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tutional provision, but also for the reason that it prac- mission, “they had no other power but only to keep tically affects important public and private inter- the peace." But from time to time their powers were ests.

enlarged, and they came to constitute , very impor. The polioy of fixing by coustitutional provision a tant agency in the administration of local government limitation of age to judicial service, first established in England. They discharged a great variety of duin this State in respect to the chancellor and judges of ties connected with the support of the poor, the repathe Supreme Court by the Constitution of 1822, and ration of highways, the imposition and levying of paabandoned in the Constitution of 1846, was re-estab- rochial rates, and other local affairs. See enumeralished by the judiciary article of 1869, primarily with tion in St. 76, Geo. II, ch. 18. reference to the terms of those judges, which by the They were invested with judicial powers for the first same article had been extended to the period of four- time, it seems, by tbe statute, 34 Ed. III, ch. which teen years. Folger, J., People v. Gardner, 45 N. Y. gave them power to try felonies, but then ouly when 819. Ou this ground it was claimed in the case of the two or more acted together, and not singly, and it is People v. Brundage, 78 N. Y. 403, that the limitation said by Blackstone (vol. 1, p. 349), “they then acquired of age in the 13th section did not apply to county the more honorable appellation of justice." I do not judges, whose terms were by the 15th section fixed at find that they ever exercised in Eogland jurisdiction six years instead of four years, as previously estab- in civil causes. lished. The court however, resting upon the broad The office of justice of the peace was brought here language of the restrictive clause, held that county by the English colonists. From the earliest colouial judges were included.

period it has existed in this country. By the code It is however, we think, quite evident that the limi- known as “The Duke's Law" for the government of tation does not apply to every officer who is invested the colony of New York, promulgated in 1665, justices with judicial power. It is the “office of justice or of the peace were commissioned for the towus in the judge of any court” which the clause declared shall province, with the same powers as in England. The not be held by any person beyond the age specified. judicial establishment created by “The Duke's Laws," But the judicial function may be vested in a person to comprised a local court in each town, with jurisdiction be exercised for certain purposes and ou particular oc- of actions of debt and trespass, under £5, to be held casions, who does not hold “the office of justice or by the constable and overseers of the town; a Court of judge of any court” within the meaning of this Sessions for each of the three ridings, and a Court of clause.

Assize for the whole province. Justices of the peace The Constitution itsell furnishes one illustration. The were entitled to sit as members of the Court of Sespresident of the Senate, the senators, and the judges sions and the Court of Assize, but not of the town of the Court of Appeals comprise the court for the courts. In 1691 the judicial system was reorganized trial of impeachments, created by the 1st section of by an act of the Colonial Legislature. By that act the the 6th article. But neither the lieutenant-governor town courts were changed into Courts of Justice of the nor the senators, although they act as judges on the Peace, to be held by one justice and two freeholders. trial of an impeachment,” hold “the office of justice or It was not until 1737 that a justice of the peace was judge of any court." The office which the lieutenant empowered singly to hold a court for the trial of acgovernor bolds is that indicated by his title, and so of tions. See monograph upon the courts in this State, the senators. The judicial function which they exer- by Chief Judge Daly, Preface 1 E. D. Smith's Rep.; cise in the particular call is annexed to their respect- also 3 Daly's Rep. Appendix. ive offices. They sit as judges on the trial of impeach- But from the earliest colonial period until this time, ments, but they do not hold the office of judges while justices of the peace bere, as in England, have been inacting as such. We think it plain that they would vested with various and important functions connected not be disqualified from acting as members of the with local administration, quite independent of their court after attaining the age of seventy years, under judicial authority. A glance at the statutes will show the clause in the Constitution now in question.

how important a part these officers have had in the Another illustration is furnished in the statutes cre. administration of the poor laws, the highway acts, the ating mayor's courts in cities, by which judicial powo adjustment of town and county charges, and indeed ers are vested for certain limited purposes, in mayors in nearly every department of local administration. and other municipal officers. There is such a court in It is important to notice that the judicial functions the city of Hudson, and it may be in other cities, exercised by justices of the peace was a graft upon which is held by the mayor, or by the mayor in con- their original authority, and that the enlargement of junction with other officers. The mayor in these their powers has not been in this direction alone, but cases acts as a judge or magistrate, but the judicial that by gradual accretion they have come to constifunction is incident to the office of mayor. He does tute a most important factor in the corporate adminnot hold the office of judge, and if eligible to the office istrative life of towns and counties. The gradual of mayor, although seventy years of age, he may, we growth of their powers and functions furnishes a good think, discharge the duties connected with that office illustration of the manner in which institutions grow after that time, including the holding of the Mayor's up and adapt themselves to the changing conditions Court, without a violation of the Constitution. and demands of society, until they are brought to sub

Returning to the immediate point now in judgment serve in the most effectual way the public inter-
the question pow recurs, does a justice of the peace ests.
"hold the office of justice or judge of any court We have failed in the purpose of this brief historical
within the meaning of section 13, article 6 of the Con- reference to the origin and growth of the office of jus-
stitution? This office was not created by the Consti- tice of the peace, unless it shows how widely it differs
tution. Justices of the peace had been known to the in the circumstances of its institution and develop-
common law of England for a century and a half be- ment, and in the variety of its functions from the of-
fore America was discovered. They were in their fice of judge of an ordinary court. We know as mat-
original institution mere conservators of the peace, ex. ter of experience and observation that justices of the
ercising no judicial functions. It is said in Burn's peace are not in common speech known as judges, but
Justice, vol. 3, p. 4 (19th ed.), that by the statute of 1 are uniformly called by the distinctive title of tbeir
Ed. III, which is the first statute that ordains the as- office, “justices of the peace." Unquestionably their
signment of justices of the peace by the king's com, jurisdiction as a tribunal for the trial of small causes

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is now the most important of their functions, but they The order of the General and Special Terms should
bave never lost their character as administrative be reversed and the writ dismissed.
officers, and in this respect they occupy a position and All concur.
character and exercise powers unique, and in many
respects quite dissimilar to those exercised by other

EJECTMENT- CONTINUOUS ADVERSE POSSESjudicial officers.

SION BY TACKING.
An examination of other sections in the judiciary
article throws light upon the construction of the 13th

MARYLAND COURT OF APPEALS, MARCH 27, 1884.
section, and furnishes strong ground for an inference
that justices of the peace were not intended to be in-
cluded within the restrictive clause. In provisions in-

HANSON V. Johnson.* tended to apply to judges or justices of inferior, courts

A feme covert died in December, 1854, leaving a will, which and also to justices of the peace, the latter are specially

was admitted to probate, but was not executed in due mentioned by their name of office, aud their inclusion

form to pass real estate as required by the act of 1842, ch. is not left to inference from general words.

293, then in force, because the consent of her husband in The 11th section of the 6th article, after prescribing

writing was not annexed thereto, and also because it was how judges of Court of Appeals and of the Supreme

not executed sixty days before her death. By said will Court may be removed, proceeds as follows: "All ju

she devised a farm to her husband for life, with remaindicial officers, except those mentioned in this section,

der in fee to her nephew. Under it her husband on the and except justices of the peace and judges and jus- 1st of January, 1855, entered into possession of the proptices of inferior courts not of record, may be re- erty, claiming title as tenant for life, and so continued in moved," etc.

possession until the 5th of February, 1868, when he united The same language is repeated in section 18. “Jus

with the nephew in a sale and conveyance to J., who tices of the peace and judges and justices of inferior

thereupon entered upon said property, and continued in courts not of record," etc. Justices of the peace are in possession up to the 11th of April, 1882, when the heirs at a general sense judges of an inferior court, but their law of the testatrix brought ejectment against him. Held, special designation in these provisions by the title of 1st. That the claim of title and possession of the husband, as their office is a recognition in the Coustitution itself tenant for life under the will, being hostile to the title of of their peculiar and distinctive character, and indi. the heirs at law, was as against them adverse and exclucates that they were not intended to be included sive. within the general words,“ judges or justices of a 2d. That the purchaser from the husband and nephew having court," as used in that instrument. The provision in immediately taken and held possession under the conveythe 13th section that “no person shall hold the office ance to him, his possession was added or tacked to the of justice or judge of any court,'' is to be interpreted possession of the husband, making a continuous adverse in the light of the antecedent and subsequent sections, possession of more than twenty years, which by the and so interpreting them, justices of the peace are not, Statute of Limitations (21 James I, ch. 16) was a flat bar to we think, included.

the right of the plaintiffs as heirs at law. There are other considerations which tend to sup

PPEAL from the Circuit Court for Kent county. port this conelusion. There was no apparent reason A or policy for subjecting justices of the peace to the limitation of age applicable to the general class of judges.

This was an action of ejectment, instituted on the Their terms are short, and are left by the amended

11th of April, 1882, by the appellants against the apjudiciary article as they were fixed by the Constitu

pellee. The case was tried upon an agreed statement tion of 1846.

of facts, which are sufficiently set forth in the opinion It does not appear that any public inconvenience has

of the court. By consent a pro forma judgment was resulted from the absence of a limitation of age appli.

entered in the court below in favor of the defendant, cable to these officers. Their number, four in each

with the right of appeal by the plaintiffs.
town, afforded a reasonable guaranty that the public D. Hopper Emory and Wm. A. Hammond, for appel-
service would not suffer by the disability of any of the

lants.
incumbents arising from age, and the easy means pro- James A. Pearce, for appellee.
vided for their removal would subject the public at
most to only a temporary inconvenience. It cannot

ROBINSON, J., delivered the opinion of the court. be claimed that the prohibition in the 13th section

This is an action of ejectment, brought by the appelwould have been applied to justices of the peace, if lants, as heirs at law of Catharine H. Wroth, to rethey alone had been in the contemplation of the fram

cover an undivided half interest in a tract of land, of ers of that instrument.

whicb she died seised. We are of opinion for the reasons stated that a justice

The facts are these: Mrs. Wroth died in December, of the peace does not “hold the office of justice or

1854, leaving a paper purporting to be a will, by which judge of any court' within the purview of the 13th

she devised the farm in controversy to her husband, section. To avoid misapprehension, it may be proper

Peregrine Wroth, for life, with remainder in fee to to say that we do not intend to decide that the prohi

her nephew, George A. Hanson, bition may not apply to persons in office whose official

The will was pot executed in due form to pass real title is not that of judge. If the office is a judi.

estate,as required by the act of 1842,ch.293, then in force cial one, and is created for the exercise by the incum- because the consent of her husband, in writing, was not bent of the judicial fanctions, a court, as for example,

annexed thereto, and also because it was not executed & surrogate, quite other considerations would apply

sixty days before her death. It was admitted how. than those which appertain to the case now before us.

ever to probate by the Orphans' Court of Kent county, This case rests upon the dual character of the office of

and under it her husband, on the 1st of January, 1855, justice of the peace, the essential distinction between

entered into possession of the property, claiming title his duties and functions and those of any other judi

as tenant for life, and so continued in possession until cial officer, and upon a discrimination made by the

the 5th of February, 1868, when he united with the reConstitution itself. See Setlle v. Van Evrea, 49 N. Y.

mainderman, George A. Hanson, in a sale and con280.

* S. C., 62 Md. 25.

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Owner.

crue.

veyance of the same to the appellee, and who there- agreement, as a lessee for years, who continues iu pos. upon entered upon said property and has session after the expiration of his term, and without a tinued iu possession up to the institution of this renewal of the lease, or a tenant at will, who holds guit.

over after the death or alienation of the lessor, or a Mrs. Wroth never had any children, and the ap- tenaut per autre vie, who remains in possession after pellants, as heirs at law, are entitled to recover, the death of the cestui que vie. Coke on Litt. unless their right is barred by the adverse pos- 57 b. session of the appellee and of those under whom he After the death of his wife, Doctor Wroth took posclaims.

session claiming a life estate under her will. His A great deal has been said, as to what constitutes claim of title was inconsistent with and hostile to the adverse possession, and it would be a wearisome task title of the appellants as heirs at law. The property to go and examive at length the many cases in which was a farm, under inclosure and under cultivatiou; bis this great question has been considered. Prior to the possession was actual, visible, and according to all Statute of 3 and 4 Will. IV, ch. 27, it was an ever-recur- the authorities, adverse to the title of the lawful ring and troublesome question in England, but by that statute, passed in 1833, the doctrine of adverse posses- But theu it is argued, to constitute adverse possession was virtually abolished, and by it possession of session one must claim the entire estate, or claim to any kind for twenty years was made a bar, unless the exclusion of all other rights. In one sense this is there was either a payment of rent or an acknowledg- true. Possession will not be adverse if it be ment of some kind by the party in possession. The held under or subservient to higher title, effect of the statute, says Lord Denman, in Culley v. nor if it be consistent with the interest or Doe dem. Taylerson, 3 Per. & Dav. 539, is to put an estate of

the claimant; for instance, where end to all questions and discussions whether the pos- the possession of one is the possession of the other, or session of lands be adverse or not; and if one party where the estate of one in possession and that of the has beau in possession for twenty years, whether ad- claimant form different parts of one and the same esversely or not, the claimant whose original right of tate. The mere entry and possession of one tenant in eutry occurred above twenty years before bringing common, or joint tenant, or coparcener, will not be the ejectment is barred. Nepean v. Doe dem. Knight adverse to :he co-tenant, because the possessiou of 2 M. & W.911; Doe dem. Pritchard v. Jauncey, 8 C. & one is the possession of the other. To constitute adP. 99.

verse possession in such cases, there must be an ouster, This statute is not however in force in this State, an entry and possession, hostile to the title of the coand the question of possession in this case is one to be tenant. Nor will the possession of a tenant for years, determined by Stat. 21 Jas. I, ch. 16, which provides or tenant for life, be adverse to the reversioner or heir that no one shall make an entry into any land in remainder. but within twenty years after his right shall ac- The decisions in Smith v. Burtis, 9 Johng. 180; How

ard v. Howard, 17 Barb. 667; Doe dem. Human v. PetNow when the question arose whether one was tett, 5 Barı. & Ald. 223; Dean v. Brown, 23 Md. barred by twenty years possession, it was determined 16; Bedell v. Shaw, 59 N. Y. 46, were decided by considering whether he had been out of possession upon these well-settled principles. under such circumstances as had reduced his interest In this case however Doctor Wroth entered into posto a right of entry; for if he had, then as that right of session, claiming a life estate under the will, the reentry would be barred by the statute at the end of mainder being devised to another person. The estate twenty years, the possession during the intermediate claimed by him was a freehold, and as there could only time was adverse to him. And in order to determine be one possession or seisiu of the same estate at the whether he had been out of possession under such cir- same time, his possession inured to the benefit of the cumstances as reduced his estate to a right of entry, remainderman. His possession was in law the posses. it was necessary to inquire in what manner the person sion of the remainderman, and as such it represented who had been in possession during the time held. If he the entire estate, his own estate for life, and the esheld in a character inconsistent with and hostile to the tate of George A. Hanson in remainder. And bis title of the claimant to the freehold, the possession claim of title and possession being hostile to the title was adverse. 2 Smith's Lead. Cas. 531; Nepean v. Doe of the appellants as heirs at law, his possession was as dem. Knight, 2 M. & W. 910; Taylor ex dem. Atkyns v. against them, adverse and exclusive. The will was, it Horde, 1 Burr. 60.

is true, invalid, but Doctor Wroth baving entered into “Twenty years adverse possession, says Lord Mans- possession, claiming title under it, he would be esfield, in Taylor v. Horde, “is a positive title to the topped from denying the title of the remainderman defendant, it is not a bar to the action or remedy of claiming under the same instrument. This was dethe plaintiff only, but takes away his right of posses- cided in Board v. Board, L. R., 9 Q. B. 48; S. C., 7 sion."

Eng. Rep. 111. In that case, a tenant by the curtesy The question then of adversary possession in this undertook to devise the curtesy estate to his daughter case resolves itself into this: was the possession of for life, with remainder to his grandson. Upon the Doctor Wroth, under whom the appellee claims, in- death of the testator, the daughter entered into posconsistent with and hostile to the title of the appel. session, and having been in possession for twenty lants as heirs at law? And in regard to this question years, sold and conveyed the property in fee to the dethere ought not, it seems to us, to be any doubt. Dur- fendant. In the meantime the grandson sold his reing the life-time of his wife he received, it is admit- versionary right to the plaintiff, and upon the death ted, the rents and profits of the farm in controversy. of the daughter, he brought an action of ejectment, To these he was entitled by virtue of his marital and it was held that the daughter having entered under rights. Upon her death, this right ceased. He was the will, the defendant, claiming under her, was esvot tenant by the curtesy, because his wife never had topped as against all those in remainder, from disputany children. He was not a tenant by sufferance, be- | ing the validity of the will, and that the plaintiff was cause an estate at sufferance is where one comes into | entitled to recover. possession by lawful title, but keeps it afterward with- Mellor J., said: "The only person who could disout any title at all. Or as Lord Coke says, “ one who pute the possession of Rebecca, under the will, was originally comes in by right, but continues by wrong.” the heir at law. He never disputed the possession, and It is a tonanoy founded originally on contract and his title to the estate is barred by the operation of the

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ON cerceptions from the Superior Court: The facts

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statute of limitations. A person cannot say that PARTNERSHIP_TRUSTEE PROCESS-SET-OFF
a will is valid to enable him to take a benefit under

-DEBT SECURED.
it, but invalid so far as regards the interests of
those in remainder, who claim under the same

MAINE SUPREME JUDICIAL COURT, FEB. 2, 1884. will."

This case was decided, it is true, after the passage DONNELL V. PORTLAND AND OGDENSBURG R. Co.,
of the Stat. of 3 & 4 Will. IV, but the claim of title and

CLARK AND TRUSTEE.*
possession by the daughter, being hostile and incon-
sistent with the title of the heir at law, her possession

At the time of the service of the writ on the alleged trustees, was adverse under the Stat. 21 Jas. I, as against the

they as a firm were indebted to the principal defendant lawful title. And being adverse, the heir at law must

railroad company in the sum of $607.58 for freight. Prior bring his action within twenty years, or his title will

to such service the railroad company gave its note for the be barred by the statute of limitations. It is better,

payment of $550, amply secured, to one of the members of says the law, that tbe negligent owner who has omit- the Orm, payable after such service, but before the disted to assert bis right within the time prescribed by

closure At maturity of the note, by agreement bethe statute, should lose his rights than one should be

tween the payeeand the railroad company,its amount was disturbed in his possession, and harassed by stale de

s credited upon the firm's indebtedness to the company; mands after the proof on which his title rests may

and the pote, with the collateral security, was surrenbave been lost or destroyed. But whatever may be

dered to the company. Held, that the trustees should be the reasons or the policy of the law, twenty years ad

charged for the whole amount of their indebtedness to

the company, verse possession is a bar to the title, without regard to

without deducting the amount of the note. the original right of the parties.

The possession being adverse and exclusive in this are stated in the head-uote and opinion of the
case, the only remaining question is, whether it has court,
been continuous for twenty years? And this depends

W. L. Putnam, for plaintiff.
upon whether the possession of Doctor Wroth can be
united, or in other words tacked to the possession of

Haskell & Woodman, for trustees.
the appellee.

VIRGIN, J. The disclosure of Clark shows that the Now the possession of several distinct occupants of two supposed trustees were and are in fact the sole Jand between whom no privity exists cannot, it is members of a partnership, although they are not detrue, be united to mak up the statutory period, for scribed as such in he writ. Service however was the reason, if one quits or abandons the possession, the properly made on each of them. Hutchinson v. Eddy, owner will be deemed to be in the constructive posses- 29 Me. 91; Warner v. Perkins, 8 Cush. 518. sion of the property by reason of his title. The separ- The disclosure also contains a statement of the acate successive disseisins in such cases do not aid each counts between the firm and the principal defendant, other, and their several possessions cannot there- from which there appeared at the date of the service fore be tacked, so as to make a continuity of posses- of the writ a balance of $607.58 in favor of the latter. sion.

The supposed trustees were therefore properly charged But we take it to be well settled that where there is for that bum by the court below, unless they should a privity of estate between the successive parties in

have been allowed to deduct the amount of the note possession, then the possession of such parties may be

given by the principal defendant to Clarks individunited so as to make the twenty years required by the

ually. statute. And it is equally well settled that such priv.

The note was given prior to the service of the writ ity may be created by a sale and conveyance and pos

on the supposed trustees, although it was not then session under it, as well as by descent. As was said

payable; but it matured and was credited on the aoby Tilghman, C. J., in Overfield v. Christie, 7 S. & K.

count by the parties before the disclosure. If it had 177: “One who enters upon the land of another and

been due when the writ was served, and Clark bad recontinues to reside on it, acquires something which

tained possession of it, it might have been set off pro be may transfer by deed as well as by descent, and if

tanto against the firm's indebtedness; for each partuer, the possession of such person, and others claiming being liable for his partnership's debts, may discharge under him, added together, amounts to the time limi

them with his individual fuuds if he so elect. Robinted by the act of limitations, and was adverse to him

son v. Furbush, 34 Me. 509. who had the legal title, the act is a bar to a recovery."

Nor would the mere fact that the note was not due Angell on Lim. 414, 420; Wood on Lim., $ 271; Tyler on

when service was made necessarily prevent the set-off, Eject. 910.

provided it was given prior thereto, and was payable In this case there was an adverse and exclusive pos

before the disclosure. To be sure, it is generally true session of the farm in question by Doctor Wroth for

that a trustee's liability depends on the state of facta

as it existed when the process was served on him. But thirteen years. He then united with George A. Han

this rule is not universally applicable. Some apparent Bon, the remainderman, in a sale and conveyance to

liability may be necessary at that time; but it may be the appellee, who immediately entered and has con- materially modified and even wholly discharged by tinued in pogression up to the present time; the pos. subsequent events on the score of equitable set-off session of the appellee, thus added or tacked to the (Marrett v. Equitable Ins. Co., 54 Me. 537, 539; Smith v. possession of Doctor Wroth, makes a continuous ad

Stearns, 19 Pick. 20, 23), where the exception is vari

ously illustrated by Shaw, C. J. Ferse possession of twenty-seven years. The posses

Moreover it has been held that where a supposed sion under such circumstances is by the statute of

trustee, when the process was served on him, was inlimitatious a flat bar to the right of the appellants as debted to the principal defendant, but he had previously heirs at law. The judgmeut below must therefore be at the request and for the benefit of the defendant, in. affirmed.

dorsed without indemnity the latter's note, which, the

Judgment affirmed. defendant having failed, he was legally compelled to pay (130 Mass. 121; 119 id. 414; 46 Penn. St. 385; 2 Law, the trustee might be allowed to set off the sum paid on 540; 79 III. 233; 9 Eng. 832.]

*To appear in 70 Maine Reports, 33.

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the note agaiust the apparent indebtedness. Boston NEW YORK COURT OF APPEALS ABSTRACT. T. & S. F. Co. v. Mortimer, 7 Pick. 166. And the rea8011 assigned was that if the principal had sued the

DEED-DELIVERY -- VOLUNTARY SETTLEMENT.-(1) trustee, although the latter's claim not being then due

In cases of voluntary settlements courts have gone could not be filed in set-off, yet if at any time before

great lengths in sustaining the validity of deeds with judgment, the plaintix in the suit had become in

out affirmative proof of any delivery, and the earlier debted to him for money paid on a liability incurred

cases hold that a voluntary settlernent fairly made is before the suit, which the plaintiff had failed and was

binding in equity, unless there is clear and decisive unable to pay, the court would grant him a continu

proof that the grantor never parted or intended to ance, that he might bring a cross-action so as to have a

part with possession of the deed, and that if he reset-off of judgments or executions, unless there should

tains it, there must be other facts to show that it was appear some special cause for refusing such relief.

not intended to be absolute. 1 Johns. Ch. 256; BarWere it otherwise a trustee's claims might be preju

low v. Heneage, Prec. in Ch. 210; Clarering v. Claverdiced by being made a party, and having them drawn

ing, 2 Veru. 473; affirmed, 7 Bro. P. C. 410; Lady Hudin to be incidentally settled in a suit between other

son's case, 2 Vern. 476; Johnsou v. Smith, 1 Ves. Sen. persons. Hathaway v. Russell, 16 Mass. 476.

314; Exton v. Scott, 6 Sim. 31, and other cases. In all This power of setting off judgments has long been

these cases the instrument was shown to have been repracticed by courts. It depends on no positive statu

tained by the grantor until his death, and there were tory provision, but is said to rest upon their jurisdic

no circumstances tending to show a delivery. This tion over suitors and their general superintendence of

court, in Fisher v. Hall, 41 N. Y. 416, declined to folproceedings before them. Mitchell v. Oldfield, 4 T. R.

low those cases in so far as they wholly dispensed with 123; Makepeace v. Coates, 8 Mass. 451; Pierce v. Bent,

any evidence of delivery. But the delivery of a deed, 69 Me. 381, and numerous cases there cited. The ap

like any other fact, may be inferred from circumstanplication of the doctrine uot being founded on any

ces, and the rule as laid down by Chancellor Kent, in statute or any fixed imperative rule of common law, is

4 Kent Com. 456, though frequently adverted to and addressed to the discretion of courts, which they will

commented upon in adjudged cases, I do not find exercise on a careful consideration of all the facts and

even to have been questioned. The learned commen.

tator says: circumstances involved in order to proinote substan

“If both parties be present, and the usual tial justice and protect the rights of all parties. Chip.

formalities of execution take place, and the contract man v. Fowle, 130 Mass. 352. Thus in Boston T. & S. F'.

is to all appearauces consummated without any condiCo. v. Mortimer, supra, Parker, C. J., said: “This de

tions or qualifications annexed, it is a complete and cision will not reach the case of a liability incurred

valid deed, notwithstanding it be left in the custody after the service of tho writ, or where the effect of the

of the grantor." This rule was applied in the case of liability may be avoided by reasonable diligence on the

Sorugbam v. Wood, 15 Wend. 545, where it was held

that a deed of marriage settlement which was read part of the person liable to precure payment of the debt by the principal; but we confine it to such a case

and signed by both grantor and the trustees. and ac

knowledged as their deed before an officer authorized as we have before us, in which there was actual liabil. ity before the service of the writ, and an actual pay deed, notwithstanding the witnesses present at its exe;

to take acknowledgments, was a complete and valid ment by necessity before the answer." In the case at bar we perceive no equitable considera

cution united in testifying that there was no formal tions which should induce a court, seeking to protect

delivery of it, and the deed, after the death of the

grantor, was found in his secretary among his private the rights of all parties, to authorize these trustees to deduct from their indebtedness to the company the

papers. Nelson, J., in delivering the opinion, observes

that the grantor was much more interested in the exeamount of the note given by the latter to Clark. The

cution and preservation of the deed than either of the original note was given for a loan to be sure; but it had

trustees, and the fact of its being in his possession at been repeatedly renewed and it was amply secured.

his death therefore did not, under the circumstances The payment of this note or any of its predecessors

of the case, necessarily create any presumption against could bave been enforced at any time; and hence there is no special reason for allowing the set-off, es

the idea that a delivery was intended at the time of

its execution. In the present case, as before observed, pecially since such a proceeding would entirely ignore

there is no evidence that the deed remained in the posthe rights of the plaiutiff. Such a result would become a precedent for a corporation whose managers might

session of the grantor. When first produced it was in

the possession of one of the cestuis que trustent. It be disposed thereto, to secure from foreign attachment

was signed and sealed by both grantor and grantee. all moneys due from persous doing business over its

In Fisher v. Hill, 41 N. Y. 416, the facts were entirely road, and thereby without violating the law delay its

different. The grantee was not present at the execucreditors.

tion of the deed. He did not execute or acknowledge If Clark has surrendered his note and security to the

it, but was ignorant of its execution till long after the corporation, he did it voluntarily and with unueces

death of the grantor, who was shown to have retained sary promptness. Had he waited until his rights had

it till bis death. McClean v. Button, 19 Barb. 450 been legally determined on the writ to which he was

more nearly resembles the present case. See also made a party, his interests would have been more sat

Fletcher v. Fletcher, 4 Hare, 67. (2) The delivery harisfactorily protected perhaps than they seem to have ing been to the grantee himself, neither party would been sua motu. Paurker v. Danforth, 16 Mass. 300, 305. have been permitted to show, for the purpose of de

We are aware that the drift of this opinion is in con- feating the rights of the cestuis que frustent, that the flict with tbat in Ingalls v. Dennett, 6 Me. 79; for since delivery was with intent that the deed should not take the provisions of Rev. Stat., ch. 86, $ 64, went into ef

effect, or that it should not take effect unless again de

livered, or unless the grantor should afterward deterfect we do not think a trustee should be charged on a

mine that it should take effect, or upon any other constate of facts stated in that case. Marrett v. Equitable

tingency whatever, contrary to the terms of the in. Ins. Co., 54 Me. 537, 510.

Exceptions overruled.

strument. Worrall v. Muun, 5 N. Y. 229, 238; Lawton

v. Sager, 11 Barb. 349; Arnold v. Patrick, 6 Paige, 310, Appleton, C. J., Walton, Peters, Libbey and Sym

315. Wallace v. Berdell. Opinion by Rapallo, J. onds, JJ., concurred.

[Decided Oct. 7, 1884.)

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