all others, daily to the individual members of the board. There is no proof that any objection was ever made. Held, that an action by the trustees in bankruptcy of the corporation to compel the delivery of the notes delivered by the agent to L. could not be maintained. It would be a perversion of the plainest principles of reason and justice to permit the validity of such a security to be effectually denied. It cannot be done. De Groff v. American Lin. Co., 21 N. Y. 128; Parrish v. Wheeler, 22 id. 503; Bradley v. Ballard, 55 Ill. 413; McCutchin v. Collins, 13 Penn. St. 15. Courts do not look at such transactions with the microscopic eyes of a special demurrer. This intelligent acquiescence was a binding ratification. Kelsey v. National Bank, 69 Penn. St. 426; Hilliard v. Goold, 34 N. H. 230; Christian University v. Jordan, 29 Mo. 68; Sherman v. Fitch, 98 Mass. 59. Decree of Dist. Columbia Sup. Ct. affirmed. Creswell et al., appellants, v. Lanahan et al. Opinion by Swayne, J.

MORTGAGE -LIEN OF MORTGAGEE ON INSURANCE FOR OWNER'S BENEFIT.-G. was the owner of real property on which were buildings and machinery which he had mortgaged to the assignors of appellants, the mortgages containing an agreement to insure, etc., and being duly recorded. The firm of J. & G., to whom he was indebted, suggested that he have the buildings insured for his better security, and he authorized the firm to procure insurance, which they did, taking an open policy in their names. Subsequently the buildings were destroyed by fire. Held, that appellants had a lien on the insurance money to secure their mortgages after the claim of the firm against G. had been satisfied. It is undoubtedly the general rule that a mortgagee has no right to the benefit of a policy taken by the mortgagor unless it is assigned to him. Carter v. Rockett, 8 Pai. 437. But it is settled by many decisions in this country that if the mortgagor is bound by covenant or otherwise to insure the mortgaged premises for the better security of the mortgagee, the latter will have an equitable lien upon the money due on a policy taken out by the mortgagor to the extent of the mortgagee's interest in the property destroyed. Thomas' Ex'rs v. Van Kaff's Ex'rs, 6 G. & J. 372; note to 3 Kent's Com. 376; Angell on Ins., § 62; 2 Am. Lead. Cas., 834, 5th ed.; 1 Hermon on Mort., § 424. And this equity exists, although the contract provides that in case of the mortgagor's failing to procure and assign such insurance the mortgagee may procure it at the mortgagor's expense. Nichols v. Baxter, 5 R. I. 491. Of course the mortgagee's equity will be governed by the scope and object of the agreement; as, if the agreement be to insure for a certain amount, the equity will not apply beyond that amount; and as its object is to afford better security for the payment of the debt, it will not be enforced farther than is necessary for such security; if the debt is abundantly secured by the property which remains liable to the mortgage a court of chancery would probably decline to enforce it. Decree of U. S. Circ. Ct., Louisiana, reversed. Wheeler et al., appellants, v. Factors and Traders' Ins. Co. et al. Opinion by Bradley, J.

where a petition sets forth nothing else for a cause of action than the obstruction of "ancient lights" the petition does not state any cause of action. Lapere v. Luckey. Opinion by Valentine, J.

TITLE-CONFUSION OF GOODS-MIXTURE OF CEREAL When a mixture of cereal

GRAINS

REPLEVIN.

grains occurs by consent of the owners, or under circumstances in which the mixture would be reasonably expected by the parties, and the property mixed is of the same nature and value, although not capable of an actual separation by identifying each particle, yet if a division can be made of equal value, as in the case of corn, oats and wheat, the law will give to each owner his just proportion, and such owner may recover his share by replevin. At a division of a crop of corn, raised on the same premises and all of which was of the same value, between P. and W., in the absence of sufficient cribs to hold P.'s share, W. agreed with P. to store 300 bushels of the latter's corn in his crib, along with his part of the crop, and further agreed that whenever P. demanded his corn he would measure out of the corn so stored in the crib the same amount or quantity of corn of like quality, as deposited. Under the agreement the corn was stored in W.'s crib, and with consent of parties, mixed together; held, the transaction was a deposit, and the 300 bushels of corn remained the property of P., for which replevin would lie; and further held, that under the circumstances of this case, an instruction to the effect that if the defendant had the option to deliver on demand the same corn, or any of like quality, the jury must find for the defendant, without any limitation or qualification, was erroneous. Piazzek v. White. Opinion by Horton, C. J.

MAINE SUPREME JUDICIAL COURT AB

STRACT.*

COMMON CARRIER-DUTY OF CARRIER TO RECEIVE AND FORWARD GOODS-DAMAGES. - Where goods are delivered to a railroad company by a connecting railroad company to be transported to the owners, and the same are received by said company for the purpose, it becomes its duty to send them off immediately; and it cannot justify the detention of the goods on the ground chat, by its regulations, goods received from a connecting road are not to be forwarded until the receipt of a bill of back charges, and that no such bill accompanied the goods. Michaels v. N. Y. Cent. R. R. Co., 30 N. Y. 564. In the case of transporting goods over several railroads constituting a connecting line, neither company is an agent of the owner; each exercises an independent employment as a contractor with the owner and is responsible for its own negligence, and it cannot make the owner responsible for the negligence of a connecting road. Sherman v. Hudson R. R. Co., 64 N. Y. 255. The measure of damages for a failure to forward and deliver is the difference in the value of the articles which should have been forwarded at the time and place when and where they ought to have been delivered and when they were actually delivered. Ward v. N. Y. Cent. R. R. Co., 47 N. Y. 29. Dunham v. Boston & Maine Railroad Co. Opinion by Appleton, C. J.

CONSTITUTIONAL LAW-STATE INSOLVENT LAWS.The Constitution of the United States does not prohibit the enactment of an insolvent law by a State. It is provided by section eight of the first article of the Constitution of the United States that "Congress shall have power to establish uniform laws on the subject of bankruptcies throughout the United States." Here is no prohibition against the passage of bankrupt or insolvent laws by the States. As long as the National

* To appear in 70 Maine Reports.

government abstains from legislation on this subject the State may act. "It is sufficient to say," observes Marshall, C. J., in Sturgis v. Crowninshield, 4 Wheat. 122, "that until the power to pass uniform laws on the subject of bankruptcies be exercised by Congress, the States are not forbidden to pass a bankrupt law, provided it contain no principle which violates the tenth section of the first article of the Constitution of the United States.' The right of the States to pass insolvent or bankrupt laws, and that the power given to the United States is not exclusive, has been repeatedly affirmed. Boyle v. Zacharie, 6 Pet. 348; Cook v. Moffat, 5 How. 310; Baldwin v. Hale, 1 Wall. 223. The insolvent act of this State, having been enacted while the Federal bankrupt law was in force, went into full operation upon repeal of the bankrupt law, and not before. As was said in Lavender v. Gosnell, 43 Md. 153, "the act of Congress suspends the State law but does not repeal it. Proceedings commenced under the State law prior to the passage of the bankrupt act may be carried on to their final termination in accordance with the provisions of the State law." Judd v. Ives, 4 Metc. 401; Chamberlain v. Perkins, 51 N. H. 337. In re Damon. Opinion by Appleton, C. J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

MARCH AND APRIL, 1880.

COVENANT AGREEMENT BY GRANTEE CONTAINED IN DEED POLL DOES NOT RUN WITH LAND.-W., who owned two adjoining estates, conveyed one of them to defendant by warranty deed in the usual form. This deed contained this clause: "With all the privileges and appurtenances, especially a right in said arched passage-way, and in the two water-closets or privies adjacent to said passage-way, and next to the land hereby conveyed, the grantee agreeing for herself, her heirs and assigns, to keep the same in repair and pay all expenses connected therewith or incident thereto." Subsequently W. sold the other estate with the appurtenances to plaintiff, the conveyance being subject to the privileges and rights in defendant's deed. Defendant neglected to keep the privies in repair and plaintiff repaired them and brought action against defendant for a breach of the above-mentioned agreement contained in the deed to her. Held, that the action would not lie. The agreement to repair buildings upon land adjoining the defendants', being contained in a deed poll to her, and not being under her seal, is not a covenant, and this action is in the nature of assumpsit on the promise implied from the acceptance of the deed. Maine v. Cumston, 98 Mass. 317, 320, and cases cited. It would be difficult, if not impossible, to maintain the action against an assignee of the promisor. Parish v. Whitney, 3 Gray, 516, and it is quite clear that it cannot be maintained in the name of an assignee of the promisee. Standen v. Christman, 10 Q. B. 135. Martin v. Drinan. Opinion by Gray, C. J.

CRIMINAL LAW FALSE PRETENSES- OBTAINING

CONSENT то ENTER JUDGMENT BY FALSE STATE

MENTS. An indictment for false pretenses set forth that the defendant, with intent to cheat and defraud, falsely represented to the city of Lynu, through its agent the city solicitor, that a street, which the city was bound to keep in repair, had been suffered to be out of repair and dangerous, and that the defendant, while travelling thereon with due care, was injured by the defect; that at the same time, the defendant exhibited to said city solicitor an injury to his foot and ankle, and falsely represented that it was caused by the alleged defect; that the city and its solicitor, believing said false representations and being deceived thereby, were induced and did then and there consent

and agree to the entry of a judgment against the city for the sum of $587.50, in a suit then pending against the city in favor of the defendant, and then and there paid to the defendant the amount of said judgment; to wit, the sum of $587.50, of the property and money of said city; and that the defendant obtained said judgment and received said sum of money by means of the false pretenses and representations aforesaid, and with the intent to cheat and defraud the city of Lynn of the amount of said judgment. Held, that these facts did not constitute the offense of obtaining money by false pretenses. The allegations are, that an agreement that judgment should be rendered was obtained by the pretenses used, and that the money was paid by the city in satisfaction of that judgment. It is not alleged that after the judgment was rendered, any false pretenses were used to obtain the money due upon it, and even with proper allegations to that effect, it has been held that no indictment lies against one for obtaining by such means that which is justly due him. There is no legal injury to the party who so pays what in law he is bound to pay. Commonwealth v. McDuffy, 126 Mass. 467; People v. Thomas, 3 Hill, 169; Rex v. Williams, 7 C. & P. 354. A judgment rendered by a court of competent jurisdiction is conclusive evidence between the parties to it that the amount of it is justly due to the judgment creditor. Until the judgment obtained by the defendant was reversed, the city was legally bound to pay it, notwithstanding it may then have had knowledge of the original fraud by which it was obtained; and with or without such knowledge, it cannot be said that the money paid upon it was in a legal sense obtained by false pretenses, which were used only to procure the consent of the city that the judgment should be rendered. Commonwealth v. Harkins, Opinion by Colt, J.; Gray, C. J., and Soule and Ames, JJ., dissented.

MUNICIPAL SECURITIES-TOWN NOT LIABLE TO PAY MONEY RECEIVED AND USED FOR ITS BENEFIT ON SECURITIES ISSUED WITHOUT AUTHORITY. - Where the treasurer of a town took money raised upon notes given in the name of the town but without authority and paid debts due from the town, there being no appropriation of such payments by the town to its own use or any ratification of the act, held, that the town was not liable to the holder of the notes in any form for the money borrowed. The money in the hands of the treasurer did not belong to the town. Funds may have been previously supplied by the corporation from other sources for the payment of these very debts. The treasurer is an independent accounting officer. Hancock v. Hazzard, 12 Cush. 112. If he applies money unlawfully obtained to the payment of town debts, that fact alone creates no liability on the part of the town to refund the money to the party from whom it was obtained. See Kelley v. Lindsey, 7 Gray, 287. The decision in Railroad National Bank v. Lowell, 109 Mass. 214, upon the point now under consideration, is conclusive. Agawam National Bank v. Inhabitants of South Hadley. Opinion by Colt, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

CONSIDERATION -FORBEARANCE OF TAX OFFICER TO SELL PROPERTY FOR TAXES.-The forbearance of a tax collector at the request of the owner of land taxed to sell such land for the tax until the advertised time for sale has passed, is a good consideration for the promise of the owner to pay the tax, and this without reference to the question of the validity of the tax. Such forbearance is not of a fraudulent prosecution of a claim known to be groundless, the abandonment of

* To appear in 58 New Hampshire Reports.

was

Mr. Lawrence led a blameless life both as the lawyer and the citizen. No smirch or stain ever came upon his bright escutcheon. His conscientiousness marked and unassailable. His purity of thought and conduct received the praise of all. No one who ever came closely in contact with him but remained his friend forever after. He was genial in manner, hospitable and generous. He was helpful to the weak. Never stinting the bestowal of his learning or his means, he lightened the way of life for many a weary one, and gave cheer and comfort to more than one forlorn and despondent fellow creature. Withal he was a modest, man. There was no ostentation of learning or living about him. He was a gentleman in all things and to all men.

His life was gentle and the elements
So mixed in him,

That Nature might stand up and say
To all the world

This was a MAN.

The writer hereof accounts it as the especial privilege of his life that he was permitted to know Mr. Lawrence for many years. The acquaintance was formed when the writer was but a youth, and continued intimately and closely for nine years, and then intermittently, but still fervid in esteem and intense in regard on the one part at least, and in the years to come that writer will still feel that of all the world next to his own kin, none are dearer to him or hold a firmer place in his heart than Mr. Lawrence. From him the writer received, not only instruction in the law, but by daily conduct and example a knowledge of what tends to make up a noble gentleman.

To know John S. Lawrence well, and to receive counsel and advice from him was to acquire a liberal education. There was nothing mean or small in the disposition of Mr. Lawrence. As his character was luminous in its perfect equipoise of all that is good and excellent, so was his daily life without reproach. In the practice of his profession he was upright and trustworthy, never seeking unfair advantages or attempting to gain temporary victory by questionable measures. Conservative in habit, modest in demeanor, and vigorous in intellect he continued to the last. He has passed from us amid the sincerest grief of all who knew him, and with the benedictions of a legion of friends to whom his life and character were all that is pure, lovely, and commendable. June 7, 1880.

CORRESPONDENCE.

To the Editor of the Albany Law Journal:

T. N. M.

I have observed with much satisfaction the sensible

views you have usually expressed upon the subject of that pitiful farce known as the "Whittaker Inquiry;" and am disappointed to find that of late you are "weakening" a little. You remark in a late issue of the JOURNAL that the evidence against Whittaker is "explained only on the theory of a very ingenious conspiracy" against him-a confession which practically gives away his case; for ingenious conspiracies of that kind are scarcer than hen's teeth. Permit me to suggest an explanation much simpler.

Nothing is more common than for one of a partywhether of men or boys-bent on mischief, to repent of his evil intentions and give warning to the proposed victim. At the same time, the author of the note of warning to Whittaker would naturally fear nothing so much as the discovery, by his fellow hazers, of his perfidy to their enterprise. Hence his effort to disguise his handwriting. All the experts, I believe, agree that the note of warning was written in a disguised hand.

Now there are two facts of common knowledge

which it requires no experts to verify: first, that most people who are little used to the pen, such as illiterate persons, young beginners, or those whose occupations are chiefly manual and laborious, write very much alike—there being usually a striking similarity in the hard, stiff lines, sharp angles, and irregular spaces of their letters; second, that disguised hands resemble each other more than natural hands do. Given two persons whose natural chirography is utterly dissimilar, and let each write the same passage in a studiously disguised hand, and the result when compared will show many points of striking similarity.

Applying these tests to the so-called evidence in the Whittaker case, it loses much of its mysteriousness. I have never seen any of Whittaker's handwriting, but if what they say about his general backwardness in his studies is true, he is probably not a ready, rapid or flowing writer. His penmanship is very likely crude, stiff, and angular. The writer of the note of warning may be very like him in this respect; and even if not so in his natural hand, would be almost certain to write in a similarly cramped and awkward style if attempting to disguise his hand. A person then comparing the note of warning so written with Whittaker's letter to his mother, or any other natural specimen of Whittaker's penmanship, could without the slightest effort discover marks of similarity between them. Especially easy would such a discovery be, however impartial the "expert " who made it, in an atmosphere charged, as that of West Point seems to have been, with an overpowering sense of the necessity of fixing the guilt of the whole business on Whittaker himself.

As to the other "discovery," that the note of warning is on a sheet of paper torn from Whittaker's letter, it is much easier to believe (if we must swallow this "discovery" at all), that the repentant youth who stole into Whittaker's room to give him the friendly warning, not finding him there, wrote the letter to him on some of his own stationery in his own desk — than that Whittaker was such an ass as to write a note of warning to himself.

At any rate, this theory does not strike me as quite so wildly improbable as those which must be adopted in order to reach the conclusion announced by the sapient Court of "Inquiry.' How does it strike you?

CONTRACTS "TO SATISFACTION." To the Editor of the Albany Law Journal:

Your citation of cases on "Contracts to Satisfaction" (21 Alb. L. J. 465) is not quite complete. In City of Brooklyn v. B. C. R. R. Co., 47 N. Y. 475, at p. 479, the court, by way of illustration, referred to this class of contracts, saying: "Such satisfaction is not an arbitrary or capricious one. It has its measure by which it can be filled. That which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with." Citing Kent, C. J., in Folliard v. Wallace, 2 Johus. 395, to the same effect.

The same reasoning is adopted in a case where it was more than a mere illustration. Miesel v. Globe Mutual