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the opinion of the court in that case supported this construction of the statute by the citation of a number of authorities, both English and American.
This is therefore no longer a mooted question in Maryland. When there is a possibility that the services may be performed within a year, the remedy for a breach of the contrate is not barred by the statute. This record contains no evidence which shows that the mill was not purchased on the 8th day of March, 1880; and there is a strong probability that this contingency did occur on that day, as the letter of the defendant informing the plaintiff of the purchase is dated in Philadelphia on the day after. If the parties entered into the contract on the 8th day of March, and the purchase was effected on that day, it was an agreement clearly not within the statute. The absence of proof as to the precise time of the purchase is fatal to the assumption which seems to have formed the basis of the instructions granted by the court below.
From what has been said, it follows that there was error in the rejection of the plaintiff's prayers and in granting the first and second prayers of the defendant. The judgment must therefore be reversed and a new trial awarded.
WEEKLY DIGEST OF RECENT CASES.
1, 4, 5, 6, 11, 12, 14
FEDERAL CIRCUIT COURT, 1. ATTORNEY AND CLIENT POWER TO COMPROMISE. An authority to compromise can not be inferred from the bare relationship of attorney and client. Persons dealing with an attorney-at-law respecting his client's business may justly infer that he has all the powers implied by the relation, but not that he has the powers of a general agent to com. promise and release debts or transfer and convey the goods or lands of his client. Isaacs v. Zugsmith, S. C. Pa., April 16, 1883; 40 Leg. Int. 335.
at another and a future period. "I will employ you" seems to imply "I will make a contract with you;" and when it is further said that the plaintiff accepted the cffer, the apparent construction is that he used words suggestive of his willingness to enter into the contemplated arrangement and to complete the contract, and became fully bound by its obligations at any time when the defendant was in a situation to accomplish what he intended.
A consideration of the peculiar circumstances at the time when the conversation occurred, leads to this conclusion. The defendant did not then own the mill, and there was a possibility that he might never acquire the property, and these were facts within the knowledge of both parties. Is it to be supposed that the defendant then and there intended to contract with the plaintiff to take charge of property which he might never own? Did he, on that occasion, with a perfect knowledge of all the facts, deliberately impose upon himself the obligations of a contract which he might never be able to perform? It may safely be assumed that a man of ordinary intelligence would never entangle himself in such difficulties. The words, "If I buy this mill I will employ you," would seem to indicate an inchoate arrangement to be fully consummated at some subsequent period, and which being so consummated might not be within the statute. Conceding, however, that there was a perfect contract entered into by the parties to this cause on the 8th day of March, 1880, the remedy is not barred by the Statute of Frauds, and can therefore be enforced. The performance within the time limited by the statute was dependent upon a contingency. The defendant said, "if I buy the mill." This contingency might have happened within an hour after the utterance of these words. In that event, the contract being already operative, the services could have been performed within a year. Judicial construction in England and in this State has placed this question beyond the limits of controversy.
In the case of Fenton v. Embers, 3 Burr. 1281, it is said by Denison, J.: "The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it, nor any case that depends upon a contingency." This construction of the statute has received an unqualified recognition in this State. In the case of Ellicott v. Peterson, 4 Md. 488, it is said: "These principles have been recognized by innumerable decisions, both in England and in this country. And in pursuance of the principles which they sustain, especially that of the case of Peter v. Compton, it has been held, both in England and in these States, the statute will not apply where the contract can by any possibility be fulfilled or completed in the space of a year, although the parties may have intended its operations should extend through a much longer period." The learned chief judge who delivered
2 CONVEYANCE-SALE OF LAND-STANDING TIM-
3. CRIMINAL LAW-LARCENY-CONVERSION.
of returning it, according to the contract, a subsequent conversion of the property does not amount to larceny. Hill v. State, S. C. Wis., April, 1883; 15 Ch. Leg. N. 381.
4. EVIDENCE-ALTERED INSTRUMENT
Suit was brought on the official bond of a guardian. The name of A written in the body of the bond and subscribed as one of the sureties was in both places erased. Held, that as the bond was on the files of the court, the presumption is that it was the bond approved by the court, and that the alterations were made by the obligors before deliv⚫ ery or presentation for approval. Zander v. Commonwealth; S. C. Pa., April 2, 1883; 40 Leg. Int. 296; 14 Pittsb. L. J. 21.
5. INSURANCE, FIRE-PROOF OF LOSS WAIVERSTATEMENT OF OWNERSHIP.
As a rule the law does not require vain things, and where technical proofs could but re-state information of a total loss, of which an insurance company was already fully advised, to insist upon such technical proofs would be to oppose the barest technicality as a bar to the assured's right to recover a strictly honest claim. The waiver of proofs of loss, required in a policy, may be inferred by any act of the insurer evincing a recognition of liability or a denial of obligation exclusively for other reasons. If the equitable title to a property is in the assured it is equivalent to a fee in making good the statement of "ownership" in the application for the insurance. Pennsylvania Fire Ins. Co. v. Dougherty, S. C. Pa., April 16, 1883; 40 Leg. Int. 334.
6. JUDGMENT-COLLUSION-COLLATERAL INQUIRY. A collusive judgment may be inquired into collaterally. Judgments entered or maintained by collusion or fraud of both parties are to be distinguished, however, from judgments obtained by the fraud of the plaintiff; the former are void as to creditors only, and can be attacked in any collateral proceeding by them, whilst the latter can be attacked by the defendant alone, directly and in the proper court. A judgment confessed voluntarily by an insolvent or indebted man for more than is due, is prima facie fraudulent within the statute of 13 Eliz., c. 6; but then it is only prima facie fraudulent, and the presumption may be rebutted. Meckley's Appeal, S. C. Pa., May 7, 1883; 40 Leg. Int., 336.
7. LIQUOR LAWS TRIAL.
Intoxicating liquor, seized and condemned according to law, is outlawed, is without rights, and a claimant of such liquor is not entitled to a trial by jury. State . Intoxicating Liquor, S. C. Vt., January Term, 1883; Reporter's Advance Sheets.
8 MARRIAGE- EVIDENCE-VALIDITY-INCONSISTENT DECLARATIONS.
H B, just previous to his marriage to the complainant, remarked: I will marry you, but understand I will never live with you." The marriage was kept secret, and H B and complainant cohabited together and bare children. Held, that this marriage was legal. That the defendant had reasonable ground to question the fact of marriage, and that the costs be equally divided between the parties. Brooke v. Brooke, Md. Ct. App., April Term, 1883; 10 Md. L. Rec., No. 22.
9. MASTER AND SERVANT - NEGLIGENCE OF FELLOW-SERVANT.
1. A railroad company is liable in an action on be
half of its fireman killed by the washing out of a culvert, the culvert being in an improper condition resulting from negligence and carelessness of its bridge-builder and road-master. 2. The negligence of the bridge-builder and road-master in caring for the culvert in law was the negligence of the defendant; and notice to the former of a defective construction was notice to the latter; hence, it is not a question of whether the servant whose negligence caused the injury and the servant injured were fellow-servants; nor, whether the former was ordinarily skillful; nor, whether the defendant was negligent in employing them. Davis v. Central Vt. R. Co., S. C. Vt., October Term, 1882; Reporter's Advance Sheets.
10. NEGLIGENCE-RAILWAY FIRES-INSURANCE AS A DEFENSE.
Where suit was brought against a railroad for damages done to cotton by fire from a locomotive, and the defense set up was that the cotton was fully insured and the policies had been collected: Held, a demurrer to such defense was properly sustained. Texas, etc. R. Co. v. Levi, S. C. Tex., June 29, 1883; 2 Tex. L. Rev., 50.
11. NUISANCE-LAYING OF WATER PIPE-EMPLOY MENT OF CONTRACTOR.
It is not a nuisance per se for a private citizen acting under municipal license to dig a trench in a .. public highway for the purpose of laying a water pipe, and it is not such an act as renders parties engaged in it guilty of a public wrong. The entire execution of laying the pipe being committed as an independent employment to a contractor, the employer is not responsible for the mode of such execution. Smith v. Simmons, S. C. Pa., April 16, 1883; 40 Leg. Int. 334.
12. SURETY - REPLEVIN BOND - CONFESSION OF JUDGMENT BY PRINCIPAL.
A party in becoming surety for defendant in an action of replevin, must be considered as having contracted with reference to the law applicable to the trial and final determination of the case, and with a view of becoming responsible for the amount that might ultimately be adjudged against such defendant. The confession of judgment by defendant is a regular and orderly mode of ending a pending suit. Such confession by defendant would not release his sureties in the absence of collusion. Bradford v. Frederick, S. C. Pa., Dec. 30, 1882; 14 Pittsb. L. J. 21.
13. UTTRA VIRES-LIABILITY OF CORPORATION FOR MONEY HAD AND RECEIVED CONTRARY TO ITS BY-LAWS.
A corporation sued for money had and received will not be heard to answer that the following by-law was in force at the time of the transaction; "No debt shall be contracted for or in the name of the company, except by the order of the board of directors, and then not in excess of the funds actually in the treasury," and that the board of directors did not authorize the creation of the liability, and there were at the time no funds in the treasury. It is not material whether or not, by the law of the home of the corporation, such by-law has the force of a statute. A corporation that has receive money or property from another and appropriated it, cannot be heard to refuse to account for it, on the ground that it had no power under the charter to take it. Manville v. Belden Mining Co., U. S. C. C., D. Colorado, June 23, 1883; 3 Col. L. Rep. 558.
14. WILL-RULES FOR CONSTRUCTION.
In the construction of a will the following are three
cardinal canons to ascertain and give effect to the intent of the testator. First, regard must be had to the whole scheme of the will, and if it is found that a particular intent is inconsistent with the general intent, the former must give way to the latter; second, the order in which words are placed is not to be considered exactly, if a different arrangement will better answer the apparent intent of the testator; third, no presumption of an intent on the part of the testator to die intestate of any part of his property is to be made when his words, as found in the will, can be construed to dispose of the whole of it. Ferry's Appeal, S. C. Pa., Feb. 26, 1883; 40 Leg. Int. 295.
QUERIES AND ANSWERS.
[*.* The attention of subscribers is directed to this department,as a means of mutual benefit. Answers to queries wil be thankfully received, and due credit given whenever request ed. To save trouble for the reader each query will be re peated whenever an answer to it is printed. The querie must be brief; long statements of facts of particular case must, for want of space, be invariably rejected. Anonymou communicationsare not requested.
66 A owns certain land, being all the property he has liable to execution. B recovers judgment against A, which judgment is filed and becomes a lien upon the land on July 1. C recovers judgment, which is filed Aug. 1. B obtains another judgment, which is filed Sept. 1. B issues execution under his last judgment, and the sheriff sells the land to B for the amount of his last judgment with costs, etc. Shortly after the land is again sold under an execution issued upon B's first judgment, and is again bid in by B. Query: Did the purchase by B under his last judgment (which was, of course, subject to C's lien), extinguish or merge the lien of B's first judgment? Did the second sale have the effect to extinguish C's lien? What did B acquire by his second purchase? In short, does C's lien still hold good, or is it wiped out? ONEIDA. Appleton, Wis.
Query 59. [17 Cent. L. J. 139.] A sells to B a tract of land for $500. C has a mortgage on said land to secure a debt of $500, of which B has full notice when he buys. B does not go into possession, and C forecloses as against A, not making B a party. The land is sold and brings only $400. Can C maintain an action against B for the $100 deficiency? Please cite authorities.
D. E. G.
Answer No. 1. a. No mortgagee can maintain an action against the vendee of a mortgagor for a mortgage debt on the property existing at the time of the purchase, unless such debt is assumed by such vendee. b. B should have been joined in the proceeeings of foreclosure, but the only effect of his non-joinder is that he yet has a right to redeem. As to the first, see Johnson v. Morrell, 13 Iowa, 300. and Bumgardner v. Allen, 6 Munf. (Va.) 439. For the second, see Frische v. Kramer, 16 Ohio, 125. I apprehend the fact that B was not in possession, is immaterial.
Kansas City, Mo.
T. W. NELSON.
Answer No. 2. C can not maintain an action against B for the $100 deficiency, nor was B at any time liable personally for any part of the mortgage debt. Lee v, Newman, 55 Miss. 365; Second Nat. Bank v. Grand
Lodge F. & M. Masons, 8 Cent. L. J. 71-72 and note. Vicksburg, Miss. J. D. GILLAND. Answer No. 3. According to the statement B did not assume the payment of the debt due C, but purchased the land with notice of the incumbrance. The land was subject to sale under proper proceedings for foreclosure of lien created by mortgage. If the proceeds of sale be insufficient to pay the debt, the debtor is still liable for the deficiency. R. S. Art. 1340. But if the conveyance from A to B contain a recital and stipulation that the same is subject to the mortgage debt and to be paid by B, then it presents a proposition discussed in 16 Cent. L. J. 79. See also Jones v. Higgins, 16 Cent. L. J. 567 and Elliott v. Sackett, 16 Cent. L. J. 288. S.
SCHOULER'S EXECUTORS AND ADMINISTRATORS. -A Treatise on the Law of Executors and Administrators. By James Schouler, Boston, 1883: Soule & Bugbee.
This volume completes Mr. Schouler's Series on the Law of Personal Property. The three preceding volumes are Vol. I, of Schouler on Personal Property, treating of the Nature and General Incidents of Personal Property, Vol. II, of the same, treating of Gifts and Sales of Personal Property; and Schouler on Bailments. The acknowledged excellence of Mr. Schouler's preceding works on "Domestic Relations" and "Husband and Wife" is a guaranty of the useful qualities of the present work, while the immense volume of the probate business of the country in an indication of the extremely wide field of usefuluess that lies before the book. The work is very handsomely printed and bound.
STEPHEN'S DIGEST OF CRIMINAL PROCEDURE. A Digest of the Law of Criminal Procedure in Indictable Offenses. By Sir James Fitz James Stephen, a Judge of the High Court of Justice, Queen's Bench Division, and Herbert Stephen, Esq., of the Inner Temple. Barrister at Law. London, 1883: Macmillan & Co.
This work is not a digest in the American sense of being a collection of references to adjudicated law, but is an attempt at a precise and logical statement of the law, both statutory and benchmade, in the simplest possible language; it is more properly a code in the sense that the Code Napoleon is, except the lack of statutory force. While of unquestionable utility to the English practitioner, we doubt that the American lawyer will find it available, because of the immense mass of statutes peculiarly English, which have been embodied in it.
The case is more like those of services rendered in an emergency, where even voluntary assistance, if followed by a recognition of its value and a promise of reward, has been held to give a legal right.
AMERICAN DECISIONS INDEX. Index to the
American Decisions and the Editor's Notes Thereto, with a Table of Cases R--ported. Vols. 31 to 45 inclusive-1837-1846. By A. C. Free
San Francisco, 1883: A. L. Bancroft & Co.
This is an excellent index of the fifteen volumes of the series indicated. It seems to have been very carefully compiled, and to be complete in every respect. A most useful feature, frequently wanting in other works of a simiiar character, is the table of cases, reported in the volumes indexed. This index, together with the digest to volumes 1 to 30, heretofore noticed (15 Cent. L. J. 220), form a complete guide to the series as far as completed, and add very materially to its value.
The Jerseyman who sued a rude boy for assault and battery of his horse is to be regarded as a sort of private society all by himself for the prevention of cruelty to animals. The main question will be whether he can prove any damages. If the condition of the horse bears no traces of the kick, the question will be whether the pain suffered at the time, or the injury to the feelings of the noble animal, or, in the language of the law, his mental sufferings, or both, will sustain the action. Or perhaps, if the owner himself was present, the indignity put upon him by the onslaught on his steed will entitle him to a recovery. On the whole, we are inclined to think that the interests involved in this action are such that every lover of the equine race must be glad that the legal questions are to be discussed and determined by New Jersey justice.- Daily Register.
TWENTIETH WEST VIRGINIA. Reports of Cases
Argued and Determined in the Supreme Court of Appeals of West Virginia, at the June, August and Fall Special Terms, 1882. Bv Cornelius C. Watts, Attorney General and Ex-Oficio Reporter. Vol. 20. Wheeling, 1883: C. H. Taney, State Printer.
This volume is characterized by exhibiting in an unusual degree the most glaring faults common in published reports, yiz.: inordinately long opinions and excessively diffuse syllabi. The former are strikingly tedious and the latter very frequently occupy a page and not unfrequently two or three pages, which, to a profession burdened with the modern multiplication of precedents and an ever-increasing llood of volumes, will seem simply inexcusable.
NOVIL ACTIONS. The papers report some actions that are rare, if not quite new. The most noteworthy is the colored boy's action for compensation for furnishing blood, by the operation of transfusion, to the de. fendant when he was asphyxiated. This case is an apt illustration of the way in which every step in the progress of applied science gives rise to new questions. It is said that the action was for goods sold and delivered, and this may not have been an inappropriate form for the pleader to resort to; but it is curious to observe that the novelty of the relation of the parties involves different legil elements. The defendant was asphyxiated and could neither order goods nor request services, nor call a physician who might act as his agent in so doing. Nor did he have any opportunity, on recovering consciousness, to reject the service or return the goods. But these circumstances and others, although they might be regarded as taking the case out of the category of "goods sold," do not necessarily affect the meritorious character of the claim nor deprive it of a legal foundation,
-A fugitive from justice boasted that he was 80 well liked by all who knew him that he never left any place without a reward being offered for his return.
-“Prisoner, how old are you?” “Twentytwo, your IIonor.” “Twenty-two? Your papers make out you were born twenty-three years ago." “So I was, but I spent one year in prison, and I don't count that-it was lost time."
-One finds not infrequently on the title pages of Chinese newly-published books a caution against their unauthorized publication, in some instances threatening the forfeiture or destruction of all blocks that may be cut for their printing, showing at once that literary property is liable to be stolen, and that redress is afforded to authors thus wronged. The penal code, however, will be searched in vain for an enactment on the subject of copyright. Chinese law has never conceived it necessary to specify that particular form of robbery which consists in despoiling a scholar of the fruit of his toil, any more than to name the products of husbandmen and artisans as under the protection of law, all alike being regarded as property by natural right. The offending pub. lisher is arraigned and punished under that section of the code which takes cognizance of larcenies of a grave character, the penalty, to which one who prints and sells an author's work without authority is liable, being one hundred blows and three years' deportation. This right of exclusive publication by an author of his works is held in perpetuity by his heirs and assigns.-Dr. D. J, Macgowan.
The Central Law Journal. fact in the case is exposed. No secret is let
loose. There is nothing in all of it that at ST. LOUIS, SEPTEMBER 14, 1883.
this day can be prejudicial to the plaintiff. Such a letter might come decorously from any
petitioner for divorce. It would not have CURRENT TOPICS.
been an improper paper to exhibit before the
court. The oral evidence should be regarded Snow v. Gould, 74 Me, 510, is an interest- as a private matter before divorce, but has no ing case illustrating some of the limitations importance after the divorce. In the case upon the rule excluding evidence of commun- under consideration, it was competent for the ications between counsel and client on the defendant to show the nature of his engageground of privilege. There, the circumstances ment and of the services performed. We do were rather peculiar. A party wrote to his not see that the evidence exceeded these lawyer to bring suit for divorce at an early bounds." day, in order that his wife might have time to think the matter over, and perhaps consent to å private separation, and thereby avoid as much public scandal as possible. He orally LIABILITY OF JOINT PROMISORS AS instructed his counsel to withdraw the suit if AFFECTED BY PAYMENTS MADE BY & jury trial could not be avoided. The law. ONE OF THEM. yer afterwards brought suit for compensation for the services so rendered, and was allowed Often has the complaint been made in busiupon the trial against objection, to introduce ness and legal circles of the lack of uniformevidence of the written and oral instructions ity of the law governing some important for the purpose of showing the nature of the points relative to commercial paper. That it services required of him. The court held is important that the law governing the negothat this ruling was right, and that such evi- tiability of notes, bills and checks should be dence should not have been excluded as con- settled and made permanent, needs no argufidential communications, saying: "All that a ment. The necessity that it should be so is client says to his attorney is not to be rejected as made apparent by the effect that the want of privileged communication. The privilege does it produces upon the business of every day. not extend to extraneous or impertinent com- It would work far better to the community at munications. It does not reach cases where large, that the rule should remain as fixed as the matter is not of a private nature. Nor the laws of the ancient Medes and Persians, where the “attorney was directed to plead facts than to be liable to be changed by the pecuto which he is called to testify.' And priv liar circumstances of each particular case. ileged communications may lose their privileg. There are instances where a certain rule has ed character by the lapse of time. That which been established by the decision of a case upmay be private at one time may not be private on its circumstances, which, upon reflection, at an after time. Directions to an attorney to has been found to be erroneous in principle, make a certain contract are a confidential and reason has suggested a change. Notwithcommunication before but not after the con- standing the strong argument to the contrary, tract is made. A solicitor cannot be compell- | the doctrine of stare decisis, which is ever a ed to disclose the contents of an answer in favorite maxim of the law with the judiciary equity before it is filed, but may be after- of this country and of England, has caused wards. There are numerous examples of
some of our most eminent jurists to follow these principles in these books: Bouv. Dic. the rule of law as first declared. The result Con. Com. ; 1 Greenl. Ev., sec. 214; Neal v. of these two counter opinions is a conflict of Patten, 47 Ga. 73; Nave v. Baird, 12 Ind.
decision, whereby much difficulty is entailed 318. See, as bearing significantly upon this upon the profession, and the commercial incase, Rochester City Bank v. Suydam, 5 How.
terests of many suffer by reason of the unPr. 254. It will be seen that this
certainty of the law. Of the many instances was mostly of the nature of instructions, and that could be cited, there is none so exteninstructions that have been executed. No
sive in its application, or more noted as Vol. 17-No. 11.