law being satisfied with less than certainty, yet requir ing a preponderance of proof. On the other hand, evidence to overcome the presumption of death, that the party supposed to be dead was in a financial condition which might have induced him to abscond, or that he was a speculator or visionary in his business or trades, is all proper evidence to be considered by the jury in establishing the fact. Sensendufer v. Pacific. Cir. Ct., W. D. Mo., E. D. Nov., 1882. 19 Fed. Rep. 68.

LIFE-FORFEITURE-NON-PAYMENT PREMIUM-WAIVER-ESTOPPEL-RESCISSION.-A life insurance company being estopped to claim a forfeiture of a policy for non-payment of premiums at the time stipulated in the policy, agreed with the assured to receive the premiums past due, and revive the policy if a medical re-examination should be satisfactory, and if not, to refund the premiums so received. The assured paid the premiums past due, and procured a medical re-examination, which was unsatisfactory. The company was requested to revive the policy or refund the premiums so paid, but declined to do either. Held, that the assured might treat the agreement as rescinded, and be relustated in the position he occupied when the agreement was entered into. Forfeitures are not favored in the law, for they are often the means of oppression and injustice. Insurance Co. v. Norton, 96❘ U. S. 234, 242. Courts are prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the assured has relied and acted (Insurance Co. v. Eggleston, 96 U. S. 572, 577), and a forfeiture will not be enforced except where the evidence is clear that such was the intention of the parties (Leslie v. Knick. Life Ins. Co., 63 N. Y. 27; Helme v. Phila. Life Ins. Co., 61 Peun. St. 107; Buckbee v. U. S. Ins. & Tr. Co., 18 Barb. 541; and May Ins., § 361); and a waiver may be inferred from any circumstances which show that both parties understood the payment of a premium when due would not be required. Currier v. Ins. Co., 53 N. H. 538, 549-552; May Ins., § 360; Heaton v. Manhattan Fire Ins. Co., 7 R. I. 502; Goit v. Nat. Prot. Ins. Co., 25 Barb. 189; Hodsdon v. Guardian Life Ins. Co., 97 Mass. 144. The defendants' course of dealing having been such as to iuduce the belief in the plaintiff that they would not insist upon the stipulation in the policy for a forfeiture for non-payment of premiums when due, the ordinary principles of estoppel apply. The defendants are estopped to claim that the plaintiff's policy had lapsed prior to February 12, 1878. Meyer v. Knick. Life Ins. Co., 73 N. Y. 516; Horn v. Cole, 51 N. H. 287, cannot set up the contract which they have violated, as a waiver by the plaintiff of the estoppel against the defendant's arising from their usage and course of dealing with her. Meyer v. Ins. Co., 73 N. Y. 516, 527. Nor can they set up the contract which they have violated as a means of destroying previous rights of the plaintiff given up and waived by the contract which the defendants have refused to perform. Danforth v. Dewey, 3 N. H. 79; Fuller v. Little, 7 id. 535; Luey v. Bundy, 9 id. 298; Snow v. Prescott. 12 id. 535; Drew v. Claggett, 39 id. 431; Chamberlin v. Perkins, 55 id. 237, 241. Appleton v. Insurance Co. Opinion by Smith, J. (59 N.H. 541.)

THE SUPREME COURT.

APPOINTMENT OF NEW GENERAL TERMS AND JUS

TICES.

Pursuant to section 234, of the Civil Code, and chapter 329 of Laws of 1883, Governor Cleveland, May 19th,

appointed General Terms of the Supreme Court to be held in the fifth judicial department, as follows: At the city and county hall, in Buffalo, the first Tuesday of June, 1884.

At the court house, in Rochester, on the second Tuesday in October, 1884.

The governor has also made the following designations for justice of the Supreme Court as justices of the General Terms, and as the presiding and associate justices for the following judicial departments:

For the third department, comprising the third and fourth judicial districts. William L. Learned, Albany, presiding justice; Augustus Bockes, Saratoga, associate justice, to hold for the unexpired term of his prior designation as associate justice of said department; Judson S. Landon of Schenectady, associate justice, to hold for the term of five years, from June 1, 1884.

For the fourth department, George A. Hardin, Little Falls, presiding justice; Douglas Boardman, Ithaca, associate justice, to hold for the unexpired term of his prior designation as associate justice of the third department; David L. Follett, Norwich, associate justice, to hold for the term of five years from June 1, 1884.

For the fifth department, James C. Smith, Canandaigua, presiding justice; George Barker, Fredonia, associate justice, to hold during the unexpired term of his prior designation as associate justice of the fourth department; George B. Bradley, Corning, associate justice, to hold for the term of five years from June 1, 1884. Albert Haight, Buffalo, associate justice, to hold for the term of five years from June 1, 1884.

CORRESPONDENCE.

RECEIVERS of CorporATIONS-RIGHT TO SUE STOCKHOLDERS FOR UNPAID SUBSCRIPTIONS.

Editor of the Albany Law Journal:

Your correspondent J. S. W., in his article published May 10, appears to have overlooked the distinction between the liability of the stockholders of manufacturing corporations under the act of 1848 and their liability at common law and under the Revised Statutes. The liability under the statute of 1848 exists until a certificate that the capital stock is fully paid has been filed as required by the act. It is entirely irrespective of the question whether the stockholder has paid the corporation in full the amount expressed in the certificate of capital stock issued to or subscribed for by him. Section 10 of the statute referred to expressly gives the action to a creditor, and does not give it to the receiver. To enforce this liability there are several statutory prerequisites:

1. The debt sought to be recovered must have been contracted within one year from the time of the contract.

2. A suit for its collection must be brought within one year after the debt becomes due.

3. The suit must be brought within two years from the time the defendant has ceased to be a stockholder.

An execution against the company must be returned unsatisfied in whole or in part. Section 24, Manufacturing Act, 1848, 3 Edm. St. 738.

The liability under the Revised Statutes is less severe on the one hand and is subject to fewer restrictions on the other. Section 5, 1 Rev. Stat. 600 (557 Edm. ed.) is express: "Where the whole capital of a corporation shall not have been paid in, and the capi

tal paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company." This the revisers said is "declaratory of a principle of law which it is deemed important should be generally known." 5 Edm. St. Ap. 281.

By chapter 71 of the Laws of 1852, as amended by chapter 403 of the Laws of 1860 (3 Edm. St. 682) a receiver appointed under section 36 (2 Rev. St. 463; 483 Edm. ed.) has all the rights, power and authority of a receiver in case of voluntary dissolution.

These are stated in section 69, same volume, 469 (Edm. ed. 490): "If there shall be any sum remaining due upon any share of stock subscribed in such corporation the receivers shall immediately proceed and recover the same unless the person so indebted shall be wholly insolvent."

The Manufacturing Act, section 26, subjects all corporations created under it to these provisions of the Revised Statutes. In Mann v. Pentz, 3 Comst. 415, it was held that the section of the Revised Statutes referred to did not apply to receivers appointed in a creditor's suit, and that in such case the action to recover amounts unpaid on stock subscriptions must be brought by the judgment creditor himself. But the powers of such receivers have been extended by the acts of 1853 and 1860, before cited, and there is now no question that a receiver can bring an action against the stockholders of a corporation to recover the amounts unpaid upon their stock subscriptions. See AttorneyGeneral v. Guardian Mutual, 77 N. Y. 272, 275; Ruggles v. Brock, 6 Hun, 164; Upton v. Tribilcock, 91 U. S. 45; the statutes already mentioned and the cases referred to in your correspondent's article, especially the Phanix Co. v. Badger, 67 N. Y. 299. The practice is regulated by sections 1784, 1788 and 1790 of the Code of Civil Procedure. The judgment creditor may however, if he chooses, make the stockholders parties defendant, and obtain a judgment directly against them. Code, § 1794.

Editor of the Albany Law Journal:

Your correspondent, J. S. W., has been charged by two other correspondents with misreading the case of Farnsworth v. Wood, 91 N. Y. 313. Whatever defense he may make to this, he will certainly have to plead guilty to the charge of misreading chapter 245 of Laws of 1880. That chapter reads as follows (so far as the point in question is concerned): "The following acts and parts of acts heretofore passed by the Legislature of the State are hereby repealed, namely: The third part of the Revised Statutes, except the following portions thereof: * Of chapter eight * sections sixty-six to eighty-nine, both inclu

* *

* * *

3.

sive, which are hereby made applicable to a receiver appointed as prescribed in section twenty-four hundred and twenty-nine of the Code of Civil Procedure." So that sections 66 to 89, instead of being repealed, as J. S. W. supposes, are expressly excepted from repeal.

The Legislature has enough actual sins to answer for to entitle it to exemption from the weight of fictitious blunders. H.

ROCHESTER, N. Y.. May 19, 1884.

A CRITIC OF GRAMMAR.

Editor of the Albany Law Journal:

In the JOURNAL of May 10 (vol. 29, p. 362), criticising a criticism of the Central Law Journal, you question its grammar, and say: "To what does thier names refer-to the contributors or to the articles." Grammatically verbs must agree with their subjects in number and person. The verb "do" is used in your sentence as an auxilliary to the verb "refer," and should therefore be used in the same number and person as the subject "names" and the verb "refer," of which it is an auxilliary. Again, "what" used as a relative refers to things only, while "which" may refer to both persons and things; therefore since the relative you have used is made in your sentence to refer to both persons (contributors) and things (articles), would it not have been well to have used the latter relative? Or the uncertainty in the use of the relative would be avoided by putting the question thus: Do "thier names" refer to the contributors or to the articles.

SAGINAW, May 16, 1884.

QUIEN SABE.

[We very seldom print anonymous communications, but the above is so remarkable that we make an exception in its favor. Mr. Sabe ought to publish a grammar and spelling-book of his own. It would be unique in this branch of learning, as the songs of the "Sweet Singer of Michigan" are among poems.-ED, ALB. LAW JOUR.]

"GIVE ME LIBERTY," ETC.

Editor of the Albany Law Journal:

It strikes me that your correspondent W. F. Warner in the JOURNAL of the 10th inst. has inadvertently fallen into an error-one which is quite common with school-boys, and perhaps with many older persons, in attributing to Patrick Henry the exclamation, "Give me liberty or give me death."

The speech of Henry ending with the above exclamation is, as I understand, a suppositious speech of the Virginia orator, and in fact the fabrication of Wirt. After the manner of old writers who put into the mouths of their heroes language which it was supposed they might or would have used on given occasions. The speech of Henry is of the same character as that of Webster in the supposed speech of John Adams in the old Continental Congress. G. WILCOXEN.

SENECA FALLS, N. Y., May 14, 1884.

The Albany Law Journal.

A

ALBANY, MAY 31, 1884.

CURRENT TOPICS.

GOOD deal of regret is expressed on account of the failure of Congress to enact a bankrupt act. So far as we can judge, the larger and better part of the business community are in favor of such a law. There was a great deal of fault found with the old law, but it arose from defects and wrongs in the administration rather than in the general scheme of the law. A uniform system of insolvency for the whole country certainly has its advantages. Not the least of these is the prevention of unfair preferences. It seems to us that a uniform system of insolvency laws is as useful, and much more practicable than a uniform system of marriage and divorce laws. Then if the system is good for one period, why not for all time? It may be more necessary at one time than another, possibly, but if the system is just and right at one period, it must be just and right at all times. England has a permanent system of bankruptcy, and it is said to work well. We hear no fault found with it. The business community contract with reference to it, and know exactly what to expect when they give credit. Much more necessary to our country than to England is such a law, on account of the diverse and conflicting laws of the various States. A citizen of one State giving credit to a citizen of another does not know what his remedies are, and sometimes the debtor does not know what his risks are - as in the matter of imprisonment for debt, for example. If Congress could be persuaded to pay a little heed to the real needs of this country in this respect it would be a boon to the community.

As we understand, our Legislature have not abolished imprisonment for debt, but have limited the term of imprisonment to two years. This is simply laughable. If imprisonment for debt is right, why should the term be so limited? If imprisonment is designed as a penalty or punishment, why should it be administered by civil process, and not relegated to the jurisdiction of criminal courts? The entire idea of imprisonment for debt on civil process is puerile. It does not prevent men from trying to get credit, and it does not influence men to give credit. Nobody ever thinks of it one way or the other in trade. To be sure, in most cases, the debtor gets free, or out on the jail limits, after a short incarceration, but this simply makes the thing more ridiculous. If the debtor does not choose to ask release, he can stay in jail and compel the community to support him, and get rid of his obligation to support himself and his family. If he were out, and about his business, the creditor and the community would have the possible benefit VOL. 29- No. 22.

of his labor. If creditors want the luxury of imprisoning their debtors on civil process, they should be made to pay for their support. If their debtors have committed any crime, then the creditors may reasonably ask for criminal punishment, and the community may reasonably be called on to pay the expense of the punishment. But we do not see that these matters of mere commercial deal

ing call for such rigorous measures. Caveat venditor would be a good maxim. Not that it would make any great difference in practice, for there would be just as great competition to sell goods on credit as ever, and just as little vigilance. Merchants would take their chances just as readily as they do now. The spirit of commercial greed is a dangerous and indomitable spirit.

We are by no means certain that Ward and Fish are the worst rascals in Wall street. Are not the men who gave them their opportunities just about as much to blame? There is very little reason in asking to have a man punished for false representations that he will pay one hundred per cent. If men who make such representations should be shut up in prison, those who believe them should be shut up in idiot and insane asylums, and if they do not believe them, they ought to consider themselves fortunate to escape the greater damnation. We would gladly see Wall street and all that therein is sunk in its neighboring Hell-gate. It is never of any benefit to the community, frequently of the greatest detriment. There used to be laws against stock gambling, but they were repealed in the interest of the gamblers. We make a great fuss about lotteries and gambling saloons, but Wall street is as much worse as it is possible to conceive. Nearly every dollar made there is at the expense of some one else who has nothing to show for it; the country is kept in an uproar, and the citizens are encouraged in the neglect of honest end productive labor. Why not re-enact and enforce the laws against stock-gambling? The best kind of “put” for these stock-gamblers would be to "put" them in prison, and thus the community would stand some chance of getting an honest and productive day's work out of them now and then. The dangers of stock-gambling are encroaching on legitimate branches of commerce, and the time is not far distant when there will be "exchanges" in nearly every article of trade, and the noise of the "ticker" will suppress the voice of conscience all over the land. It is probably Utopian to hope for any law or the enforcement of any law against this dangerous craze. What can be expected of legislators who cannot ride from the city of New York to this city without playing cards for money?

A novel question was suggested in a recent telegraph case in England by the lord chief justice, who is reported to have told the jury that "the question whether a person has a property in a message or letter transmitted along an electric line is

new.

*** If it were necessary to decide the case on this point, as one of copyright or literary property in the message, I should decide it against the plaintiffs, and hold that they had no ground of action." The Solicitors' Journal observes: "It is difficult to see any distinction in principle between the case of a letter and a telegram. Besides, the property in the paper on which a letter is written, which belongs to the recipient, there is also clearly, in the case of a letter actually transmitted, a right of property in its contents, and this right remains in the writer, the recipient having only the privilege of reading them for his own benefit. If the writer of a letter, instead of reading it, retains the letter, and employs some one else to write and send an exact copy of it to the person to whom it is addressed, it cannot be doubted that the original writer would have a like property in the contents of the letter. When therefore a man writes a message on a telegraph form, and employs a telegraph company to transmit an exact copy, and to write out such copy and send it to the person to whom the message is addressed, how is it that the original writer of the message has no property in its contents? The point, so far as we know, has never been decided in England, but in Kiernan v. Manhattan Quotation Telegraph Company, 50 How. Pr. (N. Y.) 194, stated fully in Drone on Copyright, 122, the Supreme Court of New York granted an injunction to prevent a telegraph company from copying and supplying to their customers news telegrams transmitted by the Associated Press through the Atlantic Cable to the plaintiff, on the ground that the copying was an invasion of the plaintiff's common-law right of property in the telegram." The subject of the writer's copyright in private letters is pretty fully discussed in 2 ALBANY LAW JOURNAL, 131.

The London Times says: "The late Mr. Benjamin, Q. C., is recorded to have once come into collision with a court, and once only, and the story may now be told because the end of it reflects honor on both concerned. He objected, and very naturally, to the interruptions of judges, who often make it extremely difficult to maintain any connected argument. A very learned lord having more than once interposed, met a proposition of Mr. Benjamin's with the ejaculation, 'monstrous!' Mr. Benjamin tied up his papers, bowed, and retired from the House of Lords. The junior proceeded with the argument. The noble lord, with his usual generosity, publicly sent a conciliatory message to Mr. Benjamin, and Mr. Horace Davey, who was second counsel, was heard in reply, although the practice of the House of Lords was thus infringed upon, two counsel having already been heard on that side. The difference was afterward entirely composed. It happened that when it was fresh, Mr. Evarts, the American lawyer; was in England, was entertained by Mr. Benjamin at the Continental hotel, and heard the story. He immediately capped

it with one from America, which does not show any superiority in the manner of advocates in the States. Interruption was, however, in this American court still less justifiable, because its advocates are only allowed an hour each to state their case in. Counsel being often interrupted in a difficult case at last stopped, and facing the bench said: 'I have told your honors that this is a puzzling case, and I am afraid it will be made even more so if your honors put more puzzling questions than the facts themselves.'" The London Law Journal says the word ejaculated by the "noble lord" was nonsense," and that while Mr. Benjamin might have overlooked the word "monstrous," he could not pardon the other expression. But how snobbish it is to talk of the "generosity" of the "noble lord!” Pray where was the "generosity?" The "noble lord " had acted like a cad, and simply did his duty in seeking a reconciliation. The Times article on Mr. Benjamin is very entertaining. It surprises us in stating his professional income at so small a sum as £15,000 a year for two or three years, at the highest.

IN

NOTES OF CASES.

[N Cumberland Valley R. Co. v. Maugans, 61 Md. 53, a young, vigorous, healthy, active man in the full possession of all his physical and mental faculties, having a valise containing clothing in his right hand, and a basket of provisions on his left arm, attempted in broad daylight to leave a railway train while it was moving slowly, the distance from the lower step of the car to the platform being only eighteen inches, and in doing so was seriously injured. In an action of damages against the railroad company it was held that he was not necessarily negligent. The court said: "Accidents occur, and injuries are inflicted under an almost infinite variety of circumstances, and it is quite impossible for the courts to fix the standard of duty and conduct by a general and inflexible rule applicable to all cases so that a departure from it can be pronounced negligence in law. The rule that requires a party before he crosses a railroad track to stop, look and listen for approaching trains, which has been generally adopted by the courts, is the only one that approaches universality of application in reference to a particular class of accidents. But there is no such general accord of judicial opinion and precedent in reference to attempts to leave a a car while it is in motion. The cases cited in the briefs of counsel on both sides show very clearly that the weight of authority is against the proposition that it is always, as matter of law, negligence and want of ordinary care for a person to attempt to get off from a car when it is in motion. This proposition was pressed upon the Court of Appeals

of New York in the case of Morrison v. Erie Railway Co., 56 N. Y. 302, but Folger, J., in delivering the opinion of the court in that case, said: Were I disposed to accede to it upon principle, which I