an application for a patent for mining ground, is a suit arising under the laws of the United States.BUTTER V. SHOSHONE MIN. Co., U. S. C. C. (Idaho), 75 Fed. Rep. 37.

26. HUSBAND AND WIFE-Community Property-Cali fornia Statutes.-In California a husband has absolute power, during his life-time, to sell or mortgage the community property; and the interests of all who claim under or through him, or by reason of his death, including the interest of his wife, are bound by a disposition so made by him.-HEARFIELD V. Bridges, U. S. C. C. of App., 75 Fed. Rep. 47.

27. INSURANCE-Cancellation-Agency.-After plaintiff had obtained insurance through H, an insurance broker, the agents of the insurance companies notified H to return the policies for cancellation. Thereupon H wrote to plaintiff to return them, saying that he was unable to hold them at the rate at which they had been issued, and that the companies had ordered them to be returned for cancellation. Plaintiff sent them to H, who delivered them to the companies, and they were canceled: Held, that H was not made the agent of the companies by the application to him to return the policies, but that he was specially authorized by plaintiff to cancel the policies, and that the validity of the cancellation was not affected by any mistake or misrepresentation of his concerning directions from the companies, or by his neglect of any duty to rein. sure.-PARKER & YOUNG MANUFG. Co. v. EXCHANGE FIRE INS. CO., Mass., 44 N. E. Rep. 614.

28. INSURANCE Construction of Policy. Without sacrificing the substantial limitations imposed upon the liability of an insurer by the contract between the parties, stipulations and conditions in policies of insurance, like those in all other contracts, are to have a reasonable intendment, and are to be so construed, if possible, as to avoid forfeitures, and to advance the beneficial purposes intended to be accomplished.CLAY V. PHOENIX INS. Co., Ga., 25 S. E. Rep. 417.

29. INSURANCE - Waiver of Breach of Conditions.Where a policy of fire insurance contained stipulations or conditions reciting that, unless such and such things were true, the policy was to be void, and the declaration in an action thereon showed affirmatively that one or more of these things was not true, it was demurrable, but was saved by an amendment alleging in substance that the company's agent by whom the policy was delivered to the insured knew at and be fore the time of making the delivery all the facts to which such stipulations or conditions related, and that consequently the company waived the benefit of the same. In such case it was, of course, incumbent upon the plaintiff to prove the waiver as alleged.-ME. CHANICS & TRADERS' INS. CO. OF NEW ORLEANS V. MUTUAL REAL ESTATE & BUILDING ASSN., Ga., 25 S. E. Rep. 457.

30. JUDGMENT Assignment Death of Assignor.Where a judgment is rendered in favor of several persons, and said judgment is assigned by the owners thereof, and, after such assignment, one of the origi. nal owners of said judgment dies, no proceedings are necessary for any revivor of the judgment in the name of the legal representatives of the deceased person; and any further proceedings in the actions may be maintained in the name of the assignee of said judg ment, an order of substitution being first made by the court in which proceedings may be pending.-WEAVER V. LOCK, Kan., 45 Pac. Rep. 1039.

31. MANDAMUS-Act of Municipal Officer.-Mandamus will not lie to compel the disbursing officer of a mu. nicipal corporation to pay out public funds in open dis. obedience of a restraining order made by a court of competent jurisdiction.-WILMARTH V. RITSCHLAG, S. Dak., 68 N. W. Rep. 312.

32. MANDAMUS-To Amend Record of Justice.-A writ of mandamus will not be granted to compel an inferior court to amend its record where the amendment will avail nothing to the applicant.-KENDALL V. ÅLDRICH, Vt., 35 Atl. Rep. 429.

33. MARRIED WOMAN Goods Sold. The mere fact that a wife got the benefit of goods bought by her husband on his own credit would not, whether he was solvent or insolvent, make her liable in law to the seller for the price of such goods.-HIGHTOWER V. WALKER, Ga., 25 S. E. Rep. 386.

34. MORTGAGE-Duplicate Instruments.-A mortgage was executed by one H, as agent for a corporation, but not under its corporate seal. A question as to the validity of the mortgage and of the authority of the agent having arisen, another mortgage was executed, two months later, by the officers of the corporation, which was substantially the same as the one first executed. There were no intervening equities: Held, that the two mortgages were properly foreclosed as one, under a bill seeking foreclosure of the second. ROBINSON V. PIEDMONT MARBLE CO., U. S. C. C. (Ga.), 75 Fed. Rep. 91.

-

35. MORTGAGE Foreclosure - Junior Lienor.-In an action to foreclose a real estate mortgage on property on which a county has a junior lien, by virtue of taxes assessed upon the personal property of the mortgagor, defendant county's answer, alleging payment and cancellation of the note, and that the mortgage has been kept outstanding in order to defeat the lien of the county for its personal property tax, states a good defense; and a further allegation that the mortgage was kept outstanding in order to defraud the minor heirs of the intestate mortgagor may be treated as surplusage.-MCGILLIVRAY V. MCGILLIVRAY, S. Dak., 68 N. W. Rep. 316.

36. MUNICIPAL CORPORATIONS-Control by Legisla ture. The legislature of California is not restrained by § 6, art. 11, of the constitution of that State, adopted in 1879, from exercising control, by general laws, over municipal corporations, created prior to its adoption, but only from passing special laws affecting such cor. porations.-HUNTINGTON V. CITY OF NEVADA, U. S. C. C. (Cal.), 75 Fed. Rep. 60.

37. NEGLIGENCE-Notice.-Plaintiff was injured in an accident caused by a telegraph wire which had been allowed by the company owning it to remain for more than two months sagging across, and within two feet of the surface of, the highway: Held, that he was not precluded from recovering damages because neither he nor any one else had notified the telegraph company of the condition of the wire--WESTERN UNION TEL. CO. V. ENGLER, U. S. C. C. of App., 75 Fed. Rep. 102.

38. NEGLIGENCE-Dangerous Premises.-The declaration, as amended, alleging in substance that the plaintiff suffered personal injuries because of the defective and dangerous condition of certain steps attached to a storehouse belonging to the defendants, which they had rented to another; that the plaintiff, when injured, was using these steps in the due course of his business with the tenant; that the steps constituted a platform used in common with other storehouses belonging to and occupied by the defendants; and that the defective and dangerous condition of the steps was well known to the defendants, and they had sufficient opportunity to have the same repaired, but had neglected to do so, a cause of action was set forth, and it was error to dismiss the case on general demurrer.-ARCHER V. BLALOCK, Ga., 25 S. E. Rep. 391.

39. NUISANCE-Matter of Taste.-That a cemetery lot "was unsightly and disfigured, and needed to be filled and graded to put it in proper and suitable condition," does not warrant its being declared a nuisance.WOODSTOCK BURIAL GROUND ASSN. V. HAGER, Vt., 35 Atl. Rep. 431.

capital: Held, that the advances were to the son individually, and not to the firm.-BOICE V. CONOVER, N. J., 35 Atl. Rep. 402.

41. PARTNERSHIP-Subletting of Apartments.-Where a contract of partnership has for its business purpose the subletting of furnished apartments for purposes of prostitution, in direct violation of Pen. Code, § 316, its illegality is not cured by the facts that the copartnership, and the individual members thereof, are not par. ticipants, in any manner, in the business of prostitution, and that the tenements are located in a section of the city mainly inhabited by prostitutes, who are permitted to remain there by the police authorities.CHATEAU V. SINGLA, Cal., 45 Pac. Rep. 1015.

42. PUBLIC LANDS-Grant to Railroad Company.-The facts that a tract of land is claimed as part of a Mexican grant confirmed by the United States, and that a survey under the authority of the government has included the tract within the limits thereof, exclude such tract from the category of public land, and so from the operation of a grant by congress to a railroad company, although it is ultimately decided, in a proceeding pending at the time of the congressional grant, that the land in question is not within the limits of the Mexican grant.-SOUTHERN PAC. R. Co. v. BROWN, U. S. C. C. of App., 75 Fed. Rep. 85.

43. RAILROAD COMPANIES-Appointment of Receivers. The appointment of railroad receivers under a bill by a stockholder and bondholder, which makes no mortgagee a party, and which alleges insolvency, and prays merely that the system may be protected from its creditors, and held intact, may, in the absence of formal objection, be presumed to be for the common interest; but, until the mortgage bondholders intervene, such receivers stand practically for the corporation itself, with all its rights and powers, subject to such limitations and directions as the court may give. -NEW ENGLAND R. Co. v. CARNEIGIE STEEL Co., U. S. C. C. of App., 75 Fed. Rep. 54.

44. RAILROAD COMPANIES-Fires Set by Locomotive. -There being evidence from which the jury might have inferred that the plaintiff's woods were burned by a fire originating from sparks which escaped from a locomotive operated by a servant of the defendant, and ignited straw and other combustible material on the railroad right of way, and that the fire thus started burned continuously until it reached the plaintiff's land, it was error to grant a nonsuit.-BROWN V. BENSON, Ga., 25 S. E. Rep. 455.

45. REMOVAL OF CAUSES-Receiver of Federal Court. -A receiver appointed by a federal court has not a right, by virtue of his personal standing as such, to remove from a State to a federal court a suit in which he is joined as defendant with a citizen of the State.SHEARING V. TRUMBULL, U. S. C. C. (Colo.), 75 Fed. Rep. 33.

46. REMOVAL OF CAUSES - Separable Controversy. -Where an application is made, under State laws, to condemn [a portion of a large tract of land, the whole of which is owned in fee by a defendant, who is a citizen of another State than the applicant's and a small part of which, including some of the land sought to be condemned, has been leased by him to another defendant who is a citizen of the same State as the applicant, there is a separable controversy between the applicant and such first named defendant as to the land not leased, which can be removed to a federal court, on the ground of diverse citizenship.-SUGAR CREEK, P. B. & P. C. R. Co. v. MCKELL, U. S. C. C. (W. Va.), 75 Fed. Rep. 34.

47. SALE-Price Payable in Goods.-On breach by a vendee of a contract of sale providing for payment in specified goods, to be delivered on order from the vendor, by failure to deliver part of the goods when ordered, the balance of the price becomes payable in money.-SMITH V. COOLIDGE, Vt., 35 Atl. Rep. 432.

48. TRIAL-Nonsuit.-To warrant a nonsuit, it is not enough that the facts are without dispute. The inference that is drawn from such facts must likewise be,

in a legal sense, indubious, i. e., one about which reasonable men may not honestly differ.-NEW JERSEY, SCHOOL & CHURCH FURNITURE Co. v. BOARD OF EDUCATION OF SOMERVILLE, N. J., 35 Atl. Rep. 397.

49. TRUST-Charities-Bequest-Termination.-Where a testator bequeathed to an incorporated school and its successors a fund in trust, the income to be used for the education of poor children in its district, the abandonment of the school and diversion of the fund did not terminate the trust.-GREEN V. BLACKWELL, N. J., 35 Atl. Rep. 375.

50. VENDOR AND PURCHASER-Sale of Land-Rescission. No legal right of rescission can arise in favor of the holder of land under a bond for title until after a breach of the bond by the obligor.-SANDERLIN V. WILLIS, Ga., 25 S. E. Rep. 437.

51. VENDOR AND PURCHASER-Sufficiency of Title.Where a purchase contract gives the vendee 30 days for examination of title, provides for a deposit, and its return if title proves invalid, without specifying the time within which the conveyance is to be made, an unrecorded contract for sale of lands, of which the vendee has no notice, between a vendor and a third person, existing when the contract was made, and which, by mistake, included the same land, is a defect which will render the title invalid, and entitle the vendee to recover the deposit if the vendor fails within a reasonable time to remove the defect.-BARTLETT v. MCGEE, Cal., 45 Pac. Rep. 1029.

52. WATERS AND WATER COURSES-Statute Authoriz. ing Taking.-St. 1875, ch. 217, Fauthorizes the city of Taunton to take water from a pond, provided that a dam shall be built, where it flows into N river, sufficient in height to retain sufficient water for one year's supply for the city, and that the "natural flow" of the pond into N river shall at all time be maintained: Held, that the expression "natural flow" means the quantity of water ordinarily flowing in the stream at times when its volume is not increased by unusual freshets or rains.-NEMASKET MILLS V. CITY OF TAUNTON, Mass., 44 N. E. Rep. 609.

53. WILL-Omission of Devisee-Legal Presumption. -The presumption raised by the statute that the omission by a testator to provide for a child was not intentional may be rebutted by extrinsic evidence, whether of declarations of the testator or collateral facts.-IN RE ATWOOD'S ESTATE, Utah, 45 Pac. Rep. 1036.

54. WILLS-Capacity to Make-Inebriety.-Inebriety, though long continued, and resulting occasionally in temporary insanity, does not require proof of lucid intervals, to give validity to the acts of the drunkard, as is required where general insanity is proved. Consequently, where habitual intoxication is shown, there will be no presumption that incapacitating drunken. ness existed at the time of making the will.-KOEGEL V. EGNER, N. J., 35 Atl. Rep. 394.

55. WILLS-Construction.-Under a will bequeathing $2,000 to each of testator's daughters, and thereafter giving to his son his interest in a firm business, the in terest in the firm personalty so given to the son is not liable to be applied to payment of the legacies to the daughters.-MEIS V. MEIS, N. J., 35 Atl. Rep. 369.

56. WILLS-Devisees - Execution of Trust.-Where, by will, property was bequeathed and devised to named trustees for the sole and separate use of a daughter of the testator for life, which property at her death was to vest absolutely in fee-simple in such child or children as she might have then living, and the will conferred upon the trustees large powers as to making sales of the trust property and reinvesting the proceeds thereof, and also the power to use the corpus of the estate for certain specified purposes, the trust created by the will was for the benefit of those entitled to take in remainder, as well as for the life tenant, although the trustee was not invested with the legal title to the estate in remainder, beyond what was involved in the execution of those powers.-HENDER. SON V. WILLIAMS, Ga., 25 S. E. Rep. 395.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 23, 1896.

It is often a nice question to determine to what extent extraordinary stipulations in promissory notes render them non-negotiable. Contrariety of decisions on this point is the chief cause of the perplexity. The National Corporation Reporter calls attention to some recent Michigan cases on the subject which rather add to the general uncertainty as to what the law is. In Brooke v. Struthers, 68 N. W. Rep. 372, a note had been executed providing for the payment of a certain sum to the payee or bearer at a certain time. There was a stipulation that the whole amount should become due upon default in the payment of interest. The note also contained the following clause: "This note is of even date with a certain real estate mortgage made by the maker hereof to said payee and collateral hereto." A bill was filed by the assignee of the note to foreclose this mortgage, and the entire case turned upon the one question as to the negotiability of the note. There was a provision in the mortgage that if the mortgagor should leave any valid tax or assessment unpaid for thirty days, such taxes and the whole amount of principal and interest should at once become due and payable. was asserted that this clause in the mortgage deprived the note of its negotiable character, which contention was sustained by the court.

It

At the outset the court reached the conclusion that the note and mortgage must be construed together, as constituting one contract, and if there was any provision in the mortgage which rendered the time of payment of the note uncertain, then it was robbed of its negotiable character-citing a great number of authorities.

The court alluded to provisions in mortgages allowing the mortgagee to pay taxes, procure insurance, and charge the cost to the mortgagor, etc., and said: "All of these provisions may be proper and valid if the parties choose to agree upon them, but they constitute additional agreements to the promise to pay the debt, calling for the payment of additional sums of money, and they are usually conditional, and most always uncertain in amount, and we are not aware of any

such urgent necessity that such instruments be considered negotiable as to justify the disregard of plain and generally recognized principles for its accomplishment, when all agree that the same provisions, if in the note itself, would make it non-negotiable in any court in the land, except where statutes intervene." With regard to the provision in the mortgage before it, the court said: "It injects into the obligation a contract, as much as though the maturity and amount of the obligation were to depend upon the performance of an undertaking to clear a portion of the premises mortgaged, or to open a mine, sink a well, or perform any other act of service agreed upon, calculated to enhance or maintain the value of the security." The court referred particularly to McClelland v. R. R. Co., 11 N. Y. 469, 18 N. E. Rep. 238; McClure v. Oxford, 94 U. S. 429; City v. Lamson, 9 Wall. 478.

In the very next case-Wilson v. Campbell, page 278 of the same Reporter-the Michigan court held that an almost identical provision as to taxes did not rob the note of its negotiability because at the time the note and mortgage were executed the obligation rested upon the mortgagor to pay all taxes, and this provision added nothing to what the law implied. It would almost seem that the court overruled itself, for it decided that there was no fatal uncertainty as to time of payment, citing a great number of authorities to the effect that provisions which allow the whole sum to be declared due upon certain conditions do not destroy the negotiability of a note.

Justice Montgomery wrote this latter opinion, and he concurred in the former decision on the ground that the amount to be paid was uncertain, while Justice Hooker, who wrote it, as will be observed, based his decision upon the fact that the time was uncertain. Strange to say, a statement appears at the end of the decision that Justices Grant and Hooker "concur in the above opinion because it is ruled by the case of Brooke v. Struthers." To the reader of both it would seem that the leading opinion in Brooke v. Struthers is opposed to the doctrine in Wilson v. Campbell. As the National Corporation Reporter well says, "the decision in Brooke v. Struthers is a sweeping one, and it seems to us it proceeds on very narrow

grounds. If it is to be generally followed, it will necessitate a complete revolution in present methods of issuing notes and security therefor. It brings to mind somewhat vividly the struggle which resulted when the innovation of providing for attorneys' fees in judgment notes was introduced. We believe the decision of the Michigan court is placed upon too narrow ground to long resist the tide of modern business methods, to which courts unconsciously, and even against their will, bend themselves. We think the court will

discover that it has stirred up a hornets' nest which will cause a vast amount of litigation. The decisions do not even possess the merit of consistency. The court seems to have laid down a doctrine which it, to all intents and purposes, completely overrules on the same day, and yet at the same time states that the one decision supports the other."

NOTES OF RECENT DECISIONS.

REMOVAL OF CAUSES-RECEIVER OF FEDERAL COURT.-In Shearing v. Trumbull, 75 Fed. Rep. 33, decided by the United States Circuit Court for Colorado, it was held that a receiver appointed by a federal court has not a right, by virtue of his personal standing as such, to remove from a State to a federal court a suit in which he is joined as defendant with a citizen of the State. The court says:

Olive D. Shearing brought suit in the District Court of Arapahoe county against Frank Trumbull, receiver, and the Denver Consolidated Tramway Company to recover damages resulting to her from the death of her husband, caused by the negligent acts of the defendants. The suit was removed into this court by Trumbull, receiver, alleging that it arises under the constitution and laws of the United States. An order was made on the 13th day of May last, remanding the case, on the ground that the court has not jurisdiction of it. Trumbull now moves to vacate the order and reinstate the case. He was appointed receiver of the Union Pacific, Denver & Gulf Railway Company in this court, and if the action had been brought against him alone, there would be no doubt as to his right to remove it. But the suit is against the Denver Consolidated Tramway Company, a Colorado corporation, which has no right of removal, and the question is whether all parties defendant must have such right, in order that it may be maintained by any of them. It is said that the case arises under the constitution and laws of the United States, but it is not of that character in the sense that there is any federal question to be decided. Whenever a question arises in a case as to the proper con. struction or effect of the constitution or some law or

treaty of the United States, a federal court has jurisdiction of the cause, without regard to the citizenship of the parties. Water Co. v. Keyes, 96 U. S. 199. A suit by or against a federal corporation, or by or against a receiver appointed in a federal court, is not of that class. In such case, the suitor has a personal standing in a federal court, in virtue of the authority under which he proceeds. A receiver appointed in a federal court is personally qualified to sue or be sued in such court, because of his appointment. He has the personal standing of a citizen of another State, when the ground of jurisdiction is the diverse citizenship of the parties. In an action of tort against several, all defendants must have the requisite quali fications in order that the suit may be removed to federal court. Pirie (v. Tvedt, 115 U. S. 41, 5 Sup. Ct Rep. 1034, 1161. In this instance, the defendant Trumbull, as an officer of a federal court, was competent to ask for the removal, but his codefendant was not in the same situation. As the tramway company was not qualified to remove the cause, the defendant Trumbull is under the same disability. In my judg ment, Landers v. Felton, 73 Fed. Rep. 311, on which the defendant relies was wrongly decided and I am not able to follow it.

FIDELITY INSURANCE CONSTRUCTION OF POLICY CHANGE OF EMPLOYMENT. The Supreme Court of Georgia, in Fidelity & Casualty Co. v. Gate City Nat. Bank, 25 S. E. Rep. 392, decide some interesting questions in the law of fidelity insurance, the holding being that under a contract by which a fidelity and casualty company binds itself to make good to a bank, to a specified extent, such pecuniary loss as the latter may sustain by reason of the fraud or dishonesty of a named employee in connection with his duties as receiving teller, "or the duties to which, in the employer's service, he may be subsequently appointed or assigned by the employer," it is the right of the bank, without notifying the company, to confer upon this employee the office of assistant cashier, in addition to that of receiving teller; and, upon this being done, the company is as much bound to make good to the bank losses occasioned, during the period covered by the contract, by reason of the employee's fraud or dishonesty while acting in the capacity of assistant cashier, as in that of receiving teller. Although the contract may have required the bank, upon the discovery of any fraud or dishonesty on the part of such employee, to give notice thereof to the company, and also, immediately after knowledge by the bank of the occurrence of any act on his part involv ing a loss to the company of more than $100, to notify the company of the same, yet where such contract contained no stipulation making it in the least degree incumbent upon the

bank to exercise any diligence or care in inquiring into or supervising the conduct of this particular employee, or of any of his coemployees in its service, and imposed upon it no duty of vouching for the fidelity or efficiency of the latter, or of requiring them to watch and report upon his actings and doings, information or knowledge on the part of the bank's cashier-he being only such a coemployee as to the matters concerning which the company had stipulated for notice, would not, relatively to it, be, under these circumstances, imputable to the bank itself. The court says in part:

The following cases throw much light upon the subject under consideration: In Railway Co. v. Shaeffer, 59 Pa. St. 350, it was held that, where an officer of a corporation violates his duty, knowledge on the part of other officers of the corporation of the default, or even connivance in it, does not discharge the sureties. In that case the defaulting employee had given a bond, with sureties, for the faithful discharge of his duties. In delivering the opinion of the court, Sharswood, J., says: "Corporations can only act by officers and agents. They do not guaranty to the sureties of one officer the fidelity of the others. The rules and regulations which they may establish in regard to periodical returns and payments are for their own security, and not for the benefit of the sureties. The sureties, by executing the bond, become responsible for the fidelity of their principal. It is no collateral engagement into which they enter, dependent on some contingency or condition different from the engagement of their principal. They become joint obligors with him in the same bond, and with the same condition underwritten. The fact that there were other unfaithful officers and agents of the corporation, who knew and connived at his infidelity, ought not in reason, and does not in law or equity, relieve them from the responsibility for him. They undertake that he shall be honest, though all around him are rogues. Were the rule different, by the conspiracy of the officers of a bank, or other moneyed institution, all their sureties might be discharged. It is impossible that a doctrine leading to such consequences should be sound. In a suit by a bank against a surety on the cashier's bond, a plea that the cashier's defalcation was known to and connived at by the officers of the bank was held to be no defense. Taylor v. Bank, 2 J. J. Marsh. 564." In the latter case it would seem that a mother bank established a branch, putting it into the hands of a directory for manage. ment, and itself appointing a cashier, requiring of him a bond. In speaking of a plea filed in defense to a suit upon the bond, Judge Robertson said (pages 569, 570): "It imputes to the directory of the branch bank only a knowledge of the delinquencies of the cashier, and a connivance at them. It was their duty, if they had any such knowledge, to communicate it to the mother bank. And if they failed to do it there would be more reason for charging them with fraud on the mother bank than for imputing to it any fraud on the sureties of the cashier. It is not the presumption of either law or fact that everything known to the branches is communicated to the principal bank. The cashier of a branch is an agent of the mother bank. The directors of the same branch are other agents of

the same parent institution. Suppose these several agents combine to defraud their principal; is te one excused by the fact that the other is particeps? is the surety of one exonerated because the other has co-operated in the malfeasance? Or suppose one connive at a fraud or improper conduct of the other; is the employer responsible because one of its agents, knew of the delinquency, and might have prevented its recurrence? The legal maxim, 'Qui facit per alium facit per se,' does not apply to such a case. The connivance of the branch is not that of the mother bank. The fraud of the branch is not that of the mother in stitution, because, if the plea be true, there was a tacit combination of the agents to injure the principal. If A employ a principal to transact particular business, and exact from him security for his fidelity, and constitute another agent to perform other associate and supervisory functions, surely, if they both conspire to defraud their constituent, the security shall not be permitted to say that the act of the agent is that of the principal." Brandt, in his work on Suretyship and Guaranty (section 369), recognizes and approves the doctrine laid down in the cases above referred to, and says: "If the sureties of one officer of a corporation could be relieved from liability by the neglect of duty of other officers of the corporation, the corporation would be deprived of all remedy.". See additional cases cited by the author. The above authorities will suffice to show that the doctrine of constructive notice has no application to transactions such as that in the present case. Not having required the bank to insure the fidelity of all its other employees, as a condition precedent to recovery on Redwine's bond, the company cannot take advantage of the failure of duty on the part of one of the bank's employees. Undoubtedly it was the duty of McCandless, the cashier, to inform the bank as to any misdoings of Redwine of which he knew. This was, how. ever, a duty he owed the bank, and not the company, which could only derive a benefit therefrom by express stipulation in its contract to the effect that it should be entitled to have such duty of McCandless to the bank faithfully performed. The bank suffered from such neglect to a far greater extent than did the company, whose liability under its bond was limited in amount, and surely the bank is not equitably estopped from claiming a benefit under the bond which it expressly stipulated for.

ASSIGNMENT FOR BENEFIT OF CREDITORS— WHEN FRAUDULENT.-It is held by the Supreme Court of Montana, in Rosenstein v. Coleman, 45 Pac. Rep. 1081, that an assignment for the benefit of creditors, which gives the assignee discretionary power to sell "either for cash or on time, or for credit," is fraudulent per se as to creditors, though it also directs the assignee to use all diligence in disposing of and collecting the property and effects, to the end that the creditors "may not be hindered or delayed," and that Comp. St. div. 5, § 231, making the question of fraudulent intent on the part of the grantor one of fact, does not preclude the court from adjudging fraudulent an assignment for the benefit of creditors which