the contract under seal, without any variation or abandonment of it, that the plaintiff cannot maintain an action of assumpsit.

The plaintiff must therefore, agreeably to the agreement, become nonsuit, and judgment must be entered for the defendants for their costs.

MAINE SUPREME JUDICIAL COURT AB

STRACT.*

CONSTITUTIONAL LAW-MUNICIPALITY MAY NOT LEVY LOCAL TAX FOR GENERAL PURPOSES.— A tax, assessed for public purposes, cannot constitutionally be imposed upon a portion only of the real estate of a town, leaving the remainder exempt. A legislative act, authorizing a village corporation to levy a local tax upon the real estate of its municipality for public purposes thus imposing a local tax for general and public purposes upon the real estate of one part of a town, leaving the other part untaxed-transcends the power of the Legislature, and is unconstitutional and void. Brewer Brick Co. v. Brewer, 62 Me. 62; Farnsworth Co. v. Lisbon, id. 451. "There is no case to be found in this State, nor, as I believe, after a very thorough search, in any other with limitations in the Constitution or without them-in which it has been held that a Legislature, by virtue merely of its general powers, can levy, or authorize a municipality to levy, a local tax for general purposes. It matters not whether an assessment upon an individual, or a class of individuals, for a general, and not a mere local purpose, be regarded as an act of confiscation, a judicial sentence or rescript, or a taking of private property for public use without compensation; in any aspect it transcends the power of the Legislature, and is void." Sharswood, J., in Hammett v. Philadelphia, 65 Penn. St. 146. "A legislative act, authorizing the building of a public bridge, and directing the expenses to be assessed on A., B. and C., such persons not being in any way peculiarly benefited by such structure, would not be an act of taxation, but a condemnation of so much of the money of the persons designated to a public use." Beasley, C. J., in Tidewater Co. v. Coster, 3 C. E. Green, 518. "It would be wholly beyond the scope of legislative power to authorize a municipality to levy a local tax for general purposes. * * * A law which would attempt to make one person, or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation." Wagner, J., in McCormick v. Patchin, 53 Mo. 33. Dyar v. Farmington Village Corporation. Opinion by Walton, J.

PRACTICE-WRIT USED AND FILED MAY NOT BE USED IN NEW PROCEEDING.- When a petition for insolvency has been served and placed on the files of the court and the proceedings have been subsequently dismissed, such petition cannot be withdrawn from the files and reissued and made the basis of subsequent proceedings. In Lyford v. Bryant, 38 N. H. 89, a writ was quashed on motion for a defect apparent on its face.

"It is said," observes Bell, J., in delivering the opinion of the court, "that the cause for quashing the writ was, that it was drawn upon a blank, which had been before used for the commencement of another action which had been entered in court. Beyond doubt, such a blank, having been once so used, has performed its office and it has ceased to be capable of use to draw a valid writ upon afterward. The uniform practice has been to quash writs so drawn at once and there seems to us no doubt of its propriety." So, in Parsons v. Shorey, 48 N. H. 550, it was held that a writ, which had been served by attaching the defend

*To appear in 70 Maine Reports.

ant's real estate, though no service had been made on him, could not be used to commence a new action of later date between the same parties. No case has been found where after a writ has been served and placed on the files of the court, it has been allowed to be used to commence a new proceeding. To allow such a practice "would tend to give the process and files of the court an unseemly and slovenly appearance," and deprive the officers of the court of their legal fees. Parsons v. Shorey, supra. In re Marson. Opinion by Appleton, C. J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

JUNE, 1880.

CONSIDERATION AGREEMENT TO ACCEPT PART OF DEBT AS FULL PAYMENT.- Where a creditor promised in consideration of the payment of part of the sum due on a note to accept that part as payment in full, no agreement under seal being made, held, that this did not relieve a guarantor of the note. The payment of part of an acknowledged debt after its maturity has often been held to be no sufficient consideration for a release, not under seal, of the remainder. It has no effect as an accord and satisfaction, and rests upon no legal or valid consideration. Harriman v. Harriman, 12 Gray, 341; Jennings v. Chase, 10 Allen, 526. Lathrop v. Page. Opinion by Ames, J.

CRIMINAL LAW JOINDER OF OFFENSES-LARCENY BURGLARY RECEIVING STOLEN GOODS. A thief and a receiver of goods stolen may be indicted together. Commonwealth v. Adams, 7 Gray, 43. In an indictment for breaking and entering a building, with intent to steal, it is usual, though not necessary, to allege an actual stealing therein; and if one person is charged both with breaking and entering and with stealing, he may be convicted and sentenced for either offense, or if the two offenses are charged in separate counts and are proved to be distinct, for both. Crowley v. Commonwealth, 11 Metc. 575. If one person breaks and enters a building and steals therein, and another person takes no part in the transaction until after the breaking has been accomplished, but participates in the subsequent stealing, each may be convicted and sentenced accordingly, the one for the breaking and entering, and the other for stealing under an indictment which charges both defendants with having jointly committed both offenses. Rex v. Butterworth, Russ. & Ry. 520. Or they may be separately charged in one indictment according to the actual facts of the case, the one with breaking and entering and stealing, and the other with stealing only, or with receiving the goods stolen. Rex v. Hartall, 7 C. & P. 475; Commonwealth v. Hills, 10 Cush. 530. Commonwealth v. Darling. Opinion by Gray, C. J.

RIAGE

DIVORCE-IN ANOTHER STATE FOLLOWED BY MARESTOPPEL-ACQUIESCENCE.- In an action by a wife against her husband for divorce and adultery it appeared that he had procured a divorce from her in an action in an another State in which action she had appeared; that she afterward executed a release, reciting the divorce obtained by him, and for a pecuniary consideration discharging all her claims upon him or his estate. And that he afterward married in that State. Held, that the wife could not treat his subsequent marriage and cohabitation with another woman as a violation of his marital obligations to herself. A defense to the action by the wife allowed, not upon the ground of a strict estoppel, but because her own conduct amounted to a connivance at, or acquiescence in, his subsequent marriage. Kerrigan v. Kerrigan, 2 McCarter, 146; Palmer v. Palmer, 1 Sw. & Tr. 551; Boulting v. Boulting, 3 id. 329; Pierce v. Pierce, 3

Pick. 299; Lyster v. Lyster, 111 Mass. 327. See, also, Smith v. Smith, 13 Gray, 209. Loud v. Loud. Opinion by Gray, C. J.

LORD'S DAY - INJURY BY DOG TO ONE TRAVELLING ON-DEFENSE- CONTRIBUTORY NEGLIGENCE.- Plaintiff was driving his horse and buggy along the public highway in Boston on Sunday, not upon a work of necessity or mercy, when defendant's dog jumped at the head of the horse, frightening him and causing him to be unmanageable so that he overturned plaintiff's buggy. Held, that the fact that plaintiff was unlawfully travelling on the Lord's day would not relieve defendant from liability under a statute for the injury caused by the dog. The fact that he was travelling unlawfully would not defeat his right to recover, unless his unlawful act was a contributory cause of the injury he sustained. McGrath v. Merwin, 112 Mass. 467; Marble v. Ross, 124 id. 44, and cases cited. It has been held in this Commonwealth that if a person who is unlawfully travelling on the Lord's day is injured by a defective highway or by a collision with the vehicle of another traveller, he cannot recover for the injury. This is upon the ground that his illegal act aids in producing the injury, or, in other words, is a contributory cause. Lyons v. Desotelle, 124 Mass. 387; Conolly v. Boston, 117 id. 64. On the other hand, it has been held in several cases that if a person, who is at the time acting in violation of law, receives an injury caused by the wrongful or negligent act of another, he may recover therefor if his own illegal act was merely a condition, and not a contributory cause of the injury. Steele v. Burkhardt, 104 Mass. 59; Kearns v. Sowden, id. 63, note; Spofford v. Harlow, 3 Allen, 176. We are of opinion that the case at bar falls within the last-named class. The plaintiff when travelling was assaulted and injured by a dog for whose acts the defendant is responsible. Gen. Stats., ch. 88, § 59; Le Forest v. Tolman, 117 Mass. 109. The act of travelling had no tendency to produce the assault or the consequent injury; and therefore, though the plaintiff was travelling in violation of law, it does not defeat his right of recovery. White v. Lang. Opinion by Morton, J.

RHODE ISLAND SUPREME COURT ABSTRACT.

MAY AND JUNE, 1880.

BAILMENT-DUTY OF PLEDGEE OF SECURITIES TO COLLECT INTEREST-NEGLIGENCE DEPRECIATION OF SECURITIES.- - A transferred to B, as collateral, certain promissory notes secured by mortgages. The notes bore interest payable half yearly, and the mortgages contained powers of sale if default was made in paying the interest when due, and also contained a provision, that in case of sale for non-payment of interest, the principal should be due and payable on the day of such sale. A notified B by letter that the power to collect the interest was wholly in B's hands; that B's duty was to collect the interest, if necessary, by sale, and credit A with the collections, and that A would hold B responsible for any neglect. After B's death, A wrote to B's executrix, who was sole legatee and devisee, to the same effect. Both B and B's representative neglected to collect much of the interest and to enforce payment by sale. By the depreciation of property the mortgages became nearly valueless, and the mortgagors were irresponsible. It appearing that prompt sales would have realized enough to pay the collateral notes in full, on a bill in equity to redeem, and for an account, held, that B's executrix was responsible for neglecting to collect the interest as it fell due. Held, further, that A was entitled to have his principal debt reduced by the amounts of interest falling due on the collateral notes, whether B and B's rep

resentative had or had not collected such interest. Held, further, that although B's executrix was responsible for the interest falling due on the collateral notes, she was not, in the circumstances, responsible for the principal of these notes. It is undoubtedly the law that the pledgee of a chose in action, who receives it as collateral security, is bound to use, not extraordinary care, but ordinary or reasonable care and diligence to secure its payment when due. 1 Am. Lead. Cas. 402-3; Lawrence v. McCalmont, 2 How. (U. S.) 426; Kiser v. Ruddick, 8 Blackf. 382. The law implies on the part of the pledgee, from the nature of the transaction, an agreement to use such care to protect the pledgor's interest and make the pledge available. Accordingly, if the pledge consists of indorsed negotiable paper, the pledgee must present it for payment at maturity, and if it is not paid, must give notice to charge the indorser, or if loss ensues, he will be liable to make it good. 1 Am. Lead. Cas. 123, 124; McLughan v. Bovard, 4 Watts, 308; Ormsby v. Fortune, 16 Serg. & R. 302. And there are cases which go so far as to hold that the pledgee will be liable for neglecting to put the collateral in suit, when a prudent man would do it, if any loss results from the neglect. Lamberton v. Windom, 12 Minn. 232; Wakeman v. Gowdy, 10 Bosw. 208; Slevin v. Morrow, 4 Ind. 425; Ex parte Mure, 2 Cox, 63; Williams v. Price, 1 Sim. & Stu. 581; Lyon v. Huntingdon Bank, 12 Serg. & R. 61; Hoard v. Garner, 10 N. Y. 261; but see 1 Am. Lead. Cas. 404. But the pledgee is not bound to exercise extraordinary care. Hence he is neither bound to forecast the markets for the pledgor, nor to watch the markets for the most favorable opportunity to sell tho pledge. Granite Bank v. Richardson, 7 Metc. 407; Robinson v. Hurley, 11 Iowa, 410; Howard v. Brigham, 98 Mass. 133; O'Neill v. Whigham, 87 Penn. St. 394; Richardson v. Insurance Co. of Va., 27 Gratt. 749; Clark v. Young, 1 Cranch, 181. Whiton v. Paul. Opinion by Durfee, C. J.

EXECUTORS-PAYMENT TO ONE OR SEVERAL DISCHARGES DEBT DUE ESTATE. - - A and B were executors of an estate. A made collections and squandered the receipts; whereupon C, a debtor of the estate, agreed with B to make no payments to A except upon orders bearing B's signature. A subsequently presented an order signed by himself as executor, and bearing a signature of B forged by A. C in good faith paid this order. In an action by B against C to recover the balance due to the estate, held, that the payment by C made on the order bearing A's genuine signature and B's forged signature was valid. There can be no doubt that the ordinary rule is that co-executors, however numerous, have each of them complete power to administer the estate. Williams on Exrs. 946; Charleston v. Earl of Durham, L. R., 4 Ch. App. 433; Hall v. Carter, 8 Ga. 388. A payment, therefore, to any one is equivalent to payment to all. Ordinarily, too, neither can prevent the others receiving payment. See Herbert v. Pigot, 4 Tyrw. 28; Hill v. Simpson, 7 Ves. Jr. 152; Keane v. Robards, 4 Madd. Ch. 332; Whale v. Booth, 4 T. R. 625, note a; Sherburne v. Goodwin, 44 N. H. 271; Dodson v. Simpson, 2 Rand, 294; Ashton v. Atlantic Bk., 3 Allen, 217. Stone v. Union Savings Bank.

MUNICIPAL CORPORATION LIABILITY FOR TRESPASSES OF AGENTS. The city of Providence, owning by purchase certain lots on both sides of a private way, the highway commissioners of the city excavated gravel from the lots and the way until the latter became impassable. The gravel was used for highway repairs at various and remote points. All the expenses were paid from the city treasury and from regular appropriations. In an action against the city brought by another owner of land on the private way, held, that the highway commissioners were the agents of the

agreeable style, and forming an interesting compendium for laymen. Lawyers must of course resort to the larger works, but a perusal of this work will even to them prove instructive and entertaining. It has an index, references to cases, and a table of contents.

HALL'S INTERNATIONAL LAW.

International Law. By William Edward Hall, M. A., Barrister at Law, Oxford, at the Clarendon Press, 1880. This work, recently published, is one of great merit. We know of no one work which contains a more complete and thorough discussion of the many questions of international law than this. The learned author is not a mere gleaner in a field in which he was preceded by Grotius, Pufendorf, Heineccius, Vattel, Wheaton and other publicists. But he is an original thinker, who grasps with great vigor the many problems falling within the scope of his work. He shows great research and learning, and his views are generally in accord with the ablest writers and statesmen who are considered authorities upon the matters discussed. Some of the principles of international law are yet open to dispute, and when he differs from any of his predecessors in the same field the arguments pro and con are fairly presented and his views are generally found on the side of the most advanced thinkers. Those portions of the work relating to the rights and duties of neutrals and to State sovereignty are particularly able and interesting. We commend the work as a valuable addition to legal literature.

MCCLELLAN'S SURROGATE'S COURT PRACTICE. Practice in Surrogates' Courts: Being a Treatise of the Jurisdiction of the Courts and the Remedies offered thereby; comprising also the Law of Wills, Executors, Administration, Legacies, Guardians, and Dower, with complete Forms for Practice. Second edition, conformed to the Code and greatly enlarged, by Robert H. McClellan, Counselor at Law, and former Surrogate of Rensselaer county. Albany, N. Y., W. C. Little & Co., 1880. Pp. xx, 1024.

We are sometimes inclined to think it is a gracious course in a critic to find the fault first, and to wind up with the praise. Does it not leave a more pleasant taste? We should prefer a dose bitter in the mouth and sweet in the belly, to the contrary, as we read of in regard to the book in the Apocalypse. At any rate, we shall try this course for once.

On the third page of the text of this book we are startled at finding a section numbered 2483, succeeded by others on other pages numbered up to 2800 and odd, but skipping "all about between." The explanation, which the author has omitted to furnish, is that these are the sections of the new Code. We find many marks of haste and bad proof-reading. For example, the author cites the famous Roderigas case, on the first trial, in the Superior Court, from Howard, but does not cite the case, on the first trial, in the Court of Appeals. It is exasperating to find the title as Rodrigas, Rodrignez, Rodrignes, and Rodrigner, for this is twice as many views of the name as the court took of the principle. The book, although sumptuously printed, on fine paper, double leaded, with large margins, is too cumbersome for a book of constant reference, and might well have been typographically compressed to two-thirds its size, with the advantages of convenience and economy of price. The forms might better have been put in smaller type and solid.

he what is needful on this topic, and few if any know better how to supply it. There is also a real demand for a work like his, for as he says in his preface, the practice in these courts "to most of the profession is a mystery, passed over in their preparatory studies, and in consequence not followed in after years." In addition, the new Code has become the authoritative and comprehensive and complete system of practice. We therefore agree that the new edition is "an absolute necessity." So far as we can judge from a cursory examination, not tested by actual practice under the new system, and not much aided by experience in these courts, we should think that Mr. McClellan has done his work well. His divisions are methodical, and the treatment is concise and plain, and at the same time sufficiently extensive. The forms must prove very The volume is furnished with valuable assistants. tables of contents and cases, an index of forms, and a general index. We cordially recommend it as a timely

and useful work.

CORRESPONDENCE.

"MIDSUMMER'S" PROBLEM.

Editor of the Albany Law Journal:

The interesting problem propounded by "Midsummer, is, it seems to me, correctly solved by Mr. Whitaker, who leaves A out in the cold.

I reason thus: It is admitted that A's lien is prior to B's; B's to C's, and C's to A's. There are $10,000 to be divided between these three. B takes $5,000, leaving an equal amount for A. But C intervenes, and by reason of his priority, causes the balance which B left for A to be paid to him, thus leaving A out in the cold.

A cannot complain of B, because the latter acknowledged his priority and provided for the payment of his mortgage, and C's priority is recognized and yielded to by A, who has only himself to blame for his sorry plight. The fallacy in the reasoning of E. M. S. and Subscriber appears to be this, viz., they make B provide $10,000 for A instead of $5,000. They make the fund for distribution, as between A and B, $5,000 instead of $10,000, by first withdrawing C's share. But B has nothing to do with this, as C takes A's share, which has been already provided for by B. According to the theory of these gentlemen, A would get the entire fund, and giving C $5,000, would keep the balance for himself.

Again: B has the second lien. As there is enough to pay the prior lien and his own, I do not see how he can be ousted. This statement seems to carry its own demonstration with it.

Another form of statement would be this: As B shares after A, and there being enough for both, B could only be deprived of his share by C, whose lien is confessedly subordinate.

I therefore conclude that "Midsummer" will pay the mortgages of B and C out of the fund in his hands, and will leave A to enter his judgment for deficiency. SOL. KOHN.

NEW YORK, Sept. 8, 1880.

Editor of the Albany Law Journal:

ground against the second, and he in his turn must yield to the first." Several cases are there cited in support of this rule. See Manufacturers' Bank v. Bank of Pennsylvania, 7 W. & S. 335.

The following formula for the solution of the question is found in the opinion of Agnew, J., in Thomas's Appeal, 69 Penn. St. 122: "When the lien of the first creditor is superior to that of the second, but inferior to that of the third, and the lien of the second is superior to that of the third, the first creditor will take the fund because of his superiority to the second, by reason of the superiority of the second over the third.' This rule would give A $5,000, and B $5,000, and C nothing.

TITUSVILLE, PENN., Sept. 8, 1880.

Editor of the Albany Law Journal:

S. T. N.

E. M. S. inquires if "Midsummer's" legal problem ever arose? It was decided in Stephens v. Benton, in the Kentucky Court of Appeals. 1 Duvall, 112, (1863).

The Covington & Lexington Railroad Company had executed a first mortgage for $400,000, but had issued under it, by a mistake, $420,000 of bouds. It then made a second mortgage. Both were recorded in their order. Subsequently income bonds were issued, which were made in terms a charge upon the plant, but were not secured by any recorded instrument. Lastly, a third mortgage was executed, and was taken, with notice of the income bonds. Neither the holders of the second or third mortgage or of the income bonds had any notice of the over-issue. The road having been sold under foreclosure and the proceeds being insufficient to pay all liens, the question of the order of their payment arose. The court held as follows: 1. The company is estopped to deny that the over-issue is protected by the lien of the first mortgage. 2. But this lien must give way to innocent subsequent incumbrancers who claim under recorded instruments. 3. The lien by estoppel being prior in time to the unrecorded income bonds is superior in dignity to them, as such. 4. But the holders of the income bonds are entitled to be substituted to the rights of the third mortgage, which was recorded, and thus to a preference over the over-issue of the first mortgage.

It seems to the writer that upon the theory of substitution only the true solution can be found. Judge Bullitt, who delivered the opinion of the court, thus lucidly illustrated the principle: "The owner of land gives a title bond to A, and a second title bond to B, who has no notice of A's equity, and afterward conveys the legal title to C, who has notice of the equity of B, but no notice of the equity of A. Who is entitled to the land? As between A and B, A is entitled to it, his being the oldest equity; as between A and C, C is entitled to it, having purchased the legal title without notice of A's equity; but as between B and C, B is entitled to it, because C had notice of his equity. In such a case our opinion is that B would be entitled to it. If, in an action to which A was not a party, B had recovered the land and obtained a conveyance of the legal title from C, and A should afterward sue B, it seems clear that B, having united the legal title to his junior equity, could not be compelled to convey to A. The fact that all of them are parties to the action, asserting their respective claims, can make no difference, because the legal title cannot be taken from C except by virtue of B's equity; if taken from Cit must pass to B; and as it then becomes united to his junior equity, it cannot be taken from him for the benefit of A. Moreover, the chancellor, if necessary, would consider that as having been done which should be done, and would treat the case as if C had conveyed to B, as he was bound to do."

LOUISVILLE, KY., Sept. 11, 1880.

WM. REINECKE.

Editor of the Albany Law Journal:

The case of Bacon v. Van Schoonhoven, 19 Hun, 158, you will find involves substantially the legal problem propounded by "Midsummer," in the LAW JOURNAL of Aug. 21, 1880. See, also, comment thereon, 21 Alb L. J. 79. Yours, SUBSCRIBER.

TROY, N. Y., Sept. 4, 1880.

COUNTY COURT JURISDICTION. Editor of the Albany Law Journal: Those who were exercised on the above subject, as shown in your issue of Aug. 21st ult., were quieted by a decision in your issue of 4th inst., that L. 1880, ch. 480, is clearly unconstitutional. As no grounds were stated in the opinion, a doubt may exist whether it was based upon a contradiction, by that statute, of an express mandate of the organic law, or wholly or partly upon defects in the employment of the machinery of statute amendments and repeals. If any considerations can be adduced in favor of the possible validity of the statute, its unconstitutionality becomes to that extent less clear.

Probably it is within the powers of the Legislature to revive a repealed law by implication; and a law, in terms amending a repealed law, would be evidence of an intent to effect such a revival. Such a course might be termed unusual or a blunder. If, then, L. 1870, ch. 467, § 1, had been repealed by L. 1880, ch. 245, when its amendment was attempted by L. 1880, ch. 480, the latter act was effectual to revive and amend it. But had it been repealed? By its terms, L. 1880, ch. 480, took effect May 28, 1880. By its terms, L. 1880, ch. 245, took effect Sept. 1, 1880. It is submitted that an act, passed at a date prior to that of its taking effect, has no vitality in the interval, beyond the certainty of becoming law at the latter date, unless previously repealed. Therefore L. 1870, ch. 467, § 1, was not repealed by L. 1880, ch. 245, at the date, May 28. And L. 1880, ch. 245, though taking effect after L. 1880, ch. 480, and though repealing L. 1870, ch. 467, § 1, does not affect the act of 1880 amending that of 1870. See L. 1880, ch. 245, § 3, subd. 9. Hence L. 1880, ch. 480, must be law to-day, unless, for other reasons, it contravenes the Constitution. Does it?

The Constitution says, in art. 6, § 15 (a): "The county courts shall have the powers and jurisdiction they now (Jan. 1, 1880) possess, until altered by the Legislature." (b) "They shall also have original jurisdiction in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed one thousand dollars." (c) "They shall also have such other original jurisdiction as shall, from time to time, be conferred upon them by the Legislature." To begin with the assumption that clause (b) is, ex vi terminorum, equivalent to—“ -"They shall not have original jurisdiction in any cases * * * in which the damages claimed shall exceed one thousand dollars" would be begging the question, which is whether clauses (a) and (c) do not preclude such a construction. The case of Landers v. S. I. R. R. Co., 53 N. Y. 450, may throw some light on clause (c), at least by analogy. As the jurisdiction of the superior city courts was subject to no pecuniary limitation, the question now at issue did not arise; but the decision discussed questions of residence of parties, and locus of subject-matter and of origin of cause of action, and intimated that L. 1873, ch. 239, in attempting to exercise, with respect to those courts, the power conferred on the Legislature by a clause of Const., art. 6, § 12 ("and such further civil and criminal jurisdiction as may be conferred by law "), was void, so far as it purported to erect those tribunals into courts of general jurisdiction. But it appears to have been conceded that the act was void, only so far, and is valid so far as consistent with the local character of the city courts.