William Strong

“ Again, the lease from the executors did not create a tenancy from year to year.
If the rent should be increased, or any other change made, Mrs. Lucas was to have one year's notice of it in advance. It will be seen that no limit is made to the term, but it contemplates a continuance for years. Power is reserved to increase the rent after a year's notice, and also to make other changes after a like notice. Does the reservation of the power to make a change authorize a termination of the lease, as held by the court below? ”

“ A judge well performs his duty when he guards the jury against having their attention diverted from the real issue by the introduction of immaterial evidence.
The fifth assignment is, that the court erred in excluding what is called a transcript of a distress warrant issued by Chapline, agent for the plaintiff, against the defendant, and also in excluding the forthcoming bond. They were offered apparently to show that the notice to quit on the 1st of April, 1870, had been waived by the plaintiff, but they were rejected by the court because not properly certified. ”

“ The court did charge that notice to quit was necessary to entitle the plaintiff to recover, and that if notice was given, and afterwards a distress warrant was sued out to recover rent due and in arrear for the leased premises, the presumption of law would be that it was sued out with the assent of the plaintiff, in which event he could not maintain the action unless the evidence satisfied the jury that the agent, Chapline, exceeded his authority in suing out such warrant, acting without the knowledge and consent of his principal. ”

“ That it is a rule of the common law, a wife cannot be received as a witness for or against her husband, except in suits between them, or in criminal cases where he is prosecuted for wrong done to her, is not controverted. But it is argued, because Congress has enacted that in civil actions in the courts of the United States there shall be no exclusion of any witness because he is a party to, or interested in the issue tried, the wife is competent to testify for her husband. ”

“ We must look beyond the formal will for any such power in the executors. We find it in the letter accompanying the will, and bearing even date. Here then, we have the key to the action of the executors; the authority under which, as executors, they were proceeding to dispose of the Lucas farm. Here is the trust, which the executors (who are also, with Ellen Brooks, the only devisees) accepted, in favor of Catharine Lucas, and which they proceeded to execute. ”