The postmaster-general again urges upon congress the purchase of the telegraphs by government, and their union with the post-office, under one management. He hopes to raise the money required for such purchase by establishing a savings' bank in connection with the postal department. The success of the experiment in postal telegraphs in England gives assurance of a like result here.

There is little doubt that, under government management, our telegraphic service would be cheaper and better. Many interests oppose a change in the matter, and, of course, advance all sorts of objections. Most of these, which at first appeared of considerable force, have been shown by the experience of other countries to be bugbears. One reason, however, exists why the telegraphs should still remain in private hands, and that is, the franking privilege. When that is abolished, wholly, entirely abolished, we shall be willing to see them pass under public control. The savings' bank project, however, is not worthy of so much consideration. Undoubtedly, the savings' department would be profitable, and be a blessing to the people. So, probably, would a grocery department, but that is no reason for connecting it with the post-office. To be sure a banking department is run in connection with the English post-office, but then a tobacco one is connected with the French post-office. If Mr. Cresswell wants all the improvements, he cannot overlook the French plan, which is just as consistent as the English and much more profitable.

COURT OF APPEALS ABSTRACT.

BOND OF INDEMNITY.

1. Maker of bond when liable: estoppel.—The defendants, by a bond, agreed to keep plaintiff harmless from all claims against the bank of Canandaigua on account of bills and notes of the bank, deposits and liabilities of all kinds. This bond was part of the consideration of a transfer of plaintiff's interest in the bank to one of defendants, who was at the time of its delivery plaintiff's copartner in the bank. At the time of giving the bond there was a dispute between defendant Messenger and certain parties, who had been depositors, as to whether their deposits had been paid; the depositors claiming that payment had been made in a note conditionally, and that such note had been received in consequence of fraudulent representations of Messenger and others as to the solvency of the makers. The note not being paid, a suit had been brought against plaintiff and another for such deposits. He gave notice to Messenger, who defended the suit. Judgment was rendered against plaintiff, who paid the same and brought suit on the bond. Held, that, as the plaintiff had been made liable and compelled to pay the deposits, he had brought his case within the letter and intention of the bond, and, in the absence of further proof, was entitled to recover thereupon. Hart v. Messenger. Opinion by Grover, J.

2. That the statements in the books of the bank, as to its liabilities being regarded as representations of the plaintiff of the sums due depositors, the plaintiff

could not recover for liabilities not appearing on the books or otherwise made known. But the nature of against plaintiff, having been well known at the time the claim for which judgment had been recovered of giving the bond, and the defendant Messenger having assumed the defense of the action without question, the plaintiff was not estopped from proving that the claim was well founded, and it was error to nonsuit the plaintiff upon the trial of the action. Ib.

CONSTITUTIONAL LAW.

1. Act concerning cattle on highways constitutional.— It has been decided (Campbell v. Evans) that the act to prevent animals from running at large in public highways, as amended in 1867 (chap. 814), and the procedure provided thereby for the judicial condemnation and

sale of cattle, is constitutional. The act is not violative of article 1, section 6 of the State constitution, which declares that no person shall be deprived of life, liberty or property without due process of law. Cook v. Gregg, Opinion by Allen, J.

2. The temporary seizure and holding of property awaiting judicial action is not prohibited by the constitution. It is not a bereaving or divesting of the 'owner of his property. Ib.

3. It is not in excess of legislative power, or any violation of any principle of constitutional law to give the party injured a lien upon property, animate or inanimate, found trespassing. Ib.

4. Remedies are within the province of legislation, and it is competent for the legislature to fix the amount to which a party should be entitled for labor and loss of time in seizing animals found trespassing. Ib.

5. Power of legislature: creating town debt without vote of people.— An act of the State legislature is valid if no restriction or limitation as to such an act can be found in the constitution. The distinction between the United States and the State constitutions is, that the former confers upon congress certain specified powers only, while the latter confers upon the legislature all legislative power. In the one case, the powers specifically granted can only be exercised; in the other, all legislative powers, not prohibited, may be exercised. People ex rel. McLean v. Flagg. Opinion by Church, C. J.

6. The towns of the State possess such powers as the legislature confers on them. The legislature may authorize a town to incur a debt, and it can direct it to be done. Ib.

7. An act directing the construction of highways in the town of Yonkers, and the issue of town bonds to raise money to pay the expense thereof, is within the limits of legislative power. Ib.

8. Such an act, even though the question of incurring the debt is not submitted to the people of the town, does not violate article 7, section 12, of the constitution. The debts there prohibited are State debts. Ib.

CONTRACTS.

1. Construction of: tenants in common.—A contract for the sale of certain real estate provided that the vendor parted with no interest or title in the premises, and that the purchasers acquired no legal or equitable interest therein until the whole purchase-money was paid, and that no part of the machinery or property was to be removed. Subsequently the vendor received one-fourth of the purchase-money and made an absolute conveyance of an undivided fourth of the premises. Held, that this conveyance was in pursuance of

a new contract, and had the effect to vest in the grantee an absolute estate in fee to the premises granted, and to confer upon him all the rights of a tenant in common of the property, and to the extent of the grant, extinguished the conditions that the purchaser should have no legal or equitable interest and that the vendor parted with no interest. Davis v. Lottich. Opinion by Church, C. J.

2. And the purchaser was tenant in common as to property thereafter severed from the premises, and an action for the possession of such property could not be maintained against persons deriving their right to such property through such purchaser. Ib.

DEED.

1. Boundaries in: adverse possession: parol evidence to explain. A conveyance is to be construed in reference to its visible locative calls, as marked or appraising on the land in preference to quantity, course, distance, map, or any thing else, as they are more material and certain in their character. Drew v. Swift. Opinion by Allen, J.

2. The plaintiff, claiming title by adverse possession only, is not entitled to recover against a defendant holding a deed within the boundaries of which the land in question is embraced, upon proof of any prior possession other than adverse possession, for a period which would bar an entry. Ib.

3. When such defendant's deed is explicit as to the boundaries, the declarations of such defendant cannot be resorted to, to vary the terms of such deed, or aid in its interpretation. Ib.

4. Where there are no monuments, or if monuments once existing are gone and their place cannot be found, the courses and distances, when explicit, must govern, and cannot be controlled or affected by parol evidence. Nor can the description be departed from by parol evidence of intent, or of acquiescence in another boundary unless such an adverse possession be shown as is in itself a bar to an action. Ib.

EASEMENT.

1. Hidden drain, when not. -The rule of law which creates an easement in the severance of two tenements, by the sale of one them, is confined to cases where an apparent sign of servitude exists on the part of one of them, in favor of the other. Butterworth v. Crawford. Opinion by Rapallo, J.

2. And when there was nothing in the appearance of the premises claimed to be servient to indicate that there was a drain from privies on the premises claimed to be dominant, held, that drains not being necessary accompaniments of privies constructed as the ones in question were, the servitude claimed was not apparent. Ib.

HUSBAND AND WIFE.

1. Dealings with third parties, with regard to wife's separate estate: presumption of knowledge: rights of surety. One O. F. B. and wife executed a bond and a mortgage for $2,000 on the wife's real estate, payable, one-half in three months and the remainder in six. O. F. B. delivered this and another mortgage to the plaintiff, a bank, and received from its president a paper, which stated that the two bonds and mortgages were received and held as collateral security for the payment of any and all claims, etc., which the plaintiff then had or might thereafter have against Oscar F. Burns, by notes, etc. At the time, O. F. B. was indebted to the bank in the sum of $4,178.14 This action was brought

to foreclose the mortgage, some years after. For the amount due at the time it was given, new notes had been taken and extensions of time given, and the indebtedness of O. F. B. had gradually increased to the sum of $14,000. Held, that the fact that the president of the bank did not know that the mortgage was upon the wife's individual property (her deed being upon record), did not excuse the bank from the legal consequences resulting from knowledge. Albion v. Burns. Opinion by Allen, J.

Bank of

2. The wife occupied the position of a surety, with all the rights, legal and equitable, incident to that relation, and the extension of the time. of payment, without the assent of the surety, is such a dealing as will discharge the surety, the law presuming injury to the surety from such extension. Ib.

3. The mortgage being for $2,000, payable in three and six months, it cannot, without some competent evidence that such was the intent of the mortgagor, be construed to be a continuing security for debts thereafter to be contracted. Ib.

4. In executing the mortgage and delivering it to her husband, the wife only constituted him agent for the delivery of it to the mortgagee. Ib.

5. At the time of giving the mortgage there was a debt due from O. F. B. to the plaintiff and no special loan or advance appearing to be made on the mortgage, no injustice will be done to plaintiff by regarding the mortgage as security for the existing debt, and the repeated extensions and renewals of the debt operated as a release of the surety and discharge of the mortgage. Ib.

JURISDICTION.

1. Citizenship of corporation: transfer of cause to federal court: insurance: estoppel. An insurance company created by the laws of another State is a citizen of that State within the federal judiciary act of 1789, even though it has complied with the provisions of the New York insurance act, and subjected itself to the visitorial power of this State. Holden v. The Putnam Fire Insurance Co. Opinion by Andrews, J.

2. But the fact that a defendant was a citizen of another State at the time of the commencement of the action in the courts of this State is not enough to entitle it to a transfer of the case to the federal courts. The plaintiff must at the same time have been a citizen of this State. And a statement in the verified petition that the plaintiff is a citizen of this State is merely an averment that he is so where the petition is drawn and will not authorize a transfer. The rights of the parties are governed by the facts existing at the commencement of the suit. Ib.

3. Where the defendants had directed their agent to withdraw and cancel a policy, and the agent of the defendants had procured, without consideration from the plaintiff who held the policy, a surrender and receipt which he was induced to give by a representation of the agent; that an insurance had been procured in another good company in place of the surrendered one, which statement was untrue, the agent not paying back the plaintiff any of the premium money. Held, that the plaintiff was not estopped by the receipt and surrender from recovery of a loss occurring during the time for which such policy was originally given, and for which he had paid. Ib.

LANDLORD AND TENANT.

1. Eviction: what amounts to.-A person cannot remain in possession of premises and still claim that he

has been turned out, nor when a judgment of a competent court has determined that he shall deliver possession to a particular person, need he wait to be forcibly ejected. He can acquiesce in the judgment of the court, and voluntarily obey its mandate. Home Life Ins. Co. v. Sherman. Opinion by Church, C. J.

2. The defendant held certain premises under a lease from plaintiffs, who held under a lease from one Hoffman. Hoffman brought action against defendant and obtained a judgment that defendant should deliver the premises to him, defendant thereupon gave up the keys to the plaintiffs in this action and left the premises. Held, an eviction, and that defendant was not liable for rent not then due. Ib.

PLEADING.

What sufficient denial.—The complaint stated that defendant made a note, thereupon one W. indorsed it and delivered it to the payee, who, before the commencement of the action, for a valuable consideration, sold and delivered it to the plaintiff, who is now the owner, etc. The answer specifically admitted "the making and delivery of said note as averred in the complaint, "set up payment and denied each and every allegation except as thus expressly admitted. Held, that there was a sufficient denial of the transfer of the note by the payee to the plaintiff, and puts at issue such sale and delivery in the absence of which payment to the payee was a good defense, and the defendant would be entitled to prove the same. Allis v. Leonard. Opinion by Rapallo, J.

CONTRACT FOR SALE OF LAND. LONG V. HARTWELL, ADMINISTRATOR, ETC.* (Continued from last week.)

n Brown v. Moorhead, 8 S. & R. 569, where the defendant agreed to convey a piece of land, and also to convey, or cause to be conveyed, the interest of A. B. in another piece, Chief Justice Tilghman held, that a deed conveying only one parcel was but in part fulfillment, the contract contemplating two conveyances.

In Witbeck v. Waine, 16 N. Y. 532, which broadly recognizes the general rule, the distinction is clearly stated, that the rule is not applicable where the deed covers only part of the subjects embraced in the executory contract.

In Buel v. Willard, 9 Barb. 641, the rule is well stated in these terms, "that the covenant, in order to be deemed collateral and independent, so as not to be destroyed by the execution of the deed, must not look to or be connected with the title, possession, quantity, or emblements of the land which is the subject of the contract."

In the case of Crotzer v. Russell, 9 Serg. & Rawle, 78, where the agreement was to covey a certain tract of land, and the deed reserved a small portion, the deed prevailed over the contract, for the acceptance of a deed embracing the whole tract, with an acception of a portion, raised a clear presumption that the reservation was within the final understanding of the parties, and it could not be regarded as part execution.

The rule to be deduced from the authorities is, that the executed contract supersedes all prior negotiations

*Supreme Court of New Jersey.

and agreements, where the last contract covers the whole subject embraced in the prior one. But where the stipulation is to do a series of acts at successive periods, or distinct and separable acts to be performed simultaneously, the executory contract becomes extinct only as to such of its parts as are covered by the conveyance.

In the case now submitted, the engagement was to convey two lots of land, and whether the conveyance of one dispensed the vendor from all liability under the executory contract is a question of strict law, to be determined by the court.

The contract contemplates a single deed, and one mortgage upon both lots, to secure the purchase-money, fixing one price for both lots, and not a distinct price for each.

The vendor did not agree in writing to pass title to the remaining lot by a separate deed, nor does the contract provide for the acceptance of a separate mortgage, or settle the amount in which it is to be taken. The act of the grantor, accepted by the grantee, must be regarded in full execution.

Regarding the conveyance as a full execution is there any difference in law whether such conveyance passed the title to the wife, by vendee's directions, or to the vendee himself? A written contract within the statute of frauds cannot be modified or altered by parol, so as to furnish, in its altered state, the basis of an action at law.

Whether parol evidence is admissible to prove the discharge or abandonment of such contract is a question upon which there is great conflict of authority, and as the discussion of this case can be confined within narrower limits, no opinion will be expressed on this point. The solution of this branch of the case will be reached by determining whether a substituted performance, actually and fully executed by the vendor, and accepted by the vendee, may be set up in defense at law to this suit on the written contract. It will be observed that this is not an attempt to found an action, or even strictly to base a defense, upon an oral agreement engrafted on the written contract, but simply to prove in defense actual performance of the contract, by way of accord and satisfaction.

The statute does not declare all parol contracts relating to land to be void or illegal. There is a class of cases in which it is held that where, upon a parol contract for the sale of land, the vendee has paid the purchase-money, he cannot recover it back if the vendor is ready and willing to convey. The vendee, having paid the money voluntarily, cannot compel the vendor to take advantage of the statute. Abbott v. Draper, 4 Denio 51; Coughlin v. Knowles, 7 Metc. 57. It has been the accepted law in this State ever since the decision of Perrine v. Cheeseman, by Chief Justice Ewing, 6 Halst. 174, that an executory agreement in writing not under seal may, before breach, be discharged, abandoned, or rescinded by a subsequent unwritten agreement. The letter of the statute of frauds simply defeats an action upon the parol agreement relating to land; it does not expressly forbid a defense under the parol contract, nor deny its virtue as a rescinding act, and, therefore, the only ground upon which a written contract not under seal for the sale of lands can be taken out of the rule in Perrine v. Cheeseman is, that by the written agreement the vendee has acquired an interest in lands which he may enforce in equity, and it would be against the spirit of the enactment to permit that interest to be taken away by oral

testimony. Whatever force this view may have, it is difficult to perceive how the policy of the statute would be violated by parol proof, establishing not an abandonment or surrender of the stipulation, but an execution of it by a substituted performance accepted and enjoyed by the vendee. To disregard the execution in this case would enable the vendee to enforce the letter of the writing, after placing the vendor in a position where it is impossible for him to fulfill it.

While the statute asserts its control over the contract itself, the performance of the contract is not within its purview.

A contract under the dominion of the statute of frauds can be no more secure against invasion by parol than a sealed instrument.

In an action on a bond, parol proof is competent to defeat the plaintiff by showing payment, or accord and satisfaction, and in all cases a specialty may be shown by parol, to be discharged after breach, by accord and satisfaction.

Fleming v. Gilbert, 3 Johns. 528, was an action on a bond conditioned that the defendant, by a given day, would procure for plaintiff a certain bond and mortgage, and discharge the same of record. The defendant did procure them, and offered them to the plaintiff, proffering to do whatever was necessary to discharge them, but the plaintiff agreed by parol to waive a performance in this respect if the defendant would do another thing, which he afterward did; held, that evidence of the substituted performance constituted a defense. Monroe v. Perkins, 9 Pick. 298, and Lattimore V. Harson, 14 Johns. 330, are similar in principle. These cases go upon the ground that he who prevents a thing from being done, by saying he will accept something else for it, shall not, after such acceptance, avail himself of the non-performance he has occasioned.

In Cummings v. Arnold, 3 Meto. 486, which was a contract required to be in writing, the defense was successfully rested upon parol proof of accord and satisfaction, by a substituted performance.

In Cuff v. Penn, 1 M. & S. 21, which has been followed in many cases, the plaintiff succeeded in enforcing the contract by suit at'law, when he had not himself performed according to the terms of the writing, but in accordance with a substituted performance agreed upon by parol.

The cases of Goss v. Lord Nuyent, 5 B. & Ad. 65; Harvey v. Grabham, 5 Ad. & El. 61; Stead v. Dawber, 10 id. 57, and all the cases since these, in which the authority of Cuff v. Penn is denied, have been placed upon the ground that the plaintiff's suit was founded on a contract required to be in writing, but, In fact, partly in writing and partly in parol; the suit thus resting on a case made out by incorporating in it oral stipulations, was held to be inhibited by the words of the statute.

But in none of these cases, so far as my investigation has reached, has it ever been doubted that a substituted performance, actually executed and accepted, would dispense the defendant from liability on the contract.

Whatever may be thought of the correctness of the rule in Stead v. Dawber and Marshall v. Lynn, it may be safely said that, if the substituted performance in those cases had been actually executed and accepted, the result would have been different.

The conveyance, therefore, to the vendee's wife must be held to have the same effect as if made to the vendee himself. This result will do no more violence

to the statute of frauds than the well-established rule which enables the vendor, after the execution on his part of a parol contract for the sale of lands, to recover the purchase-money.

Another view of this case will lead to the same result. In the written agreement the vendor bargains to convey to the vendee or his assigns, and although an assignee of the contract could not enforce it by suit unless he had an assignment in writing, the vendor, having been directed by the vendee to pass the title to another, had a right to presume that the assignment had been duly executed, and the fact cannot now be questioned.

3. If merger had not taken place the plaintiff was not entitled to recover. By the terms of the contract, the vendee was to execute a mortgage on both lots, to secure the balance of the purchase-money, and no evidence was produced to show that he tendered himself ready to do so.

It is the settled rule, in this State, that if either the vendor or vendee wishes to enforce the contract against the other, he immediately makes his part of the agreement precedent.

On the one hand, the purchaser's right of action for non-delivery of the deed does not accrue until he tenders performance on his part; and, on the other hand, the vendor's action must be preceded by execution and offer of the conveyance. Shinn v. Roberts, Spencer, 444, and cases there cited.

In this case, therefore, no suit would lie until vendee tendered himself ready to execute a mortgage on both parcels.

し

APPEAL FROM JUSTICES' COURT-SECURITY. The Onondaga county court made an order in this action, dismissing an appeal brought by the defendant from justice's court for a new trial in the county court, the plaintiff having claimed more than $50 in his complaint before the justice, on the ground that no security had been given as required by section 355 of the Code.

The defendant appealed from said order to the general term of the fourth department.

Upon the argument of this appeal, Mr. Shumway, for the appellant, contended that the statute was directory, and that the only effect of a failure to give the usual undertaking was, that execution was not stayed. Mr. Vann, for the respondent, was stopped by the court, which affirmed the order appealed from, without further argument. Little v. Green, Gen. Term 4th Department, November, 1871.

The Albany Law Journal.

ALBANY, DECEMBER 23, 1871.

COURTS OF COMMERCE.

A special committee of the English house of commons, which was appointed during the last session of parliament to inquire and report concerning the nature and operations of courts of commerce, has only recently issued its report on this very interesting question. Although courts of commerce have been long established in several of the countries of Europe, yet it is only lately that English law reformers have turned their attention to the infusion of more of the lay element into their judicial system by the adoption of the continental device of courts of commerce. The report of the English committee is wholly in favor of these mixed tribunals, and the London Times of the 3d November warmly indorses the recommendations of the committee. It is probable in the highest degree, therefore, that a bill to establish mixed tribunals of lawyers or judges and merchants will be introduced at an early date of the next session of parliament, and there is no doubt that the legal experiment will be accepted by both houses, without any considerable opposition from any quarter.

We have searched in vain through the files of the London Times for any indications of the intentions of government respecting the high court of justice bill. This measure was brought in during the session of 1869, covered with the indorsements of the lord chancellor, and we know not of how many others of the most distinguished jurists of England; yet, it now appears that this bill is completely shelved for the present, and that, instead of the sweeping reforms contemplated by that measure, the expectations of the British public are sought to be satisfied by the new departure just shadowed forth by the committee of the commons. It is quite clear that, besides abandoning the work of consolidating substantive law, the English government have also for the present relinquished the more easy but not less important task of consolidating judicatures and simplifying procedure. But if they still contemplate to revive the high court of justice bill—which is in principle a transcript of the leading rules and doctrines of our code of procedure - then we hope, by all means, that the scheme for establishing lay or mixed courts will not be proceeded with until the high court of justice bill shall have had a reasonable time to work and bear fruit.

As, however, our belief is that the bill for establishing courts of commerce will be espoused by the government, and that the high court of justice bill will not receive the same high patronage, we will state briefly our views respecting mixed tribunals in general, no matter wherever they are situated. The committee informs us that the tribunals in question

have given immense satisfaction, and have been found an excellent preventive and remedy of the laws delays. It is probable, indeed, that the tribunals are very popular with half of the litigants that have had their causes thus decided. The parties in whose favor the suits have terminated are, doubtless, well content with the existing regime, to which they are partly indebted for the favorable verdicts they have received. But we doubt whether the courts of commerce are equally satisfactory to those whom they have sent empty away. Every one knows that so long as experts are called for by selection and not by ballot, or by some arbitrary or even random rule, their evidence is not of much value. Let any one that doubts this statement attend the trial of an action for infringement of a patent, say, for a chemical invention. The chemists on the one side will always flatly contradict the chemists on the other. Medical men produced by the plaintiff will also take widely different views from those called by the defendant. The reason is, that neither plaintiff nor defendant will produce any witness whose opinions they have not previously examined and ascertained to be favorable to their interests. The English committee doubtless endeavored to procure impartial witnesses, and to take them from a wide area. Yet, as the foreign testimony was tendered by or through the mixed tribunals themselves, the evidence is not unimpeachable. However, we believe that these tribunals are really productive of many good results besides their legal adjudications. Like the conseils des prud' hommes, or courts of conciliation between masters and workmen, they often lead to an amicable adjustment between parties who otherwise would be irreconcilable. This social advantage may possibly balance or even outweigh the legal imperfections necessarily incident to a mixed tribunal. These defects, however, are many and grievous.

Courts of conciliation are equivalent to an extension of the jury system or of lay arbitration. They are a sort of compromise between technicality and merits. The common sense of the lay assessor is expected to prevent an overstraining of technical points by the professional judges, while these, on the other hand, are supposed to act as a counterpoise against the tendencies of their lay brethren to disregard precedent and fixed legal rules. Every question is thus virtually turned into one of fact. It is idle for the legal members of the court to arrogate to themselves exclusively the right of construing a written document, when their lay brothers will take care to strain as much for justice as the lawyers will for law. The net moral of courts of commerce, therefore, is, that these tribunals change all questions from issues of law into issues of fact.

This possibly is in many cases no serious detriment to the best interests of justice and even of law. It seems to be only an extension of the original theory and practice of equity, viz.: to disregard technical rule, whenever it worked injustice. A court of com