close. Lexington Ins. Co. v. Paver, 16 Ohio, 324. (2) In an action for the publication of an alleged libel in a designated newspaper, the republication of the same matter in other papers is not admissible in evidence. Vifquain v. Finch. Opinion by Maxwell, J. [Decided May 27, 1884.]

AGENCY-NOTICE TO PRINCIPAL.-When an agent is clothed with ample powers to buy and sell real estate, and institute and defend suits in the name of his principal, actual notice to him in relation to the subject-matter of the agency is actual notice to the principal, and is a valid defense on a motion to set aside a judgment rendered by default in cancelling a tax deed. Story Ag., $140. Merriam v. Calhoun. Opinion by Maxwell, J. [Decided May 27, 1884.]

EVIDENCE--DECLARATION OF AGENT-RES GESTA.In an action by B. against H. for the value of a horse which B. had left at the livery-stable of H., with permission to occasionally let him to proper and careful drivers, and which had been let on the fourth day of July to an improper person, was overdriven, and not properly cared for, from the effects of which he died on the eighth of July following, a statement made to B. by the agent of H., and foreman and general manager of said livery-stable, as to the condition and appearance of the horse when returned to the stable, July 4, his symptoms since that time, and at the then present time, was properly admitted in evidence on the part of the plaintiff, having been made at the same time of the depending transaction, and constituting a part of the res gesta. Homan v. Boyce. Opinion by Cobb, C. J.

[Decided May 28, 1884.]

FIXTURES-INTENTION-BUILDING ERECTED PENDING SALE-REPLEVIN.—Âs to whether a building constructed upon the land of a person other than the owner of the building becomes annexed to and a part of the freehold, must depend to a great extent upon the facts and circumstances of the case and the intention of the parties. The owner of real estate offered it for sale; then put it into the hands of an agent for sale at a fixed price. The agent sold it for the price named. The purchaser, without a written contract, or the payment of any money, took possession of the property, pending the execution of the deed, and began the erection of a house thereon for himself. The owner of the real estate afterward repudiated the sale of the land, and took possession of the building constructed by the purchaser. Held, that the purchaser was not divested of his title to the building, he being in no default, and having constructed the building in good faith, and that he could maintain replevin therefor. The authorities all distinguish between an unauthorized erection of the buildings upon the land of another, and improvements made thereon by his consent, as respects the title to the improvements or the beneficial interest therein. See Tyl. Fixt. 88, 81. Suppose the contract of sale and authority to take possession and construct the building, pending the completion of the contract, had been made by the plaintiff in error, and he had afterward refused to execute and deliver the necessary deeds, would the case have been materially different from what it is? We think not. The right to remove buildings under such circumstances is strictly equitable in its nature, but as between the parties it has come to be recognized at law. Little v. Millford, supra; 2 Am. Lead. Cas. (5th ed.) 589. The case of Rush Co. v. Stubbs, 25 Kans. 322, is quite similar to this in many respects. There the plaintiff placed its building upon the land of the defendant, upon which he had a homestead filing, with the understanding that he should convey to the plaintiff when he procured his patent from the United

States. The building was placed upon a permanent stone foundation, but the agreement with Stubbs was not in writing. Stubbs obtained his patent to the land, but refused to convey to the county, and also refused to allow the plaintiff to remove the house. The county replevied the house, and the Supreme Court decided the action could be maintained. Brewer, J., in delivering the opinion of the court, used the following language: The house "was placed by the plaintiff upon the land to which the defendant, Stubbs, had an inchoate title, with the understanding that it should remain the property of the plaintiff. How did the plaintiff lose its title? The manner in which it was annexed to the ground did not prevent the intention of the parties from remaining effective. The building was, it is true, on a stone foundation, but it was held there by its own weight. That it could be removed without destruction is evident, not merely from the description of the building, but also from the fact that it had been once moved. The contract of purchase may be laid out of consideration, for it was void, and was repudiated by the owner of the realty, and it was not intended thereby to affect the ownership of the building. * **The intention of the parties made this building personalty, and neither the manner of annexation nor any other matter prevented this intention from being carried into effect. Demand was conceded. Replevin and not forcible entry and detainer, is the remedy to recover personal property." Waters v. Reuber. Opinion by Reese, J. [Decided May 29, 1884.]

IOWA SUPREME COURT ABSTRACT.

NEGLIGENCE-CROSSING RAILROAD-CONTRIBUTORY NEGLIGENTE-FAILURE TO LOOK AND LISTEN.-Where a party driving has, at a distance of fifty feet from the railroad, an unobstructed view of 1,300 feet of the track, and his attention is in no way diverted from seeing an approaching train, his failure to look and listen is such negligence that he cannot recover if injured by a train upon the track. Schaefert v. C. M. & St. P. R. Co., 17 N. W. Rep. 893. Where two tracks run parallel at some distance apart, though the train on the first track might have prevented the plaintiff from seeing the train on the second track (the one on which the collision occurred), he is not excused from seeing the train on the first track, the view being un obstructed, and waiting until it passed to see if there was danger in crossing the second track; the crossing of one track, and the attempt to cross the other, were parts of one act. Pence v. Chicago, R. 1. & P. R. Co. Opinion by Rothrock, C. J. [Decided June 4, 1884.]

AGENCY

-COMMISSIONS-WHEN NOT ENTITLED TO.— Where a real estate agent contracts to sell lands at cer tain designated terms and prices, for a specified commission, he does not show himself entitled to the commission when he claims only to have furnished a customer to whom the owner might sell if they could come to any agreement as to prices and terms, espec ially where, as in this case, the owner made the transaction in entire ignorance that the real estate agent had any thing to do with producing the purchaser, and where the prices and terms agreed upon were materially different from those the agent was authorized to offer. There is no doubt that an agent or broker who is employed to sell property at a designated price and on stated terms is entitled to his commission when he has found a customer who is able and willing to take the property at that price and on those terms, whether the sale is consummated or not. McGavock v. Woodlief, 20 How, 221; McArthur V. Slauson (Wis.), 9 N. W.

Rep. 784. It is also true that where the undertaking of the agent is simply to find a purchaser, he will be entitled to compensation when he produces a customer who is ready and willing to buy it,and with whom the principal enters into negotiations which result in the purchase by him of the property. Iselin v. Griffith, 18 N. W. Rep. 302; Kimberly v. Henderson, 29 Md. 512; Jones v. Adler, 34 id. 440; Gillett v. Corum, 7 Kan. 159. But this case is not within either of these principles. Plaintiffs' employment was to sell the land. The allegation of their petition is that defendant appointed them its agent for the sale of the land, and this allegation is admitted in effect by the answer, and the evidence shows that they were furnished a list of the lands, which stated the price and terms on which they were authorized to sell it. They were agents then for the sale of the land, at the prices and on the terms stated in the list. They do not claim however that they have procured a purchaser to take the land at those prices or on those terms. Nor do they claim that they are entitled to recover on that ground. Their claim is that they induced the purchaser to enter into the negotiation with defendant which resulted in the sale of the property, and this is the ground on which the court held they were entitled to recover. But they are clearly not entitled to recover on this ground, on the theory that what they did was a performance of their undertaking when they accepted the agency; for as we have seen their contract was to sell the land at the prices and on the terms designated in the list, and not merely to furnish a customer to whom defendant might sell it if they were able to come to an agreement as to prices and terms. We think the difference between what plaintiff contracted to do and what they claim to have done is very apparent and very material. If what they did do was accepted by the defendant as a performance of their undertaking in the contract, they doubtless would be entitled to the commissions provided for in the contract. This is the doctrine of Stewart v. Mather, 32 Wis. 349. Blodgett v. Sioux City & St. P. R. Co. Opinion by Reed, J. [Decided June 5, 1884.]

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-ACCOMMODATION PAPER -CONTRIBUTION-PAROL EVIDENCE AS TO LIABILITY.

-(1) A note indorsed by the payee and another simultaneously, for the accommodation of the maker, raises as between the indorsers an obligation to contribute in case of non-payment. McCarty v. Roots, 21 How. 437; Woodward v. Severance, 7 Allen, 340; Clapp v. Rice, 15 Gray, 557; and Church v. Barlow, 9 Pick. 547. We do not understand the legal proposition determined in Coolidge v. Wiggin, 62 Me. 568, and Kirschner v. Conklin, 40 Conn. 77, to be in any respect different. In the latter case it was found as a fact that the indorsers were not joint guarantors or indorsers, and in the former it was held that the mere fact that the indorsers placed their names upon the note for the accommodation of the maker would not change the legal presumption, or make the indorsement joint. These cases are distinguishable, because it must be assumed that the District Court found that the plaintiff and defendant were joint sureties on accommodation paper; and if one indorser suffers judgment to be recovered against him on the note, and pays the same, he must bring his suit against the other for contribution within five years. It was held in Wilson v. Crawford, 47 Iowa, 469, that the payment of a judgment by a surety on the instrument upon which the judgment was rendered, gives him a right of action against the judgment debtor upon an implied promise for repay

ment of the money, and that the right of action accrues when the payment is made, and that such action is barred in five years from the time it accrued. See also Lamb v. Withrow, 31 Iowa, 164, and Johnston v. Belden, 49 id. 301. (2) Parol evidence is admissible to show that the actual transaction between the parties was other and different from that implied by law, because of the order in which the names appear on the back of the note. The reasons are thus stated by Church, C. J., in Hubbard v. Gurney, 64 N. Y. 458-463, "it does not tend to alter or vary either the terms or legal effect of the written instrument. The contract was in all respects the same whether the defendant was principal or surety. In either case it was an absolute promise to pay $1,000 one day after date; nothing more, nothing less. There is neither condition nor contingency; it would have been precisely the same contract if the defendant had added the word "surety" to his name. The addition of that word would not have varied it in the slightest degree. The only service it would have performed would have been to give notice to the other party. If it is shown aliunde, it is equally effective." This reasoning is entirely satisfactory, and is sustained by the following cases: Rey v. Simpson, 22 How. 341; Good v. Martin, 95 U. S. 93; Riley v. Gregg, 16 Wis. 666; Carpenter v. King, 9 Metc. 511; and the following cases determined by this court: Kelley v. Gillespie, 12 Iowa, 55; Harrison v. McKim, 18 id. 485; and James v. Smith, 30 id. 55. Sup. Ct. Iowa, June 7, 1884. Preston v. Gould. Opinion by Seevers, J. (19 N. W. Rep. 834.)

NEGOTIABLE INSTRUMENT -DRAFT- RELEASE OF ACCEPTOR-RIGHTS OF DRAWER.-The release of an acceptor of a draft, even though it be effected by a mere agreement not to sue, has the effect to release the drawer. That this is the rule we think cannot be denied. 2 Dan. Neg. Inst., § 1291. This rule should not be confounded with the rule in respect to a joint maker. Dean v. Newhall, 8 Term. R. 168. No legal question being presented, we have only to inquire in regard to the construction which should be put upon the writing in this case. Did it have the effect to preclude the plaintiff from maintaining an action upon the draft for the enforcement of a personal obligation? It certainly did, unless the right to enforce such obligation was saved by the words, "nothing herein shall be construed as in any manner affecting the rights of said bank to the proceeds of a mechanic's lien upon the Cresco elevator, nor the rights of Day Bros." But in our opinion, the right to enforce a personal obligation was not saved by such provision. If the intention had been to save such right, the agreement not to prosecute any action upon any claim held by plaintiff should have been qualified simply by excepting therefrom the draft in question. But the qualification is made to apply to the proceeds of a lien, evincing very clearly, as we think, a design to save the plaintiff's rights in respect to a supposed claim in rem. It is true, that as a matter of fact, the plaintiff had no claim in rem. The drawing and acceptance of the draft did not have the effect to carry the lien, though probably the draft was drawn and accepted with reference to the debt secured by the lien. This precise question was decided in First Nat. Bank of Decorah v. Day, 52 Iowa, 680. But this does not change the fact that the plaintiff thought that it had a right to such lien; or to use its own language, a right to the proceeds of the lien. Nor do we think that the plaintiff is helped by the provision of the writing that the rights of Day Bros. growing out of the claim secured by the lien should not be affected. The intention appears to have been simply that Day Bros. should have the full benefit of that claim by the enforcement

thereof against the elevator. If the intention was that the writing should not affect Day Bros.' liability upon the draft, the parties used very remarkable language to express it. It may be that the plaintiff never thought of Day Bros.' liability being affected; but if this were conceded, it would only show the more clearly that the qualifying clause of the writing was not designed to refer to it. Sup. Ct. Iowa, June 10, 1884. First Nat. Bank of Decorah v. Day. Opinion by Adams, J. (19 N. W. Rep. 882.)

NEW BOOKS AND NEW EDITIONS.

TERRY'S ANGLO-AMERICAN LAW.

Some Leading Principles of Anglo-American Law, expounded with a view to its arrangement and codification. By Henry T. Terry, Professor of Law in the University of Tokio, Japan. T. & J. W. Johnson & Co., Phila., 1884. Pp. 686.

The above work is a contribution to the legal literature of the times, having for its end and aim codification. Every member of the American bar, whether advocates of codification or not, should peruse this volume, for the reason that the author does not carry him back to times of the civil law, as writers on jurisprudence generally do, but grappling our own law in its present condition, which in itself is a herculean task, he feels, to borrow one of Bishop's expressions, "for the ribs of the law." The volume closes with some suggestions on the subject of codification, which to those interested and engaged in such labor will be of particular interest. We do not entirely agree with the author's views, as we have before pointed out. The book is excellently printed and bound.

REESE'S MEDICAL JURISPRUDENCE AND TOXICOLOGY. Text Book of Medical Jurisprudence and Toxicology. By John J. Reese, M. D. P. Blakiston, Son & Co., Phila., 1884. Pp. 606.

This work is itended as a stepping-stone to the more voluminous and exhaustive treatises of Casper, Taylor, Beck, Wharton & Stillé, Tidy and others. The author has condensed all the essentials of the science, presenting them in an orderly, systematic and lucid manner. If some of those into whose hands the book may find its way will follow the advice therein given, the court scenes which the author so much deprecates will grow beautifully less. But experience teaches us that the medical expert will insist upon "explaining" instead of answering questions. Again, the author seems to think that if "experts were equally skilled there rarely would occur any conflict of opinion between the opposite sides, since both are equally desirous of discovering and testifying to the truth, and truth is always undivided." This reads well, but the records of cases in which it has been necessary to call in "experts" show that no matter who the experts are, whether professors or doctors, they still are men, interested in and swearing for the side which employs them. If the work which is so faithfully done encourages an in terest in the subject of Forensic Medicine the author's hopes will be realized, and his labors will not have been in vain. The printing is excellently done.

NOTES.

"AFFIRMED."

Addison Brown of Lefort,
Suing a neighbor for pelf,
Bringing his case into court,
Determined to try it himself.
Little his knowledge of law,

But great his belief in the same, Said his sometime attorney (De Graw Was the legal gentleman's name),

"The action (at least) will not lie,

(For he owed his old client a grudge), And the only thing he will try

Is the patience of jury and judge." The plaintiff opened his case: "Here is a French adage," he said, "I cannot refer to the place,

But the same I am sure you have read. Which holds out a man who appears For himself on his own brains reliant, Regardless of jibes and of jeers, Has always a fool for a client." We said that he did not agree

With this sentiment, plainty untrue, And thought himself perfectly "free To assert that neither do you."

"Opinion by the full Bench

For the county and town of Lefort;
No one dissenting, the French

Adage affirmed by the court."

A lawyer writes us from Minneapolis: "I do not know whether you care to hear from youngsters, but will take the liberty of expressing the pleasure, ever increasing, which the advent of the JOURNAL affords me each week. From the LAW JOURNAL I glean my legal lore quite as much as I ever did from Blackstone or Kent or Parsons or Story, and the friendliest face of all I met when I came to Minnesota from New York was the old familiar one of your periodical. Infant that I still am (not in the legal sense), I save the best for the last, and commence

my perusal of the paper with the "Notes of Cases," to wind up with "Current Topics;" and to thank you for the enjoyment to be derived from the latter is my object in writing. They form the greenest of oases in the limitless desert stretching out before a clientless counsellor in a strange land. May your right hand never grow weary-or are you left. handed?" Such a discerning young lawyer will not be briefless very long.-The American Law Register for October contains a leading article on Possession by Husband and Wife, by David Stewart; and the fol lowing cases in full: Whalley v. Lancashire, etc., Ry Co. (Eng.), on obstruction of surface water by railway embankments, with note by Edmund H. Bennett; Gleason v. Gleason (Neb.), on divorce for cruelty, with note by W. W. Thornton: Hoffman v. Brooks (Cincinnati Supr. Ct.), on pooling contracts, with note by Elisha Greenhood; Hoverson v. Noker (Wis.), on father's liability for torts of minor child, with note by Marshall D. Ewell. -Chief Justice Jackson, of Geor gia, affords us the following in 70 Ga.: "Unfortunately for the Dahlonega company however it dealt with the Battle Branch Company as a corporation re peatedly, in respect to the waters of this very ditch, it actually obtained its permission to use those waters; it did use those waters under that permission for years; it dealt with its attorneys, its presidents, its superintendents and managers, as attorneys, presi dents, superintendents and managers of a corporation known and recognized by it as the Etowah and Battle Branch Hydraulic Hose Mining Company. It called it by the name, the long name, the very remarkable and distinguished name, by which it was clearly dis tinguishable from all the world of creatures, corporeal and incorporeal, and which it had received by baptism at the christening fount of the General Assembly of the State of Georgia. Surely such a recognition of the infant by name; such a dandling and handling it; such billing and cooing with it; such reception of gifts and favors from it; such drinking the water of the child's ditch by permission of the little creature, must estop in all courts, both of law and equity, the recipient of such favors from denying the existencethe breath in the body of the being with whom it thus dealt so long, and from whom it received (much of it without money and without price, too) so many fa

vors."

The Albany Law Journal.

ALBANY, NOVEMBER 22, 1884.

CURRENT TOPICS.

is a good to refer once in a while

an

one of those who never have got over John Brown's invasion, and who are never done with dwelling on its wickedness. We seldom allow ourselves even to whisper any thing about politics, but we would whisper to ex-Justice Campbell that John Brown's invasion can be defended by the same reasoning upon which secession is defended, and upon which alone it can be defended, namely, that it was an at

and warning. The lawyers of this State ought never to forget Judge Davis' fining the counsel for contempt in the Tweed case, which was one of the greatest judicial outrages ever perpetrated. We are glad to see so temperate and intelligent a critic as the London Law Times taking this view of it. In a recent review of Mr. David Dudley Field's works, that periodical says: "There is only one other portion of the work which is of deep interest, and that is to be found in the remarks upon Judge Davis and the Contempt Proceedings.' The history of this case is such as to make us feel with more than usual strength, the value of the traditional dignity and honor of the English Bench and of the integrity and courage of the English Bar. The brief summary of the facts, is that Judge Davis twice tried the same prisoner, that on the first occasion he summed up against the prisoner, and upon the second, counsel for the prisoner handed up a formal protest that Judge Davis ought not to try the case. This protest, after consultation with his brother judges, he treated as a contempt, and his address to the counsel in contempt was received with applause by the junior bar, which as usual, had crowded the court. We can only say that if the law allowed such a thing in England, the honor of the judges would prevent the law from being followed, and we trust the day is far distant when such an address as was delivered by Judge Davis would be received with acclamation by any member of either branch of the profession. Note well, that Judge Davis' monstrous tyranny was the fruit of consultation with his brethern. The conclusion is, that his victims 'were the only men who emerged from this disgraceful scene without a blemished reputation, and that Englishmen may be pardoned if they do not yet see the necessity of Americanizing their judicial system."

The Report of the Sixth Annual Meeting of the Alabama State Bar Association, in August last, contains some interesting papers, notably one upon Limitations upon the Quarantine Power, by Mr. Harry Pillans; one on the moral Responsibility of the Legal Profession for the Administration of Public Justice, by D. S. Troy; two on the Administration of Criminal Law, by Mr. Daniel Coleman and Mr. H. D. Clayton, Jr., respectively; and one by Mr. R. W. Walker, on Separate Courts of Chancery. The address by Mr. John A. Campbell, formerly an associate justice of the United States Supreme Court, is of a tone that indicates that its author has not learned so much of our political affairs in the last twenty yeas as many of his brethern have learned. VOL. 30 No. 21.

He is

sible for failure. But what good is there in dwelling on these things? The reason for secession has disappeared, and we suppose there are few secessionists who would care to see it restored. It is all well enough for southern soldiers, assembling on solemn or festal occasions, to mourn over the "lost cause." So much is permitted to those who so bravely and persistently fought for what they honestly thought right. We can even tolerate it in politicians and stump-orators. But it is a very improper text for an assembly of lawyers. We deprecate the spirit of this address. A man who can exclaim, “who shall deliver us from the body of this death?" and aver that "only when the United States invaded the States was there war and the calamities of war," is not only dwelling in the past, but has forgotten the past.

It was quite a serious omission of attention to our distinguished guest, Lord Chief Justice Coleridge, not to take him out west, and treat him to a stagecoach robbery, compelling him to hold up his hands while the founders of our breezy western civilization put their hands in his pockets. We treat our own chief justices better. Thus, Chief Justice Wade, of Montana, was recently subjected to one of these visitations, and required to hold up his hands, although not for the avowed purpose of swearing. He writes a very amusing account of the incident to a friend, which was published in the Cleveland Leader. The result of the affair is thus described: "How anxious we were to give up our money, and watches and have the entertainment over. It is amazing how very liberal we all became. We were just aching to give up our valuables. We waited patiently to be killed if that was in the programme (we had no bills showing the acts and scenes), and after waiting for what seemed about nine years, but in fact perhaps ten minutes, one of the masked fellows, who seemed to be in command, and who stood like a statue, said: 'Get into the coach. Be quick about it. Don't look back, and drive like hell.' Some of us hesitated about getting into the coach before we had been robbed. We thought we were entitled to have the regulation programme carried out in full. But a motion from one of the maskers with his gun persuaded us to obey the order, and we got on board, and the driver put the horses to such speed, that I began to think the terrors of road-agents were more endurable than those of a driver attempting to obey such an order. A moment after we started we heard the report of eight or ten guns, crack! crack! and we supposed a load of passengers by another conveyance had been