complainant, will be reversed for the same error that required the reversal of the decree of foreclosure and sale. Appeal from certain decrees dismissed and one decree of U. S. Circ. Ct., N. D. Illinois, reversed. Chicago, Danville and Vincennes Railroad Co. v. Fo8dick. Opinion by Matthews, J.

PRACTICE -CALENDER - ADVANCING UNDER RULE 32.-Motion to advance under Rule 32 denied. Rule 32 applies only to cases which have been remanded by a Circuit Court to a State Court, or dismissed, under the authority of section 5, of the act of March 3, 1875. This is an appeal from a decree on the merits in a suit removed from a State Court to the Circuit Court. The record shows that a motion to remand was denied, and that the cause was regularly heard and decided. Motions under this rule should be accompanied by an agreed statement of the case, or by such extracts from the record as will show that the case is one to which the rule is applicable. Appeal from U. S. Circ. Ct., Iowa. Call v. Palmer. Opinion by Waite, C. J.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
MAY, 1882.

BROKER- -WHEN REAL ESTATE BROKER ENTITLED TO COMMISSION.- Defendant employed plaintiff as a real estate broker to sell its church building and lot. Plaintiff found one P. who had some intention of buying the estate for his private business purposes but abandoned the idea. Afterward a committee negotiated a purchase of the property for preservation as a historical monument but not having enough money to pay the purchase price a mortgage back was necessary. A responsible person to execute the mortgage note being required P. was induced to give his name as surety, and this was accomplished by his taking the conveyance to himself and executing back the mortgage. Held, that this was not a sale to P. in such a sense as to entitle plaintiff to commission as broker on the price received. Under the contract implied by the employment of a person as a broker to sell real estate as modified by usage, the broker becomes entitled to his commissions when he has found a purchaser and has brought the parties together, if a sale is made to the purchaser. But he is not entitled to recover, unless he finds and introduces a person who becomes a purchaser. Tombs v. Alexander, 101 Mass. 255; Loud v. Hall, 106 id. 404. Vaux v. Old South Society. Opinion by Morton, C. J.

COPYRIGHT—EXHIBITED PLAY MAY NOT BE REPRODUCED FROM MEMORY.- One who has obtained a copy of a play which has been produced on the stage, but has not been published, from memory alone, is not entitled to exhibit the same, and an injunction will issue to prevent his doing so. Keene v. Kimball, 16 Gray, 345, overruled. The question decided in Keene v. Kimball had never until then been determined in any reported case; it had been discussed in Keene v. Wheatley, 9 Am. Law Reg. 33, where a decision of it had not been necessary to dispose of that case. The case of Keene v. Kimball has not since been reaffirmed here nor elsewhere, nor has it been distinctly denied by the decision of any adjudicated case, except that of French v. Connolly, decided by the Superior Court of New York, which is not the final tribunal in that State. An examination will however show various and conflicting opinions expressed by jurists as well as by text writers of high respectability upon the question involved. Palmer v. De Witt, 2 Sweeney, 530, and 47 N. Y. 532; Craine v. Aiken, 2 Biss. 215; Shook v.

Rankin, 6 id. 477; Boucicault v. Fox, 5 Blatch. 98. The decision in Keene v. Kimball must be sustained if at all upon the ground that there is a distinction between the use of a copy of a manuscript play obtained by means of the memory or combined memories of those who may attend the play as spectators, it having been publicly represented for money, and of one obtained by notes, stenography or similar means by persons attending the representation; that in the former case the representation of the play, the copy of which was thus obtained, would be legal, while in the latter it would not be. The theory that the lawful right to represent a play may be acquired through the exercise of the memory, but not through the use of stenography, writing or notes appears entirely unsatisfactory. The author has a right to believe that in purchasing their tickets of admission, persons do for the pleasure or instruction that the performance of his drama will afford; and that they do not do so in order to invade his privilege of representation which, as it is of value, he must desire to preserve. The special use made by the author for his own advantage of his play by a representation thereof for money is not an abandonment of his property or a complete dedication of it to the public, but is entirely consistent with an exclusive right to control such representation. Roberts v. Myers, 23 Am. Law Reg. 397. The ticket of admission is a license to witness the play but it cannot be treated as a license to the spectator to represent the drama if he can by memory recollect it, while it is not a license so to do if the copy is obtained by notes or stenography. In whatever mode the copy is obtained, it is the use of it for representation which operates to deprive the author of his rights. Tompkins v. Halleck. Opinion by Devens, J.

EASEMENT RIGHT OF WAY BY NECESSITY.— A right of way of necessity across the lands of a grantor is not a right to go indiscriminately over any part of the land of the grantor, but a certain, definite, fixed way, defined either by the agreement of the parties, or by the designation by the grantor, or upon his failure to locate, by the grantee. Jones v. Percival, 5 Pick. 485; Nichols v. Luce, 24 id. 102; Wynkoop v. Burger, 12 Johns. 222. Chase v. Perry. Opinion by Lord, J.

PARTNERSHIP - FIRM GOODS NOT LIABLE TO LEVY FOR INDIVIDUAL DEBT.- The seizure and actual removal of specific articles of a partnership, on a writ or execution against one member thereof for his private debt, and the exclusion of the firm from the possession of its property, are a trespass. The authorities in support of this proposition seem more in accordance with just legal principles than those which are opposed to it. Bank v. Carrollton Railroad Co., 11 Wall. 628; Cropper v. Coburn, 2 Curt. C. C. 465; Burnell v. Hunt,

5 Jur. 650; Garvin v. Paul, 46 N. H. 158; Durborrow's Appeal, 84 Penn. St. 404; Haynes v. Knowles, 36 Mich. 407; Levy v. Cowan, 27 La. Ann. 556. Sanborn v. Royce. Opinion by C. Allen, J.

IOWA SUPREME COURT ABSTRACT. JUNE, 1882.

CONTRACT-WHEN OPTION SALE IS NOT ILLEGAL.— In a contract for the purchase and sale of goods to be thereafter delivered, an option as to the time of delivery is not illegal, if there be an agreement to make actual delivery. The optional contracts that are void are such as do not contemplate the actual delivery of the commodity purchased, but rather contemplate that the subjcet of the contract is not intended to be delivered. Logan v. Musick, 81 Ill. 415; Pixley v. Boynton, 79 id. 353; Corbitt v. Underwood, 83 id. 324; Bigelow v. Bene

ESTOPPEL

PLACING OBSTRUCTION IN STREET.- In an action by a city against one who placed an obstruction in a street, to recover the amount of a judgment recovered against the city by a person injured by such obstruction, held, that defendant could not set up as a defense that the city was guilty of a contributory negligence because it had notice of the obstruction and failed to remove the same. Where a person places an obstruction in a street of a city, he is not in a condition to demand of the city that it shall remove the obstruction at its own expense if it has knowledge of it, and in case of failure to remove it, after such knowledge, that it shall be precluded from looking to him for indemnification if it is adjudged to pay and does pay damages for an injury caused by the obstruction. Swanzey v. Chace, 16 Gray, 304; Wobern v. Railroad Co., 109 Mass. 285; Lowell v. Railroad Co., 23 Pick. 24. City of Sioux City v. Weare. Opinion by Adams, J,

-REPRESENTATION

FRAUD AS TO VALUE.- In an action upon a promissory note given for two shares of corporate stock, the defense was fraud in procuring the note, the fraud consisting in this, that the person who negotiated the sale of the stock represented to the defendant that the stock was valuable, whereas it was in fact worthless. Held, not a defense. Under ordinary circumstances a statement by a seller of property that it is valuable is to be treated as a mere opinion, and not as a false representation, however insincere the seller may have been in his statement. In Brown v. Castles, 11 Cush. 350, Metcalf, J., after stating the rule that where a seller makes a known misrepresentation of a material fact, not within the observation of the buyer, an action will lie, says: "This rule is not applied to statements made by sellers concerning the value of the thing sold, it always being understood the world over, that such statements are to be distrusted." So again in Manning v. Albee, 11 Allen, 522, Gray, J., said: "This court has repeatedly recognized and acted upon the rule of the common law by which the mere statements of a vendor, either of real or personal property, not being in the form of a warranty, as to its value, are assumed to be so commonly made by those holding property for sale in order to enhance its price that any purchaser who confides in them is considered too careless of his own interests to be entitled to relief, even if the statements are false and intended to deceive." Van Vechten v. Smith Opinion by Adams, J.

NEGLIGENCE- EVIDENCE OF ANIMALS UNLAWFULLY AT LARGE. In an action against a railroad company for killing horses by the negligent running of one of its trains, it appeared that plaintiff had turned his horses loose in a village street and they had lain down in the railroad track where they were killed. Held, that a village ordinance prohibiting the running at large of animals was admissible to establish the defense of contributory negligence on the part of plaintiff. See Halloran v. Railroad Co., 2 E. D. Smith, 257; Bowman v. Railroad Co., 37 Barb. 37. The case of Keeler v. Railroad Co., 42 Iowa, 420, distinguished. Van Horn v. Burlington, Cedar Rapids & Minnesota. Railroad Co. Opinion by Adams, J.

MICHIGAN SUPREME COURT ABSTRACT. JUNE, 1882.

CONTRACT-HARD BARGAIN BY CONFIDANT-WHEN NOT ENFORCED.- W., in the arrangement of a settlement of a criminal charge against S., acted as the

conscionable bargain made at the time between S. and W. to the injury of S. would not be enforced. See Tate v. Williamsou, L. R., 2 Ch. 55; Gibson v. Jeyes, 6 Ves. 266, 278; Espey v. Lake, 10 Hare, 260; Sears v. Shafter, 6 N. Y. 268; Freelove v. Cole, 41 Barb. 318; Casey v. Casey, 14 III. 112; Ladd v. Rice, 57 N. H. 374; Wartenberg v. Spiegel, 31 Mich. 400. Storrs v. Scougale. Opinion by Cooley, J.

CONTRACT-CONSTRUCTION-"MORE OR LESS"-VALID

ITY.

By an executory contract for the purchase and sale of lumber, plaintiffs agreed to furnish, and defendant to purchase," 500,000 feet more or less" of lumber. Plaintiffs delivered 473,000 feet. Of this amount 300,000 feet were used and paid for by defendant, the remaining 173,000 feet were refused. Held, that it was competent for the parties to make the contract and that the amount furnished was a sufficient compliance with the terms thereof. Where parties enter into executory arrangements for the sale of chattels to be obtained subsequently by the seller and designedly leave the tainment to the future act of the seller under and exact quantity unfixed and see fit to remit its ascersubject to a stipulation that it is to be so much “more or less" their practical construction of it ought to have great weight. Brawley v. United States, 96 U. S. 108; Cabot v. Winsor, 1 Allen, 546; Moore v. Campbell, 10 Exch. 223; 26 E. L. & E. 522; Bourne v. Seymour, 16 C. B. 337; Cockerall v. Ancompte, 2 C.B. (N. S.) 40; Morris v. Levison, L. R., 1 C. P. Div. 155; McConnell v. Murphy, L. R., 5 Priv. C. 203; Benj. Sales, $$ 691, 692. Rea v. Holland. Opinion by Graves, C. J.

CUSTOM Usage can never change the written stipulations of parties, though it may aid in the explanation of their terms, and perhaps add incidents in respect to which they are silent. Eager v. Atlas Ins. Co., 14 Pick. 141; Pavey v. Burch, 3 Mo. 447; Forrar v. Stackpole, 6 Me. 154; Randall v. Smith, 63 id. 105; s. c., 18 Am. Rep. 200; Booman v. Jenkens, 12 Wend. 566; Davison v. Kittle, 4 Hill, 107; Irwin v. Clark, 13 Mich. 10; N. Y. Iron Mine v. Citizens' Bank, 44 Mich. 585; and the requirement that it shall be certain, definite, uniform, and notorious is imperative. Kendall v. Russell, 5 Dana, 501; Parrott v. Thacher, 6 Pick. 426; Thwing v. Great Western Ins. Co., 111 Mass. 109. "Doubt must be wholly eliminated from the evidence adduced, or the usage is not well proved." Adams v. Pittsburgh Ins. Co., 76 Penn. St. 411. Ledyard v. Hibbard. Opinion by Cooley, J.

USAGE DOES NOT CHANGE CONTRACTS.

-

EQUITY CONVERSION OF REALTY INTO PERSONALTY BY WILL.- Where a direction was made in a will that testator's property should all be exchanged for money and interest bearing securities, held, that this direction effected an equitable conversion of the realty into personalty, and fixed upon it for all purposes of succession, distribution, and transfer the legal character of personalty and in any litigation concerning the property it must be dealt with as personalty and not as land, although an exchange was never in fact made. The direction that the exchange should be made was imperative and without condition, and though it was never in fact made, equity must consider that done which the testator lawfully directed. Doughty v. Buel, 2 P. Wms. 320; Whitdale v. Partridge, 5 Ves. 396; Lane v. Goudy, 9 id. 225; Thornton v. Hawley, 10 id. 129; Kirkman v. Miles, 15 id. 338; Ward v. Arch, 15 Sim. 389; Cring v. Lishe, 3 Wheat. 563; Tazerwell v. Smith, 1 Rand. 313; Bunce v. Vandeguft, 8 Paige, 37; Kane v. Goff, 24 Wend. 641; Bogerto v. Hertell, 4 Hill, 492; Stagg v. Jackson, 1 N. Y. 206; Hood v. Hood, 85 id. 561; Holland v. Craft, 3

Gray, 162; Warts v. Page, 19 N. J. Eq. 365; Dodge v. Williams, 46 Wis. 70. The direction for conversion was absolute; out and out; irrespective of all contingencies; and therefore sufficient to meet the somewhat particular requirements of the Pennsylvania cases. Blight v. Bank, 10 Penn. St. 414; Parkmoon's Appeal, 32 id. 455; Anewalt's Appeal, 42 id. 414; Jones v. Caldwell, 97 id. 92; and the death of the beneficiaries would not affect the application of the doctrine. Craig v. Leslie, 3 Wheat. 597; Marsh v. Wheeler, 2 Edw. Ch. 157; Phelps v. Pond, 23 N. Y. 69; Evans' Appeal, 63 Penn. St. 183. Shaw v. Chambers. Opinion by Cooley, J.

EQUITY BILL TO REVIEW DECREE FOR FRAUD.An original bill in the nature of a bill of review of a decree in partition the essence of which bill is that the commissioners appointed by the first decretal order acted fraudulently in dividing the property and deceived the court, and led it to cover their misconduct with the formal sanction of a decree, and that the defendants support and ratify this misconduct and insist on having and retaining the benefit of it, held, allowable. Eveland v. Stephenson, 45 Mich. 394; Richmond v. Taleur, 1 P. Wms. 734; Galley v. Baker, Cas. Temp. Talb. 199; Barnesley v. Powell, 1 Ves. Sen. 119; Manaton v. Molesworth, 1 Eden, 18: Massel v. Morgan, 3 Brown, Ch. R. 74; Kennedy v. Doley, 1 Scho. & Lef. 355; Harrison v. Corporation of Southampton, 21 El. & E. 343; Pearse v. Robinson, L. R., 1 Eq. Cas. 241; Colonial Bank of Australia v. Willan, L. R. 5 Pr. C. Cas. 417; Flower v. Lloyd, 6 Ch. Div. 297; French v. Shotwell, 5 Johns. Ch. 55; Loomer v. Wheelwright, 3 Sandf. Ch. 135; Pitcher v. Carter, 4 id. 1; Galatian v. Cunningham, Hopkins, 48; Dobson v. Pearce, 2 Kern 156; Hackley v. Draper, 60 N. Y. 88; Verplanck v. Van Buren, 76 id. 247; Carneal v. Wilson, 3 Litt. 85; Terry v. Commercial Bank of Ala., 92 U. S. 454; Pratt v. Ambrose, 5 Mason, 95; Clark v. Underwood, 17 Barb. 202; Mitf. Pl. 93; Story Eq. Pl., §§ 426, 428; Daniell, Ch. Pr. 173, and note 2, 1584, 1585; Earl of Bandon v. Becker, 3 Cl. & Fin. 479. Adair v. Cummins. Opinion by Graves, C. J.

MISTAKE OF LAW EQUITABLE RELIEF FIRE INSURANCE. (1) A mistake of law, made through the representations of an agent, may be corrected in equity. If an applicant for insurance correctly states his interest and distinctly asks for an insurance thereon, and the agent of the insurer agrees to comply with his request, and assumes to decide on the form of the policy, and by mistake of law adopts the wrong form, a court of equity will reform the instrument so as to make it insurance upon the interest named. Sias v. Insurance Co., 8 Fed. Rep. 183; Keith v. Globe Ins. Co., 52 Ill. 518; Snell v. Insurance Co., 98 U. S. 85; Oliver v. Ins. Co., 2 Curt. C. C. 277; Woodbury Savings Bank v. Insurance Co., 31 Conn. 517; Longhurst v. Insurance Co., 19 Iowa, 364. (2) A change of title which increases the interest of the insured, whether the same be by sale under judicial decree or by voluntary conveyance, does not defeat the insurance, as where the interest insured was that of a mortgagee, who afterward obtains the full title. See Heaton v. Insurance Co., 7 R. I. 503; Lockwood v. Insurance Co., 47 Conn. 564; Humphrey v. Insurance Co., 15 Blatchf. 504. U.S. Circ. Ct., Iowa, June, 1882. Bailey v. American Central Insurance Co. Opinion by McCrary, C. J.

* Appearing in 13 Federal Reporter.

MISTAKE- -OF LAW OF ANOTHER STATE ONE OF FACT CORRECTION OF BY EQUITY -NOTICE. (1) The mistake of a scrivener in one State as to the law of another State, is a mistake of fact. (2) The mistake of a scrivener in drawing a deed, whether it be a mistake of law or of fact, whereby he fails to carry out the previous agreement of the parties, may be corrected in equity; and oral evidence is admissible to prove the intention of the parties. Canedy v. Marcy, 13 Gray, 373; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Rumrill v. Shay, 110 id. 170; Wilcox v. Lucas, 121 id. 21. (3) Where, upon the face of the deed, it appears that the grantors intended to convey a fee, and by mistake they have failed to carry out their intention, the mistake may be corrected upon the evidence furnished by the deed itself. Allen v. Brown, 6 R. I. 386. (4) When the bill charges defendant with having notice of the true contract and intent of the parties to a deed when he made the levy, he takes by the levy the land of the debtor subject to all equities; and where the deed, on its face, discloses the intention, its record is notice to subsequent purchasers of the equity which that intention creates. Rumrill v. Shay, 110 Mass. 170. U. S. Circ. Ct., Massachusetts, August, 22, 1882. Sampson v. Mudge. Opinion by Lowell, C. J.

STATUTORY CONSTRUCTION CHINESE EMIGRATION ACT-MARITIME LAW.- (1) The prohibition of the act of Congress upon any master of a vessel bringing into the United States any Chinese laborer from any foreign port or place, means from bringing any Chinese laborer embarking at a foreign port or place, and does not apply to the bringing of a laborer already on board of the vessel when it touches at a foreign port. The object of the prohibitory act of Congress was to prevent the further immigration of Chinese laborers to the United States, not to expel those already here. It even provides for the return of such laborers, leaving for a temporary period, upon their obtaining certificates of identification. (2) A person shipping on an American vessel as one of the crew is within the jurisdiction of the United States. An American vessel is deemed a part of the territory of the State within which its home port is situated and as such a part of the territory of the United States. See Crapo v. Kelly, 16 Wall. 610. U. S. Circ. Ct., California, August, 1882. In re Ah Sing. Opinion by Field, J.

VERMONT SUPREME COURT ABSTRACT. FEBRUARY TERM, 1882.*

ATTACHMENT OF PROPERTY ALREADY ATTACHED. Where an officer attaches a chattel, and while lawfully holding possession thereunder, attaches it again on another writ against the same party, and keeps the chattel from him only while so entitled under the first attachment, held, the officer is not liable in trespass for the second attachment. It was no invasion of the possession or right of possession, as he had none. Defense could be made under the general issue and notice of justification of the first attachment without further justification as to the second. Hurd v. Fleming, 34 Vt. 169; Cox v. Hall, 18 id. 191; Van Brunt v. Schenck, 11 Johns. 377; Putnam v. Wiley, 8 id. 432. Luce v. Hoisington. Opinion by Veazey, J.

to sell or substitute it for other property. It was sold on an execution in favor of another party; the transaction was in good faith, and not to defraud creditors. Held, that the contract was valid; that it was a legitimate way of assisting an unfortunate debtor. Taylor v. Wait. Opinion by Rowell, J.

FALSE IMPRISONMENT — ESTOPPEL-PLEA OF JUSTIFICATION.—(1) The plaintiff was arrested in one county, and by his own request committed to the jail in another county. In an action for false imprisonment it was held that he had thereby waived the right to be imprisoned in the county where he was arrested. (2) If an officer justifies under a returnable process, his plea must show a return of the process according to its commands; but not so the plea of the officer's servant. If an officer to whom returnable process is directed would justify under it, he must show its return, else he is a trespasser ab initio; for he is commauded to return the writ, and he shall not be protected by it unless he shows that he has paid due and full obedience to its command. Freeman v. Blewitt, 1 Salk. 409; Middleton v. Price, 2 Stra. [1184]; s.C., 1 Wils. 17; Bac. Ab. Trespass (B.); Briggs v. Mason, 31 Vt. 433, 441. But it is otherwise with the officer's servant, for he hath no means to enforce the officer to make return; it would be unreasonable therefore to punish him by reason of the non-performance of a thing over which he had no control. Girling's case, Cro. Car. 446. Ellis v. Cleveland. Opinion by Rowell,

J.

NEGLIGENCE -CONTRIBUTORY NEGLIGENCE AFFECTING DAMAGES.- Damage, caused by fire through the negligence of one party, but increased through the negligence of the party suffering the loss, may be recovered up to the time when the contributory negligence began to affect the result; hence, there was error in the charge to the jury when it would be understood by them that if the plaintiff neglected to do what a prudent man would have done when he learned of the fire, it defeated his right of recovery for the previous as well as subsequent damages. Wilmot v. Howard, 39 Vt. 447. Stebbins v. Central Vermont Railroud Co. Opinion by Veazey, J.

MINNESOTA SUPREME COURT ABSTRACT.

not

CONTRACT -TO RECEIVE LESS SUM THAN DEBT IN PAYMENT-STATUTE OF FRAUDS.-B., as payee, held the promissory note of A., not to become due for more than a year, upon which there was an unpaid balance of $1,850. An agreement was made between A. and B. that A. should pay and B. receive as payment in full within two weeks from the time of the agreement $1750. Held, that the agreement was valid and was within the provision of the statute of frauds requiring a memorandum in writing. The agreement is what is known as an accord executory; that is to say, it is an agreement upon the sum to be paid and received at a future day in satisfaction of the note. If the accord had been executed there would have been a satisfaction extinguishing the note, the case being taken out of the rule by which payment of a part is held insufficient to satisfy the whole of a liquidated indebtedness by the fact the payment was to be made before the indebtedness fell due. Sonnenberg v. Riedel, 16 Minn. 83; Brooks v. White, 2 Metc. 283. The case is one of a promise on the part of B. to do something of advantage in law to A. and on the part of A. to do some. thing of advantage in law to B., a case of mutual promises, one of which is the consideration of the other. Schweider v. Lang. Opinion by Berry, J. [Decided July 3, 1882.]

MORTGAGE - -TO SECURE NEGOTIABLE INSTRUMENT SATISFACTION BY MORTGAGEE AFTER PARTING WITH TITLE TO NOTE.- Defendant executed to one J. her negotiable promissory note, and at the same time, as security for its payment, executed and delivered a mortgage upon real estate, which was recorded in the office of the register of deeds. Before maturity of the note the payee transferred the same to these plaintiffs, by indorsement, they then having actual knowledge that the note was secured by such mortgage. Prior to the maturity of the note the defendant in good faith paid the same to the payee, J., she believing him to be the holder of the note and mortgage, aud having no notice that the fact was otherwise. Thereupon J. satisfied the mortgage, and the satisfaction was recorded before maturity of the note. Held, that the defendant was liable in the note to the payee. If the note upon which the action was brought had not been secured by mortgage, there could have been no doubt as to the right of the indorsee to recover upon it, notwithstanding payment had been made to the payee before maturity. Story, Prom. Notes, 384; Burbridge v. Manners, 3 Camp. 193. The fact that the performance of the personal obligation of the maker of the note was secured by mortgage did not change the character of the contract, or affect the negotiability of the note. It still expressed the obligation of the maker to pay the sum of money named, absolutely and at all events, at maturity, to the payee or to his indorsee, and still possessed the qualities of commercial paper. This was necessarily decided in numerous cases, where the question directly involved was as to whether the collateral security possessed the quality of negotiability. so that it might be enforced at the suit of a bona fide assignee before maturity, nothwithstanding equities existing in favor of the mortgagor as against the mortgagee. The decisions maintaining the negotiable property of such collateral securities necessarily rested upon the ground that the principal contract, to which the securities were incident, was negotiable, and that the collateral securities partook of the same character. Thus the proposition here maintained as to the negotiability of the note is directly supported by the following among other decisions: Carpenter v. Longan, 16 Wall. 271; Reeves v. Scully, Walker's Ch. (Mich.) 248; Dutton v. Jones, 5 Mich. 519; Taylor v. Page, 6 Allen, 86; Croft v. Bunster, 9 Wis. 503; Andrews v. Hart, 17 id. 297. See also Olds v. Cummings, 31 Ill. 188; Walker v. Dement, 42 id. 273; White v. Sutherland, 64 id. 181; Janes v. Smith, 22 Mich. 360, where the same proposition is recognized. Blumenthal v. Jassoy. Opinion by Dickinson, J.

[Decided June 6, 1882.]

STATUTE OF FRAUDS DEFAULT OF ANOTHER.-A., the owner of a patent right, in consideration of certain promissory notes executed to him by B. sold to B. the exclusive right to vend the articles patented in a specified territory. As a part of the same transaction A. delivered to B. a contract between A. and a firm of manufacturers for the manufacture of the articles at a specified price accompanied by a written order to the firm to deliver the articles to B. and verbally guaranteed that the firm would furnish the articles according to the terms of the contract. Held, that the guaranty was not invalid under the statute of frauds as being a promise to answer for the default of another. While the authorities disagree as to the reason for the rule, yet they agree in holding that where the holder of a contract of a third person transfers it to another upon a consideration moving to himself, his guaranty thereof, made simultaneously with the transfer, and as a part of the transaction, is not a promise to answer for the

CONTRACT TO ANSWER FOR

debt or default of another within the meaning of the statute; or as the same thing is sometimes expressed, a guaranty is not within the statute where the debt or contract guaranteed was transferred from the guarantor to the guarantee, at the time of making the contract of guaranty, upon a consideration moving wholly between the parties to the guaranty. The reason assigned in some of the cases is that a promise is not within the statute where the leading or main object of the promisor is to subserve some purpose of his own and to beuefit himself. This has been often very justly criticised as being too indefinite and elastic to be adopted as a legal rule or test. Again other authorities (following the classification of Chancellor Kent in Leonard v. Vredenburg, 8 Johns. 29) hold that such a guaranty is not within the statute because founded on a new and original consideration moving from the guarantee to the guarantor, the idea being that "any new and independent consideration of benefit to the promisor, moving between the newlycontracting parties," takes the case out of the statute, notwithstanding the eminent authority for this doctrine; yet as thus broadly stated it is now very generally criticised and disapproved, as not furnishing a correct criterion by which to determine whether or not a case comes within the statute. Another reason often assigned is that such a guaranty is in substance a promise to pay the grantor's own debt, and therefore not within the statute, though the debt of a third person be incidentally guaranteed. This provision of the statute of frauds was never designed to enable men to evade their own obligations entered into solely for their own benefit, but it was designed to accomplish just what it says, viz., to prevent persons from being held liable for the debts or defaults of others upon mere verbal promises. The reason for such a provision was the temptation, through fraud and perjury, to impose a bad debt upon some other person of substance. Hence a general principle running through all the cases, is that whenever a person's promise is in effect to pay his own debt, it is not within the statute, although in form and incidentally it guarantees the debt of another. Such a case is not within either the spirit or the mischief of the statute. And in holding that such a guaranty is not within the statute, the reasoning of many cases is that such a guaranty is merely a substitute for the promise of the guarantor to pay whatever the other party is to receive in exchange for the consideration paid by him to the guarantor; that instead of agreeing to pay it himself directly in the first instance, the guarantor, for his own convenience, substitutes the contract of a third person, accompanied by his own guaranty, which in substance, amounts merely to a promise to pay his own debt. But whatever may be the best reason for holding such guaranties not within the statute, the doctrine is too well established by an unbroken line of decisions to be now questioned. Horgreaves v. Parsons, 13 M. & W. 561; Cordell v. McNeil, 21 N. Y. 336; Bruce v. Burr, 67 id. 237; Malone v. Kener, 44 Penn. St. 107; Ashford v. Robinson, 8 Ired. 114; Hopkins v. Richardson, 9 Leigh, 485; Rowland v. Roke, 4 Jones, Law, 337; Hall v. Rogers, 7 Humph. 536; Barker v. Scudder 56 Mo. 272; Hacklemon v. Miller, 4 Black, 322; Beatty v. Grin, 18 Ind. 131; Jones v. Palmer, 1 Doug. 379; Thomas v. Dodge, 8 Mich. 51; Huntington v. Wellington, 12 id. 10; Smith v. Finch, 2 Scam. 321; Dyer v. Gileson, 16 Wis. 557; Wymon v. Gooderich, 26 id. 21; Eagle Mowing Co. v. Shattuck, 10 N. W. Rep. 690. Wilson v. Hentges. Opinion by Mitchell, J. [Decided April 20, 1882.]

FINANCIAL LAW.

MUNICIPAL CORPORATION WRONGFUL CANCELLATION OF STOCK BY.- Where a city had wrongfully cancelled certificates of its stock belonging to a minor, upon assignments which were afterward discovered to be forgeries, and had issued new certificates of the stock to the holeders who had presented the certificates for cancellation and transfer, held, that the city should replace the certificates of stock belonging to the minor, and pay to his guardian all arrears of interest due. Brown v. Howard Fire Ins. Co., 42 Md. 384; Hambleton v. Central Ohio R. Co., 44 id. 551; Telegraph Co. v. Davenport, 97 U. S. 369. Maryland Ct. of Appeals, June 30, 1881. Mayor of Baltimore v. Ketchum. Opinion by Magruder, J. (57 Md. 23.)

NATIONAL BANK - RATE OF INTEREST FOR LOAN BY.-The National Banking Act provides thus, (§ 30): "Every association organized under this act may take, receive, reserve, and charge on any loans interest at the rate allowed by the laws of the State or territory where the bank is located, and no more; except that where, by the laws of the State, a different rate is limited for banks of issue organized under State laws, the rate so limited shall be allowed every association organized in any State under this act. And when no rate is fixed by the laws of the State or Territory, the bank may take, receive, reserve, or charge a rate not exceeding seven per centum." The statutes of California provide thus (Civ. Code, § 1918): "Parties may agree in writing for the payment of any rate of interest, and it shall be allowed according to the terms of the agreement until the entry of judgment." Held, that National banks in California are allowed to receive such interest as may be agreed upon. California Sup. Ct., March 15, 1882. Hinds v. Marmolejo. Opinion by Ross, J.

NEGOTIABLE INSTRUMENT- CONSIDERATION FOR FRAUDULENT CONVEYANCE-DEFENSE.- In an action against the maker of a promissory note given as the consideration of the conveyance received for the purpose of aiding the grantor to delay his creditors, the fraud cannot be set up in defense. The statute declaring that conveyances made with intent to hinder, delay, or defraud creditors shall be void, has been invariably construed as plainly implying that they are valid as between the parties and their representatives. Nichols v. Patten, 18 Me. 231; Andrews v. Marshall, 43 id. 274; and can be avoided only by creditors or their representatives, etc. Miller v. Miller, 23 Me. 22; Thompson v. Moore, 36 id. 47; Stone v. Locke, 46 id. 445; Freeland v. Freeland, 102 Mass. 475; McLean v. Weekes, 65 Me. 411. And such conveyances are as to creditors not utterly void but voidable. If the fraudulent grantee convey the premises to a bona fide purchaser for value before the creditor moves to impeach the original conveyance the purchaser's title cannot be disturbed. Neale v. Williams, 18 Me. 391; Hoffman v. Noble, 6 Met. 68; Bradley v. Obear, 10 N. H. 477. The implication of the statute of 13 Eliz. declares that as between the parties to a conveyance made to prevent creditors of the grantor from attaching or seizing his property, and thereby securing their debts, the transaction is not to be regarded void or voidable, but valid. And if valid, it cannot be seen why the note given in payment is not also valid. The transaction is not a turpis causa, and neither do the parties stand in pari delicto. In the case at bar, each of the parties deliberately entered into the contract. Each received a full consideration, the one for his land and the other for his note. Neither of them was defrauded. The decisions in Massachusetts, repeatedly made, sustain actions like