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brought negroes into the State, and this question was propounded to impeach the credibility of the witness. It was ruled out, and upon appeal, Battle, J., delivering the opinion, thus disposes of the exception: "If the witness had been asked whether he had not committed perjury in this State, he certainly would have been protected from answering what might have exposed him to a criminal prosecution in our courts, and in such case, we are inclined to think that the question ought not to be allowed to be put at all. But our courts, in administering justice among their suitors, will not notice the criminal laws of another State or country so far as to protect a witness from being asked if he had not violated them. We are of the opinion therefore that the question was improperly ruled out, and that the defendant is entitled to the benefit of another trial." This ruling proceeds upon the principle that self-criminating evidence cannot be drawn from the witness against his will, when it relates to offenses committed beyond its jurisdiction, and which violate the laws of another State or country. The crime of perjury exists under the common law, and is recognized as such, in like manner as homicide. This case is not distinguishable in principle from that before us. We prefer however to put our decision upon

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other grounds, more satisfactory to our own minds, AP

and well sustained by adjudications in other courts.

A person charged with crime may, "at his own request, but not otherwise," become a witness on his own behalf upon the trial, and his failure to claim the privilege and offer his own testimony is not permitted to become the subject of comment to his prejudice by counsel of the prosecution. Code, § 1353. He is, when he chooses to testify, bound to disclose all he knows, whether criminating or disparaging to himself, as does an ordinary witness, when testifying on matters of which he might claim the privilege of being silent, bind himself to tell the whole truth, and all that he knows of the transaction, to part of which only he has testified. In either such case the privilege is waived.

In McGarry v. People, 2 Laus. 227-234, it is said of a party testifying: "It was not compelling him to be a witness against himself," within art. 1, § 6, of the Constitution of this State. He was a volunteer witness under the provisions of chapter 578 of the Laws of 1869. He was not only a volunteer, but had taken the necessary oath to enable him to testify, "to tell the truth, the whole truth, and nothing but the truth," upon the whole issue of traverse between himself and the people. He could not have been compelied to give evidence at all; but when he made himself a witness, under the privilege conferred upon him by this statute, he waived the constitutional protection in his favor, and subjected himself to the peril of being examined as to any and every matter pertinent to the issue. To the same effect is Burdick v. People, 58 Barb. 51-58. In Brandon v. People, 42 N. Y. 365, upon the trial of the accused for larcedy, she was asked: "Have you ever been arrested before for theft?" An objection to the testimony was overruled, and she answered in the affirmative. The ruling was sustained. In Com. v. Lannan, 13 Allen, 563-569, Hoar, J., uses this language: "The defendant, by offering himself as a witness, waives his right to object to any question pertinent to the issue on the ground that the answer may tend to criminate him. He is not required to testify, and may protect himself by omitting to do so;" citing Com. v. Price, 10 Gray, 472. Again says Bigelow, C. J., in Com. v. Mullen, 97 Mass. 545, 546: If he offers himself as a witness he waives his constitutional privilege of refusing to furnish evidence against himself, and may be interrogated as a general witness in the cause." "By taking the stand as a witness," to use the words of Colt, J., "he waived his constitutional privilege of refusing to furnish evidence

PPEAL from Circuit Court, Alleghany county. Action to recover damages caused by the overflow of water, mud and debris upon plaintiffs' property from a sewer. Verdict for defendant. Plaintiffs appeal.

Wm. Brace, for appellants.

Wm. Devecmon and Ferd. Williams, for appellee.

ALVEY, J. This action was brought to recover damages alleged to have been suffered by reason of the backing and overflow of water, mud, etc., upon the property of the plaintiffs, caused, as it is alleged, by a badly constructed and insufficient underground sewer, in the town of Frostburg. It is alleged, that in the grading of two of the streets of the town, the surface water was diverted from its natural course and flow, and collected into artificial drains or gutters in large volumes, and thereby caused to flow to a point in Bowery street opposite and near to the property of the plaintiffs, on the north side of that street, where the defendant caused to be constructed a sewer or culvert under and across Bowery street, by which such water was designed 'to be carried off, and emptied on the south side of said street; but by reason of the negligent, unskilful and defective construction and maintenance of such culvert, the same was insufficient, and failed to carry off the water conducted to the mouth thereof, and consequently the water and debris so collected and conducted was backed up and made to overflow upon the property of the plaintiffs, thereby causing great injury. The case was tried upon the general issue plea of not guilty. By the charter of the town, full authority is conferred upon the mayor and councilmen to open, grade aud pave streets, and to construct such gutters and sewers as in their judgment the public convenience may require, and to repair the same whenever needed. They are also empowered to remove all nuisances and obstructions from the streets, and they are clothed with power to pass all such ordi nances as may be deemed beneficial to the town, and necessary for the safety and protection of the persons and property of the inhabitants thereof. Acts 1870. chap. 77; 1878, chap. 255. The evidence shows that the town of Frostburg is built on the slope of a mountain, and the grades of its streets are in many places, and in different directions, quite steep. Charles street has a heavy down grade to the point where it joins or intersects Bowery street, and the latter has a considerable ascent in both directions, east and west, from the point where such streets join at right angles. Artificial

gutters have been made on the north side of Bowery street, and on the east side of Charles street, whereby the surface water, which flows on both streets in large quantities during heavy rain-falls, is collected and made to flow in the artificial gutters to the mouth of the sewer constructed diagonally across Bowery street, at the junction of Bowery and Charles streets. It is shown by the proof on the part of the plaintiffs, and indeed not controverted by the defendant, that this sewer or culvert was not of sufficient capacity, even if it had been otherwise well constructed, to carry off the water frequently flowing to it; but that according to the proof offered by the plaintiffs, it was so unskilfully, negligently and defectively constructed that the flow of water was obstructed, and consequently dammed up, and made to overflow the adjoining premises of the plaintiffs, sometimes to the depth of two feet or more, carrying dirt and debris upon the same, thereby doing serious damage to the property. Proof was also adduced to show that the defendant was for several years before suit brought well aware of the defective and insufficient condition of the sewer, and of the injury suffered therefrom by the plaintiffs, but that it had failed to take any steps to remedy the defect. On the part of the defendant, proof was given to controvert, in several important particulars, the evidence on the part of the plaintiffs. The defendant also offered proof to show that the prior owner of the plaintiffs' property cut down and lowered the floor of the cellar of the house, and removed the earth between the house and the street, so that when the water was raised a few inches in the gutter on the street, it ran into the cellar or basement of the house. This however was controverted by testimony for the plaintiffs. Upon the whole evidence, both parties applied to the court for instructions to the jury; but of the prayers offered, the one single prayer by the plaintiffs, and all those by the defendant, except the first and fourth, were rejected. It was therefore upon the first and fourth prayers of the defendant, given as instructions, that the case was placed before the jury. The plaintiffs objected to the refusal to grant their one prayer, and to the granting of the two prayers on the part of the defendant. And this court is now called upon to determine whether there was error, in this ruling upon the prayers, committed by the court below.

Before proceeding to notice particularly the prayers under review, we deem it proper to state the general doctrine of the law upon the subject, as we find it laid down by the most approved authorities. How far the common law, independently of the special provisions of the statute incorporating the defendant, would furnish a remedy against a municipality for an injury such as that complained of here, is a question not necessarily involved in this case; for as we have seen, the statute, with a view to the improvement and benefit of the town, confers large powers upon the mayor and councilmen with respect to streets, drains, sewers, etc., and also power to remove and prevent nuisances. It is out of these powers, and the manner of their exercise, and the duty resulting therefrom, that the liability here insisted upon arises to the plaintiffs, if it can be maintained at all, in respect to the facts of the case, as we have stated them. In Cooley Const. Lim. 248, it is laid down as the result of the decisions upon the subject that the grant by the State to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise, on the part of the corporation, to perform the corporate duties; and this implied contract, made with the sovereign power, inures to the benefit of every individual interested in its performance. In this respect these corporations are looked upon as occupying the

same position as private corporations, which having accepted a valuable franchise, on condition of the performance of certain public duties, are held to contract by the acceptance for the performance of these duties. In the case of public corporations however the liability is contingent on the law, affording the means of performing the duty, which in some cases, by reason of restrictions upon the power of taxation, they might not possess. But assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construction, has been determined in many cases. A similar liability would exist in other cases where the same reasons would be applicable. In support of this text, the learned author refers to a number of cases; and the principle stated by him is in accord with the decisions of this court in the case of Baltimore City v. Marriott, 9 Md. 160, and the recent case of Taylor v. Cumberland, 64 id. 68. And on the next succeeding page of the author just cited he says: "In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporations, as to construct works to supply a city with water, or gas-works, or sewers, and the like, the corporation is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent manner in which the work is constructed or guarded," etc. But notwithstanding this duty and liability of the municipality in respect to powers delegated, there is a class of powers, defined as discretionary or quasi judicial, which the corporate authorities cannot be compelled to execute; as for instance, the opening, widening, or extension of streets, the adoption of a particular grade, or the adoption of any particular plan for improvement, and the like, unless the terms of the statute are imperative. But any particular plan that may be adopted must be a reasonable one, and the manner of its execution thence becomes, with respect to the rights of the citizen, a mere ministerial duty; and for any negligence or unskilfulness in the execution or construction of the work, whereby injury is inflicted upon private right, the municipality will be held responsible. This is the principle maintained by the great preponderance of authority; and there is nothing in the case of City of Cumberland v. Willison, 50 Md. 138, at all opposed to this principle, as would seem to be supposed by counsel for the defendant. In that case, the authority delegated to the corporation to grade and improve its streets was held to have been properly exercised, with no want of reasonable care and skill. It was not attempted to be shown that the injury complained of had been produced by the want of care and skill in the grading and draining of the street; and there was no question of negligence or want of skill raised in the case. But in the recent case of Kranz v. Baltimore City, 64 Md. 491, where the action was brought for injury sustained by a property holder, caused by obstructions in a sewer, and the overflow therefrom, upon the premises of the plaintiff, of water, mud, filth, etc., the result of the bad condition and want of repair of the sewer, this court held that the city was liable, as well for the consequences of the negligent failure to keep the sewer in repair, as for negligence and unskilfulness in actually making the repairs. And the general proposition was maintained that where a municipal corporation undertakes, in the discharge of its duties, to construct or repair such a work as a sewer or culvert, it is responsible for damage caused by the negligent, careless, or unskilful manner of performing the work; and 2 Dill. Mun. Corp., § 1049, is cited with approval. And in that same work, in section 1051, where the author sums up and states the results of the authorities upon

the subject of municipal liability for injuries caused by surface water, the following among other propositions is formulated: "There is a municipal liability where the property of private persons is flooded, either directly or by water being set back, when this is the result of the negligent execution of the plan adopted for the construction of gutters, drains, culverts, or sewers, or the negligent failure to keep the same in repair and free from obstruction; and this whether the lots are below the grade of the streets or not." The cases, says Judge Dillon, support this proposition with great unanimity. Of the many cases cited by the author, we need only refer to those of White Lead Co. v. Rochester, 3 N. Y. 463; Barton v. City of Syracuse, 36 id. 54; Rowe v. Portsmouth, 56 N. H. 291; S. C., 22 Am. Rep. 464, and Noonan v. City of Albany, 76 N. Y. 470; S. C., 35 Am. Rep. 540.

[Omitting minor points.]

But we think there was error in granting the prayers of the defendant. The first of these prayers, as construed by the court, in the course of the argument of counsel to the jury, is based upon the theory that the plaintiffs could not recover, notwithstanding the jury might find from the evidence that the surface water was diverted from its natural flow by the elevation and improvement of the streets, and by the artificial gutters and drains, where by such surface water was collected in volume, and conducted to the mouth of the sewer opposite the adjoining property of the plaintiffs, whence it could not escape, except by flowing over the premises of the plaintiffs, "if the jury should find that the cause of the back-flow of the water was the elevation of the street, and that said culvert was insufficient in size to carry off all of such water in times of heavy rain; provided the construction of the culvert did not place or leave the said property in a worse condition than if no culvert had been made at all." To this proposition we cannot assent. Reason as well as authority would seem clearly to oppose it. We fully agree with Judge Dillon in the principle stated by him in section 1042, vol. 2, of his work on Municipal Corporations. In that section, after referring to the general doctrine that the municipality is not bound to protect from surface water those who may be so unfortunate as to own property below the level of the street, he says: "It is possible there may be no middle ground, but we are unable to assent to the doctrine that by reason of their control over streets, and the power to grade and improve them, the corporate authorities have the absolute and unconditional legal right intentionally to divert the water therefrom as a mode of protecting the streets, and to discharge it, by artificial means, in increased quantities, and with collected force and destructiveness, upon the property, perhaps improved and occupied, of the adjoining owner." Here Bowery street runs east and west from the mouth of the sewer; and the declivity of the hill, along the side of which that street is made, is to the south. The natural flow of the surface water therefore, as shown by the proof and the plat exhibited, is to the south. But this natural flow has been interrupted by the elevation of Bowery street, on the south side thereof, and the water has been concentrated in a gutter, and made to flow to the mouth of the sewer, opposite the property of the plaintiffs, on the north side of that street. If then it be true, as it clearly is, upon unquestionable authority (Lynch v. Mayor, 76 N. Y. 60; S. C., 32 Am. Rep. 271; Byrnes v. Cohoes, 67 N. Y. 204; O'Brien v. City of St. Paul, 25 Minn. 333; Inhabitants of West Orange v. Field, 37 N. J. Eq. 600; Ashley v. Port Huron, 35 Mich. 296; S. C., 24 Am. Rep. 552), that the corporation cannot thus divert the flow of surface water, concentrate it in volume and force, and empty it upon private property, without becoming liable, it next follows that there a duty

incumbent upon the corporation to provide, by adequate means, for passing off the water there concentrated in volumes, so as to avoid doing damage to private property. The street may be properly graded, and the drains properly made, but the sewer made for the purpose of receiving and carrying off the water cannot be said to be skillfully and carefully constructed, or kept in repair, if from any structural cause, it be insufficient to pass off the water flowing to it through the artificial channels provided. If it be true, as alleged and shown by the plaintiffs, that the surface water was gathered into artificial channels or gutters, and made to flow to the mouth of the sewer, where it was allowed to accumulate in large quantities, and thence flow back upon the property of the plaintiffs, this constituted a nuisance, and as such, it was certainly the duty of the defendant to remove it, and for the neglect of such duty the defendant is liable. For as was said by the Court of Appeals of New York in the case of Noonan v. City of Albany, 79 N. Y. 470; S. C., 35 Am. Rep. 540, "a municipal corporation has no greater right than an individual to collect the surface water from its lands or streets into an artificial channel, and discharge it upon the land of another; nor has it any immunity from legal responsibility for creating or maintaining a nuisance." The second prayer granted on the part of the defendant is obnoxious to the same objection that applies to the first. The plaintiffs, and those under whom they claim, had clearly the right to the use and enjoyment of their property in any reasonable way, and for any reasonable purpose, and to make any alteration or new adaptation therein that they deemed proper, without thereby subjecting themselves to the loss of protection to their property from wrongful invasion by inundation or otherwise. Hence it was error to instruct the jury upon certain enumerated facts, in respect to the lowering of the cellar floor (as was done by granting this prayer), "that the plaintiffs could not recover for any injury to said house caused by said inflow of surface water to such basement or cellar, notwithstanding the jury might find that the grade of said street, and the insufficient size of said culvert, caused the inflow of said surface water to said basement in time of heavy rain." If the injury complained of was sustained by reason of the backing of the water from the mouth of the culvert, where it had been brought in large quantities by artificial drains, and that such backing and overflow was caused by the defective and insufficient sewer or culvert, and would not have occurred but for that cause, then the fact that the floor of the plaintiffs' cellar had been lowered afforded no justification to the defendant for the defective and insufficient sewer. The cause of the injury was the fault of the defendant and not of the plaintiffs.

It follows from what we have said in regard to the two prayers granted on the part of the defendant, that the judgment must be reversed and a new trial awarded.

WILL-TESTAMENTARY PAPER — OBLIGATION FOR THE PAYMENT OF MONEY. MARYLAND COURT OF APPEALS, APRIL TERM, 1887.

COVER V. STEM.*

A sealed instrument in the following form: "At my death, my estate or my executor pay to July Ann Cover $3,000, David Engel," and subscribed by only one witness. Held, not an obligation for the payment of money, and not a valid testamentary paper.

APPEAL from the Circuit Court for Carroll county.

The case is stated in the opinion of the court.

*67 Md. 449.

James A. C. Bond, aud Wm. H. Thomas, for appellaut.

Charles B. Roberts, Attorney-General, for appellee. ALVEY, C. J. This is an action of debt brought by the appellant against the appellee as executor of David Engel, deceased, to recover the sum of $3,000, alleged to be due and owing by virtue of what is described in the declaration as a writing obligatory, made and delivered by the appellee's testator, on the 4th day of Sept. 1884.

The declaration contains several counts, all founded upon the supposed writing obligatory; and which writing was filed with the declaration, and by agreement is incorporated in and made part of the declaration. The appellee demurred to the entire declaration, and the court below sustained the demurrer, and gave judgment for the defendant. It is from that judgment that this appeal is taken.

The instrument declared on is in the following form: "MD., September 4, 1884. At my death, my estate or my executor pay to July Ann Cover the sum of $3,000. Witness:

DAVID ENGEL, OF P. [SEAL.]

COLUMBUS Cover."

It is contended on the part of the appellant, that this instrument is a bill obligatory, and imports a legal obligation of the maker, the time of payment only being deferred until after his death, when his administrator or executor was directed to pay the amount. While on the other hand it is contended by the appellee, that the instrument has all the characteristics of a testamentary paper,, and did not, in any proper sense, create a legal obligation upon the maker, such as that of a boud or single bill.

What the consideration may have been to induce the maker to pass such an instrument does not appear. But it is insisted that the seal to the instrument imports a sufficient consideration for the obligation of the maker; and this, as a general proposition, is certainly true, as applied to bonds and deeds generally. But still the question here is, whether the instrument declared on be in its nature a bill obligatory, binding and conclusive upon the maker, or whether it be a mere posthumous disposition of $3,000, part of his estate, to be paid by his executor as any other pecuniary legacy given by the testator.

An obligation is defined to be a deed in writing, whereby one man doth bind himself to another to pay a sum of money, or do some other thing. Shep. Touch., tit. Obligation, p. 367. The same definition is given in Com. Dig., tit. Obligation (B) and in Bacon's Abr., tit. Obligation (B). It is true, no precise form of words is necessary to create a bond or obligation. Therefore any memorandum in writing under seal. whereby a debt is acknowledged to be owing, will obligate the party to pay; for it is said that any words which prove a man to be a debtor, if they be under seal, will charge him with the payment of the money. Core's case, Dyer, 226; Shep. Touch., 368, 369, 370, and Bac. Abr. Obligation (B) and the examples there given of what form of words will be sufficient to create a valid obligation. It is however laid down in Bac. Abr. Obligation (B) as essentially necessary, to create a valid obligation, that words be employed to declare the intention of the party, and which must clearly denote his being bound; "because such obligation is only in the nature of a contract, or a security for the performance of a contract, which ought to be construed according to the intention of the parties." In other words, there must be terms employed to create a debitum in presenti, though the solvendum may be in futuro, and even after the death of the obligor. It would seem to be clear, that the relation of debtor and creditor must be created and subsist in

the life-time of the parties to the instrument, though the time of payment may be deferred until after the death of one of the parties. Shep. Touch. 368, 369; Hannon v. State, 9 Gill, 446; Carey v. Dennis, 13 Md. 1; Story Prom. Notes, § 27. Here in the instrument before us, there are no words that create a debitum in presenti; there are no words that create the relation of debtor and creditor in the life-time of the parties to the instrument: but the words employed simply import a posthumous disposition of a part of the estate of the maker of the instrument, and nothing more.

This case is not substantially distinguishable from the case of Byers v. Hoppe, 61 Md. 206; S. C., 48 Am. Rep. 89. In that case, Hoppe, the writer of the letter to Ann Byers, the party to whom the letter was addressed and delivered, said: "Ann, after my death, you are to have $40,000; this you are to have, will or no will; take care of this until my death." That was declared to be a testamentary paper; and the only real distinguishing feature between the paper in that case and the paper in this is, that the paper in the former was not under seal, and the paper in this case is. That however can make no substantial distinction in determining the real character of the instrument; as wills are more frequently executed under seal than otherwise. Nor can the fact, that the instrument was delivered to the party to whom payment was directed to be made, change the real nature of the instrument. For the principle is well settled, that an instrument may be in the form of a deed, signed, sealed and delivered as such, and still if it be apparent that the party intended a posthumous disposition of his property, the instrument not being operative until after his death, such instrument will be regarded as testamentary.

A will is defined to be any instrument whereby a person makes a disposition of his property to take effect after his death. By the terms of the instrument in question, the $3,000 are simply directed to be paid out of his estate by his exeutor. No language could be more expressive of a testamentary purpose. And this court has declared in Carey v. Dennis, 13 Md. 17, adopting the language of Mr. Justice Buller, in Habergham v. Vincent, 2 Ves. Jr. 231, that "the cases have established that an instrument in any form, whether a deed-poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will."

It is urged however in argument that as the instrument in question was made since the act of 1884, chap. 293, requiring at least two witnesses to bequests of personal estate, it is ineffectual as a testamentary paper, because it has but one witness, and therefore it should, if possible, be construed to have effect as a bond or obligation. But whether the instrument shall be declared a valid obligation, or to have a testamentary character only, must be determined from the terms and provisions of the instrument itself. Carey v. Dennis, 13 Md. 17. We have shown that the instrument has not the essential terms to create a debitum, personally binding the deceased in his life-time; and this construction cannot be affected by the fact, that the instrument being testamentary in its character, must fail of effect, because of insufficient witnesses under the statute.

It follows that the judgment of the court below must be affirmed.

Judgment affirmed.

UNITED STATES SUPREME COURT AB

STRACT.

STATUTE OF FRAUDS-ACCEPTANCE AND DELIVERY. -In an action to recover the value of certain securi

ties, sold under a verbal contract alleged to have been made with defendant personally, who claimed that he entered into it as representative of a corporation of which he was trustee, it was shown that in pursuance thereof plaintiff banded the securities to a third party, treasurer of said corporation, taking his receipt, reciting a condition precedent to their deliv ery. Defendant, when advised of what had been done with the securities, made no objection; and at another time, his attention being called thereto, said, "Yes; that's all right;" and again, introducing plaintiff to a friend as the man from whom he had the securities. Held, not sufficient evidence of acceptance and delivery to take the contract out of the statute of frauds. In order to take the contract out of the operation of the statute, it was said by the New York Court of Appeals, in Marsh v. Rouse, 44 N. Y. 643, that there must be "acts of such a character as to place the prop. erty unequivocally within the power and under the exclusive dominion of the buyer as absolute owner, discharged of all lien for the price." This is adopted in the text of Benj. Sales (Bennett's 4th Am. ed.), § 179, as the language of the decisions in America. In Shindler v. Houston, 1 N. Y. 261; 49 Am. Dec. 316, Gardiner, J., adopts the language of the court in Phillips v. Bristolli, 2 Barn. & C. 511, "that to satisfy the statute there must be a delivery by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with the intent of taking possession as owner;" and adds: "This I apprehend is the correct rule, and it is obvious that it can only be satisfied by something done sub-equent to the sale unequivocally indicating the mutual intentions of the parties. Mere words are not sufficient. Bailey v. Ogden, 3 Johns. 421; 3 Am. Dec. 509. * * In a word, the statute of fraudulent conveyances and contracts pronounces these agreements, when made, void, unless the buyer should accept and receive some part of the goods.' The language is unequivocal, and demands the action of both parties, for acceptance implies delivery, and there can by no complete delivery without acceptance." In the same case Wright, J., said: "The acts of the parties must be of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer. This is the doctrine of those cases that have carried the principle of constructive delivery to the utmost limit.

Where the acts of the buyer are equivocal, and do not lead irresistibly to the conclusion that there has been a transfer and acceptance of the possession, the cases qualify the inferences to be drawn from them, and hold the contract to be within the statute. *** I think I may affirm with safety that the doctrine is now clearly settled that there must not only be a delivery by the seller, but an ultimate acceptance of the possession of the goods by the buyer, and that this delivery and acceptance can only be evinced by unequivocal acts independent of the proof of the contract." This case is regarded as a leading authority on the subject in the State of New York and has been uniformly followed there, and is recognized and supported by the decisions of the highest courts in many other States, as will appear from the note to the case as reported in 49 Am. Dec. 316, where a large number of them is collected. So in Remick v. Sandford, 120 Mass. 309, 316, it was said by Devens, J., speaking of the distinction between an acceptance which would satisfy the statute and an acceptance which would show that the goods corresponded with the warranty of the contract, that "if the buyer accepts the goods as those which he purchased, he may afterward reject them if they were not what they were warranted to be; but the statute is satisfied.

But while such an acceptance satisfies the statute, in order to have that effect, it must be by some unequiv. ocal act done on the part of the buyer with intent to take possession of the goods as owner. The sale must be perfected, and this is to be shown, not by proof of a change of possessiou only, but of such change with such intent. When it is thus definitely established that the relation of vendor and vendee exists, written evidence of the contract is dispensed with; although the buyer, when the sale is with warranty, may still retain his right to reject the goods if they do not correspond with the warranty. That there has been anacceptance of this character, or that the buyer has conducted himself in regard to the goods as owner, is to be proved by the party setting up the contract." Mr. Benjamin, in his treatise on Sales, § 187, says: "It will already have been perceived that in many of the cases the test for determining whther there has been an actual receipt by the purchaser has been to inquire whether the vendor has lost his lien. Receipt implies delivery, and it is plain that so long as vendor has not delivered there can be no actual receipt by vendee. The subject was placed in a very clear light by Holroyd, J., in the decision in Baldey v. Parker, 2 Barn. & C. 37: Upon a sale of specific goods for a specific price by parting with the possession, the seller parts with his lien. The statute contemplates such a parting with the possession, and therefore as long as the seller preserves his control over the goods so as to retain his lien, he prevents the vendee from accepting and receiving them as his own, within the meaning of the statute.' No exception is known in the whole series of decisions to the proposition here enunciated; and it is safe to assume, as a general rule, that whenever no fact has been proven showing an abandonment by the vendor of his lien, no actual receipt by the purchaser has taken place. This has been as strongly insisted upon in the latest as in the earliest cases. The principal decisions to this effect are referred to in the note." In accordance with this, the rule is stated in Browne Stat. Frauds, § 317a, as follows: "Where by the terms of the contract the sale is to be for cash, or any other condition precedent to the buyer's acquir ing title in the goods be imposed, or the goods be at the time of the alleged receipt not fitted for delivery according to the contract, or any thing remain to be done by the seller to perfect the delivery, such fact will be generally conclusive that there was no receipt by the buyer. There must be first a delivery by the seller, with intent to give possession of the goods to the buyer." Jan. 9, 1888. Hinchman v. Lincoln. Opinion by Matthews, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

ARREST DETENTION OF PROPERTY BY OFFICERLIABILITY. An officer, making an arrest for violation of a city ordinance in beating drums, is not justified in detaining the drums after the trial without an order of court, even though he has reason to believe, and does believe, that the arrested party will immediately use the drums in violation of the same ordinance. The principle thus contended for by the officer would enable him to detain the team of a person arrested for too fast driving, so long as he (the officer) believed with reason the owner would immediately repeat his offense of too fast driving if the team were restored to him. An officer making an arrest upon a criminal charge may also take from the prisoner the instruments of the crime, and such other articles as may be of use as evidence upon the trial. These may not be confiscated or destroyed by the officer however

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