person whose duty it was to do it. It was done after all the data to be ascertained by the assessors and the board of supervisors had been ascertained according to law. In effect and character, it was as though the clerk of a court in entering a judgment had computed the sum adjudged due when the verdict of a jury or the decision of a judge had determined every thing essential to the judgment,except the result of a mathematical computation. No one would contend that such a judgment would be void.

When the assessment-roll and warrant came to the hands of the collector, they were apparently regular. In the case of Albany City Bank v. Maher, the assessors had omitted to perform an act prerequisite to their authority to make any assessment, and the assessment was therefore void. Here it was simply irregular. In Bellinger v. Gray, 51 N. Y. 610, and in Westfall v. Preston, 49 id. 349, the defect in the proceedings by which the tax was imposed appeared in the papers which constituted the process of the collector for collecting

the tax.

The complainant cannot succeed upon either branch of its case.

Motion for injunction denied.

NEW YORK COURT OF APPEALS ABSTRACT.

CONTRACT-AGREEMENT TO FURNISH EVIDENCE FOR SUIT NOT NECESSARILY ILLEGAL.. B. was indebted upon a mortgage he had executed. H., without authority from B., paid the amount of the mortgage to a receiver, in whose hands it was, and the receiver satisfied and discharged the mortgage and delivered it, with the satisfaction, to H. Thereafter an action to foreclose the mortgage was commenced by one claiming to own it, and B. pleaded payment. Thereafter H. and B. made an agreement in writing in which, after reciting the above facts, it was agreed on the part of H. to furnish to B. the papers and evidence necessary to defeat the action, and B. and T., a junior mortgagee, on their part, in consideration that H. should furnish such papers and that thereby such action should be defeated and a recovery on the mortgage finally prevented, agreed to pay H. half the amount of the mortgage. Held, that the contract was not, on its face, illegal, and the circumstances did not render it so. The respective rights and obligations of H. and B., growing out of the payment by H., were not free from doubt, and there was no objection if B. availed himself of the act of H. in his agreeing to pay him in part for his advances. There is no authority for so extensive a proposition as this, that every agreement made by a third person to furnish evidence in a litigation, for a compensation, contingent upon the event, is illegal. In Stanley v. Jones, 7 Bing. 369, it was held that an agreement made by a third person to communicate to one claiming to have been defrauded such information as would enable him to recover damages for the fraud, and to endeavor to procure evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered, was illegal. But in that case the one making the offer was an entire stranger in interest to the proposed litigation, and the court said that such an agreement was illegal from its manifest tendency to prevent justice. Here, H. had an interest in the subject of the litigation. The mere fact that the agreement might furnish a temptation to H. to prevaricate or furnish false testimony, did not stamp the agreement as illegal per se. Judgment affirmed. Wellington v. Kelly. Opinion by Andrews, J.

giving a small pecuniary legacy and some household articles, gives five-sixths of his residuary estate to five of his children, as follows: "I will and bequeath unto A, B, C, D and E five-sixths of all the residue and remainder of all my estate, both real and personal of every name and nature, to be equally divided between them." The remaining one-sixth he gave to a trustee in trust, to "to pay over to my son F the interest" during life, with authority, in a certain contingency, to pay any part of the principal, and at F''s death to pay the "surplus then remaining in his hands" to F's children. The final clause was this: "I will, authorize and empower my executor, hereinafter named, to sell and convey by deed, any and all my real estate, at such time and in such manner as he shall think it proper for the interest of my estate, and to rent and lease the same until thus sold. Also, I do hereby appoint my son William T. Morse executor," etc. Held, that the will created a valid express trust in the executor, under the Revised Statutes, to sell lands for the benefit of legatees under 1 R. S. 728, § 55, subd. 2, and that the children of the testator took no title or estate in the land. One of testator's sons could not, therefore, maintain an action for the partition of the land. Authority to an executor to sell lands vests no estate in him, unless accompanied with a right to receive the rents and profits, but the lands descend to the heirs or pass to the devisees, subject to the power. 2 R. S. 729, $56; 4 Kent Com. 321; Crittenden v. Fairchild, 41 N. Y. 289; Hetzel v. Barber, 69 id. 1; Prentice v. Janssen, 79 id. 478. In this will the power of sale is accompanied by the power to rent, which carries with it the right to receive the rents and profits, and it is clear that the power of sale was conferred for the purpose of conversion and distribution of the proceeds of sale among testator's children. See Fisher v. Banta, 66 N. Y. 468; Marsh v. Wheeler, 2 Edw. Ch. 156; Kinnier v. Rogers, 42 N. Y. 531; Moncrief v. Ross, 50 id. 431. See, also, sustaining the general conclusion, Vernon v. Vernon, 53 N. Y. 351, and cases cited; Brewster v. Striker, 2 id. 19. If partition should be allowed, the object of the testator would be frustrated by allowing a portion of the beneficiaries to bind the others and compel a sale by an election to reconvert their particular shares into realty. Holloway v. Radcliff, 23 Bea. 163; Craig v. Leslie, 3 Wheat. 577; Snell's Princ. of Eq. 169-171. Judgment affirmed. Morse v. Morse. Opinion by Andrews, J, [Decided April 19, 1881.]

RECEIVER-CANNOT RATIFY ACT TO THE PREJUDICE OF HIS TRUST-RETAINING CHECKS CLAIMED TO EFFECT TRANSFER OF CREDIT.-In an action by the receiver of an insolvent bank to recover the amount of an over draft, it was sought by defendant to reduce the amount due from him by applying to his credit balances due from the bank to certain depositors, which such depositors had attempted, by checks drawn on the bank about the time of its failure, to transfer to defendant's account. Certain of these checks which were accepted by an officer of the bank, came into the receiver's hands and were retained by him, and it was claimed by defendant that this retention amounted to a ratification of the act of the officer of the bank who received them. Held, that the act of the receiver could not be so construed. He was the mere officer of the court and powerless to do any thing except as provided by law or directed by the court. The receiver is described as an officer of the court, a trustee for the creditors and a representative of the corporation. Devendorf v. Barclay, 23 Barb. 659. It has been held that he cannot waive a technical defense (McEwert v. Lawrence, Hoff. Ch. 175), or the rights of the creditors for whose protection he was appointed, Reilly v. Dusenbury, 10 J. & S. 238. See, also, High. on Receiv., § 188. If under the authority derived from the stat

ute the receiver in this case had the power to allow a set-off (2 R. S. 469, §§ 68, 74, Laws 1849, ch. 226, § 11), that power did not extend to a case where no mutual debts subsisted at the date of his appointment and a demand had been afterward assigned to effect such purpose. In re Van Allen, 37 Barb. 231. Judgment affirmed. Van Dyck v. McQuade. Opinion by Finch, J.

[Decided April 26, 1881.]

WILL- — EXECUTORS IN DIFFERENT STATES - EXECUTOR IN ONE NOT CHARGEABLE WITH ASSETS IN HANDS

OF ANOTHER.-S. died in this State, leaving a will, in which she gave legacies to persons in New York and also to persons in Michigan, but directed that the New York legatees should be first paid. She appointed P., a resident of this State, executor for carrying out the provisions of the will "so far as they relate to parties and property in this State," and G., of Michigan, executor "for every thing so far as they relate to parties and property in the State of Michigan and elsewhere." P. presented the will to a surrogate in this State, and it was admitted to probate, and he qualified as executor. Upon an authenticated copy of the will and its probate in this State the will was admitted to probate in Michigan, and G. qualified as executor. P. took possession of testatrix's assets in New York, and after paying her debts here there was nothing left for distribution to the legatees. After payment of her debts in Michigan there was left in the hands of the Michigan executor more than enough to pay the New York legatees. P. demanded from the Michigan executor enough of the funds of testatrix in his hands to pay the New York legatees, but payment was refused. Held, that P. was not bound to bring action in the Michigan courts to compel the executor there to pay over the assets in his hands, or a sufficiency thereof to pay the New York legatees, and that he could not be charged with the Michigan assets, for a failure to do 80. Testatrix had the power to name P. executor for this State, and G. for Michigan (3 Redf. on Wills, 53-72; Williams on Exrs. 217; Despard v. Churchill, 53 N. Y. 192; Hartnett v. Wandell, 60 id. 350); and to confine each in his duties to the State for which he was appointed. The Michigan executor has the same authority in his State that the New York one has in his, and neither is responsible for the assets in possession of the other. The administration in Michigan is in no respect auxiliary to that in New York. In each State the executor derives his title from the will and not from the letters issued to him. Even if P. and G. were joint executors in this State, P. could not have compelled the surrender by G. of assets in his hands, and would not have been chargeable with them. Burt v. Burt, 41 N. Y. 46; Adair v. Bremmer, 74 id. 539. In the cases, Shultz v. Pulver, 11 Wend. 363, and Matter of Butler, 38 N. Y. 397, in which executors were charged with assets out of the State, there was no administration elsewhere but in this State. Judgment affirmed. Sherman v. Page. Opinion by Earl, J. [Decided April 19, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

EMINENT DOMAIN-TITLE TO LAND APPROPRIATED DOES NOT VEST IN STATE UNTIL COMPENSATION PAID -CANAL WHAT IS.-The State of Indiana, under its internal improvement act, located a canal through the lands of C. in that State, entered the lands and constructed works designed for a canal. The canal was in part completed, water let in, and to some extent navigated, but not in the portion that passed through C.'s land. The banks were built on that portion, and water let in, but no navigation took place, and a lock near by was never sufficiently completed to allow boats

to pass through. No compensation was made C. for the lands, other than the benefit to be derived by him from the canal. Thereafter the State leased the power from the water running through the canal. Under the later Indiana decisions, when lands were taken by the State under the internal improvement laws, and just compensation made to the owners, the title in fee was transferred from the owner to the State. Waterworks Co. v. Burkhart, 41 Ind. 364; Nelson v. Fleming, 56 id. 310. The earlier decisions were the other way. Edgerton v. Huff, 26 Ind. 35. But until compensation has been made title does not pass. Rubottom v. McClure, 8 Blackf. 508; Hankins v. Lawrence, id. 256. See, also, to the same effect, elsewhere, Rexford v. Knight, 11 N. Y. 314; Nichols v. Som. & Ken. R. Co., 43 Me. 359; Cushman v. Smith, 34 id. 258. Held, that even if the benefit to C. from the opening and operation of the canal would have been sufficient compensation for the lands appropriated therefor, there was not such a canal constructed as the internal improvement act contemplated, and consequently there was not compensation for the land taken from C., and the title to the land never vested in the State, but remained in C. A canal in the sense that term implies in this connection means a navigable public highway for the transportation of persons and property. It must not only be in a condition to hold water that can be used for navigation, but it must have in it, as part of the structure itself, the water to be navigated ready for use. Such an instrumentality for "the advancement of the wealth, prosperity and character of the State" (Rubottom v. McClure, supra, 507) might confer benefits that would be a just compensation for the private property taken for its use, but until such a structure is actually furnished complete, it can in no proper sense be said that the works have been constructed from which the benefits that are to make the compensation can proceed. A mill-race carrying water for hydraulic purposes is not enough. There must be a canal fitted in all respects for navigation and open to public use, before the benefits can accrue to the owner which are under the law to overcome his claim for damages. Decree of U. S. Circ. Ct., Indiana, affirmed. Kennedy v. City of Indianapolis. Opinion by Waite, C. J.

[Decided March 30, 1881.]

INFANT JURISDICTION OF FEDERAL COURT AS TO PERSONAL SERVICE - WHEN REQUIRED TO GIVE JURISDICTION. - Plaintiff, an insurance company, brought action in the United States Circuit Court for the district of Michigan, against an infant, to have cancelled, as fraudulent and void, a policy issued by plaintiff upon the life of the defendant's father for the benefit of defendant, and to enjoin defendant from maintaining any suit thereupon. The infant was not at the time a resident of Michigan, but had left that State and gone to Minnesota to reside. No personal service of process was made upon him, but upon a report by the marshal of the fact that defendant had temporarily left the State, and that he made service on his general guardian, this was declared sufficient service by the Circuit Court, which thereupon appointed a guardian ad litem, who appeared and represented the infant in the suit. The infant had no property in Michigan. Held, that the Circuit Court obtained no jurisdiction of the infant, and a decree against such infant was void. The jurisdiction possessed by the English courts of chancery from the supposed delegation of the authority of the crown as parens patriæ is more frequently exercised in this country by the courts of the States than, by the courts of the United States. It is the State, and not the Federal Government, except in the Territories and the District of Columbia, which stands, with reference to the persons and property or infants, in the situation of paren

66

Such

patria. Accordingly, provision is made by law in all the States for the appointment of such guardians, whose duties and powers are carefully defined. The authority of the Federal courts can only be invoked within the limits of a State for such an appointment where property of the infant is involved in legal proceedings before them, and needs the care and supervision of an officer of that kind. In such a case, to preserve the property from destruction or waste, the Federal courts may appoint a guardian to take care of it pending the proceedings. And those courts will always see that a proper 'guardian ad litem has charge of the infant's interests where his property is involved in proceedings before them. This is the extent of their authority. The statute of Michigan requiring the general guardian of an infant to appear for and represent his ward in all legal suits and proceedings, unless when another person is appointed for the purpose as guardian or next friend," does not change the necessity of service of process upon the defendants in a case before a court of the United States where a personal contract alone is involved. It may be otherwise in the State courts; it may be, that by their practice, the service of process upon a general guardian, or his appearance without service, is deemed sufficient for their jurisdiction. In some States such may be the fact, but the State law cannot determine for the Federal courts what shall be deemed sufficient service of process or sufficient appearance of parties. Substituted service, by publication, against non-resident or absent parties, allowed in some States in purely personal actions, is not permitted in the Federal courts. service can only be resorted to where some claim or lien upon real or personal property is sought to be enforced, and the decision of the court will then only affect property of the party within the district. R. S., § 738. In all cases brought to enforce or cancel personal contracts, or to recover damages for their violation, the statute requires a personal service of process upon the defendants, or their voluntary appearance. And the equity rules qualify the statute only so far as to allow, in cases of husband and wife, a copy of the subpoena to be delivered to the husband, and in other cases a copy to be left at the dwelling-house, or usual place of abode of the defendant, with some person who is a member of or resident in the family. In either mode, the defendant is to be served within the district, and until such service or his appearance, the court has no jurisdiction to proceed or to render a decree affecting his rights or interest. There being here no property of the infant defendant within the district of Michigan, which the court could lay hold of — and he being absent from it-there was no foundation laid for any progress by the court in the case. It never acquired jurisdiction over the infant; it could therefore appoint no guardian ad litem for him, and the decree rendered against him was ineffectual for any purpose. Cases considered and distinguished, Preston v. Dunn, 25 Ala. 513; Robb v. Lessee, 15 Ohio, 699; Gronfier v. Puymirol, 19 Cal. 629; Bustead v. Yates, 4 Dana (Ky.), 429. See, also, Pennoyer v. Neff, 95 U. S. 714. Judgment of U. S. Circuit Court, Minnesota, affirmed. New York Life Insurance Co. v. Bangs. Opinion by Field, J.

[Decided May 2, 1881.]

MUNICIPAL BONDS-JURISDICTION-STATE STATUTE REQUIRING VALIDITY TO BE DETERMINED BY COUNTY COURT, WHEN VALID. In an action in the United States Circuit Court brought against a county in Arkansas, upon county warrants, by a citizen of another State, the defense was that on January 4, 1876, the County Court of the county made an order in conformity to the act of the Arkansas legislature of January 6, 1857, calling in all the outstanding warrants of the county, including those sued on in this case, for the

purpose of examining, cancelling, and re-issuing the same, fixing Friday, the 7th day of April of that year, as the limit of time for presentation of said warrants. The order notified all persons holding these warrants that they might deposit them with the clerk any time prior to that day, and that on failure to do so the holders of said warrants would be forever barred from any claim on their account against the county. These warrants not being presented, were formally declared to be barred by order of the County Court. The warrants were issued after the act mentioned was passed, and at the time the order calling them in was issued were the property of a citizen of Arkansas. This suit was commenced before the time limited by the order for bringing in the warrants had expired. Held, that the statute of Arkansas mentioned was valid, and the order a proper one, and that the holder of the warrants having failed to comply with it, his right to recover upon them was barred. Judgment of U. S. Circ. Ct., E. D. Arkansas, reversed. Ouachita County v. Wolcott. Opinion by Miller, J. [Decided April 11, 1881.]

COMPANY. Congress in 1866 made two grants, one of lands to the State of Kansas, for the benefit of the St. Joseph and Denver City Railroad Company, in the construction of a railroad from Elwood in that State to its junction with the Union Pacific via Maryville; the other of a right of way directly to the company itself. The lands consisted of alternate sections, designated by odd numbers, on each side of the line of the proposed road. Their grant was subject to the condition that, if at the time the line of the road was definitely fixed, the United States had sold any section or a part thereof, or the right of pre-emption or homestead settlement had attached to it, or the same had been otherwise reserved by the United States for any purpose, the secretary of the interior should select an equal quantity of other lands nearest the sections designated, in lieu of those appropriated, which should be held by the State for the same purposes. The grant of the right of way was by words in præsenti, containing no reservations or exceptions. Held, that the title to the lands attached from the date of the act of Congress. Missouri, Kansas & T. R. Co. v. Kansas Pacific R. Co., 97 U. S. 497-8; Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733. And that the right of way vested in the company over such line as it should locate, and all persons acquiring any portion of the public lands after the passage of such act took them subject to the right of way conferred by the act. Judgment of Nebraska Supreme Court reversed. St. Joseph & Denver City Railroad Co. v. Baldwin. Opinion by Field, J.

[Decided May 2, 1881.]

NORTH CAROLINA SUPREME COURT AB

STRACT.*

JANUARY, 1881.

PARTNERSHIP-AGREEMENT BY ANOTHER WITH LAND OWNER TO WORK LAND ON SHARES.- - An agricultural agreement between two persons, one to furnish the outfit and the land, and the other to hire the laborers and superintend the farm during the year, the former to provide money to carry on the business, half of which to be repaid him, and the profits to be divided between them, creates the relation of partners. Where the land owner in such case executed an agricultural lien to R. for advancements to carry on the common business, a partnership debt was thereby created, and the property in the crop vested in R. to secure its pay* To appear in 84 North Carolina Reports.

ment. Holt v. Kernodle, 1 Ired. 199; Lewis v. Wilkins, Phil. Eq. 303, cited; see, also, Curtis v. Cash, 84 N. C. 41; Reynolds v. Pool. Opinion by Smith, C. J. STATUTE OF FRAUDS—AGREEMENT TO PAY DEBT OF ANOTHER.-A parol promise to pay the debt of another out of property placed by the debtor in the hands of the promisor, who converts the same into money, is not within the statute of frauds. It is an original and independent promise founded upon a new consideration. In construing this statute it may be laid down as a general rule that a promise to answer for the debt, default or miscarriage of another, for which that other remains liable, must be in writing; contra, where the other does not remain liable. There are numerous exceptions to this rule. In cases where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the original contracting parties, the statute does not apply. 1 Smith Lead. Cas. 371; Leonard v. Vredenburgh, 8 Johus. 29. The reason is, that the promise is made upon a new and independent consideration, and it matters not whether the original debt continues to subsist or not. See Olmstead v. Greenly, 18 id. 12; Wait v. Wait, 28 Vt. 350; Draughan v. Bunting, 9 Ired. 10; Hall v. Robinson, 8 id. 56; Hicks v. Critcher, Phil. 353; Threadgill v. McLendon, 76 N. C. 24; Stanly v. Hendricks, 13 Ired. 86; Mason v. Wilson. Opinion by Ashe, J.

SURETYSHIP-FACT OF, MUST BE KNOWN TO CREDITOR.-Where the defense set up is that the party sued is only a surety, and the fact of his suretyship does not appear from the instrument signed by him, he must, in order to derive any advantage therefrom, prove that the creditor had knowledge of the suretyship. Welfare v. Thompson, 83 N. C. 276; Cole v. Fox, id. 463; Wilson v. Foot, 11 Metc. 285; Manley v. Boycott, 75 Eug. C. L. 45. Goodman v.

SURETYSHIP-DEALINGS BETWEEN CREDITOR AND PRINCIPAL.-A contract entered into between a creditor and principal debtor to release the debtor "from all the indebtedness he holds against him individually, but not the securities which the debtor has given him upon notes or in any other manner," does not operate a discharge of the surety. Kesler v. Linker, 82 N. C. 456; Howerton v. Sprague, 64 id. 451; Stirewalt v. Martin. Opinion by Smith, C. J.

MARYLAND COURT OF APPEALS ABSTRACT.*

DEED- -WHEN NOTES AND BONDS GIVEN VARIANCE IN QUANTITY NOT GROUND FOR AVOIDANCE. — In 1859, B. purchased at trustee's sale a lot of ground as laid down on a sale-plat of a tract of land belonging to an estate, and described in the deed from the trustee to B., by metes and bounds as fronting a certain number of feet on a street, controlled by a call, and so many on an alley, to be determined by the distance from the point of intersection of the center of a road with the west side of the alley and the place of beginning. In 1868 B. sold the lot to S., part of the purchase-money being paid cash and a redeemable ground rent created for the payment of the balance, a lease being duly executed. The ground rent was extinguished by S. paying the principal in 1873, when a deed in fee was made to him by B. and wife. The description of the property was the same in all these deeds, and the lease and conveyance both referred to the trustee's deed. Shortly after becoming seized of the ground, S., on leasing a part of it, discovered that though he received all the land contained within the boundaries stated in the deeds, yet the dimensions of the lot were consid* Appearing in 53 Maryland Reports.

erably less than those mentioned in the deeds. It appeared that B. knew no more about the location and actual dimensions of the lot than S., and that both had equal means of information. On a bill filed by S. to compel B. to make compensation for the allged deficiency, it was held, that he was not entitled to relief. The rule in such cases is thus stated by Chancellor Kent: "Whenever it appears by definite boundaries, or by words or qualification, as more or less,' or as 'containing by estimation,' or the like, that the statement of the quantity of acres in the deed, is mere matter of description, or not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case." 4 Kent, 467 (11th ed.). The same rule is laid down by Judge Story, in Stebbins v. Eddy, 4 Mason, 420, and was followed in Jones v. Plater, 2 Gill, 125; Stull v. Hurtt, 9 id. 446; Hall v. Mayhew, 15 Md. 568, and Slothower v. Gordon, 23 Md. 1. Jenkins v. Bolgiano. Opinion by Bartol, C. J.

INJUNCTION-TO RESTRAIN ACTION OF PUBLIC OFFICER UNDER ERRONEOUS AWARD OF CONTRACT BID FOR.

-

Plaintiff and D. were competing bidders for furnishing supplies of stationery to a city. The city authorities, having control of the award of the contract, gave the award to D. as being the lowest bidder, and plaintiff filed a bill praying that such authorities be enjoined from executing the contract on the ground that plaintiff was in fact the lowest bidder. Held, that the bill presented no claim to the exercise of the preventive power of the court. Applications for an injunction are addressed to the conscience and discretion of the court, and the facts submitted should justify its exercise beyond reasonable doubt. Public wrongs, although involving private injuries, are not to be made the grounds of personal suits, at law or in equity, unless the complainant has sustained special damage, and in many instances the private injury is merged in the public. In exceptional cases, where great principles or large public interests are involved, citizens or corporators may sue in behalf of themselves and their fellow-citizens to arrest some projected violation of constitutional law or abuse of corporate authority. This court has not undertaken to declare that every abuse of a legal authority by a municipal corporation to the prejudice of a tax payer or taxpayers is a ground for equitable interference to prevent injury. On the contrary, recognizing the contrariety of opinion which exists among the most eminent judges as to the right of the courts to interpose to arrest the authority of local governments, in the exercise of lawful powers, they have confined their jurisdiction to cases of ultra vires, or clear assumption of powers not granted. See / 2 Dill. on Mun. Corp., § 736. Kelly v. Mayor and City Council of Baltimore. Opinion by Bowie, J.

WAY WHEN RIGHT OF, DOES NOT EXIST - IMPLIED RESERVATION-WAY OF NECESSITY.-S. and M. owned adjoining houses on West street, in Baltimore city, with rear lots extending back to Gould lane. These two houses were built in 1839, by the owner of the whole of the vacant lot, the first house (the one now owned by S.) having a front of fifteen feet, and the second (the one now owned by M.) having a front in the lower story of twelve feet and a half, and in the upper stories of fifteen feet, thus leaving an alley of two feet and a half between them, covered by the joists which supported the second floor of the second house; these joists projected over the alley and into the adjoining wall of the first house. The alley thus covered was open to the street and extended back between the houses about thirty feet. At its inner terminus two gates were placed which opened respectively into the rear premises and yards of each bouse, and it was used by the occupants of each as a common passage-way, to and from the street. Each house had a front door

opening upon the street, and from the end of the alley a fence was built which extended back to Gould lane, and divided the lot into two parts, giving to each a width of fifteen feet, with access into each yard from the lane. The drainage and sewerage from each lot were carried off to the lane. The owner of this property and his widow were owners successively till 1865, when the entire property was sold under order of the orphan's court to W., who in the same year sold the second house and lot to C., from whom M., through mesne conveyance derived title, in 1874. This conveyance to C. was an absolute and unqualified grant describing the property by metes and bounds, which included the whole of the alley, and contained no reservation of the right to use the same for the benefit of the house and lot retained by W. W. retained ownership of the first house and lot until 1868; when he sold and conveyed the same to S. by a similar grant, which embraced no part of the alley. In 1878, M. prevented S. from using the alley by placing upon it buildings and other obstructions. In an action by S. against M., to recover damages for closing and obstructing the alley, it was held, that S. could not recover, as the law did not attach to the unqualified grant from W. to C., of the second house and lot, an implied reservation of the use of the alley, for the house and premises retained by W.; and that the alley was not a way of necessity. (2) That the fact that a part of the house granted by W. to C., which was above the alley, was supported by the wall of the house retained by W., did not make a case of reciprocal easements. See Janes v. Jenkins, 34 Md. 1; Palmer v. Fletcher, 1 Lev. 122; Nicholas v. Chamberlain, 3 Cro. Jac. 121; Wheeldon v. Burrows, L. R., 12 Ch. D. 31; Tenant v. Goldwin, 2 Ld. Ry. 1089; Pyer v. Carter, 1 H. & N. 916; Ewart v. Cochrane, 9 Juv. 925; White v. Bass, 7 H. & N. 722; Pinnington v. Galland, 9 Exch. 1; Watts v. Kelson, L. R., 6 Ch. App. 166; Crossley v. Lightowler, L. R., 2 Ch. App. 478; Ellis y. Manch. Car. Co., L. R., 2 C. P. D. 13; Currier Co. v. Corbett, 2 Dr. & S. 355; Cox v. Matthews, 1 Ventr. 237; Rosewell v. Pryor, 6 Mod. 116; Brakely v. Sharp, 2 Stock. Ch. 209; Kilgour v. Ashcom, 5 H. & J. 82; Seibert v. Levan, 8 Barr. 383; Burr v. Mills, 21 Wend. 292; Preble v. Reed, 17 Me. 175; Carbrey v. Willis, 7 Allen, 364; Randall v. McLaughlin, 10 id. 366; Swansborough v. Coventry, 9 Bing. 395. Mitchell v. Seipel. Opinion by Miller, J. MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

JANUARY 1881.

EVIDENCE-PAROL TO SHOW THAT PARTY SIGNING

WRITTEN CONTRACT WAS MISLED.-Evidence showing that a contract for the leasing of household furniture by defendant to plaintiff, which was signed by plaintiff by affixing his mark, was understood by plaintiff at the time it was made to be a contract of sale; that before it was signed plaintiff orally agreed to purchase the property; that he could not read; that the contract was not read to him, and that nothing was said about leasing. Held, admissible to show fraud in procuring the execution of the contract. In the absence of fraud or imposition, it is presumed that the terms of a written contract were known and assented to by the parties who signed it; that they either read it, or were informed of its contents, or were willing to assent to its terms without reading it. This presumption is not defeated by showing that the contract signed was different from that which one or the other supposed he was signing. It is not permitted to show that another contract was the real contract, because the parties have chosen to put their agreement in writing as the better way to preserve its terms; and parol evidence cannot be admitted to vary it. But this familiar rule does not exclude evidence which tends to show that

the written contract was, by some fraud or imposition, never in fact freely and intelligently signed by the party sought to be charged. It may always be shown that he was not possessed of the requisite capacity, or that his signature was obtained by fraud. Selden v. Myers, 20 How. 507. A party who is ignorant of the contents of a written instrument, from inability to read, who signs it without intending to, and who is chargeable with no negligence in not ascertaining its character, is no more bound than if it were a forgery. Walker v. Ebert, 29 Wis. 194; Foster v. MacKinnon, L. R., 4 C. P. 704, 711. Trambly v. Ricard. Opinion by Colt, J.

LANDLORD-RIGHTS OF LESSEE-BAKE-OVEN.

FIXTURES TRADE ERECTIONS WITH CONSENT OF - K., the lessee of premises, a baker, erected thereon a bakehouse and oven, under an agreement with B., the agent of the owner, that if K. "should be taken away or any thing should happen," B. would "take it off his hands at a fair valuation." The bake-house was built of brick walls set on ordinary stone wall foundations, and the oven was built of brick inside the house, resting on stone foundations, embedded in the ground. The premises were afterward leased to plaintiff, as

tenant at will. In an action for the conversion of the oven and bake-house by plaintiff, against the owner, plaintiff testified that he purchased of K. the entire bakery property, including the bake-house and oven, and that before he did so B. agreed that plaintiff might remove what he purchased, including the oven. Upon Receiving notice to quit, plaintiff attempted to remove the bake-house and oven, but was forbidden to do so

by the owner. Held, that there was sufficient evidence to warrant a finding for plaintiff. It is settled that when one erects a building for a temporary purpose on the land of another, with the knowledge and consent of the owner, an agreement for the separate ownership of the building and a right to remove it may be implied from the circumstances and conduct of the parties. There was evidence which, under the decisions, would fully warrant a jury in finding that before the house and oven were built, an agreement that it should remain the personal property of Kent was made with him by the authorized agent of the defendant. tiss v. Hoyt, 19 Conn. 154; Prince v. Case, 10 id. 375; Smith v. Benson, 1 Hill, 176. In this view the plaintiff could maintain trover for the conversion of the building and materials as personal property. The case is distinguishable from those where it is held that trover will not lie for the conversion of trade fixtures which have become part of the realty so long as they remain annexed, although removable by the tenant during the term. Guthrie v. Jones, 108 Mass. 191; Marshall v. Lloyd, 2 M. & W. 450; Dolliver v. Ela, 128 Mass. 557. Korbe v. Barbour. Opinion by Colt, J.

FIXED TERM NOT CONTINUING ONE.

Cur

SURETYSHIP -BOND FOR OFFICIAL CHOSEN FOR -A corporation having authority to appoint such officers as the by-laws may provide, who shall be elected in the manner therein provided, was in the custom of electing a treasurer triennially, though the by-laws made no provision in reference to the term of office. In 1874 the corporation "voted to proceed to the choice of officers for the ensuing term of three years;" and under this vote "made choice of R. for treasurer." R. thereupon gave a bond for the faithful performance of his duties and the payment to his successor of the funds of the corporation in his possession. Held, that the bond was not a continuing one, and the sureties thereon would not be liable for a default of R. occurring after the expiration of the three years for which he was chosen. Where the tenure of the office is for a year or any fixed period of time, the sureties upon the bond given for the faithful performance by the incumbent of the duties of the office are not liable for any de