between the bank and its debtors, and it is his duty to superintend the collection of debts due to the bank, and to make such arrangements as may facilitate that object, and to do any thing in relation thereto that an attorney may lawfully do. If an affidavit is to be made stating the precise sum due by a debtor to the bank he is the proper officer to make it. Trenton Bauk v. Haverstick, 6 Hals. 172; Mix v. Andes Ins. Co., 74 N. Y.55; Shaft v. Phoenix Mut. Life Ins. Co., 67 id. 549; Angell & Ames 'on Corp., §§ 299, 366. Parkhurst v. Citizens' National Bank of Baltimore. Opinion by Robinson, J.

TRUST AND TRUSTEE-REMOVAL-BREACH OF TRUST -FRAUD.-A testatrix bequeathed to A. a conditional legacy of $3,000, and after sundry bequests to other persons devised the residue of her estate in trust for the benefit of P. for life, with remainder to his children. On a bill filed by A. against M., as substituted trustee under the will, to compel the payment of his legacy, a compromise was effected by which A. agreed to settle his claim for $1,100. This sum was accordingly paid to him by M., and upon its receipt he gave M. a release for $3,360. After the payment of $1,100 to A., and A.'s release of the whole legacy, further proceedings were had, upon which, and upon the admission and testimony of M. that the personal estate was found insufficient to pay the whole of said legacy, a decree was passed for the sale by M. of certain ground rents belonging to the trust estate. M. was afterward removed from the trust, and in accounting with the trustee appointed to succeed him he claimed that the difference between the $1,100 actually paid in settlement of the legacy and the sum of $3.360 for which the release was given, was in fact paid by him to P., the tenant for life of the trust estate. Held (1), that as against the incoming trustee representing the parties in remainder, M. could not rely on a breach of trust committed by himself, although committed with the assent of P., the equitable tenant for life. No principle is better settled than that a cestui que trust will not be permitted to set up a breach of trust to which he has assented, and the fruits of which were received by him. Walker v. Symonds, 3 Swanst. 64; Brice v. Stokes, 11 Ves. 326; Nail v. Punter, 5 Simons, 555; Booth v. Booth, 1 Beavan, 125; Lincoln v. Wright, 4 id. 427. (2) That it was the duty of M. as trustee to preserve and protect the trust estate for the benefit of all the parties in interest, and he had no right to permit the life tenant to receive and waste the corpus of the estate. (3) That the compromise of the legacy was a compromise which inured to the benefit of the trust estate; and the subsequent sale of the ground rents, on the pretense that the sale was necessary to pay a large balance still due on the legacy, was a fraud upon the cestuis que trust. (4) That as against the new trustee, representing the cestuis que trust under the will, it was no answer to say that the money derived from the sale of the ground rents was paid to P., the tenant for life. (5) That in accounting with the new trustee all that M. had a right to claim of the $3,360 was the $1,100 actually paid by him in the settlement of the legacy. Mitchell v. Colburn. Opinion by Robinson, J.

BROKER-COMMISSIONS WHEN ENTITLED TO.-It is well settled by the authorities generally, and in this State, that a broker is entitled to his commissions if the sale effected can be referred to his instrumentality. It is also the established law, that after negotiations begun through a broker's intervention have virtually culminated in a sale, the agent cannot be discharged so as to deprive him of his commissions. Keener v. Harrod et al., 2 Md. 63; Tinges v. Moale, 25 id. 480; Jones v. Adler, 34 id. 440; Attrill v. Patterson, 58 id. 226. The ruling in this case does no violence to these principles, and is in harmony with the authorities cited.

There were confessedly two brokers intrusted with the sale of the property by Miller. Neither had exclusive authority. Each has negotiated with the same person who ultimately buys. The terms first offered through the plaintiff were not accepted; and the offer made by Stayman was rejected; and there is evidence tending to show entire abandonment of the idea of investment in that property until negotiations were renewed by the instrumentality of McSherry and White; after which the property was sold on the same terms as originally offered, except the modification of $100 more per annum for the lease taken by Miller for five years from the purchaser. The whole question whether the sale was really effected in consequence of what plaintiff did in first bringing the parties into ne gotiation, or whether the negotiations through him were bona fide broken off, and abandoned by Stayman, and the sale finally effected wholly through the influ ence of others, was, we think, fairly presented to the jury. Livezy v. Miller. Opinion by Irving, J.

VENUE-CRIMINAL CASE EXPENSE OF REMOVALWhere the case of a party charged with a criminal offense is removed to another county for trial, the sheriff of the county to which the case is removed is the proper person to take charge of the removal of the prisoner. The commissioners of the county to which the case is removed have the power, in the absence of any statute regulating it, to allow the sheriff a reasonable sum for the removal of the prisoner. If the circumstances of the case be such as to call for extra care in guarding the prisoner, and keeping him safely to answer the charge against him, and in the opinion of the sheriff the unguarded jail is not sufficient for that purpose, it is his duty to guard it; and the expense of such guard must be borne, not by the sheriff personally, but by the community, for whose protection the prisoner is confined. If any authority is required for a proposition that seems to us so plain, it can be found in the case of Hart and others v. Commissioners of Vigo County, 1 Carter (Ind.), 309, which was a case almost precisely like the one at bar, and in which the court said that the expense of guarding the jail must be considered necessary and consequent upon the change of venue, and must be paid by Vigo county (from which the case was removed), and that the fact that Vigo county had a good jail was immaterial. The commissioners of the county where the case is tried have the same power to determine the proper allow ance to be made for removing the prisoner from the place where he is tried to the penitentiary, that they have to determine the allowance for his removal to the place of trial. Mayor, etc., v. Howard Co. Commrs. Opinion by Stone, J.

PARTNERSHIP-CONTRACT UNDER SEAL-POWER OF ONE PARTNER TO EXECUTE-VARIANCE-WAIVER OR ABANDONMENT-PAROL EVIDENCE.-The law is too

firmly established to admit of doubt, that one partner under seal, in the firm name and style, simply by vir cannot bind his co-partner by signing an instrument tue of his authority as partner. In such case, to make the instrument binding on the partner not signing in person, it must appear that there was either a previous authority, or a subsequent ratification by such partner, either express or implied, whereby he has adopted the signature as binding upon him. This is the rule as we find it stated in the authorities upon the subject, and it has been fully recognized by this court upon more than one occasion. Smith v. Stone 4 G. & J. 310; Albers v. Wilkinson, 6 id. 358. In some of the American cases the rule has been spoken of as rigid and technical; but as said by Judge Story (Story on Part., § 121), the main struggle has been, not so much to contest the doctrine of the common law, that an authority to execute a sealed instrument does

common

not flow from the ordinary relation of partnership, as to contest the doctrine, that it requires a prior authority under seal, or a subsequent ratification under seal, to make the execution valid. The old authorities, and indeed the whole current of English decision, establish and maintain the rigid doctrine in its fullest extent. This strict doctrine however has been, by many of the American decisions, relaxed to the extent of allowing the previous authority or subsequent confirmation to be shown by parol or by circumstances; and this seems reasonable and proper to be allowed. Schmertz v. Shreeve, 62 Penn. St. 457; Russell v. Annable, 109 Mass. 72; Gibson v. Warden, 14 Wall. 244. But the general rule is maintained; and if it be true that there was no assent to the signature affixed to the articles of agreement, the covenant sued on is not the joint covenant of the defendants, as alleged in the declaration, but the covenant of Herzog alone; and hence the plea of non est factum is sustained, because of the variance. Chitty Pl. (16th ed.) 514; Pitt v. Green, 9 East, 188; Howell v. Richards, 11 id. 633. At seal law, an obligation under cannot be discharged before breach by an agreement in parol, or by any instrument not executed with the same solemnity as the original obligation. All authorities however agree that after breach, for the damages occasioned thereby, any agreement or transaction between the parties that would operate as an accord and satisfaction in ordinary cases, may be pleaded in discharge. Harper v. Hampton, 1 H. & J. 675; Kaye v. Waghorn, 1 Taunt. 428; 1 Chitt. Pl. (16th ed.) 515, 516. But this distinction is extremely technical, and in many cases it has been found to operate injustice; and consequently, in many of the courts of this country the rule has been, to a considerable extent, modified. Of the many cases upon the subject, those most frequently referred to are Fleming v. Gilbert, 3 Johns. 528; Dearborn v. Cross, 7 Cow. 48; Langworthy v. Smith, 2 Wend. 587; and the principle of the decisions in those cases was fully adopted by this court in the case of the Franklin Fire Ins. Co. v. Hamill, 5 Md. 170, 182. Among the authorities referred to with approval by this court in Hamill's case, 5 Md. 182, is 1 Roll. Abr. 453, pl. 5, setting out a case where the condition of a bond was to raise a mill, and the obligor came to the obligee and told him that everything was ready to erect the mill, and asked him when he would have him come and put it up; the obligee answered, that he would not have it, and discharged the obligor entirely of the obligation to erect the mill, and that was held sufficient to excuse the obligor from the performance. In the case of Fleming v. Gilbert, supra, it was held that evidence of a parol agreement of the obligee, to waive any further performance of the requirements of the condition of a bond, was admissible, as an answer to the action. The learned judge, speaking for the court, said: "The plaintiff's conduct can be viewed in no other light than as a waiver of a compliance with the condition of the bond, so far as it related to a discharge of the mortgage on record; and I see no infringement of any rule or principle of law, in permitting parol evidence of such waiver. It is a sound principle, that he who prevents a thing being done, shall not avail himself of the non-performance he has occasioned. Had not the plaintiff dispensed with a further compliance with the condition of the bond, it is probable that the defendant would have taken measures to ascertain what steps were requisite to get the mortgage discharged of record, and would have literally complied with the condition of the bond." And the learned judge then refers to the case in 1 Roll. Abr. 453, pl. 5, to which we have referred. The principle of the decision in Fleming v. Gilbert has not only been fully approved and followed by this court in Md. 182, but it has been

followed in many other cases, and has but recently been cited with approval by the Supreme Court of the United States, in the case of the Canal Co. v. Ray, 101 U. S. 522, 527 That tender of performance, or waiver

of performance, of a condition or covenant under seal may be shown by parol evidence, was expressly held in the case in 5 Md. 170; and waiver or abandonment is what was sought to be shown in this case. Herzog v. Sawyer. Opinion by Alvey, C. J.

CALIFORNIA SUPREME COURT ABSTRACT.

EVIDENCE-CLOSING SHOP-DAMAGES-VALUE EXEMPTION-TRESPASS.-In an action to recover damages for closing a barber shop, evidence as to the wages of the men employed is inadmissible to determine the profits. The wages usually remain the same whatever the profits, and the evidence is moreover incompetent as not being the best evidence available. "The value of an offer' depends upon too many considerations to allow it to be used as a test of the worth of the property." Fowler v. Com'rs, 6 Allen, 96. The testimony of the witness, Coleman, stands upon a different footing. In testifying to his own opinion of the value of the property, he spoke of an offer made by himself. In Perkins v. People, 27 Mich. 389, and Dickinson v. Pittsburgh, 13 Gray, 554, it is intimated that evidence of this nature tends to prove the sincerity of the opinion of the witness, and is admissible. An instruction was given to the effect that if the property was exempt the defendant was a trespasser ab initio. There are cases which held that way. But in California, and many other States, the right of exemption is held to be a personal privilege, which if not claimed, is waived by the debtor. In this State we have been accustomed to proceed under the latter rule, and we prefer it, certainly in cases where the property is not of a class wholly exempt, because it is equally beneficial to the debtor and at the same time affords a protection to the officer. The reason of the rule is well expressed in Twinam v. Swart, 4 Lans. 264. "Prima facie all property is liable to execution, and it was the duty of the constable, in the first instance, to make the levy. He cannot know intuitively that property is exempt, nor indeed, that exemptions will be claimed if it is. * * *It would be intolerably oppressive to place the constable in the dilemma of liability to an action if he refuses to levy his execution, and to an action of trespass if he does." Hammersmith v. Avery. Opinion by Belknap, J. [Decided Jan. 23, 1884.]

ELECTION-EVIDENCE-BALLOTS-TAMPERING-BURDEN OF PROOF.-In cases of contested elections, the ballots themselves, if rigorously preserved, are the highest and best evidence, and the burden of proof is on the contestant to prove that they have not been tampered with, and not upon the defendant to show that they have been fraudulently disturbed. It is error for the court to assume that the ballots had been undisturbed because it was not satisfied from the evidence that actual fraud had been committed. Mr.

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Justice Cooley says: "The returns of the canvassing boards are prima facie evidence in the courts. * * If however the ballots have not been kept as required by law, and surrounded by such securities as the law has prescribed, with a view to their safe preservation, as the best evidence of the election it would seem that they should not be received as evidence at all, or if received, it should be left for the jury to determine, upon all the circumstances of the case, whether they constitute more reliable evidence than the inspector's certificate, which is usually prepared immediately on the close of the

election, and upon actual count of the ballots as then made by the officers whose duty it is to do so." Const. Lim. side p. 625. McCreary, in his work on Contested Elections, p.209, lays down the rule: "Before the ballotboxes should be allowed in evidence to overturn the official count and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law; that they have not been exposed to the public, or handled by unauthorized persons, and that no opportunity has been given for tampering with them. If this is believed to be a rule founded upon a presumption that a fraud or crime has been committed, the answer is that the rule does no more than make choice between two presumptions of law, which in this instance come in conflict, and cannot both prevail." In People v. Livingston, 79 N. Y. 290, the Court of Appeals held the trial court erred in charging the jury, that to justify the rejection of the ballots as proof, it must appear affirmatively, by direct evidence, or from circumstances, that the ballot-boxes had been interfered with and fraud committed, Church, C. J., saying: "The error is in putting upon the party against whom the ballot-boxes are introduced, the onus of proving that they had in fact been tampered with. **The burden was upon the relator to satisfy the jury that the boxes had remained inviolate; the returns are the primary evidence of the result of the election. * * * The returns may be impeached for fraud or mistake, but in attempting to remedy one evil we should be cautious not to open the door to another and far greater evil. After the elec tion it is known just how many votes are necessary to change the result; the ballots themselves cannot be identified-they have no ear-marks. * * * Every consideration of public policy, as well as the ordinary rules of evidence, require that the party offering this evidence should establish the fact that the ballots are * * genuine. * If the boxes have been rigorously preserved, the ballots are the best and highest evidence, but if not, they are not only the weakest, but the most dangerous evidence. The jury might not be satisfied with the proof of identity, and yet be unable to find from the evidence that actual tampering or

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RECENT ENGLISH DECISIONS.

MARRIAGE-DEED OF SEPARATION-COVENANT TO PAY ANNUITY - "MOLESTATION A DEFENSE.-In a deed of separation between the defendant and his wife and under which the plaintiff was trustee, the defendant covenanted to pay to the plaintiff 500l. per annum during the joint lives of himself and his wife; and the plaintiff covenanted that the defendant's wife should not at any time thereafter molest the defendant. The plaintiff brought an action to recover 475l. for arrears of the annuity, and the defendant pleaded as a defense that his wife had molestd him, and counterclaimed for damages. The jury found that there had been molestation, and assessed the damages at 100. Held, that the covenants were not independent, and the jury having found that there had been molestation, the defendant had succeeded in establishing his defense, and was entitled to judgment upon the claim and upon the counter-claim, without damages. Held, also that the conduct charged against the defendant's wife was consistent with molestation, and might be found by the jury to be molestation, if they considered it proved, using the word "molestation" in the sense of injury knowingly, and without lawful excuse inflicted upon another in his person, character, social position or property. High Ct. Just., Q. B. Div. March 11, 1884. Fearon v. Aylesford. Opinion by Day, J. [50 L. T. R. (N. S.) 598.]

WILL-POWER UNDER MARRIAGE SETTLEMENT—" ISSUE"-ELECTION.-The word "issue" may bear different interpretations in different parts of the same deed, and it is not an inflexible rule, that because the word evidently means "children" in the proper sense of the term in one part of a settlement, it must be necessarily so construed in another part of the document. See Wyth v. Blackman, 1 Brown. Sen. 196; Harrison v. Symons, 14 W. R. 959. By a marriage settlement the wife received a power to appoint certain property by her will among the issue of the marriage, and it was provided that in default of such appointment the property was to be held in trust for the issue of the mar

JUDICIAL SALE-SUBJECT TO EXISTING MORTGAGEKEEPING LIEN ALIVE.-Where the purchaser at an execution sale takes, subject to an existing mortgage, any party in interest (not the principal debtor) may pay off the mortgage, and even though it be discharged and satisfied of record, may keep the lien alive so far as is necessary for his equitable protection, as though he took merely an assignment of the mortgage. The rights acquired by the purchaser at the execution sale are not affected by the assignment of the mortgage, either in fact or by operation of law. "In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem, for the purpose of protecting such interest, and who is not the principal debtor primarily, and, absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection.” 3 Pom. Eq. Jur., § 1212. And this equitable result follows, "even though a receipt was given speaking of the mortgage debt as being fully paid, and sometimes even though the mortgage itself was actually discharged and satisfied of record." Id., § 1211. Matzen v. Shaeffer. Opinion by Sharpstein, J. [Decided Feb., 1884.]

twenty-one years and for daughters at that age or marriage, and that in the event of there being but one child issue of the marriage, or only one should live to become entitled, the property should be held in trust for such only or such surviving child, and if there should not be any issue of the marriage or no issue thereof should live to become entitled, then upon the other trusts. Held, that the word "issue" in the power of appointment was to be strictly construed as referring to children of the marriage. In re Hopkins' Trusts, 9 Ch. Div. 131, which was a case of a will, Hall, V. C., said that he must decline to speculate as to probable intentions. He says: "I cannot guess, but must do my best to construe the instrument upon the words themselves;" and then he says: "Taking the words as I find them, the true interpretation is that the word 'issue' was used by the testator in the sense of 'children,' and he has, I consider, thus explained himself." The wife by her will appointed part of the fund upon trust for one of her sons for life, with remainder to his children who should attain twenty-one years; and she further bequeathed certain property, not within the settlement, to the persons entitled under the settlement in default of appointment. Held, that since the appointment was ex facie void for remoteness, the will was to be read as if it were not contained therein, and the persons entitled under the settlement in default of appointment were not put to their election. High Ct. Just., Chan. Div. Feb. 16, 1884. Matter of Warren's Trusts. Opinion by Pearson, J. [50 L. T. Rep. (N. S.) 453.]

The Albany Law Journal.

ALBANY, OCTOBER 4, 1884.

CURRENT TOPICS.

than the reproduction of Mr. Chaney's head-notes, for they are concise enough, and at the same time generally save the trouble of turning to the case. The same, we think, may correctly be said of the indexes of the American Reports. Taking the last nine volumes of this series, which report probably some 1,600 or 1,700 cases, the indexes, which merely

Reports, the Chicago Legal Adviser says the syllabi "deal too much with the facts of the cases, and the index is nothing but a redistribution of the points of the syllabi, a most vicious system of reporting." In regard to the construction of a headnote it is our belief that head-notes usually deal too little with the facts of the cases, and too much with the steps of the argument by which the court arrive at the conclusion. In our opinion a head-note ought to consist neither in a series of legal formulas, nor in a bare and detailed statement of the particular facts, but that it ought to state the facts very concisely, where that is reasonably practicable, with the legal conclusion; or when the facts are too intricate for convenient statement, to impregnate the statement of the legal conclusion with the leading facts. The latter course is sufficient in a majority of instances, perhaps. But unless the facts are stated or rendered inferable, the head-note is apt to degenerate into a statement of legal truisms, and to get any idea of what the decision is, the statement of facts and the opinion must be read. The head-note ought to be a minute photograph of the case and decision. There are a few reporters who know how to do this.

An eminent and admirable example is Mr. Chaney of Michigan, who makes the most concise head-notes in this country, and generally all-sufficient and admirable ones. We can hardly remember a head-note of his that could be improved. We seldom see any head-note by any other reporter that could not be improved. Our own theory of syllabus-making is illustrated in the American Reports, the head-notes of which are certainly concise, which generally state or infer the ruling facts, and which never give the logical steps of the argument. It is a very much more difficult thing, however, to construct a head-note originally than to improve on one already constructed, and in preparing the American Reports we have the advantage of seeing what has already been done by the State reporters. We regard Mr. Sickels' head

notes as far above the average in merit. It must be remembered that he frequently has cases of great intricacy and novel characteristics to report.

As to the construction of an index, we agree with the Adviser, that merely reproducing the statements of the syllabi is generally a vicious system. But it would not be a bad system if the headnotes were constructed as we have suggested. No better index for Michigan Reports can be devised VOL. 30 No. 14.

an average of about 37 pages. We have had fault found with us by one or two lawyers who seem to measure their law by the yard, because these indexes are so short, whereas the indexes of some of the State reports are twice as long! This reminds us of the preacher who apologized for the excessive length of his sermon by saying that he had no time to make it shorter. The art of making things short is difficult but very useful.

The Adviser also remarks in the same paragraph: 'Among the cited cases we notice only one case from the Breese reports, and the citation is found in a dissenting opinion. We had occasion for some time to examine the lists of cases cited in this court, and find, to our regret, but few citations from the Illinois reports." This gives us leave to say that the Illinois reports are less cited generally in the east than those of any other State of any thing like its importance. It may be said without vanity that our State is and always has been more in the habit of furnishing law for other States than of borrowing it from them. Our State is not alone in this respect. The Pennsylvania judges seldom cite any reports but their own. The Massachusetts judges, since Chief Justice Gray's departure, do not travel much abroad in their citations. These three States are perhaps the most affluent and influential sources of American law. At the risk of bringing down the Adviser and the Chicago Legal News upon us, we will further say that considering the enormous wealth and business activity of Illinois, we find her law reports singularly uninteresting. This is no new reflection of ours. We have felt the conviction for a long time in making selections for the American Reports, and have wondered why the fact should be. But we are free to maintain that in comparison with any of the New England States, with any of the middle States, except Delaware, with Ohio, Michigan, Wisconsin, and perhaps Iowa, the judicial decisions of Illinois are singularly uninteresting. This is, of course, not the fault of the bar or bench, nor of the reporter.

The Canadian Law Times has the following on judicial notice, entitled "Judicial Ignorance: ' "We do not intend to attribute ignorance to any member of the bench. Far from it. But we contend that a learned man when he takes his seat on the bench is not called upon to make himself judicially ignorant of the ordinary affairs of life. In a judgment lately delivered by Mr. Justice Rose, which was printed in the newspapers, his lordship is reported as having put the question: 'Am I to take