act by which the affiant consciously takes upon himself the obligation of an oath. The delivery with the intention of swearing to it of a signed affidavit by the affiant to the officer, who thereupon certifies to its having been sworn to before him and returns it to the affiant, who uses it as an affidavit, is not sufficient to render the afflant liable to indictment for perjury in case of the falsity of the affidavit.

INDICTMENT for perjury. The evidence for the

prisoner tended to prove that the prisoner, who was about to present a claim against the county of Albany before the board of supervisors of that county, in order to comply with the statutory requirements in respect to the verification of such claims, prepared and signed an affidavit which he presented to a notary, who thereupon, without personally administering any oath, signed his name to the jurat and handed the paper back to the prisoner, who used it as an affidavit to substantiate his claim before the board of supervisors. The trial court held that if the jury were satisfied that the prisoner meant to swear to the affidavit this was perjury if the affidavit was false. The jury convicted the prisoner.

Rufus W. Peckham, for the prisoner.

D. Cady Herrick, district attorney, for the People. FINCH, J. The evidence on behalf of the prisoner tended to prove that on the occasion of the alleged perjury no words passed between the officers and the accused, and what was done consisted only of the latter's signature to the jurat, which he thereupon handed to the officer, who affixed his own name to the certificate in silence. The force of this evidence was weakened, if not entirely destroyed, by the charge of the judge who presided at the trial, and with great care and deliberation laid down a rule for the guidance of the jury, which is now assailed as erroneous. He stated it first in the form of an abstract proposition, and then applied it to the facts of the case on trial. In making such application he said: "If O'Reilly delivered the bill and the affidavit to Kieley to have the same certified to by Kieley as sworn to before him, intending thereby to declare to said Kieley that by oath he intended to verify and did verify the statement subscribed by him, and the officer regarding him as so declaring on oath, signs the certificate and jurat for the purpose of evidencing the verification, and then delivers it to the party in that form verified, and the party presents it in that form and shape to the board of supervisors for the purpose of procuring the credit of the bill, then I charge you that the oath has been duly and lawfully administered."

The criticism to which this proposition is subjected by the argument at the bar is in substance that any form of oath is rendered unnecessary, and the intention to swear is put in the place of the oath actually administered and taken. The criticism is just, precisely so far as it is true. Some form of an oath has always been required, for the double reason that only by some unequivocal form could the sworn be distinguished from the unsworn averment, and the sanctions of religion add their solemn and binding force to the act. Pandects, XII, 2, 3; Coke's Inst. 165; 1 Phill. ou Ev. 15: 1 Stark w. on Ev. 23; Lord Hardwick in Omychund v. Barker, 1 Atk. 30; Tyler on Oaths, 15; 1 Greenleaf on Ev. 328, 371; 1 Alison Crim. Law, 474; 3 Wharton Am. Crim. Law, § 2295; 2 Arch. Crim. Pr. 1723.

While these sanctions have grown elastic, and gradually accommodated themselves to differences of creed, and varieties of belief, so that as the Christian is sworn upon the Gospels and invokes the Divine help to the truth of his testimony, the Jew also may be sworn upon the Pentateuch, the Quaker solemnly affirm without invoking the anger or aid of the Deity, and the Gentoo kneel before his Brahmin priest with peculiar ceremonies, yet through all changes and under all

forms, the religious element has not been utterly destroyed. As lately as the case of People ex rel. Kenyon v. Sutherland, 81 N. Y. 8, the taking of an oath is described as burdening the conscience. Some form of an oath would therefore seem to be essential. It is almost as difficult to conceive of an act of swearing without any form as of a material substance having neither shape nor locality. The changes of form incident to the growth of nations and of commerce have been serious, but have not dispensed with a form entirely. These changes are recognized and crystallized in one statute. 3 R. S., 5th ed. 692. The usual mode of administering oaths by the person who swears laying his hand upon and kissing the Gospel is first recognized, and that form prescribed as the general rule, and except as afterward provided. § 113 Then follow the exceptions. There were persons who on the one hand were unwilling to invoke either the vengeance or the help of the Divine blessing, and those who believed in them without believing in the Gospels or even in the Bible at all. The statute therefore merely permits an oath to be administered in this form: "You do swear in the presence of the ever living God." $ 115. The religious element is here preserved, since, in the absence of imprecation or invocation, the oath is taken as in the presence of the Supreme Being. But there were those whose conscience would not permit them to be sworn at all. To meet that emergency the statute allows as a form, "you do solemnly, sincerely and truly declare and affirm." § 116. Then follow provisions to meet the cases of persons who have peculiar forms which they recognize as obligatory and believe in other than the Christian religion. Such persons may be sworn in their own manner, according to the peculiar ceremonies of the religion which they profess. SS 117, 118. There remained, however, the case of infidels and unbelievers. For them there could be no religious element in an oath, and no sincerity behind it. At first the inevitable result followed of their exclusion from the witness' stand. But such rule of exclusion was soon modified so as to protect them against personal injury, and finally substantially abrogated by the constitutional provision rendering them no longer incompetent "on account of their opinions in matters of religious belief." But this is a rule which merely shuts the door on inquiry. It neither dispenses with some form of oath nor changes its inherent character. It assumes that the affiant recognizes the sacred and solemn nature of his obligation and will permit neither inquiry nor contradiction. If there be something inconsistent in this mode of meeting the difficulty the remedy must be applied elsewhere. But the statute goes one step further. It provides generally that a person sworn by any of the forms prescribed, "or in any form authorized by law," shall be deemed to have been lawfully sworn; and this court has held that any form adopted, if not objected to by the affiant, is deemed to have received his assent and renders him liable to the consequences of perjury as if the oath had been administered in strict conformity with the statute. People v. Cook, 8 N. Y. 84. A wide scope, a large liberty, is thus given to the form of the oath, but some form remains essential. Something must be present to distinguish between the oath and the bare assertion. An act must be done, and clothed in such form as to characterize and evidence it.

It is argued that the charge of the court ignores this necessity, and puts in the place of the act of taking the oath, and its administration by the officer, the intention of the one and the supposition of the other. That part of the charge which we have quoted, and the statement of the rule made during the trial, seem to us fairly to justify the criticism.

The only act referred to is the delivery of the bill and affidavit to the officer. If that is done for the

purpose of getting the officer's certificate and with the intention of declaring to him that the affidavit does verify the statement he has subscribed, and the officer regards him as so declaring on oath, that, followed by the certificate of the officer, and the use of the affidavit is held to be sufficient. But we think the language cited does not, by itself, fairly represent the proposition presented to the jury and should be construed with other parts of the charge which more fully explain its meaning. Thus construed it rests on something more than mere intention, and does not ignore the necessity of an act of swearing and some form of the oath. The reasoning of the learned judge makes his meaning very plain. He relies upon the language of the jurat which the prisoner signed and handed to the officer. That language was as follows: "C. O'Reilly being duly sworn, saith that the items of the written account are correct," etc.; and the argument is that these written and printed words handed to the officer were as effectual as if the accused had said in spoken words, "I swear that the items of the written account are correct," etc.; in other words, that an audible utterance is not essential, and the oath may be taken by the pen as well as by the tongue. The last proposition may possibly be true and not confined to cases of necessity, and yet the inquiry remains and is the final and determining question in the case, whether the mere delivery of these written words, signed by the accused, to the officer for his certificate, constitute an oath taken, and is the sufficient equivalent of an express and present declaration that the affiant swears to the truth of his statement. If such be the fact, it is difficult to sustain our decision in Case v. People, 76 N. Y. 242. In that case the accused signed the jurat and sent it to the notary for his sig nature. The delivery to the officer was a delivery by Case, although effected through the agency of a third person. That fact cannot change or modify the principle, as it affects the affiant. It might and would touch and influence the duty of the officer in giving his certificate. But the certificate is not the oath. pre-supposes an oath already taken, of which fact it but furnishes the evidence. It is the written words signed and consciously and purposely delivered to the officer which works the result. It is that delivery which converts the previously unsworn words into a valid affidavit. How is the inherent character of the affiant's act in any wise changed, modified or altered by such delivery through an agent instead of in person? The difference suggested to us is that in the latter case the officer and the affiant do not meet, and the oath is not taken before, that is, in the presence of the officer. While that fact is mentioned in the opinion, it is not made the definite ground of the decision, which takes a much wider range, and goes upon the theory that no oath was taken at all. The fundamental difficulty, whether the aflidavit be delivered in either mode, seems to us to be that the act of delivery is equivocal, and just as consistent with an intention not to swear, though appearing to have been sworn, as with an intention to assume the obligation of an oath, and this difficulty is intensified when, as in the present case, the language written and signed and delivered to the officer is not "I do hereby swear," or "do depose and say," but "being duly sworn, saith." The language recites an oath previously taken, already administered. It does not purport to be the present oath then and there taken. It confesses a past act, and an obligation already assumed. It does not profess to be itself the act or obligation. Such a construction of it is strained and unnatural. It would be hard to find an officer who would understand upon reading such phrase that an oath had already been administered by himself, and his sole duty was to certify the fact in silence; and we are required to believe that officers have been daily administering a second and superflu

It

ous oath when a sufficient one was already before them in writing. We think the charge went too far, and are not ready to affirm the proposition advanced. To make a valid oath for the falsity of which perjury will lie there must be some form in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. The delivery in this case of the signed affidavit to the officer was not such an act, and was not made so by the intention of one party or the supposition of the other.

For these reasons the judgment should be reversed and a new trial granted.

FIXTURES AS BETWEEN GRANTOR AND GRANTEE.

CALIFORNIA SUPREME COURT, AUGUST 25, 1881.

FRATT V. WHITTIER.

A deed of a hotel conveyed the same with "the appurtenances and improvements thereunto belonging." It reserved to the grantor the right to remove from the upper rooms of the hotel "his furniture, carpets and pictures, but none of the permanent fixtures or appurtenances to said property shall be removed." Held, that gas chandeliers affixed to pipes in the hotel, a cooking range and attachments, mosquito transoms and window screens affixed to window frames, etc., were fixtures, which in the absence of reservation in the deed passed to the grantee, and that the grantor was not entitled to remove them from the hotel. The reservation of certain articles by the agreement of the parties to the deed, fixed upon the remaining chattels in the hotel necessary to its use, the character of appurtenances to it.

A

CTION to recover chattels. The opinion states the facts. From a judgment in favor of defendants plaintiff appealed.

McFarland & Edgerton, for appellant.
Freeman & Bates, for respondents.

MCKEE, J. This was an action to recover certain gas fixtures, consisting of chandeliers, globes, brackets, burners, pendants, etc., a kitchen range with boiler attached, a patent water filter, tanks and mosquito screens. The property was attached to a building known as the "Orleans Hotel," situate on a lot of land fronting on Second street, in the city of Sacra

mento.

As owner of the hotel, the plaintiff, on October 15, 1879, contracted in writing to sell the same to the defendant, by the following description, viz. :

"Lot No. 6 in the square between J and K and Front and Second streets, in the city of Sacramento. and the appurtenances and improvements thereunto belonging." The sale was made for $28,000 gold coin, payable after an examination and approval of the title, upon receiving from the plaintiff possession of the property and of a deed of grant of the same, on or before the 1st day of November, 1879, reserving to the plaintiff, among other things, the right, within ten days after delivery of possession, to remove from the upper rooms of the hotel "his furniture, carpets and pictures, but none of the permanent fixtures or appurtenances to said property shall be removed." On the 25th of October, the defendants, having satisfied themselves about the plaintiff's title, paid the full amount of the purchase-money and received from the plaintiff possession and a deed of grant of the property. The deed described the property the same way that it had been described in the contract of sale, and it also contained the recital that the deed had been made in pursuance of the contract of sale, and subject to the terms, conditions and reservations therein contained. Within ten days after the delivery of possession plaintiff demanded of the defendants the privilege of

removing the articles in controversy from the hotel, which being refused, this action was instituted, and the question arises whether the articles are personalty or fixtures which passed as appurtenances of the realty by the deed of graut.

If the question arose out of the deed alone it might not be difficult of solution, for the weight of authority seems to be in favor of the proposition that they are to be regarded as movable property, capable of being severed from the building; yet the authorities upon the subject are conflicting. In McKeag v. Hanover Fire Ins. Co., 81 N. Y. 38, the Supreme Court of New York held that gas-pipes which run through the walls and under the floors of a house are permanent parts of the building; but fixtures attached to such pipes, where they are simply screwed on projections of the pipes from the walls, which can be detached by unscrewing them, are not appurtenances, and so do not pass by deed or under a mortgage of the premises, and the mere declaration of the owner that he intends that such articles shall go with the house does not make them realty.

In Guthrie v. Jones, 108 Mass. 193, it was held that as between landlord and tenant, gas fixtures, though fastened to the walls, were not annexed to the realty so as to become part of it. They are, says the court, in their nature articles of furniture, and the fact that they were fastened to the walls for safety or convenience does not deprive them of their character as personal chattels and make them a part of the realty.

In Vaughen v. Halderman, 33 Penn. St. 523, the court says: 'Lamps, chandeliers, candlesticks, candelabras, screens and the various contrivances for lighting houses by means of candles, oil or other fluids, have never been considered as fixtures and as forming a part of the freehold. There is no trace of a contrary doctrine in the English decisions, nor does it appear that the ordinary apparatus for lighting has ever been classed among fixtures." In Jarechi v. Philharmonic Society, 79 Penn. St. 403, and 21 Am. Rep. 78, the case of Vaughen v. Halderman was reviewed and approved. Says Sharswood, J.: "Houses are considered as finished by the builders when the gas fittings are completed. The fixtures are put up in more or less expensive style, according to the tastes and means of the persons who mean to occupy them, whether as tenants or owners. If the tenant puts them in, it is not denied that as between him and the landlord, they are his, and he may remove them or they may be sold as personal property on an execution by the sheriff. No doubt the owner, if they belong to him, often sells them with the house. They add more to the value of the house than they would be worth if removed. But if there is no agreement to sell the house as it is-fixtures and all-the purchaser is not entitled to them. We see then no reason for departing from the judgment in Vaughen v. Halderman." To the same effect are Shaw v. Locke, 1 Daly, 487; Montague v. Dent, 10 Rich. 138; Rogers v. Crow, 40 Mo. 91; Lawrence v. Kemp, 1 Duer, 363; Towne v. Fiske, 127 Mass. 125.

On the other hand, it has been held by the Supreme Court of Kentucky, in the case of Johnson v. Wiseman, 4 Metc. 357, that where a vendee of a house in possession purchased and put into it gas fixtures, chandeliers, etc., which were affixed by means of screws to iron pipes let into the walls of the house for the purpose of conducting gas to the burners, such chandeliers, etc., became fixtures which passed by a deed of the realty, in the absence of any express provision to the contrary, although they may be removable without injury to the walls or the ceiling of the house, or to the pipes to which they are attached. The same doctrine was enunciated in Smith v. Commonweath, 14 Bush, 31, as one about which there was no question. Whatever, indeed, is accessory to a building for the more convenient use and improvement of

the building is considered to pass by a deed of the premises. Thus articles placed in a mill by the owner to carry out the obvious purpose for which it was erected are generally part of the realty, notwithstanding the fact that they could be removed and used elsewhere. Parsons v. Copeland, 38 Me. 537. In a building erected as.a factory, the steam works relied on to furnish the motive power and the works to be driven by it are essential parts of the factory adapted to be used with it, and would pass by a conveyance of the real estate. 4 Metc. 306. Apparatus for the manufacture of gas are fixtures. Hayes v. Doane, 3 Stock. 84. Gas-burners are of the same charactor. They are in no sense furniture, but are mere accessories to the building. Keeler v. Keeler, 31 N. J. 191.

What is accessory to real estate is, according to the rule of the common law, part of it, and passes with it by alienation. That rule has been, in the growth of the law, greatly modified as between landlord and tenant, for the encouragement of trade, manufacture, agriculture and domestic convenience; and courts recognize and enforce the right of removal by a tenant of chattels annexed to the freehold for such purposes. But the rule which is applicable to persons in that relation does not apply as between heir and executor, vendor and vendee. As between the latter the rule of the common law is still applicable, except so far as it may be modified by statutory regulations upon the subject. So that chattels attached to the freehold by the owner, and contributing to its value and enjoyment, pass by the grant to the freehold if the grantor had power to convey (Tourtelott v. Phelps, 4 Gray, 378), and after conveyance they cannot be severed by the vendor or any one else than the owner.

As between vendor and vendee therefore the rule for determining what is a fixture is always construed strongly against the seller. Many things pass by a deed of a house, being put there by the owner and seller, which a tenant who had put them there might have removed; and they will be regarded as fixtures, which pass to the vendee, although annexed and used for purposes of trade, manufacture, or for ornament or domestic use. Thus, potash kettles appertaining to a building for manufacturing ashes (6 Cow. 665); a cotton gin fixed in its place (2 Strobh. 478); a steam engine to drive a bark mill (7 Watts, 106); kettles set in brick, in dyeing and print works (12 N. H. 207); iron stoves fixed to the brick work of chimneys (7 Mass. 432); wainscot work, fixed and dormant tables, engines and boilers used in a flour mill and attached to it (Sands v. Pfeiffer, 10 Cal. 259); a steam engine and boiler fastened to a frame of timber, and bedded in a quartz ledge, and used for the purpose of working the ledge (Merritt v. Judd, 14 id. 59); a conduit or water-pipe to conduct water to a house (Philbrick v. Emery, 97 Mass. 134); hop-poles in use on a hop farm (Bishop v. Bishop, 11 N. Y. 123); statues erected for ornament, though only kept in place by their own weight (Snedeker v. Warring, 2 Kern. 170). In fact, whatever the vendor has annexed to a building, for the more convenient use and improvement of the premises, passes by his deed. The true rule deduced from all the authorities, say the Supreme Court of Virginia, seems to be this: That when the machinery is permanent in its character, and essential to the purpose for which the building is occupied, it must be regarded as realty, and passes with the building; and that whatever is essential for the purposes for which the building is used will be considered as a fixture, although the connection between them may be such that it may be severed without physical or lasting injury to either. Green v. Phillips, 26 Gratt. 752; Shelton v. Finklin, 32 id. 735. Judged by these rules, it would seem as if there was no room for doubt as to the character of the articles in controversy. Taking into consideration their nature, the circumstances under which they were placed

in the building, the mode of their connection with it, and the relation which they bear to its use and enjoyment, they must be regarded as essential for the purposes for which the building was used. The plaintiff himself, by his testimony, shows that the globes were lettered "Orleans Hotel," and that they, with the chandeliers, etc., were necessary for furnishing light to the building; that the range rested on a foundation of brick, and that it and its attachments were annexed to the building by pipes, which connected them with the tanks and filterers on the roof of the building, and by a waste-pipe which ran through the wall of the building and connected with a sewer in an alley outside, and that the range and its attachments were necessary for cooking; that the tanks and filters were attached to the building by a system of pipes which connected them with the main, or pipes of the City Water Company, and with various parts of the hotel, and were necessary to supply the hotel with clear water; that the mosquito transoms and window screens were fitted to the windows and transoms of the hotel each window and transom-frame being fitted to its particular window, and shoved up and down in it on grooves, and all of them were as necessary to the hotel as its windows, its blinds and shutters. All of the articles were therefore essential to the use and enjoyment of the hotel; in fact, as the plaintiff testified, "it would not have been a hotel without them." They were therefore fixtures which passed by the deed of grant to the defendant, unless they were specially reserved by the deed. But the deed reserved none of the articles. It was made, according to its recitals, in pursuance of the agreement of the 15th of October, and subject to the terms, conditions and reservations therein contained and expressed.

As already stated, the agreement reserved only the furniture, pictures and carpets of the upper rooms of the building, and none of the "permanent fixtures or appurtenances to the property." In the absence from the deed of any special reservation of the articles, it must be presumed that the parties, by their agreement, considered them as permanent fixtures and appurtenances of the hotel which were to pass by the deed. It is a well-settled rule of law that parties themselves may, by express agreement, fix upon chattels annexed to realty whatever character they may have agreed upon. Property which the law regards as fixtures may be by them considered as personalty, and that which is considered in law as personalty they may regard as a fixture. Whatever may be their agreement courts will enforce it. Smith v. Waggoner, 50 Wis. 155; 97 Mass. 279; 20 N. Y. 344; 53 id. 377; 24 Wend. 359; 1 Hill, 176; 52 N. Y. 146.

So that the plaintiff, when he contracted to sell the hotel property with its appurtenances and improvements, reserving from the sale only the carpets, furniture and pictures of the upper rooms of the building, fixed upon all the chattels which he had annexed to the hotel, and which were necessary to its use and enjoyment, the character of appurtenances and improvements of the hotel. None of them, by any possibility of construction, could fall within the reservation of furniture, carpets or pictures in the upper rooms of the hotel."

The plaintiff therefore sold the articles in question as fixtures with the hotel, and as such they passed by his subsequent deed of the premises to the defendants. Judgment and order affirmed. UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT,*

GUARANTY WHAT IS. A promise "that if the plaintiff would endeavor to collect the amount of the * Appearing in 8 Federal Reporter.

loss described from the Grand Trunk Railway Company, they, the defendants, would pay the said claim if the Grand Trunk Railway Company did not do so," is in legal effect a guaranty of the collection of the debt described, and resort to a suit or some other legal proceeding for the enforcement of the debt is a condition precedent to a recovery upon such a guaranty. Taylor v. Burton, 8 Cow. 628. U. S. Circ. Ct., E. D. New York, July 13, 1881. Phenix Ins. Co. v. Louisville & Nashville Railroad Co. Opinion by Benedict, D. J.

ENLISTMENT BY MINOR.

INFANCY A minor's contract of enlistment is voidable only, and not void. If, after enlistment, he commits a military offense, is actually arrested and in course of trial before the contract is duly avoided, he may be tried and punished. Where a minor enlists in the marine corps of the United States, deserts his post and goes home, is arrested and in course of trial before the contract of enlistment is avoided by him, held, that the trial must be proceeded with. See Commonwealth v. Gamble, 11 S. & R. 93; Ex parte Anderson, 16 Iowa, 595; McConologue's case, 107 Mass. 154, 170, per Gray, J.; Re Dee, 25 Law Rep. 538; Re Beswick, 25 How. Pr. 149. It is true that Commonwealth v. Gamble, 11 S. & R. 93, is doubted in a later case in the same court (Commonwealth v. Fox, 7 Penn. St. 336), but in this case the judges found that the statute made such an enlistment absolutely illegal, and for that reason held it to be void. See, also, McNulty's case, 2 Low. 270. U. S. Circ. Ct., Massachusetts, July 2, 1881. In Re Wall. Opinion by Lowell, C. J.

MARITIME LAW NEGLIGENCE

JURISDICTION.

(1) Exception to libel for injury to a fireman on a steam vessel caused by the negligence of the master of the vessel, on the ground that they were fellow servants of a common employer, and that such fireman was aware of the incompetence of the master, overruled, upon the impression that the fireman and master were not fellow servants in the sense which excuses the common employer from liability for an injury suffered by one in consequence of the misconduct or negligence of the other, with leave to raise the question upon final hearing. The fireman was subject to the orders of the master. He was an inferior servant, injured by the misconduct of a superior one, for which injury there is much authority and more reason for holding the common employer liable. Packet Co. v. McCue, 17 Wall. 513; Railway Co. v. Fort, id. 557; Bera Stone Co. v. Craft, 31 Ohio St. 289; C. & N. W. Ry. Co. v. Morando, 34 Am. Rep. 168; S. C., 93 Ill. 302; Devany v. Vulcan Iron Works, 4 Mo. Ap. 236; Brabbits v. C. & N. W. R. Co., 38 Mo. 289; Gormly v. Vulcan Iron Works, 61 id. 492; The Chandos, 4 Fed. Rep. 649. (2) The National courts have jurisdiction of a tort committed any where upon the navigable waters of the United States. The ruling in Holmes v. O. & C. R. Co., 5 Fed. Rep. 75, followed. U. S. Dist. Ct., Oregon, August 9, 1881. The Clatsop Chief. Opinion by Deady, D. J.

STATUTES OF LIMITATION. - State statutes of limitation do not run against claims in favor of the United States. U. S. Dist. Ct., Minnesota, Aug. 15, 1881. United States v. Spiel. Opinion by Nelson, D. J.

contained only lots from 1 to 29. An irregularly recorded plat contained two lots, each numbered 78, and no lot numbered 77. In an action by one holding under the deed against the grantor for an alleged breach of the covenant of seizin, held, that parol evidence was admissible to identify the lot, and it being shown by such evidence that the lot intended to be conveyed had been actually numbered as 77 on the plat of the village which was irregularly recorded, that the failure to appear on the record was from a mistake of the clerk in transcribing, and that the lot in taxation, etc., was described as lot 77, the action could not be sustained. The grant was not impaired by the omission to record the plat, and it was competent to identify the parcel by parol evidence. Johnson v. Scott, 11 Mich. 232; Noonan v. Lee, 2 Black, 499. It is often necessary to resort to such evidence for the purpose of applying the deed to the subject-matter. That part of the description which speaks of the registry of the plat, and is found incorrect, may be rejected without any detri

ment.

Slater v. Breese, 36 Mich. 77; Jackson v. Clark, 7 Johns. 217; Eggleston v. Bradford, 10 Ohio, 312; Noonan v. Lee, supra; Butler v. Trustees First Presb. Church, 7 N. W. Rep. 363; Doe v. Galloway, 5 Barn. & Ad. 43; Doe v. Parry, 13 M. & W. 356. Enough is left to satisfy all legal requirements. Goodenow v. Curtis, 18 Mich. 298; Sargent v. Adams, 3 Gray, 72; Gerrish v. Tome, id. 82; Woods v. Saivin, 4 Gray, 322; Jones v. Smith, 73 N. Y. 205; Schlief v. Hart, 29 Ohio St. 150. Wiley v. Loveley. Opinion by Graves, J. [Decided April 27, 1881.]

EASEMENT FLOW OF SURFACE WATER. An easement may be acquired by prescription for the flowage of surface water over adjoining lands to seek a pond below such adjoining lands. Conklen v. Boyd. Opinion by Marston, C. J.

[Decided April 27, 1881.]

CONTINUING GUARANTY.

SURETYSHIP Defendant below signed a guaranty reading thus: "In consideration that D. & Co. will and do sell to Mrs. O. S. C. upon credit, bills of goods from time to time as she may order, I, the undersigned, do hereby guaranty to the said D. & Co. prompt payment of all such bills at their maturity, the same being four months from the date of purchase or order, hereby waiving any and all notice of times or amounts of sales, or of defaults or delays in payment therefor, the amount guarantied not to exceed the sum of $200." Held, that this was a continuing guaranty, was not exhausted when Mrs. O. S. C. had purchased $200 worth of goods, but defendant was liable to the extent of $200 though the debt might be for purchases made thereafter. The case is not unlike Mason v. Pritchard, 12 East, 227, in which the guaranty was "for any goods he hath or may supply my brother W. P. with to the amount of $100," and in which "all the court were of opinion with the plaintiff that this was a continuing or standing guaranty to the amount of $100 which might at any time become due for goods supplied until the credit was recalled." The cases of Hargreave v. Smee, King, 241; Douglas v. Reynolds, 7 Pet. 113; Bent v. Hartshorn, 1 Met. 24; Hatch v. Hobbs, 12 Gray, 447; Mellindy v. Capen, 120 Mass. 222; Gates v. McKee, 13 N. Y. 232; Rindge v. Judson, 24 id. 64, and Graut v. Ridsdale, 2 Har. & J. 186, support the same view, and some of them in their facts bear close resemblance to this. If the guaranty had evidently contemplated a single transaction, it would have been different. Anderson v. Blakely, 2 N. & S. 237; Boyer v. Eward, 1 Rice (S. C.), 126; Hotchkiss v. Barnes, 34 Conn. 27; Congdon v. Read, 7 R. I. 576; Strong v. Lyon, 63 N. Y. 172; Boston, etc., Co. v. Moore, 119 Mass. 435; Reed v. Fish, 59 Me. 358. Crittenden v. Fiske. Opinion by Cooley, J. [Decided April 27, 1881.]

TAXATION -CHARGE UPON DOGS TO PAY FOR SHEEP KILLED BY DOGS NOT THE CONSTITUTIONAL LAW.

A charge made by law upon dogs in order to provide a fund for the payment of injury done to sheep by dogs is not a tax in the sense that an assessment of the public burdens upon property is a tax. The enactment does not appear to be for revenue nor to raise money by way of tax as that expression is there made use of. A tax is a burden, charge or imposition for public uses. People v. Salem, 20 Mich. 452; Matter of the Mayor, 11 Johns. 77, and not a mere regulative expedient as this is to favor the repression of private mischief and promote the redress of private injuries. A tax upon dogs is a species of legislation which pertains to another department of power, and where the State in pursuing its duty to accommodate as far as practicable the desire and the right to keep dogs, to the more beneficial right of breeding and keeping sheep, has seen fit to apply the method marked out in the statute. The act is an exertion of the police power. In consequence of the acknowledged excellence of some of their traits and their remarkable attachment to mankind, and on account at the same time of their liability to break through all discipline and act according to their original savage nature, and because also of their liability to madness, it has been customary always to make dogs the subject of special and peculiar regulations. The evidence found in our own statutes is very full. Characteristic legislation has been expounded in other States, and the authority for it has been liberally maintained under the power referred to. Blair v. Forehand, 100 Mass. 136; Carter v. Dow, 16 Wis. 298; Tenny v. Seng, id. 566; Mitchell v. Williams, 27 Ind. 62; Morey v. Brown, 42 N. H. 373; Wolf v. Chalker, 31 Conn. 121; Ex parte Cooper, 3 Texas, 489. As the charge laid on the owners of dogs is a pecuniary burden imposed by public authority it partakes no doubt of the character of a tax and for many purposes might be so spoken of without harm. But no accession of public revenue, either general or local, is authorized or aimed at. The end sought is different. The purpose is to prescribe a regulation under which dogs as animals dangerous to sheep and of far less public utility can alone be held, and which if carried out will tend to discourage an undue increase of dogs, and at the same time will afford new protection against the effects of the mischief to which they are most given. People of Michigan v. Van Horn. Opinion by Graves, J. [Decided June 8, 1881.]

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
MARCH, 1881.

EVIDENCE - DECREE OF PROBATE COURT AS EVIDENCE OF DEATH. A decree of the Probate Court

granting letters of administration is not an adjudication of death, as against the person therein assumed to be dead; nor is it admissible in proof of the death, as between strangers, nor even in an action brought by the person who has been appointed administrator, in his individual capacity. But it is admissible in an action by the administrator in his official capacity on a debt due to the supposed deceased, as evidence that the plaintiff has a right to collect the debt; and it is equally admissible in an action against the administrator in his official capacity on a debt due from the supposed deceased, as evidence that the defendant is bound to pay the debt. Mutual Benefit Ins. Co. v. Tisdale, 91 U. S. 238; Newhall v. Jenkins, 10 Pick. 515. Day v. Floyd. Opinion by Gray, C. J.