forgeries. Held, that plaintiff was entitled to recover from the bank the amount of deposits detained by it to pay the forged checks. Weisser's Admr. v. Denison, 10 N. Y. 68. A bank cannot pay money of a depositor on a forged check, and it makes no difference that the forger is a confidential clerk of the depositor. While the depositor is under a duty to attend to his account when made up, and a negligent omission of all examination may, when injury happens to a bank, which the depositor might have prevented, preclude a depositor from questioning its correctness, he is under no duty to the bank so to conduct his examination that it will necessarily lead to a discovery of the fraud. If he examines the vouchers personally and is himself deceived by the skillful character of the forgery, his omission to discover it will not shift upon him the loss which in the first instance is the loss of the bank. Banks are bound to know the signatures of their depositors, "and they pay checks purporting to be drawn by them at their peril." If a depositor, in the ordinary course of business, commits the examination of the bank account and vouchers to clerks and agents, and they fail to discover checks that are forged, the duty of the depositor to the bank is discharged, although the principal might personally have detected the forgery. The failure of plaintiffs to detect the forgeries did not discharge the bank in this instance from liability for the amount charged to plaintiffs. Judgment affirmed. Frank v. Chemical National Bank of New York. Opinion by Andrews, J.

[Decided March 1, 1881.]

MUNICIPAL BONDS-TOWN BONDS UNDER LAWS 1866, CHAPTER 398- AFFIDAVIT OF ASSESSOR AS TO CONSENT OF TAX PAYERS NOT CONCLUSIVE IN FAVOR OF BONA FIDE HOLDER. - By Laws 1866, chapter 398, authorizing towns to subscribe to the stock of the Midland Railroad Company, and to issue bonds, etc., and acts amendatory thereto, it is provided that upon the application of twelve freeholders of a town the county judge may appoint railroad commissioners; that these commissioners may borrow money on the credit of the town, and execute bonds therefor to the extent of thirty per cent of the assessed value of the taxable property, providing, however, that the consent shall first be obtained in writing of a majority of the tax payers of such town, owning or representing more than one-half of the taxable property of the town assessed, which consent shall be proved in the same manner as conveyances of real estate." It is further provided that the fact that a majority of the tax payers representing a majority of the taxable property, has been obtained and acknowledged, shall be proved by an affidavit in writing of one of the assessors of the town, etc., annexed to the consent, and the consent and affidavit shall be filed, etc., and that "the same or a certified copy thereof shall be evidence of the facts therein contained, aud shall be admitted as evidence in any court in this State, etc., and it shall be the duty of the said assessor, etc., to make such affidavit when said consent shall have been obtained," etc. Held, that the affidavit of the assessor was not conclusive evidence that the requisite consent of tax payers to the issue of town bonds had been given, in an action by the bona fide holder for value, and without notice of interest coupons of town bonds against the town, to enforce their payment. See Starin v. Town of Genoa, 23 N. Y. 439; People v. Mead, 36 id. 224; Town of Venice v. Woodruff, 62 id. 463. The statute is satisfied by holding that the affidavit of the assessor is prima facie evidence. If it is intended in a statute to make an affidavit or any writing conclusive evidence, there is usually something in the statute clearly to indicate such intention. See 1 R. S. 173, § 22; id. 412, § 81; 2 R. S. 377, § 2; Code, § 1933; People v. Brown, 55 N. Y. 196; Town of Wellsboro v. New York, etc., R. Co., 76 id. 185. In the case of People v. Mitchell, 35 id.

551, the affidavit that the requisite consent was given was made conclusive by the statute. In Town of Springport v. Teutonia Sav. Bk., 75 id. 397, it was made presumptive evidence. In Bank of Rome v. Village of Rome, 19 id. 20, the certificate was not as to the action of the town in subscribing, but as to the performance of a collateral condition. Although in determining whether the requisite consent has been given and making the affidavit, the assessors exercise quasi judicial functions (Howland v. Eldridge, 43 N. Y. 457; People v. Allen, 52 id. 538), and their determination of the matters embraced in their affidavit is in the nature of a judgment, yet where there is no consent of the taxpayers they have no jurisdiction to act and do not get it by determining that they have it. See Bank of Chemung v. City of Elmira, 53 N. Y. 49. Judgment affirmed. Cagwin v. Town of Hancock. Opinion by Earl, J. [Decided March 15, 1881.]

PRACTICE-CODE, § 1023, AND SUPREME COURT RULE 32.-Section 1023 of the Code is inconsistent with rule thirty-two of the Supreme Court as it stood before the recent revision, and made that rule inoperative by providing that a request for findings of a court or referee should be made and passed upon before a final decision or report, the rule mentioned allowing such requests and findings after the decision or report and upon the settlement of the case. The revised rules are however in accordance with the Code. Order reversed. Gormerly v. McGlynn. Opinion by Finch, J. [Decided March 1, 1881.]

SHERIFF ACTION FOR ESCAPE-SERVICE OF SUMMONS THAT PROCESS UNDER WHICH PRISONER WAS HELD VOIDABLE AS DEFENSE PLEADING INSOLVENCY OF DEBTOR-INTEREST ON SURROGATE'S DECREE ADMINISTRATOR - AUDITOR'S FEES MAY BE CHARGED AGAINST.—(1) In an action against a sheriff for the escape of an imprisoned debtor, the service of the summons was made by the delivery of the same to a deputy and clerk of defendant at a room which was in fact the office of the defendant as sheriff. Held, a sufficient service under Code, § 426, subd. 3, even though the sheriff had not filed a notice of such room as his office as required by 2 R. S. 285, § 55. The filing of the notice was not needed to make the room in question his office, and the fact that he had failed to do his duty as to filing would not absolve him from the effect of the service. (2) Auditor's fees may be charged against an administrator personally under Laws 1867, chap. 782, § 8. (3) That a process directing the arrest of a debtor by the sheriff had been erroneously issued, it being voidable only and not void, cannot be set up by the sheriff in an action by the creditor for an escape of the debtor. Cable v. Cooper, 15 Johns. 155. (4) Under the provisions of the Code, § 1211, that every judgment shall bear interest from the time of perfecting the same, every determination of a court awarding a sum of money to one party to be paid by another carries interest. A decree of a surrogate bears interest from its date. And the sheriff is liable to pay interest upon the amount of a decree for the failure to pay which an escaping debtor had been imprisoned. (5) The complaint avowed that the defendant wrongfully permitted the debtor to escape. It was shown that the trausgression of the debtor was but momentary, for a short distance, and without the knowledge of the defendant. Held, that defendant was still liable. Under the Code, the form of action is not material. (6) The fact that the debtor was insolvent held, no defense, though it might have been at common law. Judgment affirmed. Dunford v. Weaver. Opinion by Folger, C. J.

[Decided March 8, 1881.]

TITLE-CHOSE IN ACTION TRANSFERABLE BY PARTY— JUDGMENT TO USE OF ANOTHER UNDER COMMON LAW

-

BELONGS TO SUCH OTHER. (1) The firm of W. & Co., who were largely indebted to E., in pursuance of an understanding delivered to E. a policy of insurance upon which they had a claim against defendant, and at the same time made a written order expressing a consideration upon defendant to pay the amount due to them to E., the order stating that the receipt of E. should be a full discharge. There were other circumstances tending to show that the policy belonged to and was intended to be transferred to E. Held, sufficient to show a transfer of the right of action upon the policy to E. The authorities hold that a chose in action may be assigned by parol and a delivery where there is a valuable consideration. Hooker v. Eagle Bank, 30 N. Y. 83; Mack v. Mack, 3 Hun, 323; Doremus v. Williams, 4 id. 458. Here was more than a parol assignment and delivery, for the order was virtually an assignment which transferred the policy. An equitable assignment is recognized as a legal assignment under the Code. (2) The firm of W. & Co. brought an action in the courts of Mississippi, where the common law forbidding an assignment of a chose in action prevails, in their name for the use of E. upon the policy against defendant. Held, that the judgment recovered belonged to E. The bringing of an action for the use of a party in interest, in accordance with the common-law rule that a chose in action is not assignable, is recognized in the decision. Merton v. Merton, 13 S. & R. 107; Welch v., Mandeville, 1 Wheat. 233, n; McCullom v. Coxe, 1 Dallas, 150; Canby v. Ridgway, 1 Binn. 496; Southgate v. Montgomery, 1 Paige, 41. The plaintiff in such action is merely a nominal party. The judgment belongs to the one for whose use it is recovered as much as if he was named as plaintiff, and under the Code he alone can sue upon the same. Judgment affirmed. Greene v. Republic Fire Insurance Co. Opinion by Miller, J. [Decided March 22, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

AGENCY -AGENT TO INSURE OF INSURANCE COMPANY, BORROWING MONEY TO REMIT TO COMPANY, DOES NOT MAKE IT LIABLE TO LENDER. -The agent at Baltimore of an English insurance company to issue policies, adjust and pay losses, but without any authority to borrow money on the credit of the company, and who had never done so except by the negotiation as agent of bills to pay losses, was behindhand in his accounts. He was at the time agent of other insurance companies and of private persons. He had been introduced to the plaintiff's bank as the agent of the English company, and had opened an account in his own name as agent, the name of the company not appearing. All his deposits from whatever source were made to the credit of this account and all his checks were drawn against it. His remittances to the English company were made by bills purchased from a firm dealing in foreign exchange at Baltimore, and were paid for with checks on the bank payable to that firm. This was known to the bank. Being pressed for a settlement by the company, he arranged with the bank for an over-draft upon his account which was made and the check used to purchase a bill from the firm mentioned, which bill was sent to the English company. Upon a similar arrangement he made another overdraft which was used in like manner to pay the company. Thereafter he left Baltimore and his agency was revoked. Held, that the English insurance company was not liable to the bank for the amount of the over-drafts. A borrowing by an insurance agent to enable him to remit his company the proceeds of his

business is prima facie the borrowing of the agent himself rather than the company, and will be so treated unless the contrary is shown. Judgment of U. S. Circ. Ct., S. D. New York, affirmed. Central National Bank of Baltimore v. Royal Insurance Co. Opinion by Waite, C. J.

[Decided March 21, 1881.]

CONTRACT -MUTUALITY NECESSARY CUSTOM - IN ABSENCE OF CONTRACT NOT PROVABLE. - Plaintiff brought action against the city of Chicago and county of Cook, claiming to recover for services as architect in preparing plans for a court-house and city hall and for superintendence in erecting such building. It was shown that the authorities of the defendants had offered prizes for three plans for such building with a statement of the contents and an estimate of the cost of the same. Designs were submitted by a number of architects and a plan prepared by plaintiff was given the third prize (others being given the first and second) and he was paid the sum awarded therefor. The city and county authorities then adopted a resolution that the award of a prize should not indicate as to which plan should be finally adopted, but afterward adopted a resolution that the building should be constructed in accordance with that prepared by plaintiff, “provided the estimate of the architect who presented said plan as to the cost of construction should be verified." In the trial of the action plaintiff gave evidence of the facts mentioned; that he was an architect of some years' experience, and that he verified the estimate accompanying his plan. He produced his plans and offered to show their value, the time and expense of preparing them; to show that by the usage and custom of architects in the absence of contract the superintendence of the construction of a building belonged to the architect whose plans were accepted, that by such usage the plans of successful architects in a competition belonged to them, and if adopted as the plans to build by they were to be paid for in addition to the prize, and to show the value of the services rendered in verifying the cost of the building. There was no evidence that the plans of plaintiff were used or that the building was erected. The trial court excluded the evidence and directed a verdict for defendants. Held, no error. Plaintiff could not recover on any resolution of the authorities of defendants, as such resolution did not bind him to furnish the plans, and there was therefore no mutuality. If one does not accede to a promise as made, the other party is not bound by it. Tuttle v. Love, 7 Johns. 470. When A. signs a writing by which he declares he will sell to B. his house at a certain price, this is a mere proposition and not a coutract. Tucker v. Woods, 12 Johns. 190. See, also, Wood v. Edwards, 19 Johns. 205; Kingston v. Phelps, Peak, 227; Eliason v. Henshaw, 4 Wheat. 225; Welsh v. Alton, 5 Gil. (Ill.) 225; McClay v. Harvey, 90 Ill. 525. Usage could not be shown. Unless some contract is shown, evidence of usage is immaterial. Proof of usage can only be received to show the intention or understanding of the parties in the absence of a special agreement, or to explain the terms of a written contract. Hutchinson v. Tatham, L. R., 8 C. P. 482; Field v. Lelean, 30 L. J. Ex. 168; Baywater v. Richardson, 1 A. & E. 508; Robinson v. United States, 13 Wall. 363. In all cases where evidence of usage is received, the rule must be taken with this qualification, that the evidence be not repugnant to or inconsistent with the contract. Holding v. Pigot, 7 Bing. 465, 474; Clark v. Royston, 13 M. & W. 752; Yeats v. Prim, Holt N. P. 95; Truman v. Loder, 11 A. & E. 589; Blivin v. New England Screw Co., 23 How, 420. If usage compelled a party to pay for plans not used and for superintendence of a building not erected, because such party announced his intention to use the plans, it would be unreasonable and not binding. As to the value of

plaintiff's services in verifying, there was no proof that he was requested to render them. Judgment of U. S. Circ. Ct., N. D. Illinois, affirmed. Tilley v. City of Chicago and County of Cook. Opinion by Woods, J. [Decided Feb. 28, 1881.]

JUDGMENT

ENTRY OF-AFTER DEATH OF PARTY WHERE CAUSE SUBMITTED BEFORE, BY ORDER NUNC PRO TUNC, PROPER. - At the October term, 1668, of an Iowa court of general jurisdiction, a cause on trial between Stutzman, plaintiff, and Mitchell and others, defendants, was submitted by the parties, a jury trial having been waived and it being stipulated that the decree should be rendered "as of the term of said trial and submission." In 1869 Stutzman died. At the October term, 1870, Mitchell not knowing of Stutzman's death, obtained leave to amend his answer upon terms. He did not comply with the terms and his amendment was disallowed, and a decree entered in November, 1872, in favor of Stutzman, as of the October term, 1868. Held, that the decree was proper. The rule established by the general concurrence of the American and English courts is, that where the delay in rendering judgment or decree arises from the act of the court, that is, where the delay has been for its convenience, or has been caused by the multiplicity or press of business, or the intricacy of the questions involved, or for any other cause, not attributable to the laches of the parties, but within the control of the court, the judgment or decree may be entered retrospectively, as of a time when it should or might have been entered up. In such cases, upon the maxim actus curiæ neminem gravabit—which has been well said to be founded in right and good sense, and to afford a safe and certain guide for the administration of justice -it is the duty of the court to see that the parties did not suffer by the delay. Whether a nunc pro tunc order should be made depends upon the circumstances of the particular case. It should be granted or refused, as the justice of the cause may require. These principles control the present case. Stutzman was alive when the cause was argued and submitted for decree. He was entitled at that time, or at the term of submission, to claim its final disposition. A decree was not then entered, because the case, after argument, was taken under advisement. The delay was altogether the act of the court. Its duty was to order a decree nunc pro tunc, so as to avoid entering an erroneous decree. Bank U. S. v. Weiseger, 2 Pet. 481; Clay v. Smith, 3 id. 411; Griswold v. Hill, 1 Paine's C. C. Rep. 484; Gray v. Brignardello, 1 Wall. 636; Campbell v. Mesier, 4 Johns. Ch. 342; Vroom v. Ditmas, 5 Paige, 5:28: Wood v. Keyes, 6 id. 479; Perry v. Wilson, 7 Mass. 393; Currier v. Lowell, 16 Pick. 170; Stickney v. Davis, 17 id. 169; Springfield v. Wooster, 2 Cush. 62; Hess v. Cole, 3 Zabr. 116; Cumlin v. Ware, 1 Str. 426; Astley v. Reynolds, 2 id. 916; Davies v. Davies, 9 Vesey, 461; Belsham v. Percival, 2 Coop. Cases, in time of Cottenham; Green v. Cobden, Scott's Cas. 486; Lawrence v. Hodgson, Y. & J. 370; Freeman v. Tranah, 12 C. B. 406; Collinson v. Lester, 1 Jurist, P. N. S. 835 (20 Beevan's R. C. 355); Blaisdale v. Harris, 52 N. H. 191; 2 Dan. Ch. Pr. 1017-18 (5th Am. ed.); Tidd's Pr. 952, (4th ed., Am. Notes); 1 Barb. Ch. Pr. (2d ed.) 341; Freem. on Judg., § 57. No importance is to be attached to the fact that while the cause was under advisement as to a final decree, Mitchell asked and obtained leave to amend his answer. The leave was granted upon terms, but as the terms were not complied with, the amendment was stricken from the files. The question must therefore be determined as if no amendment of the pleadings had been attempted. Decree of U. S. Circ. Ct., S. D. Ohio, affirmed. Mitchell v. Overman. Opinion by Harlan, J. [Decided Feb. 28, 1881.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

JURISDICTION-OF ADMIRALTY IN SUITS FOR NEGLIGENCE UNDER STATE STATUTES-STATUTE OF ORegon. -(1) Although an action may not lie at common law to recover damages for the death of a person, it will at the civil law, and therefore semble that it will in admiralty. A marine tort is one that occurs on any public, navigable water of the United States, whether caused by a wrongful act or omission, and the proper District Court, as a court of admiralty, has jurisdiction of a suit to recover damages therefor. The jurisdiction of the National courts does not always, nor often, depend upon the origin of the rights of the parties; and where a State statute gives a right, the same may be asserted or enforced in such courts whenever the citizenship of the parties or the nature of the subject will permit. (2) The right given by section 367 of the Oregon Civil Code to an administrator, to recover damages on account of the death of his intestate, from the party by whose act or omission such death was caused, may be enforced in the National courts. When a passenger on the railway ferry-boat, plying across the Wallamet river between East Portland and Portland, was drowned by reason of the negligence of the owner of the boat or its servants, a marine tort was committed, for which a suit may be maintained in the District Court by the administrator of the deceased to recover the damages given therefor by section 367, supra. Cases referred to: Waring v. Clarke, 5 How. 451; Genesee Chief, 12 id. 350; Philadelphia, etc., R. Co. v. Philadelphia, etc., Towboat Co., 23 id. 214; The Commerce, 1 Black, 575; The Belfast, 17 Wall. 637; Insurance Co. v. Dunham, 11 id. 25; Higgins v. Butcher, Yelv. 89; Baker v. Bolton, 1 Campb. 493; Carey v. Berkshire R. Co., 1 Cush. 477; Green v. Hudson, etc., R. Co., 2 Keyes, 294; Fred v. Monroe, 20 Wend. 219; Sullivan v. Union P. R. Co., 3 Dill. 341; Insurance Co. v. Brame, 95 U. S. 756; The Charles Morgan, 4 P. C. L. J. 151; Steamboat Co. v. Chase, 16 Wall. 532; The Sea Gull, Chase's Dec. 156; Cutting v. Seabury, 1 Sprague, 522; The Highland Light, Chase's Dec. 151; Railway Co. v. Whitton, 13 Wall. 270; The Orleans, 11 Pet. 184; The Planter, 7 id. 324; The Lottawana, 21 Wall. 579; Curtis v. Sutter, 15 Cal. 262; Clark v. Smith, 14 Pet. 200; Lorman v. Clark, 2 McLean, 569; Fitch v. Creighton, 24 How. 166; Mackay v. Central R. of N. J., 4 Fed. Rep. 617. United States Circ., Oregon, July, 1880. Holmes v. Oregon & California Railroad Co. Opinion by Deady, D. J.

NATURALIZATION - MARRIAGE OF ALIEN WOMAN TO CITIZEN NATURALIZES HER.- Under section 2 of the act of February 10, 1875 (section 1994, U. S. R. S.), an alien woman of the race or class of persons that are entitled to be naturalized under existing laws, who is married to a citizen of the United States, becomes by that act a citizen of the United States; and such admission to citizenship has the same force and effect as if such woman had been naturalized by the judgment of a competent court. The clause in the statute aforesaid, "might herself be lawfully naturalized," does not require that the woman shall have the qualifications of residence, good character, etc., as in case of admission to citizenship in a judicial proceeding, but it is sufficient if she is of the class or race of persons who may be naturalized under existing laws. Regina v. Manning, 2 C. & K. 886; Burton v. Burton, 1 Keyes, 359; Kelley v. Owen, 7 Wall. 496; 2 Bish. on Mar. Wom., § 505; Kane v. McCarthy, 63 N. C. 299. United States Circ., Oregon, Dec. 15, 1880. Leonard v. Grant. Opinion by Deady, J.

REMOVAL OF CAUSE CONTROVERSY DETERMINING

*Appearing in 5 Federal Reporter.

RIGHT TO, NEED NOT BE PRINCIPAL ONE. — - Under the second clause of section 2 of the act of March 3, 1875, any suit mentioned therein is removable whenever it involves a controversy wholly between citizens of different States, and which can be fully determined as between them, upon the petition of either one or more of the plaintiffs or defendants actually interested in such controversy; and it is immaterial whether such controversy is considered the main or principal one in the suit or not, or what other controversies or parties are incidentally or otherwise involved in it. See Removal Cases, 100 U. S. 468; Coal Co. v. Blatchford, 11 Wall. 174; Gaines v. Fuentes, 92 U. S. 20; Taylor v. Rockefeller, 18 Law Reg. 301; Donahue v. Mariposa Land Co., 5 Saw. 166; Osgood v. Chicago, D. & V. A. Co., 6 Biss. 336. United States Circ., Oregon, Dec. 13, 1880. Bybee v. Hawkett. Opinion by Deady, D. J.

CONSOLIDATED CORPORATIONS. — When a corporation is created by the laws of one State and then becomes consolidated with the corporations of other States, by virtue of the laws of the State of its creation and of such other States, and then changes its name and is sued by such changed name in a court of the State where it was created, by a corporation of the same State, one of the consolidated corporations created by the law of another State cannot go into such State court and have the cause removed into the Federal court. United States Circ., N. D. Illinois, Jan. 5, 1881. Chicago & Western Indiana Railroad Co. v. Lake Shore & Michigan Southern Railway Co. Opinion by Drummond, C. J.

TITLE

-TO LOGS CUT UNDER PERMIT RETAINING TITLE IN GRANTOR BONA FIDE PURCHASER — DAM

AGES. A contract between a citizen of New Jersey and a citizen of Maine, called a conditional license, authorizing the grantee to enter upon the lands of the grantor, in the State of New Hampshire, and cut logs therefrom, contained this clause: "Said grantor reserves and maintains full control and ownership of all logs and lumber which shall be cut under this permit, wherever and however situated, until all matters and things appertaining to or connected with this license shall be settled and adjusted, and the sum or sums due or to become due for stumpage or otherwise shall be fully paid." Held, that a bona fide purchaser of logs cut under this permit could not acquire a better title than the grantee. It was further provided that if any default should be made, the grantor should have full power and authority to take all or any part of said lumber and to sell and dispose of the same at public or private sale, and after deducting reasonable expenses, commissions, and all sums which were then due or might become due for any cause "herein expressed," should pay the balance to the grantees. Held, under this clause, that the grantor was not entitled to recover in trover of such bona fide purchaser the whole value of the logs sold. Authorities cited: Sawyer v. Fisher, 32 Me. 28; Emerson v. Fisk, 6 Greenl. 200; Prentiss v. Garland, 67 Me. 345; Crosby v. Redman, 10 Rep. 306; Whipple v. Gilpatrick, 19 Me. 427; Rawson v. Tuel, 47 id. 506; Bunker v. McKenney, 63 id. 529; Hotchkiss v. Hunt, 49 id. 213; Sargent v. Gile, 8 N. H. 325; Hirschorn v. Canney, 98 Mass. 149; Coggill v. Hartford, etc., R. Co., 3 Gray, 545; Ballard v. Burgett, 40 N. Y 314; Austin v. Dye, 46 id. 500; Sargent v. Metcalf, 5 Gray, 306; Burbank v. Crooker, 7 id. 158; Deshon v. Bigelow, 8 id. 159; Zuchtman v. Roberts, 109 Mass. 53; Benner v. Puffer, 114 id. 376; Salomon v. Hathaway, 126 id. 482; Kenney v. Ingalls, id. 488; Copland v. Bosquet, 4 Wash. C. C. 588; Clark v. Wells, 45 Vt. 4; Duncan v. Stone, id. 118; Dunbar v. Rowles, 28 Ind. 225; Griffin v. Push, 44 Mo. 412; Ridgeway v. Kennedy, 52 id. 24; Bailey v. Harris, 8 Iowa, 331; Robinson v. Chapline, 9 id. 91; Baker v. Hall, 15 id. 277; Sumner v. McFarlan, 15 Kan. 600; Rose v. Story, 1 Penn. St.

190; Becker v. Smith, 59 id. 469; Enlow v. Kleim, 79 id. 488; Angier v. Taunton Manuf. Co., 1 Gray, 621; Brown v. Haynes, 52 Me. 578; Duncan v. Stone, 45 Vt. 118. U. S. Circ. Ct., Massachusetts, Dec. 21, 1880. Homans v. Newton et al. Opinion by Lowell, C. J.

MICHIGAN SUPREME COURT ABSTRACT. JANUARY, 1881.

CORPORATION -THAT MORTGAGE WAS INVALID AS TO, MAY NOT BE SET UP BY PURCHASER UNDER EXECUTION AGAINST.-A notice of meeting of stockholders of a corporation was stated among other things to be to authorize the issue of bonds to the extent of $100,000 to be secured by mortgage on the corporate property. The meeting actually authorized the issue of $150,000 bonds, which were issued. Held, that a purchaser at an execution sale of the corporation's equity of redemption could not object to the validity of the bonds and mortgage even under a statute providing that no mortgage of the real estate of any corporation should be valid unless authorized at a meeting, notice of the object of which had been given to the stockholders. The purpose of the statute was to protect stockholders only. A statute making usurious mortgages utterly void was in Massachusetts construed not to authorize strangers to the consideration to question such a mortgage. Green v. Keep, 13 Mass. 515. In Rex v. Hipswell, 8 B. & C. 466, it was intimated that the word void in a statute might be construed voidable where the provision is introduced for the benefit of parties only, but not where it is introduced for public purposes and to protect those who are incapable of protecting themselves, and though this distinction has been questioned (Rex v. St. Gregory, 2 Ad. & El. 99), much good reason lies at the foundation of it. If it is apparent that an act is prohibited and declared void on grounds of general policy, we must suppose the legislative intent to be that it shall be void to all intents; while if the manifest intent is to give protection to determinate individuals who are sui juris, the purpose is sufficiently accomplished if they are given the liberty of avoiding it. A statute would strike blindly if the letter alone were to be regarded, not the spirit. A statute declared that certain indentures not made as by the statute provided should "be clearly void in law to all intents and purposes;" and it was nevertheless held that if acted upon, the apprentice gained a settlement thereby. St. Nicholas v. St. Peter, Strange, 1066. And in Ohio a purchase at a judicial sale by one who acted as appraiser of the property, though the statute declared it should be "considered fraudulent and void,” was held to be voidable only on a proceeding by a party in interest directly for the purpose of avoiding it. Terrell v. Auchauer, 14 Ohio (N. S.), 80. This subject is considered at length and many authorities examined in State v. Richmond, 26 N. H. 132. Beecher v. Marquette & Pacific Rolling Mill Co. Opinion by Cooley, J.

EXECUTION AGAINST INDIVIDUAL PARTNER NOT LEVIABLE ON PARTNERSHIP PROPERTY REPLEVIN.

A sheriff, under an execution against one Van Etten, levied upon and removed specific articles constituting the stock of a livery stable in the possession of one Dubois, on the ground that Van Etten had au interest as partner with Dubois therein. Held, that the seizure was wrongful even if Van Etten was partner in the ownership of the property, and Dubois was entitled to maintain replevin therefor against the sheriff. Though Van Etten's interest as partner was subject to his debts, it would not be an interest in the specific articles belonging to the firm, but only an interest in the surplus that should remain after the debts of the firm were paid. Hawkey v. Garrett, 1 Ves. 236; Tay