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words of the State law; and in those cases where Congress has been content to denounce the offense by its common-law name, as in murder and rape for example (Revised Stats., 5339, 5354), they stand as if Congress had re-enacted the common law totidem verbis. And in such cases, unquestionably, if the crime be a felony at common law or by State statute, it is a felony under the act of Congress; and if not punished capitally would fall within the designation of "any other felony," as used in this section 819, by force, not of the common law or State statute, but of the Federal statute. Murder is a felony at common law, but it may be doubted if rape is, it having been made so by statute. Merton, 2; 1 Hale's P. C. 226. If this latter offense were not punished capitally, and we were confined as in some of the States to the ancient common law, and not that existing at the time of the revolution, it would become a very difficult matter to determine how it was to be ruled under this section 819. This is mentioned to illustrate the almost inextricable perplexity which arises from the use of this word "felony" in the present state of our law, in acts of Congress without some statutory definition of it. It does not follow, however, because we can find no common-law definition of this term which will give it and this statute operation according to that law, and are forbidden to adopt the definition found in the modern use of it in Stato statutes, that this clause of the section is nugatory. The authorities cited show that Congress has the undoubted power to create felonies by legislation operating within the limitations of its jurisdiction over crimes, and that from time immemorial Legislatures having general jurisdiction over criminal offenses have added felonies to the commonlaw list. United States v. Tynen, 11 Wall. 88. Statutes create felonies either by declaring offenses to be felonies, in express terms, or impliedly, as in the ancient statutes, by enacting that the defendant should have judgment of life and member where the word "felony" is omitted, or where the statute says an act under particular circumstances shall be deemed to have been feloniously committed. 1 Arch. Cr. Pr. 1, and note; 1 Russ. on Crimes, 43, and authorities above cited. Now, where the common law operates, this declaration, express or implied, entailed the consequences of forfeiture and if the statute fixed no punishment there was superadded by the ancient law the penalty of death, and now in England transportation and in our American States confinement in the penitentiary. But it is manifest that the jurisprudence of the United States, as long as section 5326 of the Revised Statutes and other prohibitions of forfeiture of estate and corruption of blood as a punishment for | crime continues to be the law, and as long as Congress adopts no general legislation punishing felonies as such, either capitally or otherwise, the declaration that an offense shall be a felony in an act of Congress is merely brutum fulmen, except so far as it inclines the legislative mind to affix a more severe penalty for the commission of the offense. Notwithstanding this, however, it has been, until recent years, the constant habit of Congress to declare offenses created by it either felonies or misdemeanors in express terms or to leave them to be misdemeanors by making no declaration on the subject. There is no doubt that offenses are felonies when so declared to be, and the accused is entitled in such cases, where not punished capitally, to ten challenges under this section 819, and this is about the only substantive effect such a declaration has, unless it be that it further gives the accused the right to be proceeded against only by indictment under the fifth amendment to the Constitution; though it has been judicially declared that under our system a felony is not an infamous crime in the sense of that amendment. United States v. Cross, supra, and the other authorities above cited. It would seem therefore that

it is rather to the advantage than the disadvantage of the offender to have Congress declare his offense a felony. Be this as it may, the clause under consideration may operate, in other than capital cases, to give the defendant ten challenges in the following classes of cases: 1. Where the defense is declared by statute, expressly or impliedly, to be a felony. 2. Where Congress does not define an offense but simply punishes it by its common-law name, and at common law it is a felony. 3. Where Congress adopts a State law as to an offense, and under such law it is a felony.

It only remains to be determined whether the offense charged in this indictment comes within either of these categories. Making counterfeit coin was by the ancient common law treason, and subsequently a felony, while uttering or passing it was only a misdemeanor. Fox v. Ohio, 5 How. 410, 433; Tomlin's Dict., tit. "Coin; " 1 Hale's P. C. 210, 224; United States v. McCarthy, 4 Cranch's C. C. 304; United States v. Shepherd, 1 Hughes, 521. The act of 1790 (1 Stats. 115) declares counterfeiting the public securities a felony and punished it with death. The act of 1825 reduced the punishment to hard labor not exceeding ten years. 4 Stats. 119. The act of 1806, the first to protect the coin, declared counterfeiting a felony punishable by imprisonment at hard labor. 2 Stats. 404. The act of 1825 declared counterfeiting the coin a felony punishable with imprisonment at hard labor not exceeding ten years. 4 Stats. 121. The act of 1873 declared counterfeiting treasury notes a felony, as did the acts of 1847 and 1861. 9 Stats. 120; 12 id. 123; 17 id. 434. Counterfeiting postage stamps was declared felony by the acts of 1851 and 1853. 9 Stats. 589; 10 id. 256. Counterfeiting three cent pieces was by the act of 1865 made a misdemeanor. 13 Stats. 518.

The Revised Statutes drop this classification, as does the act of 1877, and these offenses are no longer declared felonies. Rev. Stats., 5414, 5457, 5464; 19 Stats. 223. And this demonstrates that the legislative will no longer declares this offense a felony, and we think the felony feature is impliedly repealed. It is argued very earnestly, however, that the effect of this is only to leave it a felony as at common law. We have already shown that under our system there is no common-law felony unless Congress merely defines a crime which is a felony at common law by its common-law name. If the act said "counterfeiting" shall be punished as prescribed, it would be a felony; but it does not say so; it defines the offense for itself and does not declare it a felony for the obvious reason that such a declaration would not change the character of the crime or the punishment, and would be wholly useless. Besides, it would be absurd to punish the misdemeanors of uttering and passing counterfeit coin with precisely the same punishment, all defined in the same section, and then say it was the intention of Congress to give a defendant charged with making the counterfeit ten challenges, and another defendant who passed it only three, while both offenses are defined and punished by the same section and with the same punishment. There is no substantial reason for such a distinction. One crime is just as heinous as the other in the sense of this statute, and are upon an equal footing. It is ruled that the defendant can have but three challenges.

NOTE. It has been stated that the commissioners who prepared the Revised Statutes were so perplexed with the word "felony" in connection with section 819 that they applied, by circular, for information from the district attorneys and others as to the practice under the acts of 1865 and 1872.

The Constitution uses the word "felony" in art. I, sec. 6, where senators and representatives are privileged from arrest in all cases except treason, felony, and breach of the peace;" in art. I, sec. 8, where Con

gress is granted power to define and punish "piracies and felonies" committed on the high seas, and offenses against the law of nations; and in art. IV, sec. 2, which requires a person charged in any State with "treason, felony, or other crime," who shall flee and be found in ahother State to be delivered up. In this last section the whole phrase has been construed to mean any offense against the law of the State from which the fugitive flees, and manifestly the word "felony " is used synonymously with the word "crime" in the same phrase. Kentucky v. Ohio, 24 How. 66. In art. II. § 4, the Constitution allows officers to be impeached for treason, bribery, or other high crimes and misdemeanors. The amendments in art. V use the phrase "capital or otherwise infamous crime," and in art. XIV, sec. 2, "rebellion or other crime." These phrases all show that not much attention was paid to technical classification of offenses according to the common law into high treason, petit treason, felonies, misprisions, misdemeanors and crimen falsi, although many common-law terms are used.

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The Revised Statutes have, by express words or implication, declared offenses not capital to be felonies in the following sections: 5346, 5356, 5362, 5383, 5394, 5424, 5425, 5426, 5427, 5448, 5456, 2998, 3105, 3311, 3324, 3375, 3397, and sec. 5509. The implication may be doubtful in some of these sections, but in most of them it is quite plain. Offenses are oftener declared misdemeanors, and "misprision of treason " and "misprision of felony" are mentioned respectively in sections 5333 and 5390.

It is curious to note the incongruous distribution of punishment throughout these statutes, as applied to created felonies in contradistinction to the misdemeanors and those offenses not called by any name.

If the original draughtsman happens to be an old common-law lawyer the statute separates the crimes into felonies and misdemeanors, after the old style, but if a modern inuovator, it abandons the classification as useless.

The whole subject is illustrative of what Amos says in his "Ruins of Time," that "the common law of crimes is in reality the patchwork of every judge, in every reign from Coeur de Lion to Victoria." Pref. X,

2 Bouv. Dict., title "Criminal Law;" only it is not always the judges who do the patching. E. S. H..

IOWA SUPREME COURT ABSTRACT. JUNE 2, 1880.

RECEIVER-TAKES SUBJECT TO CLAIM OF LIENHOLDER NOT PARTY.- A receiver of a railroad was appointed in an action to which S., a lienholder, was not a party. He was authorized by the court to complete the railroad and issue certificates therefor. The certificates were foreclosed and the road sold, the lien-holder not being a party to this proceeding. Held, that the lien of S. was not affected. A receiver's possession is subject to all valid and existing liens upon the property at the time of his appointment. What expenses a receiver may properly incur becomes a question sometimes of great doubt and difficulty. The fundamental idea is that he must preserve the property, and hold the same to be disposed of under the orders of the court. To that end he may, under the direction of the court, make repairs. Blunt v. Citherow, 6 Ves. 799; Attorney-General v. Vigor, 11 id. 563; Thornhill v. Thornhill, 14 Sim. 600. A receiver of a railroad may operate it, and pay the expenses incident thereto, because this is deemed necessary for its proper presentation. Ellis v. B., H. & E. R. Co., 107 Mass. 1. That he may even go further and provide additional accommodations, stock, etc., was held in Cowdry v. Railroad Co., 1 Wood, 331. In Wallace v. Loomis, 97 U. S. 162, it was held that the receiver

might issue certificates of indebtedness for rolling stock, and that the same might be charged upon the road as a lien paramount to subsisting liens. It was said, however, that the power should be exercised with great caution. In Stanton v. Railroad Co., 2 Wood, 506, it was held that the court might authorize the receiver to borrow money to complete an inconsiderable portion of the road, and make the sums borrowed a lien paramount to the first mortgage, it appearing to be necessary for the protection of the rights of the parties in interest. See, also, Kennedy v. St. P. & P. R. Co., 2 Dill. 448, where certain work was authorized in making an extension which was necessary to prevent the forfeiture of an important land grant, in which all parties were interested. It is said, however, in High on Receivers, § 390. that "the receiver is seldom authorized to enlarge the operations of the company, or extend its line of road, his functions being usually limited to the management of the property in its existing condition." But a lien may not be displaced by an order made in a proceeding to which the lien-holder is not a party. Snow v. Winslow et al. Opinion by Adams, C. J. Seevers, J., dissented on the ground that S. was only entitled to a lien which required an action to establish when the receiver was appointed.

TRADE-MARK

RIGHT TO, INDEPENDENT OF STATUTE INJUNCTION.-In an action to restrain defendants from using as a trade-mark the words "Shaver Wagon Eldora," it appeared that defendants, one of whom was of the same name as plaintiff, had previously been associated with him in business, painted the words in a different form on the wagons manufactured by them, and painted their own initials near such words. The wagons in general style and in painting resembled those manufactured by plaintiff, and were not inferior thereto. Held, that there was a wrongful use of plaintiff's trade-mark which equity would restrain. For three hundred years the common law has recognized the right of the proprietor of a trademark to its exclusive use, and has awarded damages Southern v. How, for the deprivation of such use. Popham, 143, 144. The right has been, without interruption, recognized and protected by the courts of England and the United States from that day to the present, in the absence of statutes declaring the existence of such right, or providing regulations for its exercise and remedies for its deprivation. Many cases involving the subject have been decided by the courts. The jurisdiction of chancery to restrain the use of a trade-mark without the consent of the proprietor was first recognized at a later day. In 1742 Lord Hardwicke denied it (Blanchard v. Hill, 2 Atk. 484), but within the last fifty years it has been repeatedly exercised in England and in this country. No American case can be found denying it. It has been expressly held that the right to the exclusive use of a trade-mark, where statutes exist regulating and protecting it, does not depend upon such statutes. Derranger v. Plate, 29 Cal. 292; Filley v. Fassett, 44 Mo. 173. In the language of Ames, C. J., in Barrons v. Knight, 6 R. I. 434, "it never could have been a question that a designed imitation by the defendant of the trade-mark of the plaintiff, whereby the former fraudulently passed off his goods in the market as goods manufactured by the latter, and to his injury, would support an action." The rule is firmly settled that chancery will, in a proper case by injunction, protect the proprietor of a trade-mark in its exclusive use. Certain principles and rules pertaining to the subject of trade-marks are applicable to this case. A trademark is a name, sign, symbol, mark, brand, or device of any kind, used to designate the goods manufactured or sold, or the place of business of the manufacturer or dealer in such goods. The exclusive right in a

trade-mark is acquired by its use, which the law does not require shall be continued for any prescribed time. The trade-mark is often intended to indicate the quality of the goods, and it is unlawful to appropriate it to indicate goods of a quality equal to those manufactured or sold by its proprietor. Taylor v. Carpenter, 11 Pai. 292; Coats v. Holbrook, 2 Sandf. Ch. 586. The use of a trade-mark, ignorantly or innocently, with no intention to defraud or deceive the proprietor or the public, will be restrained by chancery. Millington v. Fox, 3 My. & C. 338; Cartier v. Carlisle, 31 Beav. 292. In order to authorize the interference of chancery it is not necessary that the trademark should be copied with the fullest accuracy. An imitation which varies from the original in some respects will be restrained. The rule is that if the imitation is calculated to deceive and may be taken for the original, its use will be restrained. Filley v. Fassett, 44 Mo. 173; Boardman v. Meriden Brittania Co., 35 Conn. 402; Falkenburg v. Lacy, 35 Cal. 52; Woodward v. Lazer, 21 id. 448; Sexe v. Provezende, L. R., 1 Ch. App. 192; Wotherspoon v. Currie, L. R., 5 Eng. & Ir. App. 508; Bradley v. Norton, 33 Conn. 157; Davis v. Kendall, 2 R. I. 566. See, also, 2 Hill. on Torts, 62; 2 Story's Eq. Jur. (11th ed.), § 951; High on Injunc., ch. 16; Addison on Torts (4th ed.), 874. Shaver v. Shaver. Opinion by Beck, J.

MICHIGAN SUPREME COURT ABSTRACT.

JUNE, 23, 1880.

RECORD -MISTAKE OF REGISTER IN RECORDING DOES NOT PREJUDICE MORTGAGEE.- The statutes of Michigan held to provide that a mortgage is considered recorded when received by the register of deeds for record. This officer is required to keep an entry book of mortgages in which are set forth the date of reception of the instrument, the names of the mortgagors and mortgagees, township, where lands are situated, etc. Afterward the instrument is to be recorded at length in a book kept for the purpose. A mortgage was received and the proper entries made by the register in the entry book. In copying the same at length in the proper book the name of the mortgagee was omitted. Held, that the mortgage was recorded so as to affect a subsequent purchaser with notice. Under a New York statute, which provided that no mortgage should "defeat or prejudice the title of any bona fide purchaser, unless the same shall have been duly registered," Chancellor Kent held that "the registry is notice of the contents of it and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage any further than they may be contained in the registry. The purchaser is not bound to attend to the correctness of the register. It is the business of the mortgagee; and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide purchaser." The statute, he adds, intended the registry

as the correct and sufficient source of information; and it would be a doctrine productive] of immense mischief to oblige the purchaser to look at his peril to the contents of every mortgage, and to be bound by them, when different from the contents as declared by the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy of the statute." Frost v. Beekman, 1 Johns. Ch. 288, 298. The mistake in the record in that case consisted in a misrecital of the amount secured. The case has been often followed. In Sanger v. Coague, 10 Vt. 555, the error consisted in misdescribing the land. In Jennings v.

Wood, 20 Ohio, 26, the name of the grantor in a deed was incorrectly given. In Parrett v. Shaubhut, 5 Minn. 323, the mistake consisted in the omission of one of the subscribing witnesses, whereby the deed was made to appear insufficiently executed. In Shepherd v. Brubhalter, 13 Ga. 443, the name of the mortgagor was not appended to the mortgage as recorded. In Sawyer v. Adams, 8 Vt. 172, the deed was recorded in an unused book and not indexed. Terrell v. Andrew Co., 44 Mo. 309, was another case of error in giving in the record the amount of the mortgage, and the following are cases in which the thing conveyed was misdescribed: Chamberlain v. Bell, Cal. 292; Miller v. Bradford, 12 Iowa, 14; Baldwin v. Marshall, 2 Humph. 116; Brydon v. Campbell, 40 Md. 331; Breed v. Conley, 14 Iowa, 269; Gwinn v. Turner, 18 id. 1. This court has also held that a sheriff's notice of attachment was ineffectual where by mistake it failed to describe the land attached. Barnard v. Campau, 29 Mich. 162. On the other hand, it has been held in Illinois, under a statute which gave a deed effect as against subsequent bona fide purchasers from the time it was filed for record, that the grantee was not affected by errors in recording, he having done all that the law required of him when he had filed his deed with the recorder. Merrick v. Wallace, 19 III. 486; Polk v. Cosgrove, 4 Biss. 437; Riggs v. Boyland, 4 id. 445. So, in Alabama, under a statute which made a conveyance "operative as a record" from the time it was left for registration, it was decided that a mortgage was a valid lien for the whole amount, though incorrectly recorded as for a smaller sum. Mims v. Mims, 5 Ala. 23. The following are cases which recognize the rule that filing a deed for record gives it effect as a record. Dubose v. Young, 10 Ala. 365; Bank of Kentucy v. Hagan, 1 A. K. Marsh. 306. The different conclusions in these cases are the result, in the main, of differences in the statutes under which the records have been made or attempted, and perhaps if all the statutes had been alike, all the decisions would have been harmonious. Sinclair v. Slawson. Opinion by Cooley, J.

WAIVER-APPEARANCE IN JUSTICE'S COURT.-In an action in a justice's court the court had lost jurisdiction on account of an adjournment from time to time in the absence of defendant. Upon an adjourned day the defendant's attorney answered to the case and applied for a postponement to a later hour the same day. The plaintiff's attorney objected and the application was denied. The defendant's attorney then stated that he appeared specially to object to further proceedings. Held, that the defect in jurisdiction was waived by the acts of defendant's attorney. If he had appeared specially and for the purpose of assisting the suit on account of previous irregularities, there would have been no waiver. But if the appearance was for another purpose, and with the view to prolong the pendency of the action, and it contemplated a step adapted to a case regularly on foot, it was a waiver of the prior defects. Falkner v. Beers, 2 Doug. 117; Clapp v. Graves, 26 N. Y. 418; Briggs v. Humphrey, 1 Allen, 371; Rittenauer v. McCausland, 5 Black, 540; Heeron v. Beckwith, 1 Wis. 17; State v. Messmore, 14 id. 115; U. M. T. Co. v. Whittaker, 16 id. 220; Baizer v. Larch, 28 id. 268; Abbott v. Sample, 25 Ill. 107; Swift v. Lee, 65 id. 336; Ulmer v. Hiatt, 4 Greene, 439; Clark v. Blackwell, id. 441; Deshler v. Foster, 1 Morris, 403. The motion for a continuance was a step in the cause, and one which meant that the action should be presently kept on foot, and there was nothing to qualify it. The subsequent explanation did not abate its effect. It was not made until the motion was denied, and at that time the representation of the parties had become complete, and the irregularities were waived. Lane v. Leach. Opinion by Graves, J.

INSURANCE LAW.

FIRE POLICY ACTION BY INSURANCE COMPANY AGAINST ONE NEGLIGENTLY CAUSING FIREJOINDER OF PARTIES.-The law is well established that an insurance company which has been compelled to pay, or has paid, a loss covered by its policy, has, after such payment, a right of action against the person who wrongfully caused the fire and loss to the amount such insurance company paid even without any formal assignment by the assured of his claim against the party primarily liable. And the courts have likewise been very firm in supporting the right of the insurance company to bring an action in the name of the assured, and will not allow the latter to defeat such action even by a release or discharge of the person by whose act the damage was occasioned. Hart v. Western R. Co., 13 Metc. 99; Monmouth County Fire Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Connecticut Fire Ins. Co. v. Railway Co., 73 N. Y. 399. These authorities distinctly affirm this position on the ground that the assured, by accepting payment of the insurer, subrogates the latter to his rights, giving such insurer full authority to sue the party causing the loss in his name. And where the right to maintain an action for a loss by fire through defendant's negligence is assigned to several insurance companies jointly, such companies may maintain the action jointly. Wisconsin Sup. Ct., June, 1880. Swarthout v. Chicago & North-western Railroad Co. Opinion by Cole, J.

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OF FAMILY NOT.- By a condition in a fire policy on a dwelling it became void if the house should "become vacant or unoccupied without the assent of the company. The insured used the premises as his own dwelling. About ten days before a fire by which it was destroyed he received a dispatch summoning him to the bedside of his dying daughter, in another State, and with his wife left the house alone, and did not return until after the fire. A son who lived near by, under the direction of insured, visited the house daily during his absence to look after the premises and stock thereon. Held, that the house was not "vacant or unoccupied, within the terms of the policy. It would not convey to an ordinary mind the idea that a house is vacant or unoccupied when it has an inhabitant who intends to remain in it as his residence, and who has left it for a temporary purpose. If the phrases were used in their strict legal sense no one would imagine that the tenant was not such an occupant as would be liable to the responsibilities attached by law to occupants, or that there was such a vacancy of possession as would suspend possessory rights. It would be burglary to feloniously break and enter the house, and arson to maliciously burn it. There may be less occasion to care for a house in which no one lives, than for one tenanted, but a person temporarily absent will usually take some pains to have his premises kept under oversight, and in the present case such provision was made for the domestic animals, as well as for the house itself. It would be regarded as singular doctrine to hold that families leaving their houses on excursions or other temporary occasions, cease to occupy them. In Cummins v. Agricultural Ins. Co., 67 N. Y. 260, it was held that a removal by a son and his family to his father's house, in the neighborhood of his own, to remain with his mother in his father's house while she needed their company, but with the intention of returning to his own house, which was not dismantled, was not a vacating by removal of the son's house, although the absence actually continued about three months. It was also held in Whitney v. Black River Ins. Co., 72 N. Y. 118, that a saw-mill, lying idle for several weeks for lack of water or logs, did not thereby cease to be occupied during the intervals, and in dis

cussing the meaning of the terms reference was made' to a school-house in vacation as not ceasing to be occupied for school purposes. Michigan Sup. Ct., April 211880. Stupetzki v. Transatlantic Fire Insurance Co. Opinion by Campbell, J.

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TOTAL LOSS—WHAT IS.- In an action on a policy which had a provision for an appraisement of damage to property not totally destroyed " there was a dispute as to whether there was a total or a partial loss. Held, that a charge to this effect was not error: "A total loss does not mean an absolute extinction. The question is whether all the parts and material composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still exists as a building. Although you may find the fact that after the fire a large portion of the four walls was left standing, and some of the iron work still attached thereto, still if you find that the fact is that the building has lost its identity and specific character as a building, you may find that the property was totally destroyed within the meaning of the policy." In Nave v. Home Mutual Ins. Co., 37 Mo. 430, it was held that a policy of insurance upon a building is an insurance upon the building as such, and not upon the material of which it is composed. See, also, Huck v. Globe Ins. Co. (Mass.) Ins. L. J., Dec. 1879. In Insurance Co. v. Fogarty, 19 Wall. 644, which was an action on a policy of marine insurance, the Supreme Court of the United States held that the doctrine of an absolute extinction of the thing insured is not the truc doctrine, even in that class of cases where the rule is stricter than in cases like the present. In the course of the opinion, in speaking of the case of Hogg v. Augusta Ins. Co., 7 How. 595, where there was an insurance of jerked beef of 400 tons, part of which was thrown into the sea, and part of the remainder so seriously damaged that the authorities of the city of Nassau refused to allow more than 150 tons of it to be landed, the court say: "It will be observed that in this case, as in the case of Morcardier v. Chesapeake Ins. Co., 8 Cranch, 47, the destruction spoken of is destruction as to species, and not mere physical extinction. Indeed, philosophically speaking, there can be no such thing as absolute extinction. That of which the thing insured was composed must remain in its parts, though destroyed as to its specific identity. In the case of the jerked beef, for instance, it might remain as a viscid mass of putrid flesh, but it would no longer be either beef or jerked beef. The case of Judah v. Randall, 2 Cai. Cas. 324, where a carriage was insured and all lost but the wheels, is another illustration of the principle. A part of the carriage— namely, the wheels, a very important part - was saved; but the court held that the thing insured-to wit, the carriage—was lost; that it was a total loss. Its specific character as a carriage was gone." California Sup. Ct., March 29, 1880. Williams v. Hartford Fire Insurance Co. Opinion by Ross, J.

RECENT ENGLISH DECISIONS.

AGENCY-SALE ON CREDIT TO AGENT BELIEVED TO BE A PRINCIPAL.- Although a seller, who has given credit to an agent, believing him to be a principal, cannot have recourse against the undisclosed principal, if the principal has bona fide paid the agent at a time when the seller still gave credit to the agent, nevertheless if at the time of dealing in the goods the seller was informed that the person who came to buy was buying for a principal, but was not told who that principal was, he may afterward have recourse to the undisclosed principal, who will be liable even after payment to his agent, unless he has been reasonably led to infer that the debt has been paid by the agent, or that the seller elects to look to the agent alone for payment. On 10th March, 1879, defendants gave to C. & Co. an

order to buy certain oil.

On 12th March C. & Co. purchased the oil from plaintiffs, stating that it was for a principal in the country, but not giving his name. Part of the oil was delivered on 13th, and the remainder on 15th March. On the latter date defendant paid C. & Co. for the oil by their acceptances. On 17th or 18th March plaintiffs applied to C. & Co. for payment; other applications were made to C. & Co. between 21st and 25th March. C. & Co. stopped payment on 27th March, and on 28th March application was for the first time made to defendants for payment of the price of the oil. Defendants repudiated all liability, whereupon this action was brought to recover the amount. Held, that as no such delay had intervened from the purchase of the oil as to lead defendants reasonably to infer that plaintiffs looked no longer to their credit, or that they looked to the agent alone, plaintiffs were entitled to recover. Cases referred to: Thompson v. Davenport, 9 B. & C. 78; Heald v. Kenworthy, 10 Ex. 739; Armstrong v. Stokes, L. R., 7 Q. B. 598; Smyth v. Anderson, 7 C. B. 21. Ct. Appeal, June 11, 1880. Irvine & Co v. Watson & Sons. Opinions by Bramwell, Baggallay, and Brett, L. JJ., 42 L. T. Rep. (N. S.)

800.

FIRE INSURANCE-CONTRACT OF INDEMNITY ONLY. A policy of fire insurance is a contract of indemnity. Premises were held under lease containing a covenant to repair, under which the tenant was liable to repair injury by gas. An explosion of gas damaged the premises. The tenant recovered compensation from the party who caused the explosion, and repaired the premises. The landlord had received payment under a fire policy, and the insurer, on discovering that the premises had been repaired, sued for the return of the money so paid. Held, (reversing the judgment of Lush J.), that the plaintiff was entitled to recover. North British Ins. Co. v. London, Liverpool, etc., Ins. Co., 37 L. T. Rep. (N. S.) 629. Ct. Appeal, May 12, 1880. Darrell v. Tibbetts. Opinion by Brett, Cotton, and Thesiger, L. JJ.

to stop the surplus proceeds payable by the sub-purchaser, after discharging intermediate equities. Ex parte Golding, Davis & Co., re Knight & Son, 42 L. T. Rep. (N. S.) 270; 13 Ch. Div. 628, followed. Ct. Appeal, May 13, 1880. Ex parte Falk; re Keill. Opinions by James, Baggallay and Bramwell, L. JJ., 42 L. T. Rep. (N. S.) 780.

THIS

NEW BOOKS AND NEW EDITIONS.

32D NEW JERSEY EQUITY REPORTS.

Reports of Cases decided in the Court of Chancery, the Prerogative Court, and on appeal in the Court of Errors and Appeals, of the State of New Jersey. John H. Stewart, Reporter. Vol. V. Trenton, N. J., 1880. Pp. xxvi, 907. HIS volume of this most admirable series is full of interest. The following cases are annotated in the most thorough manner by the reporter: Cray v. Cray, p. 25.- A denial of a marriage de jure, because complainant had another husband living when she married defendant, accompanied by an admission of a marriage de facto, presents a proper case for alimony pendente lite. Smillie v. Titus, p. 51. A mortgage executed by a prisoner, while under arrest on a charge of appropriating gold intrusted to him to be refined, the prisoner confessing the crime, is not void for duress. Central R. R. of N. J. v. West Line R. R. Co., p. 67.-A complainant must elect between his suit pending in the State court and his suit for the same cause pending in the Federal court. Homœopathic M. L. Ins. Co. v. Marshall, p. 103.-In the absence of fraud or duress a married woman cannot contradict her acknowledgment of a deed. Williams v. Vreeland, p. 135. Specific performance will be decreed of an oral promise by A to B, in consideration of a legacy from B, to pay C a part thereof. Hedges v. Norris, p. 192. The statute of limitations does not bar a suit in equity for the recovery of a legacy payable only out of the personalty. Cooper v. Bloodgood, p. 209.— A riparian owner granted lands, including the water front between high and low-water mark, with the usual covenants of title, and procured for the grantee a wharf license, by virtue of which the grantee built a wharf on the granted premises. Subsequently, without notice to the grantor, the grantee obtained from the State a riparian lease of the premises. Held, that the necessity for such lease was under the circumstances in equity not tantamount to an eviction. Bussom v. Forsythe, p. 277.-The legitimacy of a heir may be contested, notwithstanding the intestate's recognition of his legitimacy by entries in his family bible, and in other ways, and notwithstanding it was never questioned until after the death of all the ancestry, and just as distribution was to be made. Parker v. Reynolds, p. 290.-General creditors of a testator are not "aggrieved," within the meaning of the Constitution, so as to have a right of appeal from an order of the or

LEASE COVENANT TO PAY TAXES AND ASSESSMENTS -WHAT IS AN ASSESSMENT.- Plaintiffs, as owners of certain premises, were summoned by the urban sanitary authority for not complying with a notice to abate a nuisance thereon occasioned by defective sewerage, and for that purpose to make drainage communication with the common sewer. On the hearing of this summons a magistrate's order was made under section 96 of the Public Health Act, 1875 (38 and 39 Vict., ch. 55), directing plaintiffs to execute the works in question, which they accordingly did. Defendant was tenant of the premises under a lease, by which he covenanted to "bear, pay, and discharge" certain specified taxes and rates, "and all other taxes, rates, duties, and assessments taxed, charged, rated, assessed, or imposed on the said demised premises or any part thereof, or upon the landlords or tenants in respect thereof." Held, by Bramwell and Baggallay, L. JJ. (Brett, L. J., dissent-phan's court directing the sale of lands to pay debts of ing), that under this covenant plaintiffs were entitled to recover from defendant the costs of executing the above works. Judgment of Grove, J., affirmed. Cases referred to: Tidswell v. Whitworth, L. R., 2 C. P. 326; Thompson v. Lapworth, L. R., 3 C. P. 149; Crosse v. Raw, L. R., 9 Exch. 209; Rawlins v. Briggs, L. R., 3 C. P. D. 368; Hartley v. Hudson, L. R., 4 C. P. D. 367; Sweet v. Seager, 2 C. B. (N. S.) 119; Payne v. Burridge, 12 M. & W. 727. Ct. Appeal, June 23, 1880. Marshall, 42 L. T. Rep. (N. S.) 793.

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the estate. Palys v. Jewett, p. 302. — A receiver, appointed by an equity court, can be sued at law for a tort, but only by leave of the equity court. American Dock, etc., Co., v. Trustees of Public Schools, p. 428.A State cannot be sued without its own consent, or a constitutional provision or special enactment to the contrary. Johnston v. Hyde, p. 446.-One who has granted lands, reserving a right to maintain an open raceway over them, is not estopped, by his acquiescence in the substitution of a small wooden trunk, from insisting on the restoration of the raceway. Cook v. Cook, p. 475.-Communication of a venereal disease by husband to wife is "extreme cruelty," for which a divorce will be granted. Yorston v. Yorston, p. 495. - Acquiescence by a wife, for seven years, in a divorce obtained by her husband, irregularly, as she avers, the husband having married again and had two

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