Daily globe., 1879-06-28
THE COURTS.
The Supreme Court.

THE COURTS.
The Supreme Court.
The following opinions were filed yesterday
William Spooner, appellant, VS.. Henry
spoouer,' respondent.
Syllabus-Section l. chapter 1S1, laws 1877,
enacts that lin all cases where Judgment here
tofore has been or hereafter may be obtained
in any court of record, by means of the per-
jury, subornation of perjury, or any fraudulent
act, practice or representation of the prevail
party aggrieved to set aside said Judgment
the discovery by him Of such perjury,
subornation of perjury, or of the facts consti-
tuting snch fraudulent act, practice or repre-
sentation. Such action shall be commenced in
tho judicial district where such Judgment was
rendere |, and in such action the court shall
have and possess the same powers heretofore
exercised by courts of equity in like proceed
lngs and may perpetually enjoln the enforce
ment of such Judgment, or command the salts.
faction thereof, and may also compel the pre-
vailing party to make restitution of any money
or other property received by virtue thereof
and may also make such other or further order
or Judgment as may be just or equitable"
As respects judgments recovered after its
passage, this act is constitutional. 1t does
not impair vested rights, nor does it de-
| the law guaranteed by section 8, article
l, of the constitution of this State. 1t affords
| remedy in all cases where, after it's passage.
| judgment has been obtained in any court Of
record by means of the perjury, subornation
| of perjury, or any fraudulent act, practice or
| representation of the party recovering the
INDICTMENT by an action to be brought as pro-
vided.
The provision that the court in which the ac-
| ton is brought shall ''possess the same powers
heretofore possessed by courts of equity in like
proceedings" is not limitation qualhca-
tion; the right of the party aggrieved to bring
and main'a ain an action to set aside the judg-
ment, and for OF her relief upon the grounds ex-
pressly mentioned in the act. This provision
gives to the court in which the action is brought
| effectual for the purposes contemplated by the
the statute which court of equity possessed
in similar proceedings. BERRY, J.
D. B. Coleman. appellant, Va. B. A. ONeill
and L. 4. Pearce, respondents.
Syllabus-Matter constituting an estoppel in
pals, need not be pleaded as such 10 enable a
| party to take advantage of the estoppel on the
trial. Cald we'll Va. Anger and Herbert, MIMI,
| a. followed on this point.
Defendant ON, a commission merchant of
Milwaukee, received from plaintiff, a resident
of Minnesota, a quantity If wheat and grass
seed on consignment. with directions to hold
for the proceeds after deducting the usual
commission charges and advances made there
on. Before any order for sale was given the
defendant P, became partner in the business
nth ON Notice of this fact was thereupon
given to plaintiff both by the firm and by =
in person, and plaintiff was given
to understand, and made to believe
by accounts rendered in the name of the firm
from time to time, and otherwise by the de
iendants, that the account between him and
ON. together with the property which was the
subject of the consignment, had been trans
ferred to the firm, and that the latter wal
holding and carrying it for him under the orig
inal restrictions given ON Relying npoS
this state of facts, believed to be true plaintiff
} from the receipt of the notice of partnership
ceased to regard ON. as his factor in respect t
the consignment, and ever afterwards looked t.
and treated the firm as alone occupying tina
relation in the place of ON. Trusting to tn
responsibility Of the firm alone he Withheld an.
, order for sale for some months, whereupo
giving it, he was informed for the first time b.
P. that ON. had then became insolvent, and tha
the firm had never in fact taken possession Q
the wheat as represented, but that it had bee
converted by ON, to his own use prior to tn
foundation of the copartnershlp.
Held, In an action against tn, defendant
for conversion of the wheat copartnert
that they were both estopped from denyin
y the truth of the facts thus falsely represented
$ If party falsely asserts the existence Of
fact under circumstances calculated to mis-
!, lead, and upon the faith Of which another
u mislead and acts without fault on his par
when the party so asserting occupies positio
: which makes it his duty to know and give hir
the means of ascertaining the exact truth
respect to the matter, he will be estoppe
e from controverting the fact SO alleged, thoug
e he may have made the mlsrepresentatlo
r through ignorance and without wrong inten
%I1 s>f f1rI
:, makes false representation as to- fact III
. . der circumstances precluding him fro1
+ disputing 1t, the firm and it's otht
y members will be equally precluded, il the ia.
n is one that the administration would be bind
ing upon the firm if true, and is also one cor
cerning the truth of which the firm and il
i. members possess peculiar means of knowledg
not enjoyed by the party to whom the repr
Il sentation is made.
q An agent entrusted with wheat to hold an
= sell, when directed by his principal, and to al
) count for the proceeds, is liable as for COZ
il version Of the property in case he wrongful
: refuses to sell or to account when directed br
). wishes of his principal.
The rule as to the insuficiency of gener
denial of an allegation OF valu
IS adopted by this court in Lyme
70 vs.. Pickett, Mimi. 1876, aud Pottgieser Y
r Done, 16 MINI. POI, adhered to and followed
It Order granting new trial reversed.
!. CORNELL, J.
n Note-The chief justice took no part in tt
t: decision of the case.
c. James R. Dayton, respondent, VS.. Andre
Craik and A. w. Craik, partners under Il
name of Cralk & Son, appellants.
ts Syllabus-A motion for new trial W
o. made, heard and dismissed in the trial cour,
e. upon an engrossed case, settl and certife
,e but not stated to contain all Il
At evidence received upon the trial. Su
D. sequently, and after an appeal fro
~ such denial to this court, the trial judge wi
t. out notice to plaintiffs made and caused to
t. attached nll1c pro tune to the engrossed case,
If certificate stating that such contains
n the evidence offered and all proceedings b;
upon the t. ial."
N Held, That the certificate is entirely una
- thorized, and upon plaintiffs motion it
. stricken from the record.
m As applied to lease surrender is the yie
c. ing up of an estate for life, or years. to hi
'r- that has the Immediate reversions Of remand
m wherein the particular estate becomes extir
In by mutual agreement between the parties
OF 1t may be effected by express words evinci
es such agreement, or may be implied from CO
is duct of tho nartiec yoinp tn shov that th