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provided as follows: "I direct my said trustees to permit and suffer my son William B. Slocum to have, receive and take the rents, issues and profits thereof for the term of his natural life; and after his decease I give, devise and bequeath the same part or share to the heirs at law of my said son." It is claimed on the part of the plaintiff that these provisions created a valid, express trust, and hence that the legal title was vested in the trustees, and that the judgment did not become a lien upon the one-third thus devised; and hence that the judgment creditor was not a necessary party, and this was the view taken in the court below. On the part of Thompson it is claimed that the trust was invalid; and hence that William B. Slocum took a life estate in the land upon which the lien of the judgment attached; and hence that the judgment creditor should have been made a party, and this claim we believe to be well founded. The trust attempted to be created is a passive one, and condemned by the statute. The trustees had no active duties to discharge. They were not to receive the rents and profits of lands and apply them to the use of William B. Slocum, or to pay them over to him (1 R. S. 729, § 55), but they were directed to permit and suffer" him "to have, receive and take the rents" and profits. They had no discretion to exercise. They could not refuse the permission, and they could in no way exercise any control over the rents and profits. That such a trust is condemned by the statute has never been doubted. Parks v. Parks, 9 Paige, 107; Jarvis v. Babcock, 5 Barb. 139; Beekman v. Bonsor, 23 N. Y. 298, 314, 316. William B. Slocum was entitled to the possession of the lands and to the rents and profits thereof during his life, and hence the statute vests the legal title in him for the same term. 1 R. S. 727, §§ 47, 49; Craig v. Craig, 3 Barb. Ch. 77. It follows, therefore, that the judgment was a lien, and that the life estate was affected thereby, and for this defect the motion should have been granted.


The order of the Special and General Terms should be reversed, with costs in the Supreme Court and this court to be paid by the plaintiff to Thompson. All


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TERRY, appellant, v. ANDERSON.

By a statute of limitations of the State of Georgia, actions against a stockholder of a bank to enforce his individual liability were not barred until twenty years from the time the action accrued. By an act of the legislature of Georgia, passed March 16, 1869, it was provided that such actions, accrued before June 1, 1865, should be barred if not commented before January 1, 1871. Held, (1) that the legislature had a constitutional right to shorten the statute of limitations as to actions upon contracts already made, a reasonable time being left to enforce the contract; (2) and that the time given was reasonable.

from the Circuit Court of the United

States for the Southern District of Georgia. Action to enforce the individual liability of stockholders of a bank. Sufficient facts appear in the opinion.

Mr. Chief Justice Waite delivered the opinion of

the cont

In Terry v. Tubman, 92 U. S. 156, we decided that where the charter of a bank contained a provision binding the individual property of its stockholders for the ultimate redemption of its bills in proportion to the number of shares held by them respectively, the liability of the stockholder arose when the bank refused or ceased to redeem and was notoriously insolvent, and that when such insolvency occurred, prior to June 1, 1865, an action against a stockholder not commenced by January 1, 1870, was barred by the statute of limitations of Georgia of March 16, 1869. That act, as recited in its preamble, was passed on account of the confusion that had "grown out of the distracted condition of affairs during the late war," and substantially barred suits upon all actions which accrued before the close of the war, if not commenced by the first day of January, 1870.

This is a suit to enforce the liability of the stockholders of a bank under a provision of the charter similar to that considered in Terry v. Tubman, and it is expressly averred in the bill that the bank stopped payment on the 20th February, 1865, and never resumed. The affairs of the bank were closed up under an assignment made May 24, 1866, and which paid only a small percentage upon its liabilities. The case is thus brought directly within our former ruling, but it is insisted that the act of 1869 is unconstitutional, because it impairs the obligation under which the complainants claim, and as that question was not directly passed upon in the other case, we are asked to consider it now. The argument is that as the statute of limitations in force when the liability of the defendants was incurred did not bar an action until the expiration of twenty years from the time the action accrued, a statute passed subsequently, reducing the limitation, impaired the contract, and was consequently void.

This court has often decided that statutes of limitation affecting existing rights are not unconstitutional if a reasonable time is given for the commencement of an action, before the bar takes effect. Hawkins v. Barney, 5 Pet. 466; Sohn v. Waterson, 17 Wall. 599; Christmas v. Russell, 5 id. 300; Jackson v. Lamphire, 3 Pet. 290; Sturgis v. Crowninshield, 4 Wheat. 206. And it is difficult to see why, if the legislature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more a vested interest in a particular limitation which has been fixed, than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and as to the forms of action or modes of remedy, it is well settled that the legislature may change them at its discretion, provided adequate means of enforcing the right remain. We have had occasion to consider this subject at the present term, in Tennessee v. Sneed, not yet reported.

In all such cases the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the legislature is primarily the judge and we cannot overrule the decision of that department of the government, unless a palpable error has been committed. In judging of that we must place ourselves in the position of the legislators and must measure the time of limitation in the midst of the circumstances which surrounded them, as nearly as possible; for what is reasonable in

Here nine months and seventeen days were given to sue upon a cause of action which had already been running nearly four years or more. The section of the statute affecting the present case is as follows:

"That all actions on bonds or other instruments under seal, and all suits for the enforcement of rights accruing to individuals or corporations under the statute or acts of incorporation, or in any way by operation of law which accrued prior to 1st June, 1865, not now barred, shall be brought by 1st January, 1870, or the right of the party, plaintiff or claimant, and all right of action for its enforcement shall be forever barred."

The liability to be enforced in this case is that of a stockholder, under an act of incorporation, for the ultimate redemption of the bills of a bank swept away by the disasters of a civil war, which had involved nearly all of the people of the State in heavy pecuniary misfortunes. Already the holders of such bills had had nearly four years within which to enforce their rights. Ever since the close of the war the bills had ceased to pass from hand to hand as money, and had become subjects of bargain and sale as merchandise. Both the original bill-holders and the stockholders had suffered from the same cause. The business interests of the entire people of the State had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization upon the basis of the new order of things. This clearly presented a case for legislative interference within the just influence of constitutional limitations. For this purpose the obligations of old contracts could not be impaired, but their prompt enforcement could be insisted upon or an abandonment claimed. That, as we think, has been done here, and no more. At any rate, there has not been such an abuse of legislative power as to justify judicial interference. As was said in Jackson v. Lamphire, supra: "The time and manner of their operation [statutes of limitation], the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend upon the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment."

The Supreme Court of Georgia in George v. Gardner, 49 Ga. 450, held that the time prescribed in this act was not so short or unreasonable under the circumstances as to make it unconstitutional, and the Circuit Court of the United States for the southern district of Georgia held to the same effect in Samples v. The Bank, 1 Woods, 529. We are satisfied with these conclusions. The circumstances under which the statute was passed seems to justify the action of the legislature. The time, though short, was sufficient to enable creditors to elect whether to enforce their claims or abandon them.

This disposes of the question arising upon the individual liability of the stockholders under the charter. It still remains to consider the cases of the stockholders whose subscriptions were not paid in full at the time of the failure of the bank. For this purpose it is not necessary to decide whether this liability passed to the assignees under the assignment. If it did not, and the present complainants have the right to sue for it, their action is barred by the statute of 1869. It was a debt due the corporation, June 1, 1865, and by section 6 of that statute all actions upon any debt or liability

due a corporation, which accrued prior to that date and was not barred when the act was passed, must be brought by January 1, 1870. The case of Cherry v. Lamar, decided by the Supreme Court of Georgia, in January, 1877, is not, as we understand it, at all in conflict with this. There the charter of the bank made a call by the directors, and sixty days' notice of it to the stockholders, conditions precedent to the collection of unpaid stock subscriptions, and it was consequently held that the statute did not commence to run against such a liability until the requisite call had been made and notice given. Neither in this case nor in Terry v. Tubman does any such provision of the charter appear. For all that is shown in the record, the stockholders were liable to suit at any time for the recovery of the balance due from them.

These complainants are neither of them judgment creditors of the bank. In a suit instituted by the assignees to close up the assignment, they proved their claims, and the amount due them was found for the purposes of a dividend. The finding was sufficient for the purposes of distribution, but it has none of the characteristics of a judgment or decree, to be enforced as against any thing but the fund which the court was then administering.

We see nothing to take this case out of the operation of the decision in Terry v. Tubman, and the decree of the Circuit Court is, therefore, affirmed.



Claims against United States not assignable.-Claims against the United States cannot be assigned so as to enable the assignee to bring suit in his own name in the Court of Claims. This is the rule of the common law, and the statute of February 26, 1853 (10 Stat. 170, § 10), also forbids such assignments. Beecher v. Sweetzer, 15 Minn. 437; Sim's Case, 1 C. C. 12; Cooper's Case, id. 87; Cote's Case, 3 id. 65. And the act creating the Court of Claims did not work a repeal of the act of 1853, in this respect. Judgment of Court of Claims reversed. United States, appellant, v. Gillis. Opinion by Strong, J. Bradley and Field, JJ., dissent.


Bailee for custody not presumed to have authority to sell goods.-Plaintiff, the owner of certain whisky, put it in the custody of M. M. was not employed as a salesman, and while plaintiff remained in the neighborhood he made no sales, but made small sales in the absence of plaintiff. When plaintiff left the place he left the whisky in charge of M. Held, that none of these facts tended to show that M. was clothed by plaintiff with any authority to sell the whisky. A bailee for custody has not the indicia of an agent to sell. An agent's authority cannot be proved by his own acts alone, and sales only do not prove authority to sell. Judgment of Supreme Court of Colorado affirmed. Thatcher, plaintiff in error, V. Kaucher. Opinion by Strong, J.


Conditions in policy as to ownership.—In a fire insurance policy on buildings, issued to plaintiff below, it was provided that "if the interest of the insured in the property be any other than the entire unconditional and sole ownership of the property for the

use and benefit of the insured, or if the buildings insured stand on leased ground, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy shall be void." The plaintiff owned the land upon which the buildings were erected in fee simple, and the premises were leased to another party for a term of years. Nothing was expressed in the policy to indicate that the interest of the insured was other than the entire unconditional and sole ownership of such property, or indicating that most of the buildings stood on leased ground. Held, that the condition of the policy was not violated, and plaintiff was entitled to recover on the policy in case of loss. Judgment of United States Circuit Court, N. D. Illinois, affirmed. Lycoming Fire Ins. Co., plaintiff in error, v. Haven. Opinion by Clifford, J.


1. Reinstatement of policy: representations as to health: when representations not continuing.- One whose life had been insured in a company at Newark, New Jersey, but who had failed to keep up the premiums, so that the policy lapsed, applied for a reinstatement of the policy to the agent at Washington, D. C., on the 1st of October. He paid the premium and gave his certificate of health to the agent on that day, and the physician of the company signed his certificate of examination, all of which was forwarded at once to the company. On the 12th of October the company returned its renewal receipt dated back to the time of the lapsing of the policy, and this receipt was, on the 14th, given to the insured, who made no statement as to his health then. In an action on the policy, it was claimed by the company that between the 1st and the 14th of October there was a change in the health of the insured that would have caused the rejection of the policy, and the court was, at trial, asked to charge that the representation, as to health, was a continuing one up to the 14th, which request was refused. Held, that such refusal was no error. The jury would have been warranted in finding that the contract was understood and intended by the parties to take effect by relator to the 1st of October, and the question was proper for submission to the jury. Coll v. Phænix Fire Ins. Co., 54 N. Y. 597; Tipton v. Fert ner, 20 id. 423; Lightbody v. N. A. Ins. Co., 23 Wend. 24; Perkens v. Wash. Ins. Co., 4 Cow. 465; Cooper v. Pacific M. L. Ins. Co., 3 Big. Ins. R. 656; 7 Nev. 616; Carpenter v. M. S. Ins. Co., 4 Sandf. Ch. 408; Am. Horse Ins. Co. v. Patterson, 28 Ind. 17; City of Davenport v. Peoria M. and F., 17 Iowa, 276; Le Farom v. Insurance Co., 2 Big. Ins. R. 158. Judgment of Supreme Court of District of Columbia affirmed. Mutual Benefit L. Ins. Co., plaintiff in error, v. Higginbotham, administrator. Opinion by Hunt, J.


2. Trial: ruling working no harm not Where the disposition of a subject by a judge can work no legal injury to the party objecting to it, there is no error. Starbird v. Barrons, 43 N. Y. 200; Pepin v. Lachenmeyer, 45 id. 27; People v. Brandreth, 36 id. 191; Porter v. Ruckman, 38 id. 211; Corning v. Troy Iron and Nail Works, 44 id. 577. Ib.


1. Rule as to, when both parties guilty of.-One who by his negligence has brought an injury upon himself cannot recover damages for it. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The

question in such cases is, (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or (2) whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former case the plaintiff is entitled to recover. In the latter he is not. Tuff v. Warman, 5 Scott's C. B. (N. S.) 572; Butterfield v. Foster, 11 East, 60; Bridge v. G. J. R. R. Co., 3 M. & W. 244; Davis v. Mann, 10 id. 546; Clayards v. Dethic, 12 Q. B. 439; Van Lien v. Scoville Co., 14 Abbot's Pr. (N. S.) 91; Insurance Co. v. East Bost. Co., 106 Mass. 149. Judgment of Supreme Court of District of Columbia reversed. Baltimore & Potomac R. R. Co., plaintiff in error, v. Jones. Opinion by Swayne, J.

2. Facts constituting contributory negligence.—Plaintiff, a laborer in the employ of defendant, when about to leave the place where he was working on one of defendant's trains, was told by the person superintending him, who was also conductor of the train, to get on anywhere, as the train was in a hurry to leave. Plaintiff got on the pilot of the locomotive, which was a dangerous place to ride. While on the trip he was injured by a collision between the locomotive and some other cars of defendant, caused by defendant's negligence. The proper place for plaintiff to ride was in a box-car on the train provided for the employees; he had been told previously to always ride there and had been forbidden riding on the pilot of the locomotive. No one of those in the box-car were injured, and plaintiff would not have been if he had ridden there. Held, that plaintiff was guilty of contributory negligence and could not recover of the defendant for the injury. Hickey v. R. R. Co., 14 Allen, 429; Todd v. R. R. Co., 3 id. 18; S. C., 7 id. 207; Gavett v. R. R. Co., 16 Gray, 501; Lucas v. R. R. Co., 6 id. 64; Ward v. R. R. Co., 2 Abbot's Pr. (N. S.) 411; Galena R. R. v. Yarwood, 15 Ill. 468; Dogget v. R. R Co., 34 Iowa, 285. Ib.


Agreement not signed by party to be charged: performance by other party: admission of agreement in other writing: evidence: parties.- An agreement was made reading as follows: "This is to certify that the undersigned have taken two thousand two hundred and five head of cattle, valued at thirty-six thousand six hundred and eighty-one dollars and sixty cents on shares from George C. Beckwith; time to expire on the fifth day of December, one thousand eight hundred and seventytwo; then George C. Beckwith to sell the cattle and retain the amount the cattle are valued at above. Of the amount the cattle sell at over and above the said valuation, George C. Beckwith to retain one-half, and the other half to be equally divided between C. W. Talbot, and Elton T. Beckwith, and Edwin F. Beckwith." This agreement was signed by the plaintiff below, C. W. Talbot, and E. T. and E. F. Beckwith, but was not signed by the defendant below, George C. Beckwith. Defendant took possession of it and kept it, and wrote several letters in which he referred to "the agreement" as binding. Plaintiff and the two others siguing it performed their part of it, but defendant refused to perform his part. In an action by plaintiff for damages for defendant's breach of the agreement, held, (1) that the letters were a recognition of the agreement, making it binding on de

fendant (Johnson v. Dodgson, 2 Mees. & Welsb. 653; Salmon Falls Co. v. Goddard, 14 How. 456), (2) that parol proof was admissible to show that the agreement mentioned in the letters was the one in question, and (3) that plaintiff was entitled to maintain a separate action for his equal share of the profits. Servante v. James, 10 B. & C. 410. Judgment of Supreme Court of Colorado affirmed. Beckwith, plaintiff in error, v. Talbot. Opinion by Bradley, J.


Citizenship: Indians not connected with tribe and paying tax, citizens.—Indians not connected with any organized tribe, and who are taxed, are citizens of the United States and of the State where they reside, and such an Indian residing in New York State is entitled under the provisions of its Constitution to vote therein. (Dredd Scott v. Sandford, 19 How. 404; Jackson v. Smith, 20 Johns. 187.) U. S. Circ. Ct., N. D. New York, Dec., 1877. United States v. Elm. Criminal law: constructive offense.-Obtaining an entrance to a banking-house by trick and fraud, an attempted robbery of the bank was frustrated by the firmness of the cashier. Held, that evidence of the fraudulent conspiracy by which entrance was obtained, coupled with the evident felonious intent, was sufficient to sustain the allegation of constructive "breaking and entering." Sup. Ct., Pennsylvania, Oct. 1, 1877. Johnston v. Commonwealth (Leg. Intel.).

Jurisdiction: of United States Circuit Court: what it depends upon.-The Circuit Court has not jurisdiction of a case irrespective of the citizenship of the parties unless it arises out of a law of the United States; nor is an averment that an action arises out of such law sufficient to confer jurisdiction, but it must appear from the facts stated that it does so arise. The original jurisdiction conferred upon the Circuit Courts by section 1 of the act of March 3, 1875 (18 Stat. 470), does not include an action arising out of the contracts or dealings of the parties, although upon its trial a question may arise involving the proper construction of a law of the United States. U. S. Circ. Ct., Oregon, Nov. 26, 1877. Dowell v. Griswold (Chic. Leg. News).

Nuisance: noise and vibration of machinery: injunction: increased noise and vibration: form of injunction: reasonable user of business premises.-The plaintiffs, a firm of solicitors, were the owners and occupiers of offices adjoining the defendants' steam printing works, which had been working from 1848 to May, 1875, without any complaint by the plaintiffs of nuisance occasioned by the noise and vibration of the machinery, though a slight noise and vibration could at times be heard and felt. In May, 1875, the defendants made some alteration in their machinery, which the plaintiffs contended increased the noise and vibration, and they accordingly commenced an action for an injunction to restrain the defendants from working their machinery so as to occasion a nuisance to the plaintiffs. Held, that the plaintiffs were entitled to an injunction restraining the defendants from working their machinery so as to occasion a nuisance or injury by vibration to any greater degree than had previously been occasioned up to May, 1875. Semble, the fact that noise and vibration from machinery has never been complained of for more than twenty years, does not deprive a neighbor of his right to prevent any increased noise, even though such increase be

slight. Eng. High Court of Justice, Ch. Div., Nov. 13, 1877. Heather v. Pardon (37 L. T. Rep. [N. S.] 393).

Proximate cause: when cause too remote.- Owing to a landslide, defendants' engine was thrown into Oil creek. Barrels of oil bursted and took fire and destroyed plaintiff's property on a lot adjoining the railroad. Held, that the negligence of defendants' engineer in not seeing the obstruction, so as to avoid the accident, was not the proximate cause of plaintiff's loss; it was too remote. Sup. Ct., Pennsylvania, Nov. 19, 1877. Hoag v. Lake Shore & Mich. So. R. R. Co. Streets and highways: occupation of, by corporation.The occupancy of a public street or highway by a corporation, carries with it the obligation to keep it in good repair. Sup. Ct., Pennsylvania, Nov. 19, 1877. Penna. R. R. Co. v. Borough of Irwin.

Warranty: matter of description.—“Received from A the sum £60 for a black horse, rising five years, quiet to ride and drive, and warranted sound up to this date, or subject to the examination of a veterinary surgeon." Held, not to be a warranty that the horse was quiet to ride and drive. (Budd v. Fairmanor, 8 Bing. 48.) Eng. High Court of Justice, Com. Pleas Div., Nov. 23, 1877. Anthony v. Halstead (37 L. T. Rep. [N. S.] 433).



New Cases selected chiefly from Decisions of the Courts of the State of New York, with Notes, by Austin Abbott. With an Analytical Index to all points of law and practice contained in the standard reports of New York, issued during the period covered by this volume. Vol. II. New York: Ward & Peloubet, 1877.


HIS volume contains a number of valuable decisions, though not as many as we might expect from the wide field from which the cases are selected. Among those worthy of mention we notice these: Grady v. Crook, p. 53. Where one offers a reward for lost property, he is bound to pay it upon the return of the property, pursuant to the offer, and the fact that it is returned by a lawyer who refuses to give the name of the finder, his client, makes no difference. Moore v. Jackson, p. 211. Rafts of timber continuously moored along a navigable stream constitute a purpresture, and a public nuisance is thereby created. An agreement by one so mooring logs to pay the owner of the land adjoining the stream therefor is invalid, and cannot be enforced. Grocers' Bank v. Penfield, p. 305. A pre-existing debt is a sufficient consideration for the transfer of accommodation paper, and no new consideration need be shown. Cassidy v. Leitch, p. 315. The authority of an attorney named in the record of a foreign judgment as appearing therein must be presumed until disproved. Shipman v. Beers, p. 435. As between adjoining owners who are strangers to each other, one does not, by building on the line of his own ground, acquire a right to light from his neighbor's ground. Hazzard v. Wells, p. 444. A creditor, who receives from his debtor the notes of third parties as security, is bound, in reference to presentation, demand and notice for the purpose of fixing liability, and to enforce the collection of the notes, to the same diligence as is required of a bailee for hire. Numerous notes are appended to cases throughout the volume, some of them, as, for example, that to Brague v. Lord, p. 8, upon the competency of witnesses under section 399 of the old Code, being of considerable length, and citing numerous authorities. The head-notes to the

cases are somewhat more full than necessary, and many of the statements of fact might be abridged without impairing the value of the report. The analytical index to the standard reports appended to the reported cases, which is excellently done, is a very valuable part of the volume, as it answers the purpose of a digest of the case law of the State during the period it covers. It omits, however, the contents of Howard's Reports, and is, therefore, incomplete. There is no sufficient excuse for such omission, for Howard's Reports are quite as "standard" as some of the others not excluded, and since lawyers seem to find them worth buying, neither digest makers nor authors can afford to ignore them.


THE GRAMMAR OF THE NEW CODE. To the Editor of the Albany Law Journal:

SIR-The answer to "T. C." is not full enough. "An Enlightened Ignoramus" refers therein simply to the use by the legal profession of the indicative form of expression in lieu of the subjunctive. This is not conclusive, it being a well-known fact that lawyers sometimes sacrifice grammatical correctness for concise clearness.

About the year 1849, there was published in this country a work of some merit, inasmuch as it has since gone through several editions. I allude to Webster's Dictionary. This dictionary has an introduction which has been said to be good. Speaking of the “ Progress and changes of the English Language," the author has undertaken the consideration of the question opened by T. C. He says: "The subjunctive form of the verb if he be; though he fall; * * * which was generally used by the writers of the sixteenth century, was, in a great measure, discarded before the time of Addison." And in support of his assertion, Mr. Webster gives examples from Locke, and even from Dr. Lowth, who advocated the use of the subjunctive in his grammar published in 1762. He then culls many instances of a like disregard for the subjunctive in its past and present tenses from Lord Chatham, Fox, Pitt, Burke, Johnson, Franklin, Washington and Chancellor Kent; however, "T. C." can read it all. NEW YORK, Dec. 29, 1877.

H. F.

BIGELOW ON FRAUD. To the Editor of the Albany Law Journal: SIR- Will you be good enough to permit me to say to your readers that Holbrook v. Connor is twice cited in my book on Fraud (p. 17), and indirectly criticised. That is, indeed, an important case, and to have failed to refer to it would have been unpardonable. As to Ellis v. Andrews, four authorities are cited (p. 18), to the point decided in that case; three of them being strictly leading, and the fourth more recent even than

Ellis v. Andrews. And inasmuch as the point decided

in this case is laid down in a dozen other cases referred to in connection with the four, and would be readily inferred from the language of my book, even if there were no direct statement on the subject, it was deemed legitimate to omit the case decided in New York. The doctrine is fundamental.


BOSTON, Dec. 31, 1877.

[We made the statement as to the omission of a reference to Holbrook v. Connor, on the supposition

that Mr. Bigelow's "Table of Cases Cited" was what it purports to be. It seems, however, that it is not what it purports to be, as it does not contain Holbrook v. Connor, although it is twice cited in the book.

Mr. Bigelow's explanation of his reason for omitting Ellis v. Andrews is not satisfactory. The "four authorities" cited "to the point decided in that case are Harvey v. Young, Yelv. 20; Davis v. Meeker, 5 Johns. 354; Medbury v. Watson, 6 Metc. 246, and "Noetting" (should be Nætling) v. Wright, 72 Ill. 390. Now, neither of these cases is an "authority" "to the point decided" in Ellis v. Andrews. The purport of Harvey v. Young-a case which occupies only a few lines in the report was fairly stated by Buller, J., in Pasley v. Freeman, 3 T. R. 57, who said "the true ground of that determination was that the assertion was a mere matter of judgment and opinion; of a matter of which the defendant had no particular knowledge, but of which many men will be of many minds and which is often governed by whim and caprice. Judgment or opinion in such case implies no knowledge. And here this case differs materially from that in Yelverton. My brother Grose considers this assertion as mere matter of opinion only, but I differ from him in that respect. For it is stated on this record that the defendant knew that the fact was false.

The case in Yelverton admits that if there had been fraud it would have been otherwise." Medbury v. Watson is not only not a "leading case on this point, but it is not strictly an authority, since the point there was whether a third person was liable to a vendee for false and fraudulent representations made by him as to the value of property bought, and the court held that he was. Davis v. Meeker, held simply, that one purchasing a wagon, on sight, has no action for assertions that it was worth more than its real value. In Nætling v. Wright, the court held that the first three counts of the declaration did not present a cause of action, because, as expressly stated by the court, they could only be regarded as expressions of opinion as to values, for which no action can be maintained"; while the other counts were disposed of solely on the ground of bad pleading.


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The cases cited by Mr. Bigelow, then, are authorities ouly for the statement that an expression of an opinion But not so the case of Ellis is not a ground of action. v. Andrew. There the complaint alleged that the defendant fraudulently stated to plaintiff that the stock of the Congress and Empire Spring Company was worth at least eighty per cent upon the par value thereof, which statement said plaintiff believed to be true, and relying thereupon purchased from the said defendants $25,000 of said stock, and paid therefor $20,000 in cash, whereas, in truth, the said stock was not then worth over fifty per cent, and which fact was then well known to said defendant, whereby said plaintiff sustained damage, etc. On demurrer, it was held that the complaint did not show a cause of action. In

delivering the opinion, Grover, J., said: "The assertion by the defendants that the stock was worth eighty per cent of its par value cannot, I think, be regarded as the expression of an opinion as to its value, for the reason that it is averred that it was fraudulently made, and that they (defendants) then knew that it was not worth more than forty per cent. I think it must be regarded as a false statement of the value made for the purpose of obtaining a higher price for the stock than they knew it was worth."

Now, Mr. Bigelow will, no doubt, concede that from

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