a tort claim, unliquidated, not reduced to judgment until after the adjudication in bankruptcy, and hence not a debt provable in the bankruptcy proceedings. In re Crescent Lumber Co. (D. C.) 154 Fed. 724; Dunbar v. Dunbar, 190 U. S. 340-350, 23 Sup. Ct. 757, 47 L. Ed. 1084. It follows, necessarily, that the title to the insurance policy did not pass to the trustee in bankruptcy, but remained with the bankrupt, to indemnify it against loss. The bankruptcy proceedings may therefore be dismissed from consideration.

It is settled in this state, in accord with the weight of authority elsewhere, that a policy of insurance, like the one before us, is a contract to indemnify the assured alone, that there is no privity of contract between the insurer and the injured employe, and that payment of the loss by the assured is a condition precedent to the right to maintain an action on the policy by the assured. Stenbom v. Brown-Corliss Co., 137 Wis. 564, 119 N. W. 308, 20 L. R. A. (N. S.) 956, and cases cited in the opinion in that case. In the Stenbom Case it was also held that, under a policy which contracted to reimburse the assured for a loss "actually sustained and paid" by him, the payment may be made otherwise than in money, provided the same is made and accepted in good faith and there is a bona fide settlement and satisfaction of the judgment secured by the injured employe. In the present case the condition of the policy provides that there must be "payment in money" by the assured before there arises liability upon the policy. It may well be that this provision would logically take the case out of the lastnamed rule. We do not find it necessary, however, to decide that question.

Assuming that the words used in the present policy are no stronger in legal effect than those used in the Stenbom policy, we are well convinced that there was no payment shown here. True, the corporation gave an absolute note to the bank, which Eberlein indorsed, and the money was secured on that note. Had Mr. Eberlein turned that money over to Castonguay and been content to look to the defendant's contract for his protection, a very different question would have been presented. But the money has never been used to pay the judgment, and never will be unless there is a recovery in this action first. This exactly reverses the terms of the defendant's contract. That contract is to pay the assured what the assured has first been compelled to pay to the injured person; the arrangement now to be substituted provides for paying the injured person what the insuranre company has first been

compelled to pay to the assured. To say that the assured has actually paid a judgment, when the money has merely been secured from the bank on a note, and never has reached the judgment creditor, but is held by an indorser of the note as security for his indorsement, and is to be turned over to the bank at once in case of failure in the present action, is to make substance out of shadow.

The case principally relied on by the respondent is the case of Herbo-Phoso Co. v. Phila. Cas. Co., 34 R. I. 567, 84 Atl. 1093. While there are some similarities in the two cases, there are also very substantial differences, and we cannot consider it as controlling, or even as very persuasive, as applied to the facts before us.

Judgment reversed, and action remanded, with directions to render judgment for the defendant dismissing the complaint.

NOTE.-Payment by Note as Sufficient Under Policy to Reimburse Insured for Loss Actually Suffered. All that was held in the Stenbom case referred to by the instant case was that there was merely a nominal compliance with the terms of the insurance contract-a mere scheme to raise money by a receiver to settle a claim in favor of an employe. Many cases hold, however, that a note given in bona fide settlement of a claim and accepted as such by an employe may be the predicate of a claim against an insurance company. Thus an unsecured note given to a minor employe under approval of the probate judge was a sufficient payment to make the indemnity company liable. It was said the approval of the probate judge is alone sufficient to dispel any idea of bad faith and required cogent proof to the contrary. Though the note was not secured it was said the insured apparently had sufficient property to pay any judgment that could be obtained. It was said that: "Had the assured paid the judgment, that had been recovered in cash out of its own funds or paid it in money borrowed from another, there could be a secret agreement to repay it or some part of it to the assured after the collection is made from the insurance company." Taxicab M. Co. v. Pacific Coast Cas. Co., 73 Wash. 631, 132 Pac. 393.

In Kennedy v. Fidelity & C. Co., 100 Minn. 1, 110 N. W. 97, 9 L. R. A. (N. S.) 478, 117 Am. St. Rep. 658, it was said: "The whole argument of appellant rests upon the claim that the mere giving of the notes did not amount to a loss actually sustained, for the reason that the maker of the notes and the guarantor might never be called upon to make payment, might become insolvent, that there is no certainty they will ever be paid, and, if not paid, there is no loss actually sustained. This means that the assured, no matter what his financial condition might be, would be compelled to raise the actual cash within sixty days and pay it to the judgment creditor or be foreclosed from enforcing the indemnity against the company. If the position is sound, the money could not be raised by borrowing at a bank, or at any other place, upon promissory notes secured either by a signer or by property, because, be

fore the notes become due, the property might become worthless, deteriorate in value, or the parties might become insolvent, and no actual payment ever be made; hence no loss. *** Of what consequence is it to the company whether respondent has on hand immediate cash to pay the judgment, or whether the judgment debtor is compelled to borrow that amount on the most favorable terms, or whether he makes the payment and then secures satisfaction by the execution of promissory notes running direct to the judgment creditor? *** If the assured accomplished the satisfaction and payment of the judgment by executing and delivering the promissory notes, the good faith of that transaction was hardly open to question, even though it gave the assured the advantage of collecting from appellant company the amount of insurance before the notes came due."

The above case was expressly approved in Seattle & S. F. R. Co. v. Maryland Cas. Co., 50 Wash. 44, 96 Pac. 509, 18 L. R. A. (N. S.) 121, 126 Am. St. Rep. 886, and it was held that a note is a payment amounting to an actual loss, if given in good faith. The opinion says: "Appellant insists that the maker of the note may be insolvent, or that the note may be compromised or settled for a sum less than the indemnity policy. These matters are held immaterial in some of the cases cited."

Wilson v. Hite, 154 Ky. 61, 157 S. W. 41, held a surety upon a supersedeas bond could recover on an undertaking to indemnify him where he gave a note to the assignee of the judgment notwithstanding that it appeared that then he did not have sufficient property to pay the note and at the time the note was given an action on the bond had been dismissed without prejudice, instead of as settled.

In Herbo-Phoso Co. v. Philadelphia Cas. Co., 34 R. I. 567, 84 Atl. 1093, the words in the policy read, "for loss or expense actually sustained and paid in money." The insured gave a note for the amount of the judgment debt and received a cashier's check which it gave to plaintiff's attorney. The attorney then with client's consent deposited the check in the bank of the cashier and received a certificate of deposit which was pledged as collateral to the note. The note was renewed and plaintiff paid the interest. No agreement however existed, whereby payment was contingent on the happening of any event. It was claimed that the whole thing was a subterfuge but the court said: "Those notes, so far as appears, are valid claims against the assured, and the agreed facts serve to strip the transaction of any collusive feature which could effect any modification of his liability thereon." It hardly could be made to appear more certainly than it did, that this was an arrangement contemplating the winding up of the matter when payment would be made by the casualty company.

In West Riverside Coal Co. v. Maryland Cas. Co., 155 Iowa 161, 135 N. W. 414, 48 L. R. A. (N. S.) 195, the insured, a corporation, caused two of its directors to procure a loan to pay a judgment insured against. A bank refused to loan to the corporation except on the directors pledging collateral of their own and to secure these directors the corporation assigned to them its book accounts. The court said in disposing of the corporation's suit against the indemnity company that: "It is urged with much persistence

and ability that the judgment was in fact paid by (the directors) and that they are the real parties seeking recovery from this defendant. It is true that the defendant never undertook to protect (these directors) against loss. Its obligation was to the coal company alone, and it is elemental that its liability cannot be extended beyond the terms of its contract. *** But, notwithstanding the strictness of this rule, we are of opinion, that it must be held as a matter of fact and law that the plaintiff did pay the judgment in question, and that because of such payment it has suffered a loss within the meaning of its contract with the defendant." The court goes on to speak of the coal company then being involved, but: "The situation would not have been different from a legal standpoint had the bank furnished the money on plaintiff's note bearing the indorsement of these directors."

These cases seem opposed generally to the ruling in the instant case, and show that the contracts of indemnitors are construed with more C. liberality than it construes them.

HUMOR OF THE LAW.

Magnate "I give that lawyer $10,000 a year to keep me out of jail."

"Oh, John! Please stop spending your money so foolishly."

Judge: "I'm, surprised at your going to law over a pig. Why don't you settle it out of court?"

"We was goin' to settle it out of court, yer Honor, only a cop came and pulled us apart!"

A witness was examined before a judge in a case of slander, who required him to repeat the precise words spoken. The witness, fixing his eyes earnestly upon the judge, began: "May it please your Honor, you lie, and steal and get your living by cheating." The face of the judge reddened, and he exclaimed, "Turn your head to the jury when you speak."-Wit and Wisdom.

Counsel for the plaintiff: And so on the twelfth of the month you called on Mr. Wilkinson? Now, what did Mr. Wilkinson say to you? Counsel for the defendant: I object to that question.

The question was thereupon debated for half an hour, and was allowed by the judge.

"Now, witness," said the counsel for the plaintiff, triumphantly, "on the twelfth of the month you called on Mr. Wilkinson. What did he say to you?"

Witness: He wasn't at home.-National Corporation Reporter.

22. Preference.-That, after adjudication in bankruptcy on a voluntary petition, creditors who filed an involuntary petition filed their claims with the referee, does not deprive them of their right to attack a preferential transfer. -International Silver Co. v. New York Jewelry Co., U. S. C. C. A., 233 Fed. 945.

23.- -Priority.-Under Act Pa. June 16, 1836 (P. L. 777), § 83, a landlord, who after levy on his tenant's goods distrained for rent, acquired priority, which continued despite the subsequent bankruptcy of the tenant.-In re Gerrow, U. S. D. C., 233 Fed. 845.

24. -Priority.-Section 1825 (4) a of the Porto Rico Code, relating to acknowledgment of notes by notarial seal, if resorted to by a creditor and an insolvent debtor within four months of his bankruptcy, to defeat the Bankruptcy Act, cannot be recognized as establishing a priority in such creditor's favor.-In re Vidal, U. S. C. C. A., 233 Fed, 733.

25. Priority.-Under Landlord and Tenant Act N. J., § 4, and Bankr. Act, § 64b, subd. 5, a New Jersey landlord, who had not perfected his lien on goods on the demised premises by distraint, may, after bankruptcy, assert his priority, subject to payment of costs of proceeding.-In re Braus, U. S. D. C., 233 Fed. 835.

26.

-Revocation of Agency. Where defendant commissioned a dealer in paintings to purchase them for him and to resell them on commission, the dealer's bankruptcy, possession of the paintings being delivered to the dealer, revoked the agency.-McKey v. Clark, U. S. C. C. A., 233 Fed. 928.

27.- -Statutory Construction.-Bankr. Act, § 47a, as amended, giving trustees rights of a creditor holding a lien, is not retroactive, and the right of trustee dates only from the filing of petition in bankruptcy, and does not extend to transfers recorded within four months prior to petition, though applicable to transfers thereafter.-Bunch v. Maloney, U. S. C. C. A., 233 Fed. 967.

28.- -Territory.-Under Organic Act April 12, 1900, § 14, local Porto Rico legislation, relating to insolvent estates in opposition to the Bankruptcy Act, is of no effect.-In re Vidal, U. S. C. C. A. 233 Fed. 733.

de

30. Banks and Banking-Depositor.-A positor who makes a note payable at a bank impliedly authorizes the bank to pay it and charge to his account, so that the bank may pay and cancel such a note and debit the account of the depositor.-Heinrich v. First Nat. Bank of Middletown, N. Y., 113 N. E. 531, 219 N. Y. 1.

31. Public Policy.-In suit in Tennessee to collect arbitrary assessments on stock by the New York banking commissioner, the question is not whether the statute authorizing such assessments is valid, but whether public policy of Tennessee permits such power to vest in a ministerial officer.-Van Tuyl v. Carpenter, Tenn.,

32. Bills and Notes-Evidence.-Where maker of judgment note conveyed realty in consideration of agreement to pay debts of maker including the note, the trial court properly found that the note had been paid.-Spencer v. Spencer, Pa., 98 Atl. 571.

33.- Renewal.-A "renewal" of a note is the giving of a new note in the place of the former one, and a contract for renewal contemplates a new note, to which the parties are the sa.ne, but is not an agreement for an extension.--Wilcox v. McCain Land & Live Stock Co., S. D., 159 N. W. 49.

34. Building Restrictions-Police Power. Laws 1912, c. 693, §. 1, forbidding erection of dwelling houses in section of city unless constructed as a separate building with certain spaces between, etc., held not within the police power, and unconstitutional as an invasion of property rights.-Byrne v. Maryland Realty Co., Md., 98 Atl, 547.

35. Burglary—Indictment and Information.— An indictment for breaking into a building of the "Hill Grocery Company," not averring it was a corporation or partnership, and averring felonious taking from "Hill Grocery Company, a body corporate," was insufficient.-Noah State, Ala., 72 So. 611.

38.

-28-Hour Law. The 28-Hour Law relating to the transportation of cattle will not justify the unloading in hot and dusty pens, unprotected from the sun.-Southern Pac. Co. v. Stewart, U. S. C. C. A., 233 Fed. 956.

39. Carriers of Passengers-Nonsuit.-Where passenger, who sought to recover for personal injuries resulting from violent starting and jerking of street car, stated that car started violently, but there was no evidence as to any unusual or violent starting of car, nonsut should be granted.-Uffelman V. Philadelphia Rapid Transit Co., Pa., 98 Atl. 574.

40. Chattel Mortgages-Crops.-Lien of chattel mortgage on tenant's interest in crop to be grown under a farm lease, after division of crop and settlement, attached to tenant's legal interest, regardless of who was in actual possession of the property.-National Bank of Wheaton, Minn., v. Elkins, S. D., 159 N. W. 60.

41. Commerce Employes.-A carpenter, riding on a train which carried the equipment for repair of a bridge used by railroad company in interstate commerce is, where the repairs were to be made by him, engaged in interstate commerce.-Grand Trunk Ry. Co. of Canada V. Knapp, U. S. C. C. A., 233 Fed. 950.

42.- Workmen's Compensation Act.-Recovery by railroad employe, injured while engaged in interstate commerce, for negligence of company, held governed by federal Employers' Liability Act, and not Michigan Workmen's Compensation Act, despite provisions of point 6, § 4, authorizing its application to employes engaged in intra and interstate commerce, where their duties can be separated.-Grand Trunk Ry. Co. of Canada v. Knapp, U. S. C. C. A., 233 Fed, 950. 43. Constitutional Law-Administrative Legislation. The argument that, if an act is invalid when passed, the vice continues and the statute may be annulled at any time does not apply to political or administrative legislation, but such laws must be attacked in seasonable time without delay.-State v. Howell, Wash., 159 Pac. 777.

44. -Statutory Construction.--Where a statute is intended merely to raise revenue, it may be interpreted as not prohibiting and rendering void a contract violating its terms.-Albertson & Co. v. Shenton, N. H., 98 Atl. 516.

45. -Vested Right.-Acts and expenditures of defendant, pursuant to permit to erect advertising signs, held not such as to create a vested right, relieving its assignee from observance of ordinance, subsequently enacted, imposing a limitation on the height of such billboards.-People ex rel. Publicity Leasing Co. v. Ludwig, N. Y., 113 N. E. 532, 218 N. Y. 540.

46. Contracts-Waiver.-Owner waived any right under uniform building contract to arbitrate disagreements with contractor, where he moved into the building in October, and, until shortly before contractor sued for his balance in January, raised no objection to the amount certified by architect as due, and did not suggest arbitration until the following September.McEvoy v. Willard E. Harn Co., Md., 98 Atl. 522.

47. Corporations-Capital Stock.-Where incorporators obtained charter before minimum capital stock had been subscribed and then solicited subscribers, the corporation obtaining credit, it is no defense in a suit against subscribers on insolvency of the corporation that the corporation was organized and transacted business before its minimum capital stock was subscribed.-Chappell v. Lowe, Ga., 89 S. E. 777.

48. Dissolution.-Upon attempted dissolution of a corporation, the secretary of state is not required to issue a certificate of dissolution, unless the certificate of the comptroller as to payment by the corporation of taxes is filed with him under 2 Comp. St. 1910, p. 1620, § 31a. -American Woolen Co. v. Edwards, N. J., 98 Atl.

470.

49.

Waiver.-Even if failure to resell stock at certain price were legitimate ground for rescission, the purchaser, after payment on the note and giving a new note after expiration of the time for resale, thereby waived that covenant, or was estopped from setting up breach thereof.-Majors v. Girdner, Cal., 159 Pac. 826.

50. Damages-Measure of.-Measure of damages for trespass, with impairment of riparian rights, is not difference between value before and after trespass; but where removable things were put on the property destroying its use, was the reasonable cost of removing and restoring the original condition.-Clark Lloyd Lumber Co. v. Puget Sound & C. Ry. Co., Wash., 159 Pac. 774.

51. Remittitur.-Where jury has assessed amount of damages, with interest from certain date. it is not error to require plaintiff to remit portion of interest ascertainable by date which determines inception of cause of action and enter judgment for the aggregate of principal and remaining interest.-Millan v. Bartlett, W. Va., 89 S. E. 711.

52. Death-Damages.-In an action to re⚫ cover for the negligent killing of one who was conducting a dairy, the difference between the gross receipts and the net receipts of the dairy, after deducting the rent of the land and expenses, cannot be taken as the earnings of deceased, and thus furnish a standard for estimating the value of his life.-Powell v. Berry, Ga., 89 S. E. 753.

53. Deeds-Acceptance of Benefits.-One who accepted benefits of deed, providing for payment of grantor's debts, is as fully bound as if he had signed it.-Spencer v. Spencer, Pa., 98 Atl.

571.

of

Child.-That men

54. the Divorce Custody subsemother has been indiscreet with quent to divorce, in the absence of proof of moral turpitude, is not sufficient to deprive her of custody of her child awarded by the decree. -Freeland v. Freeland, Wash., 159 Pa. 698.

55. Descent and Distribution-Advancement, -Advancements do not bear interest of themselves, but only by force of the testator's intent clearly expressed in the will.-In re Knight's Estate, Pa., 98 Atl. 558.

56. Electricity-Negligence.

Notwithstanding wires of an electric company were originally properly constructed, it was bound to maintain them so as to prevent their coming in contact with other wires that might thereafter be stretched across the street, and to keep them properly insulated.-Gulf States Telephone Co. v. Evetts, Tex., 188 S. W. 289.

57. Explosives-Proximate Cause.-Company, leaving open chest containing explosive caps on public highway where children played, was not liable when boys stole a box of the caps, carried it off, and in an explosion the next day killed plaintiff's intestate, since his death was not the proximate result of its act.-Perry v.

60.

Insurance-Accident Policy.-An accident policy, which provides for payment of the principal sum in case of death from sunstroke due to external, violent, or accidental means, does not cover death of a fireman from sunstroke resulting from exposure and heat while in performance of his ordinary duties.-Continental Casualty Co. v. Pittman, Ga., 89 S. E. 716.

61. Beneficiary.-After death of insured, insurer could not change the status of the beneficiary by rescission of the policy.-Oplinger v. New York Life Ins. Co., Pa., 98 Atl. 568.

62. Change of Beneficiary.-Where an industrial life policy designated insured's first wife as beneficiary and she died, a second wife held not entitled to the proceeds; the designation not having been changed.-In re Shanley, N. Y., 160 N. Y. Supp. 733.

63.- Foreign Corporation.-The state may impose stringent conditions on foreign insurance companies incident to every transaction within its limits of the insurance business, and may even go so far as to exclude them altogether. Adamson v. Schreiner, N. Y., 160 N. Y. Supp. 745.

64.

Incontestability.-Under Rev. St. 1911, art. 4741, a life policy providing, "This policy shall be incontestable after it has been in force one year, providing premiums have been duly paid," was not contestable four years after it was issued, on the ground that it was obtained by fraudulent representations of the insured as to his health and use of alcoholic drinks.Southern Union Life Ins. Co. v. White, Tex., 188 S. W. 266.

65. Insurable Interest.-One who loans money to a business concern, taking as collateral security an assignment of a fire policy on the goods used by the borrower in his business, has an insurable interest, within Comp. Laws, 1913, § 6466.-Hecker v. Commercial State Bank of Carrington, N. D., 159 N. W. 97.

66.Iron Safe Clause.-Paper containing an iron safe clause inclosed in envelope, in which policy on stock of goods, etc., was sent to insured, held no part of policy.-Merchants' & Bankers' Fire Underwriters v. Brooks, Tex., 188 S. W. 243.

67.

Medical Examination.-The duty of the applicant for life insurance to disclose a material change for the worse in his health after the making of the application and medical examination and before the issuance of the policy implies knowledge on the applicant's part of such change.-Fitzgerald v. Metropolitan Life Ins. Co.. Vt., 98 Atl. 498.

68.Waiver.-Employers' liability insurer, by recognizing responsibility to employe by settlement, waived any right to avoid policy to defeat payment to insured of money received in such settlement for him to cover advances made to employe.-Griffith v. Frankfort General Ins. Co., N. D., 159 N. W. 19.

69. Intoxicating Liquors-Evidence. Under Acts 1915, p. 33, § 321⁄2, and pages 44, 45, 47, as to prima facie proof in liquor prosecutions, testimony that there was found in defendant's house about three quarts of liquor which had the appearance of whiskey, besides 500 gallons of beer, made a prima facie case in prosecution for violating the prohibition law.-Ogles v. State, Ala., 72 So. 598.