retire, and such is no doubt the better practice. But if the defendants, as in the present case, did not insist upon the instructions being read by the court and suf fered them to be handed to the jury, supposing that they would be read by them, it is too late to assign the same for error, or make the failure to read the instructions to the jury grouud of motion to set aside the verdict and grant a new trial." In the State of Indiana it had never been the practice to allow the jury to take any thing with them to their room upon retiring to consider of their verdict, not even the written instructions; yet in the case of Wilds v. Bogan, 57 Ind. 453, "one of the jurors took with him from the judge's desk a paper containing one page of the notes of the instructions given by the judge to the jury in the cause; that he took the paper to the jury room with him; that he looked at it, but did not read it; that he laid it down, and that the paper remained in the jury room during the deliberations of the jury, but that no juror read or examined it at any time; that it was returned by him with the verdict and interrogatories into court, he being the foreman of the jury; that the paper was taken by the juror to the jury room without the knowledge or consent of the court, or of either of the parties or their attorneys.' The court in the opinion say: "We are unable to see any misconduct whatever on the part of the jury, or any one of them, or any thing in the circumstances that affords the slightest grounds for a new trial." It is said in Goode v. Linecum, 1 How. (Miss) 281: "The third exception which we shall notice is taken to the decision of the court overruling the motion for a new trial. This motion was predicated upon the fact that the jury took with them to the chamber whither they retired to consult upon their verdict, a paper containing instructions which were asked by plaintiff's counsel, but which were refused by the court. But it does

not appear from the record that this paper was read by the jury, and consequently, then it could have had no influence upon their verdict." The judgment was affirmed. Langworthy V. Connelty. Opinion by Cobb, J.

NEW JERSEY SUPREME COURT ABSTRACT. FEBRUARY TERM, 1883.*

CONTRACT-OF INDEMNITY BY ASSIGNEE OF CHOSE IN ACTION-CHATTEL MORTGAGE-DAMAGES.-A contract by an assignee to indemnify the assignor upon the assignment of a chose in action, will be construed to be prospective, and to relate to acts to be done under the assignment, unless there be language used expressive of an intent to give the indemnity a broader scope. It is a fundamental principle applicable alike to breaches of contract of this description, and to torts, that in order to found a right of action there must be a wrongful act done and a loss resulting from that wrongful act. The wrongful act must be the act of the defendant, and the wrong done and the injury sustained must bear to each other the relation of cause and effect; and the damages, whether they arise from withholding a legal right or the breach of a legal duty must be a natural and proximate consequence of the act complained of. There is a broad distinction between an act which gives occasion for damages arising from other causes, which were not in the contemplation of the parties when the contract was made, and an act proximately causing the injury, and it is only for the latter that an action will lie. In an action against a mortgagee of chattels for selling the chattels mortgaged at private instead of public sale, the measure of damages would be the difference between the price realized aud the actual value of the property, or *To appear in 16 Vroom's (45 N. J, Law) Reports.

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the excess of the value of the property above the mortgage debt. H., by his agent B., sold a horse to M., and took notes and a mortgage on the horse sold and another horse for the price. H. assigned the notes and the chattel mortgage to W. W. agreed "that he would take all risks and save H. harmless, and would not get him into any scrape.' W. sold the horses mortgaged at private instead of public sale. Before the sale M. notified W. that the horse sold to him was not as represented, and offered to rescind the sale, which offer was declined. M. subsequently sued H. for false and fraudulent representations upon which the horse was sold to him, and recovered a judgment. H. paid the judgment, and sued W. on his contract of indemnity. It appeared that neither H. nor W., at the time of the transfer of the notes and chattel mortgage, knew of the representations of B. on the demnify H. did not extend to the consequences of sale of the horse. Held, that the contract of W. to inantecedent acts done by H. or his agent, B.; that W.'s refusal to give up the horses to M., on his demand, was not, under the circumstances, wrongful; that although W.'s refusal to give up the horses to M. was the occasion of the loss H. sustained in being compelled to pay damages to M., it was not in a legal sense, the cause of H.'s loss; that the loss he sustained in that respect was caused by the false and fraudulent representations under which the horse was sold, and for these W. did not undertake to become responsible. Stevenson v. Newnham, 13 C. B. 285; Burton v. Pinkerton, L. R., 2 Exch. 340; R. Co., L. R., 3 Q. B. 25; 296; Cuff v. N. & N. Y. R.

Glover v. London & S. W. Byard v. Holmes, 5 Vroom, Co., 6 id. 17; Kuhn v Jewett,

TITLE-BUILDING ON LAND OF ANOTHER.-Whether a building, erected by one person on the land of another, with the latter's permission, is real or personal property, is a question of fact, to be decided according to the actual or imputed intention of the parties. In Doty v. Gorham, 5 Pick. 487, the permission of the land-owner to the erection of the structure was all that appeared to bind him, and the court held that the jury rightly found that the builder might remove the building as a chattel. In Ham v. Kendall, 111 Mass. 297, the land-owner agreed that another might put an ice-house on his land, and that it might remain there five years; there was no agreement that it should be a chattel or be removable by the builder, but the court held that it was the builder's chattel, and he might remove it during the five years. In Osgood v. Howard, 6 Me. 452, a tenant at will had erected a dwelling-house and other buildings on the land with the express consent of the landlord; after his death the tenant's administrator sold them to a stranger; the court held that the purchaser could maintain trover for them against the land-owner, putting its decision expressly on the consent, and not on the fact of tenancy. In Dame v. Dame, 38 N. H. 429, the court says that the express assent and permission of the land-owner to the erection by another of a building on the land, almost necessarily implies an understanding that the builder may remove building, and creates a tenancy at will in him. Pope v. Skinkle. Opinion by Dixon, J.

the

MICHIGAN SUPREME COURT ABSTRACT.

EASEMENT-IN STREETS IN PLAT WHERE LOT PURCHASED BY REFERENCE TO PLAT.-By purchasing lots by reference to a plat containing streets which the plat show to abut on the street, the purchasers do not necessarily acquire the right to the use of the street and of all connecting streets for the enjoyment of their purchases. There must be some equities which estop the grantor from disputing such a right. In Smith v. Lock, 18 Mich. 56, it was decided that by granting a lot described in the conveyance as bounded on a street, the grantor is estopped from shutting it up 80 as to prevent the grautee from making use of it for his own accommodation in the enjoyment of his purchase, The principle was again declared in White v. Smith. 37 Mich. 291, and was recognized and applied in Karrer v. Berry, 44 Mich. 391, and McConnell v. Rathbun, 46 id. 303. In none of these cases did it become necessary to decide whether the right of the grantee went beyond the particular street or way upon which his lot abutted, nor did the relief which was granted in any case go further than was necessary to give the party convenient access to his lot, and a passage-way from it by the road or street to which his conveyance referred. Numerous cases in other States recognize the same principle; and in New York and Massachusetts in particular the occasions for applying it have been frequent. Livingston v. Mayor of New York, 8 Wend. 98; Underwood v. Stuyvesant, 19 Johns. 180; Wyman V. Mayor of New York, 11 Wend. 487; Trustees, etc., V. Cowen, 4 Paige, 510; Child v. Chappell, 9 N. Y. 246; Bissell v. New York, etc., R. Co., 23 id. 61; Wiggins v. McCleary, 49 id. 346; Tufts v. Charlestown, 2 Gray, 271; Thomas v. Pool, 7 id. 83; Loring v. Otis, id. 563; Farnsworth v. Taylor, 9 id. 162; Rodgers v. Parker, id. 445; Stetson v. Dow, 16 id. 372; Fox v. Union Sug. Re. finery, 109 Mass. 292; Tobey v. City of Taunton, 119 id. 404. To the same effect are cases in other States. Sutherland v. Jackson, 32 Me. 80; Stetson v. City of Bangor, 60 id. 313; Bartlett v. City of Bangor, 67 id. 460; Hawley v. Mayor of Baltimore, 33 Md. 270; Zear

ing v. Raber, 74 Ill. 409; Rowen's Ex'r v. Town of Portland, 8. B. Mon. 232; Carter v. City of Portland, 4 Or. 339; Oswald v. Grenet, 22 Tex. 94; Lamar Co. v. Clements, 49 id. 347; Price v. Inhab. of Plainfield, 40 N. J. 608. Schermerhorn V. Todd. Opinion by Cooley, J.

[Decided June 13, 1883].

MUNICIPAL CORPORATION-EXCAVATION ON VACANT LOT NEAR HIGHWAY-NEGLIGENCE.-A hole five feet from a highway in the outskirts of a village, the highway being four rods wide, held not a defect for which the village was liable to one falling therein. See Howard v. North Bridgewater, 16 Pick. 189; Kellogg v. Northampton, 4 Gray 65; Dickey v. Telegraph Co., 42 Me. 483; Kelley v. Fond du Lac, 31 Wis. 179. Keyes v. Village of Marcellus. Opinion by Cooley, J. [Decided April 25, 1883.]

RELIGIOUS CORPORATION-MORTGAGE BY RATIFICATION.-Under the Michigan statute no sale or conveyance of church real estate "shall be made in any case, unless the vote or assent of at least two-thirds of those present and entitled to vote at any meeting of the society, duly and specially called for that purpose, shall be obtained therefor." Two out of three trustees of a church society executed a mortgage of the church real estate. The mortgage was known of by the congregation and society, and the money therefrom was spent for the benefit of the society to complete the church building, and the building was used by the society without objection or dissent. Held, that there was a ratification of the mortgage rendering it valid against the society. As the society had power to direct the trustees, and was capable of assenting by any majority of the members willing to concur, so it had power and capacity to ratify the act of the trustees, if done without a prior direction or without a preliminary assent of two-thirds. McLaughlin v. Detroit & M. R. Co., 8 Mich. 100; Township of Taymouth v. Koehler, 35 id. 22; Green's Brice's Ultra Vires, 471. And when there are no intervening rights, as in this case, the ratification inures to the date of the act ratified. It is not necessary that there should be a direct proceeding with an express intent to ratify. It may be done indirectly, and by acts of recognition or acquiescence, or acts inconsistent with repudiation and disapproval. Sherman v. Fitch, 98 Mass. 59; Lyndeborough Glass Co. v. Mass. Glass Co., 111 id. 315; Brown v. Winnisummet Co., 11 Allen, 326; Inhabitants of Arlington v. Pierce, 122 Mass. 270; Hoyt v. Thompson, 19 N. Y. 207; Scott v. Middleton, etc., R. Co., 86 id. 200; Gold Mining Co. v. National Bank, 96 U. S. 640; Law v. Cross, 1 Black, 533; Moss v. Rossie Lead Mining Co., 5 Hill, 137; Farmers' Loan & T. Co. v. Walworth, 1 N. Y. 433. Scott v. Methodist Church. Opinion by Graves, C. J.

[Decided June 6, 1883.]

TRESPASS-ENTRY BY RAILROAD COMPANY ON CONDEMNED LAND.-A railroad company instituted proceedings to condemn land, and an award was made and the amount deposited subject to the land owners' order. The company immediately entered the land, digging up the trees and fences and building their road bed. On certiorari the proceedings to condemn were declared void for improper service of notice. The proceedings were immediately renewed and a valid condemnation made, which resulted in a larger award to the owner on account of the injury done. Held, that trespass could not be maintained by the owner for the damage done by the railroad company. Bloodgood v. Railroad Co., 18 Wend. 9; Blodgett v. Railroad Co., 64 Barb. 580; Powers v. Hurmer, 51 Mo. 136. There is no doubt that a right in action, where it comes into existence under common-law principles,

citizen, but his duty toward the common weal, to resist injustice to himself, lest peradventure evil men should find profit in their evil doing." This idea is most eloquently and forcibly advocated by Von Ihering in his "Struggle for Law." Further on the essaysist insists on the duty of persons who have been defrauded by the neglect or mal-feasance of officers of corporations, to assert their rights and have the wrong-doers punished.

The essayist said, of corporations. "The prevalent theory of corporate management seems to be to get as much money into the treasury as possible, and allow as little as possible to get out except in the form of perquisites to managers and dividends to stockholders. * * * On the other hand, there is a considerable number of unauthorized persons who have a strong desire to get their hands into the treasury of a corporation. * * This condition of affairs is extremely demoralizing."

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The essayist touched upon our crude methods of legislation, and remarks that "it is a common error to place too much stress upon legislation as a cure for the ills of life. Something more is needed, to give efficacy to a rule of conduct, than to prefix to it the magic words, 'Be it enacted."" And he concludes with the following on legislators and judges, in which we heartily concur: "Just now the best work that the legislator can do is in the direction of reducing to order and symmetry the laws we now have. They should be simplified - should be expressed in such form that it would be possible to ascertain one's rights and duties with less difficulty and more certainty than at present. The legal machinery provided to give execution and effect to the substantive rules of law should be as rational and simple as possible. If access to the courts involves so much delay, expense, and vexation that a suitor cannot command the means or await the result to him justice is denied denied as completely as if he was arbitrarily excluded. More heed should be paid to the qualifications of judges, especially those who preside in what are called inferior courts. It is there that the majority of litigants come in contact with the law. Something more than honesty and a fair character is needed to make a good judge. He must know the law, have the discrimination and ability to apply it to the facts of the causes heard before him, and the judicial independence that will prevent his being even unconsciously swerved from right by illicit considerations and influences. The outcast from society should be as certain that the judge will award him his legal rights as the man who has founded a university or who can draw his cheque for a million of dollars. Poor judges are expensive judges both for the State and suitor; and justice often miscarries when the lawyers at the bar are abler than the judge upon the bench. A notion is becoming current that the amount in controversy should determine the quality of justice another instance of the material element getting the advan

tage of us. To one man one hundred dollars may have more value than ten thousand dollars to another, and he may feel the injustice more keenly when his right to it is denied or sacrificed. The proposition to put a large pecuniary limit upon appeals to the Supreme Court of the United States, and make it a court for the very rich, is an illustration of the prevalence of this fatal fallacy."

While the Lord Chief Justice of England is amusing himself in vacation by getting acquainted with our country and the people, the chief justice of Connecticut is engaged in trying to establish a distinction between "compost" and manure, in respect to the character of property in the former, claiming it as personalty. His honor and his brother, as owners of half a farm, and of the stock on the farm, sued the owner of the other half of the farm, to recover one hundred dollars for fifteen loads of compost, which the latter had drawn away from the barnyard for his own use. His honor claimed the compost as personal property, while the defendant's claim was that it was real estate, a share of which he was entitled to on the ground of his joint ownership in the estate. The action was tried before a justice's jury. The New York Times says: "A great crowd of farmers gathered at the hearing to learn whether compost is personal property or real estate in law. To show that the compost in question was personal property the plaintiff produced an exhibit in a box whose qualities indicated that it came from a heap, and was not lying around loose in the yard as part of the real estate, while the defendant introduced another exhibit whose characteristics showed that it had not the individuality of heaped up manure, but had formed a part of the unclassified fertilizing layer of the yard, and was therefore real estate. Both exhibits were critically examined by the jury. Two days were spent in the trial of the case, and the jury disagreed. The lawsuit attracted much attention, on account of the elevated judicial position of the plaintiff." This nice question would have delighted our late Judge Grover, who frequently had hay-seed in his hair, and whose boots frequently looked as if he might have been investigating this very question by pedestrian inspection.