Nothing will set your fortunes earlier, and if your legal and general studies are faithful, nothing will mark you more conspicuously and brilliantly than a rich, select and copious English style.

This, with his emotional nature and eloquent feeling, placed Erskine at the head of the bar of England, in an hour and forever.

This, more than any thing else (always excepting his prodigious learning and power of logic), made the spell of Pinkney's orations. The tendencies of the bar are to a cheap, extemporaneous, impoverished gobble. To counteract this, resolve to be master of our mother tongue; it will cost you a life-time, and it is worth it. Write every day. If too exhausted for original composition, translate, say from Demosthenes, Cicero, Tacitus, Seneca, Pascal - selecting the choicest, most lively and most energetic expression. Burke, Dryden, Johnson, Shakespeare, Jeremy Taylor, Spencer have all the words. Never, under any circumstances, sleep without having read for the language one page in a great author. It will lift up your spirit, dilate your conceptions, insensibly color and warm your vocabulary. Fluency is not the thing. Rich and weighty speech is power! But I have run through my letter. I wish you the loftiest success, and look to handsome things from you.

Roger H. Lyon, for defendant McCrum.

REYNOLDS, J. The defendant McCrum, after mak. ing the mortgage in suit, conveyed the mortgaged premises to defendant Weinberg, she assuming the payment of the mortgage. Upon the maturing of the boud and mortgage, McCrum having then come into the position of surety, requested the plaintiff (the mortgagee) to proceed immediately to foreclose and collect the debt, on the ground that the premises, which were then sufficient to satisfy the mortgage, might depreciate so as to become an inadequate security. The plaintiff neglected for a year to commence his suit, and the proof now shows that although the premises were of sufficient value to pay the mortgaged debt and costs of foreclosure at the time the request was made, they have since so far depreciated as to make it altogether probable that there will be a deficiency after applying the proceeds of the sale. The question is whether defendant McCrum should be made liable for such deficiency.

The rule seems to be, that if the creditor omits to do an act, on the requirement of the surety, which equity

and his duty to the surety enjoins on him to do, and the surety is injured by the omission, the latter ought not to be held. That duty enjoins upon the creditor to enforce payment from the party primarily liable, and if being requested by the surety to collect the debt when it is collectible from such party, by measures of active diligence, the creditor refuses or neglects to do it until it becomes uncollectible from the principal, such conduct ought to be a defense in equity to any suit brought against the surety to charge him with the payment of the debt. But failure on the part of the creditor to comply with the request of the surety to enforce payment of the debt will not exonerate the surety unless it result in actual injury to him, and then only to the extent of such injury. The solvency of the debtor or the sufficiency of the fund at the time when the request to collect was made, and subsequent insolvency or insufficiency, are essential parts of the defense of the surety, and must be alleged and proven by him. Thomas on Mort. 70, 71; Remsen v. Beekman, 25 N. Y. 552.

Plaintiff claims, however, that defendant McCrum has not brought himself within the rule releasing sureties, he not having shown that the defendant Weinberg is insolvent; and that, as it does not appear but that plaintiff may be able to collect any deficiency out of her, defendant McCrum is not shown to have sustained any injury from the plaintiff's delay.

The

The answer to this is, that if it turns out that the deficiency can be collected from Weinberg, it will be the duty of the plaintiff to so collect it, and in that case there is no occasion for a decree holding the defendant McCrum; but if it cannot be collected from Weinberg and the defendant McCrum should be made liable, he would be thereby damnified through the plaintiff's neglect to the precise extent of the payment which he would thus be compelled to make. mortgage having been collectible out of the property when the surety requested its collection, he ought not now to be called upon to make up for the subsequent depreciation of the property, and therefore there should not be any such direction against him in the judgment. Such direction, if effectual, would compel him to meet a deficiency which would not have existed if the creditor, the plaintiff, had complied with his reasonable request.

There must be judgment for a sale of the premises, and making the defendant Weinberg liable for any deficiency.

MUNICIPAL NEGLIGENCE,

SUPREME COURT OF MICHIGAN, JUNE, 1877.

CITY OF LANSING V. TOOLAN.

Damages for negligence cannot be recovered against a municipal corporation for an injury resulting from the plan of a public work, as distinguished from its mode of execution. So held, where the injured party had fallen into a ditch which was dug across a highway, but was not covered to the full width of the road. The determination of the plan of a public road is in the nature of legislative action, the lawful exercise of which can neither be a wrong nor be transferred to courts and juries from the body to which it belongs.

Negligence may be predicated of the construction and subsequent management of a public work, but not of its plan.

Opinion of the Court by COOLEY, Ch. J. Toolan brought suit against the city of Lansing to recover damages for an injury received by him from falling into a ditch which, he alleges, was cut by authority of the city across one of its streets, and negligently left uncovered and unguarded. The facts appear to have been that one Van Keuren was employed by the city to build a wing to one of the bridges over Grand river, and that in the prosecution of that work he found it necessary to cut the ditch in question across a street near it to keep the water, after a heavy rainfall, from rushing against and destroying his unfinished wall. This he did on his own responsibility, covering it with plank to the width of sixteen feet. While it remained in this condition, Toolan, in turning off the street in passing along one evening, fell in the ditch and was injured. There were questions of his negligence on the trial below which are immaterial here. The city afterward paid Van Keuren for his work, and allowed the ditch to remain for a sewer. The case was put to the jury as one of negligence, and plaintiff recovered.

It is claimed, in support of the judgment, that the city has accepted and ratified the act of Van Keuren in cutting the ditch and partially covering it, and is therefore liable on the principles laid down in Detroit v. Corey, 9 Mich. 165. It was on this ground that the plaintiff recovered below.

When the case was tried in the Circuit Court, the case of Detroit v. Beckman, 34 Mich. 129, was not reported, If it had been, the circuit judge would probably have instructed the jury differently. It was there decided that the city could not be held liable to one who had fallen into an open sewer and received an injury thereby, where the only ground of complaint was, that the city had not covered the sewer where it crossed a street to the extent which due and proper care required. If the city, in this case, had instructed Van Keuren to make and cover the ditch or sewer as he did, the facts would have resembled very closely those in the Beckman case, and the two could not have been distinguished in principle. The point of the decision was, that a lawful exercise of legislative action cannot be a wrong; and as the determination of the plan of a public work is in the nature of legislative action, there must be something besides the proper execution of the plan- some negligence in its execution, or some other distinct wrong- before the muuicipality constructing the work could be held responsible for a tort.

Now, had Van Keuren been employed by the city to cut the ditch for a sewer, and cover it for the passage of teams as he did, putting it precisely in the condition in which it was when Toolan was injured, the city, under the decision in Beckman's case, could not have been held liable as for negligence in not providing for covering it further. In planning a public work a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection; for, as was shown in Beckman's case, that would be to take the administration of municipal affairs out of the hands to which it has been intrusted by law. What the public have the right to require of them is, that in the construction of their works after the plans are fixed upon, and in their management afterward, due care shall be observed; but negligence is not to be predicated of the plan itself.

This disposes of the present case. If we assume the original responsibility of the city for Van Keuren's act, then the only fault in the case was in not providing further covering for the ditch or sewer. But that goes to the plan only; it has nothing to do with the execution of the plan, which, indeed, is not complained of.

The judgment must be reversed with costs, and a new trial ordered.

NOTES OF RECENT DECISIONS.

Banks and banking: taxation: tax on bank notes.-The act of March 3, 1865, as amended by the act of July 13, 1866, section 3412, R. S., imposes a tax of ten per cent upon all the notes of individuals and of State banks or banking associations, whether they are the issue of the bank "using them as circulation" or not. United States Circ. Ct., S. D. Alabama, Jan. 19, 1877. District Sav. Assoc. v. Marks (Int. Rev. Record).

Contempt: interference with receiver operating railroad.-A receiver is an officer of the court, whose duty it is to protect the property and operate the roads under the direction and order of the court. The prop. erty thus placed in his possession, is considered as properly belonging to the court, and of course entitled to its protection by all the means which are at the disposal of the court, and the court, being a national court, has a right to call upon the nation, as such, to enforce its orders. In proceedings as for a contempt of court, for interfering with railroads in the hands of a receiver, the court proceeds in a summary manner, and the accused is not, of right, entitled to a trial by jury. The court will not proceed summarily to punish an offender, except where the offense is clearly proved. United States Circ. Ct., Indiana, Aug. 3, 1877. King v. Railway Company.

Damages: measure of: diversion of water of stream. -Where the water of a stream had beer diverted from flowing in its accustomed channel, by reason of the erection by H. of a dam at its source, whereby A., through whose land it had flowed, sustained damage, held, that the measure of damages was the difference in the market value of the property of A. as a farm and ore bank immediately before H. appropriated the stream, and immediately afterward as affected thereby, without regard to the fact that A. had formerly used the water, or might hereafter require it for use in washing the ore obtained from his ore bank. Sup. Ct., Pennsylvania, May 21, 1877. Hanover Water Co. v. Ashland Iron Co. (Week. N. Cases).

Highway: fee of land in street: [dedication and abandonment: rights of original owner on abandonment.-Where the owner of land dedicates it to a city for a street, the fee remains in him, and reverts to him when the street is vacated or abandoned. His rights therein cannot be divested by any direct legislative act. Sup. Ct., Illinois, June 22, 1877. Helm v. Webster.

Insurance: contracts interrupted by the war: effect of suspension of payments: duty of insured: domicile: stay law.-Contracts of insurance entered into before the late war, between parties afterward separated in domicile by the belligerent lines, were not abrogated, but only suspended by the war. Acc. Insurance Co. v. Hendren, 24 Gratt. 540, and cases there cited. This suspension extends to he stipulation requiring payment of premiums at dates falling within the period of such separation. Nor, in such case, is it material whether tender of such payment was made at the day, or not, even though the insurer's agent resident in the State

of the domicile of the insured prior to the war, continued to reside there, on the same side with the insured, whilst the insurer and insured were so separated. If such tender would in any case be material, it will at any rate not be when, before the premium in question became due, such agent had publicly proclaimed his purpose not to receive any more premiums, which declaration was probably made known to the insured, and the cause of the failure to tender; and especially when the insurer, after the war, refused to ratify the act of said agent, in receiving payment of a premium from another person as much as a month before the premium in question was due. In such case, however, it is the duty of the insured to tender payment within a reasonable time after the war, if living, and his failure so to do will occasion a forfeiture of the policy. But in case of the death of the insured pending the war, his personal representative would be under no obligation to make such tender; for then there would be in the hands of the insurer a fund of the insured, out of which he could deduct the unpaid premium. Nothing more would then be necessary on the part of the insured than that the insurer should, within a reasonable time from the end of the war, be informed of such death, and of its date. Such information will be sufficient, though unaccompanied by any formal demand of payment, or assertion of right to it. An insurance company chartered by another State, but doing business in this State in compliance with the statutes of 1855-6, is to be considered for the purpose of being sued as domiciled in this State, and is entitled to rely on the statute of limitations just as if it were a company which had been chartered by the legislature of this State. The several acts of the Government of Virginia during the war, suspending the statutes of limitations, were valid to prevent the running of said statutes to 3d of March, 1866. Acc. Johnson v. Gill, 27 Gratt. 587. And the time from 2d of March, 1866, to 1st of January, 1869, is to be left out of the computation under said statutes, by virtue of the seventh section of the act of March 2, 1866, commonly known as the Stay Law. Acc. Danville Bank v. Waddill, 27 Gratt. 448. Though such company had, after the war, expressly revoked the powers of the resident agent it had had before the war, and had never afterward appointed another in his place, service of process on such agent will, nevertheless, be effectual under the statutes in that behalf, to give jurisdiction of an action against such company. The provisions of said statutes of 1855-6 were amendatory of the previous law, and extended as well to policies previously issued, as to policies thereafter issued; and a foreign company doing business in the State under the same, at the time said amendments were enacted, and continuing to do business afterward in compliance with all said statutes, must be taken to have accepted said provisions, and be bound by them. Sup. Ct. of Appeals, July 12, 1877. Life Insurance Company v. Duerson's Executor (Va. L. Jour.).

Legacies and annuities: when chargeable upon land: devise to charitable uses: when void: when subject of such devise descends upon heirs subject to charges.-H., by his will, declared that P. was to have the collection of all the rents of his real estate and interest of mortgages and pay the same over to his executors. After giving certain legacies and annuities, he then directed his executors, "after the payment of the above legacies and the expiration of all the life estates where I have given annuities," to erect a certain charitable

asylum, and for that purpose the testator gave "all the rest and residue of his estate, both real and personal." Held, that from the blending of the real and personal estate, and from the terms of the disposition of the residue, the annuities were chargeable upon the residue of the estate. The testator having died within a month from the date of the will, query whether the devise to the charitable use could be declared void in a proceeding to which the beneficiaries of that devise had not been summoned, and in which they had no part, but held that, even if the devise were void, the residue descended upon the heirs and next of kin subject to the testator's intention that the real and personal estate should be blended into a residuary fund and subject to the original charges. Sup. Ct., Pennsylvania, January 26, 1877. Davis' Appeal, Hanbest's Estate (Week. N. Cases).

Payment: secured notes given to fall due at different dates: distribution of collateral security.-When a trust deed is given to secure a debt for which seven promissory notes are passed, payable at various periods, and in case of default, sale is to be made and the notes paid whether due or not, and the fund realized from the sale is insufficient to pay all the notes in full, the holders thereof are entitled to a pro rata distribution, without regard to the order in which the notes mature upon their face. Sup. Ct., District of Columbia. Ocean Nat. Bank v. Brown (Wash. L. Rep.).

Powers: trust: power of distribution: does not include power of limitation as to character of estate given: trust created under such power void.-A devise of a power to make distribution of testator's estate among his children does not enable the donee of the power to settle the estate in trust for those children for life, remainder to their appointees or heirs. If such a settlement is made the trust is void, and the legal estate vests in the children in fee. A testator gave an estate to his wife for life, with power "to make any division or distribution of my whole estate, real and personal, among my children," (naming them) in such shares and proportions as she, in her own discretion, may think best, hereby confirming all bequests and devises and all directions and orders made by her in regard to the same." She devised the whole estate in trust to pay the income in equal proportions to the children, remainder in fee as to each share of the principal to the appointees of the children, or the persons who would take under the intestate law. Held, that the trust was void, and that the legal estate vested absolutely in the children in equal shares. Sup. Ct., Pennsylvania, January 22, 1877. Smith's Estate, Appeal of Fidelity, etc., Co. (Week. N. Cases).

Recording act: vendor's lien: rights of creditor of grantee: homestead. - Where the vendor's lien is retained in a contract of sale of land, though the contract is not recorded, the vendor's lien is superior to that of a judgment creditor of the vendee. Where a grantor, in a conveyance of land, had claimed homestead in the notes given for the purchase-money by his grantee, and the conveyance is afterward set aside as fraudulent and void as to creditors, the grantor may claim homestead as against the creditors in the land or the proceeds thereof. Sup. Ct. of Appeals, Va., July, 1877. Shipe v. Repass (Va. L. Jour.).

Sale of personal property: sale of cattle in open market: caveat emptor. In an action for fraud and deceit in the sale of "fat cattle," in open market, which, it was alleged, were affected with the "Texas fever," held, that the mere concealment of facts in a sale in open

market does not vitiate the sale. Where there is no warranty, the doctrine of caveat emptor prevails. Sup. Ct., Illinois, June 22, 1877. Morris v. Thompson.

Ships and shipping: tug towing vessel: duty and liability of tug. Where there is a general employment by a vessel, of a tug to tow her in and land her at the particular place designated, the tug necessarily undertakes to bring with it the necessary skill and ability to perform that service, and it has the right, and it is its duty to direct the vessel being towed, in the management of her helm, so that she may aid in making the landing sought to be accomplished. U. S. Dist. Ct., N. D., Ohio. Smith v. Schooner Southwest.

Statute of frauds: verbal lease for a year to commence in futuro: holding over. If a tenant, under a lease for a year, holds over, he holds the premises, in the absence of a new agreement, subject to the same terms and conditions as in the original lease; that the holding over rests upon a new implied contract, and not upon the former lease. Held, that a verbal lease for the period of one year, to commence in futuro, is valid, and not within the statute of frauds of Colorado. Sup. Ct., Colorado. Sears v. Smith (Ch. Leg. News).

Statute of frauds: parol promise to pay the debt of another: liabilities of indorsers. - The holder of a promissory note sued the second indorser, who paid the note before judgment. In a subsequent action by the second against the first indorser, defendant offered to prove by parol that plaintiff was, in fact, surety for the maker of the note, and that he placed his name on the back of the note by mistake. Held, that the evidence was not admissible.

Per PAXSON, J. It makes no difference as regards the effect of the statute of frauds, whether the party invoking it be plaintiff or defendant. Sup. Ct., Pennsylvania, May 28, 1877. Haur v. McNair (Week. N. Cases).

Transfer of cause to Federal court: sufficiency of affidavit for. An affidavit for transfer of cause to a Federal court, which merely states that certain parties to the suit are non-residents of the State where suit is brought, but fails to state that they are residents of some other State, is insufficient. Such affidavit should show affirmatively the citizenship of the parties, and that they are residents of some other State of the United States. Sup. Ct., Iowa. Delaware R. R. Const. Co. v. Davenport & St. P. R. R. Co. (Ch. Leg. News).

NOTES OF ENGLISH CASES.

COVENANTS IN DEEDS AS TO CHARACTER OF BuildINGS ON LAND CONVEYED. ALTERATION OF NEGOTIABLE INSTRUMENT.

THE

HE question as to what is a private residence lately came before Vice-Chancellor Bacon, in a case of German v. Chapman, 25 W. R. 802, and it received an answer that cannot fail to be a startling one to many householders. The plaintiff had, together with others, purchased an estate in the rural neighborhood of Sevenoaks, and had divided it into plots on which to erect villa residences of a superior character. The conveyance of each plot contained a covenant on the part of the purchaser, and so as to bind the land and the future owners thereof, not to build more than a certain number of houses on it, at a cost of not less than £1,000 each, or £1,800 for a pair of semi-detached houses, and "that no house or building to be erected on the land should be used or occupied otherwise than

as and for a private residence only, and not for any purpose of trade." The vice-chancellor held, in the case of one of the plots, that this covenant would not be broken by the erection thereon, by the Institution for the Education of the Daughters of Missionaries, of a building to be used as a school or home for a hundred female orphans, the objects of the institution. His lordship said that he could not conceive that there was any doubt as to the meaning of the words, adding that the term "purpose of trade" explained more fully what was meant by the term "private residence." He did not, however, rest solely on this ground, which would, perhaps, have been intelligible, although it would have rendered the words "otherwise than as and for a private residence only" practically superfluous. But he contended, apparently with much animation, that the proposed building would, in the fullest and most ample sense, be used as a private residence only. The committee, he said, had placed themselves in loco parentis to these children; and, since, if they had had a hundred children of their own, they could not have been restrained from building a home for them, no more could they be restrained from building a home for these objects of their care. "Suppose," continued his lordship, "that a Turkish pasha were to come over to this country with several of his wives and a hundred children, might he not build a house on this land? Perhaps this is an absurd illustration, but it shows that a hundred people may live in a private residence." This latter proposition no one can doubt; but then, in the case proposed, the building would really be somebody's private residence, namely, the pasha's. But, in the case before the court, the building could not accurately be described as anybody's private residence; certainly not the committee's, for they would not reside there, and as to the children it would be a very public residence indeed. As to the actual intention of the owners it cannot, we think, be doubted what it was, namely, that the houses should be used in the ordinary way in which private residences in England are used, and not, for example, for such a purpose as an asylum for a thousand idiots, even though the keepers of the idiots derived no emolument from keeping them. Whether the actual intention was sufficiently expressed by the words of the covenant must, it seems, be considered doubtful, since the vice-chancellor is unable to conceive an interpretation which to us appears to be the only interpretation conceivable.

A case of Cohen v. Mitchell, which was tried by Mr. Justice Lush, without a jury, at the Leeds Assizes, raised a question of considerable importance. It was an action on a bill of exchange for £100. In February of the present year, Mitchell offered the bill in question to the plaintiff for discount. The plaintiff discounted it, retaining the sum of £8, and paying to Mitchell £92 in cash. It was a three months' bill. The plaintiff did not discover till he came to enter the bill in his bill-book, after Mitchell had left, that the date of the bill was the 29th of December, 1877, a period of ten months in advance of the time when the transaction took place. All parties treated the bill as one which was then running to maturity. The plaintiff, discovering what he took to be a clerical error, altered the 7 into a 6, thus making the date of the bill the 23th of December, 1876. Evidence was tendered for the defendants to show that their intention was to date the bill on the 29th of January, 1877,