was paid at the time. The defendant afterward, the contract being restated between the parties at the time, gave plaintiff a check upon a bank for a part of the purchase price. Held, that the check accepted and paid was a sufficient payment to render the contract valid under the statute of frauds. The delivery, presentment and payment of the check should be taken as one transaction. The statute does not mean rigorously eo instante. It does not contemplate that the contract and the payment shall be at the same time in the sense that they constitute parts of one and the same continuous transaction. The check was a payment "at the time," and the contract valid. Archer v. Zeh, 5 Hill, 200; Hawley v. Keeler, 53 N. Y. 114; Bissell v. Balcom, 39 id. 275. (2) There was no necessity on the part of plaintiff to make a tender of the hops before action. As defendant was to name the place of delivery, a notification that the hops were ready and an offer to deliver were enough. Story on Sales, § 314. (3) The purchase-price of the hops less the payments received was a proper measure of damages. Plaintiff was not bound to sell the hops at auction after due notice on account of the vendee, but was at liberty to abandon the property, treat it as the vendee's and sue the latter for the price. Pollen v. LeRoy, 30 N. Y. 556. (4) Defendant, as a witness for himself, contradicted plaintiff's evidence as to whether there was or not a restatement of the contract at the time of the payment. Held, that evidence that the price of hops had fallen was not immaterial as it showed defendant's interest, and plaintiff would not be precluded from showing such fact on account of calling defendant as a witness to prove the payment by the check. See Thompson v. Blanchard, 4 N. Y. 311; Lawrence v. Baker, 5 Wend. 305; McArthur v. Hurlburt, 21 id. 190. Judgment affirmed. Hunter v. Wetsell. Opinion by Finch, J. All concur except Danforth, J., dissenting and Rapallo, J., absent. Folger, J., concurs in result.

[Decided March 22, 1881.]

UNITED STATES SUPREME COURT AB.
STRACT.
MARCH, 1881.

* ** *

APPEAL-IN ADMIRALTY- DECISION OF FACTS IN DISTRICT AND CIRCUIT COURTS PREVAILS. - In an appeal in admiralty, where both the Circuit and District Court have upon the same evidence reached the same conclusion, this court will not, except in a clear case, reverse. In The Marcellus, 1 Black, 417, it is said: "We have had occasion to remark more than once that when both courts below have concurred in the decision of questions of fact, parties ought not to expect this court to reverse such a decree by raising a doubt founded on the number or credibility of witnesses. The appellant in such a case has all presumptions against him, and the burden is cast on him to prove affirmatively some mistake made by the judge below in the law or in the evidence. It will not do to show that on one theory, supported by some witnesses, a different decree might have been rendered, provided there be sufficient evidence to be found on the record to establish the one that was rendered." This rule, thus stated from the preceding cases, was uniformly followed afterward until the act of 1875 (18 Stat. 315, ch. 77) relieved us from the labor of weighing evidence. Newell v. Norton and Ship, 3 Wall. 267; The Hypodame, 6 id. 223; The S. B. Wheeler, 20 id. 386; The Lady Pike, 21 id. 9. It is true that notwithstanding this rule we were required to re-examine the facts as well as the law of the case (The Baltimore, 8 Wall. 382), but we did not reverse except in a clear case. Such was the well-established rule of decision. Petition for rehearing dismissed. Steamboat Sabin v. Steamboat Richmond. Opinion by Waite, C. J.

BANKRUPTCY FIDUCIARY DEBT NOT DISCHARGED BY COMPOSITION PROCEEDINGS. - The provisions of the bankrupt law, passed in 1875, that a composition 'shall be binding on all the creditors whose names and addresses and the amounts of the debts due to them are shown in the statement of the debtor produced at the meeting at which the resolution shall have been passed," will not relieve a bankrupt who has obtained a discharge under a composition proceeding for liability, from a fiduciary debt. The provision that no debt created by a fraud shall be discharged by any proceedings in bankruptcy is a very positive and clear statement of a principle applicable as well to such proceedings authorized after as before this special one was enacted. The resolution of composition is a proceeding in bankruptcy. There is no injustice nor any difficulty in restraining the language of the composition section, as regards its binding force, to persons whose debts are capable of being discharged by the bankrupt law. If a certain class of debts cannot be discharged by proceedings in bankruptcy, then they cannot be discharged by this proceeding, for it is a proceeding in bankruptcy. If all other debts may be discharged by a composition in bankruptcy, then the debtor and the other creditors get its benefit and are bound by it, while the one whose debt may not be thus discharged does not. He neither takes its benefit nor is he bound by it. Judgment of Superior Court of Massachusetts affirmed. Wilmot v. Mudge. Opinion by Miller, J.

PRACTICE -IN ADMIRALTY - NEW RULE IN LIMITED LIABILITY PROCEEDINGS. In admiralty cases, where proceedings are necessary upon appeal to secure a limited liability, the court announces a general rule extending to the Circuit Courts on appeal the regulations which have heretofore been adopted for the District Courts in cases of proceeding to obtain the benefit of a limited liability under the act. It is undoubtedly the general rule that an appeal in admiralty, like all appeals derived from the practice of the civil law, carries the whole cause to the appellate court in which it is to be tried anew upon the same and such additional proofs as the parties may propound. While this is the general rule there is also no doubt that the Legislature may authorize the appellate court, after hearing the cause and determining the questions raised thereon, to remand it to the court a quo for further proceedings. The late practice under the bankrupt law exhibited an instance of this mode of proceeding. The entire history of appeals in admiralty as well as in equity in this court is another instance of the same practice. But on appeals in admiralty from the District to the Circuit Court, the latter has always retained the cause for trial and final disposition without remanding to the District Court. But in the late revision of the statutes of the United States (Revised Stat., § 636) it is declared as follows: "A Circuit Court may affirm, modify or reverse any judgment, decree or order of a District Court, brought before it for review, or may direct such judgment, decree or order to be rendered, or such further proceedings to be had by the District Court, as the justice of the case may require." But whilst this seems to be the law, namely, that the Circuit Court, after hearing a cause on appeal, has power to remand with directions; it may not be advisable to resort to it in ordinary cases where the Circuit Court can as well dispose of the whole case. The Supreme Court therefore make the rule above set forth. Steamship Benefactor v. Mount. Opinion by Bradley, J.

The

steam engine and boiler, leased them to one Lampson, with a privilege of purchasing. Lampson placed them in a mill belonging to defendants, of which Lampson had possession under a contract of purchase. engine and boiler were affixed to the mill by bolts, timbers and masonry, so as to become permanently attached, and could not be removed without destroying masonry and injuring some of the timbers of the mill. Lampson thereafter abandoned the mill and defendants took possession. Held, that plaintiff was, upon default of Lampson, entitled to replevy the engine and boiler from defendants. It is well settled, as said in Tifft v. Horton, 53 N. Y. 380: "That chattels may be annexed to the real estate and still retain their character as personal property. See Voorhees v. McGinnis, 48 N. Y. 278, and cases cited. Of the various circumstances which may determine whether in any case this character is or is not retained, the intention with which they are annexed is one, and if the intention is that they shall not by annexation become a part of the freehold, as a general rule they will not. The limitation to this is where the subject or mode of annexation is such as that the attributes of personal property cannot be predicated of the thing in controversy (Ford v. Cobb, 20 N. Y. 344), as when the property could not be removed without practically destroying it, or where it or part of it, is essential to the support of that to which it is attached." Id. In the present case there can be no doubt that as between the plaintiff and Lampson the engine and boiler remained personal property, notwithstanding the fact that it was by him attached to the mill, for, as said in Ford v. Cobb, 20 N. Y. 352: " They were not so absorbed or merged in the realty that their identity as personal chattels was lost; and unless such an effect has been produced, there is no reason in law or justice for refusing to give effect to the agreement by which they were to retain their original character." See, also, Eaves v. Estes, 10 Kan. 314; Pierce v. Emery, 32 N. H. 484; Haven v. Emery, 33 id. 66; Curtis v. Riddle, 7 Allen, 185. Under the circumstances the defendants must be held to stand in the shoes of Lampson, and the property in question treated as personalty in their hands as in his. Smith v. Benson, 1 Hill, 176; Tifft v. Horton, 53 N. Y. 377. Ilendy v. Dickerhoff. Opinion by Ross, J.

NEGLIGENCE-CHILD ASLEEP ON RAILROAD TRACK

COMPARATIVE NEGLIGENCE. - A child six years of age, living with its parents, near defendants' railway track, when attempting to cross the same near the highway, became dizzy and fell down upon the track, where he remained dizzy or asleep until he was run over and injured by a train of defendants' cars, which were negligently run. The child could have been seen from the train for 350 yards. The mother of the child was aware that he had on previous occasions fallen on the ground dizzy, and then asleep. Held, that there was not such contributory negligence as would preclude a recovery against defendant for the injury. Needham v. San Francisco, etc., R. Co., 37 Cal. 409; Kline v. Cent. Pac. R. Co., id. 400. In the former case it is said: "No more in law than in morals can one wrong be justified or excused by another. A wrong-doer is not an outlaw, against whom every man may lift his hand. Neither his life, limbs nor property are held at the mercy of his adversary. On the contrary, the latter is bound to conduct himself with reasonable care and prudence, notwithstanding the fault of the former; and if by so doing he can avoid injuring the person or property of the former, he is liable, if he does not, if by reason thereof injury ensues." Referring to the rule adopted in New York, the court proceeds: "The error of the New York courts lies in the fact that they ignore all distinction between cases where the negligence of the plaintiff is proximate, and where it is remote, and in not limiting the rule, which they an

nounced, to the former." In Isbell v. New York, etc., R. Co., 27 Conu. 404, it is said: "A remote fault in one party does not, of course, dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity demands this, and it is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accidents are to a greater or less extent incident to human affairs. Meeks v. Southern Pacific Railroad Co. Opinion by Ross, J.

MASSACHUSETTS

SUPREME JUDICIAL COURT ABSTRACT.

JANUARY, 1881.

CONSTITUTIONAL LAW-CRIMINAL NOT IN JEOPARDY IN TRIAL STOPPED BY REASON OF INCOMPETENCY OF JUROR. After a trial of several defendants for assault and battery had commenced, it was discovered that one of the jurors was surety on the bail bond of one defendant and the trial was thereupon stopped by the court, without defendant's consent. Held, that defendants had not been in jeopardy so as to preclude a second trial. When a jury has been sworn to try the issue and the trial has been commenced, the jeopardy to which the defendant is exposed is held to have begun, and the prosecuting officer will not, pending the trial, when a verdict is demanded by the prisoner, be permitted to enter a nolle prosequi for the purpose of subjecting him to another trial for the same cause. Commonwealth v. Scott, 121 Mass. 33; Commonwealth v. Tuck, 20 Pick. 356; Commonwealth v. Kimball, 7 Gray, 330. The government chooses its own time and cannot for its own convenience discontinue the proceedings and still hold the prisoner for trial. The principle is embodied in the common-law maxim that no man is to be brought into jeopardy more than once for the same offense. It is a rule which has been applied with manifest justice by the courts in this country for the protection of persons charged in prosecutions for either felonies or misdemeanors, and it has been said that its true meaning is that no man shall be twice tried for the same offense. People v. Goodwin, 18 Johns. 187, 201; United States v. Porez, 9 Wheat. 579. From the necessity of the case, however, there must be many exceptions to the rule. See King v. Edwards, 4 Taunt. 309; United States v. Haskell, Wash. C. C. 402; Nugent v. State, 4 Stew. & Port. 72; Regina v. Newton, 13 Q. B. 716; Commonwealth v. Bowden, 9 Mass. 494; Commonwealth v. Purchase, 2 Pick. 521; Commonwealth v. Scholey, 13 Allen, 559. In short, the rule is held not to apply whenever the case cannot be proceeded with by reason of some physical or moral necessity arising from no fault or neglect of the government. When such is the case, the trial may be stopped, and the defendant will not be protected from being afterward tried upon the same indictment. Commonwealth of Massachusetts v. McCormick. Opinion by Colt, J.

STATUTORY CONSTRUCTION-LIQUOR LICENSE-DRUGGIST SELLING LIQUOR COMPOUNDED WITH MEDICINE NEED NOT TAKE.- A statute forbidding the sale or keeping for sale without authority, of spirituous or intoxicating liquors, held, not to apply to a druggist who kept the liquors only for the purpose of mixing them with other ingredients, according to prescriptions of physicians, to be used as medicine, and also for the purpose of manufacturing such compounds as are commouly used by druggists, to be sold for the purpose of being used as medicines for remedies for sickness and disease. In order to determine whether the statute applies to a sale, the true test is to inquire whether the article sold is in reality an intoxicating liquor. If it

courts: The suit in the State court must be by a plaintiff who is a citizen of the State in which the suit is brought; it must be against a citizen of the same State and of another State as defendants; the amount in dispute must exceed $500 besides costs; the removal must be applied for before the trial or final hearing of the cause in the State court. These elements concurring, the non-resident defendant-not the resident defendaut may have the cause removed, not wholly, but only so far as relates to himself, provided also it is a suit brought for the purpose of restraining or en

SURETYSHIP-CONDITIONAL AGREEMENT TO EXTEND TIME, UNPERFORMED, WILL NOT DISCHARGE SURETY.— A conditional agreement by a creditor with a principal debtor to extend the time of payment of a note, made without the knowledge of the sureties, will not discharge them, the condition not being complied with. The indorser or the surety upon a note is discharged by agreement made without his consent between the holder and the maker to give time to the maker. But to have this effect it must be a valid agreement founded upon a good consideration, such as can be enforced either at law or in equity. Veazie v. Call, 3 Allen, 14; Potter v. Green, 6 id. 442; Jennings v. Chase, 10 id. 526. Wilson v. Powers. Opinion by Morton, J.

GEORGIA SUPREME COURT ABSTRACT. MARCH, 1881.

CARRIER- -LIMITATION OF LIABILITY BY SPECIAL CONTRACT-CONSIDERATION-PUBLIC POLICY.—A railroad company which transports live stock as freight is a common carrier as to such freight, aad is liable as in other cases except for damages resulting from the act of God, the public enemy, or of the animals themselves, unless the carrier has further protected itself by contract. A common carrier of such freight may limit this liability in respect thereto by special contract. But the liability cannot be limited by a mere notice in the bill of lading; though if a special contract be incorporated in the bill of lading, and signed by both parties, it is sufficient. A contract by a shipper of live stock that in consideration of a free pass for himself over the road, he would assume all risk of loss or damage to the stock, except such as might be caused by collision or running off the track, is neither unreasonable nor contrary to public policy. Spears v. Georgia Railroad Co. Opinion by Crawford, J.

GUARDIAN-WHEN NOT LIABLE FOR LOSS BY UNFORTUNATE INVESTMENT.-H. died, leaving a policy of insurance on his life; his widow being unable to give the bond necessary for administration, desired the assistance of the banking company, filed a petition and obtained an order that the bank should collect the insurance and hold it as trustee for herself and children; this was done, and $4,000 held on deposit, drawing seven per cent interest; subsequently on the joint petition of herself and the bank and under order of the chancellor, after appointing her as guardian ad litem for the minor children, to better the investment, the money was invested in the capital stock of the bank. Held, that such purchase was legal, though subsequently the bank failed, it being solvent at that time. It is immaterial whether an officer of the bank advised her of its financial condition at the time or not, there being no fraud. Haddock v. Planters' Bank of Fort Valley. Opinion by Crawford, J.

determination of the controversy so far as concerns him without the presence of the other defendants as parties to the cause. (2) Under the "Local Prejudice " act of 1867, the following conditions are necessary to the exercise of the right of removal: that the controversy shall be between a citizen of the State in which the suit is brought and a citizen of another State; that the matter in dispute shall exceed the sum of $500, exclusive of costs; that the party citizen of such other State shall file the required affidavit stating the "local prejudice," etc.; that the requisite security for appearing in the Federal court shall be given. (3) If the right of removal has once become perfect, it cannot be taken away by any subsequent amendment by the opposite party in State or Federal court. Jones v. Foreman. Opinion by Speer, J.

SALE OF PERSONAL PROPERTY-DELIVERY.— - Where a contract is made for the sale of cotton then stored in a warehouse, within the knowledge of both parties, who agree upon a price, and the vendor delivers the warehouse receipts to the purchaser and takes a check for the purchase-price, delivery may be inferred without any positive agreement. In such a case, if the vendor delivers the check to a bank, has the amount placed to his credit in a pass-book by the officers of the bank, and takes charge of the pass-book as his own, the sale becomes complete, and the relation of debtor and creditor exists between the vendor and the bank. Rawles v. Saulsbury. Opinion by Stewart, J.

MICHIGAN SUPREME COURT ABSTRACT.

JANUARY, 1881.

CORPORATE STOCK SHARES ASSIGNED NOT LIABLE ON PROCESS AGAINST ASSIGNOR. — Shares of corporate stock are not seizable upon attachment or execution against one who has actually assigned them, although such assignment was made to defraud creditors. See Greenvault v. Farmers & Mech. Bk., 2 Doug. 498; Buckley v. Lowrey, 2 Mich. 419. Such shares are not leviable at common law, and positive provisions are requisite to enable a court of common law to apply its power to them. They are intangible entities and incapable of caption by the gross methods of that system. In order that they may be safely proceeded against without going into a court of equity it is indispensable that the Legislature provide specifically therefor and prescribe in detail or at least in substance all the means necessary for the object. Blair v. Compton, 33 Mich. 414; Denton v. Livingston, 9 Johns. 96; Howe v. Starkweather, 17 Mass. 240; Williamson v. Smoot, 7 Martin (La.) 131; James v. Pont. & Grov, P. Co., 8 Mich. 91. Van Norman v. Jackson, Circuit Judge. Opinion by Graves, J.

true, if not maliciously made. Foster v. Scripps, 39 Mich. 376; Dickerson v. Hilliard, L. R., 9 Exch. 79; Harrison v. Bush, 5 El. & B. 344. Weiman v. Mabie. Opinion by Campbell, J.

LOST PROPERTY -REWARD OFFERED- FINDER HAS ON-REFUSAL TO DELIVER TO CLAIMANT NOT

LIEN

KNOWN TO BE OWNER NOT CONVERSION. - (1) The finder of a lost article for which a reward is offered by the owner has a lien on the article for such reward. According to the common law the finder of goods lost on land becomes proprietor in case the true owner does not appear. And meanwhile his right as finder is a perfect right against all others. But if the true owner does appear whatever right the finder may have against him for recompense for the care and expense in the keeping and preservation of the property, his status as finder only does not give him any lieu on the property. Yet if such owner offer a reward to him who will restore the property, a lien thereon is thereby created to the extent of the reward so offered. This doctrine in favor of a lien in such circumstances is so laid down in Preston v. Neale, 12 Gray, 222, and authorities are cited for it. Among them is the leading case of Wentworth v. Day, 3 Metc. 352, which is approved and followed in Cummings v. Gann, 52 Penn. St. 484, and adopted as correct by Story (Story on Bailments, SS 121 a, 621 a), Parsons (3 Pars. on Cont. 239 [6th ed.]) and Edwards (Edw. on Bailm., §§ 20, 68 [2d ed.]). (2) A refusal by the finder to deliver up property found on the ground that he does not know the claimant is the owner is not conversion. In Isaac v. Clark, 2 Bulst. 306, Lord Coke states the law in this wise: When a man doth find goods, it hath been said and so commonly held, that if he do dispossess himself of them, by this he shall be discharged; but this is not so, as appears by 12 Edw. IV, 13, for he which finds goods is bound to answer him for them who hath the property; and if he deliver them over to any one, unless it be unto the right owner, he shall be charged for them; for at the first it is in his election whether he will take them or not into his custody; but when he hath them, one only hath then right unto them, and therefore he ought to keep them safely. A man therefore which finds goods, if he be wise, will then search out the right owner of them, and so deliver them unto him. If the owner comes unto him and demands them and he answers that it is not known unto him whether he be the true owner of the goods or not, and for this cause he refuseth to deliver them, this refusal is no conversion if he do keep them for him. Wood v. Pier

CHAMPERTY-WHEN NOT DEFENSE TO ACTION.-That a champertous contract exists with reference to the prosecution of an action will not defeat it, plaintiff having a good cause of action. In Hilton v. Woods, L. R., 4 Eq. Cas. 432, Malvin, V. C., said: "I have carefully examined all the authorities which were referred to in support of this argument, and they clearly establish that when the right of the plaintiff, in respect of which he sues, is derived under a title founded in champerty or maintenance, his suit will on that account necessarily fail. But no authority was cited, nor have I met with any, which goes the length of deciding that when a plaintiff has an original and good title to property he becomes disqualified to sue for it by having entered into an improper bargain with his solicitor as to the mode of remunerating him for his professional services in the suit or otherwise." See, also, Elborough v. Ayers, L. R., 10 Eq. Cas. 367; Whitney v. Kirtland, 27 N. J. Eq. 333; Robinson v. Beale, 26 Ga. 17. Small v. Chicago, Rock Island & Pacific Railroad Co. Opinion by Rothrock, J.

SURETYSHIP-PREVIOUS DEFAULT OF PRINCIPAL ON OFFICIAL BOND UNDISCLOSED BY OBLIGEE. - Where one becomes surety upon the bond of an employee given to an employer for the faithful performance of his duties as employee, the fact that the employer does not inform the surety that the employee has previously been in default in the performance of his duties in the same employment, no inquiry being made, will not discharge such surety. See Etua Life Ins. Co. v. Mabett, 18 Wis. 667. In Roper v. Trustees Sangamon Lodge, 91 Ill. 518, it is said: Where a party becomes surety upon the bond of a treasurer of a secret society for the faithful application of moneys in his hands, payable to the society, from the fact that the officers and members of the society knew of his previous misappropriation of the funds intrusted to him during the prior year, and with such knowledge re-elected him, and failed to communicate such fact to his sureties, no inquiry being made of them by the sureties, and they doing no act to put the sureties off their guard or prevent them from ascertaining the facts, no fraud can be imputed to the society which can be set up in avoidance of the sureties' liability on the bond." See, also, Ham v. Greve, 34 Ind. 18; Atlantic & Pacific Telegraph Co. v. Barnes, 64 N. Y. 385; Remington Sewing Machine Co. v. Kezertee, 5 N. W. Rep. 809, 2 Wis. 527; Atlas Bank v. Brownell, 11 Am. Rep. 231, 9 R. I. 168. A surety is not discharged from liability from the mere fact that the principal is continued in the master's employment after he has failed to make payments promptly, of which fact the surety has not been advised. See P., Ft. W. & C. Ry. Co. v. Schaffer, 59 Penn. St. 350; Albany Dutch Church v. Vedder, 14 Wend. 166; Bush v. Critchfield, 4 Ohio, 736; Jones v. United States, 18 Wall. 662; Board of Sup'rs v. Otis, 62 N. Y. 88; McKenzie v. Ward, 58 id. 541; A. & P Tel. Co. v. Barnes, 64 id. 385. Home Ins. Co. of New York v. Holway. Opinion by Day, J.

WISCONSIN SUPREME COURT ABSTRACT. MARCH 24, 1881.

BOND — RECITALS IN, LIMIT LIABILITY.—An indemnifying bond given to a sheriff recited that "Whereas Casper M. Sanger, sheriff, is about to seize and levy on certain personal property, about which there is a reasonable doubt as to the ownership, or its liability to be taken on the said writ of attachment." The condition of the bond was to indemnify and save harmless Sanger, and those acting under his authority as such sheriff, "against all suits, actions, judgments, executions, troubles, costs, charges and expenses arising or which may be had or made against him, or any of them, or which may be suffered or sustained by him, them, or any of them, by reason or in consequence of such levy and seizure, or of the subsequent proceedings thereon." Held, that the recital in the bond limited and modified its condition and that the sureties could not be held liable for the attorney's fee, judgment and costs, in a suit for rent of the store in which the attached goods were kept by the sheriff after seizure, there being no question of the ownership of the property or its liability to be taken by attachment. In Bell v. Brown, 1 How. (U. S.) 169, it is said: "The general rule is well settled in controversies arising on the construction of bonds, with conditions for the performance of duties, preceded by recitals, that when the undertaking is general it shall be restrained, and its obligatory force limited within the recitals." Arlington v. Merrick, 2 Saund. (Part II) 403; Liverpool Water Works Co. v. Harpley, 6 East, 507; Wardens v. Bastock, 2 Bos. & Pull. 175; Leadly v. Evans, 2 Bing. 32; Pepin v. Cooper, 2 Barn. & Ad. 431. Sanger v. Baumberger. Opinion by Orton, J.