ment as between him and the maker of the note is that of a surety. It is a common-law contract, and not a contract known to the law-merchant. It is an absolute promise to pay if the maker does not pay, and the right of action accrues against the guarantor at the moment the maker fails to pay. The guarantor would not be discharged by any neglect or even refusal on the part of the holder of the note to prosecute the principal, even if the maker was solvent at the maturity of the note, and subsequently became insolvent; and the fact that no notice of non-payment was given the guarantor at the maturity of the note, or at any time before bringing suit, would not affect the rights of the holder of the note against the guarantor. The guarantor's remedy was to have paid the note and taken it up, and himself proceeded against the maker. A guaranty is held to be a contract by which one person is bound to another for the due fulfillment of a promise or engagement of a third party. 2 Pars. Cont. 520. The contract or undertaking of a surety is a contract by one person to be answerable for the payment of some debt, or the performance of some act or duty, in case of the failure of another person who is himself primarily responsible for the payment of such debt or the performance of the act or duty. 3 Add. Cont., § I111; 3 Kent Com. 121; Wright v. Simpson, 6 Ves. 734.

In the case of Pain v. Packard, 13 Johns. 174 (de. cided in 1816), it was held that if the surety call upon the creditor to collect the debt of the principal, and he disregarded that request, and thereby the surety is injured, as by the subsequent insolvency of the principal, the surety was thereby discharged. A directly contrary decision was given by Chancellor Kent, upon argument and full consideration, the following year. King v. Baldwin, 2 Johns. Ch. 554. Two years later the last decision was reversed by the Court of Errors by the casting vote of the presiding officer, a layman, and against the opinion of the majority of the judges. King v. Baldwin, 17 Johns. 384.

In the case of Brown v. Curtiss, 2 N. Y. 226 (decided in 1849), the action was brought against the guarantor of a promissory note. On the trial it was admitted that there had been no demand of the maker, nor any notice of non-payment, and that the note was dated April 2, 1838, and payable six months after the date. The suit was brought against the guarantor in September, 1845. The defendant offered to prove that from the time the note fell due until the latter part of 1843, the maker was able to pay the note; that he then failed, and was insolvent at the time of the commencement of the suit, and still remained so. This evidence was objected to, and excluded, and verdict directed for plaintiff. The court says: "The undertaking of the defendant was not conditional, like that of an indorser, nor was it upon any condition whatever. It was an absolute agreement that the note should be paid by the maker at maturity. When the maker failed to pay, the defendant's contract was broken, and the plaintiff had a complete right of action against

*

much good reason. Bellows v. Lovell, 5 Pick. 310; Davis v. Huggins, 3 N. H. 231; Page v. Webster, 15 Me. 249; Dennis v. Rider, 2 McLean, 451.

lu Train v. Jones, 11 Vt. 446, it is said: "An absolute guaranty that the debt of a third person shall be paid, or that he will pay it, imposes the same obligation upon the guarantor. In either case it is an absolute guaranty of the sum stipulated; and the creditor is not bound to use diligence or to give reasonable notice of non-payment." Noyes v. Nichols, 28 Vt. 174. In Bloom v. Warder, 13 Neb. 476, which was an action against the guarantors of payment of a promissory note, the court says: "This is an absolute contract for a lawful consideration, that the money expressed in the note shall be paid at maturity thereof, at all events; and depends in no degree upon a demaud of payment of the maker of the note, or any diligence on the part of the holder. Mere passiveness on the part of the holder will not release the guarantor, even if the maker of the note was solvent at its maturity and thereafter became insolvent. Breed v. Hillhouse, 7 Conn. 528; Bank v. Hopson, 53 id. 454; Foster v. Tolleson, 13 Rich. Law, 53; Machine Co. v. Jones, 61 Mo. 409; Barker v. Scudder, 56 id. 276; Norton v. Eastman, 4 Greenl. 521; Brown v. Curtiss, 2 N.Y. 225; Allen v. Rightmere, 20 Johns. 365; Bank v. Sinclair, 60 N. H. 100; Guge v. Bank, 79 Ill. 62; Hungerford v. O'Brien (Miun.), 34 N. W. Rep. 161.

It follows, that this being an absolute undertaking on the part of the defendant as guarantor to pay the amount of this note at maturity in the event of the default of payment by the principal, the guarantor could not demand any diligence on the part of the holder of the note to collect the same from the principal. It was his duty to perform his contract—that is, to pay the note upon default of the principal; and it is no auswer for him to say that the principal was solvent at the maturity of the note, and that the same could then have been collected of him by the holder, and that he has since become insolvent. If he wished to protect himself against loss, he should have kept his engagement with the holder of the note, paid it upon default of the principal, taken up the note, and himself prosecuted the party for whose faithful performance of the contract he became liable.

The court properly directed the verdict for the plaintiff, and the judgment of the court below must be affirmed with costs.

The other justices concurred.

[To same effect, Newcomb v. Hale, 90 N. Y. 326; S. C., 43 Am. Rep. 173; Bank of Newberry v. Sinclair, 60 N. H. 100; S. C., 49 Am. Rep. 307.-ED.]

INSURANCE-ACCIDENT-EXCLUDED

RISKS-KILLING BY ROBBER.

KENTUCKY COURT OF APPEALS, MAY 28, 1888.

HARTFORD.

A policy against death by "external, violent or accidental means," contained a proviso that no claim should be made under the ticket when the death may have been caused by intentional .njuries inflicted by assured or any other person. Held, that assured having been waylaid and killed for the purposes of robbery, there can be no recovery under such policy.

The weight of authority, both in this country and in England, sustains this doctrine, and we think with

jury was intentionally aimed directly and individually at the insured.

The judgment of the Circuit Court overruling the durrer of the appellee's answer is affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

CONTRACT-One whose only business was selling sand from laud which he owned, having refused to sell a piece of the land, on the ground that it would hurt his business, at last agreed to do so on the vendee's stipulation not to sell sand from it. Held, that the stipulation was not invalid. But the question presented is, upon the conceded facts, really one of individual right, with which the question of public policy has little if any thing to do. Parties competent to contract have contracted, the one to sell a portion of his land, but only upon such conditions as will protect himself in the prosecution of business carried on upon the residue, the other agreeing to buy for a consideration affected by that condition, and enabled to do so only by acceding to it, and he therefore binds himself by contract to limit the use of the land purchased in a particular manner. There seems no reason why he and his grantee, taking title with notice of the restriction, should not be equally bound. The contract was good between the original parties, and it should, in equity at least, bind whoever takes title with notice of such covenant. By reason of it the vendor received less for his land; and the plain and expressed intention of the parties would be defeated if the covenant could not be enforced as well against a purchaser with notice as against the original covenantor. In order to uphold the liability of the successor in title, it is not necessary that the covenant should be one technically attaching to and concerning the land, and so running with the title. It is enough that a purchaser has notice of it; the question in equity being, as is said in Tulk v. Moxhay, 11 Beav. 571; 2 Phil. Ch. 774, not whether the covenant ran with the land, but whether a party shall be permitted to use the land inconsistently with the contract entered into by his vendor, and with notice os which he purchased. This principle was applied in Tallmadge v. Bank, 26 N. Y. 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and was held binding upon a subsequent purchaser with notice, although his legal title was absolute and unrestricted. In Trustees v. Lynch, 70 N. Y. 440, the action was brought to restrain the carrying on of business on certain premises in the city of New York of which the defendant was owner, upon the ground that the premises were subject to a covenant reserving the property exclusively for dwelling-houses. The court below held, among other things, that the covenant did not run with the land, and that the restriction against carry. ing on any business on the premises was liable to conflict with the public welfare, and judgment was given for the defendant. Upon appeal it was reversed; the covenant held to be binding upon a subsequent grantee with notice, as well upon the original covenantor. So the restraint may be against the use of the premises for one or another particular purpose, as that no building thereon shall be used for the sale of ale, beer, spirits," etc., or as an inn, public-house or beer-house" (Carter v. Williams, L. R., 9 Eq. 678); and it is said a man may covenant not to erect a mill on his own lands (Mitchel v. Reynolds, 1 P. Wms. 181). Many other instances of restraint might be referred to; and where it is of such nature as concerns the mode of occupying or dealing with the property purchased in the way of business operations or even the

PUBLIC POLICY-RESTRAINT OF TRADE.

..

omission of all business or certain kinds of business, or the erection or non-erection of buildings upon the property, we see no reason to doubt the validity of an agreement, fair and valid in other respects, which se cures that restraint. Indeed it seems well settled by authority that a personal obligation so insisted upon by a grantor and assumed by a grantee, which is a restriction as to the use of the land, may be enforced in equity against the grantee and subsequent purchasers with notice. Parker v. Nightingale, 6 Allen, 341, 344; Burbank v. Pillsbury, 48 N. H. 475. Nor is it essen. tial that the assignees of the covenantor should be named or referred to. Morland v. Cook, L. R., 6 Eq. 252. In Tulk v. Moxhay, 1 Hall & Tw. 105, it was said that the jurisdiction of the court in such cases is not fettered by the question whether the covenant does or does not run with the land. In that case the purchaser of the land, which was conveyed to him in feesimple, covenanted with the vendor that the land should be used and kept in ornamental repair as a pleasure-garden, and it was held that the vendor was entitled to an injunction against the assignee of the purchaser to restrain them from building upon the land. Upon the appeal, the chancellor (Cottenham) said: "I have no doubt whatever upon the subject. In short, I cannot have a doubt upon it, without impeaching what I have considered as the settled rule of this court ever since I have known it. Where the owner of a piece of land enters into contract with his neighbor, founded, of course, upon a valuable or other good consideration, that be will either use or abstain from using his land in such a manner as the other party by the contract particularly specifies, it appears to me the very oundation of the whole of its jurisdiction to maintain that this court has authority to enforce such a contract. It has never that I know of been disputed." The question before the court was stated to be whether a party taking property with a stipulation to use it in a particular manner, will be permitted by the court to use it in a way diametrically opposite to that which the party has stipulated for. "Of course," he says, "the party purchasing the property which is under such restriction gives less for it than he would have given if he had bought it unincumbered. Can there then be any thing much more inequitable or contrary to good conscience, than that a party who takes property at a less price because it is subject to a restriction should receive the full value from a third party, and that such third party should then hold it unfettered by the restriction under which it was granted? That would be most inequit able, most unjust and most unconscientious; and as far as I am informed, this court never would sanction any such course of proceeding." And in language very applicable to the case before us, he adds: "Without adverting to any question about a covenant running with land or not, I consider that this piece of land is purchased subject to an equity created by a party competent to create it; that the present defendant took it with distinct knowledge of such equity existing; and that such equity ought to be enforced against him, as it would have been against the party who originally took the land from Mr. Tulk." This case is cited and followed, as to restrictive covenants, in many cases. Brown v. Railway Co., 2 Q. B. Div. 406; Railway Co. v. Gomm, 20 Ch. Div. 562, 576. Each case will depend upon its own circumstances, and the jurisdiction of a court of equity may be exercised for their enforcement, or refused, according to its discretion (Trustees v. Thacher, 87 N. Y. 311); but where the agreement is a just and honest one, its judgment should not be in favor of the wrong-doer. Such seems to us the character of the covenant in question. It is restrictive, not collateral to the land, but relates to its use; and upon the facts found, the plaintiff is entitled

to the equitable relief demanded. Brewer v. Marshall, 19 N. J. Eq. 537, is cited by the respondent as requir ing a different construction. The general rules in regard to such covenants are not stated differently in that case; but in the opinion of the court, it was not one for the interference of the court of equity. Among many other cases, Tulk v. Moxhay, supra, is cited; and the learned court say: "It will be found, upon examination, that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced create easements, or are of a nature to run with the land. In some of the instances the language of the court is very clear on this point." And from a "review of the authorities," the court say "it is entirely satisfied that a court of equity will sometimes impose the burden of a covenant relating to lands on the alienee of such lands, on a principle altogether aside from the existence of an easement or the capacity of such covenant to adhere to the title." The only question which the court regarded as possessed of difficulty was whether the covenant then in controversy was embraced within the proper limits of this branch of equitable jurisdiction. By a divided court, an injunction was denied. The circumstances were quite unlike those before us, and the decision furnishes no precedent for us to follow. All concur, except Peckham, J., not voting, and Andrews and Earl, JJ., dissenting, on the ground that the covenant did not run with the land. Oct. 28, 1887. Hodge v. Sloan. Opinion by Danforth, J.

ESTOPPEL BY DEED.-A grantor cannot, after conveying land, estop his grantees and their successors from denying the validity of an incumbrance on the land, by a certificate that such incumbrance is valid and binding on the land. A clause in a deed that the title conveyed shall be "subject to all liens of mortgages" on the land is not an admission, on the part of a subsequent purchaser, that a mortgage which such purchaser had herself signed as wife of a former owner is valid aud binding on the land. June 5, 1888. Purdy v. Coar. Opinion by Finch, J.

NEGLIGENCE-ASSUMP

MASTER AND SERVANT — TION OF RISK.-Plaintiff, who had been for some time a 'longshoreman, while loading defendant's vessel was thrown into the water and injured by the fall of the platform between the vessel and the dock. According to plaintiff's evidence, it is the duty of 'longshoremen to attend to the fastenings of the platform, which is left loose on the shore side, and to regulate the fastenings to the rise and fall of the tide. The platform was in good order, and no neglect was shown on the part of defendant. Held, that plaintiff could not recover. June 5, 1888. Hudson v. Ocean S. S. Co. Opinion by Gray, J.

MISTAKE REFORMATION OF CONTRACTS-WAIVER. -In an action upon a written contract, where defendauts allege a mistake in reducing the same to writing, but do not pray judgment for a reformation of the contract, the defect in the answer is waived, if not raised until after the trial. In such case, if the facts, as found by the court, show that defendants were entitled to a reformation of the contract, the technical error of decreeing a dismissal of the bill instead of a reformation of the contract is not cause for remanding the case, but the decree will be modified to conform to the findings. Where it is sought to reform a written instrument on the ground of mistake in reducing the same to writing, there having been no mis. take in the contract as agreed upon, it is not necessary to allege that the mistake was mutual. June 5, 1888. Born v. Schrenkeisen. Opinion by Earl, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

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ATTORNEYS MISCONDUCT- DISBARMENT OFFERING MONEY FOR TESTIMONY -PROCURING PERSON TO STEAL PAPERS - EVIDENCE.-An attorney, believing a certain paper to be a forgery, hired an expert to examine it. The expert expressed his doubt as to the forgery; and the attorney, supposing that the expert believed the paper a forgery, and only expressed a doubt to extort money, offered him a large sum of money to testify in regard to the forgery. Held, that such conduct was subject to criticism, but not sufficient ground for disbarment. The respondent was charged with procuring one to steal a paper, but the only evidence against him was the testimony of the party who lost the paper that the person who stole it said that respondent had hired him to steal it. Held, that such statement was not evidence, and the respondent could not be disbarred on the charge. However much it may be regretted, we know that experts are often employed and paid large sums for their services, and practically for their testimony; for it often requires labor as well as skill to examine and determine the question upon which an opinion is to be given, and sometimes to prepare an effective exhibit of the facts for the court. The money paid was understood by both parties to be for such services, and I do not believe that Barnes thought that the money would cause the witness to change his opinion or his evidence as to the genuineness of the signature. The respondent knew, or thought he did, that the signature was a forgery, and he seems never to have doubted that Gumpel was of the same opinion, and he regarded, as he well might, the occasional arguments of the witness on the other side as mere intimatious that he wanted some money. Under such circumstances, no doubt, it would have been more in accordance with exalted ideas of propriety for Barues to have denounced the witness and dismissed him, but I doubt whether many practitioners would have acted very differently from the course of the respondent. Lawyers meet and are compelled to contend with all sorts of people. They have in their hands the interests of their client, and they should not permit him to lose the benefit of important testimony upon any refined ideas of propriety. Frequently witnesses whose testimony is essential know the value of their position, and too often attempt to realize upon it. It is a trying thing for an attorney to be placed in a situation where he must deal with such a witness; and while an honorable attorney would be careful to make no payments or promises which could affect the truthfulness of the evidence, all would try to retain the witness, however much he would be compelled to despise him. I have considered the matter entirely from the stand-point of the respondent; and while I think his conduct, according to his own testimony, may justly be criticised, I do not think it sufficient ground for a disbarment. Cal. Sup. Ct., March 2, 1888. In re Barnes. Opinion by Temple, J.

AUCTION-AUCTIONEER BIDDING FOR PURCHASER.— If an auctioneer, without the seller's assent, makes bids for a purchaser, his conduct is fraudulent, and the sale is not enforceable by the purchaser. Whether if due notice was given that the auctioneer would bid for an intending purchaser, and the sale was in other respects unimpeachable, the seller would be estopped from objecting afterward to the sale is not decided. An autioneer is the agent of the seller in making the sale. When however the property is struck off, he becomes also the agent of the purchaser to the extent of binding both parties by his memorandum of sale. Up to this point his duty is to the vendor. Bateman Auc.

*20, *126, note (x). It is a well settled rule that a trustee or agent cannot buy the property of his principal, because of the inconsistent relations that he would thus hold as purchaser and seller. Story Ag., § 211; Bateman Auc. *125; Michoud v. Girod, 5 How. 503; 2 Sugd. Vend. (14th Am. ed.) 687. These rules were most carefully examined on principle and authority by Chancellor Kent in Davone v. Fanning, 2 Johns. Ch. 252. In this case a sale by a trustee at public auction, bona fide and for a fair price, to a third person as agent for the trustee's wife, was set aside, although the wife was a cestui que trust, and had an interest in the estate sold. Among the cases cited was Ex parte Bennett, 10 Ves. Jr. 381, where a solicitor to a commission in bankruptcy made bids for a third party. The sale was set aside upon the ground that if a trustee or agent cannot bid for himself, upon the same principle he cannot bid for another. Lord Eldon held, that although the temptation in the latter case is weaker, "that distinction is too thin to form a safe rule of justice." In Twining v. Morrice, 2 Bro. C. C. 326, specific performance was denied where the seller's agent at an auction sale bid for the plaintiff. In Veazie v. Williams, 8 How. 134-152, Judge Woodbury expresses the opinion that to allow an auctioneer to bid for another would tend to weaken his fidelity in the execution of his duties to the owner. In Brock v. Rice, 27 Gratt. 812, the following rule is laid down: "No person employed or concerned in selling at a judicial sale is permitted to become a purchaser, or even to act as agent of a purchaser. It is impossible with good faith to combine the inconsistent capacities of seller and buyer, crier and bidder, in one and the same transaction. If the commissioner or auctioneer faithfully discharges his duties, he will of course honestly obtain the best price he can for the property. On the other hand, if he undertakes to become the purchaser for himself or for another, his interest and his duty alike prompt him to obtain the property on the most advantageous terms. There is an irreconcilable conflict between the two positions. And so the courts have always held." In respect to the duty of the auctioneer there is no distinction between a judicial and an ordinary auction sale. In this State an auctioneer is an officer elected especially for the purpose of securing fair dealing at such sales. The only case that has come to our attention which holds that an auctioneer may bid for another is Scott v. Mann, 36 Tex. 157. The report of this case is not clear upon this point, and it is quite possible that the auctioneer took only one bid from the purchaser, and made that bid at the sale, which would be very different from bidding gradatim in his behalf. Taking the case however as it stands, we think it is overborne both by reason and authority. But it may be urged that as no one increased the bid of the purchaser no harm was done to the defendant. This is not a sufficient answer. The conduct of an auction sale is so completely in the hands of an auctioneer that it is an easy thing for him to strike off property according to his interest, even though by further urging other bids might be made. It is not enough to say to the seller, "You cannot prove that I could get more." There must be no room for temptation and the hazard of abuse. Upon this ground the sales for a fair price have been set aside in some of the foregoing cases. See also Sugd. Vend. (14 Am. ed.) 689, 5, and note s. The burden is on the complainant, who seeks to compel a performance to show that he fairly bought the property at a fair sale. By the unlawful conduct of the agent whom he selected, whose duty he should have known was to the defendant, he did not fairly purchase at a fair sale, and consequently he is not entitled to the relief he asks. R. I. Sup. Ct., Feb. 18, 1888. Randall v. Lautenberger. Opinion by Stiness, J.

BANKS-CONVERSION OF SPECIAL DEPOSIT-INSOLVENCY-PREFERENCE OF DEPOSITOR. The plaintiff deposited certain bonds with a banker for safe-keeping, which he wrongfully sold and applied to his own use. The proceeds found their way into the hands of his assignee for the benefit of creditors. Held, that the plaintiff had a paramount right to be first paid out of the assets. This case is clearly ruled by the decisions in McLeod v. Evans, 66 Wis. 401, and Francis v. Evans, 33 N. W. Rep. 93, unless those cases are to be overruled. A majority of the court are not disposed to disturb them, or modify the doctrine laid down in them. It seems inequitable that the general directors should profit by, or have the benefit of the fraud committed by the assignor in respect to these bonds; for Hodges never owned them; they were never a part of his estate by right, but by a gross violation of trust amounting to a crime, he mixed this trust property with his own, and the assignee seeks to hold it for the benefit of all the creditors. The plaintiff has a paramount right to be first paid out of the assets. This is the doctrine of the cases decided by the court, which we see not sufficient reason for changing. It was not my purpose at this time to enter upon a discussion of the principles upon which these cases rest. Enough is said in the opinions to indicate our views upon that subject. I shall make but one further remark. Among the authorities cited to sustain the decision in the McLeod case was People v. Bank, 96 N. Y. 32, which as reported would seem to be in point. In that case the court says that the object of Sartwell, Hough & Ford, in drawing and depositing their checks with the bank, was to provide a fund for the payment of the specific notes mentioned, and the engagement of the bank was thus to apply the fund. "Thus a trust was created, the violation of which constituted a fraud, by which the bank could not profit, and to the benefit of which the receiver is not entitled. * ** The checks were impressed with a trust, and no change of them into any other shape could divest it so as to give the bank or its receiver any different, or more valid claim in respect to them than the bank had before their conversion." The decision of the same court in Cavin v. Gleason, 105 N. Y. 256, would seem to be in direct conflict with that in the Bank case. The court however say in Cavin v. Gleason that the case of People v. Bank seems to have been misunderstood; that it was not claimed in the latter case that the proceeds of the checks of Sartwell & Co., the petitioners, had not gone into the general funds of the bank, or that they had not passed in some form to the receiver. In fact what the case does show upon that point is that these checks were marked paid, and the amounts were deducted from the deposits of the drawers in the bank. But the notes themselves, which the checks were intended to pay, were not owned by the bank, but had been previously sold, and the avails used in its business, as we infer. These are the facts as we understand them. We shall not attempt to reconcile these cases in New York. It is sufficient to say that a majority of this court adhere to the decisions which we have made, and which clearly dispose of every point relied on in the case at bar for a reversal of the judg ment of the court below. Wis. Sup. Ct., Feb. 28, 1888. Bowers v. Evans. Opinion per Curiam. Taylor and Cassoday, JJ., dissenting.

CRIMINAL LAW CLAIM OF RIGHT — PUBLICITY OF TAKING. Where one went to a milk wagon, of which he had formerly been the driver, while it was standing in a public street, took from it a bell, rang it loudly for some time, and upon the non-appearance of the driver, left word with a by-stander that he had taken his bell, and where it appeared that he had bought the bell pending his employment as driver, and upon his discharge had left it, and his successor