tions of sale, which clearly show, in my opinion, that real estate was the subject of the sale. At the end of his judgment, Kay, J., says: "I am not disposed to carry the law on this subject one hair's breadth beyond the decided cases, and I think I should be doing so if I were to hold, that in this contract, there is a sufficient description of the property. On these two documents taken together there is not a sufficient description of the property sold and purchased to enable me to receive parol evidence of what the objects of that sale and purchase were." In my opinion that judgment is faulty. There is a maxim, Id certum est quod certum reddi potest. The nature of the property sold was here sufficiently shown. To point out the property, you must have recourse to parol evidence. In Ogilvie v. Foljambe, parol evidence was required to point out the house sold, and such evidence was held to be admissible. It is likewise admissible here, and in my opinion, this is exactly the case where the maxim applies. The objection taken goes not only to the form of the memoraudum, but to the contract itself, and in my opinion, is contrary, not only to all the decided cases, but to all legal principles. For the reasons I have stated, I concur in holding that the decision of the learned judge in the court below must be reversed.

Appeal allowed; action to go down to the court below for trial; appellant to have the costs of the appeal; the costs of the action to be reserved till after the trial.

UNITED STATES SUPREME COURT ABSTRACT.

COPYRIGHT-INFRINGEMENT PROOF OF DEPOSIT OF BOOKS EVIDENCE MEMORANDUM ATTACHED TO CERTIFICATE OF LIBRARIAN OF CONGRESS. · (1) Under U. S. R. S., § 4956, relating to the copyright of a book, the deposit of two copies of the book, after its publication, either with the librarian of Congress, or in the mail, addressed to him, is an essential condition of the proprietor's right; and must, in some way, be proved in an action for infringement. (2) An exemplified copy of the record of a copyright, required to be kept by the U. S. R. S., § 4961, under the haud and seal of the librarian of Congress, contained after the signature of the librarian this memorandum, "Two copies of the above publication deposited December 6, 1876." Held, not sufficient to establish the fact that the proper deposit of books had been made. The certificate had no relation to the deposit of the books. The record of which it is an exemplification, was made without reference to any such deposit. Tho memorandum under the certificate had no validity as evidence. It might have been put there by any person. It would be unsafe to hold that a memorandum under a certificate, or indorsed upon it, is part of the certificate. A certificate under seal, when invested with legal force and effect, is a solemn instrument, and ought to be complete, certain and final in itself, without any collateral addition or commentary.

Its very

form and character as a certificate presuppose that it has the verification and protection of the authenticating signature and seal. Any matter extraneous, that is not contained in the body of the instrument, has not this verification and protection. Such extraneous matter may be added by other persons, or may be erased or altered without involving the offense of forgery or alteration of the certificate. Memoranda of various kinds are frequently indorsed on instruments of this sort for the convenience of the possessors, either to indicate their contents, or to furnish other information with regard to their subject-matter. To hold that such memoranda are evidence, except as against the party making them, would be wholly in

admissible. Judgment of U. S. Circ. Ct., E. D., Missouri, reversed. Merrill v. Tice. Opinion by Bradley,J.. [Decided Jan. 23, 1882.]

PAYMENT -APPLICATION OF- CREDITOR DISOBEYING DIRECTIONS OF DEBTOR, HOLDS MONEY AS TRUSTEE-SET-OFF- BANKRUPTCY. - H. residing in Cincinnati, owed the firm of S. & Co., in New York, two debts, one on a promissory note secured by mortgage on real estate, and the other upon a merchandise account. During the latter part of 1867 H. remitted to S. & Co, five sums at different times, in each case directing the sum to be applied toward the payment of the note. Three of these sums were applied as directed. The last two sums were not so applied. On the 1st of January, 1868, H. suspended business insolvent, owing S. & Co. upon the merchandise account, which was unsecured, a large sum, and a much larger sum to other creditors. On March 30, 1868, H. was adjudicated a bankrupt. In an action to foreclose the mortgage, held, that the remitting of the moneys by H. to S. & Co. to be applied according to instructions, made S. & Co., not the debtor, but the trustee of H. The firm held the money in trust to be applied as directed; held it subject to his order until the claim of the assignee in bankruptcy attached. The said two sums were not subject to any claim of set-off or cross demand or of material debts and credits, under section 20 of the bankrupt act or otherwise. In ex parte Deeze, 1 Atk. 228. Under the English bankrupt act a packer claimed to retain goods not only for the price of packing them but for a sum of £500 lent to the bankrupt on his note. Lord Hardwicke determined that he had such right on the ground of mutual credits, holding that the words "mutual credits" have a larger effect than mutual debts, and that under them many cross-claims might be allowed in cases of bankruptcy, which in common cases would be rejected. But this ruling was subsequently made narrower by Lord Hardwicke himself in Ex parte Ockenden, 1 Atk. 235, and was in effect overruled in the later case of Rose v. Hart, 8 Taunt. 499. In that case trover was brought for cloths deposited by the bankrupt previously to his bankruptcy, with the defendant, a fuller, for the purpose of being dressed, and it was held that the defendant was not entitled to detain them for his general balance for such work done by him for the bankrupt previously to his bankruptcy, for there was no mutual credit within section 28, chap. 30, of the statute 2 G. 2. And the court declared that by the terms mutual credits in the act, was meant only such credits as must in their nature terminate in debts.

The rule established in this case, that the credits which can be the subject of set-off, must be such as must in their nature terminate in debts, has been declared in other cases. Smith v. Hodson, 4 Term, 241; Easum v. Cato, 5 B. & Ald. 861. Tho affect of these authorities is, that the term mutual credits includes only cases where a debt may have been within the contemplation of the parties. The authorities (Winslow v. Bliss, 3 Lans. 320; Scammon v. Kimball, 92 U. S. 362), are cases where a bank or banker was allowed to set off the money of a depositor against a debt due from him to the bank. The answer to these authorities is that the relation between a bank and its general depositor is that of debtor and creditor. When money is deposited with the bank, the bank becomes the debtor of the depositor to the amount of the deposit. Faley v. Hill, 2 H. L. Cas. 39; Bank of Republic v. Millard, 10 Wall. 152; Bullard v. Randall, 1 Gray, 605. When therefore the depositor becomes indebted to the bank, it is a case of mutual debt and credit which may well be set off against each other. Judgment of Ohio Supreme Court affirmed. Libby v. Hopkins. Opinion by Woods, J. [Decided Dec. 19, 1881.]

PRACTICE LIMITATION AS TO WRITS OF ERROR APPLIES TO WRITS TO STATE COURTS.-This is a writ of error to the Supreme Court of Louisiana, brought more than two but less than five years after the judgment to be reviewed was rendered, and one of the questions raised on this motion is whether the limitation of two years prescribed by section 1008 of the revised statutes, for bringing writs of error to the Circuit and District Courts, applies to writs of error to State courts. The court said: "We have no hesitation in saying it does. Section 1003 provides that writs of error from the Supreme Court to a State court, in cases authorized by law, shall be issued in the same manner, and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States.'" This is almost the exact language of a similar provision in the 25th section of the judiciary act of 1789, and we are not aware it was ever supposed

that writs issued to the State court under that section were not subject to the limitation prescribed for writs in the Circuit Courts by the 22d section. In Brooks v. Norris, 11 How. 204, this seems to have been assumed, and a writ to a State court was dismissed" on the ground that it is barred by the limitation of time prescribed by the act of Congress." There was at that time no other limitation than the one contained in the 22d section. Writ dismissed. Cummings v. Jones. Opinion by Waite, C. J. [Decided Jan. 16, 1881.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CORPORATION-RELATION OF DIRECTORS TO CREDITORS INSOLVENCY - PREFERENCES-APPLICATION OF

PAYMENT. — (1) The directors of a corporation stand in confidential relations to its creditors, toward whom they are bound to act with perfect fairness. They are at least quasi trustees for the creditors; and where the corporation is insolvent, good faith forbids that the directors should use their position to save themselves or one of their number at the expense of other creditors. Where the board of directors of an insolvent corporation confessed a judgment against the corporation in favor of one of their number, who was also the president of the corporation and principal stockholder, with a view of giving him priority of lien over another creditor, who was about to obtain a judgment in a judicial proceeding, held, that such preference could not be upheld, but that the two judgments must stand on a footing of equality in respect to the commencement of the lien, and share pro rata in the proceeds of the property available for their payment. Druro v. Cross, 7 Wall. 302; Jackson v. Ludeling, 21 id. 616; Richards v. New Hampshire Ins. Co., 43 N. H. 263. (2) The law will apply a payment in the way most beneficial to the creditor, and therefore to the debt least secured. Field v. Holland, 6 Cranch, 8; Pierce v. Sweet, 33 Penn. St. 151; Foster v. McGraw, 64 id. 464. U. S. Circ. Ct., W. D. Pennsylvania, Dec. 17 1881. Coons v. Tome. Opinion by Achison, D. J.

EXEMPTION-STATE LAWS NOT APPLICABLE ΤΟ LEBT DUE UNITED STATES.-State exemption laws are inapplicable to debts due from a citizen to the United States. Upon a return of no property found in excess of the homestead and personal property exemptions allowed by the Constitution and laws of the State upon execution for any debt, on motion by the United States district attorney for an alias execution to be issued to the marshal, and for an order of court directing him to make a levy and sale of the property without regarding such exemptions, held, that he was entitled to the ordor asked for. See Edwards v. Kear*Appearing in 9 Federal Reporter.

zey, 96 U. S. 595; Earl v. Hardie, 80 N. C. 177; Lamb v. Chamness, 84 id. 379; United States v. Herron, 20 Wall. 251; Bank of Commerce v. Mayor of New York, 2 Black, 620. U. S. Circ. Ct., W. D. North Carolina, Oct. 15, 1881. United States v. Howell. Opinion by Dick, D. J.

MARITIME LAW- ADMIRALTY JURISDICTION. - Tho Admiralty Courts of the United States have jurisdiction of collisions occurring on the high seas between vessels owned by foreigners and of different nationalities. U. S. Circ. Ct., E. D. Pennsylvania, Oct. 22, 1881. The Belgenland. Opinion by McKennan, C. J.

REMOVAL OF CAUSE-TIME FOR APPLICATION UNDER ACT OF 1875.-Within the meaning of the third section of the act of 1875, the petition for removal is filed in time if filed at the first term at which by law and practice of that court the cause could have been made ready and tried. There has been a trial, within the meaning of that act, if a judgment has been rendered in the State court sustaining a demurrer to the answer put in in the suit there, and dismissing a cross-petition with costs. Gurnee v. Courty of Brunswick, 1 Hughes, 270; Forrest v. Forrest Home, 1 Fed. Rep. 459; Blackwell v. Braun, id. 351; Murray v. Holden, 2 id. 740; Ames v. Colorado Cent. R. Co., 4 Dill. 260; Babitt v. Clark, 103 U. S. 606; United States v. Curtis, 4 Mason, 232; Dill. Rem. Cas., § 65; Lewis v. Smyth, 2 Wood, 117. U. S. Circ. Ct., Kentucky, Nov. 15, 1881. Meyer v. Norton. Opinion by Barr, D. J.

UNDER ACT OF 1875 DIVERSITY OF CITIZENSHIP MUST EXIST WHEN REMOVAL ASKED, Under the removal act of 1875 a case is not removable unless the required diversity of citizenship exists at the time the application for removal is made; it is not sufficient that the required diversity in citizenship existed when the suit was commenced in the State court. And if the act authorized a removal of a cause when the required diversity of citizenship did not exist at the time of the application for removal, it would to that extent be unconstitutional and void. There has been a conflict as to this question of removal. It has never been decided by the Supreme Court. Though twico raised in argument before that tribunal it was on each occasion reserved for future consideration. Insurance Co. v. Pechner, 95 U. S. 183; Bondurant v. Bondurant, 103 id. 285. The decisions of the inferior courts aro wide apart, Bradley, J., and others holding that a case cannot be removed from a State court to a Federal court, under the act of 1875, unless the petition for its removal shows that the required diversity of citizenship existed at the commencement of the suit. Houser v. Clayton, 3 Wood, 273; Beede v. Cheeney, 5 Fed. Red. 388; Tapley v. Martin, 116 Mass. 276; Holden v. Insurance Co., 46 N. Y. 1; Indianapolis, etc., R. Co. v. Risley, 50 Ind. 60. Whereas, Wood, J., and others hold that under the act the petition need not aver that the parties were citizens of different States at the time the suit was brought. If it shows the required citizenship when the petition is filed it will be sufficient. Jackson v. Insurance Co., 3 Wood, 413; Curtin v. Decker, 5 Fed. Rep. 385; 33 Ohio St. 280; Phoenix Life Ins. Co. v. Scattle, 7 Cent. Law J. 398; Dillon, Rem. of Caus., § 87. U. S. Circ. Ct., S. D. Ohio, Nov. 21, 1881. Bruce v. Gibson. Opinion by Baxter, C. J.

MICHIGAN SUPREME COURT ABSTRACT.

JANUARY, 1882.

CORPORATION -PRESUMPTION OF AUTHORITY OF OFFICFR. Where the treasurer of a corporation seems to be the only officer who has power to indorse its paper assets, third persons may act upon his indorsements as if authorized by the corporation The president of a corporation purchased its interests in certain

which had been given to the demandant. The note was for somewhat less than the amount due on the mortgage at the time it was given. The demandant admitting that he had received the note, introduced evidence tending to prove that the note was not given and received in payment of the mortgage debt, but for a different purpose. The trial court instructed the jury, to which instruction the tenant objected, that the acceptance of a promissory note of a debtor for a pre-existing debt secured by a mortgage is only presumptive evidence of payment, and left it for the jury as a question of fact to be decided upon all the evidence in the case, whether the note was given and received in payment of the debt secured by the mortgage. Held, no error. It is well settled in this Commonwealth that the law will presume that the giving of a promissory note for a simple contract debt is payment of the debt; but this is not a conclusive presumption, but may be rebutted and controlled by proof. And in many cases it has been decided that if the debt is a note secured by mortgage, the renewal of the note, or the substitution of another note therefor, is not necessarily to be presumed a payment, so as to discharge the mortgage. Taft v. Boyd, 13 Allen, 84, and cases cited. See Melledge v. Boston Iron Co., 5 Cush. 158; Curtis v. Hubbard, 9 Metc. 327; Parham Sewing Machine Co. v. Brock, 113 Mass. 194. Dodge v. Emerson. Opinion by Endicott, J.

MINNESOTA SUPREME COURT ABSTRACT.

RIGHTS

EMINENT DOMAIN-RAILROAD IN STREET OF RIPARIAN OWNER ON NAVIGABLE STREAM. (1) It is the law of this State that the construction and maintenance of an ordinary railroad by legislativo authority upon a public street is the imposition of an additional servitude upon the soil so as to entitle the owner of the servient estate to compensation. Schurmeir v. St. Paul & Pacific R. Co., 10 Minn. 82; Winona & St. Peter R. Co. v. Denman, id. 267; Grey v. First Division St. Paul & Pacific R. Co., 13 id. 315; Harrington v. St. Paul & Sioux City R. Co., 17 id. 215; Adams v. Hastings & Dakota Ry. Co., 18 id. 260; Kaiser v. St. Paul, Stillwater & Taylor's Falls R. Co., 22 id. 149; Brisbine v. St. Paul & Sioux City R. Co., 23 id. 114. When a man dedicates to the public land for a highway, street or alley, he must be supposed to have in view the benefits which will result to his remaining lands from the particular use to which ho dedicates it. And when land is taken for a street, the compensation therefor is adjusted with reference to the benefits and injuries which the proprietor of the remaining land will receive and sustain by reason of the opening of the street. And these benefits and injuries will be estimated with reference to the identical use to which the property taken is appropriated. Bouvier defines a highway as passage, road, or street which every citizen has a right to use;" a street as "a public thoroughfare or highway in a city or village." The following definitions by the courts may also be adverted to: By the dedication "the public acquire nothing beyond the mere right of passing and repassing upon the highway, and in all other respects the rights of the original owner remain unimpaired." Williams v. Railroad Co., 16 N. Y. 97. The easement of a highway "embraces all travel, not prohibited by law, on foot, in

64

carriages, omnibuses, stages, sleighs, or other vehicles, as the wants and habits of the public demand." Elliott v. Railroad Co., 32 Conn. 580. "The right of the public in a highway consists in the privilege of passage, and such privileges as are annexed as incidents by usage or custom, as the right to make sewers and drains, and lay gas and water pipes." State v. Korerick, 34 N. J. L. 205. (2) In this case the street occu

lot owned by plaintiff, were upon made land which had been extended into a lake through which flowed a navigable stream. It was claimed that the lot owner's title did not extend to lands covered by the waters of the lake, but stopped at the line of low water. Held, that while such is the law, it is well settled that the owner of land bounded by a navigable stream has certain riparian rights which spring from the ownership of the bank, and are not dependent upon a strict legal title in him to the soil covered by the water. Theso rights were clearly defined in Brisbine v. St. Paul & Sioux City R. Co., 23 Minn. 114, as follows: "The right to enjoy free communication between his abutting premises and the navigable channel of the river; to build and maintain for his own and the public use, suitable landing places, wharves, and piers on and in front of his land, and to extend the same therefrom into the river to the point of navigability, even though beyond low-water mark; and to this extent exclusively to occupy for such and like purposes the bed of tho stream, subordinato aud subject only to the navigablo rights of the public, and such needful rules and regulations for their protection as may be prescribed by competent legislative authority." In addition to the authorities cited in the opinion in this case, the doctrine has the authority of a recent English case in tho House of Lords, and we are satisfied that it rests upon solid grounds of justice and utility. Long v. Fishmongers, L. R., 1 App. Cas. 662. It does not appear that the use made of the shore in this case has caused the least impediment to the free and unobstructed navigation of the river, or has been prejudicial in any way to the public interests. These riparian rights are property, and cannot lawfully be taken for public use without compensation. Yates v. Milwaukee, 10 Wall. 197. The acts done by the defendant are an invasion of the riparian rights of the plaintiff. Carli v. Stillwater Street Railway & Transportation Co. Opinion by Clark, J.

[Decided Oct. 27, 1881.]

SLANDER- -WORDS CHARGING COMMISSION OF CRIME ACTIONABLE PER SE. The statute of Minnesota provides thus: "Whoever willfully burns any goods, house, hotel, store, or other building, which is at the wares, merchandise, or other chattels, or any dwellingtime insured against loss or damage by fire, with intent to injure the insurer, whether such person is the owner of the property burned or not, shall be punished by imprisonment in the State prison not more than ten years nor less than three years." A complaint in and maliciously spoke these words concerning West, an action for slander charged that defendant falsely the plaintiff: "West burned his store, and I know it and will swear to it," and "West sent two loads of his store goods to the Black Hills, with his mule teams, and started a store there, and then set fire to and burned his store building to get the insurance." Held, upon a demurrer to the complaint, that these words, when taken in their plainest and most natural sense, and as they would be ordinarily understood, obviously import the commission of crime punishable by indictment, and such words are actionable per se. Montgomery v. Deeley, 3 Wis. 623; Case v. Buckley, 15 Wend. 327; St. Martin v. Desnoyer, 1 Minn. 156. West v. Hanrahan. Opinion by Dickinson, J. [Decided Oct. 29, 1881.]

SPECIFIC PERFORMANCE-CONTRACT WITH PENALTY FOR BREACH DOES NOT NECESSARILY EXCUSE-CON

STRUCTION OF CONTRACT. —A contract in writing between H., the plaintiff, on the one part, and F. and J., defendants, on the other, for the sale of land by plaintiff to defendants, in which plaintiff agreed to convey the land and defendonts to perform certain acts and make certain payments, contained this: "But in case