parties, F. adding to his signature the words, "Pres't of Buffalo Catholic Institute." The contract contained a provision that it was made on condition "that the Buffalo Catholic Institute will accept and approve of this purchase and its terms and agreement on or before November 1st, next." Held, on appeal from a judgment sustaining a demurrer to the complaint, that the contract was between W. and F. and not between W. and the corporation, and that the demurrer was properly sustained. Judgment affirmed. Buffalo Catholic Institute v. Weisner. Opinion by Andrews, C. J. [Decided Dec. 15, 1881.] STOCK IN RAILROAD COMPANY. -(1) In an action by a railroad company to recover from one subscribing for shares of its stock, the balance due for such shares, it appeared that plaintiff was organized under the general act of 1850, its articles of association were filed and it became a corporation March 23, 1872. Defendant was not one of the corporators named in those articles. A short time before the organization of the corporation, defendant and other persons, for the purpose of aiding and encouraging the construction of the contemplated railroad, subscribed the following instrument, contained in a pocket memorandum book: "We, the undersigned, in consideration of and for the purpose of becoming stockholders in the Buffalo & Jamestown Railroad Company, do hereby subscribe and take the number of shares of one hundred dollars each share of the capital stock of said company set opposite our respective names, and agree to pay therefor in such time and manner as required by said company." To this defendant subscribed his name, designating ten as the number of shares, and $1,000 as the amount he would pay. This book was then in the possession of one A., who afterward became a director of the company. The names of defendants and others who subscribed in the book were entered in the stock ledger of the company as stockholders, and defendant and others were notified to pay calls of installments on the stock. Defendant paid two installments of ten per cent each upon his subscription, and took from the agent of the corporation a receipt wherein it was set forth that the payment was on his subscription to the capital stock of the corporation. Thereafter he refused to pay further installments and this action was brought. Held, that there was a valid subscription by defendant to the stock of the corporation, both at common law and under the provisions of the statute. While the subscription was not valid and binding before the complete formation of the corporation, because there was no party with whom the defendant could then contract, yet after the corporation was formed it accepted the subscription and recognized the defendant as a stockholder, and he recognized himself as such and ratified and confirmed his subscription by payments thereon. He thus, within all the authorities, upon general principles, became a stockholder in the company, liable to pay the full amount of his subscription. Upton v. Trebilcock, 91 U. S. 65; Buffalo & N. Y. City R. Co. v. Dudley, 14 N. Y. 336. And there was a substantial compliance with the statute in relation to subscriptions. (2) The articles of association of the corporation set forth that it was to build a railroad from Buffalo to the Pennsylvania State line. The road was built to a point twelve miles short of the State line, and was not built further. It did not appear that the company had taken any action which would disable it from building these twelve miles. Held, that these facts did not relieve defendant from his subscription. (3) After the commencement of this suit a mortgage on the railroad and its franchises was foreclosed and the property sold to purchasers. Held, that this did not furnish a defense to this action. The case, Lake Ont. Sh. R. Co. v. Curtiss, 80 N. Y. 219, distinguished. Judgment affirmed. Buffalo & Jamestoum Railroad Co. v. Gifford. Opinion by Earl, J. [Decided Jan. 17, 1882.] LEASE SURRENDER OF UNTENANTABLE PREMISES UNDER LAWS OF 1860, CHAPTER 345 - WHAT AGREEMENTS NECESSARY TO TAKE CASE OUT OF STATUTE. Under the provision of Laws, 1860, chapter 345, which allows a lessee of premises which have become untenantable without fault of such lessee, to quit and surrender same, and relieves him upon so doing from all further liability for rent, "unless otherwise expressly provided by written agreement or covenant," the words "unless," etc., while they do not require an agreement in totidem verbis, that the rent shall continue notwithstanding the destruction of the premises or their becoming untenantable, are nevertheless not satisfied unless it appears from the lease or other writing that the parties had in mind the contingency mentioned in the statute, and thereupon inserted provisions or covenants inconsistent with the right of surrender thereunder. The tenant is not deprived of the benefit of the statute by force of a covenant in the lease to pay rent for the whole term. Nor is a lease taken out of the statute by reason of a general covenant on the part of the lessee to repair. There must be a necessary implication from the written agreement of an intention that the rent and term should continue notwithstanding the occurrence of the events mentioned in the statute. In the case at bar defendant was lessee of a basement. A clause in the lease provided that "the landlord will not allow any deduction in rent on account of the premises, etc., not being in good or tenantable order during the time of making any alterations or repairs agreed upon or otherwise required during the term of this lease, etc., except the same are made necessary by fire." The lease also provided that the landlord should not be liable for injury done the building or premises, or to any goods, etc., therein, from any leak, or from any pipes or plumbing work, etc. Provision for the suspension of rent was made in case of injury by fire, and the lessee covenanted to make needful repairs and to surrender the premises in good repair. During the term of the lessee, by the overflow of a urinal, not connected with the premises, the premises were inundated and made untenantable and unfit for occupancy. Defendant gave notice to plaintiff, his landlord, and abandoned the premises. Held, that there was an agreement in the lease taking the same out of the operation of the act of 1860, and defendant was liable for rent during the whole of the term, notwithstanding the abandonment of the premises. Judgment affirmed. Butler v. Kidder. Opinion by Andrews, J. [Decided Nov. 22, 1881.] PRACTICE-REFEREES FEES' STIPULATION AS TO, AND AMOUNT— COSTS AND DISBURSEMENTS. — - (1) The provision of the code (Old Code § 313, Code Civ. Pro., § 3296) in respect to the fees of referees that a rate different from the statutory one may be fixed by the agreement of the parties, or their consent in writing does not limit the giving of such consent to the parties themselves, but authorizes it to be given by their attorneys. Chase v. James, 16 Hun, 14; First National Bank v. Tamajo, 77 N. Y. 478. In all that properly relates to the conduct of a trial, the attorney represents the party, and is his authorized agent. Gaillard v. Smart, 6 Cow. 383; Barrett v. Third Ave. R. Co., 45 N. Y. 635. The attorney's agreement and stipulation within the boundaries of that authority is the agreement and stipulation of the client, and binds the latter as if he himself had personally made it. The stipulation, as to the fees of referees, is a proceeding in the conduct of trial, and one in which the attorney may and should represent his client. (2) In an action to recover from the city of Buffalo and the sup ervisors of Erie county $150,000, for materials, &c., the case was referred to three referees, who found in favor of plaintiff for $12,147. The costs were taxed at $12,025, the principal item of which was $10,700 for referees' fees, being at the rate of $50 per day to each referee. This charge was founded on a written stipulation fixing that rate of compensation, signed by the attorneys of the respective parties, and the amount was paid by the successful party. Held, that the court would not interfere to reduce the amount of fees. (3) An item of over $2,000 paid for plans and measurements and compensation of experts, beyond their fees as witnesses, held, not necessary disbursements or disbursements in the action, and not allowable. Haynes v. Mosher, 15 How. Pr. 216; Case v. Price, 17 id. 351; Hannel v. Beare, 9 Brew. 683. (4) An item of $625 for a copy of stenographer's minutes of the trial, furnished to the referees, it appearing that the stenographer was not the official one of the court, but was hired as a clerk, each party stipulating to pay half the expense, held, not taxable against a party not included in the stipulation. Order affirmed. Mark v. City of Buffalo. Opinion by Finch, J. [Decided Dec. 13, 1881.] UNITED STATES SUPREME COURT ABSTRACT. JUDGMENT AS A RULE REVIEWABLE BY SAME COURT ONLY AT TERM WHEN RENDERED EXCEPTION TO RULE PRACTICE IN STATE AND FEDERAL COURTS. It is a general rule of law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them, during the term at which they are rendered or entered of record, and may then be set aside, vacated or modified by that court. It is equally well established that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and if errors exist they can only be corrected by such proceeding, by writ of error or appeal, as may be allowed in a court which by law can review the decision. So strongly has this principle been upheld by this court, that while realizing that there is no court which can review its decisions, it has invariably refused all applications for re-hearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court. Brooks v. Railroad Co., 102 U. S. 107; Public Schools v. Walker, 9 Wall. 103; Brown v. Aspden, 14 How. 25; Cameron v. McRoberts, 3 Wheat. 591; Sibbald v. United States, 12 Peters, 488; United States v. Glamorgan, 2 Curtis, 236; Bradford v. Patterson, 1 A. K. Marsh. 464; Ballard v. Davis, 3 J. J. Marsh. 156. To this rule there has always existed an exception founded on the common law writ of error coram vobis, which brought before the same court where the error was committed certain mistakes of fact not put in issue or passed upon by the court, such as the death o. one of the parties when the judgment was rendered, coverture of a female party, infancy and failure to appoint a guardian, error in the process, or mistake of the clerk. But if the error was in the judgment itself, the writ did not lie. What was formerly done by this writ is now attained by motion and affidavits when necessary. In Rolls Abridgment, ment, p. 749, it is said that if the error be in the judgment itself, a writ of error does not lie in the same, but in another and superior court. In the case of Pickett's Heirs v. Legerwood, 7 Peters, 147, this court said that the same end sought by that writ is now in practice generally attained by motion, sustained if the court require it, by affidavits; and it was added that so far had this latter mode superseded the former in the British practice, that Blackstone does not even notice the writ among his remedies. Some of the State courts have a larger power conferred on them in such cases by statute, and others have extended it by asserting a control over their own judgments and administering equitable relief in a summary way. There is no uniformity among those courts on this subject. Neither the practice of the courts nor the statutes of the States in which the courts of the United States are held, can control those courts on that subject. Judgment of U. S. Circ. Ct., S. D., New York, reversed. Bronson v. Schulten. Opinion by Miller, J. [Decided Jan. 9, 1882.] WILL-CONSTRUCTION OF — DEVISE OF ESTATE DURING WIDOWHOOD. - Twelve days before his death D. executed his last will. At that time he was the owner of some real estate, and of personal property of the value of nine hundred and fifty-eight dollars. He was the father of six living children, all of whom were minors, some of them very young, and all without any property in their own right. His wife was the owner of real and personal property to the amount of ten thousand dollars or more. His will, after providing for the payment of his lawful debts, etc., disposed of the residue of his estate as follows: "To my beloved wife I give and bequeath all my estate, real and personal, of which I may die seized, the same to remain and be hers, with full power, right, and authority to dispose of the same as to her shall seem meet and proper, so long as she shall remain my widow." "Upon the express condition that if she shall marry again, then it is my will that all of the estate herein bequeathed, or whatever may remain, should [shall] go to my surviving children, share and share alike." The last clause of the will read thus: "If she should marry again, then it is my will that all the estates herein bequeathed, or whatever may remain, shall go to my surviving children, share and share alike." Held, that testator did not give to his wife an absolute estate in fee simple, with power, so long as she remained his widow, to dispose of it absolutely. But granted to her only an estate for life. The words in the last clause may be construed to give to the children of the testator a remainder in the real estate, and whatever of the personalty was not consumed by the widow during her widowhood. Smith v. Bell, 6 Pet. 68; Green v. Hewitt, 12 Cent. L. J. 58; Brandt v. Virginia Coal Co., 93 U. S. 326; Bradley v. Wescott, 13 Ves. Jr. 445; Boyd v. Strahan, 36 Ill. 353. Judgment of U. S. Cir. Ct., Nebraska, affirmed. Giles v. Little. Opinion by Woods, J. [Decided Dec. 12, 1881.] WITNESS-IN CLAIM AGAINST UNITED STATES.Section 1079 of the Federal Revised Statutes provides that no claimant suing the United States in the Court of Claims, nor any person from or through whom such claimant derives his alleged title, claim, or right, nor any person interested in any such title, claim, or right, shall be a competent witness in supporting the same, but under section 1080, the United States may make a claimant a witness. Held, that this does not prevent the United States from using as a witness to defeat the claim, one whose interest is adverse to the claimant, and that too when a judgment in favor of the United States may have the effect of establishing the right of the witness to the same claim. Judgment of Court of Claims affirmed. Bradleys Administrator v. United States. Opinion by Waite, C. J. [Decided Jan. 16, 1882.] PATENT GOVERNMENT NO RIGHT TO USE WITH- OUT COMPENSATION OFFICE STAMP REISSUE, — (1) The government of CONNECTICUT SUPREME COURT OF ERRORS the United States has no right to use a patented invention without compensation to the owner of the patent. The court say that the government of the United States, when it grants letter-patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser, we have no doubt. The Constitution gives to Congress power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;" which could not be effected if the government had a reserved right to publish such writings or to use such inventions without the consent of the owner. Many inventions relate to subjects which can only be properly used by the government, such as explosive shells, rams, and submarine batteries to be attached to armed vessels. If it could use such inventions without compensation, the inventors could get no return at all for their discoveries and experiments. It has been the general practice, when inventions have been made which are desirable for government use, either for the government to purchase them from the inventors, and use them as secrets of the proper department, or if a patent is granted, to pay the patentee a fair compensation for their use. The United States has no such prerogative as that which is claimed by the sovereigns of England, by which it can reserve to itself, either expressly or by implication, a superior dominion and use in that which it grants by letter-patent to those who entitle themselves to such grants. The government of the United States, as well as the citizen, is subject to the Constitution; and when it grants a patent the grantee is entitled to it as a matter of right,and does not receive it, as was originally supposed to be the case in England, as a matter of grace and favor. (2) The court doubt whether an officer of the government can be sued for using an invention only for and in behalf of the government; and whether the Court of Claims is not the only tribunal in which the claim for compensation can be prosecuted. See Carr v. United States, 98 U. S. 433. (3) In this case Norton's reissued patent dated Oct. 4, 1870, for an improved post-office stamp for printing the postmark and canceling the postagestamp at one blow, held to be void by reason of not being for the same invention specified in the original. If a patent fully and clearly describes and claims a specific invention, complete in itself, so as not to be inoperative or invalid by reason of a defective or insufficient specification, a reissue cannot be had for the purpose of expanding and generalizing the claim so as to embrace an invention not specified in the original. Burr v. Duryee, 1 Wall. 531, re-affirmed. In such case the court ought not to be required to explore the history of the art to ascertain what the patentee might have claimed; he is bound by his statement of what his invention was. A patentee can not claim in a patent the same thing claimed by him in a prior patent; nor what he omitted to claim in a prior patent in which the invention was described, he not having reserved the right to claim it in a separate patent, and not having seasonably applied therefor. A patent for a machine cannot be reissued for the purpose of claiming the process of operating that class of machines; because if the claim for the process is anything more than for the use of the particular machine patented, it is for a different invention. Powder Co. v. Powder Works, 98 U. S. 139, re-affirmed. Decree of U. S. Circ. Ct., S. D., New York, affirmed. James v. Campbell. Opinion by Bradley, J. Miller, J., dissented. [Decided Jan. 9, 1882.] ABSTRACT.* CORPORATION -LIABILITY OF OFFICER FOR DEBTS WHEN STATUTORY REQUIREMENTS NOT COMPLIED WITH DOES NOT SURVIVE. - The Connecticut statute provides that in the case of every corporation, certificates showing its condition shall be filed annually by the president and secretary with the town clerk, and that in case of neglect those officers shall be liable for all the debts of the corporation contracted during the period of such neglect. Held, that the statute is a penal one, and that the liability thus imposed is of the nature of a penalty and not of a debt, and that therefore an action brought upon such a liability does not survive the death of the officer thus liable. It seems clear that the duty to be performed was a public duty, required by public policy for the general welfare. In the language of Clifford, J., in Providence Steam Engine Co. v. Hubbard, 101 U. S. 188, the act was passed by the State to enable the business public to ascertain the pecuniary standing of joint-stock corporations." The willful neglect of the prescribed duty was a public wrong invoking the penalty of the statute; and the statute comes clearly within the definition of a penal one, as given by Bouvier (Law Dict.). The United States Supreme Court in that case held the statute a penal one, and if penal it necessarily follows that the action upon it will not survive the death of the person for whom the penalty was intended, and the executors are not liable. Hambly v. Trott, Cowp. 372; United States v. Daniel, 6 How. 11; Morris v. Sprague, 9 R. I. 541; Garrison v. Howe, 17 N. Y. 458; Boughton v. Otis, 21 id. 261; Chambers v. Lewis, 28 id. 454: Sholer, etc., Quarry Co. v. Bliss, 34 Barb. 309; Bank of California v. Collins, 5 Hun, 209; Reynolds v. Mason, 54 How. Pr. 213; Halsey v. McLean, 12 Allen, 438; Breitung v. Lindauer, 37 Mich. 217; Union Iron Co. v. Pierce, 4 Biss. 327; Sturges v. Burton, 8 Ohio St. 215; Lawler v. Burt, 7 id. 340; Irvine v. McKeon, 23 Cal. 472. Mitchell v. Hotchkiss. Opinion by Loomis, J. STATUTE OF LIMITATIONS-NEW PROMISE.-A debtor whose debt was barred by the statute of limitations, said to his creditor with regard to it: "I will pay it as soon as possible." Held, to be a sufficient acknowledgment of the debt to take it out of the statute. The Connecticut statutes of limitation do not create an arbitrary bar to the recovery of a debt independent of the will of the debtor. If they did a new promise would not avail the creditor unless founded on some new consideration, and in such case the action would have to be brought on the new promise. But the courts have always considered them mere statutes of repose, which suspend the remedy, leaving the debt uncanceled and still binding in foro conscientiæ. Hence it is well settled that the debt may be revived and the bar to its recovery removed by a new premise, either express or implied. Lord v. Shaler, 3 Conn. 132; Bound v. Lathrop, 4 id. 336; Austin v. Bostwick, 9 id. 496; Belknap v. Gleason, 11 id. 160; Phelps v. Williamson, 26 Vt. 230. In general any language of the debtor to the creditor clearly admitting the debt and showing an intention to pay it will be considered an implied promise to pay and will take the case out of the statute. Wooters v. King, 54 Ill. 343; Gailer v. Grennell, 2 Aik. 349; Phelps v. Stewart, 2 Vt. 256. And in this State an acknowledgment that a debt was once justly due and has never been paid, will ordinarily authorize the inference of a promise to pay it. Sanford v. Clark, 29 Conn. 460. Norton v. Shepard. Opinion by Loomis, J. SURETYSHIP OFFICIAL BOND OF SHERIFF UNDERTAKING CO-EXTENSIVE WITH DUTIES OF SHERIFF. -The defendants were sureties of a sheriff on an offi To appear in 48 Connecticut Reports. cial bond for $10,000, of which the condition was as follows: "That whereas the said B. has been duly appointed sheriff of Litchfield county for three years from June 1, 1875, according to the provisions of the Constitution and laws of the State, and has accepted said appointment and undertaken the obligations and duties incident to said office; now if the said B. shall faithfully discharge the duties of said office and answer all damages which any person may sustain by any unfaithfulness or irregularity in the same during said term of three years, then this obligation is to be void." In March, 1876, a writ of attachment was placed in the sheriff's hands directing him to attach the property of the defendant therein to the amount of $300. The sheriff attached personal property, completed the service of the writ, and made return in the usual form. Judgment was recovered by the plaintiff in the suit in November, 1878, after the expiration of the sheriff's term, for $258. Execution was issued and demand made upon it on the sheriff by a proper officer for the property attached for the purpose of levying the execution upon it, but the sheriff neglected to deliver it or to pay the amount of the judgment. Held, that the defendants were liable upon their bond, although the default occurred after the end of the three years. It was a part of the duty of the sheriff to keep the property and have it forthcoming on demand, although not demanded until after the close of his official term. This duty was "incident to his office," within the meaning of the bond. And the undertaking of the sureties was co-extensive with the duties of the sheriff. The command of the writ being to attach property to the amount of $300, and the sheriff having made return that he had attached personal property in obedience to the writ, and not having made return that the property was insufficient or that other property could not be found, it was to be presumed that he had attached property of sufficient amount to pay the judgment. Turkey v. Smith, 18 Me. 125; McKay v. Harrower, 27 Barb. 463. Baker v. Baldwin. Opinion by Park, C. J. PENNSYLVANIA SUPREME COURT AB- executed, and then hold the other party responsible H., a MUNICIPAL CORPORATION SCHOOL DISTRICT NEGLIGENCE RESPONDEAT SUPERIOR. builder, contracted with the school district of Erie to furnish all the materials and perform all the work for repairs to a school building, in compliance with plans furnished by S., and under the superintendence of S., or such other person as the district might designate. The work was not to be commenced until the close of the school term, July 3, when possession of the building was to be obtained. An agreement was made with S. by the district to superintend the work. On the 22d of June, during the school term, H., without the consent of the district officers, commenced work. S. directed him to desist,and he agreed to do so, but did not, continuing his work during the next day, when a column fell, through his negligence, and struck and injured a scholar at the school. There was evidence that the superintendent of schools of the district, and several members of the board of directors saw the work as it progressed, and made no objection either to the work or to the contractor having commenced it before the time fixed in his contract. In an action by F. against the district for the injury, held, that the district was not liable. Where the purpose of the contract is lawful, and the owner of the property may lawfully commit its improvement to others, if the owner employs a contractor to do the work, and the latter is guilty of negligence in doing it, the contractor and not the employer is liable. A person is not liable for the acts of another, unless the relation of master and servant or principal and agent exists between them. When an injury is done by a party exercising an independent employment, the party employing him is not responsible to the person injured. This principle applies to municipal corporations. Painter v. City of Pittsburgh, 10 Wr. 213. If the contractor is to perform, according to the plans and under the direction of an architect, he is nowise relieved from his positivo covenants to do the work; he continues to have control over the men he employs and of the mode of performing his contract, and is liable for injuries caused COUNTER-CLAIM SET-OFF MUST EXIST AT TIME ACTION COMMENCED. - In an action for the price of coke bought November 29, 1879, defendants pleaded as a set-off, damages from the breach of a contract for the sale of coke, such contract being in writing, dated November 11, and beginning to run December 1, 1879. It was proven that the plaintiffs, on November 19, six days after the making of the contract, notified the defendants that they would not make any deliveries under it. On December 4, 1879, they wrote the plaintiffs they were ready to receive the coke and make payment therefor; that if shipments were not made they would buy in the open market, and hold the plaintiffs responsible for any difference in price they would have to pay, etc., etc. Held, that even if plaintiffs did not fulfill the contract for the sale of coke, there was, at the time of the commencement of the action, no breach, and defendants had no right of set-by his neglect. Allen v. Willard, 7 P. F. S. 374. In a off on that account. A mere notice of an intended breach is not of itself a breach of the contract. It may become so if accepted and acted on by the other party. The notice of an intention not to perform the contract, if not accepted by the other party as a present breach, remains only a matter of intention, and may be withdrawn at any time before the performance is in fact due, but if not in fact withdrawn, it is evidence of a continued intention to refuse performance down to and inclusive of the time appointed for performance. Ripley v McClure, 4 Ex. 345. The promisee may treat the notice of intention as inoperative, and await the time when the contract is to be contract with a city for the construction of a sewer, it was stipulated that the work should be commenced and carried on at such times, and in such places, and in such a manner, as the engineer of the city should direct; and that was not such a reservation of power as made the city liable for an injury occasioned by the negligence of the contractor. City of Erie v. Caulkins, 4 Nor. 247. A contractor for the grading and paving of a street in a city, the work to be done under the directions and to the satisfaction of the city engineer and the committee on streets," is responsible for an injury he does to property abutting on the street, and the city is not liable. Reed v. Allegheny City, 29 P. THE ALBANY LAW JOURNAL. F. S. 300. Even if a school district is a municipal corporation, the employment of S. did not operate as a relief to the contractor, nor make the district liable for his trespass or negligence. But school districts are corporations of lower grade and less power than a city, have less the characteristics of private corporations, and more those of a mere agent of the State. While a private corporation is liable for the neglect of its officers in the course of their employment, a less stringent rule applies to public corporations, and least of all to school districts. In this case the district would not be liable for any neglect of its directors. Opinion by TrunSchool District of Erie v. Fuess. key, J. [Decided Nov. 14, 1881.] TITLE-THROUGH FORGED DEED INVALID THOUGH FAIR AND PURCHASER INNOCENT. In this RECORD case defendant's claim to title to lands was derived The through an instrument shown to be forged, he being an innocent purchaser for value without notice. that defendant would not be trial court charged affected by the forgery because he could assert the to the rights of an innocent purchaser without notice, if he used reasonable diligence to obtain access original papers but without success, and the title, as recorded, was fair and free from blemish. Held, error. A purchaser who examines the records is protected by them as far as they can protect him, but he necessarily As takes the risk of having the actual state of the title "A correspondent with that which appears of record. was said in Arrison v. Harmstead, 2 Barr, 191. deed, good in its creation, may become void by matter ex post facto as by interlineation, erasure, or by alterBut a deed may be good in ation in a material part. "It is said that part and void in part. It may be good against one person and void against another." Mrs. Lewis is a bona fide purchaser without notice. But conceding that she is, her situation is no better than the fraudulent grantor's. Although the title of the grantor was in its inception good, it became entirely void by matter ex post facto. At the time of the assignment, the title being avoided, the assignor had nothing to convey; of course nothing passed to the assignee. It may be a hard case. Fraud may be coman innocent purchaser, who may find it mitted on difficult to guard against imposition, but it is far better to encounter this risk than to give the least countenance to any alteration whatever of a solemn instrument of writing, which would certainly be the result, if the guilty party could escape the consequences of his fraud by a transfer to a person who might assume the garb of an innocent purchaser for a valuable consideration. We cannot lay too many restraints upon trick, In Van Amringe v. Morton, 4 artifice and fraud." Wh. 382, it was held, that if a decd which has been executed and acknowledged by the grantor with a blank for the grantor's name, be surreptitiously and fraudulently taken from the grantor's house, and the blank filled up, no title passes thereby; and a bona fide purchaser for a valuable consideration from the person holding the deed stands in no better situation than such fraudulent holder. In Wallace v. Harmstead, 8 Wright, 494, Woodward, J., speaking of the cases of Arrison v. Harmstead, 2 Barr, 191, and Wallace v. Harmstead, 3 Har. 462, said: "The stern ruling in those cases was applied without hesitation to a bona fide purchaser of the ground-rent without notice of the fraud, so that as far as concerns Arrison and all persons claiming under him the part of the deed which was intended to inure to his benefit may indeed be said to be dead. It was not merely a voidable instrument, it was void. It was called a forgery, and treated as such, and neither law nor equity would tolerate it, even in the hands of an innocent purchaser." Reck v. Clapp. Opinion by Green, J. [Decided Nov. 7, 1881.] MISSOURI SUPREME COURT ABSTRACT.* CONSTITUTIONAL LAW-EXTENSION OF TERMS OF FRAUDULENT CONVEYANCES - PREFERENCE AMONG MUNICIPAL CORPORATIONS-MUST KEEP STREETS IN SAFE CONDITION.-Cities are bound to maintain their streets in such condition that they will be reasonably safe for travel, and this duty cannot be shifted to the If a wayfarer be injured by shoulders of another. will not be relieved of liability by reason of the fact Blake v. that the opening was left unguarded by a contractor falling into an open sewer in a public street, the city engaged in the construction of the sewer. Bassett v. City of St. Joseph, 53 id. 290; 2 Dill. Munic. Corp., § 791; Chicago v. Brophy, 79 Ill. 277. City, 40 Mo. 569; Bowie v. Kansas City, 51 id. 454; Welsh v. City of St. Louis. Opinion by Sherwood, C. J. VALIDITY OF ORDINANCE- DELEGATION TO, OF LEGISLATIVE POWER-IMPOSITION OF PENALTIES BY. -(1) A town charter authorized the town to require all male citizens between the ages of twenty-one and An ordinance was passed fifty to work on the streets. tween twenty-one and forty-five. Held, that it was by the council imposing this dnty only upon those benot void because it did not include those between forty-five and fifty. Where the powers conferred upon * Appearing in 72 Missouri Reports. |