there are no shipping articles, and no prescribed voyage stated, the implied contract or legal presumption is that he is to be returned to the port of shipment. Were this otherwise, most disastrous consequences might often result. The doctrines as to seagoing vessels are well settled, and the principles on which they have been asserted apply to internal navigation, in the absence of any congressional legislation upon the subject. If a mariner shipped on a vessel bound to Fort Benton, Montana, it could not be fairly urged, that in the absence of an express agreement, he could quit the vessel at Fort Benton, and with impunity disable her from returning; nor on the other hand, that he could be left in that distant region without means of returning. The duties are reciprocal.

This court had occasion years ago to pass upon a like question, occurring upon the upper Missouri. Reported cases seem not to be fully in accord; yet when carefully considered, are not different in principle. A mariner wrongfully discharged may work his passage home in the same capacity as that for which he was originally engaged, and thus save the cost of transportation to the owners of the vessel. In the absence of such an opportunity he may return as a passenger. In seagoing voyages, where the destination is to a foreign port specified, and a direct return to the port of shipment, it has been decided that his wages should be paid up to the time of the vessel's return, and it has also been decided that his wages should run to the date of his return in another vessel. Circumstances may make one or the other of these rulings applicable as to foreign voyages.

In the internal navigation of this country it is evident that no arbitrary rule can obtain, in justice to the interests involved, for, as in the case under consideration, the return could not be made in a reasonable time on a vessel, because navigation was closed by ice. The mariners, being discharged at a port whence by railroad they could return home in a few days, would not have been justified in waiting until spring for a vessel to take them to their port of shipment. Hence, the rule for their compensation is the amount of their necessary transportation and expenses, together with their rate of wages from date of discharge to their arrival at the port of shipment; for the contracts were not for a specified time of employment.

It might have been that their term of service would have ended sooner than it did; for the voyage might have been made only to Cincinnati or Louisville and back to Pittsburg. It must however be always considered that mariners stand in the relation of wards of court, and that inasmuch as it is in the power of the master and owners to make their contracts definite by shipping articles or otherwise, the legal presumption arises, if they do not specify in their agreements to the contrary. The differences in river navigation from seagoing voyages have been often considered in this court, and this case furnishes an apt illustration of what maritime principles require. From various causes a steamboat may have to procure additional mariners in different stages of her route, instead of an entire crew for the whole voyage; yet the same rule must apply to each.

It is very easy for officers to state to a mariner definitely what his employment is to be, whether to be discharged at the port of arrival or otherwise, if they wish to limit his term of service or reserve a right to discharge him before his return to the port of shipment. Brown v. Lull, 2 Sum. 443, 449; In re Glocester, 2 Pet. Adm. 403, 405; In re Rovena, 1 Ware, 309; The Exeter, 2 Rob. Adm. 261; Beaver, 3 id. 92; Sullivan v. Morgan, 11 Johns. (66) 67; Hoyt v. Wildfire, 3 id. 518, 520; 28 Mo. 280; id. 338; Rice v. Polly & Kitty, 2 Pet. Adm. 420, 423; The Union, Blatchf. & H. 568; Farrell v. French, id. 275; Emerson v. Howland, 1 Mason, 45; Nevitt v. Clarke, Olc. 316; Jones v. Sears, 2 Sprague,

43; Brunent v. Taber, 1 id. 243; Hutchinson v. Coombs, 1 Ware, 65; Sheffield v. Page, 1 Sprague, 285, 288; Sheffield v. Page, 2 Curt. C. C. 377; Hunt v. Colburn, 1 Sprague, 215; Nimrod, 1 Ware, 9; Anderson v. Solon, Crabbe's Adm. 17; The Gazelle, 1 Sprague, 378; Burke v. Buttmann, 1 Lowell, 191; The Elizabeth, 2 Dodson, 402, 412; Brooks v. Dorr, 2 Mass. 39; The John Martin, 2 Abb. (U. S.) 172, 181; The B. F. Bruce, Newberry, 539; The Crusader, 1 Ware, 437; White v. Atkins, 8 Cush. 367; Rossiter v. Cooper, 23 Vt. 522; Heim v. Wolf, 1 E. D. Smith, 70.

NEW YORK COURT OF APPEALS ABSTRACT.

ASSUMPTION -OF DEBT BY ONE ACQUIRING CONTRACT TO SELL REAL ESTATE FROM VENDEE as SECURITY - STATUTE OF FRAUDS.-(1) Plaintiff executed to H. a contract in which he agreed to convey to H., upon the payment of $1,350, $300 upon the execution of the contract and the balance in five equal annual payments, a lot of land. The $300 was paid and interest at the end of the first year on the balance. Thereafter H. conveyed the contract to defendant to whom he was indebted, in consideration of the cancelling of the debt, and of an agreement on the part of defendant to let him have in trade sufficient to amount with the debt to $300. There was also an agreement that upon repaying the amount advanced H. might redeem the contract. Plaintiff brought action against defendant for the amount due on the contract, on the ground that defendant had promised H. to pay what should fall due upon the contract, and that this promise inured to the benefit of plaintiff. The only evidence of such an agreement was in the testimony of H. which did not show any express promise to that effect. Held, that the action could not be sustained. There was no absolute promise on the part of defendant to pay the debt, no assumption so as to make it the debt of defendant. The case falls within Garnsey v. Rogers, 47 N. Y. 237, and the transaction between H. and defendant gave no right of action to plaintiff. In the case cited the right of redemption had been exercised; in this it had not, but the difference is immaterial. The rule depends upon the existence of the right and not upon its exercise. The cases Ricard v. Sanderson, 41 N. Y. 179; Cooley v. Howe Machine Co., 53 id. 620; Campbell v. Smith, 71 id. 26, do not conflict with this rule. In all of them the covenant to pay was absolute and the liability fixed. (2) It was claimed that defendant had obtained from plaintiff an extension of time for the payment of some of the installments due, and had promised to pay them in consideration of which an extension was given. Held, that no such cause of action was set up. The action was on defendant's promise to H. (3) Held, also, that the promise claimed being to pay the debt of another, was invalid under the statute of frauds, not being in writing, even Watthough supported by a sufficient consideration. son v. Randall, 20 Wend. 201; Mallory v. Gillett, 21 id. 411; Burtis v. Thompson, 42 id. 246. Judgment affirmed. Roe, appellant, v. Barker. Opinion by Finch, J. [Decided Nov. 9, 1880.]

NEGLIGENCE -- OMISSION TO RING BELL AND KEEP FLAGMAN AT STREET CROSSING IF NOT CONTRIBUTING TO INJURY FROM RAILROAD TRAIN NOT NEGLIGENCE.

In an action against a railroad company for injury to plaintiff, a boy ten years old, caused by being run over early in the evening by defendant's engine at a street crossing, it was claimed that no bell was rung when the engine approached the crossing. It appeared, however, that plaintiff saw the engine, which was backing, approaching and tried to run across in front of it, but his foot caught between a rail and the planking and he fell down and was run over. Held, that as the object of ringing a bell upon an engine is to warn

people of its approach, it was not negligence contributing to the accident to omit to ring it, as plaintiff had all the notice that ringing would have given. A flagman was usually kept at this crossing, but he was absent on this occasion. It was not the duty of defendant to keep a flagman at that crossing and plaintiff did not know that one had been usually kept. Held, that there was no negligence on the part of the defendant in this particular. McGrath v. New York Central, etc., R. Co., 59 N. Y. 468; S. C., 63 id. 522. The regular fireman was not on the engine at the time, and there was no light on the rear of the engine and it was dark. Held, as it appeared that plaintiff plainly saw the engine approaching, there was no negligence. Judgment reversed and new trial granted. Pakalinskey v. New York Central & Hudson River Railroad Co., appellant. Opinion by Earl, J., Folger, C. J., and Rapallo and Miller, JJ., concurred; Andrews, Danforth and Finch, JJ., dissented.

[Decided Nov. 9, 1880.]

TENDER

-PLEADING, ADMITS THE SAME TO BE DUE — OF DEBT WITHOUT COSTS AFTER SUIT BROUGHT, NO AVAIL-PRACTICE- DECISION IN WRITING UNDER CODE, SECTION 1010. (1) In an action to foreclose a mortgage for $2,500, defendant averred a tender of $2,568, which was made after suit brought, in payment of the mortgage debt. Held, that there was no issue of fact as to whether there was any thing due on the mortgage at the commencement of the suit. A tender admits the cause of action stated in the complaint to the amount tendered. Johnson v. Ins. Co., 7 Johns. 315; Spalding v. Vandercook, 2 Wend. 431; Roosevelt v. New York, etc., R. Co., 45 Barb. 554. Here the amount claimed in the complaint was $2,500 and interest from May 1. The tender was made September 19, and was for a few cents more than the amount claimed and interest, but no tender was made for costs, and there was no order for the tender of the debt without a tender of the costs.. Held, that the defendant failed to satisfy the suit by the tender he made and plaintiff was entitled to a judgment against him. There was no need of proof of the amount of the debt before it could be known that the amount tendered was not enough to cover costs, as the allegation of the answer was that it was in payment of the debt, and costs, though incidental to the debt, are not a part of it. There was no trial of an issue of fact and no findings of fact were needed to sustain a judgment. pleadings contained them. It was like a demurrer ore tenus, though not one in technical form. (2) It was claimed that there was no decision in writing filed, as required by Code, section 1010. Held, that the order for judgment would constitute a sufficient decision in writing in this case. Even conceding that it was not, it could not be taken advantage of by an order at Special Term, to set aside the judgment, but only by a motion for a new trial. Order affirmed. Wells, appellant. Opinion by Folger, C. J. [Decided Nov. 16, 1880.]

The

Eaton v.

TRADE-MARK-BELONGING TO FIRM-SALE TO PARTNER OF PERSONAL PROPERTY AND PREMISES WHERE BUSINESS CONDUCTED DOES NOT INCLUDE TRADEMARK. For more than three years prior to 1877, plaintiff and defendants carried ou business in the city of Brooklyn, manufacturing glass. They had adopted the word "silex" as a trade-mark for the designation of their goods. In 1877 the firm was dissolved, and defendants sold to plaintiff their interest in the real estate where the business was conducted, and in certain personal property used in conducting it, and thereafter the plaintiff continued the same business at the same place, using the same trade-mark. There was a deed of the real estate to plaintiff and a bill of sale of the personal property. Nothing was said at the time of the sale about the good will of the

business or the trade-mark. There was nothing in the bill of sale about the trade-mark, and there was no agreement on the part of defendants that they would not engage in manufacturing the same kind of goods, or that plaintiff should have the exclusive right to carry on the business in the city of Brooklyn. There was no fraud or mistake. Held, that plaintiff did not have the exclusive right to use the word "silex" as a trade-mark, but that defendants had an equal right with him to its use. The deed and bill of sale must be held to embody the contract between the parties. Pickering v. Dawson, 4 Taunt. 779; Mumford v. MePherson, 1 Johns. 414; Durgin v. Ireland, 14 N. Y. 322; Pollen v. Leroy, 30 id. 549. A trade-mark is a species of property which may be sold or transmitted by deed, with the business in which it has been used. Leather Cloth Co. v. American Leather Cloth Co., 4 De Gex, J. & S. 137; S. C., 11 H. L. Cas. 523; G. & H. Manufact. Co. v. Hall, 61 N. Y. 226. The trade-mark did not pass as included in what was sold. It was no necessary part of what was sold. It did not import that the goods upon which it was placed were manufactured or produced in any particular locality. In this respect the case was unlike Congress, etc., Spring Co. v. High Rock, etc., Spring Co., 45 N. Y. 291. Under the circumstances it was incumbent upon plaintiff to show that the exclusive right to use the trade-mark was actually, by agreement, vested in him. This he failed to do. Order affirmed and judgment absolute for defendants. Huwer, appellant, v. Dannenhoffer. Opinion by Earl, J.

[Decided Nov. 9, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW — -'IMPAIRING CONTRACT — STATUTE IMPEDING COLLECTION OF JUDGMENT. - A State statute requiring that judgments against a city before they should be paid should be registered with the comptroller of the city, held, not unconstitutional as impairing the obligation of a contract. The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened. The Latin proverb, qui cito dat bis dat he who gives quickly gives twice has its counterpart in a maxim equally sound, qui serius solvit, minus solvit — he who pays too late pays less. Any authorization of the postponement of payment, or of means by which such postponement may be effected, is in conflict with the constitutional inhibition. There is, however, nothing in the statute referred to which impeded the collection of judgments or prevented resort to other remedies if their payment was not obtained. The registry was a convenient means of informing the city authorities of the extent of the judgments, and that they had become executory, to the end that proper steps might be taken for their payment. It did not impair existing remedies. Decree of Supreme Court of Louisiana affirmed. State of Louisiana ex rel. Ranger, plaintiff in error, v. City of New Orleans. Opinion by Field, J. [Decided Nov. 22, 1880.]

EVIDENCE-COMPETENCY OF WITNESS IN FEDERAL COURTS WHEN DETERMINED BY STATE LAW AND WHEN NOT.This action, which was tried in the United States Circuit Court for the Southern District of Illinois, was between a bank and an executor. One W. was called and testified as a witness for the bank, to a conversation between him and the testator touching some of the matters involved in the controversy.

W. was interested in the issues to be tried, and was, under the laws of Illinois, incompetent to testify to the conversation, and was objected to for that reason by the counsel for the executor. Held, that W. was competent to testify under the provision of United States Revised Statutes, section 858, which declares that "in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried. Provided, that in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law and in equity and admiralty." It is quite true that the 34th section of the Judiciary Act of 1789-preserved, totidem verbis, in section 721 of the present revision of the statutes- has been construed as requiring the Federal courts, in all civil cases at commou law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the States in which such courts respectively sit. Vance v. Campbell, 1 Black, 430; McNeal v. Holbrook, 13 Peters, 84; Wright v. Bales, 2 Bl. 537; Sims v. Hundley, 6 How. 6; Byan v. Brindley, 1 Wall. 68. But that section of the act of 1789, as does section 721 of the Revised Statutes, expressly excepts from its operations cases "where the Constitution, treaties, or statutes of the United States otherwise provide." The existing statutes of the United States do "otherwise provide," in that they forbid the exclusion of a witness upon the ground that he is a party to, or interested in, the issue, in any civil action whatever pending in a Federal court, except in a certain class of actions, which do not embrace the one now before us. "In all other respects," that is, in all cases not provided for by the statutes of the United States, the laws of the State, in which the Federal court sits, constitute rules of decision as to competency of witnesses in all actions at common law, in equity or in admiralty. It is clear, therefore, that the law of Illinois could have no bearing upon a case which is embraced, or has been provided for, by the Federal statute. Judgment of U. S. Circuit Court, S. D. Illinois, affirmed. Potter, plaintiff in error, v. Third National Bank of Chicago. Opinion by Harland, J. [Decided Nov. 8, 1880.]

MARITIME LAW-RULE IN CASE OF COLLISION. — - In cases of collision the rule is well settled that when the fault is wholly on one side the party in fault must bear his own loss and compensate the other party, if such party have sustained any damage. If neither be in fault, neither is entitled to compensation from the other. If both are in fault the damages will be divided. 1 Parsons on Shipp. & Adm. 525, 526: The Morning Light, 2 Wall. 556; Union S. S. Co. v. N. Y. & Va. S. S. Co., 24 How. 313. The want of a proper watch is a fault of great weight. 1 Parsons on Shipp, & Adm. 576, 577; The Sapphire, 11 Wall. 170; The Mary T. Wilde, Taney's Decis. 567; The Lydia, 4 Benedict, 523. In a case of collision the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant. 1 Parsons, supra, 529 and note 2. Accordingly, where a vessel named the Newell, which was anchored at night and in a severe snowstorm, without a sufficient watch on deck, was run into by a vessel named the Clara, which was well manned and had proper lights and a proper look-out, and the collision would not have oc

curred if the Newell had had a sufficient watch on deck at the time, held, that the Clara was not liable for the damage done to the Newell by the collision. Decree of U. S. Circuit Court, E. D. New York, affirmed. Shepherd et al., appellants, v. Schooner Clara et al. Opinion by Swayne, J.

[Decided Nov. 29, 1880.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

JUDICIAL SALE - WHEN ADVANCE BID AFTER SALE GROUND FOR OPENING-INTERVENTION OF THIRD PERSON. - In an application to set aside a judicial sale upon the ground of gross inadequacy of price, it is not essential that the amount of the advance bid should be actually paid into court. It is essential, however, that such advance bid should be absolute and unconditional. Under equity rule 19, adopting the practice of England so far as it is consistent with "our local circumstances and conveniences," a third person can intervene and have a sale set aside, upon offering a sufficient advance in price and paying all the expenses incurred by the previous purchaser. Cases referred to: Lucas v. Moore, 2 Lea, 1; Delves v. Delves, L. R., 20 Eq. 77; Railroad Co. v. Soutter, 5 Wall. 660; Lawrence v. Dale, 3 Johns. Ch. 39; Duncan v. Dodd, 2 Paige, 99; Am. Ins. Co. v. Oakley, 9 id. 259; Click v. Burris, 6 Heisk. 539; Glenn v. Glenn, 7 id. 367; Atkison v. Murfree, 1 Tenn. Ch. 51; Ins. Co. v. Hamilton, 3 id. 228; Vaughn v. Smith, id. 368; Atchison v. Murfree, id. 728; Barlow v. Osborne, 6 H. L. Cas. 556; Garstone v. Edwards, 1 Sim. & S. 20; Brookfield v. Bradley, id. 23; Watson v. Birch, 2 Ves. 51; S. C., 4 Bro. Ch. 178; Upton v. Lord Fenus, id. 700; Andrews v. Emerson, 7 id. 420; Morice v. Bishop of Dunham, 11 id. 65; White v. Wilson, 14 id. 151; Farlow v. Weildon, 4 Madd. 460; Blossom v. Railroad Co., 3 Wall. 196; Smith v. Arnold, 5 Mason, 414; S. C., 1 Wall. 655; Savery v. Sypher, 6 id. 157; Anson v. Twogood, 1 Jac. & W. 637; Vesey v. Elwood, 3 Dr. & W. 74; Lathrop v. Nelson, 4 Dill. 194; Twigg v. Fifield, 13 Ves. 517; Ex parte Minor, 11 id. 559; Wren v. Kirton, 8 id. 502; Moore v. Watson, 4 Cold. 64; Owen v. Owen, 5 Humph. 352; The Sparkle, 7 Ben. 528; Ottey v. Pensam, 1 Hare, 322; Gray v. Brignardello, 1 Wall. 627; Freeman v. Freeman, 2 C. E. Green, 49; Wilson v. Brannan, 27 Cal. 258. U. S. Circ. Ct., W. D. Tennessee, July, 1880. Blackburn v. Selma Railroad Co. Opinion by Hammond, D. J. JURISDICTION -SERVICE OF PROCESS RAILROAD COMPANY OF ONE STATE LEASING RAILROAD IN ANOTHER, NOT CITIZEN OF LATTER STATE.-Section 118, chapter 28, of the General Statutes of Vermont, provided that the lessee of a railroad within the State, residing out of the State, should appoint one person resident in the State, upon whom service of every kind of process known to the laws of the State might at any time be made, and that all such service upon tho person so appointed should be a legal service upon tho lessee. Held, that service upon the agent of the nonresident lessee of a railroad within the State, appointed in accordance with the terms of this section, and served in the manner provided by the laws of the State for the service of such process, would suffice to vest the Circuit Court for the district of Vermont with jurisdiction of an action against such non-resident lessee. Ex parte Schollenberger, 96 U. S. 369; Railroad v. Harris, 12 Wall. 65. The case, Baltimore & Ohio R. Co. v. Noels (Va.), 21 Alb. L. J. 477, holding that a corporation of Maryland leasing and operating a railroad in Virginia was so a citizen of Virginia that a suit against it by a citizen of Virginia was not removable to the Federal courts, dissented from. In Knapp v.

* Appearing in 3d Federal Reporter.

Troy & Boston R. R. Co., 20 Wall. 117, it was held that this defendant, while lessee, operating this road in Vermont, and the plaintiff here, who was a citizen of New York, were citizens of the same State of New York, so that the case was not removable. U. S. Circ. Ct., Vermont, May, 1880. Brownell v. Troy & Boston Railroad Co. Opinion by Wheeler, D. J.

MARITIME LAW-JURISDICTION OF ADMIRALTY AS TO CREW OF FOREIGN VESSEL.-The nationality of a foreign vessel, and not that of the crew, should regulate the action of a court of admiralty in assuming jurisdiction over a controversy between the officers and seamen of such vessel. And in the investigation of a case where seamen asked to be discharged from further service on a Swedish ship and for the payment of wages, held, that all the crew of the ship must be deemed Swedish subjects, notwithstanding it appeared that some of them were in fact citizens of other nationalities. The Nina, L. R., 2 P. C. 39. U. S. Dist. Ct., Maine, Sept. 13, 1880. The Amalia. Opinion by Fox, D. J.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
SEPTEMBER, 1880.

CARRIER OF PASSENGERS-INJURY TO PASSENGER ON NEGLIGENCE

STREET RAILROAD CONTRIBUTORY

SITTING ON FRONT PLATFORM.-Plaintiff's intestate, a passenger on defendant's street railroad car, when the car was approaching a draw-bridge sat down on the front platform. He was told by the driver of the car that he had better not sit in that place, as it was against the rules of the defendant and unsafe, to which he made a reply not understood by the driver. He continued to occupy his position while the car was detained at the bridge some fifteen minutes by an open draw; and remained there until he fell from the car after it had passed the bridge, receiving the injuries whereof he died. There were notices posted upon the car forbidding passengers to be upon the platforms and that the defendant would not be responsible for the safety of passengers while there. In an action for such injuries, held, that the defendant was not liable. It was for the plaintiff to prove that the intestate was free from negligence contributing to the injury which he received. Plaintiff could recover if the case presented failed to disclose the exercise on his part of ordinary care, as judged of in the light of common knowledge and experience. The rule is to be applied which requires the exercise of such care as men of common prudence usually exercise in positions of like exposure and danger. The question is in most cases a question to be submitted to the jury, but when the circumstances are not complicated, and the undisputed evidence discloses conduct which would be condemned as careless by men of common prudence, it is the duty of the judge to instruct the jury to find a verdict for the defendant. Garrett v. Manchester & Lawrence R. Co., 16 Gray, 501; Gahagan v. Boston & Lowell R. Co., 1 Allen, 187; Todd v. Old Colony R. Co., 7 id. 207. The evidence in this case wholly failed to show that intestate was in the exercise of due care. He was a passenger occupying an exposed and unusual place in a constrained and awkward position, against the rules of the road and the warning of the driver. The case differs from Meesel v. Lynn & Boston R. Co., 8 Allen, 234. A street railway corporation has a right to make all reasonable regulations for the safety of passengers. A rule prohibiting passengers from riding on the front platform is a reasonable regulation; and one who knowingly violates it, without some reasonable excuse or necessity, cannot be said to be free from negligence, if the act contributes to his injury. There could be no

doubt that the negligence of intestate contributed to the injury which he suffered. Wills v. Lynn & Boston Railroad Co. Opinion by Colt, J.

LIFE INSURANCE PAYMENT OF FIRST PREMIUM BY ANOTHER THAN INSURED WITHOUT HIS KNOWLEDGE.— A policy of insurance on the life of F. contained this provision, that "it shall not take effect until the advance premium thereon shall have been paid during the lifetime of the person when life is thereby insured." F. applied for the policy and it was issued and left at F.'s place of business by an agent of the company, who, by letter, requested the payment of the premium if correct and satisfactory. The agent repeated the request by letter a few weeks later. This letter was received by the sister of F. and opened by her, he being ill of a sickness whereof he died. The sister, without his direction or knowledge, paid the premium and F. died without knowledge of the payment. Held, that the policy was not binding upon the insurance company. No contract of insurance existed between the parties at the time of the death of F. The possession of the policy, without a waiver on the part of the company of the condition upon the performance of which it was to take effect, did not, on the facts disclosed, show a delivery of it in completion of the contract, or furnish any evidence that the minds of the parties had met. It was not enough that the form of the policy had been approved, for it was still optional with F. whether he would by payment make it a binding contract. If he declined or neglected to pay, the company would have no claim for the premium against him or against his estate, because the risk never attached. A proof of loss by the widow and personal representative of F. did not amount to such ratification of the unauthorized payment by F.'s sister as would give validity to the policy. The difficulty is that there was no contract existing at the time of the death to be ratified. The payment of the premium was not the payment by another of a debt due from F., which the administrator, without affecting the rights of the company, would have power to ratify; and to say that the administrator might do it so as to bind the company, would be to say that a policy of life insurance may be made to take effect as a contract by an act of ratification by the administrator after tho death of the person whose life is thereby insured. Whiting v. Massachusetts Life Insurance Co. Opinion by Colt, J.

NEGLIGENCE-FAILURE TO MAINTAIN FLAGMAN OR GATE AT RAILROAD CROSSING, IN ABSENCE OF MUNICIPAL REQUIREMENTS, MAY BE.-In an action for injuries received by plaintiffs who were travelling in the highway at a crossing of defendant's railroad, by reason of defendant's negligence, it was claimed that defendant was negligent in not having a gate or a flagman at the railroad crossing. It appeared that no proper authority had ever required the establishment of a flagman or gate at this crossing. The court below ruled that it was competent for the jury, under the declaration, to consider whether the defendant had used such reasonable care, in addition to the ringing of the bell or the blowing of the whistle required by the statutes, as the safety of travellers demanded at this particular crossing. Held, that the ruling was correct, as recognized by numerous decisions. These cases all rest on the common-law rule that when there are different public easements to be enjoyed by two parties, at the same time and at the same place, each must use his privilege with due care not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has common rights in the highway at those points. The fact that the Legislature has seen fit for the additional safety of travellers imperatively to require the corporation to use certain warnings at such

crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary. Bradley v. Boston & Maine R. Co., 2 Cush. 539; Linfield v. Old Colony R. Co., 10 id. 562; Norton v. Eastern R. Co., 113 Mass. 366; Favor v. Boston & Lowell R. Co., 114 id. 351. Even though the proper authorities had never required the maintenance of a gate or flagman at the crossing in question, the defendant was still under the rule which requires the exercise of reasonable care on its part; and the jury could not be limited in their inquiries by the fact that a gate or a flagman has never been ordered, however proper it might be for them to take that fact into consideration. Eaton v. Fitchburg Railroad Co. Opinion by Colt, J.

CRIMINAL LAW.

PLEADING IDEM SONANS.-The indictment charged defendant with entry into a stable with intent to commit "larcey." Held, that the maxim of idem sonans did not apply so as to render the indictment valid by reason of the word "larcey " meaning "larceny." California Supreme Court, Aug. 17, 1880. People of California v. St. Clair. Opinion per curiam.

RIGHT OF PUBLIC PROSECUTOR TO BE ASSISTED BY COUNSEL-EVIDENCE-TESTIMONY OF DECEASED WIT

NESS.

-(1) Under statutes making it the duty of a county attorney to appear in the District Court and prosecute all criminal cases, and providing that no county attorney should receive any fee or other reward from any prosecutor or individual for services in prosecuting criminals, nor be an attorney or counsel for any party other than the State, in any civil action depending upon the same facts upon which a criminal prosecution undetermined might depend, held, that this did not prohibit the county attorney from accepting the assistance of counsel employed for hire by private parties to aid him in a criminal prosecution. The case of Meister v. People, 31 Mich. 101, dissented from. The purpose of a public prosecution is to prevent the use of the criminal law to gratify private malice or accomplish personal gain. This purpose is fully subserved when the control of the case is with the county attorney. As to an argument that if private counsel be permitted, the county attorney will be influenced by their wishes and defer to their views and thus in effect a private be substituted for a public prosecution, a satisfactory reply is, that if he is disposed to so yield and defer, he will be as apt to do it when those suggestions and wishes are made known to him outside the court room, and that there is less danger of wrong by permitting private counsel to appear and act openly in the presence of the court, than by shutting them out from any open participation in the trial and leaving them to their private and secret suggestions to him in his office. Publicity prevents wrong, and the courts can always check undue zeal. The true construction of the statute is that it prohibits the public prosecutor from accepting private compensation and gives him the control of all public prosecutions, leaving to him a discretion as to the matter of accepting offered assistance, subject to the power of the court to interfere and prevent any oppression of the defendant, and holding him personally responsible for any violation of the statute or malfeasance in office. See State v. Bartlett, 55 Me. 200; Commonwealth v. Knapp, 10 Pick. 478; Commonwealth v. Williams, 2 Cush. 582. (2) Defendant was arrested and a preliminary examination held on a charge of assault with intent to kill. On such examination the testimony of the party assaulted was taken. This testimony was taken at the rooms of the witness, he being unable to move therefrom, and

could have been present if he had desired, but preferred not to be. Subsequently the party assaulted died, and a charge of murder was preferred in lieu of the original charge of assault with intent to kill. Upon the trial upon this charge, evidence was received of the testimony given by such deceased witness on the preliminary examination. Held no error. In United States v. Macomb, 5 McLean, 286, the testimony of a witness since deceased, given on a preliminary examination, was held admissible on the trial of the indictment found for the same offense. See, also, Davis v. State, 17 Ala. 354; Kendrick v. State, 10 Humph. 479; Rex v. Barber, 1 Root (Conn.), 76; Bostwick v. State, 3 Humph. 344; State v. Campbell, 1 Rich. (S. C.) 214; United States v. Wood, 3 Wash. C. C. 440; State v. Atkins, 1 Overton, 229. Both reason and authority unite to support the competency of this testimony. Kansas Supreme Court, July term, 1880. State of Kansas v. Wilson. Opinion by Brewer, J.

CORRESPONDENCE.

JUSTICE Davis.

Editor of the Albany Law Journal:

Mr. Arnoux's communication in the LAW JOURNAL of the 4th inst., concerning Mr. Justice Davis, does not fully dispose of the case. That distinguished judge's abilities are well known. Lawyers who have felt compelled to condemn his performance of the character of a committing magistrate, would deeply regret his absence from the tribunal where his learning and ability could with difficulty be supplied. From the General Term of the Supreme Court it is to be hoped that he will not soon deem himself called away in deference to a precedent which might better be called notorious than illustrious.

In the Philp case the justice differed in opinion from the testimony by a witness of his own opinion concerning the genuineness of certain handwriting. The question of genuineness was, in the view of the law taken by the justice, of essential importance to the prisoner. The testimony of an accomplice before the fact of a witness who by asserting its genuineness had prompted the exhibition, or rather publication, of this writing, would be of less weight than that of a person free from such previous connection with the suspected writing. Is it not a fact that the justice so misstated the evidence before him as to place this witness for the prisoner in the position of an accomplice, whose testimony as that of an accomplice was to be deemed of little weight? May not the justice's own conclusion in the matter have been aided by his mistake concerning the facts?

Such an error, according to the spirit of the English law, when committed to the possible prejudice of a prisoner is inexcusable. It is startling to think what might result from similar want of attention in a trial involving life or death. C. W. S. Dec. 9, 1880.

NEW BOOKS AND NEW EDITIONS.

BLISS' NEW YORK ANNOTATED CODE, VOL. II. The New York Code of Civil Procedure, chapters 14 to 22, as enacted in 1880, with explanatory notes showing the changes introduced thereby, together with the statutory provisions on the same subjects still remaining in force, with notes of judicial decisions on pleading, practice and evidence. Vol. II. By George Bliss. New York: Baker, Voorhis & Co., 1880.

fendant, the defendant himself being absent.