stood in the relation of master to the wrong-doer; he who had selected him as his servant from the knowledge of and belief in his skill and care, and who could remove him for his misconduct, and whose orders he was bound to receive and obey.' That person was the owner of the horses, and not any one at whose service the horses and the driver were temporarily placed. Some of the English cases which follow Quarman v. Burnett are quite analogous in their facts to the one before us. See Fenton v. Dublin St. Packet Co., 8 Ad. & E. 835; Dalyell v. Tyrer, El., Bl. & El. 899. So also are several of the American cases. Weyant v. Railroad Co., 3 Duer, 360; Blake v. Ferris, 5 N. Y. 48; Smith v. Railroad Co., 19 id. 129; Norris v. Kohler, 41 id. 42; Crockett v. Calvett, 8 Ind. 127; Huff v. Ford, 126 Mass. 24; S. C., 30 Am. Rep. 645. Some of these cases the counsel for defendant seeks to distinguish, but as we think, without success. And it is immaterial to the application of the principle that the hirer of the team selected the driver. Quarman v. Burnett, supra; Holmes v. Onion, 2 C. B. (N. S.) 789, 794; Reedie v. Railway Co., 4 Exch. 244.”

R

COMMON WORDS AND PHRASES.

EGULAR PASSENGER TRAIN. -This phrase does not imply an accommodation train, stopping at all stations. Chicago and Alton R. Co., 105 Ill. 657. The court said: "The train in question was equipped and operated in the same manner as any other passenger train on the road. It carried passengers and baggage as did other trains. It ran upon the official time table of the company as other trains did. Indeed, the only difference between this and the other passenger trains on the road was, that the other two stopped at all the stations while this did not. On account of this difference, can the train, within the meaning of the statute, be regarded other than a regular passenger train? We think not. The language of the act would not, perhaps, include a wild train, a freight train, an excursion train or a special train; but where a train was engaged in carrying passengers, running regularly every day upon an advertised time card of the company, equipped as all other passenger trains are, we are satisfied such a train was designed by the Legislature to fall within the terms of the act, all regular passenger trains.' Had the Legislature intended to except a fast train or a through train from the operation of the law, it would have been an easy matter to frame the law in such a way that no doubt could have existed in regard to the intention, and if such had been intended, language of a different character would no doubt have been used." LOCOMOTIVE ENGINE. A traction engine, with a crane, used for lifting stone, but propelled by steam, is not a "locomotive engine." Murphy v. Wilson,

(Eng.)

SPEED. In rule 22 of the Rules for the Navigation of the River Tees, providing that "no steamship shail at any time be navigated in any part of the

river at a higher rate of speed than a maximum speed of six miles an hour," the speed mentioned is speed over the ground and not through the water. The R. L. Alston, 48 L. T. Rep. (N. S.) 469. Baggallay, J., said: "It appears to me that directly we attempt to test the meaning of the word 'rate of speed' by considering how they would operate and bear on the case of a collision between a steam-vessel in motion and an object at rest, or slightly moving, the construction contended for by the appellants has every element of being the right construction. If the rule is to be the rate of going through the water, and not the rate of going over the ground, a vessel having the tide in her favour and approaching an object at rest, or only slightly moving, would be at liberty to go at the full extent of the six miles over the ground, together with whatever the rate of the tide might be at the time, bringing the speed up in the case assumed to nine knots an hour. Therefore one hardly requires to have the position more than stated, to say that one can hardly suppose that it was the intention of the framers of that regulation, that if there was a three-knot tide running, the vessel which was coming with the tide in her favour might go at the rate of nine knots an hour, whereas the one which was coming with the tide adverse to her should only go at the rate of three knots an hour. That seems to me an unreasonable construction. Whereas the construction contended for by the appellants, which is the rate over the ground, would allow each one to approach at the rate of six miles an hour; and the risk of collision is proportionate to the rate at which the vessels are, if both are in motion, approaching each other, or if one is at rest and the other in motion, the rate at which the one is approaching the fixed object." Brett, J., said: "No doubt we have had difficulties about this interpretation. The great difficulty put to us was, the difficulty of judging of the rate of speed, and it was said that if a vessel is in motion, her rate of speed can only be judged by the rate at which she is going through the water. But when a vessel is in the ocean, it is very much as if those on board were in a carriage driving across Salisbury Plain without a mark on it, when no doubt it would be very difficult to tell at what rate the carriage is going; but when a carriage is going along a road marked with milestones, it is easy to tell at what rate the carriage is going by marking one milestone and seeing how long it is before reaching another. The points in a river with banks are very much more like a road marked with milestones than like Salisbury Plain, because there are marks and steeples and other things which everybody navigating the river knows perfectly well, and by which he can judge of the rate of speed at which the vessel is going over the ground. He can judge by seeing how long the vessel is in going from one known mark to another known mark on the bank." Lindley, J., said: “If the ship is out at sea without any visible object in sight and with no method of ascertaining the rate of speed over the ground, the only way of ascertaining the speed is, by the log or by the engines,

that is, by the rate of the ship going through the water. That is intelligible enough, and one sees it is so. It is not possible in a moment, I suppose, to tell at what rate a ship is going, whether a steamship or a sailing vessel, over the ground, in a place where observations cannot be taken. It may be found out after a time at what rate she has been going, by taking certain observations at certain distances between certain points, and so it may be ascertained what distance she has traversed; but there is no way that I know of except by means of the log or some other such method of ascertaining at what rate a ship is going through the water. Therefore in that sense the rate of the ship might be said to be naturally the rate of the ship through the water. But totally different constructions apply to a vessel going along a river, and the same reasoning cannot be used. At all events in England our rivers are not so wide that we cannot tell at what pace we are going along the land, and that is really an answer to the observations of the respondents' counsel." This decision reversed the holding of Sir R. Phillimore.

FRONT PART. In a building contract, the agreement to "finish the front part of the basement" does not necessarily mean the external front part. Bedard v. Bonville, Wisconsin Supreme Court, March, 1883. The court said: "If we were called upon to construe that part of the contract which requires the respondents 'to finish the front part of the basement,' we should be inclined to give the language used a different construction from that given by the learned Circuit judge. We do not think that the words 'front part' necessarily mean the external front part,' as was held by the learned judge. The front part' might well include both sides of the front wall of the building, and when the respondents, who are carpenters, agreed to furnish the materials and do the work necessary to finish the front part,' so far as the carpenter's work is concerned, it does not seem to us to be unreasonable to hold that they are to do all the necessary work on both sides of the front wall, at least, so as to put it in a condition for the lathing and plastering, and that is all that, as we understand the evidence, the respondents did in this case." But the court admitted parol evidence to explain the ambiguity.

ASSIGNS. A beer-seller mortgaged his beer-house to his brewers to secure £1,300, and all moneys at any time owing to them from himself, "his executors, administrators, and assigns, on any account whatsoever. The beer-seller died, having devised all his property to his widow, who became his administrator cum testamento annexo. The will contained no direction as to carrying on the business, but the widow carried on the business, and was supplied with beer by the brewers. The brewers sold the property under the power of sale in the mortgage. Held, that the widow was an assignee of the beer-house, and that the brewers were therefore entitled to retain out of the proceeds of sale not only the money due from the testator, but the price of the beer supplied to his widow. Re Watts, Smith v.

Watts, 48 L. T. (N. S.) 167. The court said: "The owner of a freehold estate, if he is so minded, may mortgage it, not only for his own debt, but for the debt of his cousin or his widow, or anybody else he pleases. It is argued on the part of the appellants, that according to the true construction of the deed the beer-house was charged, not only with the debt due from Watts, but with any debt to become due from his assign. That is perfectly intelligible. It may have been in the contemplation of the parties that Watts should assign the house subject to the mortgage, that the assign might come in and take beer from Hoare & Co., and that they might have a charge on the beer-house for the amount of beer so supplied. That is perfectly rational. The respondents urge that the word 'assigns' is a large word in law, and would include a tenant, or as in this case, a devisee for life, and that it is not probable that they were intended. The answer is very likely not. Probably the parties to the deed did not think of those exceptional cases, but only of an assign out and out. The respondents' difficulty is to find any thing in the deed authorizing us to put a restricted meaning on the word 'assigns.' * * * What the parties meant was, that the owner of the publichouse for the time being should not be entitled to redeem the public-house without paying for the beer supplied to the owners for the time being. Unless we read the clause in this way, the word 'assigns' is virtually struck out, and following the rule that we are to give some effect to all the words used, if any reasonable meaning can be attributed to them, and also following the rule that we are to construe them with regard to what is usually expected to happen, I think the right reading is, that the property is pledged for the debt of the assign to Hoare & Co., as well as what was due to them from Watts."

TRIAL.

A proceeding before arbitrators is not a "trial." Thorne v. Towanda Tanning Co., United States Circuit Court, Western District of Pennsylvania, December, 1882. Acheson, J., observed: "The single question is whether the plaintiffs lost their right to remove the suit by reason of the rule of reference and the trial before and award by the arbitrators. The act of Congress provides that the petition for removal shall be filed before or at the term at which said cause could be first tried and before the trial thereof.' Was the proceeding before the arbitrators a 'trial' within the meaning of the act? I think not. The act it seems to me, contem plates a trial in court, or at least a judicial trial of a binding nature."

PREMISES. — A fire insurance policy provided that where a mortgagee is specifically insured, the insurance should not be affected by any change of use without the knowledge of insured, but that the company should have the option of paying to the insured "either such proportion of the sum insured as the damage by fire to the premises mortgaged or charged shall bear to their value immediately before the fire." Held, that the term "premises mortgaged referred to the building insured in the policy, and

the value of the land could not be included in estimating the proportionate loss for which the insurer was to pay. Teutonia Fire Ins. Co. v. Mund, Pennsylvania Supreme Court, February, 1883. The court said: "The word 'premises' in an instrument of writing implies a reference to previous matter contained therein, and concerning which something is proposed. In this instance the previous subjectmatter of the contract is the insurance of a three

* *

story hotel building, with three-story back building situate, etc. No lot of ground is mentioned or described, in connection with buildings, which could by any reasonable intendment be embraced in the 'premises.' When these premises are spoken of as having become the subject of a mortgage, they would be properly referred to as the 'premises mortgaged; these words may therefore mean the whole of the premises covered by the mortgage or merely such of the premises as were covered by the policy, the premises insured. If there be doubt in view of the general tenor of an instrument of writing, whether the words used therein are to be taken in an enlarged or restricted sense, all other things being equal, that construction should be taken which is most beneficial to the promise. This rule of construction is perhaps especially applicable to the construction of policies of insurance, the provisions and conditions of which are, as admitted in the argument, prepared by the assurers themselves, and their advisers, persons thoroughly conversant with the principles and practice of insurance, with the utmost deliberation, 'every word being weighed and every contingency debated,' and thus prepared and executed and delivered to the assured, who ordinarily have no part in their preparation. * When the words are, without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted. Another rule of construction, equally well known, is that the words of an agreement are to be applied to the subject-matter about which the parties are contracting at the time. The matter in hand is always presumed to be in the mind and thoughts of the speaker, though his words seem to admit of a larger sense and therefore the generality of words used shall be restrained by the particular occasion. Words should not be taken in their broadest import when they are equally appropriate in a sense limited to the object the parties had in view. To afford, say any reasonable indemnity in any given case, the amount of the insurance money payable would or should, bear some proportion to the value of that which was lost, and against the loss of which the contract was made. It would seem absurd to estimate the loss upon any other basis. The value of the land, or any other matter, not the subject of the insurance, unless expressly made material by the contract, would seem to be unimportant in the estimate. If the mortgagee desired to indemnify himself against the loss of the buildings, to maintain the margin of his security, why should the value of the land affect the verdict? What principle of indemnity against the loss of buildings could involve

an inquiry as to the price of the land? The contracts of those who engage in the business of general insurance, with a fixed form of policy, should be construed, if the language of the contract is reasonably susceptible of such construction, so as to afford a scheme for calculating a proportion, which will produce uniform results upon some general principle or rule of indemnity. An experiment with a few hypothetical cases, wrought out according to appellant's scheme of proportion, will fully illustrate the fact that the results are not uniform, are agreeable to no general rule of indemnity, do not preserve any relative proportion between the mortgage debt and the security, and in some cases, indemnity is impossible. On the other hand, it would seem proper that the damages sustained from the fire, and the value of the mortgaged premises insured, before the fire, should be the terms of a proportion, which will determine the amount of the insurance money payable in any given case. It was against the loss of the buildings the insurance was taken, and the proportion which the injury bears to their value gives such a ratio of the insurance money which the assurer should contribute to the loss as is consistent with the purpose of indemnity. The scheme gives uniform, consistent and just results, preserves approximately the relative proportion of the mortgage debt and security, and gives the assured a measure of indemnity corresponding with the purpose of his contract.

CRIBS. A corn-crib is not necessarily either a "building, ship, or vessel." Wood v. State, 18 Fla. 969. The court said: "The indictment is further defective in that it does not charge the breaking and entering a building, ship or vessel.' The breaking and entering is alleged to have been into a 'corn-crib,' not a building called a corn-crib. We have been unable to find this word corn-crib' in Worcester's Dictionary, and it is not necessarily a building, ship or vessel.' Corn is defined to be a cereal grain, and the word is commonly used in this country in place of Indian corn or maize. Crib has various definitions, as the manger of a stable, a bin, a frame for a child's bed, a small habitation, and is used in the latter sense by Shakespeare:

'Why rather, sleep, liest thou in smoky cribs Than in the perfumed chambers of the great?' Nowhere else do we find it used in the sense of a building. The indictment is defective and judg

ment is arrested."

WHARFAGE. In Town of Pelham v. The B. F. Woolsey, District Court, S. D. New York, April, 1883, 16 Fed. Rep. 418, it was held that wharfage could not be charged against a vessel while she lay scuttled and sunk between high and low water mark, at a distance of 10 or 15 feet from the wharf, and fastened thereto by only one of several lines, others being attached to the shore. The court said: "Wharfage, as defined in the Cyclopedia of Commerce and Webster's Dictionary, is the fee paid for loading goods on a wharf or for shipping them off.' But it also may clearly include the use of a wharf while lying along-side for protection. But

the term 'wharfage' is certainly usually applied only to vessels afloat and enjoying some substantial benefit, either of protection or safety, or in the loading or unloading of cargo. * * * It does not appear reasonably to embrace such a case as this, where the vessel enjoyed none of the ordinary benefits or uses of the wharf for the purposes of commerce or navigation, but lay aground at a distance from it, scuttled, and attached to it by one or two only of several lines. * I do not think the mere stretching of a line to the dock, under these circumstances, constitutes such wharfage as is referred to or intended in the resolution, and it should not be charged for as such."

*

*

with these acts by refusing at the proper time to pay the balance of the purchase-money. Now why should not his default upon the judicial sale entail precisely the same measure of liability as in the sale by the individual owner? And if re-sales be had and loss ensue and he be liable to an action in the one case, why not in the other?

These questions will be best answered by a brief reference to the authorities.

Miller v. Collyer, 36 Barb. 250, is in point. The defendant attended a sheriff's sale under decree in foreclosure, the plaintiff, Miller being the mortgagee and plaintiff in such foreclosure. The terms of sale contained the above provision making the purchaser liable for deficiency, etc., and also required twenty per cent of the purchase-money to be paid at time of sale. The premises were struck down to the defendant and he subscribed the terms of sale, but did not pay any thing at the time of sale nor afterward, and never ap

SALE.

AT judicial sales of real estate, it is the general and

usual practice, before actually offering the property, to read the conditions annexed to, and the terms upon which the sale is to be made. These terms and conditions are ordinarily technically entitled "Terms of Sale," and there is usually embodied therein an announcement or condition substantially as follows:

"The biddings will be kept open after the property is struck down, and in case any purchaser shall fail to comply with any of the above conditions of sale, the premises so struck down to him will be again put up for sale under the direction of said (Referee or Sheriff, or other officer making the sale) under these same terms of sale, without application to the court, unless the plaintiff's attorney shall elect to make such application, and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the re-sale, and also for any costs or expenses occurring on such re-sale."

Another condition usually requires that the purchaser at the time and place of sale, sign a memorandum of his purchase," and sometimes it is added"and an agreement to comply with the terms and conditions of sale herein contained."

What is the measure of liability of one who attends a public sale of lands under judicial decree where the above or similar announcements are made and read before-hand, and at which sale he becomes a purchaser, and subsequently declines and refuses to complete according to the "Terms," and conditions of sale, will be the subject of this inquiry. And especially if a resale be had and a deficiency arise, is the defaulting purchaser liable to an action for such difference or deficiency, and if so by whom or at whose suit?

Prima facie, he should be responsible at least in the same degree and to the same extent as if the sale were by individual or corporate vendors, and as if it had been evidenced by the usual contract of sale used by such vendors.

Suppose, for instance, an intending purchaser being present on a particular occasion at an auction room used for public sales of real property, hears the annonucements and "Terms" of two different sales read, such "Terms" being substantially the same in both instances, one of such sales however being and being aunounced to be by an individual owner, and the other by a sheriff or referee under judicial order. bids on both pieces of property and becomes the purchaser of both, and then without proper ground or cause therefor refuses to complete as to both, either by declining to subscribe the conditions of sale, or to pay the percentage required, or perhaps after a compliance

He

executed or tendered to him. He subsequently ex pressly declined to complete, but some eighteen months afterward, the premises being advertised de novo, were again sold to the same purchaser for a sum less than what they brought at the first sale.

The plaintiff, after taking an assignment from the sheriff of the memorandum of sale signed by the defendant at the prior sale, brought suit against the latter for the difference or loss occurring on the re-sale, etc. The defendant had judgment and the plaintiff appealed.

EмOTT, J., says: "This action cannot be supported. The remedy against a purchaser who refuses to complete a purchase under a decree or judgment of a court of equity is by an application to the court to compel him to complete it, or to re-sell the property and hold him liable for the loss and the additional expenses." After citing Lansdown v. Elderton, 14 Ves. 512; Gray v. Gray, 1 Beav. 199, and Harding v. Harding, 14 Myl. & Cr. 514, he remarks: "These cases do not proceed strictly upon the ground of contract, but upon the ground that when a person becomes a purchaser under a decree he submits himself to the jurisdiction of the court as to all matters connected with the sale or with him in the character of purchaser. Requa v. Rea, 2 Paige, 339. ** *The paper signed by the defendant is no more a contract with the plaintiff than with the sheriff.*** It is not a mutual agreement between the defendant and the plaintiff or any other party to the foreclosure. If it is to be called a contract at all, it is a contract with the court. The sale is made by the order of the court and is under its control and not that of any party to perform or to rescind. *** The memorandum signed by the defendant was only a quasi contract. *** It is easy to see that it lacked essential elements of a contract, not only parties but mutuality and consideration. ** *There can certainly be no suit maintained upon it as an express stipulation with any person whatever." Brown and Scrugham, JJ., concurred.

"The transaction between a referee, executing the judgment of the court by a sale in an action of foreclosure, and the successful bidder, cannot strictly be regarded as a contract. The referee acting only as the minister of the court assumes for himself no obligation to complete the sale, and can impose none upon the court which he represents. It is always within the power and often becomes the duty of the court to set aside these sales, and this is entirely inconsistent with the idea that they are contracts of the court, for a contract is an act which contains a perfect obligation which cannot be annulled at the pleasure of the party bound by it. Moreover, a court has no such legal entity as capacitates it to make a contract, for it is neither a person nor a corporation-can neither sue nor

be sued." Per Scrugham, J., in Willets v. Van Alst, 26 How. Pr. 325, 342.

The court rendering the judgment of sale becomes the vendor of the property and the sheriff or referee directed to execute the judgment is not the agent of the parties, but of the court by whom he is appointed, and under whose direction he acts.

The sale is not made by any of the parties to the suit, but by the court through its officer, and the contract of the purchaser (if such) is with the court.

Riggs v. Purssell, 66 N. Y. 198; Yocum v. Foreman, 14 Bush (Ky.), 500. And the plaintiff in foreclosure, and the purchaser at the sale under the decree do not occupy the relative positions of vendor and vendee. Mitchell v. Bartlett, 51 N. Y. 452.

Notwithstanding the notice to purchasers in the "Terms of Sale," that in case of their non-compliance with the stated conditions a re-sale may be had without application to the court, and the purchasers held liable for any deficiency, such liability is not recognized and will not be enforced unless application is made to the court for the re-sale and an order therefor to be obtained.

A re-sale without such order will discharge the purchaser from liability.

In Goodwin v. Simonson, 74 N. Y. 133, the purchaser at a foreclosure sale being in default, an order directing him to complete was obtained and served, but was not subsequently enforced. Upon a re-sale without the order of the court a deficiency arose for which he was held not liable.

In Home Insurance Company v. Jones, 45 How. 498, the purchaser paid ten per cent and signed the "Terms of Sale," but did not complete. The premises were re-advertised without application to the court, and on the re-sale the same purchaser bought again for a less sum and paid ten per cent on his second purchase, and being ready to complete this time, the referee did what he should have done in the first instance, - applied to the court, but it was held that the purchaser was only bound to complete the second purchase, and was entitled to credit for both payments made.

In each of these cases the "Terms of Sale" contained the usual provisions.

But if the defaulting purchaser is not amenable to an action at law in favor of the plaintiff in the suit in which the sale was had, may he not be held liable for damages in a court of equity? It is easy to see how his acts may be productive of great damage. Take the case of a partition sale under decree, all parties, plaintiff and defendant, being interested. By timely and judicious advertisement of the sale a large number of bona fide bidders are present. A. outbids them all and becomes the purchaser. He has heard the "Terms" and knows the conditions of the sale and perhaps subscribes them. He does not pay his ten percent at once, or possibly gives a worthless check, or is without funds and asks for a brief delay to procure Meanthem, aud finally the percentage is not paid. while the other bidders have dispersed and cannot be got together again without a new advertisement entailing delay and expense, and the prices realized on a re-sale seldom equal those which obtained at the original sale. Now here is a direct pecuniary loss affecting all the parties to the suit, caused by the wrongful act of the defaulting purchaser. It would seem prima facie, that an action against him in the joint names of the parties in the partition should lie. Emott, J., seems to hint at this course in Miller v. Collyer, supra. We have seen that in some of the cases quoted the property at the lower bure it realized on the re-sale,

same purchaser bid at both sales, and thus secured the

thereby profiting by his own wrongful act, in contravention of one of the cardinal principles of law and justice.

to

We are not aware of any authority directly in point. But certainly, if the act of the purchaser in bidding upon and securing the temporary and exclusive right the property at a fixed price is not a con tract or obligation entered into by him with the plaintiff or with any of the parties to the suit in which the sale is had,-if there is no privity or mutuality between such purchaser and the litigants,-if he owes them no duty or obligation and has made them no express promise, it is difficult to see upon what theory an action for damages can be sustained.

But be that as it may, a wrong has been done and the wrong-doer will not be permitted to go unpunished. It is clear that one who intermeddles with a suit in equity thereby submits himself to the jurisdiction of the court, and tacitly agrees to be bound by its orders and directions. By crossing the threshold and entering the precincts of the former during the progress of the cause and assuming to become the purchaser under its decree, he has voluntarily placed himself before the tribunal, and must not presume to trifle with the court, or to treat its orders or directions with indifference, contempt or defiance.

Sheer inability to perform will be the only excuse that will be received from the defaulting purchaser to whom a good and proper tender is made. If responsible, he may be compelled to complete by motion and attachment. Cazet v. Hubbell, 36 N. Y. 677; Graham v. Bleakie, 2 Daly, 55; Goodwin v. Simonson, supra; Thomas on Mortgages, 356.

Whether the "Terms" or memorandum of sale have been subscribed or whether the percentage required has been paid is probably entirely immaterial. The conclusions therefore are:

First. That the paper embodying the terms and conditions of the sale or agreeing to be bound thereby, whether subscribed by the purchaser or not, does not constitute any contract or obligation on the part of the purchaser in favor of any person whatever, and that no action thereupon against such purchaser can be maintained by any one.

Second. That if a re-sale be had without application to the court it will be equivalent to a discharge of the purchaser from all liability in the premises.

Third. That if a re-sale be had after application to the court upon due notice to the purchaser he will be liable for the deficiency by proper proceedings; and

Lastly. That the defaulting purchaser, if responsible, will be compelled on motion to complete, or pay the deficiency (as the case may be) and upon non-compliance will be subject to attachment as for contempt, and that this is the correct course to pursue in the premises. JOSEPH C. LEVI.