Inhabitants of Topsham v. Inhabitants of Lewiston. Opinion by Virgin, J.

STATUTE OF FRAUDS -TRUST OF PERSONAL PROPERTY.-Where a trust is of personal property, it is not within the statute of frauds and may be created by parol. Benbow v. Townsend, 1 Mylne and Keene, 506. In Jones v. Lock, 1 L. R., Ch. Appeal Cases, 25, Lord Cranworth says that "a parol declaration of trust of personalty may be perfectly valid even when voluntary. If," he adds, "I give any chattel, that of course, passes by delivery, and if I say, expressly or impliedly, that I constitute myself a trustee of personalty, that is a trust executed and capable of being enforced without consideration. I do not think it necessary to go into any of the authorities cited before me; they all turn upon the question, whether what has been said was a declaration of trust or an imperfect gift. **But when there has been a declaration of trust, then it will be enforced, whether there has been consideration or not." Cobb v. Knight. Opinion by Appleton, C. J.

PRACTICE-PARTY CANNOT BE BOTH PLAINTIFF AND DEFENDANT AT LAW.-A person cannot be both a plaintiff and a defendant in the same suit at law. In such case the remedy is by bill in equity, in which such decree may be had as will effect a proper adjustment of the respective rights and liabilities of all the parties interested. Deuny v. Metcalf, 28 Me. 390; Portland Bank v. Hyde, 11 id. 198. Neither can one of two or more joint owners of a vessel maintain an action in his own name alone for freight, though he be also master. Robinson v. Cushing, 11 Me. 480. Hayden v. Whitmore. Opinion by Barrows, J.

SHERIFF-LIABILITY OF NOT INSURER.-In cases where an officer is called upon by the nature of the service to be performed, to find some person or thing, or ascertain some fact, or determine some question, upon an inquiry and investigation to be instituted by him after the process comes into his hands, he is required to exercise reasonable care, skill and diligence in the performance of the duty, but he is not liable as an insurer. A sheriff is answerable for the escape of a prisoner in execution, and can avail himself of nothing but the act of God or the public enemies, as an excuse. Here his liability is akin to that of innkeepers and common carriers at common law. But this severe and exceptional requirement of the law is founded upon a public policy. The sheriff has the whole power of the county at his call, and that is supposed to be an answer to all excuses. This rule however was considered a hard one as early even as Lord Mansfield's time, who said, as reported in O'Neil v. Marson, 5 Burr. 2812, "the cases are hard, but they are too strong to be got over. There is no going into the reason of them." But the legislative and judicial tendencies in this State have been toward a relaxation of such rigorous rule. There are other cases where a sheriff assumes the burdens of an insurer in some respects. He must not commit legal mistakes. There is good reason for this. He assumes to know the law, or to take the risk of it, by accepting the office. He engages that he has the skill and ability to do its duties. But a marked distinction may exist between a mistake of law and a mistake of fact. Again an officer must at his peril see to it, that he does not arrest the wrong person or attach the wrong property, but even here an unusual risk may be avoided. In cases of doubt, an indemnity may be required from the creditor. The sheriff must safely keep property seized upon execution. Anciently he was regarded as an insurer of property taken upon final pro

cess. Some modern courts hold to this liability, unless the sheriff is excused by the act of God or some other overpowering and extraordinary force. Other courts do not go so far, and only require upon the part of an officer reasonable care. Here too a public policy, something like that relating to escape, applies. The officer has the power of the county to preserve or retake property. Story's Bailm., § 130; Edward's Bailm. 59; 2 Thompson's Neg. 826, cases in note; Sher. and Red. Neg., § 530. Ordinary care however, it is generally held, will discharge an officer from responsibility in case of the loss of goods attached upon mesne process. Mills v. Gilbreth, 47 Me. 320; Dorman v. Kane, 5 Allen, 38, and authorities before cited. Schouler, Bailm. 55. An officer cannot charge in his bill of fees for costs of insurance by him actually paid upon attached property. Burke v. Brig, Rich, 1 Cliff. 509. But whatever the liability of an attaching officer may be to the creditor for the loss of property attached on writ or seized upon execution, his liability to the debtor or owner is only that of ordinary care, such care and diligence as a prudent business man would bestow upon his own property. Parrott v. Dearborn, 104 Mass. 104; Whar. Neg., § 289; Cooley, Torts, 394; Sher. and Red. Neg., § 530. A sheriff, who erroneously certifies in a levy upon land of an execution-debtor that the appraisers were disinterested, when they were in fact interested, is not liable in damages therefor to the debtor, or to the person standing in the condition of the debtor, if not guilty of negligence in making such erroneous return. The remedy for an error thus committed by an officer lies in a motion to the court for leave for the officer to amend his return, and in the power of the court, under such motion, to extend the necessary relief upon just and equitable principles. Generally an officer is not liable for attaching too much or too little property, if he exercises a sound discretion and acts in good faith. Sher. and Red. Neg., § 523, and cases. An officer's return in some cases is not conclusive against him, where he states a thing which must necessarily be a matter of opinion or judgment merely. Drake Attach., § 206. This applies to a statement of time. Williams v. Cheesebrough, 4 Conn. 356. Or to a statement of value. Pierce v. Strickland, 2 Story, 292. An officer should not be concluded by an expression of his judgment as to the value of property, as it may prove to be of less value on account of some concealed infirmity or defect." Denton v. Livingston, 9 Johns. 97. Other illustrations are found in other cases. Watson v. Brennan, 39 Super. Ct. (N. Y.) 81; S. C., 66 N. Y. 621; Lovick v. Crowder, 8 B. and C. 132; Richards v. Gilmore, 11 N. H. 493. In the case at bar, in making a levy upon land, a sheriff returned that the appraisers were disinterested. The appraisers themselves were not aware that they were interested, the facts constituting their interest, if any, were not at the moment remembered by them; they declared to the officer that they had no interest; it was not suggested or suspected by any one present during the proceedings that they were interested; two of them were chosen respectively by the parties to the execution; the officer was required to act without much delay; and he testified, without any evidence to oppose his general statement, that he used great care and caution in making inquiry and investigation. An action for false return was brought by mortgagees of the execution-debtor, who got their mortgage after the attachment and before the levy. Held, that the sheriff was exonerated from the charge of negligence, and that the action could not be maintained whether the appraisers were in fact interested or not. Strout v. Pennell. Opinion by Peters, J.

MARYLAND

DAMAGES

COURT OF APPEALS ABSTRACT.*

ON BREACH OF CONTRACT TO DELIVER GOODS WHEN NOT SPECIAL NEED NOT BE PLEADED.

— (1) In actions by vendee against vendor for a breach of a contract to deliver goods, the general rule is that the measure of damages is the difference between the contract price and the market price, at the time and place of delivery. 1 Chit. Cont. 621; 1 Sedgw. Damages, 552; Williamson v. Dillon, 1 H. &. G. 445; Williams v. Woods, 16 Md. 222. But where an article is purchased, not for the domestic market, but to be shipped abroad, and the fact was shown on the face of the written contract and was known to the vendor, and it was impossible for the vendee to discover the inferiority of the article (which had been fraudulently substituted by the employees of the vendor) until it had reached its ultimate destination, the true measure of damages is the difference between the market price of the article contracted for, at the date of its arrival, and the price afterward realized upon a sale thereof, together with the necessary and proper costs and expenses incurred in making the sale. In Hadley v. Baxindale, 9 Exch. 341, it was laid down that "the damages for a breach of contract should be such as may fairly and reasonably be considered, either as arising naturally, i. e., according to the usual course of things from such breach of the contract itself; or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." In Abbott v. Gatch, 13 Md. 333, the rule was thus stated: "Such damages as are incidental to, and caused by the breach, and may be said to flow reasonably and naturally from such breach, and are not accidental or consequential (quære, contingent,) losses will be allowed, and whether they are of the one character or the other must depend on the nature of the transaction." See also, Borries v. Hutchinson, 114 Eng., C. L. 443; Elbinger v. Armstrong, L. R., 9Q. B. 476; Hinde v. Liddle, L. R. 10 Q. B. 269; Loder v. Kekule, 3 C. B., N. S., 128. (2) Where in an action by vendee against vendor for breach of contract to deliver goods, the damages claimed by the plaintiff are not in their nature special, but such as are the natural and proximate result of the breach, it is not necessary that they should be particularly stated in the delaration. Armstrong v. Percy, 5 Wend. 538. Camden Consolidated Oil Co. v. Schleus. Opinion by Bartol, C. J. [Decided July, 11, 1882.]

CORPORATION

See

LIABILITY OF SHAREHOLDER FOR DEBTS- SHARES ISSUED AND PUT IN MARKET AS FULL PAID SHARES-ULTRA VIRES PURCHASE OF MINERAL LANDS BY MINING COMPANY NOT.-(1)Where shares of the capital stock are issued by a corporation to the original subscribers as full paid shares, and are sold by them as such, a purchaser thereof in good faith, cannot be held liable to a creditor of the corporation in the value of his stock as for unpaid installments. The unpaid subscriptions of a corporation become insolvent, in the hands of a bona fide purchser without notice, do not constitute a trust fund which may be pursued by the creditors of the corporation, and subjected to the payment of their claims. In Sanger v. Upton, 91 U. S. 60, where the doctrine of trust-fund is as strongly asserted as in any other case, the court say, "The capital stock of an incorporated company is a fund set apart for the payment of its debts. If diverted, the creditors may follow it so far as it can be traced, and subject it to the payment of their claims, except as against holders who have taken it bona fide for a valu able consideration and without notice." Shares of stock are not, strictly speaking, negotiable instruments,

*To appear in 59 Maryland Reports.

but courts speak of them as quasi negotiable; and when they are issued as full-paid shares, and as such sold in open market, the purchaser is not bound to suspect fraud where everything seems fair and conformable to the requirements of the law. Any other doctrine would virtually destroy the transferable nature of such shares, and paralyze the whole of the dealings in the stock of corporations. Burkinshaw v. Nicholls, 26 W. R. (H. of L.)821. Where shares of stocks are issued to be paid in certain installments, the law implies a promise on the part of the subscriber and his assignee, that they will pay whatever may be due thereon according to terms of the subscription. But where shares are issued as fully paid, and these are sold in open market, and one buys them in good faith on the representation of the company that they are paid up, no promise can be implied on the part of the purchaser to become liable if such shares have not in fact been paid. He is not bound to suspect fraud in issuing the stock, and the remedy of the creditor in such cases is against the parties to the fraud. In Foreman v. Bigelow,4 Cliff. 509, and Steacey v. Little Rock R. Co., 5 Dill. 348, the whole subject was considered and the English doctrine was fully approved. And in all the cases as relied on as sustaining a contrary doctrine, it will be found either that the certificates on their face showed that the shares of stock were not in fact full-paid, or the facts and circumstances accompanying the transfer were such as to put the purchaser on the inquiry. Upton v. Hansbrough,3 Biss. 417; Upton v. Tribilcock, 91 U. S. 45; Bowman's case, 12 Conu. 530; Bend v. Susquehauna Bridge Co., 6 H. & J. 126; Hall v. United States Ins. Co., 5 Gill, 484; Palmer v. Laurence, 3 Sandf. 141. (2) A company incorporated for the purpose of mining and shipping coal, and empowered by the laws of the State wherein it was incorporated, to purchase and hold mineral lands to the extent of ten thousand acres, may lawfully purchase coal lands, and pay for the same in the stock of the company. A corporation may receive in payment of shares of its capital stock any property which it may lawfully purchase, and so long as the transaction stands unimpeached for fraud, courts will treat as a payment that which the parties themselves have so regarded, and this too, in cases where the rights of creditors are involved. The law is well settled, that a company may receive in payment of its shares of stock any property which it may lawfully purchase; and so long as the transaction stands unimpeached for fraud, courts will treat as a payment that which the parties themselves have agreed shall be a payment, and this too in cases where the rights of creditors are involved. Waterhouse v. Jamieson, L. R., 2 S. App. 29; Ex parte Currie, 32 L. J., Ch. 57; Carling's case, 1 Ch. Div. 115; Nicholl's case 26 W., (H. of L.) 821. In Spargo's case, L. R., 8 Ch. App. 412, James, L. J., said: "If there was on the one side a bona fide debt payable in money at once for the purchase of property, and on the other side a bona fide liability to pay money at once in shares, so that if bank notes had been handed from one side of the table to the other in payment of calls, they might legitimately have been handed back in payment for the property, there is no necessity that the formality should be gone through of the money being handed over and taken back; but that if the two demands are set off against each other the shares have been paid for in cash." Mellish, L. J., said: "It is a general rule of law that in every case where the transaction resolves itself into the payment of money by A. to B., and then handing it back again by B. to A., if the parties meet together and agree to set the one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards." Brant v. Ehlen. Opinion by Robinson, J.

Decided April 28, 1882.]

lading. * * * Sir George Jessel was not free from the faults to which great minds like his are liable. He was so quick that occasionally he was hasty, but the mistakes he made were not half so many as those of other judges who got through about a tenth of his work. He was also apt to be intellectually overbearing. He was fond of exposing the errors of others, but he never admitted a doubt of the correctness of his own opinion. His phrase, "Of course all judges believe that they are right," has passed into a byword; and Sir George Jessel was the mental antipodes of Lord Eldon, great lawyers as both were, and in some respects not unlike one another. History does not record that Sir George Jessel ever admitted he was wrong. When his attention was called to the fact that the Court of Appeal had overruled his decision, he said: That is strange; when I sit with them, they always agree with me.' This was generally true, as there were few judges whom the Master of the Rolls could not carry with him. Whoever sat with him the court was generally considered to consist of the Master of the Rolls."

The Solicitor's Journal says: "If uniformity can make a characteristic, the universality of regret which is called forth by the news of Sir George Jessel's death will characterize his life and fame. Nor did the scope, variety, and strength of his gifts fall short of the grief which attends their loss. As a judge he was at once so swift and so sure that the surprise which each quality called forth became nothing less than astonishment at the union of the two. When he reasoned, it seemed as though he could dispense with authority; when he quoted, his learning and research admitted of no comparison. No branch of law seemed unfamiliar to him. Whether he was construing, with vast knowledge guided by lucid common sense, the terms of an intricate will, or laying down the principles of patent law, or expounding mercantile usage, or settling the limits of public authority, or regulating the proceedure of the courts, he was alike clear, practical, and profound. Such achievements could only have been possible to a man gifted with the swiftest apprehension and the most ample and tenacious memory. And in truth he seemed only to need to reach his hand in any direction to lay hold upon the keystone which at once fitted and completed the arch of legal reasoning upon any matter which was before him. It was precisely these faculties which enabled him to deal with such extraordinary sagacity with facts however numerous and complicated, and to deliver occasionally those judgments which have been sometimes said to show the highest kind of excellence - judgments in which the statements of the facts gives at once the reasoning and the conclusion."

CORRESPONDENCE.

THAT "LEGAL PARADOX."

Editor of the Albany Law Journal

Concerning the legal paradox, stated by Mr. Lumpkin, on page 260, vol. 27 of your JOURNAL, it seems to me that he should have informed us whether B.'s twelve months allowed for recording had expired or not. Supposing however that they had, and without having at hand the statutes or decisions of Georgia, I should be bold enough to answer his queries in the following general terms, viz.:

I. The sale from A. to B. divested A. of any and every title.

II. Therefore the judgment obtained by C. was no lien on the property, there being nothing left for it to lean upon (excuse this unavoidable pun).

III. Nevertheless when A. made the deed to D., the latter being a purchaser without notice, obtained title (it may seem strange to say that D. obtained that which A. no longer had, but he nevertheless did, because under the recording acts, by a sort of legal fiction, title remains in the vendor [even after his first sale] for the benefit of subsequent bona fide purchas

ers).

IV. When considering the "equities" of the case, the same result is reached. B. is in fault for not having recorded his deed. C. has not parted with any thing, and by obtaining his judgment is put in no worse position than he was. D. however has paid full consideration without notice of B.'s deed, and must be protected; true it may be said that if he had examined the judgment records he would have found C.'s judgment, but his failure to do so cannot give that judgment any greater force than it originally had, which was níl (see II above).

V. It seems to me therefore that D. takes the property. VI. What are the views of the learned editor of the A. L. J. on this question? Yours truly,

Editor of the Albany Law Journal: Allow me to call the attention of your readers to an inaccurate report in 16 Week. Dig. 255, of a ruling of the Court of Appeals in People v. McGloin, decided in January, 1883. According to the report, the court ruled, that as a person convicted of crime was disqualified, both at common law and under the R. S., from being a witness, only after sentence, section 832 of the Code of Civil Procedure relieves only those who have been convicted; "leaving those who have been tried, convicted, and sentenced still subject to the exclusion pronounced by the R. S." A careful reading will show, that if such was the ruling, the judgment below should have been reversed, whereas it was affirmed. In fact, the opinion of Ch. J. Ruger, concurred in by his associates (for the examination of which I am indebted to the courtesy of Hiram E. Sickels, Esq., State Reporter), holds that although technically the exclusion flows from the sentence, yet that the sentence flows from the conviction; and that consequently a fair construction of the language of section 832 of the Code of Civil Procedure, as well as a consideration of the fact that otherwise its provisions would be without meaning, lead to the conclusion that the section referred to operates entirely to abrogate the disqualification. My attention was called to the case in question by a letter from a distinguished judge of the Supreme Court, who suggested that section 832 should be amended at the present session of the Legislature, so as to supply the supposed defect in its language. As the defect is in the report and not in the Code, I have not taken any measure to procure such an amendment of the latter; but it is proper that as wide publicity as possible should be given to the fact that the report is erroneous, as very serious consequences may flow from following it.

Yours, respectfully,
MONTGOMERY H. THROOP.

ALBANY, April 16, 1883.

NEW BOOKS AND NEW EDITIONS.

complete the translation of Dr. Mackeldey's compendium of Roman Law. In 1845, Mr. Philip Ignatius Kaufmann, then of New York, had already translated the first portion of this work. Mr. Kaufmann's translation has always been highly esteemed in England, as well as by those who knew of it in New York. But unfortunately Mr. Kaufmann omitted the most valuable part of the original or that part relating to inheritances, family relatious, and obligations. Perhaps the sale of the finished portion was inadequate to the demands the work made upon the translator; but for whatever reason it may have been, Mr. Kaufmann did not complete the task he undertook. We had hardly expected to see this work in an English dress again, for while justly famous in its day, the original has been superseded in Germany by more modern works which have felt the influence of Savigny and his followers. This fact does not however affect the usefulness of Mr. Dropsie's translation to American readers, for here the study of the Roman law has not reached the critical stage, or is pursued in a very unsystematic fashion. To those whose knowledge of the Roman law is imperfect this translation of Mackeldey's compendium must be a desideratum; the historical part is particularly concise, and alone would enable it to take and maintain a desirable place among the standard English works relating to modern and classical Roman law.

There are some features of Kaufmann's translation which are preferable to those exhibited by Mr. Dropsie's work. Mr. Kaufmann was certainly an accomplished civilian, and he enriched his translation by paginal notes of his own and by a discriminating preface; but unfortunately its incompleteness mars its value to the public. Mr. Dropsie's translation on the other hand has another advantage besides the completeness indicated; it is from the fourteenth German edition of the original, whereas Mr. Kaufmann followed the twelfth. Mr. Dropsie seems to aim at a nearly literal translation, even at the occasional expense of the English idiom; but in some respects this is an advantage rather than a fault.

The influence of the Roman law, ancient and modern in this country, is but just beginning to be more extended than formerly; but in time this influence will be accelerated. In a land of Codes the civil lawyers should be known, for their exegetical and hermeneutical methods bear directly on the subject of codification; thus Mr. Dropsie's author has a practical interest, for he belongs to a useful and not to a purely transcendental body of authors.

Prior to the year 1814, when the original of this vol、 ume first appeared, there were but few institutional treatises in the German tongue, and these, by its perspicuity and excellence, it soon supplanted. Even yet Mackeldey's is a great name in Germany, for it marks an epoch of German juridical literature. The historical part is a fit precursor of such a purely historical work as Ortolan's, for it is a suggestive outline, and will serve as a sign-post in the course of the involutions of the historical journey. But brief as the his torical part is, it is adequate to the exposition of the substantive law which follows, and to which it bears precise relations. The common lawyer, who wishes ready references, will find here frequent references to the Pandects, and the authoritative commentators of the civil law. The student of the civil law will find a comprehensive survey of the entire field, history and principle in good proportions. In short, Dr. Mackeldey's work has distinguished merits which must always recommend it to the public; no matter when or where.

We do not profess to criticise Mr. Dropsie's particular translation; his industry, sure to be inadequately requited, deserves an appreciative and considerate

auditory, and we, for our part, are thankful for his best endeavors, and to have a complete English trauscript of a work once so famous.

SPAULDING'S STATUTE FORMS AND PRECEDENTS, Statute Forms and Precedents, re-printed from the authorized editions of Federal, State, Territorial, and District General Statutes, Acts and Session Laws. Unaltered and Unabridged. Embracing the Greatest Variety of Legal, Conveyancing, Commercial and Business Forms, of a Practical and Standard Nature. By Hugh M. Spalding, author of "Spalding's Treatises upon the Law of Personal Property, Practice, etc." New York. H. S. Mortimer & Co.

The compilation of this volume must have involved a large amount of labor. Every statute of the various legislative bodies of this country, National, State, and territorial, which prescribes or hints at a form has been sought out, and the form named or required by it written here. We have forms in relation to almost every conceivable subject, many of them useful, many of them otherwise. The quantity of matter in the book is considerable, but as there is not a consecutive numbering, we are unable to say how many forms there are. The volume is not paged, but we judge from the number of signatures that it has nearly twelve hundred pages. The forms prescribed by the Federal Statutes are first given, then those prescribed by the laws of the States, the States being arranged alphabetically. So far as we are able to judge, the work of compiling has been carefully done.

The mechanical execution of the book is not of the highest order. The paper is thin, and the printing is in the style of the session laws issued a dozen years ago.

The issue of a second edition of this work within a little over a year after the first made its appearance, indicates that those of the profession who practice in the National court of last resort, have appreciated and approved the labors of Mr. Thatcher. The present volume contains all the sections of the Federal Revised Statutes which confer jurisdiction upon the Supreme Court, all written rules for practice of the court, and the points of all decisions bearing upon such sections, rules, and other matters of practice, collected from one hundred and one volumes of reports of that court. In addition there is an appendix containing ninety forms, pertinent to practice before the court. The work of the compiler appears to have been carefully and thoroughly done, and the typographical execution of the volume is all that could be desired.

LAWSON'S CONCORDANCE.

A Concordance of Words and Phrases construed in the Judicial Reports, and of Legal Definitions contained therein By John D. Lawson St. Louis: F. H. Thomas & Co., 1883. Pp. v, 773.

This work is divided into three parts; first, Words, Phrases and Definitions, 387 pages; second, Cros8 References, 290 pages; third, Appendix, 100 pages. The Concordance gives the principal word, with its connection in various phrases, underneath, and refer