court, it was held that the presumption of payment WILL-ONE OBTAINING DEVISE FOR OTHER'S BEN- CONTRACT-RESCISSION (2) MISTAKE GRANTEE DISCHARGED FROM PAYMENT OF COVENANT TO PAY MORTGAGE. In an action brought to rescind a contract for the exchange of lands on the ground of fraud, the court found that plaintiff agreed to exchange his premises, subject to a mortgage thereon, for four lots which defendants represented that they owned, but to which they had no title; they did own a parcel of land in the neighborhood of the lots, of much less value. Plaintiff conveyed his premises, and received a deed purporting to convey the four lots. The court refused to find fraud. Defendants claimed that they intended to convey the land actually owned by them, but by mistake the four lots were described in their deed, and asked to have the deed reformed. Held, that plaintiff was entitled to equitable relief whether the case was one of fraud or mistake; if the latter, the minds of the party never met, and no actual contract was made; that defendants were not entitled to a reformation of their deed, as plaintiff never had agreed to take the premises actually owned by defendants, and the only way the mistake could be corrected was by a rescission of the formal coutract and the restoration to each party of what had been parted with on its faith. Plaintiff's deed contained a covenant on the part of the grantees to pay the mortgage. Defendants objected that in case of a rescission they would be left liable upon the covenant to the holder of the mortgage. Held, untenable; that the rights of such holder were wholly dependent upon an effectual transfer and affected by the equities between the parties, and a judgment annulling the whole transaction released defendants from any liability. The principle decided in Dunning v. Leavitt, 85 N. Y. 30; 39 Am. Rep. 617, fully covers the point. There Mrs. Leavitt's promise to pay the mortgage debt was founded upon the conveyance to her, but the judgment in ejectment brought by the Howell heirs determined that no title passed to her by her deed, that the land was not transferred, and as a consequence that no consideration for her promise to the grantor for the benefit of the mortgagee remained, and so she never became liable. The effect of the decree is here the same. It annuls the deed, and adjudges that the land did not pass, and so the savings bank can have no right of action upon a promise divested by the judgment of any consideration. Crowe v. Lewin. Opinion by Finch, J. [Decided April 15, 1884.] UNITED STATES CIRCUIT COURT AB- JURISDICTION-STATE AND FEDERAL RECEIVER APPOINTED IN STATE COURT-EVIDENCE-COPIES OF RECORD.-(1) Of two courts having concurrent jurisdiction of any matters the one whose jurisdiction first attaches acquires exclusive control of all controversies respecting it involving substantially the same interests. Chief Justice Marshall thus announced the rule in Smith v. McIver, 9 Wheat. 532, and it has been followed in many cases since. Mallett v. Dexter, 1 Curt. 178; The Robert Fulton, 1 Paine, 621; Ex parte Robinson, 6 McLean, 355; Board of F. Missions v. McMasters, 4 Am. Law Rev. 526; Ex parte Sifford, 5 id. 659; Parsons v. Lyman, 5 Blatchf. C. C. 170; U. S. v. Wells, 20 Am. Law Rev. 424; Crane v. McCoy, 1 Bond, 422; Blake v. Railroad, 6 N. B. R. 331; Levi. v. Life Ins. Co., 1 Fed. Rep. 206; Hamilton v. Chouteau, 6 id. 339; Ins. Co. v. University of Chicago, id. 443; Walker v. Flint, 7 id. 435; Wire Co. v. Wheeler, 11 id. 206; Ins. Co. v. Railroad, 13 id. 857; The J. W. French, id. 916; Stout v. Lye, 103 U. S. 66. (2) Accordingly where the Supreme Court of New Hampshire decreed the foreclosure of a deed of trust and mortgage of a railroad, and the property was actually sold, held, that the Circuit Court of the United States could not entertain a bill to enforce the operation of the road by trustees for the benefit of its stockholders, although the bill was filed before the sale, and the sale when made was declared to be subject to the result of the suit in the Circuit Court. (3) The possession of a receiver is the possession of the court appointing him, and cannot be divested by a court of co-ordinate jurisdiction. Taylor v. Carryl, 20 How. 583; Hagan v. Lucas, 10 Pet. 100; Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall. 834; Walker v. Flint, 7 Fed. Rep. 435. (4) The admissibility of copies of a record in evidence does not render the record itself inadmissible. Cate v. Nutter, 24 N. H. 108; Jones v. French, 22 id. 64; U. S. Bank v. Benning, 4 Cranch C. C. 81. Cir. Ct., D. N. H. February 14, 1884. Bruce v. Manchester R. Opinion by Clark, J. [See ante, p. 12.-ED.] INTERNAL REVENUE-CUSTOM DUTIES-AWARD OF APPRAISERS CANNOT BE IMPEACHED.-A merchant appraiser appointed under section 2930 of the Revised Statutes is a quasi judicial officer, and will not be per *19 Fed. Rep. mitted to testify to his own neglect of duty. To permit the awards of the important tribunal which Congress has established to appraise imported merchandise, to be overthrown on the assertion of one of its members made years afterward, is clearly against public policy. It is putting a premium upon incompetency, inaccuracy and fraud. Appraisers occupy the position of quasi judicial officers; they have been aptly described as "legislative referees." Tappan v. U. S., 2 Mason, 406; Harris v. Robinson, 4 How. 336. The merchant appraiser is presumed to be, and in fact is, the special representative of the importer, and quite naturally, as was demonstrated by the evidence in this case, is somewhat biased against the government. The examination which he is required to make may take place when he is entirely alone; its extent is largely in his discretion. What he says of it and its sufficiency no one can contradict. The government, if he is permitted to testify, is left remediless and wholly at his mercy. Cir. Ct., S. D. N. Y. February, 1884. Oelberman v. Merritt. Opinion by Coxe, J. PATENTS ESTOPPEL.-The inventor of a certain mechanism assigned the improvement to his employers, by whom it was patented. While in the same employ he ordered a mechanism to be made which he represented as a modification of the patented invention. After leaving the service of his employers he manufactured machinery identical with what he had previously ordered to be made. Held, that he and those in privity with him were estopped to deny that the mechanism in question was covered by the patent. Cir. Ct., S. D. N. Y. January 30, 1884. Time Telegraph Co. v. Himmer. Opinion by Wallace, J. MARYLAND SUPREME COURT ABSTRACT.* NEGLIGENCE-BURDEN ON DEFENDANT TO SHOW CONTRIBUTORY-DEFECTIVE BRIDGE-QUESTION EOR JURY.-The burden of showing contributory negligence on the part of the plaintiff rests on the defendants as well in suits for injuries occasioned by defective county roads and bridges as in actions against railroad companies for injuries occasioned by them. Reed v. Northfield, 13 Pick. 94. If there be evidence tending to show there was contributory negligence on the part of the plaintiff, it is for the jury to say whether it existed; and in such case it ought not to be ignored in the instructions to the jury. Hoyt v. City of Hudson, 41 Wis. 105. The fact that a person travelling on a public road knew that a bridge thereon had a hole in it, and was in an unsafe condition, is not a sufficient bar to his recovery for an injury occasioned thereby in passing over it; but he is concluded if he knew the bridge to be wholly impassable. The case of Haton v. Inbab. of Ipswich, 12 Cush. 492, is in perfect accord with Reed's case we have cited from 13 Pick. Tisdale's case, in 8 Metc. 392, lays down the law for a case where the road is so bad, a bridge so impassable as to make it foolhardy to attempt a passage. Farnum v. Town of Concord, 2 N. H. 394, and Folsom v. Town of Underhill, 36 Vt. 581, are to the same effect. The doctrine to be extracted from all these cases is that if the defect in the road or bridge be such as to make the same practically impassable, a person takes all the hazard who with such knowledge attempts to pass over the road or bridge, and will not be redressed if he is injured. If this defect in the bridge had existed, and the county commissioners could be reasonably affected with notice of it, as the evidence indicates was the case, then their liability to the plaintiff for his injury is undeniable. Duckett's Case, 20 Md. 174; Gibson's Case, 36 id. 237, and County Comrs. of Harford Co. v. Hamilton, *To appear in 61 Maryland Reports, 60 id. 340. The jury is the proper tribunal to say whether the bridge was passable with the exercise of proper care and caution in driving; and if the evideuce show that with reasonably prudent and cautious driving the bridge was still unsafe, and there be no evidence to the contrary, it is not error to take the case from the jury. County Comrs. v. Burgess. Opinion by Irving, J. TURNPIKE COMPANY-TOLL-GATES CONSTRUCTION OF STATUTE AS TO ERECTION-CHARGING TOLLS.-In an action for tolls brought by one of the turnpike companies chartered by the Act of 1804, chapter 51, it was held: (1) That it was not contemplated by said act that said company should have but one toll-gate for every ten miles of its road, or that they should be located exactly ten miles apart; (2) that in view of the object of the grant it was reasonable to suppose that the Legislature intended that the power to determine the number and location of the gates should be a continuing one, to be exercised at any time, and to include the power of removing gates from one place to another. It is true the terms of the grant are to erect and fix " the gates, and counsel for the appellee have strenuously contended that such a power, when once exercised, is exhausted, and no power, either to erect new gates or to change the location of old ones, any longer exists. This position is undoubtedly countenanced, if not sustained, by the two cases in Connecticut to which we have referred. State v. Norwalk & Dan. Turnpike Co., 10 Conu. 157; Turnpike Society v. Hosmer, 12 id. 361. But in our judgment a more reasonable view of the subject has been taken by the courts of New Hampshire and Vermont in the cases of Cheshire Turnpike v. Stevens, 10 N. H. 133, and Fowler v. Pratt, 11 Vt. 369. (3) If this question were a doubtful one then a long-established usage in this respect, which has met with the uniform and entire acquiescence of the public, may well be invoked to solve the doubt in favor of the existence of the power. That the defendant was chargeable with tolls according to the distance between the gates, and not according to the distance on the turnpike actually travelled by him. People v. Kingston and Middletown Turnpike Co., 23 Wend. 194; Buncombe Turnpike Co. v. Mills, 10 Ired. 30; Stuart v. Rich, 1 Caines, 182; Lincoln Avenue and Niles Centre Gravel Road Co. v. Daum, 79 Ill. 599. Baltimore and F. Turnpike Co. v. Routzahn. Opinion by Miller, J. LOTS MUNICIPAL CORPORATION-SURFACE-WATER BELOW GRADE.-A municipal corporation is not liable for a failure to provide gutters and culverts sufficient to keep the surface-water from the street from overflowing lots below the established grade. The rule upon the subject is thus stated in 2 Dill. Mun. Corp. (3d ed.), § 1051: "There will be a liability if the direct effect of the work, particularly if it be a sewer or a drain, is to collect an increased body of water and to precipitate it on the adjoining property to its injury. But since surface-water is a common enemy which the lot-owner may fight by raising his lot to grade, or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, liable for simply failing to provide culverts or gutters adequate to keep surface-water off from adjoining lots below grade, particularly if the injury would not have occurred had the lots been filled up so as to have been on a level with the street." To the end that we may not be misunderstood, we think it proper to refer briefly to certain decisions of this court. In Livingston v. McDonald, 21 Iowa, 160, the cases are Ellis v. Iowa City, 29 Iowa, 229; Simpson v. WILL-REPUGNANT CONDITION— BIRTH OF CHILD PARTITION SALE OF MORTGAGED PREMISES. Will you kindly ask Mr. Throop for me (and to oblige many members of the profession who profess to be equally as stupid as I am) how we are to advise our clients in regard to bidding at a partition sale-where there is a mortgage, for instance, on the whole property? The answer to the question will probably be very simple for one who can at once put his eye upou the section of the Code which will answer it, but I can not. My proposition arises thus: Brown, Jones, Smith and Robinson own a plot of land which they bought of Doe. Doe had given a mortgage on the plot to his friend Roe, and sold to Brown, Jones, Smith and Robinson, subject to the mortgage. Then Jones brought a partition suit, and made his co-owners and Roe (the mortgagee) parties. This he may do. Code, § 1539. Then he proceeds regularly to an interlocutory judg ment, and therein he gets an adjudication that the mortgage exists, how much is due on it, etc. § 1546. And it appearing that it cannot be partitioned, he directs by the interlocutory judgment that it be sold. But the question as to liens (§ 1561) does not affect this mortgage. So far the case has run smoothly, but at the sale Jones wants to purchase, and he goes to his attorney, and his attorney goes to the Code to see if the sale cuts off the mortgagee. What shall his attorney advise? He turns back to section 1539, and finds that the final judgment is to determine whether the mortgagee's interest shall be reserved or passed. But he says "I will look at section 1577, and that will set me right." And he finds himself there referred to section 1557. Turning then to section 1557 he finds that the judg ment is a bar except as to the persons whose rights are left unaffected by the final judgment. It is like the old school-book game where the children write on the fly-leaf "If my name you wish to see, Look on page seventy-three." On looking on page seventy-three the searcher finds further and further references, until he gives up the chase in disgust. So far as can be deduced from the Code, the purchaser buys a "pig in a poke." The final judgment decides whether the property is sold subject to the mortgage or whether it is cut off. And there is no provision for enlightening the purchaser. This is equally so if the mortgagee is not a party, though it may possibly be said that if a purchaser buys when there is an outstanding mortgage on the whole property, and the mortgagee is not a party, he buys subject to the mortgage anyway. But when the creditor is a party, is not the purchaser subject only to the " mercy of the court?" Yours truly, PORT RICHMOND, S. I., July 17, 1884. NOTES. SUBSCRIBER. The subject of codification is now being more widely discussed than ever before. Mr. Field and Mr. Throop can no longer lay claim to the exclusive championship of codification. Able articles appear in the last number of the American Law Review by Harrington Putnam and in the Kentucky Law Reporter by Mr. Reinecke, while a pamphlet entitled "Codification in the State of New York," which may fairly lay clalm to the dignity of being a philosophical treatise on this important subject of jurisprudence, has just been issued by Weed, Parsons & Co., of Albany. The author, Mr. Robert Ludlow Fowler, a member of the New York bar, has already earned a reputation, not only as a practical lawyer, but also as one who, although in the junior ranks of the profession (for a lawyer is professionally young until he is forty), has already paid the debt he " owes to his profession" by his numerous and remarkably able contributions to legal literature which have appeared from time to time in the ALBANY LAW JOURNAL. The lawyer who does not read Mr. Fowler's production cannot be said to have critically and thoroughly entered into the subject of codification, notwithstanding all that has been said and written about it heretofore.- New York Daily Transcript.Mr. Irving Browne, the editor of the ALBANY LAW JOURNAL, a strong advocate for codification, pithily says that "No lawyer questions the authority of a statute in court. The only way we can get rid of it is by legislative repeal or modification. No matter how small a majority has passed it. But every decision, especially every decision pronounced by a divided court, can always be assailed in court by a lawyer with some prospect of success; or at all events it furnishes a ground of advice to his client to take his chances of reversing the uneasily settled doctrine."-New York Daily Transcript. The ALBANY LAW JOURNAL says that Ohio is the most grasping State in the Union. It would appear that her grasp this year has not been strong enough to hold a candidate for the presidency or to retain the contract for the publication of its law reports.-Cincinnati Law Bulletin. The Albany Law Journal. ALBANY, AUGUST 2, 1884. CURRENT TOPICS. ing, filled with venom, and yet, your honor, though there seemed so many of them, all of them put together would not have made up a peck!" This strikes us as more savage than "neat." Possibly Judge Peck deserved it, but if we had been in his place we should have suggested that Judge Grover had been taking his "bitters" too strong that morn [R. DAVID DUDLEY FIELD, in his 80th year ing. Another legal story is going the newspaper has published a collection in, we his speeches, arguments and miscellaneous papers. The publication was edited by Mr. A. P. Sprague, formerly one of the editors of this journal, up to the time of his death. This collection will be of great interest to statesmen, lawyers and legal reformers. The arguments are all on questions of the greatest public importance, and the papers on codification are very interesting historically and argumentatively. There are several papers of more general interest, well illustrating the author's keen powers of humor and sarcasm, and exhibiting a remarkably felicitous style. Some addresses in French and Italian show Mr. Field's cosmopolitan experience and powers. He is not however one of those cosmopolitans who are "at home everywhere except in their own country." His long and useful life, although he has done much for the world at large, has mainly been spent in the service - the unpaid service- of his own country. We venture to say that the laws of this country owe more to him than to any other man now living-more than to any who has ever lived, with one or two exceptions. We live too near Mr. Field in time and space fully to appreciate what our jurisprudence owes him. Other nations now have a better idea of his labors than we have, and future ages will be more apt to rate him at his true value than his contemporaries do. Known of all men, a visitor to all climes, the author of much of the ruling law of nearly all English-speaking communities, he is certainly the most influential of living lawyers, as even those who do not like him nor agree with him must admit. We recommend these volumes to all lawyers as a magazine of great argument and deep learning, with much more of interest to our generation than any similar publication for many years. official excursions made by boat to Fortress Monroe and Chesapeake bay, Chief Justice Waite of the Supreme Court, Judge Hall of North Carolina, and other dignitaries of the bench were participants. When the government steamer had got fairly out of the Potomac and into the Atlantic, the sea was very rough and the vessel pitched fearfully. Judge Hall was attacked violently with seasickness. As he was retching over the side of the vessel and moaning aloud in his agony, the chief justice stepped gently to his side and laying a soothing hand on his shoulder said: 'My dear Hall! can I do any thing for you? just suggest what you wish.' 'I wish, said the seasick judge, 'your honor would overrule this motion!" It is said that Henry Ward Beecher was once crossing the ocean in company with a seasick clerical friend, who complained bitterly of the voyage. To whom Bro. Beecher responded, "why, you know in grace we are always a-bounding. A clerical friend of ours, in crossing the English channel, remarked to a sick friend, "This is a nasty bit of water." His friend, sadly gazing over the side of the vessel, replied, "It ought to be by this time." We must add to our collection of recent amusing English cases the following from the Pall Mall Gazette: "What is a kiss? The question can only be answered by experience; solvitur osculando. But it is easy after a decision in the Lambeth county court yesterday to say what a kiss is not. It is not legal consideration.' A surgeon in Lambeth kissed a workingman's wife; the husband valued the kiss at five pounds, and the surgeon gave an IO U for that amount. A month after date an action was brought on this document, but the judge promptly ruled there was no consideration and gave a verdict for the defendant. Perhaps the lady was in court, and the judge may have been influenced by that. For even the poets admit that there are 'kisses and We recently referred to some newspaper stories of Judge Drummond. We have since come across one of our own Judge Grover, which we found in "Harpers," whose story department, by the way, is much better than formerly, and contains frequent good stories, of lawyers, not drawn from Joe Miller. The present story runs thus: "A very neat mot is credited to Judge Grover, in a tilt at the bar with Judge Peck. The latter had delivered a particu- inson v. Musser, 78 Mo. 153. No wonder that all that larly rasping speech, in which the former felt com- kisses;' the interesting question is whether yesterday's judgment was meant to lay down a general principle, or whether every case must be decided on its merits." Speaking of kissing, we feel bound to warn all lawyers against reading the case of Rob the court could say by way of opinion was, "Volenti non fit injuria." We are surprised that our friend Skinker reported this case. If he lived down this way, Anthony Comstock would make his life a burden to him. The Commercial Advertiser has a very sensible article on Mr. Meigs' proposal to relive the Federal Supreme Court by cutting off appeals. It so well expresses our own views that we reproduce a considerable portion of it: "One of the principal reasons for the establishment of the Federal judiciary was that courts might be provided under national authority in which citizens of different States could settle their controversies, and not be forced into the tribunals of the State of one of the litigants. The reasons which existed at the time the Constitution was adopted for providing such a tribunal exist in all their force still. Local prejudice is just as strong, and the influence of it on local tribunals just as powerful as in 1787. The prejudice which was sought to be guarded against is not a thing of the past, and he who asserts that it is has no practical knowledge of the subject. To-day if a city in Georgia or Tennessee desires to repudiate its indebtedness, or a town in New York attempts to follow the pernicious example, the courts of neither Georgia, Tennessee nor New York can be relied upon to do justice; and but for the Federal courts, each of these States might perpetrate a great fraud. In fact they do perpetrate it on their own citizens who are unlucky enough to hold the repudiated securities; but the Federal courts say to them 'You shall not do it to aliens or citizens of other States.' It is quite useless to theorize on the subject. The inexorable logic of events stares in the face the writer who would attempt to argue that the jurisdiction is not still beneficial and still necessary. When our own State allows negotiable paper to be put on the market by towns, and then allows the towns to evade payment by technicalities, it is not necessary to go further and show the wide range of rascalities which fear of the Federal jurisdiction alone prevents, When State judges are elected by the people for short terms and paid the wages of hotel clerks or bar-tenders, the people of the locality where they exercise their power can not complain because they make such judges possible; but surely residents in other States will not be willing to be turned over to their tender mercies. Instead of shortening or decreasing the jurisdiction of the Federal courts, the courts themselves should be increased in number so that the full benefit of the constitutional right should be given to the people. It is one of the functions for which the United States Government was created, that it should furnish tribunals for the litigations of the people of the several States; and it would fail in a fundamental requirement of its Constitution if it ceased to do so. It is true that the jury in a Federal court is composed of citizens of the State in which it exists, but it is not so much prejudice of juries that is sought to be guarded against as prejudice of judges; and any person who will examine the reports of the United States Courts will see that although the judges of those tribunals are citizens of States, yet the method of their selection and the fact that there is an appeal to the Supreme Court renders them practically independent of local prejudices, and loyally deferential to the decisions of the courts of the Federal system." We say again for the twentieth time, that the people of this country are entitled to all the litigation that they want and are willing to pay for. The convenience of courts is not to be consulted. Let the people have more courts and more judges, if the present force is not enough. Courts are made for the people, not the people for the courts. Mr. Austin Abbott is of the same way of thinking. He says in the New York Daily Register: "The radical fault of this proposal is the same which has marked many other suggestions for the same purpose, viz., it is a proposal how not to do professional business, not how to do it. The bar do not wish their facilities for business to be diminished. The country do not wish it. Clients demand more, not less facilities. No proposal to shut the doors of the courts in order to relieve the bench will be acceptable. The business is not too large, and it is going to be larger. It is going to increase in a sort of a geometrical ratio. If the courts cannot do it and do it well, the country do not look for a cure in the direction of discouraging their business, nor in any plan for diminishing the facilities for its transaction. The facilities must be made adequate, and the bar should see to it that this is done with reasonable promptitude and liberality." IN NOTES OF CASES. [N First National Bank of Flora v. Clark, 61 Md. 400, it was held that where a telegram is sent authorizing a draft to be drawn, and another telegram is afterward sent countermanding the authority previously given, and on the faith of the first telegram, which alone was exhibited to the cashier of the bank, a draft was discounted by the bank, the drawee cannot be held liable as acceptor, nor for a breach of promise in not accepting. The court said: "Upon these facts two questions arise, and first, is the appellee liable as acceptor? That one may be liable as acceptor of a bill, drawn in pursuance of a written promise to accept, and upon the faith of which the holder has advanced money, is well settled in this State. Lewis v. Kramer, 4 Md. 265; Franklin Bank of Baltimore v. Lynch, 52 id. 270; S. C., 36 Am. Rep. 375. In such cases however it is necessary that the bill should be drawn within a reasonable time after the promise is made, for otherwise the drawer will be presumed to have declined to act on the authority thus given, and the drawees will not be construed to have intended an indefinite liability. And second, the promise must so describe the bill that there can be no doubt of its application to it. This was so expressly held in Coolidge v. Payson, 2 Wheat. 66, and held too upon the authority of Pillans v. Van Microp, 3 Burr. 1663; Pierson v. Dunlap, 7 Cowp. 571, and Mason v. Hunt, 2 Doug. 296. These cases were, it is true, somewhat questioned in Johnson v. Collings, 1 |