Wall. 119; Porter's Case, 1 Coke's Rep. 24; AttorneyGeneral v. Bonyer, 3 Ves. 714; Ingles v. Sailors' Snug Harbor, 3 Pet. 115; Sanderson v. White, 18 Pick. 356; Town of Paulet v. Clarke, 9 Cr. 292; Beaty v. Kurtz, 2 Pet. 566; Vincennes University v. Indiana, 14 How. 26; Mills v. Farmer, 19 Ves. 487; Attorney-General v. Bishop of Chester, 1 Bro. Ch. 444; Attorney-General v. Downing, Ambler, 550; Sennet v. Herbert, L. R., 7 Ch. 237; Chamberlain v. Brockett, L. R., Ch. 206; McIntire Poor School v. Zanesville Canal Co., 9 Ohio, 203; Miller v. Chittenden, 2 Iowa, 315; S. C., 4 id. 252; Well-Belwed v. Jones, 1 Sim. & S., 40.) Judgment of Supreme Court, District of Columbia, affirmed. Ould, plaintiff in error, v. Washington Hospital for Foundlings. Opinion by Swayne, J.

WILL.

Construction of: conversion of real property into personalty.-The testator directed that all his real estate except a single lot should be sold, and directed that the proceeds should be divided in the manner and proportions stated in the will; then followed a devise of the excepted lot and various pecuniary bequests, succeeded by a residuary legacy to his son, given in the following words: "I give and bequeath unto my kind and affectionate son, Carberry S. Hilton, all the rest and residue of my estate, of which I may die seized or possessed, which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description and not herein otherwise disposed of, for his sole use and benefit and that of his children." Carberry S. Hilton was a favorite son and was not otherwise provided for. Held, that by the sale the realty was converted into personalty and was included under the residuary bequest. A construction that will prevent partial intestacy is preferred to one which will permit it. Decree of Supreme Court of District of Columbia reversed. Given, executor, appellant, v. Hilton. Opinion by Strong, J.

MUNICIPAL SUBSCRIPTIONS IN AID OF RAILROADS.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1877.

COUNTY OF CASS V. JOHNSON.

A provision in the constitution of Missouri forbidding subscription by a town in aid of a railroad, "unless two-thirds of the qualified voters of the town at a regular election shall assent thereto," held, to be satisfied by an assent of two thirds of those voting at such election, and an act of the legislature requiring only such an assent to authorize subscription, held constitutional. Harshman v. Bates County, 92 U. S. 569, reversed on this point.

IN

error to the Circuit Court of the United States for the Western District of Missouri. Action upon railroad aid bonds. The facts appear sufficiently in the opinion.

Mr. Chief Justice WAITE delivered the opinion of the court.

The first question presented for our determination in this case is, whether the "township aid act" of Missouri is repugnant to article 11, section 14 of the constitution of that State, inasmuch as it authorizes subscriptions by townships to the capital stock of railroad companies whenever two-thirds of the qualified voters of the township, voting at an election called for that purpose, shall vote in favor of the subscription, while the constitution prohibits such a subscription, "unless two-thirds of the qualified voters of the *

*

town, at a regular or special election to be held therein, shall assent thereto."

In Harshman v. Bates County, 92 U. S. 569, we incidentally decided the act to be unconstitutional, but the point then specially in controversy was as to the applicability of this constitutional prohibition to township organizations. It was impliedly conceded upon the argument that if the constitution did apply, the law could not be sustained, and we accepted this concession as truly stating the law of Missouri. Now, however, the question is directly presented whether the provisions of the constitution and the statute are not substantially the same. On the one hand, it is contended that the constitution requires the actual vote of two-thirds of the qualified voters of the township in favor of the subscription, and on the other, that the requisite assent is obtained if two-thirds of those voting at the prescribed election shall vote to that effect.

The Supreme Court of Missouri has often been called npon to construe and give effect to this statute, and has never in a single instance expressed a doubt as to its validity. The first case was that of State v. Linn County, 44 Mo. 504, decided in 1869, the year after the law was passed. That was an application for a mandamus to compel the County Court to issue bonds npon a subscription made pursuant to a vote under the law, and it was contended that the act was repugnant to article 11, section 14, of the constitution, because the bonds to be issued were the bonds of the county and not of the township, and the voters of the county had not given their assent, but the court held that they were the bonds of the township and granted the writ. Following this are the cases of Ranney v. Baeder, 50 Mo. 600; McPike v. Pen, 51 id. 63, decided in 1872; State v. Cunningham, id. 479; Rubey v. Shain, 54 id. 207, decided in 1873; State v. Bates County, 57 id. 70, decided in 1874; State v. Clarkson, 59 id. 149, decided in 1875; State v. Daviess County, 64 id. 31, and State v. Cooper County, id. 170, decided in 1876, in all of which the act was in some form brought under consideration, and in no one was there a suggestion of its unconstitutionality by either the court or counsel.

It is true that the objection now made to the law was in no case presented or considered, but this is sufficiently explained by the fact that in other cases a construction had been given to language similar to that employed in the constitutional prohibition, adverse to such a position. In State v. Winkelmeier, 35 Mo. 103, decided in 1864, just previous to the adoption of the constitution, under a law which empowered the city authorities of St. Louis to grant permission for the opening of establishments for the sale of refreshments on any day of the week, "whenever a majority of the legal voters of the city" authorized them to do so, it was held that there must be a majority of the voters participating in the election at which the vote was taken, and not merely a majority of those voting upon that particular question. The judge who delivered the opinion of the court did, indeed, say, "the act expressly requires a majority of the legal voters; that is, of all the legal voters of the city, and not merely of all those who at a particular time choose to vote upon the question; " but this must be read in connection with what follows, where it is said that "it appeared that more than thirteen thousand voters participated in that election, and that only five thousand and thirty-five persons voted in favor of giving to the

city authority, * ** and two thousand and one persons voted against it. ** *It is evident that the vote of five thousand out of thirteen thousand is not the vote of a majority." Taking the opinion as a whole it is apparent that there was no intention of deciding that resort must be had elsewhere than to the records of the election at which the vote was taken to ascertain whether the requisite majority had been obtained. But, however this may be, in 1866 a similar question was presented to the same court in the case of State v. Mayor of St. Joseph, 37 Mo. 270. There it was provided that the mayor and council of St. Joseph should cause all propositions "to create a debt by borrowing money "to be submitted "to a vote of the qualified voters of the city," and that in all such cases it should require "two-thirds of such qualified voters to sanction the same." A proposition to borrow money for the improvement of streets was submitted to a vote of the voters at an election called for that purpose, and resulted in a majority in favor of the measure. The mayor declined signing the necessary bonds because he was in doubt whether the matter was to be determined by two-thirds of all the votes polled at the special election, or by two-thirds of all the voters resident in the city, absolutely, whether voting or not." Thereupon a suit was instituted to settle this question and compel the mayor, by mandamus, to issue the bonds. In giving its decision the court said: "We think it was sufficient that two-thirds of all the qualified voters who voted at the special election, authorized for the express purpose of determining that question, on public notice duly given, voted in favor of the proposition. This was the mode provided by law for ascertaining the sense of the qualified voters of the city upon that question. There would appear to be no other practicable way in which the matter could be determined." The writ of mandamus was accordingly issued. The same year the question came up again in State v. Binder, 38 Mo. 450. In that case the point arose under the refreshment act of St. Louis, which was considered in State v. Winklemeier. It appeared that the authority to grant the permission in question was given at a special election called for that purpose, and that out of a vote of seven thousand and eighty-five, five thousand and fifty-one were in favor of the grant and two thousand and thirty-four against it. The cases of State v. Winkelmeier and State v. St. Joseph were both referred to, and after quoting from the opinion in the latter case, it was said: We think the case made here comes within the reasoning and the principles of that decision, namely, that an election of this kind, authorized for the very purpose of determining that question, on public notice duly given, was the mode contemplated by the legislature, as well as by the law, for ascertaining the sense of the legal voters upon the question submitted, and that there could not well be any other practicable way in which such a matter could be determined." These decisions had all been made, and had never been questioned, when the act of 1868, now under consideration, was passed. They were also in force, as evidence of the law of the State, when the bonds in controversy were issued, and, so far as we are advised, there has been no disposition since on the part of the courts of the State to modify them. In State v. Sutterfield, 54 Mo. 391, the question was as to the construction of another clause in the constitution, and the decision was placed expressly on the ground of a difference between the two provisions. That court has in the strong

est language intimated its unwillingness to interfere with its previous adjudications when property has been acquired or money invested under them. Smith v. Clark County, 54 Mo. 58; State v. Sutterfield, supra. In St. Joseph Township v. Rogers, 16 Wall. 644, this court gave the same construction to the phrase, "a majority of the legal voters of a township," as used in an Illinois municipal aid statute, and Mr. Justice Clifford, in delivering the opinion, uses this language: "It is insisted by the plaintiff that the legislature in adopting the phrase, 'a majority of the legal voters of the township,' intended to require only a majority of the legal voters of the township voting at an election notified and held to ascertain whether the proposition to subscribe for the stock of the company should be accepted or rejected, and the court is of the opinion that such is the true meaning of the enactment, as the question would necessarily be ascertained by a count of the ballot." Among other authorities cited in support of this proposition is the case of State v. Mayor of St. Joseph, supra. This we understand to be the established rule as to the effect of elections in the absence of any statutory regulation to the contrary. All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect is clearly expressed. Louisville R. R. Co. v. Nashville, 1 Sneed, 692; Taylor v. Taylor, 10 Minn. 124; The People v. Warfield, 20 III. 164; The People v. Garner, 47 id. 252; The People v. Wiant, 48 id. 266. We conclude, therefore, that the Supreme Court of Missouri, when it decided the case of State v. Linn County, and held the law in question to be constitutional, did not overlook the objection which is now made, but considered it settled by previous adjudications. That case is, therefore, to be considered as conclusive upon this question as well as upon that which was directly considered and decided, and as a rule of State statutory and constitutional construction, is binding upon us. It follows that our decision in Harshman v. Bates County, in so far as it declares the law to be unconstitutional, must be overruled.

It is further insisted that the bonds sued upon are invalid because the railroad company to which the subscription was voted was not incorporated until the day of the election, and Rubey v. Shain, 54 Mo. 277, is cited in support of this objection. That case only decides, if it is to be regarded as authority, that a subscription cannot be made by a township until the company is incorporated, or rather that township subscriptions cannot be used to bring the company into existence. They are, to use the language of the judge in his opinion, not to be made the "nucleus around which aid is to be gathered." Here the company had been incorporated when the subscription was made. The decision relied upon, therefore, does not apply, and we are not inclined to extend its operation. This makes it unnecessary to inquire whether this defense could be maintained as against an innocent holder.

It is finally objected that as the bonds are in fact the bonds of the township, no action can be maintained upon them against the county. Without undertaking to decide what would be the appropriate

form of proceeding to enforce the obligation in the State courts, it is sufficient to say that in the courts of the United States we are entirely satisfied with the conclusions reached by the court below, and that a judgment may be rendered against the county, to be enforced, if necessary, by mandamus against the County Court or the judges thereof to compel the levy and collection of a tax in accordance with the provisions of the law under which the bonds were issued. The reasoning of the learned circuit judge in Jordan v. Cass County, 3 Dill. 185, is to our minds perfectly conclusive upon this subject, and we content ourselves with a simple reference to that case as authority upon this point.

The judgment of the Circuit Court is affirmed.

GLOBE MUTUAL LIFE INSURANCE CO. OF NEW YORK, plaintiff in error, v. WOLFF.

By conditions in a life insurance policy, the same was to become void in case of failure to pay the regular premium on the day it was due, and also if the insured, without the consent of the company, should reside within a certain prohibited district. It was, however, provided that even after the day for the payment of the premium had passed, the company would waive the failure upon being satisfied that the insured was still in health, and it was customary for an agent of the company to receive premiums after they were due, and his acts in doing so were sanctioned by the company, who furnished him with renewal receipts for the purpose. The agent had, however, no authority to waive the forfeiture arising from residence in the prohibited district. The insured, who had failed to pay a premium when due and was residing within the prohibited district without consent, was taken sick with yellow fever, of which he shortly after died. While he was sick his agent called upon the insurance agent and paid the premium and received a receipt renewing the policy for one year, signed by the company and countersigned by its agent. The agent of the insured was asked nothing about the health of the insured, and he said nothing. Held, that while the insurance agent would be presumed to have authority to waive the failure to pay the premium when due, he would not be to waive the forfeiture caused by residing in the prohibited district, and the receipt of the premium by him and issue of the renewal receipt would not operate as a waiver. Even for the purpose of making the waiver of the failure to pay effective, the insurance agent should have been informed of the state of the health of the insured.

error to the Circuit Court of the United States for the Eastern District of Missouri. The opinion states the case.

Mr. Justice FIELD delivered the opinion of the court.

This was an action on a policy of insurance issued by the Globe Mutual Life Insurance Company of New York on the 5th of November, 1869, upon the life of Charles H. Garber, commencing on the first of that month. The insurance was for the amount of $5,000, and was effected by the wife of the insured for her sole benefit. The premium designated was made payable annually on the 1st of November. The policy stipulated for the payment of the amount of the insurance within sixty days after due notice and proof of the death of the insured, subject, however, to certain express conditions. One of these conditions provided that if the premiums were not paid on or before the days mentioned for their payment, the company should not be liable for the sum insured or any part of it, and that the policy should cease and determine. Another condition provided that if the insured re

sided in any part of the United States south of the 33d degree of north latitude, except in California, between the 1st of July and the 1st of November, without the consent of the company previously given in writing, the policy should be null and void. And the policy declared that agents of the company were not authorized to make, alter or discharge contracts, or waive forfeitures.

The insured died at the city of New Orleans on the 11th of November, 1872. Between the 1st of July and the 1st of November of that year he had resided at that city which is south of the 33d degree of north latitude, without the previous consent in writing of the company; and the annual premium due on the first of that month was not paid on or before that day.

By this residence of the insured within the prohibited district of country during the period designated, without the previous consent of the company, and the failure of the holder of the policy to pay the annual premium when it became due, the policy, by its express terms, was forfeited, and the company released from liability, unless the forfeiture was waived by the action of the company, or of its agents authorized to represent it in that respect.

The waiver of the forfeiture for the non-payment of the premium due on the 1st of November, 1872, is alleged on the ground that the premium was subsequently paid to an agent of the company, he delivering its receipt for the same, signed by its secretary and countersigned by the manager and cashier of the local office, the plaintiff contending that the company, by its previous general course of dealing with its agents, and its practice with respect to the policy in suit, had authorized the premiums to be paid and the agent to receive the same after they became due, and thus had waived any right to a strict compliance with the terms of the policy as to the payment of premiums.

The waiver of the forfeiture arising from the residence within the prohibited district between the 1st of July and November, without the previous consent of the company, is also alleged from the subsequent payment of the premium and its receipt by the local agent, the plaintiff contending that the premium was received with knowledge by the agent of the previous residence of the insured within the prohibited district.

It appears from the record that the deceased was taken sick with the yellow fever at New Orleans on the 6th or 7th of November, 1872, and died on the 11th of the month, between the hours of eleven and twelve in the forenoon. On the previous day a telegram was sent by Mrs. Garber from New Orleans to a gentleman in St. Louis, directing the latter to go to the agency of the company in that city, at which the policy was issued, and pay the premium due on the first of the month. Accordingly on the following morning, at about nine o'clock, the premium was paid by this gentleman, and a renewal receipt was thereupon delivered to him. This renewal receipt was dated in New York and signed by the secretary of the company. It not only acknowledged the receipt of the premium, but continued the policy in force for another year. The practice of the company was to send to its agents in St. Louis receipts in this form signed by its secretary, to be countersigned by the local manager and cashier before being used. The receipt given was thus

countersigned. The payment was made in the present case to a boy in the office of the agent, and by him the renewal receipt was delivered. It was his habit to receive premiums and deliver the proper renewal receipt in the absence of the agent. In this case the money was given by him on the latter's coming to the office the same morning. The agent credited the amount to the company in his semi-monthly account transmitted to the home office. The gentleman who paid the premium was not aware at the time that the insured was sick, and no inquiries were made by the boy or the agent as to his health. It is conceded that they had no information on the subject. A few days afterward the agent learned of the death of the insured, and of the sickness which was the immediate cause of it, and informed the home office. The company at once telegraphed the agent to return the premium and demand a surrender of the renewal receipt. The money was accordingly tendered to the gentleman who paid it, and a surrender of the renewal receipt demanded, but the tender was not received, nor the receipt returned.

The conditions mentioned in the policy could, of course, be waived by the company, either before or after they were broken; they were inserted for its benefit, and it depended upon its pleasure whether they should be enforced. The difficulty in this case, and in nearly all cases where a waiver is alleged in the absence of written proof of the fact, arises from a consideration of the effect to be given to the acts of agents of the company in their dealings with the insured. Of course such agents, if they bind the company, must have authority to waive a compliance with the conditions upon a breach of which the forfeiture is claimed, or to waive the forfeiture when incurred, or their acts waiving such compliance or forfeiture must be subsequently approved by the company. The law of agency is not different when applied to the acts of an agent undertaking to continue a policy of insurance, and when applied to any other act for which his principal is sought to be held responsible.

The principle that no one shall be permitted to deny that he intended the natural consequences of his acts when he has induced others to rely upon them, is as applicable to insurance companies as it is to individuals, and will serve to solve the difficulty mentioned. This principle is one of sound morals as well as of sound law, and its enforcement tends to uphold good faith and fair dealing. If, therefore, the conduct of the company in its dealings with the insured in this case, and with others similarly situated, has been such as to induce a belief that so much of the contract as provides for a forfeiture if the premium be not paid on the day it is due, would not be enforced if payment were made within a reasonable period afterward, the company ought not in common justice to be permitted to allege such forfeiture against one who has acted upon the belief and subsequently made the payment. And if the acts creating such belief were done by the agent and were subsequently approved by the company, either expressly or by receiving and retaining the premiums, the same consequences should follow.

This principle applied to the case at bar will render the question presented one of easy solution. The company, notwithstanding the provision in the policy that its agents were not authorized to waive forfeitures, sent to them renewal receipts signed by its sec

retary, to be used when countersigned by its local manager and cashier, leaving their use subject entirely to the judgment of the local agent. The propriety of their use, in the absence of any fraud in the matter, could not afterward be questioned by the company. Accompanying these receipts was a notice, printed on the same paper, that policies which became null for non-payment might be renewed at the home office, within a reasonable time, upon furnishing satisfactory evidence of good health, such satisfactory evidence being left to the judgment of the local agent, and the renewal by the home office consisting of a receipt signed by its secretary, transmitted to such agent, to be used when countersigned by the local manager and cashier. It was the habit of the agent to give such renewal receipts whenever the premiums were paid after the time stipulated, and his accounts to the home office showed such subsequent payment. His action in this respect was not questioned by the company, and the premiums were retained by it without any pretense that the policies had ceased to be obligatory for want of punctuality in their payment. The mode of dealing by the agent with persons taking out policies at the local office, his use of renewal receipts, his acceptance of premiums after the day on which they were payable, were all known to the home company, and its retention of the premiums thus received was an approval of his acts. So far, then, as the waiver of the forfeiture incurred for non-payment of the premiums is concerned, it is clear that the company by its course of dealing had, notwithstanding the provision of the policy, left the matter to be determined by its local agent to whom the renewal receipts were intrusted.

But so far as the forfeiture arose from the residence of the insured within the prohibited district, the case is different. There is nothing in the acts of the company which goes to show that it ever authorized its agents to waive a forfeiture thus incurred, or that it ever knew of any residence of the insured within the prohibited district until informed of his death there. In every case where premiums were received after the day they were payable, the fact that a forfeiture had been incurred was made known to the company from the date of the payment, and the retention of the money constituted a waiver of the forfeiture; but no information of a forfeiture on any other ground was imparted by the date of such payment. The agent receiving the premium, in the case at bar, testified that he knew nothing of the residence of the insured within the prohibited district during the excepted period, and the evidence in conflict with his testimony was slight. He knew that the insured had a place of business there, and he was permitted to make occasional visits there within the prohibited period, and to reside there at other times. Every thing produced as evidence of knowledge of residence within the prescribed district is consistent with these occasional visits and residence at other times than during the excepted period. But even if the agent knew the fact of residence within the excepted period, he could not waive the forfeiture thus incurred without authority from the company. The policy declared that he was not authorized to waive forfeitures, and to the provision effect must be given, except so far as the subsequent acts of the company permitted it to be dis regarded. There is no evidence that the company in any way, directly or indirectly, sanctioned a disregard

of the provision with reference to any forfeitures except such as occurred from non-payment of premiums. As soon as it was informed of the residence of the insured within the prohibited district, it directed a return of the premium subsequently paid. It would be against reason to give to the receipt of the premium by the agent, under the circumstances stated, the efficacy claimed. The court, in its instructions, treated the receipt of the premium by the agent, with knowledge of the previous residence of the insured within the prohibited district, if the agent had such knowledge, as itself a sufficient waiver of the forfeiture incurred, without any evidence of the action of the company when informed of such residence, and in this respect we think the court erred. It is essential that the company should have had some knowledge of the forfeiture before it can be held to have waived it.

It is true that where an agent is charged with the collection of premiums upon policies, it will be presumed that he informs the company of any circumstances coming to his knowledge affecting its liability, and if subsequently the premiums are received by the company without objection, any forfeiture incurred will be presumed to be waived. But here there was no ground for any inference of this kind from the subsequent action or silence of the company. There was no evidence of a disregard of the condition as to the residence of the assured in any previous year, and consequently there could be no inference of a waiver of its breach from a subsequent retention of the premium paid. This is a case where immediate enforcement of the forfeiture incurred was directed when information was received that the condition of the policy in that respect had been broken.

Not only should the company have been informed of the forfeiture before it could be held by its action to have waived it, but it should also have been informed of the condition of the health of the insured at the time the premium was tendered, upon the payment of which the waiver is claimed. The doctrine of waiver as asserted against insurance companies to avoid the strict enforcement of conditions contained in their policies is only another name for the doctrine of estoppel. It can only be invoked where the conduct of the companies has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured if they were afterward allowed to disavow their conduct and enforce the conditions. To a just application of this doctrine it is essential that the company sought to be estopped from denying the waiver claimed should be apprised of all the facts of those which create the forfeiture and of those which will necessarily influence its judgment in consenting to waive it. The holder of the policy cannot be permitted to conceal from the company an important fact, like that of the insured being in extremis, and then to claim a waiver of the forfeiture created by the act which brought the insured to that condition. To permit such concealment, and yet to give to the action of the company the same effect as though no concealment were made, would tend to sanction a fraud on the part of the policy-holder, instead of protecting him against the commission of one by the company.

It follows that the judgment must be reversed and the cause remanded for a new trial; and it is so ordered.

NOTES OF RECENT DECISIONS. Banking: ultra vires : limitation of authority of directors of bank. Under general authority to the president and cashier of a bank, giving them entire control of all financial matters of the bank, unrestricted by any by-laws or rules of the board of directors or stockholders, they have no power to use the property of the bank in the private business, or for the individual benefit of one of themselves. Under such general authority they cannot bind the bank by any contract to which they, or either of them, are parties. W., a director of the bank, owed it a note of $1,000, and held $1,000 of its stock. T., the president, made an agreement with him, to purchase the stock for himself, and to carry out this agreement the president received the stock from W., handed it to the cashier, instructing him to hold it in place of W.'s note, and to surrender the note to W., saying that he, the president, would pay the amount to the bank. The cashier received the stock, stamped the note paid, and surrendered it to W. Held, that the bank, there being no ratification of the transaction, was not bound by it, and that it did not discharge W.'s liability to the bank upon the note. Sup. Ct., Minnesota, Nov. 30, 1877. Rhodes, assignee, v. Webb (N. W. Rep.).

Constitutional law: act requiring license to employ laborers to work out of State valid. — The act of February 16, 1876, requiring any person engaged in hiring laborers in this State for employment beyond the limits of the same, to procure a license and pay therefor $100, and making it penal to carry on [the business without such license, is constitutional. Money properly paid into the county treasury, by a person who has applied for and obtained the license, cannot be recovered back, by mandamus or otherwise. Sup. Ct., Georgia, Oct. 9, 1877. Shepherd v. Taylor.

Contract: construction of: sale of goods: what constitutes agency.- Where A agreed to furnish goods to B, at schedule prices, less a certain discount, and B was to pay all freight, storage, and other charges, and, at the end of every three months, was to settle for all goods sold by him or shipped from his warehouse, by giving his notes for the stipulated price, and, at the end of a year from the date of the agreement, to settle, if required, for all goods remaining on hand, held, that this arrangement created the relation of seller and buyer, and not that of principal and agent or factor, and that on the bankruptcy of B, A could not recover from his assignees the proceeds of goods sold by B and collected by them, or notes of purchasers of such goods in their hands as assignees. U. S. Dist. Ct., California, Nov. 22, 1877. In re Linforth, Kellogg & Co.

Fire insurance: stipulations in policy: warranty: effect of statute as to avoidance: ownership.-The policy stipulated that the application should be considered a part thereof and a warranty, and that any false representations as to the condition, situation or occupancy should render it void; also, that if the interest of the insured was any other than that of sole and unconditioned ownership, it must be so expressed or the policy should be void; also, if the house should remain vacant for ten days without notice or consent, the policy should be void. Held, that, if the house was not occupied as represented, the contract was violated at its inception, and never became binding on the company; that a statement in the policy of the existing use of the premises was a warranty that they were so used in presenti; that the policy was avoided by any false statement, whether