200, 3 De G. F. & J. 381, such covenant will not, without express words, be taken to apply to mere chattels, not being fixtures at all, and it was accordingly there held not to include tramplates fastened to sleepers merely resting on the ground, or buildings resting upon wooded blocks or pattens laid upon the ground (and such were apparently the buildings in Dean v. Allalley, 3 Esp. 11. If, however, in such a covenant the word "fixtures" is used, it has been settled by Elliott v. Bishop, 11 Ex. 113; Summer v. Bromilow, 11 Jur. 481, 13 W. R. C. L. Dig. 68; and Dumergue v. Rumsey, 2 H. & C. 777, that that term will not include removable fixtures, and that the covenant will only be read as giving an additional cogency to the tenant's obligation to yield up the landlord's fixtures, unless some circumstance shows that a different sense was attached to it by the parties. Such a circumstance, it was argued, existed in Bishop v. Elliott, from the fact the words "marble chimney-pieces" occurred in the specific enumeration of articles which preceded the words "and other fixtures;" but the court held that those words only referred to such ordinary marble chimney-pieces as a tenant would not have a right to remove. See the case as cited below.

Lastly, with respect to things included in such stipulations, and which, like fixtures existing at the time of the demise, and included in it, are a part of the inheritance (Storer v. Hunter, 3 B. & C. 368); they are, on their wrongful severance by the tenant, restored to the condition of goods and chattels, and an immediate right to their possession vests in the landlord. See Farrant v. Thompson, 5 B. & A. 826.

It should be added that, from the right of the landlord being decided and affirmed on the footing of such a stipulation, it can by no means be safely inferred that the things in question would otherwise have been removable, still less that they were not fixtures.Solicitor's Journal.

(To be continued.)

CONTRACT FOR SALE OF LAND.
LONG V. HARTWELL, ADMINISTRATOR, ETC.*

1. Authority to agent to make executory contract for the sale of land may be by parol. If in such case he makes contract under seal, it is not valid as a sealed instrument, but is good as a simple contract.

2. The general rule is, that acceptance of a deed for land is to be deemed full execution of an executory contract to convey. Covenants collateral to the deed are exceptions to this rule. Also, where the stipulation is to do a series of acts at successive periods, or distinct and separable acts to be performed simultaneously, the executory contract becomes extinct only as to such of its parts as are covered by the conveyance.

3. A substituted performance agreed upon by parol, actually and fully executed by vendor and accepted by vendee, may be set up in defense at law in a suit on a written contract, within the statute of frauds.

4. If vendor or vendee wishes to enforce contract against the other, he immediately makes his part of the agreement precedent.

Error to Hudson circuit court.

On the 15th of March, 1866, Nathaniel O. Carpenter and Patrick Long entered into the following articles of agreement, viz.: "Articles of agreement made and entered into on the 15th of March, 1866, between, etc., in manner and form following: The said party of the *Supreme Court of New Jersey.

first part, in consideration of the sum of $100 by him duly paid, hereby agrees to sell unto the said party of the second part, all that certain piece or parcel of land, with the two story dwelling-house thereon, situate on the north side of Clinton avenue, in the city of Hudson, and known on a map made by Clark & Bacot as lot No. 44, being property formerly owned by John Riley, which, with the lot adjoining the premises described, is property herein contracted for, for the sum of $850, which the party of the second part hereby agrees to pay to the said party of the first part as follows: $100 on the signing of the agreement, the receipt of which is herein acknowledged; $450 on or before the second day of April next, and to give a mortgage for the balance, payable in three years from date, with interest payable semi-annually, with the privilege to pay before the expiration of the time mentioned.

"And the said party of the first part, on receiving such payment at the time and in the manner above mentioned, shall, at his own proper costs and expenses, execute, acknowledge and deliver to the said party of the second part, or to his assigns, a proper deed for the conveyance and assuring to him the fee simple of the said premises, free from all incumbrances, which deed shall contain a general warranty and the usual full covenants.

"And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties.

"In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.

"JOHN H. PLATT, [L. S.] "Agent of Nathaniel O. Carpenter. "PATRICK LONG. [L. S.]

Sealed and delivered) in the presence of

"JOHN H. PLATT."

Afterward, in the term of May, 1860, Patrick Long brought suit in the circuit court of the county of Hudson against Samuel S. Hartwell, administrator of said Nathaniel O. Carpenter, then deceased, to recover damages for an alleged non-performance of the contract. The declaration set out the agreement as above, and then alleged and set forth, that although he, said plaintiff, did pay to the said defendant the said sum of $100 on the signing of the said agreement, and $450 on or before the 2d day of April next, after the signing of said agreement, and did give a mortgage for the balance of the said sum of $850, payable, etc., as in said writing of agreement mentioned, yet the said defendant, although, etc., did not deliver to the said plaintiff a proper deed conveying to him the fee-simple of the premises, free from al incumbrances, but refused so to do, etc., contrary to said agreement, etc., by reason whereof he has been deprived of all the benefit and advantage which would have arisen from the completion of the said purchase, and has been put to large expense in endeavoring to complete said purchase, to wit, $500.

The defendant pleaded the general issue and gave notice:

1. That said Platt was not his agent, and had no authority to make and execute such article of agreement as the one declared on.

2. That after making said alleged agreement, to wit, on the 2d of April, 1866, the defendant, with his wife, made and delivered to Mary Long, the wife of the plaintiff, at the solicitation and request of the said

plaintiff, a deed of conveyance of the said premises, in the said declaration mentioned, or to so much or such part thereof as the said defendant had previously promised to sell and convey, and the said plaintiff thereupon accepted and received said deed of conveyance in full satisfaction and discharge of the said supposed article of agreement, etc., and the said plaintiff, together with his wife, then and there made and delivered to the said defendant a mortgage, upon the said premises so conveyed by the said defendant to the said Mary Long as aforesaid, to secure the payment of the said sum of $350 mentioned in said declaration.

The cause was tried at the Hudson circuit court. The plaintiff produced the agreement, and proved the execution of it by the subscribing witness. He offered in evidence, also, a deed of conveyance made by N. O. Carpenter and wife, to Mary Long, wife of Patrick Long, dated April 4, 1866. It was admitted by the counsel of the defendant below, that $450 was paid by the plaintiff to N. O. Carpenter at the time of the delivery of the deed, and a mortgage given by Long and wife to the said Carpenter, upon the premises described in the deed, to secure the payment of $300, and that the interest thereon had been duly and regularly paid since that time.

The defendant below moved to nonsuit the plaintiff, on the ground that assumpsit would not lie on an instrument under seal; and also, that the delivery of the deed to the wife of the plaintiff, and the acceptance by the plaintiff of such deed of conveyance for and in behalf of his said wife, was a full compliance with the terms of said agreement or contract in writing, and that the plaintiff was estopped from denying it; that by the acceptance of the said deed, the agreement, if valid, was merged in said deed, and, in the absence of fraud, no action could be maintained on it; that, to entitle the plaintiff to recover, he must show that before suit brought he had tendered a deed for the premises to the defendant's intestate, with a request that he should execute and deliver it to him in pursuance of said contract.

The court overruled the motion to nonsuit, and charged the jury as follows: "The case deals entirely with questions of law, and my instructions to you are, that the plaintiff is entitled to recover $300, with interest thereon from the 24th of April, 1866, to the present time.

"It appears that the deceased, whose administrator the defendant is, agreed in his life-time, through his agent, Mr. Platt, to convey two certain lots of land in the city of Hudson to Patrick Long, the plaintiff, and, in pursuance of those articles of agreement, Mr. Carpenter conveyed only one of those lots, and was paid the full consideration which he was to receive for the two lots. Therefore, he fulfilled his covenant only in part, and as to the balance, there was a failure on his part to fulfill, and, accordingly, Long got one lot, whereas, by the covenant, Long, by his agreement with Mr. Carpenter, is entitled to two lots. He is entitled to a verdict at your hands for the value of the one lot which Mr. Carpenter agreed to convey and which he failed to do.

"The plaintiff not having received the deed for that lot is entitled to the value of the lot in place of the lot, and the evidence in the case is, that it was worth $300 at that time; so that, if Mr. Carpenter had fulfilled his entire agreement, Mr. Long would have got $300 more in value than he did get. Not having got the land worth $300, he is entitled to damages in law, and, there

fore, my instruction to you is, that the plaintiff is entitled to recover $300, with interest from the 4th of April, 1866.

"In regard to the questions of law which have arisen, if the defendant's counsel desires, I will grant him a rule to show cause at once, for I have some doubt as to whether the acceptance of the deed did not make the article of agreement null and void, and whether an action could be maintained under these articles after the acceptance of a deed, or he may take a bill of exceptions and assign errors on all points."

The counsel for the defendant thereupon excepted to said charge, and to the other rulings of the court above referred to, and a bill of exceptions, embracing all the points, was sealed accordingly.

The jury gave a verdict for the plaintiff for $342, for which sum judgment was entered.

Upon error brought by the defendant below, the judgment and proceedings were brought into this court, and thereupon the said plaintiff in error assigned for error the various points and rulings above excepted to.

Argued at November term, 1869, before the Chief Justice, and Depue, Woodhull, and Van Syckel, JJ.

J. Dixon, Jr., for the plaintiff.

J. Harvey Lyon, for the defendant.

VAN SYCKEL, J. John H. Platt, as agent for Nathaniel O. Carpenter, on the 15th of March, 1866, executed an agreement in writing, under seal, with Patrick Long, by which Carpenter agreed to convey to Long a lot of land, with a dwelling-house thereon, situated on the north side of Clinton avenue, in Hudson City, known as lot No. 44, and also the lot of land adjoining thereto, for the sum of $850; $100 of the consideration money were paid at the signing of the articles; $450 were to be paid on or before April 2d, 1866, when the deed was to be delivered; and the balance of the purchase-money secured by a mortgage on the premises to be conveyed. On the 4th of April, 1866, Long having paid Carpenter $450, he executed to the wife of Long a deed for lot No. 44, and Long and wife executed to him a mortgage on the same lot for $300, the balance of the purchase price. This suit was instituted in the Hudson circuit, to recover from the administrator of Carpenter damages for not conveying the lot adjoining lot No. 44, and resulted in a verdict for the plaintiff for the value of the part not conveyed.

1. The authority to the agent to execute the written agreement having been by parol, it is insisted that it does not bind the principal. Our statute of frauds does not require the agent's authority to make a contract to convey land to be in writing; it exacts a written contract, not a written power to the agent. The distinction is clearly drawn in the terms of the statute, between conveying and contracts to convey land. In the former case, under the tenth section, the power to the agent must be in writing; while in the latter, under the fourteenth section, the words "in writing" are omitted, and the cases, both in England and this country, agree that the appointment may be by parol. 2 Kent's Com. 613; 10 Paige, 386; Story on Agency, § 50; Brown on Frauds, § 370, note 2. The fact that the contract in this case was sealed by the agent does not vitiate it. There is no doubt about the general rule that a power to execute an instrument, under seal, must be conferred by an instrument of equal solemnity. If

the writing given by the agent be under seal, and that be essential to its validity, the authority of the agent must be of equal dignity, or it cannot operate. Here a seal was not vital to the contract; there was no authority to the agent to attach a seal, therefore the seal is of no value, but the power to execute the contract without seal having been ample, so far it becomes the act of the principal, and inures as a simple contract. 2 Kent's Com. 613; Lawrence v. Taylor, 5 Hill, 107.

2. Was the stipulation in the executory contract that the vendor would convey two lots merged in or extinguished by the acceptance of the deed conveying only one lot?

The general rule will not be questioned, that the acceptance of a deed for land is to be deemed prima facie full execution of an executory agreement to convey, and thenceforth the agreement becomes void, and the rights of the parties are to be determined by the deed, not by the agreement. Covenants collateral to the deed are exceptions to this rule, and cases may be stated where the deed would be considered only in part execution of the contract.

In cases where the clause in the agreement stipulating that the tract contains a certain number of acres is omitted in the deed, no action will lie on the agreement for deficiency in quantity. Houghtaling v. Lewis, 10 Johns. 297.

So, where in the deed there is an absence of covenants against incumbrances, the vendee cannot resort to the contract. Until consummated, an executory contract is subject to modification. In all cases, the deed when accepted is presumed to express the ultimate intent of the parties with regard to so much of the contract as it purports to execute. The acceptance of a deed conveying the whole premises without the covenant as to quantity, or against incumbrances, raises the presumption that the grantee agreed to take title at his own risk as to quantity or incumbrances, or he would have rejected it. These contracts in this respect are a unity, and not distinct or separable in their provisions, and, if executed at all, it is necessarily an entire execution. This reasoning will not apply to cases where two things are to be conveyed by distinct acts. The conveyance of one would purport to be only in part execution, and should not be held to destroy the vitality of the contract so far as relates to the part unexecuted.

(To be continued.)

noticed which by date of filing return are entitled to priority. Causes on the special calendar will be designated by their present number on the general calendar. New and passed ones will be put in halves. The next term of the commission will commence on the first Tuesday of January, 1871.

W. H. BENJAMIN, Clerk.

A Selection of Cases on the Law of Contracts, with references and citations, by C. C. Langdell, Dane Professor of Law in Harvard University. Prepared for use as a text-book in Harvard Law School. Boston: Little, Brown & Company, 1871, pp. 1022. Mr. Langdell's idea is a happy one-law, like most other sciences, can be better taught by combining the abstract with the concrete, the theoretical with the practical. This is precisely what this work does. The student is not left to con over and endeavor to comprehend the isolated principle evolved from the cases, but he discovers in what manner and upon what facts the cases arose, and how the principles came to be decided.

The work is divided into three chapters. The first on "Mutual Consent;" the second on "Consideration;" and the third on "Conditional Contracts." These chapters are subdivided into sections. Under each subject are classified "all the cases which have contributed in any important degree to the growth, development or establishment of any of its essential doctrines." The cases are arranged in chronological order, and have been selected from the English and American reports.

Every student of the law who desires to acquire a clear conception of the settled principles of the law of contracts-and we should hope that every student would so desire - should take this as his first book on the subject; should carefully study the cases, the facts and the opinions, and evolve for himself the principle established. Afterward in studying the text-books, he should make this a subject of constant reference for illustrations.

But not alone to the student will this work prove useful. The practitioner will certainly find it of constant and great value in the daily duties of his profession.

The cases have been selected with excellent judgment.

}

OFFICE OF CLERK OF COMMISSION OF APPEALS, ALBANY, November 28, 1871. The commissioners of appeal have deemed it unadvisable to make up a new general calendar for 1872, and have therefore decided that all causes on the present general calendar undisposed of, except such as have been passed, may be heard without further notice. All causes not on the present calendar, and all passed causes will be placed thereon, if regularly noticed on or before the 15th day of December, 1871.

There will be, for the better convenience of the court and bar, a special calendar made up for the January term of the first hundred, consisting of the preferred and reserved causes, and also of such others as may be

ANECDOTES OF JUDGES.

A writer in London Society tells some good stories of English judges-among them the following:

Baron Alderson, learned, gentle and good, could make puns, and had much drollery. A juryman once said that he was deaf in one ear. "Well, then," said Alderson, "you may leave the box, for it is necessary that a juryman should hear both sides."

There was a little stir one day in Lincoln's Inn, when a vice-chancellor requested a gentleman who had strolled into the court to come up and take a seat on the bench. At least he told the registrar to bear the message, who was disgusted at what he considered an unofficial proceeding. The stranger so deservedly honored was Macauley.

GENERAL TERMS.

2d Monday in December, second department, Brooklyn.

The Albany Law Journal.

ALBANY, DECEMBER 16, 1871.

JUSTICES' COURTS.

In our issue of November 11, we noticed what seemed to us to be the short-comings of the system of justices' courts in force, at the present time, in New York, and, substantially, in most other States. We did not, however, indicate any remedy for such evils as we claimed existed. We are confident, however, that they are not remediless, although it may be difficult to reach some of them by legislation, so long as one of their chief causes, namely, the choice of justices by popular vote, is a constitutional necessity.

Of course, every evil complained of springs from a certain cause, or combination of causes, the taking away of which will, in all probability, remove the evil. But such action may, while removing one fault, be productive of an amount of harm which would render it wholly unadvisable. In doing away with what we do not approve in these institutions, we must take care and not destroy the institutions themselves. The faults of justices' courts, however, are radical, and any measures designed to eradicate them must also be radical. Half-way changes will accomplish little good.

The constitution of the State (art. 6, § 18) indicates in what manner justices of the peace in the several towns shall be chosen, and the length of their term of office: "The electors of the several towns shall, at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years." It is left to the legislature to regulate their number and classification by law.

The judiciary system of the State ought to be harmonious. An inferior court ought to resemble a superior one just as nearly as possible. Its organization, modes of procedure, rules of evidence, and every thing else, if not precisely the same, should be analogous to those of the other. We have, in this State, a court of record, the supreme court, having original jurisdiction, with a certain organization, and a system of practice. We have an inferior court, not of record, the justices' court having original jurisdiction, with a different system of practice, and organized in an entirely dissimilar manner. Now, we believe, the justices' court should be to the county what the supreme court is to the State. To some extent it is so, but we think the resemblance should be carried further.

There are at present four justices elected in most, if not all, the towns of the State. We would favor a reduction of the number. In a town of less than four thousand inhabitants only one justice should be chosen, and only one allowed for each four thousand

or fractional part in excess of four thousand, or its multiple. In cities the same rule might be applied to wards. This would, of course, reduce the number of justices in the country, but there would be enough to do the necessary business.

The justices elected should have power to try causes in any town or ward in the county, and should be required to hold regular courts in each town as frequently as the business of that town might necessitate, something after the manner of the circuit courts. They should receive a per diem allowance, or annual salary, from the county, and should be allowed no fees for services in any case coming before a justice of the peace in the county. Such a plan as this would, we are confident, do away with much of the local favoritism, and certainly with some of the expense to suitors. It may be said in regard to the last matter that those who go to law should foot the bill. They do not, however, in the higher courts, and there is no equity in compelling them to do so in the inferior. Besides, justices, even now, are paid considerable sums by the county for criminal and other public duties; we are not sure but enough to afford liberal salaries to the reduced number of officials proposed above.

The holding of regular courts, as suggested, would be a boon to many attorneys, and would deprive some local pettifoggers of a means of annoyance by procuring the appointment of unseasonable times for the trial of causes.

The practice of the court should be made more analogous to that of courts of record. Parties ought to be allowed to appear by attorneys in the same manner as in other courts. Every attorney in the supreme court, practicing in the county, should have the right to issue original process, returnable at a regular court, and each justice process returnable before any other in the county; service and proof of it by the same persons and in the same manner as in courts of record. Attorneys should be allowed to issue executions. The necessity or excuse for a great portion of justices' fees would thus be done away with, and the fees of constables reduced to a mini

mum.

There would then be no need of any expense for official services in cases settled before trial.

The pleadings, instead of being oral, as they now are, ought to be written and verified. At the present time a plaintiff need not disclose his real cause of action until the trial, as he can declare upon every kind of action triable in the court, and offer proof eoncerning only one of them. The defendant has an equal chance. He can set up every conceivable defense, no matter how contradictory, and the plaintiff cannot know, until the trial is ended, what defense it is proposed to rely upon. The verification of pleadings would dispense with this difficulty, as neither plaintiff nor defendant would usually be willing to commit perjury for the sole purpose of mistifying his adversary. It would also diminish the number of

trumped up suits which now abound in justices' courts, and, for the most part, do away with sham defenses. Legitimate claims, and those believed by their owners to be such, would not be prejudiced, neither would defenses of like character.

In order to prevent the bringing of suits on fictitious claims, the plaintiff might be required to deposit before the issue of the summons, with the justice of the town where it is made returnable, a verified complaint. If the summons is issued in another town than that where it is to be returned, the deposit could be made by placing the complaint in the post-office properly directed to the justice, the return day in such case being required to be more remote.

Joining of issue could be made by filing with the justice on or before the return day a verified answer or demurrer. Similar requirements as to a reply to those now in force in the supreme court should exist. Adjournments would be necessarily to the next regular court to be held in the same town. The necessity of verifying pleadings would, however, diminish the number of adjournments, as most judgments would be taken by default upon the return day. Judgment by default could be taken, as it is at present, at a special term of the supreme court, where no answer has been put in, or at circuit when the party does not appear.

The plaintiff must at present sue in certain towns or the justice does not acquire jurisdiction. We would make the summons returnable in either the town where the plaintiff or defendant resides or has a place of business. There being no necessity of finding the justice of either town, and the holding of the court being regular, the return day can be fixed with reference to such holding. There is even now no sense in giving a plaintiff the chance of half a dozen towns to sue in. Where both parties reside in the same town there is no call for them to go elsewhere to settle their quarrels, and when the plaintiff resorts to an adjoining town to commence a suit it is generally for the purpose of giving the defendant trouble. If, however, a summons is made returnable in the wrong town, the court should still retain jurisdiction, the remedy of the party objecting to the venue being by application to the county court for a change of venue to the proper town.

Justices should be required not only to keep a docket, as now, but to take minutes of the evidence given in trials before them. This is to-day done in fact by most justices, though not required by law.

The prevailing party should recover some costs as compensation for the trouble he has been put to. The costs recoverable now hardly cover official fees paid, the time and expense incurred by the party being borne by himself. The allowance should be limited to a few dollars.

Appeals to the county court could be made in this way. The appellant should serve a notice, as at present, upon the respondent, together with a copy

of the pleadings, justice's docket, and, in case the appeal is made on law points only, his minutes of evidence. Before serving the notice of appeal the appellant should deposit with the county clerk a sum of money equivalent to the amount of the costs below, and such expense as will accrue for fees in the county court. In case the appellant is successful above, the deposit, less the fees, should be returned to him, otherwise go to the respondent, the county court fees being included in his, appellant's, judgment when he succeeds. The requirement of this deposit will prevent worthless persons appealing, for the purpose of delay, and with the additional requirement of security when new trial is desired, almost wholly discontinue sham litigation. New trials might be granted in the county court in cases where the amount litigated below was twenty dollars and upward. This sum is smaller than the one giving a new trial at present, but there will be no appeals upon fictitious demands inserted in pleadings for the sake of making an appeal.

We have sketched only the outlines of the changes we believe should be made. That a system similar to the one indicated, if not giving us more intelligent and honest justices of the peace than we have, would remove most of the power and temptation to do injustice, is, we think, evident. Other systems may be suggested that are better calculated to attain the desired end. If so, we trust some one of them will be in time adopted. What we want is an educated and upright inferior judiciary, and we shall gladly welcome any measure promising to give us one.

CONSTRUCTION OF WILLS.
No. I.

The doctrine of interpretation by the context, as applied to wills, is virtually identical with the rule that a testator's general intention is to be deemed paramount to his particular intention. See Roddy v. Fitzgerald, 6 H. L. C. 877.

Both rules are examples

of the general principle of cy pres. or approximation. Where every clause cannot receive its plain grammatical construction, a balance is struck, so to speak, and the meaning of a particular clause is determined, not merely by the meaning of the particular terms used, but also by reference to every other clause in the same document so far as the rules of law will allow.

Testing the force of a particular passage, by reference to other clauses, is, in fact, a necessary result of the rule that a document must be sought to be interpreted by means of every statement contained within its four corners. The case may be likened to a mansion where the heat of the room containing the furnace stove is modified by the temperature of the other apartments, and conversely; or, to adopt another analogy, the momentum and net effect of a certain clause