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terms during the continuance of” and “last so long' would seem to be precisely equivalent, and the full performance of the contract to be limited alike by the life of the patent and by the life of the boat. It is difficult to understand how the duration of the patent and the duration of the boat differed from one another in their relation to the performance or the determination of the contract; or how a contract to use an aid to navi. gation upon a boat so long as she shall last can be distinguished in principle from a contract to support a man so long as he shall live, which has been often decided, and is generally admitted, not to be within the statute of frauds.

At October Term, 1877, this court, speaking by Mr. Justice Miller, said: “The statute of frauds applies only to contracts which, by their terms, are not to be performed within a year, and does not apply because they may not be performed within that time. In other words, to make a parol contract void, it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made." And it was therefore held. in one case, that a contract by the owner of a valuable estate, employing lawyers to avoid a lease thereof, and to recover the property, and promising to pay them a certain sum out of the proceeds of the land when recovered and sold, was not within the statute, because all this might have been done within a year; and, in another case, that a contract, made early in November, 1869, to furnish all the stone required to build and complete a lock and dam which the contractor with the State had agreed to complete by September 1, 1871, was not within the statute, because the contractor, by pushing the work, might have fully completed it before November, 1870. McPherson y. Cox, 96 U. S. 404, 416, 417; Walker v. Johnson, Id. 424, 427.

In Texas, where the contract now in question was made, and this action upon it was tried, the decisions of the supreme court of the State are in accord with the current of decisions elsewhere.

In Thouvenin v. Lea, 26 Tex. 612, the court said: “An agreement which may or may not be performed within a year is not required by the statute of frauds to be in writing. It must appear from the agreement itself that it is not to be performed within a year.” In that case the owner of land orally agreed to sell it for a certain price, payable in five years. The purchaser agreed to go into possession, and make improvements; and the seller agreed, if there was a failure to complete the contract, to pay for the improvements. The agreement to pay for the improvements was held not to be within the statute; the court saying: “There is nothing from which it can be inferred that the failure to complete the contract (by reducing it to writing, for instance, as was stipulated should be done), or its abandonment, might not occur within a year from the time it was consummated. The purchaser, it is true, was entitled by the agreement to a credit of five

und the paintiff, si testified to givh #ta: :: tap abu was the on's witres veyado

it be would farci bibe or for utmand for the switch at the tenem? :*

2. pred 10 erect a smil, tbe of tra pus: samt-pas down the iron rule unin fer the plats it's benefit act it. De Ongas be Cerded it."

in the { malbate expected that the unce con la force for more than legemerk.

leten Pers Lprobabie terest II. ulit did in fact contiede cb. 3. !:!, wine. But ther inade Pasch. In

2013, or by uocable Tex. 311. mult. The question is Anderwe.

Expected. Or artial Juilly * us, but wherber the circuit 7** - Teasonable interpreta- | diet, ante.

that is aboud Dot be 1. Sodefinite term of

SOTE-Bo Ht of the contract appear:

Perford deed or contemplated by the

Frauds We agreement as to the

Tear's neruje videoiged or shipped by the

1 Dot to be

meaning of utice during which be sonid

tracts not the The matract of the railroad ing. Lee's A

& for the henetit of tbe | By a lease ? de plaintiff's own' testi.

term tu) that is not essential that 18). Held, in

of the tatile

Beiler v. Des 9 Fapany to maintain the

wbo bad der for a dette

mi se performance of the con-
bis own life. The obliga.

years for the payment of the purchase money, if
the contract had been reduced to writing. But
appellant might have sold to another, or the con-
tract might have been abandoned by the pur-
chaser, at any time; and upon this alone de.
pended appellant's liability for the improve-
ments." See, also, Thomas v. Hammond, 47
Tex. 42.

In the very recent case of Railway Co. v. Wood,
88 Tex. 191, 195, 196, 30 S. W. Rep. 859, 860, it was
held that an oral agreement by a railroad com-
pany to issue to one Wood annually a pass over
its road for bimself and his family, and to stop its
trains at his house, for 10 years, was not within
the statute. The court, after reviewing many of
the authorities, said: “It seems to be well set-
tled that, where there is a contingency expressed
upon the face of the contract, or implied from the
circumstances, upon the happening of which
within a year the contract or agreement will be
performed, the contract is not within the statute,
though it be clear that it cannot be performed
within a year except in the event the contingency
happens.” “If the contingency is beyond the
control of the parties, and one that may, in the
usual course of events, bappen within a year,
whereby the contract will be performed, the law
will presume that the parties contemplated its
happening, whether they mention it in the con-
tract or not. The statute only applies to con-
tracts not to be performed within the space of
one year from the making thereof.' If the con-
tingency is such that its happening may bring the
performance within a year, the contract is not
within the terms of the siatute; and this is true
whether the parties at the time had in mind the
happening of the contingency or not. The ex-
istence of the contingency in this class of cases,
and not the fact tbat the parties may or may not
have contemplated its happening, is what pre-
vents the agreement from coming within the
scope of the statute. Applying these principles
to the case under consideration, we think it clear
that the contract above set out was not witbin
the statute. The agreement to give the pass and
stop the trains was personal to Wood and bis
family. He could not transfer it. In case of his
death within the year, the obligation of the com-
pany to him would bave been performed, and no
right thereunder would have passed to his beirs
or executors. If it be held that each member of
his family bad an interest in the agreement, the
same result would have followed the death of
such member, or all of them, within the year. If
the agreement had been to give Wood a pass

for
life, it would, under the above authorities, not
have been within the statute; and we can see no
good reason for holding it to be within the stat-
ute because his right could not have extended be-
yond ten years. The happening of the contin-
geney of the death of himself and family within a
year would have performed the contract in one
case as certainly as in the other."

In the case at bar, the contract between the

statute of frac

ance, and beli Fitzpatrick

ap

ated and restricted by the been ren art the paintiff's benefit for ship. Jection that the

be peeded it," sad Do i put an end to the per

within one les ther than his not need. e prise of his business

ose the month or in the mind | B5 a writing we within a year after the mak

ment between aintiff bad died or bad

signed by the 1

47, 188, the 1. iesa at this place or for December 1, tused 10 need the switch agreement san

Dot within the

terms not to the making the Blake v. Voi o verbal agreem cattle.guardi plaintiff's land the company purposes, and

dies, the railroad company alla coger ander aos obligation

tijl and the contract would omad by having been fully

dance of the contract de

pues which might hape. E contract is not within **** "agreement which is removed with

performed will within Man-f.. land Ry. Co. v.

wa the space of one year

her clause of the statute

alt 135 wer, which requires promise by : Cara estate to be in writ. / bealth is not a

ready in the argument for
in the contract was,
per casement in real estate,

strate, overlooks the dif- terminated in

in

year, within t Griffey (lowa adopt and care within the stati

ich and the Texas stat. | during that tid

kutentially follow the En.

*. The exising statutes of Rep. 1008. A.

defendant's la lands thus acqli

re for tbe payment of the purchase moest

railroad company and the plaintiff, as testified to glish statute of frauds, so far as to require a concontract had been reduced to writing, B: by the plaintiff himself, who was the only witness

veyance of any “estate of inheritance or freehold, ellant might have sold to another, or the sa upon the point, was that, if he would furnish the

or for a term of more than one year, in lands and ' might have been abandoned by the pre- ties and grade the ground for the switch at the tenements," as well as “any contract for the sale ser, at any time; and upon this alone place w bere he proposed to erect a sawmill, the of real estate, or the lease thereof for a longer ded appellant's liability for the importa railroad company would“put down the iron rails term than one year,” to be in writing, omit to rents." See, also, Thomas v. Hannoad, and maintain the switch for the plaintiff's benefit enact the additional words of the English statute, 1. 42.

for shipping purposes as long as he needed it." in the clause concerning conveyances, “or any n the very recent case of Railway Co. r. Nasi The parties may well have expected that the uncertain interest of, in, to, or out of lands or Cex. 191, 195, 196, 30 S. W. Rep.833, ), it is contract would continue in force for more than tenements, and, in the other clause, “or any ind that an oral agreement by a railroad me one year. It may bave been very improbable terest in or concerning them." St. 29 Car. II. ly to issue to one Wood annually a pas tu that it would not do so; and it did in fact continue ch. 3, $s 1, 4; Rev. St. Tex. 1879, arts. 548, 2464; road for himself and his family, and to step.: in force for a much longer time. But they made Pascb. Dig. arts. 997, 3875; James v. Fulcrod, 5 jos at bis house, for 10 years, was : TU no stipulation which, in terms, or by reasonable Tex. 512, 516; Stuart v. Baker, 17 Tex. 417, 420; statute. The court, after reviewing magte inference, required that result. The question is Anderson v. Powers, 59 Tex. 213.

authorities, said: "It seems to be wewe not what the probable, or expected, or actual Judgment reversed, and case remanded to the I that, where there is a contingenes erree performance of the contract was, but whether the circuit court, with directions to set aside the verin the face of the contract, or implied frue contract, according to the reasonable interpreta- dict, and to order a new trial. "limstances, upon the happening of TL

tion of its terms, required that it should not be hin a year the contract or agreement wil : performed within the year. No definite term of

NOTE.- Recent Decisions on Contracts not to be forined, the contract is not within the 13 time for the performance of the contract appears

Performed within a Year under the Statute of to have been mentioned or contemplated by the

Frauds.-A verbal contract, made in August, for one vilgh it be clear that it cannot be pertura parties nor was there any agreement as to the

year's service, to commence in the following October, hin a year except in the event the continen amount of lumber to be sawed or shipped by the

is not to be performed within a year, within the ppens." "If the contingency is beyond 12 plaintiff or as to the time during which he should

meaning of the statute of frauds, requiring all con: atrol of the parties, and one that inap, tin

tracts not to be performed within a year to be in writkeep up his mill. The contract of the railroad Tal course of events, happen within a felada

ing. Lee's Admr. v. Hill (Va.), 12 S. E. Rep. 1052. company was with and for the benefit of the ereby the contract will be performed. the

By a lease entered into orally in August, 1888, the plaintiff personally. The plaintiff's own testi- term was to begin March 1, 1889, and end March 1, 1 presume that the parties contemplatel i mong show8 (although that is not essential) that

1890. Held, that the lease was within the prohibition ppening, whether they mention it in the die be understood that the performance of the con

of the statute of frauds. Rev. St. Mo. 1879, sec. 2513; ct or not. The statute only applies to : tract would end with his own life. The obliga

Beiler v. Devoll, 40 Mo. App. 251. Where plaintiff, ets 'not to be performed within the spate tion of the railroad company to maintain the

who had been in defendant's employ under a contract 2 year from the making thereof.' If tbe es switch was in terms limited and restricted by the

for a definite period, claimed that the contract had gency is such that its happening may bringen? qualification for the plaintiff's benefit for ship

been renewed at the end of that period, it was po ob. rformance within a year, the contract is a ping purposes as long as he needed it," and no

jection that the contract was originally void under the

statute of frauds as an oral contract not to be performed thin the terms of the statute; and this is to contingency which should put an end to the per

within one year, since it became valid upon perform. ether the parties at the time bad in mini: formance of the contract, other than his not need

ance, and before the new contract began. Adams v. ppening of the contingency or not. Theo log the switch for the purpose of bis business ap

Fitzpatrick (N. Y.), 26 N. E. Rep. 143, 125 N. Y. 124. ence of the contingency in this class of can piere to have been in the mouth or in the mind

By a writing which contained the terms of an agree. d not the fact tbat the parties may or master of either party. If, within a year after the mak

ment between plaintiff and defendants, but was not ing of the contract, the plaintiff had died or had

signed by the latter, and which was dated November abandoned his whole business at this place or for

27, 1888, the agreement was "to take place and effect any other reason bad ceased to need the switch

December 1, 1888, for one year.” Held, that the for the shipping of lumber, the railroad company

agreement ran from December 1st, and was therefore would have been no longer under any obligation

not within the statute of frauds as an agreement "by to maintain the switch, and the contract would

its terms not to be performed within one year from

the making thereof." 2 Rev. St. N. Y. p. 135, sec. 2. have been brought to an end by having been fully performed.

Blake v. Voight, 11 N. Y. S. 716. The obligation of

verbal agreement by a railroad company to maintain The complete performance of the contract de

cattle.guards in consideration of a right of way over pending upon a contingency which might hap

plaintiff's land is limited to the time during which ben within the year, the contract is not within

the company shall use the right of way for railroad the statute of frauds as an agreement which is

purposes, and as that use may cease, and the road be not to be performed within the space of one year

removed within a year, it is not a contract "not to be from the making thereof."'

performed within one year from the making thereof,” Nor is it within the other clause of the statute

within Mansf. Dig. Ark. sec. 3371. Arkansas Midof frauds, relied on in the answer, which requires

land Ry. Co. v. Whitley (Ark.), 15 S. W. Rep. 465. A certain conveyances of real estate to be in writ

promise by a man to marry when he recovers his ing. The suggestion made in the argument for

health is not a promise to be performed within a Je been within the statute; and we do the defendant in error, that the contract was, in

year, within the statute of frauds. McConabey v.

Griffey (Iowa), 48 N. W. Rep. 983. An agreement to Pubstance, a grant of an easement in real estate,

adopt and care for a child during her minority is not because his right could not have extended and as such within the statute, overlooks the dif

within the statute of frauds, since it might bave been a ten years. The happening of the most ference between the English and the Texas stat

terminated in less than a year by the child's death ites in this particular. The exisiing statutes of

during that time. Taylor v. Deseve (Tex.), 16 S. W. would have performed the contractis Tezas, while they substantially follow the En

Rep. 1008. A contract whereby plaintiff is to trade

defendant's lands for other lands, to manage the the case at bar, the contract between the

lands thus acguired, and to resell them and the tim.

ve contemplated its happening, is what para nis the agreement from coming within is pe of the statute. Applying these primele the case under consideration, we think it cha at the contract above set out was not aitti

statute. The agreement to give the när du p the trains was personal to Wood ari: pily. He could not transfer it. In case di fath within the year, the obligation of the minister ps to bim would have been performed, a:ht thereunder would have passed to bis ** Jexecutors. If it be held that each mentere family had an interest in the agreedest

, ta pe result would have followed :he desid ! Jh member, or all of them, within the rear agreement had been to give Wood a paus it would, under the above authorities

, o

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pd reason for holding it to be within the

Jer of the death of himself and family wide

e as certainly as in the other."

. UHODEDct when an employee proir 13"7"
s na former emyloymest, is not Maris T A
Llundawhere his reiese on tbe S.I.,
Tuna posiblts, though not in

bo hus! predste. Baltimore Breweries

to have to »!, Atl. Rep. 100, d. 106. A era consideration, agrees to

disgeris

lot Data Tren nages so long as the works for inj" • 972 233182, or until the other sball

ure tout M rithin the statute. Carter

-CORS*?!! 14 leb., 66 . W. Rep. 19. Dak.,

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TALI DIGEST

ber thereon for a compensation of halt the profits after paying defendant bis advances, is not within the statute of frauds invalidating agreements not to be performed within a year (Rev. St. Ind. 1881, sec. 4904), as it cannot be said that the contract could not be performed in a year, Durbam v. Hiatt (Ind.), 26 N. E. Rep. 401. Where a husband conveys property to his wife on the sole consideration of her promise to reconvey to him on request, and no time is fixed for the reconveyance promised, the verbal promise is not void, under the statute of frauds, as one not to be performed within a year. Haussman v. Burnham, 22 Atl. Rep. 1065, 59 Conn. 117. A parol contract of leas. ing entered into in March for a period of one year beginning April 1st is within the prohibition of the stat. ute of frauds, as "an agreement not to be performed within one year from the making thereof." Cook v. Redman, 45 Mo. App. 397. A contract by an actress to render services, entered into in June, 1888, and to continue so long as the success of the play continues, the season of the play having terminated within a year, was not within the statute of fraude. Haines y. Thompson, 19 N. Y. S. 184. Where a corporation by acquiescence adopts as its own a contract made by its promoter before organization, the act of adopting is not a ratification, which relates back to the date of the contract by the promoter, but is the making of a contract as of the date of the adoption; so that, though the contract made by the promoter was, by its terms, not to be performed within one year, it is not within the statute of frauds, if it be performed within one year from the date of its adoption. McArthur v. Times Printing Co. (Minn.), 51 N. W. Rep. 216. An agreement not to use certain land conveyed, for a particular purpose, is not an agreement “not to be performed within one year," and void under the statute. Hall v. Solomon (Cond.), 23 Atl. Rep. 876. An agreement by a tenant, made at the time of taking possession of a farm, that in consideration of his having the ice tben in the icebouse he would refill it, and leave as much ice in it when he went away as there then was, is not within tbe provision of the statute of frauds that no action shall be maintained on an agreement not to be per. formed within a year from the making thereof unless it be in writing. Brown v. Throop, 22 Atl. Rep. 436, 59 Conn, 596. An oral contract of employment from month to month, although continued for three and a half years, is not within the statute of frauds, as an agreement not to be performed within one

year. Kiene v. Shaeffing (Neb.), 49 N. W. Rep. 773. A verbal agreement to render services as a servant girl for another for $100 per year, the services to commence at the date of such agreement, is not within the statute of frauds (Gen. St. Kan. 1889, par. 3166, ch. 43, sec. 6), as the agreement might have been performed within one year. Aiken v. Nogle (Kan.), 27 Pac. Rep. 825, 47 Kan. 96. A parol contract made in November, to employ a person for one year, beginning with the 15th of the following December, is void under the statute of frauds, declaring void “every agreement that by its terms is not to be performed within one year from the making thereof.” Baker v. Codding, 18 N. Y. S. 159. A verbal agreement, whereby a railroad company undertakes to lay a switch for the use of a sawmill owner, and to maintain it as long as he should need it, is within the statute when it was expected and understood that he would need it for many years. Warner v. Texas & P. Ry. Co. (U. S. C. C. App.), 54 Fed. Rep. 922. Under Rev. St. Tex. art. 2464, a verbal agreement, which, by a fair interpretation, and in view of all the circumstances exist.

ing at the time, does not admit of performance within
a year from the time of its making, is void. Warner v.
Texas & P. Ry. Co. (U.S. C. C. App.), 54 Fed. Rep.
922. Evidence of an agreement to buy property, part
of the price in cash, balance in two years, and, in
case of default, the buyer to forfeit all claims to the
property, as well as to any payments made thereon,
negatives any idea that provision in regard to default
is an executory agreement, distinct from the agree.
ment of sale, and not to be performed within a year.
Von Kamen v. Roes, 20 N. Y. S. 548, 65 Hun, 625.
Where the purchaser of land sues for damages on ac-
count merely of the fraud of the seller's agent in mis-
representing the value of the land, and not on the
contract for the sale of the land, it is pot proper to
allow the defense of the statute of frauds, on the
ground that the contract, although one not to be per.
formed witbin a year, was not in writing. Tate v.
Watts, 42 Ill. App. 103. A contract of employment of
plaintiff as an actress, “the employment to endure for
thirty-five or forty weeks, perhaps a year," creates no
obligation to employ for a year, and is not within the
statute of frauds. Haines v. Thompson (Com. Pl.
N. Y.), 21 N. Y. S. 991, 2 Misc. Rep. 385. An oral
agreement entered into in October, 1886, for the sale
and delivery by plaintiff to defendant of a quantity
of corp, of more than $50 in value, by which the sel.
ler was to receive the market price paid for corn in
the county on any day between the time of delivery
and May, 1888, is not void under the statute of frauds,
since performance within one year is possible. Pow:
der River Live Stock Co. v. Lamb (Neb.), 56 N. W.
Rep. 1019. Where an oral lease of a farm requires the
exclusive use of the land by the tenant during three
months after the end of a year from the date of the
lease, it creates an interest in land, within the statute
of frauds, and is void. Carney v. Mosher (Mich.), 56
N. W. Rep. 935, 97 Mich. 554. A verbal agreement by
a railroad company to issue once a year for 10 years
an annual pass to a person and bis family, and to
stop its trains during that time at his house, was pot
an agreement not to be performed within a year,
within the statute of frauds, since it was to be per-
formed within a year upon the contingency of the
death of such person and his family within that time.
Weatherford, M. W. & N. W. Ry. Co. v. Wood (Tex.
Civ. App.), 29 S. W. Rep. 411, affirmed in (Tex. Sup.),
30 S. W. Rep. 859. A promise not to be performed
within a year, within the meaning of the statute of
frauds, is only one which is necessarily not to be per:
formed within the year. Fain v. Turper's Admr.
(Ky.), 29 S. W. Rep. 628.

An agreement not
to engage in

rival business in a certain lo.
calilty so long as the other party remains in
such business is not within
frauds.

O'Neal v. Hines (Ind.), 43 N. E. Rep. 946.
An extension of a note for a period longer than a year
is within the statute of frauds. Kearby v. Hopkins
(Tex. Civ. App.), 36 S. W. Rep. 506. A contract
capable of performance, and wbich may be required
to be performed, within one year, is not within the
statute requiring agreements not to be performed
within one year to be in writing. Hughes v. Frum
(W. Va.), 23 S. E. Rep. 604. A contract of fire insur-
ance for a period of three years, the policy being para
able after loss, is not within the statute of frauds.
Springfield Fire & Marine Ins. Co. v. De Jarnett
(Ala.), 19 South. Rep. 995. A parol agreement by an
employer to give the employee regular work as long
as he does faithful and honest service is not within
the statute of frauds. Louisville & N. R. Co. v. 01
futt (Ky.), 36 S. W. Rep. 181. A contract of emplog.

manal Carts of Last Resort, and of
lealt and Distriet Courts of tbe

w these that are Published
geheeled upon in our Notes of
n. except those Opinions in
portant legal Pripelples are Dis-
internet to the Profession at Large.

-1200, 66, 67, 87, 88, 92,%, 119, 120

2,0, 61, 65, 71, 75, 80, 97, 112

ARALIVED.

debt

mi

thined by Lind England, In Four Books,

sought.-W:1 a tristote, Knight , one of the

176. Court of common Pleas.

5 ADININ in from the Editions of Arch Debts

Libridne, Chitty, Stewart, Kert, lapd 11.414 ,*: | Datation, Sotes and References tare 2014 bond Leetsions wherein the Com.

death, the nacted, and all statutes Mod.

of decedent w

his lile, ! Tuliam Draper Lewis. Ph.

sabr for the - ? Dartment of Law of the l'ni

ft. ed. 1941 ringa. Book I. Philadelpbia,

tion by u fit EDWARD

6. ADTE1 lense of av Botnpt on li

which aditi, ja rent opinions of ALL the State

been under a It appears to sessed ads period oli? verse has but tbatitla site period. Rep. 179.

7. APPEAL

duly appeitto 56 bankingiau

error in tbor

favor of the .52 V. FELTON, EN

8. APPEALS

pany in the b .12, 44,94

ure proceelit ...5

from an ord: priority over ceiver to pay TRUST CO. V.L Circuit, 25 Feb

9. ASSIGNME Provision.solvent debtor deed of sig trustee to dis ent withibe such prof. shonld be tre estate distr.b

3,2,1,1, 33, 78, 82, 84, 95, 100, 102,

., 39, 166, 108, 113 ....20, 22,68, 114

а

- 1, 3, 4, 51, 66, 67, 64, 98, 99, 109

...........3 49,53, 9), 49
.......... 54, 76, 111, 122

...19, 21, 50, 72, 81, 91, 104
..11, 54, 58, 89, 74, 79, 80, 121

. 21,74, 77, 166, 107, 110, 118 I........, 8, 17, 41, 42,60,63, 101

the

statute of

...4, 28, 29, 35, 83 48,3,33,49,46, 47, 48, 70, 89, 116 2952-Application.--A provision

REESE V. PLAT od does not protect the com

10. ATTACHM truly states the facts, and

of an attaebo posed of his p

tion in ust til ut, c.8.C.C. of App., Ninth II., 45 S. ER

constructivels -Cause of Death.-Wbere Beneficiary,-

11. BENEVOL a plneident with its inflic.

voluntaryba thereby, it is a death within as the insurance shall not

boyod by the subsequently, conditions, il come contrac

of foley that no agent can waive

with the agent's advice, us
-STANDARD LIFE & ACCI-

predoces blood poisoning, is

tant where the injury is the

.

No.

VOL. 41

CENTRAL LAW JOURNAL.

81

ment for one year, to commence when an employee secures a release from a former emyloyment, is not within the statute of frauds, where his release on the date of the contract was a possibility, though not in fact secured to a later date. Baltimore Breweries Co. v. Callahan (Md.), 33 Atl. Rep. 460, 82 Md. 106. A contract wbereby one, for a consideration, agrees to employ another at certain wages so long as the works of tbe first are kept running, or until the other shall see fit to quit, is not within the statute. Carter White-Lead Co. v. Kiplin (Neb.), 66 N. W. Rep. 536.

BOOKS RECEIVED.

ing at the time, does not admit of performance in a Fear from the time of its making, is raid. Maret Texas & P. Ry. Co. (l'.S.C.C. App. 1,34 Fed. in 2. Evidence of an agreement to buy propert, s of the price in cash, balance in two years

, and case of default, the buyer to forfeit all claims in property, as well as to any payments made the negatives any idea that provision in regard to the 14 an executory agreement, distinct from the mos ment of sale, and not to be performed within 3 77 Von Kameo v. Roes, 20 N. Y. S. 545, 6 Hue, Where ibe purchaser of land sues for damage couot merely of the fraud of the seller's agent in Es representing the value of the land, and not on t contract for the sale of the land, it is not prean allow the defense of the statute of frauds 03 kround that ihe contract, although one portales formed witbin a year, was not in writing. To Watts, 42 11. App. 103. A contract of explorer plaintiff as an actress, "the employinent to ender birty.tive or torty weeks, perhaps a year," trent obligation to employ for a year, and is not with a tatute of frauds. Haides v. Thompson !C!! 6. Y.), 21 N. Y. S. 991, 2 Misc. Rep. 23. AS igreement entered into in October, 188, for det si ind delivery by plaintiff to defendant of a ¢329 of corn, of more than 30 in value, by which boot er was to receive the market price paid for an i be county on any day between the time of den ind May, 1888, is not void under the statute od tres ince performance within one year is posible

. Put ler River Live Stock ('0. v. Lamb (Neb.), so I lep. 1019. Where an oral lease of a farm requiresi) xclusive use of the land by the tenant duricette bontbs after the end of a year from the date its

Commentaries on the Laws of England, in Four Books.

By Sir William Blackstone, Knight, one of the Justices of His Majesty's Court of Common Pleas. With Notes selected from the Editions of Arch. bold, Christian, Coleridge, Chitty, Stewart, Kerr, and others; and in addition, Notes and References to all Text Books and Decisions wherein the Com. mentaries bave been cited, and all Statutes Mod. ifying the Text. By William Draper Lewis, Ph. D. Dean of the Department of Law of the Uni. versity of Pennsylvania. Book I. Philadelphia, Rees Welsh & Company. 1897.

WEEKLY DIGEST OF ALL the Current Opinions of ALL the State Add Territorial Courts of Last Resort, and of the Supreme, Circuit and Distriet Courts of the United States, except those that are Published in Fall or Commented upon in our Notes of Kecent Dectsions, and except those Opinions in which no Important Legal Principles are Dis. enssed of Interest to the Profession at Large. ARKANSAS........

56 ILLINOIS .......10, 18, 22, 45, 62, 66, 67, 87, 88, 92, 96, 119, 120 32, 49, 61, 65, 71, 75, 80, 97, 112

52

ase, it creates an interest in land, within the same
i frauds, and is void. Carney v. Mosher (1
1. W. Rep. 935, 97 Mich. 554. A verbal agreement

railroad company to issue once a year for the n annual pass to a person and bis famils, et top its trains during that time at his house, FC n agreement not to be performed within 1.5 rithin the statute of frauds, since it was to be par ormed within a year upon the contingener d eath of such person and his family witbin the Featherford, M. W. & X. W. Ry. Co. v. Wood L iv. App.), 29 S. W. Rep. 411, affirmed in Tess ) S. W. Rep. 859. A promise not to be perfare ithin a year, within the meaning of the start 'auds, is only one which is necessarily not to??? irmed within the year. Fain v. Turder' 110 1y.), 29 S. W. Rep. 628. An gre? BEN ! engage in a rival business in it come vilty so long as the other party solu ich business is not within the suite auds. O'Neal v. Hines (Ind.), 43 N. E. Ben n extension of a note for a period longer that are

within the statute of frauds. hearos r. Bir l'ex. Civ. App.), 36 S. W. Rep. 60.

INDIANA......
INDIAN TERRITORY.. ...
KANSAS 7, 8, 14, 15, 16, 30, 31, 37, 38, 78, 82, 84, 95, 100, 102,

113, 115, 117
KESTICKY
MASSACHUSETTS.
MICHIGAN....
MINSESOTA..
MISSOURI.
NEW YORK.
NORTH DAKOTA.
0810....
TENNESSEE.

12, 44, 94

..5 .26, 39, 105, 108, 113 ..20, 43, 68, 114

. 86 ..2, 25, 36, 51, 55, 57, 64, 93, 98, 109

..3 49, 53, 90, 99

54, 76, 111, 122 .19, 27, 50, 72, 81, 91, 104 .11, 34, 59, 69, 74, 79, 85, 121 .21, 24, 77, 106, 107, 110, 118

TEXAS......

.73 ....4, 28, 29, 35, 83

UNITED STATES C. C....... UNITED STATES C.C. APP........1, 8, 17, 41, 42, 60, 63, 101 UITTED STATES D. C........ UNITED STATES S. C....... Wiscos IN..............6, 13, 23, 33, 40, 46, 47, 58, 70, 89, 116 1. ACCIDENT INSURANCE-Application.-A provision la the application and policy that no agent can waive lay provisions of the policy does not protect the com. pady, where the applicant truly states the facts, and teen answers in accordance with the agent's advice, as to the effect of such facts.-STANDARD LIFE & ACCI: DEST IN8. Co. v. FRASER, U.S.C. o. of App., Ninth

pable of performance, and which war der be performed, within one year, is not a atute requiring agreements not to be ithin one year to be in writing. Hugbe: 1. P. Va.), 23 S. E. Rep. 604. A contract of the

ce for a period of three years, the polies heiti

Circuit, 76 Fed. Rep. 705. 2 ACCIDENT INSURANCE

Cause of Death.- Where virulent matter, which produces blood poisoning, is

le after loss, is not within the statute d'! ringtield Fire & Marine Ios. Co. r. ad Ja.), 19 South. Rep. 995. A parol agreement oployer to give the employee regular most suite he does faithful and honest service is er e statute of frauds. Louisville & J. E.LU it (Ky.), 36 S. W. Rep. 181. A contrado

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proximate and sole cause of the disability or death."MARTIN V. MANUFACTURERS' ACCIDENT INDEMNITY CO., N. Y., 45 N. E. Rep. 377.

3. ACCIDENT INSURANCE-Uppecessary Danger.-One who hunts for game with a loaded gun cannot be said to have voluntarily exposed himself to unnecessary danger by gucb act, within the meaning of the provis. ion in an accident insurance policy which declares that for injuries sustained by reason of a voluntary expos ure to unnecessary danger, there can be no recovery. -CORNWELL V. FRATERNAL ACC. ASSN. OF AMERICA, N. Dak., 69 N. W. Rep. 191.

4. ACTION-Assumption of Mortgage Debt. Whether an action to enforce against the grantee of a mortgagor an agreement in the deed to assume the mortgage debt must be brought at law or in equity is to be deter. mined by the law of the place where the remedy is sought.-WILLIARD V. WOOD, U. 8. S.C., 17 S. O. Rep. 176.

5. ADMINISTRATION Sale of Land for Decedent's Debts-When Authorized.-Though a conveyance of land made in trust to secure an existing debt and fu. ture advances is not recorded till after the grantor's death, the title vests in the grantee as against creditors of decedent who did not attach the property during his life; and the executors have no power to sell the game for the payment of decedent's debts, under Pub. St. ch. 134, § 2, as land "liable to attachment or execu. tion by a creditor of the deceased in his life-time."EDWARDS V. BARNES, Mass., 45 N. E. Rep. 351.

6. ADVERSE POSSESSION.-One who sets up the de. fense of adverse possession must overcome the presumption that the occupation by one of premises to which another holds the legal title is deemed to have been under and in subordination to such title, unless it appears that the premises have been held and pos. sessed adversely to such legal title for the statutory period of limitation, and must show, not only the ad. verse character of the possession on which he relies, but that it has been continuously adverse for the requi. site period. RYAN V. SCHWARTZ, Wis., 69 N. W. Rep. 179.

7. APPEAL-Parties.-A receiver of an insolvent bank, duly appointed to take charge of the assets under the banking law, is a necessary party to a proceeding in error in this court to reverse a judgment rendered in favor of the bank prior to his appointment.-SCANNELL V. FELTON, Kan., 46 Pac. Rep. 948.

8. APPEALS – Parties.-An insolvent railroad com. pany in the hands of a receiver appointed in foreclos. ure proceedings is a necessary party to an appeal from an order giving to certain judgments against it priority over the mortgages, and directing the receiver to pay such judginents.-FARMERS' LOAN & TRUST Co. v. LONGWORTH, U. S. C. 0. of App., Ninth Circuit, 76 Fed. Rep. 609.

9. ASSIGNMENT FOR BENEFIT OF CREDITORS -Void Provision.- Where an assignment is made by an insolvent debtor for the benefit of his creditors, and the deed of assignment contains a provision directing the trustee to distribute the estate in a manner inconsistent with the statute relating to general assignments, such provision will not avoid the conveyance, but should be treated as a nullity by the assignee, and the estate distributed by him as the statute prescribes.REESE V. PLATT, Kan., 46 Pac. Rep. 990.

10. ATTACHMENT-Fraud.-To warrant the issuance of an attachment on the ground that a debtor bas dis. posed of his property to defraud creditors, the disposi. tion must have been actually, as distinguished from constructively, fraudulent.-WADSWORTH V. LAURIE, Ill., 15 N. E. Rep. 435.

11. BENEVOLENT SOCIETY - By-lawg-Designation of Beneficiary.- Where an applicant for insurance in a voluntury benevolent association covenants to be bound by the by-laws as they exist or may be changed subsequently, and the certificate is issued on these conditions, the by-laws and subsequent changes become contracts by which the applicant, is bou d, un.

communicated to a wound coincident with its inflic. tlon, and death is produced thereby, it is a death within

policy which provides that the insurance shall not esteud "to any case except where the injury is the

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82
CENTRAL LAW JOURNAL.

No. 4

S. DESCIST

caluberers, for the amounts due less against public policy.-WEST V. GRAND LODGE OF pany, or had been taken in the name of its stockhold.

for up the charge of fraud by In Land.-The THE ANCIENT ORDER OF UNITED WORKMEN OF TEXAS, ers, and paid for by and held for it; and the foreign

est stop them trom setting up a ot a condition

In real propert Tex., 37 8. W. Rep. 966. company was organized to assist in disposing of the

Prevost of their alleged llen.12. CARRIERS-Passengers--Duty to Light Platform. domestic company's stock.-ALABAMA MARBLE & STONE

u Min. 00., Teon., 178. W. p. 87, 82, ma -A railway company is only required to give a pàg. Co. v. CHATTANOOGA MARBLE & STONE Co., Tenn., 37

grantor's deat senger reasonable time to leave the car and get out of S. W. Rep. 1004.

elde-A charge that, wbere them as deced the way of the train, before starting. It is not required 20. CORPORATIONS - Liability of Stockholders. - Ac. buvet is known vill produce a of the law of to give the passenger time to leave the depot platform. cording to its articles, a domestic corporation was se peamed to have utleipated 158. K. Rep. 3 -LOUISVILLE & N. R. CO. V. RICKETTS, Ky., 37 S. W. organized "to manufacture and deal in azotine and

bad, and that "trom the very fact

37. ELECTIO! Rep. 952. other fertilizing materials, grease and stearin." Held, but it have the right to inter as

A political pa 13. CARRIERS OF PASSENGERS-Passenger in Sleeping that it was not organized for the purpose of carrying als but the blow was intended prior

factions, and Car.-A complaint in an action to recover for personal on a manufacturing business exclusively, and that its mata period of time inapprecia posed of slary injuries and maltreatment alleged to have been sus. stockholders are not within the exception found in

Peat emt.-ALIAN V. UNITED STATES, tall set of cand tained by plaintiff while a passenger on a train of de- Const. art. 10, $ 3.-COMMERCIAL BANK OF ST. PAUL V.

Toters of the fendant railroad company, where she occupied a berth AZOTINE MANUFG. Co., Minn., 69 N. W. Rep. 217.

In-Enkide-self-defense.- Where to consider in a sleeper, by reason of the failure of defendant's 21. CORPORATIONS Llability of Trustees. - The

martlight sault upou esotber, pro and nominatio servants to awaken her until the train had stopped at Montana statute providing that, if the trustees of &

may vark of the latter, in good faith determine whi her place of destination, and by their hurrying corporation organized tbereunder fall to make a re

we ontest, his right of self-de trae represent her from the car without being dressed, states a cause port of its affairs at a specified time, they shall be lia.

de munited person then, in viola candidates of of action in tort, and not for breach of contract.-MC- ble for its debts, creates a joint and several liability to

sa in vith a deadly weapon, and after the nom KEON V. CHICAGO, M. & St. P. RY. CO., Wis., 69 N. W. each creditor, which can be enforced by an action at

us hede din great bodily harm.- and regularly Rep. 175. law against one or all of the trustees. This liability is

in fares, U. 8.8.0.,178. O. Rep. 172. ner pointed ou 14. CHATTEL MORTGAGE-After-acquired Property.- not in the nature of a penalty. The right of the cred.

sur-letrition - Amendment. -An 4 Pre. Rep. 46 At common law nothing can be mortgaged that is not itor is vested as soon as it accrues, and may be as

ile beled as to a Christian pame in existence, or when it does not belong to the mort- signed, and cannot be defeated by any subsequent

land tort
, after ples and before equitable char

18. EQUITY gagor at the time when the mortgage is made, but change or repeal of the statute.-FITZGERALD V, WEID.

MGALD, Kab., 4 Pac. Rep. 86. parties may make a contract with reference to after- ENBECK, U.S.C.C., D. (Minn.), 76 Fed. Rep. 693.

IS A matter of

-Terant-Sufeleney of Charge for the court acquired property, to be added to and made a part of 22. CORPORATIONS Mortgages Foreclosure. - In

die fease it is not necessary that discretion, oro the property mortgaged, and the contract will be foreclosure against a corporation, the mortgagee, by

Jau as feliness of statement in the by a fary, and valid and binding between the parties, and all those the production of the note and mortgage, duly made

picion papers that is required in the such discretio dealing with the property wit a full knowledge of the and executed by the corporation under the hand of its

chant Lieke, Kan., 4 Pac. Rep. 947. condition of the mortgage; and, if the future-acquired president, and corporate seal attested by the secretary,

Rep. 959 hing - Obscenity

–Under Rev. St. property is mingled with the property described in makes out a prima facie case that they are valid obli.

14, 1986), declaring gulity of pub

89. EQUITYthe chattel mortgage, and added to and becomes a part gations, executed by authority.-ASHLEY WIRE Co.v.

le ore Il years of age who uses

Fuit for the ter of the stock of goods mortgaged, and the rights of ILLINOIS STEEL CO., III., 45 N. E. Rep. 410.

y language in the presence or

for non-perfor third person have not intervened, it becomes a lien on

23. CORPORATIONS - Stock and Stockholders.- Under

nik, 3. I the words charged are not

grantor claim all of the property intermingled and added to the Rev. St. § 1754, providing that, unless otherwise ex

sering pers, the Indictment must sbow

ground of misc mortgaged property.-DODGE V. SMITH, Kan., 46 Pac. pressly provided by law or the articles of organiza

a ferments that they were used in that

a decree of Rep. 990.

tion, the directors of any corporation may call in the

Perodestood by the female.-STATE

contract.-JOH 15. CHATTEL MORTGAGE – Description-Fraud.-The subscriptions to the capital stock by installments by

149. fact that the goods mortgaged are more than enough giving such notice thereof as the by-laws shall pre.

alten Sheequent – Equity -A deed in value to secure the indebtedness does not of itself, scribe, to render a call for an installment of stock en.

40. EXECUTIC establish fraud, even if a badge thereof; but perhaps

similation of the performance of upon a note gly forceable, in the absence of any provision of law or of the security might be so excessive as to cast suspicion thë articles of association fixing the time for its pay.

tered in an act upon the transaction to the extent of requiring an ex. ment, a notice to be given must be prescribed by a by

sherit to atne planation.-BANE V. HARTZELL, Kan., 46 Pac. her. 961. law, or resolution or regulation having the effect of a

therein, and 16. CHATTEL MORTGAGE Possession – Fraud.-The by-law, as to such call, uniform as to all stockholders.

sale in such ac rule of the common law is that a mortgage of personal -GERMANIA IRON MIN. CO. V. King, Wis., 69 N. W. Rep.

for Irregularit property, unaccompanied by possession, is prima facie 181.

Wis., 9N, W. void as to creditors and subsequent purchasers and 24. CORPORATIONS--Stockholders' Liability.-The ac.

41. FEDERAL mortgagees in good faith; yet the presumption of tion given by Gen. St. Kan. par. 1192, to enforce the

federal court fraud arising from continued possession of the mortstockholders' liability when an execution against a

ceivers, and gagor may be rebutted by explanations showing the corporation is returned unsatisfied, is transitory, and

her beription. - An administra | any one whose

pertaining to transaction to be fair and honest, and giving a reason.

may be brought outside the state against a non-resi. able account of the retention of possession.-ARKANdent stockholder. – NATIONAL BANK OF OXFORD V.

All proceedings in the probate by the action SAS CITY BANK V. SWIFT, Kan., 46 Pac. Rep. 950. WHITMAN, U. S.C.O., S. D. (N. Y.), 76 Fed. Rep. 697.

intent of sale and confirmation, and administe

Contracts.17. CONTRACTS-Assignment.-Where one party to a 25. CORPORATIONS-Ultra Vires Lease

"ball interest in and to 893 IRON & COAL C contract stipulates therein that he will not assign the Where the lessee of the franchises and property of a

Fed. Rep. 624 same without the consent of the other, this does not gaslight company takes possession of and occupies

42. FEDERAL prevent an undisclosed third party, for whom he acted the property, the lessor may recover on the lease for

Where the reed as agent in making the contract and in carrying on the

rent accrued, though the lease is ultra vires.--BATH work provided for therein, from maintaining an action GABLIGHT CO. V. CLAFFY, N. Y., 45 N. E. Rep. 390.

of error sued upon it.-PRICHARD V. BUDD, U. S. C. C. of App., 26. COUNTIES —

– Division of County – Apportionment

been formally

SV. LIKENS, Tex., 378, W. Rep. appellate cour Fourth Circuit, 76 Fed. Rep. 710. of Taxes.-The defendant county was at one time

was in fact del 18. CONTRACTS-Construction-Risks of Contractor.part of plaintiff county, and was set off and organized

He Wanteage or Assignment. - An Under a contract with a city to construct a newly de

subsequent to the State equalization of 1881. In the signed apparatus for filtering water, to stand certain

apportionment of State taxes for the years 1883, 1884, tests, the risk that the apparatus will stand the tests and 1885, the defendant county was not mentioned,

a into the said P, and his suc-chinery in the and demands made upon it is upon the contractor.

and, as a result, the tax for the whole territory was SHOENBERGER V. CITY OF ELGIN, III., 45 N. E. Rep. 434. apportioned to and paid by plaintiff county: Held

inter," provided that, if the making of all 19. CORPORATIONS – Insolvency-Claims-Validity.that, as plaintiff county bad an adequate remedy by

lije, pay certain creditors used the same It was error to disallow a claim of a foreign corpora

assumpsit to recover the amount

of the taxes so paid, tion against an insolvent domestic corporation wbose mandamus would not lie to compel defendant county to

sind be told, and the prop-chinery is a pa affairs were being wound up, on the ground that the

raise the amount by tax upon property within its former was a branch of the latter, where it appeared

limits.-BOARD OF SUP'RS OF BAY COUNTY V. BOARD OP the former was also insolvent, and in the hands of a SUP'RS OF ABENAC COUNTY, Mich., 69 N. W. Rep. 146.

wa malignment for the benefit is actually or receiver; that there were dealings between them; and

27. CREDITORS' BILL -- Pleading and Proof. -10

U DRY-GOODS 00. V. MALthat an indebtedness existed, though some stock of

creditors' bill, where a deed of trust is attacked for the domestic company was held by the foreign com

fraud, and it also is alleged that complainants have a

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