fendant in a criminal action, by becoming a witness in his own behalf, thereby consents to his wife's testimony, and is obliged to produce her to rebut an alleged presumption of his guilt, what an anomalous position he would be placed in if, after having called her as a witness, she should refuse to testify for him. Her refusal in such case would doubtless be construed by the jury as evidence of her knowledge of his guilt, when perhaps, her real motive for refusing to testify was to secure his conviction of a felony for a selfish purpose, and thus make her silence serve the purpose of the incriminating evidence, which she is prohibited by statute from giving. The case of Mercer v. State, supra, is not in point, for no such presumption or inference as the prosecuting attorney sought to apply can be indulged in under a statute like ours and it was error to permit his argument to go to the jury under the sanction of the court.

ACCIDENT INSurance-DeATH FROM "TAKING POISON."-In Travelers' Ins. Co. v. Dunlap, it is held by the Supreme Court of Illinois that an accident insurance company, whose policy insures against death from injuries through "external, violent and accidental means," unless it is caused from "taking poison," "suicide," etc., is liable for death from the accidental taking of poison. The court says:

It is settled by the judgments below that the death of the insured was caused by accident. Mistaking a bottle of carbolic acid for peppermint, which he wished to take for some ailment, he poured a portion of the acid into a glass of water, drank it, and died from the poison. The only question presented for our decision is, is the appellant exempted from liability on the ground that the insured died from "taking poison" within the meaning of the policy? Appellant contends that it is so exempt by the terms of the contract; that the term "taking poison," as used in the policy, and according to its ordinary signification, includes accidental, as well as intentional taking; and cites Pollock v. Accident Assn., 102 Pa. St. 230, which so holds. Appellee, however, contends, and in this she is supported by the appellate and circuit courts, that the words "taking poison," as employed in the policy, and in view of the rules of construction applied by the courts to such instruments, mean the voluntary, intentional taking of poison, and do not include cases of accidental poisoning; and counsel contend that this court has, in effect, so decided in Healey v. Accident Assn., 133 Ill. 556, 25 N. E. Rep. 52. While the precise point here at issue was not discussed in the opinion in the Healey Case, yet it was involved in the decision, and is within the reasoning there employed. The leading cases on this subject were reviewed in the Healey Case, including Paul v. Insurance Co., 112 N. Y. 472, 20 N. E. Rep. 347, and Pollock v. Accident Assn., 102 Pa. St. 230, and it was then said: "While we recognize the high ability of the court in which the case (the Pennsylvania case) was decided, we are not disposed to follow the rule there adopted. We think the rule established by the Court of Appeals of New York one better calculated to carry out the true intention of the parties when the contract of insurance was entered into, and one, too, more nearly in harmony with the current of authority bearing on the question." See also Pickett v.

Insurance Co., 144 Pa. St. 79, 22 Atl. Rep. 871; Menneilley v. Assurance Corp. (N. Y. App.), 43 N. E. Rep. 54. We are inclined to the opinion that the term "taking poison" would also, in common parlance, when used without any qualifying words, be understood to mean an intelligent and conscious act. If, in speaking of the cause of the death of another, we should say, "He took poison," we would most commonly be understood to mean that his act in taking poison was intentional, rather than accidental, and it would hardly be deemed necessary to say "he intentionally took poison;" and if it were designed to avoid such understanding, we would naturally say "he ac cidentally took poison," or would use some other qualifying words indicating that the act was acci dental, or its cause doubtful or unknown. It must, however, be conceded that the meaning of the term in the respect mentioned is not free from doubt. Able and learned arguments have been made on each side of the question by counsel, and cases are cited showing that courts of high authority do not agree on the subject. It would, therefore, seem to be eminently proper in such a case to apply the well-known rule of construction applicable to such instruments, that where there is doubt or uncertainty as to the meaning of the terms employed, the language, being that of the insurer, must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim, to indemnify which, in making the insurance, it was his object to secure. Healey v. Accident Assn., supra; Insurance Co. v. Scammon, 100 Ill. 644; May, Ins. § 175. Counsel for appellant insist that, using their own language: "An exception from an accident policy can only be of some accident otherwise included within it; for, if the cause of injury or death be not accidental, it is manifestly not within the scope of the policy at all. Hence, an exception of 'taking poison' means, ex vi termini, the exception of an accidental taking of poison." It is clear, however, that the so-called "exception" is something more than a mere exception excluding what would otherwise be included as accidents, for suicide by a sane person could not be said to be an accident, yet it, with other causes of death and injury not accidental, are embraced in the exception. It is also said that the term "taking poison" cannot be limited in its meaning to the intentions) taking of poison, for the reason that death so caused is covered by the clause relating to suicide, and to so construe it would give no force whatever to the words "taking poison." Counsel are mistaken also in this contention. When the entire provision in which those words occur is considered, it is too clear for argument that it is recognized that death may result wholly or partially, directly or indirectly, from voluntarily taking poison, without any suicidal intent; and that death so caused, while excepted from the risks covered by the policy, would not be so excepted by the suicide clause. Besides, different kinds of accidents and injuries not resulting in death caused by the voluntary taking of poison might be excluded from such risks by this provision. It would not be difficult for the insurer to use language which, in respect to the question here under consideration, would be free from doubt. A policy of insurance should not be so framed as to be susceptible of one construction in the hands of the soliciting agent, and of quite a different one in the hands of the adjuster.

MASTER AND SERVANT-TRADE SECRETS— DETENTION OF EMPLOYEE'S BOOKS.-The Su

preme Court of Pennsylvania holds, in Dempsey v. Dobson, 34 Atl. Rep. 459, that a carpet manufacturer has a right to the continued use, in his own business, of recipes for mixing colors, prepared by an employee whose duties require him to prepare mixtures of colors which will reproduce the shades indicated by designs submitted to him, and to enter the recipes in a book furnished for that purpose, and which are necessary for the immediate manufacture of the carpet designed, and its subsequent reproduction. And that where a color mixer in a carpet manufactory, without the knowledge of his employers, entered the recipes in his own, instead of his employers', color books, and, on the employee's discharge, his employers, believing the books their own, refused to let the employee take them away, the jury should be instructed, in an action by the employee for the detention, that the value of the recipes could not be considered in estimating the damages, and that, in considering violence in the detention as an element of damages, they must consider the negligent conduct of the employee, and that his employers were led thereby to believe that he was carrying away their own books. Upon the law of the case the court says:

The designer and the color mixer, like the printer and the weaver, are employed, and their wages adjusted, with reference to their skill and experience in the department of work to which they are assigned. They are not independent contractors, producing designs or shades of color by a secret process of their own, which they sell, as patterns or colors, to the manufacturer for a fixed price; but they are employees, bringing their skill and experience, in the use of the materials furnished by their employer, into his service, for his benefit in the production of his goods. The designs and recipes so made for him are, as between his employees and himself, his, for the purposes of his own manufacturing business. Even if his employee had obtained letters-patent for his formula, protecting himself thereby against the public, still the employer's right to continue its use would be protected by the United States courts. Solomons v. U. S., 187 U. S. 342, 11 Sup. Ct. Rep. 88. The same conclusion was reached by this court in Slemmer's Appeal, 58 Pa. St. 155, where we said: "If one employed by another, while receiving wages, experiments at the expense of his employer, constructs an invention and permits his employer to use it without compensation paid or demanded, and then obtains a patent, a license to the employer to use the patent will be presumed." But this case is much stronger than that of one who obtains a patent, as in Slemmer's Case, for here the experiments resulting in the reci pes were not only made at the expense of the employer, but for him, and with a view to the immediate use of their results in his business. It was the sole

and only purpose for which the color mixer was em ployed and paid.

In the manufacture of carpets, the spinning of the yarn is no more a part of the process than is the preparation of the colors to be made use of in working out the pattern. The fact is that the spinner and the weaver, the color mixer and the printer who uses the colors, are all alike in their relation to their com. mon employer. The labors of all are necessary to the production of a carpet, and the results of the labor of all belong to the employer, who pays for the labor. The recipes prepared by the color mixer, for the use of his employers in the manufacture of their carpets, belonged to them, so far, at least, as to give them the right to continue the use of the various colors and shades produced by them. The plaintiff had a right if he chose so to do, to preserve them for his own use in the future; but his right was not an exclusive one. It was his duty, by virtue of his employment, and by reason of the relation his work bore to his employers' business, to enter all these recipes in his employers' color book; for none of the patterns of carpet manufactured during the twenty years of the plaintiff's service could be reproduced without the use of the same recipes, for the preparation of the colors to be employed, that had been used when the pattern was first produced. This duty, to put it in the mildest form, the plaintiff had improperly neglected. His employers were left under the belief that their color books had been used, and that the books he was attempting to carry away were, in every sense of the word, their own property. Had this been true, their conduct in requiring him to leave them in the mill would have given the plaintiff no cause of action. In respect to this subject the mistake under which they labored was due to the plaintiff's failure in duty as an employee. He had pushed the blanks furnished to him to one side, and had used only his own, and had left his employers in ignorance of his conduct. Now, let it be conceded that the books he was attempt. ing to carry away were his own. It is, nevertheless, true that they contained the only record of the recipes used in the mill for twenty years, and that these recipes were a part of the stock in trade of his employers. Not, perhaps, the particular copy of them which the plaintiff had entered in his own books, but the processes and combinations they represented, belonged, for the purposes of their business, to them; and, as between him and them, they had a right to some record or register of recipes.

If the plaintiff had a right to recover in this action, because of the ownership of the books in which the recipes had been entered, and the manner of their detention, when he attempted to take them away, the jury should have been instructed that the value of the recipes were not to be considered in estimating the damages. As between these parties, as we have already said, the plaintiff had no exclusive right to them. It was his duty, as a color mixer, to enter each formula in his employers' book. They had a clear legal right to the knowledge which such a record would afford them, and the copies they have made from his books should have been made for them by the plaintiff, as the several colors were compounded during his long term of service. The plaintiff's claim for damages must rest on the fact that he owned the books that were kept from him. In addition to this, anything in the manner of the detention that shows unnecessary violence or disregard for the sensibilities or the self-respect of the plaintiff may be considered. But the jury should be told, in this connection, that they should also consider the conduct of the plaintiff,

his disregard of his duty and his instructions in making no entries in his employer's color books, and his failure to disclose this fact to them, and leaving them under the honest belief that he was removing from their mill their own color books.

CARRIERS OF PASSENGERs-Baggage.—In Beers v. Boston & A. R. Co., 34 Atl. Rep. 541, decided by the Court of Errors of Connecticut, it was held that where a carrier received baggage for transportation, mistakenly supposing that the owner thereof had purchased tickets over its road when in fact they had purchased tickets over another road, it owed to the owners the duty of abstaining from anything amounting to willful or wanton injury to their property while in its possession, and hence was not liable for the destruction of the baggage, in common with its own property, caused by attempting to run the train in which the baggage was placed upon an unguarded bridge, which was, and long had been, so defective that it could not sustain such a burden. The court said, in part:

Actionable negligence is the neglect of a duty. What duty did the defendant owe to the plaintiffs? Simply that of abstaining from anything amounting to willful or wanton injury to their property in its possession. Gardner v. New Haven & Northampton Co., 51 Conn. 143, 150. That cannot be deemed a wanton exposure of it to destruction which consisted only in running a train of cars upon an unsafe bridge, by which its own property, as well as theirs, was involved in a common loss. "Negligence signifies a want of care in the performance of an act by one having no positive intention to injure the person complaining of it." Pitkin v. Railroad Co., 64 Conn. 482, 490, 30 Atl. Rep. 772. It is true that this definition might not exclude the liability, in some instances, of a principal, on the ground of negligence, for damage consequent upon a direct act of violence or trespass on the part of servants, but this is not a case of that description. The gross negligence with which the defendant was chargeable consisted wholly of omissions. There was no willful wrong, nor yet such reckless misconduct as can be deemed its equivalent. Had the defendant voluntarily assumed the position of a "depositary" (taking this term in its strict meaning of a bailee without reward), it would not have been bound under the rules of the Roman law (which have become a part of the common law) to treat the plaintiff's property with any more care than it gave to its own. Coggs v. Bernard, 2 Ld. Raym. 909; Dig. 163,"Depositi vel Contra." Good faith would have been the measure of its obligations. Dig. 16, 3, 20. He who intrusts his property to a careless man, if loss ensues, must lay it to the account of his own imprudence in putting it into such hands Inst., 3, 15, Quibus Modis Re Contrahitur Obligatio," 3. But in the case before us the elements of a bailment are wanting, for there was no contract, express or implied, between the parties 2 Kent. Comm. *780. The defendant's obligations, not being contractual, were less than those attaching to bailees of any class. No man can have the care of another's property thrust upon him,

without his invitation or consent, in such a way as to raise a duty calling for the performance of positive acts of protection. He might be bound to refrain from acts of direct injury. This is a mere negation of wrongdoing. A man acts at his peril; but he is never liable for omissions, except in consequence of some duty voluntarily undertaken. Holmes' Com. Law, 82. Had the defendant willfully thrown the plaintiffs trunks from the bridge into the stream below, a liability would have been incurred; but this would have been an act of violence, not an absence of care. Gross negligence is not actionable where not even slight care was due. Dunlap v. Steamboat Co., 98 Mass. 371, 379. However blameworthy, it is still essentially different from intentional wrongdoing. "Magna negligentia culpa est, magna culpa dolus est." Dig. 50, 16, "De Verborum Significatione," 226. Had the checks indicated that the trunks were to be sent over the river route, their reception by the defendant for carriage over its route would have presented a very different question. Fairfax v. Railroad Co., 73 N. Y. 167, 170.

FORECLOSURE OF BUILDING AND LOAN ASSOCIATION MORTGAGES.

The purpose of this paper is to collate authorities which shall indicate the proper method of drawing a bill in equity to foreclose a mortgage given to a building association and secured by collateral pledge of stock issued to the mortgagor. By way of introduction it may well be pointed out that there are three principal classes of building and loan association mortgages: (1) that in which the condition calls for regular stock payments of fixed amounts and the performance of membership duties generally, together with the payment of redemption money, or dues or interest on the loan up to the end of the association's existence; (2) that in which in addition the sum advanced is made repayable; (3) that in which the nominal amount of the loan, the par value of the shares advanced, thus including the premium, is made payable, with interest (upon the whole sum or only an actual sum advanced, as the statute permits or sanctions), stock payments, etc., being stipulated as in other cases. It is the stipulation of the payment of dues and performance of certain membership duties which constitute the differentia of the building and loan association mortgage, but the class in which the stipulation is simply for dues, etc., without any superfluous adjuncts concerning repayments is to be regarded as the proper type of building and loan association mort. gages. In case the stipulations for the pay

ment of dues and interest are not complied with by the mortgagor, there is a provision inserted in the mortgage for the foreclosure and sale of property mortgaged, and the proper course of procedure is a bill in equity for the purpose of taking a preliminary account of the actual arrears and charges standing against the borrower up to the time of decree; and the charges consist of the items enumerated in the mortgage, monthly interest, installments, fines, rents, taxes, insurance, costs, etc., if any such be in arrears1 deducting therefrom all credits to which the borrower is entitled. If the borrower pays the amount thus found against him the sale will be prevented and the decree will stand as security for future payments.2 If he fails to pay them, the sale must take place and the premises mortgaged will be discharged of the incumbrance. As to the amount to be credited to the borrower on his stock payments, in the leading case on this subject, the rule is stated thus: "Ascertain by proof the probable duration of the society, then estimate the aggregate amount of the weekly and monthly installments payable during that time, from that sum rebate a just amount of interest, and add thereto the arrearages due, after allowing for payments made to the society, and the sum thus ascertained is the amount which the mortgagee is entitled to receive in præsenti in satisfaction of the mortgage." The same principle seems to be expressed in Ohio.5 The rule in the Maryland case has been approved, recognized or referred to in many cases, but the rule stated is not followed in Kansas, as there the transaction is regarded as a mere loan.7

4

6

1 Endlich on Law of Bldg. Ass'n, secs. 428-440.

2 Robertson v. Homestead Ass'n, 10 Md. 399; Hagerman v. Ohio B. & L. Ass'n, 25 Ohio St. 186. See, also, Somerset County B. C. & L. Ass'n v. Verderverve, 3 Stock. (N. J.) 383.

3 Endlich on Law of Bldg. Ass'n, sec. 428.

4 Robertson v. The Am. Homestead Ass'n, 10 Md. 397.

5 Cinn. German Bldg. Ass'n No. 3 v. Floch, 1 Rep. Cinc. Super. Ct. 468, approved in Hagerman v. The Ohio B. & L. Ass'n, 25 Ohio St. 186; see, also, Risk v. Delphos Bldg. & L. Ass'n, 31 Ohio St. 517, 29 Ohio St. 252.

Home Mut. Bldg. Ass'n v. Thursby, 58 Md. 288; Hoboken Bldg. Ass'n v. Martin, 2 Beas. (N. J.) 428; City B. & L. Co. v. Fatty, 1 Abb. App. Dec. (N. Y.) 347; Citizens' Mut. L. & A. F. Assoc. v. Webster, 25 Barb. (N. Y.) 263; Richards v. Bibb Co. L. Ass'n, 24 Ga. 198.

↑ Hekelnkaemper v. German Bldg. & Sav. Ass'n, 22 Kan. 549; Glynn v. Home Bldg. Ass'n, 22 Kan. 746.

In

In Alabama, also, the transaction is viewed as a loan, and all payments are applied first to the reimbursement of expenses incurred by the association in the conservation of the property held as security for the loan.8 Texas it has been held that a stockholder cannot have his payments on stock applied in satisfaction of a loan until the stock has matured." In New Jersey fines imposed by an association on default in payment of dues on stock cannot be collected by foreclosure of a sum borrowed or even on foreclosure of a mortgage or bond given to secure dues and interest unless the parties have agreed fines might be so collected. 10 A bill to foreclose should show the condition of the shareholder's stock and the series to which it belongs and how near shares are to maturity." A shareholder may set off as against the amount due by him to the association under a mortgage claims held by him against it, such as balances due from the association to members who had withdrawn and had assigned their claims to the mortgagee.12 It has been held that in ascertaining the amount due the court is bound by the terms of the mortgage and cannot look beyond into the articles of association, unless the instrument refers to the articles in such a manner as to make them part of the mortgage or call the attention of the court to them.13 But the court. may examine the articles of association to determine when the mortgage contract terminated.14 A sale under foreclosure of the mortgaged premises and an application of the previous stock payments made by the mortgagor to the extinguishment of the mortgage debt, terminates the mortgagor's membership in the association and his obligation to continue payment of dues until the organization ceases. 15

8 Mut. Loan Ass'n v. Robinson, 69 Ala. 413. Compare Sec. Loan Ass'n v. Lake, 69 Ala. 456.

9 Blakely v. El Paso B. & L. Ass'n, 26 S. W. Rep. 292.

10 Bowen v. Lincoln B. & L. Ass'n, 51 N. J. Eq. 272. 11 Chas. Tyrell B. & L. Ass'n v. Haley (Pa.), 20A. 1063, 27 W. N. C. 244.

12 Hennighausen v. Fischer, 50 Md. 583.

13 Robertson v. Am. Homestead Ass'n, 10 Mo. 397, 69 Am. Dec. 150.

14 McCahan v. Columbian Bldg. Ass'n of E. Balt. No. 2, 40 Md. 234-6.

15 McCahan v. Columbian Bldg. Ass'n of East Balt. No. 4, 40 Md. 239. See also, 10 Md. 397; 36 Mo. 383; Watkins v. Workingmen's Bldg., etc., Ass'n, 97 Pa.

St. 514.

If, however, neither the building association nor the borrower applies the previous stock payments toward the extinguishment of the debt, and the association collects the whole sum due from the sale of the mortgaged premises, the whole debt undiminished by any stock payments is returned to the society. The stock remains intact and the member continuing to hold it retains his membership,16 and is entitled upon final distribution to his share in the association's profits. It is a well recognized doctrine that payment of dues upon the stock are not payments upon the mortgage debt, and do not ipso facto work an extinguishment pro tanto of the mortgage.17 The stock and the debt The stock and the debt exist distinctly and independently of each other. "The stock is a collateral security for, and not a credit on, the bond."'18 This rule is still adhered to in Texas where, in the absence of a direct contract provision, the borrower has not the right to have stock payments applied to the extinguishment of the loan. There are two relations, one as borrower and one as stockholder.19 But, notwithstanding, the borrower by virtue of his membership has a right at any time to apply his stock payments toward the extinguishment of his mortgage debt and in case of default by the borrower, the association may make a like application.20 Statutes in most of the States provide for the manner in which repayment of loans should be made, and control the amount of premium to be refunded. In Illinois the statute governing repayment of loan and refunding of premium provides: "A borrower may repay a loan at any time, and in the event of the repayment thereof before the expiration of the eighth year after the organization of the association or the date of issue of the series of stock in such association on which the loan may have been made, there shall be refunded

16 N. American Bldg. Ass'n v. Sutton, 35 Pa. St. 463. 17 Overby v. Fayetteville B. & L. Ass'n, 81 N. C. 56; 84 N. C. 838; 35 Pa. 463; Barker v. Bigelow, 15 Gray (Mass.), 130; Mechanics' B. & L. Ass'n v. Conover, 1 McCart. (N. J.) 1219; Hekelnkaemper v. Ger., etc., Ass'n, 22 Kan. 549.

18 Dodd, J., in State Washington B. & L. Ass'n, Pros. v. Hornbacker, 13 Va. (N. J.) 635.

19 Blakely v. El Paso B. & L. Ass'n, 26 S. W. Rep. 294; Ass'n v. Lane, 81 Tex. 369; Ass'n v. Abbott, 85 Tex. 220.

20 Spring Garden Ass'n v. Tradesmens' Bldg. Ass'n, 46 Pa. St 493; Early & Lane App., 89 Pa. St. 411, 35 Pa. St. 463, 97 Pa. St. 514, 93 Pa. St. 258.

to such borrower one-eighth of the premium paid for every year of the said eight years then unexpired: provided that where the said premium has not been deducted from the loan, but paid in installments, there shall be no premium refunded."? 21 The rule for ascertaining the absolute value of the stock at any given time which may be used in reducing the mortgage debt, is to find the total gross amount of all the stock payments made by the member up to the time of default or repayment, allowing no interest on any of them, the interest he has paid on his loan standing as interest to his credit. 22 Those who take loans may apply them (stock payments) on the final adjustment of the loans, to the discharge of the loans; but they are to be applied in a gross sum, without any allow. ance of interest thereon." 28 Unless expressly provided by the governing statute of the State or the by-laws of the association, the borrower upon voluntary repayment cannot obtain a proportionate share of the profits of the association up to the time of repayment.24 And even where express provision exists in the constitution or by-laws, a defaulting member of an association cannot claim the benefit of a proportionate share in the profits up to the time of such default.25 Inasmuch as the relations of the mortgagor as debtor of the building association appear in two aspects: (1) as a debtor whose debt is evidenced by a note or bond secured by a mortgage; (2) as a stockholder in a corporation (the mortgagee) which has accepted his stock as a collateral security for the debt, it follows that the bill to foreclose such a mortgage must be not alone and strictly a bill of foreclosure, but likewise a bill upon the basis of which issues may be made and evidence taken concerning the amount and value of the shareholder's stock, so that it can be ascertained what sum of money representing such value shall be set-off against or applied upon

21 R. S. Illinois, ch. 82, sec. 77.

22 Endlich on Law of Bldg. Ass'ns, sec. 456. 23 Barker v. Bigelow, 15 Gray (Mass.), 1:30-137. 24 Mechanics' Bldg. & L. Ass'n v. Conover, 1 MeCart. (N. J.) 219; Link v. Germantown Bldg. Ass'n, 89 Pa. St. 15; McGrath v. Hamilton Bldg. Ass'n, 44 Pa. St. 383; Watkins v. Workingmens, Bldg. L. Ass'n, 97 Pa. St. 514.

25 Endlich on Law of Bldg. Ass'ns, secs. 175, 156; Anderson B. & L., F. & Saving Ass'n v. Thompson, 4 Am. & Eng. Corporation Cas. 196; 88 Ind. Rep. 445; Barry on Law of Bldg. Ass'n, sec. 26; 15 W. N. C. (Pa.) 340.