in this (article) shall be construed to make valid any instrument which was, at the time of its execution, invalid."33

84

It will be seen that the old law was recast and amended evidently to admit in evidence certified copies of instrurnents recorded in counties other than where the land affected was situated, as article 4641, old article 4333, did not allow this. The amended article of the commission of revision was the law of Texas when Hudson v. Randolph was decided, but it is not cited or in any way referred to in the opinion of the court. The Texas cases citing that article, hold that this statute does not change the decisions as to constructive notice by registration, requiring that a purchaser to be affected with notice, his grantor must be in the chain of title. It is said in the first case that this article of the statute adds nothing to the law as it previously existed; but by this is meant the question of notice as confined to the chain of title. The history of the article is not gone into in any way. This article does not state, "when filed for record," but "authorized, or required to be recorded, which shall have been duly proven up or acknowledged for record, and duly recorded in the proper county, shall be taken and held as notice to all persons"(in the chain of title, is the court's construction) "of the existence of such grant, deed or instrument." "And duly recorded" is not "substantially the same" as the old law; it takes the place of "when filed for record." Equitable Estoppel may exist by negligence or passive conduct-silence on the part of the grantee when it is his duty to speak, as where a grantee for a great length of time holds his deed which has been recorded in the name of another as vendee. The editor of Lawyers' Reports Annotated, states: "The cases are not numerous in which the question of estoppel has turned simply on the fact that the record title was in one person, while the beneficial

35

138

.title was in another.37 Under "Sale by record owner, it is said: There seems to be no question, that if the one having the record title, sells the land to a stranger, who pays the purchase money to him, without notice of the claim of the true owner the purchaser will acquire a good title.39 It is not necessary to an equitable estoppel that the party should design to mislead. If his act was calculated to mislead, and actually has misled another, acting upon it in good faith, and exercising reasonable care and diligence under all circumstances, it is enough. Acquiescence in a forged deed duly registered for 13 years, estops a party to assert a claim to the land. against a party who purchased in good faith in ignorance of the claim of the true owner. Actual fraudulent intent is not essential. 42

41

40

I believe the following propositions are

correct:

(1) In Texas since the taking effect of the Revised Civil Statutes, Sept. 1, 1879, constructive notice of a deed by registration, dates from the time the deed is recorded, and not from the time of filing it for registration. The Commission's Article 4342, so expressly provides, thus giving effect to the ruling of Taylor v. Harrison prior to the adoption of the Revised Civil Statutes.

(2) A deed recorded in the proper volume of the records, where the recorder in transcribing it gives the vendee a different name, from that in the deed, the original

instrument withdrawn from file and withheld for thirty years by those claiming,

(37) (38)

(39)

40)

Note b.

Note c.

Note d. and authorities cited.

Bank v. Hazard, 30 N. Y. App. 30, Vol. 6 Pars. ed. p. 730 and Note a for cited cases. (41) Wampol v. Kountz, 14 S. Dak. 334, 85 N. W. 396, 86 Am. St. Rep. 765, and note p. 769; Pom. Eq. Jur. pp. 802, 804; 9 Ballard's Real Prop. Sec. 251; 63 Am. St. Rep. 167; 138 U. S. 486; 34 L. Ed. 1032; Alexander v. Woodford (Ky.), 14 S. W. 80.

(42) Stevens v. Ludlum, 46 Minn. 160, 24 Am. St. Rep. 210, 48 N. W. 771; Marmes v. Goblet, 31 S. C. 153. 17 Am. St. Rep. 22; Linsey v. Cooper, 94 Ala. 170, 33 Am. St. Rep. 105; Gjerstanengen v. Hartwell, 9 N. D. 268, 81 Am. St. Rep. 575, 83 N. W. Rep. 230; Smith v. Sprague, 119, Mich. 148, 75 Am. St. Rep. 384, 77 N. W. 689.

by or through the grantee shown by the deed, and no attempt made to correct the record, during which time possession was not taken or any active ownership asserted under the deed, by or through the grantee shown by it, and a third party after this lapse of time for a valuable consideration, purchased from or through the grantee shown by the record, and claiming the land, without notice of claim to the land by or through the grantee shown by the deed, such purchaser takes a good title by estoppel.

Livingston, Texas.

JAMES E. HILL.

NEW TRIAL AS REMEDY TO CORRECT ERROR.

CERNEY V. PAXTON & GALLAGHER CO.

Supreme Court of Nebraska, Dec. 17, 1908.

Where a general verdict is set aside for errors occurring at the trial, no part of such verdict can be left to stand; but a new trial must be awarded upon all the issues of fact.

CALKINS, C.: This was an action to recover the value of a stock of goods mortgaged by plaintiff to defendant, on the ground that the mortgage was obtained by a promise that the defendant would see that the goods brought upon sale a certain price, which promise the defendant fraudulently and deceitfully made with the secret intention of not performing it. The first trial resulted in a verdict and judgment for the plaintiff which was reversed by this court. 110 N. W. 882, 10 L. R. A. (N. S.) 640. The opinion by Albert C. contains a full statement of the facts, which it is necessary to repeat. The second trial upon the same issues resulted in a verdict for the defendant, and, from a judgment rendered thereon, the plaintiff now appeals.

A reference to the former opinion will disclose that, while the defendant urged numerous errors, the cause was reversed for an error of the trial judge in an instruction to the jury as to the measure of damages. The order made by this court was that the cause be remanded for further proceedings according to law. It is contended that a trial de novo was not necessary to correct said error, and that on the second trial the district court should have submitted to that jury only the

question of damages, leaving the former verdict to stand in all other respects. Whatever may be the rule where a case is tried by a court which states its conclusions of law and of fact separately, or to a jury to whom is submitted special findings, the practice has been to regard the setting aside of a general verdict by a jury as necessitating a re-examination of all the questions submitted to the jury in the trial which resulted in such verdict. The statutes regulating the course of procedure do not specifically provide for setting aside a verdict in part; on the contrary, the remedy provided for errors committed during a trial, as prescribed by section 314, Code Civ. Proc., is a new trial. We think we may say it is the universal practice for a trial court, upon granting a new trial under said section, to examine all the issues of the case, and that such a practice as setting aside a verdict as to some part of the issues of fact, and submitting such part to another jury, is altogether unknown. When a case brought to this court is sought to be reversed for any of the errors which are specified in section 314, Code Civ. Proc., as ground for a new trial, the making of a motion in the district court for such new trial in the time and manner required by the statute is an essential prerequisite to the right of the party appealing to have such error considered in this court. such cases the appeal is in effect an appeal from the order refusing a new trial. Under section 594, Code Civ. Proc., which provides that, when a judgment or final order shall be reversed either in whole or in part in the Supreme Court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment, it logically follows that since, when a cause is reversed for any of the errors specified in section 314, the court below should have rendered a judgment awarding a new trial, it is the duty of this court to either render the judgment granting a new trial or remand the cause to the court below for such judgment. The plaintiff cites the cases of the Missouri, K. & T. Trust Co. v. Clark, 60 Neb. 406, 83 N. W. 203, and Colby v. Foxworthy (Neb.), 110 N. W. 857; but in neither of the cases so cited was the precise question presented, nor does this case fall within the rule there laid down. Those cases and the cases cited in the majority opinion in the Missouri, K. & T. Trust Co. v. Clark, supra, are authority for the rule that after the reversal of a judgment for error occurring subsequent to the trial, and where the findings or verdict were not disturbed, there is no necessity for

In

a new trial; that in such a case the court should retrace its steps to the point where the first material error occurred, and from that point the trial should progress anew. We are satisfied that where the error preceded the verdict, and the verdict is a general one, there must be a new trial upon all the issues of fact. The plaintiff cites, and quotes largely from the opinion in the case of Lisbon v. Lyman, 49 N. H. 553; and it must be conceded that that case sustains the plaintiff's contention to the extent that this court should have upon the former hearing sent back the case for a new trial upon the one question of the measure of damages. The considerations

urged by the writer of the opinion in that case would have carried great weight, if addressed to a legislative body having the power to take away from the verdict of the jury its omnibus character and provide for specific findings of the different issues submitted to that body. They fail, however, to convince us that such is the law; and, until the nature of the trial by jury is modified, and the character of their verdict is essentially altered we doubt the beneficent effect of any attempt of the courts to by construction change the law so as to split the verdict of the jury into component parts, and try the several issues by different juries. We therefore must adhere to the rule that where a general verdict is set aside for errors occurring at the trial, no part of such verdict can be left to stand, but a new trial must be awarded upon all the issues of fact.

We therefore recommend that the judgment of the district court be affirmed.

NOTE-Partial New Trials.-The principal case, as is seen, plants itself on a supposed techni cality which is greatly doubted as ever in force at common law for the last two hundred years. The leading case in this country on the subject of a new trial being limited strictly to the correction of error in a prior trial may be said to be the case of Lisbon v. Lyman, 49 N. H. 553. Each of the judges expressed himself by more

than a

mere concurrence, and three of them wrote very elaborately. This note cannot be made more illuminating and instructive than by a liberal extract from what was said by the chief justice. He said: "These authorities and many others illustrate the general principle that when an error has happened in a trial, the party prejudiced by it has a right to a correction of the error, but has not a right to a new trial, if the error can be otherwise corrected; and when it can be corrected only by a new trial, it is still the correction of the error, and not the new trial to which he is primarily entitled. The correction of the error is the end; the new trial is a means. There is no general rule that when there has been an error in a trial, the party prejudiced by it has a legal right to a new trial. He has a legal right to a cure of the error, but not to his

choice of remedies. If a new trial is necessary, he receives it, not because it is a general right, but because it happens, in a particular case, to be the only available remedy. It is thus held in reserve as the last resort, because it is more expensive and inconvenient than other remedies; an unnecessary new trial would be an unnecessary injustice and an unmixed evil. That is the theory of the common law. And so far as a new trial goes beyond the necessity of its use, so far is it an unnecessary injustice and an unmixed evil. That is but a branch of the general theory. The general theory of the law and all its analogies, its reason and its justice, concur in the conclusion that a remedy, of whatever form, shall be administered no farther and no longer than is necessary to effect a cure of the error to which it applied. It happens in this case that the error cannot be corrected without a new trial. Therefore indirectly, secondarily and consequentially, the defendant has a legal right to a new trial. A new trial of what? Upon every ground of legal principle, strict logic, common sense and natural justice, the defendant has a legal right to nothing more than a new trial that will correct the error, the correction of which is all the defendant is entitled to; and such a new trial is of that part of the case only which contains the error. In granting a new trial of that part of the case, the defendant's right is not limited, but is maintained in its widest and fullest extent. * * But if a new trial were granted to the defendant of questions which have been correctly tried and rightly decided, that would be an exercise of arbitrary power of which the plaintiff and the public would have reason to complain. an unnecessary new trial would be an unnecessary expense and burden to the plaintiff and the public. When defendant asks the court to deprive the plaintiff of the ground fairly and legally won, and to put the plaintiff to another expensive, laborious and vexatious campaign to recover the same ground a second time, it is for the defendant to show how such an extraordinary, unjust and unconscionable demand can be sustained. On the face of it, such a demand is an appeal to despotic force. A power that would indulge itself in the needless and indiscriminate destruction of those parts of a costly verdict in which there is no error, can be paralleled only by a power that would destroy an entire verdict without cause.

*

Such

The weight of the decisions in other jurisdic tions taken together preponderates decidedly in favor of a new trial of so much of a case only as is necessary to be retried in order to correct the errors of a former trial."

All that might be added to what is thus so eloquently and logically stated, might be to remark that the new trial remedy, going beyond what is wrong to upset what has been legally established, puts it in a class by itself. It is easily seen to be abhorrent to justice for any other remedy to be so employed and there are decisions rendered every day where courts restrict and pare down to exact justice all relief prayed for. The Lisbon case cites and quotes from common law authority to show that later development of the common law prior to our independence, repudiated the theory of a new trial in toto, where it was not absolutely necessary to correct error committed at the former trial. American courts, like the court in the principal case, misconceiving, as seems to me, the common law

rules have construed statutes as to power of appellate tribunals, as enlargement of the common law power and instead of giving them a liberal, have given them a restrictive, construotion. Judge Rombauer, of the St. Louis Court of Appeals, in Overbeck v. Mayer, 59 Mo. App. 289, seemed not troubled by the Missouri statute. in this way, for he said: "The supreme court has repeatedly held that a cause may be remanded for the retrial of specific issues only, leaving the finding on other issues in the case intact. Our practice act expressly provides for the separate trial of issues, if in the opinion of the court, separate trials are proper. Where the error in the trial relates to certain issues only, which are in no way dependent for their proper trial on certain other issues already satisfactorily tried, no satisfactory reason is perceptible why a cause may not be remanded for the trial of the issue erroneously tried and for that alone." It should be said, for clearness, that the practice act referred to did nothing more than to authorize the trial court, in advance of any trial, to separate the issues for separate trials, and the learned judge could only have instanced it to show the spirit of Missouri jurisprudence, and, it must be conceded, he did not think the statute defining the powers of appellate courts contained any language either forbidding or expressly providing for such a remand. A later case from that supreme court, Third National Bank v. Owen, 101 Mo. 558, said: "The only error we find in this record requiring a reversal is that of the court striking out defendant's plea of fraud. For that error the judgment must be reversed and the cause remanded in order that issue may be joined on that plea. If that issue shall be found for defendant, that will end the case; if found for the plaintiff, then judgment may be rendered on the report of the referee; in neither event will it be necessary to go over again the immense work that has already been done in the case and incur the additional cost thereof, when manifestly it has been so well done and has produced a correct result so far as done." But these two Missouri cases have not the vigor of pronouncement they should have had. They should have announced that the court had no right in law or justice to order anything else, if the error committed was fairly separable from what was correctly tried, as the Lisbon case holds. A litigant has as much right to the constituent things of a case, which have been properly established, as he has to any entirety thus established. In North Carolina it has been followed for nearly a hundred years as a common law principle, that partial new trials should be granted.

the application is made, unless by way of alternative, which he must accept or endure the new trial. Certainly it was never known that the party applying could have the issues found against him opened, while those in favor of his adversary, who asked no indulgence and received none in return from the court, when it was employed merely in correcting its own error." It seems to me, however, that this announcement is not sound, for if error gives legal right to its correction, one should not be compelled to imperil what has been established properly in his favor by asking for its correction. The right to have material error corrected is an absolute right, and no terms should be imposed upon its being granted. In Georgia, one who has been called its greatest jurist, Judge Logan E. Bleckley, thought that a statute giving the supreme court power "to award such order and direction to the cause in the court below as may be consistent with the law and justice of the case," was ample authority for a restricted new trial and it was proper to confine the jury to a question of damages, though he thought the evidence showing the right to recover "was not satisfactory." The court said: "To the extent of settling the right, the verdict should stand as final and conclusive." Powell v. Railroad, 77 Ga. 192, 3 S. E. 757. This principle was again applied in Georgia R. & B. Co. v. Daniel, 89 Ga: 463, 15 S. E. 538. A late case from Rhode Island shows a statute similar to that in Georgia and a remand confined the retrial to the question of damages. Newhall v. Egans (R. I.), 68 Atl. 471. In Montana the partial new trial theory was evolved by other than statutory construction. Brunnell v. Cook, 13 Mont. 497, 34 Pac. 1015; Haggerty Bros. v. Lash, 34 Mont. 51. 87 Pac. 907. In Indiana the principle also has been applied, but not as a rule of very general force. Thus it was ruled that where two parties were sued and the judgment right as to one, but error was committed as to the other, the new trial was limited to the latter. Duckwall v. Kisner, 136 Ind. 99, 35 N. E. 699.

not a

When Remittitur Should be Conditioned on Partial New Trial.-In Massachusetts it has been held that "the assessing of excessive damages is reason for setting aside a verdict and granting a new trial so as to open the merits of the case, but a new trial may be granted with respect to the assessment of damages only." Boyd v. Brown, 17 Pick, 461. If this principle is true, then it is not proper to exact of a plaintiff that he should remit from his recovery any part of his damages or submit to a new trial in toto, if the question of damages is separable from the

At all events, the court should say before it requires a remittitur or a full new trial-that it appear that this question cannot be separately tried. If it could be, the exaction of an unrestricted new trial is not properly imposed. I have failed to find any case of the many, which require such remittiturs, that the alternative is a partial new trial. It would, in almost every case be a material factor in an appellee's conclusion to remit or not remit, whether the new trial is to be upon the whole case or as to a specific issue or issues. The federal supreme court expressed itself as in doubt about partial new trials in a case where it was found not necessary to decide the question. Hodges v. Easton, 106 U. S. 408, 27 L. Ed. 169.

N. C. COLLIER.

JETSAM AND FLOTSAM.

WAITING FOR CLIENTS TO COME.

A young lawyer in Texas, who has grown discouraged over the prospects for business, penned the following verses:

I sit in my office disconsolate,
Restless, blue and glum.

There are numerous things I ought to do
But I am waiting for clients to come.

Some folks say, "go out and get 'em,"
Inveigle them into the room;

But there's ethics in the profession
So I wait for clients to come.

The dago sella de peanuts,

Other people "maka de mun;"

But there's nothing on earth for a lawyer to do,

But wait for the clients to come.

You can be a lawyer if you want to-
But I'd a durn sighter be a bum.

And eat free lunch and drinka d'beer
Than wait for the clients to come.

CORRESPONDENCE.

LAISSEZ FAIRE IN THE UNITED STATES. Editor Central Law Journal:

I have read with a great deal of interest the articles on Laissez Faire in the United States, and think the subject ought to be extended, as it is one upon which the legislators seem to have gone beyond all reason in this state. Our supreme court in State v. Redmond, known as the berth in Pullman car case, cited also in Bonnett v. Vallier, 116 N. W., known as the tenement house law, but which practically described how every building should be built. give the foundation material for an extension of that article.

I have, for instance, up, the state bakery law, which regulates bakeries and provides among other things that the floor of old bakeries must not be more than eight (8), and new bakeries, five (5) feet below the level of the sidewalk, nor in any room the ceiling of which is less than eight (8) feet high from the floor, nor a bakery re-opened in a room which has not been used for a bakery for six (6) months.

No

As the field is new, I believe it to be a subject upon which the article should be continued to cover all classes of business and buildings, besides other subjects within the field. doubt, the intermediate courts have had the question up, and it would be a great aid to lawyers should you continue the subject.

ally apposite, its meaning clear, and its legal effect apparent.

Assuming that the statute of N. D. follows those of the great majority of the states, and makes the use of words of inheritance unnecessary in a devise to carry a fee interest, and applying the well-settled rule to the second paragraph of item third of the will, which application would refer the deaths provided against therein, to deaths occurring in the lifetime of testator, the legal effect of the provision of the will is plainly apparent. The two sons named took a fee interest in the real estate, subject to the nossessory right of the mother, also subject to the payment of debts, legacies, etc.

The rule referred to is well stated in an excerpt from the opinion of the court in In Re New York, Lackawanna & Western Railway Co., 105 N. Y. 89. quoted in a note to Section 676, Page on Wills.

Judging from the article and copy of the will in your publication, whatever of mental cloudiness appears, is rather in the mind of the city laer who robated the will "as one, of your subscribers," and not in the mind of the country lawyer who drew the will.

LIMITING HOURS OF WORK FOR WOMEN AND CHILDREN.

Editor Central Law Journal:

I have just read the second installment of the article entitled, "Laissez Faire in the United States," by Mr. W. A. Coutts, (68 Cent. L. J. 118). On page 120 in the paragraph entitled "Limiting Hours of Work for Women and Children," he cites, and comments on, the case of Lochner v. New York, 198 U. S. 45, as being the law. It appears to me that the author of this very interesting article has overlooked the case of Muller v. Oregon, 208 U. S. 412, 52 Law. Ed. 551, (Same case 48 Ore. 252; 85 Pac. 855), where the Federal Supreme Court held that a statute limiting the hours of work for women in factories, laundries, etc., to ten hours per day (Laws Oregon, 1903, p. 148), does not infringe the rights under the 14th amendment. Yours very truly,

Portland, Ore.

ROBERT H. DOWN.

BOOK REVIEWS.

STREET RAILWAY REPORTS, VOL. IV. Specialization is the theme of all modern movements of successful achievement in any branch of earthly endeavor The man in any business, who is not content to abide within narrow confines, will evaporate his energy in the marsh of mediocrity. Nor is the law an exception to this modern law of progress. And thus we have considerable specialization, both in the practice of law, and in legal authorship. Among the published law reports in which this principle of specialization is prominent are the Street Railway Reports, annotated. These are quite useful volumes to attorneys interested in street railway litigation as it brings to such, not only all the reports bearing upon their specialty, but competent annotations, which explain and harmonize the sometimes apparently con