In the Superior Court.-Chambers v. McCormick. Kerrick v. Bransby, 3 Bro. P. C. 358. | much doubt on the proofs before him, that Dawson v. Chater, 9 Mod. 90. Robinson he deemed it proper to be passed upon v. Lord Byron, 2 Cox, 4. Lomax v. Rider, by a jury. This would not have been 2 Bro. P. C. 248. 5 Johns. Ch. R. 155. done if the weight of evidence sufficiently And in Tatham v. Wright, 2 Russ. & preponderated, in his mind, to turn the Mylne, 1, Lord Brougham says, There scale, and enable him to form a decided is a broad line of distinction between opinion. If there is so much doubt as to cases where the moving party seeks to require the intervention of a jury, there is set the will aside, and cases where the too much to set aside their verdict when moving party is a devisee seeking to es- fairly obtained. tablish it." By the enlarged jurisdiction of the court of chancery, as it exists at present in this state, the practice of awarding feigned issues is much more general. Questions of adultery, in contested cases of applications for divorces, are generally tried by a jury; and controverted questions of fact, arising in almost every description of suits in this court, are frequently ordered to be tried at the circuit on issues settled for that purpose. Indeed, it is now' a favorite doctrine in the administration of justice in this country, and a principle gradually finding its way into the courts of equity, that while questions of law are to be decided by the courts, all issues of fact should be passed upon by a jury. The line between these two fields of labor is distinctly marked, and some good reason should always exist to authorize the one tribunal to invade the province of the other. It is true, that in chancery, questions of fact as well as of equity law, are generally decided by the court; but where an issue has been framed, and sent to a jury for trial, there can be no good reason why the same rule that controls in actions of law in regard to granting new trials, should not also govern in this court. I have above adverted to the reason why a verdict was so readily set aside after one trial of the issue of devisavit vel non. case. That reason is inapplicable in this If the question of the genuineness of the receipt for the four hundred dollars alleged to have been paid, had been tried at law in an action on the bond, the verdict would have been conclusive on the question of fact. It should, in my opinion, be equally conclusive in this court. Where there is no error in declaring the law, the common law will not set aside a verdict, unless it is clearly against the weight of evidence. That is not the case here. My predecessor regarded it as a case of so There is no reason to suppose that any new light could be thrown on this case by a second trial. Each party presented before the jury all the evidence he could obtain; and on reviewing the testimony in the case, and examining the conflicting opinions and contradictory circumstances of which it is composed, as shown by the testimony of more than thirty, witnesses, I do not think there is a weight of evidence against the finding of the jury that would warrant the interference of the court. The application for a new trial is not strengthened by the affidavit of Hiram Bigelow. His affidavit subsequently made and read on the other side, fully explains all the circumstances he had previously stated. A new trial must therefore be denied ; and unless the solicitors of the parties agree on the amount due, allowing the alleged payment of four hundred dollars, there must be a reference to a master to compute the amount due on the bond and mortgage; and on the coming in and confirmation of the report, a decree accordingly. Superior Court, N. Y. Before the Honorable T. J. OAKLEY. CHAMBESS V. MCCORMICK.-June Term, 1846. Where A hired a pianoforte and afterwards bor rowed money upon it from an auctioneer, who sold it by auction and paid over the proceds. It was held that the party from whom it was hired could maintain trover therefor against the auctioneer. THIS was an action in trover for the conversion of a pianoforte. The plaintiff is a music seller, residing in Broadway, in this city. The defendant is an auctioneer, residing in Courtland street. N. Y. Common Pleas.-Decisions during June Term. Currie et al. v. Smith et al. It appeared that about three months A private custom among brokers in since a person of the name of Mankewitz New-York as to the deposit of checks, is hired of the plaintiff a pianoforte, by the not admissible to change the legal obliga month: the instrument was sent to his tion on a party endorsing a check on a apartments. Shortly after the delivery to bank to pay the same on its being duly Mankewitz the plaintiff discovered that protested. the pianoforte had been taken to the auction store of the defendant, and sold to Captain Parker, of New-Jersey. Mankewitz was subsequently apprehended, tried and convicted for constructive larceny, and sentenced to the state's prison for two years. Evidence was adduced as to the value of the instrument. His honor the judge charged the jury, that the only question for them to determine was the value of the pianoforte. The plaintiff never having parted with his title to the pianoforte, was entitled to a verdict for the value thereof. The jury retired and returned a verdict for $94. Where a broker paid a check in the course of business which was made payable to a clerk or partner in his establishment who endorsed the same, and it was afterwards protested for non-payment, such endorser was held liable, and the defendant was not permitted to show that such endorsement was a matter of form, and that the clerk was not in such case understood to be liable. Idem. Where a draft is transmitted to a person for the payment of a note about to become due, and he agrees to take up the note For the plaintiff O. Platt and Samuel when due,-held, that he is bound to use Owen. For the defendant, E. Hudson. In the Common Pleas. [NEW-YORK.] Before the Honorable M. ULSHOEFFER, First Decisions during June Term, 1846.* IN slander, it is necessary to aver that the slanderous words were spoken of and concerning the plaintiff. Havemeyer ads. Wannan. In an action of trover for a piano, it appeared that the plaintiff let the same to the defendant for a specified time, and upon condition that it should not be removed from certain premises; and that the defendant removed it to other premises, where it was levied on for rent: Held, that the removal of the piano contrary to the agreement was sufficient evidence of a conversion. King ads. Geib. These decisions, which are prepared under the direction of the court, will be regularly continued. due diligence in presenting the draft; and if he takes up the note before maturity, and becomes the holder of it when it is due, any neglect in not presenting the check would be equivalent to a payment by the drawer of the note. Kobbe v. Kerr & Kerr. But if the agent was not the holder of the note when it became due and when he neglected to present the draft, but became the owner afterwards by paying it, such neglect did not prevent the recovery of the note, or could not be deemed a payment of it; and that damages for the negligence in not presenting the draft must be sued for in another action. Idem. An attorney is not obliged to testify as to matters communicated to him by his client, although he may have previously stated them to other persons. The privilege is the benefit of the client, not the attorney. Hanna v. Hutchings and others. The admissions of an attorney that his client had told him certain facts, are not evidence. Idem. In trover, where the declaration is filed, Ontario General Sessions.-The People v. Tripp. the cause of action can only be ascertain- | On the trial of an indictment for such an offer to ed from the declaration. vote when not qualified, with knowledge of such disqualification, it is not necessary for the public prosecutor to show that notice of the election has been published as required by the statutes of this state. In the absence of all proof to the contrary, it will be presumed that the officers whose duty it is to give such notice have performed that duty. Proof that an election was in fact held, and a board of inspectors duly organized, and that it did pro ceed to, and did receive votes, is competent evi dence of the fact that an election was held. The fact that the defendant was under 21 years of age, and that he knew that fact, may be proven by the admissions of the defendant, which is com'petent evidence for that purpose. THE defendant in this cause was indicted under the 13th section of title 7 of the act of 1842, entitled "an act respecting elections other than for militia and town officers;" which provides-" any person not duly qualified to vote, under the laws of this state, who shall knowingly vote, or offer to vote, at any general or special, town or charter election in this state, shall be adjudged guilty of a misdemeanor." The indictment charged that the defend-ant offered to vote at a general election, being unqualified; that he was, at the time, under 21 years of age, and well knew that fact. On the trial, it was proven that a general election for members of assembly and other officers was held in the town of Farmington, on the 5th day of November, 1845. The defendant offered to vote, and handed his ticket to the inspectors for that purpose; that the defendant had admitted that he was at the time under 21 years of age, and that he then knew that he was under 21 years of age. The public prosecutor having rested his case, the counsel for the defendant insisted that the defendant must be acquitted— 1st. On the ground that the public prosecutor had not proven that notice of this general election, as required by the statutes of the state, had been given by the secretary of state, and published by the sheriff, as required by law. 2d. That offering to vote at a general election was not an offence under the 13th section of title 7 of the act of 1842; that this section only applied to town and charter elections, for town and charter officers. 3d. That the admissions of the defendant that he was at the time under 21 years and that he knew that he was was of age, Ontario General Sessions.-The People v. Tripp. not competent evidence of the fact of his minority, or of his knowledge of that fact. T. M. Howell, District Attorney, for the people. which the law of the land has declared criminal. The word "knowingly," as used in this statute, applies not to know. ledge of the law, but of the fact of being disqualified to vote. The word "knowingly," as there used, would appropriate Walter Hubbell, E. G. Lapham, and ly apply to a case where a person really S. V. R. Mallory, for defendant. E. FITCH SMITH, First Judge, charged the jury as follows:-The defendant in this cause is indicted under the 13th section of title 7 of the act of 1842, entitled "an act respecting elections other than for militia and town officers." This section of the statute among other things provides "Any person not duly qualified to vote under the laws of this state, who shall knowingly vote, or offer to vote, at any general or special, town or charter election in this state, shall be adjudged guilty of a misdemeanor, and on conviction shall be imprisoned for a period not exceeding six months, at the discretion of the court before which the offence is tried." This statute, although of a recent origin, and new and highly penal in many of its provisions, is one of great importance to the public, and should be rigidly observed and enforced. Upon the purity of our elections must depend the safety and perpetuity of our political institutions. The design of this statute is to preserve the purity of our elections, by regulating the manner of the exercise of the elective franchise, as one of the surest means of rendering those institutions stable and permanent. Any violation of its salutary provisions, under our form of government, is peculiarly reprehensible, as it is calculated to sap the foundation of those institutions, and uproot the cardinal principles upon which they are based. Such violation, if tolerated, would undermine the constitution, and hasten the downfall of our government. The fact that the statute was recently passed, and that the defendant was in fact ignorant of its provisions, has been urged upon your consideration as a reason why you should not convict the defendant. But it is our duty to instruct you on this point-that it is a maxim of the law that every man must be taken to be cognizant of, and is presumed to know the law hence ignorance of a law cannot excuse a man from the consequences of an act believed that he was in truth and in fact qualified to vote, or that he was 21 years of age, when in fact he was not. An offer to vote, under such circumstances, would not be an offer to vote knowing that he was not qualified; for that would be a mistake as to a matter of fact, and not as to the law. The statutes of this state have defined the qualifications of voters. One of those qualifications is, that the party must have attained the age of 21 years. The defendant must be presumed to know what these qualifications are, and must also be presumed to know, that to offer to vote, knowing that he was not qualified, was illegal and criminal. He cannot set up his ignorance of this statute as an excuse for its violation. There are certain facts of which you must be satisfied. You must be satisfied, beyond a reasonable doubt, that a general or special election was held in the town of Farmington at the time stated in this indictment. It is insisted on the part of the defendant, that you have no evidence of that fact, for the reason that there is no proof that the secretary of state had issued the notice required by statute, or that such notice was published by the officer whose duty it is to have it done. Upon this point we instruct you, that in our opinion such proof is not necessary to be shown affirmatively on the part of the people. The statutes of this state impose upon certain public officers the duty of giving and publishing such notices. When a statute imposes a duty upon a public officer, for a public purpose, courts are authorised to presume that such duty has been performed, in the absence of any proof to the contrary. You have, on this question, the evidence of one of the inspectors of the election, the presiding officer of the board, that an election for members of assembly and other officers was held in the town of Farmington, at the time stated in this indictment, and that a board of inspectors was in due form of law organized, and proceeded to, and did receive votes for Common Pleas, Ontario.-Barnes v. Anderson. age, and such officers. This is competent evidence / at the time was not 21 years of of the fact that an election was held. then khew that fact, then you will find the You must also be satisfied that this was defendant guilty. Otherwise, you will render a verdict of not guilty. Verdict of guilty. COMMON PLEAS, ONTARIO. EXEMPT FROM DISTRESS FOR RENT AND SALE UNDER EXECUTION. a general or special election. The defend- You are next to be satisfied that the defendant, knowing that he was disqualified, did offer to vote at such election. Upon this point it is proven by the president of the board that the defendant did offer to vote, and that he also admitted that he was not 21 years of age, and that he knew the fact that he was not 21. But his counsel insists that his admissions of the fact of his minority, and of his know ledge of that fact, is not competent evidence of the facts admitted. On this point we instruct you, that we regard this evidence competent for that purpose. The fact of the defendant's age, although he be a minor, may be proved either by the testimony of persons acquainted with him from his birth, or by proof of his own admissions, and such admissions are receivable in criminal cases. The infant being regarded as competent to confess the truth in fact, though he may lack sufficient discretion to make a valid contract. His admissions as to his knowledge of the fact that he was 21, are equally competent to prove that fact. If from the evidence in this case you are satisfied that a general election was held, at the time stated in this indictment, that the defendant offered to vote, that he THIS was an action of trespass for a horse. The defendant justified under judgments and executions against the plaintiff. On the trial, the plaintiff proved that the property was taken under two executions issued on two judgments recovered in a justice's court in favor of the defendant, against the plaintiff, and the same sold under said executions by a constable. It also was proved, that one of the executions was issued upon a judgment recovered for the purchase-money of articles, which might be claimed as exempt from execution under the first section of the act entitled "An act to extend the exemption of household furniture and working tools from distress for rent, and sale under execution.” Sess. Laws 1842, p. 193. The debt was contracted since the passage of that act. The plaintiff then offered to show his pecuniary circumstances; that he was a householder, and that the horse was a part of his team, and necessary for him as such. The court refused to admit this evidence. Geo. R. Parburt, for plaintiff. E. G. Lapham, for defendant. E. FITCH SMITH, First Judge, charged the jury: that under the former statutes of the state, prior to the act of 1842, certain articles were exempt from levy and sale under an execution, irrespective of the nature of the demand upon which a judgment was recovered; but that under the Revised Statutes, a horse was not exempt from levy and sale under execution; that by the act of 1842 it was provided, in addition to the articles now exempt by law from distress for rent, or levy and sale under execution, there shall be |
