Berkshire jubilee, on which occasion he delivered an oration of surpassing beauty and eloquence, a friend asked him if he retained an attachment for his native

county, when he promptly replied: "It is a part of my

religion to go back there once a year."

To him, "ever bright was the beautiful land of his birth." Such a man (as might be expected) was most exemplary in all his domestic relations. It was in the sanctuary of home where his character appeared most lovely and beautiful, for he was ever its light and joy.

He was for many years a communicant of the Reformed Dutch Church of Utica. In his religious life and profession there was nothing of cant or ostentation, He believed that "the christian was the highest style of a man," and he justified this statement by his own christian example. Though he was never in any sense of the term a bigot, yet Rationalsim and Pantheism (which is but "a sort of philosophical Atheism ") could elicit no sympathetic response from his bosom, that ever glowed with a true love for humanity.

A few tributes (from among many) to the great legal abilities and moral worth of Mr. Spencer will bring this sketch nearly to a close.

J. Fenimore Cooper, the world renowned author, in one of his libel suits with the late Thurlow Weed (in which Mr. Spencer was the counsel opposed), on rising to address the jury (for he acted in his own behalf) spoke of Mr. Spencer in the following terms: "He had almost made it seem that he (Mr. Cooper) was the aggressor. The opposing counsel is a man whose presence is of great dignity; whose voice is majestic, and whose very stature gives force to the words he utters." My authority for this statement is the address of the Hon. Philo Gridley, delivered at the meeting of the members of the Oneida county bar April 27, 1857, on occasion of the death of Mr. Spencer.

Judge Gridley at the meeting of the bar referred to, in his address, said (among other things) of Mr. Spencer: He illustrated and adorned his arguments from the facts in the case, and these he often presented with a Doric majesty. When he rose to a matchless eloquence, his words glowed with a living fire."

The Hon. W. J. Bacon said of Mr. Spencer on the same occasion, that "a tide of personal recollections came over him which rendered him incompetent to pay a suitable tribute to an uncommon man. He was a friend, tender and faithful, just and kind. He was magnanimous in all the relations of life as a lawyer, spurning all mere technicalities. As he was not a writer the world can never know except by tradition the extent of his power and the range of his mind."

The Hon. Francis Kernan said that Mr. Spencer "never put forth his talents unless firmly persuaded that he was exerting them in the cause of truth and for the ends of justice."

Hon. Hiram Denio said that Mr. Spencer "had become one of the foremost men of the profession, and had maintained that rank until the day of his death. No man within his knowledge or information had acquitted himself for a life-time with such universally distinguished ability."

The Hon. D. Wager said: "Mr. Spencer was a lawyer of great learning and ability. His legal skill in the trial of causes and his towering and commanding eloquence made him one of the brightest ornaments of the profession to which he belonged."

The Hon. Mitchell Sanford at the general term of the Supreme Court of this State, held a short time after Mr. Spencer's decease, paid a most beautiful and eloquent tribute to his memory. "The press," said he, "has noticed his decease in fitting words as a public calamity, for he was a public man and had filled a large space in the public eye. He battled with giants because he was strong. He achieved greatness among the great. His eloquence God gave him in a great heart full of feeling, simplicity and truth."

Mr. Spencer was for many years a trustee of Hamilton College. In the historical discourse delivered in July, 1862, at the semi-annual celebration of the founding of Hamilton College, the Rev. Dr. S. W. Fowler, then president of the institution, among other things said of Mr. Spencer: "As a lawyer he illustrated and ennobled his profession. In the face of obstacles that would have deterred most men, he worked his way to a position at the har among the first of the laud. But his distinction arose not alone from his intellectual energy. It was higher than that won by forensic triumphs. He was a man of noble and generous impulses. His unselfish spirit prompted him to act for others, while religion consecrated all that was natural, and superadded its own peculiar excellence."

Hon. Ward Hunt, a justice of the United States Supreme Court, while he was yet a practicing lawyer, and engaged in a cause of great importance in which Mr. Spencer was the counsel opposed, paid the following tribute to his commanding talents: "Mr. Spencer is like Saul among his brethren, head and shoulders above us all."

Joshua Austin Spencer departed this life on the 25th day of April, 1857. His severe and incessant professional labors had served doubtless to shorten his stay on earth. During his last illness religion imparted to him her sweet and precious consolations, and upon his rejoicing spirit (soon to be liberated from the thraldom of earth) was already breaking the dawn of a bright and an eternal day. He passed away without a cloud and in the "glorious sublimity" of a triumphant faith. His mortal vestments were committed by gentle hands and with sorrowing hearts to the family lot in Forest Hill cemetery, Utica. Above them rises a plain granite monument on which is inscribed the following beautiful, truthful and comprehensive epitaph: "Joshua A. Spencer. Died April 25, 1857. Aged 67 years. Majestic in presence, strong in intellect, simple in manners, sincere in faith, active and benevolent in life, fearless and hopeful in death."

A lifelike and full length portrait of Mr. Spencer, as he appeared when addressing a jury, is now in the court room at Utica.

Mr. Spencer, as we have thus seen, rose from humble beginnings to become one of the brighest luminaries that ever adorned the bar of this State. A clothier, a carpenter, a school teacher, a lawyer, a senator, and a christian gentleman-what a commendable and praiseworthy example was his to leave to those young men of our land who have entered the legal arena where learning, and ability, and perseverance, and toil, and integrity are required for achieving signal success and for securing an honorable renown!

Let the young man who cherishes a laudable ambition for pursuing the study of the law repair often to the tomb of Spencer, for

"Such graves as his are pilgrim shrines;" and as he shall stand by the granite structure that rises above his ashes, and read the noble epitaph inscribed thereon to his memory, he cannot fail to gather fresh incentives for assuming the honorable robes of a profession distinguished for its learning and venerable for its antiquity, by silent and solemn contemplations on the life and career of the illustrious advocate, whose character was so singularly beautiful, and around whose history clusters such a bright constellation of ennobling virtues.

Section 6 of the act of Congress of August 15, 1876, providing that executive officers of the United States " are prohibited from requesting, giving to or receiving from any other officer or employee of the government, any money or property, or other thing of value for political purposes,' and making it a misdemeanor to do so, is constitutional.

PETITION by Newton Martin Curtis for a writ of

habeas corpus. The opinion states the facts. WAITE, C. J. In the act of August 15, 1876, making appropriations for the legislative, executive, and judicial expenses of the government (ch. 287, 19 Stat. 143; 1 Sup. Rev. Stats. 245), the following appears as section 6:

"SEC. 6. That all executive officers or employees of the United States not appointed by the president, with the advice and consent of the senate, are prohibited from requesting, giving to, or receiving from, other officer or employee of the government any money or property or other thing of value for political purposes; and any such officer or employee, who shall offend against the provisions of this section shall be at once discharged from the service of the United States; and he shall also be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not exceeding five hundred dollars."

Curtis, the petitioner, an employee of the United States, was indicted in the Circuit Court for the Southern District of New York, and convicted under this act for receiving money for political purposes from other employees of the government. Upon his conviction he was sentenced to pay a fine and stand committed until payment was made. Under this sentence he was taken into custody by the marshal, and on his application a writ of habeas corpus was issued by one of the justices of this court in vacation, returnable here at the present term, to inquire into the validity of his detention. The important question presented on the return to the writ so issued is whether the act under which the conviction was had is constitutional. The act is not one to prohibit all contributions of money or property by the designated officers and employees of the United States for political purposes. Neither does it prohibit them altogether from receiving or soliciting money or property for such purposes. It simply forbids their receiving from or giving to each other. Beyond this no restrictions are placed on any of their political privileges.

That the government of the United States is one of delegated powers only, and that its authority is defined and limited by the Constitution, are no longer open questions; but express authority is given Congress by the Constitution to make all laws necessary and proper to carry into effect the powers that are delegated. Art. 1, sec. 8. Within the legitimate scope of this grant Congress is permitted to determine for itself what is necessary and what is proper.

The act now in question is one regulating in some particulars the conduct of certain officers and employees of the United States. It rests on the same principle as that originally passed in 1789 at the first session of the first Congress, which makes it unlawful for certain officers of the treasury department to engage in the business of trade or commerce, or to own a sea vessel, or to purchase public lands or other public property, or to be concerned in the purchase or disposal of the public securities of a State, or of the United States (Rev. Stat., sec. 243); and that passed in 1791,

which makes it an offense for a clerk in the same department to carry on trade or business in the funds or debts of the States or of the United States, or in any kind of public property (id., sec. 244); and that passed in 1812, which makes it unlawful for a judge appointed under the authority of the United States to exercise the profession of counsel or attorney, or to be engaged in the practice of the law (id., sec. 713); and that passed in 1853, which prohibits every officer of the United Stares or person holding any place of trust or profit, or discharging any official function under or in connection with any executive department of the government of the United States, or under the senate or house of representatives, from acting as an agent or attorney for the prosecution of any claim against the United States (id., sec. 5498); and that passed in 1863, prohibiting members of Congress from practicing in the court of claims (id., sec. 1058); and that passed in 1867, punishing, by dismissal from service, an officer or employee of the government who requires or requests any working man in a navy yard to contribute or pay any money for political purposes (id., sec. 1546); and that passed in 1868, prohibiting members of Congress from being interested in contracts with the United States (id., sec. 3739); and another, passed in 1870, which provides that no officer, clerk, or employee in the government of the United States shall solicit contributions from other officers, clerks, or employees for a gift to those in a superior official position, and that no officials or clerical superiors shall receive any gift or present as a contribution to them from persons in government employ getting a less salary than themselves, and that no officer or clerk shall make a donation as a gift or present to any official superior (id., sec. 1784). Many others of a kindred character might be referred to, but these are enough to show what has been the practice in the legislative department of the government from its organization, and so far as we know, this is the first time the constitutionality of such legislation has ever been presented for judicial determination.

The evident purpose of Congress in all this class of enactments has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope of legislative power, and it is not easy to see why the act now under consideration does not come fairly within the legitimate means to such an end. It is true, as is is claimed by the counsel for the petitioner, political assessments upon office-holders are not prohibited. The managers of political campaigns, not in the employ of the United States, are just as free now to call on those in office for money to be used for political purposes as ever they were, and those in office can contribute as liberally as they please, provided their payments are not made to any of the prohibited officers or employees. What we are now considering is not whether Congress has gone as far as it may, but whether that which has been done is within the constitutional limits upon its legislative discretion.

A feeling of independence under the law conduces to faithful public service, and nothing tends more to take away this feeling than a dread of dismissal. If contributions from those in public employment may be solicited by others in official authority, it is easy to see that what begins as a request may end as a demaud, and that a failure to meet the demand may be treated by those having the power of removal as a breach of some supposed duty, growing out of the political relations of the parties. Contributions secured under such circumstances will quite as likely be made to avoid the consequences of the personal displeasure of a superior, as to promote the political views of the contributorto avoid a discharge from service, not to exercise a

532, the defendant, as lessee of the plaintiff, had covenanted with the plaintiff to pay all the assessments imposed during the term upon the demised premises. The Court of Appeals held that upon breach the lessor could recover the full amount of these assessments, although they had not been paid by the plaintiff, nor had any proceedings been instituted by the public authorities to enforce collection.

In these two cases it was the property only of the plaintiffs which could be held for the debt, and it does not appear that there was any other mode of compelling the defendant to pay, save by action of the plaintiff.

In Port v. Jackson, 17 Johns. 239, Port, as lessee, and Jackson, as assignee of the term and terre-tenant, were both liable to the landlord for the rent of the demised premises, and Jackson covenanted with Port that he would pay it. Having failed it was held that Port could recover from Jackson the whole amount of the rent in arrears, although he himself had not paid it.

So in Matter of Negus, 7 Wend. 499, Sinnott and Negus, as partners, were jointly liable for certain debts, and Negus gave Sinnott his bond conditioned for their payment. The court decided that Sinnott was entitled to the amount of the debts as damages upon his bond, although the debts still remained unpaid.

In Loosemore v. Radford, 9 M. & W. 657, the defendant as principal, and the plaintiff, as his surety, were joint makers of a promissory note, which the defendant expressly covenanted with the plaintiff to pay according to its tenor. The note being unpaid at maturity, the plaintiff sued for breach of the covenant, without himself paying the debt, and recovered the full amount thereof from the defendant. The court of Exchequer refused a rule for a new trial, Parke, B., saying: "The defendant may perhaps have an equity that the money he may pay to the plaintiff shall be applied in discharge of his debt; but at law the plaintiff is entitled to be placed in the same situation under this agreement as if he had paid the money to the payees of the bill."

In these three cases the plaintiffs' obligations were merely personal, and payment to the plaintiffs would not discharge the defendants, who would remain legally responsible to the original creditors.

The case of Furnas v. Durgin, 119 Mass. 500, seems to be exactly like the one before us. The defendant, by accepting from the plaintiff a deed of land subject to a mortgage, had covenanted to pay the mortgage, for which the plaintiff was personally liable. The court held, that on breach the plaintiff could recover the full amount of the mortgage, saying: "There is no reason why an agreement may not be made which shall bind the party so contracting to pay the debt which another owes, and thus relieve him or his estate from it, and if the promise thus made is not kept, why the promisee should not recover a sum sufficient to enable him so to do."

Other cases to similar effect will be found cited in the opinions above referred to, and need not be here again mentioned.

Although this rule may occasionally expose the promisor to some danger of being twice compelled to pay the same debt, yet the risk can always be escaped by exact performance of his contract, and where he is in default, the instances will be rare in which the court rendering judgment against him will not protect him from loss, and even in these instances a timely resort to equity will afford him relief. In the present case his security is complete, for the plaintiffs, by suing on the record "for the use of "the mortgagee, have clearly put it in the power of the defendant to obtain cancellation of the judgment by paying that creditor.

Let the Circuit be advised that the plaintiffs are entitled to recover the amount due upon the mortgage.

MINNESOTA SUPREME COURT, NOVEMBER 1, 1882.

CALKINS V. COPLEY.

A grantee who accepts a conveyance containing the following covenant "that the premises hereby conveyed are free from all incumbrances except a mortgage to B." is not estopped as against a party claiming under such mortgage from denying its existence or validity.

From an order overruling a demurrer to the complaint defendants appealed.

ACTION upon a mortgage

Robinson & Burtles, for appellants.

McNair & Gilfillan, for respondents.

MITCHELL, J. This is an appeal from an order overruling a demurrer to the complaint. The sufficiency of the pleading depends upon the following question: Is a grantee who accepts a conveyance containing the following covenant, viz., "that the premises hereby conveyed are free from all incumbrances, except a mortgage to J. M. Brewer," estopped, as against a party claiming under such mortgage from denying its existence or validity? We use the term "estop" because it is often used in the books in such a connection. Although where, as in this case, the mortgage was executed prior to the deed, it may be true that there is no technical priority or estoppel in the strict sense of the common law. It is unquestionably true that a grantee who accepts a conveyance expressly reciting a prior deed or mortgage should not be allowed to impeach the title of such prior grantee or mortgagee. This follows as a necessary result from the fact that a grantor may impose any conditions or burdens upon the grant that he chooses, and the one who accepts the conveyance and derives title under it, cannot in such case impeach it. Hence it has been always held that one who accepts a conveyance made subject to a mortgage, and which contains a stipulation that the grantee shall pay the mortgage, is estopped from denying its validity. Freeman v. Auld, 44 N. Y. 50.

It has been held in Massachusetts and elsewhere, contrary to the doctrine of Thompson v. Morgan, 6 Minn. 292 (Gil. 199), that if a grant be made subject to a mortgage the grantee will be estopped from denying its validity, although the deed contain no stipulation that he shall pay it. Johnson v. Thompson, 129 Mass. 398. But in the case at bar the grant is not made subject to the mortgage; neither does the deed contain any stipulations that the mortgagee shall pay it. There is nothing expressly declaring it a lien on the premises. There is nothing in this deed by way of recital that would estop even the grantor himself. It contains no direct or affirmative recital of the existence of such a mortgage, much less of its validity, or that it was a lien upon the premises. The language is wholly negative. It asserts nothing affirmatively regarding the mortgage. It merely excepts it from the covenant against incumbrances. The meaning of this, in effect, is simply that the grantor will not covenant that it is not an incumbrance.

An estoppel, says Coke, because it concludeth a man to allege the truth, must be certain to every intent, and not to be taken by argument or inference. Coke, Litt. 3526. It should be certain to every intent, and therefore if the thing be not directly or precisely alleged, or be mere matter of supposal, it shall not be an estoppel. Right v. Bucknell, 2 B. & A. 278. To work an estoppel a recital should clearly affirm or deny some present or past fact, or admit some liability definitely