212. Samuel N. Yeoman et al, v. Hiram G. Lasley et al, Error to the District Court of Jackson County.

GRANGER, C. J.

1. If two or more persons agree to jointly buy a tract of land, for the purpose of jointly selling it and sharing the profit, they are partners for that transaction, and, as between themselves, hold the rights and owe the duties of that relation.

2. If the vendor, having knowledge of such agreement between the persons negotiating for the purchase of his land, aid one of them in fraudulently inducing his associates to buy, and they, on discovering the fraud, promptly elect to rescind and tender a re-conveyance (the vendor having retained possession of the land), a decree for rescission should be granted.

3. If, before the discovery of the fraud, the purchasers had sold a part of the land to a third party, and forthwith after notice of the fraud they re-purchased the part so sold, for the purpose of tendering a re-conveyance of the whole to their vendor and completing a rescission of the first contract, such re-purchase was not a ratification of the first contract, and does not estop them from claiming its rescission.

4. To complete such rescission they must return to their vendor all that they got from him, to wit: the title to the land; but he has no concern or interest in the settlement between them and their vendee.

5. Having elected to rescind the original contract, the defrauded purchasers are entitled to a return of the purchase money paid by them, with interest from the time of payment, but as no expenditure by them added value to the land, they can not recover more.

Judgments of district court and common pleas reversed, and cause remanded for a decree in favor of Yeoman et al., on their cross-petition for rescission.

184. Wilson Sewing Machine Co. v. Pelton, Treasurer, etc. Error to the District Court of Cuyahoga County. Judgments of the district and common pleas courts reversed. No further report.

MOTION DOCKET.

9. Railway Co. v. Newbrander. Motion for a rehearing in cause No. 80 on the General Docket. Motion overruled.

12. Larwill v. Hanover Savings Fund Society. Motion to dismiss cause No. 415 on the General Docket for want of printed record. Motion granted conditionally. Order to take effect if omitted parts be not supplied within twenty days.

13. Railway Co. v. Scudder. Motion for a rehearing in cause No. 203 on the General Docket. Motion overruled.

14. Cary v. Kemper. Motion for a rehearing in cause No. 182 on the General Docket. Motion overruled.

15. Loyer v. Andrews. Motion to reinstate cause No. 378 on the General Docket. Motion overruled.

16. Underwood v. Andrews. Motion to reinstate cause No. 684 on the General Docket. Motion overruled.

17. Peniston v. Union Central Life Insurance Company. Motion to reinstate cause No. 394 on the General Docket. Motion granted.

DIGEST OF CASES.

Attachment-Undertaking-Damages.-In a suit on a bond, given upon attachment proceedings there may be a recovery in damages if the proceedings were wrongful or vexatious, or if injury had occurred to the property. Watts v. Rice. Ala. Denver L. J., Sept. 18.

Attorney-Fee-Action for-Evidence.-It is not admissible in a suit for attorney's fees, to go into an inquiry concerning prospective benefits, which might arise in the future, to the client from a settlement effected by his attorneys. Haish v. Payson. Ill., May 10, 1883. 17 Cent. L. J. 10.

Certificate of Deposit-Indorsement-Action.-The bank issued a certificate of deposit to A B, payable to him or his order on the return of the certificate, properly endorsed. The money deposited..belonged to C, who had requested the deposit to be made. The certificate was delivered to C, who presented it to the bank for payment without endorsement, and payment was refused. Held, that the certificate was in effect a negotiable promissory note, and that endorsement was not necessary to pass the title to C, or to enable C to recover against the bank. Cassidy v. First National Bank of Faribault, Minn. Wis. L. N., Sept. 6.

Court Amending Record.-The court below may amend its record after a certiorari has issued to remove it to the supreme court. Church's App. Pa., May 7, 1883. 40 Leg. Int. 335.

Contract-Specific Performance.-If the names and intention of the contracting parties can be determined with reasonable certainty from the writing, and a valid contract is thereby disclosed, specific performance of it may be decreed, Eppich v. Clifford. Col., Apr. 20. 4 Leg. Adv.

196.

Criminal Law-Culpable Negligence.-It is held by the Supreme Court of Missouri that it is culpable negligence to brandish a loaded revolver in a saloon, whereby the lives of the persons therein are endangered, and the person by whose negligence a pistol is unintentionally discharged, resulting in the death of another, is rightfully convicted of manslaughter in the fourth degree under this statute. State v. Emery. Mo. Wash. L. Rep., Sept. 15.

Evidence-Receipt-Correction. - A receipt is only prima facie evidence, like any other parol admission of the party, and is open to explanation or correction, and he may show that it was made by mistake, or does not exhibit the real state of facts: Russell v. Church, 65 Pa. St. 9; Wharton on Con. ? 938. Shoemaker v. Styles. Pa., Apr. 16, 1883. Wash. L. R., Sept. 15.

Executors-Payment to Co-Executor-Discharge.-It may be admitted, as ruled in Verner's Estate, 6 Watts, 350, on the authority of Brown's Appeal, 9 Dall. 311, and McNear's Appeal, 4 Rawle 148, that an executor, who has received money of the estate, and has paid it over to his co-executor is not answerable to legatees for the loss of it in consequence of his insolvency. There may be a very good reason for this rule, though we confess our inability to see it. Nor in this are we singular, for Mr. Justice HUSTON, in Sterrett's Appeal, 2 P. & W. 419, utterly refuses to subscribe to a doctrine of this kind. But we are not disposed to attempt. to reconcile the differences of the decisions upon a subject, of which Chief Justice GIBSON says there have been more inconsistencies among English authorities on this head than any other. Weldy's App. Pa., Apr. 16, 1883. 14 Pitts. L. J. 51.

Fire Insurance-Action on Policy-Limitation of.-A policy of insurance against fire issued by the defendant, provided that a loss thereunder should be payable sixty days after proof thereof; and that a suit for the recovery of any claim under the policy should be brought within twelve months after the loss occurred. Held, that the twelve months did not commence to run until the loss was due and payable-the expiration of the sixty days after the proof of the same. Spare v. Home Mut. Ins. Co. U.S. C. C., Oregon, Aug. 13. Chicago L. N., Sept. 1.

Fire Insurance-Mistake in Policy-Correction of in Equity.-The owners of a warehouse being indebted to the plaintiff, agreed to insure the same against fire for his benefit, and accordingly agreed with the defendant for such insurance, in their names, with loss payable to the plaintiff, but by mistake the plaintiff's name was written in the policy as the assured and owner of the property; a loss occurred within the period of the risk, and after proof of loss by the owners, and adjustment by the defendant, the former assigned the policy and their rights thereunder to the plaintiff. Held, on demurrer, that the equity of the case was with the plaintiff, and that he was entitled to have the contract reformed according to the true understanding and purpose of the parties thereto. Spare v. Home Mut. F. Ins. Co. U. S. C. C. Or., Aug. 13. Chicago L. N., Sept. 1.

Fire Insurance-Technical Proofs-- When Not Required.-As a rule the law does not require vain things, and where technical proofs could but re-state information of a total loss, of which an insurance company was already fully advised, to insist upon such technical proofs would be to oppose the barest technicality as a bar to the assured's right to recover a strictly honest claim. The Pa. F. Ins. Co. v. Dougherty. Pa., Apr. 16, 1883. Den. L. J., Sept. 18.

Fire Insuranco-Waiver of Proofs of Loss.--The waiver of proofs of loss required in a policy, may be inferred by any act of the insurer evincing a recognition of liability or a denial of obligation exclusively for other reasons. The Pa. F. Ins. Co. v. Dougherty. Pa., Apr. 16, 1883. Lenv. L. J., Sept. 18.

Fraudulent Conveyance-Statute-“Creditors."-Under the term "creditors" in the statute of frauds are included all persons who are creditors of the vendor while the goods remain in his possession or under his con trol. Densmore v. Tomer. Neb. Denv. L. J., Aug. 7.

Goods Held for Freight Charges—Reclaimed.—Where goods have been shipped by railroad, they may be reclaimed by the vendor, as in transitu, while held by the railroad company for payment of freight charges, or from the possession of a third party who has paid the freight charges, but is not the agent of the consignee. Greve v. Dunham. Ia., Dec., 1882. 4 Legal Adviser 99.

Homestead-How Extinguished or Lost.-There are only two modes by which the homestead right or estate may be extinguished: First, by a release, waiver or conveyance in writing, subscribed by the householder and his wife, or her husband, if he or she has one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged; or second, by conveyance of the premises, with abandonment or giving up of possession. McMahill v. McMahill. Ill., Mar. 28. Denv. L. J., July 24.

Infants-Defending in Forma Pauperis.—Infant defendants in equity may appear and defend in forma pauperis in the federal courts. Ferguson v. Dent. U. S. C. C., W. D. Tenn., Mar. 21. Den v. L. J., Aug. 21

Judgment—Power of Attorney to Confess-When Valid.—The following indorsement on the abstract of proceedings in a judgment in the common pleas, viz: "I authorize any attorney or prothonotary to enter judgment against me for the within amount," is sufficient to authorize the entry of judgment. Cooper v. Shaver. Pa. 14 Pitts. L. J. 19.

Negotiable Instrument-Payable to Order-Legal Title.-By the rules of the law merchant, the purchaser of negotiable paper, payable to order, unless it be indorsed by the payee, takes subject to any defense which the payor has against the payee. He becomes, in such case, only the equitable owner of the debt or claim evidenced by the security. As a general rule the legal title to negotiable paper, payable to order, passes only by the payee's indorsement on the security itself, or on a piece of paper so attached to the original instrument as, in effect, to become a part of it, or incorporated into it. Osgood's Adm'r v. Artt. U. S. C. C., N. D. Ill. Chicago L. N., Sept. 1.

Nuisance-Injury-Negligence.-It is not a nuisance per se for a private citizen acting under municipal license to dig a trench in a public highway for the purpose of laying a water pipe, and it is not such an act as renders parties engaged in it guilty of a public wrong. The entire execution of laying the pipe being committed as an independent employment to a contractor, the employer is not responsible for the mode of such execution. Smith v. Simmons. Pa., Apr. 16, 1883. 40 Leg. Intel.

Promissory Note-Irregular Indorsement—Negotiability.—A certificate on the back of a note by the maker, who was also the payee, that it was given for a valuable consideration, that he had no defense to it, etc., does not prevent his signature to such certificate from having the force of an indorsement so as to make the note negotiable and transfer the title to bona fide holder for value. Dunning v. Heller, Pa., Apr. 30, 1883. 4 Leg. Int. 336.

Public Office-Not a Contract Relation with the Public-Public offices, though salaried, are not-held by contract or grant, and they are under the complete control of the legislature, unless there be some special restraint in the organic act of the territory, or the laws of Congress governing the territories. They may be abolished, or the terms thereof reduced; the salaries may be reduced, or new duties imposed. Lee v. Commissioners. Wyoming, 1883 Term. Chicago L. N., Sept. 1.

Real Estate-Contract for Sale of-Action.-When a vendor institutes an action founded upon a contract for the sale of land, and recovers a judgment for the purchase money, or what is the same thing, takes and enters up a judgment bond or note therefor, and then proceeds by execution to sell the land, he must be considered as selling all the estate in the land, whatever that may be, which he agreed to sell to the defendant. The lien on the property thus sold is prior to all others. Bowers v. Dick. Pa., Jan. 2, 1883. 14 Pitts. L. J. 35.

Real Estate-Sale of—Fraud.—A deed of bargain and sale of real estate not recorded within six months from its date, and containing no trust expressed upon its face, is void against creditors whose judgments were obtained, prior to its record, although subsequent to the date of the deed. Nelson v. Henry. 8. C. D. C., Mar. 20, 1883. 11 Wash. Rep. 531.

Replevin Bond-Surety on- -Judgment by Confession-Liability.—A party becoming surety for defendant in an action of replevin, considered as having contracted with reference to the law applicable to the trial and final determination of the case, and with a view of becoming responsible for the amount that might ultimately be adjudged against such defendant. The confession of judgment by defendant is a regular and orderly mode of ending a pending suit. Such confession of defendant would not release his sureties in the absence of conclusion. Bradford v. Frederick. Pa., Dec. 30, 1882. 14 Pitts. L. J. 21.

Beplevin-Pendency of Suit-Custody of the Law-Levy of Process.-Personal property in the possession of the plaintiffs in a replevin suit, who have given bond for such property, is, during the pendency of such replevin proceedings, in the "custody of the law," and not liable to seizure under other process. Pipher v. Foredyce. Ind., May 19. Denver L. J., Sept. 4.

Baloon-What is.—"A place where persons who call for them are supplied with refreshments." Goozen v. Phillips. 49 Mich. 7.