilson,
487

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3. Where, upon the trial of an indict-
ment, no proof is given, as to the
general character of the defendant,
the law assumes that it is of ordi-
nary fairness. Ackley v. The Peo-
ple,
609

4.

2. Accordingly, where a father, in con-
sideration of natural love and affec-
tion, executed a deed to his grand-
children, which contained a cove-
nant that the grantor was seised of
a good and indefeasible estate of in-
heritance, in the premises conveyed, 5.
free and clear of all incumbrance,
and it turned out that the premises
were, at the date of the deed, sub-
ject to a mortgage executed by a
previous owner; Held that the gran-
tees could not maintain an action
against the executors of the grantor,
to compel them to pay off that
mortgage, out of the assets of their
testator.

CRIMINAL LAW.

ib

A prisoner on trial may show what
his reputation is, and then the ques-
tion is open to the prosecution, and
for the jury to determine, like other
controverted facts. But if the pris-
oner chooses to give no evidence on
the subject, the jury are not at lib-
erty to indulge in conjecture that
his character is bad, in order to
infer that he is guilty of the partic-
ib
ular crime charged.

An indictment for forgery lies for
making and issuing a false instru-
ment in the name of another, re-
questing persons to whom goods
have been sent by the owner, to
deliver them to the defendant; the
latter having induced the owner so
to send the goods, by falsely repre-
senting that he was directed by
those to whom the goods were sent,
to buy the same for them. Harris
v. The People,
664

6. And it is sufficient to alledge in the
indictment, that the forgery was
with intent to defraud the persons
to whom the goods were sent, and to
whom the order was directed.

1. Where a defendant, by a subse-
quent deposition, expressly contra-
dicts and falsifies a former one made
by him, and in such subsequent de-7.
position expressly admits and al-
ledges that the former one was
intentionally false, at the time it
was made; or in such subsequent
deposition testifies to such other
facts and circumstances as to ren-

ib

An indictment for obtaining by false
pretenses, the signature of a per-
son to a deed of real estate, should
aver that the prosecutor owned, or
had some interest in the lands des-
cribed in the deed, or that the deed
contained covenants rendering him

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9. Where such an indictment did not
alledge that the grantor in the deed
owned or claimed any title to the
lands conveyed thereby; and the
description of such lands was in the
most general terms, as, certain lands
in the state of Texas and United
States of America; and the date of
the deed was nowhere averred, so
that it would be impossible to iden-
tify the instrument; and it did not
appear that the deed would tend to
the hurt or prejudice of the prosecu-
tor; it was held-in the absence of
any averment that the deed could
not be more particularly described
-that the indictment was defective.

ib

DEED.

1. A conveyance not founded upon a
pecuniary consideration is not good
as a bargain and sale. Corwin v.
Corwin,
219

2. Natural love and affection is a suffi-
cient consideration to support a con-
veyance as a covenant to stand
seised to uses; but the considera-
tion of love and affection must be
founded upon the relation of blood.
A marriage between the grantee and
the daughter of the grantor is not
such a consideration as will support
a covenant of that nature.
ib

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An assignment of property in trust
for the payment of the debts of the
assignor, directed the assignees to
take possession of the premises
forthwith, and within convenient
time as to them should seem meet, by
public or private sale for the best
price that could be procured, to
convert the property into money,
&c. The assignment also contained
a clause authorizing the assignees
to ask, demand, sue, &c. and com-
pound and agree for all or any part
of the debts due and owing to the
assignor, as the assignees should
deem meet. Held, that the assign-
ment was fraudulent in law and in
fact, and therefore void as against
creditors. Woodburn v. Mosher, 255

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2. Where a right of action exists in
favor of a person for the recovery
of the possession of real estate, and
such person dies, and the estate
descends to his heirs, they may re-
cover upon the seisin of their ances-
tor. And, the writ of right being
abolished by statute, the action of

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7. Where it appears, on the trial of an
ejectment suit, that the individual
defendants were in possession of
separate rooms in a dwelling-house 2.
on the premises, and of separate
parcels of land as tenants of a co-
defendant, the plaintiff is bound to
elect against which of the defend-
ants he will proceed; and a verdict

must be rendered in favor of the
other defendants. A general ver-
dict in such a case, can not be sus-
tained.

ib

8. In an action brought since the adop-
tion of the code, to recover the pos-
session of land, founded on a legal
title in the plaintiff, an equitable
right in the defendant to a convey-
ance is not a defense, any more than
it was previously. Crary v. Good-
man,
657

See MESNE PROFITS.

ELECTION.

See EJECTMENT, 7,

3.

17

When one takes as co-heir and ten-
ant in common, by descent, he can
not in an action by his co-heir, prove
that the ancestor had no title. Cor-
win v. Corwin,
219

Where a party presenting a petition
to the court, praying for the parti-
tion of lands held in common, stated
therein that he, together with L. and
the other defendants in the partition
suit, were possessed of the lands as
tenants in common, and such petition
was sworn to, and filed, and became
a matter of record, and the foun-
dation of the subsequent proceed-
ings; Held that the petitioner was
estopped by the record from after-
wards denying that L. was a tenant
in common with him, at the time of
filing the petition. Van Orman v.
Phelps,
500

4. A person entering upon premises,
under the title of another, is estop-
ped from controverting his land-
lord's title at the time he entered;

but not from showing that the title
afterwards passed from his landlord,
to another person. Ryerss v. Far-
well,
615

5. Estoppels in pais generally consist
of acts, declarations, or admissions
which have been acted upon by
others, and are conclusive against
the party making the declarations
&c., in all cases between him and
the person whose conduct he has
thus influenced.
ib

6. It is of the essence of this species
of estoppel that the representation
or act should have influenced the con-
duct of the individual setting up or
alledging it.
ib

See GIFT.

REDEMPTION, 4, 5.

EVIDENCE.

1. Where the reasons given by a party
for his refusal to pay over moneys,
upon a demand being made thereof,
are an essential part of the refusal
itself, they are admissible in evi-
dence in favor of such party. But
the rule is otherwise where a long
series of facts is sought to be made
evidence, on the ground that they
are an answer to the demand. Wal-
rod v. Ball,
271

2. If, in such a case, any part of the
reasons given are admissible, under
the above rule, there should be a
specific offer to prove that part, by
itself.
ib

3. A notice, in a newspaper published
in this state, of the death of a person
in Texas, is no evidence of his death.
Fosgate v. The Herkimer Man, and
Hydraulic Company,
287

4. The book of a notary public, kept
by his clerk, containing entries of
the daily transactions of the notary,
in the course of his business, and
made by his clerk at the time, is
admissible in evidence for the pur-
pose of proving the taking of the
requisite steps to charge an indorser,
in connection with the oath of the
clerk; although the latter swears
that he has no recollection of having
made the entries, or performed the
service, but that the entries would

not have been made if he had not
done what is there stated. Cole v.
Jessup,
395

5. When it is intended that a notarial
certificate of the protest of a prom-
issory note or inland bill of exchange
shall be used as evidence of the facts
therein contained, the acts which it
attests must be those of the notary,
and of him alone.
ib

6. When the steps necessary to charge
an indorser have been taken by a
notary, in person, his entries in his
register, signed by him, will be sec-
ondary evidence, and presumptive
evidence, of the fact, in case of his
death, insanity, absence, or removal.
But when the demand and notice
are made and given by the clerk of
the notary and not by the notary
himself, they do not fall within the
purview of the statute, and must be
proved by such evidence as is ad-
missible at common law.

ib

7. Where the memorandum book of a
notary is kept by his clerk, and the
entries are in the hand-writing of
the latter, and were made at the
time they bear date, such book may
be treated as the memorandum book
of the clerk for the purpose of per-
mitting him to refresh his memory
ib
by examining it.

8. In an action upon a note or contract
for the payment of a specified sum,
in wagons, the defense was that the
wagons had been delivered by the
defendants, according to contract.
It was proved that the plaintiff's im-
mediately on seeing the wagons,
wrote a letter to their attorneys, at
the place where the defendants re-
sided, declining to accept the wag-
ons on the contract, pointing out
their defects, and suggesting a
course for the defendants to adopt ;
and directing the attorneys to com-
municate it to the defendants, which
they accordingly did. Held, that
such letter was admissible in evi-
dence, as being the notice by the
plaintiffs of their non-acceptance of
the wagons, and of their specific ob-
jections to them. Newcomb v. Cra-
mer,
402

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