dure, which section provides that the plaintiff may unite in the same complaint two or more causes of action, in the several cases which are enumerated, and among others "for injuries to real property." It is very manifest that the first cause of action, in the complaint herein, is to recover damages, within the meaning of subdivision 4, "for injuries to real property." A more difficult question arises as to the second cause of action. The complaint as amended, after a portion of the same had been stricken out by an order of the court, as we have seen, claims to recover damages sustained by reason of a failure of defendant to perform its statutory duty. The gist of the action is this failure of the defendant to perform a duty enjoined upon it by law, in consequence of which the plaintiff has sustained injuries for which he is entitled to recover damages. This second cause of action arises upon an implied contract or obligation of the defendant to perform a duty required. The duty is imposed by statute, and an implied promise of performance arises by reason thereof. In N. Y. & N. H. R. v. Schuyler, 34 N. Y. 85, it was laid down by Davis, J., that "all duties imposed upon a corporation by law raise an implied promise of performance." See also Inhabitants of Booth v. Freeport, 5 Mass. 326. The duty imposed upon the corporation here was to make and maintain fences and provide farm crossings for the plaintiff, and an implied obligation or promise was thus created which the defendant was bound to fulfill and for a failure to perform an action for damages would lie. Such action clearly related to a violation of the contract by the defendant, and the fact that such contract affected the real estate did not change the nature of the obligation so as to make the cause of action one relating to real estate, and not to the implied promise or contract. Thomas v. Utica & Black River R. Co. Opinion by Miller, J.

[Decided Nov. 25, 1884.]

LICENSE-OMISSION TO EXECUTE BOND CREATES NO "VACANCY" INVALID LICENSE NO DEFENSE.-The omission of an excise commissioner elected under the act of 1874 (ch. 444) to execute an official bond approved by the supervisor of the town, does not create a vacancy; the omission at the utmost only furnishes cause for a forfeiture of the office; and a vacancy can be effected only by a direct proceeding for that purpose. To avoid the penalty imposed by the excise law (Laws of 1857, ch. 628) a party desiring to sell intoxicating liquors must see to it that he obtains a license from those clearly authorized to grant it. Where therefore because of the failure of an excise commissioner to procure the approval of the superintendent to the bond presented by him, another was elected to fill the supposed vacancy, held, that a license signed by the person so elected by one commission was no defense to an action to recover a penalty for selling liquor without license. This was held in Foot v. Stiles, 57 N. Y. 399, in the case of a commissioner of highways, where the same question came up on the construction of a statute similar to the one before us. The Legislature uses different language when it intends that an act or omission shall create a vacancy, as in Laws of 1875, ch. 180, § 4, where the mere acceptance of an election or appointment by a town auditor to any other town office creates a vacancy in the first office, or section 5, where neglect to accept has the same effect upon the office named. In People ex rel. Kelly v. Common Council of Brooklyn, 77 N. Y. 503, the statute under consideration declared that upon the happening of a certain event the office "should become vacant." The event happened, and it was held that no proceedings were necessary, for the effect of the statute was the removal of the incumbent. The differing language of the statutes will not permit that

RAILROAD-LICENSE FEES-CONSTRUCTION OF STATUTE-REPEAL OF REPEALING ACT RESTORES-ACTION FOR FEES.-By defendant's charter (Laws of 1860, ch. 513, § 2) its right to construct and operate a street railroad in the city of New York is made subject "to the payment to the city of the same license fee annually for each car run thereon, as is now paid by other city railroads in said city." At the time the charter was granted two railroads in the city paid a license fee of $50 per car each, one paid $20 per car, and three paid no license. In an action to recover license fees, held, that the city was entitled to collect and receive, and defendant was properly required to pay, $50 per car; also that interest was properly allowed. A different construction would prevent the collection of any fee and render the statute inoperative and of no effect, and should not be sanctioned. If ambiguity exists as to the amount of the fee to be paid, then the greater amount should be adopted, for it is a well-settled rule that any ambiguity in a grant of privileges must operate against the grantee and in favor of the public. This is fully established by the adjudications in this country and in England. Langdon v. Mayor, etc., 93 N. Y. 129; R. & G. R. Co. v. Reid, 64 N. C. 158; Hartford Bridge Co. v. Union F. Co., 29 Conn. 210; Allegheny v. O. & P. R., 26 Penn. St. 355; Dugan v. Bridge Co., 27 id. 303; Bowling Green R. v. Warren Co., 10 Bush, (Ky.), 711; Marion Savings Bank v. Dunkin, 54 Ala. 471; Bridge Co. v. Hoboken, 13 N. J. Eq. 81; Florida R. Co. v. P. R. Co., 10 Fla. 145; Rice v. M. & N. R. Co., 1 Black (U. S.), 358; Bradley v. N. Y. & N. H. R., 21 Conn. 294; Priestly v. Foulds, 2 Scott (new), 205; Kingston Dock Co. v. La Marche, 8 B. & C. 42; Leeds & Liverpool Canal v. Hustler, 1 id. 424; Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 792; Gildart v. Gladstone, 11 East, 685. The fee of the streets being in the city for public purposes and upon public trusts, and the use of the streets being given to a private corporation for private gain without compensation, and the corporate authorities of the city being the representatives of the public in the assertion of their rights, the principles of construction stated should be held to apply the same as between corporations and individuals. The strictest rules of interpretation can therefore be properly invoked. The ordinance was therefore valid as to the city railroads which were required by their charters or by contract with the city to pay a given sum to the city in consideration of the privileges conferred. In cases of a grant by legislative power the right to collect the amount fixed as a license confers express authority to enforce the payment of the same, and in no sense can it be considered as the imposition of a tax or a penalty which is without the sanction of law. The said ordinance was subsequently repealed, but the repealing resolution was thereafter repealed. Held, that the ordinance was thereby restored to full force and efficacy. People v. Davis, 61 Barb. 456; Vandenburgh v. Greenbush, 66 N. Y. 1. It may be added that the claim of the plaintiff to recover in this action does not rest upon the ordinance alone, but depends upon the statute, which requires the payment of the license fees to the city independent of any ordiThere would seem to be no valid reason why the city should not maintain an action to recover the license fee provided for by the statute. It clearly confers upon the city the right to such fees, and perhaps even without the ordinance an action would lie for their recovery. Mayor, etc., v. Broadway and Seventh Ave. R. Co. Opinion by Miller, J.

nance.

[Decided Nov. 25, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.*

TRUST-LIEN OF JUDGMENT- "" REAL ESTATE BANKRUPTCY - POWER OF APPOINTMENT DOES NOT PASS.-The statute of Illinois in force at the time and governing the case was sec. 1, ch. 57, Rev. Stat. 1845, which after providing that judgments should be a lien on the real estate of the judgment debtor, provided as follows: "The term 'real estate' in this section shall be construed to include all interest of the defendant

or any person to his use, held or claimed by virtue of any deed, bond, covenant or otherwise, for a conveyauce, or as mortgagee or mortgagor of lands in fee, for life or for years." Except so far as modified by this act, the common law on the same subject was in force in Illinois by express adoption. Rev. Stat. 1845, p. 337, § 1. In Spindle v. Shreve, 111 U. S. 542-547; S. C., 4 Sup. Ct. Rep. 522, it was stated to be the law in Illinois that where the legal title to lands is in trustees, for the purpose of serving the requirements of an active trust, the judgment creditor had no lien and could acquire none at law, but could obtain one only by filing a bill in equity for that purpose, according to the provisions of section 49 of the Chancery Practice Act of that State. Rev. Stat. 1845, p. 97. It was otherwise if the trust was merely passive, such as those described in the section defining real estate as subject to the lien of judgments already quoted. Miller v. Davidson, 3 Gil. 518; Baker v. Copenbarger, 15 Ill. 103; Thomas v. Eckard, 88 id. 593. The rule at common law and the corresponding jurisdiction of chancery as to equitable estates are fully explained in Morsell v. First Nat. Bank, 91 U. S. 357; Lessee of Smith v. McCann, 24 How. 398; Freedman's Savings & Trust Co. v. Earle, 110 U. S. 710. Prior to the enactment of 1 & 2 Vict., ch. 110, it was settled in England that at law a judgment against the party having a power of appointment, with the estate vested in him until and in default of appointment, was defeated by the subsequent execution of the power in favor of a mortgagee. Doe v. Jones, 10 Barn. & C. 459; Tunstall v. Trappes, 3 Sim. 300. And it was held to be immaterial that the purchaser had notice of the judgment (Eaton v. Sanxter, 6 Sim. 517), or that a portion of the purchase money was set aside as an indemnity against it. Skeeles v. Shearly, 8 Sim. 153; S. C., on appeal, 3 Mylne & C. 112. In this case Sir John Leach, the vicechancellor, decided that the effect of the transmission of the estate by appointment was that the appointee takes it in the same manner as if it had been limited to him by the deed under which the appointer takes in default of appointment, and consequently free and disconnected from any interest that the appointer had in the tenements in default of appointment; that as the appointee is in no sense the assignee of the appointer, he cannot be affected by judgments which affect only the estate and interest of the appointer, and that being so, the circumstance of his having notice of such judgments is immaterial. The statute of 1 & 2 Vict., ch. 110, altered the law in this respect by making judgments on actual charge on the debtor's property, where he has at the time the judgment is entered up, or at any time afterward, any disposing power over it which he might, without the assent of any other person, exercise for his own benefit, so that it would continue to bind the property, notwithstanding any appointment. 2 Sugd. Powers (7th Lond. ed.), 33; Burton Real Prop. (8th Lond. ed.) 283; Hotham v. Somerville, 9 Beav. 63. In Illinois the definition of that real estate which is made subject at law to the lien of judgments was enlarged by the act of July 1, 1872 (Hurd's Rev. Stat. 1883, p. 676), so as to include * Appearing in 5 Supreme Court Reports.

"all legal and equitable rights and interests therein and thereto; but the rights of the parties in this suit are not affected by it, and must be governed by the principles of the common law in force when they became fixed. It is indeed a rule well established in England, and recognized in this country, that where a person has a general power of appointment, either by deed or by will, and executes this power, the property appointed is deemed in equity part of his assets, and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees. This rule is stated by Mr. Justice Gray in Clapp v. Ingraham, 126 Mass. 200, to have had its origin perhaps in a decree of Lord Somers, affirmed by the House of Lords, in a case in which the person executing the power had in effect reserved the power to himself in granting away the estate. Thompson v. Towne, Prec. Ch. 52; S. C., 2 Vern. 319. But it was frequently afterward applied to cases of the execution of a general power of appointment by will of property of which the donee had never any ownership or control during life. In re Harvey's Estate, L. R., 13 Ch. Div., 216. That doctrine however has no application in the present case. (2) A power of appointment does not pass to the assignee in bankruptcy of the person in whom the power resides. Jones v. Clifton, 101 U. S. 225. dies v. Cochrane. Opinion by Matthews, J. [Decided Dec. 1, 1884.]

Bran

VENDOR AND PURCHASER-PURCHASE OF SECURITIES -PAYMENT-DISCHARGE OF LIEN-PAROL EVIDENCE

AS TO CONSIDERATION-PRACTICE SUBROGATION.—(1) On or about the 19th of December, 1870, H. T. and M. T. purchased of D. a tract of land in the city of Chicago, which they afterward caused to be laid off into blocks and lots. The blocks were numbered 1, 2 and 3. A part of the purchase money was paid by them in cash, and for the balance they executed four joint notes, each for the sum of $5,373.67%, payable at different times, with interest, secured by a deed of trust on the property to A. as trustee. Prior to September, 1872, M. T. sold some of the lots, partly for cash and partly on credit. On the 5th of September, 1872, an oral agreement was made by which M. T. was to take all the cash and notes that had been received from sales, and all the unsold parts of block 2, and all but eight lots of those unsold in block 3, pay the debt to D., and give H. T. all of block 1, and eight lots in block 3, clear of the incumbrance of the trust deed to A. In part execution of this agreement, M. T. at the time conveyed to H. T. his interest in block 1, and in the eight lots in block 3. H. T. did not convey to M. T. until December 20, 1872. On that day, for the consideration of $100, as expressed in the deed, he released and quitclaimed to M. T. in fee simple all his title and interest in the unsold lots in block 2, and in block 3, except the eight lots which had been conveyed to him by M. T., and at the same time transferred to M. T. all his interest in the moneys and securities which had been received for the lots sold. M. T., finding himself unable to pay the note of D., which became due in December, 1872, and the interest on the other notes, entered into an agreement with H., by which H. was to take the property off his hands, as he took it from H. T., pay the debt to D., and relieve the premises conveyed to H. T. from the lieu of the trust deed to A. Under this agreement M. T. conveyed the part of the property to which he held the title to H. by deed, for the expressed consideration of $16,000, and transferred to him all debts due for lots sold. This deed was dated December 28, 1872. H. at the same time orally assumed the payment of the debt to D., that being the only consideration for the transfer. At the time of this transfer H. borrowed from R., through H. & B., his agents, $10,000, for which he executed two notes,

in his power to do this. The term "rescinded," as he employs it, is convertible with "repudiated." It was as easy for him to repudiate as singly to rescind his promise. In an action to recover the amount of a judgment theretofore rendered the plaintiff is entitled to recover interest upon the costs adjudged to him from the date of the original judgment to the time of recovery. Whoever may be equitably entitled to the costs when collected, his legal title to and right to recover the unpaid costs is clear (Abbey v. Fish, 23 Ohio St. 413), and as by force of section 1319 of the Revised Statutes, his costs are "carried into his judgment;" and as he is liable at any time after failure to sue out process for his costs or the return thereof unsatisfied, to respond, upon the order of court, to a writ issued for the benefit of those entitled to them for the costs adjudged in his favor, with interest thereon, it is difficult to see why his right to interest should depend upon his actual payment of such costs. 14 Viner Abridg.457; Rogers v. Burns,27 Penn.528; Klock v. Robinson,22 Wend. 157; Denning's Appeal, 34 Conn. 204; McCausland v. Bell, 9 S. & R. 388; Hamer v. Kirkwood, 25 Miss. 95; Gatewood v. Palmer, 10 Humph. 466; Graham v. Newton, 12 Ohio, 210. Emmitt v. Brophy. Opinion by Owen, J.

DEED-CONDITION, PAYMENT OF DEBT SHOULD RENDER VOID,MORTGAGE IS NOT ABSOLUTE CONVEYANCE IN TRUST. The owner in fee of real estate conveyed the same to a trustee to secure a debt to a third person. After the granting clause to the trustee in fee there was a condition that if the debt was paid at maturity the conveyance was to be void, otherwise the trustee was authorized to sell the land at public sale to pay the same. Held, this conveyance was a deed of trust in the nature of a mortgage, and not an absolute conveyance in trust to secure the debt. Where the conveyance to a trustee is a collateral security, merely for the payment of a debt, with the condition that it shall become void upon its payment, and with a power to sell the land in case of default, it is a deed of trust in the nature of a mortgage. The grantor parts with his title conditionally only. If there is no such condition but the conveyance is an absolute deed of trust for the purpose of raising money to pay a debt if not paid as agreed, the grantor parts with all his legal estate, and whatever rights he has are in their nature equitable merely. Hoffman v. Mackall, 5 Ohio St. 130; Woodruff v. Robb, 19 Ohio, 217; Eaton v. Whiting, 3 Pick. 485. The fact that the deed was made to a trustee with power of sale does not change its character in this respect, same cases. Moore v. Burnet, 11 Ohio, 334, and Morris v. Way, 16 id. 469, are deeds of trust, without a condition that they were to be void if the debt was paid; hence they are the conveyances of an absolute estate in trust to secure a debt, with a power of sale in the trustee to execute the trust, while Woodruff v. Robb, supra, and the case at bar have such a condition. The former divests the grantor of his legal estate, leaving nothing but an equity to the grantor; while the latter is a security for the debt, defeasible upon its payment. The cases of Moore v. Burnett and Morris v. Way are not in conflict with Woodruff v. Robb. Both forms of instruments are mortgages in equity. In the latter the legal estate remains in the mortgagor after default, as against all the world, except the mortgagee, while in the former the legal title passes absolutely, leaving an equity merely in the grantor. With this distinction between absolute deeds of trust with power of sale, and conditional deeds of trust with like power, defeasible upon payment of debt, the cases are reconcilable. In the former case there is no legal estate remaining in the grantor, and therefore no judgment lien, while in the latter the legal estate remains in the grautor in pos

session, in favor of judgment creditors, subject to the mortgage. See Baird v. Kirtland, 8 Ohio, 21. Martin v. Alter. Opinion by Johnson, C. J.

CORRESPONDENCE.

CANCELLATION OF NOTICE OF PENDENCY.

Editor of the Albany Law Journal:

Permit me through your columns to call attention to section 1674 of the Code of Civil Procedure, and what seems to me to be a strong necessity for its amendment. Upon the entry of judgment the successful party has a right to enforce it immediately, unless stayed by an order designed to give the loser an opportunity to perfect an appeal, and so prevent the immediate operation of the judgment. But under the terms of the section referred to a notice of pendency of action cannot be cancelled, although the defendant may have succeeded in the action, until the time to appeal has expired. The plaintiff may not intend to appeal, yet if he does not consent to the removal of the lis pendens it must remain on record at least thirty days after judgment, and as much longer as may be necessary to make a motion and obtain an order removing it. The existence of such a cloud upon the title to land, even for such a period, must often prove embarrassing and damaging.

I was forcibly impressed with the incongruity of this provision recently in a case where a creditor's action was successfully resisted on the ground of fraud in procuring the judgment sued on. Judgment was at once entered in favor of defendant setting aside plaintiff's judgment, the docket of which was immediately marked cancelled, an execution was issued for costs, etc. But on applying to the judge who decided the case for an order cancelling the notice of pendency of action he declared himself unable to grant it till the time to appeal had expired.

The provision is clearly inconsistent with the scheme of the Code which allows the immediate enforcement of a judgment upon its entry, and the section should be amended by striking out the words "and the time to appeal has expired." It seems unreasonable, while giving a party the benefit of his judgment in almost every particular at once upon its entry, to withhold for such a period his right to remove a cloud from his title.

The section seems also to be obnoxious to the further objection that the taking of an appeal in such a case, even without security, is sufficient to enable the appellant to retain the lis pendens on the record. As it reads now it certainly does not mean that while the lis pendens cannot be cancelled before the time to appeal has expired, it may be cancelled after such time has elapsed and an appeal has been taken. An appeal without security merely allows the enforcement of the judgment pending the appeal, and as such enforcement does not carry with it a right to cancel the lis pendens, it would seem that it must remain until perhaps the Court of Appeals has reviewed the case. As provisional remedies do not survive to a defeated party after judgment, and as a lis pendens is (or at least has been held to be) very much in the nature of a provisional remedy, it does not seem just or in harmony with the spirit of the Code to suffer one appealing without security to hold what is practically an attachment upon his adversary's land for an indefinite period without providing for some compensation for the damages that may be expected to follow to the respondent. Yours respectfully.

NEW YORK, Feb. 24, 1885.

Акм.

MANDAMUS TO COMMISSIONERS OF EXCISE. Editor of the Albany Law Journal:

The purpose of writing this short article is to propound a query under the excise laws. Can commissioners of excise, who have refused on proper application to grant license, be compelled to do so?

In Graham & Lane's Excise Laws of the State of New York, page 76, they say: "The act of 1845, allowing a local option vote, is generally acquiesced in as at least substituted by the election of excise commissioners by the people, with power to grant or refuse licenses, and to approve of applicants and their qualifications, as well as the discretion to decide whether the applicants have a good moral character or not. This leaves the door open for a refusal to grant any license, as those of extreme views may claim no man to be moral who sells intoxicating liquors, and on this ground alone might not 'approve' of the applicant. The board cannot be compelled to grant licenses."

Can such substitution be made? It is true that the language of the act is that they shall have power to license. But for the board to refuse a license on the ground alone that the applicant would be of immoral character to so sell, though legally licensed, would seem to be an abuse of legal discretion, and subject to correction.

I thank you for those excellent words in your last issue: "Litigation should be made cheaper rather than dearer." I am strongly in favor of abolishing all costs except actual disbursements. It is poor people, not rich people, are oftenest wronged and who most need the power of the State to set them right. If that power-or the exercise of it-be beyond their means, it is denied to them. It becomes the luxury of the rich and not the relief of the poor. Among the poor, not one wrong in ten is ever redressed, for want of the means of redressing it. Our cruel system of what is called "extra allowances," deters many a man of moderate meaus from seeking redress of his wrongs; and the fact that he is so denied redress invites other and further wrongs, in that it promises impunity to the wrong-doer. This is foreign to the ends of government. It does not tend to encourage patriotism among that class upon whom we depend to repel invasion and fight our battles. If justice be only for the rich, "fle upon your law!" If the State be too poor to mete out justice to all let her retrench some of her needless, prodigal expenditures, for humanity points in that direction. A bureau in every county, where the cause of the poor man should be espoused at the public expense, would be less out of harmony with the old but now almost forgotten practice of suing in forma pauperis, and could be easier justified upon principle than many of our at present unrebuked modes of expending the public money. I am reminded in this connection of the words of the great Webster; let me recall them: "Justice, sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness, and the improvement and progress of our race; and whoever labors on this edifice with usefulness and dis. tinction, whoever cleans its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself in name and fame and character with that which is and must be as durable as the frame of human society." Ever truly yours, I. T. WILLIAMS. CHAPPAQUA, WESTCHESTER CO., N. Y.

NEW BOOKS AND NEW EDITIONS.

SMITH'S LEADING CASES.

This is the eighth American edition, published in four volumes, by T. & J. W. Johnson, of Philadelphia. To make room for the new matter, the editors have omitted the cases of Ormichund v. Baker and Auriol v. Mills. It is superfluous to speak in detail of this work. It is an unrivalled classic, affording a complete magazine of information on the subjects of the cases reported. It ought to be in every lawyer's library. The editors have done their work well, and the publishers deserve the encouragement which they seem to have met.

SNELL'S PRINCIPLES OF EQUITY.

This is the first American, from the sixth English edition, and published by W. H. Stevenson, of St. Louis. The English publication is well known, and is of great excellence, and the present edition is supplied with reference to American cases by Mr. John D. Lawson, and is thus made a practically useful book in this country. See 10 Alb. Law Jour. 381.

HARE'S ILLUSTRATIONS IN ADVOCACY. This is the first American edition of a well-known English publication, and is issued by W.H. Stevenson, of St. Louis. The book is interesting, but advice on this subject is a good deal like advice on good manners or religion. If the advocate does not exist in the man, all the advice in the world will not make the man an advocate. So all these hints about examination of wit. nesses and the like, of which we have so many, are more amusing than useful. In short, good advice is very useless; as an old lawyer-friend of ours is wont to say, if a man is wise he doesn't need it; if he is a fool he will not heed it. But it is well enough to read Hare, and David Paul Brown, and O'Donovan, and all the others who formulate recipes for making lawyers and advocates.

TUCKER'S MONROE DOCTRINE. The Monroe Doctrine, a concise history of its origin and growth. By George.F. Tucker, of the Boston Bar. Boston: Geo. B. Reed, 1885. Pp. 138.

The title page tells the whole story as to the scope of this work, It is an interesting review of the origin and growth of what is called by courtesy "the Monroe doctrine," although it certainly was not original with Monroe. He simply made the best and most popular formulation of it. The author gives also a summary of the arguments in favor of and against it. The same subject has been intelligently, although less elaborately, treated by Mr. Gilman in his life of Monroe in the "American Statesmen" series.