That is the case "at bar., It covers property, ,not included.in/the mortgage, and only provides for payment to. them of the "insurance money due upon the property with which they were concerned. Upon. the trial it appeared that other property was burned,and the court excluded them from recovering beyond their own share, and Headley lost his share of the money entirely.
.. Now there can be no splitting up of the causes of actIon on 8 simple poticy. The party insured retained, by the terms of the policy itself, interests beyond the control of mortgagees. Their interests were, se"Veral and not joint. Under such circumstances it cannot be held that the mortgagees have any control of the policy which would authorize them to sue upon it. No doubt the company would be protected in paying them their share as equitable appointees, but they cannot .be .treated as trustees for Headley's benefit. He and not they must be held the legal owner of the policy, which stands in his name and was made for his benefit."
That is the rule here. This Mrs. Oray is owner of this policy, and entitled to sue npon it. Mr. Thatch bas no right of action whatever. The demurrer is sustained.
and others.March 29, 1882.)
(Circuit Court, E. D. Mi$s()ul'i.
A general denial is not equivalent to a general issue at common law. It only puts the plaintiff to proof of his sub.ltantial allegations. If the defendant has an affirmative defence in the nature of an avoidance he should plead it.
SAME-STATUTE OF LrMITATIO':S.
The statute of limitations cannot be set up as a defence under a general denial.
Where A. erected one wall of an expensive building upon land to which he believed he had good tJtle, but which was really owned by B., and H., with full knowledge of the fact that said wall was being erected, failed to claim. any interest in the land or make any objection to the erection of said wall_ thereon, held that he was thereafter estopped to claim title to'the ground upon which the wall stood.
Ejectment. Demurrer to answer. This is a suit to recover a strip of land 2t feet in width by 137 feet in depth, alleged by plaintiff to be a part of a lot set apart to him in certain proc(ledings in partition to which the Life Association
*Rcported by B. F. Rex, Esq., of the St. Louis bar.
of America was a. party. The plaintiff alleged in his petition that after the decree was made in said proceedings, allotting said land to him, said association erected a building partly upon adjoining property and partly upon tho land in controversy, and leased it to Coan &Flint, (defendants j) and that said association was thereafter dissolved and its property transferred to Relfe, (the other defendant,) state superintendent of insurance, to whom said lessees thereupon attorned. The defpndants made a motion to dismiss as to Relfe, but it was overruled. See 7 FED. REP. 435. They then filed an answer in which they(1) Denied each and every allegation of the petition, and alleged(2) That neither the defendant nor anyone under whom he claimed had been seized or in possession of the premises in controversy within 10 years before the commencement of the action. (3) That the defendants and their grantors have been in open, notorious, and continuous possession of the premises, under claim and color of title thereto adversely to the plaintiff and to all the world, for a period of more than 10 years next prior to the inception of this suit. (4) That the premises had been occupied by one Walker-under whom plaintiff claims title-for a term of 21 years and 6 months,-from January 1, 1847,-nnder a lease from the party under whom defendants claimed, and that said WaUrer had surrendered said premises at the expiration of his term. (5) That s<tid association erected the bUilding alleged to have been erected by it in good faith, and without any notice or knowledge of any claim on the part of the plaintiff or his a.ncestor, and with the knOWledge of plaintiff and those under whom he claims that the south wall of said building stands upon the strip of land in controversy, and that its removal would cause great and irreparable damages. (6) That the defendants should not be estopped by reason of the decree obtained in the partition proceedings referred to, because at the time of the said partition proceedings said association was not the owner of the land in controversy, and was not made a party by reason of any claim thereto.
The plaintiff demurred to the answer on the ground that the matters alleged in the special defences may be given in evidence under the general denial. Sanswn J: Jones, for plaintiff. Lee tt Chandler and Carr J; Reynolds, for defendants. TREAT, D. J. The main question is as to estoppel in pais alleged in the answer, while the petition avers on the other hand, substantially, an estoppel by record. The petition sets out with great fullness the sources of plaintiff's title, and by anticipation negatives any question of estoppel or limitation which defendants may aver. The main ground of plaintiff's averments as to estoppel of record relates to the
WALKER V. FLINT.
faot that the Life Assooiation of Amerioa, the landlord defendant, was a party to the partition suit, while the answer of the defendants directs attention to the alleged faot that said partition suit was for many parcels of property, in one only of which that association was interested, and that was a parcel of ground in Carondelet, miles away from the locus in quo in this case. The answer then avers further that said association, with full knowledge of the plaintiff, proceeded, after having acquired possession of the abutting property of plaintiff, to ereot thereon an expensive building, without objection, and that now plaintiff's demand would be, if upheld, disastrous, far beyond the value of the 2t feet of land in question. The property subsequently acquired by the association was not property involved in the partition suit, but was an abutting tract. Is a party to a partition proceeding, who subsequently acquires adjoining property not involved in the partition suit, estopped from disputing the calls in such a proceeding for lands included therein, when he thereafter becomes the grantee of adjoining property? Thus the defendant landlord had no interest in plaintiff's lot now claimed, but became a party to the suit in partition to protect its interests in a tract miles away. After partition had, it purchased a tract far away, which adjoins what had been set apart to plaintiff. Having become the owner of said adjoining tract, he was not estopped by the record in partition, and if it be true that, after such purchase, it proceeded with full knowledge and without objection of plaintiff to erect an expensive edifice, which possibly trespasses to the extent named on plaintiff's property, is there not an estoppel in pais? The first defence is a denial. It is contended that under such denial the defendants can rely on the statutes of limitation, and therefore that the two defences pertaining to limitations are improper. The uniform ruling of this court has been that a genera] denial under the Code is not equivalent to a general issue at common law, whereby certain affirmative or quasi affirmative matters can be heard. A general denial puts the plaintiff to the proof of his substantive allegations, upon which his right of recovery depends. If the defendant has an affirmative defence in the nature of an avoid· ance, he must plead it. In this case, in oonformity with such rulings, the defence is in the first special plea one state of faots, and in the second plea another state of facts, either of which, if true, would defeat the plaintiff's alleged cause of action. Each is well pleaded, and no demurrer thereto can prevail. v.ll,no.1-3
The other defence is more difficult; but what has been stated" above explains the views of the court as to estoppels of record and estoppels in pais. If the averments with respeot thereto are well founded, they constitute a valid defence. In a former opinion of this court there was a dictum based on the then state of pleadings; but now a different showing is made, raising. other and substantial issues: First, as to the alleged estoppel by record;and, second, as to estoppel in pais. Hence, the demurrer to the special defences in the answer are overruled
UNITED STATES V. ANGELL.
(Circuit Oourt, D. New Hamp8hire.
CRIMINAL LAW PRACTICE-ExAMINATION OF WITNESs-LEADING QUESTIONS,
A leading question is one which suggests or leads to the answer, and which embodies a material fact, and can be directly answered by yes or no. Such a , question cannot be put on main examination even to contradict another witness.
EvrDENCE-:DECLARATIONS OF DEFENDAN'l'-RES GESTJE.
Declarations accompanying and explaining the re8 ge8taJ may be proved, but such declarations are not admissible as part of the rC8 gC8taJ unless they in some way elucidate or tend to characterize the act which they accompany, or may derive a degree of credit from the fact itself. If the declaration offered in evidence depends entirely for its effect on the credit of the person making it, it is inadmissible.
3. TESTIMONY AT FORMER TRIAL-WITNESS OUT OF JURISDICTION.
Where a witness who testified at the preliminary examination of the defendant upon the same charge is living, but has gone out of and beyond the jurisdiction of the court, evidence of what he said on the former trial is inadmissible ill a criminal prosecution.
4. SAME-CONSTITUTIONAL GUARANTY.
The constitutional guaranty that the accused shall enjoy the right to be confronted with the witnesses against him, (Am. Const. U. S. art. 6,) is without exception, and if the accused has this right it must be mutual, and exist on the part of the government.
A receipt for a license tax is not retroactive, and cannot be admitted in evi· dence on a charge for selling spirituous liquors by retail during a period of time prior to its date.
CARRYING ON BUSINltSS WITHOUT A LICENSE.
Under the revenue law (14 St. at Large, 112) a party is liable for carrying on a trade, business, or profession without payment of a special tax imposed by law, not only for the amount of the tax, but also to imprisonment for a term not exceeding two years, or a fine not exceeding $500, or both, and the payment of the tax will not relieve from punishment by fine and imprisonment.