which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity can not be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses in such a position to take risks, he must bear the possible consequences of failure. Upon the facts disclosed by the undisputed evidence in the case, we can not see any ground for a recovery by the plaintiff. Not even a plausible pretext for the verdict can be presented, unless we wander from the evidence into the region of conjecture aud speculation. Under these circumstances the Court would not have erred had it instructed the jury, as requested, to render a verdict for the defendant.

But the plaintiff in error specially complains that the court below gave instructions which assumed as established matters not in proof, and thus directed the attention of the jury to subjects which might mislead their judgment. Thus, while a train coming from the west could be seen, as already stated, from any point between Harris street crossing and the section-house, for a distance of three-quarters of a mile, the court, in its charge, assumed that the light from the train might have been obstructed by cars on the side track, in the vicinity of the place where the injury was inflicted, and told them that whether the view was thus obstructed was for them to determine. Again, there was no evidence of any attempt on the part of the deceased to cross the railway at Harris street crossing. She was not seen, as already stated, except when leaving her house, until immediately previous to her injury, and then she was ninety feet east of the crossing. Yet the court, at the request of the plaintiff, instructed the jury as to the right of the deceased in passing the railway upon a public crossing, to rely upon a substantial compliance by the servants of the company with the duties required by law in giving signals and warning of approach, and as to its liability if deceased was killed by the cars while they were running to and over a public street crossing without giving the required and usual signals of approach; and further instructed them. upon its own motion, that there was a controversy upon the evidence whether she crossed or attempted to cross the railway at the Harris street crossing, or at a place not a crossing, and that this was a fact for their determination.

To instruct a jury upon assumed facts to which no evidence applied was error. Such instructions tend to mislead them by withdrawing their attention from the proper points involved in the issue. Juries are sufficiently prone to indulge in conjectures without having possible facts not in evidence suggested for their consideration. In no respect could the instructions mentioned have aided them in reaching a just conclusion.

The judgment must be reversed and the cause remanded for a new trial; and it is so ordered.

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

October Term, 1877.

PRACTICE-REVIEW BY SUPREME COURT-BILL OF PARTICULARS.-1. The Supreme Court has no jurisdiction to revise the action of an inferior court upon the question of granting or refusing a new trial, and the final judgment of such court can not be examined through its rulings upon that question. If, when the final judgment is brought here for review by writ of error, no other documents are presented for consideration than such as were before the inferior court upon the application for a new trial, this court can not look into them, and if error is not otherwise disclosed by the record, the judgment will be affirmed. 2. This court must have before it a bill of exceptions, or what is equivalent to such bill, upon which the final judgment of the court below was reviewed, or it will not examine into any alleged errors, except such as are otherwise apparent on the face of the record. Kerr v. Clampitt. In error to the Supreme Court of the Territory of Utah. Opinion by Mr. Justice FIELD. Judgment affirmed.

LEGISLATIVE

MUNICIPAL BONDS-GUARANTY POWER.-1. Where an ordinance of a city authorizing a contract with a gas company, and the issue to it of bonds of the city provided that the company should "guarantee the said bonds and assume the payment of the principal thereof at maturity;" Held, 1, that the guaranty embraced both the principal and interest of the bonds; and, 2, that the ordinance contemplated two undertakings by the company-one to the bondholder and one to the city. The guaranty was to be for the security of the bondholder; it was to be an undertaking to answer for the city's liability. The other undertaking was to be for the security of the city by placing the company under obligation to provide for the payment of the principal of the bonds on their maturity, an obligation which otherwise would not have existed. 2. The indorsement by the president of the company on the bonds guaranteeing "the payment of the principal and interest thereof" was a substantial compliance with the provision of the ordinauce and contract as to the guaranty. 3. It is competent for the legislature to impose upon a city the payment of claims just in themselves, for which an equivalent has been received, but which from some irregularity or omission in the proceedings by which they were created, can not be enforced at law. 4. A law requiring a municipal corporation to pay such a claim is not, within the constitutional provision, inhibiting the passage of a retroactive law. Jefferson City Gas Light Co. v. Clark. In error to the Circuit Court of the United States for the District of Louisiana. Opinion by Mr. Justice FIELD. Judgment afflrmed.

LIFE INSURANCE- VALID PAYMENT OF PREMIUM LIEN ON POLICY.-The policy was upon the ten-payment life plan, in consideration of the annual premium of $615.40. All indebtedness to the company was to be deducted from the amount of insurance when due. In case of non-payment of premium, or of any note given in part payment of premium when due, the policy was to become void. Dividends were to be applied toward the payment of the note. If the policy should become void, the insured was to be liable to pay all notes taken for premiums remaining unpaid, except the balance unpaid on the note taken for part premium and made payable twelve months after date, which was to be cancelled upon the surrender of the policy. After two annual payments, if desired, a paid-up policy would be issued for as many tenths of the original amount as there had been "annual premiums paid in cash." It was agreed at the time of executing the policy, that the annual premium should be paid part in

money and part in a promissory note at twelve months, with interest at seven per cent, the amount of the note to be a permanent loan, until cancelled by dividends, and that a new note was to be executed each year at the maturity of the old, and including the amount of the prior note. The premium note was described in the receipt as the "amount of premium loaned this year." Four annual payments had been made. Held, 1, that the execution of the note was, in effect, a payment in ash, which was loaned back by the company; 2, that the plaintiffs were entitled to a paid-up policy for four-tenths of the original sum, without previous payment of the note; 3, that the amount of the note with accrued interest, less dividends, was a lien upon the policy, to be deducted when it became a claim; 4, that the case was not affected by a change in the company's practice subsequent to the issue of the policy, insisting upon the payments of the note as a condition to the issue of a paid-up policy. Brooklyn Life Ins. Co. v. Dutcher. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. Opinion by Mr. Justice SWAYNE. Decree affirmed. Reported in full, 7 Ins. L. J. 18. For opinion of court below see, 2 Cent. L. J. 153.

FIRE INSURANCE - DISTILLER'S BOND FOR TAX -TRANSFER OF PARTNERSHIP INTEREST-REPLEVIN BOND.-The policies agreed to "insure Messrs. Thomp& Co. against loss or damage by fire-upon whisky, their own, or held by them on a commission, including government tax thereon, for which they may be liable, contained in the log bonded warehouse of G. H. Deaven." The whisky was owned by Thompson & Co., Walston being the Co., who were also sureties on Deaven's distillery bond, and as such liable for the government tax if not paid by D., or made out of the whisky. The policy provided that it should be void, "if the property be sold or transferred, or any change take place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance." The loss was settled, except as to the tax, where the liability was undecided. Judgment was subsequently obtained by the government, in Kentucky, on the bond, for the tax, the companies declining to defend as parties. Thompson & Co. replevied the judgment and brought suit against the companies for the amount. There was evidence tending to show that. previous to the fire, Walston had sold all his interest to Thompson, and that another brother of T. had become interested in the firm. Held, that it was the intention of the insurers to insure another than the proprietary interest of T, & Co.in the whisky, viz., their liability for any loss on the bond. Held, that this was as much an insurable interest as freights at sea, or profits in an adventure. Firemen's Ins. Co. v. Powell, 13 B. Mon. 321; Gordon v. Mass. Ins. Co., 2. Pick. 249; Rohrback v. Germania Ins. Co., 62 N. Y. 53. Held, that Walston was not relieved from this liability by any sale of his interest, and the liability of the company was not affected by the policy clause, prohibiting a transfer of interest. Held, that the replevin bond was a satisfaction of the judgment in Kentucky, which answered the objection that the tax had not been paid, and the judgment itself, together with the refusal of the company to defend, answered the objection that the government could not collect the tax. Germania Fire Ins. Co.et al. v. Thompson. Error to the Circuit Court of the United States for the District of Kentucky. Opinion by Mr. Justice MILLER. Judgment affirmed. Reported in full, 7 Ins. L. J. 13.

HON. W. N. H. Smith has been appointed Chief Justice of the Supreme Court of North Carolina, vice Pearson deceased. The election for judges of the Supreme Court of that state takes place in August next. By a late constitutional amendment, the number of judges is injudiciously reduced from five to three.

COMMERCIAL LAW-BILLS AND NOTES.-This court has repeatedly held, and now holds again, that a party who writes his name on the back of a note of which he is neither payee nor indorser, in the absence of extrinsic evidence, is to be treated as a maker of the note. 18 Mo. 24; 30 Mo. 225; 60 Mo. 297; 48 Mo. 23; 58 Mo. 75. Opinion by NORTON, J.-Semple et al. v. Turner.

INDICTMENT- MURDER-INSTRUCTIONS.-Where, on an indictment for murder in the first degree, the defendant has been convicted of murder in the second degree, and the instructions given in regard to murder in the second degree were properly given, this court will not reverse the judgment, even although improper instructions on the subject of murder in the first degree may have been given by the court. State v. Underwood, 57 Mo. 40. Opinion by NORTON, J.-State v. Fritteres.

PRACTICE-VOID JUDGMENT. - In a suit against three defendants, the plaintiff dismissed as to one and took judgment as to the other two. Afterwards one of these two came with his motion to vacate, and set aside the judgment, because the court never had jurisdiction over him. The return was non est as to this defendant, and the answer was, in fact, filed for the two other defendants. No conflicting evidence on motion, which the circuit court overruled. The judgment is reversed. Opinion by NORTON, J.-Craig & Motter v. Smith et al.

VENDOR'S LIEN-WAIVER-PAYMENT.-Where one takes the notes of a third person as payment of the purchase-money for land sold to another, no lien exists as to the amount represented by the notes so taken as payment. Where, in such a case, the vendor advised the purchaser to take a mortgage from a third person to secure such notes, and that he would hold him liable on such notes if he failed to do so, and the purchaser procured the mortgage and transferred it to the vendor, the lien as to such notes was waived even if they had not been taken as an absolute payment in the first place. 55 Mo. 254-Opinion by NORTON, J. Anderson v. Griffith.

PARTNERSHIP PROPERTY-DOWER.-Two pieces of real estate, owned by a firm, of which the petitioner's husband was a member, were appropriated to pay the partnership indebtedness; one by foreclosure of a mortgage, which petitioner did not sign, and to which suit she was not made a party. The other by sale under execution. Plaintiff in error claims dower in this property. Scott, J. (abstract of opinion): It makes no difference how the property is appropriated to pay the debts of the firm, whether by mortgage, execution or decree of court. The principle is, that a widow has no dower in partnership real estate till all the partnership debts have been paid, and all accounts

between co-partners adjusted, and any mode of sale which passes the title for that purpose, will, it is apprehended, bar the widow's claim to dower. Whether the petitioner has a technical claim for dower, under the circumstances in this case, it is not necessary to consider. The question above considered is most elaborately discussed in Dyer v. Clark, 5 Metcalf, 562, and Howard v. Priest, id. 582. Decree affirmed.-Simpson v. Leech.

MECHANIC'S LIEN-AGENCY.-Prout, one of the defendants below, gave to her daughter, Mrs. Strawn, lot 17, block 3, University Subdivision, of Section 34, in the city of Chicago, and, while erecting a building upon it, which was to be used by her as a residence, made a written contract with the complainant, O'Hara, in pursuance of which he did the plumbing and gas fitting. O'Hara filed a bill in the court below, claiming that Prout acted as the agent of Mrs. Strawn, and sought to have a lien declared on the premises. Prout appeared in the contract with O'Hara, as the only party in interest, there being in it nothing to indicate that he was acting other than in his own behalf. Mrs. Strawn had, during the progress of the work, visited the house and given the complainant certain directions as to the placing of fixtures. This was the only evidence of agency. The court below decreed in favor of complainant. Breese, J. (abstract of opinion): In his circumstances, Prout had an undoubted right to deed this property to his daughter, and there is nothing in the contract with O'Hara to indicate that he intended to make Mrs. Strawn or the property liable. The main question is one of agency, and the only circumstance which tends to connect Mrs. Strawn with the case, is her making occasional suggestions as the work went on. The house was being built for her benefit, by her father for her to live in, and it was but natural she should display an interest in it. The proofs wholly fail to connect the contract for the work with Mrs. Strawn or the property. Reversed and remanded.-Strawn v. O'Hara.

JURISDICTION-ATTACHMENT-JUDGMENT AGAINST PERSON AND AGAINST PROPERTY.-In an attachment proceeding defendants below appeared by attorney before the justice of the peace and had a personal judgment rendered against him, but none against the property which had been levied upon. He appealed to the circuit court, and judgment was rendered against him, but no order made for the sale of the property. He appealed to this court. Walker, J. (abstract of opinion): However defective the service, this was cured by appearing before the justice of the peace who then had jurisdiction. Perfecting his appeal to the circuit court gave that court jurisdiction over the defendant's person, whether the justice had it or not. It matters not whether the affidavit for the attachment, the levy, or the return, were or were not sufficient, as neither the justice of the peace nor the circuit court rendered any judgment for the sale of the attached property. The failure of the court to order a sale of the property seized, operates as a dismissal of the attachment, and releases the property from the levy; and the judgment was only personal against the defendant, to be enforced precisely as if no attachment had been sued out and levied. Though the writ is quashed if there have been personal service, there is no reason why it may not stand as a summons, good to bind the defendant on a personal judgment. When the circuit court rendered a personal judgment, it operated as fully to quash the writ as if defendant's motion to quash had been sustained and a formal order entered, and the property could not have been sold, except under the statute for the sale of perishable property. Judgment affirmed.- Wasson v. Cone.

CERTIFICATE OF DEPOSIT-GUARANTY. - November 14, 1871, James H. Hooker deposited $2,200 with John

H. Daniels & Son, bankers at Wilmington, and took a certificate of deposit for that amount, payable at ten days' notice, on the back of which was written the name of Alanson Gooding, and no other writing. In October, 1873, Hooker sued Gooding and others in assumpsit, and Gooding insisted that, by operation of law, he was, being only a security, released by Hooker's delay and neglect to make more prompt demand of payment. On the trial it was admitted that Hooker made no demand of payment until July 4, 1873, and that, at that time, J. H. Daniels, the principal, was utterly insolvent. Before Daniels' failure, Hooker had applied to him for payment, but, in consideration of the promised payment of a higher rate of interest, had been induced to forbear. But none was actually paid. Up to the time of his bankruptcy Daniels was solvent and able to pay. Judgment for defendant. Dickey, J. (abstract of opinion): The guaranty of Gooding was absolute, and it was error to hold that he was discharged. The credit was indefinite by the terms of the paper, and at the option of the holder. It may be that the security on such paper may have the right to bring the credit to an end by offering to pay, himself, after a reasonable time, or, perhaps, by a written demand upon the creditor to collect. The creditor upon this paper was not the curator of the interests of the security, and owed him no affirmative duty; nor did he make any contract, express or implied, to assume any such duty. He was under no obligation to make prompt demand of payment or give notice of non-payment. Reversed and remanded. -Hooker v. Gooding.

MORTGAGE-RECISSION-VENDOR'S LIEN.-Sheen filed a bill to foreclose a mortgage made by Jeremiah Hogan and wife, Bridget Hogan, alleging that the husband of Bridget Hogan was in his lifetime possessed in fee simple of the property. James H. Walthern, one the defendants, in his answer alleges that by articles of agreement of Nov. 5, 1869, he sold the property to Hogan, payment to be made in 1871. There was also a covenant of forfeiture at the option of the vendor, if principal and interest should remain unpaid for 30 days after the same became due. Hogan died, the principal and interest having been long due, and on Feb. 17, 1877, Walthern declared the agreement forfeited, and the same day conveyed the premises to Bridget Hogan for the exact sum due for the purchasemoney, and took back a mortgage with note and also personal security. Sheen charges that the money secured by his mortgage was used in the improvement of the premises, and that the conveyance to Bridget Hogan was made without his knowledge or consent, and asks that his lien be declared a prior lien, and Walthern be compelled to look to his note and personal security. The court below decreed a foreclosure of complainants' mortgage subject to the prior lien of Walthern for the purchase-money secured by his mortgage. Scott, J., (abstract of opinion): The court below found the bond not forfeited but still in force. No evidence is preserved in the record, and as there is nothing to show that the court found incorrectly as to that fact, it must be held to be conclusive upon complainant. Not having asked in his bill that the court should annul the conveyance to Bridget Hogan previously made, which, if valid, would effectually cut off all interests he may have had by virtue of his mortgage, he could expect or claim only what the decree gave him. It leaves the parties in their original position which is all complainant could demand under his bill. No relief was decreed to Walthern on his answer. Rightfully considered, the decree simply directs the sale of the mortgaged property, subject to his prior lien in favor of Walthern for the purchase-money, giving complainant the privilege of paying Walthern's claim and bring subrogated to

his rights, and it was not error to decree that if he paid the vendor's claim, he should also pay the same rate of interest which the vendee was obligated to pay. Decree affirmed.-Sheen v. Hogan.

-DEFAULT-PLEAS.

JOINT DEFENDANTS--JUDGMENT AGAINST PART Action upon a promissory note executed by Albert, Benjamin, Isaac and Jacob Felsenthal as J. Felsenthal & Sons. Summons served on all but Jacob, who was not found. February 3d, 1875, default and judgment were entered for the amount of the note against the three defendants served with process and no action against Jacob Felsenthal. The same day the four defendants came into court by attorney and filed their plea, verified by affidavit, denying the joint liabilities of defendants. Jacob filed his further affidavit, with the plea that he had a good defence upon the merits of the whole of plaintiff's demand. The same day, Albert, Benjamin and Isaac moved the court to vacate the default and judgment as erroneously entered, a plea and affidavit of merits being on file at the time. Motion denied and exception taken. In the bill of exceptions it appears that it was admitted by all the parties in open court, that the plea and affidavits were marked filed from three to five minutes before 10 o'clock a. m., the opening hour of the court, on February 3d, 1875, but were not placed with the other papers on the file. Also that the court refused to set aside the default and judgment, because the affidavit of merits was not a sufficient affidavit in that no venue was laid, and the plea not a sufficient or proper plea for a defense. Defendants asked leave to file a proper plea, which was refused. Sheldon, J. (abstract of opinion): Admitting the insufficiency of both plea and affidavit, which the record shows were on file at the time judgment was rendered, this was no justification for rendering a judgment against three defendants alone. When all are served with process, judgment must be against all or none, unless some of the defendants interpose a personal defense, such as infancy, &c. By statute, judgment may be taken against a part of the defendants, who alone have been served with process. Although Jacob was not served, he filed a plea and thereby entered his appearance, brought himself into court and stood in in the same attitude as if he had been served with process. When a plea, regularly filed, is defective, the proper mode to meet and dispose of it is by demurrer, not to utterly disregard it as no plea. When a party defendant appears and pleads by attorney without service of process, it is error to proceed to judgment against those who have been served, without also taking judgment against him who thus appears by attorney. Judgment reversed, with leave to file an amended plea and allidavit of merits.-Felsenthal v. Durand.

REPLEVIN AGAINST ADMINISTRATOR-Replevin is an action of tort. An administrator, as such, can not commit a tort. If he commits a tort, he commits it in his individual capacity, and is liable only in that capacity.-Rose v. Cash.

STATUTE OF FRAUDS.-Where A promises B to pay Ca debt which B owes to C, such a promise is not within the statute of frauds, which requires every agreement by one person to answer for the debt of another to be in writing. In such a case, A does not promise to pay B the debt of another, but merely to

pay B's debt to another. 45 Ind. 96; 11 A. & E. 438. Opinion by NIBLACK. J.-Whitesell v. Heiney.

ARBITRATION-INFANTS.-A mutual submission of demands and claims to arbitration is binding, so far, that the mutual promises are a consideration each for the other. A man may submit to a reference for another, and will, in most cases, be answerable for the obedience of that other to the award. A parent or guardian may submit to arbitration for an infant. A guardian or parent may enter into a submission that will bind him personally, that his ward or infant child shall perform the award. Opinion by Howк, J.Smith v. Kirkpatrick.

REASONABLE DOUBT-SEPARATION OF JURY.-1. In a criminal case, to exclude reasonable doubt, the evidence must be such as to produce, in the minds of prudent men, such certainty that they would act on the conviction produced without hesitation in their own most important offices, 2. In a criminal case the court may permit the jury to separate, after they have retired to consult upon their verdict, with the consent of the defendant, and when the court gives such permission to the jury, in the hearing of the defendant and his attorney, and they make no objection, consent will be presumed. Opinion by PERKINS, J.Jarrett v. The State.

COMPETENCY OE JURORS- DRUNKENNESS.- The fact that a juror is not a householder or a freeholder is waived if the question whether he was or was not such was not asked him when the jury was empaneled. The fact that a person has expressed an opinion before he is called as a juror, is no objection to his sitting as such, if the opinion expressed was not formed on the facts of the case, but from mere rumor, and would not influence his action in the case. Drunkenness is no excuse for crime, but if so long continued as to destroy mental power as to intention, it is a good ground of defense. Opinion by PERKINS, J.-Gallooley v. The State.

ABSTRACT OF DECISIONS OF SUPREME COURT OF WISCONSIN.

August Term, 1877.

HON. E. G. RYAN, Chief Justice. ORSAMUS COLE,

66

WM. P. LYON, Associate Justices. APPEAL-PRACTICE.-Where an appeal is taken from a judgment, the clerk must certify the record in all respects, as required by the statute; and if an appeal be taken from an order, the clerk must certify that the papers returned on the appeal are the originals used on the hearing of the motion, or copies thereof, if copies are ordered to be returned. This is indispensable, unless it appears from the record itself what papers were so used. Opinion by LYON, J.-Carpenter et al. v. Shepardson.

EVIDENCE- CONTRADICTING WITNESS.- A party ealling a witness is not precluded from proving the truth of any particular fact by any other competent testimony in direct contradiction to what such witness may have testified, and this not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief. Opinion by LYON, J.-Smith v. Elmert.

TITLE BY DESCENT-TITLE TO PERSONAL PROPERTY.-1. Under our statute, the same degrees of the whole and half blood inherit equally, unless the estate came from an ancestor to the intestate, and the halfblood of the intestate is not of the blood of the ancestor, when the whole blood of the intestate who is of the blood of the ancestor shall be preferred to the half

blood of the intestate, in the same degree, who is not. 2. Under a will, the right to a legacy comes by the bequest. Upon intestacy, the right to distribution comes by blood. In both cases the right is subject to the administration of the estate, and, therefore, defeasible; and upon default of the executor or administrator, the right becomes a mere right of personal action against him, and pending the administration of the estate the legatee, or next of kin, has no title. Opinion by RYAN, C. J.-Cramer v. Kirkendall.

DUTY OF TRUSTEE TO TRUST ESTATE-TAX CERTIFICATE.-1. Where one of two joint trustees suffers the other to become indebted to the trust estate, while it was becoming indebted to himself, he is not entitled to a several lien for his debt, which a faithful administration of the trust by both trustees would have prevented. 2. If one purchase certificates of a tax sale against an estate, and hold them adversely, he is entitled, as against the estate and its owner, to the rate of interest which such certificates draw by statute; but a trustee can neither purchase nor hold them adversely, and certificates in the hands of a trustee, with whatever purpose purchased or held, are always taken as purchased and held for the benefit of the estate; and, except in special circumstances, the purchase of certificates of a tax sale by a trustee will operate, like their purchase by the absolute owner, as a redemption of the land from the tax sale. Opinion by RYAN, C. J.— Wilcox v. Bates.

EVIDENCE.-A and B, the plaintiffs, as executors, leased a farm by parol either to N, the defendant, or to one Z. Z occupied the farm during the term of the lease. The plaintiff, A, was examined before the county judge at the instance of the defendant, N, pursuant to secs. 80 and 81, p. 1602, Gay. Stats., and his examination was read in evidence on the trial. He testified that there was to have been a written agreement for the leasing of the farm, and he procured one to be drawn, which was signed by himself and Z; that he presented the instrument to the defendant for his signature, but the latter did not sign it; and that he retained the instrument, but was unable to find it. Defendant offered to prove that the instrument was a lease from A to Z; that it was signed by A and Z; that there was a blank left in it for the signature of a surety for the rent; that it was presented to the defendant to sign as such surety, but he refused to sign it; and that the defendant's name did not appear in the instrument. The evidence was excluded. Held, error. Opinion by LYON, J.Torrey et al. v. Nixon.

INSURANCE-AGENCY-WAIVER-PLEADING.-1. G. insured his house in the defendant company for one year, and within that time it was burned down. The loss exceeded the sum for which it was insured. When burned the building had been vacant nearly a month. The agents of the defendant company who wrote, countersigned and issued the policy, were informed before the fire that the building was unoccupied, and knew that it remained so until it was burned, but neglected to communicate that information to the company. Proofs of loss were made out soon after the fire, by and under the direction of such agents, and forwarded to the principal offices of the company. These not being satisfactory, the company required further proofs, and the same were made out and forwarded in due time, at an expense to the plaintiff of five dollars. The last proofs contained a statement that the building had been vacant as above stated. The policy contains the usual condition, that if the building should become unoccupied without the consent of the company endorsed on the policy, the policy should be void. Held, that the knowledge of the agents was the knowledge of the company, and hence that within the rule of Webster v. Ins. Co., 36 Wis. 67, and N. W. Mutual Life Ins. Co. v. Germania Ins. Co., 40 Ib. 446, the requiring

of further proofs of loss after the company was chargeable with notice that a condition of the policy had been broken, (which requirement subjected the plaintiff to expense and delay), is a waiver of the breach, and estops the company to claim a forfeiture of the policy. 2. Under the code, facts constituting an estoppel must be pleaded before proof can properly be received; but this rule is not applicable where the party claiming the estoppel has had no opportunity to plead it. Opinion by LYON, J.-Gans v. The St. Paul F. and M. Ins. Co.

RECITAL IN OFFICER'S RETURN-ESTOPPEL.-In an action against aconstable, to recover the value of a piano attached and sold by him on mesne process in a suit against the plaintiff, the constable is not estopped by his return in that suit, to prove that the former detendant and present plaintiff had no property in the piano. Denny v. Wiliard, 11 Pick. 519, 526: Roberts v. Wentworth, 5 Cush. 192. Per CURIAM.—Rogers v. Cromack. NEGLIGENCE - VICIOUSNESS OF ANIMAL - EVIDENCE.-1. In order to establish the fact that the misbehavior of a horse contributed to an accident, it has been held to be competent to show that such misbehavior is habitual; and instances of such misbehavior, as well after the injury as before, have been held competent to prove the habit. Todd v. Rowley, 8 Allen, 51. The limit of time within which such misbehavior must be proved, must depend largely upon the discretion of the presiding judge. 2. When evidence is offered competent as tending to prove a particular fact, the court can not say that the evidence is sufficient to prove the fact, unless it is all offered and tendered for the purpose of raising, before the ultimate tribunal, the question of its sufficiency. Opinion by LORD, J. -Maggi v. Cutts.

GRANTS OF WHARVES-INTENTION OF PARTIES.As a general rule, the grant of a wharf on the seashore passes the grantor's title, under the ordinance of 1647, in the flats adjacent toward low water mark, as appurtenant to, or, more directly speaking, as parcel of the granted premises. Doane v. Broad Street Assu. 6 Mass. 332; Ashley v. Eastern R. R., 5 Met. 368; Wheeler v. Stone, 1 Cush. 313, 321; Amundoun v. Granite Bank, 8 Allen, 285, 292. But, like all general rules of construction, it must yield, if a different intention is manifested by the terms of the deed or other instrument of conveyance. Stores v. Freeman, 6 Mass. 435; Chapman v. Edwards, 3 Allen, 512; Wood v. Commissioners of Bridges, 112 Mass. 394; Hathaway v. Wilson, 123 Mass. (Cent. L. J., Vol. 6, p. 59). Opinjon by GRAY, C. J.-Central Wharf Co. v. Prop. India Wharf.

INSURANCE-SET-OFF OF PREMIUM NOTE AGAINST Loss.-When, by the terms of a policy, it is agreed that a premium note may be deducted from the amount of loss, it is allowed to be set-off-not because it comes strictly within the statutes of set-off, but because by the contract of the parties it is clear their intention was a mutual allowance of loss and premium. Livermore v. Newburyport M. Ins. Co., 2 Mass. 232. And where the note is not due when the action is brought to recover the loss, and being payable in currency and the loss being payable in gold, the value of the note has