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ourred in that decision. Veazie Bank v. Fenno, 8 otherwise be taken to be included in the general grant, Wall. 533, 548; Hepburn v. Griswold, id. 616, 636; Legal are defined in the ninth section; the tenth secTender cases, 12 id. 543, 544, 560, 582, 610, 613, 637. tion is addressed to the States only, This sec
It is equally well settled that Congress has the power tion probibits the States from doing some things to incorporate National banks, with the capacity, for which the United States are expressly authortheir own profit as well as for the use of the govern- ized to do, and from doing some things which ment in its money transactions, of issuing bills which are neither expressly granted nor expressly deunder ordinary circumstances pass from hand to hand nied to the United States. Congress and the States as money at their nominal value, and which, when so equally are expressly prohibited from passing any bill current, the law has always recoguized as a good of attainder or ex post facto law, or granting ang title tender in payment of money debts, unless specifically of nobility. The States are forbidden, while the Presiobjected to at the time of the tender. United States dent and Senate are expressly authorized to make Bank v. Bank of Georgia, 10 Wheat. 333, 347; Ward v. treaties. The States are forbidden, but Congress is Smith, 7 Wall. 447, 451. The power of Congress to expressly authorized, to coin money. The States are charter a bank maintained in McCulloch v. prohibited from emitting bills of credit; but Congress, Maryland, 4 Wheat. 316, and in Osborn v. United States which is neither expressly authorized nor expressly Bank, 9 id. 738, chiefly upon the ground that it was an forbidden to do so, bas as we have already seen, been appropriate means for carrying on the money trans- held to have the power of enitting bills of credit, and actions of the government. But Chief Justice Mar. of making every provision for their circulation as curshall said: “The currency which it circulates, by rency, short of giving them the quality of legal tender means of its trade with individuals, is believed to for private debts-even by those who have denied its make it a more fit instrument for the purposes of gov. authority to give them this quality. erument than it could otherwise be; and if this be It appears to us to follow, as a logical and necessary true, the capacity to carry on this trade is a faculty consequence, that Congress has the power to issue the indispensable to the character and objects of the in- obligations of the United States in such form, and to stitution.” 9 Wheat. 864. And Mr. Justice Johnson, impress upon them such qualities as currency for the who concurred with the rest of the court in upholding purchase of merchandise and the payment of debts, as the power to incorporate a bank, gave the further rea- accord with the usage of sovereign governments. The son that it tended to give effect to “that power over power, as incident to the power of borrowing money the currency of the country, which the framers of the and issuing bills or notes of the government for money Constitution evidently intended to give to Congress borrowed, of impressing upon those bills or notes the alone.” Id. 873.
quality of being a legal tender for the payment of priThe constitutional authority of Congress to provide vate debts, was a power universally understood to a currency for the whole country is now firmly estab- belong to sovereignty, in Europe and America, at the lished. In Veazie Bank v. Fenno, 8 Wall. 533, 548, time of the framing and adoption of the Constitution Chief Justice Chase, in delivering the opinion of the of the United States. The governments of Europe, court said: “It cannot be doubted that under the acting through the monarch or the Legislature, acConstitution the power to provide a circulation of cording to the distribution of powers under their res coin is given to Congress. And it is settled by the spective Constitutions, had and have as sovereign a uniform practice of the government, and by repeated power of issuing paper money as of stamping coin. decisions, that Congress may constitutionally author- The power has been distinctly recognized in an imize the emission of bills of credit.” Congress having portant modern case, ably argued aud fully considered, undertaken to supply a National currency, consisting in which the emperor of Austria, as king of Hungary, of coin, of treasury notes of the United States, and of obtained from the English Court of Chancery an inthe bills of National banks, is authorized to impose on junction against the issue in England, without his all State banks, or National banks, or private bankers, license, of notes purporting to be public paper money paying out the notes of individuals or of State banks, of Hungary. Austria v. Day, 2 Giff. 628, and D. F. & a tax of ten per cent upon the amount of such notes so J. 217. The power of issuing bills of credit, and makpaid out. Veazie Bank v. Fenno, above cited; Na- ing them, at the discretion of the Legislature, a tender tional Bank v. United States, 101 U. S. 1. The reason in payment of private debts, bad long been exercised for this conclusion was stated by Chief Justice Chase, in this country by the several Colonies and States; and repeated by the present chief justice, in these and during the revolutionary war the States, upon the words: “Having thus, in the exercise of undisputed recommendation of the Congress of the Confederation, constitutional powers, undertaken to provide a cur- had made the bills issued by Congress a legal tender. rency for the wbole country, it cannot be questioned See Craig v. Missouri, 4 Pet. 435, 453; Briscoe v. Bank that Congress may, constitutionally, secure the benefit of Kentucky, 11 id. 257, 313, 334-336; Legal Tender of it to the people by appropriate legislation. To this Cases, 12 Wall. 557, 558, 622; Phillips on American end, Congress bas denied the quality of legal tender to Paper Currency, passim. The exercise of this power foreign coins, and has provided by law against the im- not being prohibited to Congress by the Constitution, position of counterfeit and base coin on the commu- it is included in the power expressly granted to borrow nity. To the same end, Congress may restrain, by money on the credit of the United States. suitable enactments, the circulation as money of any This position is fortified by the fact that Congress notes not issued under its own authority. Without is vested with the exclusive exercise of the analogous this power, indeed, its attempts to secure a sound and power of coining money and regulating the value of uniform currency for the country must be futile." 8 domestic and foreign coin, and also with the paraWall. 549; 101 U. S. 6.
mount power of regulating foreign aud inter-State comBy the Constitution of the United States, the sev- merce. Under the power to borrow money on the eral States are prohibited from coining money, emit- credit of the United States, and to issue circulating ting bills of credit, or making any thing but gold and notes for the money borrowed, its power to define the silver coin a tender in payment of debts. But no in- quality and force of those notes as currency is as broad tention can be inferred from this to deny to Congress as the like power over a metallic currency uuder the either of these powers. Most of the powers granted power to coin money and to regulate the value thereof. to Congress are described in the eighth section of the Under the two powers, taken together, Congress is first article; the limitations intended to be set to its authorized to establish a National currency, either in powers, so as to exclude certain things whioh might coiu or in paper, and to make that currenoy lawful
money for all purposes, as regards the National govern- instrument, “necessary and proper for carrying into ment or private individuals.
execution the powers vested by this Constitution in The power of making notes of the United States a the government of the United States." legal tender in payment of private debts, being in- Such being our conclusion in matter of law, the cluded in the power to borrow money and to provide question whether at any particular time, in war or in a National currency, is uot defeated or restricted by peace, the exigency is such, by reason of unusual and the fact that its exercise may affect the value of pri- pressing demands on the resources of the goverument, vate contracts. If apou a just and fair interpretation or of the inadequacy of the supply of gold and silver of the whole Constitution, a particular power or au. coin to furnish the currency needed for the uses of the thority appears to be vested in Congress, it is uo con
government and of the people, that it is, as matter of stitutional objection to its existence, or to its exercise,
fact, wise and expedient to resort to this means, is a that the property or the contracts of individuals may
political question, to be determined by Congress when be incidentally affected. The decisions of this court, the question of exigency arises, and not a judicial already cited, afford several examples of this.
question, to be afterward passed upon by the courts. Upon the issue of stock, bouds, bills or notes of the
To quote once more from the judgment in McCulloch United States, the States are deprived of their power v. Maryland: “Where the law is not prohibited, and of taxation to the extent of the property invested by is really calculated to effect any of the objects cuindividuals in such obligations, and the burden of
trusted to the government, to undertake here to State taxation upon other private property is corre- inquire into the degree of its necessity would be to spondingly increased. The ten per cent tax, imposed pass the line which circumscribes the judicial departby Congress ou notes of State banks and of private ment, and to tread on legislative ground.” 4 Wheat. bankers, not only lessens the value of such notes, but 423. tends to drive them, and all State banks of issue, out It follows that the act of May 31, 1878, chapter 146, is of existence. The priority given to debts due to the constitutional and valid; and that the Circuit Court United States over the private debts of an insolvent
rightly held that the tender in treasury notes, reissued debtor diminishes the value of these debts, and the aud kept in circulation under that act, was a tender of amount which their holders may receive out of the lawful money in payment of the defendant's debt to debtor's estate.
the plaintiff. So, under the power to coin money and to regulate
Judgment affirmed. its value, Congress may (as it did with regard to gold by the act of June 28, 1834, chapter 95, and with regard to silver by the act of February 28, 1878, chapter 20), NEGLIGENCE OF EMPLOYEE NOT IN LINE issue coins of the same denominations as those already
OF EMPLOYMENT. current by law, but of less intrinsic value than those, by reason of containing a less weight of the precious
MINNESOTA SUPREME COURT, JANUARY 5, 1884. metals, and thereby enable debtors to discharge their debts by the payment of coins of the less real value. A contract to pay a certain sum in money, without
MARRIER V. St. Paul, MINNEAPOLIS & MANITOBA any stipulation as to the kind of money in which it
RAILWAY Co. shall be paid, may always be satisfied by payment of Section men employed by defendant railroad company in that sum in any currency which is lawful money at charge of a section foreman at the time of dinner, built a the place and time at which payment is to be made. fire upon the railroad right of way to warm their coffee, 1 Hale P. C. 192-194; Bac. Ab. Tender, B. 2; Pothier the foreman assisting in doing so. The fire was not exContract of Sale, No. 416; Pardessus Droit Commer
tinguished by them, and spread to plaintiff's land and de
stroyed his hay. The company did not board the workcial, Nos. 204, 205; Searight y. Calbraith, 4 Dall. 324.
men. Held, that the company was not liable for the loss As observed by Mr. Justice Strong, in delivering the
of plaintiff's hay. opinion of the court in the Legal Tender Cases, "Every contract for the payment of money, simply, is necessarily subject to the coustitutional power of the
respect to a fire. The opinion states the case. governmeut over the currency, whatever that power
From an order denying a new trial after verdict for may be, and the obligation of the parties is, therefore,
plaintiff, defendant appealed. assumed with reference to that power.” 12 Wall. 549. R. B. Galusha, and P. A. Dufour, for appellant. Congress, as the Legislature of a sovereign nation,
R. Reynolds, for respondent. being expressly empowered by the Constitution to lay and collect taxes, to pay the debts and provide for MITCHELL, J. All the evidence in this case tends the commou defense and general welfare of the United to prove that some section meu, under the cbarge of a States," and "to borrow money on the credit of the section foreman, were in the employment of defeud. United States," and "to coin money and regulate the ant, engaged in repairing its railroad near defendant's value thereof and of foreign coin;" and being clearly farm, on the 21st of October, 1882. While engaged in authorized, as incidental to the exercise of those great such work they usually returned to their boardingpowers, to emit bills of credit, to charter National | house for dinner, but on this day, their work being at banks, and to provide a National currency for the some distance, they took their dinner with them. At whole people, in the form of coin, treasury notes, and noon, when they quit work to eat, they built a fire,or reNational bank bills; and the power to make the notes kindled one which some other person bad kindled, on of the government a legal tender in payment of private defendant's right of way, for the purpose of warming debts being one of the powers belonging to sovereiguty
their coffee. After eating dinner, they resumed their in other civilized nations, and not expressly withheld work, negligently leaving the fire unextinguished, from Congress by the Constitutiou; we are irresisti- which spread in the grass and ran on to plaintiff's land bly impelled to the conclusion that the impressing
and burned his day. There is no evidence that the upon the treasury notes of the United States the defendant was boarding these men, or that it was any quality of being a legal tender in payment of private part of its duty to prepare or cook their meals. Veither debts is an appropriate means, conducive and plainly is there any thing teuding to show that the defendant adapted to the execution of the undoubted powers of either knew or authorized the kindlivg of a fire for Congress, consistent with the letter and spirit of that any such purpose, either on this or any other occasion. Constitution, and therefore, within the meaning of that Nor is there any evidence that it was the duty of these
section men to exercise any supervision over the right case. In doing so he was as much his own master and of way, or to extinguish fires that might be ignited on doing his own business as were the section men. Had it. So far as the evidence goes, their employment was it appeared that it was part of his duty to look after exclusively in repairing the railroad track.
the premises generally, and extinguish fires that might The doctrine of the liability of the master for the be ignited on them, his omission to put out the fire wrongful acts of his servants is predicated upon the might possibly, within the case of Chapman v. New maxims, “respondeat superior" and "qui facit per York, etc., R. Co. 33 N. Y. 369, be considered the nego alium facit per se.” In fact, it rests upon the doc- ligence of the defendant. But nothing of the kind trine of agency. Therefore, the universal test of the appears, and the burden is upon plaintiff to prove master's liability is whether there was authority, ex- affirmatively every fact necessary to establish defendpress or implied, for doing the act; that is, was it one ant's liability. done in the course and within the scope of the ser- Order reversed, and new trial granted. vant's employment? If it be done in the course of and within the scope of the employment, the master will be liable for the act, whether negligent, fraudu
UNITED STATES SUPREME COURT ABlent, deceitful, or an act of positive malfeasance.
STRACT. Smith Mast. and Serv. 151. But a master is not liable
JANUARY 14, 1884. for every wrong which the servant may commit during the continuance of the employment. The liability PRACTICE - SUPREME COURT CLERK'S FEES FOR can only occur when that which is done is within the PRINTING RECORD.-The clerk of the Supreme Court real or apparent scope of the master's business. It is entitled to the fee of fifteen cents per folio under does not arise when the servant steps outside of his rule twenty-four of the court in relation to printing, employment to do an act for himself not connected although the parties delivered to the clerk the re. with his master's business. Beyond the scope of his quisite number of copies of the record in print. employment the servant is as much a stranger to his The clerk is responsible to the court for the correctmaster as any third person. The master is only re
ness and proper iudexing of the printed copies of the sponsible so long as the servant can be said to be doing record, for their presentation to the justices in the the act, in the doing of which he is guilty of negli- form and of the size prescribed by the rules, and for gence, in the course of his employment. A master is their delivery when required to the parties eutitled not respousible for any act or omission of his servant thereto. As he must now account to the treasurer for which is not connected with the business in which he
the fees and emoluments of his office, he may demand serves him, and does not happen in the course of his payment in advauce. Steever v. Rickman, 109 U. S. employment. And in determining whether a particu- 74. If the printing is actually done under his superlar act is done in the course of the servant's employ- vision he may require the payment of the fee chargement, it is proper first to inquire whether the servant able under the rule before the printing is done. If the was at the time engaged in serving his master. If the parties themselves furnish the printed copies, the fee act be done while the servant is at liberty from the must be paid, if demanded, in time to enable him to service, and pursuing his own ends exclusively, the make the necessary examinations and be ready to demaster is not respousible. If the servant was, at the liver the copies to the parties or their counsel and to time when the injury was inflicted, acting for himself, the court when needed for any purpose in the proand as his owu master, pro tempore, the master is not
gress of the cause. The fee is for the service specified liable. If the servant step aside from his master's in this item of the table, and is indivisible. Cousebusiness, for however short a time, to do au act not con
quently, if the clerk performs any part of the service nected with such business, the relation of master and he is entitled to collect the whole fee; and if the servant is for the time suspended. Such, variously ex. printed record is used at all, it must be examined by pressed, is the uniform doctrine laid down by all au. him to see if it conforms to the copy certified below thorities. 2 Thomp. Neg. 885, 886; Sherm. & R. Neg., $S and on file as the transcript of the record. So that if 62, 63; Cooley, Torts, 533; Little Miama R. Co. v. Wet
the printed copies are used for any purpose in the promore, 20 Ohio St. 110; Storey v. Ashton, L. R., 4 Q.
gress of the cause the whole fee is chargeable. Beam B. 476; Mitchell v. Crassweller, 13 Com. B. 236; McClena.
v. Patterson. Opiniou by Waite, C. J. ghan v. Brock, 5 Rich. Law. 17. It would seem to follow, as an inevitable conclusion,
REMOVAL OF CAUSE --- FIRE INSURANCE from this, that on the facts of this case the act of
STATEMENT AFTER LOSS INVALIDATING POLICY. these section men in building a fire to warm their own
(1) Under the second section of the act of March 3, dinuer, was in no sense an act done in the course of
1875, 18 St. 470, a suit of a civil nature, brought in a and within the scope of their employment, or in the
State court, where the matter in dispute exceeds the execution of defendant's business. For the time
sum or value of $500, and in which there is a controbeing they had stepped aside from that business, and versy between citizens of different States, or between in building this fire they were engaged exclusively in
citizens of a State and foreigu States, citizens, or subtheir own business, as much as they were when eating jects, may be removed in the Circuit Court, although their dinner, and were for the time being their own such suit, because founded on a contract in favor of an masters as much as when they ate their breakfast that assignee, could not have been brought in the Circuit moruing or went to bed the night before. The fact Court if no assigument had been made, not being the that they did it on defendant's right of way is wholly
case of a promissory note, negotiable by the law merimmaterial, in the absence of any evidence that de chant, or of a bill of exchange. (2) In making statefeudant knew of or authorized the act. Had they gone ments under oath upon an examination in behall of upon the plaintiff's farm and built the fire the case an insurance company in respect to a loss, the insured would have been precisely the same. It can no more
made certain false statements in respect to the manner be said that this act was done in the defendant's busi- in which he had purchased the insured stock. There ness, and within the scope of their employment than was evidence tending to show that he answered thus would the act of one of these men in lighting his pipe, with no purpose to deceive and defraud the insurance after eating his dinner, and carelessly throwing the
companies, but for the purpose of showing himself, burning match into the grass. See Williams v. Jones, upon the examination, cousistent with a statement 3 Hurl. & C. 256. The fact that the section foreman
that he had made about it a day or two subsequent to assisted in or even directed the act does not alter the the purchase of said stock to R. G. Duun & Co.'s como
ANOTHER - TAXES
mercial agency at St. Paul, Minnesota, with a view of CARRIER MAY LIMIT LIABILITY BY CONTRACT.-obtaining a large commercial credit in eastern cities. Common carriers may, by express contract, limit their Held, that the false statements would invalidate the common-law liability. Moses v. B. & M. R. R. 24 N. insurance policy under a condition to that effect. AH. 71, 90; York Company v. Central R. Co., 3 Wall. false answer as to any matter of fact, material to the 107; Pemberton Company v. New York Cent. R. Co., inquiry, kuowingly and wilfully made, with intent to 105 Mass. 144; Grace v. Adams, 100 id. 505. Rand v. deceive the insurer, would be fraudulent. If it ac- Merchants' Dispatch Transportation Co. Opinion by complished its result, it would be a fraud effected; it Stanley, J. it failed, it would be a fraud attempted. And if the
DEED - COVENANT
WITH LAND - WARmatter were material and the statement false, to the knowledge of the party making it, and wilfully made, is a covenant that ruus with the estate in reference to
RANTY.– The covenant of general warranty in a deed the intention to deceive the insurer would be neces
which it is made, and may be availed of by suit, in his sarily implied, for the law presumes every man to intend the natural consequences of his acts. No one by deed, even after several successive conveyances, or
own name, by any one to whom the same may come can be permitted to say, in respect to his own state
a descent or devise. As the covenant runs with the ments upon a material matter, that he did not expect land, it passes to the grantee under any conveyance to be believed; and if they are knowingly false and
sufficient to transfer the title to the land. The legal wilfully made, the fact that they are material is proof title to land ordinarily carries with it the right of posof an attempted fraud, because their materiality, in session, and gives a constructive possession without the eye of the law, consists in their tendency to influ
actual entry; and a conveyance by one having the ence the conduct of the party who has an interest in legal title, although not in actual possession, carries them, and to whom they are addressed. “Fraud,” the right of possession, and the grantee, upon taking said Catron, J., in Lord v. Goddard, 13 How. 198, " means an intention to deceive."
* Where one,”
actual possession, may avail himself of a covenant of
warranty running with the land. 2 Washb. Real said Shipley, C. J., in Hammatt v. Emerson, 27 Me.
Prop. 662; Crooker v. Jewell, 29 Me. 527; Moore v. 308," has made a false representation, kuowing it to be false, the law infers that he did so with an inten- Merrill, 17 N. H. 75; Russ v. Perry, 49 id. 547; Chase
v. Weston, 12 id. 413; Griffin v. Fairbrother, 10 Me. tion to deceive." "If a person tells a falsehood, the
91; Allen v. Little, 36 idr 170; White v. Whitney, 3 natural and obvious consequence of which, if acted on,
Met. 81; Moore v. Merrill, 17 N. H. 75, 81, 82; Wead v. is injury to another, that is fraud in law.” Bosanquet, Larkin, 54 III. 489; Brady v. Spurck, 27 id. 478; J., in Foster v. Charles, 7 Bing. 105; Polhill v. Walter, Loomis v. Bedel, 11 N. H. 74, 82; Drew v. Towle, 30 3 Barn. & Ad. 114; Sleeper v. Ivsurance Co., 56 N. H.
id. 531, 537; Sprague v. Baker, 17 Mass. 586; Donnell 401; Leach v. Republic Ius. Co., 58 id. 245. Clafflin v.
v. Thompson, 10 Me. 170. Chandler v. Brown. Opinion Commonwealth Ins. Co. Opinion by Matthews, J.
by Clark, J. VOLUNTARY CONVEYANCE-DEED WITH GRANTEE'S
STATUTE OF FRAUDS PROMISE TO PAY DEBT OF NAME LEFT BLANK CONVEYS NO TITLE.- A. promised
PERSON.- A written to donate land to B. Subsequently he executed a
promise to pay the debt of another is not sufficient, deed of the laud with the grantee's name left blank.
within the meaning of the statute of frauds, unless it This deed was handed to B. with the blank unfilled, recites or imports a good consideration. Neelson v. and it was not filled at the time of the death of B. Sanborne, 2 N. 11. 414; Uuderwood v. Campbell, 14 id. Held, that B. took no title to the land. The promise 393, 397 ; Simons v. Steele, 36 id. 73, 81, 82; Leonard v. of a pure donation to be subsequently made, until Vredenburgh, 8 Johus. 29'; Wain v. Warlters, 5 East, executed, is in a legal view, valueless. The deed in
10; Saunders v. Wakefield, 4 B. & A. 595; Agnew blauk passed no interest, for it had no grantee. The Stat. of Fr. 79; Browne Stat. of Fr. $ 407. A promblank intended for the name of the grantee was never ise to a collector of taxes to pay the taxes of a third filled, and until filled the deed had no operation as a person in consideration that the collector will refrain conveyance. It is the law in several States, that the from levying on such person's real estate, is not within grantor in a deed conveying real property, signed and the meaning of the statute of frauds, need not be in acknowledged, with a blank for the name of the writing, and an action can be maintained upon it, no grantee, may authorize another party, by parol, to fill
writing being declared upon. Goodwin v. Bond. up the blauk. Swartz v. Button, 47 Iowa, 188; Field v. Opinion by Allen, J. Stagg, 52 Mo. 534. As said by this court in Drury v. Foster, 2 Wall. 33, “ Although it was at one time doubted whether a parol authority was adequate to authorize an
MICHIGAN SUPREME COURT ABSTRACT. alteration or addition to a sealed instrument, the better
DECEMBER 20, 1883. opinion at this day is, that the power is sufficient.” But there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the
CONFLICT OF LAW JUDGMENT OF DIVORCE IN
ANOTHER STATE-ACTION BY WIFE FOR SUPPORTproperty described in it; the blank must be filled by the party authorized to fill it, and this must be done
LACHES.-A husband left Port Huron, in Michigan, before or at the time of the delivery of the deed to
not with the intention of abandoning his residence the grantee named. Allen v. Withrow. Opinion by there, but to avoid the service of process, and went to Field, J.
Indiana where he remained in order to institute a divorce action which he commenced there against his
wife who remained in Michigan, and who had no NEW HAMPSHIRE SUPREME COURT actual notice of the action. He procured a judgment ABSTRACT. *
of divorce, and shortly afterward returned to Port
Huron and set up business there, but gave no aid or AGENCY-CONSTRUCTION OF CONTRACT BY AGENT.
support to his wife. Thirteen years or more thereWhen the terms of a contract made by an agent are
after the wife began an action for support against him, clear, they are to have the same construction and legal claiming still to be his wife. Held (1), that the wife effect whether made for a domestic or for a foreign
was not concluded by the Indiana judgment. It is principal. Kaulback v. Churchill. Opinion by Clark, I. true that the Constitution of the United States re
quires full faith and credit to be given in every State * To appear in 59 New Hampshire Reports.
to the records and judicial proceedings of other States,
but this requirement does not extend to the giving knows he is not justly entitled, and thus to defraud validity to those proceedings which in themselves are whoever may resort to the agency, and in reliance mere nullities. It is implied in judicial proceedings upon the false information there lodged, extend a that the court assuming to act and to render judgment credit to him, there is no reason why his liability to should have had competent authority to do so in the auy party defrauded by those means should not be the particular case, and when this authority is wanting same as if he had made the false representation diwhatever is done is not judicial. It cannot therefore rectly to the party injured." These views are supbe within the protection of the Federal Constitution. ported by Commonwealth v. Call, 21 Pick. 515; and And if the record, by its recitals, makes a prima facie Commonwealth v. Harley, 7 Metc. 462. A person furcase of jurisdiction, no one in another State or country nishing information to a commercial agency as to his is concluded thereby, but he may show what the real means and pecuniary responsibility, is to be presumed fact was, and thus disprove the authority for making to have done so to enable the agency to communicate such a record. Thompson v. Whiteman, 18 Wall. 457 ; the same to persons interested for their guidance in Knowles v. Gas-light Co., 19 id. 58; Bartlett v. Knight, giving credit to him, and so long as such intention 1 Mass. 401; 8. C., 2 Am. Dec. 36; Shumway v. Still-exists, and the representations reach the persons for man, 4 Cow. 392; S. C., 15 Am.Dec. 374; Thompson v. whom they were intended, it is immaterial whether Emmert, 15 Ill. 416; Marx v. Fere, 51 Mo. 69; S. C., 11 they passed through a direct channel or otherwise, Am. Rep. 432; People v. Dawell, 25 Mich. 247 ; 8. C., 12 provided they were reported by the agency as made Am. Rep. 260; Elder v. Reel, 62 Penn. St. 308; S. C., 1 by the party. Genesee Savings Bank v. Michigan Am. Rep. 414; Pennywit v. Foote, 27 Ohio St. 600; S. Barge Co. Opinion by Sherwood, J. C., 22 Am. Rep. 340; Gilman v. Gilman, 126 Mass, 26;
STATUTE OF FRAUDS-VERBAL SALE OF TIMBER LAND 8. C., 30 Am. Rep. 646; Bowler v. Huston, 30 Grat.
LICENSE TO CUT TIMBER-TITLE TO TIMBER CUT.-A 266; S. C., 32 Am. Rep. 673; Eaton v. Hasty, 6 Neb.
verbal sale of timber land, held to give a license to cut 419; S. C., 29 Am. Rep. 365. Held also (2), that the the timber, and when cut the title to the timber would wife was guilty of laches precluding her from the re
pass to the vendee. While such a sale would be void lief asked especially when the parties had been sepa
under the statute of frauds (Russell v. Myers, 32 Mich. rated eighteen years, and she had repeatedly refused 522 ; Putney v. Day, 6 N. H. 430; S. C., 25 Am. Dec. 470; his requests to return to him. A suit for support under Owens v. Lewis, 46 Iud. 488; S. C., 15 Am. Rep. 295), such circumstances necessarily brings in question the it does not follow, because a sale is void under the justification for the original separation, and would re
statute of frauds, the purcbaser can derive no title quire an investigation into the facts attending it. It under it. Such a sale is void only at the option of the could not be expected that an investigation after such parties concerned; and if they elect to treat it as valid, a lapse of time could be any thing else than imperfect, it may become effectual for all purposes. And comuncertain, and unsatisfactory, and the laches have monly, even if not wholly affirmed, it will operate as a been so gross that the court may well refuse to enter
license which will protect the purchaser against liaupon it. What is said in Campo v. Iron Mining Co., bility for any thing done under it prior to any act of 50 Mich. 574,595, is entirely applicable to this case; and revocation. The attempted sale is not restricted in its the following cases, in which relief was refused for force to the protection of the parties from being held long delay in cases of matrimonial offenses, may be trespassers for what they may do under it; for to the considered even more directly in point: Guest v.
extent that trees are cut under it before revocation it Shipley, 2 Hagg. 321; Mathews v. Mathews, 1 Swab. & takes effect as a sale and passes the title to the licenT. 500; and 3 id. 161; Williamson v. Williamson, 1
see, who thereby becomes purchaser under it. The Johns. Ch. 488; Valleau v. Valleau, 6 Paige, 207; Fel-. permission to cut and remove must be understood as lows v. Fellows, 8 N. H. 160; Whittington v. Whitting continuous until actually recalled ; and as fast as the ton, 2 Dev. & B. 64; Rawdon v. Rawdon, 28 Ala. 565;
trees are severed from the realty by the cutting, the Castleden v. Castleden, 9 H. L. Cas. 186; Piepho v.
contract of sale attaches to them as chattels, and the Piepho, 88 Ill. 438. Reed v. Reed. Opinion by Coo-parties cutting are entitled to remove them as their ley, J.
own. Greely v. Stilson, 27 Mich. 157; Haskell v. Ayres, DECEIT-FALSE REPRESENTATION AS TO PROPERTY 35 id. 93; Wetmore v. Neuberger, 44 id. 362; Yale v. TO COMMERCIAL AGENCY.-An untrue report made by Seeley, 15 Vt. 221; Claflin v. Carpenter, 4 Metc. 580; oue to a commercial agency as to his business and Erskine v. Plummer, 7 Me. 447; S. C., 22 Am. Dec. property upon the faith of which another person gives 216; Pierrepont v. Barnard, 6 N. Y. 279; Owens v. such a one credit, held admissible to show a fraudulent Lewis, 46 Iud. 468; S. C., 15 Am. Rep. 295. Spalding v. representation. As is said in Eaton v. Avery, 83 N. Y. Archibald. Opinion by Cooley, J. 31: “ The business and office of these agencies are so well-known, and have been so often the subject of discussion in adjudicated cases, that the court can take
RECENT ENGLISH DECISIONS. judicial notice of them. Their business is to collect information as to the circumstances, means, and pe- SPECIFIC PERFORMANCE UNDISCLOSED EASEMENT cuniary ability of merchants and dealers throughout ON REALTY SOLD. - Where a purchaser bought & the country, and keep accouuts thereof, so that the house and found that the owner of the adjoining subscriber to the agency, when applied to by a cus- house claimed a right to use the kitchen of the house tomer to sell goods to him on credit, may by resorting sold for washing purposes, and the particulars made to the agency or to the lists which it publishes, ascer- no mention of the easement, held, in au action for tain the standing and responsibility of the customer to specific performance, that a general condition that whom it is proposed to exteud credit. A person fur- each lot was sold “subject to any existing public and nishing information to such an agency in relation to private rights of way, and other rights and easements his own circumstances, means, and pecuniary respon- of whatever nature," was not sufficient to bind the sibility, can have no other motive in so doing than to purchaser to accept property subject to such a claim enable the agency to communicate such information as this, and that the vendor's solicitor, who knew of to persons who may be interested in obtaining it for the claim, was bound to make further inquiries, and their guidance in giving credit to the party; and if a call the attention of purchasers to the claim in the merchant furnishes to such an agency a wilfully false particulars. Ch. Div. November 26, 1883. Heywood statement of his circuinstauces or pecuniary ability, v. Mallaliell. Opinion by Bacon, V. C. (49 L, T. with iutent to obtain a standing and credit to which he | Rep. [N. S] 649).