section men to exercise any supervision over the right of way, or to extinguish fires that might be ignited on it. So far as the evidence goes, their employment was exclusively in repairing the railroad track.

The doctrine of the liability of the master for the wrongful acts of his servants is predicated upon the maxims, "respondeat superior" and "qui facit per alium facit per se." In fact, it rests upon the doctrine of agency. Therefore, the universal test of the master's liability is whether there was authority, express or implied, for doing the act; that is, was it one done in the course and within the scope of the servant's employment? If it be done in the course of and within the scope of the employment, the master will be liable for the act, whether negligent, fraudulent, deceitful, or an act of positive malfeasance. Smith Mast. and Serv. 151. But a master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only occur when that which is done is within the real or apparent scope of the master's business. It does not arise when the servant steps outside of his employment to do an act for himself not connected with his master's business. Beyond the scope of his employment the servant is as much a stranger to his master as any third person. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. A master is not responsible for any act or omission of his servant which is not connected with the business in which he serves him, and does not happen in the course of his employment. And in determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself, and as his own master, pro tempore, the master is not liable. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously ex pressed, is the uniform doctrine laid down by all authorities. 2 Thomp. Neg. 885, 886; Sherm. & R. Neg., §§ 62, 63; Cooley, Torts, 533; Little Miama R. Co. v. Wetmore, 20 Ohio St. 110; Storey v. Ashton, L. R., 4 Q. B. 476; Mitchell v. Crassweller, 13 Com. B. 236; McClenaghan v. Brock, 5 Rich. Law. 17.

It would seem to follow, as an inevitable conclusion, from this, that on the facts of this case the act of these section men in building a fire to warm their own diuuer, was in no sense an act done in the course of and within the scope of their employment, or in the execution of defendant's business. For the time being they had stepped aside from that business, and in building this fire they were engaged exclusively in their own business, as much as they were when eating their dinner, and were for the time being their own masters as much as when they ate their breakfast that morning or went to bed the night before. The fact that they did it on defendant's right of way is wholly immaterial, in the absence of any evidence that defendant knew of or authorized the act. Had they gone upon the plaintiff's farm and built the fire the case would have been precisely the same. It can no more be said that this act was done in the defendant's business, and within the scope of their employment than would the act of one of these men in lighting his pipe, after eating his dinner, and carelessly throwing the burning match into the grass. See Williams v. Jones, 3 Hurl. & C. 256. The fact that the section foreman assisted in or even directed the act does not alter the

case. In doing so he was as much his own master and doing his own business as were the section men. Had it appeared that it was part of his duty to look after the premises generally, and extinguish fires that might be ignited on them, his omission to put out the fire might possibly, within the case of Chapman v. New York, etc., R. Co. 33 N. Y. 369, be considered the negligence of the defendant. But nothing of the kind appears, and the burden is upon plaintiff to prove affirmatively every fact necessary to establish defendant's liability.

Order reversed, and new trial granted.

UNITED STATES SUPREME COURT ABSTRACT.

JANUARY 14, 1884.

PRACTICE - SUPREME COURT CLERK'S FEES FOR PRINTING RECORD.-The clerk of the Supreme Court is entitled to the fee of fifteen cents per folio under rule twenty-four of the court in relation to printing, although the parties delivered to the clerk the requisite number of copies of the record in print. The clerk is responsible to the court for the correctness and proper indexing of the printed copies of the record, for their presentation to the justices in the form and of the size prescribed by the rules, and for their delivery when required to the parties entitled thereto. As he must now account to the treasurer for the fees and emoluments of his office, he may demand payment in advance. Steever v. Rickman, 109 U. S. 74. If the printing is actually done under his supervision he may require the payment of the fee chargeable under the rule before the printing is done. If the parties themselves furnish the printed copies, the fee must be paid, if demanded, in time to enable him to make the necessary examinations and be ready to deliver the copies to the parties or their counsel and to the court when needed for any purpose in the progress of the cause. The fee is for the service specified in this item of the table, and is indivisible. Consequently, if the clerk performs any part of the service he is entitled to collect the whole fee; and if the printed record is used at all, it must be examined by him to see if it conforms to the copy certified below and on file as the transcript of the record. So that if the printed copies are used for any purpose in the progress of the cause the whole fee is chargeable. Beam v. Patterson. Opinion by Waite, C. J.

REMOVAL OF CAUSE FIRE INSURANCE — FALSE STATEMENT AFTER LOSS INVALIDATING POLICY.(1) Under the second section of the act of March 3, 1875, 18 St. 470, a suit of a civil nature, brought in a State court, where the matter in dispute exceeds the sum or value of $500, and in which there is a controversy between citizens of different States, or between citizens of a State and foreign States, citizens, or subjects, may be removed in the Circuit Court, although such suit, because founded on a contract in favor of an assignee, could not have been brought in the Circuit Court if no assignment had been made, not being the case of a promissory note, negotiable by the law merchant, or of a bill of exchange. (2) In making statements under oath upon an examination in behalf of an insurance company in respect to a loss, the insured made certain false statements in respect to the manner in which he had purchased the insured stock. There was evidence tending to show that he answered thus with no purpose to deceive and defraud the insurance companies, but for the purpose of showing himself, upon the examination, consistent with a statement that he had made about it a day or two subsequent to the purchase of said stock to R. G. Dunn & Co.'s com

mercial agency at St. Paul, Minnesota, with a view of obtaining a large commercial credit in eastern cities. Held, that the false statements would invalidate the insurance policy under a condition to that effect. A false answer as to any matter of fact, material to the inquiry, knowingly and wilfully made, with intent to deceive the insurer, would be fraudulent. If it accomplished its result, it would be a fraud effected; if it failed, it would be a fraud attempted. And if the matter were material and the statement false, to the knowledge of the party making it, and wilfully made, the intention to deceive the insurer would be necessarily implied, for the law presumes every man to intend the natural consequences of his acts. No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false and wilfully made, the fact that they are material is proof of an attempted fraud, because their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them, and to whom they are addressed. "Fraud." said Catron, J., in Lord v. Goddard, 13 How. 198, means an intention to deceive." "Where one," said Shipley, C. J., in Hammatt v. Emerson, 27 Me. 308, "has made a false representation, knowing it to be false, the law infers that he did so with an intention to deceive." "If a person tells a falsehood, the natural and obvious consequence of which, if acted on, is injury to another, that is fraud in law." Bosanquet, J., in Foster v. Charles, 7 Bing. 105; Polhill v. Walter, 3 Barn. & Ad. 114; Sleeper v. Insurance Co., 56 N. H. 401; Leach v. Republic Ins. Co., 58 id. 245. Claflin v. Commonwealth Ins. Co. Opinion by Matthews, J.

VOLUNTARY CONVEYANCE-DEED WITH GRANTEE'S NAME LEFT BLANK CONVEYS NO TITLE.- A. promised to donate land to B. Subsequently he executed a deed of the laud with the grantee's name left blank. This deed was handed to B. with the blank unfilled,

and it was not filled at the time of the death of B.

Held, that B. took no title to the land. The promise of a pure donation to be subsequently made, until executed, is in a legal view, valueless. The deed in blank passed no interest, for it had no grantee. The blank intended for the name of the grantee was never filled, and until filled the deed had no operation as a conveyance. It is the law in several States, that the grantor in a deed conveying real property, signed and acknowledged, with a blank for the name of the grantee, may authorize another party, by parol, to fill up the blank. Swartz v. Button, 47 Iowa, 188; Field v. Stagg, 52 Mo. 534. As said by this court in Drury v. Foster, 2 Wall. 33, "Although it was at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion at this day is, that the power is sufficient." But there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it; the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named. Allen v. Withrow. Opinion by Field, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

AGENCY-CONSTRUCTION OF CONTRACT BY AGENT.When the terms of a contract made by an agent are clear, they are to have the same construction and legal effect whether made for a domestic or for a foreign principal. Kaulback v. Churchill. Opinion by Clark, J. * To appear in 59 New Hampshire Reports.

CARRIER MAY LIMIT LIABILITY BY CONTRACT.Common carriers may, by express contract, limit their common-law liability. Moses v. B. & M. R. R. 24 N. H. 71, 90; York Company v. Central R. Co., 3 Wall. 107; Pemberton Company v. New York Cent. R. Co., 105 Mass. 144; Grace v. Adams, 100 id. 505. Rand v. Merchants' Dispatch Transportation Co. Opinion by Stanley, J.

DEED -COVENANT RUNNING WITH LAND — WARRANTY.-The covenant of general warranty in a deed is a covenant that runs with the estate in reference to which it is made, and may be availed of by suit, in his own name, by any one to whom the same may come by deed, even after several successive conveyances, or a descent or devise. As the covenant runs with the land, it passes to the grantee under any conveyance sufficient to transfer the title to the land. The legal title to land ordinarily carries with it the right of possession, and gives a constructive possession without actual entry; and a conveyance by one having the legal title, although not in actual possession, carries the right of possession, and the grantee, upon taking actual possession, may avail himself of a covenant of warranty running with the land. 2 Washb. Real Prop. 662; Crooker v. Jewell, 29 Me. 527; Moore v. Merrill, 17 N. H. 75; Russ v. Perry, 49 id. 547; Chase v. Weston, 12 id. 413; Griffin v. Fairbrother, 10 Me. 91; Allen v. Little, 36 idr 170; White v. Whitney, 3 Met. 81; Moore v. Merrill, 17 N. H. 75, 81, 82; Wead v. Larkin, 54 Ill. 489; Brady v. Spurck, 27 id. 478; Loomis v. Bedel, 11 N. H. 74, 82; Drew v. Towle, 30 id. 531, 537; Sprague v. Baker, 17 Mass. 586; Donnell v. Thompson, 10 Me. 170. Chandler v. Brown. Opinion by Clark, J.

STATUTE OF FRAUDS - PROMISE TO PAY DEBT OF ANOTHER TAXES OF THIRD PERSON. A written promise to pay the debt of another is not sufficient, within the meaning of the statute of frauds, unless it recites or imports a good consideration. Neelson v. Sanborne, 2 N. H. 414; Underwood v. Campbell, 14 id. 393, 397; Simons v. Steele, 36 id. 73, 81, 82; Leonard v. Vredenburgh, 8 Johus. 29; Wain v. Warlters, 5 East, 10; Saunders v. Wakefield, 4 B. & A. 595; Agnew Stat. of Fr. 79; Browne Stat. of Fr. § 407. A promise to a collector of taxes to pay the taxes of a third person in consideration that the collector will refrain from levying on such person's real estate, is not within the meaning of the statute of frauds, need not be in writing, and an action can be maintained upon it, no writing being declared upon. Goodwin v. Bond. Opinion by Allen, J.

MICHIGAN SUPREME COURT ABSTRACT. DECEMBER 20, 1883.

CONFLICT OF LAW JUDGMENT OF DIVORCE IN ANOTHER STATE-ACTION BY WIFE FOR SUPPORTLACHES.-A husband left Port Huron, in Michigan, not with the intention of abandoning his residence there, but to avoid the service of process, and went to

Indiana where he remained in order to institute a divorce action which he commenced there against his wife who remained in Michigan, and who had no actual notice of the action. He procured a judgment of divorce, and shortly afterward returned to Port Huron and set up business there, but gave no aid or support to his wife. Thirteen years or more thereafter the wife began an action for support against him, claiming still to be his wife. Held (1), that the wife was not concluded by the Indiana judgment. It is true that the Constitution of the United States requires full faith and credit to be given in every State to the records and judicial proceedings of other States,

CORRESPONDENCE.

ANTI-CODIFICATION.

Editor of the Albany Law Journal:

It seems to me that the advocates of the "Civil Code" are singularly unfortunate in the illustrations they choose for the purpose of showing the superiority of statutory law over common law. Thus we find Mr. C. Goepp writing to your JOURNAL, and complaining that he cannot find authorities on "the question of how far are admissible the declarations of a murdered man expressing fear, etc." Hence, he argues, we should have a Code. But a Code of what? Surely, he will not find any such question discussed in the "Civil Code." As we already have a "Penal Code" and a "Code of Criminal Procedure," the failure of Mr. C. Goepp to find the question discussed would seem to result, either from the ignorance of Mr. Goepp as to the existence and contents of those Codes, or else from the incompleteness of the Codes themselves. As there is no Code of Evidence, either civil or criminal, now pending before the Legislature, Mr. Goepp's illustration is about as far fetched and inappropriate as can well be devised. But even if there were a Code of Evidence proposed, no such Code would attempt to go into the minutia of the subject, and give such exceptions and qualifications and special illustrations as would be necessary to give Mr. Goepp practical help on the question. It would merely state the general principles as to " dying declarations," which may be found in any text book on criminal law or on evidence. And this illustrates one of the grossest misapprehensions as to the "Civil Code." It does not undertake to go into details, but merely to state general principles. But practical litigation deals with details and with the qualifications and applications of general principles; and just here, where this difficult and perplexing work of the lawyer commences, the Code fails him; just as a Code of Evidence would fail Mr. Goepp on the point he is inquiring about.

But I am devoting more space to Mr. Goepp's illustration than I think it deserves. Nor do I think that Mr. E. S. Whittemore's illustration deserves any more space. He actually, in his letter in your issue of March 15th, refers to "the laws growing out of the Statutes of Frauds," as "somewhat contradictory, all tending toward confusion and uncertainty;" and hence he concludes we ought to have more statutes, in the shape of a code. His conclusion may or may not be correct; but his illustration of the advantages of statutory law is certainly most unfortunate. If any thing in the history of jurisprudence tends to prove the disadvantages of statutory law, as breeding confusion, arbitrary distinctions, and expensive litigation, it is the Statute of Frauds.

Mr. Frankenheimer's views deserve more careful consideration. He is an unusually intelligent man, who seems to be sincere in his zeal for the "Code," and who is one of the very few among the advocates of codification, who have felt it necessary to acquaint themselves with the contents of this 'Code," before assuming to champion it. Yet Mr. Frankenheimer's chief illustration of the necessity of codification is derived from the litigation over the rights and liabilities of married women in this State, which litigation is still raging furiously. But what has caused this litigation? The uncertainties of the commonlaw? Not at all. The uncertainty caused by statutes, the Married Women's Acts. And yet we are gravely told that the litigation and uncertainty caused by these statutes, show us how superior statutory law is over common; and hence we should have more statutes. Mr. Frankenheimer's conclusion may be right; but his illustration proves the direct contrary. The Married

Women's Acts were a necessity. Grave evils had survived from feudal and semi-barbarous times as to the rights and liabilities of husband and wife, notwithstanding the ameliorations produced by the progressive and beneficent decisions of Courts of Equity. The evils to be remedied justified and required legislation; but this legislation involved minor evils; and among these minor evils was an increase of litigation. And yet we are gravely told that this increase of litigation is itself a reason why we should have new statutes and a new crop of litigation.

But Mr. Frankenheimer will answer, that whatever may be the effect of the Code as a whole in the way of increasing or decreasing litigation, the particular subject under discussion will certainly be clarified and simplified; because the law of married women is entirely swept away by the Code, and there is no longer any thing left to litigate about on this subject. Waiving, for the present, the sufficiency of this answer, it leads me to make another observation and call attention to another misapprehension as to the character of this Code.

It is commonly understood that theCode merely states the existing law, and this understanding is industriously encouraged by the champions of the Code, whenever they desire to ward off discussion. They say, it is merely a question of whether we shall have common law or statutory law; unwritten law or written law; the latter is sure to come sooner or later, hence, we might as well have it now. It is only a question of the form in which our law shall be embodied; a question on which visionary doctrinaires or prejudiced and interested lawyers have impracticable or obsolete notions; but on which the people at large, and we codifiers in particular, take a common sense and practical view. At all events it can do no harm and may do good.

Now, the fact is that this so-called "Civil Code" is not codification at all; it is revolution. It does not state the law as it is; but the law as its author thinks it ought to be. The law of married women affects every household in this State; every husband and every wife of high and low degree. Yet this Civil Code revolutionizes the whole law; abolishes all the distinctions between the rights and liabilities of married women and men. This may be right, but it is none the less revolution. I am not prepared to say that it is not right; but I am prepared to say that to force it on the people of this State without discussion and under the guise of codifying the existing law, is utterly and entirely wrong.

Suppose a bill were introduced into the Legislature providing that "all persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights;" would not such an act receive careful consideration, searching criticism, earnest discussion pro and con? Would not the battle wage hot, as to whether a married woman should be allowed to contract in all respects as if she were sole? Would not the policy, wisdom and expediency of the law be vigorously championed and attacked? And yet when these precise words appear as section 972, of what purports to be a Code," the section excites neither discussion, comment nor observation; and those of us who object to this method of wholesale legislation, and who consider it our duty to open our eyes and to read, reflect upon and discuss the contents of this "Code," are warned off by its advocates as meddlers and interlopers. Notwithstanding the warning, we must continue to protest against "going it blind." We insist upon knowing, at the risk of being intrusive and impertinent, what is hidden in this mystic volume labelled a "Code." And we insist that each member of the Legislature owes a duty to the State and to his conscience under his official oath to examine into the

"Code," and to satisfy himself that the changes it ef-
fects in the law are wise and beneficial. And until he
has so satisfied himself, he has no right to vote for
this "Code."
WM. B. HORNBLOWER.

NEW YORK, March 17, 1884.
PROVISION THAT LEGATEE CONTESTING WILL SHALL
FORFEIT HIS LEGACY?

Editor of the Albany Law Journal:

The bar in my vicinity is about evenly divided on a question of law presented by a clause in a will providing that in case any of the legatees should be dissatisfied, and contest the will, such contestant to thereby lose his legacy, which was to pass to the residuary legatees.

After a most careful and diligent search, I found no authorities bearing directly on this question with the exception of a few early English cases, and believing them to be founded on just principles, I accordingly expressed an opinion that a party contesting would forfeit his legacy.

Those who would not accept my opinion as law, have also searched for authorities, and find none whatever, which I consider a fact entitling me to a firmer belief in my law.

Will you be kind enough to insert this in the LAW JOURNAL, and permit one of your many readers, to give me a brief answer citing cases?

This question must have arisen in the practice of many members of the bar, and I will be under great obligations if you will aid me in fully settling the controversy. A READER.

POUGHKEEPSIE, N. Y., March 17, 1884.

THE ROGER AMERO CASE.

Editor of the Albany Law Journal:

The case of Roger Amero, is now undergoing an examination before a committee of the Massachusetts Legislature, for the purpose of indemnifying him in some way, for the hardship which he has endured, in his arrest and confinement, pending the finding of the indictment and subsequent imprisonment, on the charge for the alleged murder of Mrs. Etta Carlton. This case presents some unique phases in the history of criminal procedure.

On the evening of the 18th of March, 1883, Mrs. Etta Carlton, was murdered in her front entry by being struck on her head, by a paving-stone, at her home in Watertown, seven miles from Boston. The whole community, and throughout the State, the excitement became general, and all vigilance was exercised to discover the murderer. A reward of $3,500 was offered for the apprehension of the true murderer. Finally suspicion rested on Roger Amero, a youth of twenty, from Nova Scotia. At the preliminary examination, it was testified to by a lady in the waiting room of the depot of Mount Auburn station, of the Fitchburg railroad, on the evening of March 18th, that she identified the prisoner as the one she saw there, which depot is within a short distance of the residence of Mrs. Carlton, and as cumulative evidence, another witness testified that he saw Roger Amero, on the same evening on the railroad track near the depot, and he had some conversation with him.

Between the time of the preliminary examination, and the finding of the indictment by the grand jury, the detectives, the district attorney and others, were busy in the search of further evidence. They tracked almost every step that Amero had taken since the day of the murder, and along this trail of evidence, Amero had repeatedly told divers persons, that he was afraid of being arrested, for some terrible thing that he had done to a woman. He was known to take different trains of cars than the ones that led to the Provinces, where he was bound; that he offered extrava

gaut sums of money to conductors of trains, to stop and drop him at stations where such cars did not stop.

Finally papers for his extradition were issued, and the hearing was had before Judge Savory at Digby, N. S., and after some delay and hesitation Amero was remanded to the United States authorities for trial. The grand jury for the county of Middlesex, at Fast Cambridge, found an indictment against Amero for murder in the first degree, and he was remanded to jail to await his trial. At this juncture of the case, it began to be whispered about that Roger Amero belonged to a family in which insanity prevailed, and that Roger himself was subject to the same. They summoned an expert, and he declared he hardly knew, but thought he might be feigning insanity; but when another expert was brought, he pronounced him positively insane. Just at this point a suspicion of murder pointed in another direction. At any rate the attorney-general and the district attorney were so well satisfied of Amero's innocency that they discharged him.

Now the question is to come before the Legislature, whether or not Roger Amero, with all the hardship he has endured at the hands of the government, is to be compensated in any way, more than an ordinary criminal, who suffers unjustly.

E. S. WHITTEMORE.

SANDWICH, MASS., March, 1884.

NEW YORK STATE BAR ASSOCIATION.

A transcript of the minutes of a meeting of the Executive Committee of the Association, held at Albany, February 26, 1884.

Present, the Chairman, Mr. Burt, Messrs. Smith, Forsyth, Kernan, Putnam, the President (Mr. Shepard), Olney, Hickman, Nelson and Buchanan, a quorum.

The minutes of the last meeting read and approved, and on motion the same were adopted.

On motion, Rule V. of the Executive Committee was amended by adding thereto the following:

"Provided such resolution receives a majority of the votes cast, and at least four affirmative votes." The Secretary shall submit with every resolution so sent by him a copy of this clause of said Rule V. Adopted, unanimously.

On motion