IN

STATUTE OF FRAUDS-AGENT TAKING TITLE TO LAND

OWN NAME-PAROL AGREEMENT TO RECONVEY

DAMAGES. --A. and B. made a verbal agreement by which B., as A.'s agent, was to buy certain land, take the deed in his own name, hold it till A. was ready to pay for it, and then, retaining a part of the land for his services, convey the rest to A. The purchase was made by B., who refused to carry out the contract, whereupon A. sued in assumpsit for damages arising from the breach. B. pleaded under the statute of frauds that the agreement was not in writing, to which plea A. demurred. Held, that the plea was good, and that the action could not be sustained. The fact that the defendant brought the estate for the plaintiff, as his agent, does not make him any the less its legal owner, and therefore his agreement to convey the greater part of it to the plaintiff for what he paid for the whole of it is, notwithstanding the agency, an agreement to sell the greater part of it for the price which the defendant paid for the whole of it. There are numerous cases which support this view. Bartlett v. Pickersgill, 4 East, 577, n.; Botsford v. Burr, 2 Johns. Ch. 406, 409; Lathrop v. Hoyt, 7 Barb. S. C. 59, approved in Wheeler v. Reynolds, 66 N. Y. 227, 236; Bauman v. Holzhausen, 26 Hun, 505; Levy v. Brush, 45 N. Y. 589; Harrison v. Bailey, 14 S. Car. 334; Jackman v. Ringland, 4 W. & Serg. 149; Payne's Admr. v. Patterson's Admrs., 77 Penn. St. 134; Howland v. Blake, 7 Otto, 624; Wetmore v. Neuberger, 44 Mich. 362; Horsey v. Graham, L. R., 5 C. P. 9. In most of these cases the attempt was to charge the purchaser as trustee, and the attempt failed, but in all of them the contract was recognized as a contract for the sale of land, or for the creation of an interest or trust in land, and therefore ineffectual because not in writing. Spencer v. Lawton. Opinion by Durfee, C. J. [Decided April 12, 1884.]

NEBRASKA SUPREME COURT ABSTRACT.

ATTORNEY-COLLECTING MONEY—SUMMARY POWER OF COURT.-The jurisdiction of the District Court to compel an attorney to pay money into court which had been collected by the attorney for the client cannot be questioned; but when the client has received all the money to which he is entitled, the power of the District Court ceases, and it cannot in a summary way compel the attorney to pay money into court for other parties claiming a share in the fees retained by the attorney. That question must be settled by an action between themselves. Baldwin v. Foss. Opinion by Reese, J.

[Decided May 28, 1884.]

TRESPASS-ASSUMING TO ACT AS CONSTABLE-SALE BY, GIVES NO TITLE.—(1) When a private person, without authority or appointment from any source, assumes to act as a constable, and seizes the chattels of another, he becomes a trespasser; and it is no difference to him that he then and there had in his possession an execution against such person issued by a justice of the peace. (2) A sale by such unauthorized person of such chattels, as upon execution, conveys no title. (3) The plaintiff in such execution cannot be held responsible for the acts of such person in seizing or converting such chattels, unless he requested or authorized such seizure in fact, or in some way ratified the same. McMillan v. Rowe. Opinion by Cobb, C. J. [Decided May 28, 1884.]

DAMAGES-EXPENSE RENDERING INJURY LIGHT.—In addition to the general measure of damages, the law in some cases imposes upon a party injured from another's breach of contract or tort, the active duty

of making reasonable exertions to render the injury as light as possible. Where this duty exists, the labor or expense which its performance involves is chargeable to the party liable for the injury thus mitigated. Long v. Clapp. Opinion by Cobb, C. J. [Decided May 28, 1884.]

BY VEN

STOPPAGE IN TRANSITU-GARNISHMENT DEE'S CREDITORS.-The law is well settled that the

right of stoppage in transitu arises upon the discovery by a vendor, after sale on credit, of the insolvency of the vendee, and the right continues until the goods have reached the vendee, and the delivery to him or his agent is complete. Hutch. Carr., § 499; O'Neil v. Garrett, 6 Iowa, 480; Calahan v. Babcock, 21 Ohio St. 281; Reynolds v. Boston & M. R. Co., 43 N. H. 580; Sutro v. Hoile, 2 Neb. 186; 2 Redf. Rail. 132. This right is based upon the just and equitable rule of law that the property of one man shall not be taken to pay another man's debts, and is recognized in all civilized countries. We think it is equally well settled that this right cannot be impaired or extinguished, during its existence, by the acts or interference of a third party, but will follow the goods and attach to them. Hence it is held that the seizure of such goods by an officer, under legal process in favor of some other creditor, does not destroy the right; but that the vendor may follow the officer and retake the goods. Rucker v. Donovan, 13 Kan. 251; Greve v. Dunham (Iowa), 14 N. W. Rep. 130. In the case of O'Neil v. Garrett, supra, the court says: "As to the effect of the levy upon the goods by the defendant, Garrett, as sheriff, by virtue of an attachment at the suit of a creditor of Holmes, there can be no doubt but that the plaintiff's right as vendor is not divested by the levy before the goods came into the possession of the buyer. The plaintiff has the preference over the legal process of a general creditor, although but for the suit, they would have fallen into the hands of the vendee." In support of which the court cites the following cases: v. Hitchcock, 23 Wend. 611; Buckley v. Furniss, 15 id. 137; 17 Wend. 505; Naylor v. Dennie, 8 Pick. 198; Sawyer v. Joslin, 20 Vt. 172; Hause v. Judson, 4 Dana, 11; Cox v. Burns, 1 Iowa, 64. If the right of stoppage continues until delivery of the goods, and a levy thereon does not divest this right, it seems clear on principle, that the right of the vendor cannot be impaired or extinguished by the garnishment of the carrier, for the process of garnishment can have no greater force than the levying upon the goods, as it is simply one of the methods of reaching the property of the debtor in the possession of a third party, which cannot be reached by the ordinary levy and seizure. Chicago, etc., Railroad Co. v. Painter. Opinion by Reese, J.

[Decided May 28, 1884.]

Covell

WEST VIRGINIA SUPREME COURT OF AP

PEALS ABSTRACT.

MASTER AND SERVANT- ACCIDENT BURDEN OF PROOF "FELLOW SERVANT"-ERRONEOUS CHARGE.It was certainly incumbent on the defendant company upon the facts shown by the record to show affirmatively and positively that the accident was not caused by its negligence, or the negligence of any agent for whose conduct the company itself was responsible. Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 14. And the evidence showing, by the defendant's own witnesses, that the train was not made up in the usual and proper way, and that the conductor was not a fellow servant of Moon, but his superior, and in a position wherein he exercised discretionary authority, and was charged with certain duties for the proper per

formance of which the law holds the company itself responsible, any negligence on his part in this behalf is the negligence of the company itself. Railroad Co. v. Fort, 17 Wall. 553; Brothers v. Cortter, 52 Mo./373; Patterson v. Pittsburg and Connellsville R., 76 Peun. 389. H., the section master, in charge of a squad of hands working, altering and repairing the road, could in no sense be regarded a fellow servant, in the same common employment or department of service with Moon, who was a trainhand and brakesman. Connolly v. Davidson, 15 Minn. 519. They were not co-employees, thrown together in a common duty, and having opportunity to observe and judge of the habits and qualifications of each other. Lewis v. St. Louis, etc.,

R. Co., 59 Mo. 495; Ryan v. Chicago & N. W. R. Co., 60 Ill. 171. And where a company delegates to an agent or employee the performance of duties which the law makes it incumbent on the company to perform, his acts are the acts of the company-his negligence is the negligence of the company. Brothers v. Cortter, 52 Mo.373; Flike v. Boston and Albany R. Co., 53 N. Y. 549; Corcoran v. Holbrook, 59 id. 517; Mullan v. Philadelphia & Southern S. S. Co., 78 Penn. 25; Ryan v. Chicago & N. W. R. Co., 60 Ill. 171. If corporations could in such cases escape liability on the plea that its agent was fellow servant or co-employee of the party injured, it follows that they could never be held liable at all, since such corporations must need perform their duties always through agents, who have a common employer. Flike v. Boston and Albany R. Co., 53 N. Y. 549, supra; Hough v. Railroad Co., 10 Otto, 218-19; Whart. Neg., § 232. The fellow servant and co-employee, for whose negligence the company is not responsible, is one who is in the same common employment; that is, in the same shop or place with, and having no authority over the one injured, and who is no more charged with the discretionary exercise of powers and duties imperatively resting on the company than the injured party; but where a person is placed in charge of the construction or repair of machinery," the "dispatching of trains," the "maintenance of way." etc., he is not a fellow servant with those under him, nor with those in a different department of the company's service. He is the agent of the company, which has assumed through him the performance of duties which are absolute and imperative, the omission or the negligence of performing which the law will in nowise excuse. Clarke v. Holmes, 7 Hurls. & Nor. 937; Ford v. Fitchburg R. Co., 110 Mass. 241; Hough v. Railroad Co., 10 Otto, supra. The second instruction given by the court was: "And the jury are further instructed that if they believe the accident which caused his death was occasioned by any negligence of H., the section foreman, in failing to signal the train, they cannot impute such negligence in this case to the defendant,and should find for the defendant." This instruction is erroneous, and is against law and reason. An instruction which assumes that an employee "takes all risks is erroneous. His contract is based on the implied duty and undertaking of the company to provide safe and adequate machinery, competent and vigilant agents, and to keep its roadway and structures always in good and safe condition when he is required to go over them. Chicago & N. W. R. Co. v. Jackson, 55 Ill. 492; Corcoran v. Holbrook, 59 N. Y. 517; Baxter v. Roberts, 44 Cal. 187; Snow v. Housatonic R. Co., 8 Allen, 441; Lewis' Admr. v. St. Louis & Iron Mountain R., 59 Mo. 495; Patteson v. Pittsburgh & Connellville R.,76 Penn. 389; Drymala v. Thompson, 26 Minn. 40; R. & D. R. v. Moore's Admr., 8 Va. L. J. 84. Moon v. Richmond & A. R. Co. Opinion by Fauntleroy, J. [Decided April 24, 1884.]

GIFT-PAROL OF LANDS-EQUITY WILL ENFORCESTATUTE OF FRAUDS-PART PERFORMANCE-MAKING

IMPROVEMENTS.-A court of equity will compel the conveyance of the legal title of land claimed under a parol gift supported by a meritorious consideration, and by reason of which the donee has been induced to alter his condition, and make expenditures of money in valuable improvements upon the land, and equity will protect a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. No writing is necessary to create a good equitable title to real estate. If the contract, when in writing, would be enforced as founded upon a valuable consideration, it would in like manner be deemed a valuable consideration when the contract was by parol. In the case of Neale v. Neales, 9 Wall. 1, in the Supreme Court of the United States, Mr. Justice Davis delivering the unanimous opinion of the court, said: "The statute of frauds requires a contract concerning real estate to be in writing, but courts of equity-whether wisely or not it is now too late to inquire-have stepped in and relaxed the rigidity of this rule, and hold that a part performance removes the bar of the statute, on the ground that it is a fraud for the vendor to insist on the absence of a written instrument, when he had permitted the contract to be partly executed. And equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property; and this is particularly true when the donor stipulates that the expenditure shall be made, and by doing this makes it the consideration or condition of the gift." In the case at bar it must be borne in mind, as has been stated, that the agreement sought to be enforced is a parol agreement to give the land in question. It has been held in many reported cases that a court of equity will compel the conveyance of the legal title to the land claimed under a parol gift supported by a meritorious consideration, and by reason of which the donee has been induced to alter his condition and make large expenditures of money in valuable improvements on the land; and that the donee under such circumstances becomes the equitable owner of the land, and may demand the legal title. In the case of Syler v. Eckhart, 1 Binney, 380, Tilghman, C. J., said: "It has been settled that when a parol agreement is clearly proved, in consequence of which one of the parties has taken possession and made valuable improvements, such agreement shall be carried into effect. We see no material difference between a sale and a gift; because it certainly would be fraudulent conduct in a parent to make a gift which he knew to be void, and thus entice his child into a great expenditure of money and labor, of which he meant to reap the benefit himself." See also Eckert, etc., v. Eckert, 3 Penn. 362; Eckert v. Mace and others, id. 364; Stewart v. Stewart, 3 Watts, 253; France v. France, 4 Halstead Ch. 619; Lobdell v. Lobdell, 36 N. Y. 327; Bright v. Bright, 41 Ill. 97; Law v. Henry, 39 Ind. 414; Young v. Glendening, 6 Watts, 509; Mahon v. Baker, 2 Casey, 519; Atkinson v. Jackson, 8 Ind. 31; Freeman v. Freeman, 43 N. Y. 34; Peters v. Jones, 35 Iowa, 512; Rerick v. Kern, 14 Serg. & Rawle, 267; Sheppard v. Bevin and others, 9 Gill, 32; Shobe's Exrs. v. Carr, etc., 3 Mun. 10. In the case of Freeman v. Freeman, 43 N. Y. 34, Grover, J., said: "It is insisted that an executory promise, not founded upon any valuable consideration, is a mere nude pact, furnishing no grounds for an action at law, and that performance of such a promise will not be enforced in equity. This is true so long as the promise has no con

sideration. Any thing that may be detrimental to the promisee or beneficial to the promisor in legal estimation will constitute a good consideration for a promise. Expenditures made upon permanent improvements upon land with the knowledge of the owner, induced by his promise made to the party making the expenditure, to give the lands to such party, constitute in equity a consideration for the promise. Citing Lobdell V. Lobdell, 33 How. 347; Crosbie v. McDoual, 13 Ves. 147; Shepherd v. Bevin, 9 Gill, 32; 3 Pars. on Con., 359. The statute of frauds has no bearing on the case. If the promise, reduced to writing, could under the circumstances be enforced in equity, it may be although by parol." It is against conscience to suffer a party who had entered and expended money on the faith of a parol agreement to be treated as a trespasser, and for the other party, in fraud of his engagement, though that was verbal, to enjoy the advantage of the money laid out. Courts interfere in such cases not on the ground of a breach of the verbal agreement, but because of the acts done under it on the faith of its terms, and which it would be bad faith in the vendor not to carry out by executing its terms, and a court of equity will always enforce a promise upon which reliance is placed, and which induces the expenditure of labor and money in the improvement of land. Such a promise rests upon valuable consideration. The promisee acts upon the faith of the promise, and we can perceive no important distinction between such a promise and a sale. Permitting the promisor to avoid performauce operates as a fraud as much in the case of a gift as in the case of a sale, so far as expenditures upon improvements are concerned, when possession has been taken and valuable improvements made upon the faith of the promise. These acts constitute part performance by the donee, and the agreement will be specifically enforced by a court of equity. Halsey v. Peters. Opinion by Lacy, J. (See 27 Am. Rep. 535.) [Decided May 1, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

NEGLIGENCE DEFENDANT PROVING PLAINTIFF'S CONTRIBUTORY.-In an action for negligence, if the plaintiff can prove his case without disclosing his own contributory negligence, then such contributory negligence is purely a matter of defense to be proved by the defendant. Randall v. N. W. P. Co., 54 Wis. 147; Hoth v. Peters, 55 id. 405. The same rule prevails in the Supreme Court of the United States and many of the States. See cases cited in Abb. Tr. Ev. 595. The burden of proving such contributory negligence being ordinarily upon the defendant, there would seem to be no objection to his affirmatively alleging a fact which he may thus be required to prove. Kelley v. Chicago, etc., R. Co. Opinion by Cassoday, J.

[Decided May 15, 1884.]

WHEN

AGENCY -FACTOR-LIEN FOR ADVANCES DOES NOT EXIST.-An agent employed to sell, or to purchase and sell, goods or other personal property intrusted to his possession, by or for his principal, for a compensation, commonly called factorage or commission, may properly be regarded as a factor. Story Ag., §§ 33, 34a; Edw. Fact., § 1; Whart. Ag., § 735. Here the duties, powers, and compensation of the factors, and their relation to their principals, were originally regulated by agreement. True there were some departures after the business had continued for a while, but there is nothing to indicate any change as to the title of the property, or the measure or source of compensation. Undoubtedly a factor is entitled to retain goods in his possession as such until his advances, ex

penses, and commissions are paid, and this right is not limited to charges on the particular cousigument of goods, but covers a general balance on the accounts between the factor and the principal, so far as concerns the business of factorage. Whart. Ag., § 767; Edw. Fact.,$$ 71, 72; Story Ag.,§ 376; Matthews v. Menedge, 2 McLean, 145; Bryce v. Brooks, 26 Wend. 374; Kruger v. Wilcox, 1 Amb. 252; Jordan v. James, 5 Ohio, 99; Weed v. Adams, 37 Conn. 378. The statute of this State in this respect would seem to be in confirmation of the common law. Rev. Stat., § 3345. But where the general balance on the accounts of the factorage is largely against the factor and in favor of the principal, the former can have no lien upon the property in his possession, for he has no enforceable claim. Godfrey v. Furzo, 3 P. Wms. 185; Zinck v. Walker, 2 W. Bl. 1154; Tooke v.Hollingworth,2 H. B1.501; Walker v. Birch, 6 Term R. 258; Weed v. Adams, supra; Jordan v. James, supra; Euoch v. Wehrkamp, 3 Bosw. 398; Beebe v. Mead, 33 N. Y. 587. In such case the factor's right of retention and sale is merely to reimburse himself for the balance due him on the general account of the factorage. Brown v. M'Gran, 14 Pet. 479; Overt. Liens, § 105. Neither can a factor, who is indebted to his principal on account of previous sales, acquire a particular lien upon goods subsequently sent to him for sale for expenses incurred on account of them, unless such expenses exceed the amount of his indebtedness. Edw. Fact., § 72; Enoch v. Wehrkamp, supra. The lien of an agent and factor on the goods of his principal for specific expenses does not exist when the general balance of account is against him. Id. We must therefore hold that where a factor is largely indebted to his principal on account of the factorage, and thereupon voluntarily makes advances in the business not exceeding such indebtedness, such advances, being made for and in behalf of his principal, must be deemed to have been so made by the factor in liquidation of his own indebtedness pro tanto. McGraft v. Rugee. Opinion by Cassoday, J. [Decided May 15, 1884.]

MARYLAND COURT OF APPEALS ABSTRACT.*

MARRIAGE-ANTE-NUPTIAL AGREEMENT― SPECIFIC PERFORMANCE-MONEY VALUE IN LIEU.-By an antenuptial settlement it was covenanted that the intended wife, if she survived the husband, should receive at his death one dwelling-house, to be vested in her absolutely, in lieu of dower, or distributive share in his estate. The husband, having become estranged from the wife shortly before his death, left her in his will a dwelling-house of comparatively small value and subject to an annual ground rent of $64, which she renounced. He disposed of his entire estate by will, which he made during the period of alienation from his wife. On a bill by the widow asking for a specific execution of the covenant, and that she might have a dwelling-house suitable to her and her late husband's rank in life, and pecuniary circumstances, assigned to her, to be vested in her absolutely, or in lieu thereof a sum of money which the court might deem adequate, it was held that the complainant had a right to renounce the bequest, and was entitled under the covenant to receive from her husband's estate a dwellinghouse suitable to his pecuniary circumstances, and position in society. But in all such cases, the agreement must be sufficiently definite to guide the court in the direction to be given for the specific performance, or at any rate, that it may be made certain and definite upon proper inquiry. Storer v. Great W. R. Co., 2 Y. & Coll. Ch. 48, 53; Wilson v. Furness R. Co., *Appearing in 61 Maryland Reports.

L. R., 9 Eq. 28; Lytton v. Great N. R. Co., 2 Kay & J. 394; Hood v. North-East. R. Co., L. R., 8 Eq. 666; L. R., 5 Ch. App. 525; Wilson v. Northampton & Banbury Junc. R. C., L. R., 9 Ch. App. 279. In the last mentioned case, a railroad company agreed, for valuable consideration, with the laud-owner to erect and fit up a station on certain lands which they had bought from him; but the agreement.contained no further description of the station, nor any stipulation as to the use of it. The company refused to erect the station in the specified place, but substituted one at a distance of two miles therefrom. This substituted station the landowner refused to accept in lieu of the one to which he was entitled under the agreement. And the court upon application for specific performance, while holding that the case was fully within the jurisdiction for specific performance of the agreement, concluded that because of the indefinite character of the agreement, more complete justice could be done by awarding compensation, by way of damages, under the Stat. 21 & 22 Vict., known as Lord Cairn's Act, which only applies in cases where the court has jurisdiction to entertain the application for specific performance. But as in this case the specific execution of the covenant would be attended with no little difficulty, and as the relief prayed by the bill was in the alternative, she was entitled to receive a sum of money equivalent to the value of such house in lieu thereof. 2 Story Eq., § 799; Rider v. Gray, 10 Md. 282, 300; Bowie v. Stonestreet,6 id. 419,431. This case would seem to fall within the reason and scope of the principle upon which compensation may be awarded. Busey v. Curley. Opinion by Alvey, C. J.

JURISDICTION-OVER PERSON WAIVED BY APPEARANCE. Where the subject-matter of the suit is one over which the court has jurisdiction, the appearance of the defendant by attorney waives the objection to the jurisdiction. In Oulton v. Radcliffe, L. R, 9 Com. Pleas, 195, Denman, J., says: "Actual service of the writ is not essential. If the defendant appears, that gives the court jurisdiction to proceed, provided the subject-matter of the action is one over which the court has jurisdiction." Keating, J., says in the same case: "The question is, whether the fact of the writ having been served out of the jurisdiction makes the subsequent proceedings void; in other words, whether the appearance of the defendant by his attorney, though the service was such that he was not bound to appear, gives the palatinate court jurisdiction. I am of opinion that the appearance did waive the objection to the jurisdiction." After an appearance it is too late to object to any infirmity in respect to the service of the writ or summons, except where the appearance is made for the special purpose of raising the objection. Ireton v. Mayor, etc. Opinion by Irving, J.

WILL-OBLITERATION---INOPERATIVE ALTERATIONSTATUTE MUST BE FOLLOWED.-A testator cannot by the obliteration of certain words in his will, convert a life estate into a fee simple. A testator left ten children--seven sons and three daughters. By his will he directed that his estate be divided into ten equal parts or shares, and he gave to all his children life estates in their respective shares, with remainders over to their children, except his sons J. E. and L., to whom he gave their respective shares absolutely and in fee. Some time after the execution of the will, the testator erased or obliterated the names of his sons J. E. and L., wherever they occurred by drawing a line through them with his pen, but leaving the names legible. The erasures operated to confer estates in fee simple on all the sons. Held, that the attempted obliterations were inoperative, and the will should be read as it was originally written and executed. Any alteration in a will by interlineation or obliteration, whereby a dif

ferent disposition of the estate is sought to be made, will be held void, and the will will operate as originally executed. Every alteration in a testamentary disposition of real estate must be authenticated in the manner prescribed by the statute. Eschbach v. Collins. Opinion by Yellott, J. Alvey, C. J., concurs. [All the authorities including those cited by the court are collated in 45 Am. Rep. 327, note.-ED.]

MARRIAGE-ANTE-NUPTIAL DEED-CONSTRUCTION— INTENTION.- Whenever it appears from the face of a deed executed in contemplation of marriage, and as an ante-nuptial settlement of the property of the woman, that the intention is to carry the title to the property beyond the period of the wife's death, and to exclude the husband, that intention must prevail, and the court will give a liberal construction to its language in order to discover and effectuate such intent. Ward v. Thompson, 6 G. & J. 349; Waters v. Tazewell, 9 Md. 291; Townshend v. Matthews, 10 id. 251; Hutchins v. Dixon, 11 id. 29; Denton v. Denton, 17 id. 403; Marshall v. Beall, 6 How. 70. In some of these cases the provisions of the conveyances are very similar to those in the present deed, while in others the intention to exclude the husband is much less apparent; but the rule of decision is the same in all. A deed executed in contemplation of marriage conveyed certain property in trust, the grantor to be permitted to take and receive during her life the net income and profits thereof, to her sole and separate use, full power to dispose of the same by deed or will being reserved, and failing so to do, and dying intestate, the same to be held for her children or their descendants if she left any, if not, for her heirs-at-law. The intended husband was one of the witnesses to the deed, which was placed on record after the marriage. The grantor died intestate without issue, leaving her husband surviving her. Held, that the intent of the grantor to carry the title to the property beyond her life and to exclude her husband, was plainly manifest, and he was not entitled to any interest or share therein. Moody v. Hall. Opinion by Miller, J.

STATUTE OF FRAUDS-MEMORANDUM-TIME OF DELIVERY-CUSTOM-INSTRUCTION MUST PREJUDICE TO

REVERSE.—It is not necessary in the written note or memorandum of the sale of goods, required by the Statute of Frauds, that the time of the delivery should be stated, provided no time was fixed in the parol agreement. But if a time for the delivery of the goods be fixed in the verbal agreement of sale, such time must be incorporated in the written note or memorandum thereof. 1 Benj. on Sales, 277. If no time be fixed in the agreement, for the delivery of the goods sold, the law will imply that it is the duty of the seller to deliver them in a reasonable time, and what is a reasonable time must depend upon the circumstances surrounding the case, and the character of the goods dealt in. If there be an established custom among merchants who deal in the particular goods sold, regulating the time of such delivery, the delivery will be regulated and controlled by such custom. 2 Benj. on Sales, 891; Williams v. Woods, Bridges & Co., 16 Md. 220; Salmon Falls Manf. Co. v. Goddard. 14 How. (U. S.) 446. Before a case will be reversed, it must appear, not only that the instruction complained of was erroneous, but that the appellant was prejudiced thereby. Young v. Mertens, 27 Md. 114; Parker v. Wallis, 60 id. 15. Kriete v. Myer. Opinion by Stone, J.

CRIMINAL LAW.

LARCENY-PRESUMPTION FROM POSSESSION.-A prisoner's exclusive and unexplained possession of stolen

property, recently after a theft, raises a presumption that he is the thief, and such presumption takes the burden of proof from the prosecution and lays it upon the prisoner. Roscoe Crim. Ev. 18; 2 Russ Cr. 338. To the same effect see Phil. Ev. (7th ed.) 186; Knickerbocker v. People, 43 N. Y. 177; People v. Walker, 38 Mich. 156; State v. Brady. 27 Iowa, 126; State v. Creson, 38 Mo. 372; State v. Turner, 65 N. C. 592; Walters v. People, 104 Ill. 544; Sahlinger v. People, 102 id. 242. And so far as we have been able to discover, the California courts (18 Cal. 383; 48 id. 253) stand almost alone in the modification of the doctrine. Sup. Ct. Arizona, Jan., 1884. Territory v. Casio. Opinion by Penney, J. (2 Pac. R. 755.) [See 58 Ind. 310; 56 N. Y. 315; 6 Neb. 102; 52 Miss. 695; 114 Mass. 299; 1 Hun, 670; 54 Ill. 405.-ED.]

ACCESSORY-RECORD OF CONVICTION-REMARKS OF PROSECUTING OFFICER-WHEN NOT ERROR.-The statute authorizes the charging of an accessory before the fact as a principal. State v. Cassady, 12 Kas. 550. Upon the trial of an accessory before the fact, the record of the conviction of the principal is proof prima facie of that fact; but this is not conclusive, and other evidence of the commission of the crime by the principal is admissible. Levy v. People, 80 N. Y. 327; Arnold v. State, 9 Tex. Ct. App. 435. (2) Upon the trial of a defendant charged with a criminal offense, the latter rested without testifying. The State introduced a witness and offered to prove certain facts, to which the defendant objected as not being proper rebuttal. Thereupon the county attorney said to the court, in the hearing and presence of the jury: "Your honor, we had a right to presume that the defendant would testify as a witness in his own behalf, in which case this evidence would have been proper rebuttal, and we having failed to do so, we claim the right to introduce it now." Held, that these remarks to the court were not such an infringement upon the statute forbidding the prosecuting attorney to refer to the fact that the defendant did not testify in his own behalf as requires us under the circumstances of this case to grant a new trial. We understand the statute is explicit that when a defendant in a criminal cause declines to testify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial, and that the courts will hold prosecuting attorneys to a strict observance of their duty in this respect. State v. Graham, 17 N. W. Rep. 192; Long v. State, 56 Ind. 182; 26 Am. Rep. 19; Commonwealth v. Scott, 123 Mass. 239; 25 Am. Rep. 87. Yet we do not think the incidental allusion to the court by the county attorney, under the circumstances, was such misconduct as requires us to grant a new trial. The remarks of the county attorney were not made in an address to the jury, were not directed to the jury, nor intended for the jury. It is possible and more than probable that the members of the jury heard the remarks, as they were uttered in their presence, but the county attorney evidently did not intend to infringe upon the provision of the foregoing statute, and we cannot regard his remarks, made as they were, as material error. Calkins v. State, 18 Ohio St. 366. Sup. Ct. Kansas, Jan., 1884. State v. Mosley. Opinion by Horton, C. J. (31 Kans. 355.) [See 2 Pac. Rep. 609; 61 Iowa, 559; 32 Eng. Rep. 277-9.-ED.]

EVIDENCE-POSSESSION OF STOLEN GOODS.-On an indictment for stealing goods, and also for receiving ing them knowing them to have been stolen, under section 19 of the Prevention of Crimes Act 1871, evidence of other stolen goods being found in the possession of the prisoner is not admissible unless they are found in his possession at the same time; that is, at the time he was found in possession of the goods he is indicted for stealing Reg. v. Drage, 14 Cox C. C. 85;

28 Eng. Rep. 534; per Bramwell, B., followed. Cir. Cas. Res., April 5, 1884. Reg. v. Carter. Opinion by Coleridge, C. J. [50 L. T. Rep. (N. S.) 596.]

JUROR-DISQUALIFICATION- NEW TRIAL VIEW WAIVER.-A petition for a new trial on the ground that one of the jurors was disqualified by a relationship of consanguinity is addressed to the discretion of the court. Such a petition will not be granted when the relationship was by consanguinity in the sixth degree, was probably unknown to the juror, and was not shown to have injuriously affected the accused. "A new trial will not be granted in a criminal case," says the Supreme Court of West Virginia, in a case similar to the case at bar, "for matter that is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner until after the verdict, and which could not have been discovered before the juror was so sworn by the exercise of ordinary diligence; unless it appears from the whole case that the prisoner suffered injustice from the fact that such juror sat upon the case." State v. Williams, 14 W. Va. 851, 869; State v. McDonald,9 id. 456; McDonald v. Beall,55 Ga. 288, 293. When a view is had in a criminal case the accused may waive his right to be present at the view. Such a waiver is presumed when he does not ask to be present and makes no objection in the course of the trial after the view; and when the view was allowed at the request of his counsel, who stated that the health of the accused precluded his attendance. A reporter who was present at the trial, whose occupation would naturally lead him to note and remember the incidents of it, makes affidavit that the court spoke to one of the counsel for the prisoner in regard to what was to be done with him, and that the counsel replied that his health was such that it would not be prudent for him to go with the jury on such a severe day. We think that under these circumstances the prisoner must be held to have waived his privilege, which in our opinion it was competent for him to do. State v. Adams, 20 Kans. 311, 323; United States v. Sacramento, 2 Mont. 239, 241; People v. Murray, 5 Crim. Law Mag. 223; State v. Polson, 29 Iowa, 133; Carroll v. State, 5 Neb. 31; Hill v. State, 17 Wis. 697; Fight v. State, 7 Ohio, 180; McCorkle v. State, 14 Iud. 39. Sup. Ct. Rhode Island, April 4, 1884. State v. Congdon. Opinion by Durfee, C. J. (As to first point see 6 Allen [N. B.], 389. [14 R. I.]

EVIDENCE-LEADING QUESTION-ASSUMING FACT.A question which assumes the existence of a fact essential to a conviction, where there was no evidence that the fact existed, is entirely inadmissible. The question is leading, as are all questions to a witness which assume the existence of facts material to the issue, which have not been proved. 1 Greenl. Ev. § 434; 1 Starkie Ev. (10th ed.) 197; Turney v. State, 8 Smedes & M. 104. Hence the specific objection was well taken and ought to have been sustained. But it is sometimes said that it rests in the sound discretion of the trial court to allow leading questions to be put to witnesses, and that error cannot be assigned on the rulings in that behalf. It is undoubtedly the law that if a witness appears to be hostile to the party producing him, or unwilling so give evidence, it is in the discretion of the court to allow leading questions to be put to him, and in such cases error cannot, in general, be assigned upon the ruling. 1 Greenl. Ev., § 255. But here the witness does not appear to have manifested any hostility to the prosecution, or any unwillingness to testify. Under all the circumstances of the case, we think the ruling of the court permitting the above question to be put to the female witness was not a proper exercise of the discretion of the court, and that such ruling may be assigned as error. See opinion by Chief Jus