SOME RECENT DECISIONS.

The 12th volume of the American Reports is one of the most important that has appeared. It presents decisions of the ultimate courts of Connecticut, Georgia, Virginia, Kansas, Massachusetts, Michigan, Mississippi, New Hampshire, North Carolina and Vermont, as reported in eighteen volumes of State reports. The editor has contributed some fifteen notes, several of which are of great length and learning. We think the series is constantly increasing in interest and value, and that it must eventually become, if it is not already, an indispensable part of every lawyer's library. Perhaps we cannot do better than to make an abstract of a few of the most striking cases in the present volume.

In Gray v. Jackson, 51 N. H. 9, it is held, that where a common carrier between P. and B. takes a package at P. for R., a place in another State beyond his terminus, the question whether he undertakes as a carrier beyond B. is one of fact, and the law of the place where the loss occurs governs the rights of the parties. The first and much mooted question is learnedly discussed by Judge Doe in an opinion of 39 pages. The judge quoted the following humorous language of Senator Bockee, in the old court of errors of this State, in the celebrated case of Van Santford v. St. John, 6 Hill, 157: "Suppose the box had been marked Brown's Hole, Rocky Mountains,' says the Senator. If the law implies a contract to deliver the box at that place, he observes, as it is the duty of every man faithfully to fulfill his contracts, the carrier "must abandon his ordinary avocations and business, leave the delights of domestic association, embark with his dearbought freight, and follow the long lines of internal navigation until he reaches the head-waters of the Yellow Stone. Then he must traverse a vast desert, with Indian horses and pack saddles, exposed to famine, to the wintry storms, to wild beasts and savages; and if Providence should protect him through every danger, he returns, after years of suffering, a worn out beggar to a ruined home." This language was quite effectual in its day, but the journey to "Brown's Hole" now-a-days is a very different affair, and, instead of being tedious, perilous, or difficult, is a much-sought recreation. The Senator's law is still good, but his rhetoric has lost its force.

The liability for malfeasance in the performance of voluntary services is established in Hammond v. Hussey, 51 N. H. 40. The defendant, the teacher of a high school, was requested by the school committee, whose duty it was, to examine candidates for admission to the school, and report upon their qualifications; he undertook the service, and the plaintiff was examined and found qualified, but the defendant falsely and maliciously reported against him and he was excluded. The defendant was held liable.

The judgments of the New Hampshire courts seem not less distinguished for length than for learning.

Thus in Sterling v. Warden, reported in this volume, we have an opinion covering 21 pages; in Horn v. Cole one of 15 pages; in Eaton v. Boston, Concord & Montreal Railroad one of 33 pages, on two pages of which no less than 52 cases are cited. If we had time we would like to count the cases cited in the whole opinion, but human life is short and we never were fond of the higher mathematics.

In Seguin v. Peterson, 45 Vt. 255, the plaintiff's infant son bought of the defendant cigar-holders and tobacco-pipes and paid for them; afterward the mother went with the boy to the defendant, tendered back the articles and demanded the money, which was refused. It was held that the plaintiff could recover the money, and that the demand by the mother was sufficient.

In State v. Patterson, 45 Vt. 308, it was held that a man's house is his castle only in the respect that it is sacred for the protection of his person, and an assault on the house can be lawfully resisted by deadly weapons only when the assault is intended to take the life of the inmate, or of doing him great bodily harm, and such resistance is necessary to prevent such crime, or in case the inmate has reason to believe from the circumstances, and does in fact believe that such resistance is necessary to prevent the commission of such crime. This doctrine was the subject of a recent article in this journal, which is appended to the case in the form of a note.

In Lake Shore and Michigan Southern Railroad Co. v. Perkins, 25 Mich. 329, it was held that carriers of live stock are not ordinarily common carriers, and that the burden rests on the plaintiff to show that the defendant possesses that character or has assumed its liabilities. Exactly the contrary is decided in Kansas Pacific Railroad Co. v. Nichols, 9 Kans. 235, also reported in this volume. The latter case is furnished with an elaborate note, in which the reporter prefers the doctrine of the latter case both on principle and authority.

In Snyder v. People, 25 Mich. 106, it was held that a husband living with his wife in her house, is not at common law guilty of arson in burning that house, and that rule is not changed by a statute securing to the wife her separate property. This decision will delight some of our lawyers who seem so much to dread the destruction of the "matrimonial unity."

In Sublett v. Bedwell, 47 Miss. 266, it was held, that where at an election the person receiving the highest number of votes is disqualified, the person receiving the next highest number, although qualified, is not entitled to the office.

In Stockwell v. Campbell, 39 Conn. 362, it was held, that portable hot-air furnaces, used for warming a dwelling-house, set in pits prepared for them in the cellar, and kept in place by their own weight, are part of the realty, as also are the pipes leading from the furnace to the chimney. Great stress is laid on the intention of the parties, which seems in the more

recent cases to constitute the test. Two interesting cases are cited in the opinion, namely, Capen v. Peckham, 35 id. 88, where a windlass in a slaughterhouse was held to be real estate, and Alvord Carriage Manufacturing Co. v. Gleason, 36 id. 86, where a factory bell, hung in a tower, was held to be real estate. In State v. McCord, 8 Kans. 232, the defendant was convicted of manslaughter on an information for murder, and obtained a new trial; the statute provided that "the granting of a new trial places the parties in the same position as if no trial had been had;" held, that the defendant had waived the constitutional safeguard against being twice put in jeopardy, and on the second trial could be convicted of murder. This seems to the reporter unsound, and in a note he quotes the opinion of the court in People v. Gilman, 4 Cal. 376, in which the contrary doctrine is held. We must confess that the doctrine of the principal case is opposed to our understanding of the law and our ideas of justice. It certainly seems a queer way of administering justice to decree that a man ought to be hanged for murder, as the result of a second trial, simply because he ought not to have been convicted even of manslaughter on the first. We call that keeping the word of promise to our ear and breaking it to our hope.

In Porterfield v. Butler, 47 Miss. 165, the court in a very learned discussion hold that the acceptance of a married woman, given in payment for property purchased by her, is not rendered valid by her promise, after her husband's death, to pay it.

In Lawson v. Jeffries, 47 Miss. 686, it was held, that an ordinance, passed by a constitutional convention, granting new trials in certain cases, is not a legislative act, and is void. This case is a rival in one respect to the New Hampshire cases; on one page the court cite the reports and pages, but not the titles, of 144 different cases-just a gross. Why not much better say, "Vide Dig. passim?"

In New Orleans, etc., Railroad Co. v. Harrison, 48 Miss. 112, it was held that where a boy, not in the employ of the company, was driven by the threats of the conductor to uncouple some cars, and in doing so received an injury, the company were not liable.

In Moore v. State, 48 Miss. 147, a statute incorporated a lottery company for twenty-five years, the company paying the State a certain sum for the privilege; the amended constitution prohibited lotteries; held, that this was not impairing the obligations of a contract, within the provisions of the federal constitution.

In Holmes v. Evans, 48 Miss. 247, it was held, that a mere receipt for money, expressing that it is in part payment for a lot of land, is not a sufficient memorandum under the statute of frauds.

In Donnell v. State, 48 Miss. 661, it was held, that colored folks have some rights that white folks are bound to respect. The case decided that the statute providing that people of color should have equal

Atwood v. Holcomb, 39 Conn. 270, holds that an insolvent father may give his minor son his time and earnings. This is certainly right. Slavery has been abolished in this country, and there is no reason why a young man should be bound to involuntary servitude to his father's creditors.

Hoyt v. Holley, 39 Conn. 326, decides, by a bare majority of the court, that an agreement by a physician, about to remove from his residence, in consideration of $500 to recommend a certain other physician to his patrons as his successor, is not against public policy.

In Ayer v. City of Norwich, 39 Conn. 376, a horse was frightened by a tent standing within the bounds of the highway, and the plaintiff was thrown out of the carriage and injured. Held, that a recovery might be had if the tent were a nuisance, and this was a question for the jury. The reporter states in a note, that the same doctrine was held in the subsequent case of Young v. New Haven, 39 id. 435, where the horse was frightened by a steam roller used in repairing the street and left at the side of the street over Sunday.

Meriden Britannia Co. v. Parker, 39 Conn. 450, is an interesting case on the subject of trade-marks in personal names. The plaintiff had acquired the right to use the words, "1847, Rogers Bros. A 1," as a trade-mark. The defendant used the words "C. Rogers Bros. A 1" for a similar purpose. Both stamps represented real persons actually engaged in the same manufacture. Held, that the use of "Bros. A 1" should be prohibited, but not the use of "Rogers." It is difficult to see the distinction. The reporter has appended a very elaborate note, the substance of which has appeared in these columns, in an article on the same subject.

In Commissioners of Leavenworth Co. v. Miller, 7 Kans. 479, it is decided that a State legislature has the constitutional power to authorize counties and municipal corporations to subscribe for stock in railroad companies, and to issue bonds in payment therefor. It takes Judge Valentine forty pages to demonstrate this.

In Deering v. Boyle, 8 Kans. 525, we find the daring decision that a married woman's note, given to pay her husband's debt, but not in terms charging her separate estate, is valid and effectual. This is sensible and right, and just what our courts must come to, sooner or later. We ought to get over the

nonsense of holding that a married woman's note, given to pay the debt of another, is not valid unless she adds a clause to the effect that she is in earnest about it, and really means what she says.

Henderlite v. Thurman, 22 Gratt. 466, is a very remarkable case in its circumstances. On a judicial sale of several slaves, in October, 1863, a bond was given as security for the purchase price. It was held❘ that this bond was valid and obligatory, notwithstanding the emancipation proclamation previously made, and that it could be enforced after the adop-| tion of the thirteenth amendment to the Federal constitution.

The case of Forsyth v. Mayor, etc., of Atlanta, 45 Ga. 15, is also a singular one. The declaration alleged that the defendant had by ordinance defined fire limits, within which the erection of wooden buildings was prohibited, but that while said ordinance was in force, the common council had authorzed one F. to erect a wooden building within those limits, which taking fire destroyed plaintiff's wooden building. On demurrer, held that the action could not be maintained. This is put on the ground that the plaintiff sustained no harm from the city's conduct; he did not build on the faith of the ordinance, because his house, being wooden, must have been erected before the passage of the ordinance, or in violation of it.

In Blount v. Windley, 68 N. C. 1, it was held that the maker of a note due to a bank has the right to tender in payment, as equivalent to gold and silver coin, the bills issued by the bank, nor can the bank escape by assignment of its effects, nor by any authority from the legislature.

In State v. Pepper, 68 N. C. 259, it was held that to make profane swearing a nuisance, the profanity must be charged and proved to have been uttered in the hearing of divers persons; the general allegation, "to the common nuisance," is insufficient. Hence, where the indictment is alleged that the defendant "in the public streets of the town of L., with force and arms, and to the great displeasure of Almighty God, and the common nuisance of all good citizens of the State then and there assembled, did for a long time, to wit: for the space of twelve seconds, profanely curse and swear, and take the name of Almighty God in vain, to the common nuisance," etc., held that no criminal offense was therein charged. Some curious cases are cited in the opinion, for instance, King v. Crunden, 2 Camp. 89, an indictment for indecent exposure "in the presence of divers of the king's subjects" at Brighton, the great bathing resort of England. (Of course all the king's subjects there were "divers.") There was no direct evidence that more than one person saw the exposure, but as others were present and might possibly have seen it, this was recognized as sufficiently proximate to be dealt with as a reality. But in Rer v. Loyd, 4 Esp. 200, it was held that the noise of a tin

smith was not an indictable nuisance when it annoyed only the occupants of three chambers in Lincoln's Inn. So little attention does the law pay to the woes of its own disciples! If it had been three of the Brighton divers, the case would have been different.

State v. Linkhaw, 69 N. C. 214, we have commented on before. This was the case of the devout but musically incapable person who disturbed the religious meetings of his church, by bad singing, and was indicted therefor. Held, that as there was no intent to disturb any body, and the vocalist was in good faith doing his best, the indictment would not lie. It is evident from the last two cases that North Carolina is no place for people with sensitive ears.

The much-vexed question whether an assignee in bankruptcy may sue in the State courts, is decided in the affirmative in Codell v. Exum, 69 N. C. 464, and in the negative in Voorhies v. Frisbie, 25 Mich. 476, both reported in this volume.

In Commonwealth v. Killian, 109 Mass. 345, the defendant was indicted under a statute for obstructing a railroad train, and endangering the safety of the passengers. He was a passenger on the train

and pulled the signal rope and stopped the train, thus endangering the safety of the passengers by another train in the rear. Held, that the indictment could not be maintained.

In Pierce v. Dyer, 109 Mass. 374, it was held that the owner of one part of a building has no right of action at law against the owner of the other part, for a willful neglect to keep his part in repair, whereby the plaintiff's part is injured.

Feital v. Middlesex Railroad Co., 109 Mass. 398, we have commented on in a previous number. The action was for injuries sustained on defendant's road, while the plaintiff was returning on Sunday from a Spiritualist camp meeting. It was left to the jury to say whether the meeting and the plaintiff's purpose in attending it was religious. A Massachusetts jury found for the plaintiff. What would the Puritan forefathers say to this? We well know how they treated the people who attended the Salem spiritual meetings in olden time.

In Bennett v. Goldthwait, 109 Mass. 494, it is held that proving a debt in bankruptcy bars an action on the debt previously commenced. This is clearly the letter of the bankrupt act, but we think is not generally known.

In Boothby v. Plaisted, 51 N. H. 436, defendant had ordered, by sample, spirituous liquors of the traveling agent of a firm residing in another State, where the sale was lawful, and the goods were put up, directed to the purchaser, and shipped from the firm's place of business; held that an action for the price could be maintained in New Hampshire.

The New Hampshire courts are lenient toward the weakness of human nature, in spite of the severity

LIFE INSURANCE-PAYMENT OF PREMIUMS.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

CHICKERING V. GLOBE MUTUAL LIFE INSURANCE CO. 1. Where the insurance agent keeps a premium and commission account with the company, and settles by certified checks for the gross balance after deducting his commissions; and, with the approval of the partnership to which the insured belongs, retains the premium out of the funds of such partnership in his hands and includes the amount in his usual certified check, which is realized by the company, the payment is valid, and not defeated by the company's return of the money to the agent.

2. The doctrine of Russell v. Bangley, 4 B. & Ald. 397, that "one shall not discharge his debt to a principal by writing off a debt due to him from the agent," held to be applicable to cases where an agent with limited powers or for a special purpose has become insolvent, and where the result would be to throw upon the principal the risk and loss of other transactions in which he has no concern; but not to apply where the principal receives the money by "writing off," as effectually as by direct payment.

CONTRACT on a life insurance policy. The opinion states the case.

AMES, J.-The question raised by this report is whether there was any evidence upon which the jury would have a right to find that the premium due from the assured on the 9th day of February, 1871, was paid according to the terms of the policy. Even upon the admission that Osborn, as the defendant's agent, had no authority to waive or modify those terms in any respect, a seasonable payment to him was all that was necessary for the plaintiff to prove. He was the agent of the corporation, not merely for this special transaction, but generally for the collection of all premiums that became due to them within a certain territory. His mode of accounting, as pointed out in the contract by which he was appointed, was not by forwarding the specific and identical money which he from time to time received in that capacity, but by charging himself in his account with them with all sums so received, and by trasmitting at regular and prescribed periods, in form of certified checks or drafts payable in New York, whatever balance he might be found to be owing. Whatever was paid to him became his money, from which he was to deduct his commissions, making nimself debtor to the defendants for the balance only. This had been the mode in which he had collected and accounted for all payments upon this policy before that date. It appears from the report that he charged himself, in his account with the defendants, with the premium now in question and included it in the check with which, according to his regular practice, he had undertaken to pay the balance apparently due to them. The amount of the premium, therefore, actually came into their hands in regular course of business; but, on the claim that it was not seasonably paid to their agent, they have repaid it to him and now insist that it was not paid by the assured according to the terms of the policy.

It appears from the report that Chickering, before the premium became due, had made an arrangement under which he supposed that funds had been provided and would be applied to its payment, and that he received assurances, first, that they would be, and, afterward, that they had been, applied to that special purpose and use. If this arrangement had been with a mere stranger, and had amounted only to a promise that that stranger would make the payment for him, it would, of course, have been of no avail, without a literal delivery of the money. But an arrangement of that kind with the person who was himself to re

-ceive the payment, and was already in funds which might be applied for that purpose, may stand upon entirely different grounds. The report shows that upon all former occasions when a premium, became due upon this policy, it had been paid to Osborn upon the check and from the funds of the firm of Chickering & Sons. There is evidence tending to show that Osborn must have known that the practice of that firm allowed that method of paying the debts of the individual partners, and that the assured had the right, or at least was allowed, to pay his premium from the partnership funds. Also, that a few days before the premium in question had become payable, Osborn had in his hands belonging to the firm, and which the assured had a right to take out of his hands, an amount exceeding the premium. As it was already in Osborn's hands, there was no occasion to give him a check or written order. The purpose of such a document would only be to give him possession of the funds, but that he had already. If at any time before that 9th day of February, Osborn had paid over those funds to the firm, and if the exact sum necessary to pay the premium had been returned to him for the purpose of paying it, it would have been a good and effectual payment within the meaning of the policy. Would it have been any the less so, if instead of paying the entire fund to the firm he had been directed by Chickering, as a member of the firm, to retain the amount of the premium in his own hands for the like purposes. It is true that it has been said in Russell v. Bangley, 4 B. & Ald. 397, and repeated in many English cases of more recent date, that "One shall not discharge his debt to a principal, by writing off a debt due to him from the agent "-and that there must be an actual payment in cash. We think it will be found that this remark is generally applied in cases where an agent with limited powers, or for a special purpose, had become insolvent, and where the result of the "writing off" was to throw upon the principal the risk and loss of other transactions in which he had no concern. In Stewart v. Aberdein, 4 M. & W. 211, Abinger, C. B., remarks that the notion about the actual payment in cash had been pushed too far. In Sweeting v. Pearce, 9 C. B. (M. & S.) 538, Martin, B., says, that in the case of two commercial houses having business transactions together, a payment from one to the other may be made by entries in account current in their books; that is, the house paying enters the amount to be paid to the credit of the house to be paid, and gives notice; and the house to be paid enters the amount to the debit of the other house. If the "writing off" should be, not a real, only a nominal and pretended payment to the principal, he should of course not be bound by it. But the court will look at the substantial result and effect of the transaction, and will not insist upon necessity of a mere formal delivery of bank notes by one party to the other, if the same identical bank notes are immediately to be returned. If the assured had delivered to Osborn the amount of the premium in the check of the firm, as on all previous occasions, or in bank notes, the result would have been a credit to the same amount in favor of the defendants in Osborn's books, to be accounted for and paid by him, according to his instructions and the terms of his contract. If on the other hand, instead of a payment in that mode, he had been directed by the assured to apply a portion of the funds in his hands to the same purpose, the result accomplished by "writing off" in this manner would be precisely the same, viz.: a credit