scent from their mother. To entitle the husband to be tenant by the curtesy, the inheritance must descend upon the children." In Barker v. Barker, 2 Sim. 250, it was decided: "A devise to A and her heirs, but if she died, leaving issue, then to such issue and their heirs. A died, leaving issue. Held, that her husband was not entitled to be tenant by the curtesy." In Stead v. Platt, 18 Beav. 50, it was decided that: "There is no estate by the curtesy issuing out of an estate pur autre vie. The seisin of the wife must be an actual seisin or possession of the lands; not a bare right to possession, which is a seisin in law, but an actual possession, which is a seisin in deed. And therefore a man shall not be tenant by the curtesy of a remainder or reversion." 2 Bl. Comm. 127; Gibbins v. Eyden, L. R. 7 Eq. 371, 38 L. J. Ch. 377. In considering this question in the case of Hearle v. Greenbank, 3 Atk. 695, 716, Lord Chancellor Hardwick said: "But, considering what is necessary to make a tenant by the curtesy, the wife must have the inheritance, and there must be likewise a seisin in deed in the wife during coverture." As to this seisin in deed referred to in the English law, I should think it should be observed that the rule laid down by Chancellor Kent, as above quoted, is to be regarded as controlling in this country. Kent (4 Comm. 29) says: "The wife, according to the English law, must have been seised in fact and in deed, and not merely of a seisin in law of an estate of inheritance, to entitle the husband to his curtesy. The possession of the lessee for years is the possession of the wife, as reversioner; but if there be an outstanding estate for life the husband cannot be tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during the coverture. This is still the general rule at law, though in equity the letter of it has been relaxed by a free and liberal construction. The circumstances of this country have justly required some qualifications of the strict letter of the rule relative to a seisin in fact by the wife; and if she be owner of waste, uncultivated land, not held adversely, she is deemed seised in fact, so as to entitle her husband to his right of curtesy." 1 Washb. Real Prop. (4th Ed.) 162, 165, 173. This view sustains the further exceptions. BOUNDARIES-INLAND LAKES-LOW WATER. -It is decided by the Supreme Court of Vermont in McBurney v. Young, 32 Atl. Rep. 492, that low-water mark on the shore of an inland lake, as a terminous of boundary is ordinary low-water mark and not that of an exceptionally dry season. The court says: The plaintiff's land is bounded by the waters of of Lake Champlain. Both parties concede that by the law of this State the plaintiff's land does not extend beyond low-water mark. Such is the law of this State. Fletcher v. Phelps, 28 Vt. 257; Jakeway v. Barrett, 38 Vt. 316; Austin v. Railroad Co., 45 Vt. 228. The contention is over the meaning of the term "low-water mark," as used by the courts and law writers. The plaintiff insists that it means the lowest point to which the water has ever receded. The defendant says that it means ordinary low-water mark. By the common law all that portion of land on tide waters between high and low-water mark, technically known as the "shore," originally belonged to the crown, and was held in trust by the king for public uses, and was not subject to private uses without a special patent or grant. Mayor, etc., City of Mobile v. Eslava, 9 Port. (Ala.) 577; Pike v. Monroe, 36 Me. 309; 3 Kent. Comm. 11th Ed.) *427. In Maine the common law was changed by an ordinance of 1641, which declares that proprietors of land adjacent to the tide waters "shall have propriety to the low-water mark," "where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further." For the whole article, see Com. v. Alger, 7 Cush. 67. In Gerish v. Union Wharf, 26 Me. 384, the court were called upon to define the meaning of "low-water mark" as used in that ordinance, and in passing upon the question said: "It evidently contemplates and refers to a mark which could be readily ascertained and established, and that to which the tide on its ebb usually flows out would be of that description. That place to which the tide might ebb, under an extraordinary combination of influences and of favoring winds, a few times during one generation, could not form such a known boundary as would enable the owner of flats to ascertain satisfactorily the extent to which he could build upon them. Much less would other persons, employed in the business of commerce and navigation, be able to ascertain with ease and accuracy whether they were encroaching upon private rights or not, by sink ing a pier or placing a monument. It would seem be reasonable that high and low water-marks should be ascertained by the same rule. The place to which tides ordinarily flow at high-water becomes thereby a well-defined line or mark, which at all times can be ascertained without difficulty. If the title of the owner of the adjoining land were to be regarded as extending, without the aid of the ordinance, to the place to which the lowest neap tides flowed, there would be found no certain mark or boundary by which its extent could be determined. The result would be the same if his title were to be limited to the place to which the highest spring tides might be found to flow. It is still necessary to ascertain his boundary at high-water mark in all those places where the tide ebbs and flows more than one hundred rods for the purpose of ascertaining the extent of his title towards low-water mark. It is only by considering the ordinance as having reference to the ordinary high and low-water marks that a line of boundary at low-water mark becomes known, which can be satisfactorily proved, and which, having been once ascertained, will remain permanently established." Sir Matthew Hale, in his treatise De Jure Maris, ch. 4, says: "The shore is that ground that is between the ordinary high and low-water mark." He remarks also: "It is certain that that which the sea overflows, either at high spring tides or at extraordinary low tides, comes not, as to this purpose, under the denomination of 'littus maris, and consequently the king's title is not of that large extent; but only to land that is usually overflowed at ordinary tides." This treatise has been received by judicial tribunals and by distinguished jurists, both during the earlier and later years of the law, with unqualified approbation and commendation. The authorship of this work has been questioned, but it has often been recognized in this country by the courts, and has become a text book. Houck, Rivers, § 30. In Storer v. Freeman, 6 Mass. 436, it was in effect held that low-water mark, as applied to the sea shore, is ordinary low-water mark. In Canal Com'rs v. People, 5 Wend. 423, cited in Gould, Waters, § 82, Chancellor Walworth, while holding that the common-law rule was applicable to the navigable fresh rivers of New York, said: "The principle itself does not appear to be sufficiently broad to embrace our large fresh water lakes, or inland seas, which are wholly unprovided for by the common law of England. As to these there is neither flow of tide nor thread of stream, and our local law appears to have assigned the shores down to the ordinary low-water mark to the riparian owners, and the beds of the lakes, with the islands therein, to the public." In Sloan v. Bie. miller, 34 Ohio St. 492, low-water mark is defined to be "ordinary low-water mark;" and in Seaman v. Smith, 24 Ill. 521, it is said to be the "line where water usually stands when unaffected by any disturbing cause." The question of what is meant by low-water mark as a terminus of boundary was discussed and passed upon in Stover v. Jack, 60 Pa. St. 339, and it was held to be the ordinary low-water mark. While the opinion of the court disclaimed the application of any law except that of Pennsylvania to the question, the reasoning of the court is very satisfactory. It said: "To adopt any other rule than low-water mark, unaffected by drought, as the limit of title, would carry the rights of riparian owners far beyond boundaries consistent with the interests and policy of the State, and would confer title where heretofore none has been supposed to exist. Ordinary high water and ordinary low water each has its reasonably well-defined marks, so nearly certain that there is not much difficulty in ascertaining it. The ordinary rise and fall of the stream usually finds nearly the same limits. But to bound title by a nick which is set by an extraordinary flood or an extreme drought would do injustice, and contravene the common understanding of the people." These suggestions, as well as the others quoted, apply with great pertinency to the case at bar. Lake Champlain is a public, navigable water. It does not appear that at any other time in its history its waters have receded to the point to which they did in the exceptionally dry season of 1882. We think that upon reason and authority low-water mark, as a terminus of boundary, must be held to mean ordinary lowwater mark. This being so, defendant Young did not enter upon the premises of the plaintiff, as the referee finds that Young's boat, from which he fired at the ducks passing overhead, at the time of such firing, was at a place in the lake below ordinary low-water mark. ABSTRACTS OF TITLE. The common use of what is known as "an abstract of title," renders a discussion of the subject of some interest, both to lawyers and laymen. Among laymen there seems to prevail, generally, a belief in the potency of an "abstract" approaching the "warranty" in a deed. Some petty official with an office sign indicating to the public that there they may get "an abstract" of the title to their lands, will, for a fee, out of all proportion to the importance of this information, furnish the applicant with, at the best, a brief statement of the transfers respecting the property in question with a statement of liens, incumbrances, etc., and attach his certificate to the effect that "he has made a thorough search of the records, and that the above is a correct statement of the transfers relating to such property, so far as appears of record in his office." If the "abstract books" in his office have always been under the care and control of an experienced, competent man, and have been kept thoroughly posted to date, then his certificate may mean something. And in this case he merely furnishes a statement of title according to his books. He does not guarantee anything; not even the correctness of his books as copies of the original entries. Any lawyer would supply the same need from an examination of the original entries with far more of certainty as to detail, although, probably, not quite so cheap. But on the other hand, suppose the person who certifies to the correctness of the abstract is incompetent and entirely unacquainted with the law governing conveyancing and title to land, like many scattered all over the country who monopolize the business of the examination of titles. The subject of real property is one of great divisions into which our law is divided. It is the most comprehensive, difficult, complicated and technical branch of our jurisprudence, and any other method for its elaboration and application, than the recognized one of placing it in the hands of skilled servants and interpreters of the law, is most unwise. The person preparing a perfect abstract must fully understand all the laws on the subject of conveyancing, descents, uses, trusts, devises-indeed, every branch of the law that can affect real estate in its mutations from owner to owner.1 In every new country the question of title is of primary importance. Every sale requires an examination of the title. The purchaser should know what he is to get through the transfer. The land may be burdened by any one or more of a score of chances. There may be a doubtful link in the chain of title by reason of some previously undiscovered clause in a will, a qualification or condition in a deed, a tax title, or some other defect or menace hanging suspended by a mere chain like that reminder which the Emperor Dynisius gave to his too confident follower Damochs. Many questions of law are presented in the preparation of abstracts of titles to land, which render the surrender of this division of the practice to lay examiners as extremely 1 Banker v. Caldwell, 3 Minn. 101; Dickinson v. Ry. Co., 7 W. Va. 413. unwise. In England, this practice is placed upon a better footing. The mechanical work necessary to be done is the part which falls to the examiner. He reports, at length, to learned counsel, who passes upon the sufficiency or non-sufficiency of the title. This is the only proper system in the preparation of these abstracts, and it would be far better for all concerned, except the "abstractors," so called, if this English system prevailed in this country. What is an abstract of title? It is simply a brief of title. A succinct statement of the documentary facts of record which in any material way affect the title. "A condensed history of the title to land, consisting of a synopsis or summary of the material or operative portion of all the conveyances, of whatever kind or nature which in any manner affect said land, or any estate or interest therein, together with a statement of all liens, charges or liabilities to which the same may be subject, and of which it is in any way material for purchasers to be apprised." This is the definition of Warvelle, 2 and seems to be founded on the opinion of the court in Banker v. Caldwell, ordinarily a brief, not a copy, of that from which it is taken. "An abstract or summary of the most important parts of the deed and other instruments composing the evidences of a title to real estate, arranged usually in chronological order, and intended to show the origin, course and incidents of the title, without the necessity of referring to the deeds themselves. It also contains a statement of all charges, incumbrances and liabilities to which the property may be subjected, and of which it is in any way material for purchasers to be apprised." Now, if the rule is followed indicated by the opinions above, the difficulty in the way of any nondescript in the preparation of an abstract of title, is at once apparent. For an abstract should contain whatever concerns the sources of the title and its present condition. The origin and line of descent of the title must be shown clearly and fairly. All incumbrances, adverse claims to possession, chance rights, equitable interests should be shown. The material parts of all patents, deeds, wills, judicial proceedings, and such other record facts which affect title, such as 2 Warvelle on Abstracts of Title, Sec. 2. 33 Minn. 94. + Dickinson v. Ry. Co., 7 W. Va. 413. Anderson's Dict. of Law, p. 9; Burrill's Law Dict. mechanics' liens, attachments, lis penden3 and the like. And it might not be deemed unnecessary in some cases to include matters in pais, such as births, marriages, descents and successions, which are connecting links or cross-bars in the chain of title.6 7 The Need of the Abstract. - The need of the abstract is to enable the vendee or his lawyer to pass upon the title at once. When a contract of sale is entered into, where real estate is the subject-matter, there exists an implied undertaking on the part of the vendor, that before the completion of the terms of the contract he will, or his heirs or representatives, show a good title, and, of course, until he does so, the vendee is not bound to accept a deed or pay the purchase money. It is the English practice and law to require the vendor to furnish an abstract of the title to land proposed to be transferred to the vendee. And a purchaser in possession under a contract of sale is not bound to pay interest on the purchase money, nor to render an account of the rents and profits of said land until such a time as a good title is shown in this manner. In the States the rule is modified somewhat. While the vendor is not strictly bound to furnish such abstract, he is compelled to show a marketable title, if able. A contract of sale is now seldom, if ever, entered into until this question of title is well settled. Although it may matter, not under the terms of a contract, whether or not there is a present defect in title if the guaranty to pass a perfect title upon a definite date is relied upon. 8 The Makeup of the Abstract. - If the abstract is to possess any value it should contain a careful briefing of the following points: If a deed: The general character of such instrument; names and descriptions of parties; recitals of transfer or lien; the consideration; description; habendum; reddendum; covenants of title; signing, sealing and witnessing; acknowledgment; registration and any conditions, or limitations to alienation or possession. While it is true that all forms for abstracts do not provide for such a searching 6 Chase v. Heaney, 70 Ill. 268; Am. & Eng. Ency. of Law, p. 46, Vol. 1. 7 See Shreck v. Pierce, 3 Clark, 350; Espy v. Anderson, 14 Pa. St. 308. 81 Chitty Practice, 298; Williams on Real Prop. 448; 1 Prest. Abstracts, 34. 9 Am. & Eng. Ency. of Law, p. 46, note 5 and cases cited. of title as implied under the foregoing headings, no abstract of title which contains less, or which is not based upon a thorough search such as would be necessitated to determine these questions, can be regarded as a safe guide in determining title to realty under a deed.10 If a patent: The date, name of party to whom issued; recital of payment; the devise ; name of person to whom payment made; if any assignment; description; signing, etc.; liber and page. If a will: Better have a complete copy, as it has been held by some State courts,1 that the power to sell land may sometimes be implied from the imposition on the executor of duties which cannot be performed except it be by sale. The same might be said of powers of attorney, or of any like power as to their being set out in the abstract in full.12 If a title by judicial sale: Name of the court or jurisdiction; a careful search should show all matters necessary to jurisdiction, as in a collateral attack, this is the weak point; the judgment or decree; sale, report and confirmation; deed. If a title by execution sale: The judgment should be noted and described; the execution; exemption rights; appraisement, if required by law; notice of sale; sale and confirmation; redemption, if any; deed. If a tax title: The slightest flaw in a tax title is fatal. It is the policy of the courts to require the strictest construction of the law with reference to these titles. 13 The validity of the assessment is very important, as it is the first step in an extraordinary proceeding; the levy; any special assessment such as a paving tax and the like; the tax collector's authority; return of unpaid tax; any judgment in consequence; notice of sale and sale; the certificate or deed. If a question of dedication to public use, a careful examination of the instrument, its conditions and the acts of the public, or the official representatives of the public, may be of importance. If liens or incumbrances, a careful examina 10 Am. & Eng. Ency. of Law, p. 47. 13 See for instruction Sibley v. Smith, 2 Mich. 486; Cooley on Taxation; Huntington v. Cen. Pac. Ry. Co., 2 Saw. (U. S ) 503; Smith v. Davis, 30 Cal. 536; Shimmin v. Inman, 26 Me. 228; Brown v. Veazie, 25 Id. 359; State v. Cook, 82 Mo. 185; Tierny v. Union Lumbering Co., 47 Wis. 248; Cahoon v. Coe, 52 N. H. 518. tion of the particular kind of lien is essential. 14 Story on Bailments, Sec. 431; Wharton on Neg., 749; Chase v. Heaney, 70 Ill. 268; Chapman v. Chapman, 9 L. R. Eq. 276; Ireson v. Pearman, 5 Dowl. & R. 687; Waine v. Kempster, 1 F. & F. 695; Clark v. Marshall, 34 Mo. 429; Page v. Trutch, 8 Chicago Legal News, 385; Am. & Eng. Ency. of Law, p. 48, and cases cited. 15 See Page v. Frutch, supra; Savings Bank v. Ward, 100 U. S. 195; Houseman v. Girard, etc., 81 Pa. St. 256. 16 Valette v. Tedens, 122 Ill. 607, 3 Am. St. Rep. 509. 17 Kimball v. Connolly, 42 N. Y. 57. they will be received in evidence. 18 They be long to the class of "secondary evidence," and their reception in evidence is generally, by consent of counsel, and is a matter of courtesy in trial, and to aid in facilitating the proceedings. PERCY EDWARDS. 18 Weeks v. Downing, 30 Mich. 6. CARRIERS - INJURY TO PASSENGERS - TORTS OF SERVANT. GOODLOE V. MEMPHIS & C. R. CO. Supreme Court of Alabama, June 19, 1895. At a station platform on defendant's road, one of defendant's servants, while engaged in a playful scuffle, was unintentionally pushed against plaintiff, who had purchased a ticket, and was preparing to go upon the train, thereby causing him to fall from the platform and sustain injuries: Held, that the conduct of defendant's employees was not fairly incident to their employment, and defendant was therefore not liable. HARALSON, J.: We examine the single question presented by the defense and alone considered by the appellant, that the defendant is not guilty, for the reason, that the injury complained of was not inflicted on plaintiff by the defendant's servants or employees, while they were acting within the range but outside of the authority conferred by defendant on them. Other errors assigned are not insisted on in the argument filed, and are, therefore, treated as waived. The question presented has been well considered by this and many other courts. It was recently before us in the case of Lampkin v. Railroad Co., 17 South. Rep. 448, in which, as the result of the authorities there cited, it was stated, as the well-settled rule, that the carrier's obligation was to protect its passengers against the violence and insults of its own servants and of strangers and copassengers; that a contract exists between a common carrier and its passengers, to use all reasonable exertion to protect them from injury from fellow-passengers, and its agents, in charge of the train. In an earlier case, it was said, that "the clearly established doctrine now is, that railroad corporations are liable for all acts of wantonness, rudeness or force, done or caused to be done by their agents or employees, if done in and about the business or duties assigned to them by the corporation; and the rule of vindictive or punitive damages against such corporations for abuse by their employees of the duties and powers confided to them, is the same as that, which applies to natural persons, who are guilty of such misconduct. It is confined, however, to abuses perpetrated in the line of duties assigned to them, and does not extend to any tort, wantonness or wrongful act the employees may commit in matters not connected with the service of the railroad corporation. In he line of their assigned duties, they stand in the place of the corporation; without that line, the corporation is bound by nothing they may do." Railroad Co. v. Whitman, 79 Ala. 325. The same principle had been differently but very clearly expressed in Gilliam v. Railroad Co., 70 Ala. 268, -"that if the employee, while acting within the scope of the authority of the employment, do an act injurious to another, either through negligence, wantonness or intention, then for such abuse of authority conferred upon him, or implied in his employment, the master or employer is responsible in damages to the person thus injured. But, if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master is not." The principle settled in these and many other similar adjudications is not disputed, but its application to the cases as they occur, gives rise to continued disputations. What is meant by the words, "while acting within the range of the authority of the employment of the servant," is made the ground for contention in each case. But, that seems, also, to be well settled on authority, and while it is often a matter of nice adjustment to the facts of a case, it has been made clear enough, not to be of very difficult application. It is said, on the point under consideration, that the rule of the responsibility of the master for the acts of his * * * servants, "does not apply simply from the circumstance that at the time when the injury is inflicted the person inflicting it was in the employment of another; but that, in order to make the master liable, the act inflicting the injury must have been done in pursuance of an express or implied authority to do it. That is, it must be an act which is fairly incident to the employment; in other words, an act which the master has set in motion. And generally, where the injury results from the execution of the employment, the master is liable." 2 Wood, R. R. § 316. In explanation of the rule, this court long ago held, as the result of the authorities examined and cited, that when the servant is in the performance of his master's orders, or authorized acts, and in the doing thereof, conducts himself so negligently or unskillfully that injury results to another, then the doctrine of respondeat superior applies, and the master will be liable in an action on the case; but that, for the acts of the agent, willfully and intentionally done without the command and authorization of the master the servant, and not the master is liable; and that the rule has no application when the servant actually wills and intends the injury, or steps aside from the purpose of the agency committed to him, and inflicts an independent wrong. Cox v. Keahey, 36 Ala. 340. So, we find it held, that where a slave, being a passenger on a steamboat, was wounded by a gun negligently discharged by the second engineer of the boat, the captain, in an action against him for the injury, was held not to be liable, because the discharge of the gun by the engineer, was not an act done in the course of his |