make a legally binding contract. Chinuock v. Marchioness of Ely, 4 De. G. J. & S. 645; Ridgway v. Wharton, 6 H. of L. Cas. 264. Where the negotiations have been conducted by parol, or are partly evidenced by writings duly signed and partly rest in parol, and specific performance is sought on the ground of part performance, the terms of the contract must appear clearly, definitely and unequivocally. But it is suffi

cient that the terms of the contract be made out in a manner satisfactory to the court. The fact that the details of the agreement are controverted by the parties will not deter the court from ascertaining what the terms of it really were and giving effect to the agreement, if the complainant shows himself entitled to a specific performance by a part performance, which shall be referable only to a part execution of the agreement. Wallace v. Brown, 2 Stock. 308. Delivery of possession by a vendor or lessor, accepted and acted upon by the vendee or lessee, is such an act of part performance by the former as to take the contract out of the statute of frauds, and to justify a decree of specific performance against the latter. Earl of Aylesford's case, 2 Stra. 783; Bowers v. Cator, 4 Ves. 91; Harris v. Knickerbacker, 5 Wend. 638. Courts of equity will refuse to exercise jurisdiction by way of specific performance in a class of special and exceptional contracts, where the terms and provisions are such that the court could not carry its decree into effect without exercising some personal supervision and oversight over the work to be done, extending over a considerable period of time, such as agreements to repair or build, to construct works, build or carry on railways, mines and the like. A contract for a lease of mines, to be worked in a specified manner, is not within this principle. The court in such cases, can grant relief at once by a decree that the lease be executed, leaving the complainant to his legal remedy thereafter for breaches of the covenants contained in it. In this case parties made an agreement for a lease for a term of years-the agreement was not in writing and signed as required by the statute of fraud — the lessee took possession, and then refused to execute a lease. On a bill by the lessor for a specific performance, held, that it was proper that it should be decreed that the lease to be executed should bear date as of the time when possession was taken. Blackett v. Bates, L. R., 1 Ch. App. 117; Rankin v. Lay, 2 De G. F. & J. 65; Pain v. Coombs, 1 De G. & J. 34. Wharton v. Stoutenburgh. Opinion by Depue, J.

INJUNCTION AGAINST FORECLOSURE OR EXECUTION SALE. A mortgagor who mortgages an embarrassed title, or whose title has subsequently become clouded, cannot, in the absence of fraud, have the foreclosure proceedings stayed on account of an apprehension that the mortgaged premises will not bring full value at a foreclosure sale. His remedy is by redemption. O'Brien v. Hulfish, 7 C. E. Gr. 471. A court of equity will ordinarily not interfere to enjoin a sale of lands under an execution against one person, the title to which is claimed by another, for the reason that such a sale will not prejudice the rights of the latter. To warrant resort to the restraining power of the court, the case must present some recognized ground for equitable relief-fraud or irreparable injury. Freeman v. Elmendorf, 3 Hal. Ch. 475, and id. 655; Jersey City v. Lembeck, 4 Stew. Eq. 255. American Dock & Improvement Co. v. Trustees of Public Schools. Opinion by Depue, J.

RECEIPT-EXPLANANTION OR CONTRADICTION OF.Receipts, though prima facie evidence of discharge of an obligation, may always be explained and contra. dicted by other evidence. Where receipts upon a bond secured by mortgage, which purport to be of money, are shown to be of the obligor's unsecured promissory

notes, the burden is upon him who claims the benefit of the discharge evidenced by the receipts, to show that such notes were accepted upon an agreement that they should operate to satisfy so much of the debt. The acceptance of notes for a pre-existing debt will not operate to discharge such debt, unless it be agreed that such shall be its effect. See Schanck v. Arrowsmith, 1 Stockt. 314; Shipman v. Cook, 1 C. E. Gr. 251; Freeholders v. Thomas, 5 id. 39; Hutchinson v. Swartsweller, 4 Stew. Eq. 205. See however Waydell v. Luer, 5 Hill, 448, and 3 Den. 410; Hill v. Beebe, 13 N. Y. 556; Feldman v. Beier, 78 id. 293. Also Myers v. Welles, 5 Hill, 463; Morris Canal Co. v. Van Vorst, 1 Zab. 109. Such receipts, if expressed to be in full, would be evidence of an acceptance of the notes in satisfaction unless explained; but if in addition it appear that the obligee was illiterate, of great age, and made her mark to the receipts, at the instance of the obligor who drew them, and who was a near relative, in whom she would have a peculiar confidence, the person claiming the discharge will be required to establish that the obligee designed and intended thereby to satisfy the debt evidenced by the bond. Swain v. Frazier. Opinion by Magie, J.

SURETYSHIP — EFFECT OF DEBTOR GIVING COLLATERAL SECURITY TO CREDITOR.—The giving of a bond as collateral security to a subsisting bond and mortgage, does not, per se, and in the absence of any ancillary agreement, operate as a suspension of the right to prosecute such bond and mortgage. A surety of the mortgagor will not be released by the mere giving of such collateral bond. See United States v. Hodge, 6 How. 279; Niemcewitcz v. Ghan, 3 Paige, 614, and 11 Wend. 312; Pring v. Clarkson, 1 B. & C. 14; Twopenny v. Young, 3 id. 208; Wyke v. Rogers, 1 De G. M. & G. 408; Cary v. White, 52 N. Y. 138. Fireman's Insurance Co. v. Wilkinson. Opinion by Beasley, C. J.

INSURANCE LAW.

FIRE POLICY - CONDITIONS IN-LOSS BY EXPLOSION CAUSED BY FIRE.-A fire insurance policy contained a clause of exemption from liability for any loss that might be sustained from certain specified causes, among which was, that "for any loss caused by the explosion of gunpowder or any explosive substance; nor by lightning (unless specially mentioned); or explosion of any kind unless fire ensues, and then for the loss or damage by fire only, which loss shall be determined by the value of the damaged property, after the casualty by explosion or lightning.' The insured property (sulphuric acid) was in a house which was prostrated during a storm. The house in falling broke the pan or acid chamber containing the acid, and the contents were thereby wasted. In an action upon the policy, held, that if the prostration of the building and consequent breaking of the acid chamber were produced by an explosion of any kind, without being caused by a precedent conflagration, within the meaning of the policy, there was no liability on the part of the defendant. That if any part of the loss sustained was occasioned by fire that ensued the fall of the building, the loss thus produced would have been covered by the policy, even though the fire had originated in an explosion. That where a fire has occurred and is in progress, the effects of which are cov ered by the policy, and an explosion takes place as an incident or result thereof - so as to increase the lossthe whole damage or loss thus produced should be regarded as within the protection of the insurance, in a case where the policy contains the exemption from liability for explosion. That it is a question for the jury to determine in all such cases, whether there has been

an explosion, how and by what means produced, and whether the loss sustained was directly caused by the explosion or by an antecedent or subsequent fire, within the risk assumed by the insurers. Authorities referred to: Stanley v. West. Ins. Co., L. R., 3 Exch. 71; Briggs v. Insurance Co., 53 N. Y. 446; Insurance Co. v. Foote, 22 Ohio St. 340. Maryland Ct. of Appeals, March 17, 1881. Transatlantic Insurance Co. of Hamburg v. Dorsey. Opinion by Alvey, J. (56 Md. 70).

CORRESPONDENCE.

MR. BACON EXPOSTULATES.

Editor of the Albany Law Journal:

In accepting the invitation (which had taken me quite by surprise) of the Bar Association, I ventured to write: "While I am a little puzzled to imagine how any thing worth saying can be said in fifteen minutes, it has occurred to me that that may be time enough to give utterance to some propositions which I have lately been considering, and from which the entire audience will inevitably dissent." Several warm expressions of approval made to me (by parol) shortly after the reading of my little paper, had led me to doubt whether I had not, after all, failed of that measure of success; but your generous criticism of last week reassured me. The brilliant animation with which you register your disapproval would tempt me to boast that

"Like an eagle in a dove-cote, I,

Fluttered your Volscians in Corioli," if only the likeness of Tweddle Hall to a dove-cote were more conspicuous; if the Bar Association resembled more closely a flock of doves; and if - but the metaphor is already so lame that it would be cruel to pursue it further. You will however suffer me to express some part of the elation I have felt in finding my hasty effort made the subject of such extensive comment in the LAW JOURNAL. The fact that it is quite misapprehended is as nothing by the side of the encomiastic terms in which its writer is mentioned. There is high authority (84 N. Y., ad initium) for holding that it feels good laudari a laudato. After reading your lively criticism I can enter consciously into the exultant joy of Jones, who declared, having just been in company with a duke: "His grace was very affable; he said to me, 'Jones, you're an ass!'"'

You

It is only fair however to suggest that you had one marked advantage in reviewing my little essay. Sidney Smith declared that he never read a book before reviewing it, because "it prejudices a man so." You were under no such intellectual embarrassment. heard the paper read no doubt, but the few phrases of limitation and qualification which it contained were not those which left a definite impression on your mind. The salient points which were driven upon the audience with such force as the speaker could command, were those which left a mark. Read the illprinted copy which accompanies this, and say whether you think that any one feels much more deeply than the writer the dignity of the science of jurisprudence, or the nobility of many who pursue its study. It was because of my profound consciousness of this that I sought to emphasize the need of a higher tone of selfrespect among the members of our profession; of a self-respect which not only will not be "a little blind " to lawyers' faults because he is a lawyer, but will indignantly denounce the shortcomings in a lawyer which might be disregarded in a layman. This proposition I still maintain as true, but not as containing all the truth. If you think it should only have been set forth with adequate limitations, consider the exigencies of a

fifteen minute paper, begun Monday noon, finished Tuesday noon and read Wednesday, The "two hundred verses " which Horace's friend boasted of having written stans pede in uno," was it to be wondered at if they halted a little, or presented a one-sided view? I cannot doubt that it was upon some such sudden occasion as this called upon to make a lively ten minute speech, with little time for preparation, that King David said in his haste that all men were liars. He may have been sharply brought to book for it by the Jerusalem Law Journal of the following week; but you and I know that the sage was enforcing a substantial truth with some exaggeration of utterance. And I should be sorrowful indeed if I thought I had committed any error so radical as that by which you failed to apprehend the warm, eupeptic optimism, the bright and sweet severity of temperament, which however restrained, was glowing under and all through the paper which you found to be dyspectic, pessimistic, hateful, and full of all uncharitableness.

Knowing however how to "take my licking beautiful," hoping that these are "the wounds of a friend," I am, etc., THEODORE BACON.

ROCHESTER, Oct. 3, 1882.

[See Current Topics. ED. ALB. LAW JOUR.]

NEW BOOKS AND NEW EDITIONS.
MILLER'S ENGLISH LAW AND ROMAN LAW.

THE English Law and the Roman Law as produc

tions of Indo-Germanic Nations, is the title of an essay read by J. Bleecker Miller, Esq., before the German Social and Scientific Society of New York. The following is a synopsis of its contents:

The English common law is neither independent of, nor does it stand opposed to other systems, nor is it mainly a development of principles of the Roman law introduced in England by Bracton and others. It is a natural production of a Germanic people, and bears the same relation to the Roman law that the Germanic bear to the Romanic languages. The similarities between the two systems arise from the fact that both are productions of cognate Indo-Germanic nations; the differences from the circumstance that the two systems are at different stages of their development, the Roman law being fully, and the English common law only half developed.

The author refers to the similarities appearing in the laws of the Arian Brahmans of India, the ancient Irish Brehon laws, the ancient German and Roman laws, none of which are copies from the other, nor merely accidental. He accounts for them by saying that laws have their source in the will of the people, cognate nations, similar in character, must produce similar laws. All these systems are founded on the family, in which the father has full power. The Anglo-Saxons, on conquering England, carried their ancient German laws and customs over with them. The development of their laws to the time of the Norman conquest is purely Germanic. The tribes and families in Germany and England lived as tillers of the soil in the open country. The meeting of the kin (clan) was the source of jurisdiction. The Norman conquest changed this. The King became the "fountain of justice." A strong, centralized government was necessary to preserve the fruits of the conquest. The development of the Roman law was different. The natural condition of Italy led to the building up of cities. Because many families lived together in such, there had to be a central power over them. Therefore in public affairs the power of the officers became unlimited, while in private matters that of the pater-familias remained so,

The author mentions as instances of similarity between the laws of the 12 tables and the ancient Ger

man and English laws, the right of self-redress, delivery-up of the wrong-doer in place of damages, fixed money compensation for certain torts, liability of the body of the debtor, and others.

In the Roman as well as in the English system we notice the slow development of the laws, the extension and adaptation of old laws and forms to new circumstances. The similarities are of a nature that they cannot possibly have been directly transferred from the one system into the other.

True, many maxims of the English law have been directly taken from the Roman law; but they lie on the surface, so to speak, of the respective parts of the law, and were taken as fitting and ingenious expressions of principles already existing in the English law. The author recommends a study of the Roman law to serve us as a guide for the development of our own. He opposes Mr. Field's Civil Code, and says that in its general principles it tends to undermine the two great principles of all Arian laws, the independence (Selbststændigkeit) of the individual, and the sanctity of the family. He says that in this country we have not studied sufficiently the history of our own race, and of the development of the various systems of laws, to now make a perfect Code. We cannot construct a system of private law upon theory and reason alone. A right and fit system of private law can only be produced by a whole nation, slowly, step by step. He concludes as follows: The Arian nations of Europe emigrated from Asia in pre-historic times, scattered through the various parts of Europe, where each pursued its own development, are now again flooding into the New World, again uniting into one, the Arian nation; this Arian nation ought to have one natural-grown, complete Arian system of laws, and that is the English

common law.

Judgment affirmed with costs- The Town of Lyons v. Chamberlain; The Poughkeepsie Gas Company v. The Citizens' Gas Company; Westbrook v. Gleason; Mairs v. The Manhattan Real Estate Association; Everson v. Powers; Thornton v. Crowley; Tallman v. Hoey; Gernon v. Hoyt; Clews v. Kehr; Devine v. Mills; Johnson v. Donnell; Wright v. Cabot; Jones v. Morgan; The Delaware and Hudson Canal Company v. The Village of Whitehall; Lynch v. The Metropolitan Elevated Railroad Company; Gross v. Wellwood; Sandrock v. The City of Buffalo; The Lake Superior Iron Company v. Drexel; Williams v. Ingersoll. Judgment reversed, new trial granted, costs to abide event-Leise v. Heins; Welsh v. Gossler; Short v. Home Insurance Company; Leeds v. The Metropolitan Gas Light Company; Wangler v. Swift; Armstrong v. Du Bois. - Judgment reversed, complaint dismissed with costs-Smith v. Long. Judgment affirmed, with costs, as to defendant Smith; reversed as to the defendant Stevenson, and new trial granted, costs to

abide event-Devlin v. Smith.―Judgment of General Term and decree of surrogate reversed without costs, and case remitted to surrogate, without prejudice to an application on behalf of either party, on a subsequent accounting, for an allowance for costs and expenses in the preceding two cases - Riggs v. Cragg.

Order affirmed with costs-In re Mutual Life Insurance Company, to vacate, etc.; People ex rel. Manhattan Savings Institution v. Otis; Rose v. Warren.

- Order reversed and complaint dismissed - Schultz v. Schultz. So much of the order of the Special and General Terms as disallowed surveyor's fees should be reversed, the residue of the order affirmed, and the motion to vacate the assessment denied, without costs to either party in this court - In re Lowden, to vacate, etc.- The order should be affirmed and judgment absolute rendered against the defendants on their stipulation with costs; but as it appears that at the time of the death of the testator the real estate was subjected to a mortgage which the purchaser discharged, the judgment should be without prejudice to their rights to a lien for the amount paid to discharge the mortgage or to be subrogated to the rights of the mortgagee-Smith v. Robertson. Judgment reversed as to application of insurance money, which is awarded to the defendant, with costs against the respondent personally - Dunlop v. Avery. Judgment so modified as to require each defendant to pay such proportion of $21,840, with interest, as the sum insured bears to the total amount, $75,000; and as thus modified affirmed with costs to the plaintiff-The Providence and Stonington Steamship Company v. The Phoenix Fire Insurance Company.-— Judgment reversed so far as it allows defendant's counterclaim for [iquidated damages and interests, and a new trial granted as to such counterclaim, costs to abide the event- Weeks v. Little.- - Judgment of General Term reversed and judgment of Special Sessions affirmed The Justices of the Court of Special Sessions of the County of New York v. The People ex rel. Henderson.— Judgment and order affirmed, without costs to either party on this appeal-Rothery v. The New York Rubber Company.- -Order of General Term reversed; judgment of Trial Term affirmed, with costs-The Revere Copper Company v. Dimock.-Appeal dismissed with costs-The Attorney-General v. The Continental Life Insurance Company; In re Assignment of Stowell; Stedeker v. Bernard; Trembly v. The Gouverneur Pulp Company. -Order affirmed, with costs not to exceed fifty dollars and disbursements-People ex rel. Riley v. Jourdan.-Order of General and Special Terms reversed, with costs-McHenry v. Jewett.-Orders of General and Special Terms reversed, and assessment complained of, vacated, without costs against the respondents-People ex rel. Leonard v. Commissioners of Taxes of New York.-Appeal from order denying reargument; dismissed, with costs; order reversing judgment and granting new trial affirmed, and judgabsolute on the stipulation ordered for the plaintiff, with costs-Fleischman v. Stern.Order affirmed and judgment absolute ordered against the plaintiff on the stipulation, with The National Mechanics Banking Association v. Conkling.-Motion to dismiss appeal granted, unless the appellant shall, within twenty days from the entry and service of this order, file an undertaking upon appeal as required by law, with sufficient sureties, who will justify if excepted to, and also serve printed papers as required by rule seven of this court, which shall contain copies of the certified return required to be filed in this court, and $10 cost of this motionPierce v. Waters.- -Motion for reargument denied, with $10 costs-The First National Bank of Meadrille v. The Fourth National Bank of New York.-Order affirmed with costs-People ex rel. Townsend v. Porter.

ment.

costs

at all. We think the worse man of the two is likely to go unpunished.

"It is fashionable for the profession to complain of the multiplication of law books, and for authors in presenting new law books to the profession to say something in the nature of an apology. Such apologies, except so far as they give expression to the sense which every candid author feels of the imperfections which necessarily attend his efforts, are out of place. A good book, and one that will prove useful to the profession, needs no apology. On the other hand, no apology can atone for the wrong of inflicting a poor one upon their confidence. The complaints of the profession about the multiplication of law books, when analyzed, will be found to be nothing more than complaints against the multiplication of poor and unnecessary books. There are not enough really good law books, and those which are good are not good enough." These words are from the preface of a new work on Juries, by Judge Seymour D. Thompson and Edwin G. Merriam. They are true and wise words, although rather bold for a law-writer to put in his preface, but we know of no law-writer who has a better right than Judge Thompson to use them, and Mr. Merriam is also an approved author and commentator. We venture to believe that Judge Thompson's work on Negligence is "good enough;" at all events we cannot see how it can be any better.

The long-expected decision in the Elevated Railway case has at last been made, after re-argument. The decisions below are reversed, which is a triumph for the adjoining property owners. The court stand, for reversal, Andrews, C. J., and Rapallo, Danforth and Tracey, JJ.; for affirmance, Miller, Earl and Finch, JJ. The deciding vote is cast by Tracy, J., who writes the opinion adopted. The dissenting judges all write opinions. We shall publish one or more of these opinions as soon as possible. Now that the long agony is over, we hasten to say that we record ourselves with the majority, as possibly we have inadvertently hinted before the decision was made. This decision of

course settles the law for our State, but it will have very little weight elsewhere. It is a pity that the law is not more clearly settled on points of such great importance. But of course it would be a dreadful thing to have a Code- or statute-fixing them.

In the earliest days of this journal we used to amuse ourselves, if not our readers, by tracing the manner in which law and lawyers have been treated in literature. Two recent writers of fiction have tried their hands at depicting court scenes, namely, Miss Woolson, in "Anne," and Mr. Howells, in "A Modern Instance." Mr. Howells is cautious enough however not to describe a trial, but contents himself with opening a default in a divorce case. The rascally plaintiff -husband, of course runs away and institutes a suit in Indiana - of course

for divorce for desertion, and gets his decree by default on service of process by publication in the newspapers. Providentially one of these newspapers falls into the hands of the wife's friends; providentially her father is an old lawyer up in Maine, who always hated the husband, and who starts by next train, and reaches the court just in season, is admitted on motion, makes an inflammatory speech, and providentially then and there tumbles down in a fatal paralysis. The scene is tolerably exciting, but cheap. Miss Woolson tells a wonderful tale of circumstantial evidence-how a left-handed rasIcal's left hand found him out. All this is well

enough for the readers of " 'Harper's" and "The Century," in which these serials have been respectively published, but neither can be pronounced a great success so far as depicting court scenes is concerned. In this respect, a little story, written by Mr. Deming, of this city, and published in a recent number of the "Atlantic" is far superior. Indeed, we have never read any thing more correctly realistic. As the author is an old court stenographer he had the advantage of knowing something of what he was talking about. But as nobody tumbles down in paralysis or is discovered by his left-handedness, of course it is "dull" in comparison with the serials aforesaid.

THE

NOTES OF CASES.

THE 8th volume of Lea's (Tennessee) Reports contains some curious cases. In Summit v. State, p. 413, it is held that a regulation by a railway company forbidding hackmen, peddlers, expressmen and loafers from entering the passenger-room at the station, is valid, but a hackman with a check for baggage may enter the baggage-room therefor. In Louisville, etc., R. R. Co. v. Garrett, p. 438, it is held that a railway passenger, who ignorantly and in good faith tenders a tax-certificate for his fare, may not be ejected as a trespasser, and if before ejection another person offers to pay his fare for him, the carrier must receive it and carry him, and if notwithstanding he ejects him he is liable to punitive damages (which in this case were fixed at $2,000). This volume also contains a line of important decisions on waiver of insurance conditions by knowledge of general agent, and on the effect of subsequent insurance.

In First Nat'l Bank v. Wirebach's Ex'r, Pennsyl vania Supreme Court, March, 1882, 12 W. N. C. 150, it was held that a lunatic accommodation indorser of a promissory note is not liable to an innocent holder. The court said: "No court has ever held that a lunatic can be held liable on his con tracts generally. He may bind himself for necessaries as may an infant, and where he has obtained the property of another who has dealt with him fairly and without notice of his infirmity, he will not be allowed to keep both the property and the price. This is all that was intended by Chief Jus