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on a fair construction, indicates the purpose of the Legislature to legislate on the subjects contained in the body of the act, so that making every reasonable intendment in favor of the legislative act, it may reasonably be said that the object of the law is expressed in its title. Town of Fiskill v. Fishkill, 22 Barb. 634; Contieri v. Mayor of New Brunswick, 15 Vroom, 58. (3) In an act entitled "An act to provide for licensing boats, hacks and other vehicles by incorporated campmeeting associations or seaside resorts, and for the better government of the same," the Legislature cannot include provisions authorizing the licensing, regulating or prohibiting of the manufacture or sale of liquor, such a subject not being within the legislative purpose as expressed in the title of the act. Grover v. Trustees of Ocean Grove Camp-Meeting Asso. Opinion by Depue, J.


DEED-IN EFFECT, MORTGAGE-WAIVER.-- Where a deed of land, absolute on its face, was given by D. to M., and some months afterward, disputes having arisen between them, an instrument of settlement and adjustment of all controversies was executed by them, in which this deed was mentioned, held, that by the instrumeut of settlement D. waived and abandoned the right to insist that the deed was a mortgage. Baldwin v. Davis. Opinion by Seevers, J. [Decided April 10, 1884.]

STATUTE OF FRAUDS-TELEGRAM-PAROL EVIDENCE. - Where in an action for an alleged breach of a written con tract of sale made by telegraph, the telegrams fail to show what the property contracted for is, what the price to be paid for it is, and to whom it is sold, they are insufficient to establish a written contract, and to take the case out of the statute of frauds; nor can verbal testimony be admitted to supply the defects or omissions therein. Watt v. Wisconsin Cranberry Co. Opinion by Adams, J.

[Decided April 10, 1884.]

MALICIOUS PROSECUTION-WHEN ACTION DOES NOT LIE FOR BRINGING CIVIL SUIT.-We think the doctrine is well established by the great preponderance of authority that no action will lie for the institution and prosecution of a civil action with malice and without probable cause, when there has been no arrest of the person or seizure of the property of defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action. See 1 Am. Lead. Cas. 218, note to Munns v. Dupont, and cases there cited; Mey er v. Walter, 64 Penn St. 289; Kramer v. Stock, 10 Watts, 115; Bitz v. Meyer, 11 Vroom, 252; S. C., 29 Am. Rep. 233; Eberly v. Rupp, 90 Penn. St. 259: Gorton v. Brown, 27 Ill. 489; Woodmansie v. Logan, 2 N. J. L. 93 (1 Pen.); Parker's Adm'rs Frambes, id. 156; Potts v. Imlay, 4 N. J. L. 330 (1 Suth.) This doctrine is supported by the following consideration: The courts are open and free to all who have grievances and seek remedies therefor, and there should be no restraint upon a suitor, through fear of liability resulting from failure in his action, which would keep him from the courts. He ought not, in ordinary cases, to be subject to a suit for bringing an action, and be required to defend against the charge of malice and the want of probable cause. If an action may be maintained against a plaintiff for the malicious prosecution of a suit without probable cause, why should not a right of action accrue against a defendant who defends without probable cause and with malice? The doctrine surely tends to discourage vexatious litigation, rather than to promote it. It will be


observed that the statement of the doctrine we have made extends it no further than to cases prosecuted in the usual manner where defendants suffer no special damages or grievance other than is induced by all defendants in suits brought upon like causes of action. If the bringing of the action operates to disturb the peace, to impose care and expense, or even to cast discredit and suspicion upon the defendant, the same results follow all actions of like character, whether they be meritorious, or prosecuted maliciously and without probable cause. They are incidents of litigation. But if an action is so prosecuted as to entail unusual hardship upon the defendant, and subject him to special loss of property or of reputation, he ought to be compensated. So if his property be seized, or if he be subjected to arrest by an action maliciously prosecuted, the law secures to him a remedy. In the case at bar the pleading and evidence show no such special damages. No action could be prosecuted to recover money fraudulently obtained, in which the defendant would not suffer the very things for which plaintiff in this case seeks compensation in damages. Wetmore v. Mellinger. Opinion by Beck, J. [This is in harmony with Muldoon v. Rickey (Penn.), 29 Alb. L. J. 457.ED.]

[Decided April 9, 1884.]

PARTNERSHIP- -INFERRED — STATUTE OF FRAUDS LIMITATION RUNS FROM DISSOLUTION.—(1) Where parties have contracted to engage in the venture of buying lands, which are to be held in trust for both of them, and they are to have equal interests and shares in the common speculation, the fact that there is no agreement that both shall be respectively liable for the losses does not prevent the contract from constituting a partnership. The liability may be inferred from the intent of the parties or their acts, or from the circumstances that attend the contract. Parsons' Partner ship. 57, 60; Miller v. Hughes, 1 A. K. Marsh. 181. (2) A contract to enter into a partnership, for the purpose of speculating in lands, is not within the statute of frauds, and need not be in writing. This question has been much discussed by the courts, and it is not to be denied that there are adjudged cases which hold that such a contract is within the statute of frauds. See Smith v. Burnham, 3 Sumn. 435. On the other hand, there are many cases which hold that a parol contract of partnership is not within the statute. Dale v. Hamilton, 5 Hare, 369; Essex v. Essex, 20 Beav. 449; Bunnel v. Taintor, 4 Conn, 273; Chester v. Dickerson, 54 N. Y. 1; Holmes v. McCrary, 51 Ind. 358. (3) The relation of the parties being a partnership, the statute of limitations does not begin to run until the dissolution thereof, or until a sufficient time has elapsed after a demand for an accounting and settlement. Richards v. Grinnell. Opinion by Rothrock, C. J. [Decided March 9, 1884.]

ANIMALS -TRESPASSING ON RAILROAD-COMPANY NOT LIABLE FOR INJURY. --Where animals, which are aliowed to run at large in violation of a city ordinance, stray upon a railroad track, they become trespassers, and the company is not answerable for injuries inflicted upon them by any negligence of its servants, not amounting to wanton or reckless misconduct. The rule as to injury to trespassing animals which become exposed by the trespass, and through the owner's fault, appears to us to be well settled. In Maynard v. Boston & M. R. Co., 15 Mass. 458, a recovery was sought for an injury to the plaintiff's horse, sustained while trespassing upon defendant's track. The trial court took substantially the same view of the law that the court below did in the case at bar. It refused to instruct, as asked, that "the defendants would not be liable unless the plaintiff proved a wanton and reckless misconduct of their employees in the manage

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ment of the train when the horse was killed." It was held that this instruction should have been given. Gray, C. J., said: "If the horse had been rightfully upon the defendant's land it would have been their duty to use reasonable care to avoid injuring him. But it being admitted by the plaintiff that the horse was trespassing upon the railroad, they did not owe him that duty, and were not liable to him for anything short of reckless and wanton misconduct." See, also, Tonawanda R. Co. v. Munger, 5 Denio, 255; S. C., 4 N. Y. 349; Vandegrift v. Rediker, 2 Zab. 185; Railroad Co. v. Skinner, 19 Penn. St. 298; Tower v. Providence & W. R. Co., 2 R. I. 404; Cincinnati, H. & D. R. Co. v. Waterson, 4 Ohio St. 424; Louisville & Frankfort R. Co. v. Ballard, 2 Metc. (Ky.) 177; Vance v. Cayuga, etc., R. Co., 26 N. Y. 428; Bowman v. Troy & B. R. Co., 37 Barb. 516; Terry v. N. Y. C. R. Co., 22 id. 574; Bush v. Brainard, 1 Cow. 78. Van Horn v. Burlington, etc., R. R. Co. Opinion by Adams, J.

[Decided March 19, 1884.]

MUNICIPAL CORPORATION — CHANGING GRADE — LIABILITY JUDGMENT BAR. Where the grade of a street has been lowered from curb to curb in such a manner that a corresponding change in the level of the sidewalk must inevitably follow, an entire cause of action arises at once in favor of the abutting owners for the full amount of the damage; and recovery of judgment for the alteration of the grade of the driveway is a bar to any further action on account of the grading of the sidewalk. Hempstead v. City of Des Moines. Opinion by Rothrock, C. J. [Decided March 19, 1884.]



ARBITRATION AND AWARD — DUTY OF ARBITER EFFECT OF AWARD- UNCERTAINTY.-(1) Where a contract contains a submission to a designated person as a common arbiter of "all and every question of difference between them, growing out of the contract," the non-performance of the contract by one of the parties constitutes a cause within the jurisdiction of the arbiter. (2) Such a submission is a binding one on the parties, and it includes questions of law as well as of fact; the arbiter, though not learned in the law, may pass upon the construction of the contract; and where it is a material question whether a clause therein providing that ten per cent of the contract price shall be retained by one of the parties upon certain contingencies is to be treated as a penalty or as liquidated damages, he must decide that question. (3) When the arbiter does not so decide, but awards one sum upon one construction of said clause, and another sum if another construction "should properly be held," the award is bad as uncertain and indefinite, and as driving the parties to a different tribunal for the settlement of differences which they had contracted should be finally determined in one of their own choosing. Gratz v. Gratz, 4 Rawle, 438; Etnier v. Shope, 7 Wr. 110; Stanley v. Southwood, 45 Penn. St. 189. Connor v. Simpson. Opinion by Green, J. [Decided Oct., 1883.]

CONTRACT WHEN NOT BINDING UNTIL REDUCED TO WRITING.-A., who was a Roman Catholic priest, entered into negotiations with B. and C., organ builders, for the construction of an organ for his church. The preliminaries of the contract were apparently agreed At the outset, defendupon after several interviews. ant asked for a written agreement, and throughout the interviews constantly insisted upon it. At one of

the interviews the defendant authorized the plaintiffs
to go on with the building of the organ, and at the
same time demanded a written agreement. None of
the agreements were satisfactory to the defendant,
each containing something he alleged he had not
agreed to, and finally he broke off further attempts at
an agreement. B. and C. thereupon bronght suit for
breach of contract. Held, by a divided court (affirm-
ing the judgment of the court below), that there was
no binding contract between the parties, it being the
clear intention of the defendant that he should not
be bound until all the terms of the contract were re-
duced to writing and signed by the parties, and that
the defendant was not liable for work done on the ex-
pectation or hope on the part of the plaintiff that such
an agreement would be consummated. MacMackin v.
Timmins. Opinion per Curiam. [See 20 Eng. R. 200;
22 id. 393; 25 id. 131, 572; 30 id. 839.- ED.]
[Decided Feb. 25, 1884.]

INCREASE OR DIMINISH.- Where it is the official duty
of a sheriff to board the prisoners in the county jail,
the sum secured to him by law as compensation for
this service is an "emolument" within the meaning
of the Constitution of Pennsylvania, article 3, section
13, which cannot be increased or diminished during
his term of office. Where at the beginning of a sher-
iff's term of office his compensation for boarding pris-
oners in the county jail is fixed by law at a certain rate
per diem, the law cannot be so altered during the
sheriff's term of office as to make his compensation
for said service rest in the discretion of a majority of
the judges of the Court of Quarter Sessions. Apple
v. County of Crawford. Opinion by Green, J.
[Decided Feb. 18, 1884.]

WILL NOT RELIEVE FROM. Where an insolvent debtor
in fraud of his 'creditors assigns his property to a third
person, taking from him judgment notes for the value
thereof, and subsequently assigns one of said judg
ment notes as collateral security to a creditor (bauk)
who has knowledge of the fraud, the maker of such
note cannot set up the fraud as a defense in an action
brought against him by the creditor thereon. The
mutual fraud of the parties constituted sufficient con-
sideration in the above case for the note in suit. It is
settled by numerous authorities, that there is no more
binding consideration known to the law than the
mutual fraud of the parties. The books are full of
cases where a party to the fraud has sought relief in
the courts from the consequences of his unlawful act,
but the decisions have been uniformly adverse to such
applications. It is not the province of the law to help
a rogue out of his toils. The rule is to leave the par-
ties where it finds them, giving no relief and no coun-
tenance to contracts made in violation of statutes.
Hershey v. Weiting, 14 Wright, 240; Evans v. Dravo,
12 Harris, 62. It follows that the defendant would
have no defense to this note as against the obligee or
payee. The learned judge of the court below, how-
ever, was of opinion, and so instructed the jury, that
if the bank had knowledge of the fraud and afterward
took the note, it became a party to the fraud and
could not recover. The fallacy of this ruling is obvi-
ous. The note is good as between the parties, for the
reason that the maker cannot set up his fraud as a de-
fense. If he cannot set it up against the payee, neither
can he set it up against the bank, and the inquiry
whether the bank had knowledge of the fraud was
wholly irrelevant. Winton v. Freeman. Opinion by
Paxson, J.

[Decided March 26, 1883.]

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EVIDENCE-INTENT-CONTRACT FOR FUTURE DELIVERY.-In an action to recover the price of wheat bought by the plaintiff, as factor, for the defendant, for future delivery, where the defense was that the transaction was a gambling contract, no delivery being intended, but only an adjustment of differences in price, it was held error to refuse to let the defendant testify as to conversations had by him with the plaintiff before the orders for the purchases were actually given, as throwing light upon the nature of the contract. These surrounding circumstances constituting part of the res gesta may always be shown to the jury along with the principal part. 1 Greenf. Ev., § 108. It is not alone the last words spoken or written that in all cases give character to a transaction. A promissory note containing usurious interest, or made upon a fraudulent consideration, or for a gambling debt, may be explained, or even contradicted, by showing previous facts out of which it grew. Hewitt v. Dement, 57 Ill. 500; 1 Greenl. Ev., § 284, and note. Why then may not a verbal contract, alleged to be a gambling contract, be explained by facts, circumstances or conversations, which shed light upon the meaning of its words? It is in such case proper to ascertain such intrinsic facts as the parties may have had in view at the time the order for the contract was made in order to obtain the meaning of its words. Doyle v. Teas, 4 Scam. 202. Brand v. Henderson. Opinion by Dickey, J.

JUDGMENT - APPEAL FROM, OPERATES AS STAYLIEN NOT DIVESTED.-An appeal from a judgment of the Circuit Court to the Supreme Court does not vacate the judgment, or destroy its lien on real estate or its capacity to become a lieu on land acquired pending the appeal. Its only effect is to operate as a stay of proceedings to enforce the judgment. Oakes v. Williams. Opinion by Walker J. [See 2 Eng. Rep. 124. -ED.]

EMINENT DOMAIN--EXCESSIVE DAMAGES-PROCEEDING TO CONDEMN RIGHT OF WAY-PRESUMPTION.-On an assessment of damages for right of way, where the jury, at the request of both parties, view the premises, and no other evidence is offered, every presumption will be indulged in favor of the correctness of the verdict. In such case in cannot be known the damages assessed are excessive, as it cannot be known what the jury saw. Peoria, etc., v. Barnum. Opinion by Scott, J.

TAXATION-HOW LIEN FOR TAXES ENFORCED.-The lien given by law upon land for taxes due thereon, whatever its force and scope may be, can not be enforced in an ordinary action at law by the county or State against the tax debtor. That can only be done by bill in chancery under the statute. Biggins v. People, 106 Ill. 270. Douthett v. Winter. Opinion by Scott, J.

RECEIVER-FOREIGN-POWERS CONFINED TO JURIS DICTION APPOINTING-CREDITORS CANNOT INTERFERE WITH POSSESSION. (1) Where a receiver takes possession of a barge within the jurisdiction of the court appointing him, as the property of the insolvent debtor, he becomes invested with a special property in it, like that of a sheriff on a valid levy, and he may protect this special property while it continues, by action, in like manner as if he were the absolute owner. Cantwell v. Sewell, 5 Hurl. & N. 728; Clark v. Connecticut Peat Co., 35 Conn. 303; Taylor v. Boardman, 25 Vt. 581; Crapo v. Kelly, 16 Wall. 610; Waters v. Barton, 1 Cold. (Tenn.) 450; Boyle v. Tonnes, 9 Leigh, 158;

*To appear in 107 Illinois Reports.

Singerly v. Fox, 75 Penn. St. 114. (2) The powers of a receiver are coextensive only with the jurisdiction of the court appointing him, and a foreign receiver will not be permitted, as against the claims of creditors resident in this State, to remove from this State the assets of the debtor, it being the policy of every government to retain in its own hands the property of the debtor until all domestic claims against it have been satisfied. (3) But where a receiver has once obtained rightful possession of personal property situate within the jurisdiction of his appointment, which he was appointed to take charge of, he will not be deprived of its possession though he takes it, in the performance of his duty, into a foreign jurisdiction. While there it cannot be taken from his possession by creditors of the insolvent debtor who reside within such jurisdiction. Pond v. Cooke, 45 Conn. 126; Cagill v. Wooldridge, 8 Baxter, 580; Kilmer v. Hobart, 58 How. Pr. 452. Chicago v. Packet Co. Opinion by Sheldon, C. J.


RAILROAD -FRANCHISE NOT EXCLUSIVE ROADS MAY CROSS OR RUN PARALLEL.-The mere grant of the right to build a railroad between given termini creates no implied obligation by the State to not thereafter grant the right to build other railroads parallel with it between the same termini. Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420; Hudson and Delaware Canal Co. v. New York and Erie R. Co., 9 Paige, 323; Illinois and Michigan Canal v. Chicago & R. I. R. Co., 14 Ill. 314. Nor does it imply an obligation on behalf of the State that other railroads, with their tracks and switches, shall not thereafter be granted the right to cross the State in a different direction, and thus pass over its tracks and switches. Chicago & Alton R. Co. v. Joliet, Lockport and Aurora Ry. Co., 105 Ill. 388. The public welfare especially requires that the business of carrying shall be open to competition as far as possible, and no monopoly in that regard, however limited the sphere of its operation, can be presumed to have been intended by the Legislature in the enactment of the general law for the formation of railroad corporations. Lake Shore v. Chicago, 97 Ill. 506; Central City v. Fort Clark, 81 id. 253, distinguished. Connecting Railroad v. Union, etc. Opinion by Scholfield, J.


CONTRACT-PAYMENT OF MONEY TO THIRD PARTY.— Where, at the time of borrowing money, it is agreed between the parties that the borrower should pay it to a third party, to be by him delivered to the lender, and it is paid to such party as agreed, the borrower is discharged from further liability. Fiske v. Fisher, 100 Mass. 97; Osborn v. Baird, 45 Wis. 189. Where an instruction asked for covers a point material to the issue, and there is some evidence tending to support it, the party requesting it is entitled to have it given. Whether the facts stated therein are true or not is a question for the jury, not for the court. Campbell v. Campbell, 54 Wis. 98; 11 N. W. Rep. 456. Sailer v. Barnbusky. Opinion by Cassoday, J. [Decided March, 1884.]

JOINT PARTIES-TORT-FEASORS-DISCHARGE OF ONE, -The discharge of one of two tort-feasors, against whom separate actions have been brought, does not discharge the other unless the satisfaction accepted by the plaintiff was intended by him to extend to the entire injury. Ellis v. Eason, 50 Wis. 138. Pogel v Meilke. Opinion by Cole, C. J. [Decided April 8, 1884.]

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DEED DEFECTIVE ACKNOWLEDGMENT CORRECTION. After a married woman's deed has been delivered, and the officer who certified the acknowledgment had gone out of office, he undertook to correct a defect in her certificate. Held, that this act was void for want of power. Waunell v. Kem, 51 Mo. 150; S. C., 57 id. 478, distinguished. Gilbraith v. Gallivan. Opinion by Winslow, Commr. [See 29 Alb. L. 356.-ED.]


* *

STATUTE OF FRAUDS-MEMORANDUM-PAROL EVIDENCE. (1) A memorandum offered in evidence was as follows: "Messrs. Parlin & Orendorff: Gentlemen -Please execute the following order for plows, culti* etc., to be delivered on board cars vators, in Chillicothe, Mo., marked for J. F. Lash: No. 6. 14inch cut, medium steel landside old ground plows, iron beam, $22; No. 7 (extra). 16-inch cut, medium steel landside, three-horse, old-ground plows, iron beam, $22; and other items of Plows in detail. Cultivators Iron beam, Parlin's patent, with shields, $14.50; wood beam, Parlin's patent, with shields, $13.50. For which I agree to give you my notes payable with exchange, or by express, prepaid, at above list, for plows, less forty-five per cent, and payable all January 1, 1879, with ten per cent interest; cultivators less net per cent, and payable January 1, 1879, with ten per cent interest. Parlin & Orendorff, per Taylor." Held, that though not a complete and perfect contract, this was a sufficient memorandum of a contract between J. F. Lash and Parlin & Orendorff, so as to be admissible in evidence in an action by the former against the latter; and that parol evidence was admissible to explain and apply it to the contract actually existing between the parties. (2) When a written memorandum of a contract does not purport to be a complete expression of the entire contract, or part of it only is reduced to writing, the matter thus omitted may be supplied by parol evidence. O'Neil v. Crain, 67 Mo. 250; Rollins v. Claybrook, 22 id. 407; Moss v. Green, 41 id. 389; Briggs v. Muuchon, 56 id. 467; Moore v. Mountcastle, 61 id. 425. Lash v. Parlin. Opinion by Winslow, Commr.


defense to an action upon a policy of insurance that
the insured, being infants, were not bound by the cou-
tract. In the case of New Hampshire Mut. Fire Ins.
Co. v. Noyes, 32 N. H. 345, it was held that an infant
who had insured his stock of goods was not liable to
the company on his premium note, as for necessaries,
when the infant interposed the plea of infancy; but
the contract of insurance was not held void. Many
contracts of infants are not void, but voidable merely,
in which case infancy is a personal privilege of the in-
fant, of which no one can take advantage but the infant
himself while living. Contracts which are manifestly
for the benefit of the infant are not void, but voidable
merely. The contract of insurance is of this class, and
although entered into between the defendant and the
minors jointly with their mother, is binding on the the
defendant. There was no fraud or concealment prac-
ticed upon the defendant with respect to the infancy
of the parties it was contracting with; the policy de-
scribes them as minors. A person to whom a promise
is made may sue upon it, though the consideration
moves from another. Mallon v. Whipple, 1 Gray, 321.
All contractees must join in suing upon a promise
made to them jointly, and any defense that is good
against one of them personally will defeat the entire
action; nor can such person help the others by assign-
ing his claim to them. The interests of parties who
have jointly taken out a policy of insurance are not
severed by the occurrence of a loss; and any subse-
quent failure upon the part of one of them to comply
with the conditions imposed by the policy will defeat
any action that may be brought upon it. In a civil
action, when the defense relied upon amounts to the
charge of a crime, this defense need only be proved by
a preponderance of evidence; but the presumption of
innocence exists as in a criminal case, and should be
taken into consideration in fixing the preponderance
of evidence. Sup. Ct. Mich. April 9, 1884. Monaghan
v. Agricultural Fire Ins. Co. Opinion by Champlin, J.
(18 N. W. Rep. 797.)

JUDGE DISQUALIFICATION.-In a proceeding to condemn land for a street, a judge who is a party to the record cannot sit in the case even by consent of parties. The statute which authorizes a judge "who is interested in any suit" to try it, if the parties consent, has no application to such a case. R. S., § 1041. City of Kansas v. Knotts. Opinion by Martin, Commr. [See 28 Eng. R. 787.--ED.]

FIRE-WAIVER OF FORFEITURE-RECEIVING ASSESSMENT. Where an insurance company has notice of a breach of the contract which would avoid the same, but fails to cancel the policy, and even receives an assessment on the plaintiff's stock in the company, on account thereof, these acts amount to a waiver of the breach. There could scarcely be any act more strongly indicating the continuance of this policy, after the breach of conditious thereon, than this assessment. It is so held in Viall v. Genesee Ins. Co., 19 Barb. 440. In support of the principle we might cite cases too numerous to mention in this opinion. See Joliffe v. Madison M. Ins. Co., 39 Wis. 111; Palmer v. St. Paul F. & M. Ins. Co., 44 id. 201. Sup. Ct. Wis. March 18, 1884. Osterloh v. New Denmark, etc., Ins. Co. Opinion by Orton, J. (18 N. W. Rep. 749.)

*To appear in 78 Missouri Reports.

policy of insurance provided that if the interest of the
assured in the property were not entire and uncondi-
tional, it must be so expressed in the written part of
the policy, or else the policy should be void, and a part
of the property was mortgaged to A., held, that though
the mortgage was not originally mentioned in the pol-
icy, the company, by indorsing thereon, "loss, if any,
payable to A., according to his interest," waived the
breach of condition and was bound by the contract.
(2) A clause in the policy requiring proofs of loss to be
made by the party originally insured, even though the
amount should be made payable to a third party, does
not entitle the insured in such a case to recover the
amount of the loss as his own. (3) Any attempt by the
insured, by means of application under oath, to re-
cover the full amount of the loss in such a case, is a
fraud upon the company within the meaning of a
clause in the policy providing that "all frauds, or at-
tempt at fraud, by false swearing or otherwise, shall
cause a forfeiture of all claims." Sup. Ct. Iowa.
April 9, 1884. Lewis v. Council Bluffs Ins. Co. Opin-
ion by Beck, J. (18 N. W. Rep. 885.)


INDORSER-NOT LIABLE-PAPER NOT NEGOTIABLE.A promissory note bore upon its face a statement that it was issued as collateral to the makers' draft accepted by a third party. In an action against the in

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dorsers of this note in their character of indorsers, held, that the undertaking of the makers was a contingent one; that the amount due on the note at its maturity was uncertain; that the note was not negotiable, and that the indorsers, as indorsers, were not liable. Sup. Ct. R. I. American National Bank v. Sprague. Opinion by Tillinghast, J. (To appear in 14 R. I.)

TAXATION-NOTES -"USED FOR CIRCULATION NOTES GIVEN TO EMPLOYEES.-The nineteenth section of the act of February 8, 1875 (18 St. 311), providing that "every association other than national bank associations, and every corporation, * *** shall pay a tax of ten per centum on the amount of their own notes used for circulation and paid out by them," does not apply to certificates of indebtedness, bearing interest and payable to bearer on a certain day therein named, issued in denominations of five and ten dollars each, and paid out, by a railroad company to its employees for wages, and providing that they would be received by the company at or before maturity for any debts due the company. These notes or certificates, having been issued only to the employees of the company on account of wages, and when paid by the company having been cancelled and not reissued, were not "used for circulation," and that they were used afterward by those to whom they were issued to discharge their debts to others or to purchase subsistence for themselves, does not affect the character imposed upon them by the company. We are of opinion that this case is ruled by U. S. v. Wilson, 106 U. S. 620; 2 Sup. Ct. Rep. 85. In every essential particular the certificates issued there and those in question here are remarkably alike. The former were certificates of indebtedness, good for round sums, payable to bearer at a future day, with interest, and onefourth of their face value was receivable before maturity for freight and debts due the company, and were paid out again at their face value with interest. Under these circumstances the Supreme Court held that it was not satisfied that these certificates "were calculated or intended to circulate or be used as money.' Now in view of this decision, we cannot hold that certificates of similar form, used by the railroad company, not for circulation, but as evidence of wages due to its employees, are within the scope and meaning of the act of Congress. Cir. Ct., E. D. Penn. March, 1884. Philadelphia & R. R. Co. v. Pollock. Opinion by McKennan, J. (19 Fed. Rep. 401.)

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NEGOTIABLE INSTRUMENT-BURDEN OF PROOF-ACCOMMODATION NOTE TRANSFERRED AFTER MATURITY. -When it is a part of the defense that a note was taken after its maturity such fact in general must be proved by the defendant. Duncan v. Gilbert, 5 Dutch. 521; Harger v. Worrall, 69 N. Y. 370. An accommodation note is negotiable after its maturity, and if taken for value will bind all parties to it. The plaintiff was a married woman, and had taken the note in suit in the State of Pennsylvania by indorsement from her husband. There was no proof of the law of Pennsylvania. Held, that the rule of the common law was applicable, and that she showed no title to the note. Sup. Ct., N. J. Nov., 1883. Seyfert v. Edison. Opinion by Beasley, C. J. (To appear in 45 N. J. L.)

NEGOTIABLE INSTRUMENT-PROTEST-DILIGENCE OF NOTARY.-When the maker's name to a note is illegible the notary, in making protest, must make a reasonable effort to ascertain the name. If the notary neglect such duty or misdescribes such name, whereby an indorser is misled, the protest will not be available as to such party. A mistake of that character is not attributable to the negligence of the holder of the paper, or that of his agent, giving notice of its dishonor, but the indorser who passes the paper into circulation must

bear the consequences of such misleading defect. But when the name of the maker is not so fashioned as to suggest to the notary a false name, but he finds it illegible, then it plainly becomes his duty to use reasonable endeavors to ascertain who is the person thus indistinctly signified. He is, when thus placed, put upon inquiry, and must use proper diligence. Such I understand to be the legal rule. Pars. on Bills and Notes, 485. Sup. Ct., N. J. Nov., 1883. McGeorge v. Chapman. Opinion by Beasley, C. J. (To appear in 45 N. J. L.)



LIQUORS CRIMINATION.-(1) The imposition of the tax upon the business of selling intoxicating liquors supplied from manufacturers out of the State is not a license, and is not a violation of the Constitution of this State. Youngblood v. Sexton, 32 Mich. 406; Kitson v. Mayor of Ann Arbor, 26 id. 325. It is a restraint upon such traffic through the police power of the State. Bartemeyer v. Iowa, 18 Wall. 129; License Cases, 5 How. 504; Gibbons v. Ogden, 9 Wheat. 205; Passenger Cases 7 How. 283. (2) The statute (act 226, Sess. Laws 1875) does not prohibit the introduction or sale of liquors made outside the State; it simply taxes the person who carries on the business here by making sales in this State, and is not in conflict with the article of the Federal Constitution regarding the commerce between States. The statute does not prohibit the introduction and sale of liquors made outside the State. It simply taxes the person who carries on the business here by making sales in this State. It in no way interferes with the introduction of the liquors here. It tolerates and regulates, but seeks not to prohibit. 1 think in this case no question can be successfully made under this clause of the Constitution until the point has been reached where regulation ceases and prohibition begins. A State may pass all such laws as she may deem necessary or desirable for the safety, health, or morals of her people, and may use whatever means she may think proper to that end, provided she does not antagonize any law of Congress. Com. v. Kimball, 24 Pick. 363; License Cases, 5 How. 575. The right of a State to tax occupations generally is recognized in Brown v. Maryland, 12 Wheat. 444; Nathan v. Louisiana, 8 How. 80; Pierce v. New Hampshire, 5 id. 593; Hinson v. Lott, 8 Wall. 148; Machine Co. v. Gage, 100 U. S. 676. (3) There is no unjust discrimination in the above act against citizens of other States; the person paying the tax stands on the same footing as the resident dealer, both as to sales made and quantity sold. Woodruff v. Parham, 8 Wall. 123; Guy v. Baltimore, 100 U. S. 438; Ward v. Maryland, 12 Wall. 418; 18 N. W. Rep. 807. Sup. Ct. Mich., Apr. 9, 1884. People v. Walling. Opinion by Sherwood, J. (See 29 Alb. L. J. 412. — ED.)


SHIP AND SHIPPING-BILL OF LADING-LIMITATION OF LIABILITY-NEGLECT OF DUTY TO PROVIDE SHIP FIT FOR ITS PURPOSE.-Certain cattle were shipped on board a steamer for conveyance from London to New York under a bill of lading which provided that "these animals, being in sole charge of shippers' servants," "it is hereby expressly agreed that the National Steamship Company, or its agents or servants, are as respects these animals in no way responsible either for their escape from the steamer or for accidents, disease or mortality, and that under no circumstances shall they be held liable for more than 51. for each of the animals." Held, that the above clause limiting the liability of shipowners to 51, for each of the cattle did not apply

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