mortgagor is concerned, how can it be possible that the security which the mortgagee saw fit in his original contract, and in fact the only contract he has made, to take for the payment of his debt, can be increased by the subsequent action of the mortgagee, at least so as to bind a stranger to the original contract? It must be conceded that no action of the mortgagee could lessen or destroy the security of the mortgagor, and it is just as illogical to conclude that the action of the mortgagor by transfer to a third party can increase said security. The court in Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. Rep. 494, admits the general doctrine that in equity, as at law, the contract of the purchaser to pay the mortgage, being made with the mortgagor and for his benefit only, creates no direct obligation of the purchaser to the mortgagee, but states that it has been held by many State courts of high authority, in accordance with the suggestion of Lord Hardwicke in Parsons v. Freeman, 1 Amb. 116, that in a court of equity the mortgagee may avail himself of the right of the mortgagor against the purchaser.' This suggestion, it seems to me, is exactly in conflict

with the rule above stated, but the court says: "This result has been attained by a development and application of the ancient and familiar doctrine in equity that a creditor shall have the benefit of any obligation or security given by the principal to the surety for the payment of the debt.' To my mind, there has been no development here at all, but one doctrine is squarely opposed to the other, both in reason and effect. To allow a mortgagee to bring an action against a stranger to the contract, and obtain against him a deficiency judgment, thereby increasing the security which he was entitled to under his contract, is opposed to every well-established principle of law; and I cannot consent to it until it becomes the established rule of law in this State."

NOTES OF RECENT DECISIONS.

violated by the extension of an open porch over that line, is in conflict with the rulings of the Supreme Court of Pennsylvania in Ogontz Land & Imp. Co. v. Johnson, 31 Atl. Rep. 1008, and of Massachusetts in Reardon v. Murphy, 40 N. E. Rep. 854. The case of Graham v. Hite, 93 Ky. 474, is in line with the Illinois case.

ACTION-TRANSITORY-CONFLICT OF LAWS. -A cause of action for personal injuries to a railroad employee in Mexico, although transitory, is denied enforcement in Texas in the case of Mexican Nat. R. Co. v. Jackson (Tex.), 31 L. R. A. 276, on the ground that the statutes of the two countries are so materially different that the Texas court cannot attempt to adjudicate the rights of the parties. Among the peculiar Mexican laws governing the case is the right to what is called extraordinary indemnity in a sum which the judge may deem proper, considering the plaintiff's social position, and also the right to additional damages or a reduction from the original recovery by subsequent judgments in case the condition of the party changes.

CREDIT INSURANCE-UNCOLLECTIBLE DEBTS -CONTRACT.-The Circuit Court of Appeals for the second circuit holds, in Tebbets v. Mercantile Credit Guarantee Co., 73 Fed. Rep. 95, that the contract by which a corporation undertakes in consideration of premiums paid, to indemnify the other party to the contract against losses by uncollectible debts, is not a contract of suretyship, but of insurance, in spite of the fact that the corporation calls itself a "guarantee" or 'surety" company; and as such is subject to the rule that any ambiguities in the policy drawn up by the insurer, who makes his own conditions, are to be resolved against the draftsman; and accordingly that in a policy by which the company agrees to purchase from the insured an amount of uncollectible debts not exceeding $15,000 in excess of onehalf of one per cent. of their total gross sales and deliveries, a provision that "the contract is issued on the basis that the yearly sales

000, but that the insured might recover from the insurer his losses, not exceeding $15,000, in excess of one-half of one per cent. on his actual total of sales and deliveries during the year.

The Su

SALE RESCISSION BY SELLER-STOPPAGE IN TRANSITU INSOLVENCY OF PURCHASER ELECTION OF REMEDIES.-Two courts have recently decided interesting questions as to the law of sale and rescission thereof on account of the insolvency of the purchaser. preme Court of Iowa holds in Kearney Milling & Elevator Co. v. Union Pac. Ry. Co., 66 N. W. Rep. 1059, that a seller of grain on credit, who learns, while it is in transit, that the buyer is insolvent and intends to get possession with intent to defraud, may rescind the sale (Deemer, J., dissenting); that where a seller of grain, on learning that the buyer is insolvent and intends to get possession with intent to defraud, elects to rescind the sale, and stops the grain in transit, he cannot thereafter claim that by the stoppage he acquired a lien for the price as against one to whom the bills of lading had been transferred by the buyer as collateral (Deemer, J., dissenting); that evidence that a seller of grain on learning of the insolvency of the buyer, ordered the carrier not to deliver it to the consignee, stopped the grain in transit and sold it as his absolute property, with full knowledge of all the material facts, sufficiently shows an election to rescind the sale (Deemer, J., dissenting); and that a seller, on rescinding a sale and stopping the goods in transit, should give notice to the buyer of an intention to resell (Kinne, J., dissenting).

The Supreme Court of Wisconsin decides in Jeffris v. Fitchburg R. Co., 67 N. W. Rep. 424, that evidence that a corporation failed to pay a claim for lumber sold for more than 10 months after it became due, and after demand therefor had been made; that the seller, while endeavoring to collect the claim, found that there was no such corporation located at the place given in the order for the lumber as its place of business, and that its name was not in the city directory, sustains a finding that it was insolvent, so as to justify the seller in stopping the goods in transit; that evidence that lumber was delivered to a carrier for transportation to the consignee, and that the com

pany had piled it in a shed after it had reached its destination, and held it for payment of freight and charges, under a local custom allowing the consignee to take possession on payment of such freight and charges, shows that the lumber was in possion of the company as a carrier, and not as a warehouseman, or as the agent of the consignee; so that a stoppage in transit for insolvency of such consignee was permissible, and that the delivery of part of a consignment of lumber which had been held by the railroad company for freight and other charges will not operate as a delivery of the whole consignment in the absence of a clear showing of an intention to that effect.

CRIMINAL LAW-SEIZURE OF PAPERS-COMPELLING DEFENDANT TO CRIMINATE HIMSELF. -In a recent issue of this JOURNAL we published an interesting article on the subject of the "Admissibility of Evidence Illegally Obtained." A question of that character recently came before the Supreme Court of Connecticut in State v. Griswold, 34 Atl. Rep. 1046. The prosecution was for arson, and it appeared that defendant had been carrying on a clandestine correspondence, under an assumed name, with a woman, and that the night before the fire he had taken from his office a picture of the woman, and mailed it to himself, under such assumed name. After his arrest, police officers went to his new office, and without warrant, but by consent of his assistant, whom they found in charge, searched for and seized the envelope in which the picture was mailed. It was held that there was not an unreasonable seizure, within the meaning of Const. art. 1, § 8, providing that all people shall be secure in persons, houses, papers, and possessions, from unreasonable searches or seizures, and that admission in evidence of the envelope and its contents thus taken by the police officers was not error, as being in violation of the provision of Const. art. 1, § 9, declaring that no one shall be compelled to give evidence against himself. The court said:

A constitution is that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised, and its provisions are the rule of conduct for those branches of the government which exercise the sovereign power. Both the sections cited by the defendant have reference to the security of the citizen as to his possessions, and as to his person. The eighth section forbids the legisla

ture to enact any statute, and the courts from passing any rule, which would authorize any unreasonable search or seizure of the goods of a citizen, and the ninth forbids any legislation or rule of court which would compel any one accused of a crime to give evidence against himself. In this respect neither of the sections so cited has any application to this case. The act of the police was not directed, nor is it sought to be justified, by any statute, or by any rule of any court. The theory of the defendant is that that act was a trespass. For the present purposes, that theory may be granted to be the true one. And what then? The police officers would be liable, in a proper action, to pay to the defendant all damage they had done him. But that consequence does not affect the question now before us. It does, however, show that the eighth section of article 1 has no bearing upon the facts of this case. Indeed, the defendant hardly claims that the eighth section alone affects his objection. But he does claim that a search or a seizure may be so made that the production in evidence of any of his goods or possessions taken is to compel the accused to furnish evidence against himself, and in that way to become a violation of the ninth section of the first article of the constitution. This might be the result where the private papers of a suspected person were seized in order to be read to the jury as incriminating evidence against him. To reach this result the word "papers," in the eighth section of article 1, must be taken to mean writings,-not pieces of paper, as mere inanimate goods, but papers on which are written or printed words that may be shown in evidence as the words of the suspected man. In this sense a search or seizure of the "papers" of a citizen might be unreasonable, because it might lead to a violation of the provisions of the ninth section. In Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524, an act of congress was held to be unconstitutional because it required the party to produce his books. invoices, and papers, and because the "entries" in the books, invoices, and papers so produced were to be made evidence against him. See, also, Ord. Const. Leg. 247; 1 Hare, Const. Law, 531. It was against the seizure of "papers," using that word in the sense just mentioned, that the vigor of Lord Camden's opinion in Entinck v. Carrington, 19 How. State Tr. 1029, was directed. The package here shown to the jury was an envelope with certain inclosures,-a simple piece of the defendant's personal property; having of itself no voice or meaning, so far as his guilt or innocence was concerned, any more than if it had been a lump of clay, or a block of senseless wood. It made no statement. It gave no evidence. Its presence or absence on the trial, if it had stood alone, would have signified nothing. It was his conduct in respect to this piece of property, both before and after the fire,-his extreme solicitude to save it from destruction,-which was incriminating. This conduct was detailed to the jury by sundry witnesses, and to their testimony no objection was made. We think no constitutional provision was violated by permitting the jury to see the en

61, 36 N. E. Rep. 677; Chastang v. State, 83 Ala. 29, 3 South. Rep. 304; Spicer v. State, 69 Ala. 159; Sampson v. State, 54 Ala. 241; Siebert v. People, 143 Ill. 571, 32 N. E. Rep. 431; Gindrat v. People, 138 III. 103, 111, 27 N. E. Rep. 1085; Painter v. People, 147 Ill. 444, 466, 35 N. E. Rep. 64.

VENDOR AND PURCHASER-IMPLIED LIEN FOR PURCHASE MONEY.-The Supreme Court of Oregon decides, in Frame v. Sliter, 45 Pac. Rep. 290, that a grantor of real estate by absolute dee, followed by delivery of possession to the grantee, has no implied equitable lien for the unpaid purchase money. The court says:

It has been several times mooted in this court, but the doctrine of the English court of chancery, which recognizes and upholds such lien, has never been recognized or established here, although the State is classed by many text writers among those in which the lien prevails. The earliest case in which reference is made to the question, and the one most strongly relied upon to sustain the doctrine, is Pease v. Kelly, 3 Or. 417; but the court in that case only decided that, by taking a mortgage to secure the payment of purchase money, the vendor waived the equitable lien, and therefore could not maintain the suit. Nothing more was in fact decided in that case, although it is stated in the opinion that "the lien exists if there is no higher security." It is next referred to in Kelly v. Ruble, 11 Or. 75, 4 Pac. Rep. 503, where the court, after disposing of the case on other grounds, say: "We have thus far impliedly admitted the existence of the equitable lien of a vendor of real estate for the unpaid purchase price. But we doubt the actual existence of the lien in this State. Ahrend v. Odiorne, 118 Mass. 261; Kauffelt v. Bower, 7 Serg. & R. 64. It is not believed the existence of such a lien was decided in Pease v. Kelly, 3 Or. 417." The question again arose in Gee v. McMillan, 14 Or. 268, 12 Pac. Rep. 417; and Mr. Justice Strahan puts his decision in that case squarely on the doctrine of the existence of a grantor's lien, but Chief Justice Lord dissents in toto, and Mr. Justice Thayer, while concurring in the result upon other grounds, expressly disclaimed any intention to decide whether the principles upon which the doctrine is supposed to be founded are broad enough to "uphold a vendor's lien to the extent of raising a trust in favor of a grantor who bas conveyed by deed of absolute conveyance, so as to admit of the purchase price being made a charge upon the property conveyed, in an ordinary case of real es tate." In Lewis v. Henderson, 22 Or. 548, 30 Pac. Rep. 324; Thomas v. Thomas, 24 Or. 254, 33 Pac. Rep. 565, and Jones v. Gates, 24 Or. 415, 33 Pac. Rep. 989, where the doctrine is again referred to, the court carefully avoided approving it even by inference. From these decisions it is apparent that it has never

understood as possible, and to facilitate its transfer, by discouraging all secret or latent equities, and requiring all conveyances thereof and incumbrances thereon to be made a matter of public record.

The doctrine seems to have been borrowed by the English courts of chancery from the civil law, as a means of evading the rule of the common law under which land was not liable, both during and after the life of the debtor for simple contract debts, and after the reason for its original adoption had ceased to exist, was enforced upon the ground that the previous decisions had "the effect of contract, though no actual contract had taken place." Mackreth v. Symmons, 15 Ves. 329. Many of the courts of this country, following the English cases, have adopted the rule; but they have never been able, in our opinion, to place the doctrine upon any satisfactory principle applicable to the condition of affairs in a country where real estate is one of the principal articles of commerce, and liable for the debts of the owner, and in which a system of registration prevails. The doctrine has been variously stated to rest upon natural equity, a supposed intention of the parties, a trust arising out of the vendee's holding the land without paying the price, the implied agreement of the parties, and an equitable mortgage. But, manifestly, it cannot be supported as an equitable mortgage, because there is no pretense in such cases that there was any agreement for security on the land, which isessential to an equitable mortgage; nor can it be supported as a trust, for a constructive trust cannot arise from the mere breach of a contract to pay money in the absence of fraud; nor on the ground of an implied agreement, because, as said by Mr. Justice Gibson, in 7 Serg. & R. 76, "the implication that there is an intention to reserve a lien for the purchase money, in all cases where the parties do not, by express acts, evince a contrary intention, is, in almost every case, inconsistent with the truth of the fact, and in all instances, without exception, in contradiction of the express terms of the contract, which purports to be a conveyance of everything that can pass." Nor do we think it can now be put upon the natural equity "that a person having got the estate of another shall not, as between them, keep it, and not pay the consideration," because there is no reason for a resort to equity in this country, where real estate is liable to seizure upon attachment and execution, and the courts of law afford a creditor a speedy remedy for the enforcement of his claim. And, besides, "it is inconsistent with natural justice," quoting again from Mr. Justice Gibson, in the case referred to, "that a vendor who publishes to the world, by the terms of his deed, that he has parted with his whole interest, and has trusted to the personal security of the vendee, should become the ob ject of special protection against the consequences of his own negligence, and that, too, at the expense of a third person, who, in purchasing from the vendee, even with notice that the purchase money was unpaid, has been guilty of nothing positively immoral or even unconscionable." If a vendor sells and conveys real estate, and, either through negligence or overconfidence, choses to rely upon the personal security of his vendee for the purchase money, he has no special claim to the aid of a court of equity to protect him from the consequences of his own act, by enforc ing some secret lien which, in the nature of things, could be known only to himself and his vendee and such persons as they might take into their confidence, a practice which, if tolerated, would have a tendency to open wide the door of fraud and perjury.

The earliest English case which contains a full dis

cussion of the doctrine, and the reason and authorities by which it is supported, is Mackreth v. Symmons, supra. In that case, Lord Eldon was only able to determine that two points were clearly settled: (1) That, generally speaking, there is such a lien; and (2) that, in those general cases in which there would be a lien as between vendor and vendee, the vendor will have a lien against a third person with notice that the money was not paid. But, as to what would be suffi cient to make a case in which the lien would not exist, he felt obliged to declare, from the authorities, that it was "obvious that the vendor taking a security, unless, by evidence, manifest intention, or declaration plain, he shows his purpose, cannot know the situation in which he stands without the judgment of a court how far that security does contain the evidence, manifest intention or declaration plain upon that point;" and that "it has always struck me, considering this subject, that it would have been better at once to have held that the lien should exist in no case, and the vendor should suffer the consequences of his want of caution, or to have laid down the rule the other way so distinctly that the purchaser might be able to know, without the judgment of a court, in what cases it would, and in what cases it would not, exist." And, although the doctrine of the English court of chancery has been the subject of much learned discussion in this country, it is no more satisfactory now than it was in Lord Eldon's time. Indeed, it is much less so. From the very nature of the lien itself, there can be no fixed rules concerning it. It is "a mere creature of a court of equity, which it molds and fashions according to its own purposes," and "has no existence until it is established by the decree of a court in the particular case, and is then made subservient to all other equities between the parties." Story, J., in Gilman v. Brown, 1 Mason, 191, Fed. Cas. No. 5,441. And Mr. Justice Potter says: "Its existence depends upon and is controlled by no settled rules, but, on the contrary, the existence of the lien is generally made to depend upon the peculiar state of facts and circumstances surrounding the particular case; that is, whether or not a case of natural equity is established, and, if so, whether it is not made to yield to higher or superior equities in some other person-whether the party is not to be regarded as having waived it, or as having intended to waive or postpone it to another equity, or whether by the acts or omissions to act, or by the neglect of the party claiming such lien to enforce it within a reasonable time, the right is not lost, as being the superior claim. These considerations control and vary the result as equity demands." Fisk v. Potter, *41 N. Y. 64.

Under the authorities, it would seem that, where the doctrine prevails, each case must be determined upon its own peculiar circumstances, according to the views of the chancellor and the weight of the argument at the bar; so that it is impossible to tell, without the judgment of a court, whether the lien does or does not exist. It may be well doubted whether any subject connected with the American law of real property has provoked more judicial discussion and controversy, and is now in a more chaotic state, than the doctrine of a grantor's lien where such lien is held to exist. There is hardly a rule upon the subject which has not been somewhere denied, and hardly any two States agree upon the essential points of the doctrine. "No other single topic belonging to the equity jurisprudence," says Mr. Pomeroy, "has occasioned such a diversity and even discord of opinion among the American courts as this of the grantor's lien. Upon nearly every question that has arisen as to its opera

tion, its waiver or discharge, the parties against whom it avails, and the parties in whose favor it exists, the decisions in different States, and sometimes even in the same State, are directly conflicting. It is prac tically impossible to formulate any general rules representing the doctrine as established throughout the whole country." 3 Pom. Eq. Jur. § 1251. Indeed, the remark attributed to Lord Mansfield, that, "the more we read, the more we shall be confounded," is peculiarly applicable to the condition of the law upon this question. It has been adjudged that the lien does not exist under any circumstances after an absolute conveyance, by such able jurists as Mr. Justice Gray, of Massachusetts (now of the Supreme Court of the United States), Gibson, of Pennsylvania, Nash and Ruffin, of North Carolina, Crozier, of Kansas, Shipley, of Maine and Maxwell, of Nebraska, to whose opinions in Kauffelt v. Bower, 7 Serg. & R. 64; Ahrend v. Odiorne, 118 Mass. 261; Womble v. Battle, 3 Ired. Eq. 183; Simpson v. Mundee, 3 Kan. 172; Philbrook v. Delano, 29 Me. 410; Edminster v. Higgins, 6 Neb. 265-we refer for arguments which seem to us conclusive against the existence of such a lien. In some of the States it has been adopted by the courts, and afterwards abolished by the legislature; and in others, although the courts have felt bound to follow earlier cases, it has of late years been done with expressions of regret that such liens were ever admitted in this country, where registration is so generally provided for and practiced.

In courts of the United States the doctrine has been recognized where established by the local laws of different States (Rice v. Rice, 36 Fed. Rep. 858); but it does not seem to have been looked upon with favor, if we may judge from the remarks of Mr. Chief Justice Marshall, in Bayley v. Greenleaf, 7 Wheat. 51, that "it is a secret invisible trust, known only to the vendor and vendee, and to those to whom it may be communicated in fact. To the world the vendee appears to hold the estate divested of any trust whatever; and credit is given to him, in the confidence that the property is his own, in equity, as well as law. A vendor relying upon this lien ought to reduce it to a mortgage, so as to give notice to the world. If he does not, he is, in some degree, accessory to a fraud committed on the public, by an act which exhibits the vendee as a complete owner of an estate on which he claims a secret lien." The authorities pro and con are collated in 28 Am. & Eng. Enc. Law, 163; 3 Pom. Eq. Jur. § 1251; 2 Jones, Liens, § 1061; 1 Beach, Mod. Eq. Jur. §§ 296, 297; and note to Mackreth v. Symmons, 1 Smith, Lead. Cas. Eq. 447. And we think an examination of them and the discussion of the ques tion by the several authors will clearly show that the whole doctrine is inconsistent with the general policy prevailing in this country of making all matters of title dependent upon record evidence, so that interested parties may know whether the land is incumbered by lien without waiting for the judgment of a court, as is admittedly the case in many instances where a grantor's lien exists; that it bristles with difficulties, snares and dangers, and ought not to find lodgment in this State, where its only effect would be to render the title to real estate uncertain, embarrass its alienation, foster litigation, and offer temptation to fraud and perjury, with no substantial benefit to any one except to protect some grantor from the con

THE RIGHT OF A PARTY TO IMPEACH HIS OWN WITNESS.

Probably no rule of evidence is more familiar and yet hardly none causes more confusion than the one it is the purpose of this paper to discuss, viz.: "A party cannot impeach his own witness." This confusion is probably due in part to the fact that the word "impeach," in this connection, has a double meaning. It may refer, first, to the testimony of a witness as to whether it can be attacked or discredited, or, second, to the witness himself, as to whether he is reliable or worthy of belief. The doctrine of the common law is, that a party calling a witness recommends him as worthy of credit, and is therefore not permitted to impeach, crossexamine, or discredit him in any way. Furthermore, the law presumes that a witness is favorable to the party calling him, and leading questions cannot be put to him on the direct examination. This statement of the rules of evidence applicable to the question under discussion is, however, true only in a general way. In practice some exceptions have at different times been made or at least the rules have not been rigidly adhered to. A great deal of confusion has likewise been the result of the application of the rules in different cases.

Courts have been at a loss

to know just how much relaxation should be allowed, and the question as to how far a party may go in impeaching or discrediting his own witness has been a fruitful source of dissenting opinions. The confusion thus resulting from the application of such important principles to the introduction of evidence in the trial of cases led England, in 1853, to enact a statute upon the subject,' and at least five States of this Union, namely, Massachusetts, Indiana, Georgia, Kentucky, and Texas, have seen fit to follow her example. I find in working up the authorities that text-writers on the subject are somewhat at variance with each other, and all of them, even the later writers, seem to make statements which are inaccurate and unwarranted according to their own citations.

2

3

It will be

1 Eng. Com. Law Procedure, Act of 1853 (17 and 18 Vic.).