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had no interest in the land, the building would be per- country. As the venue in such case could not be laid soual property. Now the plaintiff claims it as personal in England, it followed that the courts had no jurisproperty. It does not appear that this building stood diction, and this fallacy is upheld to this day. Uuless on land owned by any private individual. At any some good and satisfactory reason derived from generate, plaintiff makes no claim to it. It was not a fix- ral jurisprudence (not a technical reason derived from ture. It had no cellar. It was a temporary shelter an artificial system of law) can be adduced against the and used only while the owner was carrying on the jurisdiction, wo must conclude that tho doctrine under fishery."
consideration has been abrogated by the Code. No Having stated the common law of venue- its origin, reason has been stated, and it seems nono can be given, history, and the reasons and grounds upon which it is against the jurisdiction, in such cases, wbich will not founded — sufficiently for the present purpose, it be- equally apply to other actions of which the courts take comes necessary and proper to consider the statutes of cognizance. This doctrine is so utterly opposed to the this State providing for the place of trial of actions of state and condition of things in this country, and is trespass to realty. The Revised Statutes provided manifestly so unjust and unsound, that it cannot be that actions for trespass on land, and actions for tres- upheld much longer, but will be repudiated and overpass on the case for injuries to real estate, shall be thrown, when the grounds and reasons upon which it tried in the county where the cause of action arose is based are pointed out to the courts, and its fallacy is (vol. 2, p. 409), but made no provision for trespass on exposed. Such a doctrine is not suitable to a country lands situated out of the State. The old Code pro- composed of many sovereign, independent States, vided that actions for injuries to real property must bound together by compact, but which, in respect to be tried in the county in which the subject of the this doctrine, are foreign to each other. Redress for action is situated, subject to the power of the court to injuries to land situated in one State cannot be change the place of trial, in the cases provided by obtained in the courts of any other. A person may statute; but it made no provision for actions for inju- commit a wanton or negligent injury to land in another ries to real property situated out of the State. The State, to which he has not a shadow of title, and yet new Code provides that actions for waste or for a our courts refuse to award satisfaction in damages to nuisance shall be tried in the county where the sub- the owner of the land. With as much reason might ject of the action is situated, but makes no provision they deny any remedy to the owner of personal propfor actions for trespass on lands. “But where all the erty injured or destroyed at a place beyond its jurisreal property, to which the action relates, is situated diction. In trespass, the title to the property may without the State, the action must be tried as pre- come in question, but it is not essential that it should. scribed in section 984 of this act." $ 982. 'An action Proof of actual possession is sufficient to maintain this not specified in the last two sections must be tried in action against a stranger, or a person who cannot make the county in which one of the parties resided at the out a title prima facie entitling him to the possession. commencement thereof. If neither of the parties | Therefore, a tenant for years, a lessee at will, and a then resided in the State, it may be tried in any county tenant by sufferance, may support this action against which the plaintiff designates for that purpose in the a stranger. If both parties should set up an apparently title of the complaint." $984. Accordingly, an action good title, and it should become necessary to deterfor injuries to real property, other than waste or nui- mine their validity, the action should perhaps be dissance, may be tried in a county other than that in missed, because it seems the courts of one State or which the land is situated; and this, though the land country cannot settle the title to lands in another. is situated in a foreigu State.
However, there is no reason why the defendant should The common law of venue, with all its technicalities, be allowed to oust the court of its jurisdiction of the fictions, formalities and artificial distinctions, has been matter in controversy by a simple denial of plaintiff's abrogated by the Code, which contains full provisions title, possession or right of possession. Mr. Wharton for the place of trial of actions. Doctrines and rules says that whether a court has jurisdiction of a suit for founded on the common law of venue, and not main-damages to real estate is doubted; but as such suits tainable upon the principles of general jurisprudence, do not touch the title, it is hard to see how jurisdiction fall with the abrogation of that law, and are no louger can be refused, when the court has regularly before it sustainable. The formal distinction between local and the parties. Confi. of Laws, S 814. And two of the transitory actions is abolished, and many actions ablest and most distinguished jurists of any age or which, by the common law, were local, are now tran- country have declared themselves unable to perceive sitory. The doctrine that the courts of one State or any reason for the doctrine, other than a technical one, country have no jurisdiction of an action of trespass to and have expressed their disapprobatiou of the same. land situated in another, was founded and established We may conclude, therefore, that this doctrine, being upon technical and artificial reasons, which no longer founded on the common law of venue, and arising from prevail. The courts of England refused to take cog- an arbitrary distinction between transitory and local nizance of such injuries, not because, upon principles actions, and not being sustainable upon principles of of general jurisprudence, jurisdiction thereof was not general jurisprudence, is abrogated by the Code. In maintainable, but because, according to the law of respect to actions for nuisances, it may be said that the venue, actions for injuries to land were denominated courts of one State cannot determine a thing to be a local, and were required to be tried only in the county nuisance to lands situated in another, when, perhaps, where the land was situated. But land situated iņ a the courts of the latter State would be of a different foreign country is not situated in England. Ergo, an opinion. However this may be, the owner of the land action for iujuries to such land cannot be tried in injured by the nuisance would have a remedy in the Englaud. The place where the cause of action arose State where the land is situated, by a suit in equity for was required to be stated in the declaration. If the its abatement; and the court having adjudged the action was transitory, and the act or transaction out thing to be a nuisance, an action for damages could of which it arose happened in a foreigu country, it then be brought in any other State where the defendmust be alleged to have happened in some county in ant might be found. England, so that the courts could take cognizance The right of a man to be protected in the enjoyment thereof, and the defendant was precluded from travers- of his property is a right that avails against the world ing the place falsely alleged. But the courts refused at large, and a duty is incumbent upon every person to to extend this fiction to local actions, and allow the abstain from the violation of such right. For a violaplaintiff to allege that the cause of action accrued tion or infringement of such right, or a breach of such within the realm, when it actually accrued in a foreigir duty, a cause of action accrues to the one, and a liability is incurred by the other. Personal rights and bill was filed. They employed Humphrey to procure obligations growing out of the duty which inan owes an abstract of title. In examining tho title he found to man, follow those who are entitled to enforce or there was no deed from Chapman. bound to fulfill them, wherever they may go, and He thereupon sought out Chapman, and by represhould be enforced by erery court which obtains juris-senting to him that the object was to protect the title diction over the parties, without regard to the situation of clients, procured Chapman to execute a quit-claim of the subject-matter of the controversy. The subject deed of the premises to George P. Humphrey, the of the right may be local, but the right itself is not. brother of the attorney, for the sum of $25. The deed
“If the law be a science, and really deserves so bears date on the 10th of June, 1872. George kuew sublime a name, it must be founded on principle and nothing of the transaction until some time afterward. claim an exalted rank in the empire of reason.
An action of ejectment was instituted in his name to F. P. MURRAY. recover the property. Baker tendered to hin $25,
the amount he had paid for tho deed; offered to pay
auy expenses incurred in his procuring it, and deATTORNEY AND CLIENT - CONTRACT BY
manded a release. Ile declined to accept or convey. ATTORNEY IN FRAUD OF CLIENT.
The prayer of the bill is that the deed to George P.
Humphrey be decreed to be fraudulent, and to stand SUPREME COURT OF THE UNITED STATES-OCTOBER for the benefit of the complainant; that the grantee TERM, 1879
be directed to convey to Baker, upon such terms as may
be deemed equitable, and for general relief. BAKER, Appellant, v. HUMPHREY ET AL.
Such is the complainant's case, according to the aver
ments of the bill. B., who had agreed to sell lands to which he claimed title,
The testimony leaves no room for doubt as to the to H. & S. for $8,000, employed W., an attorney, who had
material facts of the case. long been employed by him to do legal business, to draw the contract of sale, which W. did, and witnessed its
The direction for drawing the contract between execution. H. and S. then employed W. to examine
Flurds & Smith and Baker was given to the attorney the title. In doing this W. found that the title was
by Robling, the agent of Baker. Baker resided in apparently in C., though C. had never asserted it. W., Canada. Hurds & Smith directed the attorney to profor a consideration of $25, representing that he wished cure the abstract of title. With this Baker and it to protect the title of clients, procured a conveyance Robling had nothing to do. The attorney disclosed of the lands to his brother from C. The brother was
the state of the title to Hurds & Smith, but carefully not cognizant of this transaction. Thereafter W. instituted in action of ejectment in his brother's name
concealed it from Robling. Hurds & Smith being to recover the lands. In ar action by B. to have the
assured by the attorney that whatever they might pay deed to the brother of W. declared fraudulent, etc.,
Baker could be recovered back if his title failed, exeheld, that the relation of client and counsel subsisted cuted the contract with Baker, and declined to buy between B. and W., and the conveyance from C. to the the Chapman title, but gave the attorney their permisbrother inured to the benefit of B.
sion to buy it for himself. There is evidence in the PPEAL from the Circuit Court of the United States
record tending strongly to show that there was a for the Eastern District of Michigan.
secret agreement between them and the attorney, that Action
if the Chapman title were sustained they should have in equity by Sauford Baker against George P. Humph
the property for $5,000, which was $3,000 less than they rey, Hiram D. Hurd, Charles A. Hurd and David
had agreed to pay Baker. This would effect to them a Smith. The opinion states the case.
saving of $3,000 in the cost. They refused to filo this SWAYNE, J. This is an appeal in equity. A brief bill, and declined to have any thing to do with the statement of the case, as made by the bill, will be suffi- litigation. It thus appears that, though unwilling to cient for the purposes of this opinion.
join in the battle, they wero willing to share in the On the 27th of February, 1851, one William Scott con- spoils with the adversary if the victory should be on veyed the premises in controversy to Bela Chapman, that side. taking from him a mortgage for the amount of the There is in the record a bill for professional services purchase-money, which was $3,500.
rendered by the attorney against Baker. It contains Both the deed and mortgage were properly recorded. a charge of $2 for drawing the contract with Hurds & Chapman did not take possession of the premises. On Smith. The aggregate amount of the bill is $43. Tho the 29th of November, 1851, Scott assigned the mort- first item is dated July 5, 1871, and the last July 12, gage to Jacob Sammons.
1872. The latter is the charge for drawing the contract. The assignment was duly recorded on the 19th of There is also a like bill against Baker and Smith of $15, March, 1852. Sammons conveyed the premises with and one against Baker and Mears of $6. These warranty to Wm. M. Belote. From him there is a accounts throw light on the relation of client and regular sequence of conveyances down to the com- counsel as it subsisted between the attorney and Baker. plainant, Baker. Chapinan lived near the property for With respect to Chapman we shall let the record years and knew that Sammous and others were in speak for itself. Vincent testifies: “I asked him, how adverse possession and claimed title, but never claimed is it, Chapman? I thought you owned that property or intimated that he had any title himself. He drew (referring to the premises in controversy). He said, deeds of warranty and quit-claim of the premises from "no; I never paid any thing on it." He said, “Samothers claiming under Scott, and as a justice of the mons has a right to rent. It is his property." peace or notary public, took the acknowledgment of " I asked him how he came with the deed from Scott, such deeds. Upon those occasions also be was silent and he said, “it was only to shield Sammons; that as to any defect in the title.
afterward Michael Dansmon paid the debt and the The complainant entered into a contract with the property went back to Sammons."
" When I defendants Hurd & Smith to sell and convey the prem- met Bela Chapman, and he asked for Sammons aud ises to them for the sum of $8,000.
wife, he said he had drawn a deed from Sammons He employed Wells S. Humphrey; a reputable at- and wife to Belote for the premises and wanted them torney, who, for a long time, had been employed by to sign it." the complainant when he had any legal business to do, Francis Sammons, a son of Sammons, the grantor to to draw the contract. Humphrey accordingly drew Belote, says:
"A part of a house situated on that lot the agreement and witnessed its execution. F[urd & three was leased by my father to Bela Chapman in 1851, Smith thereupon took possession and held it when the for the purpose of storing goods, and afterward lived in
it a while. I collected the rent. I think he occupied it dence against him and those claiming under him. He
d. Jlorris and others, 3 East, 15; and Brown v. Wheeler,
Williamson y. Moriarty, 19 to Belote conveyed the premises in question and other Weekly Rep. (Ir. L. and Eq.) 818. property; cannot tell all of the other property."
It is the duty of an attorney to advise the client These witnesses are unimpeached and are to be pre- promptly whenever he has any information to give sumed unimpeachable. Their testimony is conclusive which it is important the client should receive. Hoopes as to Chapmau's relation to the property. If thero v. Barnett, 26 Miss. 4:28; Jett v. Hempstead, 25 Ark. 462; could be any doubt on the point, it is removed by the For v. Cooper, 2 Q. B. 937. fact that for $:25 he conveyed property about to be sold In Taylor v. Blacklow, Bing. N. C. 235, au atand which was sold by Baker to responsible parties for torney employed to raise money on a mortgage learned $8,000. This fact alone is decisive as to the character the existence of certain defeots in his client's title and of the transaction with respect to both parties. No disclosed them to another person. As a consequence honest mind can contemplate for a moment the con- his client was subjected to litigation and otherwise induct of the attorney without the strongest sense of jured. It was held that an action would lie against the disapprobation.
attorney and that the client was entitled to recover. Chapman conveyed by a deed of quit-claim to the In Com, Dig., tit. “ Action on the case for deceit, A. attorney's brother. The attorney procured the deed 5," it is said that such an action lies “if a man, being to be so made. It was the same thing in the view of intrusted in his profession, deceive him who intrusted the law as if it had beeu made to the attorney himself. him, or if a mau retained of counsel became afterward Neither of them was in any sense a bona fine pur- of counsel with the other party in tho same cause, or chaser. No one taking a quit-claim deed can stand in discover evidence or secrets of the cause. So if an atthat relation. May v. Le Claire, 11 Wall. 217.
torney act deceptive to the prejudice of his client, as if There are other obvious considerations which point | by collusion with the demandaut he make default in a to the same conclusion as a matter of fact. It is un- real action whereby the land is lost." necessary to specify them, and we prefer not to do so. It has been held that if counsel be retained to defend
The admissions of Chapman, while he held the legal a particular title to real estate he can never thereafter, title being contrary to his interest, are competent evi- unless his client consent, buy the opposing title with
out holding it in trust for those then having the title ence from rectitude involves the breach of all these he was employed to sustain. Henry v. Raiman, 25 obligations. None are more honored or more deserving Penn. St. 354. Without expressing any opinion as to than those of the brotherhood, who, uniting ability the soundness of this case with respect to the extent with integrity, prove faithful to their trusts and to which the principle of trusteeship is asserted, it worthy of the confidence reposed in them. Courts of may be laid down as a general rule that an attorney justice can best serve both the public and the profescan in no case, without the client's consent, buy and sion by applying firmly upon all proper occasions the hold otherwise than in trust, any adverse title or in- salutary rules which have been established for their terest touching the thing to which his employment government in doing the business of their clients. relates. He cannot in such a way put himself in an We shall discharge that duty in this instance by readversary position without this result. The cases to versing the decree of the Circuit Court and remanding this effect are very numerous and they are all in har- the case, with directions to enter a decree whereby it mony. We refer to a few of them: Smith v. Brother- shall be required that the complainant, Baker, deposit line, 62 Penn. St. 461; Davis v. Smith, 43 Vt. 269; in the clerk's office for the use of the defendant George Wheeler v. Willard, 44 id. 641; Giddings & Coleman v. P. Humphrey the sum of twenty-five dollars, and that Eastman, 5 Pai. 561 ; Moore et al. v. Bracken, 27 III. 23; Humphrey thereupon convey to Baker the premises Hockenburg v. Carlisle, 5 Watts & S. 349; Hobedy v. described in the bill, and that the deed contain a Peters, 6 Jurist, pt. 1, 1794; Jett v. Hempstead, 25 Ark. covenant against the grantor's own acts and against 462; Case v. Carrol, 35 N. Y. 385; Lewis v. Hillman, 3 the demands of all other persons claiming under him. H. of L. C. 607.
And it is so ordered. The same principle is applied in cases other than those of attorney and client.
Where there are several joint lessees and one of ATTACIIMENT ON INSUFFICIENT AFFIthem procures a renewal of the lease to himself, the
DAVIT WILL NOT PROTECT OFFICER. renewal inures equally to the benefit of all the original lessees. Burrel v. Bull, 3 Sandf. Ch. 15.
MICHIGAN SUPREME COURT, APRIL 50, 1880. Where there are two joint devisees and one of them buys up a paramount outstanding title, he holds, it in trust for the other to the extent of his interest in the
MATTHEWS, plaintiff in error, v. DENSMORE ET AL. property, the cestui que trust refunding his proportion The fact that a writ of attachment is valid on its face will of the purchase-money. Van Horne v. Fonda, 5 Johns. not protect an officer acting under it where it was is, Ch. 407.
sued without a sufficient affidavit. Where a surety takes up the obligation of himself and principal, he can enforce it only to the extent of
defendant below as United States marshal, and what he paid and interest. Reed v. Norris, 2 Mylne &
claimed by plaintiffs below. Sufficient facts appear in Craig, 361.
the opinion. Where a lessee had made valuable improvements pursuant to the requirements of his lease, and procured
Julian G. Dickinson and John D. Conely, for plaintan adverse title, intending to hold the premises in his
iff in error. own right, it was held that he was a trustee and enti
Henry P. Henderson, for defendants in error. tled only to be paid what the title cost him. Cleavenger v. Reimar, 3 Watts & Serg. 486.
COOLEY, J. Plaintiff in error is marshal of the The case in hand is peculiarly a fit one for the appli
United States for the Eastern district of Michigan, cation of the principle we have been considering. It
and as such levied an attachment, issuing out of the is always dangerous for counsel to undertake to act, in
United States Circuit Court for that district, upon a regard to the same thing, for parties whose interests
stock of goods in possession of defendants in error. are diverse. Such a case requires care and circum- The plaintiff in the attachment composed the firm spection on his part. Here there could be no objection, of Simonds, Hatch & Whitten, and the defendants the there being no apparent conflict of interest, but upon
firm of Gates & Marler. Before the attachment was discovering that the title was imperfect it was the duty
served, Densmore, by virtue of one chattel mortgage of the attorney promptly to report the result to Baker given by Gates & Marler, and Elisha P. and De Witt as well as to Hurds & Smith, and to advise with the Grow, by virtue of another, bad jointly taken possesformer, if it were desired, as to the best mode of curing
sion of the stock of goods, and were then in possession the defect. Instead of doing this he carefully concealed and making sale of them. When the marshal seized the facts from Baker, gave Hurds & Smith the choice the goods and dispossessed them they brought suit in of buying, and upon their declining, bought the prop- trespass. The marshal justified under his attachment. erty for himself, and has since been engaged in a bitter On the trial the attachment was held to be void for litigation to wrest it from Baker. For his lapse at the fatal defects in the affidavits on which it issued, and outset there might be some excuse, but for his conduct the plaintiffs had judgment. subsequently there can be none. Both are condemned The record in error presents only the one question, alike by sound ethics and the law. They are the same whether the court was right in ruling out the officer's upon the subject. Actual fraud in such cases is not justification. In this court scarcely an attempt has necessary to give the client a right to redress. A been made to support the affidavit. The statute under breach of duty is “constructive fraud,” and is suffi- which the writ was taken out requires the plaintiff, or cient. Story's Eq., $$ 258, 311.
some one in his behalf, to make affidavit of the amount The legal profession is found wherever Christian owing to him from the defendant, over and above all civilization exists. Without it society could not set-offs, and that the same is due. Comp. Laws, $ 6398. well go on. But like all other great instrumentalities, The defect in the affidavit in this case was that it did it may be potent for evil as well as for good. Hence not aver that the debt was due. the importance of keeping it on the high plane it ought The affidavit might be true, and yet no right of action to occupy. Its character depends upon the conduct have accrued upon it. Cross v. McMahon 17 Mich. 571; of its members. They are officers of the law, as well Wells v. Parker, 26 id. 102. As this proceeding is exas the agents of those by whom they are employed.traordinary, and depends wholly upon the statute, the Their fidelity is guaranteed by the highest considera- failure to follow the statute in this important partictions of honor and good faith, and to these is super- ular was correctly held to render the affidavit nugaadded the sanction of an oath. The slightest diverg. tory. It is nevertheless urged on behalf of the marshal
that, though the affidavit was defective, his writ was for property (Hoffman v. Comer, 76 N. Y. 121; Wells fair upou its face, and was, therefore, a complete pro- v. Kelsey, 37 id. 113; Smith v. Griffith, 3 Hill, 338; tection to him, on the familiar principle that an oflicer Cary v. Gruman, 4 Hill, 625), or the price at which it is justified in obeying any process which appears to be sold at public sale (Crounse v. Fitch, 1 Abb. App. Dec. lawfully issued to him, and which on its face apprises | 475; Campbell v. Woodworth, 20 N. Y. 499; Gill v. him of no legal reason why he should refrain from McNamee, 42 id. 44), may under certain circumstances doing so.
Erskine v. Hohnbach, 14 Wall. 613; Bird v. be given in evidence as tending in some degree to esPerkins, 33 Mich. 28; Wutson v. Watson, 9 Coun. 140; tablish its market value. But evidence such as was Lott v. IIubbard, 44 Ala. 593; Hill v. Figley, 25 III. 156; here offered had no such effect, the articles not being Seeking v. Goodale, 61 Me. 400 ; Underwood v. Robin- in the same condition as at the time when the defendson, 106 Mass. 296; Walden v. Dudley, 49 Me. 419; Gore ant became chargeable. Judgment affirmed. Flanv. Gorden, 66 N. C. 371.
agan v. Maddin, appellant. Opinion by Danforth, J. And no doubt the writ in this case must be regarded [Decided June 1, 1880.] as fair on its face. Uuder the general law relating to
MASTER AND SERVANT-MASTER LIABLE FOR IXattachments, where the suit is begun by that writ, the
DEFECTIVE MACHINERY affidavit is attached to and in legal effect becomes a
THOUGII NEGLIGENCE OF CO-SERVANT CONTRIBUTES, part of it, and if then the affidavit is void the writ is
An engine in defendant's railroad was out of order in void also. But under an amendatory statute passed in
many particulars, of which fact defendant's managing 1867, which permits the issue of the writ in pending officers had notice. Among these defects the throttle suits, the affidavit is filed with the clerk, and the offi
valve leaked and the thread upon the screw which cer to whom the writ is issued is supposed to know
served to hold the reverse bar in place and thus connothing of it. Comp: Laws, $ 6133. It was under the
trolled the motion of the engine was so worn as to be amendatory statute that the writ in this case was is
useless. As a natural and necessary consequence of sued, and an inspection of its provision shows that the
the defects last mentioned the steam escaped from the writ contains all the recitals that the statute requires.
boilers into the cylinders when the engine was put in Comp. Laws, $ 6135. But the principle which is ap- motion causing an injury to plaintiff, who was in the pealed to has no application to a case of this descrip- employ of defendant. The engine was furnished with tion.
cylinder cocks, which if defendant's engineer had The marshal in this case is not seeking to defend
opened them would have allowed the steam to escape, himself under his writ; he is endeavoring to assail the and prevented the accident, but the engineer neg. title of others. He has not seized goods in the hands
lected to open them. Held, tbat defendant was liable of Gates & Marler and confessedly owned by them, for plaintiff's injury and was not relieved because the but he has taken goods away from Densmore and the
negligence of plaintiff's co-servant, the engineer, conGrows to which they assert a title as mortgagees, and
tributed to such injury. As between plaintiff and deis seeking to hold them on the alleged ground that, by
fendant it was the duty of the latter to furnish for use virtue of a writ against Gates & Marler in favor of
in the prosecution of its business good and suitable certain of their creditors he is in position to contest
machinery and keep it in repair. Wright v. New the right set up by the mortgagees. Now, if, in point
York Cent. R. R. Co., 25 N. Y. 56:2; Laning v. N. Y. of fact, he has a valid writ of the kind he claims, the
Cent. & II. R. R. R. Co., 49 id. 521; Flike v. Boston marshal, representing the creditors, is in position to
& Albany R. R. Co., 53 id. 549; Corcoran v. Holbrook, attack the mortgage; but if he has no such writ it is
59 id. 519. It was also the duty of defendant to furno concern of his whether the mortgages are valid or
nish for the management of such machinery careful not.
and trustworthy servants, and if these conditions were The first step in his justification is, therefore, to
fulfilled, the plaintiff, though injured by the neglishow, not a writ merely, but a valid writ, and there
gence of his fellow-servant, could maintain no actio!ı can be no valid writ of attachment without a sufficient
against their common principal. Coon v. Syracuse & affidavit. Earl v. Camp, 16 Wend. 562; Parker v. Wal- Utica R. R. Co., 5 N. Y. 492. But neither upon prinrod, 16 Wend. 514, 517 ; Spafford v. Beach, 1 Doug.
ciple nor authority can it be held, that the negligence (Mich.) 199; Leroy v. East Saginaw, 18 Mich. 233; Wat
of a servant in using imperfect machinery excuses the kins v. Wallace, 19 id. 57, 74. The marshal understood
principal from liability to a co-servant for an injury this, and endeavored to satisfy the rule by producing
which could not have happened had the machinery a certified copy of the affidavit. Unfortunately the been suitable for the use to which it was applied. evidence defeated the justification instead of support- Judgment affirmed. Cone v. Delaware, Lackawanna ing it.
& Western Railroad Co., appellant. Opinion by DanThe Circuit Court decided correctly in holding that
forth, J. no ground had been shown for interfering with the
[Decided June 1, 1880.] possession of the mortgages; and the judgment must be affirmed, with costs.
PRACTICE -- ORDER NOT MODIFIED BY OPINION (The other justices concurred.)
WHEY OPINION MAY BE REFERRED TO FOR
GRANTING LEAVE TO PLEAD AFTER JUDGMENT NEW YORK COURT OF APPEALS ABSTRACT.
DEMURRER.-(1) When an order of the court below ex
presses the ground upon which the order is put but the EVIDENCE - OF VALUE OF GOODS CONVERTED - expression is coupled with phrases that make doubt, WHEN PRICE AT ACTUAL SALE NOT. — Witness pur- the opinion of that court may be referred to to find chased partnership property of defendant which was what that ground is. Tilton v. Beecher,59 N.Y. 176. But sold in fraud of plaintiff, defendant's partner. In an it has been held (Hewlett v. Wood, 55 N. Y. 634), that action in equity by plaintiff against defendant to the order cannot be qualified in its operation and effect secure an accounting for his disposition of the part. by reference to the opinion of the court. The dictum nership property, evidence was offered by defendant of Grover, J., in Tracy v. Altiyer, 46 N. Y. 598, has to show the net proceeds of such property realized by not been approved. (2) While cases may be cited in witness on a subsequent sale as a means of establish- which after judgment on demurrer a motion has been ing its value. Held, there having been a change in entertained and granted for leave to withdraw the detime and circumstances between the sale by defendant murrer and put in an answer on the merits ( Atkinson and that by the witness, that the exclusion of the evi- v. Bayntun 1 Bing. N. C. 740; Bell v. Wilkinson, 26 dence was proper. The cases show that the sum paid Week. Rep. 275), they show that the court has a dis