Anonymous.

employed that term. The only other incumbrances affecting the premises in question, and contained in the deed to the testator were certain mortgages, for small amounts, not claimed to be now outstanding, or to have been referred to by the clause in question.

It only remains to inquire whether the obligations of the defendant under the contract are discharged, or in any wise impaired, by the statements made to him by the plaintiff, in substance and to the effect, as he understood them, that the restrictions in question were usual, and did not affect the title or value of the property. There is no evidence tending directly or indirectly to show that they were not usual, as respects all other property in the vicinity; or to impugn the sincerity and good faith of the plaintiff, in making them. In asserting that they did not affect the title or value of the property, he probably merely meant that the title and value were, as he may well have believed, not adversely or injuriously affected thereby. Others, more competent than he to understand and appreciate narrow distinctions of phraseol-ogy, and to express more accurately the nicer shades. of their meaning, perhaps entertain the same opinion. The defendant did not testify, nor is it to be inferred, that he entered into the contract on the faith of these statements and opinions, or believing them to be well founded. If he did, he cannot escape from its obliga tions, unless they are to be deemed fraudulent. think that both the defendant and his counsel would. revolt from such an imputation. Barlow v. Scott (24. N. Y. 40), is cited as perhaps bearing upon this question; but that was a clear case of fraud, presenting no analogy to the case at bar.

I

The plaintiffs are entitled to judgment that the contract be specifically performed.

Let findings be prepared in accordance with these views, and submitted for signature, on one day's notice.

VOL. II.-5

People v. Hallenbeck.

PEOPLE v. HALLENBECK.

N. Y. Supreme Court, Third Department; Oyer and Terminer, December, 1876.

INDICTMENT.-PLEADING.-DEMURRER.

An indictment for sending an obscene writing is not sufficient if it describes it only by alleging that an obscene writing was contained in an envelope, sealed and directed in a particular manner, and that it was so lewd, wicked, and obscene, that it would be offensive to the court, and improper to be placed upon record, but without in any other manner identifying or describing it.

Indictment for uttering, writing, and publishing an obscene letter.

In May, 1876, the defendant, Hallenbeck, was indicted by the grand jurors of Greene county, for writing and sending through the mails to Mary T. Wetmore obscene letters.

One of the indictments stated that the defendant of, &c., on September 1, 1875, "at the town and county aforesaid, on the day and in the year aforesaid did utter, write, and publish a certain obscene, lewd and indecent paper and writing, which said paper and writing was then and there enclosed in an envelope and deposited in the post-office of the United States at the said town of Catskill, which said envelope was then and there addressed by the words following, that is to say, Mary T. Wetmore, Catskill, In care of C. H. Wetmore (Exhibit No. 1) which said paper and writing is so lewd, wicked, and obscene, that the same would be offensive to the court here and improper to be placed upon the records thereof, wherefore the jurors aforesaid do not set forth the same in this indictment." There were four counts. There was also another simi

People v. Hallenbeck.

lar indictment, which alleged that the envelope was sealed.

The defendant demurred to both indictments. It was conceded upon the argument that the envelope was sealed.

James B. Olney, for the demurrer, claimed: 1. That the indictments were not specific; that they did not point out or even allege the offense which the defendant was called on to answer. 2. That the sending of a sealed letter through mail to a private person could not constitute an offense under 2 L. 1872, p. 1795, c. 747; L. 1873, p. 1183, c. 777.*

A. C. Griswold, district-attorney, opposed.

WESTBROOK, J.-The same question arises upon the two indictments against the defendant above named. They are both for uttering, writing, and publishing a lewd and indecent paper, and they are both demurred to, because, as the pleader claims, the indecent writing is not sufficiently described. The language of the one indictment is, and the other is similar, "did utter, write, and publish a certain obscene, lewd, and indecent paper and writing, which said paper was enclosed in a sealed envelope and deposited in the post-office of the United States at said town of Catskill for mailing and delivering; the said envelope being then and there addressed by the words following, that is to say, 'Mrs. Mary T. Wetmore, Catskill, N. Y.'"

The general rule of pleading is, that the indictment must apprise a party of the crime whereof he or she is accused. This rule is universal, except that it is so far modified, that when the charge is for uttering or publishing obscene literature, it is unnecessary "to set out the obscene language in full; it is enough to aver the fact of the obscenity of the writing, and to give this as

*Letter presumed sealed. Lyle . Clason, 1 Cai. 581.

People v. Hallenbeck.

an excuse for not setting it forth" (2 Wharton's Criminal Law, § 2547, 7th edition). But it has never: been held, so far as my research extends, that no general description of the writing was necessary.

In Commonwealth v. Sharpless (2 Serg. & R. 92) the indictment did generally describe the picture, for exhibiting which the defendants were indicted, by the words, "a certain lewd, wicked, scandalous, infamous and obscene painting representing a man in an obscene, impudent, and indecent posture with a woman." That indictment was properly sustained.

In Commonwealth v. Holmes (17 Mass. 336) the court held: "In an indictment for publishing an obscene book or print, it is sufficient to give a general description thereof, and to aver the evil tendency, without copying the book, or minutely describing the print."

In State of Vermont v. Brown (1 Williams, 619) it was held: "An indictment for selling an obscene book or printed paper, should ordinarily set forth the book or paper in hæc verba, as in indictments for libel or forgery; but this may be dispensed with, and the obscene character of the publication be described in more general terms, if it be of so gross a character that spreading it upon the record would be an offense against decency." In that case the writings were described by their titles.

In People v. Girardin (1 Manning, 90, a Michigan case) the publication was of obscene matter in a newspaper, and the title of the paper was given.

In the case before us, there is no description whatever of the alleged libelous writing. It is only averred that it was contained in an envelope directed in a particular manner. No information is suggested which can put the defendant on inquiry as to her defense, nor to what subject the obscenity related.

In Knowles v. State of Connecticut (3 Day, 103), the in

Price v. McGoldrick.

dictment was for the exhibition of a "monster highly indecent and improper to be seen, or to be exposed as a show." Of such an indictment the court unanimously said: "This information alleges that said Knowles exhibited a horrid and unnatural monster, highly indecent, unseemly, and improper to be seen, or exposed as a show; but states no circumstances in the description of its appearance, which shows this allegation to be true; it can not be supported, either at common law, or on the statute."

It may be observed that in the case cited, there was very much more information given to the defendant, than in these before us. He was called upon to defend the character of an exhibition he was making, and that disclosed to him the alleged obscenity. In these, the party is asked to recall every letter written to a particular individual, and prepare for an attack which may be made upon any of the correspondence. Not the slightest thing is mentioned by date, subject matter, expression, thought, or word, which identifies or describes the obscene writing. There is, in short, no description whatever. Within any rule or case which I have seen, these indictments can not be upheld.

The defendant is entitled to judgment upon both indictments. The rule will be entered as of the day of the argument.

PRICE v. McGOLDRICK.

City Court of Brooklyn; General Term, April, 1876.

PROMISSORY NOTE.-INDORSER.-NOTICE.

When one indorses a note in order to enable the maker of it to obtain credit, he is not a mere accommodation indorser, but a surety. The indorsee and the notary both lived in Brooklyn, and the notary had his office in New York, where the note was payable. Held,