seizure. Their argument would be entitled to serious consideration if it appeared that such is the intent and scope of the Federal statute. But such is not the meaning of that statute; it does not attempt to invade tho domain of State legislation in respect to exemptions; its simple and obvious purpose is to protect the donation while in transit to the pensioner. Its language is not, “no money in the hands of a pensioner," or "no pension money," but "no sum of money due or to become due to any pensioner." The protection is to an undelivered sum of money. This which is implied in the first words of the section is made more clear by its after language, for it prohibits seizure whether this sum of money due or to become due remains with the pension office or an officer or agent thereof, or in course of transmission to the pensioner entitled thereto. To guard against any abuse or destruction it thus specifies the various positions which

and the case remanded for further proceedings in accordance with the views herein expressed.

LIMIT OF AUTHORITY OF REAL ESTATE

AGENT.

DISTRICT OF COLUMBIA, SUPREME COURT, OCTOBER 8, 1882.

RYON V. MCGEE.

M. gave J., an attorney, general authority to sell certain real estate belonging to him. Held, that this did not authorize J. to make a contract for the sale binding M. Consequently a contract of sale of the property executed by M. would have precedence over a contract of sale previously executed by J. without the knowledge of M.

declares that pension money shall not be interrupted on its way to the pensioner. The last clause of the section which reads, "but shall inure wholly to the benefit of such pensioner," is qualified by and must be read in the light of the preceding words of the section. It is comprehensive language, but it is only language strengthening and making more plain the intention of the preceding words. It applies to money due or to become due, and not to money paid and in possession. Nowhere in the section is there reference to pension money in the hands of the pensioner. It does not purport to exempt money in such hands from the operation of State laws, either those of taxation, or the ordinary statutes concerning exemptions and indebtedness. It is doubtless true that such statute is to be liberally construed, and so construed that the pensioner shall acquire full possession of his pension, free from any interception directly or indirectly in the course of its transit. Now turning to the facts of this case, it is evident that the defendant had acquired full and absolute control of his pension; he had sold it to the bank; it had been passed to his general account, and, he had already used most of it. He had not simply deposited the drafts for collection, but he had sold them to the bank, and the bank was his debtor for a balance upon his general account at the time of these proceedings. We have been referred to the case of Eckert v. McKee, 9 Bush, 355, in which the Supreme Court of Kentucky reached a conclusion different from that expressed by us in this opinion, and construed the statute as exempting the money itself, even in the hands of the pensioner, and declared such an exemption within the power of Congress. It is very likely that on the facts as stated in the opinion in that case, even with the views we entertain of the scope of the Federal statute, we should have decided the case in the same way; for it would seem that though the pensioner had indorsed the check, and sent it through an agent who had received the money from the bank, the money had not in fact reached her, so that in a liberal construction it might be said that the pension was still in the course of transmission; but we cannot agree with all that is said in the opinion. The section, as we understand it, simply protects pension money in transit; and here the facts are that the transit was ended, the drafts had been sold, and the bank was a debtor in the balance of a general account to the defendant, and hence the bank was liable as garnishee. See the case of Kellogg v. Waite, 12 Allen, 529, in which the Supreme Court of Massachusetts, while not deciding the question before us, uses language impliedly sustaining the views we have expressed. See also Webb v. Holt, Iowa Supreme Court, March 24, 1882, 14 Cent. L. J. 318.

The judgment of the District Court will be reversed,

appear in the opinion.

W. Wheeler and Birney & Birney, for complainant. John C. Witson and R. P. Jackson, for defendant. Cox, J. John F. McGee gave a general authority to W. S. Jackson, an attorney, to sell his property, being part of lot four in square ninety-nine, in Washington, D. C. On Friday evening, February 17th, G. W. Stickney informed McGee that he had sold his property for him and arranged for a meeting between McGee and the proposed purchaser the next morning. On Saturday morning between the hours of nine and ten o'clock McGee met with James P. Ryon, complainant, and the result was a sale by McGee to Ryon, a memorandum of which, in writing, was sent by McGee about the middle of the same day. Meanwhile Jackson had undertaken to sell the same property, between the same hours of nine and ten o'clock, to Charles S. Drury, and executed the following paper: "Received

of Thomas. E. Waggaman for Charles S. Drury, the sum of fifty dollars, being deposit on part of lot four in square ninety-nine, sold free of all incumbrance to date for $2,000 cash, being the corner part of lot four, front forty-two feet on Twenty-first by eightynine feet on M. street; title to be perfect or deposit refunded. Ten days allowed to close sale.

Neither McGee nor Jackson knew what the other had done until late that evening, when Jackson informed McGee of his proceedings. It is claimed on behalf of Drury that McGee then ratified the act of Jackson. Ryon claims on the contrary that his verbal agreement with McGee was prior in time to Jackson's arrangement with Drury. If the latter be true, then even supposing that Jackson's contract would be operative under other circumstances, McGee's verbal arrangement followed up by a written memorandum on the same day, would entitle Ryon to the preference. It is however very difficult to determine by the testimony which transaction was prior in point of time, but it is made unnecessary to determine it by other considerations.

We think that a general authority to an agent to sell real estate is simply an authority to find a purchaser, and is not an authority to conclude and execute a contract of sale which shall bind the principal. We adopt the views on this subject of the Supreme Court of California in the case of Duffy v. Hobson, 40 Cal. 240. It appeared there that the owner of the real estate, Hobson, had told Atkins, his agent, to sell his lots for $2,000. The agent, Atkins, sold the premises to Duffy at that price, and executed and delivered, in the name of Hobson, a contract in writing agreeing to convey the lots to him. The principal repudiated the agent's act and the purchaser, Duffy, brought an action for

damages for his refusal to convey the title. The court say: "We are of opinion that the authority given to Atkins to sell the property was not sufficient to authorize him to execute a contract of sale in the name of Hobson, or to sign the name of the latter to any contract of sale. We think that it was no more than a mere authority from Hobson to find him a purchaser at the price of $2,000.

"This is the settled construction put upon the employment of professional brokers to sell' or to 'close a bargain' concerning real estate, and we know of no reason why the same language employed to express the authority of any other agent to sell' should have a more extended meaning. Besides a sale of real estate involves the adjustment of many matters in addition to fixing the price at which the property is to be sold. The deed of conveyance may be one with full covenants of seisin and warranty, or only those covenants imported by the use of the words 'graut, bargain and sell, under our statute, or it may be by quit-claim merely. The vendor may be unwilling to deal with a particular proposed purchaser on any terms. He may consider him pecuniarily unable to comply with the contract, even if the title proves satisfactory, and he may decline to bind himself to convey to such purchaser at the end of the time necessary to examine the title, because he might thereby in the meantime lose an opportunity to sell to some other person who might desire to purchase, and in whose good faith and ability to pay he reposed entire confidence. All these and many other like considerations might, and usually do, arise in the mind of the vendor.

"Now, a mere authority 'to sell' can hardly confer power upon the agent to determine all these matters for the principal, so as to bind him by his determination and yet, unless the agent do have such power, he cannot make a definite contract or one that could be said to have the certainty requisite to deprive the principal of his option to ultimately decline to make the sale. To give to the mere words 'to sell' such a broad signification as that would be to invest the agent with powers of that ample and discretionary character usually only conferred with caution and by means of a general letter of attorney, where the terms are distinctly expressed.

"While it is true that a power to sign the name of a principal to a contract of sale may be given verbally, we think that the words used for the purpose should be distinct and clear in their meaning and import, and should with the requisite degree of certainty manifest the intention of the principal to do something more than merely to employ a broker."

In addition to this we have decided a similar question before in an action brought by a real estate agent to recover his commission, where he had found a purchaser, but the principal had there declined to execute the contract. We held that the agent had performed his contract and was entitled to his compensation by finding a suitable purchaser. If this is the extent of his obligation it is also the limit of his powers.

The consequences is that Jackson's act in executing the contract, whether in his own name or in the name of McGee, would be simply a nullity. Any ratification afterward, and after McGee had executed his written agreement would avail nothing, because it could not interfere with the intervening rights created by McGee's written contract. We therefore are of opinion that the decree below must be reversed, and the cause remanded for further proceedings."

VALIDITY OF VERBAL CONTRACT FOR SALE OF GOODS.

VERMONT SUPREME COURT, MAY TERM, 1882.

BASSETT V. CAMP.*

The Vermont statute of frauds provides that "no contract for the sale of goods for the price of $40 or more shall be valid unless the purchaser shall accept and receive part of the goods so sold," etc. Held, that to make a valid sale of property, worth $40 or more, in the possession of a third party, there being nothing in the transaction but a verbal contract, such third party must agree to hold the property as the agent or bailee of the buyer.

ACTION, general assumpsit, to recover the sum of

$146 for a quantity of hay, straw and grain, which the plaintiff claimed that he sold and delivered to the defendant. The plaintiff testified, substantially, as follows:

That one Merrill Eastman was indebted to him in a large sum; that he brought a suit against him and attached the above described property; that by the consent and agreement of the parties the same was sold on the writ; that at said sale he bought the said property: that a few days after said sale he, in company with the officer who made the sale, went to Eastman's to get said property; that said Eastman then told him if he would let the same remain he would get the defendant in this case to stand in for or become responsible to him for it; that on that assurance the plaintiff went away without taking any of said property with him, and leaving the same where it was at the time of the sheriff's sale; that in the course of a few days or weeks he saw the defendant in Barre village and asked him if he would stand in for the property which he (the plaintiff) had bought at Eastman's auction, that defendant replied that he would, and told the plaintiff to leave a bill at George W. Bassett's office in Barre, and when he (the defendant) came to Barre village he would go there and pay the plaintiff, or give his note for the same and leave it with the said George Bassett for plaintiff; that the defendant soon after called at said Bassett's office to see the account, but did not do any thing further about it. This conversation was denied by the defendant.

There was evidence tending to prove that the defendant was, at the time he had agreed to “stand in " for the said property, the owner of the stock on the farm where said Eastman lived and where said property was situate; that about that time he became the owner of said farm; that the property was fed out, or used, on said premises. But the exact relation between defendant and Eastman, as to carrying on said farm, was not particularly explained. The evidence also tended to prove that the defendant agreed to take the property where it was at the time plaintiff bid it in, at the price for which the plaintiff bid it in. All this evidence came from the plaintiff. Judgment below was for plaintiff.

J. A. and G. W. Wing, for defendant.
George W. Bassett, for plaintiff.

ROWELL, J. It is contended on behalf of the defendant that the evidence did not support the charge. We have not examined very carefully to see whether this contention is well founded or not, because we are well persuaded that the exceptions do not disclose a sufficient acceptance and receipt of the property to tate the case out of the statute of frauds.

All the cases agree that the receipt and acceptance of goods, to satisfy the terms of the statute, must be proved by clear and unequivocal acts on the part of * Appearing in 54 Vermont Reports.

the buyer. It was not sufficient in this case that the defendant purchased the property absolutely, and agreed to pay therefor a stipulated price, and to receive it where it was, and that plaintiff, relying thereon, forbore further care and control thereof.

At the time of the sale to defendant, the property was in the actual possession of Eastman, where plaintiff had permitted it to remain from the time he purchased it at sheriff's sale. There was testimony tending to show that at the time defendant purchased it he owned stock on the farm where Eastman lived, and that about that time he became the owner of the farm, and that the property was used on the premises; but it does not appear what the relations were between the defendant and Eastman, nor by whose authority the property was used up. There is nothing to show that Eastman was in any sense the defendant's agent, so that his possession could be said to be the defendant's possession. For the purposes of this case, Eastman must be taken to be plaintiff's bailee, and in his possession plaintiff's possession. Now, when the goods are in the possession of a third person at the time of sale, there must be an agreement by such third person to hold as the bailee of the buyer; an attornment, so to speak, to him. In Bentall v. Burn, 3 B. & C. 423, a hogshead of wine lying in the warehouse of the London Dock Company was sold for £13, and a delivery order given to the vendee, but there was no contract in writing. The court said: "There could not have been any actual acceptance of the wine by the vendee until the dock company accepted the order for delivery, and thereby assented to hold the wine as the agents of the vendee. They held it, originally, as the agents of the vendors; and as long as they continued so to hold it, the property was unchanged."

In Farina v. Home, 16 M. & W. 119, goods were shipped by the plaintiff from abroad to England, on the verbal order of the defendant, at a price exceeding £10. They were sent to plaintiff's shipping agent in London, who received them and warehoused them with a wharfinger, informing the defendant of their arrival. The wharfinger handed to the shipping agent a delivery warrant, whereby the goods were made deliverable to him or his assignees by indorsement, on payment of rents and charges. The agent indorsed and delivered said warrant to the defendant, who kept it several months, and notwithstanding repeated applications, did not pay the price of the goods nor the charges thereon, nor return the warrant, but said he had sent it to his solicitor, and that he intended to resist payment, for that he had never ordered the goods, and that they would remain in bond for the present. Parke, B., said: "This warrant is no more than an engagement by the wharfinger to deliver to the consignee or any one he may appoint, and the wharfinger holds the goods as the agent of the consignor, who is the vendor's agent, and his possession is that of the consignee until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold for him. Thed, and not till then, the wharfinger is the agent or bailee of the assignee and his possession that of the assignee, and then only is there a constructive delivery to him."

No acts of the party sought to be charged are proved. We are presented with a naked verbal agreement. In order to satisfy the statute, when the property is not in the purchaser's possession, there must be something more than mere words. The purpose of the statute was to prevent frauds and perjuries; but if nothing more is required than mere words, how is that purpose to be effectuated? Declarations as to acceptance and receipt in this case, constituted a part of the contract, and are obnoxious to all the evils and

every objection that it was the policy of the statute to provide against.

Judgment reversed, and cause remanded.

NEBRASKA SUPREME COURT ABSTRACT. APRIL, 1882.

DIVISION FENCE - LANDOWNER BUILDING, NO ACTION AT COMMON LAW FOR CONTRIBUTION.- A person building a division fence between his own and the lands of his neighbor cannot recover at common law any portion of the expense from his neighbor. At common law the tenant of a close was not bound to fence against an adjoining close, unless by force of prescription; and if bound by prescription to fence his close he was not bound to fence against any cattle but such as were rightfully in the adjoining close. If not bound at common law to fence his land, he was nevertheless bound, at his peril, to keep his cattle on his own grounds, and prevent them from escaping. The legal obligation of the tenants of adjoining lands to make and maintain partition fences, where no prescription exists, and no agreement has been made, rests entirely on positive provisions by statute, and trespass will lie against the owner of cattle entering on the grounds of another, though there be no fence to obstruct them, unless he can protect himself, by statute, or prescription, or agreement. The public have no rights, even in a public highway, but a right of way or passage; and if cattle be placed in the highway for the purpose of grazing, and escape into an adjoining close, the owner of the cattle, unless he owns the soil of that part of the highway on which he placed his cattle, cannot avail himself of the insufficiency of the fences in excuse of the trespass. See 3 Kent Com. 438; Stafford v. Ingersol, 3 Hill 38; Hilton v. Aukesson, 27 D.T. (N. S.) 519; Rust v. Low, 6 Mass. 90; Minor v. Deland, 18 Pick. 266; Thayer v. Arnold, 4 Met. 589. Burr v. Hamor. Opinion by Maxwell, J.

STATUTE OF FRAUDS - PROMISE TO INDEMNIFY FOR CONVEYANCE OF LAND ΤΟ THIRD PERSON. - The plaintiff and defendant, being the owners of a large number of lots in severalty in W. which would be materially enhanced in value by the location of a depot near them, verbally agreed to convey the necessary lots for that purpose gratuitously, if so required, to the railroad company. It was agreed that if the lots conveyed by either exceeded in number those conveyed by the other, the one conveying the less number of lots to the company should convey to the other such a number of lots as would equalize the number of lots conveyed between the two. In pursuance of that agreement the plaintiff conveyed to the railroad company 36 lots, thus materially enhancing the value of the defendant's lots. In an action against defendant for the value of one-half the lots conveyed, held, that defendant could not set up that the contract was void under the statute of frauds. This defense would be available in an action for specific performance of the contract, but not for the price of property conveyed to a third person at the request of the promissor. Suppose the contract had been to convey to the defendant, could he, after receiving a conveyance, defeat the recovery of the consideration by pleading the statute? Where a verbal contract is made for the conveyance of land, and the land is conveyed accordingly, the statute is no defense to an action to recover the price. Bracket v. Eraus, 1 Cush. 79; Preble v. Baldwin, 6 id. 549; Linscott v. McIntyre, 15 Me. 201; Thayer v. Viles, 23 Vt. 494; Morgan v. Bityenberger, 3 Gill, 350; Thomv. Dickinson, 14 Barb. 90; Gillespie v. Bartle, 15 Ala. 276; 3 Pars. on Cont. 35. And it seems to

as

make no difference whether the land is conveyed to the person making the promise, or at his request to some one else. Held also, that the contract was not void as being against public policy. St. Johns, etc., R. Co. v. Ryan, 11 Kans. 602; Leavenworth Co. v. Miller, 7 id. 479; Fuller v. Dame, 11 Pick. 472. Harris v. Roberts. Opinion by Maxwell, J.

In

SURETYSHIP -WHEN OFFICIAL SURETY OF SHERIFF LIABLE FOR WILLFUL TRESPASS.- A sheriff under process against the property of A. seized property which A. had mortgaged to B. and sold the same notwithstanding he had knowledge of the title of B. Held that the official sureties of the sheriff were liable to B for the act of the sheriff. In People v. Schuyler, 1 Comst. 173, it was held that "where a sheriff, having in his hands a process against the property of the defendant therein, seizes by virtue thereof the goods of another person, he is guilty of official misconduct, and he and his sureties thereby become liable on his official bond." To the same effect are the following: Carmack v. Commonwealth, 5 Bin. 184; Commonwealth v. Stockton, 5 Mon. 192; State v. Mason, 25 Wis. 684; Moulton v. Jose, 25 Me. 76; Charles v.Haskins, 11 Iowa, 329; Skinner v. Phillips, 4 Mass. 68. And our own decisions upon the question are in accord with the view that when a sheriff, in the performance of his official duty, is guilty of misconduct resulting injuriously, whether to one like a party to a suit having a direct inerest in his action, or to a stranger to the proceeding, both he and his sureties are auswerable therefor. Kane v. Union Pac. R. Co., 5 Neb. 105, where one of the conditions of the bond of Kane, as county treasurer, was the same as the one now under consideration, viz., that he shall faithfully and impartially without fear, favor, fraud or oppression, discharge all the other duties now or hereafter required of his office by law,' it was held that the exaction of illegal fees as treasurer rendered both him and his sureties liable. Again, in the case of Huffman v. Kopplekom, 8 Neb. 344, where it was shown that the defendant, as sheriff, holding a process authorizing him to arrest one Clark, who was charged with a felony, through carelessness and unlawfully arrested the plaintiff, and in so doing seriously wounded him, it was held that both the sheriff and his sureties were liable in an action on his bond. Still another case, possibly more directly in point and recently decided, is that of Noble v. Himoe, 10 N. W. Rep. 499, in which a constable, with an execution in his hand, against the property of S., the keeper of a drug store, seized a lot of patent medicines held by the druggist for sale on commission, although duly notified that they belonged to another. It was held that the constable and his sureties were liable to the owner of the medicines for their value. Turner v. Killian. Opinion by Lake, C. J.

VERMONT SUPREME COURT ABSTRACT. FEBRUARY TERM, 1882.*

EXEMPTION EXCHANGE OF EXEMPT PROPERTY FOR NON-EXEMPT.-A colt not exempt under the statute as being kept for team work is not exempt because it was received in exchange for a horse that was exempt. If one claims property to be exempt he must show affirmatively all the facts necessary to bring his property within the statute of exemptions. Connell v. Fisk. Opinion by Rowell, J.

NUISANCE-INJURY TO HIGHWAY NOT IMPEDING PUBLIC.- An information was filed against the respondent for obstructing an ancient water-course, and * Appearing in 54 Vermont Reports.

thereby injuring the highway. Held, the act complained of could not constitute a public nuisance, unless the travelling public were to some extent impeded, hindered, or obstructed in the use of the highway for the purpose of travelling over it. See Rex v. Tindall, 1 N. & P. 719; S. C., 6 A. & E. 143; Rex v. Russell, 18 Jur. 1022; Graves v. Shattuck, 35 N. H. 257. State of Vermont v. Smith. Opinion by Royce, C. J.

SALE- OF PERSONAL PROPERTY BY HUSBAND TO WIFE TITLE WITHOUT CHANGE OF POSSESSIONEXEMPT PROPERTY.— Under the Vermont statute nine sheep, owned by a debtor, are exempt from seizure for debt. A man sold nine lambs for a valuable consideration to his wife, and his creditor afterward attached seven of these and eleven others, the increase of the nine. Held, that the sale was valid; that it vested a perfect title in the wife. Richardson v. Merrill's Estate, 32 Vt. 27; Richardson v. Wait, 39 id. 535; Child v. Pearl, 43 id. 224; Bent v. Bent, 44 id. 555; Spooner v. Reynolds, 50 id. 437. Held also, that no change of possession was required, because the nine sheep were exempt, and the ownership of the young followed their dams. If they were not exempt at the time of the sale, because the husband owned thirty others, they were when attached, and this would inure to the benefit of the wife. As between the vendor and vendee the sale of the uine lambs was valid; hence the vendor never was the owner of the increase of these nine, which was necessary in order to require a change of possession. See Bellows v. Wells, 36 Vt. 599; Fitch v. Burk, 38 id. 683; Hull v. Hull, 48 Conn. 99; Kendall v. Samson, 12 Vt. 515; Ridout v. Burton, 27 id. 383; Foster v. McGregor, 11 id. 595; Jewett v. Guyer, 38 id. 209; Wilder v. Stafford, 30 id. 399. Leavitt v. Jones. Opinion by Royce, C. J.

SURETYSHIP -SURETIES ON OFFICIAL BOND OF DE FACTO OFFICER LIABLE- ESTOPPEL. One legally elected a constable and who serves as such, though he has neglected to furnish a bond within the time prescribed by the statute, the selectmen never having required it, is a de facto if not a de jure officer; and the sureties on his bond given several months after his election are liable for his delinquencies in appropriating the public funds to his own use. If the bond were not valid by force of the statute, it would be at common law. In State v. Bates, 36 Vt. 397, where the State treasurer had failed to take the oath of office required by the Constitution, it was held that the sureties on his bond could not take advantage of this omission of duty. The same position was taken by the court in Lyndon v. Miller, 36 Vt. 329. In Green v. Wardell, 17 Ill. 278, where sureties signed the bond of one who acted as a justice of the peace and as such collected money, it was held that they were liable on their bond even though he was not legally elected, nor commissioned, nor sworn. The court said: "By signing the bond they acknowledged his rights to the office and to discharge its duties, and as such recommended him to the public. They at least shall not be heard to say that although they signed his bond and thereby induced others to put money in his hands,relying on the bond for its safety, still he was not elected, was not commissioned, was not sworn — that he was not in fact a justice." In Corbitt v. Carroll, 50 Ala. 315, the same doctrine was laid down in a case where the appointment of a guardian, who acted as such, was void. In Jones v. Scapland, 6 Humph. 195, where a person ineligible to the office of sheriff was elected, sworn, gave bond and collected taxes which he misappropriated, it was held that his sureties were liable for the money so collected. In Mayor of Homer v. Merritt, 27 La. Ann. 568, it was held no defense to the

sureties of a town collector that the taxes collected were not duly assessed, or that the collector was not legally entitled to the office. In State v. Rhodes, 6 Nev. 35, when the State treasurer was re-elected, recommissioned, re-sworn and acted under the new election, but failed to file a new bond in time, which by law worked a forfeiture of his office, it was held that he did not hold over as of the former term of office, but was under his new election an officer de facto, and that having subsequently given a new bond reciting his new election, his sureties thereon were estopped to deny his holding de jure as of the new term. The general doctrine is laid down in the following cases: United States v. Maurice, 2 Brock. 96; United States v. Tingey, 5 Pet. 115; United States v. Bradley, 10 Pet. 343; Kelly v. State, 25 Ohio St. 567; Inhabitants, etc., v. Fleming, 8 Gray, 613; Commissioners Ramsey Co.v. Brisbin, 17 Minn. 451. It is an elementary principle that a voluntary bond made upon good consideration, and not in contravention of the policy of the law or the prohibitions of a statute, is a valid instrument binding the makers to the performance of its conditions. The bond in suit is precisely within this rule. Bank v. Smith, 5 Allen, 413; Pritchell v. People, 1 Gillman (Ill.) 525; Cobb v. Curtis, 4 Littell, 235; State v. Fredericks, 8 Iowa, 553. Town of Weston v. Sprague. Opinion by Powers, J.

MINNESOTA SUPREME COURT ABSTRACT. MAY 30, 1882.

EASEMENT-VERBAL LICENSE TO FLOW LAND NOT

— EQUITABLE RELIEF.- Plaintiff's grantor verbally promised and agreed with defendants that if they would erect a good custom mill at a certain point, he would give them the privilege of flowing his land so long as he would maintain such mill. The terms of the agreement were general and indefinite. Neither the height of the dam nor extent of the flowage allowed appeared. Defendants relying on said agreement, and in part induced thereby, erected on their own land adjoining, a dam and a mill at great cost. Held, that the agreement created no easement in the land of plaintiff, but took effect as a parol license only. Held also, that defendants were not entitled to equitable relief on the ground of part performance, by reason of the terms of the agreement being too indefinite, and because the part performance was not influenced solely by the agreement. A license creates no estate in lands. It is a mere power or authority founded on personal confidence, not assignable and revocable at pleasure, unless subsidiary to a valid grant, to the beneficial enjoyment of which its exercise is necessary, or unless executed under such circumstances as to warrant the interposition of equity. This is the result of the best considered cases. The doctrine of the early cases, which converted an executed license into an easement, is now generally discarded as being "in the teeth of the statute of frauds." And referring to these decisions, Mr. Chitty says, concisely: "However a court of equity might under strong circumstances interfere by injunction and decree a conveyance, it is clear that such a doctrine at law is not tenable." 1 Chit. Pr. 339; Cook v. Stearns, 11 Mass. 536; Mumford v. Whitney, 15 Wend. 380; Wolf v. Frost, 4 Sandf. Ch. 72; Foot v. Railroad Co., 23 Conn. 214; Bridges v. Purcell, 1 Dev. & B. (N. C.) 492; Hazelton v. Putnam, 3 Pin. (Miss.) 120; Woodmand v. Seely, 11 Ill. 163; Wood v. Leadbetter, 13 M. & W. 837; Wiseman v. Lucksinger, 84 N. Y. 31. In cases where the license is connected with a valid grant, as of chattels or fixtures, upon the land of the licensor, susceptible of being removed, it is subsidiary to the right of property, and irrevocable to the extent neces

sary to protect the licensee, and saves to him the right of entry-the right of possession following the right of property. Nettleton v. Sykes, 8 Metc. 35; Heath v. Randall, 4 Cush, 196; but where it is sought to couple with a license a parol grant of an interest in the realty -the attempted grant being void-the transaction remains a mere license. A license is of course always a protection for acts done under it, and before revocation. Pierpont v. Barnard, 2 Seld. 279. In cases however of what are sometimes called negative easements, which are extended on the land of the licensee, a different rule prevails; as where a man has an easement of light and air upon or over an adjacent lot he may abandon the same, and license the erection by his neighbor of a building, which shall extinguish right, and the license become irrevocable. Morse v. Copeland, 2 Gray, 302; Goddard on Easem. 472. Nor is it material that a mere license is or is not in writing, or upon a consideration. In Jackson v. Babcock, 4 Johns. 418, there was a sealed instrument, and in Wiseman v. Lucksinger, 84 N. Y. 31, there was both a writing and a consideration; but both were held licenses and revocable. In such cases the question is one of interpretation as to the intent of the parties as evidenced by the writing, and as Chancellor Kent remarks, the distinction between an easement and a license is sometimes quite subtle. And so in a suit in equity brought to confirm rights and assure an interest, as upon a part performance of a parol agreement alleged to be taken out of the statute of frauds (and otherwise void as a grant, but valid as a license), the question of interpretation of the terms of the agreement, and the intent of the parties becomes a material one in the case. Jackson v. Railroad Co., 11 Am. Leg. Reg. 374. Johnson v. Skillman. Opinion by Vandenburgh, J.

GIFT OF DEBT BY DELIVERING AGREEMENT UNDER SEAL TO RELEASE.-J. was indebted to M. in the sum of $13,333, for which M. had security in the way of a conveyance of real estate from U., and J. M. executed an instrument under seal and delivered it to J., reciting that in consideration of the payment of $3,664 by J. and of one dollar by U., he acknowledged that the whole sum of $13,333 had been paid him except the sum of $5,755, and agreed to reconvey to J. the real estate upon the payment of the last-mentioned sum. Held, that the agreement was evidence of an executed gift pro tanto of the debt, though the instrument was voluntary. It was the privilege of the creditor, if he chose, to make such gift, and evidence the execution of it by a receipt or writing under seal delivered to the debtor, which in such cases may be the only delivery of which the subject is capable. Gray v. Barton, 55 N. Y. 71: Ferry v. Stephens, 65 id. 325; Green v. Langdon, 28 Mich. 226; Stewart v. Hidden, 13 Minn. 45. prey v. Lamprey. Opinion by Vandenburgh, J.

Lam

SLANDER CHARGE OF FALSE SWEARING NOT ACTIONABLE PER SE.- The complaint charged that defendant spoke in the hearing of others concerning plaintiff these words: He has sworn falsely in the case with my brother," meaning that he had sworn falsely in a lawsuit, etc. Held, that the words were not actionable per se. To render words actionable per se they must impute a crime to the person of whom they are spoken in such terms, that without the aid of an innuendo, the nature of the offense charged is obvious. They must carry upon their face an open and direct imputation of a crime. The crime here attempted to be charged is perjury. Perjury is the willful giving under an oath or affirmation, legally imposed, of false testimony material to the issue or point of inquiry. The following elements are essential to constitute this crime: First, the oath must be false; second, it must have been legally imposed; third, the intention must have been willful. Now the words charged contain the