court interpolate words into the statute not necessary in construing it, nor sanctioned by its language, or purpose, by limiting it to principals. If the law is wrong, if agents should not be included in its provisions, if any modification is desired, the remedy is with the law-making power and not the courts. Let the Legislature insert a provision in the law, "unless made by an agent,' ," but until then the courts have a plain duty to perform to enforce the law. In the language of the able opinion in Pearson v. Bailey, "No consideration arising out of the relation of principal and agent can divest the loan of its usurious character, or deprive the borrower of his right to set it up against the lender." SAMUEL MAXWELL.

Fremont, Neb., May 1881.

Southern Law Review.

In September, 1869, the defendant, for $100, 000, purchased lands in Rye, Westchester County, and satisfied the price thereof. He, for reasons which do not appear, directed the deed therefor to be made out to one Fay, who was then in his employment, and who accepted the conveyance at his request, and upon an oral understanding that he would hold the premises subject to the order and for the convenience of the defendant. On December 9, 1871, at the request of the defendant, and in execution of the trust and confidence so reposed in him, and upon no other consideration, Fay conveyed the premises to the plaintiff, who is the son of the defendant. The plaintiff gave no consideration whatever either to Fay or the defendant for such conveyance or the premises described therein. At this time, the defendant was in the habit of reposing great confidence in the plaintiff, and making or procuring to be made to him conveyances of lands belonging to or purchased by the defendant, in the trust and confidence that the plaintiff would dispose of such lands and premises for the use and benefit of defendant, and as he might direct and request, and at the time of the conveyance from Fay the plaintiff expressly agreed with the defendant, although not in writing, to hold the title to the premises described therein for his use, benefit, and convenience, and subject to his order. The defendant, at the time of his purchase, went into the actual possession of the premises, and notwithstanding the conveyance to Fay, and that from Fay to the plaintiff, continued in possession thereof by himself or his tenants, and received at all times the proceeds and rent of the land,

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and solely and without direction from the plaintiff managed the property. In October, 1872, at the request and for the benefit and convenience of defendant, the plaintiff conveyed the premises to Fredrick J. Ferris and John Shillito Jr., for the consideration expressed on the conveyance of $100,000. To secure payment of part of this purchase-money they executed to the plaintiff two bonds and mortgages upon the premises, one for $45,000, the other for $15,000. The $15,000 bond and mortgage was subsequently, in July, 1873, sold by the defendant for his own benefit, and by his direction the plaintiff executed to the purchaser an assignment thereof, the defendant then claiming to be the owner of the property and giving a reason (which involved no immoral or illegal purpose) why he had the title in his son's name, and the latter, although present, neither "contradicted, denied, or questioned it." The other bond and mortgage, which is the one now in question, were a few days after execution, with the knowledge and consent of the plaintiff, delivered to the defendant, and have since remained in his custody. These facts are found by the trial court. In November, 1879, the plaintiff demanded of his father the bond, and being denied commenced this action in February, 1880, for the purpose of having it adjudged" that he is the sole owner and holder of the bond and mortgage," and entitled to the immediate possession thereof from the defendant. Thus the facts which were not in writing have in a litigation moved by the plaintiff been found to exist, and upon them the court is to say "whether the plaintiff hath title in conscience to recover or not."

DANFORTH, J. In the first place it is obvious that a clear and absolute trust in the plaintiff in favor of the defendant was established in regard to the premises conveyed to the former by Fay, which a court of equity would recogniz and enforce (McCartney v. Bostwick, 32 N. Y. 53 unless prevented by the statute ($ 51 and 6 infra). But here we are to consider that the defendant is not in court of his own motion. He is brought in by the plaintiff, who is compelled to come here and ask for relief which he cannot obtain elsewhere. He concedes the defendant's

case, but to defeat it relies upon the statute (§ 51, tit. 2, pt. 2, c. 1, art. 2, 1 K. S. 728), which declares that "where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance," subject to an exception in favor of creditors of no importance here.

The existence of a state of facts embraced in this provision, and but for which the defendant would have a clear case, is assumed by the learned counsel for the respondent, and the claim made that under these circumstances the defendant cannot make out a trust "except by a writing declaring the trust and subscribed by the plaintiff," relying in support of this proposi

tion upon §6, tit. 1, pt. 2, c. 7, page 134, vol. 2, R. S., which prescribes these formalities in the creation of certain interests in lands.

It may, however, be observed at the outset that it is also provided by the same statute ($10) that the provisions of that title shall not be construed to abridge the powers of courts of equity to compel the specific performance of agreements, in cases of part performance of such agreements, and that it is the well settled doctrine that in cases of fraud, equity will relieve even against the words of a statute. The question then is, whether the plaintiff has such a right to the bond and mortgage in controversy as a court of equity will enforce; or, to bring the question into narrower compass, whether provisions of law intended to prevent fraud can be successfully invoked to secure to a wrong-doer the fruits of his iniquity. The answer is easy. See Reech v. Kennegal, 1 Ves. 123; Nelson v. Worrall, 20 Iowa 469; Haigh v. Kaye, L. R. 7 Chan. App. Cas. 469. The same principle has frequently been acted upon by this court. Ryan v. Dox, 34 N. Y. 307; Wheeler v. Reynolds, 66 ld. 227, in both of which cases a full and care

ful examination was made of the reasons and authorities on which it rests. Indeed, the decisions are all one way. They establish as a fundamental doctrine of a court of equity that the statute of frauds was not made to cover fraud. In the cases especially referred to the wrong doer was forced into court. In this case he comes in voluntarily asking the court to aid him in the perpetrating of his fraud, and without even the poor excuse found in other cases that by the conveyance to him that defendant meditated a fraud on others.

In the next place the plaintiff is not entitled to have the statute ($51 ante) strained in his favor, and taken literally it does not cover his case. The grant to him was from Fay; and for that no valuable consideration was paid; Fay conveyed because in common honesty and in fulfillment of his trust he was bound to convey. The plaintiff's claim is stricti juris. The statute (§ 51 now invoked by the plaintiff, if operative in such a case, and according to the plaintiff's claim, was effectual as between Fay and the defendant and vested in the title so completely that the defendant had no legal or equitable interest in the land. Garfield v. Hatmaker, 15 N. Y. 475. He had a right, however, to recognize his moral obligation and convey it to such person as he chose; Siemon v. Schurck, 29 N. Y. 598; Foote v. Bryant, 47 lb. 544; and upon such conditions as the defendant thought fit to impose or prescribe. It was the plaintiff's promise to perform those conditions which led to the execution of the deed to him.

But another and conclusive answer to the plaintiff's case is that, as by his express agreement he was to hold the title to the land conveyed "for the use, benefit, and convenience, and subject to the order, of the defendant," he did, in consummation of the sale to Ferris and Shillito, by direction of the defendant, and for

his benefit and convenience, execute a deed to them. At the same time possession went to them from the defendant. The trust was executed, and whether the defendant could have compelled it or not, is immaterial. The plaintiff responded to the call of his cestui que trust, and from that moment had no further concern or interest, real or apparent, in the property. His whole duty as trustee was discharged. Nothing then remained but a right to the purchase-money, and this vested at once in the defendant. Although the bond and mortgage in form ran to the plaintiff, he took as trustee for the defendant by implication of law, if not by agreement. Those securities were personal property only, and had no relation to the statute.

It is not necessary to inquire whether the defendant could by any legal prceeding have compelled the plaintiff to convey the lands; he has done so in performance of his undertaking and without compulsion. Nor is it necessary to inquire whether, if he had received the consideration of the deed in money, it could have been taken from him. He did not receive it, and is in a court of equity seeking to obtain it. We have found no ground upon which the claim can stand.

Judgment reversed, complaint dismissed, and bond and mortgage adjudged the property of the defendant.

CRIMINAL LAW.

SUPREME COURT OF NEBRASKA.

RAY v. STATE OF NEBRASKA.

June 22, 1882.

At the November term, 1880, of the district court of F. county, T. J. W. was indicted, tried,and convicted of horse stealing. On the same day J. R. was indicted, tried, and convicted for having concealed the said T. J. W. shortly after he had stolen the said horse, knowing him to be a horse thief. T. J. W. brought his case to this court on error, when the judgment of the district court against him was reversed and the cause remanded to the district court, in which last-named court the said T. J. W. was discharged on his personal_recogniThe case zance to appear at the next term of court.

of J. R. being also before this court on error, held, without examining the errors assigned, that the judgment of the district court be reversed.

Совв. J.

The

The plaintiff in error was indicted, tried, convicted, and sentenced for a term of six years in the penitentiary for the offence of concealing Thomas J. Wells, an alleged horse thief. record is brought to this court on error. On the same day on which Ray was tried and convicted, Wells was tried and convicted of the crime of stealing a horse, being the same offence of which it is alleged that Ray knew him to be guilty when he concealed him. That case was brought to this court on error, and the judgment of conviction reversed. Wells v. State, 11 Neb. 409; The cause was remanded to the district court, and Wells discharged on his personal recognizance. The is spectacle thus presented of a man serving as a felon in the penitentiary for concealing a horse

thief, while by virtue of the judgment of this court the alleged horse thief himself has had the brand of felony removed from him and is enjoying his liberty. While there is no bill of exceptions accompanying the record in this case, and so we cannot tell upon what testimony Ray was convicted, yet it will be presumed that the record of Wells' conviction and the judgment against him was a necessary and indispensable part of it. That record has been pronounced erroneous, and reversed. I therefore concieve it to be the duty of this court, having jurisdiction of the cause by virtue of the petition in error, to reverse the judgment in this case.

The judgment of the district court is therefore reversed, and the cause remanded for further proceedings in accordance with law.

TRESPASS BY RAILROAD COMPANY.

SUPREME COURT OF MINNESOTA. LEBER V. MINNEAPOLIS & N. W. Ry. Co.

July 3. 1882.

Mere silence, in the presence of a wilful trespass upon one's property, waives nothing and consents to nothing. The commencement of the construction of its road by a railroad company upon the land of a private person without his consent, or without first having paid or secured to him compensation, is a trespass for which a right of action immediately accrues. In subsequent condemnation proceedings by the railroad company to acquire the right of constructing the road over such land it is not regularly proper for the commissioners or the jury, in case of appeal, to include in their assessment the damages which the land-owners suffered prior to the filing of the commissioners' award.

For all such damages the land-owner has his remedy as for trespass.

If, however, the question of the damages thus suffered before the filing of the award is in fact litigated, in connection with the matter properly before the commissioners or the appellant tribunal, as the case may be, submitted for determination, passed upon, and the amount of the damages included in the award (as shown by the award itself) and payment thereof received by the land-owner, the result is a conclusive settlement and satisfaction of such damages, notwithstanding the irregular character of the proceedings.

It seems, also, that, even if payment had not been received, the damages would be regarded as res ad judicata. This being an action for the recovery of damages of the character mentioned, viz., damages to plaintiff by trespass committed before the filing of an award in condemnation proceedings, the following question was properly permitted to be put to one of plaintiff's witnesses, who saw the plaintiff's land before the filing of the award, and after defendant's trespass thereon: "Considering the property as you saw it when you were there, with the cut through it, * * * what, in your opinion, would the market value of that property be lessened at that time by reason of that cut through it, as it was then, supposing the defendant had gone off and

abandoned it afterwards?"

BERRY, J.

1. The plaintiff complains that between July 1 and October 1, 1880, defendant, "with its agents, contractors, and large force of men, entered upon his land and committed trespasses by digging," etc. Defendant answers that the acts complained of were done by sub-contractors of a railroad company with which defendant had contracted for the construction of a railroad from

Minneapolis to Ossea, Which defendant was engaged in constructing, and that in order to construct the same it was necessary to enter upon plaintiff's land and dig, etc. This is in effect an admission that the work constituting the acts complained of was done under a contract entered into by defendant, or in other words that defendant had contracted for its performance, and thereby directed it to be done. In such circumstances defendant's liability is the ordinary liability of one who commands or directs the commission of a trespass. The rule by which an employer is relieved from responsibility for the negligence of a sub-contractor working by the job, has no application here.

2. This action is brought to recover damages for the trespass mentioned, and as a defence the answer sets up certain condemnation proceedings in which and on October 1, 1880, an award was made by commissioners for defendant's appropriation for its right of way of the strip of plaintiff's land upon which the trespasses were committed. Defendant also alleges an acceptance by plaintiff of the amount awarded by a jury upon appeal from the commissioners. It appeared in the case that the plaintiff, although he saw the trespassers at work upon his premises, remained silent. He testifies that he did so from fear of violence, though this does not seem to be important, except, perhaps, to rebut any claim that his silence was intended as a sanction. It is contended on defendant's behalf that plaintiff's silence and failure to institute proceedings were a waiver of his right to prepayment of compensation for the appropriation of his property-a consent that the work might go on, or a license to that effect.

There is no rule of law that requires a property owner, in order to save his rights, to enter into an argument with a wilful trespasser, or to forbid him to commit the trespass. He is under no obligation of any kind to utter a word of remonstrance or objection, but may rely upon the law of the land for his redress. His mere silence in the presence of the trespass waives nothing and consents to nothing. In this state, where the rule is that a railroad company has no speck of right to commence the constrution of its road upon the land of a private person without his consent, or without first having paid or secured to him compensation, (Gray v. Railroad Co. 13 Minn. 315; Harsh v. Ry. Co. 17 Minn. 439,) it follows that the commencing of such work without consent, payment or security, is a trespass for which, as a matter of course, a right of action immediately accrues.

The rule first announced in this State in Winona R. Co. v. Denman, 10 Minn. 267, (Gil. 208,) and which has been steadily adhered to, is that the assessment of compensation in condemnation proceedings is to be made as of the time of the filing of the award of the commissioners -that is to say, the assessment is to be made with reference to the value and condition of the premises at that time, (Sherwood v. Railroad Co., 21 Minn. 122; Warren v. Railroad Co. Id. 424;

Carter v. Railroad Co. 22 Minn. 342;) and hence damages for any trespass upon the premises committed before that time are not regularly proper to be taken into account in making up the award. From all this it follows that in this state there is no such thing as a waiver of prepayment of compensation for property taken under the eminent domain upon any theory or idea that compensation for damages, whether by trespass, consent, or license, before the filing of the award, can properly be included in the award, as such, and therefore the authorities which hold a contrary doctrine elsewhere are not applicable here. It further follows that as respects damages for trespass committed before the filing of the award, though committed in the course of the construction of the road, the landowners must have a remedy outside of the condemnation proceedings and the award thereon, or he has none at all which he can enforce. Nevertheless, if the question of damages (by trespass, consent, or license) suffered before the filing of the award is in fact litigated in connection with the matter properly before the commissioner or the appellate tribunal, (as the case may be), submitted for determination, passed upon, and the amount of the damages included in the award, (as shown by the award itself,) and payment thereof received by the claimant, the result is a conclusive settlement and satisfaction of such damages, notwithstanding the irregular character of the proceedings. Even if payment has not been received, it is very likely that the damages would be regarded as res adjudicata though this case does not necessarily call for a decision on that point. But unless the award shows upon its face that it includes the damages spoken of, it would be presumed that it included only what it should properly include, namely, compensation for the appropriation of the claimant's land, with sole reference to its value and condition at the time when the award was filed, and it would not be admissible to show by evidence dehors the award that the damages mentioned were included in it. We are therefore of opinion that upon the trial of this action below, the court was right in excluding the evidence offered for the purpose of showing that upon the trial in the condemnation proceedings a part at least of the grounds upon which damages are claimed in the present action was submitted to the jury to be considered by them in arriving at their verdict. No claim was made that the verdict, which was the award of the jury, showed that it included any such damages, or was anything but the ordinary verdict, fixing the compensation to which the landowner was entitled for appropriation of his land as of the date of the filing of the commissioners' report.

This, we believe, disposes of all the errors assigned by defendant except one. R. P. Russell, (one of the commissioners,) called as a witness by the plaintiff, was asked the following question, defendant excepting: "Considering the property as you saw it when you were there, with the cut through it, *** what, in your opin

ion, would the market value of that property be lessened at that time by reason of that cut through it, as it was then, supposing they [i. e. the defendant] had gone off and abandoned it afterwards?" The time referred to in the question is the time at which the witness, as commissioner went upon the premises to examine them prior to the making of the award. The defendant's principal objection is to the latter part of the question, viz., "supposing they had gone off' and abandoned it." But we do not perceive that these words really add anything substantial to what precedes them. The object of the question was to find out what damage had been done to the plaintiff's property when the witness saw it, "as it was then" in the exact language of the inquiry; that is to say, what damage had the defendant suffered up to that time. The amount of that damage was a measure of plaintiff's recovery, without reference to what the defendant might do afterwards, upon taking proper condemnation proceedings, or otherwise.

This seems to us to have been the scope of the question, and we think it was properly allowed. It is, of course, not claimed that the defendant did anything subsequently to make the damage any less than it then was. It is not perceived that the correctness of the ruling of the court in admitting the question is affected by what came out upon defendant's cross-examination of the witness.

The order denying a new trial is affirmed PROMISSORY NOTE-BURDEN OF PROOF. SUPREME COURT OF IOWA.

DARROW v. BLAKE.

July 12, 1882.

Where the transferee of a fraudulent note seeks to rocover thereon, he has the burden of showing that he purchased it in good faith; and where the transferoo is a partnership, the burden is on the partnership to show that all the members were ignorant of the fraud at the time of the purchase.

Action upon a promissory note. The defendant admits the execution of the note, but avers that the same was obtained from him without con

sideration, and by fraud. There was a trial by jury, and verdict and judgment were rendered for the defendant. The plaintiffs appeal. ADAMS, J

The note was executed payable to the order of the maker, and indorsed by him in blank, and given to one Parsons, who transferred it before maturity and for a valuable consideration. to the plaintiffs, who are partners. The note was given under an arrangement whereby the defendant was to become the agent of the Amerrican Hog Cholera Cure Company, of Eureka, Iowa. Without setting out in detail the facts relied upon by defendant, it is sufficient to say that there was evidence tending to show that the note was procured by fraud, as the defendant avers. Upon this evidence the court instructed