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living there.

At this time no creditor had assented to the assignment, and the only consideration therefor was the acceptance of the assignee. Afterward all creditors but D. proved their claims in the assignment proceedings. Held, that the assignment was invalid as against the attachment. Independently of insolvent laws or assignments for the benefit of creditors authorized by statute, it has always been held by this court that voluntary assignments by a debtor in this State in trust for the payment of debts, and without other adequate consideration, are invalid as against an attachment, except so far as assented to by the creditors for whose benefit they were made. Edwards V. Mitchell, 1 Gray, 239; May v. Waunemacher, 111 Mass. 207. The assent of creditors is not presumed, but must be shown by some affirmative act, such as presenting claims, or becoming parties to the written assignment. Russell v. Woodward, 10 Pick. 407. Such assignments made by judicial or legislative authority in another State are not binding here. Taylor v. Columbian Ins. Co., 14 Allen, 353. And an assignment made by the debtor himself in another State, which, if made here, would be set aside for want of consideration, will not be sustained against an attachment by a Massachusetts creditor, although valid in the place where it is made. There is no comity which requires us to give force to laws of another State which directly conflict with the laws of our own, or to allow to the act of a debtor resident in another State an effect in disposing of his property, as against his creditors here, which it would not have if he lived in Massachusetts. Zipsey v. Thompson, 1 Gray, 243; Swan v. Crafts, 124 Mass. 453; Fall River Iron Works v. Croade, 15 Pick. 11. The subsequent assent of the Rhode Island creditors to this assignment, manifested by proving their claims under it, cannot defeat the title to this property which the creditor in Massachusetts acquired by his attachment. Bradford v. Tappan, 11 Pick. 76; Ward v. Lamson, 6 id. 358; Pierce v. O'Brien. Opinion by Colt, J. CONSIGNMENT

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SALE OF CONSIGNED GOODS AND GOODS OF CONSIGNEE AT ONE TIME- RIGHT OF ACTION BY CONSIGNOR AGAINST PURCHASER. - A firm of dealers in window and plate glass, in Boston, made a contract with defendant to furnish glass for a building he was about to erect, according to specifications furnished, for the gross sum of $688. The contract described the quality and dimensions of ths glass to be furnished, and the number of lights of each quality. The firm was the selling agent for the plaintiff for plate glass, and the first four items of glass to be furnished as specified in the contract were plate glass and belonged to the plaintiff, having been consigued to the firm for sale. The remainder of the glass was furnished by the firm. The defendant had no knowledge that any of the glass belonged to the plaintiff. Held, that plaintiff could not maintain an action against defendant for the plate glass belonging to him. The firm could not recover for any portion of the glass furnished, but only upon the entire contract. A factor may sell his own goods with those of his principal, and take a note which includes the amount due for both. Hapgood v. Batchelder, 4 Metc. 473; Vail v. Durant, 9 Allen, 408. They could therefore mingle the goods of plaintiff with their own and make an entire contract, and the remedy against the purchaser must be upon the contract itself, the character of which would preclude the plaintiff from suing upon it. Roosevelt v. Doherty. Opinion by Endicott, J.

INTEREST-WHEN AT CONTRACT RATE AFTER DUE.— A mortgage to secure a note set forth that it was to be void if the mortgagor should pay the sum secured in five years, "with interest at the rate of seven and onehalf per cent per aunum." Held, that after the five years, if the note was not paid, the rate of interest would be seven and one-half per cent, and not the

legal rate, six per cent. The court say that in Brannon v. Hursell, 112 Mass. 63, it was held in an action upon a promissory note payable in four months, "with interest at ten per cent," that interest was to be computed at that rate not merely to the maturity of the note, but to the time of the verdict; and upon reconsideration of the authorities there referred to, and examination of the numerous decisions cited at the argument of the present case, we see no reason to overrule or qualify the point adjudged. See Price v. Great Western Railway, 16 M. & W. 244; Morgan v. Jones, 8 Exch. 120; Keane v. Keane, 3 C. B. (N. S.) 144; Cook v. Fowler, L. R., 7 II. L. 27; Gordillo v. Weguelin, 5 Ch. D. 287; In re Roberts, 14 id. 49. Before the decision in Brannon v. Hursell, the rule there declared had been established in Indiana, California, Texas, Illinois, Iowa, Wisconsin and Nevada. It has since been affirmed by decisions of the highest courts of Ohio, Michigan, Virginia aud Tennessee. And it has been acted on by Judge Lowell in the Circuit Court of the United States for this district. Burgess v. Southbridge Savings Bank, 2 Fed. Rep. 500. In Connecticut, the law seems formerly to have been cousidered as settled in accordance with these decisions; and, although some recent dicta have a tendency to explain away the grounds assigned in the earlier judgments, there is no adjudication to the contrary. The earlier decisions in New York support the same rule, both as to mortgages and as to ordinary debts. But in the light of later cases, the questions may perhaps be considered an open one in that State. The leading cases in support of the opposite view are Ludwick v. Huntzinger, 5 W. & S. 51, and Brewster v. Wakefield, 22 How. 118. The same rule appears to have been followed by the Supreme Court of the United States in Brunbisel v. Firman, 22 Wall. 170. And it has since been adopted as a general rule by the courts of Kansas, Minnesota, South Carolina, Rhode Island, Kentucky, Arkansas and Maine. But the later judgments of the Supreme Court exhibit a difference of opinion as to the general rule, though not of adjudication in the particular cases before the court. Cromwell v. County of Sac, 96 U. S. 51; Holden v. Trust Co., 100 id. 72. Union Institution for Savings v. City of Boston. Opinion by Gray, C. J.

ILLINOIS SUPREME COURT ABSTRACT.

FRANCHISE WHAT IS RIGHT OF RAILROAD COMPANY TO LAY TRACK THROUGH CITY-RIGHT NEED NOT BE EXCLUSIVE BUT MUST BE FROM SOVEREIGN POWER.- - Power in a railroad company to exercise the right of eminent domain in a city is a franchise, within the meaning of that word as used in the Constitution, in defining what cases must be taken to the Supreme Court by appeal or writ of error. It is not essential to a franchise, in its legal sense, that it should, in all cases, be exclusive. This court has held that a license by a city to use a street for a horse railway is not a franchise. Chicago C. R. Co. v. People, 73 Ill. 547. Corporate franchises in this country emanate from the sovereign power. It has decided that a right to membership in a board of trade is not a franchise. Board of Trade v. People, 91 Ill. 80. See, also, City of Bridgeport v. New York, etc., R. Co., 36 Conn. 255. A franchise is, in law, sometimes used to mean an exclusive right held by graut from the sovereign powersuch in its nature that the same right cannot be granted to another without an invasion of the franchise of the first grantee. The strictly legal signification of the word is not always confined to exclusive rights; but the term is used in law to designate powers and privileges which are not exclusive in their nature. The Supreme Court of the United States, speaking through Taney, C. J., said: "Franchises are special privileges

conferred by government upon individuals, and which do not belong to the citizens of the country, of common right." Bank of Augusta v. Earle, 13 Pet. 595. The term, according to Blackstone, embraces in its legal meaning several kinds of rights, some exclusive and some not exclusive. 2 Bl. Com. 21. Kid says: "A corporation is a political person capable of enjoying a variety of franchises." Spencer, J., says: "If there are certain immunities and privileges in which the public have an interest, as contradistinguished from private rights, and which cannot be exercised without authority derived from the sovereign power, it would seem to me that such immunities and privileges must be franchises." People v. Etna Ins. Co., 15 Johns. 387. And so the Supreme Court of New York held in that case, unanimously, that the right of an insuranco company to carry on banking business was a franchise, although the judges differed on the question whether the defendant in that case had lawful right to such franchise. Chicago & Western Indiana Railroad Co. v. Dunbar.

[Decided Aug. 11, 1880.]

SURETYSHIP-OFFICIAL BOND-BOND SIGNED WITH UNFILLED BLANKS ESTOPPEL-OFFICE VACANT BY DEFAULT IN FILING BOND-WHEN PROVISION AS TO

VACANCY DIRECTORY.—(1) A party executing a bond knowing that there are blanks in it to be filled up by inserting particular names or things necessary to make it a perfect instrument, must be considered as agreeing that the blanks may be thus filled after he has executed the bond. If the party signing the paper shall insert in the appropriate places the amount of the penalty, or the names of the sureties, or any other thing he may deem of importance as affecting his interest, he may in that way protect himself against being bound otherwise than as he shall thus specify. But if, relying upon the good faith of the principal, the surety shall permit him to have possession of a bond signed in blank, the surety will have clothed the principal with an apparent authority to fill up the blanks at his discretion, in any appropriate manner consistent with the nature of the obligation proposed to be given, so that, as against the obligee receiving the bond without notice or negligence, and in good faith, the surety will be estopped to allege that he executed the paper with a reservation or upon a condition in respect of the filling of such blanks, and this, whether the blanks to be filled havo reference to the penalty of the bond, the names of co-sureties, or other thing. The apparent authority of the principal in an obligation which has been executed in blank by others as sureties, to fill in the blanks in an appropriate manner, may be implied from the facts and circumstances attending the transaction, and may be shown by parol; and this rule applies to instruments under seal as well as to those which are not under seal. United States v. Nelson, 2 Brock. 64; Speake v. United States, 9 Cranch, 28; Smith v. Crooker, 5 Mass. 538; Butler v. United States, 21 Wall. 272; Dair v. United States, 6 id. 1; Drury v. Foster, 2 id. 24; Inhabitants of Berwick v. Huntress, 53 Me. 89; State v. Pepper, 31 Ind. 76; McCormick v. Bay City, 23 Mich 457; State v. Young, 23 Minn. 551; Packard v. Sears, 6 Ad. & El. 469; Welland Canal Co. v. Hathaway, 8 Wend. 480. The doctrine in People v. Organ, 27 Ill. 29, has not been followed. Bartlett v. Board of Education, 53 Ill. 364; Texira v. Evans, referred to, 1 Anstruther, 228; Smith v. Board of Supervisors, 59 Ill. 412; Comstock v. Gage, 91 Ill. 328. (2) The charter of a city provided that all city oficers who were required to give bonds for faithful performance of official duties should "file their bonds with the city clerk within fifteen days after their election," etc. The charter further provided that when bonds should not be so filed, "the person so in default should be deemed to have refused said office, and the same should be filled by appointment as in

other cases." And in case a bond so filed should not be approved, and a satisfactory bond should not be filed within fifteen days after such disapproval, the person so in default should "be deemed to have refused said office, and the same should be filled as above provided." And further, the charter made it "the duty of the clerk to notify all persons elected to office of their election, and unless such persons should respectively qualify within fifteen days thereafter the office should become vacant." It was held, these provisions in respect to the time within which the official bouds were required to be filed were not mandatory, but merely directory. The municipal authorities were empowered, in their discretion, to declare a vacancy, or to waive the default as to the mere time of filing bond, and to accept and approve it when afterward filed. The mere default in that regard would not, of itself, operate to vacate the office. And in case the city authorities waived a default, the bond filed would be valid against the sureties. Ross v. People, 78 Ill. 375; Rex v. Loxdale, 1 Burr. 447; Kane v. Footh, 70 Ill. 590; People v. Holly, 12 Wend. 480; State v. Churchill, 41 Mo. 41; State v. Porter, 7 Ind. 204; and see Kearney v. Andrews, 2 Stockt. Ch. 70; Speake v. United States, Cranch, 28; State v. Toomer, 7 Rich. (Law) 216; Sprowl v. Lawrence, 33 Ala. 674. City of Chicago v. Gage. Opinion by Sheldon, J. [Decided Sept. 13, 1880.]

OHIO SUPREME COURT ABSTRACT. OCTOBER 5, 1880.

CONSTITUTIONAL LAW-ACT REQUIRING CONSTRUCTION OF FISH-WAYS BY DAM OWNERS.-A legislative act requiring the owner of a dam constructed across a stream not navigable, and who has enjoyed the adverse use of such dam for the period of twenty-one years, to construct and maintain at his own expense, a chute or passage way over the same, for fish, held, unconstitutional. Whether the act is valid where the adverse use is less than twenty-one years is not decided. Woolever v. Stewart. Opinion by Boynton, J.

STATUTE OF FRAUDS — PROMISE TO ANSWER FOR DEBT OF ANOTHER.-C., who was a large stockholder of a business corporation, and president thereof, verbally promised M. that if ho would subscribe and pay $500 to the capital stock of the company he should, within one year, receive fifteen per cent on the amount invested. M., in consideration of this promise, subscribed and paid for the stock. No dividends were made or earned within the year. Held, that this was not a contract to answer for the debt, default or miscarriage of another. Morehouse v. Crangle. Opinion by Johnson, J.

STATUTE OF LIMITATIONS-SET-OFF. -The statute of limitations ceases to run against a set-off from the date of the commencement of the action in which it is pleaded. McEwing v. James. Opinion by McIlvaine, C. J.

WISCONSIN SUPREME COURT ABSTRACT.

SEPTEMBER 21, 1880.

MUNICIPAL CORPORATION VILLAGE CANNOT EMBRACE DISCONNECTED TRACT OF LAND. - An uninhabited tract of country, nowhere adjoining an existing village, and in which such existing corporation has no special interest, cannot be made by act of the Legislaturo a part of such village, for the mere purpose of increasing the corporate revenues by the exaction of taxes. The court say: "The idea of a city or village implies an assemblage of inhabitants living in the vicinity of each other and not separated by any other intervening civil division of the State. We do not by

this decision intend to set bounds to the discretion of the Legislature in fixing the boundaries of a village so long as tho territory of which it is composed is adjacent or contiguous, nor to intimate that the Legislature may not incorporate as ono village two or more assemblages of inhabitants living at some distance from each other, with spaces of uninhabited lands intervening, when such intervening spaces are also included in such village, but that a village cannot be incorporated containing two or more tracts of territory not contiguous or adjoining, and separated by some other civil subdivision of the State, and especially that an uninhabited and separate tract of country cannot be annexed to or made a part of an incorporated village. If by an act of the Legislature a tract of country not inhabited, and not adjoining a village, can be made a part of such village, then it would seem to follow that by another act of the Legislature the inhabited part of such village might be separated therefrom, and we would have the anomalous thing of a village without inhabitants, and composed simply of a tract of territory, which would be an absurdity." Smith v. Sherry. Opinion by Taylor, J.

REAL ESTATE-FIXTURES TREATED AS PERSONALTY BY ALL PARTIES, NOT- ESTOPPEL. Where a junior chattel mortgagee took possession of mortgaged fixtures and severed them from the real estate with which they were connected, to subject them to sale to satisfy his mortgage, held, that he could not, as against a prior chattle mortgagee, assert that such fixtures were a part of the realty. When all the parties have seen fit to treat what might otherwise be fixtures and part of the realty as personal property, by their agreements, and thus sever them from the freehold and license their removal, the law will consider such fixtures, as between the parties, personal property to all intents and purposes. Smith v. Benson, 1 Hill, 178; Ford v. Cobb, 20 N. Y. 344; Tift v. Horton, 53 id. 377; Hunt v. Bay State Iron Co., 97 Mass. 279. Smith v. Waggoner. Opinion by Orton, J.

INSURANCE LAW.

FIRE INSURANCE-CONTRACT BETWEEN INSURED AND MUTUAL COMPANY MAY BE CANCELLED AND NOTE

and received from the secretary of the company his deposit note, there being contested claims which were subs quently established and on which he paid nothing, and afterward a receiver was appointed who made an assessment on the said assured for payment of said losses, it was held that the matter had been adjusted between the company and the assured, and the receiver could not impeach or disaffirm the lawful acts of the corporation. Hyde v. Lynde, 4 N. Y. 387. After the filing of a petition by a mutual insurance company, but before publication of the appointment of a receiver, tho maker of a premium note paid au assessment thereon and surrendered his policy under an agreement with an authorized agent of the company that such payment and surrender should be in full of said note, which was agreed to be given up, but was not; the noto was extinguished, and the receiver could not maintain an action thereon. Sands v. Hill, 55 N. Y. 18. A good faith agreement between the parties in a contract of insurance, to annul it, is valid. Pennsylvania Sup. Ct., May 31, 1880. Acker, receiver, v. Hite. Opinion by Trunkey, J.

MARINE INSURANCE-UNSEA WORTHY SHIP.- TO render a ship "seaworthy," within the meaning of a contract of insurance, she must be sufficiently furnished with proper cables and anchors. 1 Kay's Shipmasters, 90. In Wilkie v. Geddes, 3 Daw. 57, a ship was held to be unseaworthy where it appeared that the best bower anchor and the cable of the small bower anchor were defective. Lord Eldon, in his opinion in the House of Lords, says nothing is more clear than that there is an implied warranty, in every contract of marine insurance, that the ship is seaworthy at the commencement of the risk, or at the time of her sailing on the voyage insured, and is provided with sufficient ground tackle to encounter the ordinary perils of the sea. The law seems to be perfectly well settled on this point. Merchants' Mut. Ins. Co. v. Sweet, 6 Wis. 670. Wisconsin Sup. Ct., Sept. 21, 1880. Lawton v. Royal Canadian Insurance Co. Opinion by Cole, J.

CRIMINAL LAW.

TRIAL-JOINT ASSESSMENT OF PUNISHMENT AGAINST JOINT OFFENDERS INVALID -In a prosecution against several defendants jointly for an aggravated assault, the jury found the defendants guilty and assessed the punishment "at $250 fine and six months imprisonment," no separato verdict or assessment being made as to each defendant. The judgment entered was of the punishment assessed against each defendaut Held, erroneous. It is well settled that when several are joined in one indictment a joint award of one fine against them all is erroneous, for it ought to be several against each defendant, før otherwise one who has paid his proportionable part might be continued in prison till the others havo also paid theirs, which would be, in effect, to punish him for the offense of another." 2 Hawkins' P. C. 633; Stato v. Guy, 10 Mo. 277. In Strangham v. State, 16 Ark. 37, it was said: "In criminal cases, though several persons concerned in the same offense may be jointly indicted and tried together * * yet each one is answerable for his own criminal conduct and not for his associates, and the verdict and judgment against them should be several, that is, should fix the fine or punishment to be paid or suffered by each, but the judgment for costs may be joint. Citing 4 Ark. 430; Whart. on Crim. Law, 156, 694; March v. People, 7 Barb. 393. The same

SURRENDERED BY AGREEMENT OF PARTIES. The business of an insurance company, whether conducted on the mutual or stock plan, is managed by its officers and agents, and the corporators are bound by the acts of such agents in all matters properly done within the scope of the powers committed to them. A policy of insurance and the premium noto given therefor constitute a contract between the company and the insured, and the parties usually have the same power to rescind it by mutual agreement as they had to make it. Such a power on the part of the company seems essentially necessary to the safe and proper transaction of its business. Boland v. Whitman, 33 Ind. 64; Wadsworth v. Davis, 13 Ohio St. 123. Most mutual companies insert stipulations in their policies that they shall become void, either ipso facto or at the option of the company, for certain acts of omission or commission by the insured, and when avoided, the rights and liabilities of the member are ended, except his liability for debts already incurred. Columbia Ins. Co. v. Masonheimer, 26 P. F. S.; Wilson v. Trumbull Ins. Co., 7 Harris, 372. The right of the company to cancel policies and thus terminate the contract, for various acts of the insured, though such right be not expressly reserved, has constantly been recognized, and it would be strange if it could not agree with the insured to abrogate the contract when deemed expedient or advantageous. In one sense the premium note is a security, but it may be given up for a good consideration. Thus when the assured surrendered his policy of horses placed them in possession of defendant un

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doctrino was declared in Allen v. State, 34 Tex. 230. Texas Ct. of Appeals, March 26, 1880. Flynn v. State of Texas. Opinion by White, P. J.

LARCENY BY BAILEE PURCHASER UNDER CONTRACT OF SALE OR RETURN NOT BAILEE. The owner

der an agreement for sale to defendant, he to pay the purchase price of the same, the horses to remain the property of the owner until paid for and to be returned at a specified time if not paid for. The defendant refused to return the horses and did not pay for them. Held, that he was not guilty of larceny as bailee. In Pennsylvania it is settled that the bailee of goods who uses and enjoys them as if his own, cannot divest the title of the bailor, nor can the bailee's creditor seize them in execution of his debt. When delivered under a contract of bailment the owner will be entitled to them against every body. But a delivery on a conditional sale, the property to remain in the vendor until the goods are paid for, with right to reclaim them, is void as respects the vendee's creditors, or an innocent purchaser from him. The delivery being on the foot of a purchase, the vendor's right, as against the vendee's creditors, is regarded as a lien for the purchase-money. Chamberlain v. Smith, 8 Wright, 431; Haak v. Linderman, 14 P. F. S. 499. By the terms of the contract the seller may retain the right of property in the goods till paid for, as against the purchaser, and in default of payment, he may reclaim them, or use civil remedies for recovery of possession, but the contract does not make him a bailor, as respects other persons, nor the purchaser a bailee in the sense of the word as used in the statute. The statute, as shown by Read, J., in Commonwealth v. Chatham, 14 Wright, 181, is taken from the English statute; and in that case the interpretation of the words "bailee and bailment,' as fixed by the English decisions, was adopted, which decisions were cited, showing that the words must be interpreted according to their ordinary legal acceptation, that "bailment relates to something in the hands of the bailee," which is to be returned in specie, and does not apply to the case of money in the hands of a party who is not under any obligation to return it in precisely the identical coin which he originally received;" that "to bring a case within this clause, in addition to the fraudulent disposal of the property, it must be proved, first, that there was such a delivery of the property as to divest the owner of the possession, and vest it in the prisoner for some time; secondly, that at the expiration or determination of that time the identical same property was to be restored to the owner.' The term "bailee" is one to be used, not in its large but its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods bona fide and then fraudulently convert. When it does not appear that a fiduciary duty is imposed on the defendant to return the specific goods of which the alleged bailment is composed, a bailment under the statutes is not constituted. Whart. Cr. L., § 1055 (8th ed.). Pennsylvania Sup. Ct., March 15, 1880. Krause v. Commonwealth. Opinion by Trunkey, J.

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WARRANT-NOT DESCRIBING ACCUSED INVALID TO PROTECT OFFICER. A warrant, wherein the only description of the accused is, "a person whose name is unknown but whose person is well known, of Vassalboro, in the county of Kennebec," is too defective in matter of substance to afford any protection to the officer who makes an arrest upon it. Such a warrant is too defective to be aided by any waiver in pleading.

It is not in accordanco with a constitutional provision that "no warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and tho person or thing to be seized," nor with the precedents of the criminal law. "If the name of the party to be arrested be unknown, the warrant may be issued against him by the best description the nature of the case will allow." 1 Chit. on Crim. L. 39; Commonwealth v. Crotty, 10 Allen, 404. The omission of the name, as a means of identification, is justified only on the ground of neces

sity; and when this is not known the warrant must indicate on whom it is to be served in some other way, by a specification of his personal appearance, his occupation, his precise place of residence or of labor, his recent history, or some facts which give the special designation that the Constitution requires. The conclusion from all the authorities is that both at the common law and in conformity with our constitutional guaranties, proceedings may be instituted and carried on against an offender whose name cannot be ascertained; but in such a case such a description of him must be given as will point to his identity, while yet there is no exact form of the description required. It must be suggested by the particular circumstances; and of course it must conform also to any statutory provisions which may exist in the individual State. Bish. Cr. Proc., § 680. Maino Sup. Jud. Ct., Jan., 1880. Harwood v. Siphers. Opinion by Symonds, J.

RECENT ENGLISH DECISIONS.

CONTRACT- INCONSISTENT CONTRACTS-RIGHT OF ACTION.-A lease of land from A to B contained a covenant by B not to assign or underlet without previous written license. B, without license, underlet a part of the land to C, by an agreement which also gave C an option of purchasing tho whole within five years. B subsequently surrendered his lease to A and obtained a new one, which contained a similar covenant against assigning or underletting. C having exercised his option of purchase, but A having refused his license, notwithstanding that he had been cognizant of the agreement: Held, that C was not entitled to specific performance against A or B. A lessor in A's position will not be precluded from exercising his strict legal rights, unless he has so far acquiesced that it would amount to fraud for him to do so. Where a person has entered into two contracts which are inconsistent with one another, the earlier will be enforced. Ch. Div., June 18, 1880. Willmott v. Barber. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 97.

CONTRACT-IMPOSSIBILITY OF PERFORMANCE -- CONSTRUCTION. - By an antenuptial settlement, dated Aug. 1873, and made in the Scotch form, A bound himself on or before the 2d July, 1875, to take out and effect upon his life for the full term thereof, in the name of the trustees therein mentioned, a policy or policies for the total amount of 10,000l. On the 1st July, 1875, A was so ill as to be unable to insure, and continued in a similar state of ill-health until his death in Sept. 1878. Held, that there was no implied condition in the covenant that A's life should be insurable, and that damages for non-performance of the covenant were payable out of his estate. In Bailey v. DeCrespigny, L. R., 4 Q. B. 185, it is said "where the event is of such a character that it cannot be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, wero not used with reference to tho possibility of the particular contingency which afterward happens." It is put in a very similar way in Taylor v. Caldwell, 8 L. T. (N. S.) 357. Ch. Div., May 8, 1880. T. Rep. (N. S.) 47. Re Arthur's Estate. Opinion by Jessel, M. R., 43 L.

GIFT CAUSA MORTIS OF CHECK-OF BILLS OF EXCHANGE.-A dying man who was possessed of a banker's deposit note for 27001., on tho back of which was printed a check form, and which had attached to it a notice of withdrawal, being in the expectation of death, stated his intention of giving his wife 5001, out of the 2700l., and filled up the check form and the withdrawal notice for 500l., and sent the document to the bank. The practice of the bank was to require seven

days' notice before withdrawal, but the testator died only two days after the notice was given. Held, that there was no donatio mortis causa. Hewitt v. Kaye, L. Rep., 6 Eq. 198; Beak v. Beak, 26 L. T. Rep. (N. S.) 281; L. Rep. 13 Eq. 489. The same donor also gave two bills of exchange drawn by himself to his own order, but unindorsed, to a friend, and requested him to present them, and give the money to the donor's wife. The friend undertook to do so and handed the bills to the wife, who retained them until after the donor's death, at which time they were still unpresented. Held, that the bills passed by a donatio mortis causa. Veal v. Veal, 2 L. T. Rep. (N. S.) 228; 27 Beav. 303. Ch. Div., June 29, 1880. Re Mead Austin v. Mead. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 117.

MARITIME LAW LIABILITY FOR LOSS OF CARGODEVIATION FROM COURSE TO SAVE PROPERTY.-The owner of a ship who has contracted not to be liable to

distress is allowable, inasmuch as the state of the vessel in distress may involve danger to life. On the other hand, deviation for the purpose of saving property is not thus privileged, but entails all the usual consequences of deviation. But where the preservation of life can only be effected through the concurrent saving of property, and the bona fide purpose of saving life forms part of the motive which leads to the deviation, the privilege will not be lost, because the purpose of saving property may have formed a second motive for deviating." Ct. of Appeal, April 20, 1880. Scaramanga v. Stamp. Opinion by Cockburn, C. J., and Bramwell, L. J., 42 L. T. Rep. (N. S.) 840.

the freighters for loss of cargo by perils of the sea is, THIS

nevertheless, liable to them for such loss, during a de-
viation from her course for the purpose of saving a
ship in distress and her cargo, if such deviation was
not (or was prolonged until it ceased to be) reasonably
necessary in order to save life. Herman v. Western
Marine and Fire Ins. Co., 15 LeB. 516; Natchez Ins.
Co. v. Stanton, 2 Smed. & M. 349; Stewart v. Tennes-
see Marine & Fire Ins. Co., 1 Humph. 242. The court
remark: "It is a remarkable fact that, while the com-
merce and the mercantile marine of Great Britain have
been for so many years the largest in the world, the
question as to how far a deviation for the purpose of
saving life or property renders the ship-owner liable to
a goods owner, whose goods have been lost through
the deviation, has never come before the tribunals of
this country, so as to be authoritatively determined;
while in the United States both questions have on sev-
eral occasions come before the courts, and the law may
now be taken to be there settled by judicial decision,
as well as by the consensus of jurists. In this country
the question, with one exception, has only presented
itself incidentally to that of salvage, and cannot be
said even in that form to have been brought to the test
of judicial decision. The exception in question is to
be found in the case of Lawrence v. Sydebotham, 6
East, 54, in which the question of deviation to assist a
vessel in distress was incidentally touched upou, but was
not the point for decision. The case before us presents
itself, therefore, so far as our courts are concerned, as
one of the first impressions in which we have to de-
clare, practically I may say, to make the law. I am glad
to think that in doing so we have the advantage of the
assistance afforded to us by the decisions of the Amer-
ioan courts, and the opinions of American jurists,
whom accident has caused to anticipate us on this
question. And although the decisions of the Amer-
ican courts are, of course not binding on us, yet the
sound and enlightened views of American lawyers in
the administration and development of the law- a
law, except so far as altered by statutory enactment,
derived from a common source with our own - entitle
their decisions to our profound respect and confidence.
It is unnecessary to go through the American decis-
ions in any detail. The effect of them is to be found
in the well-known text writers, but is nowhere better
stated than in the judgment of Mr. Justice Sprague, in
the case of Crocker v. Jackson [Sprague (American)
Rep. 141]. The result of the American authorities
immediately bearing on the question which we have
here to decide may be briefly stated. Deviation for
the purpose of saving life is protected, and involves
neither forfeiture of insurance nor liability to the
goods owner in respect of loss which would otherwise
be within the exception of 'perils of the seas.'
as a necessary consequence of the foregoing, devia-
tion for the purpose of communicating with a ship in

And

NEW BOOKS AND NEW EDITIONS.

VOL. 4, JACOB'S FISHER'S DIGEST. THIS volume contains the titles Error-Illegality, and columns 4651-6400. We can only reiterate our hearty commendation of the work, intrinsically so important and so well executed. It will entirely supplant the foreign editiou, both in point of completeness and of economy. The publisher is George S. Diossy, 231 Broadway, New York. Wm. Gould of this city has it for sale.

WATERMAN'S MAINE PROBATE PRACTICE.

Hand Book of Practice in the Probate Courts of the State of Maine. Containing Notes on the Execution and Probate of Wills, Duties of Executors, Administrators, Guardians and Trustees; also full Forms of Petitions, Orders and Decrees, with References to the Revised Statutes and Amendments thereof; and decisions of our courts. By Enos T. Luce, late Judge of Probate of Androscoggin county Revised by John A. Waterman, formerly Judge of Probate of Cumberland county. With an Appendix, containing tho Assignment and Insolvent Laws of Maine, arranged as amended, and all the decisions of the Supreme Court hitherto rendered in insolvent cases. Portland, Me., Dresser, McLellan & Co., 1880. Pp. viii, 352.

So far as plan and expression go this is the most excellent manual of probate practice wo have ever seen. Its accuracy in details we must take on trust. It seems, however, to have stood the test of eight years' experience, and doubtless will be indispensablo to the Mainc practitioner.

BIGELOW'S HISTORY OF PROCEDURE.
History of Procedure in England from the Norman Conquest,
The Norman Period (1066--1204). By Melville Madison
Bigelow, Ph. D., Harvard University. Boston: Little,
Brown & Co, 1880. One vol., pp. 400.

The author of this work is known to the legal profession by his work on Estoppels, Leading Cases on Torts, and other publications; and to scientific students of the law by the volume entitled Placita AngloNormania, in the introduction to which this work was promised. The latter has probably drawn the attention and perusal moro of those who are interested in the curiosities and antiquarianism of the law than of the lawyer in busy, every-day practice. The present work is likely to do the same. It will, however, interest and instruct the philosophical student of the law, and well repay his careful perusal; and the leisure of the practicing lawyer may be spent upon it with profit. By its aid, the former may trace the growth and development of some of the existing practical methods of modern times; and the latter may find interest and amusement, and not seldom a fact for practical use or suggestion. Thus, it is recent, the public excitement at the theft of the body of Alexander T. Stewart, and the discussion that arose of whether there was a property in the dead human body. In this book it is stated, that in Abbot Peter v. Bishop Ramelin, in the

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