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of ten days. No such requirement as this is reasonable. There is no good reason why the boards of registration cannot sit within the ten days before election, and thereby preserve to each elector his constitutional right. Nor is this all. If the Legislature can make the residence twelve or sixteen days, it can make it a month, three months or one year. This, in my opinion, cannot be done indirectly, under the guise of regulation, any more than it can be done directly, as a mere exercise of the legislative will. And no one will contend that the Legislature could prescribe by statute that a resident of the city of Detroit must reside in a precinct twelve days, sixteen days or a month, before his ballot could be legally taken on election day, in the face of the Constitution, which provides that he need reside therein but ten days.

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But more unreasonable yet is this act in that it contains no provision by which a person who is sick or absent on the days of registration can vote on election day. It may be said, with some show of reason, perhaps, that a person who is absent on the registration days is himself in fault, in not returning to his home, and complying with the regulations which the Legislature have a right to prescribe; but the man who is ill, and unable to attend the meetings of the board, but who is able to be out on the day of election, is deprived of his ballot, and for no good reason that I can see. And neither do I think there is any necessity of disfranchising a large number of business men, who will be disfranchised, unless they drop important business, and travel many miles, to be registered, some seven or more days before election. There are, under this law, but five days in the whole year that an elector can cause his name to be placed on the registry list; and this, unmistakably, by the provisions of the act, he must do personally. The language of the Supreme Court of Ohio, in speaking of a similar statute of that State, which was by that court unanimously declared unconstitutional, seems very appropriate here: "It will be seen by the above there are but seven (five) days in the year when voters can register. There is no provision for registering at pleasure during the earlier part of the year, and no provision for proving his qualifications on election day, and voting." And it is declared that "no vote shall be received at any election aforesaid unless the name of the person offering to vote be on the registry,' etc. A voter who is the oldest inhabitant of the ward, and an elector in it for the greater part of his life-time, cannot vote if from absence, however necessary or unintentional, during the seven days, his name is not on the registry. Many absentees may get home to vote, and if they were afforded opportunities during the year, might also register, whose right of suffrage must necessarily be lost under the act. How many mechanics may be absent, pursuing their trades, during the seven days? A large number of persons will be away on steamboat and other sailing craft, and elsewhere, earning a support. A large number of students, a great many of the class usually termed 'commercial travellers,' will be away, perhaps planning their trips to be home on election day. A large number of citizens in government employ, at Washington and elsewhere, will be at their posts of duty, and may return to vote, but would hardly have the opportunity to return on a different day to register. Even the members of this court might be unable to register, without a decided detriment to the public business, and might be compelled to elect between the neglect of important official duties and the loss of suffrage." Daggett v. Hudson, 3 N. E. Rep. 543. There is no State in the Union that has ever sustained a law like this, except Illinois. All of the registration laws that have been upheld by the courts of other States have contained some provision by which a sick or absent voter might not necessarily be disfranchised, excepting the law of 1885 in Illinois.

See People v. Hoffman, 116 Ill. 587. In Massachusetts the board must be in session one hour on the day of election. Capen v. Foster, 12 Pick. 485. In Iowa an elector unregistered, but otherwise qualified, is permitted to vote upon showing a proper reason for not having registered in time, and furnishing the affidavit of a registered voter as to his proper residence. Edmonds v. Banbury, 28 Iowa, 267. The election law of Kansas provides that the registry shall close ten days before election, but permits the voter to register at all times during the year, except on these last ten days. State v. Butts, 31 Kan. 537. See also R. S., Me. 95; Revision N. J., p. 364, § 152; Supp. Code, Md. 240 et seq.; Code Ala., p. 230, § 233; Dig. Laws Ark. 1874, p. 471, § 2328. In Mississippi registration is required; and the registration lists are to be kept by the clerk of the Cir. cuit Court, "and any person not on the lists may ap pear at any time before the clerk and be registered." In Kentucky a clause in a registration law applying only to the city of Louisville, which provided that the elector must reside in the city one year preceding the election, was held void because the Constitution required but sixty days' residence in a precinct, and one year in Jefferson county. The balance of the law was sustained, but registration was permitted by the act within the last three days preceding the election. Com. v. McClelland, 83 Ky. 686. The Registry Act of Missouri requires the registration of voters to be com pleted ten days before the election, but this is also a constitutional requirement. In California the elector may have his name entered on the list at any time be fore the poll of the election is opened; but if he does not do this thirty days before election, he must show a good reason why he did not procure the enrollment of his name previous to said thirty days. People v. Laine, 33 Cal. 55; Webster v. Byrne, 34 id. 273. In New York, as to cities, under the law of 1865, the board of registration met on Monday before election, which is the day before; and under the amendment of 1872 the registry is completed on the Saturday night before election. The question of its constitutionality has not been raised. In Byler v. Asher, 47 Ill. 101, it was held that the registry law of Illinois was valid; but under that act the non-registered voter was allowed to vote on making proof, in the manner prescribed in the statute, of his right to vote, without showing any excuse for not registering. In People v. Hoffman, 116 Ill. 587, a law was sustained which provided for the close of registration on the third Tuesday before election; but under the Constitution of that State, a man must reside in the voting precinct thirty days before election, Nothing is said in the opinion as to persons absent or sick upon the days of registration, but the law makes no provision for an after registry by sick electors. In Wisconsin a registry law providing that no vote should be received at any general election unless the name of the person offering to vote be on the registry as com pleted by the board, except in the case of a person becoming a qualified voter of the election district after the last day for the completion of the registry, who might vote on making certain specified proof of that fact, was held unconstitutional because it gave no op portunity for sick and absent persons to register and vote after the completion of the registry lists. Dells v. Kennedy, 49 Wis. 555. Under this act, as shown by Taylor, J., in a dissenting opinion at page 569, 49 Wisconsin, the sick or absent person, being advised of the days of registration, could send his his application by writing. But in the act before us this cannot be done. The registry law of Pennsylvania permits an unregistered voter to prove his qualifications and vote on election day. In re McDonough, 105 Penn. St. 490. In Connecticut (see Hyde v. Brush, 34 Conn. 454) it appears from the opinion filed in that case that the registry lists must be closed on Wednes day of the week preceding the election, which would

be from four to five days; but it is not stated what the struction of the law, one who could swear, that he had opportunities are for registering before that time. In seen the certificate would be a sufficient witness; but our own State the provision as to sick and absent how is he to testify to the date, and the particular voters is well known; and so far no great abuse to the court that issued it, or that it was genuine? Why elective franchise has been developed from the exercise should a person claiming to be an elector by naturaliof the privilege thereiu granted, of registering on eleo-zation be debarred, if he has lost his certificate, from tion day. How. St., § 93. The object of a registry law, ❘ establishing such fact by his own oath? A person may or of any law to preserve the purity of the ballot-box, and to guard against abuses of the elective franchise, is not to prevent any qualified elector from voting, or to unnecessarily hinder or impair his privilege. It is for the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot-box, it is proper and legal that all needful rules and regulations be made to that end; but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. Nor can the Legislature, in attempting, ostensibly, to prevent fraud, disfranchise legal voters without their own fault or negligence. The power of the Legislature in such cases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise and by preventing its abuse. The right to vote must not be impaired by the regulation. It must be regulation, not destruction. Page v. Allen, 58 Penn. St. 338; Dells v. Kennedy, 49 Wis. 555; Edmonds v. Banbury, 28 Iowa, 267; Monroe v. Collins, 17 Ohio St. 666, 685: Daggett v. Hudson, 3 N. E. Rep. 538; State v. Baker, 38 Wis. 71; State v. Butts, 31 Kan. 554. These authorities all tend in one direction. They hold that the Legislature has the right to reasonably regulate the right of suffrage, as to the manner and time and place of voting, and to provide all necessary and reasonable rules to establish and ascertain by proper proof the right to vote of any person offering his ballot, but has no power to restrain or abridge the right, or unnecessarily to impede its preexercise. This law before us disfranchises every person too ill to attend the board of registration, and unreasonably and unnecessarily requires persons whose business duties, public or private, are outside of Detroit to return home to register as well as to vote, making two trips when only one ought to be required.

swear that he is native born, and he is not required also to prove this fact by some one else, before he can be registered; but if he wishes to show that he is an elector by naturalization, he is presumed to be unable himself to tell the truth under oath, and must be corroborated by some one. The easiest way for a person of this class, wishing to cast a fraudulent vote, would simply be to swear that he was born in the United States; and in such case a perjurer is put to less trouble to get on the registry list than an honest man who desires to show that he has been naturalized, but who, unfortunately, has lost the record evidence of such naturalization. This distinction between nativeborn and naturalized electors is an unfair one, and as above shown, entirely unnecessary in order to prevent fraud. Its tendency will be to disfranchise honest men, and induce dishonest men to perjure themselves. Section 13, in reference to removals from one precinct to another, and the necessary steps to become registered in such cases, seems to me most unreasonable and unnecessary; but perhaps this is within the power of the Legislature, as it is not absolutely impossible to comply with it. But in relation to naturalized voters, the very men who have probably lost their certificates, and cannot now replace them, are elderly men, who have been naturalized for many years, and have exercised the elective franchise in Detroit, without question, for upward of a quarter of a century. They have, many of them, no doubt, forgotten the particular name of the court in which they took out their papers; and to prove their issue by some one other than themselves would be, in some instances, impossible. A law that treats these men as men whose oaths cannot be taken in their own interest, while it permits a native-born citizen to prove his standing as a voter by his own testimony, cannot receive my sanction, as I believe such a requirement to be not only unjust, but unconstitutional, unless applied to all. Another distinction may also be noted. A native-born citizen, becoming of age between the last day of registration and the election, is permitted to vote; but a foreign-born citizen, who has taken out his first papers, and whose right to full citizenship or the elective franchise will ripen between the complet

cannot vote.

This act is also not impartial. It seems to be aimed especially at naturalized voters, and taken all in all, was fitly characterized by one of the counsel as "an act to disfranchise a large number of the legal voters of the city of Detroit." In providing particularly and minutely for the forms of entry in the books of registration (see §§ 5-8), subdivision h of section 8 provides that: "h. In the column headed 'Court,' the desig-ing of the registry list and the opening of the polls, nation of the court in which, if naturalized, such naturalization was had, or if a declaration of intention was made, the name of the court from which the certificate was issued, and if the applicant claims the right to be registered and vote as a naturalized citizen, or because he has declared his intention six months or more prior to the election, he must produce the proper certificate of such naturalization, or declaration of intention, or satisfactory evidence, other than by the oath of the applicant, must be produced, that the same was issued." By another subdivision of the same section there must be set down in this book the date of papers," the time of such naturalization or the making of the declaration, "as appears by the certificates or other duly-authenticated evidence." Subd. g. The essence of these requirements is that the naturalized voter must produce his certificate, or show, by evidence other than his own oath, that such a certificate was issued. And it would seem, that if he cannot procure from the records of the court evidence that such a certificate was issued, or declaration of intention made, he must produce some person besides himself, who was present when the declaration was made or certificate issued. Perhaps, under a liberal con

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In my opinion no registry law is valid which deprives an elector of his constitutional right to vote by any regulation with which it is impossible for him to comply. No elector can lose his right to vote, the highest exercise of the freeman's will, except by his own fault or negligence. If the Legislature, under the pretext of regulation, can destroy this constitutional right by annexing an additional qualification as to the number of days such voter must reside within a precinct before he can vote therein, or any other requisite, in direct opposition to any of the constitutional requirements, then it can as well require of the elector entirely new qualifications, independent of the Constitutions, before the right of suffrage can be exercised. If the exigencies of the times are such, which I do not believe, that a fair and honest election cannot be held in Detroit, or in any other place in our State, without other qualifications and restrictions upon both nativeborn and naturalized citizens than these now found in or authorized by the Constitution, then the remedy is with the people to alter such Constitution by the lawful methods pointed out and permitted by that instrument. This disposition to hamper and abridge the

rights of the people to govern themselves, upon the theory that certain communities are unfit to control their own local affairs, which seems to be growing more prevalent in our legislative bodies in this country, must, nevertheless, if the idea be a correct one, be exercised in reason, and within constitutional limits.

This law, being in the respects pointed out, both unreasonable and in conflict with the Constitution, and it being apparent that the Legislature would not have enacted the other portions of the act had it foreseen that the courts would declare these parts unconstitutional, the whole act must fall, and be held unconstitutional and void. Dells v. Kennedy, 49 Wis. 560, and cases cited; Daggett v. Hudson, 3 N. E. Rep. 546; Brooks v. Hydorn, 42 N. W. Rep. 1122. The other justices concurred.

NEW YORK COURT OF APPEALS ABSTRACTS.

ACCOUNTING-SETTLEMENT-INTEREST-WHEN ALLOWED.-(1) Plaintiff's intestate and defendants' testator had been associated in business for several years. In 1861 intestate wrote to testator, who was his son, closing their business, and giving a statement of accounts between them, showing a certain balance due intestate, and directing that at his death his estate should be equally divided among his five children. After the death of the intestate, defendants' testator accounted to the other heirs for all the funds in his hands belonging to intestate's estate, and paid to each his share of the balance after all debit items had been deducted. Held, that in the absence of any thing to show fraud or mistake in the settlement, it was binding upon the parties, and a bar to all action for an alleged balance due the heirs. (2) Father and son had been associated in business for several years, and in 1861 the father, anticipating his death, wrote to the son, making a statement of the account between them, showing a balance due the father, which he had passed to his credit in the books. This balance the letter stated however, was merely tentative, and to be increased or diminished according as certain investments proved to be profitable or otherwise, and that as it was invested in the business it was not at that time to be considered due and payable, but that at any time when the account between them should be settled it would be easy, by referring to the statement contained in the letter, to find the balance due the father. No demand was ever made for payment of the balance due the father, nor was any settlement of the account had until after the death of the father. Held, that the heirs of the father could not claim interest on the balance found to be due at the time of the settlement. Jan. 14, 1890. Ledyard v. Bull. Opinion by Earl, J.; Ruger, C. J., and Peckham, J., dissenting. Affirming 3 N. Y. Supp. 37.

APPEAL DISMISSAL-SERVICE OF JUDGMENT.— (1) A motion to dismiss an appeal because notice of appeal was not served within the statutory time after service of a copy of the judgment appealed from will be denied when it appears that the paper served, purporting to be a copy of the judgment, did not include the clerk's attestation, such attestation being an essential part of the judgment. (2) Where on motion to dismiss an appeal for want of the certificate from the General Term prescribed by the Code of Civil Procedure of New York, § 190, subdivision 4, the Court of Appeals refuses to stay the motion until the appellant can remedy the defect, such refusal does not preclude appellant from afterward procuring such a certificate, and prosecuting a new appeal thereon. Jan. 21, 1890. Good v. Daland. Opinion by Andrews, J.

APPEAL MATTERS NOT APPARENT ON RECORD.Where the only question in dispute in an action for personal injuries is as to the extent of plaintiff's inju ries, and no exception was taken at the trial, and the judgment has been affirmed by the General Term, the appeal to the Court of Appeals will be dismissed on motion, no question for review being presented by the record. Jan. 21, 1890. Dalzell v. Long Island R. Co. Opinion by O'Brien, J. Dismissing appeal from 6 N. Y. Supp. 167.

PRACTICE NEGLIGENCE - FIRES - PROXI. MATE CAUSE.-(1) Where several written propositions are submitted to a jury for answer, and then when the jury return, and state that they have agreed on a general verdict, the propositions are withdrawn by con sent, and a general verdict rendered, an exception to the submission of the proposition is waived. (2) Where, in an action for injuries alleged to be caused by defendant's negligence, a general verdict is rendered for defendant, the exclusion of proof of certain elements of damage is not ground for reversal, since its admission would not have changed the result. (3) Where thirteen requests to charge are presented, and some are refused, others modified, and the rest given, an exception" to the refusals to charge as requested in so far as the court did refuse, and to each of the refusals to charge as requested," is too general to present any question for review. (4) In an action for the destruction of property by fire through defendant's negligence, in allowing sparks to escape from a smokestack, where it appears that after the fire had destroyed several buildings, the fire apparatus in the village being defective, the wind changed, aud plaintiff's building then caught fire, it is not error to charge that the burning of plaintiff's building was not the proximate result of defendant's negligent act. Certainly the facts here represented are much more favorable to the defendants than they were in Ryan v. Railroad Co., 35 N. Y. 210. That case has been distinguished by this court in Webb v. Railroad Co., 49 N. Y. 420; Pollett v. Long, 56 id. 200, and Lowery v. Railway Co., 99 id. 158-but it has never been overruled; and the rule still obtains in this State that when the facts are undisputed the court may, under some circumstances, determine, as a matter of law, whether the act complained of is the immediate or remote cause of the injury. If it may be said that the rule laid down in the Ryan Case has been broadened somewhat by the decisions referred to, it cannot be contended that it has been so far modified as to permit a holding that the burning of the Main street buildings was the ordinary and natural result of the act complained of. If it could be so held, then however many buildings might be burned, if the fire but spread from one building to another, the negligent party would be liable to respond in damages to every owner, even if, as in this case, the course of the wind had so changed as to drive the flames and sparks of burning buildings in a direction other than was possible at the moment of the perform ance of the wrongful act. We think the court did not err in holding that the damages sustained by the burn. ing of the Main street buildings were not the proximate, but the remote, result of the acts complained of. Second Division, Jan. 14, 1890. Read v. Nicholas. Opinion by Parker, J. Affirming 40 Hun, 634.

RECORD-OBJECTIONS WAIVED.-(1) Where no statement of facts or of the questions of law arising thereon has been prepared as required by the Code of Civil Procedure of New York, section 1339, the Court of Appeals will not review the case upon its merits. (2) Where the trial court has directed a verdict subject to the opinion of the General Term, a party who argues the case upon its merits before the General Term, without objection, thereby waives the right to question, upon further appeal, the legality of the order

directing a verdict. Second Division, Jan. 14, 1890. Cowenhoven v. Ball. Opinion by Brown, J. Dismissing appeal from 39 Hun, 656.

APPEAL-RULINGS ON EVIDENCE-REPORT OF REFEREE. EVIDENCE-ACCOUNT BOOKS.-(1) Objections to the weight given to testimony by the trial court, and objections based on the credibility of witnesses, will not be considered on appeal. (2) An objection that certain findings of a referee were unsupported by the evidence will not be considered on appeal, in the absence of any thing in the record to show that an exception was taken to the finding or that a request was made to find differently. (3) Nor will objections to the admissibility of evidence be considered on appeal unless some ground for the objection is shown. (4) In an action of account, books of plaintiff, which are shown to be his books of account, containing an account of work done, not only for defendant, but for other parties, and which appear to have been correctly kept, and recognized as accurate by defendants in settlements with other persons, are admissible. Jan. 14, 1890. West v. V'an Tuyl. Opinion per Curiam. Affirming 1 N. Y. Supp. 718.

him to be re-arrested by the coroner. Second Division, Jan. 14, 1890. Haberstro v. Bedford. Opinion by Parker, J. Affirming 43 Hun, 201.

NEGLIGENCE CONTRIBU

CARRIER -PASSENGER TORY.-(1) A hawser used to warp a vessel around to the dock was made to form an angle by being run through a pulley, which was fastened to the side of the vessel by a piece of wood, passed through a loop on the outside. The piece of wood broke, letting the hawser fly back, and strike a passenger standing on the deck. The wood was a stick picked up for the occasion from a pile in the hold. Held, that the jury were warranted in finding the defendant, a common carrier, guilty of negligence. (2) In such case, plaintiff being in a part of the ship where she was entitled to go, and not having been warned of the danger, was not guilty of contributory negligence because she stood within reach of the hawser when it was released. (3) In an action for such injury, evidence is admissible that immediately after the accident a capstan bar was substituted for the broken stick, and the turning of the vessel completed by its use. (4) It appearing that the danger of injury to the passengers was apprehended by those in charge, it was proper to refuse to charge that the care to be exercised need not be commensurate with the danger, but only with the apprehension of danger. (5) There being some evidence that the stick was put perpendicularly into the loop, it was proper to submit to the jury the question whether it was carelessness to place the stick into the loop so that it would fall into the water, though the weight of the evidence showed that the stick was inserted hori

been broken by the strain of the hawser. Second Division, Jan. 14, 1890. Miller v. Ocean Steamship Co. Opinion by Bradley, J. Affirming 43 Hun, 640.

SUFFICIENCY OF EVIDENCE. JUDGMENT BY CONFESSION FRAUD — EVIDENCE. - (1) Where there is any evidence to sustain a finding of fact made by the trial court, such finding will not be reviewed on appeal. (2) In an action by the assignee of an insolvent to set aside as fraudulent a confession of judgment made by the insolvent to one of the defendants, testimony as to the representations made by the other defendants, in sending out false reports of the indebt-zontally, and did not fall into the water until it had edness of the insolvent, is not admissible for the purpose of showing fraud on the part of the judgment creditors. (3) Where a general conspiracy to defraud is alleged against all the defendants, such testimony is inadmissible except against the party making the false representations, unless there is prima facie evidence of the existence of the conspiracy. (4) In an action to set aside, on the ground of fraud, a confession of judg-York, 1847, chapter 455, which provides that all fees of ment made to defendant by an insolvent, wherein it was stated, that of the original debt owing defendant, $600 had been paid, it appeared on the trial that of this amount only $350 had been paid in cash, and that the remaining $250 had been paid by the insolvent assum. ing a debt of defendants to that amount. Held, that the assumption of the debt operated as a payment of so much of insolvent's indebtedness to defendant, and supported the statement made in the confession of judgment. Jan. 14, 1890. Rutherford v. Schattman. Opinion by Peckham, J. Affirming 49 Hun, 606.

ARREST ON CIVIL PROCESS-BOND- LIABILITY OF SURETIES. (1) 2 Revised Statutes of New York, page 286, section 59, makes void any bond taken by a sheriff, by color of his office, "in any other case or manner than as provided by law." Code of Civil Procedure of New York, section 575, provides that a defendant arrested on mesne process may obtain release by giving bond conditioned on his rendering himself amenable to final process. In an action for the recovery of money, the defendant was released on giving bond conditioned on his being amenable to both mesue and final process. Held, that the bond was valid, the additional obligation being mere surplusage, since no further mesne process could issue in the action. (2) Where the sureties on such bond, by failing to justify, render the sheriff liable as bail, under the Code of Civil Procedure, section 587, they are not relieved from their liability to the sheriff therefor, imposed by section 589, by the fact that the sheriff afterward removed the defendant to an inebriate asylum in another county by virtue of a void order of court, nor by the fact, that in attempting to relieve himself from liability, he released said defendant from custody, and then caused

CONSTABLES-FEES-CONVEYING PRISONERS TO PENITENTIARY-LIABILITY OF TOWN.-Under Laws of New York, 1845, chapter 180, as amended by Laws of New

magistrates and officers for criminal proceedings, except in case of felonies and trials before a Court of Oyer and Terminer or of General Sessions, shall be paid by the town or city wherein the offense was committed, a constable's charge for conveying to the penitentiary prisoners sentenced in a Court of Special Sesstons is chargeable to the town, since such act is part of the criminal proceeding. Jan. 21, 1890. People, ex rel. McGrath, v. Supervisors of Westchester. Opinion by Finch, J. Affirming 6 N. Y. Supp. 153.

DEED-COVENANT TO OPEN ROAD ON BOUNDARY.Under a deed which conveys land described as bounded on one side by land of the grantor, "intended for a road of two rods in width," and refers to a map showing such road, with a covenant to lay out the road within one year, and keep it open, but which does not convey an easement in the road, the grantee obtains title in fee up to the center of the road, where it appears that such road is necessary for access to the land conveyed. The construction, in case of ambiguity, should be most favorable to the grantee. Jackson v. Hudson, 3 Johns. 375; Jackson v. Blodget, 16 id. 172; Gifford v. Society, 56 Barb. 114. The presumption is that a conveyance of land bounded by an existing street carries the fee to the center, because such a narrow strip, like half of a street, is so much more valuable to the grantee than to the grantor, and the parties are supposed to have so dealt with the property as to bring out its greatest value. Bissell v. Railroad Co., 23 N. Y. 61; Wager v. Railroad Co., 25 id. 526; Perrin v. Railroad Co., 36 id. 120; Wallace v. Fee, 50 id. 694; Mott v. Mott. 68 id. 246; Insurance Co. v. Stevens, 87 id. 287; Story v. Railroad Co., 90 id. 122, 161. What is the presumption when the deed treats

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the street as existing upon a map according to which the conveyance is made, and provides that it shall be laid out of a given width within a given time? Would not the reason of the rule extend the presumption to that state of affairs also? Under such circumstances, as between grantor and grantee, for the purpose of ascertaining the extent of the grant, should not the street be regarded as practically in existence at the date of the deed? Does not such a conveyance, of itself, make a street, so far as the parties thereto are concerned, by appropriating the land to that purpose? Even if one part of the instrument refers to such land as intended for a road" or street, should not that expression, as well as the covenant to lay out, when construed in connection with a map upon which the street appears as actually laid out, be held to refer to the development of the street for practical use by the removal of fences and obstructions? As between grantor and grantee, a street is created when land, clearly defined as to extent and location, is devoted to that end by the grant, whether it is then in a condition to use as a street or not, although it would only be a street on paper until actually opened. Under such circumstances, the parties might with propriety refer to it in the grant as an intended street, because not actually worked and used. Thus the reference would be to physical conditions, not to title. This view is confirmed by the fact that the grantor was to have one year within which to lay out the road, as he would need time to remove trees, fences, etc., but not to pass title or dedicate a street. The expression near the close of the description, "bounded on the south by the land of said Stillwell intended for a road," when considered with the expression at the commencement of the description, "beginning at the northermost corner of the meadow belonging to Samuel Stillwell," shows that the grantor alluded to all the land as his, for the purposes of description, until the conveyances should take effect. As he did not intend to reserve the "meadow belonging to Samuel Stillwell," which was a part of the property conveyed, can it be said that he intended a reservation by the expression first named? Did he not in both cases treat the land as his own for convenience of description merely? Much importance was attached in the opinion below to the covenant to lay out within a year, which was regarded as unnecessary if the title passed to the center of the street. It will be noticed in this connection that in no part of the deed was any right given, in terms, to use the road. Still the grantee would have been partially pro. tected, because he purchased on the faith of a map showing the road. But what would be the result if the map were lost? Something in the nature of the Covenant was therefore necessary as permanent evidence of his rights. Moreover, as the map did not specify the width of the road, and the deed only regulated its width as it passed by the premises conveyed, the covenant was necessary to secure a road of the desired width from those premises to the Bloomingdale road. The reservation by the grantor of a given time within which to lay out the road, as well as the agreement that it should be forever kept open, also explain the necessity of the covenant, which should not be so construed as to cut down the extent of the grant, unless the language used clearly requires it. Second Division, Jan. 14, 1890. In re Ladue. Opinion by Vann, J. Reversing 54 N. Y. Super. Ct. 528.

EVIDENCE-PAROL. APPEAL RECORD.-(1) In an action by a general assignee of an insolvent partnership to recover the value of firm accounts, transferred in payment of the individual debts of one of the partners, oral testimony that there was such a transfer, based upon the appearance of the transferee's books of a list of the accounts, or a copy of such list, is inadmissible, the books themselves being the evidence. (2)

The error in admitting such evidence is not cured by the testimony of the transferee's executor, to the effect that he has tried to collect the accounts specified in the list transcribed from the books, and has found some of them worthless, since such admission on the part of the executor does not prove the assignment of the accounts. (3) It is not admissible to ask a witness whether there was a transfer of a list of accounts, as such a question calls for the conclusion of the witness as to what amounted to a transfer. (4) Oral testimony as to what is or is not shown by an examination of the books, without producing the books themselves, which are in the witness' possession, is inadmissible. (5) An exception to a finding of fact raises the question of law whether there is any evidence to support it, and in such case a statement that all the evidence is returned is not necessary, the filing of the exception making it incumbent on the respondent to see that all the evidence he relies on is brought up. Jan. 14, 1890. Brayton v. Sherman. Opinion by Peckham, J. Reversing 5 N. Y. Supp. 602.

EVIDENCE-PAROL, TO VARY WRITTEN AGREEMENT. STATUTE OF FRAUDS.-(1) Plaintiff and defendants entered into a written contract whereby defendants agreed to sell her such patterns as she should order, and that they should take back from plaintiff all old and undesirable patterns, aud give in exchange such other patterns as were ordered when the old ones were returned; such contract to continue for one year, with the right of transfer. At the end of the year, plaintiff, desiring to discontinue the business, asked defendants to take back all unsold patterns, of the value of $488, and refund the money paid therefor. Upon defendant's refusal so to do, she brought action for the value of the patterns remaining unsold. Held, that she could not be allowed to show, in support of the action, that an independent oral agreement was entered into whereby defendants agreed to relieve her of the agency for the patterns, should she so desire, and transfer the same, taking back all unsold patterns at the end of the time, and returning the money paid for the same. (2) And the words "with right to transfer," as used in the contract, must be held to mean that either party could transfer his rights under the contract. (3) The oral agreement set up by the plaintiff, since it was not to be executed within a year, and was for the sale of goods of the value of over $500, was void by the statute of frauds. Second Division, Jan. 14, 1890. Gordon v. Niemann. Opinion by Follett, C. J. Reversing 42 Hun, 656.

LANDLORD AND TENANT-ATTORNMENT TO HOLDER OF TAX-TITLE.- Under 1 Revised Statutes of New York, page 744, section 3, providing that an attorn ment by a tenant to a stranger is void unless made with the consent of the landlord, or pursuant to a judgment at law or decree in equity, or to a mortgagee after forfeiture, an attornment by a tenant to one claiming under a tax deed is void as against the rights of his landlord. All attornments by lessees were not abolished by the Revised Statutes. Austin v. Ahearne, 61 N. Y. 6. If the defendant, after obtaining taxtitle to these premises, was a stranger to the plaintiff in respect thereto, the attornment was void. Other wise it was valid. In its general legal signification, "stranger" is opposed to the word "privy." By "privity" is meant the mutual or successive relationship to the same rights of property, and privies are classified according to the manner of relationships. There are privies in estate, as donor and donee, lessor and lessee, and joint tenants; privies in blood, as heir and ancestor; privies in representation, as testator, executor and administrator; privies in law, as where the law, without privity of blood or estate, casts land upon another, as by escheat. 1 Greenl. Ev., § 189; Bouv. Inst. We are of the opinion that one who ca

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