that the judgment of the court below should be affirmed.

I

Lord BLACKBURN. My Lords: If it were not that this case is precisely identical with the case of Jolly v. Rees, ubi sup., I should think it desirable to speak more at length than I propose now to do. The opinion upon which I advise your lordships to act is, that the majority of the court in the case of Jolly v. Rees, ubi sup., were right in the judgment which they gave, and it is admitted that that governs the present case. also think that the judgment which Byles, J., gave upon that occasion (which it is admitted might, if it were good, apply to the present case) was not correct as applied to that case, and is not applicable now. I premise, as did the majority of the court in Jolly v. Rees, ubi sup., by saying that no question arises here as to what would be the case if the wife had been left destitute, and had not been allowed what was proper for her estate and condition. If there had been desertion and cruelty, so that she had not been supplied with what was proper, no question arises here as to whether she would not have had authority to pledge her husband's credit to get such things. But that is not the case here at all. This is simply a case where a husband is living with his wife, though they are not keeping up any household establishment; and he, in fact, makes her an allowance, which both husband and wife seem to think, so far as one can judge from appearances, would be sufficient to enable her to supply herself with all necessary clothes. She did get clothes and there was evidence, which satisfied the jury, that the husband really and truly told her that she was not to pledge his credit, and that she had assented. The question comes to be, first, had she, from her position as wife, authority to pledge her husband's credit, although the husband had revoked that authority? I grant that the fact of a man living with his wife, frequently, and indeed always, does afford evidence that he intrusts her with such authorities as are commonly and ordinarily given by husband to wife. I should say that it might be a matter of doubt whether it is so perfectly certain that the articles supplied by milliners are always to be procured upon the credit of the husband, so as to make that a prima facie part of the authority. But I will assume that it would be so. In the ordinary case of the management of a household the wife is the manager of the household, and would necessarily get short and reasonable credit on butchers' and bakers' bills, and such things; and for those she would have authority to pledge the credit of the husband. I think that if the husband and wife are living together, that is a presumption of fact from which the jury may infer that the husband really did give his wife such authority. But even then, I do not think the authority would arise so long as he supplied her with the means of procuring the articles otherwise. But that is not the present question, which is this: Had the wife a mandate to order the clothes which it would be proper for her in her station in life to have, though the husband had forbidden her to pledge his credit, and had given her money to buy clothes? I think, for the reasons given by the majority of the court in Jolly v. Rees, ubi sup., and also by the judges in the Court of Appeal in this case, that there is no authority and no principle for saying that the wife had authority to pledge her husband's credit. I quite agree that if the husband knew that the wife had got credit, if he had allowed the tradesmen to suppose that he himself had sanctioned the transactions by paying them, or in other ways, it might very well be argued that he would have given such evidence of authority that if he did revoke it, he would be bound to give notice of the revocation to the tradesmen and to all who had acted upon the faith of his authority and sanction. That would be the general rule; but where

an agent is clothed with an authority, and afterward that authority is revoked, unless that revocation has been made known to those who have dealt with him, they would be entitled to say, "The principal is precluded from denying that that authority continued to exist, which he had led us to believe, as reasonable people, did formerly exist." Now, there may be many cases in which the husband has so sanctioned his wife's pledging his credit, but there is not any such case here. Those cases in Ireland which have been referred to, seem, as far as I could see by a slight glance, to be cases where the husband had assented to the contracts in such a way that he could not deny them afterward. With that we have nothing at present to do. But I cannot agree with Byles, J., that there is any authority established by the cases that the fact of a wife living along with a husband alone entitles the tradesmen to presume that the husband has given an authority s0 as to preclude the husband from denying it. I think that when husband and wife are living together, it is open to the husband to prove, if he can, the fact that the authority does not exist, it being a question for the jury whether a bona fide authority did or did not exist. This is not a case of withdrawing authority once given. The question is, whether the plaintiff, who had never dealt with the wife or the husband before, was entitled to assume that there was such an authority implied in the mere fact that the wife was living with her husband, and I think the law is not so.

Lord WATSON. My Lords: In this case I shall content myself with saying, that notwithstanding the able and ingenious argument of the learned counsel for the appellants, I am very clearly of opinion that both upon principle and according to the authorities, the case of Jolly v. Rees, ubi sup., was well decided; and I therefore concur in the judgment which your lordships propose.

Order affirmed.

HOMICIDE BY DANGEROUS ACT OF UNCERTAIN ONE OF SEVERAL PERSONS. ENGLISH CROWN CASES RESERVED, DEC. 4, 1880.

REGINA V. SALMON ET AL., 43 L. T. Rep. (N. S.) 573. Three persons went out together for rifle practice. They selected a field near to a house and put up a target in a tree at a distance of about 100 yards. Four or five shots were fired, and by one of them a boy who was in a tree in a garden at a distance of 393 yards was killed. It was not clear which person fired the shot that killed the boy. Held, that all three were guilty of manslaughter.

NASE reserved for the opinion of this court by Lord Coleridge, C. J., at the Summer Assizes at Wells,

1880.

The three prisoners, George Salmon, John Salmon and Hancock, were tried before me on the 27th July, 1880, for the manslaughter of William Wells, a little boy of ten years old, under the following circumstances:

George Salmon is a member of the Frome Selwood Rifle Corps. On the 29th May, 1880, he attended the rifle practice. He took his rifle from the armory, had fourteen ball cartridges served out to him, and fired them all away. After the practice was over he took away with him his rifle, which it was his duty to return to the armory. He did not take it back, and the drill instructor missed six cartridges from the magazine when he went there about half an hour after the practice was over.

About seven o'clock, that is shortly after the practice was over, the three prisoners came together to the house of a witness (Newport) who was called, and whose evidence, so far as it is material to the point to be determined, was as follows:

"The three prisoners came to my father's house somewhere about seven in the evening on the 29th May. George Salmon had a rifle with him and some ball cartridges. All three wanted to fire off one or two shots, and they asked me for something to fire at. I gave them a board from our fowl house. I went with them into a field close by, and the prisoner Hancock climbed into a tree. George Salmon handed up the board to him. Hancock fixed it in the tree about eight feet from the ground. They all went about 100 yards up the field, and all laid down in the grass. I heard two shots. I cannot tell which of them fired the shots, for I was looking at the board. I am not sure whether the first shot struck the target; the second shot did strike it. I do not know which of them fired it. Two more shots were fired afterward, when Wells and Knight came running up and told us what had happened."

"What had happened" was this: The deceased, William Wells, was with his young sister in his father's garden, and her evidence was as follows:

"There is a low apple tree in my father's garden with a rose tree in it. My brother got up into the apple tree to water the rose; while my brother was in the tree I heard a shot; it passed through the tree, for some of the leaves fell down from the tree; I called to my brother, but he answered and said he was safe. Then there was another shot, and my brother fell out of the tree dead on the ground. There were four or five shots fired altogether, I think the second shot killed him."

It was proved that the distance from the spot where the shot was fired to the tree in which the boy was killed was 393 yards; but the rifle was sighted for 950 yards, and would probably be deadly at a mile.

NEW YORK COURT OF APPEALS ABSTRACT.

ACTION -LEGAL AND EQUITABLE STILL EXIST IN FACT- VARIANCE - UNDER COMPLAINT SHOWING LEGAL RIGHT ONLY, EQUITABLE RELIEF NOT ALLOWED. - The names of actions no longer exist, but we retain in fact the action at law and the suit in equity. The pleader need not declare that his complaint is in either, and the complaint may be framed with a double aspect, but in every case the judgment sought must be warranted by the facts stated. See Wheelock v. Lee, 74 N. Y. 500; Hale v. Omaha Nat. Bank, 49 id. 626; Brodley v. Aldrich, 40 id. 512; Sternberger v. McGovern, 56 id 12; Margraf v. Muir, 57 id. 159; Dobson v. Pearce, 12 id. 156; Crary v. Goodman, id. 266. The plaintiff can have no relief that is not consistent with the case made by his complaint and embraced within the issue. He must therefore establish his allegations, and if they warrant legal relief only he cannot have equitable relief upon the evidence. ile must bring his case within the allegations as well as within the proof. Salter v. Ham, 31 N. Y. 321; Heywood v. Buffalo, 14 id. 540; Arnold v. Angell, 62 id. 508; People's Bank v. Mitchell, 73 id. 415. In an action against the city of New York, the complaint demanded payment of the sum of $200,000 as damages for the fraudulent obtaining of a deed of release mentioned therein. It alleged that the defendant fraudulently and with intent to deceive and defraud plaintiff out of certain specified property, kept concealed from plaintiff certain facts and made certain misrepresentations, and that plaintiff, induced by such misrepresentations, executed and delivered, without consideration, to defendant a deed of his interest in property, and that the interest conveyed was worth the sum specified. Upon this com

COLERIDGE, C. J. I am of opinion that the conviction was right and ought to be affirmed. If a person does a thing which in itself is dangerous, and without taking proper precautions to prevent danger arising, and if he so does it and kills a person, it is a criminal act as against that person. That would make it clearly manslaughter as regards the prisoner whose shot killed the boy. It follows as the result of the culpable negligence of this one that each of the prisoners is answerable for the acts of the others, they all being engaged in one common pursuit.

FIELD, J. I am of the same opinion. At first I thought it was necessary to show some duty on the part of the prisoners as regards the boy, but I am now satisfied that there was a duty on the part of the prisoners toward the public generally not to use an instrument likely to cause death without taking due and proper precautions to prevent injury to the public. Looking at the character of the spot where the firing took place, there was sufficient evidence that all three prisoners were guilty of culpable negligence under the circumstances.

LOPES, J., concurred.

STEPHEN, J. I am of opinion that all three prisoners were guilty of manslaughter. The culpable omission of a duty which tends to preserve life is homicide; and it is the duty of every one to take proper precautions in doing an act which may be dangerous to life. In this case the firing of the rifle was a dangerous act, and all three prisoners were jointly responsible for not taking proper precautions to prevent the danger. WATKIN WILLIAMS, J., concurred.

Conviction affirmed.

not present matters of equitable cognizance; that a jury was an appropriate tribunal for the trial of the issues formed; that a decision of a referee appointed by the consent of parties must be treated like a verdict of a jury, and if upon conflicting evidence would be conclusive upon this court, if approved by the General Term. Quincy v. White, 63 N. Y. 370; Leonard v. New York Tel. Co., 41 id. 544; Stillwell v Mutual Life Ins. Co., 72 id. 385; Andrews v. Raymond, 58 id. 676. Judgment affirmed. Stevens v. Mayor of New York. Opinion by Danforth, J. [Decided March 1, 1881.]

ASSIGNEE

ASSIGNMENT FOR CREDITORS-GIVING AUTHORITY TO COMPROMISE WITH CREDITORS, FRAUDULENT AND VOID AS IN DELAY OF CREDITORS. — In an assignment for the benefit of creditors, the assignor declared the conveyance to be in trust, first to sell and dispose of his property and collect the debts due him, "and the taking a part of the whole when the" assignee shall deem it expedient to so do." A second clause prescribed the distribution and payment of the proceeds to all creditors of the assignor for his liabilities to them, or if insufficient, "in proportion to their respective demands." But it further declared that the assignee "may have the right to compromise with " those creditors if in his opinion "it would be advantageous" to them and to the assignor. Held, that the provisions of the first clause would not necessarily render the assignment invalid. But the provision in the second clause, authorizing the assignee to comproImise with the creditors would have such an effect, within the rule in Wakeman v. Grover, 4 Pai. 23; S. C., 11 Wend. 187, adopted in many later cases as the only safe one, which regards every assignment operating to delay creditors for any reason, not distinctly calculated to promote their interests, as contrary to the statute of frauds and therefore void. In this case the assignee has, under the assignment, a discretion to compromise, and in negotiating therefor the interest of the

assignor is to be regarded. It cannot be said that he has devoted his property absolutely and uncondition. ally to the payment of his debts. While placing his property beyond the reach of process, the assignor retains an interest to be provided for, delays its application to the payment of debts by investing his trustee with a power which requires time for its execution, and then prohibits its exercise unless it is advantageous to himself. And to a compromise it is essential that both the creditor and the assignee assents. An attempt to compromise must precede payment, and hence there is on the face of the arrangement an intent to delay payment of debts and one to create a trust for the use of the assignor, either of which renders the instrument void. The case, Horn v. Henriquez, 13 Wend. 240, distinguished on the ground that there the creditor consented to the assignment. It is also an objection to the assignment that under its provisions the assignee could delay the execution of the other trusts until he ascertained whether the creditors would compromise. Whether delay is directed by the instrument or justified by its provisions, or made necessary for their execution, except so far as that delay is incident to the conversion of assets and the payment of debts, can make no difference. Nicholson v. Leavitt, 6 N. Y. 510; Brigham v. Tillinghast, 13 id. 215. Order affirmed and judgment absolute on stipulation. McConnell v. Sherwood. Opinion by Danforth, J. [Decided March 15, 1881.]

COSTS UPON APPEAL "TO ABIDE EVENT" GO TO FINALLY SUCCESSFUL PARTY.—From a judgment in favor of plaintiff upon a referee's report defendant appealed to the General Term, which affirmed the judgment with costs. Defendant then appealed to the Court of Appeals and a new trial was ordered with costs to abide the event." Upon the second trial the plaintiff again succeeded. The clerk taxed the costs of the first trial and of the appeals, including that to the Court of Appeals, in favor of the plaintiff. Held, that the taxation by the clerk was right. The plaintiff is entitled to tax the costs of the appeal to this court. The event of the new trial was the circumstance which was to determine which party should recover to costs of the appeal. The order did not limit the recovery of costs to the prevailing party on the appeal. The terms on which a new trial is granted as respects costs are within the discretion of the court. This court has often limited the recovery of costs on appeal to one of the parties, but where the order reversing a judgment and granting a new trial is made with costs to abide the event, without other limitation, "we understand that the party finally succeeding in the action is entitled to tax them. This construction was put upon a similar order in Koon v. Thurman, 2 Hill, 357. In Union Trust Co. v. Whiton, 78 N. Y. 491, we refused to interfere with the construction given by the General Term of the First Department to its own order. The question here is as to the construction of our order." Order reversed. First National Bank of Meadville v. Fourth National Bank of New York. Opinion by Andrews, J.

[Decided March 8, 1881.]

EXECUTOR-FORBIDDEN TO MAKE INVESTMENTS ON LANDS OUT OF STATE - INVOLUNTARY INVESTMENTS TO SAVE ESTATE EXCUSED-NOT LIABLE FOR NEGLIGENCE OF CO-EXECUTOR - DELAY IN COLLECTING SECURITY, WHEN EXCUSABLE WHAT CONSTITUTES PRUDENCE. While the court has discovered no decision or enactment which in terms declares that an executor may not invest funds in mortgages upon real estate outside of the State, the drift of authority and considerations relating to the safety of trust funds seem to require that such should be regarded as the general rule except in peculiar cases. The rule should not be arbitrary and inflexible, for it is merely the outgrowth of

the broader proposition that the duty of a trustee in making investments is to employ such diligence and prudence as in general prudent men of discretion and intelligence in such matters employ in their own like affairs. King v. Talbot, 40 N. Y. 76. The rule is recognized that an executor must invest in government or real estate securities. Ackerman v. Emott, 4 Barb. 626. This court does not hesitate to recognize and declare as the general rule that the trustee who invests beyond the jurisdiction does so at the peril of being held responsible for the safety of the investment. But this rule relates only to voluntary investments by the trustee having the fund in his hands and full opportunity and freedom of choice. In this case M. and defendant were co-executors of a will. The assets and the management of the trust estate passed into the hands of M., and defendant had no part in either. M. mingled the assets with his own property, partially converted them to his own personal use, and in part lost them by unsafe investments. Thereafter M. died leaving an estate, whether solvent or insolvent did not appear. There were no assets of the trust estate left as such, but merely a personal liability from the estate of M. Defendant, to secure what was due the trust estate, took from the representatives of M. an assignment of a bond and mortgage upon real estate in Toledo, Ohio, which was guaranteed by the sole legatee of M., who was at that time solvent, and also further collaterals for safety. This was done in good faith and under the belief that it was the best that could be done, as the estate of M. could not raise and pay the ready money. Held, that it was defendant's duty to take the securities he did; that the omission to do so would have been imprudent; that his action did not come under the rule which forbids a foreign investment, and that he should not be made personally liable for his acts. Held, also, that defendant was not liable for the misconduct of M., the rule being that each executor is liable only for his own acts and cannot be made liable for the negligence and waste of another unless he in some manner aided or concurred therein. Sutherland v. Brush, 7 Johns. Ch. 22; Monell v. Monell, 5 id. 283; Manahan v. Gibbons, 19 Johns. 427. The case of Bates v. Underhill, 3 Redf. 365, doubted. See Banks v. Wilkes, 3 Sandf. Ch. 99; Kip v. Denniston, 4 Johns. 23; Kirby v. Turner, Hopk. Ch. 330; DeForest v. Parsons, 1 Hall, 130. Held, also, that a delay by the executor in foreclosing the mortgage, the reason given being that the depressed condition of the real estate market rendered it inadvisable at the present time to do so, there being no proof to throw discredit upon this reason, would not be negligence making him personally liable. Judgment of General Term reversed and that of surrogate affirmed. Ormiston v. Olcott. Opinion by Finch, J. "All concur except Folger, C. J., dissenting, and Rapallo, J., absent. Andrews, J., concurs in result." [Decided March 1, 1881.]

-

SUMMARY PROCEEDINGS - TO REMOVE ONE HOLDING OVER AFTER EXECUTION SALE AND DEED MAINTAINABLE AGAINST TENANT OF RECEIVER OF DECEASED DEBTOR'S ESTATE JURISDICTION OF JUSTICE OF MARINE COURT. A debtor died in 1872, leaving a leasehold interest in premises in New York city not yet at an end. His executors qualified and went into possession of the premises as owners of the leasehold estate. In 1875 one Parker, the creditor, recovered a judgment against the executors and docketed it. In March, 1876, a receiver of the estate was appointed in proceedings by the executors for a construction of the will and in proceedings for a partition of the estate. Subsequently in that year, by order of the surrogate therefor, the creditor issued an execution against the executors and thereafter issued an execution which the Supreme Court ordered to be levied upon any of

the assets of the testator in the hands of the executors. In 1877 the sheriff, under the last-mentioned execution, levied upon the leasehold estate, sold it and at the expiration of fifteen months gave a deed to the purchaser. In 1879, after such deed was given, the receiver leased the premises to H. who took possession. Held, that the possession of II. was taken under a title that was subordinate to or extinguished by the judgment, execution, sale and deed, and that summary proceedings under 2 R. S. 512, § 28, subd. 4, for the removal of H. from such premises, were maintainable before a justice of the Marine Court, and that the fact that the execution was not against H. was no defense. See Birdsall v. Phillips, 17 Wend. 464; Hallenbeck v. Garner, 20 id. 22; Spraker v. Cook, 16 N. Y. 567. Held, also, that the result would not be affected whether or not the judgment bound estates for years in the hands of executors. Judgment reversed. People ex rel. Higgins v. McAdam. Opinion by Folger, C. J. [Decided March 1, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

PARTNERSHIP · -BUSINESS CONTINUED UNDER WILL OF DECEASED PARTNER WHEN ESTATE OF DECEASED AND SHARES IN PROFITS NOT LIABLE FOR DEBTS OF

FIRM.-W., who was in business with his son, provided by will that after his death the business should be carried on by the son in the firm name; that annually, after testator's death, on the first day of January, the profits of the business should be ascertained and divided between his son and his wife and other children. The will also provided that the capital invested by testator in the business should remain there but that no other property left by him should be liable for the debts and liabilities of the business. The testator died in 1872, and the business was conducted as directed in the will until February 27, 1877, when the firm, on the petition of its members, was declared bankrupt in the proper court. The dividends which were made from the business were made in good faith, were really earned, did not diminish the capital, and all debts existing when they were made were paid. The insolvency was brought about by accommodation indorsements for others made after the last dividend was paid; the firm but for this would have remained solvent, and in regard to this none of those interested in the dividends were to blame except the son who conducted the business. In an action by the assignee in bankruptcy of tho firm to subject the property of the testator which had not been embarked in the partnership enterprise, in the hands of the devisees, to the payment of the partnership debts and to recover from the wife and other children of testator money which they had received as dividends out of the profits of the business after the death of testator, held, that plaintiff was not entitled to the relief sought. In Smith v. Ayres, 101 U. S. 320, the legal principle lying at the foundation of the first of these grounds of relief was fully discussed and determined. It was there held that a testator might authorize the continuance of a partnership in which he was engaged at the time of his death, without subjecting any more of his property to the vicissitudes of the business than what was then embarked in it, and that unless he had expressly placed the whole or some other part of his estate under the operation of the partnership, it would not be presumed that he had so intended. See, also, Burwell v. Mandeville's Executors, 2 How. 560; Ex parte Garland, 10 Vesey, Jr., 109. Decree of U. S. Circuit Court, Kentucky, affirmed. Jones v. Walker. Opinion by Miller, J.

[Decided Feb. 28, 1881.]

PATENT FOR PROCESS ALLOWABLE -WHAT NECESSARY TO SUSTAIN NEW MODE BY SUBSEQUENT IN

VENTOR. - A patent for a process, irrespective of the particular mode or form of apparatus for carrying it into effect, is admissible under the patent laws of the United States. To sustain a patent for a process, the patentee should be the first and original inventor of the process, should claim it in his patent, and if the means of carrying it out are not obvious to an ordinary mechanic skilled in the art, his specification should describe some mode of carrying it out which will produce a useful result. If a subsequent inventor discover a new mode of carrying out a patented process, though he may have a patent for such new mode, he will not be entitled to use the process without the consent of the patentee thereof. Corning v. Burden, 15 How. 267. The decision in Mitchell v. Tilghman, 19 Wall. 287, reviewed and overruled; and Tilghman's patent, relating to the manufacture of fat acids, sustained as a patent for a process. The decisions in O'Reilly v. Morse, 15 How. 62, and in the case of Nelison's patent for the hot blast (Webster's Reports), commented upon and explained. Decree of U. S. Circuit Court, S. D. Ohio, reversed. Tilghman v. Proctor. Opinion by Bradley, J.

[Decided Feb. 28, 1881.]

REMOVAL OF CAUSE-RESIDENCE OF PARTIES ACTUALLY CONTESTING DETERMINES RIGHT TO, WITHOUT REFERENCE TO RESIDENCE OF MERELY FORMAL PART

IES. The L. Association was a corporation of the State of Missouri, doing a life insurance business, its chief office being located at St. Louis. By the laws of that State, upon the rendition of a judgment dissolving such a corporation its assets vest in fee simple in the superintendent of the insurance department for the benefit of creditors and policy-holders. Upon a judgment in favor of the C. Company, a Missouri corporation, against the L. Company, an action was commenced to dissolve the L. Company October 13, 1879, by Relf, the superintendent of insurance, in the courts of Missouri, and pending it Frost, a citizen of Missouri, was appointed temporary receiver to take charge of its assets. On the 5th November, 1874, R., a policy-holder in Louisiana, commenced suit against the L. Company, its agent at New Orleans, Frost, receiver, and the receiver of the C. Company, in a Louisiana court, asking to have the assets of the company in Louisana declared a trust fund to pay claims of Louisiana creditors and policy-holders in preference to others. The object of this suit, as set forth in the bill, was to keep the Louisiana assets of the L. Company out of the hands of Relf and his successors in office. No relief was asked against the receiver of the C. Company. A receiver was appointed in this suit. On the 10th of November the L. Company was dissolved by the Missouri court and its property vested in Relf as provided by statute. On the 17th of the same month Relf was on his own motion made a party to the Louisiana suit and on the 28th he filed a petition for removal to the Federal court, the petition showing his citizenship in Missouri and that of R. in Louisiana (the citizenship of the rest of the parties being shown in the pleadings), and gave the proper bond. Held, that as the entire controversy was between R., representing the Louisiana creditors on one side, and Relf, the statutory representative of the L. corporation and its property, on the other, the remaining parties being only formal ones, there was a proper case of removal under the act of 1875. Order of U. S. Circuit Court, Louisiana reversed. Life Association of America v. Rundle. Opinion by Waite, C. J. [Decided Jan. 24, 1881.]

NEBRASKA SUPREME COURT ABSTRACT.

AGENT WITH AUTHORITY TO ISSUE BILLS OF LADING BINDS PRINCIPAL BY FRAUDULENT BILLS UPON WHICH MONEY IS ADVANCED IN GOOD FAITH. — A sta

tion agent of a railroad company, who had authority from it and whose duty was to issue bills of lading for the company, for goods shipped by it, issued bills for wheat which was not in fact shipped.

Held, that the company was liable to one who in good faith advanced money upon the credit of such bills. In Grant v. Norway, 2 Eng. L. & Eq. 337, it was held that the master of a ship has no general authority to sign a bill of lading for goods which are not put on board the vessel, and consequently the owners of the ship are not responsible to parties taking a bill of lading which has been signed by the master without receiving the goods on board, the court saying: "There is but little to be found in the books on the subject: it was discussed in Berkey v. Watling, 7 Ad. & El. 29; but that case was decided on another point, although Littledale, J., said in his opinion the bill of lading was not conclusive under similar circumstances on the ship-owner." This decision was followed in Hubbersty v. Ward, 18 Eng. L. & Eq. 551, in the Court of Exchequer, Pollock, C. B., placing the decision upon a lack of power in the master. See, also, Coleman v. Riches, 29 id. 329. These decisions were followed by the Supreme Court of the United States in the case of the Schooner Freeman v. Buckingham, 18 How. 182. See, also, Dean v. King, 22 Ohio St. 118. In Dickson v. Seelye, 12 Barb. 99, the court say: "As between the owner of the vessel and an assignee for a valuable consideration, paid on the strength of the bill of lading, it may not be explained. Portland Bank v. Stubbs, 6 Mass. 422. In such case the superior equity is with the bona fide assignee, who has parted with his money on the strength of the bill of lading." See, also, Armour v. Mich. Cent. R. Co., 65 N. Y. 111; Savings Bank v. Atchinson, Tex., etc., R. Co., 20 Kans. 519; Lickbarrow v. Mason, 2 T. R. 63. Sioux City & Pacific Railroad Co. v. First National Bank of Fremont. Opinion by Maxwell, C. J.

[Decided Nov. 11, 1880.]

CHATTEL MORTGAGE-TENDER AFTER DEB PAST DUE MUST BE UNCONDITIONAL AND KEPT GOOD TO RE

LEASE.. -A chattel mortgagee, after the maturity of the debt secured by the mortgage, showed the mortgagor $500 and told him he could have it for his claim. There was a dispute as to the amount due. Held, that this was a conditional tender and did not operate to discharge the mortgage. Held, also, that a tender after maturity, to discharge a chattel mortgage, must be kept good. Kortright v. Cady, 21 N. Y. 343, criticised. See Perre v. Castro, 14 Cal. 519; Himmelman v. Fitzpatrick, 50 id. 650; Crain v. McGoon, 86 Ill. 431. In Adams v. Nebraska City Nat. Bank, 4 Neb. 370, it was held "that a chattel mortgage transfers to the mortgagor the whole legal title to the things mortgaged, subject only to be defeated by performance of the condition." And in Tallon v. Ellison, 3 id. 74, it was said: "The legal title passes to the mortgagee, subject to the mortgagor's right to perform the condition; and after default the legal title is said to become absolute in the mortgagee." But the mortgagor has a right to redeem the mortgaged property, at any time before it is sold, by paying the mortgage debt. Although a party who tenders money has a right to exclude any presumption against himself that the sum tendered is in part payment of the debt, yet, if he add a condition that the party. who receives the money shall acknowledge that no more is due, this will invalidate the tender." Chitty on Cont. 699. In Woods v. Hitchcock, 20 Wend. 47, it was held that a tender of money in payment of a debt, to be available, must be without qualification; that is, there must not be any thing raising the implication that the debtor intended to cut off or bar a claim for any amount beyond the sum tendered; and it was accordingly held that the tender of a sum in full discharge of all demands of the creditor was not good.

Cowen, J., said: "It was clearly a tender to be accepted as the whole balance due, which is holden bad by all the books." Tompkins v. Batie. Opinion by Lake, J.

[Decided Jan. 5, 1881.]

TELEGRAPH - SENDER OF UNREPEATED MESSAGE BOUND BY CONDITIONS LIMITING LIABILITY. — - A charge to the jury that a rule by a telegraph company that it shall not be liable for mistakes of any unrepeated message, beyond the amount received for sending the same, was not unreasonable, and if brought to the knowledge of persons dealing with the company, and assented to by them, would be binding upon them, coupled with a statement that the sender of a message not directed to be repeated, could not, in case of error in the message, recover more than the price of the message, if the telegraph company used suitable instruments and machinery and employed skillful operators, who in the transmission of the message used ordinary care and were not guilty of actual negligence in the premises, held, not erroneous. Wolf v. W. U. Tel. Co., 62 Penn. St. 83; 1 Am. Rep. 387. In Redpath v. W. U. Tel. Co., 112 Mass. 71; 17 Am. Rep. 69, it was laid down that the sender of an unrepeated message, written upon a blank of the company having a printed heading which specified that the company should not be liable for mistakes in the transmission of an unrepeated message beyond the amount received for sending it, could not recover more, unless the mistakes were caused by gross negligence or fraud. And in Breese v. United States Tel. Co., 48 N. Y. 132; 8 Am. Rep. 526, it was ruled that conditions in telegraphic messages as to repeating are reasonable, "and when a person writes a dispatch, and signs his name, upon a blank containing a printed condition that the company will not be responsible for the correct transmission of the message unless it is repeated at an additional expense, he cannot recover for an error in transmission, the condition as to repeating not being complied with, and there being no allegation of gross negligence or willful misconduct on the part of the company." Earl, C., says: "But while they" (telegraph companies) "are bound to transmit all messages delivered to them, they have the right to make reasonable rules and regulations for the conduct of their business. They can thus limit their liability for mistakes not occasioned by gross negligence or willful misconduct, and this they can do by notice brought home to the sender of the message, or by special contract entered into with him; and Lott, C. C., in speaking of conditions limiting the company's liability printed upon message blanks, said: "The conditions are reasonable, and not against public policy. On the contrary, they subserve to carry out the objects for which telegraphic associations are created, and especially to secure the receipt of a message in the words in which it is written and delivered for transmission. A party using such a blank, and writing his dispatch thereon, assents to the terms and conditions on which it is sent. If he omits to read or to become informed of them, it is his own fault. A contract voluntarily signed and executed by a party, in the absence of misrepresentation or fraud, with full opportunity of information as to its contents, cannot be avoided on the ground of his negligence or omission to read it, or to avail himself of such information." See, also, West. Union Tel. Co. v. Carew, 15 Mich. 225; Grinnell v. West. Union Tel. Co., 113 Mass. 299; 18 Am. Rep. 485, where Gray, C. J., says: "According to the weight of authority, a regulation that the liability of the company for any mistake or delay in the transmission or delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated by sending it back to the office which first received it, and pays half the regular rate