of the lessor. (2) While it is not competent to contest a deed by parol evidence when it has once taken effect by delivery, it is always competent by such evidence to show that the deed, though in the hands of the grantee, has never been delivered. For this purpose the original verbal agreement may be shown, as that a written guaranty for the payment of rent was to be procured and indorsed on a lease before it should take effect, and that it was placed in the lessee's hands merely to enable him to get such indorsement. Jordan v. Davis. Opinion by Sheldon, C. J. In your note to Merchants' Bank v. Schulenberg, on page 22 of the current volume, you have mistaken the conclusion reached by the court. You doubtless fell into the error by relying upon the head-note to that case as reported in North-western Reporter, vol. 19, p. 471. In that case, in the court below, the plaintiff was allowed to discontinue notwithstanding the objection of the defendant who had given notice of a set-off and claimed a balance. In the Supreme Court the judgment of the court below was affirmed under the statute, the court being equally divided. Yours truly, JOHN E. MOORE. GRAND RAPIDS, MICH., July 25, 1884. NEW BOOKS AND NEW EDITIONS. REED ON THE STATUTE OF FRAUDS. A Treatise on the Law of the Statute of Frauds and of other like enactments in force in the United States of America and the British Empire. By Henry Reed, of the Philadelphia bar. In three volumes. Vol. 1. Philadelphia: Kay & Bro. 1884. The first volume of Mr. Reed's work is in advance by a few weeks of the second and third, which will complete it, and a review of the work will be deferred until the entire subject can be discussed. The handling of the matter in this volume is very satisfactory, and the structure of the book and the development of the topics are clear and convenient. It promises very well for the completed work. The analysis is as minute as that of a first-class digest, while the exhibit of the law is satisfactory, because, making proper allow auce for quotations, it is uniformly in the words of one very able and clear writer, and the result of an appropriation by him, as it were, of each case and a reproduction of it in his own statement of the pertinent facts and of the points decided. This is a higher order of work than the usual modern digest, which owes its life to the scissors. The labor must have been enormous, and the work is so well done that the grouping of cases under the statute and the propositions deducible from them, will not probably be again attempted. The value of the undertaking, its significance, and the place which it takes in the legal literature of the country will be considered later. fice to keep the side judges from going to sleep. -Central Law Journal.-In State v. Thomas, 78 Mo. 327, a murder case, the court said: "We make no comment on the unseemly exhibition of rivalry exhibited during the trial of the cause by physicians who were summoned as witnesses, in the hope that it may not occur again. When doctors disagree' they should select some other arena-some other time and place than a court house where a human being is being tried for his life or liberty for such exhibitions as were witnessed during the trial of this case. We will not be understood as denying to attorneys the assistance which physicians, skilled in their profession, may give in the investigation of wounds in cases of homicide; but certainly such assistance can be secured without bringing the witnesses forward as contestants rather than witnesses." We wonder what the court would have said if it had permitted itself to make a "comment?"The House of Lords, which characterized our Civil Code as "voluminous" (3 L. N. 369), does not err on the side of brevity in its judicial decisions. The ALBANY LAW JOURNAL says: "The only time when we contemplate the capabilities of dynamite with any approval is when we are condemned to read the long, rambling, slipshod, tautological, cumulative opinions of three or four law lords, which are supposed to set the law for Great Britain." The reproach is not undeserved, and might be avoided if their lordships would take the trouble to reduce their opinions to writing, either before or after delivery, as the opinions of a high court of appeal should be.-Canada Legal News. After all, Mr. Benjamin died poor. His personal estate was sworn at only £60,000. Perhaps he had a house and lot somewhere. The Albany Law Journal. IT ALBANY, AUGUST 9, 1884. CURRENT TOPICS. แ anec New York, the question of whose adoption is still pending, many most essential definitions have been omitted, and of many important rights and duties only very brief and meagre statements have been given, less full and complete than would reasonably be expected in one of the every-man-hisown-lawyer manuals that are occasionally issued for the ensnarement of the lay public. The points on which any question is likely to arise which a lawyer of ordinary learning could not answer offhand, and for which he would need the help of a code, at least such as belong to the now unwritten Section 1578 reads: 'An T was hardly necessary for Judge Drummond to write to us to deny those ridiculous dotes" of him published by the St. Paul Pioneer Press. That is to say, it was not necessary so far as concerns the legal profession. Perhaps however it is well enough so far as concerns the pub-law, are usually passed over without notice. A few lic, for the public are extremely credulous, and always examples will suffice. individual may maintain an action for a public snap eagerly at any thing peculiarly absurd and incredible concerning the bar and the bench. Judge nuisance if it is specially injurious to himself, but not otherwise.' That is all that there is on that Drummond denies that he ever spoke to Mr. Carpenter the words attributed to him, although he admits that he may have rebuked him, "decorously as became a court," for improper remarks about a brother lawyer. He admits that he may have criticised exorbitant charges of counsel, but he denies that he "ever used the language reported, or any thing like it, in substance or effect." Judge Drummond thinks that there is an "if" in our comments on the fool-reporter's anecdotes. Certainly we did not intend to convey the idea that we believed such stuff and nonsense. After all, Judge Drummond has reason to congratulate himself that he is not running for the presidency, for then he could not keep up with the lies and folly of the newspapers, if he should try ever so hard. A cablegram from Sir Travers Twiss announces that the executive council of the association for the reform and codification of the Law of Nations has adjourned until next year the conference of the association, which had been appointed to be held at Hamburg, Germany, on the 19th to 23d of August. Professor H. T. Terry, of the University of Tokio, Japan, has in press, and soon to be published by Messrs. T. & J. W. Johnson & Co., of Philadelphia, a work entitled "Some Leading Principles of Anglo-American Law, expounded with a view to its arrangement and codification." We have read with a good deal of interest some advance pages. It is evident that the author is philosophical and deeply learned, but of the practical value of his work we cannot form any definite idea from these pages. To some of his "suggestions about codification we should take exception. He says: "Now, without doubt, shortness and simplicity are very desirable qualities in a code; the attainment of them would be one of the prime ends which a competent body of codifiers would keep before themselves. But they can be bought too dearly; nor can they in a good code be as fully realized as many people suppose. A code can, it is true, be made short and simple to any desired extent. In the preparation of the draft civil code for the State of VOL. 30- No. 6. * * * point. But under this elementary principle very difficult questions have arisen as to what constistutes special damage to an individual. Many of these doubtless have been questions of curial fact which could not be discussed in a code; but surely out of the cloud of decisions on this point some rules truly of law could have been extracted for instance, upon the more limited inquiry how far the being actually hindered from using a highway by an obstruction in it, and being obliged to take a circuitous route, or to submit to delay and extra trouble, constitutes special damage - which, inserted in the code, would have made it at least occasionally worth referring to for light upon the decision of a doubtful question in practice. As it is, upon any really difficult point the courts would still be obliged, notwithstanding the so-called code, to resort for information to the old source in the old way." (Then follow sections 553-556 on fraud, and sections 624-626, 1623.) "Now what is there in all the sections above quoted that would be likely to give any information about any matter as to which any lawyer who knew enough to get admitted to the bar would be likely to be in doubt? Or what is there that would often be of service as a practical guide to a layman trying the hazardous plan of getting along in a difficult matter without professional advice? Of course a code must contain statements of the elementary principles of law; these will form the basis of its more minute provisions, and will be of prime importance in relation to its arrangement. But what is the use of taking the trouble to make a code that contains almost nothing else? A little volume containing a clear and systematic statement of such principles would be useful to students, and sometimes to the profession and the courts. But why call it a code? It had better in fact remain unenacted, since in that condition it would be just as serviceable, and would be free from the inconveniences of an authoritative code, whose ipsissima verba could be made the ground of innumerable quibbles. If every line of the statute of frauds has cost a subsidy to construe, how much would the sections above quoted, which are only a little better drawn than the statute of frauds, cost? How much the whole civil code? indifference." NOTES OF CASES. 'N Dunning v. Heller, Pennsylvania Supreme Court, They However, the courts would probably simply disre- excited Messrs. Carter, Dwight, Miller and others gard the code in practice as an actual source of in- in opposition. But no formation, seek the law where they now seek it in the reports and then, coming back with the results of their investigations to the nominal ground of the code, declare the rules thus obtained to be the true meaning of the code. The State of California has adopted a civil code very similar to the draft code prepared for New York, and I am informed, founded upon the latter, which has now been in force for some years. But in looking over the reports of such decisions in that State since the code went into operation as I have been able to get access to, I cannot find that the courts depend much upon it in really doubtful questions. They go on much as before, citing decisions, even from other States, and basing their judgment upon them. On the whole then, I can hardly share in the surprise which has found expression in the press at the indifference with which the bar of New York look upon the attempts now and then made to induce the Legislature of that State to enact the draft civil code. Whatever may be its merits as a convenient reduction of the statute law on certain subjects, and as a means of clearing away antiquated rubbish from the law-matters which do not concern us here, however important in themselves— as a codification of the existing unwritten law it has almost no value, and this mainly because absolutely necessary details, the very matters that make a good code so much to be desired, are sacrificed to an illusory brevity." of a note by the maker, who was also the payee, of name of the indorser across the back of the note. The amount of all this argument is that a code should be a digest. This it certainly should not be. When the author asks what is the use of enacting such simple principles, we reply, because they are the law, and are nowhere written in the form of statutes. When he speaks of the cost of interpretation, it does not seem to occur to him that the cost would certainly not be diminished by an attempt at detail. When he speaks of the reference to reports in construing the code, we reply that this is exactly the proper office of decisions - they ought not to be the enunciation of the law, but rather the explication not the stutute, but the commentary. No code can ever wholly dispense with them. At the same time it must be borne in mind that judges will long continue unnecessarily to cite decisions from force of habit, and to show their learning, In Peck v. Herrington, 109 Ill. 611, it was held until they get tired of it. A proper code is a mere that the owner of land upon which there is a pond in frame work or skeleton, like the Ten Command- which is collected only the surface water from rains ments. The commandments do not undertake to and melting snow, when good husbandry so requires, define theft, murder, perjury, etc., but we never may drain the same by an artificial drain conheard it alleged that they were superfluous. If structed upon his own land, whereby its water is Professor Terry should ask where to look for de- thrown into the same outlet or natural drain it was tails, we should say in statutes or decisions. He accustomed to take before when the pond was full, will allow us to say that he is quite mistaken in as- notwithstanding the flow of the water over a servient suming that the bar of New York look upon the tract of land may thereby be increased. The court proposed code with "indifference." It has warmly said: "We now come to the main question in the interested many eminent men in its favor, while at Had Peck the right to drain the water from the same time we must admit that it has terribly the ponds, and discharge the same on his own land case. in the channel which carried the surface water from his land to that owned by Herrington? It may be regarded as a well-settled principle of law that where two farms adjoin, and one lies lower than the other, the lower farm will be subject to the natural flow of water from the one which lies in a more elevated position, or as declared by Washburn on Easements and Servitudes, page 353: 'It may be stated as a general principle that by the civil law, where the situation of two adjoining fields is such that the water falling, or collected by melting snow and the like, upon one, naturally descends upon the other, it must be suffered by the lower one to be discharged upon his land, if desired by the owner of the upper field.' The owner of the upper field in such a case has a natural easement, as it is called, to have the water that falls upon his own land flow off the same upon the | field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements. Id. 355. It may also be regarded as a well settled rule that the owner of the upper field cannot construct drains or ditches so as to create new channels for water in the lower field, but he may make such drains for agricultural purposes on his own land as may be required by good husbandry, although by so doing the flow of water may be increased in a regular, well-defined channel, which carries the water from the upper to the lower field. But it is said that the owner of the dominant heritage cannot drain natural ponds of water from his own land upon the land of his neighbor below him. The ponds which Peck proposed to drain were merely the collection of surface water from rain and melting snow which fell upon the land. Suppose Peck, instead of tile-draining the ponds, had filled them up with dirt. This would have caused the water which before accumulated in the ponds to flow down the channel, indicated on the map by the red line, upon the land of Herrington. It will not be pretended that in such a case he would have violated any rule of law. As was said in Goodale v. Tuttle, 29 N. Y. 459: 'In respect to the drainage of surface water there is no principle which will prevent the owner of land from filling up the wet and marshy places to his own advantage, because his neighbor's land is so situated as to be incommoded by it.' If it be true that the water which would naturally accumulate in these ponds could be cast upon Herrington's land by filling them up, upon what principle can the owner of the dominant heritage be denied the right to do the same thing in another way? If the water which would naturally accumulate in those ponds can be turned upon Herrington's land by filling them up, we perceive no reason why the water may not be drawn off by tile-draining, if good husbandry required it. These were small ponds, the largest one containing only three acres. Good husbandry did not, in our judgment, require Peck to keep this collection of water standing on his farm, and gradually seeping into his other land, and thus making it unfit for cultivation; but on the other hand, we are of opin ion that he had the right to tile-drain the ponds, and carry off the water in the natural channel, although the flow of water would thereby be increased. This view of the subject we believe to be reasonable, and well sustained by authority. Martin v. Riddle, 26 Penn. St. 415; Kauffman v. Griesemer, id. 407; Miller v. Loubach, 47 id. 154; Broadbent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taylor, id. 396; Frazier v. Brown, 12 Ohio St. 294. It may be true that the owner of a tract of land would have no right to drain a lake or large body of water upon the land of an adjoining owner, and thus destroy it; but such is not this case. These small ponds rendered much of the land of Peck unfit for cultivation, and good husbandry required that they should be drained, and so long as the water was discharged in the regular channel leading from the land of Peck to that of Herrington, he has no legal ground of complaint. The natural flow of the surface water was not changed by the drainage. It may have been increased, but such increase of water was a burden which the location of the two tracts of land demanded should be borne by the owner of the lower tract of land. As was said in Kauffman v. Griesemer, supra: Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in, or flow or fall upon, the superior.'" Dickey, J., dissented. See Hughson v. Anderson, 68 Ala. 280; S. C., 44 Am. Rep. 147. THE PRESUMPTION OF PAYMENT.-II. RULE III. A statute of limitations prohibits the action after the legal period; but the presumption of law arising from lapse of time may be rebutted.(1) (a) And the term fixed by the statute of limitations cannot be shortened by lapse of time alone.(b) After twenty years the presumption of payment arises unless there are circumstances to account for the delay; and if there are no such circumstances, it becomes a presumption of law, and the question should not be submitted to the jury. "If there had been any circumstances, any thing but the lapse of time, to charge the jury on, that should have been left to the jury; but where there was none the presumption of law on the fact is that the judgment was satisfied. The court did no more, and if they had done less they would have committed an error. On the twenty years unexplained there was nothing to leave to the jury; they had no belief to exercise on it; it is because there are no means of belief or disbelief the presumption of fact arises; the presumption holds the place of particular and undivided belief. It prevails because the presumption of law is that the obligor in that long time has lost his receipts and vouchers, or the witnesses who could prove the payment might be dead. The jury might not have believed; this court might not believe the fact of payment; but that specific belief is not general presumption. The laying down any other rule necessary. For wise purposes the law has raised the would be destroying all legal presumptions. The position of the court below is justified by the opinions of all the judges in England in Grantwicke v. Sampson, 2 (1) Lyon v. Gudd, 5 Heisk, 175 (1871); Thorpe v. Corwin, 20 N. J. (L.) 311 (1844). presumption of payment by lapse of time. (4) For a like reason in the Pennsylvania case it is said: "While on the one hand the party seeking to recover a demand may introduce any circumstance, however slight, having a tendency in the least degree to defeat the presumption (of payment), so he who relies on it may strengthen and support it by any fact which legally and naturally has that effect. In the present case the heirs of a man are seeking indirectly to recover a claim due more than thirty years before suit brought. To show that this man in his life-time and during the progress of these thirty years was in needy circumstances and pressed by his creditors in various suits for large sums of money which ended in the recovery of judg ments and executions against him, was but calling in aid of the legal presumption, the strong natural inference that one so harassed by his creditors and appar A. in 1836 gives B. a bond payable in 1838. In 1860 B. brings suit on the bond. The presumption is that it is paid. But it appears that in 1841 A. stated to B. that he did not intend ever to pay the bond, as B. had taken so much from their father. This rebuts the presumption. A statute provides that no action shall be brought on a specialty debt after twenty years unless the debtor during or after that time has made a new promise to pay the debt. The action against A. cannot be maintained notwithstanding his acknowledg-ently in want of money for the payment of his debts, ment.(3) In case 1 it was said: "That presumption which the law raises after a lapse of twenty years that a bond or specialty has been paid is in its nature essentially dif ferent from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action, the former prima facie obliterates the debt. The bar is removed by nothing less than a new promise to pay or an acknowledgment consistent with such a promise. The presumption is rebutted, or to speak more accurately, does not arise where there is affirmative proof beyond that furnished by the specialty itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor. The statutory bar is not removed without a new promise or its equivalent, because suit on the old contract is prohibited, and the debtor can only be liable therefore on the contract expressly made by the new promise or implied from an acknowledgment of continued indebtedness, the old debt being the consideration for the new engagement. This is the logic of the matter though it is true the pleadings have not been moulded accordingly. We still declare on the old debt, and give the new promise in evidence; but notwithstanding this incongruity the liability which the law enforces arises out of the new contract. * * * *The statute of limitations is a bar whether the debt is paid or not. Not so where suit is brought on a sealed instrument. The fact of indebtedness is then in controversy, and the legal presumption of payment from lapse of time is nothing more than a transfer of the onus of proof from the debtor to the creditor. Within twenty years the law presumes that the debt has remained unpaid, and throws the burden of proving payment upon the debtor. After twenty years the creditor is bound to show by something else besides his bond that the debt has not been paid, because the presumption raises only a prima facie case against him. It must be borne in mind that the presumption from lapse of time is not that there is no contract existing between the parties. If it were, proof of a new contract might be necessary. It is only an inference that the debtor has done something to discharge the debt, to wit, that he has made payment. Hence it is rebutted by simple proof that payment has not been made, and the facts being established, whether they are sufficient to rebut it is a question for the court and not for the jury. The presumption is one drawn by the law itself from a given state of facts, and whether it exists or not is necessarily for the court." The character of the creditor for strictness and closeness in the collection of his debts is relevant on the (2) Cope v. Humphreys, 14 S. & R. 21 (1825); Webb v. Dean, 21 Penn. St. 31 (1853). (3) Reed v. Reed, 46 Penn. St. 239 (1863). * would not have permitted his debtor to a large amount to escape for so long a time a demand of payment by suit. * * * But it is said the records of these judgments should not have been received, because it appeared all of them had been satisfied. But though this circumstance may have weakened the effect their introduction was intended to produce, it certainly did not altogether destroy it."(5) (B.) 1. A mortgage given by A. to B. fell due in July, 1819. Proceedings to foreclose it were commenced in June, 1839. In a subsequent action to recover, possession defendant asked that it should be submitted to the jury whether from lapse of time payment should not be presumed to have been made before its foreclosure. A statute of the State provided that "after the expiration of twenty years from the time the right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment." Held, that no presumption could arise from mere lapse of time short of twenty years.(6) "We take it," said the court in Grafton Bank v. Doe (7), "to be well settled that courts are never at liberty to presume payment from mere lapse of time in any period less than that which is fixed by the statute of limitations. To hold otherwise would virtually be a repeal of the statute. No doubt lapse of time, connected with other circumstances, and evidence tending to prove payment, may legitimately aid in establishing the fact." But if besides the lapse of time there are other circumstances showing that payment has been made the jury may presume payment. (8) RULE IV. The presumption of payment may be rebutted under rule 3 by showing (at any time during the period which creates the presumption) an acknowledg ment of the debt by the debtor(a); or a payment of part of it(b), or a known or notorious insolvency(c) or incapacity(d) of the debtor; or by evidence of the relation (e), situation(f) or intention(g) of the parties; or by other circumstances explanatory of the delay(h). In Hillary v. Waller(9) the chancellor said: "Then as to a presumption of title. First as to a bond taken, and no interest paid for twenty years; nay, within twenty years, as Lord Mansfield has said; but upon twenty years the presumption is that it has been paid. and the presumption will hold unless it can be re(4) Leiper v. Erwin, 5 Yerg. 7 (1833); Kilpatrick v. Brashaer, 10 Heisk. 372 (1873). (5) Levers v. Van Buskirk, 4 Penn. St. 314 (1846). (8) Milledge v. Gardner, 33 Ga. 397 (1863); Mayor of Kingston v. Horner, 1 Cowp. 102. (9) 12 Ves. 267 (1806). |