APPEAL by plaintiff from an order of the The case sufficiently appears in the opinion. ments. A contract required by the Statute of Frauds to be in writing cannot be modified by parol. Bishop, Cont. p. 301; Greenl. Ev. § 302; St. Paul Division No. 1, Sons of Temperance, v. Brown, 9 Minn. 157. the land from the State, paying 15 per cent of the purchase price, and receiving certificates of purchase. February 1, 1886, these parties entered into a contract in writing, whereby the defendant agreed that, upon full performance on the part of the plaintiff, he would transfer by deed of assignment the said land certificates. Plaintiff was to pay therefor $590, according to two promissory notes-one for $190 due October 1, 1886, with interest at 10 per cent, and one for $400, due two years from February 1, 1886, with interest at 8 per cent and pay all taxes and assessments, and the unpaid purchase money to the State. The plaintiff fully performed this contract on his part. In March, 1886, the parties made an oral agreement, by which defendant agreed to make certain improvements for the plaintiff on the land, by breaking, erecting buildings and digging a well, for which plaintiff agreed to pay him the cost thereof, with interest; such payment not to be made before the expiration of five years from the time of making the improvements. Afterwards, pursuant to such agreement, defendant made such improvements to the amount of $500, no part of which has been paid. The plaintiff was insolvent. On these facts the court below denied specific performance. From the memorandum filed by the court below it appears that the specific performance was refused in the exercise of what the court deemed its discretionary power, the reasons for so exercising that power being stated: the plaintiff has become insolvent; that A compensation in damages for the breach the value of the improvements is equal to the of such contract is not regarded as adequate re-purchase price; and that the plaintiff can be lief. In equity, "articles" for the purchase of land are looked on as equal to a conveyance, and after the contract the vendor becomes in equity the trustee of the vendee. St. Paul Division No. 1, Sons of Temperance, v. Brown, 9 Minn. 163. Ibid., and Clason v. Bailey, 14 Johns. 484. Mr. J. M. Thompson, for respondent: When there is any well-founded objection why this extraordinary assistance of the court should not be granted, the party will be left to his remedy at law for a compensation in damages. Northrup v. Trask, 39 Wis. 515. Whether a contract shall be enforced specifically must rest in the reasonable discretion of the court. Gariss v. Gariss, 16 N. J. Eq. 79. See also Williams v. Williams, 50 Wis. 311; 5 Wait, Act. and Def. 765; Rogers v. Saunders, 16 Me. 92; Snell v. Mitchell, 65 Me. 48; 8 Wait, Act. and Def. 471; Columbia College v. Thacher, 87 N. Y. 311. The mere proof of a valid legal contract will not give a right to the decree. 8 Wait, Act. and Def. 471; Chicago, B. & Q. R. Co. v. Reno, 113 Ill. 39; Menasha v. Wisconsin Cent. R. Co. 65 Wis. 502. The decree may be refused upon considerations purely equitable, as where there has been a change in the surroundings. 8 Wait, Act. and Def. 471, 472; Bird v. Logan, 35 Kan. 228, 234. See also Ramsay v. Gheen, 99 N. C. 215; Fitzpatrick v. Dorland, 27 Hun, 291; Vincent v. Larson, 1 Idaho, N. S. 241; Margraf v. Muir, 57 N. Y. 155. Gilfillan, Ch. J., delivered the opinion of the court: This is an action to compel specific perform ance of a contract in the nature of one to convey real estate. The defendant had purchased compensated in damages. The mere fact that a person has a contract for the conveyance to him of real estate does not entitle him, as of right, to the interposition of a court of equity to enforce it. The matter of compelling specific performance is one of sound and reasonable discretion, of judicial, not arbitrary and capricious, discretion. There must be some reason founded in equity and good conscience for refusing the relief. Such reason has been generally found, by the court refusing it, in some mistake or fraud, or unconscionableness in the contract, or in some laches on the part of the plaintiff changing the circumstances so as to make it inequitable to compel a conveyance, or where the claim is stale, or there is reason to believe it was abandoned. But, whatever the reason may be, it must have some reference to, some connection with, the contract itself, or the duties of the parties in relation to it. We have never found a case where the court refused the relief as a means of enforcing some independent claim of the defendant against the plaintiff, nor because the defendant had some independent claim which he might not be able to enforce against the plaintiff. If such could be regarded as an equitable reason for denying relief, every action of the kind might involve the investigation of all unclosed transactions between the parties, whether relating to the contract or subject matter of the action, or entirely distinct frrom it. In this case there is no reason to suppose the contract other than a fair one. The plaintiff has been prompt in performing on his part, and in seeking his remedy. The defendant has a claim against plaintiff, entirely independent of the contract to convey, which claim, by the terms of the agreement under which it arose, was not to become due for more than three years after the time when he was to convey. The possibility that when it becomes due he may not be able to enforce it, by reason that plaintiff's insolvency may continue, does not make it inequitable to enforce this contract already matured. That a purchaser may have an adequate remedy by action for damages, although a reason for not holding what he has done to be part performance to take the case out of the operation of the Statute of Frauds, is of itself no reason for withholding the proper remedy where the contract is valid under the Statute. The order is reversed, and the court below will enter judgment on the findings of fact in favor of plaintiff for the relief demanded in the complaint. MICHIGAN SUPREME COURT. William L. R. A. ANDRES, Relator, V. 19 U. S. Stat. at L. 2; State v. Stumpf, 23 Wis. 630; State v. Olin, 23 Wis. 317; 1 Greenl. JUDGE OF THE CIRCUIT COURT for Ev. § 504, 506; Stephenson v. Bannister, 3 Ottawa County, Respt. (....Mich.....) A delaration of intention to become a citizen of the United States, made before a clerk of a court, need not be made in his office, or in open court. (Morse, J., dissents.) (October 25, 1889.) Bibb, 369; Lothrop v. Blake, 3 Pa. 483-495; Morris v. Patchin, 24 N. Y. 394-396; Kansas Pac. R. Co. v. Cutter, 19 Kan. 83; McCrary, Elections, 21, 446; People v. Sweetman, 3 Park. Cr. Rep. 358. Mr. George A. Farr, for respondent: In this State, deputy clerks may perform all the duties of the clerk. How. Stat. § 573; Dorr v. Clark, 7 Mich. 313; Calender v. Olcott, 1 Mich. 344; Jacobs v. Measures, 13 Gray, 74; Goodwyn v. Goodwyn, 11 Ga. 178; Touchard v. Crow, 20 Cal. 150; Cook v. PETITION for a writ of mandamus to com- Knott, 28 Tex. 85; State v. Barrett, 40 Minn. pel respondent to permit relator to file an information in the nature of a quo warranto to try the title of one Edward Vaupell to the office of sheriff of Ottawa County. On hearing of rule to show cause why said writ should not issue. Denied. The relator admitted that Vaupell had a majority of votes cast and was duly elected upon the face of the returns, but alleged that many of the votes, enough to change the result of the election, cast for Vaupell, were cast by persons not citizens of the United States nor lawful voters. The further facts appear in the opinions. Messrs. Godwin, Adsit & Dunham, for relator: Votes cast by the persons who relied on their declarations sworn to before a person who was the clerk of the circuit court, or a deputy clerk" at a place other than in open court or the office of such clerk, were not legal but were absolutely void. The naturalization of an alien as a citizen of the United States is strictly a judicial act. Charles Green's Son v. Salas, 31 Fed. Rep. 106. The court in which the aliens in question were authorized to commence their proceedings for naturalization was the Circuit Court for the County of Ottawa. This court could only be held at Grand Haven, the county seat of said county. How. Stat. § 6464; Atty-Gen. v. Lake Co. 33 Mich. 294. The office of the clerk of said court was at the same place, and could not be elsewhere. How. Stat. § 577; State Const. art. 10, § 4; Re Langtry, 31 Fed. Rep. 879. The law only authorizes aliens to declare their intentions to become citizens of the United States, in open court or before the clerk. 65. Declarations of intention to become citizens of the United States may be taken outside the clerk's office. State v. Olin, 23 Wis. 309. Campbell, J., delivered the opinion of the court: The only serious question involved in the inquiry which the relator seeks to make concerning the validity of the declared result of the election in this case is whether declarations of intention can be made before a clerk of a court anywhere but in his office, or in open court. If those declarations were valid, the other questions need not be considered, whether relating to the remedy or otherwise. The statutes of the United States are all that we can be governed by, inasmuch as Congress has exclusive power over naturalization. The fact that this or any other State may extend privileges to aliens, who have merely declared their intention to become citizens, can have no weight in determining how such declarations are to be made. The amendment of 1876 to the Revised Statutes of the United States (§ 2165) is made to qualify a section that had required such declarations to be made before a court of record. It declares that not only for the future, but also for the past, such declarations before the clerk" of any of such courts shall be as legal and valid as if made before the court. This language, in its natural sense, makes the person before whom the declaration is made, and only the person, material. A declaration on oath for this purpose in no way differs in its nature from any other oath or affidavit, and in the very many cases of such oaths, whether before judges, justices, notaries, commissioners or clerks, the only inquiry recognized is whether the oath is administered within the officer's ju risdiction, and not in what particular building | ion, while it retained the several exemptions or place it may be administered; and, unless from declaration of intention which had been there is some statutory intimation to the con- brought in from time to time, did not embody trary, there is no reason why this case should the change of 1824, which validated and auform an exception. On the contrary, the his- thorized clerks to take the first declaration. In tory and construction of the Naturalization 1876 this portion was restored and is now in Laws show that this declaration confers no force. privileges, and fixes no rights, and is not jurisdictional, but is in several cases dispensed with. The United States Supreme Court has repeatedly held that no inquiry can be made in any controversy to attack the sufficiency of the final admission to citizenship by showing a want of conformity to the previous requirements of the statutes. Campbell v. Gordon, 10 U. S. 6 Cranch, 176 [3 L. ed. 190]; Stark v. Chesapeake Ins. Co. 11 U. S. 7 Cranch, 420 [3 L. ed. 391]; Spratt v. Spratt, 29 U. S. 4 Pet. 393 [7 L. ed. 897]. The Naturalization Laws originally required no preliminary declaration, but allowed citizenship on two years' residence. 1 U. S. Stat. 103. In 1795 the rule now generally in force was established, requiring a declaration in advance three years (and not two, as now required), but fixing five years' residence as necessary for admission. Id. 414. By that law, as by all subsequent ones, the declaration of intention was merely on the ex parte oath of the applicant, and no inquiry was made in any formal way until he applied for his last papers, when evidence was taken, and the facts looked into. The Alien Law of 1798, which covers other matters than naturalization, contained some stringent provisions, and required a declaration of five years before admission and fourteen years' residence, saving, however, cases of aliens residing here before the law was passed. In 1802 the old rule was restored. 2 U. S. Stat. 153. In 1804 declarations of intention were dispensed with in all cases where residence dated back of the Law of 1802, and only final papers required in such cases. Id. 292. In 1824, it having been found that the law had been carelessly administered, instead of adopting more stringent rules, the door was opened still wider. It was provided that declarations of intention might be made two years, instead of three, before admission. It was also provided that minors residing three years during minority need not make any decÏaration; that declarations theretofore as well as thereafter made before clerks, instead of courts, should be valid; and that final admission, made without any declaration at all, should not be invalid. 4 U. S. Stat. 69. On page 310 of the same volume is a law exempting persons coming into the country between 1802 and 1812 from making such declarations. In 1848 the old law requiring, not only residence, but unbroken continuance, in the country, was repealed. 9 U. S. Stat. 240. This was the state of the law, subject to some further dispensation concerning declarations of intention, and some shortening of residence in particular cases, when the Revised Statutes of 1872 were adopted. It is well known that the compilers of that revision, which was not meant to change the laws, were no more exempt from mistakes than others, and numerous amendments have been required to place the law where they should have found it. That revis If the declaration of intention was a proceeding on which witnesses were sworn or inquiries made, there would be, perhaps, some reason for formality. But it is a purely ex parte oath, which in no way dispenses with the inquiry made on final admission, and which Congress has not made of any particular value. It is difficult to see for what purpose it was devised, unless possibly as a reminder that a man should not become a citizen without two years' deliberation. Even this is dispensed with in quite a number of instances; and when Congress, by the Act of 1824, adopted its present policy, it was evidently for the reason that the declaration was not deemed of any special importance. The final application is not required to be made to the same court, or within the same jurisdiction, where the original declaration is made; and the inquiries made at the time of his admission need not, and generally cannot, go into the minutia or circumstances of his declaration of intention, and are complete in themselves. There is no substantial reason why a clerk must be in his office or in court for this purpose, any more than for any other ministerial act not pertaining to court business. There is no law requiring him to be in any particular place to administer affidavits. As shown in Whallon v. Ingham Co. Circuit Judge, 51 Mich. 503, the clerk's movements are not fixed within any one room or set of rooms, or any one place. By our Constitution, until amended, the county clerk was clerk of both circuit and supreme courts held in his county, though not held in the same building, or in the same town. He is clerk ex officio of more or less other bodies, and may or must have different places of action, either of which is his official place. There is no reason why an oath may not be taken before him at any place where he happens to be, as well as before a judge, or justice, or notary, or commissioner. He is the person indicated by the law. When it dispenses with his action in open court, it dispenses with the only locality which is universally known for clerical action; and we cannot require his action under the Naturalization Laws to be held in any particular spot or room or building without adding to the law a qualification of our own not indicated by its language, and not required by any of its purposes. The fact that our laws give more force to these declarations than Congress has done cannot have any weight in construing congressional actions. That must speak for itself, and lay down its own conditions. The writ should be denied. Sherwood, Ch. J., and Long and Chamconcurred. plin, JJ., Morse, J., dissenting: I cannot agree with the conclusion reached by my brethren in this case. The Naturalization Laws which govern the method of procedure in transforming an alien into a citizen of the United States are the Acts of the Congress of the United States, which is given exclusive jurisdiction over the subject of naturalization. | 30th day of April, 1888," before one "Chas. T. By the Act of Congress of May 26, 1824, aliens Pagelson, Deputy Clerk.” On the 27th of were permitted to declare their intentions to April, 1888, seventy-three were made before become citizens of the United States before said Pagelson, at Zeeland; and on the 3d day "the clerk" of any court of record, and such of May, 1888, thirty were made before "Chas. clerks were authorized to take such declara- E. Soule, Deputy Clerk," at Polkton and tions. 4 U. S. Stat. at L. 69. This provision Tallmadge. It is shown that each of these was changed by the revision of the laws by persons, except those who made their declaraCongress of 1873-74, which required the dec- tions before Soule, signed his declaration on laration to be made in open court. U. S. Rev. the record book of the court. The record book Stat. 1873-74, § 2165. was taken from the clerk's office, and carried By an Act of Congress approved February 1, around the county for that purpose. Soule 1876, it was again enacted that " the declaration took the declarations before him on blanks, of intention to become a citizen of the United which declarations were afterwards copied States .. may be made by an alien before upon the record book. While this book was the clerk of any of the courts named," etc. It out of the clerk's office it is claimed that decwas further enacted that "all such declarations larations were taken on blanks in the clerk's beretofore made before any such clerk are office. This is certainly a loose way of doing hereby declared as legal and valid as if made business. The question arises, Is it a legal before one of the courts named in said section." method? 19 U. S. Stat. at L. 2. The proceeding is necessarily one of record, as no officer but the clerk of a court of record is authorized to take the declarations. The making of this declaration of intention is the first step in the proceeding to become a citizen. And he cannot be clothed with full citizenship, except by the action of a court of record in open court. I think the objection made to the taking of these declarations by a deputy clerk is not well founded. In this State deputy clerks may perform the duties of the clerk. How. Stat. § 573; Calender v. Olcott, 1 Mich. 344; Dorr v. Čiark, 7 Mich. 310. But I think no man can legally declare his intention to become a citizen of the United States outside of the clerk's office, unless it is in open court. The court wherein the proceedings were commenced, in the case of the persons voting We have on record what the views of one in Ottawa County last fall, and claimed by the justice of the Supreme Court of the United relator not to be voters, was the Circuit Court States are as to the practice prevailing in Ottafor the County of Ottawa, which court must wa County. On the 28th of June, 1887, Emebe holden at the county seat, Grand Haven, line Charlotte Langtry, a subject of the Queen and there and nowhere else must be the office of Great Britain, made application to become of the clerk of said court. There is kept the a citizen of the United States, and a bound volseal of the court. It is claimed by the counsel ume of declarations by aliens, in which some for the relator that the county clerk of Ottawa of the blanks had not been used, was taken County, who, by virtue of such office, is clerk from the clerk's office of the United States Cirof said circuit court, cannot act as clerk of the cuit Court for the District of California, at San Circuit Court for the County of Ottawa except Francisco, by a deputy clerk, and carried to in his office at Grand Haven, or in open court. the private residence of Mrs. Langtry, and That outside of his office, "of the place where there her declaration was made and oath taken his official duties are authorized to be per- by the deputy clerk. This fact coming to the formed, he is simply a citizen, and no more; knowledge of Mr. Justice Field of the Supreme simply the person who is designated by law to Court of the United States, then holding with perform the duties of clerk of the court at the Circuit Judge Sawyer the Circuit Court at San proper time and place." It is also urged that Francisco, the attention of Mr. Barne, the when an alien declares his intention to become counsel for Mrs. Langtry, was called by Mr. a citizen he is entitled to a certificate, a certi- Justice Field to the manner of taking of her fied copy of such declaration, duly attested by declaration, and he was advised that the court the clerk and the seal of the court; that this had doubts of the legality of her declaration. could not be done at places away from the of Mr. Justice Field said he did not think that fice and the City of Grand Haven, as the clerk the statutes furnished any authority for the has no authority to go about the county carry-clerk of the court to take a declaration of one ing the seal of the court with him. It is there fore contended that proceedings to become a citizen could not be commenced by a declaration of intention made, for instance, at James town, twenty or thirty miles from the county seat, or at any other place than the office of the Iclerk of the circuit court. to become a citizen out of his (the clerk's) office, except in open court, and for that purpose to carry the records of the court to the private residence of the party. To permit the proceeding to pass without comment would be to establish a dangerous precedent, and one calculated to give rise to gross abuses. The justice There seems to be no limit to the number of observed that to be an American citizen was a deputies the clerk may appoint, and there great privilege; that citizenship should be remight be, if this method is lawful, a deputy in garded as a sacred trust; and that persons each township in the county on the same day seeking to take upon themselves its responsitaking these declarations. In such case the bilities ought to consider it of sufficient value opportunities for fraud would also seem to be to attend where the records of the court are limitless. The declarations in these cases-held in proper legal custody. In some States eighty-one of them were commenced, as a man is allowed to vote as soon as he makes shown by the records, "in the Circuit Court his declaration of intention to become a citifor the County of Ottawa, at Holland, on the zen; and if the clerk of the court, or his depu ty, can go around the country taking declarations of intention and administering oaths, it is evident that dangerous consequences might follow, especially as there is no limit to the number of deputies which a clerk may appoint." See Re Langtry, 31 Fed. Rep. 879, 880. The record in this case shows that it has been the custom for some years in Ottawa County to naturalize people in this way, and it is contended that such custom has almost, if not quite, ripened into law. But the fact that an unlawful custom has prevailed for even thirty years cannot change the Naturalization Laws of the United States, nor is it a good reason for continuing a bad practice. The record in this case also shows on the part of the relator, and it is substantially admitted in the affidavits attached to the showing of the respondent, that about seven months before the general election a number of deputies were appointed by the county clerk of Ottawa County for the sole purpose of going about the county, with the necessary blanks or court records, to hunt up persons who were aliens, and to take their declarations of intention to become citizens. This was also manifestly, if the relator's showing be true, to make voters who otherwise would not have become so, men who, if left to their own motion, would never take any steps to become citizens. It is a matter of common notoriety that all over the land these men, aliens, are waited upon by partisan committees, and their naturalization fees paid out of party funds in order to make them voters. And some of these persons have so little desire of their own to become citizens that they never go any further than the declaration of their intention. The man who is worthy to become a citizen of the United States, and to share in the privileges of the government, to take part in the making of its laws, and who in good faith desires to do so, will find ways and means of his own to declare his intention, and to take all necessary steps to be clothed in time with full citizenship. It is not necessary, nor is it desirable, that about six months before election the political partisans should be scouring the county, going into every highway and alley, for aliens, who, if the expense is paid, will become voters and recruits in their party. Here lies the great incentive to fraud, and the easy opportunity for it. If the alien must himself go to the office of the clerk of the court, and pay the expenses of his own advancement to citizenship, fraud in declarations of intention to become a citizen will seldom occur; and the citizen, thus acquired, will be in the future, as in the past, a welcome and desirable addition to our voting population. If our Naturalization Laws had been rigidly enforced in the past, our large cities would not have been cursed, as some of them now are, with a large number of voters who openly avow that the only object they have in casting the ballot is to destroy not only our government, but all government and all law, that anarchy may reign in its stead. I do not believe in this kind of business of carrying the records and books of the courts from town to town, and from place to place, to manufacture voters, or even to accommodate an alien who considers the privilege of American citizenship of too little value to seek it at the county seat or at the court-room. And, in my opinion, it is neither required by good policy, nor sanctioned by the law. On the contrary, as I have shown, we have the highest judicial condemnation of it. I think the writ should issue. INDIANA SUPREME COURT. CINCINNATI, INDIANAPOLIS, ST. LOUIS & CHICAGO R. CO., Appt., v. Cassius B. COOPER, Admr., etc. 1. A railroad company is under a duty to a passenger who is thrown on its tracks by the fault of its servant, producing mental incapacity, to take steps to prevent injury to him from the danger it knows he is likely to incur from its trains. 2. The wrong of a carrier in leaving an injured passenger on its track exposed to great and known peril without mind enough to care for himself is the proximate cause of his death resulting from his being struck by a train. NOTE.-Care and diligence required of carriers of the law requires must depend upon the circumstan passengers. The words "utmost care and diligence," which carriers of passengers must exercise, do not mean the utmost care and diligence which men are capable of exercising; but they mean the utmost care consistent with the carrier's undertaking and with a due regard for all the other matters which ought to be considered in conducting the business. Dodge v. Boston & B. Steamship Co. 2 L. R. A. 83, 148 Mass. 207. The greater the danger, the greater the care required by law. Shumacher v. St. Louis & S. F. R. Co. 39 Fed. Rep. 174. The utmost care and diligence, "and the highest degree of care and diligence," are expressions to measure the care and diligence which a prudent man would exert under like circumstances. Heucke v. Milwaukee City R. Co. 69 Wis. 401. What facts will constitute that diligence which ces of each particular case considered in relation to the business in which the person whose duty it is to exercise care is engaged; the greater the hazard the Galmore complete must be the exercise of care. veston City R. Co. v. Hewitt, 67 Tex. 473. The duty of the carrier to exercise the highest degree of care for the safety of his passenger is founded on contract; and where the contract is broken and the passenger suffers consequential injury, the carrier cannot escape liability because the proximate cause of the injury was the negligent act of another. Kellow v. Central Iowa R. Co. 68 Iowa, 470. Where death results from concurrent acts of negligence of defendant in failing to ring its bell, and of deceased in being on its track, paying no heed to his situation and the approach of trains, the verdict must be for defendant, unless the train could have been stopped by its employés after they be |