PROMISSORY NOTE-PLEADING- ABATEMENT.-In an action upon promissory notes, an answer showing that the plaintiff for a valuable consideration, had agreed to extend the time of payment of the first note, and in violation of his agreement had commenced suit before the time had expired, though not sufficient in bar of the action, is good as a plea in abatement. When from the face of the complaint the cause of action appears to be due, and it can be shown by confession and avoidance that it is not due, it is good matter in abatement. Opinion by BIDDLE, C. J.-Rooker, et al. v. Cloud.

MECHANIC'S LIEN CREDIT NOTICE.-Although the statute does not in terms require the notice of a mechanic's lien to state that a credit has been given, where such is the case, yet as the chief object of recording the notice is to inform the public of the fact, nature and character of the lien, the notice should state the fact and length of the credit; and if it do not, subsequent purchasers may act on the theory that none was given. Where the lien-holder takes notes governed by the law merchant for the amount of his claim, this operates as a payment of the original indebtedness, unless there is an agreement to the contrary; and when the indebtedness is paid, there can be no lien on the property for the same. Opinion by WORDEN, J.-Schneider v. Kolthoff, et al.

OF

STATUTE OF FRAUDS-PART PERFORMANCE CONTRACT.-Where A planted at his own expense five hundred fruit trees on the land of B, under an agreement by which A was to cultivate the trees and receive two-thirds of their products during the life time of A and B, and after four years B sold the land: Held, that if no part of the contract had been performed by either party, perhaps it would have been within the statute of frauds if not reduced to writing. But the contract was not void, although not in writing, and for the part performance of it by A, whereby B was benefitted, an action would lie upon the implied promise to pay, independent of the special contract. Opinion by BIDDLE, C. J.-Wiley v. Bradley.

TRUSTS AND TRUSTEES — ATTORNEY - ADMINISTRATION.-1. It is a well settled rule in equity, that a trustee is not permitted to so manage the subject of his trust, as to make profits or gains therefrom for himself. The beneficiaries in the trust have a right to expect and require the exercise of his best judgment, care and diligence on their behalf, and the gains resulting therefrom inure to their sole benefit. 2. What such trustees may not do directly, he is not permitted to do through the intervention of an agent or attorney. 3. An administrator can not, therefore, be allowed, directly or through his attorney, to compro

mise, adjust and settle claims against the estate for which he is acting, for less than their face, and to put the difference in his own pocket. 4. And the rule is the same, whether the attorney, through whom such compromise and settlement is effected, acts for the administrator officially or personally; and whether he acts, in making such settlement, as the attorney of the administrator solely, or for him and others, with a view to their joint profit. What the administrator may not do singly, the policy of the law will not permit him to participate in doing. In either case the discounts obtained from creditors must inure to the benefit of the estate. 5. Upon final settlement of an administrator's accounts, it is not the duty of the probate judge to provide for the payment of claims against the estate which no creditor is asserting. 6. Nor is it within the jurisdiction of the probate court, upon such final settlement, to determine the state of accounts between the administrator and the several distributees to whom any balance found in his hands may be payable. The court can only order distribution of such balance according to law, leaving the state of accounts between the parties to be inquired into when such order of distribution is sought to be enforced by the respective distributees. Judgment of common pleas affirmed. Opinion by SCOTT, J. WRIGHT, J., dissenting.-Cox, Admr. v. John.

REMOVAL OF CAUSES POWER OF ATTORNEY AGENCY-PRACTICE.-1. Questions, other than such as affect jurisdiction, will not be reviewed in a court of last resort, which were omitted to be presented to the district court when sitting as a court of error on final judgments rendered by the court of common pleas. 2. Questions of error, not specifically assigned, are presumed to be waived by a party who claims there is error, to his prejudice, in the record. 3. The right to have an action removed from state to federal jurisdiction, under the act of Congress approved March 2, 1867, is a personal right which may be waived, and whether a party has waived his right of transfer, and submitted his cause for final adjudication in the state court, is a question to be determined from the record. 4. Where a case is brought a second time, on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing on the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed. 5. Where authority to perform a specific act, in specified modes, is conferred upon an agent by a regularly executed power of attorney, and general words are also used, the general words are limited by and to be construed with reference to the modes specifically named. 6. Hence authority in such instrument to collect or secure a claim by note, bill of sale or mortgage coupled with the words, or any way to settle the above bill," is not authority to the agent to make an absolute purchase of the property of the debtor, and create a debt thereby against the principal to secure the claim. 7. When the authority conferred on an agent is by an instrument in writing, and is special, parol evidence is inadmissible to vary or affect its terms; questions arising on the trial, as to the scope of the authority conferred by such instrument, must be determined by the court. Oliver v. Sterling, et al.. 20 O. S. 391, considered and distinguished. 8. Acts of an agent done without authority, subsequently ratified by the principal, with a knowledge of all the circumstances attending the transaction, refer back and bind the principal from their inception; where, however, intervening rights have been acquired by a third party, such intervening rights can not be injuriously affected by the ratification. Judgment affirmed. Opinion by ASHBURN, J.-Pollock v. Cohen.

66

BOOK NOTICE.

FEDERAL CITATIONS. An Alphabetical Table of English and American Cases cited in the Opinions of the Courts of the United States, stating the Points as to which they are cited, and showing the effect of such citation. By ROBERT DESTY. San Francisco: Sumner, Whitney & Co. 1878.

This work is something new in book-making. Its object may be best stated in the words of the preface: "It is designed to show the value as authority of every case referred to in the decisions of our federal courts. It is also a key to other decisions upon the same point. Having found any one case on a given subject, the book will refer the reader to every decision in which that case has been cited; and each of the cases in which it has been cited will give him a new chain of authorities. It contains about twenty-seven thousand cases, many of which will be referred to from fifty to eighty times. The book will prove valuable, if not indispensable, to the judge on the bench, as well as to the practitioner in the study or trial of a case. It will readily show that a case cited by counsel in brief or argument has been either: 1st. Acknowledged às autharity by the highest courts of the land. 2d. That it has been received as authority on one point, but denied as to another; or 3d. That it has been doubted, limited, or entirely overruled." Its plan will be best understood by taking an extract from one of its 700 double column pages. Thus:

Alcorn v. Westbrook, 1 Wils. 117. Contract, special action on, c2 Cranch C. C. 56.

Alden v. Blague, 3 Croke, 99. Accord and satisfaction, as a legal defense, c13 How. 357.

Alden v. Boston, Hartford & E. R. R. Co., 5 B. R. 230, 232, 233. Bankruptcy, adjudications, priority of, a6 Bank Reg. 225,

Alden v. Dewey, 1 Story, 336. Patent, effect of suggestions from others, c7 Wall. 603; of lapse of time, c2 Wood. & M. 141; evidence, to sustain claim, c3 Wood. & M. 145; new trial, when not granted, c2 Wood. & M. 149.

Alden v. Gregory, 2 Eden, 280. Fraud, not purged by delay, c2 Wall. 92: limitations, effect of concealment, cl Dill, 99; in cases of fraud. d4 Bank Reg. 85. Alden v. Murdock, 13 Mass. 256. Easement, title to land, c10 Pet. 56.

Alder v. Griner, 13 Johns. 449. Pleading, variance when material, c2 McLean, 71.

Alder v. Keighley, 15 Mees. & W. 117. Damages, on breach of contract, c23 How. 167.

Alderman v. Neate, 4 Mees. & W. 709. Lease, agreement construed as, c3 Story, 330.

Alderson Ex parte, 1 Madd. 53. Draft on fund, a withdrawl from assets, c1 Sum. 146.

Alderson v. Biggars, 4 Hen. & M. 470. Equity, jurisdiction, when entertained, c2 Wood & M. 29.

Alderson v. Temple, 4 Burr. 2235. Consignment, rights of property, m2 Wash. 292.

The effect of the citation is shown as follows: aApproved, cCited, dDenied, eExplained, fFollowed, hHarmonized, Limited, mModified, oOverruled, rReversed, qQuestioned or Doubted, †Criticised, Distinguished. Fully one-half of the cases cited are from the English Reports; one-fourth of the entire number are from the courts of the various states, and the remainder from the Federal Courts. Little need be said of a work of this character; it speaks for itself. That it will be of great assistance to the profession no one can doubt. Mr. Desty, to whom the practitioner in the Federal Courts everywhere is indebted for one of the handiest works on procedure extant, has again contributed to the saving of time in the collecting of precedents.

QUERIES AND ANSWERS.

[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e, we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecutively during the year, and correspondents are requested to bear this in mind when sending answers.]

QUERIES.

28. HOMESTEAD-INTEREST OF LESSEE IN LEASED PREMISES.-By statute, in many of the states, in addition to personalty, a homestead of the value of $1,000 occupied by a debtor with a family, is exempt from execution or attachment. Suppose A, with a wife and minor children, reside on a tract of land, under a five years' lease, the lease, worth, say $1,000. Is it subject to execution, levy and sale in payment of A's debts. The estate which A has being a chattel, can the homestead exemption acts, be so construed as to exempt the homestead in the term above indicated? C. R.

[Yes; See Phelan v. DeBevard, 13 Iowa, 53; Conklin v. Foster, 57 Ill. 104; Johnson v. Richardson, 33 Miss. 462; Colwell v. Carter, 15 Ohio St. 279.-ED. Cent. L. J.]

29. CAN A FEMALE INFANT, eighteen years of age, make a valid donatio causa mortis, when by the law of her domicil any will of personalty made by an infant under twenty-one is void? J. H. S.

ANSWERS.
No. 25.

[6 Cent. L. J. 359.]

In the last number of the CENTRAL LAW JOURNAL, is an inquiry whether receivers' certificates are negotiable securities? An answer to this question will be found in 2 Woods' Reports, pp. 510-517, Stanton et al. v. Alabama & Chattanooga R. R. Co., containing first, the report of Mr. P. Phillips, special master in the case, an eminent counselor of Washington City, and then the holding of Judge Woods thereon. It was there held that the certificates were a valid security, taking priority of the mortgage on the road, but only for the amount justly due thereon; and that they were subject to all equities existing against the original taker. If sold, or deposited for a less sum than their face, or than authorized by the court, only that sum could be recovered thereon. They are not negotiable securities in the sense of being valid for their entire amount in the hands of subsequent holders, unless that amount was realized by the receiver. This case was appealed, and the decree was recently affirmed by the Supreme Court, under the title of Wallace v. Loomis, et al., No. 31, not yet reported. J. P. B.

No. 19.

(6 Cent. L. J. 298.)

Sec. 2448, Rev. Stat., U. S., does not create a new rule. The heirs of a decedent always took his estate upon his death eo instanti—the administration is merely for the purpose of settling debts, etc., and in no way controls descent. The administrator, therefore, taking the estate of a decedent for these purposes, takes no better title than the heirs have. His deed is never a warranty, but in legal effect a quit claim. At the time of the ancestor's death no patent had been issued. The ancestor, to be sure, had done all that was required at his hands, by making the selection and afterwards procuring the land to be surveyed; nothing remained but for the government to issue its patent. Still that right to a patent can not, in the absence of a doctrine of relation (and no doctrine of relation can be invoked in such a case as that stated), by any means, or for any purposes, be consid

ered the legal title. At most, the ancestor's right was inchoate a merely equitable title that would ripen into a legal title upon the issuance of a patent. When the patent had been signed and passed under the seal of the general land office, the title of the heirs became perfect although the patent were not delivered. The patent was not issued till after the administrator's sale, and until the close of the administration, though this last fact is not material. It follows, therefore, that the purchaser at an administrator's sale took only an equitable title. The grantee of the ancestor's heirs has the legal title, and of course ejectment would not lie at the suit of the administrator's grantee against him. But if the land were sold in the course of administration-all things being regular-for the purposes of the administration, the heirs would be bound by the administrator's deed, and their grantee would take with full notice. The proper remedy for the administrator's grantee, therefore, is in equity, by bill to decree a conveyance of the legal title. Marysville, Cal.

NOTES.

EDWIN BElcher.

A CORRESPONDENT writes as follows concerning the exercise of power by the federal courts to compel counties by mandamus to levy taxes: The Commissioners of Knox County v. Aspinwall, 24 How. 376, was the first case in the history of the country where a writ of mandamus was issued from a federal court to a state officer. The judiciary system of the United States, together with the whole complex machinery of state and federal governments, had then been in full operation for over seventy years. The idea was a new one. Afterwards, in the case of Riggs v. Johnson Co., 6 Wall. 166, the same power was asserted by the majority, over a strong and earnest protest by Justice Miller, in which Chief Justice Chase, and Justice Grier concurred. Since then, by gradual steps, the federal circuit courts have proceeded to exercise such coercive powers over county tribunals and state officers in compelling satisfaction of judgments of private suitors, as to excite the anxious apprehension of many patriots, jurists and statesmen. The barriers being broken, and the admirable adjustment of powers between the state and federal tribunals being disarranged, they fear the most disastrous consequences to the states. The series of decisions which has led to an alarming extension of this practice, unfortunately occurred at a period of our history when it was thought proper to magnify the power of the general government; and it resulted that the states and counties have not met and combatted the practice with the zeal, energy and sense of its importance which the subject demanded. There seems to have been a gradual progress of encroachment, each step plausibly following the one before. Judicial changes of the law always proceed this way, never per saltu. The boundaries of jurisdiction are enlarged by gradual accretion, each step furnishing a precedent for the next. Certainly, now, it is the plain duty of the federal circuit and district judges to enforce the principles sanctioned by the Supreme Court. The state courts must submit to it also, so far as it has spoken upon subjects within its proper jurisdiction. There should be no unseemly clash of authority, nor hostile criticism of inferior tribunals proceeding in the course indicated to them by proper supervising power. But it is proper, and very important to enquire, respectfully, concerning the soundness of this new doctrine, as affecting the policy of our government; and, if the Supreme Court be fixed in its views, to consider the propriety of legislative action as far as may lie within the power of congress. Happily, in the

United States, nothing is irremediable peacefully and regularly, in due time-although it may require a change in the constitution itself.

MR. ADOLPH MOSES, a lawyer of Chicago, in a letter to the Times of that city, suggests that the result of the enactment of the bill repealing the bankrupt àct, as amended in the House of Representatives, may not be exactly what the legislators intend. He says: "The amendment of the House included the title of the bill, and the following proviso: 'And all penal actions and criminal proceedings arising therein under the acts hereby repealed, shall continue in full force and effect, until the same shall be fully disposed of in the same manner as if said acts had not been repealed.' The amendment of the House made the repeal more conservative, for it must be candidly stated that the sweeping Senate bill was unworthy of so grave a body. But is this amended bill a good piece of legislation? The repeal of the bankrupt act of 1841, passed March 3, 1843, is as follows: Be it enacted, etc., That the entitled, etc., be repealed, Provided, That this act shall not affect any case or proceeding in bankruptcy commenced before the passage of this act, or any pains, penalties, or forfeitures incurred under said act; but every such proceeding may be continued to the final consummation in like manner, as if this act had not been passed. The repeal blots out the former statute, except so far as the reservation saves it. If the Senate should now pass the bill with the House amendments without further amending it, the following consequences seem to flow from the repeal bill: It saves any case in bankruptcy pending in any court when this act takes effect. In Wiswall v. Campbell (93 U. S. R.) the Supreme Court of the United States held that the proceeding in bankruptcy from the commencement to its close, upon the final settlement of the estate, is but one suit; but all suits at law or in equity, brought by an assignee in bankruptcy against any person claiming an adverse interest, or by any such person against an assignee touching any property or rights of the bankrupt transferable to or vested in such assignee,' are no part of the bankruptcy proceedings. They are in aid of such a proceeding, but are entirely separate from and independent of it.' The repeal act evidently contemplates the case in bankruptcy, commencing with the voluntary or involuntary petition, and ending with a discharge or refusal of discharge, for the phrase 'future proceedings therein' cannot mean anything else. Thus the present repeal bill will sweep away all pending cuses in the Superior, District, or Circuit Courts of the United States, or in any state court. Neither is any provision made for such cases, not yet pending, but 'incurred.' The repeal act of 1843 saves any pains, penalties or forfeitures incurred,' which class of cases is likely intended to be covered by the phrase penal actions and criminal proceedings,' in the present repeal bill. It may be asked whether the penal actions and criminal proceedings arising therein' are such as have heretofore been incurred, or may be incurred (or arising) hereafter. Upon all these questions there is doubt. In pending cases crimes might have been committed, not yet prosecuted, but liable to be prosecuted; in future proceedings in pending cases, crimes might be committed. Which class does the repeal bill reach? Upon such matters courts would construe strictly; hence revision is necessary. It is in the power of the Senate to give this repeal bill a thorough revision, and such would seem to be forced upon it after the action of the House, which, by one slight amendment, saved the Senate bill from being a piece of swift legislation, unworthy of the Senate. Is it too late for Senator Davis to lend his learning to this necessary work?" The provisions of the repeal bill, as amended by the House of Representatives, will be found ante p. 369 of this Journal.

SAINT LOUIS, MAY 24, 1878.

CURRENT TOPICS.

The Supreme Court of Ohio, in Lawrence v. Belger, 31 Ohio, 179, hold, following Sellers v. Corwin, 5 Ohio, 378, that a judgment rendered in the Circuit Court of the United States has the same lien on the lands of the debtor within the district that is given to a judgment of the state court within the limits of its territorial jurisdiction. The doctrine of this case, said the court, is, that inasmuch as the execution laws of the state have been adopted under and by virtue of the federal statute for the enforcement of the judgments of federal courts within the state, the same lien declared by the statute of the state in favor of the judgments of state courts attaches to the judgments of federal courts, on lands within the district. And this doctrine is analogous to that of the English courts, which holds that a lien is created in favor of a judgment, by

a

virtue of the statute which authorizes moiety of the debtor's land, by a writ of elegit, to be delivered to the creditor, until his claim is satisfied out of the rents and profits. The same doctrine has been held in several cases decided by the courts of the United States, as well also as by those of several of our sister states. Shrew v. Jones, 2 McLean, 78; Massingell v. Downs, 7 Howard, 760; Williams v. Benedict, 8 Howard, 107; Cropsey v. Crandall, 2 Blackf. 430; Brown v. Pierce, 7 Wallace, 205. See, also, Provost v. Gorrell, 6 Cent. L. J. 261.

IN Harrison v. Collins, 35 Leg. Int. 202, recently decided by the Supreme Court of Pennsylvania, the action was brought for injuries received by the plaintiff, by falling through a coal hole of the defendant's, placed in the sidewalk. The important question in the case was the liability of the owners and occupiers of the building for the act of a person employed by them, in leaving the coal hole open. The defendants had employed a person to transport certain articles from the cars to their building, in doing which he uncovered the coal hole and left it open, and the plaintiff was thereby injured. The court held Vol. 6-No. 21.

the agent or servant of the defendants, they would be liable, but if his employment was found to be an independent one, and the defendants had no expectation or knowledge that the hole would be uncovered during the work, they would not be liable. This distinction has been recognized in numerous cases. Among others may be cited Painter v. The Mayor, &c., of Pittsburg, 10 Wright, 213; Hunt v. Penna. R. R. Co. 1 P. F. Smith, 475; Allen v. Willard, 7 Id. 374. It is well settled in England and in this country, that persons not personally interfering or giving directions respecting the manner of work, but contracting with a third person to do it, are not responsible for a wrongful or negligent act in the performance of the contract, if the act agreed to be done is legal. Gray and wife v. Pullen, 32 L. J. R. (N. S.) 169; Hillard v. Richardson, 3 Gray, 349; Blake v. Ferris, 1 Seld. 48; Painter v. The Mayor, &c., surpra. The fact that the contractor is paid by the day does not necessarily destroy the independent charaeter of an employment. Forsyth v. Hooper, 11 Allen, 419; Corbin

If one

v. America Mills, 27 Conn. 274. renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, it is an independent employment. Shearman & Redfield on Neg., sec. 74; Pack v. The Mayor of New York, 4 Seld. 222; Barry y. The City of St. Louis, 17 Mo. 121.

The Supreme Court of Pennsylvania in the late case of Creed v. The Pennsyvania R. R. 5 W. N. 253, held that riding in the caboose car of a train was not such contributory negligence as would prevent the person from recovering for an injury received while in such car. A similar point was raised in O'Donnell v. The Allegheny Valley R. R. 9 P. F. Smith, 239, where the court below held that the baggage car was an improper place for passengers, whether the rule of the company against such use was communicated to them or not, and that one leaving his seat in the passenger coach and entering the bagage car was guilty of negligence. But this ruling was reversed. Mr. Justice AGNEW, delivering the opinion of the court, observed, that whilst it is the un

doubted right of a railroad company to prescribe reasonable rules for the regulation of those who travel on its cars, yet the conductor is the one who is charged with their administration, and his permission of, or acquiescence in, the use of the baggage car by a passenger exempts such passenger from all blame, and in case of accident to him, resulting from the negligence of the company, he may recover damages. In the case of The Lackawanna & Bloomsburg Railroad Co. v. Chenewith 2 P. F. Smith, 382, the plaintiff had obtained permission from the agents of the company to attach his freight car to a passenger train contrary to the rules of the company which were communicated to him, he, at the same time, agreeing "to run all risks." Notwithstanding this it was held that the company was liable for damages resulting to the plaintiff and his car from negligence in the running of the train. And this is reasonable; for, as was said in that case, the plaintiff's car was not unlawfully upon the road, and his engagement to be responsible for all risks did not embrace such as arose from the neglect of the defend. ant's employees. In Carroll v. The New York & New Haven Railroad Co., 1 Duer, 571, at the time of the accident complained of, the plaintiff a passenger-was in the post-office part of the baggage car; and though it was conceded that the position was more dangerous in case of collision than a seat in the passenger car, yet, being injured by a collision to which his position in no way contributed, it was held that he was entitled to recover. See also Washburn v. Nashville & Chattanooga R. R., 3 Head. (Tenn.) 638, and Jacobus v. St. Paul & Chicago R. R., 31 Leg. Int. 277.

The Supreme Judicial Court of Massachusetts holds a somewhat anomalous position in regard to the effect of Sunday laws upon the right to recover for injuries tortiously inflicted upon persons acting in violation of such laws. In the case of Lyons v. Desotelle, recently decided, the majority of the court, MORTON, J., delivering the opinion, say: "In an action of tort for injuries to the plaintiff's person or property, if his own illegal act or other negligence contributed to the injury, he can not recover. But he is not precluded from recovering by the fact that he is at the time doing an illegal act, if such illegal act did not contribute to his injury." This

is a familiar rule of law which is recognized and applied every day. But the court goes on to say: "When a man in traveling sustains an injury from a defect in the highway, or from an accidental collision with the vehicle of another traveler, his act of traveling is necessarily a contributing cause of the injury. If the act of traveling is unlawful, then his own unlawful act is a contributing cause of his injury, and prevents his recovery." To say that the act of traveling is necessarily a contributing cause of the injury is losing sight entirely of the distinction between conditions and causes. "A traveler leaves home in the morning for a distant point, in reaching which by the nearest line he must cross a railroad on a level, though by making a detour of a mile he would cross it on a bridge. In attempting the level crossing he is struck by a locomotive engine. His leaving home in the morning is a condition of this collision, but not its juridical cause. So his taking the level crossing is another condition of the collision, but is not its juridical cause, if the level crossing is on a public road usually traveled." Whart. Negligence, § 303. In Marble v. Ross, decided by the same court, reported in 6 Cent. L. J. 157, the distinction was properly observed. That was an action of tort to recover for injuries inflicted by a vicious stag upon the plaintiff while passing on the defendant's land. The court there say: "The mere fact that the plaintiff was upon the defendant's land without his consent would not defeat the right of action. The unlawful character of his act did not contribute to his injury or affect the defendant's negligence." So, in Damon v. Scituate, 119 Mass. 66, which was an action against a town for an injury sustained by a defect in a highway, Gray, C. J., says: "The mere fact that he (the plaintiff) was traveling on the wrong side of the road, in violation of the statute, did not as matter of law defeat this action, if his own fault or negligence did not contribute to the injury." And, again, in Steele v. Burkhardt. 104 Mass. 59, Chapman, C. J., says: "So the evi- dence that the plaintiffs' team was standing in the street in violation of a city ordinance, was admissible to show negligence on their part. It did show negligence in respect to keeping the ordinance, but did not necessarily show negligence that contributed to the injury. And, notwithstanding this evidence, it