MICHIGAN SUPREME COURT ABSTRACT. STATUTE OF FRAUDS-DEBT OF ANOTHER-EVIDENCE AS TO CREDIT.—(1) An agreement by one person to pay for goods furnished to another is not a collateral promise to pay the debt or answer the default of another, within the meaning of the statute of frauds. (2) The court cannot direct a verdict against a party whose evidence, though inconsistent, tends in any part to sustain his side of the issue. (3) Goods charged upon the vendor's books to the person to whom they are delivered may nevertheless be shown to have been sold upon the credit of another. Foster v. Persch, 68 N. Y. 400; Hagen v. Bearden, 4 Sneed, 48; Walker v. Richards, 41 N. H. 388; Swift v. Pierce, 13 Allen, 136; Barrett v. McHugh, 128 Mass. 165; Champion v. Doty, 31 Wis. 190; Ruggles v. Gatton, 50 Ill. 412. Larsen v. Jensen. Opinion by Champlin, J. [See 46 Am. Rep. -ED.] [Decided April 23, 1884.] OPENINGS IN STREET ACCEPTANCE. PERMISSION. CONTRACT" SALE ON TRIAL Where by written contract plaintiff agreed to furnish a windmill pump, and to make it work properly, if after a trial of six mouths the defendant should accept it, and the contract closed with a stipulation that if the windmill should be erected and should do the work proposed the defendant should pay a specified sum, held, that defendant was not liable until he accepted the apparatus. Cole v. Homer. Com. Coun. Opinion by Campbell, J. [See 30 Eng: R. $16,-ED.] [Decided April 23, 1884.] NUISANCE Permission given by the common council of a village to a property holder to make certain openings in the street for the improvement of his premises, rebuts any presumption that the partial appropriation of the street is a nuisance per se. This was decided in People y. Carpenter, 1 Mich. 273, and has never been doubted in this State. (2) If the permission of the village government was a mere license, which the government of the city (afterward chartered) was at liberty to revoke, it does not follow that the property holder is a wrong-doer in maintaining his structure. The common council of a city is not the judge of what is criminal and what is not. Everett v. City of Marquette. Opinion by Cooley, C. J. [Decided April 23, 1884.] EMINENT DOMAIN-MOTION TO SET ASIDE REPORT IMPEACHING REPORT-AFFIDAVIT OF COMMISSION.The probate court has authority to set aside the report of the commissioners for good causes shown. If the amount awarded is unreasonable, and indicates that it was the result of prejudice or partiality, or that the commissioners must have acted upon a wrong basis of estimating the damages, it is a good cause for setting aside the report. Chapman v. Groves, 8 Blackf. 308. Evidence as to the value of the property condemned, and the resulting damages, while admissible, is not controlling; they are the opinions of witnesses simply, and should not ordinarily have greater weight than the official report of the commissioners who have considered all the evidence. Eastern R. Co. v. Concord, etc., R. Co., 47 N. H. 108. Numerous courts have held that the reports of commissioners may be impeached for partiality, bias, prejudice or inattention or unfaithfulness in the discharge of their trust, or for error of such extraordinary character or grossness as should furnish a just inference of the existence of such influences. Mills, Em. Dom., § 234, and cases cited in note 7. Commissioners exercise important functions and pass upon valuable rights, and should be free from prejudice or undue influence. In Peavy v. Wolfborough, 37 N. H.286, it was held that they should not converse or discuss with one party in the absence of the other upon the subject under consideration, and in another case the furnishing of liquor by a petitioner for a highway to the commissioners, while engaged in their duties, was held an abuse for which the court would ordinarily set aside a report in favor of the petitioner without inquiring how far the commissioners were affected by it. Newport Highway, 48 N. H. 433. In this case an affidavit of one of the commissioners was filed in support of the motion to set aside the report. This was proper. The commissioners are not like a common-law jury, and their own affidavits may be used to impeach their finding, or show that they proceeded upon a wrong principle in the ascertainment of damages. The rule on which they act is a fact, and may be shown as any other fact. Canal Bank v. Albany, 9 Wend. 244; New Jersey R. & T. Co. v. Suydam, 17 N. J. L. 25. All parties are entitled to the intelligent judgment of the commissioners upon the appraisement of damages, and any agreement in advance which shall leave the amount as the result of chance cannot be upheld. In the case of Kansas City, etc, R. Co. v. Campbell, 62 Mo. 585, the three commissioners put down the amount respectively determined on by them, and divided the sum by three, ing was set aside by the Supreme Court. See also to and returned the quotient as the result, and the findthe same effect Donner v. Palmer, 23 Cal. 40; Ruble v. McDonald, 7 Iowa, 90; Birchard v. Booth, 4 Wis. 67; Denton v. Lewis, 15 Iowa, 301; St. Martin v. Desnoyer, 1 Minn. 156 (Gil. 131); Forbes v. Howard, 4 R.I. 364. Marquette H. & O. R. Co. v. Houghton. Opinion by Champlin, J. [Decided April 9, 1884.] PENNSYLVANIA SUPREME COURT ABSTRACT. CONTRACT-ENTIRE-SPLITTING CAUSES OF ACTIONJUDGMENT FOR PART, BAR.-Where the subject of a sale quality, and the price to be paid is not apportioned to consists of an entire lot of standing timber of a specified any item or part thereof, the contract is entire. Lucesco Oil Co. v. Brewer, 66 Penn. St. Where a contract is entire and not divisible, but one action can be maintained thereon. Shenk v. Mingle, 13 S. & R. 29; Corbett v. Evans, 25 Penn. St. 310; Logan v. Caffrey, 30 id. 196. Where the consideration of an entire contract is a cash payment, and a promise to give negotiable notes at three, six, nine and twelve months, a refusal to give such notes after cutting part of the timber is a breach for whith the vendor can sue and recover damages for the whole sum for which the notes were to have been given. Where a suit has been brought under the conditions above stated on the ground of refusal to give the notes, and under the instruction of the judge the jury found a verdict for the amount of the one note which would have been then due, and judgment is entered on the same, such judgment is a bar to a subsequent suit on the same contract. Unfortunately for the plaintiff, his first suit was not brought for an instalment of purchase-money payable at a certain date; it was for the purchasemoney on an entire contract, and the judgment for a small fraction of his demand discharged the obligation. Even where a demand originally consisted of distinct parts, and the plaintiff chose to have it tried as if entire, but recovered only a part, he is barred from recovering the other in a second action. Hess v. Heeble, 6 S. & R. 57. We conclude with the final remark of Gibson, J., in that case: "I am aware that this decision may bear hard on the justice of the cause, and I regret it; but it is peculiarly the province of a court of error to hold the rule steady and see that the particular equity of a case does not prevail over the law." Alcott v. Hugus. Opinion by Trunkey, J. [See 29 Eng. R. 594. - ED.] [Decided Feb. 14, 1884.] 304. (2) The refusal of the defendant to deliver the ILLINOIS SUPREME COURT ABSTRACT.* TAXATION-CAPITAL STOCK-PERSONAL TAX.-Capital stock of a corporation is personal property, having no ingredient of real estate, and hence a tax levied on it is clearly a personal tax, and becomes a lien on personal property only from the issue of the warrant for its collection. Saup v. Morgan. Opinion by Walker, TAXATION-PERSONAL PROPERTY-WHEN LIEN ON REAL.-A tax on personal property does not become a lien on real estate until the collector of taxes shall selept for that ponose some particular tract or lots real property and charge the tax against the sables abed Belleville Nail Co. v. People, Ill. 399; Rea one, 102 id. 359; Parsons NOTICE POSSESSION-CONSTRUCTIVE.-The possession of land is notice to the world of every title under which the occupant claims it, sufficient to put a purchaser or mortgagee on inquiry, unless the occupant has put a title on record inconsistent with his possession. Since Le Neve v. Le Neve, 2 Lead. Cas. Eq. 35, this principle has been recognized in many cases, among which are the following: Billington's Lessee v. Welsh, 5 Binuy, 128-32; Sailor v. Hertzog, 4 Whart. 259; Woods v. Farmere, 7 Watts, 282-4; McCulloch v. Crowher, 5 W. & S. 427-9; Patton v. Hollidaysburg, 4 Wright, 206; Mechan v. Williams, 12 id. 238; Jamison v. Dimmick et ux., 14 Nor. 52-6; Hottenstein v. Lerch, 39 Legal Intell. 393. While the principle is differently stated in some of these cases, it is substantially the same in all. In Woods v. Farmere, supra, Gibson, C. J., speaking of the unlimited effect given by the English courts to possession as an index to title, says "the duty of inquiring into the foundation of a noto-of rious possession is not a grievous one, and it is soo performed. Why then should a purchaser be suffered to act on probabilities as facts, at the risk of anyone but himself, when a moment's share of attention you prevent misconception or loss? The doctrine of c structive notice is undoubtedly a sharp one, buts o more so in regard to a notorious possession tha in regard to a registry. Nor is it less reasonable for it certainly evinces as much carelessness to purchase without having viewed the premises as it does top chase without having searched the register." Thre fore where a party has, without authority, taken a deed to himself of property which he purchased for another with that other's money, and such equitable owner took and retained possession, and then the holder of the legal title created a mortgage of the property, the possession of the equitable owner was sufficient to put the mortgagee on notice, and the want of authority to create the mortgage is a defense thereto on the part of such equitable owner. Rowe v. Ream. Opinion by Sterrett, J. [See 45 Am. Rep. 184, note. -ED.] [Decided March 17, 1884.] STATUTE OF FRAUDS-DEBT OF ANOTHER.-One partner cannot bind his co-partners jointly with himself to pay the debt of another. A promise to pay a note out of money belonging to the maker in the hands of the promisor when the note falls due, and if that fund be insufficient, that the promisor would individually pay the same, is a promise to pay the debt of another within the statute of frauds. Townsend v. Long, 27 P. F. Smith, 143; Justice v. Tallman, 5 Norris, 147. Shaaber v. Bushong. Opinion per Curiam. [See 46 Am. Rep. 296.-ED.] [Decided March 17, 1884.] BROKER-NO LIEN ON DEED-CONVERSION.-(1) A real estate broker has no lien on a deed and plan placed in his hands for the sole purpose that he shall undertake to sell the property therein referred to for his charges and expenses in attempts to make the sale. Steadman v. Hockley, 15 M. & W. 452; Hollis v. Claridge, 4 Taunton, 807. By the common law, where a man receives from the owner an article for a purpose involving labor or expense upon such article, he may detain it until he is paid for his labor or expenses. "The distinction is that when the work is to be done on a chattel to improve it or to increase its value, the lien attaches, but where it is merely delivered, as in this case, to make a demand upon it, no such right can be supported." Sanderson v. Bell, 2 Compt. & M. V. East St. Louis Gs Lght Co., 108 Ill., 380. And see Binkert v. Wabasy. Co., 98 id. 206; Cooper v. Corbin, 105 id. 225, Cart Rodewald. Opinion by BY UNITED STATES COURT-SUED IN STA COURT-PERMISSION PRESUMED-SUING ON OWN BEHALF, AND OTHERS SIMILARLY SITUATED.-(1) After the appointment of a receiver of an insolvent raway company by the United States Circuit Court, a the suit of certain bondholders, and possession taken by such receiver, the andholders of the company secured by deed of trust on the rate of the company filed a bill in the Circuit Court of the State to enjoin the collection of the personal property tax of the corporation by the sale of the mortgaged property, and to enjoin the receiver from paying the same out of assets in his hands. Held, that the fact that the property sought to be made liable for the taxes was in the possession of the United States court by the receiver could not affect the jurisdiction of the State court as to the subjectmatter, and that permission to sue the receiver in the State court might be presumed from the fact of no objection being made. (2) The holder of a portion of bonds secured by deed of trust given by a railway company in order to protect the mortgaged property or fund securing his and others' bonds, may file a bill in his own behalf and in behalf of all other holders of such bonds, his interest and that of the others being identical and inseparable. Carter v. Rodewald. Opinion by Sheldon, C. J. DEED-DELIVERY-QUESTION OF INTENT-PRESUMPTION-EVIDENCE TO REBUT.--(1) Delivery is a question of intent, and it depends on whether the parties at the time meant it to be a delivery to take effect presently. Where the owner of land had a written lease drawn, which was signed by the parties and left with the lessee to procure an indorsement of a guaranty for the payment of the rent and to have a duplicate drawn, it was held, this was no execution or delivery of the lease as the deed of the lessor, and could not be such until the guaranty of the rent had been obtained, and that the subsequent communication of the lessee to the lessor of the former's inability to obtain the guaranty, terminated the negotiation and the initiatory proceeding in making the lease, and that a guaranty subsequently obtained availed nothing without the assent *To appear in 108 Illinois Reports. of the lessor. (2) While it is not competent to contest a deed by parol evidence when it has once taken effect by delivery, it is always competent by such evidence to show that the deed, though in the hands of the grantee, has never been delivered. For this purpose the original verbal agreement may be shown, as that a written guaranty for the payment of rent was to be procured and indorsed on a lease before it should take effect, and that it was placed in the lessee's hands merely to enable him to get such indorsement. Jordan v. Davis. Opinion by Sheldon, C. J. LAYS OF THE LAW. A HINT TO QUEEN'S COUNSEL. AIR: The Song of the Foster Brother in "Olivette." When the junior sits in trepidation But if matters turn out badly, Or the evidence isn't quite clear, Pick up your skirts and off you go; NEW BOOKS AND NEW EDITIONS. REED ON THE STATUTE OF FRAUDS. A Treatise on the Law of the Statute of Frauds and of other like enactments in force in the United States of America and the British Empire. By Henry Reed, of the Philadelphia bar. In three volumes. Vol. 1. Philadelphia: Kay & Bro. 1884. The first volume of Mr. Reed's work is in advance by a few weeks of the second and third, which will complete it, and a review of the work will be deferred until the entire subject can be discussed. The handling of the matter in this volume is very satisfactory, and the structure of the book and the development of the topics are clear and convenient. It promises very well for the completed work. The analysis is as minute as that of a first-class digest, while the exhibit of the law is satisfactory, because, making proper allow ance for quotations, it is uniformly in the words of one very able and clear writer, and the result of an appropriation by him, as it were, of each case and a reproduction of it in his own statement of the pertinent facts and of the points decided. This is a higher order of work than the usual modern digest, which owes its life to the scissors. The labor must have been enormous, and the work is so well done that the grouping of cases under the statute and the propositions deducible from them, will not probably be again attempted. The value of the undertaking, its significance, and the place which it takes in the legal literature of the country will be considered later. NOTES. YONNECTICUT lawyers are now obliged to stand while cross-examining witnesses. This is an arti fice to keep the side judges from going to sleep.-Central Law Journal.-In State v. Thomas, 78 Mo. 327, a murder case, the court said: "We make no comment on the unseemly exhibition of rivalry exhibited during the trial of the cause by physicians who were summoned as witnesses, in the hope that it may not occur again. When doctors disagree' they should select some other arena-some other time and place than a court house where a human being is being tried for his life or liberty for such exhibitions as were witnessed during the trial of this case. We will not be understood as denying to attorneys the assistance which physicians, skilled in their professiou, may give in the investigation of wounds in cases of homicide; but certainly such assistance can be secured without bringing the witnesses forward as contestants rather than witnesses." We wonder what the court would have said if it had permitted itself to make a ment?"- -The House of Lords, which characterized our Civil Code as "voluminous" (3 L. N. 369), does not err on the side of brevity in its judicial decisions. The ALBANY LAW JOURNAL says: "The only time when we contemplate the capabilities of dynamite with any approval is when we are condemned to read the long, rambling, slipshod, tautological, cumulative opinions of three or four law lords, which are supposed to set the law for Great Britain." The reproach is not undeserved, and might be avoided if their lordships would take the trouble to reduce their opinions to writing, either before or after delivery, as the opinions of a high court of appeal should be.-Canada Legal News. After all, Mr. Benjamin died poor. His personal estate was sworn at only £60,000. Perhaps he had a house and lot somewhere. com The Albany Law Journal. ALBANY, AUGUST 9, 1884. CURRENT TOPICS. was hardly necessary for Judge Drummond to anec It was hardly necessary for ose gidiculous of dotes" of him published by the St. Paul Pioneer Press. That is to say, it was not necessary so far as concerns the legal profession. Perhaps how ever it is well enough so far as concerns the public, for the public are extremely credulous, and always snap eagerly at any thing peculiarly absurd and incredible concerning the bar and the bench. Judge Drummond denies that he ever spoke to Mr. Carpenter the words attributed to him, although he admits that he may have rebuked him, "decorously as became a court," for improper remarks about a brother lawyer. He admits that he may have criticised exorbitant charges of counsel, but he denies that he "ever used the language reported, or any thing like it, in substance or effect." Judge Drummond thinks that there is an "if" in our comments on the fool-reporter's anecdotes. Certainly we did not intend to convey the idea that we believed such stuff and nonsense. After all, Judge Drummond has reason to congratulate himself that he is not running for the presidency, for then he could not keep up with the lies and folly of the newspapers, if he should try ever so hard. A cablegram from Sir Travers Twiss announces that the executive council of the association for the reform and codification of the Law of Nations has adjourned until next year the conference of the association, which had been appointed to be held at Hamburg, Germany, on the 19th to 23d of August. Professor H. T. Terry, of the University of ❘ Tokio, Japan, has in press, and soon to be published by Messrs. T. & J. W. Johnson & Co., of Philadelphia, a work entitled "Some Leading Principles of Anglo-American Law, expounded with a view to its arrangement and codification." We have read with a good deal of interest some advance pages. It is evident that the author is philosophical and deeply learned, but of the practical value of his work we cannot form any definite idea from these pages. To some of his "suggestions about codification" we should take exception. He says: "Now, without doubt, shortness and simplicity are very desirable qualities in a code; the attainment of them would be one of the prime ends which a competent body of codifiers would keep before themselves. But they can be bought too dearly; nor can they in a good code be as fully realized as many people suppose. A code can, it is true, be made short and simple to any desired extent. * * * In the preparation of the draft civil code for the State of VOL. 30 No. 6. New York, the question of whose adoption is still pending, many most essential definitions have been omitted, and of many important rights and duties only very brief and meagre statements have been given, less full and complete than would reasonably be expected in one of the every-man-hisown-lawyer manuals that are occasionally issued for the ensnarement of the lay public. The points on which any question is likely to arise which a lawyer of ordinary learning could not answer offhand, and for which he would need the help of a code, at least such as belong to the now unwritten law, are usually passed over without notice. A few examples will suffice. Section 1578 reads: 'An individual may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise.' That is all that there is on that point. But under this elementary principle very difficult questions have arisen as to what constistutes special damage to an individual. Many of these doubtless have been questions of curial fact which could not be discussed in a code; but surely out of the cloud of decisions on this point some rules truly of law could have been extracted· for instance, upon the more limited inquiry how far the being actually hindered from using a highway by an obstruction in it, and being obliged to take a circuitous route, or to submit to delay and extra trouble, constitutes special damage — which, inserted in the code, would have made it at least occasionally worth referring to for light upon the decision of a doubtful question in practice. As it is, upon any really difficult point the courts would still be obliged, notwithstanding the so-called code, to resort for information to the old source in the old way." (Then follow sections 553-556 on fraud, and sections 624-626, 1623.) "Now what is there in all the sections above quoted that would be likely to give any information about any matter as to which any lawyer who knew enough to get admitted to the bar would be likely to be in doubt? Or what is there that would often be of service as a practical guide to a layman trying the hazardous plan of getting along in a difficult matter without professional advice? Of course a code must contain statements of the elementary principles of law; these will form the basis of its more minute provisions, and will be of prime importance in relation to its arrangement. But what is the use of taking the trouble to make a code that contains almost nothing else? A little volume containing a clear and systematic statement of such principles would be useful to students, and sometimes to the profession and the courts. But why call it a code? It had better in fact remain unenacted, since in that condition it would be just as serviceable, and would be free from the inconveniences of an authoritative code, whose ipsissima verba could be made the ground of innumerable quibbles. If every line of the statute of frauds has cost a subsidy to construe, how much would the sections above quoted, which are only a little better drawn than the statute of frauds, cost? How much the whole civil code? ATTORNEY JACKSON. However, the courts would probably simply disre- excited Messrs. Carter, Dwight, Miller and others gard the code in practice as an actual source of in- in opposition. But no "indifference." formation, seek the law where they now seek it The amount of all this argument is that a code should be a digest. This it certainly should not be. When the author asks what is the use of enacting such simple principles, we reply, because they are the law, and are nowhere written in the form of statutes. When he speaks of the cost of interpretation, it does not seem to occur to him that the cost would certainly not be diminished by an attempt at detail. When he speaks of the reference to reports in construing the code, we reply that this is exactly the proper office of decisions - they ought not to be the enunciation of the law, but rather the explication- not the stutute, but the commentary. No code can ever wholly dispense with them. At the same time it must be borne in mind that judges will long continue unnecessarily to cite decisions from force of habit, and to show their learning, until they get tired of it. A proper code is a mere frame work or skeleton, like the Ten Commandments. The commandments do not undertake to define theft, murder, perjury, etc., but we never heard it alleged that they were superfluous. If Professor Terry should ask where to look for details, we should say in statutes or decisions. He will allow us to say that he is quite mistaken in assuming that the bar of New York look upon the proposed code with "indifference." It has warmly interested many eminent men in its favor, while at the same time we must admit that it has terribly NOTES OF CASES. TN Dunning v. Heller, Pennsylvania Supreme Court, it was lately held that a certificate on the back of a note by the maker, who was also the payee, of the nature of the consideration, and of his own property and financial ability, does not prevent his signature to such certificate from having the force of an indorsement, so as to make the note negotiable, and transfer the title to a bona fide holder for value. The court said: "We now think the words over the indorsement amount to a contract. They contain a statement as to the indorser's pecuniary responsibility, and the consideration of the note. It was unnecessary, and perhaps foolish, for the maker to put all this over his signature as indorser. But he has done it, and as it does not vary his contract as maker and indorser, we are unable to say as a matter of law, that the note was not indorsed as required by the commercial law. Nor was the learned judge strictly accurate in saying that the signature cannot have a two-fold force. The indorser may waive a protest over his indorsement which manifestly gives a two-fold character to his signature, and affects the rights of the parties. It was held in Ege v. Kille, 2 Watts, 222, that an indorsement on a negotiable note of a receipt on account of a quantity of iron, the net proceeds of which were to be credited on the within, and which were afterward credited on it by indorsement, did not destroy its negotiable character.' The usual form of indorsement is by writing the name of the indorser across the back of the note. Where the note is payable to order, any order in writing 18 sufficient which shows an intent to pass a title, thus: 'I give this note to A., George Chaworth,' was held to be a sufficient indorsement. Chaworth v. Beach, 21 Vesey, 555. And where the indorsement is in the form of a guaranty it has been held sufficient. Partridge v. Davis, 20 Vt. 499; Upham v. Prince, 12 Mass. 14; Myrick v. Hasey, 23 Me. 9; Childs v. Davidson, 38 Ill. 438; Watson v. McLaran, 19 Wend. 557. This is exactly contrary to Pickering v. Cording, 78 Ind. 306. In Peck v. Herrington, 109 Ill. 611, it was held that the owner of land upon which there is a pond in which is collected only the surface water from rains and melting snow, when good husbandry so requires, may drain the same by an artificial drain constructed upon his own land, whereby its water is thrown into the same outlet or natural drain it was accustomed to take before when the pond was full, notwithstanding the flow of the water over a servient tract of land may thereby be increased. The court said: "We now come to the main question in the case. Had Peck the right to drain the water from the ponds, and discharge the same on his own land |