MISTAKE - "ASSUMPTION CLAUSE" INSERTED GRANTEE RELEASED BY GRANTOR-BONA FIDE PURCHASER OF MORTGAGE NOTES TAKES SUBJECT TO EQUITIES.-Where in a recorded deed of land subject to a mortgage, an agreement of the grantee to assume and pay it is inserted by mistake of the scrivener and against the intention of the parties, and on the discovery of the mistake the grantor releases the grantee from all liability under the agreement, a court of equity will not enforce the agreement at the suit of one who, in ignorance of the agreement, and before the execution of the release, purchases the notes secured by the mortgage, although the grantee, after the deed of conveyance to him, paid interest accruing on the notes. The appellee, by her purchase of the notes secured by the second mortgage, doubtless acquired all the rights of the mortgagee. New Orleans Canal Co. v. Montgomery, 95 U. S. 16; Swift v. Smith, 102 id. 442. But having purchased in ignorance of the supposed agreement of Drury in the deed of conveyance from Daggett to him, and having done nothing upon the faith of that agreement, she has no greater right by estoppel against Drury than the mortgagee had. The mortgagee had no part in obtaining, and paid no consideration for that agreement, and upon the most favorable construction had no greater right under it than Daggett, with whom it purported to have been made. On the facts of this case, Daggett, in a court of equity at least, never had any right to enforce that agreement against Drury. The payment of interest on the mortgage notes would naturally be made by Drury to prevent a foreclosure of the mortgage on his land, and cannot be held to be an affirmance of an agreement of which he had no actual knowledge. The clause containing the agreement being conclusively proved to have been inserted in the deed by mistake of the scrivener, without the knowledge and against the intention of the parties, a court of equity, upon a bill filed by Drury for the purpose, would have decreed a reformation of the deed by striking out that clause. Elliott v. Sackett, 108 U. S. 133. The release executed by Daggett to Drury has the same effect, and no more. Drury v. Hayden. Opinion by Gray, J. [Decided April 7, 1884.] WISCONSIN SUPREME COURT ABSTRACT. EJECTMENT-RECOVER ON OWN TITLE-POWER OF ATTORNEY-GENERAL POWER FOR PARTICULAR PURPOSE - ESTOPPEL AFTER-ACQUIRED TITLE — - JOINT TENANTS-PARTITION-COVENANTS IN DEED. · (1) In an action of ejectment the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's title. Gardiner v. Tisdale, 2 Wis. 152. (2) The power of attorney herein to "accept service or convey land, or do any other thing necessary for procuring partition of the same," does not authorize the conveying of the land for any other purpose. The rule is universal "that when there is a power of attorney to do a particular act followed by general words, these general words are not to be extended beyond what is necessary for doing that particular act for which the power of attorney is given." This is the language of Lord Campbell in Perry v. Holl, 2 De Gex, F. & J. 48. To the same effect are Esdaile v. La Nauze, 1 Younge & C. 394; Attwood v. Munnings, 7 Barn. & C. 278; and many other cases which might be cited. In this last case it was held by the King's Bench "that the general words in the power of attor ney were not to be construed at large, but as giving general powers for the carrying into effect the special purposes for which they were given." These cases are in harmony with the decisions of this court. Chilton v. Willford, 2 Wis. 1; Dodge v. Hopkins, 14 id. 630; Gee v. Bolton, 17 id. 604. Thus construed, it is apparent that the power given by the instrument was fully exercised and exhausted by the mutual conveyance made in 1866 for the express purpose of such partition. The partition of the lands having thus been made by virtue of the power of attorney, and that being the sole purpose and object of the power, it is evident that any subsequent attempt by the attorney to convey the land for his own private benefit would be wholly unauthorized and necessarily treated as a nullity in ejectment. Campbell v. Campbell, 57 Wis. 288; 15 N. W. Rep. 138; Meade v. Brothers, 28 Wis. 689. (3) A party who conveys land by a deed containing warranties of title, and to defend the same from the lawful claims of all persons, is estopped from setting up against his grantee, or those claiming under him, any after-acquired title to the same land. Such title inures eo instanti by way of estoppel to the use and benefit of the grantee. Rogers v. Cross, 3 Pin. 36; Wiesner v. Zann, 39 Wis. 188; House v. McCormick, 57 N. Y. 310. (4) In case of voluntary partition between joint tenants or tenants in common by mutual conveyances, their right to recompense in case of loss depends solely upon the covenants contained in the deed, and not upon any implied warranty. Weiser v. Weiser, 5 Watts, 279. Rountree v. Davidson. Opinion by Cassoday, J. [Decided Feb. 19, 1884.] SCHOOL-CONTRACT-BOARD TO MAKE-NOT INDIVIDUAL MEMBER.-Where wood is bought under con tract for use of the district, the basis of an order for payment is the ascertainment of the fulfillment of the contract by the district board. The county treasurer, as one of the board, has the legal right to know if the contract has been complied with before paying for the same. The law requires the action of all members if present, and all must be notified to be present. Church of New London v. Vandusen, 37 Wis. 54. Every thing that was done by the clerk or director in acceptance of the wood, if any thing was done to that effect, was by their individual and separate action. The order was drawn and signed by the clerk, and then carried to the director, who was elsewhere, to be countersigned by him. The defendant was never consulted on the subject or notified of any action by the board or any of its members in reference to the matter. He had a legal right to be consulted about the acceptance of the wood, for he was as much responsible in relation to it as the other two members of the board. He knew that the order had been issued unlawfully, and he had a right to refuse to honor it Doyle v. Gill. Opinion by Orton, J. (20 Eng. Rep. 522.ED.) [Decided Feb. 19, 1884.] LIFE TENANT-WHEN NOT WASTE TO CUT TIMBER. —— This action was brought to restrain defendant, widow, from committing waste by cutting and selling timber from the homestead occupied by her as, and to recover damages for what she had already cut. The lands in question were not disposed of by the testator's will. In some of the States the widow is not dowable of land in a wild state, unconnected with any cultivated farm or occupied lands. Connor v. Shepherd, 15 Mass. 164; White v. Cutler, 17 Pick. 248; Clark v. Holden, 7 Gray, 8; Johnson v. Perley, 2 N. H. 56; Chase v. Hagelton, 7 id. 171; Dickinson v. Jones, 36 Ga. 97. In our State the widow of every deceased person is entitled to a dower, or use for her natural life, of one-third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof, etc. Section 2159, Rev. Stat. As the deceased left a widow and issue, his homestead descended to his widow during her widowhood, and upon her marriage or death, to his heirs. Section 2271, Rev. Stat. For the purposes of this case, the widow may be regarded as the life tenant of the lands in question. In some States where wild land is connected with and included in the lands assigned to the widow as dower, she is only entitled to cut such wood and timber as may be necessary for the supply of the dower estate, to be actually used and consumed thereon, or for purposes connected with the proper occupation and enjoyment thereof. White v. Willis, 7 Pick. 143; White v. Butler, supra; Miller v. Shields, 55 Ind. 71; Cannon v. Barry, 57 Miss. 289; Parkins v. Coxe, 2 Hayw. 339. It has been substantially held in many States, and we are inclined to hold the rule to be substantially correct, that it is not waste for the life tenant to cut down wood or timber, so as to fit the land for cultivation or pasture, provided this does not damage or diminish the value of the inheritance, and is conformable to the rules of good husbandry; and this is so, even where the wood or timber so cut is sold, used, or consumed off the premises. Keeler v. Eastman, 11 Vt. 293; Alexander v. Fisher, 7 Ala. (N. S.) 514; Hastings v. Crunckleton, 3 Yeates, 261; Givens v. McCalmont, 4 Watts, 460; Williard v. Williard, 56 Penn. St. 119; Drown v. Smith, 52 Me. 141; Davis v. Gilliam, 5 Ired. Eq. 308; Owen v. Hyde, 6 Yerg. 334; Findlay v. Smith, 6 Munf. 148; Appeal of Campbell, 2 Doug. (Mich.) 141; Jackson v. Brownson, 7 Johns. 227; Van Deusen v. Young, 29 N. Y. 30; Allen v. McCoy, 8 Ohio, 418; Crockett v. Crockett, 2 Ohio St. 180. In some of these cases the question of waste depended some on the proportion of woodland to the cultivated land. Owen V. Hyde, supra; Findley V. Smith, supra; Drawn v. Smith, supra; Hastings v. Crunckleton, supra. So it has been held that she the may cut and sell timber sufficient to raise PENNSYLVANIA SUPREME COURT ABSTRACT. LIMITATION-CLAIM OF ATTORNEY.-The claim of an attorney for professional services rendered in an action pending at the death of the client becomes due at such time, and consequently the statute of limitations commences to run from that date. McClintock's Appeal, 5 Casey, 360; McCandless' Estate, 11 P. F. Smith, 9, and Campbell v. Fleming, 13 id. 242. The statute will not operate as a bar in proceedings in the Orphan Court for the distribution of a decedent's estate. This is not so in actions at law. In the latter case it acts on the remedy and takes away the right of action unless suit is brought within the time limited by the statute; but it does not extinguish the debt nor affect the trust created for its payment as long as the trust subsists. Campbell v. Maple. Opinion by Sterrett, J. [See 6 Am. Rep. 90; 26 Eng. R. 52; id. 326; 7 Allen, 274; 55 Penn. St. 434.-ED.] [Decided Feb., 1884.] GIFT-PARENT TO CHILD-RESULTING TRUST.-A. purchased real estate, and had the deed from the grantor drawn so as to pass the absolute title to his daughter B., with the reservation of the use of the premises to himself during the minority of B. Held, that the delivery of this deed to A. was sufficient to pass the fee to B. We cannot regard the transaction as inchoate as between the father and daughter. It was completed entirely when the land was conveyed by the execution and delivery of the deed. Had the title RECENT ENGLISH DECISIONS. CORPORATION-COSTS OF FORMATION WHEN NOT LIABLE TO ATTORNEY.-A company was formed for the purpose of purchasing M.'s business, and the articles provided that all expenses incurred about the formation of the company should be paid by the company. M. had employed P. as his solicitor in the formation of the company, and after its formation he acted as its solicitor, M. being one of the directors. At a meeting of the directors, M. being present, P. asked that his costs might be paid, and the chairman said they were all agreed that the company would pay these costs; but nothing concerning this appeared on the minutes. At a later meeting a resolution was passed on the proposal of M. that a check should be given to P. to discharge a certain part of these costs. The company being afterward wound up, P. carried in a claim for his bill of costs, but the taxing master disallowed all items incurred before the formation of the company. Bacon, V. C., affirmed his decision. Held, that P., having been retained by M., the company were not bound to pay for his services, though they had had the benefit of them. Held, also that there was not evidence of an agreement by the company to pay P. Lindley, L. J., said: "If he had brought this action against the company with no materials except proof that he had done the business and the provisions in the articles he could not have succeeded. This is shown by many cases, among which I may refer to Eley v. Positive Government Security Life Assurance Company, 34 L. T. Rep. (N. S.) 190; 1 Ex. Div. 20, 88, where it was held that articles of association do not constitute a contract between the company and an outsider. A provision in act of Parliament may enable an outsider to sue. There is in such a case a statutory obligation of which the person named can take the benefit, an action for debt on a statute being a well-known old form of action at common law; but an agreement between A. & B. that B. shall pay C. gives C. no right of action against B. I cannot see that there is in such a case any difference between equity and common law, it is a mere question of contract. It is said that Mr. Pease has an equity against the company because the company has had the benefit of his labor. What does that mean? If I order a coat and receive it, I get the benefit of the labor of the cloth manufacturer; but does any one dream that I am under any liability to him? It is a mere fallacy to say that because a person gets the benefit of work done by somebody else he is liable to pay the person who did the work. Ct. of Ap. Nov. 21, 1883. Matter of Rotherham Alum and Chemical Co. Opinions by Cotton, Lindley, and Fry, L. JJ. [50 L. T. Rep. (N. S.) 219.] WILL-LEGACY, WHEN RESIDUARY AND NOT SPECIFIC.-A testator by his will directed his debts and funeral and testamentary expenses to be paid, and bequeathed a large number of pecuniary legacies. He then gave all the personal estate of which he should die possessed and which should not consist of money or securities for money, to R. absolutely, and gave all the residue of his estate, both real and personal, to his executors upon certain trusts. The personal estate, consisting of money and securities for money, was not sufficient to pay the pecuniary legacies. Held (affirming the judgment of the court below), that the gift to R. was residuary, and not specific, and must be resorted to in order to satisfy the pecuniary legacies. House of Lords. July 23, 1883. Robertson v. Broadbent. Opinions by Selborne, L. C., and Fitzgerald, L. [50 L. T. Rep. [N. S.] 243.] GUARANTY-CONTINUING TERMINATED BY DEATH -LIABILITY OF ESTATE-APPROPRIATION OF PAY MENT.-S. gave to the L. and C. bank a continuing guaranty for moneys from time to time due to the bank from T. on the general balance of his account, in consideration of the bank allowing T. to overdraw his account. S. died, and at that time T.'s account was overdrawn to the extent of 6771. 17s. 2d. His account was then balanced and closed, and a fresh account opened, in which he was debited with interest on the overdraft. No notice of this was given by the bank to S.'s executors. T. continued to keep his account with the bank, and various sums were from time to time paid into it, and more than sufficient to discharge the 6771 17s. 2d. He subsequently went into liquidation, at which time his account was overdrawn to the extent of 1381. 12s. 10d. in addition to the amount of the former overdraft. The bank contended that there were two distinct accounts, and that the sums paid in subsequently to S.'s death were credited to the new account, and that the amount owing on the guaranteed account at S.'s death, when the guarantee ceased, still remained undischarged, and they brought this action to administer S.'s estate for the purpose of recovering that sum. It was assumed on both sides that the guarantee terminated basin, is not in the position of a riparian owner on the shore of a large lake. He has no usufructuary rights, being, as above stated, unable to prevent a neighbor from abstracting or diverting the common supply, and he therefore cannot prevent his neighbors from doing that which will cause the water, when drawn by him to the surface, to be polluted. Two such wells as above described were so situated, ninety-nine yards apart, as to be practically in connection, the water standing at the same level in each when pumps were not being used, and the use of the pump in one tending to lower the water level in the other. The defendant, owning one well, began to use it as a cesspit. The plaintiff, a brewer, owning the other, complained that as the fact was, the water in his well, which had formerly been pure, now proved to be polluted when drawn to the surface. There was no subterranean flow or current from one well to the other except such flow as resulted from the natural tendency of the water to replace that which was drawn up from either well. It thus appeared that if the plaintiff did not pump there would be no flow and no pollution. Held, in an action by the plaintiff for an injunction and damages, that he must fail, both on the principle above stated and also (which was in itself sufficient) because the pollution of the water in his well was owing to his own act. To hold the contrary would be to encourage actions for pollution from any distanee within the "cone of exhaustion" of a plaintiff's well, or even further, on the ground that the polluting matter might be passed on from well to well. It would also render it impossible to limit the depth at which the court might be asked to interfere. Acton v. Blundell, 1 L. T. Rep. 207; 12 M. & W. 324, and Chasemore v. Richards, 7 H. L. Cas. 349, applied. High Ct. of Justice, Chy. Div. Feb. 13, 1884. Ballard v. Tomlinson. Opiniou by Pearson, J. [50 L. T. Rep. (N. S.) 230.] NEW BOOKS AND NEW EDITIONS. COOLEY'S BLACKSTONE. The third edition of this work is published by Callaghan & Co., of Chicago. Of a former edition we spoke in 2 Alb. Law Jour. 483. In the present edition the English notes have been discarded, and others have been substituted, and still others have been enThe notes by Judge Cooley are excellent, and valuable to the practitioner as well as the student. The prefatory "Suggestions concerning the study of the Law," and the closing "Review," by the editor, are full of wisdom. As for Blackstone's work, it will never be superseded, and it is one of the few law treatises which it is a pleasure to read. larged. on the death of the surety. Held (reversing the decision of Bacon, V. C., 49 L. T. Rep. [N. S.] 556), that the bank had a right to open the fresh account, and to appropriate any money received to it, and that their contention was therefore correct. Clayton's Case, 1 Mer. 605, distinguished; Kirby v. Duke of Marlborough, 2 Maule & Sel. 18; Williamson v. Richardson, 3 Bing. 71; Holland v. Teed, 7 Hare, 50. Ct. of App. Jan. 24, 1884. London, etc., v. Terry. Opinions by Selborne, L. C, Coleridge, C. J., and Cotton, L. J. [50 L. T. R. (N. S.) 227.] WATER AND WATER-COURSE-SUBTERRANEAN POLLUTION-RIGHTS OF PARTIES.-It being settled that the owner of a well has no right of action against the owner of an adjoining well, both wells being fed from below from a common supply of unappropriated water in deep water-bearing strata, for abstracting or diverting the whole of such water, it follows that he has also no right of action if such neighbor, instead of thus affecting the quantity of the common supply, affects its quality by allowing or causing sewage or other noxious matter to be poured down his own well. The principle is that whoever gets the water first can do what he likes with it, and therefore the pollution having taken place before the water is drawn up by the party complaining, he must take it as he finds it or not at all. The owner of a well sunk into a deep waterbearing area, e. g., the chalk strata below the London NOTES. The American Law Register for June contains a continuation of the paper on Telegraph Companies, by Benjamin F. Rex, and an article on relief of the Supreme Court of the United States, by William M. Meigs, and the following cases: Stott v. Fairlamb (Eng. Ct. App.), on note for autecedent debt not due, with note by Edmond H. Bennett; Texas, etc., R. Co. v. Capps (Tex.), on baggage containing merchandise, with note by Adelbert Hamilton; Whiting v. Ohlert (Mich.) and White v. Holland (Oreg.), on statute of frauds, lease for a year to commence in future, with note by Marshall D. Ewell; Com. v. Phoenix Iron Co. (Penn.) on inspection of books of corporation by shareholder, with note by Charles L. Billings.In State v. Kirkpatrick, 19 N. W. Rep. 662, the Iowa Supreme Court observes, that "Men do kiss their wives, but ordinarily do not kiss their servant girls." Read, "do not kiss their 'ordinary' servant girls," and we are with the court. The Albany Law Journal. WE ALBANY, JULY 19, 1884. CURRENT TOPICS. The E have only been waiting for the Democratic nomination for the presidency - we mean, to learn who was nominated to offer all the candidates a bit of legal advice — gratuitous — on the subject of interviewing. Messrs. Blaine, Logan, Cleveland and Hendricks will now for several months be the prey of interviewers, if they will once abandon themselves to their cruel mercies. advice we are about to offer is in the form of a poem addressed to General Grant, who was always a model on this subject, not only as an interviewee, but as an interviewer. He asked but one "interview" that we have ever heard of, and that was with General Lee, and he only obtained it after long and persistent seeking. We never heard of anybody's obtaining an interview from him. We sent a copy of this poem to General Grant, but he did not have politeness enough to acknowledge it. We sent another to the poet Longfellow, and he not only acknowledged it, but said he thought it "better than the original." We suppose he intended this as a compliment, but we have always had an uneasy suspicion that he regarded our poem as in some sort an imitation or parody or travesty of some poem of his. Nothing could have been further from our thoughts. But we will let the poem speak for itself, and we venture to commend it especially to Governor Cleveland, not only as a candidate, but as a member of our profession and a resident of our own city. Now here is the poem, which we believe we have never divulged before : THE INTERVIEWER. The shades of night were falling fast, His hat was bad, his hair was long, In Willard's window he saw the light "Beware the policeman's locust club, Next morn, as homeward to their houses, A loafer did policeman Y Upon the White House steps espy, There in the twilight cold and gray, WASHINGTON, 1870. Judge Drummond, of the United States Circuit Court, has resigned. He is nearly seventy-five years old, and has been a judge for more than thirty-four years. The amount of public service that he has performed in this period is not easily calculable. The amount of compensation that he has received for it is very easily ascertainable, and it is pitifully small. We know nothing of Judge Drummond's financial circumstances, but it is safe to say that he cannot have saved any thing from his salary. It is an unjust thing for a great republic to allow a public servant to wear out his best years in its service for a meagre compensation, and to compel him to starve in his old age. This country is rich enough to pay its judges a decent salary say half as much as they could earn at the bar. Congress wastes enough money every year on a horde of unnecessary hangers-on and positive loafers to pay the judges what they ought to have. Mr. Taine says, in his History of English Literature, that the English are a gloomy and morose people, with no sense of humor. Reading the average "Punch" would go far to confirm this opinion. But the English lawsuits of late seem funnier than ours. We get quite a batch from Gibson's Law Notes. Southend, in its efforts to suppress Sunday trading, has prosecuted an old widow, who sold sweatmeats, eight times; a tobacconist, seven times; a fruiterer, seven. This is like the police arresting the small boys in a riot. A howling dog has been pronounced a public nuiMr. Spratt, manufacturer of dog biscuits, has enjoined a colorable imitation of his manufactures. (Perhaps the offending dog had got hold of one of the counterfeit articles.) An execution creditor sued a sheriff for not having seized a circus horse named "Lightning." The horse was usually ridden by Miss Maud Forrester as Mazeppa and Lady Godiva. The modest sheriff was probably afraid of meeting the lady in her go-diving costume, and of losing an eye. The clubs are in grief be. sance. because hackneyed. It is undoubtedly the case that San Francisco is effectively as near us to-day as Boston was to Richmond a hundred years ago. The New Yorker is vastly better acquainted to-day with the Chicagoan than he then was with the man from New Haven. We are all closer together in cause baccarat has been pronounced an illegal game. A county judge refused to hear a case about a lamb, and was mandamused and made to pay costs, and then called the plaintiff "an infamous liar." But the best joke of all is that the Court of Appeals consider that telephone wires are not a nuisance or dangerous. Probably the judges regard the net-point of mere time, and in other matters our closework of wires that adorns our cities as an Eolian harp on a large scale. But these wires have proved very much in the way in the case of great fires. Mr. William M. Meigs has an important article in the American Law Register for July, on the relief of the Supreme Court of the United States. He proposes to relieve it by bleeding, as some reformers once proposed to relieve our Court of Appeals. Mr. Meigs proposes to abolish the right of appeal on the ground of citizenship. After showing that this class of cases constitutes more than one-third of the entire number, and give special and peculiar trouble to the Court, and after answering the constitutional objection, he observes: "We think these facts show that the jurisdiction depending exclusively on citizenship involves great and peculiar trouble, and it would seem, therefore, that the decision of a hundred such cases must demand not a little more time and labor than do an average hundred cases of strictly Federal law. Therefore, as the citizenship cases constitute slightly more than a third of all their cases, we should, by abolishing root and branch this source of jurisdiction, reduce their labor considerably more than a third. This is a vast reduction, and the only question that remains is the advisability of the step. Is there any reason to-day for the court's being troubled with this mass of cases which do not belong to the system of jurisprudence which it is their function to erect? We cannot see that there is. The reason for the constitutional grant of jurisdiction in such cases is well known and was doubtless a hundred years ago a very valid one, but it would seem to have no vital force any longer. At the time the provision was adopted, we were emerging from a condition in which each State had been actively engaged in erecting its own walls of restrictions, with the view of helping itself and injuring its neighbors, and there is no doubt that there were strong feelings of jealousy and distrust among the different States of the confederation. This condition of affairs was the very reason for the making and adoption of the Constitution, and it is highly natural, therefore, that it contained the provision. There would likely, otherwise, have been frequent bickerings and discontents about verdicts and decisions going against citizens suing in States where they did not live, and one of the very purposes of the Constitution would have been frustrated for a time. But the course of nearly one hundred years has changed all this. It is hackneyed now to speak of the nearness of all parts of the country to each other and of the closeness with which we are bound together in all the affairs of daily life, but it is only the more true, ༡༢ ness to each other is even greater. And this con- tain that they cannot exercise this function any bet- |