SUPREME COURT OF MICHIGAN.1

Mortgage-Redemption.-A bill was filed for the redemption of lands from a mortgage more than thirty years past due. The bill showed that the mortgagee and those claiming under him had claimed and disposed of the land as absolute owners for more than twenty years. Held, that under such circumstances the bill was demurrable unless it set forth such facts as established the mortgage as continuing in force and subject to redemption. A statement in the bill that the land had not for twenty years continuously been occupied adversely to the mortgagor, is not sufficient: Reynolds vs. Green.

Replevin-Bona fide Purchaser-Demand.-Where one's property is disposed of without authority by the person having it in charge, the owner may bring replevin there for without a previous demand. And he may do this notwithstanding the property is in the hands of one who has bought in good faith, without notice of the title of the real owner: Trud vs. Anderson.

Attachment-Bonâ fide Purchaser-Recording Laws.—A deed, absolute in terms, was given to secure a debt; and the grantee gave back a written defeasance. A creditor of the grantee, having no knowledge of the defeasance (which was not recorded), attached the lands, and the defeasance then coming to his knowledge, filed a bill in chancery to have it declared void as to him, and the land declared subject to his lien. Held, 1st. That a mortgage interest in lands was not attachable: 2d. That the unrecorded defeasance was only void as to bona fide purchasers having no knowledge of it at the time of purchase: 3d. That an attaching creditor was not a purchaser until he had obtained judgment, caused the land to be sold, and bid it in: Columbia Bank vs. Jacobs.

Statutory Foreclosure of Mortgage. To render the statutory foreclosure of a mortgage under the power of sale valid, where the premises consist of several parcels, the sale of each parcel must be made separately, and the deed must show that it was so made, and also the purchase price of each parcel. The statute requires this, and the proceeding being ex parte must comply strictly with the statute: Lee vs. Mason.

Guaranty of Collection of a Secured Demand.-Where one assigns a note and the mortgage which secures it, and indorses upon the note a

From T. M. Cooley, Esq., State Reporter.

guaranty of its collection, the guaranty must be deemed to have reference to proceedings as well upon the collateral security as upon the note; and the guarantor is not liable until after failure to make the money by suit upon the note and by foreclosure of the mortgage: Barman vs. Carhartt.

Confusion of Goods.-Where one fraudulently mixes saw logs belonging to himself with those belonging to another, so that it is impossible any longer to identify his own, he loses thereby all property in them. MANNING and CHRISTIANCY, JS. CAMPBELL, J., dissented; holding. that as the logs had a uniform value per thousand feet, taking them as they ran, the party guilty of the mixture incurred no forfeiture of property, but might take from the mass a quantity equal to his own. MARTIN, Ch. J., expressed no opinion-coinciding with the majority on another point. (The case was thus: Plaintiff cut logs upon his own land, and also, without authority, cut a quantity upon government lands, which he threw into the water with his own. Government officers seized and sold the whole, and plaintiff sued them in trover): Stevenson vs. Little.

Fire Insurance-Assignment of Interest.-A policy of insurance one of the conditions of which is that "in case of any sale, transfer, or change of title in the property insured, such insurance shall be void and cease," is avoided by a conveyance which is absolute in form, though given as security for a debt merely: Western Massachusetts Ins. Co. vs. Riker.

And where the insurance is upon a single building, and the conveyance is of an undivided interest only, the conveyance avoids the whole policy, notwithstanding the interest of the insured remaining unconveyed is shown to exceed in value the sum insured: Id.

NOTICES OF NEW BOOKS.

COMMENTARY ON THE LAW OF AGENCY, AS A BRANCH OF COMMERCIAL AND MARITIME JURISPRUDENCE, WITH OCCASIONAL ILLUSTRATIONS FROM THE CIVIL AND FOREIGN LAW. BY JOSEPH STORY, LL D., one of the Justices of the Supreme Court of the United States, and Dane Professor of Law in Harvard University. Sixth Edition: Revised, Corrected, and Enlarged. By EDMUND H. BENNETT. Boston: Little, Brown & Company. 1863.

This new edition of an excellent text-book in the law, has been thoroughly revised by the editor, and is now unquestionably one of the best works upon the subject, and we think the very best, perhaps, which has

yet appeared. It is unquestionably true, that the effect of repeated editions of the very best treatises upon the leading topics in the law, must be somewhat perceptible, in marring their original symmetry of proportion, since many of its sections and chapters gain, or lose, in relative importance, with the advancing life of trade and commerce, quite in an inverse ratio to each other. But Mr. Bennett is so much of a lawyer, and has had so much experience in book-making, that he contrives, better than most editors, to preserve the original symmetry of his author. He has here given us a greatly improved edition of a most excellent work.

I. F. R.

REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF WISCONSIN. By PHILIP L. SPOONER, Official Reporter. Vol. XIII. Containing cases decided at the June Term, 1860, not before reported, and most of the cases decided at the January Term, 1861. Madison, Wisconsin: Atwood & Rublee. 1862.

We have examined this late volume of Reports from the comparatively new State of Wisconsin, and have been struck with the evident superiority of most of the opinions of the judges to those which often appear of late in the reports of the older and more commercial States. It may be a false conceit of our own into which we have fallen, without any sufficient reason; but it has seemed to us, from a hasty and imperfect examination of many of the later volumes of reports in those States where there is the greatest pressure upon the time of the judges, as if the opinions were losing all reliableness of character, as guides to the law. Almost every question of law is evaded, or dodged, so to speak, and the case decided upon some forced, and often false construction of facts, in order to avoid the responsibility of settling a contested question of law.

There is, perhaps, some excuse for this, where the judges have to sit in court three hundred days in the year; but, after all, it is ruin to the jurisprudence of a State, and will prove bad economy in the end. The State ought to provide such a force upon its highest judicial tribunal, that the cases can be fully heard, and fairly considered and decided, in a straight up and down way, and not by resort to that degree of chevisance and evasion, which would be regarded as constructive fraud in the parties to a sale by an insolvent debtor.

Mr. Spooner's part of the work is faithfully and laboriously performed, as it ought to be, since there are few positions of more responsibility than that of the reporter of legal decisions.

I. F. R.

THE

AMERICAN LAW REGISTER.

JANUARY, 1863.

INTERPRETATION AND CONSTRUCTION OF CON

TRACTS.

The enforcement of contracts either by giving damages at law for their non-performance, or by decreeing their specific performance in equity, requires their proper interpretation and construction. By the former is understood the act of finding out the true sense of the words embraced in the contract, so as to enable others to derive from them the same idea which the contracting parties intended to convey. The latter relate rather to the drawing of conclusions concerning subjects lying beyond the direct expressions contained in the instrument; or to such as are fairly within its spirit, although not within its letter. The great object of both is to arrive at the intention of the parties by a fair construction of the words which they have made use of in mutually binding each other to the performance or omission of certain acts or things, which they have attempted to specify in their agreement. To facilitate this the more readily, the law, through the medium of Courts of justice, has devised certain rules of interpretation and construction, which are not merely conventional rules, but are the canons by which all writings are to be construed, and the meaning and intention of men to be ascertained. These rules or canons of construction are to be applied with consistency and uniformity.

VOL. XI.-9

(129)

In them are found the aids or assistants resorted to both by Courts of law and equity in the administration of justice. Our purpose will be simply to call attention to a few of the most important of these aids in which will be found embraced the canons of construction. Of these there are two principal sources.

First. The consideration of that which is embraced within the instrument which embodies the contract.

Second. That which lies outside of the instrument, but which is accessible for the purpose of modifying its terms, and giving it proper effect.

First. In regard to the first, parties may so draw their contracts as to leave little, if anything, to interpretation or construction. Whenever they clearly express their intention, that will prevail, although they may have been unfortunate in the terms selected for that purpose. Even where terms are omitted they will be supplied if the intention clearly calls for them: as in Bache vs. Proctor, 1 Doug. 382, where the condition of a bond of £2000 was to "render a fair, just, and perfect account in writing of all sums received." The Court held the condition broken by a neglect on the part of the obligor to pay over such sums. See also Doe vs. Spry, 1 B. & Ald. 617.

Where the terms of a promise admit of more senses than one, the question will naturally arise as to what is the rule or criterion to be adopted in the performance of it. The law here adopts the rule of ethics as laid down by Paley, viz., that "the promise is to be performed in that sense in which the promissor apprehended, at the time, that the promissee received it." Gunnison vs. Bancroft, 11 Vermont 493.

Of those rules of construction that are so well settled as to have passed into canons, we may enumerate the following.

1. Whatever sense may be adopted, the construction must be reasonable. To apply this rule properly, it may sometimes become necessary to consider the subject-matter of the agreement. Expressions that may be susceptible of two meanings must be taken in that which best agrees with the matter of the contract. Guier vs. Page, 4 Serg. & Rawle 1, a sale made for "approved

In