curred in that decision. Veazie Bank v. Fenno, 8 Wall. 533, 548; Hepburn v. Griswold, id. 616, 636; Legal Tender cases, 12 id. 543, 544, 560, 582, 610, 613, 637.

It is equally well settled that Congress has the power to incorporate National banks, with the capacity, for their own profit as well as for the use of the government in its money transactions, of issuing bills which under ordinary circumstances pass from hand to hand as money at their nominal value, and which, when so current, the law has always recognized as a good tender in payment of money debts, unless specifically objected to at the time of the tender. United States Bank v. Bank of Georgia, 10 Wheat. 333, 347; Ward v. Smith, 7 Wall. 447, 451. The power of Congress to charter a bank was maintained in McCulloch v. Maryland, 4 Wheat. 316, and in Osborn v. United States Bank, 9 id. 738, chiefly upon the ground that it was an appropriate means for carrying on the money transactions of the government. But Chief Justice Mar. shall said: "The currency which it circulates, by means of its trade with individuals, is believed to make it a more fit instrument for the purposes of gov. ernment than it could otherwise be; and if this be true, the capacity to carry on this trade is a faculty indispensable to the character and objects of the institution." 9 Wheat. 864. And Mr. Justice Johnson, who concurred with the rest of the court in upholding the power to incorporate a bank, gave the further reason that it tended to give effect to "that power over the currency of the country, which the framers of the Constitution evidently intended to give to Congress alone." Id. 873.

The constitutional authority of Congress to provide a currency for the whole country is now firmly established. In Veazie Bank v. Fenno, 8 Wall. 533, 548, Chief Justice Chase, in delivering the opinion of the court said: "It cannot be doubted that under the Constitution the power to provide a circulation of coin is given to Congress. And it is settled by the uniform practice of the government, and by repeated decisions, that Congress may constitutionally authorize the emission of bills of credit." Congress having undertaken to supply a National currency, consisting of coin, of treasury notes of the United States, and of the bills of National banks, is authorized to impose on all State banks, or National banks, or private bankers, paying out the notes of individuals or of State banks, a tax of ten per cent upon the amount of such notes so paid out. Veazie Bank v. Fenno, above cited; National Bank v. United States, 101 U. S. 1. The reason for this conclusion was stated by Chief Justice Chase, and repeated by the present chief justice, in these words: "Having thus, in the exercise of undisputed constitutional powers, undertaken to provide a currency for the whole country, it cannot be questioned that Congress may, constitutionally, secure the benefit of it to the people by appropriate legislation. To this end, Congress has denied the quality of legal tender to foreign coins, and has provided by law against the imposition of counterfeit and base coin on the community. To the same end, Congress may restrain, by suitable enactments, the circulation as money of any notes not issued under its own authority. Without this power, indeed, its attempts to secure a sound and uniform currency for the country must be futile." 8 Wall. 549; 101 U. S. 6.

By the Constitution of the United States, the several States are prohibited from coining money, emitting bills of credit, or making any thing but gold and silver coin a tender in payment of debts. But no intention can be inferred from this to deny to Congress either of these powers. Most of the powers granted to Congress are described in the eighth section of the first article; the limitations intended to be set to its powers, so as to exclude certain things which might

otherwise be taken to be included in the general grant, are defined in the ninth section; the tenth section is addressed to the States only. This section prohibits the States from doing some things which the United States are expressly authorized to do, and from doing some things which are neither expressly granted nor expressly denied to the United States. Congress and the States equally are expressly prohibited from passing any bill of attainder or ex post facto law, or granting any title of nobility. The States are forbidden, while the President and Senate are expressly authorized to make treaties. The States are forbidden, but Congress is expressly authorized, to coin money. The States are prohibited from emitting bills of credit; but Congress, which is neither expressly authorized nor expressly forbidden to do so, has as we have already seen, been held to have the power of emitting bills of credit, and of making every provision for their circulation as currency, short of giving them the quality of legal tender for private debts-even by those who have denied its authority to give them this quality.

It appears to us to follow, as a logical and necessary consequence, that Congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency for the purchase of merchandise and the payment of debts, as accord with the usage of sovereign governments. The power, as incident to the power of borrowing money and issuing bills or notes of the government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the Constitution of the United States. The governments of Europe, acting through the monarch or the Legislature, according to the distribution of powers under their respective Constitutions, had and have as sovereign a power of issuing paper money as of stamping coin. The power has been distinctly recognized in an important modern case, ably argued and fully considered, in which the emperor of Austria, as king of Hungary, obtained from the English Court of Chancery an injunction against the issue in England, without his license, of notes purporting to be public paper money of Hungary. Austria v. Day, 2 Giff. 628, and D. F. & J. 217. The power of issuing bills of credit, and making them, at the discretion of the Legislature, a tender in payment of private debts, bad long been exercised in this country by the several Colonies and States; and during the revolutionary war the States, upon the recommendation of the Congress of the Confederation, had made the bills issued by Congress a legal tender. See Craig v. Missouri, 4 Pet. 435, 453; Briscoe v. Bank of Kentucky, 11 id. 257, 313, 334-336; Legal Tender Cases, 12 Wall. 557, 558, 622; Phillips on American Paper Currency, passim. The exercise of this power not being prohibited to Congress by the Constitution, it is included in the power expressly granted to borrow money on the credit of the United States.

This position is fortified by the fact that Congress is vested with the exclusive exercise of the analogous power of coining money and regulating the value of domestic and foreign coin, and also with the paramount power of regulating foreign and inter-State commerce. Under the power to borrow mouey on the credit of the United States, and to issue circulating notes for the money borrowed, its power to define the quality and force of those notes as currency is as broad as the like power over a metallic currency under the power to coin money and to regulate the value thereof. Under the two powers, taken together, Congress is authorized to establish a National currency, either in coin or in paper, and to make that currency lawful

money for all purposes,as regards the National govern

ment or private individuals.

The power of making notes of the United States a legal tender in payment of private debts, being included in the power to borrow money and to provide a National currency, is not defeated or restricted by the fact that its exercise may affect the value of private contracts. If apon a just and fair interpretation of the whole Constitution, a particular power or authority appears to be vested in Congress, it is no constitutional objection to its existence, or to its exercise, that the property or the contracts of individuals may be incidentally affected. The decisions of this court, already cited, afford several examples of this.

Upon the issue of stock, bonds, bills or notes of the United States, the States are deprived of their power of taxation to the extent of the property invested by individuals in such obligations, and the burden of State taxation upon other private property is correspondingly increased. The ten per cent tax, imposed by Congress ou notes of State banks and of private bankers, not only lessens the value of such notes, but tends to drive them, and all State banks of issue, out of existence. The priority given to debts due to the United States over the private debts of an insolvent debtor diminishes the value of these debts, and the amount which their holders may receive out of the debtor's estate.

So, under the power to coin money and to regulate 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), issue coins of the same denominations as those already current by law, but of less intrinsic value than those, by reason of containing a less weight of the precious 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 any stipulation as to the kind of money in which it shall be paid, may always be satisfied by payment of that sum in any currency which is lawful money at the place and time at which payment is to be made. 1 Hale P. C. 192-194; Bac. Ab. Tender, B. 2; Pothier Contract of Sale, No. 416; Pardessus Droit Commercial, Nos. 204, 205; Searight v. Calbraith, 4 Dall. 324. As observed by Mr. Justice Strong, in delivering the opinion of the court in the Legal Tender Cases, "Every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power. 12 Wall. 549. Congress, as the Legislature of a sovereign nation, being expressly empowered by the Constitution "to lay and collect taxes, to pay the debts and provide for the common defense and general welfare of the United States," and "to borrow money on the credit of the United States," and "to coin money and regulate the value thereof and of foreign coin;" and being clearly authorized, as incidental to the exercise of those great powers, to emit bills of credit, to charter National banks, and to provide a National currency for the whole people, in the form of coin, treasury notes, and National bank bills; and the power to make the notes of the government a legal tender in payment of private debts being one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution; we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of Congress, consistent with the letter and spirit of that Constitution, and therefore, within the meaning of that

instrument, " necessary and proper for carrying into execution the powers vested by this Constitution in the government of the United States."

Such being our conclusion in matter of law, the question whether at any particular time, in war or in peace, the exigency is such, by reason of unusual and pressing demands on the resources of the government, or of the inadequacy of the supply of gold and silver coin to furnish the currency needed for the uses of the government and of the people, that it is, as matter of fact, wise and expedient to resort to this means, is a political question, to be determined by Congress when the question of exigency arises, and not a judicial question, to be afterward passed upon by the courts. To quote once more from the judgment in McCulloch v. Maryland: "Where the law is not prohibited, and is really calculated to effect any of the objects cntrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." 4 Wheat. 423.

It follows that the act of May 31, 1878, chapter 146, is constitutional and valid; and that the Circuit Court rightly held that the tender in treasury notes, reissued and kept in circulation under that act, was a tender of lawful money in payment of the defendant's debt to the plaintiff.

Judgment affirmed.

NEGLIGENCE OF EMPLOYEE NOT IN LINE OF EMPLOYMENT.

MINNESOTA SUPREME COURT, JANUARY 5, 1884.

MARRIER V. ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY Co.

Section men employed by defendant railroad company in charge of a section foreman at the time of dinner, built a fire upon the railroad right of way to warm their coffee, the foreman assisting in doing so. The fire was not extinguished by them, and spread to plaintiff's land and destroyed his hay. The company did not board the workmen. Held, that the company was not liable for the loss of plaintiff's hay.

A

CTION for loss of property through negligence in respect to a fire. The opinion states the case. From an order denying a new trial after verdict for plaintiff, defendant appealed.

R. B. Galusha, and P. A. Dufour, for appellant.
R. Reynolds, for respondent.

MITCHELL, J. All the evidence in this case tends to prove that some section men, under the charge of a section foreman, were in the employment of defendant, engaged in repairing its railroad near defendant's farm, on the 21st of October, 1882. While engaged in such work they usually returned to their boardinghouse for dinner, but on this day, their work being at some distance, they took their dinner with them. At noon, when they quit work to eat, they built a fire, or rekindled one which some other person had kindled, on defendant's right of way, for the purpose of warming their coffee. After eating dinner, they resumed their work, negligently leaving the fire unextinguished, which spread in the grass and ran on to plaintiff's land and burned his hay. There is no evidence that the defendant was boarding these men, or that it was any part of its duty to prepare or cook their meals. Neither is there any thing teuding to show that the defendant either knew or authorized the kindling of a fire for any such purpose, either on this or any other occasion. Nor is there any evidence that it was the duty of these

section men to exercise any supervision over the right of way, or to extinguish fires that might be ignited on it. So far as the evidence goes, their employment was exclusively in repairing the railroad track.

The doctrine of the liability of the master for the wrongful acts of his servants is predicated upon the maxims, "respondeat superior" and "qui facit per alium facit per se." In fact, it rests upon the doctrine of agency. Therefore, the universal test of the master's liability is whether there was authority, express or implied, for doing the act; that is, was it one done in the course and within the scope of the servant'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, fraudulent, deceitful, or an act of positive malfeasance. Smith Mast. and Serv. 151. But a master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only occur when that which is done is within the real or apparent scope of the master's business. It does not arise when the servant steps outside of his employment to do an act for himself not connected with his master's business. Beyond the scope of his employment the servant is as much a stranger to his master as any third person. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. A master is not responsible for any act or omission of his servant which is not connected with the business in which he serves him, and does not happen in the course of his employment. And in determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not respousible. If the servant was, at the time when the injury was inflicted, acting for himself, and as his own master, pro tempore, the master is not liable. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master aud servant is for the time suspended. Such, variously ex. pressed, is the uniform doctrine laid down by all authorities. 2 Thomp. Neg. 885, 886; Sherm. & R. Neg., §§ 62, 63; Cooley, Torts, 533; Little Miama R. Co. v. Wetmore, 20 Ohio St. 110; Storey v. Ashton, L. R., 4 Q. B. 476; Mitchell v. Crassweller, 13 Com. B. 236; McClenaghan v. Brock, 5 Rich. Law. 17.

It would seem to follow, as an inevitable conclusion, from this, that on the facts of this case the act of these section men in building a fire to warm their own dinner, was in no sense an act done in the course of and within the scope of their employment, or in the execution of defendant's business. For the time being they had stepped aside from that business, and in building this fire they were engaged exclusively in their own business, as much as they were when eating their dinner, and were for the time being their own masters as much as when they ate their breakfast that morning or went to bed the night before. The fact that they did it on defendant's right of way is wholly immaterial, in the absence of any evidence that defendant knew of or authorized the act. Had they gone upon the plaintiff's farm and built the fire the case would have been precisely the same. It can no more be said that this act was done in the defendant's business, and within the scope of their employment than would the act of one of these men in lighting his pipe, after eating his dinner, and carelessly throwing the burning match into the grass. See Williams v. Jones, 3 Hurl. & C. 256. The fact that the section foreman assisted in or even directed the act does not alter the

case.

In doing so he was as much his own master and doing his own business as were the section men. Had it appeared that it was part of his duty to look after the premises generally, and extinguish fires that might be ignited on them, his omission to put out the fire might possibly, within the case of Chapman v. New York, etc., R. Co. 33 N. Y. 369, be considered the negligence of the defendant. But nothing of the kind appears, and the burden is upon plaintiff to prove affirmatively every fact necessary to establish defendant's liability.

Order reversed, and new trial granted.

UNITED STATES SUPREME COURT AB-
STRACT.
JANUARY 14, 1884.

PRACTICE SUPREME COURT CLERK'S FEES FOR PRINTING RECORD.-The clerk of the Supreme Court is entitled to the fee of fifteen cents per folio under rule twenty-four of the court in relation to printing, although the parties delivered to the clerk the requisite number of copies of the record in print. The clerk is responsible to the court for the correctness and proper indexing of the printed copies of the record, for their presentation to the justices in the form and of the size prescribed by the rules, and for their delivery when required to the parties entitled thereto. As he must now account to the treasurer for the fees and emoluments of his office, he may demand payment in advance. Steever v. Rickman, 109 U. S. 74. If the printing is actually done under his supervision he may require the payment of the fee chargeable under the rule before the printing is done. If the parties themselves furnish the printed copies, the fee must be paid, if demanded, in time to enable him to make the necessary examinations and be ready to deliver the copies to the parties or their counsel and to the court when needed for any purpose in the progress of the cause. The fee is for the service specified in this item of the table, and is indivisible. Cousequently, if the clerk performs any part of the service he is entitled to collect the whole fee; and if the printed record is used at all, it must be examined by him to see if it conforms to the copy certified below and on file as the transcript of the record. So that if the printed copies are used for any purpose in the progress of the cause the whole fee is chargeable. Beam v. Patterson. Opinion by Waite, C. J.

REMOVAL OF CAUSE FIRE INSURANCE-FALSE STATEMENT AFTER LOSS INVALIDATING POLICY.(1) Under the second section of the act of March 3, 1875, 18 St. 470, a suit of a civil nature, brought in a State court, where the matter in dispute exceeds the sum or value of $500, and in which there is a controversy between citizens of different States, or between citizens of a State and foreign States, citizens, or subjects, may be removed in the Circuit Court, although such suit, because founded on a contract in favor of an assignee, could not have been brought in the Circuit Court if no assignment had been made, not being the case of a promissory note, negotiable by the law merchant, or of a bill of exchange. (2) In making statements under oath upon an examination in behalf of an insurance company in respect to a loss, the insured made certain false statements in respect to the manner in which he had purchased the insured stock. There was evidence tending to show that he answered thus with no purpose to deceive and defraud the insurance companies, but for the purpose of showing himself, upon the examination, consistent with a statement that he had made about it a day or two subsequent to the purchase of said stock to R. G. Dunn & Co.'s com

mercial agency at St. Paul, Minnesota, with a view of obtaining a large commercial credit in eastern cities. Held, that the false statements would invalidate the insurance policy under a condition to that effect. A false answer as to any matter of fact, material to the inquiry, knowingly and wilfully made, with intent to deceive the insurer, would be fraudulent. If it accomplished its result, it would be a fraud effected; if it failed, it would be a fraud attempted. And if the matter were material and the statement false, to the knowledge of the party making it, and wilfully made, the intention to deceive the insurer would be necessarily implied, for the law presumes every man to intend the natural consequences of his acts. No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false and wilfully made, the fact that they are material is proof of an attempted fraud, because their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them, and to whom they are addressed. "Fraud," said Catron, J., in Lord v. Goddard, 13 How. 198, means an intention to deceive." "Where one,"

CARRIER MAY LIMIT LIABILITY BY CONTRACT.Common carriers may, by express contract, limit their common-law liability. Moses v. B. & M. R. R. 24 N. H. 71, 90; York Company v. Central R. Co., 3 Wall. 107; Pemberton Company v. New York Cent. R. Co., 105 Mass. 144; Grace v. Adams, 100 id. 505. Rand v. Merchants' Dispatch Transportation Co. Opinion by Stanley, J.

DEED COVENANT RUNNING WITH LAND WARRANTY.-The covenant of general warranty in a deed is a covenant that ruus with the estate in reference to which it is made, and may be availed of by suit, in his own name, by any one to whom the same may come by deed, even after several successive conveyances, or a descent or devise. As the covenant runs with the

land, it passes to the grantee under any conveyance sufficient to transfer the title to the land. The legal title to land ordinarily carries with it the right of possession, and gives a constructive possession without actual entry; and a conveyance by one having the legal title, although not in actual possession, carries the right of possession, and the grantee, upon taking actual possession, may avail himself of a covenant of warranty running with the land. 2 Washb. Real Prop. 662; Crooker v. Jewell, 29 Me. 527; Moore v.

tion to deceive." "If a person tells a falsehood, the natural and obvious consequence of which, if acted on, is injury to another, that is fraud in law." Bosanquet, J., in Foster v. Charles, 7 Bing. 105; Polhill v. Walter, 3 Barn. & Ad. 114; Sleeper v. Insurance Co., 56 N. H. 401; Leach v. Republic Ins. Co., 58 id. 245. Claflin v. Commonwealth Ins. Co. Opinion by Matthews, J.

VOLUNTARY CONVEYANCE-DEED WITH GRANTEE'S NAME LEFT BLANK CONVEYS NO TITLE.- A. promised to donate land to B. Subsequently he executed a deed of the laud with the grantee's name left blank. This deed was handed to B. with the blank unfilled, and it was not filled at the time of the death of B. Held, that B. took no title to the land. The promise of a pure donation to be subsequently made, until executed, is in a legal view, valueless. The deed in blank passed no interest, for it had no grantee. The blank intended for the name of the grantee was never filled, and until filled the deed had no operation as a conveyance. It is the law in several States, that the grantor in a deed conveying real property, signed and acknowledged, with a blank for the name of the grantee, may authorize another party, by parol, to fill up the blank. Swartz v. Button, 47 Iowa, 188; Field v. 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 alteration or addition to a sealed instrument, the better 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 property described in it; the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named. Allen v. Withrow. Opinion by Field, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

AGENCY-CONSTRUCTION OF CONTRACT BY AGENT.When the terms of a contract made by an agent are clear, they are to have the same construction and legal effect whether made for a domestic or for a foreign principal. Kaulback v. Churchill. Opinion by Clark, J. * To appear in 59 New Hampshire Reports.

v. Weston, 12 id. 413; Griffin v. Fairbrother, 10 Me. 91; Allen v. Little, 36 idr 170; White v. Whitney, 3 Met. 81; Moore v. Merrill, 17 N. H. 75, 81, 82; Wead v. Larkin, 54 Ill. 489; Brady v. Spurck, 27 id. 478; Loomis v. Bedel, 11 N. H. 74, 82; Drew v. Towle, 30 id. 531, 537; Sprague v. Baker, 17 Mass. 586; Donnell v. Thompson, 10 Me. 170. Chandler v. Brown. Opinion by Clark, J.

ANOTHER

STATUTE OF FRAUDS- PROMISE TO PAY DEBT OF TAXES OF THIRD PERSON. A written promise to pay the debt of another is not sufficient, within the meaning of the statute of frauds, unless it recites or imports a good consideration. Neelson v. Sanborne, 2 N. H. 414; Underwood v. Campbell, 14 id. 393, 397; Simons v. Steele, 36 id. 73, 81, 82; Leonard v. Vredenburgh, 8 Johns. 29; Wain v. Warlters, 5 East, 10; Saunders v. Wakefield, 4 B. & A. 595; Agnew Stat. of Fr. 79; Browne Stat. of Fr. § 407. A promise to a collector of taxes to pay the taxes of a third person in consideration that the collector will refrain from levying on such person's real estate, is not within the meaning of the statute of frauds, need not be in writing, and an action can be maintained upon it, no writing being declared upon. Goodwin v. Bond. Opinion by Allen, J.

MICHIGAN SUPREME COURT ABSTRACT. DECEMBER 20, 1883.

CONFLICT OF LAW JUDGMENT OF DIVORCE IN ANOTHER STATE-ACTION BY WIFE FOR SUPPORTLACHES.-A husband left Port Huron, in Michigan, not with the intention of abandoning his residence there, but to avoid the service of process, and went to

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 actual notice of the action. He procured a judgment of divorce, and shortly afterward returned to Port Huron and set up business there, but gave no aid or support to his wife. Thirteen years or more thereafter the wife began an action for support against him, claiming still to be his wife. Held (1), that the wife was not concluded by the Indiana judgment. It is true that the Constitution of the United States requires full faith and credit to be given in every State to the records and judicial proceedings of other States,

man,

but this requirement does not extend to the giving validity to those proceedings which in themselves are mere nullities. It is implied in judicial proceedings that the court assuming to act and to render judgment should have had competent authority to do so in the particular case, and when this authority is wanting whatever is done is not judicial. It cannot therefore be within the protection of the Federal Constitution. And if the record, by its recitals, makes a prima facie case of jurisdiction, no one in another State or country is concluded thereby, but he may show what the real fact was, and thus disprove the authority for making such a record. Thompson v. Whiteman, 18 Wall. 457; Knowles v. Gas-light Co., 19 id. 58; Bartlett v. Knight, 1 Mass. 401; S. C., 2 Am. Dec. 36; Shumway v. Still4 Cow. 392; S. C., 15 Am. Dec. 374; Thompson v. Emmert, 15 Ill. 416; Marx v. Fere, 51 Mo. 69; S. C., 11 Am. Rep. 432; People v. Dawell, 25 Mich. 247; S. C., 12 Am. Rep. 260; Elder v. Reel, 62 Penn. St. 308; S. C., 1 Am. Rep. 414; Pennywit v. Foote, 27 Ohio St. 600; S. C., 22 Am. Rep. 340; Gilman v. Gilman, 126 Mass, 26; S. C., 30 Am. Rep. 646; Bowler v. Huston, 30 Grat. 266; S. C., 32 Am. Rep. 673; Eaton v. Hasty, 6 Neb. 419; S. C., 29 Am. Rep. 365. Held also (2), that the wife was guilty of laches precluding her from the relief asked especially when the parties had been separated eighteen years, and she had repeatedly refused his requests to return to him. A suit for support under such circumstances necessarily brings in question the justification for the original separation, and would require an investigation into the facts attending it. It could not be expected that an investigation after such a lapse of time could be any thing else than imperfect, uncertain, and unsatisfactory, and the laches have been so gross that the court may well refuse to enter upon it. What is said in Campo v. Iron Mining Co., 50 Mich. 574, 595, is entirely applicable to this case; and the following cases, in which relief was refused for long delay in cases of matrimonial offenses, may be considered even more directly in point: Guest v. Shipley, 2 Hagg. 321; Mathews v. Mathews, 1 Swab. & T. 500; and 3 id. 161; Williamson v. Williamson, 1 Johns. Ch. 488; Valleau v. Valleau, 6 Paige, 207; Fellows v. Fellows, 8 N. H. 160; Whittington v. Whittington, 2 Dev. & B. 64; Rawdon v. Rawdon, 28 Ala. 565; Castleden v. Castleden, 9 H. L. Cas. 186; Piepho v.

Piepho, 88 Ill. 438. Reed v. Reed. Opinion by Cooley, J.

31:

DECEIT FALSE REPRESENTATION AS TO PROPERTY TO COMMERCIAL AGENCY.-An untrue report made by one to a commercial agency as to his business and property upon the faith of which another person gives such a one credit, held admissible to show a fraudulent representation. As is said in Eaton v. Avery, 83 N. Y. 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 judicial notice of them. Their business is to collect information as to the circumstances, means, and pecuniary ability of merchants and dealers throughout the country, and keep accounts thereof, so that the subscriber to the agency, when applied to by a customer to sell goods to him on credit, may by resorting to the agency or to the lists which it publishes, ascertain the standing and responsibility of the customer to whom it is proposed to extend credit. A person furnishing information to such an agency in relation to his own circumstances, means, and pecuniary responsibility, can have no other motive in so doing than to enable the agency to communicate such information to persons who may be interested in obtaining it for their guidance in giving credit to the party; and if a merchant furnishes to such an agency a wilfully false statement of his circumstances or pecuniary ability, with intent to obtain a standing and credit to which he

knows he is not justly entitled, and thus to defraud whoever may resort to the agency, and in reliance upon the false information there lodged, extend a credit to him, there is no reason why his liability to any party defrauded by those means should not be the same as if he had made the false representation directly to the party injured." These views are supported by Commonwealth v. Call, 21 Pick. 515; and Commonwealth v. Harley, 7 Metc. 462. A person furnishing information to a commercial agency as to his means and pecuniary responsibility, is to be presumed to have done so to enable the agency to communicate the same to persons interested for their guidance in giving credit to him, and so long as such intention exists, and the representations reach the persons for whom they were intended, it is immaterial whether they passed through a direct channel or otherwise, provided they were reported by the agency as made by the party. Genesee Savings Bank v. Michigan Barge Co. Opinion by Sherwood, J.

STATUTE OF FRAUDS-VERBAL SALE OF TIMBER LAND LICENSE TO CUT TIMBER-TITLE TO TIMBER CUT.-A verbal sale of timber land, held to give a license to cut the timber, and when cut the title to the timber would pass to the vendee. While such a sale would be void under the statute of frauds (Russell v. Myers, 32 Mich. 522; Putney v. Day, 6 N. H. 430; S. C., 25 Am. Dec. 470; Owens v. Lewis, 46 Ind. 488; S. C., 15 Am. Rep. 295), it does not follow, because a sale is void under the statute of frauds, the purchaser can derive no title under it. Such a sale is void only at the option of the parties concerned; and if they elect to treat it as valid, it may become effectual for all purposes. And commonly, even if not wholly affirmed, it will operate as a license which will protect the purchaser against liability for any thing done under it prior to any act of revocation. The attempted sale is not restricted in its force to the protection of the parties from being held trespassers for what they may do under it; for to the extent that trees are cut under it before revocation it takes effect as a sale and passes the title to the licensee, who thereby becomes purchaser under it. The permission to cut and remove must be understood as continuous until actually recalled; and as fast as the trees are severed from the realty by the cutting, the contract of sale attaches to them as chattels, and the

parties cutting are entitled to remove them as their own. Greely v. Stilson, 27 Mich. 157; Haskell v. Ayres, 35 id. 93; Wetmore v. Neuberger, 44 id. 362; Yale v. Seeley, 15 Vt. 221; Claflin v. Carpenter, 4 Metc. 580; Erskine v. Plummer, 7 Me. 447; S. C., 22 Am. Dec. 216; Pierrepont v. Barnard, 6 N. Y. 279; Owens v. Lewis, 46 Ind. 468; S. C., 15 Am. Rep. 295. Spalding v. Archibald. Opinion by Cooley, J.

RECENT ENGLISH DECISIONS.

UNDISCLOSED EASEMENT

SPECIFIC PERFORMANCE ON REALTY SOLD. Where a purchaser bought a house and found that the owner of the adjoining house claimed a right to use the kitchen of the house sold for washing purposes, and the particulars made no mention of the easement, held, in au action for specific performance, that a general condition that each lot was sold " 'subject to any existing public and private rights of way, and other rights and easements of whatever nature," was not sufficient to bind the purchaser to accept property subject to such a claim as this, and that the vendor's solicitor, who knew of the claim, was bound to make further inquiries, and call the attention of purchasers to the claim in the particulars. Ch. Div. November 26, 1883. Heywood v. Mallaliell. Opinion by Bacon, V. C. (49 L. T. Rep. [N. S] 649).