* *

con

sign, would not defeat a recovery on the policy. The principle upon which the court below acted was that expressed by Chief Justice Gibson in Insurance Co. v. Insley, 7 Penn. St. 229, when he said that "public policy requires no more than that a man be not suffered to insure against his own knavery, which is not to be protected or encouraged by any means; for though the maxim respondeat superior is applicable to the reponsibility of a master for the acts of his servants, yet the insured, so long as he acts with fidelity, is answerable neither for his servants nor for himself." Williams v. Insurance Co., 3 Sum. 276. (2) The policy provided that the company should be free of all claim for loss or damage occasioned by "the derangement or breaking of the engine or machinery, or any consequence resulting therefrom." Held, that the " sequence" referred to was an immediate or proximate and not a remote consequence, and that even if the mud-valve could be considered part of the machinery, the derangement of it, which appeared to have been repaired before the order to let go was given, was not a proximate cause of the loss. (3) The policy provided that there should be "no abandonment as for a total loss, * unless the injury sustained be equivalent to fifty per cent of the agreed value." That value was $27,000. The vessel was carried over the falls at Louisville, Kentucky, and sunk, April 28, 1880. She was abandoned as a total loss May 18, 1880. The company raised her in the spring of 1881, and put her in the condition she was in before the accident, at an expense of less than $6,000. Held, that the right to abandon was to be determined by the facts as they existed May 18, 1880, and that if it was then impracticable to recover and repair the boat, the place where she lay, the uncertainty as to when (if at all) a rise would come to float her off, and all the other attendant circumstances, being taken into consideration, the subsequent floating off of the vessel would not change the result. For as said in Bradlie v. Insurance Co., 12 Pet. 378, 397: "If the abandonment when made is good, the rights of the parties are definitely fixed, and do not become changed by subsequent events; if on the other hand, the abandonment when made is not good, subsequent circumstances will not affect it, so as retroactively to impart to it a validity which it had not at the origin." Rhinelander v. Insurance Co., 4 Cranch, 29; Marshall V. Insurance Co., id. 202. Again: "In many cases of stranding, the state of the vessel at the time may be such, from the imminency of the peril, and the apparent extent of expenditures required to deliver her from it, as to justify an abandonment; although by some fortunate occurrence she may be delivered from her peril without an actual expenditure of one-half of her value after she is in safety. Under such circumstances, if in all human probability, the expenditures which must be incurred to deliver her from her peril are, at the time, so far as any reasonable calculations can be made, in the highest degree of probability, beyond half value, and if her distress and peril be such as would induce a considerate owner, uninsured, and upon the spot, to withhold any attempt to get the vessel off, because of such apparently great expenditures, the abandonment would doubtless be good." In the same case the court quote with approval the following language of Kent: "The right of abandonment does not depend upon the certainty, but on the high probability of a total loss, either of the property or of the voyage, or both. The insured is to act, not upon certainties, but upon probabilities, and if the facts present a case of extreme hazard, and of probable expense exceeding half the value of the ship, the insured may abandon; though it should happen that she was afterward recovered at a less expense." 3 Kent Com. 321. (4) The fact that a vessel abandoned

as a total loss was recovered and repaired a year later, is not "the best evidence" that it was practicable to recover and repair it at the time of the loss. Oct. 24. 1887. Orient Mut. Ins. Co. v. Adams. Opinion by Harlan, J.

OFFICE AND OFFICER-ACTION ON BOND-CONTRACT LIABILITY. Suit was brought by the State, on relation of the owner of county warrants, finding no money in the county treasury to pay his warrants, against the tax collector and his surety, alleging that the collector had improperly received other warrants in payment of taxes, and had thus intentionally prevented any money coming into the treasury. The collector had settled according to law with the county for taxes collected, and the County Court had approved his account. Held, that there was no relation of contract or legal obligation between the owner of the warrant and the collector to sustain the action. Harshman is a creditor of the county of Knox. He has no more right to interfere between that county and its collector as to the manner in which that official shall discharge his duties, except perhaps in case of fraud or conspiracy, or by way of mandamus, than he would have as a creditor of any individual to interfere between him and his debtors. Where such things are permitted at all, it is by way of a garnishee process or attachment, which is regulated by statute, or by a bill in chancery. The proceeding here has nothing of that character. The want of privity between Harshman and the obligors in the bond on which they are sued is established by the decision of this court in Bank v. Ward, 100 U. S. 202. It does not appear if all the taxes had been paid in money which they plaintiff alleges were erroneously paid in warrants, that when that money was paid into the treasury, the relator would have been entitled to any of it. The discretion of the County Court, and indeed its obligation to provide for the current necessities of the county, could not be interfered with by any one to direct the payment of this money to that particular debt. We do not see therefore that he was damaged, certainly not damaged in a manner which the law can recognize by the collection of these taxes in warrants instead of money. East St. Louis v. Zebley, 110 U. S. 321; Clay Co. v. McAleer, 115 id. 616. Oct. 31, 1887. State of Missouri, ex rel. Harshman, v. Winterbottom. Opinion by Miller, J.

PATENTS -PUBLIC USE- CONSENT OF PATENTEE.Action was brought for the infringement of reissued letters-patent No. 4,372, granted to Nelson W. Green, May, 1871, for an "improvement in the methods of constructing artesian wells;" the original patent having been issued in January, 1868. The plaintiffs concede defendant's allegation that other persons than Green put the invention into public use more than two years before his application was filed, but it is contended that this was done without his knowledge, consent, or allowance. Held, that the act of Congress of March 3, 1839, § 7, in force at the time of the issue of the original patent, did not require that the public use or sale for more than two years prior to the application shall have been with the consent or allowance of the patentee, in order to invalidate the patent. The question involved has never been decided by this court. It is very plain that under the act of 1836, if the thing patented had been in public use or on sale, with the consent or allowance of the applicant, for any time however short, prior to his application, the patent issued to him was invalid. Then came section 7 of the act of 1839, which was intended as an amelioration in favor of the inventor, in this respect, of the strict provisions of the act of 1836. The first clause of that section provides for the protection of a person, who prior to the application for the patent, purchases or con

structs a specific machine or article, and declares that he may use and sell such specific machine or article after the patent is issued, without liability to the patentee. The section does not require, in order to this protection, that the purchase or construction shall have been with the consent or allowance of the person who afterward obtains the patent, and seeks to enforce it against such purchaser or constructor. The words "consent or allowance are not found in the provisions. The only requirement is that the specific machine or article shall have been purchased or constructed at some time prior to the application for a patent. The second clause of the section then passes to consider the effect upon the validity of the patent "of such purchase, sale, or use prior to the application" for the patent, and declares that "no patent shall be held to be invalid by reason of such purchase, sale, or use prior to the application for a patent as aforesaid, except on proof of abandonment of such invention to the public, or that such purchase, sale, or prior use has been for more than two years prior to such application for a patent." The expression "such purchase" clearly means the purchase from any person, and not merely from the person who becomes the patentee of the machine or article. The expression "such sale or use clearly refers to the use or sale by the person who has purchased or constructed the machine or article, the right to use and sell which is given to him by the first part of the section. That right is given to a person who has constructed the machine or article, as well as to one who has purchased it; and the plain declaration of the second part of the section is that where the purchase or construction of the machine or article took place more than two years prior to the application for the patent, or where the use or sale by the person who so purchased or constructed the machine or article took place at a time more than two years prior to the application, the patent becomes invalid. It is not possible in any other way to give full effect to the word "constructed" in the first part of the section. The word "purchased" and the word "constructed" are used in the same connection, and in connection with the words "so made or purchased," which occur afterward; and the word "purchased cannot be limited to a purchase from the applicant for the patent, nor can the word "constructed" be limited to a construction with the consent and allowance of such applicant, without interpolating into the statute the words "consent or allowance." We can find no warrant for doing this. The evident purpose of the section was to fix a period of limitation which should be certain, and require only a calculation of time, and should not depend upon the uncertain question of whether the applicant had consented to or allowed the sale or use. Its object was to require the inventor to see to it that he filed his application within two years from the completion of his invention, so as to cut off all question of the defeat of his patent by a use or sale of it by others more than two years prior to his application, and thus leave open only the question of priority of invention. The evident intention of Congress was to take away the right (which existed under the act of 1836) to obtain a patent after an invention had for a long period of time been in public use, without the consent or allowance of the inventor; it limited that period to two years, whether the inventor had or had not consented to or allowed the public use. The right of an inventor to obtain a patent was in this respect narrowed, and the rights of the public as against him were enlarged, by the act of 1839. The language of section 24 of the act of 1870, now section 4886, Rev. Stat., is to the same effect, and carries out the policy inaugurated by the act of 1839. It allows a patent to be granted only for an invention which was not in public use or on sale for more than two years

prior to the application for the patent, subject to the defense of abandonment within such two years, which is also the requirement of section 61 of the same act; while section 37 of that act requires that a person, in order to have the right to use and sell, without liability, a specific thing made or purchased prior to the application for the patent, shall have purchased it of tht inventor, or constructed it with his knowledge and consent. In view of the fact that section 37 of the act of 1870 re-enacts the first part of section 7 of the act of 1839, with the addition, ex industria, of the requirement, in order to confer the right to use the specific thing in question, that the purchase of it should have been from the inventor or the construction of it should have been with his knowledge and consent, and of the further fact that section 24 of the act of 1870 re-enacts the second part of section 7 of the act of 1839, and does not contain a requirement that the public use or sale for more than two years prior to the application shall have been with the consent or allowance of the patentee, in order to invalidate the patent, it may fairly be said that it was the view of Congress that section 7 of the act of 1839 did not require, as an element, the knowledge, consent, or allowance of the applicant. Nov. 14, 1887. Driven-Well Cases. Opinion by Blatchford, J.

RAILROAD-CONTRACT WITH LIABILITY OF SUC. CESSOR.- Complainant covenanted with the C. & O. Railroad Co., and conveyed to the company some laud for $1,000, on condition that in the event that the property so conveyed should cease to be used for railroad purposes by the company, the estate should revert to the grantor. There was also a covenant that the complainant was to have leave to connect a branch with the track at a point near his hotel, and that the company would erect fences and protect said track. The C. & O. Railroad Co. was sold out under foreclosure of mortgage, and the purchasers became the C. & O. Railway Co., entitled to all the rights, property, etc., of the C. & O. Railroad Co., subject to all restrictions imposed by law upon last-named company. Held, that there was nothing to justify the interposition of a court of equity to make the second company run its road through the lots sold by complainant. 1. The contract with the Chesapeake & Ohio Railroad Company contains no such covenant for laying the track of that company through the lands purchased of plaintiff as his bill alleges. Therefore if even that company was defendant in this suit, there is nothing which the court could specifically compel it to do found in this contract. 2. If there were such a contract, both the law and this contract contemplates the right of the railroad company to change its route before being built, and to abandon it afterward, and if the plaintiff is injured by this change, the remedy is clearly by an action at law for damages. 3. The present defendant, the railway company, is not shown to be under any obligation to perform the covenant of its predecessors, the railroad company, which is set up here as a matter of specific performance. The persons who purchased the railroad at the mortgage foreclosure sale did not thereby, under any statute of the State (act of February 1, 1871, Sess. Laws, 91), or any contract of which we are aware, become obliged to pay the debts and perform the obligations of the railroad company. Railroad Co. v. Miller, 114 U. S. 176; 5 Sup. Ct. Rep. 813. They bought the property of that company and its franchises; but if as such purchasers they thereby become bound to pay all the debts and perform all the obligations of the corporation whose property they bought, it would put an end to purchases of railroads. The plaintiff provided his own remedy for what has happened, by the condition in his conveyance that the land should revert to him, his heirs or assigns, in the event of which he now com

plains. Nov. 7, 1887. Hoard v. Chesapeake & O. Ry. Co. Opinion by Miller, J.

WATER AND WATER-COURSE-NAVIGABLE WATERS -EXACTION OF TOLLS- CONSTITUTIONAL LAW. - (1) Under a statute of Michigan for the improvement of the Manistee river, a stream wholly within that State, an improvement company was organized that improved the channel of the river. The company was authorized by the statute to exact tolls for the use of the river thus improved. Held, that this statute is not in violation of the fourteenth amendment of the United States Constitution, which declares that no State shall deprive any person of life, liberty, or property without due process of law; and that the statute did not impair the contract contained in the ordinance of 1787 for the government of the territory of the United States north-west of the river Ohio, giving to the people the right to use the waters leading into the St. Lawrence, free of duty, tax, or impost. Nov. 14, 1887. Sands v. Manistee River Imp. ¡Co. Opinion by Field, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

LANDLORD AND TENANT - LIABILITY OF LANDLORD TO KEEP PREMISES IN REPAIR.- Plaintiffs leased and occupied with a dry-goods store the lower floor of dedefendant's building, the second floor of which was occupied by other tenants. Upon the second floor was a water-closet, under the control of the tenants, but over which defendant exercised no control, and which she was under no obligation by contract to care for. By improper use of some unknown person the closet became obstructed, and the water overflowed, and damaged plaintiff. Held, in an action for these damages, that defendant was not liable. It is not shown that the defendant, in the lease to plaintiffs, covenanted to keep this closet, or any part of the premises in repair. Yet Livingstone, her agent, as shown by the testimony, did repair the closet whenever he was notified that any trouble with it existed. But this overflow of water was not caused by the closet or any of the pipes therein being out of repair. The whole difficulty, leaving out, as we must, the question whether the closet was properly constructed, arose from the negligence or wanton act of some one in stopping up the waste-pipe, and leaving the valve open. Livingstone, the agent, or Mrs. Barns, the principal, had no care over or custody of this closet, or any keys to the same. It was under the control of the Royal Templars, who employed a man to take care of it and keep it in order. No one else had access to it without their permission, excepting the furniture firm, who also had a key to it. The stoppage occurred in the night, after the store of plaintiffs was closed, and presumably late in the evening. We do not see how the defendant can be made liable for these damages. Even if she were bound by the covenants of the lease to plaintiffs to keep the premises in repair, of which there is no evidence, there was nothing out of repair of which defendant had any notice, or was bound to take notice. By a temporary filling up of the waste-pipe the damage was occasioned. The defendant did not have care of this closet; the duty of keeping it clean and in working order when in repair rested upon others. She or her agent did not know of this stoppage causing the leak, and circumstances preclude any presumption of such knowledge, and under the facts shown, she was not bound to know of this obstruction. It was not her duty to employ some one night and day to watch this closet. It would be unwarranted to find that she

was guilty of negligence. Mich. Sup. Ct., Oct. 20, 1887. Kenny v. Barns. Opinion by Morse, J.

STATUTE OF FRAUD-CONTRACT OF SERVICE FOR A YEAR. A letter engaging an hotel manager at $125 per month" showed upon its face that the engagement contemplated his giving up another situation, removing with his family to an hotel several hundred miles away, and undertaking there, besides his duties as manager, those of the secretary and treasurer to the hotel company. The defendant's letter that plaintiff replied accepting the position at "$1,500 per annum." Held, that the engagement was a yearly one; that the reply did not introduce any new terms, and defendant could not plead the statute of frauds. Where a person is hired to serve another without any agreement as to the duration of service, there is no inflexible rule of law as to the length of time the hiring is to continue. The question as to the length of time the hiring is to continue will be governed by the circumstances of each particular case. If one is hired to work in a crop being raised, the presumption is in the absence of circumstances showing a contrary intention, that his term of service is to continue during the crop season. If one is hired to do general service on a farm, the presumption is, in the absence of an agreement to the contrary, or circumstances showing a contrary intention, that the term of service is to continue for a year. The same rule applies to the hiring of persons to do service in any business that requires constant labor. As this rule is not inflexible, and may be controlled by circumstances, the circumstances of agreeing on weekly, monthly, quarterly or half-yearly payment of wages may be sufficient of itself to create the presumption of a hiring for the corresponding periods. But the circumstances of the hiring, though no time is expressly agreed upon, may show that it was to continue for a year, although the payment of wages was to occur monthly, etc. And we think that the facts set forth in the writing just quoted manifest a hiring by the year, and that the appellant intended to hire the appellee by the year, for it is shown by the letter that the appellee was in business in the city of Louisville as the manager of Staniford Hotel; that he was required to give up that business and move himself and family to Hot Springs, Arkansas, and there assume the management of the Avenue Hotel, and to act as secretary and treasurer of the hotel company. Was the appellee to give up his position in the Stanford Hotel in Louisville, and move himself and family to Hot Springs, Arkansas, a distance of several hundred miles, at a large expense to himself, for the sake of a month's employment at the price of $125 in the Avenue Hotel? We think that neither the appellant nor the appellee contemplated a contract of this kind. We think that the writing shows that they did not; but it shows that they contracted for a year's service at the rate of $125 per month, or $1,500 for the year. Besides, the appellee replied by letter, dated the 6th of October, 1882, as follows: "M. H. Smith, Esq., VicePresident of the L. & N. R. R.- Dear Sir: I am in receipt of yours of the fourth inst., in which you accept my proposition to take the management of the Avenue Hotel at Hot Springs, Ark., for one year, at $1,500 per annum, and rooms and board for self and family. I will make arrangements to leave for Hot Springs in the next thirty days. I assure you that whatever of judgment, energy and ability I possess, shall be exercised to the fullest in advancing the interest of the business committed to my care. Hoping I may succeed in carrying out all your wishes, I am Respectfully, Thomas A. Theobald." This letter was duly received by the appellant, to which he made no reply, and the appellee took charge of the hotel pursuant to the terms indicated in the letters. But it is contended

by the appellant that as the statute of frauds requires that he should sign a written agreement, memorandum, or note, evidencing the terms of the contract, in order to be bound by it, this letter did not bind him to the terms therein indicated. There are two auswers to this position: First, the letter does not add to or change the term of the contract as indicated in the appellant's letter. As we have shown, the appellant's letter, as to the duration of the time of service, should be construed according to the understanding of the parties; and the appellee's letter merely definitely interpreted that understanding, to which the appellant assented by his silence and acquiescence. Second, the contract was one that could not be wholly performed within a year from the making of it; and in order to bind both parties to its performance, each one should have signed a writing, memorandum, or note evidencing the term of the contract. It is true that a writing, memorandum, or note evidencing the contract, signed by the party sought to be charged, satisfies the statutes; but to bind the other party to the performance of his part of the contract, where his performance comes within the statute, it is necessary that he should sign some writing, memorandum, or note evidencing the terms of the contract; therefore as neither the appellant nor the appellee could have wholly performed his part of the contract within a year from the time of making it, it was necessary that the appellee, in order to be bound to perform his part of the contract, should have signed a writing evidencing the terms of the contract. Therefore as the two letters relate to and set out the terms of the contract which the statute requires to be in writing, and signed by each party, in order to bind each to its performance, both letters should be considered together as forming but one contract. Ky. Ct. App., Oct. 11, 1887. Smith v. Theobald. Opinion by Bennett, J. TAXATION SCHOOLS. The first question under this clause is whether the plaintiff's real estate which was taxed was occupied for the purpose for which the plaintiff was incorporated; and inasmuch as the incorporation was under the general law, the second question is, under the last part of said clause, whether any portion of the taxed property, real or personal, was" used or appropriated," at the time of taxation, "for other than literary, educational, benevolent, charitable or religious purposes." The purpose of the plaintiff's incorporation was the "education of boys." "Education is a broad and comprehensive term. It has been defined as the process of developing and training the powers and capabitities of human beings.' To educate according to one of Webster's definitions, is "to prepare and fit for any calling or business, or for activity and usefulness, in life." Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all. The plaintiff's trustees did not exceed their authority under their certificate of incorporation, when they established an institution one of whose purposes was, according to the facts found, "to provide a place where young men, whose early education has been neglected, could be instructed, their physical welfare cared for, and a practical knowledge of work, especially in agriculture, given by requiring of each member of the school a certain amount, usually two hours per day, of manual labor on said farm." It appears further in the facts that "the aim of the industrial arrangements is not so much to secure pecuniary benefit as to provide for physical culture, teach how to do various kinds of farm work, form habits of industry, and inculcate right views of manual labor, and especially of agriculture." The plaintiff's farm consists of about 400 acres of land, upon which, besides the buildings

EXEMPTION

containing the chapel, school-room, library, museum, cottages for lodging, general dormitory for 200 pupils, and dining hall, there are two farm-houses, barns, and other buildings adapted to farm purposes. The farm was used for tillage, pasture, and other agricultural purposes, and "oxen, horses, and swine were bred, reared, kept and used on it." "No person under the age of sixteen years, or not having health, mental ability and moral character, could be admitted into the school." The farm was mainly carried on by the labor of the scholars of the school, and the products of the farm were for the most part consumed in said school. The animals kept on the farm were tended by the plaintiff's scholars. During the year following May 1, 1884, the products and live-stock of the farm were sold for cash, or exchanged in barter at current market rates, amounting in value at $1,047.57. These appear to have been articles not desired for consumptson. Four hundred dollars of the amount was received for two cows of imported stock, and their two calves. Pork and hogs were exchanged in part for beef, and there were other products incidental to the management of the farm, some of them perishable, which apparently were not needed for use in the school. The use of the farm, and of the personal property upon it, resulted beneficially to the plaintiff in three different ways: First, it furnished for the scholars the field, objects. and materials necessary for their physical training and practical study of agriculture, in connection with manual labor, and the general development referred to in the above-quoted statement of the purposes and aims of the school; secondly, it provided food for the pupils and teachers who were in attendance, and contributed directly to the economical support of the scholars, which was an important object of the institntion; thirdly, so far as the products of the farm were sold, the plaintiff presumably obtained profit, and to that extent replenished its treasury. The use of the property to accomplish either of the first two results would be for the purpose for which the corporation was formed, within the meaning of the statnte we are considering, and would leave the whole exempt from taxation; the use of it to accomplish the last would not. To an institution of learning, attempting to furnish practical education in agriculture, and to give boys physical development by manual labor, a farm is as necessary as are chemicals and chemical apparatus to a teacher of chemistry. And a farm cannot be managed without the personal property properly appertaining to it. So too in connection with a boarding school, situated as this was, the corporation's use of the farm, to raise provisions for its scholars, is to be distinguished from the use of it to increase the funds in its treasury, and thereby enable it to do its charitable work. This distinction is well marked in Academy v. Wilbraham, 99 Mass. 599, and Chapel of Good Shepherd v. Boston, 120 id. 212. See also Female Seminary v. People, 106 Ill. 398. The purpose referred to in the statute contemplates the direct and immediate result of the use of the property, and not the consequential benefit to be de rived from the improvement of it. Where one of the objects of an institution of learning is charitable, and boys are required to pay only a part of the cost of their education,—as in this case only $100 per year for board and tuition, the corporation may own its property, and use it directly in the education of its pupils, as well when the property is land upon which provisions are raised for their sustenance, as when it is real estate occupied by the houses in which they dwell. But if it seeks to promote its educational and charitable objects by obtaining profit from its property and filling its treasury for future use, that purpose is not within the exempting clause. The practical

difficulty in cases of this kind is to ascertain the purpose for which the real estate is occupied; when that is determined, the result is reached. In this case the plaintiff's purpose in the use of its farm must be ascertained from its conduct; its acts and the declarations accompanying them. Its general purposes in establishing the institution, under the authority of its certificate of incorporation, are very fully set forth in the facts reported. One was to teach the boys, among other things, agriculture. Another was to furnish them board and instruction at a small charge. Getting money and supplying the treasury was not one of the purposes for which the institution was founded. It was merely a means by which these purposes were to be accomplished. Was this farm used to practically teach the boys agriculture, and give them physical training, and furnish them manual labor as a part of their education? Was it used to furnish supplies directly to the boarding school, and so lessen the cost of education there? Was it, on the other hand, used to produce revenue, and earn income which might afterward be expended for the school? It seems to us that the farm, and the property upon it, were used in the legitimate management of the school, to directly accomplish its purposes, and not to obtain money for subsequent use in accomplishing them. The fact that products were sold is a circumstance important only so far as it characterizes the use. We think the sales

were merely incidental to a use for the purposes of duced in a school by practical instruction in chemistry, and are subsequently sold instead of being wasted, that does not change the character of the use of the apparatus, and the original ingredients employed. And if a farm is set apart and cultivated to supply food for a family or community, it does not cease to be used for that purpose because in the economical management of it there are certain products which cannot be utilized otherwise than by sale. The same considerations apply to the last question under the statute, whether any portion of the property was "used or appropriated for other than literary, educational, benevolent, charitable, or religious purposes." So long as the personal property was held by the plaintiff, it was not used otherwise than incidentally to the use of the farm, and so was not liable to taxaeion. The subsequent sale of it had no retroactive effect to subject it to assessment. Unless restrained by special provisions of law, any institution may sell its property which is exempt from taxation, and properly dispose of the proceeds. The sale of farm products is ordinarily evidence that the farm is used for profit, and in most cases it would deprive a party of the exemption here claimed; but under the peculiar facts of this case, we deem it unimportant, and hold that the ruling that the action could not be maintained was erroneous. Mass. Sup. Jud. Ct., Oct. 20, 1887. Mt. Hermon Boys' School v. Town of Gill. Opinion by Knowlton, J.

the institution. If certain valuable chemicals are pro

CORRESPONDENCE.

PIPER V. HOARD.

Editor of the Albany Law Journal:

I am unable to reconcile to my own satisfaction the two reports in your last number of the ALBANY LAW JOURNAL, of the very interesting case (or cases) of Piper v. Hoard. There seem to have been handed down the same day, October, 11, two decisions of the Court of Appeals; one at page 467 (opinion by Peckham, J.), and one at page 475 (opinion by Finch, J.) Are these decisions directly in conflict with each other, or is there this distinction, viz.: That in the

[The case reported in abstract was upon a complaint to set aside a deed for fraud and undue influence. The distinction between the two decisions is pointed out in the close of that decision, by Finch, J., as follows: "It is claimed, in addition, that the complaint contained a cause of action in the plaintiff's own right, and not derived from her father, and which she asserted in due season after the disability of infancy was ended. That cause of action is said to exist in the false representations made to her mother by Hoard to induce the marriage contract, and which he could be required to make good to the issue of the marriage. But the complaint does not rest upon any such right. That cause of action concedes the validity of the deed to Hoard, and seeks to impose a trust upon the property conveyed by it, and it is utterly inconsistent with the allegations of the complaint, which deny wholly the validity of the conveyance and the legal title of Hoard. This suggested cause of action was very properly made the subject of a new suit which is itself before us on appeal, and should not be further considered here."-ED.]

NEW BOOKS AND NEW EDITIONS.

BAKER ON SALES.

The

A Treatise on the Law of Sales of Goods, Wares and Merchandise as affected by the Statute of Frauds. By John F. Baker. Chicago: Callaghan & Co. Here is a volume of some six hundred and fifty pages on a single branch of of the statute of frauds. particular subject has been treated repeatedly in excellent works on sales and on the statute of frauds. It is no doubt a very important division of the statute, but this volume suggests a natural inquiry whether it deserves so extensive independent treatment, and this inquiry we should answer, for ourselves, in the negative, unless the author's evident purpose of making a substitute in one volume for all the cases which need a table of twenty pages, is practicable or desirable, and this fundamental question we should also answer, for ourselves, in the negative. If the reports must still be resorted to, then the treatment which the subject has received in more comprehensive works, is sufficient. And yet, we dare say, this magnified view of the topic will prove valuable to a good many practitioners who have not access to large libraries. For such a lawyer, who wants the best substitute to hold in his hand in court, or to consult in an emergency, we suppose this book will be of great usefulness. It is not written on a plan which we admire or should recommend. Instead of definite and concise rules, with clear distinctions, using cases sparingly as illustrations, the text is composed of a statement of the decisions, with long extracts, frequently covering several pages for a single The result of such a plan is confusing. The reader has to read through too much to get at the kernel. We find the same fault, to a less extent, with Mr. Benjamin's work on Sales, famous as it is. Mr. Baker is a good-natured commentator,

case.

it seems.