has been turned out, nor when a judgment of a competent court has determined that he shall deliver possession to a particular person, need he wait to be forcibly ejected. He can acquiesce in the judgment of the court, and voluntarily obey its mandate. Home Life Ins. Co. v. Sherman. Opinion by Church, C. J.

2. The defendant held certain premises under a lease from plaintiffs, who held under a lease from one Hoffman. Hoffman brought action against defendant and obtained a judgment that defendant should deliver the premises to him, defendant thereupon gave up the keys to the plaintiffs in this action and left the premises. Held, an eviction, and that defendant was not liable for rent not then due. Ib.

PLEADING.

What sufficient denial. The complaint stated that defendant made a note, thereupon one W. indorsed it and delivered it to the payee, who, before the commencement of the action, for a valuable consideration, sold and delivered it to the plaintiff, who is now the owner, etc. The answer specifically admitted "the making and delivery of said note as averred in the complaint, "set up payment and denied each and every allegation except as thus expressly admitted. Held, that there was a sufficient denial of the transfer of the note by the payee to the plaintiff, and puts at issue such sale and delivery in the absence of which payment to the payee was a good defense, and the defendant would be entitled to prove the same. Allis v. Leonard. Opinion by Rapallo, J.

CONTRACT FOR SALE OF LAND. LONG V. HARTWELL, ADMINISTRATOR, ETC.* (Continued from last week.)

n Brown v. Moorhead, 8 S. & R. 569, where the defendant agreed to convey a piece of land, and also to convey, or cause to be conveyed, the interest of A. B. in another piece, Chief Justice Tilghman held, that a deed conveying only one parcel was but in part fulfillment, the contract contemplating two conveyances.

In Witbeck v. Waine, 16 N. Y. 532, which broadly recognizes the general rule, the distinction is clearly stated, that the rule is not applicable where the deed covers only part of the subjects embraced in the executory contract.

In Buel v. Willard, 9 Barb. 641, the rule is well stated in these terms, "that the covenant, in order to be deemed collateral and independent, so as not to be destroyed by the execution of the deed, must not look to or be connected with the title, possession, quantity, or emblements of the land which is the subject of the contract."

In the case of Crotzer v. Russell, 9 Serg. & Rawle, 78, where the agreement was to covey a certain tract of land, and the deed reserved a small portion, the deed prevailed over the contract, for the acceptance of a deed embracing the whole tract, with an acception of a portion, raised a clear presumption that the reservation was within the final understanding of the parties, and it could not be regarded as part execution.

The rule to be deduced from the authorities is, that the executed contract supersedes all prior negotiations

*Supreme Court of New Jersey.

and agreements, where the last contract covers the whole subject embraced in the prior one. But where the stipulation is to do a series of acts at successive periods, or distinct and separable acts to be performed simultaneously, the executory contract becomes extinct only as to such of its parts as are covered by the conveyance.

In the case now submitted, the engagement was to convey two lots of land, and whether the conveyance of one dispensed the vendor from all liability under the executory contract is a question of strict law, to be determined by the court.

The contract contemplates a single deed, and one mortgage upon both lots, to secure the purchase-money, fixing one price for both lots, and not a distinct price for each.

The vendor did not agree in writing to pass title to the remaining lot by a separate deed, nor does the contract provide for the acceptance of a separate mortgage, or settle the amount in which it is to be taken. The act of the grantor, accepted by the grantee, must be regarded in full execution.

Regarding the conveyance as a full execution is there any difference in law whether such conveyance passed the title to the wife, by vendee's directions, or to the vendee himself? A written contract within the statute of frauds cannot be modified or altered by parol, so as to furnish, in its altered state, the basis of an action at law.

Whether parol evidence is admissible to prove the discharge or abandonment of such contract is a question upon which there is great conflict of authority, and as the discussion of this case can be confined within narrower limits, no opinion will be expressed on this point. The solution of this branch of the case will be reached by determining whether a substituted performance, actually and fully executed by the vendor, and accepted by the vendee, may be set up in defense at law to this suit on the written contract. It will be observed that this is not an attempt to found an action, or even strictly to base a defense, upon an oral agreement engrafted on the written contract, but simply to prove in defense actual performance of the contract, by way of accord and satisfaction.

The statute does not declare all parol contracts relating to land to be void or illegal. There is a class of cases in which it is held that where, upon a parol contract for the sale of land, the vendee has paid the purchase-money, he cannot recover it back if the vendor is ready and willing to convey. The vendee, having paid the money voluntarily, cannot compel the vendor to take advantage of the statute. Abbott v. Draper, 4 Denio 51; Coughlin v. Knowles, 7 Metc. 57. It has been the accepted law in this State ever since the decision of Perrine v. Cheeseman, by Chief Justice Ewing, 6 Halst. 174, that an executory agreement in writing not under seal may, before breach, be discharged, abandoned, or rescinded by a subsequent unwritten agreement. The letter of the statute of frauds simply defeats an action upon the parol agreement relating to land; it does not expressly forbid a defense under the parol contract, nor deny its virtue as a rescinding act, and, therefore, the only ground upon which a written contract not under seal for the sale of lands can be taken out of the rule in Perrine v. Cheeseman is, that by the written agreement the vendee has acquired an interest in lands which he may enforce in equity, and it would be against the spirit of the enactment to permit that interest to be taken away by oral

testimony. Whatever force this view may have, it is difficult to perceive how the policy of the statute would be violated by parol proof, establishing not an abandonment or surrender of the stipulation, but an execution of it by a substituted performance accepted and enjoyed by the vendee. To disregard the execution in this case would enable the vendee to enforce the letter of the writing, after placing the vendor in a position where it is impossible for him to fulfill it.

While the statute asserts its control over the contract itself, the performance of the contract is not within its purview.

A contract under the dominion of the statute of frauds can be no more secure against invasion by parol than a sealed instrument.

In an action on a bond, parol proof is competent to defeat the plaintiff by showing payment, or accord and satisfaction, and in all cases a specialty may be shown by parol, to be discharged after breach, by accord and satisfaction.

Fleming v. Gilbert, 3 Johns. 528, was an action on a bond conditioned that the defendant, by a given day, would procure for plaintiff a certain bond and mortgage, and discharge the same of record. The defendant did procure them, and offered them to the plaintiff, | proffering to do whatever was necessary to discharge them, but the plaintiff agreed by parol to waive a performance in this respect if the defendant would do another thing, which he afterward did; held, that evidence of the substituted performance constituted a defense. Monroe v. Perkins, 9 Pick. 298, and Lattimore v. Harson, 14 Johns. 330, are similar in principle. These cases go upon the ground that he who prevents a thing from being done, by saying he will accept something else for it, shall not, after such acceptance, avail himself of the non-performance he has occasioned.

In Cummings v. Arnold, 3 Metc. 486, which was a contract required to be in writing, the defense was successfully rested upon parol proof of accord and satisfaction, by a substituted performance.

In Cuff v. Penn, 1 M. & S. 21, which has been followed in many cases, the plaintiff succeeded in enforcing the contract by suit at law, when he had not himself performed according to the terms of the writing, but in accordance with a substituted performance agreed upon by parol.

The cases of Goss v. Lord Nuyent, 5 B. & Ad. 65; Harvey v. Grabham, 5 Ad. & El. 61; Stead v. Dawber, 10 id. 57, and all the cases since these, in which the authority of Cuff v. Penn is denied, have been placed upon the ground that the plaintiff's suit was founded on a contract required to be in writing, but, In fact, partly in writing and partly in parol; the suit thus resting on a case made out by incorporating in it oral stipulations, was held to be inhibited by the words of the statute.

to the statute of frauds than the well-established rule which enables the vendor, after the execution on his part of a parol contract for the sale of lands, to recover the purchase-money.

Another view of this case will lead to the same result. In the written agreement the vendor bargains to convey to the vendee or his assigns, and although an assignee of the contract could not enforce it by suit unless he had an assignment in writing, the vendor, having been directed by the vendee to pass the title to another, had a right to presume that the assignment had been duly executed, and the fact cannot now be questioned.

3. If merger had not taken place the plaintiff was not entitled to recover. By the terms of the contract, the vendee was to execute a mortgage on both lots, to secure the balance of the purchase-money, and no evidence was produced to show that he tendered himself ready to do so.

It is the settled rule, in this State, that if either the vendor or vendee wishes to enforce the contract against the other, he immediately makes his part of the agreement precedent.

On the one hand, the purchaser's right of action for non-delivery of the deed does not accrue until he tenders performance on his part; and, on the other hand, the vendor's action must be preceded by execution and offer of the conveyance. Shinn v. Roberts, Spencer, 444, and cases there cited.

In this case, therefore, no suit would lie until vendee tendered himself ready to execute a mortgage on both parcels.

If the plaintiff, when he accepted the deed, supposed it conveyed both lots, it is a case of mistake, to be dealt with by a court of equity.

The judgment below must be reversed.

The Chief Justice and Depue and Woodhull, JJ., concurred.

NOTICE OF THE COURT OF APPEALS. Ordered, That the term of this court for 1872 commence at the capitol, in the city of Albany, on the third Tuesday of January next, and that a calendar of causes be made by the clerk, on which he will place only such appeals as shall be regularly noticed for argument at said term, and in which notes of issue shall be filed with him on or before the 31st day of December, 1871.

E. O. PERRIN, Clerk.

APPEAL FROM JUSTICES' COURT-SECURITY. The Onondaga county court made an order in this action, dismissing an appeal brought by the defendant from justice's court for a new trial in the county court, the plaintiff having claimed more than $50 in his com

Whatever may be thought of the correctness of the rule in Stead v. Dawber and Marshall v. Lynn, it may be safely said that, if the substituted performance in those cases had been actually executed and accepted, the result would have been different.

The conveyance, therefore, to the vendee's wife must be held to have the same effect as if made to the vendee himself. This result will do no more violence

The defendant appealed from said order to the general term of the fourth department.

Upon the argument of this appeal, Mr. Shumway, for the appellant, contended that the statute was directory, and that the only effect of a failure to give the usual undertaking was, that execution was not stayed. Mr. Vann, for the respondent, was stopped by the court, which affirmed the order appealed from, without further argument. Little v. Green, Gen. Term 4th Department, November, 1871.

The Albany Law Journal.

ALBANY, DECEMBER 23, 1871.

COURTS OF COMMERCE.

A special committee of the English house of commons, which was appointed during the last session of parliament to inquire and report concerning the nature and operations of courts of commerce, has only recently issued its report on this very interesting question. Although courts of commerce have been long established in several of the countries of Europe, yet it is only lately that English law reformers have turned their attention to the infusion of more of the lay element into their judicial system by the adoption of the continental device of courts of commerce. The report of the English committee is wholly in favor of these mixed tribunals, and the London Times of the 3d November warmly indorses the recommendations of the committee. It is probable in the highest degree, therefore, that a bill to establish mixed tribunals of lawyers or judges and merchants will be introduced at an early date of the next session of parliament, and there is no doubt that the legal experiment will be accepted by both houses, without any considerable opposition from any quarter.

We have searched in vain through the files of the London Times for any indications of the intentions of government respecting the high court of justice bill. This measure was brought in during the session of 1869, covered with the indorsements of the lord chancellor, and we know not of how many others of the most distinguished jurists of England; yet, it now appears that this bill is completely shelved for the present, and that, instead of the sweeping reforms contemplated by that measure, the expectations of the British public are sought to be satisfied by the new departure just shadowed forth by the committee of the commons. It is quite clear that, besides abandoning the work of consolidating substantive law, the English government have also for the present relinquished the more easy but not less important task of consolidating judicatures and simplifying procedure. But if they still contemplate to revive the high court of justice bill-which is in principle a transcript of the leading rules and doctrines of our code of procedure- then we hope, by all means, that the scheme for establishing lay or mixed courts will not be proceeded with until the high court of justice bill shall have had a reasonable time to work and bear fruit.

As, however, our belief is that the bill for establishing courts of commerce will be espoused by the government, and that the high court of justice bill will not receive the same high patronage, we will state briefly our views respecting mixed tribunals in general, no matter wherever they are situated. The committee informs us that the tribunals in question

have given immense satisfaction, and have been found an excellent preventive and remedy of the laws delays. It is probable, indeed, that the tribunals are very popular with half of the litigants that have had their causes thus decided. The parties in whose favor the suits have terminated are, doubtless, well content with the existing regime, to which they are partly indebted for the favorable verdicts they have received. But we doubt whether the courts of commerce are equally satisfactory to those whom they have sent empty away. Every one knows that so long as experts are called for by selection and not by ballot, or by some arbitrary or even random rule, their evidence is not of much value. Let any one that doubts this statement attend the trial of an action for infringement of a patent, say, for a chemical invention. The chemists on the one side will always flatly contradict the chemists on the other. Medical men produced by the plaintiff will also take widely different views from those called by the defendant. The reason is, that neither plaintiff nor defendant will produce any witness whose opinions they have not previously examined and ascertained to be favorable to their interests. The English committee doubtless endeavored to procure impartial witnesses, and to take them from a wide area. Yet, as the foreign testimony was tendered by or through the mixed tribunals themselves, the evidence is not unimpeachable. However, we believe that these tribunals are really productive of many good results besides their legal adjudications. Like the conseils des prud' hommes, or courts of conciliation between masters and workmen, they often lead to an amicable adjustment between parties who otherwise would be irreconcilable. This social advantage may possibly balance or even outweigh the legal imperfections necessarily incident to a mixed tribunal. These defects, however, are many and grievous.

Courts of conciliation are equivalent to an extension of the jury system or of lay arbitration. They are a sort of compromise between technicality and merits. The common sense of the lay assessor is expected to prevent an overstraining of technical points by the professional judges, while these, on the other hand, are supposed to act as a counterpoise against the tendencies of their lay brethren to disregard precedent and fixed legal rules. Every question is thus virtually turned into one of fact. It is idle for the legal members of the court to arrogate to themselves exclusively the right of construing a written document, when their lay brothers will take care to strain as much for justice as the lawyers will for law. The net moral of courts of commerce, therefore, is, that these tribunals change all questions from issues of law into issues of fact.

This possibly is in many cases no serious detriment to the best interests of justice and even of law. It seems to be only an extension of the original theory and practice of equity, viz.: to disregard technical rule, whenever it worked injustice. A court of com

merce is thus a sort of Judge Lynch, who acts under color, or in furtherance of the objects of the law, or, as it were, a vigilance committee, that sits in judgment not only upon the litigants, but also upon the law itself. Rough and ready justice of this kind has its good qualities, no doubt. But what we wish to observe is that it is not law.

It disregards both precedent and statute, and the rules of evidence. It is an arbitration upon moral and not legal merits. If the tribunal is sworn to administer justice according to law, and endeavors so to adjudicate according to the oath, wherein does it differ from a jury except that, in lessening the number of lay jurors and in placing this reduced number within the sphere of the bench's attraction, the lay element is virtually eliminated altogether from the judicial system. Nautical assessors, indeed, are often very convenient to judges, because nautical art is so technical and seamanship is so much of a specialty that judges upon many disputed points with respect to porting helm, etc., that may not be provided for by the authorized sailing rules. But, in all ordinary cases of contracts and torts there is no doubt that one or two lay assessors would be swamped and merged by their legal brethren unless rules of law were ignored. These rules, indeed, are certain to be despised by the lay judge, and, therefore, the practical result of establishing these mixed courts is to turn every question before them into one for moral arbitration.

are

"at sea

All technicality in the law would have been long since abolished if the construction of written documents were left to the jury. But, with this concession to common sense, what becomes of common law? Precedent becomes obsolete and useless, and even statute law would be so uncertain in its operation as to render it doubtful whether it is worth while to pass any statutes at all, since a jury may write its own draft across any legislative provision, no matter how carefully prepared. As juries are at present subject to the rules of law, and yet are perfect masters of the verdict as regards facts, the respective provinces of the lay and the professional members of the judicature are distinctly defined. This tends to keep the legal profession a specialty, and to impart certainty to all contracts and deeds approved of by eminent counsel. But, if every thing on every trial is left to the jury, no one could feel certain that his title to his property was worth an hour's purchase. Juries, it may be suggested, never act with the gross disregard of justice here referred to; but be it remembered that juries at present know and feel that they are coerced by rules of law, both as regards the admissibility of evidence, the construction of written documents, and, in some cases, even as to the quantum of damages. Their elevation, like that of the kite, is owing to the fetters that check their career, both upward and downward. What juries would be if they were left to grope their way over a chaotic sea of law and fact, unaided by the light of precedent or legal rule

chart or compassit is altogether difficult to forecast. The experiment is a hazardous one, and should only be tentatively made upon a small scale.

The London practitioners have long viewed with jealousy the growing greatness of the county courts. These tribunals have thus become, most undeservedly, a butt for attack by the cockneys. These gentry relate, with relish, the old story of the master of the rolls once having been requested by the usher of a county court to take a different seat from the one he occupied. "I am John Romilly," said the future baron. "I know it," said the usher, "but that seat is paid for." "Paid for," exclaimed the future peer, rubbing his eyes to convince himself that he was wide-awake, "Paid for," he repeated, "do you then sell justice here?" "No, sir," blandly replied the usher, “but we do places and the gentleman that owns that pew says he comes here and not to the theater, as the county court is cheaper and more amusing."

The various calumnies which have been circulated respecting the county courts, however, have only rooted them the deeper in the public estimation; and the result is that, instead of calling for legal concentration, England is demanding that the courts be still further decentralized. The cry for courts of commerce is a phase of this passion for lay, or untechnical justice. Whether the rustic dictator will give as much satisfaction as his predecessor, however, remains to be seen.

With the following limitations courts of commerce may do much social good and little legal harm: First, resort to them ought to be optional, and not compulsory. Every one knows that arbitration is not the cheap thing it affects to be. Suitors, therefore, ought not to be forced to consult a deaf and dumb, and yet, withal, an exacting and rapacious oracle. If recourse to the mixed tribunals was thus rendered optional, no great harm could be done until their real operation was ascertained. In the next place, their jurisdiction should be confined to reasonable amounts. Thirdly, no appeal should be permitted from the tribunals, except where mercantile partiality could be proved to have influenced the judgment. Fourthly, the members should be sworn to decide according to law, so far as their abilities enabled them to do so. Fifthly, the legal members of the court should exclusively determine all questions with respect to the admissibility of evidence. The construction of a document of a mercantile nature, or, indeed, of any kind, might be left, as a question of fact, to the whole court.

With these qualifications no harm could result from the establishment of mixed tribunals. These courts, certainly, would have the negative advantage of not burdening us with any reports of their decisions except what would appear in the daily journals. At least, very few reporters would take to compiling, for professional guidance, a heterogeneous mass of awards which most probably would, despite of any oath or intentions of the judges to the contrary, be devoid of

all legal principle or significance. The chief point is to have the jurisdiction limited. Else the right of appeal could not be taken away consistently with any regard to law and social order. Courts of commerce are not likely to become popular in the State of New York for some time. Our judiciary is already too lay and too much in contact with the popular and political element. Jural reform with us should aim in rendering the bench more special and expert than it is at present, no matter how England may act in the matter. Indeed, this rush of the commons committee into the arms of amateur judges is probably owing rather to a desire to give an installment of some kind of law reform in lieu of the high courts of justice, than to a due consideration of the necessarily limited functions of all lay or mixed tribunals. The worst mode of reforming the law or procedure, however, is to enlarge the sphere of judicial discretion, especially when ignorance of the law is to be no disqualification for a seat on the bench.

OUR BOOKS.

II.

We took down from the shelf above that from which we had taken Carter's Reports, which were spoken of in our last, a small octavo volume which we found lettered upon its back: "Wood's Imperial Law," and upon opening it we read upon the fly leaf, "F. Buller Inner Temple 1768," written in a small, clear, distinct hand. Its title page reads, "A new Institute of the Imperial or Civil Law with notes." "The third edition corrected "-"London &c. 1721." And as we contemplated the volume before us, we not only found ourselves in communication with the English judge who was worthy of a seat by the side of Mansfield on the king's bench, but, until we inquired further into the matter, imagined we had found upon what authority he had made that famous ruling which led the good wives of England to inquire so anxiously the size and thickness of his thumb, for on the forty-fifth page, it is said, when speaking of the authority of a husband over his wife, "he may give her moderate correction." Tradition, it will be recollected, gave Mr. Justice Buller not only credit for enunciating this doctrine, but for going further and defining the kind of stick with which it might be done, which he fixed at the size of his thumb. Fortunately for the fame of the judge, and fortunately for us, in these days of woman's rights, while speaking of our predecessors in the ownership of this little volume, tradition in this case, as in so many others, has been a most arrant knave, since there is nothing in his judicial career which would stand between him and Mrs. Woodhull herself in the way of championship for female suffrage, if he were to come back on to the stage of action which he left somewhat more than seventy years ago. Our conclusion, there

fore, is that this is one of the volumes which that distinguished judge resorted to rather to enrich his juridical store of learning, than to find technical points upon which he might decide family difficulties, or the relative rights and duties of the sexes in carrying on the business of life. Whatever moral therefore may be drawn from his life will apply just as well when the millenium of their political equality shall have been reached, as it does in the transition state in which the world finds itself at the present day. Judge Buller was of a Cornish family and was born in 1746. He entered the Inner Temple at the age of 17, as a pupil of Mr., afterward justice, Ashhurst. That he was a bold as well as precocious young man, compared with the law students of our day, may be inferred from various incidents in his early life. One of these is his having taken to himself a help-meet in the form of a wife at the age of seventeen, and at nineteen he began to practice as a special pleader, and two years afterward he published his work on nisi prius which ran through six editions in his life-time, and still finds a place in many of the libraries of American as well as English lawyers. The book, however, was not originally written or collated by him, but was made up of materials furnished him by his uncle, Judge Bathurst, afterward Lord Apsley, who for a few years held the seals as chancellor of England. He was not called to the bar till 1772, when he was twentysix years old, at which time his uncle Bathurst was lord chancellor, and, though a weak man himself, was able to render him essential aid in coming into practice. He found a powerful auxiliary, also, in Lord Mansfield, who from the first held him in high esteem as an able and profound lawyer. The consequence was, he entered at once upon an extensive practice. At the age of thirty-two, in 1778, he was appointed to the king's bench in place of Judge Aston, and proved himself a most able associate of Lord Mansfield who had then held the office of chief justice, with signal ability, for twenty-two years. The satisfaction which the new judge derived from his new office may be illustrated by an expression which he is said to have indulged in, that "his idea of heaven was to sit at nisi prius all day, and play at whist all night." We think, however, his notion in this respect must have been somewhat modified when he encountered Erskine in the trial of the dean of St. Asaph, in which the advocate was ultimately victorious over the judge, as we shall have occasion to remark when we come to that event in his life. For the last few years of his holding office Lord Mansfield was unable to perform its duties, and the same, practically, devolved upon Judge Buller whom the chief justice was very desirous of making his successor. But Pitt was inexorably opposed to this arrangement, and when, in 1788, Mansfield did resign, Sir Lloyd Kenyon became his successor. Lord Campbell in remarking upon this change says, "to cover his (Buller's) mortification on the appointment of Lord Ken