to the writ. Amey v. Long, 1 Camp. 14; s. c. 9 East. 473; 1 Arch. Q. B. Pr. 170. Undoubtedly, in civil cases, where the opertion of the writ of subpœna duces tecum would be harsh, the power will be exercised in the sound discretion of the court. Crowther v. Appleby L. R., 9 C. P. 23; see Atty.Genl. v. Wilson, 9 Sim. 526; Lee v. Angus, L. R. 2 Eq. 59.

It is further urged that there is no sufficient or certain description of the papers required, and that the call is for " any and all" messages which may have passed between the parties named during the last six months, without reference to facts or subject-matter. But the obligation of secrecy imposed by law upon the grand jury, is a sufficient answer to the objection that the subject matter of the dispatches is not indicated. Wag. Stat., p. 1083, secs. 16, 17. By agreement, the subpoena is considered to describe each day, as if each day were named, and it is imposible for us to say on what days dispatches have passed, or that there have not passed dispatches on each day thus described. As the jurisdiction of the criminal court was not exceeded in committing the petitioner for the contempt charged, the petitioner must be remanded and remain in the custody of the marshal.

Bakewell, J., concurs; Lewis, P. J., dissents.

In error to the Circuit Court of the United States for the Southern District of New York.

MR. JUSTICE MILLER delivered the opinion of the court.

On the 16th day of May, 1871, the hotel known as the Glen House, at the foot of the White Mountains in New Hampshire, together with its furniture, was bid off at an auction sale by Grafton, the plaintiff in error, at the price of $90,000. At the end of the ten days allowed by the terms of the sale for examination of the title, three deeds were tendered him which were supposed to convey the title. He refused to accept the deeds, or to pay the purchase money, or otherwise complete, the contract of purchase. The property was again advertised for sale and sold for $61,000, and the present suit was brought to recover the difference in the amounts for which the property sold at these two sales, as damages for failure to perform the first

contract. The suit was brought in the Circuit Court for the Southern District of New York, and a verdict and judgment recovered against Grafton, to which he prosecutes this writ of error.

The bill of exceptions is voluminous, containing apparently everything said and done on the trial. Sixty-one errors are assigned in this court.

We shall confine ourselves to the examination of one of them. That one presents the question, as it occurs in various forms in the record, whether there was a sufficient memorandum of the contract in writing, under the statute of frauds of New Hampshire, to sustain the action. That statute is in these words: "No action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereto authorized by writing." The agreement given in evidence on the trial by Cummings, the sole plaintiff, consisted of a paper in writing signed by Grafton, certain printed matter on the margin of that writing, and the advertisement mentioned in the writing so signed. They are as follows:

"I, the subscriber, do hereby acknowledge myself to be the purchaser of the estate known as the Glen House, with furniture belonging to it, in Green's grant, New Hampshire, and sold at auction Tuesday, May 16, 1871, at 11 o'clock A. M., and for the sum of ninety thousand dollars, the said property being more particularly described in the advertisement hereunto affixed; and I hereby bind myself, my heirs and assigns, to comply with the terms and conditions of the sale, as declared by the auctioneer at the time and place of sale.

"Joseph Grafton." Upon the margin of said agreement were written and printed the following:

"Terms of sale. Ten days will be allowed to examine the title, within which time the property must be settled for. $5,000 will be required of the purchaser on the spot, which will be forfeited to the seller if the terms and conditions are not complied with; but the forfeiture of said money does not release the purchaser from his obligation to take the property. Fifteen thousand dollars to be paid on the delivery of the deed, and one-half of the purchase money to be paid September 1, 1871, the remaining balance to be paid September 1, 1872.

"The property is sold subject to the conditions of the sale of the stage route, stages, etc., which are that the proprietors of the route shall have the exclusive business of the house."

The advertisement referred to in the foregoing paper as being thereunto affixed, was as follows:

"Glen House at Auction. The famous summer resort, at the foot of Mount Washington, known as the Glen House, together with the land, furniture, mill, and out-buildings, will be sold at public auction at Gorham, N. H., Tuesday, May 16, 1871, at 11 o'clock, A. M. May 2d, 1871."

"Valuable Hotel Property for Sale.-The favorite summer resort known as the Glen House, situated at the foot of Mount Washington and at the commencement of the carriage road to the summit, will be offered for sale, together with the

land, containing about one thousand acres (well timbered), all the out-buildings, stables, and mill on the same, also the furniture, staging, mountain carriages, horses, &c. The house contains some two hundred and twenty-five rooms, capable of accommodating between four and five hundred guests. The whole property if not disposed of at private sale previous to the first of May, will be sold at public auction to close the estate of the late J. M. Thompson. Notice of the time and place of sale will be given hereafter. Any person desirous of seeing the property, which is in thorough repair, or wishing to make any inquiries, can do so by applying to J. W. Weeks, administrator, Lancaster, N. H., or S. H. Cummings, Falmouth Hotel, Portland, Maine."

The bill of exceptions adds, that when this paper was put in evidence it was indorsed "A. R. Walker, auctioneer and agent for both parties." It is not satisfactorily shown when this indorsement was made, and there is some evidence to show that it was not there at the time the deeds were tendered and Grafton refused to accept them. The court, however, instructed the jury that if it was done at any time before the commencement of this action it was sufficient.

Evidence was admitted to show that at the time of the sale another paper was read by the auctioneer affecting the terms of the sale, but as this was not among the papers subscribed by defendant, we will first consider whether these were sufficient to sustain the action.

It is proper to observe that the objection to these papers is not that they were not signed by Grafton, the party charged, for he signed himself the principal instrument, and the reference to the others and their annexation to that, are sufficient to make them a part of the paper which he did sign. We shall, also, for the purpose of this inquiry, take it that Walker was the auctioneer, and that his name indorsed on the instrument gives it all the value which it could have if signed at any time necessary for that purpose.

The distinct objection to the instrument, as so presented, is that the other party to the contract of sale is not named in it, and can only be supplied by parol testimony.

The statute not only requires that the agreement on which it is brought, or some memorandum thereof, shall be signed by the party to be charged, but that the agreement or memorandum shall be in writing. In an agreement of sale there can be no contract without both a vendor and vendee. There can be no purchase without a seller. There must be a sufficient description of the thing sold and of the price to be paid for it. It is, therefore, an essential element of a contract in writing that it shall contain within itself a description of the thing sold, by which it can be known or identified, of the price to be paid for it, of the party who sells it, and the party who buys it. There is a defect in this memorandum in giving no indication of the party who sells. If Grafton was bound to purchase, it was because somebody was bound to sell. If he was bound to pay, somebody was bound to receive the money

and to deliver the consideration for the price so paid.

There can be no bargain without two parties. There can be no valid agreement in writing without these parties are named in such manner that some one whom he can reach is known to the other to be bound also. No one is bound in this paper to sell the Glen House, or to convey it. No one is mentioned as the owner, or the other party to this contract. Let it be understood that we are not ciscussing the question of mutuality in the obligation, for it may be true that if a vendor was named in this paper, the offer to perform on his part would bind the party who did sign. But Grafton did not agree to buy this property of anybody who might be found able and willing to furnish him a title. He was making a contract which required a vendor and vendee at the time it was made, and he is liable only to that vendor. The name of that vendor, or some designation of him which could be recognized without parol proof extraneous to the instrument, was an essential part of that instrument to its validity.

It is alleged that Stephen H. Cummings, the plaintiff in this action, was the vendor, and that this sufficiently appears in the papers of which we have given copies.

The first ground on which it is sought to maintain this proposition is that Walker's indorsement is sufficient for that purpose.

It is very clear that Walker did not intend to hold himself out as the vendor in this case, because he describes himself as auctioneer and agent for both parties. If he had been sued on this contract by Grafton for failing to tender sufficient deeds of conveyance, it would have been a good answer to the action that he describes himself in the paper on which he was sued as merely an auctioneer in the matter, and in that sense as agent, and not principal. He could not in the act of signing that paper be the agent of Grafton, for Grafton signed it for himself. The statement therefore did not mean that he signed for both parties, because he did not, and could not sign as agent for Grafton.

What did he mean by putting his name there? It can have no other fair meaning than simply to say, as he does, "I was the auctioneer who struck off this property."

none.

But concede that he meant to represent the other party in that contract, a contract in which he takes care not to bind himself, who is that other party? What light does the writing of his name as auctioneer and agent throw on that question? Literally An anxious reader of the whole paper and its attachments would know as little who sold, or for whom Mr. Walker was selling, after his signa ture as he did before. To say "agent for both parties"may show he was agent for the one party whose name is not there, but it does not show who was that party. The paper without Walker's indorsement shows who was the purchaser, but neither with nor without it does it show who was the seller.

It is next argued that the reference to Cummings' name in the advertisement annexed to the paper signed by defendant, is sufficient for this. The

statement is that the sale is made to close out the estate of the late Mr. Thompson; and " any person desirous of seeing the property, which is in thorough repair, or wishing to make any inquiries, can do so by applying to J. W. Weeks, administrator, Lancaster, N. H., or S. H. Cummings, Falmouth Hotel, Portland, Maine." Three persons are here mentioned. One, Mr. Thompson, was dead and could not be the vendor. Another, Mr. Weeks, though not mentioned as a party selling, it may be inferred had some interest in the sale as administrator of Thompson. But Weeks does not sue, and if his name had been inserted in the contract as vendor, it would not have sustained the present action. But the true intent of that advertisement was not to describe the vendors, or even the owners of the land, but to designate persons who might give any information about the property, which one thinking of purchasing would need. This did not require that the person referred to should be the owner of the land or the party selling it. Such ininquiries could as well be answered by a lawyer, a real estate agent, the latest keeper of the hotel, or one who had been his clerk, as by the owner. There did not arise, therefore, any implication from the reference to Mr. Cummings that he was owner, or even part owner, or that he was holding himself out as the party selling.

The next effort to sustain the instrument sued on as valid may be said to be a vague effort to show, by the verbal history of the transaction, that defendant recognized Cummings as vendor by subsequent interviews and negotiations with him on the subject of the sale. And special importance in this part of the case is attached to a letter written by Davis, a lawyer, to Cummings.

The letter is liable to three objections, as a recognition by defendant of Cummings as the party of whom he had purchased:

1. No such recognition is to be found in the letter. It consists of suggestions on the part of Davis of what had better be done with the property; that Cummings, Mrs. Thompson and Grafton ought❘ to take it, and that Grafton really don't wish to have anything to do with it. It is not even a recognition of the validity of the purchase, and nowhere speaks of Cummings as the vendor, but he might rather be supposed to be a purchaser with Grafton. 2. Davis does not profess to be speaking or acting for Grafton. He writes in his own name.

It

is shown by other evidence that, either as attorney, or for himself, he controlled the larger part of the debts against Thompson's estate, which made the sale necessary, and it may be fairly inferred that it was in this character he spoke.

3. There is no satisfactory evidence that he was authorized to act for Grafton in that transaction, and none whatever that he was authorized by him to write that letter. The New Hampshire statute requires that the authority of an agent to charge a party shall be in writing, and there is no pretense that Davis had any such authority from Grafton. These views of the proper construction of the statute are amply sustained by authority.

In the leading case of Wain v. Walters, 5 East's 10, decided by Lord Ellenborough under the Eng

lish statute, the same as that of New Hampshire on the point in question, that eminent judge said: "The question is whether that word (agreement) is to be understood in a loose, incorrect sense in which it may be sometimes used as synonymous to promise or understanding, or in its more correct sense as signifying a mutual contract on consideration between two or more parties." He held the latter to be the true construction, and that all its essential elements must appear in the memorandum, including the consideration, which in that case was absent. This has been held to be the law in England ever since.

In the case of Williams v. Byrnes, before the privy council, reported in 9 Jur. N.S. 363, decided in 1863, the defendant had, in a letter to one Hardy, told him that he would furnish the funds to pay for a steam engine if the latter would find and purchase a suitable one. Hardy made a verbal contract for the engine, and the vendor sued defendant on this memorandum. Coleridge, J., in delivering the judgment of the privy council, said: "The language of the statute cannot be satisfied unless the existence of a bargain or contract appear in evidence in writing, and a bargain cannot so appear unless the parties to it are specified, either nominally or by description or reference," and the ruling of the chief justice that this could be done by extrinsic proof as to who was the vendor was reversed. It is precisely in point with the one before us.

The case of Sale v. Lambert, L. R., 18 Eq. 1, was a sale of real estate in which the party charged was the vendor. The memorandum was signed by Sale, the purchaser, for himself, and by George Jackson, the auctioneer, for the vendor. This memorandum was indorsed on a bill of particulars of the conditions of the sale, in which it was said that the property was sold by the proprietor. The court held that the word proprietor sufficiently described the vendor and ascertained who was the party for whom the auctioneer signed. But in the very next case in the volume, Potter v. Duffield, the same court, by the mouth of the same judge, held that the words "confirmed on the part of the vendor, and signed Beadels," did not sufficiently designate who the vendor was, and that a suit against the owner could not be sustained on the memorandum. The master of the rolls said: "If you could go into evidence as to the person who is described as vendor, the answer would be that Polly was that person. But that is exactly what the act says shall not be decided by parol evidence." In the case before us, Mr. Walker, the auctioneer, does not even say that he signed for the vendor, as Beadels did in the case cited.

V.

But the case which should have most weight in forming our judgment is that of Sherburne Shaw, 1 N. H. 157, 8 Am. Dec. 47, because it is an authoritative construction of the statute of the State where this contract was made and where the land is situated to which the contract relates, made by the highest court of that State sixty years ago and never overruled. The case is so perfectly parallel to the one under consideration, that its circumstances need not be repeated. It is sufficient to say that the want of the vendor's name in the

memorandum was held fatal to any right of action, though the auctioneer's name was signed to a memorandum otherwise sufficient. The concluding language of the court is, that "the written evidence which hath been offered to prove the contract declared on, as it fails to give any intimation that plaintiffs were one of the parties to that contract, must itself be considered fatally defective and inadmissible."

The same doctrine is laid down in the excellent work of Mr. Browne on the Statute of Frauds, § 372 to 375, and the authorities fully cited. He also speaks of the case of Salmon Falls Manufacturing Co. v. Goddard, decided by this court, and reported 14 How. 446, as one which might be saved from conflict with the general rule, on the ground that a bill of parcels detailing the purchase was made out and sent to the purchaser, and accepted by him as such. In that case, Mr. Justice Curtis, Mr. Justice Catron, and Mr. Justice Daniels dissented in an able opinion by the judge first named. It may be doubted whether the opinion of the majority, in all it says in reference to the use of parol proof in aid of even mercantile sales of goods by brokers, is sound law. It certainly furnishes no rule to govern us in the exposition of the statutes of New Hampshire, concerning contracts of sale of real estate within its own borders, where it conflicts with the decisions of the courts of that State on the subject.

Defendant in error relies mainly on that case and the later one of Beckwith v. Talbot, 95 U. S. 289, 6 Cent. L. J. 214. The latter case, however, affords no support to the argument of counsel. The defendant in that action was charged, it is true, on a memorandum in which his name was not found. But he produced that memorandum from his own possession on the trial, and letters of his written to plaintiff while the agreement was so in his possession were given in evidence, which referred to the agreement and acknowleged its obligatory force on himself, in terms that required no parol proof to identify it as the agreement to which he referred. This was within all the cases a sufficient signing of the memorandum, though found in another paper, written by the party to be charged, to comply with the statute of frauds, and so this court held.

We are of opinion that there was no sufficient memorandum in writing of the agreement on which this suit was brought to sustain the verdict of the jury.

The judgment of the circuit court is, therefore, reversed and the case remanded to that court, with instructions to set aside the verdict.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1878.

ACCOMPLICES—AGREEMENT BY GOVERNMENT NOT TO PROSECUTE NOT BINDING.-One who is particeps criminis in the commission of an offense acquires no more than an equitable title to the clemency of the Ex

ecutive by testifying against his co-conspirators, and an agreement made by the district attorney not to prosecute him for the offense can not be pleaded in bar, being void for want of authority.-United States v. Ford. In error to the Circuit Court of the United States for the Northern District of Illinois. Opinion by Mr. Justice CLIFFORD. Judgment reversed.

PATENTS-JURISDICTION OF FEDERAL COURTS.1. A suit between citizens of the same State can not be sustained in a circuit court of the United States as arising under the patent laws, where there is no denial of the validity of the plaintiff's patent, where its use is admitted, and where a subsisting contract is shown governing the rights of the parties in the use of the invention. 2. Relief in such an action is founded on the contract and not on the patent laws of the United States.-Hartell v. Tilghman. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. Opinion by Mr. Justice MILLER. Decree reversed.

CORPORATION-COMPELLING TRANSFER OF SHARES OF STOCK-PARTIES.-K filed a bill against D claiming 184 shares of stock in the Memphis Gas-light Company,and charging that while in possession of the books and control of the office of the company, he caused a transfer to be made on the books of the company to him of the shares of its stock owned by plaintiff, and the relief asked was the restoration of the stock on the books of the company to the name of plaintiff, and the future recognition by the company of his rights in the stock. The bill prayed that D should be compelled to do this. Held, that in the absence of the Gas-light Company as a party to the proceeding, no such relief could be decreed. "This suit is not brought to recover the dividends received by Dean which ought rightfully to have been paid to plaintiff. No such relief is asked, and no averment that any divi dends were declared or paid to Dean on that account. Nor is it brought to recover damages for the wrongful seizure of plaintiff's property and conversion of it to defendant's use, The relief appropriate to either of these grievances might have been sought in an action at law. It is not an action to obtain from Dean the specific certificate of stock, for that remains in plaintiff's possession. * * Suppose that the court had rendered a decree in the exact language asked by plaintiff, and Dean should be attached for contempt in refusing to perform it. He could answer very truly that he was not the gas-light company, and had no control of the books or of the officers of the company. That he had no means of compelling the company to make transfer of this or any other stock on its books. That it was a corporation governed by its own officers, and was not bound by the decree of the court, and would not perform it. The court would find itself in the position of having made a decree it could not enforce, of attempting to give a relief which was beyond its power, because the party whose action was necessary to that relief was not a party to the suit. On the other hand, if the gas-light company had been a party to the suit and plaintiff had sustained the allegation of his bill by proof, the relief would have been perfect. The company could have been compelled to restore plaintiff to the ownership of the stock on their books, and to treat him in future as one of their stockholders, and the decree would have bound both Dean and the company. As it is, the specific relief sought by plaintiff is not within the power of the court, nor is there any relief within the equity jurisdiction of the court which can arise out of the frame of the bill in the absence of the gas-light company."Kendig v. Dean. Appeal from the Circuit Court of the United States for the Western District of Tennessee. Opinion by Mr. Justice MILLER. Decree reversed.

SOME RECENT FOREIGN DECISIONS.

NEGLIGENCE OVERFLOWING OF DOCK BANKSTATUTORY OBLIGATION-DUTY OF RIPARIAN OWNER TO MAINTAIN RIVER-WALL-COMMON LAW LIABILITY-ACT OF God-AppORTIONMENT OF DAMAGE. -Nitro Phosphate, etc., Co. v. London, etc. Docks. English Court of Appeal, 27 W. R. 267. The owners of a dock on the Thames, originally made under one act of Parliament, enlarged under another, and transferred under a third act amalgamating two companies, were, on the construction of the various acts adopted by the court, held to be under a statutory obligation to keep thei dock bank to a height of four feet above Trinity highwater mark. Their bank was less than that height. The commissioners for the district in which the dock was situate required the river frontagers to maintain a river-wall at a height of four feet two inches above Trinity high-water mark, and before the dock was made, the river-wall had, at the place where the entrance to it was cut, been at the required height. An extraordinary high tide, rising 4 feet 6 inches above Trinity high-water mark, having overflowed the defendants' dock-bank, eventually flooded and damaged the plaintiff's property. Held, by FRY, J., that the whole damage was due to the defendant's neglect; that the defendants were liable for the damage by reason of the breach of their statutory liability; but that if the case had rested on their common law liability they would not have been liable, as the flood was the act of God. Held, by the Court of Appeal, that the defendants were liable for the breach of their statutory obligation; secondly, that even if they had not been under such an obligation, they would still have been liable as riparian owners for not maintaining the river-wall to the proper height; and, thirdly, that they were liable under a common law liability for not having taken proper and sufficient precautions to prevent the damage: but that the declaration of Fry, J., that the whole damage was due to the defendants' neglect must be omitted, so that deduction might be made if the defendants could show that any part of the damage was due to the overflow occurring after the tide had reached the height at which the defendants' bank ought to have been. Decision of Fry, J., affirmed, with a variation, with costs. LANDLORD AND TENANT "OUTWARD MARK OR SHOW OF BUSINESS" BREACH OF COVENANT RIGHT OF RE-ENTRY ON BREACH OF NEGATIVE COVENANT-WAIVER BY PLEADINGS-LESSEE RESPONSIBLE FOR SUB-LESSEE'S ACTS-INJUNCTION. -Evans v. Davis. English High Court, Chancery Division. 27 W. R. 285. 1. The plaintiff, having agreed for a lease of premises for a term of years, agreed to lease a part of such premises to the defendant D, such lease to D to contain the same covenants as should be contained in the plaintiff's own lease, when granted. The plaintiff's lease, when granted, contained a covenant "not to affix or permit any outward mark or show of business to be affixed to the premises." The defendant D sub-leased to the defendant B, and the latter, with D's license, so far as he was able to give the same, carried on a tailor's business on the premises, and erected a brass plate on the outside railing of the premises, and also put up blinds, inside the windows, having her trade name thereon. Held, that a breach ef the covenant had been committed, and that an injunction must be granted against the defendant D, as well as against the defendant B, to restrain the continuance of the breach. 2. It being proposed to ask a witness questions tending to show that similar covenants were not enforced by the same freeholders in other particular cases: Held, that only evidence of the in

terpretation placed upon the language employed in the covenants by the custom of the neighborhood generally could be admitted. 3. The sub-lease from D to B having been made without the plaintiff's consent, notwithstanding that the agreement between the plaintiff and D provided for a covenant to the contrary to be contained in D's lease, when granted: Held, that the plaintiff was prima facie entitled to recover possession of the premises. But the plaintiff having offered by his statement of claim to grant D the lease for which he had agreed with him: Held, that he had thereby waived his claim to recover possession.

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January-March, 1879.

CONDITIONAL SALE REPLEVIN

--

Where goods are sold with the condition that they should be sent to the defendant for examination, and if satisfactory the defendant was to give a four months' note in payment, and after the goods are sent the defendant fails for three days to give notice of his accepiance of the goods, or give the note, though requested to do so, the plaintiff may take possession by replevin without making a demand for the return of the goods. Hill v. Freeman, 3 Cush. 257; Farlow v, Ellis, 15 Gray, 329: Hirschorn v. Canney, 98 Mass. 149. Opinion by GRAY, C. J.-Salomon v. Hathaway. CRIMINAL LAW CONFESSIONS EVIDENCE. Where, in the trial of a criminal case, the government offered in evidence the confessions of the defendant to the deputy sheriff who had arrested him, which were objected to on the ground that they were made in consequence of offers of favor by the officer, and the officer was allowed to be called and denied having made offers of favor, whereupon the defendant offered to call several witnesses to prove the truth of his claim, but the court declined to admit their testimony: Held, that it was error so to admit the confessions. Prima facie they were competent; but the defendant claimed them to be incompetent on account of certain extrinsic facts. It was for the defendant to establish those facts, and it was the duty of the presiding judge to ascertain whether they existed before admitting the confessions. Opinion by LORD, J.-Com. v. Culver.

RAILROAD LIABILITY TO TRESPASSER. - Where, in an action against a railroad corporation to recover damages for personal injuries, it appeared that the plaintiff, then a child four years and seven months old was a mere intruder and trespasser upon the track; that no inducement or implied invitation to him to enter upon it had been held out; that he was neither a passenger nor on his way to become one, but was there merely for his own amusement, and was using the track as a play-ground, it was held, that the defendant corporation owed him no duty, except the negative one not maliciously or with gross and reckless carelessness to run over him. Johnson v. Boston & Maine R. Co., 124 Mass. 75. Opinion by AMES, J.Morrissey v. Eastern R. Co.

MARRIED WOMAN-STATUTE- "SEPARATE BUSINESS."-Under the statute of 1862, ch. 198, § 1, which requires that a married woman, doing business on her separate account, in order to protect her property employed in such business from liability to be attached or her husband's debts, must file with the town cler k