strictness insisted upon, the present case is not embraced. The statute says, every wife, etc., who shall be injured in means of support, etc., shall have a right of action, etc. The plaintiff was a wife at the time the act of injury and its alleged cause occurred. The statute does not require that she should be a wife at the time of the bringing of the action. But this point was adjudged adversely to the instruction in Emory v. Addis, 71 Ill. 273. That was a case of a like action by the widow, and it was there said: "The death of her husband is a permanent injury to her means of support. It amounts to a total deprivation, and the evidence would warrant a remunerative and substantial verdict.''

sons.

An interesting question of claim to exemption of a public charity from taxation was decided by the Pennsylvania Supreme Court, May 5, 1879, in Trus'tees of the Burd Orphan Asylum of St. Stephen's Church v. The School District of Upper Darby, 36 Leg. Int. 403. The objects of the Burd Orphan Asylum are to maintain, educate, etc., 1. White female orphans who shall have been baptized in the Protestant Episcopal Church in the city of Philadelphia. 2. The same class of children baptized in said church in the State of Pennsylvania. 3. All other white female orphans without respect to any other description or qualification whatever, except that in every case the orphan children of clergymen of the Protestant Episcopal Church shall have the preference. Held, that the institution, being for the support and education of the orphan children of a distinct denomination of Christians, was not such a purely public charity as to be exempt from taxation within the spirit of the Constitution. The court, per Trunkey, J., said: "From the foregoing it is at once seen that a public use, whether for all men or a class, is one not confined to privileged perThe smallest street is public, for all have an equal right to travel upon it, but a way used by thousands, which may be shut against a stranger, is private. Would Girard College be a public charity if the male children entitled to admission were limited to the sons of deceased Masons or Odd Fellows? If the Pennsylvania Hospital closed its gates to all but Methodists or Baptists, having recent injuries, the people would not believe it a purely public charity, in the intendment of their constitution. A charity for the poor of a parish or township is public, but not if confined to poor Presbyterians in the municipality. Public charities may be restricted to a class of the people of the State, or of a municipal division; at the same time they must be general for all of the class, within the particular municipality. Thus, a blind asylum is only for the blind in the community.' If it be completely public, all the blind in that community are on an equal footing, and should its capacity be insufficient for all, there is no mistaking justice in the order of admission. To open its doors only to the blind of a particular religious denomination, or of a beneficial association, or of a political party, shuts them against the public. A known and recognized class,

though not generally poor or diseased or decrepit, may be the subject of a public charity, as sailors, yet if the endowment were limited to sailors who are members of a designated sect, there could hardly be two opinions of its character. Private or individual gain, in a pecuniary sense, is not the sole test. The true test is to be found in the objects of the institution.' Where these are to advance the interests of a party, of an association, of a private corporation, of a religious denomination, and the like, however beneficial to the public their growth and success may be, there is a private object to gain, the institution is not unqualifiedly public. In such cases the purpose is wholly private, or the private blends with the public."

In Longueville v. Western Assurance Co., Iowa Supreme Court, Sept., 1879, 9 Cent. L. J. 292, it was held that under a policy insuring certain wearing apparel contained in a certain house against loss by fire, the insurer is liable for its destruction by fire while it is being worn away from the house. The court say: "Wearing apparel, when used, must of necessity be worn sometimes away from the dwelling. We must infer that the parties to the contract intended the apparel to be used, and hence, intended it to be used sometimes away from the dwelling. Of course, the use of the apparel away from the dwelling must be an ordinary use, and the dwelling must be the place of deposit for the apparel when not in use. The policy, therefore, does not contemplate that the insured may take a journey or sleep away from the dwelling; thus, when the apparel is not worn, keeping it in a place of deposit other than his own dwelling. It will be observed that the language of the policy does not convey the idea that the apparel is to be kept in the dwelling. There can be no inference of a prohibition of ordinary use elsewhere." This decision is based on McCluer v. Girard Fire and Marine Ins. Co., 43 Iowa, 349; S. C., 22 Am. Rep. 249. In that case a policy of insurance was issued on a carriage described as "contained in a frame barn." The carriage was destroyed by fire while at a carriage shop undergoing repairs. Held, that the loss was covered by the policy. This holding is supported by Workman v. Ins. Co., 2 La. (O. S.) 507; Liebenstein v. Baltic Ins. Co., 45 Ill. 301; Meadowcraft v. Standard Ins. Co., 61 Penn. St. 91; Fair v. Manhattan Ins. Co., 112 Mass. 320; Webb v. National Ins. Co., 2 Sandf. 497; Farmers' Loan and Trust Co. v. Harmony Fire Ins. Co., 51 Barb. 33; S. C., 41 N. Y. 619; Peterson v. Miss. Valley Ins. Co., 24 Iowa, 494; Mills v. Farmers' Ins. Co., 37 id. 400; Everett v. Continental Ins. Co., 21 Minn. 76; but contra: Annapolis, etc., R. R. Co. v. Baltimore Fire Ins. Co., 32 Md. 37; S. C., 3 Am Rep. 112; Eddy Street Foundry v. Camden Ins. Co., 1 Cliff. 300; Boynton v. Clinton Ins. Co., 16 Barb. 254; Mason v. Franklin Ins. Co., 12 Gill & J. 468; Providence, etc., R. R. Co. v. Yonkers Ins. Co., 10 R. I. 74; Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240; S. C., 14 Am. Rep. 249. See, also, note, 22 Am. Rep. 253. We think the principal case is well adjudged, and that there is no exact precedent opposed to it.

SEVENTY-FOURTH NEW YORK REPORTS.

THIS

HIS volume contains 126 cases, of which 82 are affirmances, 27 reversals, 10 dismissals, and 6 modifications. It includes decisions in May and to November 12, 1878. So far as we can ascertain, the judgment of the trial court is affirmed in 47 cases, reversed in 33, and modified in 4. The volume is extraordinary in the unanimity of the decisions, there being dissent in only 5 cases—one judge in three, two judges in two. The volume contains a number of interesting cases, among which we note the following:

Smith v. Bodine, p. 30.— One who has no interest | in the capital or business of a firm, except a percentage of the net profits as compensation for his services, is not a partner as between himself and the others interested in the business, and cannot maintain an action for an accounting.

Mix v. Andes Insurance Co., p. 53.- A foreign corporation may remove to the Federal court a cause brought against it in a court of this State. Over- | ruling Cooke v. State Nat. Bk., 52 N. Y. 96. Wilkinson v. Gill, p. 63.- "Playing policy," or selecting numbers which if drawn in a lottery entitle the holder to a prize, is within the statutory prohibition against lotteries, and not a mere wager or bet.

Birkbeck v. Ackroyd, p. 356.—In the absence of an election by a wife to labor on her own account or to separate her earnings from those of her husband, where they are mutually supporting themselves and their family, the husband may maintain an action to recover the wife's earnings.

McGaffin v. City of Cohoes, p. 387.— A provision in a city charter that "no action against the city on a contract, obligation, or liability, express or implied, shall be commenced except in one year after the cause of action shall have accrued," does not include actions for torts. To the same effect is Kelly v. City of Madison, 43 Wis. 638; S. C., 28 Am. Rep.

People ex rel. Murray v. Justices, p. 406.-The constitutional guaranty of a right to trial jury “in all cases in which it has been heretofore used," means a common-law jury of twelve, and does not apply to petty offenses triable in a court of Special Sessions.

Lewis v. Seabury, p. 409.— On a lease of a bakery and a sale of the good will of the business, held, that the vacating of the premises and the removal of the fixtures by the lessor, and his discontinuance of the business for a week before the commencement of the lessee's term, necessitating the employment of workmen by the latter for nearly a week in refitting, was no evidence of failure of consideration, in the absence of proof that the good will was thereby rendered less valuable.

Parkinson v. Sherman, p. 88.- A grantee of premises, assuming a mortgage thereon, is estopped from contesting the consideration or validity of the mortgage.

Curtis v. Delaware, etc., R. R. Co., p. 116.- The plaintiff intrusted baggage to the defendant at Scranton, Pa., for delivery in New York city. His wife and child went on the same train, but he took another. Some of the articles were paraphernalia of the wife. The baggage was lost at New York by defendant's negligence. Held, that defendant was liable, in spite of a Pennsylvania statute limiting the liability of railroad corporations for baggage.

Dunlop v. Patterson Fire Ins. Co., p. 145.- Money deposited with the clerk of a court, in lieu of an undertaking on appeal, is liable to attachment in an action by a third person against the depositor, the right of the latter therein being contingent. As to money in custodia legis, see Hardy v. Tilton, 68 Me. 195; S. C., 28 Am. Rep. 34; also, ante, 257.

Stuart v. Palmer, p. 183.— A law imposing an assessment for a local improvement without notice to the owner of the property to be assessed, or a hearing or an opportunity for a hearing on his part, is unconstitutional, as tending to deprive him of his property without "due process of law."

Johnson v. Nat. Bank of Gloversville, p. 329.The provisions of the national banking act, limiting the ratio of interest upon loans and discounts, apply as well to business paper as to accommodation paper.

Mauke v. People, p. 415.—On appeal from a con

ment record is not required, but certified copies of the minutes of conviction, the sentence, and the indictment, are sufficient evidence of conviction where it appears that no record of the judgment has been signed or filed.

Wheeler v. Ruthven, p. 428.—The rule that a legacy is payable in one year from the testator's death, and draws interest from that time, prevails only in the absence of express directions, or of a decisive indication of a different intention.

People v. Mutual Gas-light Co., p. 434.-The provisions of the Code authorizing the examination of a party to an action, before trial, at the instance of an adverse party, do not apply to the officers, servants, agents, or employees of a party, although that party is a corporation.

Jordan v. National Shoe and Leather Bank, p. 467. - A bank cannot retain a customer's deposit to apply upon his indebtedness to the bank not yet matured. In an action against a bank by the personal representatives of a deceased depositor, to recover a deposit due and payable to him in his life-time, the bank cannot, in the absence of facts forming a reason for equitable relief, set off a claim against the depositor not maturing until after his death.

Bowery National Bank v. Duryee, p. 491.— To sustain an order of arrest under the new Code, it is not essential that the cause of arrest should appear, in every case, in the complaint. Section 558 simply requires the order to be vacated, on motion, when the complaint shows affirmatively that the case is not mentioned in sections 549 and 550; but where the

action is mentioned in section 550, in which the cause of arrest may be outside the cause of action, and the complaint does not state a cause of arrest, it does not affirmatively show that the case is not mentioned in those sections, but shows that it may be one specified in section 550.

Bertholf v. O'Reilly, p. 509.— Affirming the constitutionality of the civil damage act in its provisions as to the lessor of premises where the liquor is sold. See 18 A. L. J. 389.

Volans v. Owen, p. 526.- The civil damage act, in giving a cause of action for "injury to means of support," creates a new ground of action, for which no remedy existed under previous laws; but in an action thereunder, for injury to "means of support," it is not sufficient to show that accustomed services have been cut off or curtailed, but it must also be shown that such services were necessary to the plaintiff's support. See 18 A. L. J. 394.

Adair v. Brimmer, p. 568.-A bill of lading confers upon the person to whom it is issued or transferred, title to the goods, although not intended to confer permanent ownership, but only to furnish security for advances on the faith of it.

The opinions are generally short, but we notice several very long and exhaustive ones, as for example, that of Rapallo, J., in Adair v. Brimmer, p. 545, covering 24 pages; that of Folger, J., in Farmers and Machanics' Bank v. Logan, p. 573, covering 14 pages; that of Rapallo, J., in Hubbell v. Great Western Ins. Co., p. 249, covering 15 pages; and that of Andrews, J., in Bertholf v. O'Reilly, p. 511, covering 16 pages.

WHEN RIGHT OF ACTION FOR TORT SURVIVES.

NEW JERSEY SUPREME COURT OF JUDICATURE, JUNE TERM, 1879.

TICHENOF V. HAYES, Administratrix.

1. An action in tort for negligence or deceit will lie against the personal representative of a deceased wrong-doer.

2. An action ex delicto was brought against the administratrix of a deceased attorney at law for negligence in the discharge of his duty, and in some of the counts deceit was charged. Held, the action was sustainable.

EMURRER to narr.

DE

The declaration contained six counts, that related to two classes of transactions. The first class of counts was founded on a breach of duty in the defendant's intestate, arising out of an alleged retainer of such intestate, as an attorney at law, by the plaintiff, in regard to certain mortgages about to be purchased by the plaintiff, by means of which his money was lost. The second class alleged that the plaintiff was induced, by the deceitful and fraudulent misrepresentations of such intestate, to invest his money in the purchase of certain mortgages; that the representations were false, and known to be so; and that the plaintiff, relying on them, made the investments, which proved worthless.

Alward & Parrot, for plaintiff.

T. N. McCarter, for demurrant.

BEASLEY, C. J. This is a suit against an administratrix. Some of the counts in the declaration, which is demurred to, are founded on a breach of duty in the

defendant's intestate, as an attorney at law, in investigating the title and condition, with respect to incumbrances of a certain property upon which the plaintiff was about to take a mortgage, and whereby the plaintiff lost the money invested by him. The other counts allege, as the gravamen of the action, certain false and fraudulent representations made by such intestate with respect to certain mortgages, in consequence of which the plaintiff put his money in them, and that such securities proved worthless.

The demurrer that has been put in to this declaration is intended to raise but a single question, which is, whether the causes of action thus stated will survive against the personal representative of the deceased wrong-doer.

The action as to form is in tort. I do not understand, from the brief of the counsel of the defendant, that it is contended that if the suit had been in the mode of an action ex contractu for the non-performance of the implied contract, that the attorney would

exercise due care and skill touching the business of

his client, such action would not have survived. Upon this point the law is settled by numerous decisions. In some of these the distinction, with respect to the capacity to survive, that exists between the forms of assumpsit and tort, is sharply drawn. Such, in this particular, is the aspect of Knights v. Quarles, 2 Brod. & Bing. 102, which was a suit in assumpsit by an administrator, growing out of an undertaking by the defendant, who was an attorney, to investigate and see that a title about to be conveyed to the intestate was a good one, the breach being that the defendant failed to do so, and that the intestate, in consepersonal estate. On these facts, the judicial opinion quence, took an insufficient title, to the injury of his

was that such cause of action survived to the personal representative, such result being reached by the rules of the common law, irrespectively of any statutory modification. It was considered that the whole transaction rested on a contract, and that a right to sue, arising from a breach, passed to the administrator, and in the course of the opinion read on that occasion, it was observed, by way of illustration, "that if a man contracted for a safe conveyance by a coach, and sustained an injury by a fall, by which his means of improving his personal property were destroyed, and that property in consequence injured, though it was clear he in his life-time might, at his election, sue the coach proprietor in contract or in tort, it could not be doubted that his executor might sue in assumpsit for the coach proprietor's breach of contract."

This same distinction, in this respect, between these two forms of action, is emphasized in several of the more recent decisions of the English courts. One of these is the case of Bradshaw and wife v. Lancashire & Yorkshire R. Co., L. R., 10 C. P. 189, which was a suit ex contractu by an executrix for injuries inflicted on the testator, in consequence of which, after an interval, he had died, the purpose of the suit being to recover for medical expenses, and the loss that had been occasioned by the inability of the testator to attend to his business. The ground that was expressed for sustaining this action, which was admitted to be a novelty, was that all that was claimed by the plaintiff was compensation for the loss that had fallen on the personal estate, and in form, the suit was for breach of contract, and the doctrine, that there could be no recovery at common law in such a proceeding, by reason of the suffering and death of the person injured, was distinctly stated. Potter v. Metropolitan District Railway Co., 30 L. T. (N. 8.) 765, is a case of the same complexion. And the old authorities are to the same effect, as will conspicuously appear by a reference to the summary of them appended, by way of a note to the case of Wheatley v. Lane, 1 Saund. 216, the two decisions from the Law Reports being specially instanced by

me, not on account of any novelty in the grounds of judgment, but for reason that they exemplify, with more than common distinctness, the limits to which an action on a contract will survive. For it will be observed that these two cases, both in form ex contractu, exclude from the recoverable damages all such as do not fall under the denomination of losses to the personal estate. This rule of decision accords with the principle adopted by this court in the case of Hayden v. Vreeland, 8 Vroom, 372, in which it was held that an action for a breach of a contract of marriage could not be maintained by or against the personal representative of either party to the contract.

Up to this point in my remarks on this subject, my object has been to show that although at common law a certain class of actions ex contractu are possessed of the capacity to survive to the personal representative, nevertheless this transmissible remedy is not a complete one; the importance of this circumstance will hereafter appear.

As has been already stated, the present action is in tort, in part for fraud, and in part for a breach of the duty of an attorney at law in not exercising due care and skill in the business of his client; and it cannot, therefore, be doubted, that by the mere authority of the common law, the proceeding cannot be vindicated. Consequently, the only debatable question arising in this connection is with respect to the proper construction of sections four and five of the act concerning executors. Rev., p. 396.

These provisions are not strange to this court. They were considered and, in one of their aspects, construed in the case of Ten Eyck v. Runk, 2 Vroom, 428. That was an action for damages caused to the plaintiff's land by water backed by the dam of the defendant, and the point decided was that such action was not abated by the death of the owner of the dam, but that it could be continued against his executor. It was admitted in that case, that such cause of action would have been extinguished at the common law by force of the rule actio personalis moritur cum persona, and its persistence after the death of the defendant was attributed altogether to the effect of the enactment just referred to. That enactment is in these words, viz.: "Where any testator or intestate shall, in his or her life-time, have taken or carried away, or converted to his or her use, the goods or chattels of any person or persons, or shall, in his or her life-time, have committed any trespass to the person or property, real or personal, of any person or persons, such person or persons, his or her executors or administrators, shall have and maintain the same action against the executors or administrators of such testator or intestate as he, she or they might have had or maintained against such testator or intestate."

In the case of Ten Eyck v. Runk, all that the court was called upon to decide was whether the term "trespass " in this clause signified those immediate wrongs that are remediable by the action of trespass vi et armis, or comprehended also those indirect injuries resulting from a tortious act, the appropriate means of redress for which is an action on the case, and the court put upon the expression this latter and more comprehensive interpretation. It is now urged, in the argument of the counsel of the defendant, that while it may be that the case just referred to was correctly ruled, that the ground of judgment there adopted was too broad, and that, in the language of the brief: "The true construction of the act limits its application to injury to specific property, real or personal, and not to such a wrong as works no injury to any real or personal property of the plaintiff, but causes his estate generally to sustain a loss." But is this discrimination reasonable? If in the instance of water thrown back on to the property of a person by a dam wrongfully erected on the land of another, the word "tres

an in

pass "in this act means "tort" or "wrong," so as to embrace the consequential injury, why should it not have the same broad sense with respect to the indirect injury inflicted by a neglect? Is it a reason, or an assumption, to say that the statutory expression of trespass to property, real or personal, means damage done to some particular piece of property, and not jury to the property in general? If it is correct to translate the word "trespass" in this clause by the word "wrong," it seems impossible to resist the conclusion that a wrong to personal property is done as manifestly, when one's personalty in the aggregate is injured, as when some particular item of it is damnified. The fact is, the discrimination, taken at its best, would be but a vague and shadowy one, for it seldom, if ever, happens that a loss falls upon a person's general estate, except by means of an injury to some particular part of it. Thus, if A should destroy by his carelessness bank notes, the property of B. to the amount $1,000, under the rule suggested an action would survive; but if B lost these same bank notes through the deceit of A, an action would not survive. The idea that the Legislature intended to give transmissibility to the former of these actions, and not to the latter, is absolutely not credible. This proposed test of the applicability of the statute, arising from the specialness of the wrong done, does not appear to be countenanced by the statutory language, and it certainly does not commend itself by its results. It requires the same word, standing in a clause of a statute, to have a twofold meaning, being broadened in its application to one set of facts, and narrowed in view of another set, and occasions an action to survive in one class of cases, and to non-survive in another, where the loss suffered in each is, in substance, of the same character, and where the necessity for redress in the one is equal to that in the other. The exigency should be pressing, indeed, that should lead to the adoption of such a rule.

The fact is, the real question to be solved is whether these clauses of this act are to be construed strictly, or with the utmost latitude of interpretation, in view of its being a remedial act. In the case of Ten Eyck v. Runk the latter course was pursued, and it seems to me that method was strictly correct. This law was plainly intended to take the place, in an improved and amplified form, of the statute of Edward III, ch. 7, de bonis asportatis in vita testatoris, and its purpose was to remove the same absurdities that had crept into the law by a technical adherence to the words rather than to the spirit of the old maxim, actio personalis moritur cum persona. This substitute, and its anti-type, are obviously in pari materia. The statute of Edward applied, according to its letter, only to goods carried away in the life-time of the testator, but by a most liberal construction it was extended to remedy many other wrongs, some of which are referred to in the opinion in Ten Eyck v. Runk, and it would not be consistent with customary rules, I think, to refuse to exercise a like liberality in the interpretation of this substituted act. By ascribing to the term trespass " the signification of tort, or wrong, and which is one of its meanings, the remedy is made approximately commensurate with the evil to be eradicated, and in this way actions for deccits and neglects will survive, as well as those in which the loss follows immediately from the tortious act. The language of the act is comprehensive enough for this purpose, and it is hardly permissible to impute a lesser design to the Legislature, for there is a great incongruity in a plan that imparts the quality of survival to an action for a forcible injury, and which withholds the same quality from an action for a neglect, or deceit. The one class of wrongs is, in general, no more culpable than the other, and the injurious results, in some cases, are identical in each. If a physician should intentionally inflict a wound on his patient, the action, it is clear,

would, by force of the statute, survive; and surely, if the same wound were occasioned by want of skill, or carelessness, the same result should obtain.

And it is with respect to the class of cases illustrated by the example just adduced, that the counsel of the defendant interposes another objection to the rule of construction above indicated. The point is strongly pressed, and it is this; that in that class of cases in which, at common law, a loss sustained may be considered at the option of the party injured, as the consequence either of a breach of duty or of a breach of contract, it could not have been the intention to bring such class within the operation of this act. The reason assigned for this contention is that the person injured can sue the personal representative of the person inflicting the loss for the breach of the contract, and consequently there was no necessity for legislative intervention. Thus it is said, and said with truth, that upon general principles the culpable attorney or physician may be sued either for the breach of the implied contract, which obliges him to the exercise of skill and care, or in tort for a breach of duty with respect to the same particulars; and from this it is argued that, as the former action will survive at common law, it is not to be supposed that it was the design uselessly to endow the latter with a similar vitality. But the cases presented in the commencement of these remarks deprive this contention of almost all its cogency, for those cases show that the remedy that survives against the representatives of a deceased promise-breaker, in this class of cases, is one that is most incomplete, for no damages can be recovered in such suit, except such as have directly diminished the estate of the deceased. As an illustration, it appears in these cases that if a personal injury is occasioned by the negligence of a carrier, in a suit by the administrator of such person injured in an action ex contractu, which is the only one the common law keeps alive after the injured person's death, the only damages recoverable are those that go to the impairment of the estate, and that there can be no compensation claimed for personal suffering. Such a redress is so imperfect that it can raise up no implication against a legislative design to keep alive the concurrent remedy for the tort, which is somewhat adequate, if not absolutely complete.

The above rule of construction, which I have indicated should be adopted, receives countenance from the views of the English courts, expressed with reference to the correct exposition of the statute of 3 and 4 Wm. IV, ch. 42, § 2, an act which, with respect to the point now in question, bears considerable similarity to the clause of the statute now being considered. The act provides that an action may be "maintained against the executors or administrators of any person deceased for any wrong committed by him in his life-time to another in respect to his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death," etc. The important inquiry in the present connection is, what interpretation was put upon the expression wrong," with respect to property, real or personal?

This provision was considered in its bearing upon the case of Morgan v. Ravey, 6 Hurl. & Nor. 265, which was an action in assumpsit against the executors of an innkeeper, for breach of his implied contract to keep safely the goods of a guest. The question mooted was whether the law would imply a contract under the circumstances, but the court said: "It is not however necessary to determine this if the plaintiff elects to amend, which he may do, and we think successfully; because it seems to us, notwithstanding the ingenious argument of Mr. Phinn, that if the claim against the defendant is for a tort, it is for a 'wrong committed' within the meaning of the 3 and 4 Wm. IV, ch. 42, $2." The counsel of the defendant, in his brief, appears to consider this also a case of "direct injury to

specific property," but I am not able to draw any sensible line of discrimination between the consequential loss of goods arising from a neglect, and the consequential loss of a sum of money by the same means. The decision seems to me to be much in point, and is entitled to much weight.

The same statute entered somewhat into the consideration of the case of Powell v. Rees, 7 Ad. & El. 426, and the general tendency of this decision is in the same direction with the rulings in the judgment just cited; and it has also this particular importance in our present inquiry, that it rules that this statute of William applies to that class of cases, before referred to, in which, at common law, the remedy is concurrent, by an action ex contractu or ex delicto.

But I think the observation and decision of the court in the case of Erskine v. Adeane, L. R., 8 Ch. App. 756, are more to our present purpose. There a claim was made by a land-owner against the executors of a deceased tenant for life, for injury to his cattle by reason of the negligence of the deceased with respect to certain yew trees, in providing sufficient fences, and for throwing the cuttings on the plaintiff's land. The cattle in question were poisoned by eating of the yew trees and the cuttings thus exposed to them. Thus it appears the gravamen of the claim was for the consequential damages resulting from the negligence of the deceased. It was held that, while it was evident such an action would not have lain at common law, it could be brought, at any time within the period limited, by the statute of William. This judgment rests upon the ground that the neglect in question, and which resulted in the loss of the cattle, was a wrong to personal property within the sense of those terms in the statute, and it is, in consequence, plain that this judgment is of much authority in our present investigation, unless a difference can be established, with respect to principle, between a loss of particular cattle by a neglect, and the loss of particular moneys from the same cause. I cannot perceive such difference.

In Massachusetts a literal interpretation has been put upon the statute of that State upon this subject, a result which may, in a degree, be accounted for by the peculiar frame of the act, which is in the nature of an enumeration of the classes of cases in which actions shall survive, and which enumeration would, upon admitted principles, tend to contract the scope of the general terms used in the subsequent part of the section.

The judgment, I think, should be for the plaintiff in the present case.

GIFT OF SAVINGS BANK DEPOSIT.

MARYLAND COURT OF APPEALS.*

TAYLOR V. HENRY.

J. H., being in feeble health, made a deposit in a savings bank to the credit of himself and mother, and the survivor of them, subject to the order of either. He subsequently went to the bank, accompanied by his sister, and had the name of the mother erased and that of the sister substituted, so that the account was to the credit of J. H. and his sister, "and the survivor of them, subject to the order of either." This money constituted nearly all his property. After this he drew out $50. He kept possession of the bank-book until his death. After the deposit he made a will dividing his property among his relatives, to carry out the provisions of which would require the sum deposited. Held, that there was no gift causa mortis of the deposit, nor was there sufficient to establish a trust therein in favor of the sister.

*To appear in 43 Maryland Reports.