construed together, and that the latter restricted and qualified the first. Opinion by THATCHER, C. J.— Dunn v. Dunn.

BAILMENT-SURETY-SALE-MISTAKE. -1. Where one delivers chattels to another as indemnity for suretyship, the law regards such delivery as a pledge merely. Nor does it alter the case in a court of equity that the property is transferred by an absolute bill of sale, nor even if the contract stipulates that the pledge shall be irredeemable. 2. A pledgee who was surety on a promissory note transferred the property to the payee for the purpose of discharging the debt: Held, that the transfer did not change the status of the property, and that the pledgor had the right to redeem even after maturity. 3. A pledgee can sell only, and for the purpose of applying the proceeds to the extinguishment of the debt; such sale must be at public auction, after due notice to the pledgor or owner. 4. Where a party acts under the misapprehension that he has no title to property, a court of equity will relieve him from the legal effect of instruments which surrender such unsuspected title. Opinion by STONE, J.-Morgan v. Dod.

NEGLIGENCE-FELLOW-SERVANTS.-1. It is a wellsettled doctrine that the master is not liable for injuries sustained by one servant through the negligence of a fellow-servant; but risks arising from the negligence of the master are not included among those which the servant is presumed to assume. 2. The master is liable for his own negligence in the selection of servants, machinery and appliances. But defects must be known to the master, or be such as should have been known to a prudent man. 3. Where it is the province of a certain employee of a railroad company to supervise repairs of defects in a railway, his negligence in respect to such defects is the negligence of the company, and notice to him of such defects as are within his province to repair, is notice to the company. 4. The general rule is that if the employee knows of the defects and continues in the service, he is deemed to have assumed the risks, and the maxim is, volenti non fit injuria. But if a person of ordinary prudence would not have believed the defects dangerous, he may disregard them without losing his right to complain, if he suffers from the defect while pursuing the ordinary course. 5. Notice to the master by the employee of defects in associates or material, does not necessarily fix the master's liability for injury to the employee. It is incumbent on the latter to show that there was no want of due and reasonable care upon his part; he is not exempt from the operation of the rule that one can not recover for an injury which is the proximate result of his own failure to exercise ordinary care. 6. A railroad company is not prima facie liable to any of its servants for injuries resulting to them because of defects in the rolling-stock or road-bed. The company is bound to that ordinary care which must be measured by the dangers of the service and proportioned to it, but it does not warrant or insure against defects. Opinion by ELBERT, J.-Colorado Central R. R. Co. v. Ogden.

DEDICATION TO PUBLIC USE.-1. A dedication of land to public use may be made either according to the common law or in pursuance of statute. 2. A statutory dedication operates by way of grant; a common law dedication by way of estoppel in pais, rather than by way of grant. 3. Where a vendee purchases a lot marked on a plat, duly recorded, of city property, the plat being referred to for a description of the premises conveyed, by a reasonable construction of the vendor's intention, the vendee is entitled to all the appurtenant advantages which the plat proclaims to exist, so far as the land embraced is owned by the grantor; the plat is a material part of the deed. 4. Where no express res

ervation is made in an absolute deed, the most valuable estate which the vendor can sell, necessarily passes. Where platted streets are appurtenant to the land sold, it will be held that the proprietor intended the streets as public, and not as private ways. 5. Where a proprietor of urban property recognizes a plat in making sale of lots, he will be estopped to deny a dedication of the streets designated upon the plat embraced within his property to public use. And the fact that the city acquiesces in the use, by the dedicator, of the streets for a limited period, and receives taxes thereon, will not estop the city from asserting the dedication. A dedication may be made in præsenti to be accepted by the public in futuro. 6. Where a statutory plat has been filed, the fee of the streets rests in the city. Where the dedication is not statutory, the fee remains in the owner, and there is nothing for which the owner is to be compensated upon the mere opening of the street to public use. Opinion by THATCHER, C. J.-City or

Denver v. Clements.

Upon a petition for re-hearing in the above case, which was denied, the opinion was delivered by ELBERT, J.: 1. The doctrine of dedication has its origin in public convenience. Public streets are essential for the accommodation of town or city communities, and the proprietor must be presumed to intend what is essential to its enjoyment. The term street, used on a map of a city or town, imports a public way for the free passage of its trade and commerce. 2. An actual intent to reserve any portion of the lands platted into streets, otherwise than by express reservation on the plat, should be made manifest with as equal certainty and publicity as the plat. Actual intent can not be permitted to avail against an intent shown by unequivocal acts upon which the public have a right to rely. 3. Where the fee of the street remains in the dedicator, and his use and occupancy of the ground covered by the easement is acquiesced in by the city, a tax thereon will be justified and rendered equitable.-Id.

To the Editor of the Central Law Journal:

In the course of my professional investigations not long since, I took up Vol. 1, No. 2, of the Southern Law Review, in which I found an article from the pen of Mr. J. W. Daniel, the author of Daniel on Negotiable Instruments. At page 234, sec. 20, appeared just what I wanted, but what, to my mind, has never been considered as sound law. Mr. Daniel cites a large number of cases which, fortunately, were accessible, and to which recourse was had. The writer says; "As to the extent of the recovery by the bona fide holder for value, if the defense be want or failure of consideration between the original or intermediate parties, he may still recover the whole amount of the bill or note, although he purchased it at a considerable discount-greater than legal interest; but if the defense be that the bill was uttered in fraud, or was lost or stolen, then even such a holder can only recover what he advanced for it." The italics are my own, and the statements made therein are, to my mind, not only unsound, but decidedly dangerous. To the country practitioner whose library is limited, are they emieminently so.

What gives value to a legal article is the soundness of its matter, supported by the authorities cited. Mr. Daniel cites a large number of decisions, both from our own and the mother country, not one of which supports the doctrine of his text. Is it not a new docerine that if no consideration move, a bona fide holder

for value may yet recover; but if the defense be fraud he may recover to the extent of his interest-i. e., what he paid for it, and no more? It is a well established principle of law that a bona fide holder for value, and without notice of existing equities, may recover, whether the defense be fraud, want or failure of consideration. There is a class of cases where there can be no recovery at all-for example, forgery, or such fraud as renders the note absolutely void at its inception, but in such cases the recovery is defeated entirely. There is no pro tanto recovery. E converse, where the fraud does not make the note void but only voidable, a bona fide holder may recover the whole amount if indorsed by him before maturity and without notice.

The cases cited by Mr. Daniel do not, either directly or by implication, sustain him. He says if the defense be that the bill was uttered in fraud, then even a bona fide holder can only recover what he advanced for it. He cites Chicopee Bank v. Chapin, 8 Met. 40. That was assumpsit by the indorsees against the indorser. The indorsees held it as collateral security for a preexisting debt. The indorser pleaded that he was only an accommodation indorser, that it was intrusted to the promisor for a special purpose, and that in violation of his trust he negotiated it to plaintiff. Under these circumstances the court held that the recovery must be limited to the amount for which plaintiff held it as collateral security. Nor would plaintiff upon any principle of justice be entitled to more. The holder of a collateral is only the owner to the extent of his demand secured thereby. The surplus belongs to his debtor and to him must he account for it. Were it otherwise, the indorsor would be enabled to collect the surplus, indirectly, that he could not by a direct proceeding, a thing that the law will not permit.

Bond v. Fitzpatrick, 4 Gray, 87, is another of Mr. Daniel's cases. That was an action upon a promissory note indorsed in blank. It was past due when so indorsed. No such question as that suggested in the text arose. Dewey, J., who delivered the opinion of the court, used this language: "But if, from other and competent sources, it appears that the interest of the plaintiff was a limited one, and that a less sum than the amount of the note in suit will fully discharge all his just claims thereon, and that in fact he held a portion of the note in trust for Doherty, it would be competent for the jury to reduce the damages to the amount of the plaintiff's interest, and exclude the balance of the note, or there existed an equitable set-off, as against him, as to the balance." Again, in Williams v. Smith, 2 Hill, 301. In this case the plaintiff held the note as collateral security transferred to him before maturity, for a valuable consideration. The court decides that he is a bona fide holder, but can only recover what is due him on the paper he had indorsed, and for the security of which the collateral was held.

Valette v. Mason, 1 Smith, (Ind.) 89, was also a case where the holder only had a contingent interest, he having taken the same as collateral security. He was allowed to recover to the extent of his interest, and no more. The case falls far short of sustaining Mr, Daniels' text. It decides what every country lawyer knows, that the holder of a collateral, when he brings suit upon it, can only recover to the extent of his interest, if the defendant urges existing equities; and if not, then he may recover the whole, and the surplus will enure to the benefit of the payee. Allaire v. Hartshorne, 1 Zab. 665, is another case where the authority cited in no way supports the author's theory. The note was deposited with the plaintiff as collateral security for a pre-existing debt. The plaintiff was the owner of the note only to the extent of the debt secured thereby. Like every other case resting upon similar facts, the interest of the pledgee was only to

the extent of the indebtedness due from his pledgor. The very gravamen of his action was his right to recover a sum sufficient to make him whole, he being liable to pay the debt of his indorser. The payee could recover nothing, for the reason that as between him and the maker the note was invalid. The plaintiff could, and did recover, because he was a bona fide holder for value, and without notice of existing equi

ties.

Holeman v. Hobson, 8 Humph. 127, decides that fraud or want of consideration is no defense for either the maker or accommodation indorser, as against a bona fide holder for value to whose possession it came before maturity, in due course of trade, without notice. The same case decides that in the case of a gift of a negotiable note, and the donee afterwards transfers it by indorsement for less than its value, or a wholly inadequate consideration, but in good faith, his indorsee can recover from a prior party only what the indorsee paid for it. It is a general principle of law that a gift of negotiable paper, that not being the use for which the law intended, is not such a negotiation as will protect the holder against existing equities. The same principle is true of an assignment. The assignee is not protected against existing equities.

The English cases cited by the writer of the article do not bear out the statements in the text. He cites Robins v. Maidstone, 4 Ad. & El. 811, to sustain his text. That was a case where a note was given to payee to raise money for defendant. Indorser paid £200, and took note in pledge. Subsequently he brought suit and recovered the whole sum. Lord Denman intimated that if a defense had been interposed, the judgment might probably have been limited to the amount advanced. Edwards v. Jones, 7 Carr & Payne, 633, is relied upon to sustain the text. In that case the plaintiff was allowed to recover £49 on a note for £100, being amount paid by him. The defense was that it was agreed between him and the payee, at the time of making the note, that the note was to be paid by his carrying goods for the payee, and that it was indorsed to the plaintiff without consideration. The plaintiff pleaded in reply that he gave a consideration of £49 for it. The court held that on this issue the defendant must begin, and that, if he offers no evidence, the plaintiff was entitled to a verdict for £49. More than this, the case does not decide. The only remaining case to be noticed is Wippen v. Roberts, 1 Esp. 261. The point established by that decision is directly in opposition to that stated by Mr. Daniel. Lord Kenyon said: "Where a bill of exchange is given for money really due from the drawer to the drawee, or is drawn in the regular course of business, in such cases the indorsee, though he has not given the indorser the full amount of the bill, yet may recover the whole and be the holder of the overplus above the sum really paid to the use of the indorser; but where the bill is an accommodation one, and that known to the indorsee, and he pays but part of the amount, in such case he can only recover the sum he has actually paid on the bill." There is no doubt in my mind that the cases cited by Mr. Daniel are conclusive of the point that he has not stated the law correctly; and, while searching for authorities, he may as well have cited Bardell v. Pickwick, as apropos, for that celebrated case supports his text quite as well, as do those cited by him. The class of cases which hold that the holder of a promissory note may only recover the amount advanced upon it, are all cases where the transferee is not a purchaser in the ordinary course of business. Such are the cases reviewed. In my search for cases I only find one directly in point, though there exists a long line of decisions, both in this country and in England, which settle the law, beyond all controversy, directly opposite to the statement of Mr. Daniel. Remembering that Mr. Daniel says, where the note is uttered in

fraud, the holder, though bona flde, is limited to the sum paid, and it will be seen how well the case found is in point. Lay v. Wissiman, 36 Iowa, 305, was an action on a promissory note for $150, executed by one Corey, and indorsed without recourse. Among the defenses interposed was that the note was obtained by fraud without any consideration moving, and that plaintiff paid therefor the sum of only $80. In that case the court holds that the defense is not good, and Day, J., who delivered the opinion, uses this language: "The defense, that a note has been obtained fraudulently, or without consideration, does not avail against a bona fide holder. If, however, the recovery of such holder may be limited to the amount paid, it is apparent that the defense does avail, for, without such a defense he could recover the amount evidenced by the note." One of the essential elements of commercial paper is that those who deal in it may be allowed to fix its value. That value, of course, depends upon the responsibility of the maker, and his ability to pay. Commercial paper is a medium of exchange, and, is like a bank note, whose value depends wholly upon the degree of faith we have in the bank that issued it. If A be good, his note may be at par, but if there exists a doubt as to his responsibility, the value of his paper must depend upon the faith of him who holds it in the integrity of the maker, or the degree of faith the holder has in his ability to enforce its payment by a resort to legal proceedings. Mr. Daniel's proposition of law is so manifestly without precedent to support it that a sense of duty impels its exposition. He who would instruet ought always be sure that his theories are sound. Particularly is this true of a law writer. KANSAS CITY, Mo. A. H. K.

pose of having the same applied in payment of deficiency? 0.

62. WITNESS-PROMISE TO PAY FOR EVIDENCE.-An important witness in a case was about to leave the state. His deposition could have been taken, but at that time he could not have been subponed to attend the trial, which wonld not take place for several months. In consideration of his remaining and testifying at the trial to the facts within his knowledge, the plaintiff agreed to give him one-third of whatever was recovered in the action. Can the contract be enforced, or is it void, as being contrary to public policy? In this state champerty does not avoid a contract, nor does interest exclude a witness. B.

[We think it clear that such a contract could not be enforced.-ED. CENT. L. J.]

ANSWERS.
No. 51.

[7 Cent. L. J. 159.]

The amendment approved February 28 will prevail. From the frame of the query, in the jurisdiction involved therein, the executive department is a component part of the law-making power, and no enactment of the legislative department has force as law until it receives such approval. Consequently, the approval of February 28 was the latest expression of the law-making power in its entirety, and must prevail in case of conflict. King v. Justices of Middlesex, 2 B. & Ad. 818; Ham v. State, 7 Blkf. 214: Stevens v. State, 5 Ind. 46. C. & B.

Vincennes, Ind.

BOOK NOTICE.

CASES ARGUED and DETERMINED IN THE ST. LOUIS COURT OF APPEALS of the State of Missouri. Reported by A. MOORE BERRY, official reporter. Vol. III. St. Louis: F. H. Thomas & Co., 1878.

In a rather lengthy review of the former volumes of this series of reports (see 6 Cent. L. J. 419,) we said all that we could desire to say concerning the volume before us. We have had no occasion to change the opinion then expressed, and the manner of reporting criticised is here followed to the letter. On pages 100, 101, 102, 159, 160 and 161, this style of reporting is to be seen at its worst. The book contains 661 pages, with a good index. The opinions here reported were delivered between the 3d of July, 1876, and the 24th of April, 1877. Abstracts of many of the cases have appeared from time to time in these columns, and it is therefore not necessary to enumerate them. Both the printing and binding of the book are admirable.

QUERIES AND ANSWERS.

QUERIES.

61. APPOINTMENT OF RECEIVER AFTER DECREE. -Bill in equity by mortgagee for foreclosure of a mortgage in United States Circuit Court, not praying for the appointment of a receiver, nor alleging scanty security, is taken pro confesso, decree of sale entered and premises sold to mortgagee, pursuant thereto. The security proves inadequate, and the sale realizes only a part of mortgage debt, leaving a large deficiency. The mortgagor is insolvent. May the complainant, by proceedings in the same action, procure the appointment of a receiver of the rents and profits of the mortgaged premises during the redemption year, for the pur

No. 59.

[7 Cent. L. J. 199.]

Yes. The board of supervisors and the county treasurer are alike agents of the county, and the acts or neglect of one agent can not affect the liability of another or his sureties to the common principal. Board of Supervisors v. Otis, 62 N. Y. 88. If all county offi cers unite in violation of law, and rob the treasury of its contents, the illegal act of one will afford no shield against the legal responsibility of the others or of their sureties. County of Muscatine v. Carpenter, 33 Iowa. 44. W.

NOTES.

BENJAMIN H. BRISTOW has removed to New York, and commenced the practice of his profession in that city The question of the unconstitutionality of the United States law of 1871, as to the appointment of federal supervisors of election, has been raised in the United States Circuit Court at Cincinnati-David Dudley Field, of New York, was chosen president of the Association for the Reform and Codification of the Law of Nations, held last month at Frankfort-Mr. Justice Keogh has recovered from his attack of insanity. He fully comprehends the acts he committed during the crisis of his illness--King's Inns, Dublin, have had a correspondence with the Four Inns of Court, London, relative to a proposal of their own that increased facilities be given for the call of Irish barristers to the English bar, and of English to the Irish bar. The answer they got was curtly in the negative. The committee appointed by the English barristers to inquire into the matter reported that there had been no reason suggested to them, nor were they aware of any reasons appearing, to call for so great a change in the constitution of the English bar, and they were accordingly of opinion that the suggestion made should not be accepted.

The Central Law Journal.

SAINT LOUIS, SEPTEMBER 27, 1878.

CURRENT TOPICS.

During the present term of the United States Circuit Court for the Eastern District of Missouri, before DILLON and TREAT, J. J., a number of important rulings have been made many of which it will be to the interest of the profession to preserve. In the case of Laveille, a bankrupt, the circuit court, sitting as a court of review, was called upon to construe the Missouri act of 1875 (Mo. Laws 1875, p. 61) relating to the property rights of married women. In 1874, when Laveille was solvent, he purchased for $350 a diamond breastpin and presented it to his wife. This article. of jewelry did duty as an ornament at various times for the wife, for the husband, and for a daughter; finally it passed into the hands of the husband for safe keeping, who, without the knowledge of the wife, pledged it to secure a debt. The debt was paid, but the pledge was left in the hands of the pledgee, for what purpose did not appear. Here the assignee found it; and the question was whether it belonged to the bankrupt's estate or to his wife. Counsel for the receiver filed a learned brief on the common law doctrine, relating to the wife's paraphernalia, showing that the wife had such property sub modo, a very appropriate expression when applied to an article of fashionable ornament, and that in the event of the insolvency of the husband, it not having been fashionable in the old days for debtors to escape payment of their debts, it must be sold for the benefit of creditors. But, said DILLON, J., the case is governed by the Missouri act of 1875. This completely revolutionizes the common law with reference to the right of the wife to hold personal property. The court, therefore, held-affirming the district court-that the article of jewelry in question belonged to the wife, and did not pass by the assignment in bankruptcy. We make a note of this decision, because the profession in Missouri will look with curious interest for every decision expounding the statute in question. In Gibson v. Broughton, an action of ejectment, Vol. 7-No. 13.

the defendant filed a special plea to the effect that a certain conveyance was made to hinder and defraud creditors, of which the plaintiff had notice. The plaintiff demurred, on the ground that it was an attempt to set up an equitable defense, and that the plea did not make a case within the Missouri statute relating to fraudulent conveyances. The Missouri Practice Act permits equitable defenses to suits at law. DILLON, J.: "The demurrer is sustained. Whatever may be the practice in the state courts, it is clear that an equitable defense to an action of ejectment can not be entertained by this court. The defendant may file a bill in equity if he desires."

IN Insurance Company of North America v. Commonwealth, 35 Leg. Int. 366, it is held by the Supreme Court of Pennsylvania, that a state may impose upon insurance companies incorporated under its laws a tax on all their business as evidenced by the entire premiums brought into their treasury from all sources, and that such a tax is not within section 8 of article 1 of the Federal Constitution giving to Congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. "A tax on gross premiums of insurance," say the court, "is a tax upon the receipts of money, or its representative in notes and bills, and not on property, or any article of commerce-it touches only a fund in the treasury of the company. As was said in the Gross Receipts Cases, 15 Wall. 294: The tax is laid on the gross receipts of the company; laid upon a fund which has become the property of the company, mingled with its other property, and possibly expended in improvements or put out at interest.' See also Erie R. R. Co. v. Penn., 21 Wall. 497. This tax is not measured by the subjects of insurance, for be the rates high or low, they do not govern, but the money only after it has passed into the hands of the company. The difference between this tax and that in the Gross Receipts Cases is marked. There the receipts were the results of transportation, and were by approximation, a regulation of commerce, and the dissent of the three judges was put upon this ground. But here the tax is on the mere results of business,

A

involving only local transactions, and partaking of no relation to interstate commerce. contract of insurance is merely a guaranty against a loss of property by fire or marine disaster. When on chattels on land or sea it is a protection merely given to the property, for which a price is paid. This price, or premium, is but a consideration, and the right to receive it rests on the faculty imparted by the state in its charter. That a policy is a mere contract of indemnity against loss of property, and not an instrument of commerce, is held in several cases: Paul v. Virginia, 8 Wall. 183; Ducat v. Chicago, 10 Wall. 410; Liverpool Ins. Co. v. Mass., Ibid, 573. In the first case, Mr. Justice Field uses this language: Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire entered into between the corporations and the assured for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter, offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and then put up for sale. They are like other personal contracts between parties, which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different states. The policies do not take effect-are not executed contracts-until delivered by the agent in Virginia. They are then local transactions, and are governed by the local law."" Many taxes of a similar nature have been sustained by the courts: A tax on brokers who dealt entirely in the purchase and sale of foreign bills of exchange, Nathan v. Louisiana, 8 How. 73. A tax on deposits in a savings bank invested largely in bonds of the United States, exempt from taxation, Society for Savings v. Coite, 6 Wall. 594; Provident Institution v. Mass., Ibid., 612. A tax on shares of stock in a railroad running through several states, in proportion to the length of the road in one state, Delaware Railroad Tax, 18 Wall. 206, 229, and on its income, Ibid, 231. A tax on warehouses used as the means of interstate commerce, Munn v. People, 4

Otto, 114, 4 Cent. L. J. 250. A tax on the person for shares of stock in corporations in other states, McKean v. Northampton Co. 13 Wright, 519.

Where a negotiable city bond was stolen, and its number altered by the thief, it was held in a recent case, City of Elizabeth v. Force, decided by the Court of Errors and Appeals of New Jersey, to be good in the hands of a bona fide holder who had purchased it for value. Corporation bonds payable to bearer or order, and the coupons annexed thereto, are now recognized as possessing all the ordinary properties of negotiable instruments, notwithstanding some exceptional cases, as Diamond v. Lawrence Co., 37 Penn. St. 353; Crosby v. New London R. R., 26 Conn. 121; Myles v. York R. R., 43 Me. 232; Clarke v. Janesville, 1 Biss. 98. Such is the rule established by the recent English cases. Gorgier v. Mierville, 3 B. &. C. 45; Goodwin v. Robarts, L. R. 1 App. Cas. 476. Such bonds or coupons, although stolen, are collectible in the hands of a bona fide holder who took them for value in the usual course of business before maturity, and without notice. Evertson v. Nat. Bk. of Newport, 66 N. Y. 14; California v. Wells, 15 Cal. 336; Spooner v. Holmes, 102 Mass. 503. If, however, the instrument is incomplete, as if any essential part is left in blank, and is afterwards filled up by the thief or holder through the thief, no recovery can be had. In Ledwich v. McKim, 53 N. Y. 307, the place of payment was left in blank, and before it was filled up by the president the bonds were stolen. It was held that a bona fide holder could not, by inserting the name of a place in the blank, recover its value. So also in Jackson v. Vicksburg Co. 2 Woods, 141, the same result was reached on exactly similar facts. In Maas v. Missouri R. R. 11 Hun,

(N. Y.) 8, the corporate seal of the obligors,

and the endorsement of the trustees, were both wanting when the bonds were stolen ; subsequently these were forged, and in that condition they came into the plaintiff's hands. It was held that the company was not liable. As a bond takes effect from its delivery, it is presumed that a blank as to the date would not affect a recovery. Pierce V. Richardson,