prevails in full force only when the contracts of corporations of this character remain wholly executory. In Parish v. Wheeler, 22 N. Y. 494, a similar doctrine is maintained, it being held that a railroad company could not defend itself against a claim for money paid at its request to one who advanced the price of a steamboat purchased for it, on the ground that the purchase was ultra vires, though the plaintiff when he paid the money knew all the facts; and the court says that while "contracts with corporations, made in excess of their powers, which are purely executory on both sides, and where no wrong will be done if the parties are left in their previous situation, will not be enforced, because such contracts contemplate an unauthorized division of corporate funds, and, therefore, a breach of private trust, the executed dealings of corporations must be allowed to stand for and against both parties when the plainest rules of good faith so require." See, also, Bissell v. Mich. So., etc., R. R. Co., 22 N. Y. 258. It' is held that the defense necessarily rests upon the violation of trust or duty toward stockholders, and is not to be entertained when its allowance will do a greater wrong to innocent third parties, and that the contracts of corporations in excess of their rightful powers, but free from any other vice, are not illegal in the sense of the maxim ex turpi contractu non oritur actio. See, also, Bradley v. Bullard, 55 Ill. 413. The general rule prevails, even as to public or municipal corporations in analogous cases. Trask v. Davis, 10 Cush. 252; Fuller v. Melrose, 1 Allen, 166; Allegheney v. McCluskan, 14 Penn. St. 81. between the parties, the burden was on the defendant to support the deeds or gifts, and that he should satisfy the court that they had not been obtained by reason of confidence reposed, or undue influence. In Robinson v. Adams, 62 Me. 369, the subject of spiritualism, and its effect on the validity of wills, is extensively discussed, and the conclusion reached that when a will is attempted to be impeached upon the ground that it was the result, to some extent, of assumed spiritual communications with the deceased husband of the testatrix, and of her belief that her son-in-law possessed supernatural power over his wife, and was possessed of devils, the jury must determine how far these beliefs were founded in insane delusion, or exercised undue influence in producing the will. See, also, note to this case ir Redfield's Leading American Cases on Wills, p. 384. See, also, as to undue influence from other relations, Dean v. Negley, 41 Penn. St. 312; Monroe v. Barclay, 17 Ohio (N. S.), 302; Rudy v. Ulrich, 69 Penn. St. 177. In Force v. City of Elizabeth, 1 Stewart (28 N. J. Eq.) 403, the alteration of the number of a municipal bond, payable to bearer, when different bonds of the same series are distinguished alone by the numbers, is held to render the instrument void in the hands of the person who made the alteration, and of those who claim under him. The ground upon which this decision is placed is that the number was the only mark of distinction of the bond, and a change in that destroyed all evidence of identity. The court cites in support of its conclusion the case of Hunt v. Gray, 6 Vroom, 227, where the Supreme Court of New Jersey hold that even immaterial alterations are fatal, because to render any rule upon the subject efficacious it must absolutely interdict the owners of written contracts from tampering with them at all. This effect is also claimed for immaterial alterations in other cases. See Lubbering v. Kolbricher, 22 Mo. 598; Turner v. Bellagram, 2 Cal. 523. And in 1 Greenl. Ev., § 568, it is said that if the alteration be fraudulently made by the party claiming under the instrument, it does not seem im In Leighton v. Orr, 44 Iowa, 679, one Wolcott had lived for years in unlawful relations with a woman who shared his home, and who claimed to be a spiritualistic medium, and to have daily communications with his deceased wife, whose memory he greatly revered. During this time she acquired great influence over him, and controlled him to a large degree in the management of his business affairs, and at the same time he was addicted to the use of alcoholic liquors to such extent that he be-portant whether it be in a material or immateria! came debilitated in mind and body. Previous to his death he conveyed large portions of his property, for the considerations of "one dollar and friendship," to this woman. The court held that these conveyances should be set aside on the ground that they were procured by undue influence. This case, in one respect, resembles that of Lyon v. Home, L. R., 6 Eq. Cas. €55. The defendant in that action was somewhat celebrated as a spiritualist. The plaintiff sought him and thrust her gifts upon him; in consequence, however, of directions received, as she supposed, through the defendant, from her deceased husband. There were, however, no illegal or immoral relations between the parties. The court held that, owing to the confidential relations part, for in either case he has brought himself under THE FUTURE OF THE REVISION. THE fate of the Statutes Revision of this State, which rests in the hands of this legislature, is a matter of considerable present importance. The existing Commission will expire by limitation on the 1st of May next, unless it be given a new lease of life at this session. Of the fate of the work ac work of the commission) was adopted. These Codes were the Code of Civil Procedure, of Criminal Procedure, the Civil Code, the Penal Code, and the Political Code. These Codes have been adopted in some ten or twelve of the States, and one or another of them has become the statute law of the great majority of the States of the Union. Not only this but the Code of Civil Procedure was the model upon which the revised procedure o of England was founded. As concise, perspicuous and exact statements of the law, they are excelled by no codes ever prepared, and they have received unqual complished there is little doubt. Not only will the Code of Civil Procedure already adopted be retained, with amendments, but the nine supplemental chapters will be added. If nothing else, the inconven-ified commendation from sources whence undeserved iences arising from a change is an argument strong enough to bring about such a result. And, perhaps, under the circumstances, this is not to be regretted, although it gives us the bulkiest Code of Procedure in the world. But what of the work commendation would not come. In 1870 Mr. Thring, parliamentary draftsman, and the ablest English authority on legislative drafting, prepared a series of instructions in statute drafting for the use of the British Parliament, wherein he used the following language: "The draftsman should read carefully Mr. Coode's book on legislative expression, above re undone or incompleted the substantive law, civil and penal, and the criminal procedure? Is the Commission to go on or is it to go out?ferred to, and should study, for forms of expression, Are we to have, once for all, what we have before attempted, a thorough and complete revision and codification of our laws, or are these 3,318 sections of procedure to be the only outcome of all the treasure and years of labor expended? For our own part, we are most decidedly of the opinion that the revision ought to be continued, and the whole law and procedure reduced to a congruous, concise and perspicuous code. It is too late in this State-where the movement in favor of codification had its origin-to question the utility or desirability of a code. In the language of the Code commissioners of 1857, "If the law is a thing to be obeyed, it is a thing to be known, and if it is to be known, there can be no better, not to say no other, method of making it known than of writing and publishing it. If a written constitution is desirable, so are written laws. The same reasons which affect the one affect also the other." The statute law of this State is contained in some eighty odd volumes, and covers about 75,000 pages; the case law in upwards of 450 volumes of reports. This law, both statute and case, every man is presumed to know-is bound to know. The purpose of a revision or a code is to "boil down" this incongruous, incomprehensible mass into a congruous, comprehensible and concise system. The necessity of reducing "into a written and systematic Code the whole body of law of this State" was distinctly recognized and provided for in the Constitution of 1846, and in pursuance of its provisions two commissions were appointed-the Practice Commission, consisting of David Dudley Field, Arphaxed Loomis, and David Graham, and the Code Commission, consisting of Mr. Field, William Curtis Noyes and Alexander W. Bradford. These Commissions prepared and reported five Codes-only one of which (and that the incomplete and partial the Code of Criminal Procedure and Civil Procedure of the State of New York." (See 2 Alb. L. J. p. 107.) Now it seems to us that we ought not longer to ignore this body of law already prepared to our hand. It was hoped, when the existing Commission was appointed, that the Commissioners would find these codes useful as the basis, at least, of their revision, and to that end the legislature expressly authorized the Commissioners to incorporate them into and make them a part of their revision. This they have not done. It is most certainly advisable in every view to continue the commission and the revision. We have gone too far, wisely to retreat, were retreat desirable. But at the same time let the commission be continued expressly for the purpose of taking these unadopted codes as the basis and substance of their work. Let them be required to reform or revise those codes so far as they may need change in the light of our juridical history since they were reported, but let the "amending hand" be so hedged in that there shall be no more change, for change sake only. By so doing we shall gain in time, in money, and, what is of much greater importance, in our jurisprudence. UNITED STATES SUPREME COURT ABSTRACT. FRAUD. Meaning of word "fraud” in § 33, Bankrupt law.— The word "fraud,"as used in the 33d section of the bankrupt law of 1867, means positive fraud, or fraud in fact, involving moral terpitude or intentional wrong, as does embezzlement, and not implied fraud, or fraud in law, which may exist without the imputation of bad purchased notes belonging to an estate, from an execufaith or immorality. Accordingly, where a person tor, at a discount, under such circumstances that rendered him guilty of a constructive fraud by being im plicated in a devastarit committed by the executor, in selling the notes, held, that the fraud was not such as would preclude him from setting up a discharge in bakruptcy against an action to recover the value of such notes. Judgment of Supreme Court of Appeals of Virginia reversed. Neal, plaintiff in error, v. Scruggs. Opinion by Harlan, J. JURISDICTION. Foreclosure of mortgage: parties: citizens of different States. In an action brought by certain bondholders in the United States Circuit Court to foreclose a mortgage given to a trustee upon property belonging to a corporation, for the benefit of the bondholders, it appeared that the trustee had refused to bring action, and that the bondholders were residents of a State other than that in which the corporation was situated. Held, that the complainants had a right to have suit for a foreclosure in the name of the trustee, and having applied to him for that purpose and he having refused to perform his duty, the complainants, with the other parties interested in the security, might properly become the actors in such a suit against the mortgagor, impleading the trustee also as a respondent. Held, also, that the United States Circuit Court had jurisdiction of the action as being between citizens of different States. Judgment of Circuit Court, Nebraska, affirmed. Omaha Hotel Company, appellant, v. Wade. Opinion by Clifford, J. 2. Joinder of parties.-Some of the other bondholders were not joined as parties to the suit. Held, not to affect the jurisdiction of the court. Holders of such securities otherwise entitled to sue in the Circuit Court to foreclose the mortgage or trust deed are not compelled to join as respondents other holders of similar securities, if resident in other States, even if they refuse to unite as complainants, as the effect would be to oust the jurisdiction of the court. Ib. 3. When security not void on ground that lender is a trustee of borrower.-It was claimed that the bonds and mortgage were void upon the ground that the lenders of the money were also the directors of the company. The terms of the contract were sanctioned by the stockholders, and the money loaned was needed to complete the building, and it was applied to effect the purpose for which it was borrowed. Held, that the claim could not be sustained. (Stark v. Coffin, 105 Mass. 333; Credit Association v. Coleman, Law. Rep., 5 Ch. 568; Troup's Case, 29 Beav. 353; Hoare's Case, 30 id. 225; Smith v. Lansing, 22 N. Y. 526; Busby v. Finn, 1 Ohio St. 422.) Ib. 4. Usury: what does not constitute.-Most of the directors who took the bonds and advanced the money were owners of stock in the bank where the money when paid to the use of the company was deposited. Interest was not paid on the deposits, and it was insisted by the company that the transaction was usuriHeld, that in the absence of any evidence that any agreement was ever made that the money should be deposited in that bank, the proposition could not be sustained. Ib. ous. LIMITATION OF ACTION. Action to enforce resulting trust.-It is an undoubted rule of law in Pennsylvania that a resulting trust in land, if not sought to be enforced for a period of twenty-one years, and is not reaffirmed, or continued, will, under ordinary circumstances, be extinguished. This rule is especially applicable where the party having the legal title has, during the required period of twenty | one years, been in notorious and adverse possession, paying the taxes and exercising all the usual rights of ownership, and his title has, for the whole period, been on record in the proper office. Stemfler v. Roberts, 6 Harris, 283; Fox v. Lyon, 9 Casey, 481; Brock v. Savage, id. 421; Hulsey v. Tate, 2 P. F. Smith, 311; Lingenfeller v. Richey, 12 id. 123. Judgment of Circuit Court, W. D. Pennsylvania, affirmed. King, plaintiff in error, v. Pardee. Opinion by Bradley, J. PRACTICE. 1. Proof of service of summons: service by publication on a non-resident: statute of Oregon.-A statute of Oregon, after providing for service of summons in an action upon parties or their representatives personally or at their residence, declares that when service cannot be thus made and the defendant, after due dilligence, cannot be found within the State, and "that fact appears, by affidavit, to the satisfaction of the court or judge thereof, and it, in like manner, appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in the State, such court or judge may grant an order that the service be made by publication of when the defendant is not a resident summons * * of the State, but has property therein and the court has jurisdiction of the subject of the action"- the order to designate a newspaper of the county where the action is commenced in which the publication shall be made-and that proof of such publication shall be "the affidavit of the printer, or his foreman, or his principal clerk:" Held, that defects in the affidavit for the order can only be taken advantage of on appeal or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally; and that the provision as to proof of the publication is satisfied when the affidavit is made by the editor of the paper. Judgment of Circuit Court of Oregon affirmed. Pennoyer, plaintiff in error, v. Neff. Opinion by Field, J. 2. Effect of personal judgment on non-resident: when no title passes upon sale under -A personal judgment rendered in a State court in an action upon a money demand against a non-resident of the State, without personal service of process upon him within the State, or his appearance in the action, upon service by publication, is without any validity; and no title to property passes by a sale under an execution issued upon such a judgment. Ib. 3. When Stute tribunals may and may not adjudicate claims against non-residents.-The State having within its territory property of non-residents may hold and appropriate it to satisfy the claims of its citizens against them, and its tribunals may inquire into their obligations to the extent necessary to control the disposition of the property. If non-residents have no property in the State, there is nothing upon which the tribunals can adjudicate. Ib. 4. Substituted service, when sufficient: when not sufficient. Substituted service by publication, or in any other authorized form, is sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent, and proceeds upon the theory that its seizure will inform him that it is taken into the custody of the court, and that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Ib. 5. Process of State tribunals not valid out of State: publication.-Process from the tribunals of one State cannot run into another State and summon parties there domiciled to leave its territory and respond to proceedings against them; and publication of process or notice within the State in which the tribunal sits cannot create any greater obligation upon the nonresident to appear. Process sent to him out of the State and process published within it are equally unavailing in proceedings to establish his personal liabil ity. Ib. 6. When substituted service not effectual: property in Sta'e essential.- Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, the substituted service of process by publication, allowed by the law of Oregon, and by similar laws in other States, where actions are brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court and subjected to its disposition by process adapted for that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. Ib. 7 Relation of Federal tribunals to State tribunals.— Whilst the courts of the United States are not foreign tribunals in their relations to the State courts, they are tribunals of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit which the courts of another State are bound to give to them. Ib. 8. Meaning of due process of law": essentials to constitute it.-The term, "due process of law," when applied to judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution to pass upon the subject-matter of the suit, and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Ib. REMOVAL OF CAUSE. Removal under act of 1875, § 2: when not allowed.In order to entitle a party to a removal of a case from a State to a United States court under section 2 of the act of 1875, providing for the removal of suits arising under the Constitution or laws of the United States, the decision of the case must depend upon the construction of the law or Constitution. A cause cannot be removed from a State court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. Accordingly, where in an action brought to restrain defendants below from depositing the debris from their mines in the channel of a river, the petition for removal set forth defendants' ownership, by title derived under the laws of the United States, of certain valuable mines that could only be worked by the hydraulic process, which necessarily requires the use of the channels of the river and its tributaries in the manner complained of, and they alleged that they claimed the right to this use under the provisions of certain specified acts of Congress and also alleged that the action arose under, and that its determination would necessarily involve and require the construction of the laws of the United States specifically enumerated, as well as the pre-emption laws, but stated no facts to show the right they claim or to enable the court to see whether it necessarily depended upon the construction of the statutes. Held, not sufficient to entitle defendants to a removal of the cause. Judgment of Circuit Court, California, affirmed. Little York Gold Washing and Water Company et al., plaintiffs in error, v. Keyes. Opinion by Waite, C. J. Bradley, J., dissented. SPECIFIC PERFORMANCE. Defense in action for: title: parties plaintiff.-W., by will made in 1852, devised certain real estate to H. for life, then to B., in trust, to apply the income to the use of his brother during life, and thereafter to H., Jr. Before his death W. contracted to sell the estate to defendant below, defendant taking possession and paying part of the purchase-money. In an action brought by H. and B. to compel specific performance by defendant of his agreement to purchase, it was objected that there was a defect of parties plaintiff on the ground that H. and B. were not able together to make a title that ought to be satisfactory to defendant. Held, that the objection was not well taken. The execution of the contract (with the partial payment thereon) was a transfer in equity of the title of the land to defendant, leaving in the representatives of W. simply a naked title as trustee for defendant, to be conveyed upon performance on his part. By the terms of the will this legal title was vested in B., the trustee, to preserve remainders. Judgment of Circuit Court, South Carolina, affirmed. Bissell, appellant, v. Heyward. Opinion by Huut, J. 2. Tender: must be kept good to stop interest and costs. To have the effect of stopping interest or costs a tender must be kept good, and when used by the debtor for other purposes it ceases to have that effect. (Rowell v. Bull's Head Bank, 55 Barb. 574; Giles v. Hart, Salk. 622; Smallwood v. Squire, id. 623.) Ib. 3. Contract made with reference to Confederate currency: measure of value.-The contract was made with reference to Confederate currency, which was the only currency in circulation at the place where it was made (South Carolina) at the time. The master found the balance due upon the contract to be $28,353.50, and in reaching this result he compared the value of the Confederate currency, in which the contract was payable, with United States paper currency at the dates of the contract and of the tender. The defendant insisted that the value of the Confederate notes should be reduced to gold or sterling exchange, which would still further depreciate their value. Held, that this objection could not be sustained. By the laws of the United States all contracts between individuals could then be lawfully discharged in the legal-tender notes of the United States. These notes, and not gold or silver sterling exchange, were the standard of value to which other currencies are to be reduced to ascertain their value. (Knox v. Lee, 12 Wall. 457; Thorington v. Smith, 8 id. 14: Dooley v. Smith, 13 id. 604; Rev. Stat. So. Car., p. 285.) Ib. CONDITIONS IN INSURANCE POLICIES AS TO OWNERSHIP. SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1877. LYCOMING FIRE INSURANCE Co., plaintiff in In a fire insurance policy on buildings, issued to plaintiff below, it was provided that "if the interest of the insured in the property be any other than the entire unconditional and sole ownership of the property for the use and benefit of the insured, or if the buildings insured stand on leased ground, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy shall be void.' The plaintiff owned the land upon which the buildings were erected in fee simple, and the premises were leased to another party for a term of years. Nothing was expressed in the policy to indicate that the interest of the insured was other than the entire unconditional and sole ownership of such property, or indicating that most of the buildings stood on leased ground. Heid, that the condition of the policy was not violated, and plaintiff was entitled to recover thercon in case of loss. error to the Circuit Court of the United States for IN error of the United States for contained in the opinion. Mr. Justice CLIFFORD delivered the opinion of the court. Policies of fire insurance are contracts whereby the insurers undertake for a stipulated sum to indemnify the insured against loss or damage by fire, in respect to the property covered by the policy, during the prescribed period of time, to an amount not exceeding the sum specified in the written contract. Angell on L. and F. Ins. 43. Insurance was effected by the plaintiffs, on the ninth of May, 1870, in the company of the corporation defendants, for the term of one year, against loss or damage by fire, to the amount of three thousand dollars, covering the ten buildings therein described, each of which being insured in the sum of three hundred dollars. It appears by the bill of exceptions that the policy was in the usual form of policies issued by the defendants, and that it provided that "if the interest of the insured in the property be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the insured, or if the buildings insured stand on leased ground, it must be so represented to the company, and be so expressed in the written part of the policy, otherwise the policy shall be void." Two other stipulations are contained in the policy, which it is important to notice: 1. That "the use of general terms, or any thing less than a distinct specific agreement clearly expressed and indorsed on the policy, shall not be construed as a waiver of any printed or written condition or restriction therein." 2. That the policy is made and accepted in reference to the foregoing terms and conditions, which are declared to be a part of the contract, and may be used and resorted to in order to determine the rights and obligations of the parties to the policy. Nothing was expressed in the written part of the policy indicating or tending to indicate that the interest of the insured in the property purporting to be insured was any other than the entire, unconditional, and sole ownership of such property for the use and benefit of the insured, or indicating or tending to indicate that the buildings insured stood on leased ground. Payment of the alleged loss being refused, the plaintiffs instituted the present suit in the State court, which was subsequently removed into the Circuit Court of the same district, the parties agreeing that the plaintiffs might prove any claim they have under the common counts as if they should add special counts, and that the defendants might prove any defense they have to the action under the general issue, the same as if it was set up in a special plea. Pursuant to that stipulation the parties went to trial and the verdict and judgment were for the plaintiffs in the sum of thirty-seven hundred and thirty dollars damages, with costs of suit. Exceptions were taken by the defendants to the charge of the court, and they sued out a writ of error and removed the cause into this court. Neither title deeds nor evidence of the same was introduced by the plaintiffs, but the defendants admitted at the trial that "the plaintiffs were owners in fee of the land on which the buildings insured stood' at the time of the fire, as appears by the bill of exceptions. Proofs were introduced by the plaintiffs, admitted by the defendants to be in due form, which showed that the buildings described in the policy were, on December 31, 1870, destroyed by fire, and that the property insured belonged to the plaintiffs, subject to the lease mentioned in the proofs so introduced, to which more particular reference will presently be made. Other evidence was introduced by the plaintiffs, but the defendants offered no evidence, and the court directed the jury to return a verdict in favor of the plaintiffs for the amount of the policy, with interest from the expiration of sixty days subsequent to the time the proof of loss was exhibited. Seasonable exceptions were filed to the charge of the court, upon the ground that the lease mentioned in the proofs of loss show that the plaintiffs were not at the time of the loss the entire, unconditional, and sole owners of the property for their own use and benefit. Sufficient ap pears to show that the fee-simple title of the land was in the plaintiffs and that they were the entire owners of the property destroyed, subject to the lease mentioned in the proofs of loss, and it was admitted by the defendants that the fire caused a total loss of the property and that the value of the buildings exceeded the amount of the insurance. By the terms of the lease referred to in the proofs of loss it appears that the instrument was for a term of ten years, from May 1, 1868, to May 1, 1878, and that it covered the land on which the insured buildings stood and the buildings and improvements to be built thereon, having been executed before the buildings were erected, at a rental of three thousand five hundred dollars per annum for the first five years, and five thousand nine hundred and seventy-six dollars per annum for the second five years. Ten buildings were to be erected, to cost not less than twenty-four thousand dollars, and the lesser was to pay one-half the amount in installments, each installment to be one thousand dollars, and to be paid when the lessee had expended twice that amount in the prosecution of the work. Arrangements of a contingent character are also prescribed in case the lease is continued or determined, and for the basis of adjustment in either event and for payment or repayment as the case may be, which it is not necessary to reproduce in the present case. |