secret for several years, and knowingly suffers third persons afterward to purchase parts of the same premises from the grantor, who remained in possession and was the reputed owner, and to expend money on the land without giving any notice of his claim, he will not be permitted afterward to assert his legal title against such innocent and bona fide purchasers. In this case the fraudulent silence continued fourteen years.

In Higinbotham v. Burnet, 5 Johns. Ch. 184, A. D. 1821, E., a soldier entitled to a bounty lot, before the patent issued bound himself to deed it to S.; S. assigned the lot, bond, etc., to V., who sold them by indorsement, and all his right, etc., to C., to whom he delivered the original bond, patent, etc. Held, that although for want of words of inheritance the assignment in law transferred only an estate for life, yet, as the intention was to convey a fee, a trust estate in fee was created, and this court would decree a legal conveyance in fee. Also, that V., having silently stood by for thirteen years after the death of C., and seen his heirs claiming to be owners in fee, and deal- | ing with the land as owners, and making valuable improvements, was estopped, and all under him were estopped, from asserting his legal title.

In Town v. Needham, 3 Paige, 545, G. and W., two brothers, were tenants in common of real estate; G. agreed to relinquish his interest in exchange for a quantity of medicines and the good will of his brother's business of physician; W. took possession and made improvements, and sold to T., who made valuable improvements. Held, that this was sufficient in equity to take the case out of the statute of frauds, and that T. was entitled to a conveyance of G.'s interest, and to a perpetual injunction against a suit. which G. seventeen years after his transfer to W. had instituted to recover the premises.

Laverty v. Moore, 32 Barb. 347. In 1835 L. and G. entered into a written agreement by which L. undertook to fill in with earth certain lands, under water, owned by G., and in compensation G. covenanted to convey to him one-third of the lands in fee. L. went on with the work, having previously made a survey in which he was assisted by T., who owned the adjoining lands on the south. On such survey T. placed stakes and made a monument to indicate the boundary line between him and L., and L. filled in the lots to correspond with the stakes and monument. T. was repeatedly on the ground, but made no objection. Held, that the line between the two adjoining owners being thus established and located by the acts and acquiescence of the parties themselves, and L. having expended money and labor in making valuable and permanent improvements on the lots, in the faith and confidence that the line so marked out was the true line, it must be regarded as such, and that persons claiming title under T. were estopped from controverting the line as thus established and located. The defense of the statute of limitations was not set

up, but the case turned solely on the ground of estoppel.

In Corkhill v. Landers, 44 Barb. 218, it was held, that where a boundary line is fixed and settled by parol agreement between A. and B., adjoining owners, and B. afterward, with the knowledge of A., makes valuable and expensive improvements, without objection on the part of A., the latter is estopped from denying that the line thus fixed was not the true boundary line. "He who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to be silent."

Laverty v. Moore was affirmed in the court of appeals in 1865 (33 N. Y. 658), and must be regarded as settling this principle.

We therefore derive this rule:

If the boundaries in a grant are definite, certain and unambiguous, and adverse possession has not accrued; yet, if the division line between the lands granted and the lands of one adjoining has been differently fixed and located by agreement of the respective owners, and the real owner silently suffers the other to make improvements upon the land thus embraced, on the faith of such location; or if, without such agreement, but innocently, that other makes such improvements upon the land of the real owner, and the latter, with knowledge thereof, is thus silent, the latter, and all under him, shall be estopped from denying that the line thus fixed is the true line, and from asserting ownership to the land thus acquired.

AMERICAN REPORTS AND REPORTERS.
No. V.
VIRGINIA.

George Wythe was the first reporter in this State, and published in 1795 a folio volume containing cases from 1790 to 1795.

In 1798, Bushrod Washington published two volumes of reports of cases decided in the court of appeals, from 1790 to 1796 inclusive. Daniel Call published, in 1801-1803, three volumes of decisions of the same court from 1797 to 1803. These were followed, in 1833, by three more volumes, containing scattering cases from 1799 to 1803, the regular series from 1804 to 1806, and then again scattering cases to 1818. Six decisions of the United States circuit court for Virginia are also contained in the sixth volume. William H. Hening and William Mumford published in 1809–1811, four volumes of the decisions of the court of appeals between October, 1806, and October, 1809, and William Mumford continued the series in six volumes, from 1810 to 1820.

Up to this time the reports had been issued as a private enterprise, without legislative authority or sanction; but in 1820 provision was made for the appointment, by the court of appeals, of a reporter, who was to report such decisions as any one judge might designate, and who was to receive a compensation of eighty-three and a third cents for every hundred

pages contained in each copy. By an amendment in 1829, the reporter was directed to secure the copyright to the commonwealth, and was forbidden to publish more than seven hundred copies.

Under the act of 1820, Francis W. Gilmer was first appointed, and reported the cases from April, 1820, to June, 1821, in one volume. He was succeeded by Peyton Randolph, who reported the decisions from November, 1821, to December, 1828, in six volumes. The fifth and sixth volumes contain also the decisions of the general court, which had hitherto been published separately. Mr. Randolph was succeeded by Benjamin Watkins Leigh, who reported the decisions of the court of appeals and general court, from 1829 to 1841, in twelve volumes.

We will here digress from the regular series to notice the scattering reports that had been heretofore issued. In 1815, a volume of cases decided in the general court, commencing in the year 1789 and ending in 1814, was published by Judges Brockenborough and Holmes. A second volume, containing the cases in the same court, from 1815 to 1826, was published in the latter year by Judge Brockenborough. These two volumes are cited as Virginia Cases. Since 1828, the decisions of the general court have been published with those of the court of appeals.

To return to the regular series: Mr. Leigh was succeeded by Conway Robinson, who reported in two volumes the decisions between the April term, 1842, and the April term, 1844. The first volume contains an interesting sketch of the judicial system of Virginia. Mr. Robinson resigned in 1844, and Peachy R. Grattan was appointed. His first volume began with the April term, 1844, and his last, so far issued, vol. 19, ends with the July term, 1870.

In 1848, the calendar of the supreme court of appeals had accumulated to such an extent that the average pendency of an appeal was seven years. To remedy the evil thus occasioned, a special court of appeals was appointed, similar in nature and power to the commission of appeals of this state. The decisions of this court were reported in two volumes, by John M. Patton and Roscoe B. Heath.

WEST VIRGINIA.

West Virginia became a separate state in 1863. A supreme court of appeals was organized, and John Marshall Hagan was appointed reporter. He has issued two volumes, commencing with the August term, 1863, and ending with the January term, 1868.

NORTH CAROLINA.

Francis Xavier Martin published the first volume of reports in this state. These cases are entitled Notes of a few Decisions in the Superior Courts of the State of North Carolina and in the Circuit Courts of the United States for North Carolina District, and are cited as Martin's Reports. The cases in the superior courts, from 1789 to 1806, were reported by John Haywood in two volumes.

In 1802 John Louis Taylor published one volume of the cases from 1799 to 1802, and in 1818 he published a second volume, containing decisions between the July term, 1816, and the January term, 1818. In 1805 Duncan Cameron and William Norwood reported in one volume the decisions of the court of conference, between 1800 and 1804, cited as Conference Reports. In 1805 the name of this court was changed to "the supreme court of North Carolina." Between 1804 and 1819 Archibald D. Murphy published the decisions in three volumes.

The Carolina Law Repository was begun in 1813 and published semi-annually to September, 1816. It contained, besides miscellaneous articles, reports of decisions in the supreme court from the July term, 1811, to July term, 1816, inclusive. The work is bound in two volumes and cited as the Carolina Law Repository. From the June term, 1820, to the June term, 1826, the decisions of the supreme court were reported by Francis L. Hawks, in four volumes.

Thomas P. Devereux continued the reports from 1826 to 1834, in four volumes, and the same gentleman, in connection with William H. Battle, continued the cases to the June term, 1839, in four volumes. The equity cases between 1828 and 1834 were reported in two volumes by Mr. Devereux, and between that year and 1840 by Devereux and Battle, in two volumes.

James Iredell reported the law cases between the June term, 1840, and the August term, 1852, in thirteen volumes, and the equity cases between the same periods, in eight volumes. He was succeeded by Perrin Busbee, who reported in one volume the cases between the December term, 1852, and the August term, 1853. This volume is called North Carolina Reports as are all reports subsequently issued. He also reported one volume of equity cases for the same period. Hamilton C. Jones followed, and published eight volumes containing the decisions at law between 1853 and 1862, and the equity decisions up to 1860. The next year Patrick Winslow issued one thin volume of law cases and one of equity cases, ending with 1864. During the year 1865 the court was not in session, owing to the war. In 1866 S. F. Phillips was appointed reporter, and has issued to date three volumes in law and two in equity. These volumes of law cases are numbered in a regular series counting from the first report published in the state, and the last is numbered 64.

SOUTH CAROLINA.

The earliest reports in this state are the two volumes of Elisha Hall Bay, one of the judges of South Carolina, published in 1809, 1811. The first volume contains cases in the superior courts of law from 1783 to 1795 inclusive. The second contains the decisions of the constitutional court on appeal between 1796 and 1804. The next in point of time were the four volumes of Chancellor Dessaussure, containing the decisions of the court of chancery from the revolution to December, 1813. The decisions of the constitu

tional court between 1812 and 1817 were published in four volumes, usually cited as South Carolina Reports. In 1820 and 1821 Henry L. Nott and Daniel J. McCord published the decisions of the same court between 1817 and 1820, and between 1821 and 1823 the decisions were reported by Mr. McCord in two volumes. In 1824 William Harper, afterward chancellor, reported the decision of the constitutional court in 1823, 1824, in two volumes, and the chancery decisions in one volume; after that time the cases at law were continued in the third and fourth volumes of McCord's reports, containing cases in the court of appeals to the April term, 1828; and in the two volumes of H. Bailey, containing the cases from the May term, 1828, to January, 1832 inclusive, and in the three volumes of W. R. Hill, containing case from 1832 to 1837. Mr. Riley also issued a volume of decisions of 1836 and 1837.

The chancery cases during these several periods were reported by the same reporters, as follows: from January, 1825, to May, 1827, by Daniel J. McCord, in two volumes; from 1830 to 1831, by H. Bailey, in one volume; from 1831 to 1832, by J. S. G. Richardson, in one volume; from 1833 to 1837 by Mr. Hill, in two volumes; and from 1836 to 1837, by Mr. Riley in one volume.

From 1837 to 1838 the cases in law were reported by C. W. Dudley, reporter, in one volume, and the cases in equity in one volume; from 1838 to 1839, the law and equity cases were reported by William Rice, each in one volume; from 1839 to 1840, the cases were reported by L. Cheves Jr., in one volume law, and one volume equity. McMullen reported both the law and equity cases from 1840 to 1842, adding two volumes to the former, and one to the latter series. R. H. Spears was reporter from 1842 to 1844, and published two volumes of law, and one of equity decisions. J. S. G. Richardson succeeded, and published three volumes of law, and two of equity cases, decided between 1844 and 1847. He was succeeded by James Strobhart, who published five volumes of law cases, decided between the November term, 1846, and the May term, 1850, and four volumes of chancery decisions between the same dates. Mr. Strobhart was in time succeeded by Mr. Richardson, who has reported the law decisions down to 1868, in twelve volumes, and the chancery decisions in eleven volumes.

GEORGIA.

Thomas U. P. Charlton, judge of the superior court, was the first reporter in this state, and published in 1824 the decisions of that court prior to 1810. In 1837 George M. Dudley published the decisions of the same court from the July term, 1831, to July, 1833, inclusive.

In 1838 Robert M. Charlton published in one volume the decisions made in the superior court of the eastern district of Georgia, and in the middle circuit, from the January term, 1811, to the July term,

1837. The decisions of the superior court in 1842, 1843 were reported by the judges in one volume.

Up to this time there had been no provision made by law for the publication of the decisions of the court, but in 1845 the judges were authorized to appoint a reporter for the term of six years, at a salary of $1,000 a year. James M. Kelly was appointed under this provision, and published the decisions of 1846 and 1847 in three volumes, and, with the assistance of Thomas R. R. Cobb, the decisions of 1848. Mr. Kelly having resigned, Mr. Cobb was appointed, and continued the series to 1856 in sixteen volumes. B. Y. Martin was next appointed, and reported the decisions from 1857 to 1860 in ten volumes. G. N. Lester succeeded, and reported the cases from 1860 to 1863 in three volumes. From 1864 to 1866 L. E. Bleckly was reporter, and issued two volumes. In 1866 N. J. Hammond, present reporter, was appointed, and has reported, thus far, five volumes. These reports, beginning with the first volume of Mr. Kelly, are entitled "Georgia Reports," the last of Mr. Hammond being volume forty.

ALABAMA.

The legislature of this state, in 1828, authorized the supreme court to appoint a reporter, with a salary of

$500 a year, and the profits arising from the sale of

his

Mr.

reports, provided he should furnish the state with seventy-five copies free of charge. Henry Minor was appointed in 1829, and published a volume containing the decisions of the court from 1820 to 1826. He was succeeded by George N. Stewart, who reported the decisions from 1827 to 1831 in three volumes. Stewart was succeeded in 1834 by Benjamin F. Porter, who published, from the manuscript of his predecessor, five volumes of cases decided between the January term, 1831, and the January term, 1834, cited as Stewart and Porter's Reports. From 1834 the reports were continued by Mr. Porter to 1839, in nine volumes. From 1840 to 1847 the reports were prepared and reported by the judges in eleven volumes. volumes were styled Alabama Reports, new series, which has been since followed. Volumes 12 to 15, containing the cases from 1847 to 1849, were reported by J. J. Osmond; volumes 10 to 18, by N. W. Cockis; volumes 19 to 21, by J. W. Shephard, being the decisions of 1851, 1852; volumes 22 to 24, containing the decisions of 1853, 1854, by the judges; volumes 25 to 41, by J. W. Shephard, bring the cases down to 1868; volume 42, by John L. C. Denver; and volume 43, the last issued, by Thomas G. Jones.

These

In 1864 John W. Shephard issued a volume of select cases, decided in 1861-1863 by the supreme court. This volume is cited as Alabama Select Cases.

Judge William Leigh, one of the most eminent jurists of Virginia during the last forty years, died in the county of Mecklenburg, in that State, on the 19th ult., at the age of eighty-eight.

CURRENT TOPICS. Every Saturday has been uttering some very silly stuff about the action of Judge Pratt in granting a stay of proceedings in the case of Foster. "The

แ

murder," it says, was committed in one county, and the judge lives in another; it may seriously be doubted if he had, under the circumstances, any legal right to interfere with the matter. The facts in controversy have been tried and decided by a jury; can any appellate court review the decision thus found on a proven state of facts?" It may "seriously be doubted" whether Every Saturday knows precisely what it is talking about. It evidently thinks that Judge Pratt is a county judge, and that his jurisdiction is pent up within the county lines; and, also, that an appellate court cannot review a decision in a criminal case "found on a proven state of facts." A novel theory certainly.

The Westminster Review, in an article on "The American Republic; its Strength and Weakness," pays the United States judiciary the following merited compliment: "That this judiciary, and especially the supreme court of the United States, has been equally illustrious for its talents as for its virtue and patriotism, and that it has rendered the most effective service to the cause of well-regulated liberty, by establishing a system of national jurisprudence founded upon common sense, compacted by sound and comprehensive reasoning, adorned by clearness and eloquence of statement, and commending itself to the conscience by its dispassionate impartiality, cannot be denied by any disinterested critic."

The movement begun in England something over a year ago to establish a legal university has been steadily progressing. Sir R. Palmer, president of the association, moved in the house of commons on the 11th of July an address praying the queen to grant a royal charter to the university. The plan proposed is to combine the inns of court into a university, which alone shall have the supervision of the education of both branches of the profession, prescribe the proper tests of professional or other knowledge, and regulate the admission to practice. In short, the project is to utilize and energize those, at present, useless and inert institutions- the inns of court. Time was when these inns were in fact what they purport to be, institutions for legal education. But for the last quarter of a century their influence over the training of the English lawyer has been but very slight. This attempt to establish a legal university has had the effect to arouse them somewhat, and in the face of it, they promise better things for the future; but it is more than probable that, if these promises were accepted and the entire regulation of the new system confided to them, they would drop into their old ways as soon as the present strong feeling for improvement subsided.

A novel question arose and was decided in the case of Wilkinson v. Verity, which will be found in another column. It was held, that a fresh and substantive cause of action in detinue, as upon a bailment determined, accrued to the owner of the bailed goods upon demand, and refusal to deliver them up, notwithstanding the previous unknown conversion thereof by the bailee to his own use more than six years before the action-in other words, that the statute begins to run from the demand and not from the conversion.

The radical defect in the system of legal education in this country, granting that we have any system, is its tendency to make mere case lawyers." Abstract propositions and general principles are most studiously avoided, and the "corpus juris" is divided up into a prodigious mass of insulated decisions. Take down almost any volume of reports, and you will notice that the judges are by no means free from this slavery to decided cases. Principles are ignored, so much so, in fact, that a large proportion of the opinions present the appearance of, and are little better than, the pages of a digest. A great deal of vague nonsense is, doubtless, talked about legal principles and scientific jurisprudence; but the words, nevertheless, import something better and higher than "case law." It is stated of one eminent advocate that he never cited a case except to maintain a paradox, and we sometimes meet with a decision in which the legal questions are elaborately argued upon principle, without the aid of precedents. Cases have their uses; but it is a great misfortune for a lawyer never to get beyond ita lex scripta est.

Some philanthropic individual ought to send the attorney-general of the United States a copy of "Potter's Dwarris on Statutes." Chapter one hundred and twenty-one of the acts of congress for 1871 contains, among other appropriations for the service of the post-office department, the following: "For manufacture of postage-stamped envelopes and newspaper wrappers four hundred and fourteen thousand two hundred dollars; provided, that no envelope as furnished by the government shall contain any lithographing or engraving, and no printing except a printed request to return the letter to the writer." The sapient attorney-general aforesaid has been called upon to construe this provision, and he has announced his conclusion in the following terms: "The statute is universal in its prohibition of all printing except the 'return request.' Printing is the forming of characters or marks on paper or similar material by impression. I am unable to distinguish, in construing this act, between the impression of one sort of mark and the impression of another sort of mark, and while it is possible that such marks as those in the specimen which you have sent me were not within the special contemplation of congress, yet I am of the opinion that the universality of the language forbids that any

letters, devices, marks or characters should be printed upon the envelopes except the 'return request.'' That is to say, the appropriation for printing "postagestamped envelopes" forbids the printing of postage stamps thereon. No doubt the provision was the work of a bungler, but if there is any truth in the canons of construction, the interpretation given to it was the work of a worse bungler.

GENERAL TERM ABSTRACT

FIRST DEPARTMENT.

SUPREME COURT-JUNE TERM, 1871.
(Continued from last week.)
COMMON CARRIERS.

Ferry boats common carriers.-Appeal from judgment in favor of plaintiff. It appeared on trial that the plaintiff drove his horse and buggy on board defendants' ferry boat at Astoria. It was about ten o'clock-the last trip of the boat. Plaintiff and wife were in the buggy. They sat in the wagon until the Three bells were time came for the boat to leave. rung on shore, the signal that the time was up. The pilot then blew his whistle; the plaintiff's horse became uneasy; plaintiff struck him with his whip. The pilot said to him: "Neighbor, you had better get out and hold that horse by the head." Plaintiff remarked: "Never mind, I will take care of the horse myself." The pilot blew the second whistle, and the plaintiff at the instant struck the horse again, and the horse sprang forward, ran to the forward end of the boat, and precipitated the horse, wagon, plaintiff and his wife into the water. The plaintiff and his wife were rescued, but the horse, wagon and harness were lost. The practice was to blow three whistles before leaving on the last trip. The chain was up at the outward or forward end of the boat.

Held, That there is no reason to disturb the finding of the jury as to the negligence of plaintiff and defendants. So far as relates to the property of the plaintiff, the defendants assumed the liabilities of carriers bound to protect the property while in their possession from loss or damage. This has been repeatedly held as to stage coaches, 19 Wend. 236, 250. In Brockway v. Lascala et al., 1 Edmunds 135, it was said: "Ferry boats occupy both positions: as to goods they are liable to the obligations of a common carrier; as to passengers, the obligation to the passenger carried." This rule is the correct one, and applicable to the case. The recovery here was mainly as to the plaintiff's property. There was no request to instruct the jury differently as to the passenger and no available exception is made on this point. Judgment affirmed. Wyckoff v. The Queens County Ferry Company. Opinion by Ingraham, P. J.

CONTRACTS.

1. This action was brought to recover for "goods, wares, and merchandise, carriages, wagons, sleighs and cutters," and for labor and services rendered and materials furnished in making repairs on such vehicles, and disbursements paid thereon, and a carriage sold on commission, all reasonably worth $5,154.15. The complaint further alleges that there is now due and owing $2,255.65 with interest. The answer contains a general denial.

The principal matter in controversy upon the trial related to the sale by the plaintiff of a landau belonging to the defendant. This landau had been sold by the plaintiff to the defendant for $2,000, and was sold by the plaintiff on the defendant's account upon com

mission for $898.50 net. There was a conflict of evidence as to whether the defendant had authorized the sale of the landau at $800. The defendant offered to show that the landau was disposed of by the plaintiff' without authority, and against the defendant's orders, for a price far below its value, and to show what its real value was. This endeavor was objected to, on the ground that no such defense was set up by the answer, and was excluded, and the defendant's counsel excepted. The court, in charging the jury, withdrew from their consideration the matter of the landau, and to this the defendant excepted.

Judgment for plaintiff. On appeal, held, though the judge charged the jury that the items relating to the landau were withdrawn from their consideration, except as to the price agreed to be paid, and for repairs, the jury allowed for it on the alleged sale by the plaintiff on the defendant's account. This was an error. The effect of it may have been to conclude the defendant as to any claim which he may have against the plaintiff for selling it contrary to orders limiting the price. Judgment reversed. Wood v. Belden. Opinion by Ingraham, P. J.

2. Interest should only be charged on an account when rendered, and not on the various items from date. Ib.

Also, see Damages, Specific Performance and Recoup

ment.

DAMAGES.

This action was brought by plaintiffs, who had acted as stock brokers for defendant, to recover a balance due from him on certain stock transactions. The referee found that a balance was due to the defendant by way of damages for sales of certain Illinois Central and Fort Wayne railroad shares, made by plaintiffs on account of defendant, without or in contravention of orders. In the Illinois Central transaction it appeared that the defendant had fixed the day of sale, and ordered the sale made at 137 1-2 per cent, while the plaintiffs had sold at 136 1-4. The referee allowed to defendant, as damages on such sale, the difference between the price sold and the highest price of the stock up to the day of trial. In the Fort Wayne transaction it appeared that on Saturday, April 9, 1864, plaintiffs purchased 200 shares, sending defendant immediate notice of the purchase. He received it on Monday morning, and telegraphed "Fort Wayne dead; sell Saturday's purchase at profit as soon as possible." Before the receipt of the telegram, they had sold out at a loss, on account of apprehension of a fall. Both buying and selling were admitted to be without special instructions, but were alleged to be in pursuance of a general authority. On April 26, 1864, plaintiffs rendered their account, and defendant did not find fault with these sales until the bringing of this action, two and one-half years after. Referee decided that these sales were made without authority, and allowed damages to defendant therefor.

From judgment in favor of defendant, on appeal, held, the transaction in Illinois Central stock must be governed by the letter and telegram of the parties fixing the price of selling at 137 1-2. The defendant is entitled to the difference between that sum and the