contract. and he cannot be turned over to another party under circumstances such as are developed in this case.

Judgment reversed."

Opinion by Ingalls. J.; Brady J., concurring.

[Decided April 1878.]

N. Y. SUPREME COURT. GENERAL TERM.

FOURth Dept.

SARAH J. HANNAHS, Executrix, etc., Respondent,

VS.

ALONZO CHURCH, Appellant.

AGENCY-RATIFICATION-A ratification of the unauthorized acts of an agent can be implied as against the principal only when he acts with a full knowledge of all the facts whereby he is sought to be charged.

Appeal from a judgment of the Jefferson Count Court, in favor of the plaintiff.

The defendant owned a hotel, which he rented to one Eddv. It was agreed that defendant should erect an addition to the hotel, he to furnish the material for the building, and Eddy was to pay for the labor. Eddy ordered paint of plaintiff's agent, and plaintiff now sues defendant for the value of the paint upon the ground that he authorized Eddy to purchase it. The defense is that defedant never authorized the purchase.

The Court charged the jury in substance that they might find a ratification of the purchase by defendant from his being in the building and seeing painting done, and preparations for further painting. Defendant's counsel excepted.

D. Bearup, for respondent.

W. F. Ford, for appellent.

Held, That unless defendant knew when he was in the building, and saw the painting done, that the material was delivered by plaintiff, an important element of ratification was not established.

The defendant's counsel asked the Court to charge the jury that defendant could not be held to a perfect ratification unless defendant had some intimation that the goods were purchased on his account.

The Court refused to so charge.

Held, Error. The Court should have charged as requested Judgment reversed, and new trial granted.

Opinion by Mullin, P. J.; Talcott and Smith, JJ, concur., on the ground of error in charge, and refusal to charge as requested.

[Decided April 16, 1878.]

N. Y. COURT OF APPEALS.

LYNCH, Respondent

VS.

MCNALLY,Appellant.

ANIMALS-An action for injuries sustained by the bite of a vicious dog is based upon the keeping of the dog with the kaowledge of his propensities. Contributory negligence, in its legal acceptation, is not a defence; to constitute a defence in such an action, it must be established that the person injured did some act from which it may be affirmed that he brought the injury upon himself.

Plaintiff, who was not shown to have had knowledge of the vicious propensities of the dog, which was loose, offered him a peice of candy, when he sprang upon and bit her. Held, Thnt this could not be called negligence. This was an action to recover damages for injuries sustained by plaintiff from the bite of a dog owned by defendant. There was evidence that the dog was vicious and that defendant' knew it.

Malcom Campbell, for Appellant.

F. J. Lupignac, for Respondent.

Held, That defendant was liable; that such an action is based upon the keeping of the dog with knowledge of his propensities: that if negligence is an element of the cause of action at all, it is not so in the ordinary sense of that term, but consists in the act of keeping the dog with knowledge of his disposition; that contributory negligence, as that term is understood in law, is not a defence; that to constitute a defence to such an action it must be established that the person injured did some act from which it may be affirmed that he brought the injury upon himself; so if a person knowing the vicious propensities of a dog, should wantonly or wilfuly do an act to induce the dog to bite, or should unnecessarily and

voluntarily put himself in the way of the dog, knowing the probable consequences, the same principle would apply.

It appeared that the dog was loose, and there was no evidence that plaintiff had knowledge of his vicious propensities. She offered him a peice of candy, when he sprang at her and bit her.

Held, That this could not be called negligence on the part of plaintiff; that it was not an act from which any bad consequences would naturally follow, as every dog at large is presumed to be a peaceful dog.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Church, Ch. J. All concur except Allen, J. absent.

HAMILTON COUNTY DISTRICT COURT.

J. G. MURDOCK &Co.

VS.

THE NATIONAL TUBE WORKS CO.

Agents can not Hypothecate or Apply Property of their Principals to the Paymentof their own Debts.

This was a petition in error to reverse a judgment of the Common Pleas, where the suit was brought by the Tube Works Company to recover a balance of an account for tube alleged to have been sold to J.G. Murdock & Co. The defense was that Murdock & Co never had any dealings with the company, but purchased of the Redfield, Bowen & Walworth Company, in Chicago, who had been fully paid; that Murdock & Co. ordered the tubes from Redfield & Co. to secure an account they had against the Company, and there being a surplus, they sent their check to that company to pay the difference. It appeared that on the receipt of the check Redfield, Bowen & Co, had made an assignment. It was alleged that the latter company were agents of the National Tube company.

Judge Cox, in announcing the opinion, said it was well settled that a party who holds property as agent for another, and

simply acts as agent, can not hypothecate it or apply it to the payment of his own debt. The testimony shows that Redfield, Bowen & Co. were in debt to Murdock & Co., and were agents of the National Tube Company, that the pipe they sold to Murdock belonged to the National Tube Company, and they had no right to turn it over to the payment of their own debt. Murdock & Co. claim that they were not aware the property belonged to the National Tube Company, but the bill-heals on which eertain accounts were furnished set out that fact. Murdock & Company say that though it was a custom of parties to represent themselves as agents, the transaction in question was their individual transaction, and that when the bill was sent to them they did not observe that these parties were acting as agents, and otherwise that they would not have dealt with them. But whether or not Murdock & Company had notice that the property belonged to the National Tube Company, the parties from whom they obtained it could not transfer it in payment of their own debt. -Judgment affirmed.

HAMILTON CO. DISTRICT COURT.

CHARLES JACOB, JR.,

V.

THE FIRST NATIONAL BANK OF CINCINNATI. ASSIGNMENT OF LIFE INSURANCE POLICY-Held, that the State Law does not

forbid the Sale and assignmeut of a valid Life Insurance Policy, already in existence-to an assignee who has no interest in the Life assured, when the assignment is made as an honest and bona fide business transaction, and is permitted or not prohibited by the Policy.

It appeared that on the 26th of December, 1868, one Edward T. Ross got his life insured for $2,000, payable to his wife at his decease. His wife was a second wife. He had children by his former wife, but none by her. She died before him,-August 21, 1871. He was then in infirm health and short of means. He did not pay one premium promptly. The company, however, accepted payment afterward and issued the policy anew, payable to his legal representatives. On the

2d of January, 1872, he assigned the policy to the defendant, and received the defendant's note for $125, which was paid April 10, 1872. The surrender value of the policy at the time of the assignment was $118. The defendant was Ross' brother-in-law. After the assignment which was assented to by the insurers, the defendant paid five quarterly premiums of $25 each. Ross died March 24, 1873. The defendant collected on the policy $2,121.20. The plaintiff, who was administrator on Ross' estate, brought this action to recover that amount, less the amount of the note for $125, and the five quarterly premiums with interest.

DURFEE, C. J.-The plaintiff claims that the assignment was made as security for a loan and not as an absolute sale. Testimony was submitted on this point. We think the assignment was intended to be an absolute sale.

The plaintiff contends that, if the assignment was an absolute sale, it was void as against public policy, and that he is, therefore, entitled to recover the money received on it, less the payments aforesaid, as money received to his use. The defendant claims that the assignment, though absolute, is valid, and that he is entitled to keep the money as his own.

Upon the question thus raised there is a conflict of decision. In Massachusetts and Indiana it has been decided that a life policy is not transferable outright to a person who has no interest in the life insured: Stevens, administrator, v Warren, IOI Mass., 564, Franklin Life Insurance Co. v Hazzard, 41 Ind., 116. A similar decision (but in a case having peculiar circumstances) has been made by the Supreme Court of the United States, Cammack v Lewis, 15 Wall., 643. The reason given is that it is unlawful for a person to procure insurance for himself on a life in which he has no interest; for otherwise the law could always easily be cireumvented by first having a person get his own life insured and then taking an assignment of the policy. And it is also argued that the gambling or wagering element is the same and the temptation to shorten the life insured is the same in the one case as in the other.

But, on the other hand it has been decided in England that