IOWA SUPREME COURT ABSTRACT.

APRIL 27, 1880.

CONTRACT VOID BY PUBLIC POLICY-RELEASE WITHOUT CONSIDERATION TO INFLUENCE VOTERSESTOPPEL. In an action against a county for services as deputy county treasurer, defendant set up that such deputy had executed and filed a release for such services, wherein it was set forth that he had been fully paid. Plaintiff replied that such release was filed previous to the holding of an election for county treasurer without consideration in order to induce electors to vote for the then incumbent of the office who was a candidate for re-election. Held, that the release could not be avoided, but constituted a valid defense. The court remark: The release imports a consideration, and operates as a discharge of the defendant, unless it can be shown that the release was given without consideration. The plaintiff, in order to show such want of consideration, alleges, and seeks to prove, in effect, that the release was executed for the purpose of bribing voters, and securing an election to a public office. It is well settled that the law will leave all who share in the guilt of an illegal or immoral transaction where it finds them, and will not lend its aid to enforce the contract while executory, nor interfere to rescind the contract and recover the consideration when executed. In Inhabitants of Wooster v. Eaton, 11 Mass. 378, the following language is employed: "It appears to be the settled law in England, and we are satisfied that it is also the law here, that where two parties agree in violating the laws of the land the court will not entertain the claim of either party against the other for the fruits of such an unlawful bargain. If one holds the obligation or promise of the other to pay him money, or do any other valuable act on account of such illegal transaction, the party defendant may expose the nature of the transaction to the court, and the law will say, 'Our forms and rules are established to protect the innocent and vindicate the injured, not to aid offenders in the execution of their unjust projects,' and if the party who has foolishly paid his money repents his folly and brings his action to recover it back, the same law will say to him, 'You have paid the price of your wickedness, and you must not have the aid of the law to rid you of an inconvenience which is suitable punishment for your offense.'" To the same effect is White v. Hunter, 23 N. H. 128. This doctrine, which is applicable to cases where the parties are pari delicto, must, a fortiori, apply to a case like the present, in which it does not appear that the defendant was a partaker in the unlawful purposes. Harvey v. Tama County. Opinion by Day, J.

REMOVAL OF CAUSE MISTRIAL NOT TRIAL TO PREVENT REMOVAL — AMOUNT. —(1) ̊ A case was tried in a State Circuit Court and a verdict and judgment had for plaintiff. Upon appeal this judgment was reversed and a new trial ordered. Held, that before the new trial a petition for removal to the Federal court under U.S. R. S., § 639. The statute declares that the petition and affidavit for removal shall be filed at any time before the trial or final hearing. The words "final hearing" refer to actions in chancery. Vannevar v. Bryant, 21 Wall. 41. The petition must be filed at any time before "the trial;" not before a trial or any trial. "The trial" of a cause cannot mean a mistrial, which counts for nothing. The words refer to that trial which shall determine the issue of fact in the case, which is the object of the trial. A mistrial, therefore, was not in the contemplation of the lawmakers. Yulee v. Vase, 99 U. S. 539; Insurance Co.

from a specified date, which principal and interest would amount to more than $500. Held, sufficient in amount to authorize a removal. Brayley v. Hedges. Opinion by Beck, J.

SPECIFIC PERFORMANCE-MORTGAGE, AGREEMENT TO PURCHASE SUBJECT TO, NOT AGREEMENT TO ASSUME.-Where a vendee contracted to purchase real estate "subject to" a specified mortgage, held, that he was not bound to accept a deed containing a provision wherein it was stated that he was "to pay as a part of the purchase-price of said premises" the specified mortgage, and an action would not lie against him for damages on a refusal to accept such deed. Held, also, that parol evidence was not admissible to show that he agreed to assume such mortgage. There are authorities which hold that if the amount of the incumbrance is deducted from the purchase-price, the vendee is bound to indemnify his grantor against the incumbrance, whether he expressly promised to do so or not, for a promise will be implied. Thompson v. Thompson, 4 Ohio St. 333; McMahan v. Stewart, 23 Ind. 590; Ferris v. Crawford, 2 Denio, 595. The only point decided in Townsend v. Ward, 27 Conn. 610, was that the conveyance tendered was not objected to in time, and therefore the vendee was holden. It was held in Burke v. Gummey, 49 Penn. St.518, that "a vendee of property taken subject to a mortgage makes the debt his own; and if, on a sale upon the mortgage, there is a deficiency which the vendor is obliged to pay on his bond he may recover in an action against the vendee." As we understand, this case only holds that the property constitutes the primary fund for the payment of the mortgage. This, if conceded to be sound, does not meet the necessities of the case at bar, because the mortgaged property has not been exhausted, and the plaintiffs seek to make the defendant primarily liable. It has been held by this court that the "sale and conveyance of land with covenants of warranty, subject, however, to a prior mortgage, does not, of itself and without a further showing, amount in law to a promise to pay off such incumbrance and discharge the mortgage debt. " Johnson v. Monell, 13 Iowa, 300; Aufricht v. Northup, 20 id. 61; Hull & Co. v. Alexander, 26 id. 569. These cases are supported by the following authorities: Binsse v. Page, 1 Keyes (N. Y.), 87; Johnson v. Zink, 51 N. Y. 333; Strong v. Converse, 8 Allen, 557; Trotter v. Hughes, 12 N. Y. 74; Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 id. 375. In Belmont v. Coman, 22 N. Y. 438, the conveyance contained covenants of warranty, but the incumbrance was excepted therefrom, and it had been estimated as a part of the purchase-price, yet it was held the grantee was not personally liable for the amount unpaid after the mortgaged premises had been exhausted. Lewis v. Day. Opinion by Seevers, J.

TEXAS SUPREME COURT AND COMMISSION OF APPEALS ABSTRACT.

CHATTEL MORTGAGE PRIVILEGE TO SELL.

ON MERCHANDISE WITH - In a deed of trust of a stock of merchandise, given to secure the payment of promissory notes, the grantors were authorized to retain possession of the stock of merchandise covered by it, and to continue selling in their usual course of business until default in the payment of the notes for security of which it was given. Held, that this alone did not constitute the deed void as to creditors. The court remarked that while there is no doubt great conflict in the decisions upon the point, we are not prepared to say that such a stipulation in a deed of trust without reference to the facts is legal fraud. In our opinion the weight of authority is against it. To hold that

authority to sell in his usual course of business invalidates the deed would virtually deny to a trader the right to give a mortgage upon his stock for ever so short a time, and however inconsiderable the debt might be in comparison with the mortgaged property, or however clearly the facts might demonstrate that there was no intent or purpose to defraud. Fletcher v. Morey, 2 Story, 555; Briggs v. Parkman, 2 Metc. 258; Jones v. Huggeford, 3 id. 515; Hughes v. Corey, 20 Iowa, 399. Scott v. Alfred. Opinion by Moore, C. J. (Supreme, March 12, 1880.)

CONTRACT-SALE

OF MERCHANDISE FOR FUTURE DELIVERY -WAGERING CONTRACT. In order to invalidate a contract for the sale and future delivery of merchandise on the ground that it is a gambling contract, the intent that it should be a mere betting on the market, without any expectation of actual performance, must be mutual and constitute an integral part of the contract. The secret intention of one of the parties not to fulfill his contract, uncommunicated to the other, is not enough to make the transaction illegal, nor that it was contemplated by him thereby to adjust the difference resulting from the fluctuations in the market price in case of a rise or fall, by making good, in money, by way of compensation, a guaranty to save the other party harmless against loss, or in like manner to make good the premium on profit to accrue to the other in case of advance in prices. Clarke v. Foss, 7 Biss. 540; Lehman v. Strassberger, 2 Wood, 562; Gilbert v. Gangar, U. S. Circ., 7 Cent. L. J. 41; Wolcott v. Heath, 78 Ill. 433; Logan v. Musick, 81 id. 415; Hib- | blewhite v. McMorine, 5 M. & W. 462; Porter v. Viets, 1 Biss. 177. Marx v. Ellsworth. Opinion by Walker, P. J. (Com. Appeals, March 19, 1880.)

NUISANCE-WHEN PRIVATE ACTION LIES FOR OB

STRUCTING HIGHWAY. - Where defendant had obstructed a public street which passed along side plaintiff's land, by erecting a fence across the same whereby access to such land was hindered, thereby depreciating the value of the same, held, that such depreciation constituted a particular injury to plaintiff entitling him to redress. Frink v. Lawrence, 20 Conn. 118; Francis v. Schoelkepp, 53 N.Y. 152; Stetson v. Faxon, 19 Pick. 147; Blanc v. Klumpke, 29 Cal. 156; Oswald v. Grenet, 22 Tex. 94; Wood on Nuis., ch. 18. Shepherd v. Barnett. Opinion by Gould, J. (Supreme Ct. Feb. 24, 1880.)

RECENT ENGLISH DECISIONS.

BILLS OF LADING SETS OF THREE-RIGHTS OF INDORSEE - ENTRY UNDER SECOND BILL-LIABILITY OF WAREHOUSEMEN. -The consignees and owners of a cargo to arrive in London indorsed and delivered the first of three bills of lading to the plaintiffs as a collateral security for money advanced. These bills of lading had been signed by the master of the ship in the usual set, marked respectively "First," "Second" and Third," and they represented the goods as deliverable to the said consignees or their assigns, that freight was made payable in London, and that the master had affirmed to three bills of lading, "the one of which bills being accomplished the rest to stand void." When the ship arrived the consignees made entry of this cargo, and it was placed in defendants' warehouses. The master on the same day lodged with the defendants a copy of the manifest of the cargo, with an authority to defendants to deliver the goods to the holders of the bills of lading, and on the following day notice to detain the cargo until the freight should be paid. Upon receipt from the consignees of the second of the bills of lading, the defendants entered the consignees in their books as enterers, importers and proprietors of the goods, and after removal of the stop for freight delivered the goods to persons

other than the plaintiffs, on delivery orders signed by the consignees, the plaintiffs having no knowledge of any dealings with the cargo. Held (by Field, J.), that upon resorting to their security, the plaintiffs were entitled to recover from the defendants the value of the goods placed with them under the bills of lading. Meyerstein v. Barber, 16 L. T. Rep. 569; Fearon v. Bowers, 1 Sm. L. Cas. 705; Lickbarrow v. Mason, id. 601; The Tigress, 32 L. J. 97; Wilson v. Anderton, 1 B. & Ad. 450; Batut v. Hartley, L. R., 7 Q. B. 594. Q. B. Div., Jan. 23, 1880. Glyn Mills & Co. v. East and West India Dock Co. Opinion by Field, J., 42 L. T. Rep. (N. S.) 90. CORPORATION LIABILITY OF COMPANY ISSUING A CERTIFICATE OF STOCK UNDER A FORGED TRANSFERESTOPPEL. -The registration of a transfer of stock and the issue to the transferee of a certificate does not give the transferee as against the company a right by estoppel to the stock. B. & Co. purchased upon the stock exchange 5,000l. stock in the defendant company. A transfer of the stock purporting to be executed by C., the owner of the stock, was lodged with the company by S. & Co., the nominees of B. & Co. The company, after making the usual inquiry, registered S. & Co. as holders. Afterward B. & Co., having agreed to deposit the stock with plaintiff to secure advances, caused S. & Co. to execute a transfer to plaintiffs, who were accordingly registered, and received a certificate from the company. Plaintiffs subsequently being repaid their advances, had no beneficial interest in the stock, but held as trustees for B. & Co. The company having discovered that the alleged transfer from C. to S. & Co. was a forgery, replaced C.'s name upon the register, and refused to pay dividends to plaintiffs, or to acknowledge their title to the stock. In an action by plaintiffs against the company, held (reversing the judgment of Lindley, J.), that inasmuch as B. & Co. were the real plaintiffs, the company were not estopped from denying the validity of the transfer from C. The company are not bound on behalf of the transferee to make inquiry of the transferor before registering the transfer. Ct. App., Dec. 5, 1879. Sim v. Anglo-American Telegraph Co. Opinions by Bramwell, Brett and Cotton, LL. J., 42 L. T. Rep. (N. S.) 37.

LAW PROCEDURE

PARTNERSHIP-EXPULSION OF MEMBER-COMMONACT, 1854, s. 11 ARBITRATION CLAUSE-ORDER OF REFERENCE. - A deed of partnership contained a clause that "if at any time during the said partnership the business thereof shall not be conducted or managed, or the results thereof shall not be to the satisfaction of the said W. A. R. (one of the partners), it shall be lawful for the said W. A. R to give a notice in writing to the other partners or partner of his desire that the said partnership shall determine, and in such case the partnership shall cease and determine immediately on the expiration of three calendar months from the giving such notice." Held, that the power conferred by the clause was one which W. A. R. could exercise capriciously, and at his own will and pleasure. Where a partnership deed contains an arbitration clause, and disputes occur between the partners, the mere fact that one partner makes a charge of actual fraud against his copartner is not sufficient to prevent the copartner from insisting on a reference to arbitration, and the court, having regard to the discretion given by the Common-Law Procedure Act, 1854, section 11, ought in the exercise of that discretion to allow the matters which have been expressly agreed to be referred to arbitration to be so referred, but secus, if the partner charged with fraud desires a public examination into the truth of the stigma endeavored to be cast upon him. Dicta of Wickens, V. C., in Willisford v. Watson, 28 L. T. Rep. (N. S.) 428; L. Rep., 14 Eq. 572, dissented from; Wood v. Woad, 30 L. T. Rep. (N. S.) 815; L. Rep., 9 Ex. 190, observed upon as containing the principles laid down in Fisher

v. Keane, 41 L. T. Rep. (N. S.) 335; L. Rep., 11 Ch. Div. 353; and Labouchere v. Earl of Wharncliffe, 41 L. T. Rep. (N. S.) 638. Ch. Div., Feb. 6, 1880. Russell v. Russell. Opinion by Jessel, M. R., 42 L. T. Rep. (N. S.) 112.

CORRESPONDENCE.

DEMURRERS.

To the Editor of the Albany Law Journal:

I do not think your correspondent, X, is quite accurate on the subject of demurrers. Before the old Code, the action of a court upon a demurrer was a judgment. 1 Burr. Prac. 208, 249. Although it was a judgment, still the court often allowed a party to withdraw the demurrer and plead, etc., on payment of costs. This judgment was interlocutory, if damages were assessed; final, if not. And on this judgment, a judgment record or judgment roll was made up. ld. 253.

The old Code also spoke of a judgment as an issue of law, section 278. But in section 349, sub. 2, it spoke of an order, sustaining or overruling a demurrer. I think that is the first introduction into law terms of the word "order," as applied to the action of a court upon an issue of law.

Mr. Throop's Code has restored the former phraseology by speaking of a judgment upon a demurrer. § 1021. Now it is not quite accurate to speak of an order for a judgment. An order is the adjudication of the court upon a motion. A judgment is the adjudication upon a trial, or on a failure to answer, etc. For instance, if a motion to change the place of trial be made, and the court orally grants it, the entry in the clerk's records of that adjudication is an order. If a demurrer to a complaint is argued and the court orally declares that the demurrer is not well taken, the entry in the clerk's records of that adjudication is a judgment for the plaintiff. Very often clerks make only memoranda in their minutes, waiting until the successful attorney drafts the proper order or judgment as it may be. But the true name of the entry is not thereby changed.

According to your correspondent's idea, when there is an adjudication on a demurrer, there should be first, the oral or written announcement of the opinion of the court; second, an order entered in the records of the court; third, a judgment entered in the same records; and, fourth, a judgment roll thereon. And some attorneys practice in this manner, so that the judgment roll contains apparently two adjudications by the court; one denominated an order, the other a judgment.

Your correspondent says that the clerk enters up judgment. But a judgment on a demurrer is the adjudication of the court. The clerk's business is simply clerical; to record what the court does. And what the court does is to adjudge, that on the demurrer, the plaintiff or the defendant recover.

I am pleased to hear that your correspondent cannot make judges or opponents understand that his course is the one to be pursued. My own observation has been that too many lawyers pursue it. A.

The statement in your JOURNAL of June 12th, in an interesting article on Contracts to Satisfaction," to the effect that a Connecticut court, in the 45th Conn.,

which we are justly proud and which you indirectly question, take the liberty of explaining. The case in the 45th Conn. unfortunately has not reversed the principle established in the previous volume. It is still the law under which we live here, that the ipse dixit, not satisfactory," is amply sufficient to absolve any contracting party, in that class of cases, from all pecuniary obligation. A coat, for instance, ordered to be made out of blue cloth, may, by the use of this magic talisman, with impunity be thrown in the tailor's face, and the author of all evil be left to pay for it. The reasons which underlie the purchaser's dissatisfaction and which prompt such vigorous assertion thereof may never be known. Courts and juries cannot pry into this secret. It may be that since being measured, the purchaser has undergone a mental, not to mention a physical change, and now prefers a coat of a delicate pea-green as well as one of ampler dimensions. Perhaps when ordering the coat in question, he was laboring under the misapprehension that a blue coat, if artistically constructed, would have all the effect of any other colored coat. Perhaps, too, at the time, he had extravagant notions as to the possibilities of coats in general, and innocently supposed that that garment alone would suffice for a full suit-as to-day doth the untutored savage of the plains-and on awakening from his illusion, exclaims, not less truthfully than modestly, "non satis est." Any or all of these good reasons- -and to him, what better?- he may keep locked forever within his unsatiated breast, and no process of the common law can force him to divulge

them.

But to give the explanation. The case in the 45th Conn. did not touch on any of these interesting points. It did not appear by the record there whether the facts on the second trial were the same as those on the first or not. No presumption existed that they were the same. On the contrary, the court enforced the presumption that sufficient facts must have appeared in evidence to sustain the judgment below-there having been no separate finding of fact on the second trialand the only point discussed and passed upon was whether the finding of facts on the first trial was still existing as res adjudicata, or was destroyed by the order for the new trial. The court took the latter position. T. C. I.

WE

NOTES.

E have received the first number of a new law magazine, the Kentucky Law Reporter, a monthly, published at Frankfort, under the editorial charge of Messrs. J. C. and Frank L. Wells. This number makes a very respectable showing, containing among other things an article on Rights of Purchasers at Execution Sales, and the case of Vanmeter v. Estill, concerning fraudulent sales, with a note. We welcome the new-comer, although, like the father of a large and rapidly increasing family, we cannot avoid some anxious conjectures as to the support of the last arrival. Kentucky, however, needs a representative law magazine, and we trust that its bar will take care of the promising publication.

The June number of the American Law Register contains, among other matter, an article on Riparian and other rights in non-navigable water, by Arthur Biddle; the case of Sturges v. Bridgman, on easement, with a note by Edmund H. Bennett; the case of

iff, after having reversed a similar judgment on precisely the same testimony, is scarcely accurate. And as the article referred to suggests that the counsel in that case may "perhaps inform us" how so happy yet inconceivable a result was effected by legal processes, in the interest of that stability in our decisions of

rata" in a will, with a note by C. H. Wood; and the case of Knaggs v. Green, concerning avoidance of an infant's contract, with a note by Marshall D. Ewell.

The subject of the prize essay of tho New York State Bar Association for 1880 is the following: "What National legislation, if any, should be had to regulate commercial intercourse between the States?"

The Albany Law Journal.

IN

ALBANY, JULY 10, 1880.

CURRENT TOPICS.

N connection with our recent article on Contracts to Satisfaction, and the doctrine of the arbitrary right to be dissatisfied, the case of Lesser v. Sherwood, lately tried at the New York Circuit of the Supreme Court, has some significance. Lesser, a dentist, sued Sherwood for the price agreed upon for a set of teeth he had manufactured for him. Upon the trial he proved the manufacture, almost complete, of the teeth, according to his contract. All that was necessary to finish the job was the presence of the defendant in the plaintiff's office for the purpose of fitting the teeth properly in the mouth. Defendant repeatedly promised to call, but invariably failed to do so. The court dismissed the complaint. The General Term reversed the judgment upon appeal. Judge Barrett, in his opinion, concurred in by Davis, P. J., says plaintiff "did all that he was bound to do or could do, and the defendant was liable for such proper damages as resulted from the breach." If, however, the contract had been that Lesser should take his chances of Sherwood's attending to have the teeth fitted, we suppose the holding would have been the reverse. A somewhat analogous case is Moore v. Robinson, 92 Ill. 491. A person having been indicted for an alleged offense, his brother paid to an attorney-at-law a sum of money, and also gave him his promissory note for a further sum, upon the agreement that the attorney should defend the person so indicted, and procure his acquittal and discharge at a certain specified term of the court in which the indictment was pending, and if the accused should not be released at the time mentioned, the attorney was to return the money and the note. The accused failed to appear at the term specified to answer to the indictment, so the attorney, without any fault on his part, was unable to proceed with the trial or to procure the discharge of the accused. Held, that the contingency upon which the attorney was to be entitled to retain the money and to collect the note, not having occurred, he was liable to an action for the money, and could not recover upon the note; but was entitled to compensation quantum meruit for his services, and could retain such amount out of the money he had received.

The opinion of Attorney-General Ward upon the novel question whether telegraph poles are to be assessed as real estate will probably find general acceptance. The learned attorney-general says: "It is entirely clear to my mind that these telegraph structures are 'articles erected upon and affixed to the land,' so as to create an interest therein, and are, to the extent of the value thereof, land of the telegraph company erecting them, and as such liable to taxation. And it is the duty of the assessors of the VOL. 22.- No. 2.

several towns and wards of this State to assess the same as land to the value thereof, so far as any of their lines extend through their respective assessment districts. I have given the question which you have presented careful consideration, for the reason, that as far as I have been able to discover, no decision upon the precise question before us has been made by any of the courts of this State, and the question therefore is a new one. I am greatly aided, however, in reaching this conclusion by the opinion of the Court of Appeals in People ex rel., etc., v. Cassity, 46 N. Y. 46, which holds in this language: The term 'lands' as used in the statute in relation to assessment and taxation (1 R. S. 360, §§ 1, 2), includes such an interest in real estate as will protect the erection, or affixing, and possession of buildings and fixtures thereon, though unaccompanied by the fee, and such interest with the buildings and fixtures may be assessed to the owner thereof.' See, also, 74 N. Y. 365, and 52 Barb. 105. It is also held in People ex rel. New York Elevated Railway Company v. Commissioners of Taxes, decided by General Term, First Department, and reported in 19 Hun, 460, that foundations for piers or columns placed in a public street by an elevated railroad by legislative authority, whether standing alone or with columus and the superstructure thereon are properly taxable as real estate.' If the piers and columns of an elevated railway, as in the last case cited, and the stringers, ties and rails of a horse railroad, as decided in the case of People v. Cassity, supra, are land' and taxable as such, though in neither case did the company own the fee of the land upon which these structures stood, it would seem that telegraph posts, piers and abutments and lines are also land and taxable as such. It would seem also from the case of People v. Cassity, supra, and People v. Barker, 48 N. Y. 70, and indeed from the statute itself, that in all cases the premises are to be assessed in the name of, and to the company owning the line and not in any case as 'non-resident.'"

The recent decision of the Indiana Supreme Court, holding that the constitutional amendments voted upon at the election last April in that State were not adopted by a legal majority, involves a very interesting question, namely, what constitutes "a majority of the said electors of the State." The amendments in question were voted upon at town elections, and although they received a majority of the votes cast upon the particular questions, they did not receive a majority of all the votes cast at the same time for town officers. The majority of the court held that they must at least receive a majority of all the votes cast at the same election. This view is supported by decisions of the Missouri and Minnesota Supreme Courts, but is opposed by a decision of the Supreme Court of Wisconsin. We shall soon take occasion to review these decisions with the care which the question deserves.

In view of this conflict of judicial opinion, the ambiguity of the language in question, the charac