English Cases.-Q. B.-Doe d. Fleming v. Somerton.-Examination of Students. Hulls, 3 Esp. 156; Grove v. Ware, 2 Stark LORD DENMAN, C. J.-We ought to consider it settled that a notice to quit may be proved by a duplicate or examined copy, without notich having been given to produce the original. If there should be any defect in the original notice to quit, the defendant. has it in his power, and could produce it. cited for the defendant, some words which | v. Palmer, M. & M. 31; Shaw v. Markfell from Lord Tenterden being supposed to ham, Peake N. P. C. 165; Langdon v. be applicable; but on looking at that case, it will be found the words there used do not affect the present question; they only show, that, by holding over the payment of rent as rent, a tenancy from year to year is created; but they do not touch the question when that tenancy may be determined. We are of opinion that a tenancy from year to year, so long as both parties please, is determinable at the end of any year, the first as well as any subsequent year, unless in the creation of the tenancy the parties introduce provisions showing that they contemplated a tenancy for two years at the least; here there are no such words; the notice to quit was, therefore, sufficient. We are aware that this decision may appear at variance with the impression which has prevailed in Westminster Hall. But the authorities, when examined, certainly do not warrant the conclusion that has been drawn from them for the reasons above given; and it would, indeed, he absurd in principle, and inconsist ent with the contract itself, to hold that the tenancy existed from year to year, determinable by half a year's notice by either party at the end of any one year, and yet hold that neither can give such notice during the first year. We are therefore, of opinion, that the rule must be disharged. Rule discharged. DoE d. FLEMING v. SOMERTON-17 April, 1845. EVIDENCE. Secondary evidence may be given of a notice to quit, without notice to produce the original instrument. EJECTMENT by landlord against tenant. On the trial before Alderson, B., at the Lent assizes for Surrey, it was proved that a notice to quit had been duly served upon the defendant, and a duplicate of the notice was produced. It was objected, that no notice to produce the original had been given. The learned Judge overruled the objection, and a verdict was given for the lessor of the plaintiff. Pearson moved for a new trial. The duplicate was improperly received in evidence, there having been no notice to produce the original. The original is a document by the operation of which the tenancy is determined; it is not merely a notice. Lanauze PATTESON, J.-In the case of a notice of dishonor, it had been expressly decided that a notice to produce the original need not be given. Swain v. Lewis, 2 C., M. & R. 261. The same principle applies to a notice to quit, and we ought not to shake it. WILLIAMS and WIGHTAM, ,J. J., concurred. Rule refused. EXAMINATION OF STUDENTS. On a recent occasion prior to the commencement of the examination of the candidates for admission to practice as attorneys, the examiner delivered an address, from which we extract the following: "And now, let us suppose, that you have all reached the goal of your wishes an agreeable hypothesis; to which you will not object, and which we readily entertain. Let us take a brief and rapid glance both backward and forward. You will have achieved a great step in life, upon which your future well-being must materially depend. Enter, then, upon the career opened to you, with a frame of mind best calculated to ensure your success in it; with a due sense of your manifold obligations both to God and man. Time was, when a young man entering upon the preparatory studies of the legal profession, (it matters not for what branch of it he is designed) had few helps, little encouragement, and almost insuperable difficulties to contend with! Exposed to the temptations of society at an age when the imagination and the passions, easily excited, are his worst enemies, (traitors within his bosom, ever ready to betray him,) a young man had formerly little to invite or influence him, to choose the better path of virtuous endeavor. Lonely, indeed, and dark and rugged was the way, if he did es. say to explore it. Examination of Students-Miscellaneous. He was without a guide | benevolence. And then will be seen how much of the influence he will exercise upon the minds and feelings, the character and conduct of others, must depend upon his own deportment. The respectable attorney (whatever may be supposed) is almost always a peace-maker and a settler of disputes, without litigation, where it is practi cable. He will be often called upon to mediate between fierce and excited dispu tants; between profligate husbands and unreasonable wives; between refractory, dis-, obedient children, and unkind and unnatural parents; how much of his weight must depend upon his being himself a prudent, to allure to brighter worlds-and show the way;' and no one seemed to take an interest in his improvement. How different is the case now, this building, these walls, sufficiently attest! Every inducement is held out-every facility afforded to mental improvement. No pains are spared by those with him, about him and above him, to promote the spread of education. All are combined and associated, with the co-operation of the highest ranks, (of all who grace and adorn the bar and the bench) in his favor, to advance intellectual culture-the Georgics of the mind: (that beautiful, truthful, and tasteful expression!) and with the improve- sober-minded man; a good husband and a ment of the individual, the unwearied exertions of the same zealous society and its enlightened coadjutors, closely connected with it-the elevation of the profession. For these and other advantages, every student ought to feel that he owes a deep debt of gratitude for the past; and no slight part of it, to this excellent institution, its original founders and present supporters. good father. It will be often within the "But now, let us suppose him entering upon the practice of the profession, with a competent knowledge of its duties, the fruits of his judicious and well-directed labors : what are his obligations for the future? They cannot be better viewed than by the sober light of our earliest guides and simplest instructors. By these we were com. prehensively taught, that our highest obligation was to discharge effectively, the duties of the station in which we are placed. And in what station can a qualified, responsible being be placed, with more of claimof occasion-of opportunity for the display of that enlarged usefulness which most exalts and dignifies our nature, than in the practice of the law?-of that law, which, according to its admirable Commentator, engages in its theory all the noblest fac. ulties of the mind, and exercises in its practice all the cardinal virtues of the heart.' This is eloquently said; but I dwell not This is eloquently said; but I dwell not upon glowing expressions. I feel that what falls from me in this chair, ought to be plain and eminently practical, suited to all capacities and the every-day business of life. All men are not gifted with brilliant talents -all have not enjoyed opportunities of being extensively and profoundly learned; but In what respect does Benjamin Franklin every man can be attentive and useful and resemble Judge Edmonds? Ans. The one diligent in his calling; and just and upright bottled lightning-the other jugged Big in all his dealings; and promote justice and Thunder. 6 During the discussion of a ministerial measure in the House of Commons, Sir Robert Peel made some pungent allusions to those who, without having the power actually to defeat his policy, were yet very successful in causing delay. Referring to the leaders in this sort of work, he reminded the House that "when travelers in the East do not want to go too fast they put a jackass in front !" R Pew VOL. III.] THE York Begal NEW YORK, NOVEMBER, 1845. SLANDER. WHEN THE COMMUNICATION OF SLANDEROUS bserver. [MONTHLY PART. the then denial of this charge, the defendant went and complained in similar terms to the landlord's agent by whom the plaintiff' had been employed, and subsequently repeated, in reply to an inquiry by Taylor, and in the absence of the plaintiff, that he was confident the plaintiff had broken open the cellar door. On this state of facts it was contended in support of a motion for a nonsuit or new trial, that these were priviledged communications, and that, therefore, the question of malice should have been left to the jury. After taking time to consider, the judgment of the court was delivered by Parke B., in the course of which As a general rule the liability of a party, who uses and publishes of another expressions which amount in law to slander, does not at all depend upon the actual consideration of the particular motives prevailing at the time. It is enough that the words are found to be per se actionable, in order to warrant therefrom a legal implication of existing malice. To this general rule, however, there are some exceptions classed under the distinctive denomination it is laid down, that the communication to of "priviledged communications ;" and when it is remembered that in an action on the case founded on statements of the latter description, the question of malice becomes an ingredient so essential to success, that it cannot, as in ordinary cases, be left to mere inference, but must expressly, and in fact be proved, the importance of a decision, tending to settle and define what is to be considered a "priviledged communication," must, unhesitatingly, be admitted. Of this character is the decision of Griffith v. Lewis, 3 New York Legal Observer, 330 S. C., 9 Jurist, 390; and in now briefly adverting thereto every observation will be limited to that particular kind of priviledged communication, the nature and extent of which the case in question very accurately defines, namely how far the communication of slanderous words in answer to an inquiry by a person who is interested in knowing whether they have been previously used or not, can be so considered. The first case to which it is necessary to refer is, that of Twogood v. Spyring, i C. M. & R. 1 There the defendant, who was tenant of certain premises, for whom in the capacity of a journeyman carpenter, the plaintiff in the action had been sent by the landlord's agent to do certain work, charged the plaintiff, in the presence of a person named Taylor, with being drunk, and having broken open his (the defendant's) cellar door. Upon In the landlord's agent, and that made in the presence of Taylor, were to be considered as priviledged; but that the subsequent one, made in the absence of the plaintiff to Taylor, could not be so considered. The ground, on which the decision, with respect to the first charge in the presence of Taylor, rests, is that of its being made by one who was to be considered as standing in the relation of master to the plaintiff, and it may be well to quote a portion of the judgment relative to this point, as it will be found of some assistance in determining the practical application of the law. Griffiths v. Lewis, Mr. Baron Parke observes "I am not aware that it was ever deemed essential to the protection of such communication, that it should be made to some person interested in the inquiry alone, and not in the presence of a third person. If made with honesty of purpose to a party who has any interest in the inquiry, (and that has been very liberally construed, Child v. Affleek, 4 Man. & Ry. 590. 9 Barn. & Cress. 403.) the simple fact that there has been some casual bystander cannot alter the nature of the transaction." And again, "the mere fact of a third person being present does not render the communication absolutely authorized, although it may be a circumstance to be left with others, including the style and character of the language used, to the consideration of the jury, who In Chancery.-Hardin adm'r v Patterson et al. where an infant hires a horse he will not be liable in an action on the case for an immoderate use of it, the offence arising clearly out of the mere breach of the agreement; but had he refused to return it, or willingly killed the horse, for such wrongs it would seem that his nonage would not protect him. Howlett v. Howlett, 4 Camp. 118. IN CHANCERY. COURT OF APPEALS-FLORIDA. Before the Hon. DILLON JOURDAN, President JOHN HARDIN adm'r appellant v. PATTER- On the same principle it was held, Green v. Greenbank, 2 Marsh 485, that infancy is a bar to an action for a breach of a warranty of a horse, though framed in an action on the case for deceit, the foundation of the action being a breach of the undertaking, whether the action is framed in assumpsit, By deed of Marriage settlement executed in South or case for the deceit. An infant who has goods delivered to him on a contract of sale is not liable either in trover or detinue, inasmuch as the delivery was in pursuance of a contract by which the return of the goods was not contemplated, (Johnson v. Pie, 1 Lev. 169; 1 Keb. 905, S. C.) a circumstance which distinguishes these cases from the case of Mills v. Graham, 1 N. R. 140, above quoted. There are instances in which an action of debt and detinue has been brought against an infant upon his refusal to pay for or return goods sold to him, and a plea of infancy to the count in detinue was not pleaded, and Mr. Chitty, in his work on pleading, vol. 1, p. 124, 6th ed., says, "if an infant buys goods and he refuses to pay for them, detinue lies for the goods." SUIT AGAINST TRUSTEES. THE institution of a suit against trustees for the administration of the trust does not, it seems, necessarily suspend its execution. There is no reason why the mere institution of a suit should have this effect. In a recent case that came before Vice Chancellor Wigram, he observed, "if the court has assumed the execution of the trusts, it will be highly inconvenient, if not impracticable, for the trustees afterwards to act independently of the court; the court, however, in the absence of any misconduct on the part of the trustees, does not deprive them of the exercise of their discretion. It only requires them to act under its control. But the mere filing of a bill cannot have the effect of preventing trustees from doing acts necessary to the due execution of the trusts which are imposed on them. Such a rule might in many cases operate to destroy the trusts altogether. Capev. Bent, 3 Hare, 245. MARRIAGE SETTLEMENT-TRUST PARTITION. Carolina, in 1807, certain negro slaves, the property of the intended wife, were conveyed to trustees with consent of the intended husband; upon the trust following amongst others, "that if the wife should survive the husband, having children, then that the trustees should stand possessed of the slaves and their increase, for the use, benefit and behoof of the widow and the children of said intended marriage as tenants in common." The marriage was solemnized and the property held by the trustees during the husband's life. He died in 1810, leaving one child, the issue of that marriage. His widow married again in 1812, and upon this second marriage, a deed of settlement to the same trustees, and in terms precisely similar to the first, was executed. There was no issue of this marriage, and the second husband died also. A third took her to wife, and he also died childless. On the occurrence of the third marriage there was no deed of marriage settlement. Ön a bill filed by the widow, it was alleged that the slaves were in the last husband's possession during the coverture, that A. L W., the sole issue of the first marriage, and as such tenant in common with the complainant, was of full age, and that a partition in all respects satisfactory was made of the slaves by decree of Jackson county court, the validity of which, however, was questioned-that one moiety in value was delivered to said A. L. W., and the other remained in the possession of complainant and her husbaud-that he died greatly embarrassed, and that the slaves have been taken in execution for his debts. The bill claimed the interposition of the court on the ground that the property was protected by the first deed of marriage settlement from the *This case was sent to us by one of the leading members of the bar of Florida, who, we presume, In Chancery. Hardin admʼr v. Patterson et al. marital rights of the third husband-it being a The marriage was solemnized between continuing trust. It also prayed an injunction the complainant and Elisha Woodard; the against the judgment creditors and a decree against the executor of the deceased, for the lives slaves were held by the trustees in accordof the slaves since his death, as a preferred claim. ance with the provisions of the deed, until Held by the court, (JOURDAN, J., dissenting) upon the death of Woodard, which took place in demurrer to the bill, that the purposes of the the year 1810, leaving one child, the sole deed of trust, being to protect the property against the marital rights of the husband, were fulfilled issue of the marriage, and his widow him at his death. That the widow and the infant surviving. then became invested with the legal estate by operation of law, and the possession of the property (it being personalty) having been surrendered by the trustees, the trust estate terminated, the title of the widow and her son became complete, and the legal estate in the slaves vested in them as tenants in common. Held also, that the second deed being in terms like the first, the trust thereby created terminated at the death of the second husband. Held also that there being no marriage settlement on the occasion of the third marriage, the marital right of the husband attached. Held also that the partition of the property made in this case (the parties being of full age and consenting) was valid and binding. Held also, that even if the marital rights of the husband had not attached, yet that the claim for hires, since his death, would at most be but a simple contract debt against his estate, to be discharged pro rata with other debts of like dignity. The circumstances of this case are fully stated in the adjudication. The bill further states, that sometime in the year 1812, the complainant again intermarried with one Obediah Fey: that a deed of settlement similar in all respects to the one made and entered into previous to her first marriage with Woodard was executed, and the same trustees interposed. By this marriage there was no issue, and Fey, the second husband, died sometime in the year 1814. The bill further states, that sometime in the year 1816 the complainant again intermarried with one William Patterson, of the State of Georgia: that previous to this marriage no new deed of settlement was made to protect the property from the marital rights of the third husband, it being deemed unnecessary, as it was considered by the parties that the property was still vested in the trustees for the purposes of the settle ment. DOUGLAS, J., delivered the opinion of the The bill then alleges that the slaves were Court. This case comes to this court upon in the possession of Patterson during the an appeal from a decree of the Judge of the continuance of the marriage with complainSuperior Court of Jackson county, pro-ant: that Alfred L. Woodard, the sole issue nounced at the Spring Term of 1842. complainant and her husband Patterson : that Patterson died greatly indebted and embarrassed, that his executor has taken possession of the slaves, and that they are in danger of being taken in execution to satisfy his debts. of the first marriage, and as such tenant in A bill was filed in that court on the 13th common with the complainant, was of full day of March, 1840, by Esther Patterson, age, and that a partition in all respects satsetting forth that the complainant some time isfactory, was made of the slaves, by decree in the year 1807, then a feme sole, resided of the County Court of Jackson county; and in the State of South Carolina, and was law-one moiety in value delivered to Alfred L. fully possessed in her own right of certain Woodard, the issue of the first marriage; negro slaves named in the bill: that, being and the other moiety left in possession of about to intermarry with one Elisha Woodard, a deed of marriage settlement was made and entered into, with full knowledge and consent of said Woodard; by which the slaves were conveyed to trustees for the purposes set forth in said deed, one of which was, that if the complainant should survive The bill then prays, that the creditors of the said Elisha Woodard, having at the Patterson be perpetually enjoined from levy. time of his death children of the said intending their executions on the slaves, or in any ed marriage, then and in that event and contingency, the trustees and the survivor of them, his executors and administrators should stand possessed of the said negro slaves and their future increase and issue, for the use, benefit and behoof of the complainant so surviving, and the children of said intended marriage, as tenants in common. manner intermeddling with them, and that the executor of Patterson be required to pay over to the complainant the hires of said slaves since the death of Patterson, and that the amount of such hires be, when ascertained, a preferred debt against the estate of said Patterson. |