laws of the State, any subsequent Legislature is not thereby deprived of the power to alter the law and remove the exemption. People v. Roper, 35 N. Y. 629; East Saginaw Manf. Co. v. City of East Saginaw, 19 Mich. 259; S. C., 13 Wall. 373; Rector, etc., of Christ Church v. County of Phila., 24 How. 300; Hager v. Supervisors of Yolo Co., 47 Cal. 222. In Salt Co. v. East Saginaw, 13 Wall. 373, it is held that a State law offering to all persons, and corporations to be formed for the purpose, a bounty of ten cents for every bushel of salt manufactured in a State from water obtained by boring in the State, and exemption from taxation of the property used for the purpose, is not a contract in such a sense that it cannot be repealed. Such a law is nothing but a bounty law, and in its nature a general law, regulative of the internal economy of the State, dependent for its continuance upon the dictates of public policy and the voluntary good faith of the Legislature. General encouragement, held out to all persous indiscriminately, to engage in a particular trade or manufacture, whether in the shape of bounties, drawbacks, or other advantage, are always under the legislative control, and may at any time be discoutinued. Shiner v. Jacobs. Opinion by Rothrock, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

CORPORATION TRACT WITHIN SCOPE OF AUTHORITY.-A corporation is estopped to deny its liability under a contract, on the ground that its officers were not technically authorized to make it, or that its own proceedings in the premises were irregular, when the contract was within the scope of its powers, was entered into by proper officers, and has been recognized by corporate acts. "The same presumptions are applicable to corporations as are continually made in relation to private persons." Hilliard v. Goold, 34 N. H. 230, 239; Sherman v. Fitch, 98 Mass. 59. "If officers of a corporation openly exercise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed." Bank v. Dandridge, 12 Wheat. 64, 70; Lyndeborough Glass Co. v. Mass. Glass Co., 111 Mass. 315; McLaughlin v. Detroit & M. R. Co., 8 Mich. 100; Olcott v. Tioga R. Co., 27 N. Y. 564; Glidden v. Unity, 33 N. H. 571. Peterborough R. Co. v. Nashua & Lowell R. Co. Opinion by Foster, J.

ESTOPPEL-OFFICERS MAKING CON

NEGLIGENCE- CLERK'S FAILURE TO ENTER MORTGAGE-DAMAGES-COUNSEL FEES-NOTICE TO DEFEND.

-In an action for neglect of a city clerk to enter a mortgage upon the record index, whereby the plaintiffs were induced to take a mortgage of the same property, supposing it to be unincumbered, counsel fees paid in defending a suit by the prior mortgagee for the property will not be an item of damages unless they were the natural and reasonably necessary consequence of the negligence, and the defendant was notified to take the defense of the suit and refused. Kingsbury v. Smith, 13 N. H. 110, 121, 125; Robinson v. Hill, 15 id. 477, 479; Richards v. Whittle, 16 id. 259, 260; Hoitt v. Holcomb, 32 id. 185, 211; Westfield v. Mayo, 122 Mass. 100, 105; 3 Pars. Cont. 213; Kennison v. Taylor, 18 N. H. 220, 221; French v. Parish, 14 id. 496-502. Chase v Bennett. Opinion by Allen, J.

TOWN-OVERFLOW OF WATER-EMBANKMENT MADE BY OWNER NO DEFENSE TO ACTION.-It is not a de

*To appear in 59 New Hampshire Reports.

fense to an action against a town for damages to land from an overflow of water occasioned by the negligent management of an adjacent highway, that the water was prevented from escaping the land as quickly as it otherwise would by reason of an embaukment made by the owner of the land for a walk. Parker v. Nashua. Opinion by Allen, J.

WISCONSIN SUPREME COURT ABSTRACT.

SUNDAY TRAVELLING ON, NO DEFENSE IN NEGLIGENCE. In an action by a passenger in a street car for injury from the railroad company's negligence, held, that the fact that the injury occurred on Sunday was not a defense. The right of the plaintiff to recover is not affected by the fact that he was travelling for pleasure on the Sabbath day. He did not thereby become an outlaw, but was as much within the protection of the law, and was entitled to the same degree of care by the defendant to protect him from injury as though he had postponed his ride on the defendant's car until the following day. It was so held in Sutton v. Wauwatosa, 29 Wis. 21, and the rule was reasserted and emphasized in McArthur v. G. B. & M. Canal Co., 34 Wis. 139. The rule rests upon sound principle, and this court has no disposition to disturb it. Knowlton v. Milwaukee City Ry. Co. Opinion by Lyon, J. (45 Am. Rep. 304.)

COVENANT AGREEMENT AS TO MAINTAINING FENCE RUNS WITH THE LAND-TO BUILD DOES NOT-CONDITIONS SUBSEQUENT NOT FAVORED — CONSTRUED AGAINST GRANTOR.-Gerlach having built a barn which projected over land lying west of his, belonging to Hartung, procured a conveyance of a strip of laud adjoining his own from Hartung. Following the granting part of the conveyance was this: "Upon the express condition that the fence around (on) said piece of land is to remain where it now stands, so that the said Hartung shall have the right to join and connect the fence of his land with the fence of said Gerlach; and that said Gerlach shall always keep said fence in lawful repair, and not bring a suit against said Hartung to recover damages done within Gerlach's inclosure by beasts belonging to said Hartung; and furthermore that said Gerlach shall keep the entire fence around the west side of his, Gerlach's, land in lawful repair." Held, that the agreement as to the fence was a covenant, and not a condition. A condition or a covenant may be created by the same words, and conditions subsequent are not favored by law, and technical words do not make a condition if they are controlled, and may be otherwise interpreted by the context or inatter of the instrument, and they may serve to work a covenant only according to the intention of the parties. Paschall v. Passmore, 15 Penu. St. 295; Cromwell's Case, 2 Coke, 71a; Chapin v. School Dist., 35 N. H. 445; Hoyt v. Kimball, 49 id. 326; Wheeler v. Danscomb, 3 Cush. 285; Krautz v. KcKnight, 51 Penn. St. 232. First. This clause is not a condition, so far as it relates to the maintaining of the fence on or near the west line, because there is no clause of forfeiture, and conditions subsequent must be strictly construed against the grantor (Moore v. Pitts, 53 N.Y. 85), because the penalty or compensation for its breach is provided for, rather than a forfeiture. In this clause it is provided that in case that fence shall not be kept in repair and maintained, and the beasts or domestic animals of the grantor shall pass over the same into the premises of the grantee on that account, he shall not be liable for any damages which they may commit. Board of Ed., etc., v. Trustees, 63 Ill. 204. Because an agreement to maintain a fence between the lands

granted and those of the grantor is never construed as a condition, but as a covenant. Sedg. & Wait, Tr., § 213. The only exception to this rule (if it is an exception) which I could find is the case of Emerson v. Simpson, 43 N. H. 475. There it was a condition in the very strongest language, with a clause of forfeiture for the grantee to maintain forever a good and lawful fence on the true line, at his, the grantee's, own expense. The language of forfeiture was too strong for the court to construe it as a mere covenant, and under the rule of strict construction, and inasmuch as the condition did not bind the heirs and assigns, it was held to be a personal agreement, which continued only during the life of the party bound thereby. See also on a similar question Merrifield v. Cobleigh, 4 Cush. 184. This could hardly be called an exception, because the case was decided on its own peculiarities, and it was held that it was not a condition subsequent. Second. That part of the clause which relates to the fence then existing is a covenant: (1) Because it is in the body of the deed, and under seal; (2) because it is a real covenant, and runs with the land, and binds the heirs and assigns of the grantee. 1 Hill. Real Prop. 363; 1 Washb. Real Prop. 497. It runs with the land because it affects the land granted in the management and conduct thereof, and is not a mere collateral agreement, which is the test of a personal covenant. Spencer's Case, 5 Rep. 16; Patten v. Deshon, 1 Gray, 325; Howland v. Coffin, 12 Pick. 125; Van Rensselaer v. Hays, 19 N. Y. 81; Cook v. Brightley, 46 Penn. St. 445; Scott v. Hunt's Admr., 7 Pet. 606; Baldwin v. Walker, 21 Conn. 168; Crawford v. Chapman, 17 Ohio, 849; Plumleigh v. Cook, 13 Ill. 669; Bronson v. Coffin, 108 Mass. 175. Such a covenant operates as a charge upon the estate, and affects the value thereof (1 Shep. Touch. 140-179), and imposes a servitude upon the land granted. Brewer v. Marshall, 18, N. J. Eq. 338; Dorsey v. St. Louis, A. & T. H. R. Co., 58 Ill. 66; Norfleet v. Cromwell, 64 N. C. 1; Bally v. Wells, 3 Wils. 25; Duffy v. N. Y., etc., R. Co., 2 Hilt. 496; Platt, Cov. 481; Beddoe's Exr. v. Wadsworth, 21 Wend. 120; Normau v. Wells, 17 id. 136; 1 Smith, Lead. Cas. 115; 2 Keut, Comm. 472; 2 Hill. Real Prop. 371; Kellogg v. Robinson, 6 Vt. 276; Tyl. Bound. 344; Hunt Bound. 50. (3) Because it relates to a fence already in esse, and binds the grantee to maintain and keep it in good repair. A covenant to build and maintain a partition fence or party wall does not run with the land, and is only personal. Platt, Cov. 471; Tayl. Landl. & T. 301; Williams Landl. & T. 290; Lametti v. Anderson, 6 Cow. 307; Thompson v. Rose, 8 id. 266; Allen v. Culver, 3 Denio, 284; Tallman v. Coffin, 4 N. Y. 136; Sampson v. Easterby, 9 Barn. & C. 505; Doughty v. Bowman, 11 Q.B. 444; Congleton v. Pattison, 10 East, 138; 6 Bing. 644; Cole v. Hughes, 54 N. Y. 444. Hartung v. Witte. Opinion by Orton, J.

RECENT ENGLISH DECISIONS.

LEASE RESTRICTIVE COVENANT AGAINST TRADECHARITABLE BUSINESS.-The application of the words "trade or business of any description whatsoever" in a restrictive covenant extends to the user of the premises for something about which charitable people occupy themselves sedulously without any object of gain, and which would be ordinary business if carried on by an individual for the purpose of profit. A lessee of a house in London, held under a lease containing a restrictive covenant of the above nature, proposed to allow it to be opened by a certain charitable society as a home for working girls. The girls were to pay a small sum for board and lodging, but it appeared, from balance-sheets of similar homes in other parts of

the town managed by the society, that the object of the institution was not gain, there being on the contrary generally a loss shown against the society. Held, nevertheless, that the proposed user would be a breach of the covenant, and must therefore be restrained. Ch. Div., Nov. 23, 1883. Rowls v. Miller. Opinion by Pearson, J. (49 L. T. Rep. [N. S.] 628.)

MALICIOUS PROSECUTION-BURDEN OF PROOF-REASONABLE CAUSE.-In an action for malicious prosecution the burden of proof as to reasonable and probable cause lies on the plaintiff, and if in order to show absence of reasonable and probable cause it is necessary to establish any minor propositions, the burden of proving each of such propositions also lies on the plaintiff. In an action for malicious prosecution it was proved that the plaintiff had been charged by the defendants with conspiracy to defraud, had been committed for trial by the magistrates, tried at the assizes, and acquitted. The judge asked the jury to find whether the defendants had taken reasonable care to inform themselves of the true state of the case before taking proceedings, and whether the defendants honestly believed the case they laid before the magistrates, and he told the jury that the burden of proof was on the plaintiff. The jury answered both questions in the affirmative, and the judge thereupon ruled that there was no absence of reasonable and probable cause, and directed a verdict for the defendants. Held (reversing the judgment of Grove and Lopes, JJ.), that the direction was correct, and the defendants were entitled to judgment. Ct. of App., June 22, 1883. Abrath v. North Eastern R. Co. Opinions by Brett, M. R., and Bowen and Fry, L. JJ. (49 L. T. Rep. [N. S.] 618.)

NEGLIGENCE

-

He

PERSONAL INJURY AT RAILWAY CROSSING-CONTRIBUTORY NEGLIGENCE.-Plaintiff was crossing a railway by a level crossing. A hedge and buildings obstructed the view, so that he could not see along the line to the left until he got on to the railway, but he could then have seen and he did not look. was injured by a train approaching from the left on the further line. The engine-driver did not whistle, and the gatekeeper at the level crossing gave no warning. In an action against the railway company to recover damages for the injury, held, that these facts showed that the injury was caused solely by plaintiff's own negligence, and therefore there was no evidence of defendants' liability to go to the jury, and plaintiff was rightly nonsuited. Judgment of the Queen's Bench Division affirmed. Ct. of App., Nov. 28, 1883. Davey v. London & Southwestern R. Co. Opinions by Brett, M. R., and Bowen, L. JJ. (49 L. T. Rep. [N. S.] 739.)

PARTNERSHIP-FIRM OF SOLICITORS-LIABILITY FOR TORT OF COPARTNER.-The plaintiffs, trustees of a will, deposited with P., a partner in the firm of solicitors which acted for them in the administration of their trust estate, certain bonds payable to bearer, part of their testator's estate. Some of the bonds were realized, and their proceeds accounted for. P. retained the rest for safe custody. The other partners had no actual knowledge of this, but letters referring to the bonds were charged for in the firm's bill of costs, and copied in the firm's letter-book. P. also on some occasions paid the interest received on the bonds by the firm's checks, and these payments were entered in the firm's ledger. P. made away with the bonds. Held, that under the circumstances P.'s partners had notice that P. had undertaken the custody of the bonds as firm business, and were liable for their loss. Ch. Div., July 23, 1883. Cleather v. Twistden. Opinion by Denman, J. (49 L. T. Rep. [N. S.] 633.)

CRIMINAL LAW-FALSE PRETENSE-LETTER MAILED IN ENGLAND FOR FRANCE. A false pretense was made by letter in N., England, and posted there to, and received by a person in France. In consequence of the letter that person drew a check in France, payable at N. in England, and sent it to the prisoner at N. in England, who cashed the check in England. Held, that the prisoner was properly indicted and tried at N. in England. Crown Cases reserved. November 24, 1883. Regina v. Holmes. Opinion by Lord Coleridge, C. J. (49 L. T. Rep. [N. S.] 540.)

PROMISSORY NOTE-INDORSEMENT-INDORSER'S CO SURETIES. The whole facts and circumstances at tending upon the making, issue, and transfer of a bil or note may be referred to in order to ascertain the true relations of the parties who have put their signature upon it. The respondent was sued as indorser of a promissory note, and was held liable to pay the amount. He then brought an action against the appellant as prior indorser. It appeared that the note in question had been made by a company of which the appellant and respondent were both directors, and had been deposited with the bank as security for an overdraft by the company, and had been indorsed by the appellant, the respondent, and two other directors of the company, at the request of the bank, who asked for the personal guaranty of the directors. Held (reversing the judgment of the court below), that under these circumstances the proper legal inference was that the parties had indorsed as co-sureties, and that the ordinary principles of the law merchant as to the liabilities inter se of the successive indorsers of a note did not apply. Privy Council. July 11, 1883. MacDonald v. Whitfield. Opinion by Lord Watson. (49 L. T. Rep. [N. S.] 446).

FINANCIAL LAW.

CURRENCY-FEDERAL TAX ON NOTES ISSUED FOR CIRCULATION--NOTES PAYABLE IN GOODS.-(1) Section 19 of the act of Congress, of February 8, 1875, which provides, "that every person, firm, association, other than National bank associations, and every corporation, State bank, or State banking association, shall pay a tax of 10 per cent on the amount of their own notes used for circulation and paid out by them," must be construed as limited in its effect to notes payable in money; otherwise all sorts of negotiable paper, such as "grain receipts," fare tickets, and the like, might be subject to the same taxation. (2) Section 2172, United States Revised Statutes, provides how the notes contemplated by the National Bank Act shall be printed and what they shall contain. No provision is made for a note for less than one dollar. A note for a fractional sum is not only unknown to the law, but its issue is unlawful. Section 3583. The Supreme Court, by deciding that an obligation "payable in goods was not illegal, has left the inference to follow almost necessarily that it was not such a note as was contemplated by the statute, and therefore not taxable. U. S. Dist. Ct., N. D. New York, March, 1883. Matter of Aldrich. Opinion by Coxe, J. (16 Fed. Rep. 369.)

INDORSEMENT-RESTRICTED ONE TO AGENT- EVIDENCE. An indorsement, "Pay B. or order, for account of C," is a restricted indorsement, vests no general property in B., but simply constitutes him the agent of C. for the purpose of collection. Such an indorsement is a contract in writing, and not subject to contradiction by parol testimony. Kansas Supreme Court, July Term, 1883. Armour Brothers' Banking Co. v. Riley County Bank. Opinion by Brewer, J. (30 Kaus. 163.)

LETTER OF CREDIT-LIABILITY FROM AGREEMENT TO ACCEPT.—(1) In order to render the writer of a letter of credit liable, either upon an implied acceptance or an agreement to accept drafts taken on the faith of such letter, the drafts must be taken for a valuable consideration. A promise to have the drafts discounted, and to take up notes on which the persons taking the drafts are liablę as indorsers, is not a valuable consideration. (2) If a letter of credit provides that drafts drawn under its authority shall be used only for the purpose of being discounted at a particular bank, persons taking such drafts, with notice that they have been offered to the bank for discount and refused, cannot recover thereon. Ohio Supreme Ct., January Term, 1883, Sherwin v. Brigham. Opinion by Upson, J. (39 Ohio St. 137.)

-

NEGOTIABLE INSTRUMENT INDORSEMENT CONSTRUED A GUARANTY-LIABILITY OF INDOKSER.— M. sold and delivered to B., before it was due, the promissory note of H., payable to K. (but which had never been indorsed by K.), and at the time of the delivery M. indorsed it "holden without demand or notice." H. was solvent at the time of the maturity of the note, and for about three years thereafter, when he became utterly insolvent. In the meantime M. made one or more requests of B. to collect the note of the maker. In a suit afterward brought by B. against M. to recover the amount of the note, held, that M. was a guarantor; that by the terms of his indorsement he waived a demand and notice; that he was liable to B. for the amount of the note. Birchard v. Bartlett, 14 Mass. 279; Irish v. Cutter, 31 Me. 536; Bickford v. Gibbs, 8 Cush. 156; Wildes v. Savage, 1 Story, 22. Maine Supreme Judicial Court, December 14, 1883. Bray v. Marsh. Opinion by Danforth, J. (75 Me. 452.)

SAVINGS BANK-DUTY OF REASONABLE CARE-PAYMENT TO WRONG PERSON.-A stipulation between a savings bank and a depositor, that his deposit may be paid to any one presenting his book, does not relieve the bank from the duty of exercising reasonable care. New Hampshire Supreme Court. Kimball v. Norton. Opinion by Doe, C. J. (59 N. H. 6.)

INSURANCE LAW.

FIRE POLICY-SOLE AND UNCONDITIONAL OWNERA policy of fire insurance described the property insured as "his two-story dwelling-house," etc., and it appeared that he had purchased the fee and taken a bond for a conveyance, but that the vendor had only a life estate in the property, with a remainder in sixsevenths thereof; that a suit had been instituted to perfect the title, to which the insured was a party; and that there was an outstanding purchase note, which he owned at the time of the insurance and the loss. Held, that the outstanding note, and the fact that the insured only held under a title bond, was not material to the risk, and that the fact of the outstanding seventh interest or remainder did not prevent him from being "the sole and unconditional owner,' within the meaning of the policy. See Insurance Co. v. Haven, 95 U. S. 245; Hough v. City Ins. Co., 29 Conn. 10; Wineland v. Security Ins. Co., 53 Md. 276; American Basket Co. v. Farmville Ins. Co., 3 Hughes, 251; Washington Mills Co. v. Commereial Ins. Co., 13 Fed. Rep. 646; Waller v. Northern Ass. Co., 10 id. 233; Rumsey v. Phoenix Ins. Co., 1 id. 396. U. S. Cir. Ct., Kentucky, Feb. 19, 1883. Williams v. Buffalo German Insurance Co. Opinion by Barr, J. (17 Fed. Rep. 63.)

FIRE POLICY-PAROL APPLICATION-OPINION AS TO MATTERS MATERIAL TO RISK DOES NOT AVOID.-Plaintiff's agent, an insurance broker, applied to the agent in Boston of the defendant insurance company for an insurance on certain property of the plaintiff in Bridgewater. When he made the application, he showed a printed list which he stated he believed was a correct list of the existing insurance on the plaintiff's property at Bridgewater; but this list did not contain a policy then existing and issued by the defendant, in part covering a portion of this same property. This error in the expression of belief was wholly unintentional, and the defendant's agent, by looking at the books and records in his office, could have ascertained in a few minutes whether the list was correct. The defendant's agent made a verbal contract to effect the insurance, and subsequently a policy was issued to the plaintiff. The policy contained the warranty that all the facts and circumstances in regard to the property insured, as far as known to the assured and material to the risk, had been truly stated in the ap. plication for insurance; and provided that "if any material fact or circumstance shall not have been fairly represented," the risk should cease and determine and the policy be null and void. Held, that the policy was valid and binding on defendant. There was no written application such as was apparently contemplated by the provisions of the policy; and expressions of opinion and belief made in good faith as to matters material to the risk are not to be taken as misrepresentations of fact. National Bank v. Insurance Co., 95 U. S. 673; Wood v. Firemen's Insurance Co., 126 Mass. 316. If the insurance company is content with expressions of belief, if they are honestly made, it has no right to complain that facts or circumstances have not been fairly represented. Especially must this be so, when the means of correcting any error are in its own power, and it fails to avail itself of them. Massachusetts Sup. Jud. Ct., March, 1883. Bridgewater Iron Co. v. Enterprise Ins. Co. Opinion by Devens, J.

LIFE POLICY-FAILURE TO PAY PREMIUM-DECLARATION OF AGENT EVIDENCE OF WAIVER NOTICE AND PROOF OF DEATH-NOTE GIVEN FOR PREMIUM-WHEN

POLICY FORFEITED-NET VALUE POLICY.-(1) The declaration of the agent of a life insurance company, having notice of the death of the assured, that the policy was forfeited by a failure to pay the premium when due, and making no objection to the want of formal notice and proof of death, is evidence of a waiver of the provision in the policy requiring due notice and proof of death within a given time. Goodwin v. Insurance Co., 73 N. Y. 480. (2) The occasional payments of premiums and notes given for premiums, after due, and consequent renewals of the policy by the company are not a waiver, as to premiums subsequently due, of the stipulation in the policy making a failure to pay any premium or premium note when due condition of forfeiture of the policy. When the annual premium is paid partly in cash and partly by a note payable before the end of the year, and a receipt renewing the policy for a year is given, the policy is forfeited when the note is due on a failure to pay it at that time. See New York Ins. Co. v. Statham, 93 U. S. 24; Howell v. Knickerbocker Life Ins. Co., 19 Abb. Pr. 217;

Patch v. Phoenix Ins. Co., 44 Vt. 481; Robert v. New England Life Ins. Co., 1 Dis. (Ohio) 355; Thompson v. Knickerbocker Life Ins. Co., U. S. Cir. Ct., So. Dist. Ala., 1876; 3 Am. L. T. Rep. 370; Mutual Benefit Ins. Co. v. French, 2 Cin. Sup. Ct. Rep. 321; Roehner v. Knickerbocker Life Ins. Co., 4 Daly, 512. (3) Under the non-forfeiture law of Massachusetts (Gen. Sts. of Mass., ch. 186), providing for extending life insurance companies (otherwise forfeited for non-payment of a

premium) by the net value of the policy as a single premium, all unpaid notes given for annual premiums, including those for the part of the year subsequent to the forfeiture, are deducted in determining the net value of the policy. Foster v. Hill, 36 N. H. 526; Pitt v. Berkshire Life Ins. Co., 100 Mass. 500. New Hamp. shire Sup. Ct. Marston v. Massachusetts Life Ins. Co. Opinion by Allen, J. (59 N. H. 92.)

CRIMINAL LAW.

INDICTMENT-AVERMENT AS TO TIME.- The averment of time in an information, as in indictments, must be of a day certain before the time of filing the information, and within the period in which by the statute of limitations the offense is punishable. Hinson v. State, 7 Mo. 244; State v. Pratt, 14 N. H. 459; State v. Caverly, 51 id. 446; Com. v. Doyle, 110 Mass. 103; State v. Davidson, 36 Tex. 325; 1 Arch. Cr. Pl. 257; 2 Hawk. P. C., ch. 25, § 77. New Hampshire Sup. Ct. State of New Hampshire v. Ingalls. Opinion by Allen, J. (59 N. H. 88.)

INCEST-BROTHER-IN-LAW AND SISTER-IN-LAW.—A brother-in law and sister-in-law are, within the meaning of the statute prescribing the punishment of incest, nearer of kin, by affinity, than cousins. Supreme Ct. of Ohio, January Term, 1883. Stewart v. State of Ohio. Opinion by the Court. (39 Ohio St. 152.)

VARIANCE

99.66

ARSON ADJOINING."- An indictment, charging that the respondent attempted to set fire to an out-building adjoining a dwelling-house, is not supported by evidence that the building was near to but not in contact with the dwelling-house. "Adjoining" is a synonym for "adjacent to," contiguous," that is, in contact with. Arkell v. Ins. Co., 69 N. Y. 192; Rex v. Hodges, 1 Moo. & M. 341; Peverelly v. People, 3 Park. 59; 2 Russ. Cr. 557-561. New Hampshire Sup. Ct. State of New Hampshire v. Downs.' Opinion by Stanley. (59 N. H. 320.)

PLEA IN ABATEMENT-INDICTMENT PENDING, BADCONVICTION OR ACQUITTAL.-It is well settled, on both reason and authority, that the pendency of an indictment is not good ground for a plea in abatement to another indictment in the same court for the same cause. Whenever either of them-and it matters not which is tried and judgment pronounced thereon, such judgment will afford a good plea in bar to the other, either of autre fois convict, or autre fois acquit; but nothing short of a conviction or acquittal will support such a plea. Commonwealth v. Drew, 3 Cush. 279; Regina v. Goddard, 2 Ld. Raymond, 920; Whart. Crim. Plead. and Prac., § 431; 4 Hawk. P. C. 309; Fost. C. L. 105; 1 Chit. C. L. 446. Pennsylvania Sup. Ct., Nov. 5, 1883. Smith v. Commonwealth of Pennsylvania. Opinion by Sterrett, J.

VARIANCE MISNOMER IN INDICTMENT FOR NUISANCE.- (1) The State's attorney filed an information under the liquor law against the respondent, as "Thomas, J.," for maintaining a nuisance. The respondent pleaded in abatement that his name was "Timothy, J.” Held, that the information was amendable. As said by the court in Turns v. Commonwealth, 6 Metc. 224: "The issue for the jury of trials is not what is the individual's name, but whether the person who has pleaded in chief on his arraignment is guilty of the offense charged upon him. The conviction, therefore, must follow the indictment. The exception can be taken only in abatement." It could not be reached by demurrer. Scott v. Soons, 3 East, 111. It, at most, is a formal defect within the

scope of State v. Arnold, 50 Vt. 731. Such defects and greater in informations were amendable at the common law. Regina v. Steadman, 2 Lord Raymond, 1307; Rex v. Seawood, id. 1472; Rex v. Harris, 1 Salk. 47; State v. Weare, 38 N. H. 314. Vermont Supreme Court, May Term, 1883. State of Vermont v. Murphy, Opinion by Ross, J. (55 Vt. 547.)

CORRESPONDENCE.

GOING FOR MR. GOEPP

Editor of the Albany Law Journal:

I have tried hard to keep informed upon the discussion, to which you have given up so many pages, about the proposed Civil Code. I have read most of the letters you have published, and all but one I hope understandingly. I refer to Mr. Goepp's letter on page 280. As I fear there are others who cannot comprehend it, I trust you will in some way make plain the utility of its publication.

Mr. Goepp first said-page 219-that one reason why we need a Civil Code is because a friend of his had to travel 120 miles to find a decision upon a point in Criminal Procedure and then could not find the book.

Mr. Hornblower then said-page 259-that this shows no reason for a Civil Code, because we already have a Code of Criminal Procedure where the principle of such a decision ought to be codified, if at all.

Now Mr. Goepp says, and I wonder what he means, that with regard to this single illustration, his object in addressing it was to show how the absence of a code, by leaving us without a standard for distinguishing important doctrines from unimportant, makes it necessary to hunt for a decision which is now worth citing, but which with a code would rank only as an unimportant gloss.

Now I venture to ask: How does the absence of a Civil Code leave us without a standard for distinguishing the doctrines of Criminal Procedure, which are already codified?

Why if we had another code, would the decision referred to rank as an unimportant gloss any more than it does now?

The story told by Mr. Goepp seems to me to illus. trate, more than any thing else, the thought which forces itself upon every practical lawyer, that in spite of the enormous multiplication of decisions which everybody bewails continually, there is always a great dearth of cases directly in point upon the question which you happen to have on hand. Instead of studying the great principles of the law which can be found tersely stated in any good text-book, lawyers in their desperation travel hundreds of miles to find some nisi prius case, perhaps where another lawyer, no better than themselves but only earlier, has discussed the question.

Considering that this case, if it could have been found, would be law only so far as its reason and good sense commended it, is it not a little wild to say, because this friend could not find the book in New York, that "it is a matter of proof that there is in America no place where a man can be informed of the law he is expected to obey?

valuable as a book of reference, and though I have read with much interest the various pamphlets issued, and the editorials and communications to the JourNAL, yet I cannot quite answer to my own satisfaction many objections to civil codification.

Without presuming to obtrude any views of my own, I desire to cite the preface to the first edition of "Byles on Bills," as embodying tersely and concisely, what appears to be the main, though perhaps not unanswerable objection to a Civil Code. He says:

Simple as the form of a bill or note may appear, the rights and liabilities of the different parties to those instruments have given rise to an infinity of legal questions, and multitudes of decisions. A striking proof of what the experience of all ages had already made abundantly manifest-that law is, in its own nature, necessarily voluminous; that its complexity and bulk constitutes the price that must be paid for the reign of certainty, order and uniformity; and that any attempt to regulate multiform combinations of circumstances by a few general rules, however skilfully constructed, must be abortive." EDWIN QUACKENBUSH.

BALLSTON SPA, April 7, 1884.

[We have outgrown Byles on Codification, just as we have outgrown Noah on Navigation.-ED. ALB. LAW JOURNAL.]

FOX ON WARRANTY IN FIRE INSURANCE.

A Treatise on Warranty in Fire Insurance Contracts. By Fontaine T. Fox, Jr., late vice-chancellor of the Louisville Chancery Court. Chicago; Callahan & Co., 1883. Pp. 268.

This work appears to have been written with the purpose of establishing as law the views of the author upon the subject of warranty in the fire insurance contract, rather than for the purpose of exhibiting what the conclusions of writers and courts in reference thereto really are. He dissents from the views of both Mr. May and Mr. Wood, who are well-known writers, and whose works we believe to be standard authority upon the law of insurance. Whether Mr. Fox has in his treatise established the fact that his rule is the better one we do not pretend to say; but his production is well written, and worthy of consideration by all who have an interest innits subject-matters.