April 1867-a day which the policy showed was the applicant's birthday. This variation was, of course, against his interest. Accompanying the policy sent to the agent were two receipts for premiums, executed by the company in New York, one as of the 5th of April 1867, and the other as of the 5th of July 1867, under which receipt was a Notice to policy-holders," that unless premiums were paid on or before the day they became due, the policy was forfeited and void; that agents were not authorized to make, alter, or discharge contracts, or waive forfeitures; that payments of premiums to agents were not valid unless receipts were given, signed in New York by the officers of the company, the local agents to countersign them as evidence of payment; and that all premiums were payable in New York. The policy and these receipts reached the agent at San Francisco on the 2d of August, having been executed in New York, probably twenty-three to thirty days before. The agent countersigned them, and on the 8th (six days after receiving it) wrote to A., then absent from home, informing him that his policy had arrived, and asking whether he would have it sent to him or held subject to his order. It did not appear whether A. received or did not receive the letter. On the 21st of August he was shot (becoming at once insensible), and died on the 20th of September. Held, that owing to the change of terms in the policy from those contemplated by A., the applicant, the acceptance by the company was a qualified acceptance which A. was not bound to accept; that there having been no evidence that he did accept it, the company was not bound: Insurance Co. v. Young's Administrator, 23 Wall.

INTOXICATING LIQUORS.

Contract by Foreign Vendor.-The agent of a foreign liquor-selling establishment obtains an order which he sends to his employers for approval. Held, that there is no completed contract until the order is approved and accepted, and that if that is done outside of the state, it is a foreign contract, and not void as in violation of the liquor law of Michigan: Kling v.. Fries, S. C. Mich.

Illegality and bad faith are not to be presumed against a foreign contract, but must be shown: Id.

LANDLORD AND TENANT.

Constructive Eviction-Implied Obligation on the part of a Landloră. -N. leased to G. certain property to be used as a distillery, at $125 a month, payable monthly. As a preliminary to the use of the distillery, it was necessary for the lessee to file with the United State collector the written consent of the lessor as the owner in fee of the property, in accordance with sect. 3262 of title XXXV of the Revised Statutes of the United States, unless the commissioner authorized the collector to accept the bond of the lessee in lieu of such written consent. The lessor refused to give such written consent, and in consequence thereof the lessee was prevented from running the distillery and the property remained idle. In an action by the lessor to recover the rent of the premises, it was Held, 1st. That the refusal of the lessor to give his written consent to the lessee, as required by law, to enable him to carry on the business for which the premises were leased, discharged the lessee from all obligation to pay the rent-the default of the lessor in this par

ticular amounting to "constructive eviction," so far as the legitimate employment of the property was concerned. 2d. That the obligation of the lessor to give his consent, as required by the law, was to be implied as a necessary incident to the lease, as fully as if there had been inserted a positive stipulation to that effect: Grabenhorst v. Nicodemus, 42 Md. LEASE.

Joint Occupancy-Claim for Rent nor Assignable as between mere Joint Occupiers.-Under an agreement for the mere joint occupancy of premises and joint-conduct of business, there can be no claim for rent assignable by one of the parties as against the other. The remedy for a breach of the contract would be an action for damages, and not one for use and occupation: Carter v. Palmer, S. C. Mich.

LIMITATIONS, STATUTE OF.

Application of Payments.-Kiff gave Moore ten notes, one payable each consecutive year without interest; judgment was entered on them; at the same time teu plain notes were given for the interest, payable yearly. Kiff made payments to Moore from time to time; neither party made any appropriation of these payments to either debt. More than six years after the interest-notes were due, in a scire fucias on the judgment, the court charged, as the interest-notes are now barred by the statute, these payments must be applied to the debt in controversy." Held to be error: Moore v. Kiff et al., 78 Penna.

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MALICIOUS PROSECUTION.

Evidence-Province of Court and Jury-When Court not required, ex mero motu, to define Malice.—In an action for a malicious prosecution, the plaintiff offered to prove that pursuant to the regular custom of the detective police department, his name was entered upon the detective police annals of the city of Baltimore, and open to the inspection and use of the police force, as tending to show the publicity of the charge made against him and the consequent injury to him. Held, that this was clearly not admissible evidence against the defendant, unless there was some law requiring such a record to be kept, or unless the plaintiff was prepared to show by proof that the defendant knew that the name of the plaintiff would be so entered as the consequence of the charge of theft brought against him: Garvey v. Wayson, 42 Md.

A prayer which asks the court to instruct the jury that malice "in its legal sense, is any wrongful act done intentionally without legal justification or excuse," is erroneous: 1st. Because malice is not an act but the wrongful motive that prompts the act. 2d. Because what constitutes a legal justification or excuse is matter of law to be determined by the court, and no prayer should be granted which submits such a question to the jury: Id.

Where a prayer groups together various facts and asks the court to instruct the jury that they may consider said facts, if found by them, in determining whether or not the defendant was actuated by malice, and several of the facts so enumerated, even if found by the jury, would not be evidence of malice, such prayer should be rejected: Id.

In an action for a malicious prosecution upon a charge of theft, the voluntary attendance of the defendant upon the execution of the search

warrant and his entrance into the plaintiff's house while the search was being made, is no evidence of malice on his part: Id.

Where the court has rejected a prayer defining malice because it was incorrect, it is not bound ec mero moto to give any definition of it: Id.

MORTGAGE.

Taking Second Mortgage for same Debt.-Where a mortgage was given to a guardian to secure a debt due his wards, and subsequently a new guardian was appointed in his place, who, in ignorance of the existence of subsequent encumbrances upon the property, agreed that the time of payment of the mortgage-debt should be extended, and took a new mortgage on the same property to secure its payment, but without releasing the first mortgage, it was Held, that the debt secured by the two mortgages was the same and should have the benefit of the lien of the first mortgage: Drury et ux. v. Briscoe, 42 Md.

MUNICIPAL CORPORATION.

Jurisdiction in Equity-Violation of Ordinance--Nuisance-Courts of chancery have no jurisdiction to restrain the threatened violation of a municipal ordinance unless the act amounts to a nuisance: Village of St. Johns v. McFarlan, S. C. Mich.

The erection of a wooden building within municipal fire-limits is not of itself a nuisance, nor does the fact that it is prohibited by an ordinance make it so: Id.

NEGLIGENCE. See Admiralty.

Railroad Whistle-When Negligence, is for the Court.-Negligence is the absence of care, according to the circumstances: Philadelphia, Wilmington and Baltimore Railroad Co. v. Stinger, 78 Penna.

It is the duty of an engineer approaching a highway, if danger is to be apprehended, to give warning by sounding the whistle, or other sufficient alarm; the failure to do so is negligence per se, to be determined by the court: Id.

The court is to decide the question of negligence, where the precise duty is determinate and the same under all circumstances: Id.

A wanton, unnecessary sounding of the whistle is negligence: Id. A railroad company having a chartered right to propel their cars by steam, are not responsible for injuries resulting from the proper use of such agency: Id.

Whether alarming a horse and causing an accident by a rapidly-moving train, or sounding a whistle, will make the company liable for damages, depends upon whether it was from want of proper care in those in charge of the train: Id.

What would be due care in running a train through a sparsely settled rural district might be negligence in approaching a large city: Id.

A train was passing through a city on a railroad which had a number of short curves, so that persons could see the train but for a short distance; it was crossed by several streets and passed over a river on a drawbridge; the rule of the company required that the whistle should be sounded about a certain point, to warn the bridge-tender and persons

about to cross at other streets. Held, the use of the whistle at that point in the ordinary manner was not negligence: Id.

If the whistle had not been sounded at such point and one had been injured by reason of the omission, it would have been negligence per se: Id.

One driving an unbroken or vicious horse, or one easily frightened by a locomotive, along a public road running side by side with a railroad, does so at his own peril; the right of the company to move their trains on their road is as high as that of the individual to use the public road: Id.

NUISANCE. See Municipal Corporation.

PLEADING. See Estoppel.

RAILROAD. See Negligence.
REPLEVIN.

Prior Demand-Chattel Mortgage-Husband and Wife-Evidence.— A husband gave a chattel mortgage upon a span of horses in use on his wife's farm, and absconded. The mortgagee, without making any demand for them, replevied them for breach of the condition of the mortgage. Held, that the mere presence of the horses on the farm did not make the wife a wrongdoer, and that the mortgagee was at least bound to present his claim to her, to be recognised or rejected, before he could lawfully subject her to the costs of a suit: Campbell v. Quackenbush, S. C. Mich.

In replevin brought against a wife upon a liability incurred by her husband, who had absconded, testimony of what the husband had said and done was inadmissible, unless the acts or statements had been in her presence or with her knowledge: Id.

SURETY. See Trover.

TROVER.

Surety-Effect of Recovery in Trover on Title to Goods-Joint Conversion-Damages.-The relation of suretyship is based on the consent of all the parties: Kenyon v. Woodruff, S. C. Mich.

A recovery for conversion terminates the right to reclaim the property converted: Id.

Where parties are jointly guilty of conversion, and judgment has been recovered against one of them therefor, the injured party, by proceeding to enforce collection against him under that judgment, elects to look to him alone and bars himself from having recourse to the rest: Id.

A deputy sheriff was deceived by certain persons into converting property for their benefit. Judgment was recovered against him for the conversion, and he, in turn, sueing them in tort for the damage caused him by their fraud, recovered the amount of the judgment obtained against himself. This was held a proper measure of damage: Id.

THE

AMERICAN LAW REGISTER.

JULY 1876.

BOOKS OF PRACTICE.

LORD COKE we believe it was who said, "to be a good common lawyer, it is necessary to be a good prothonotary." Although the converse of the proposition cannot be pronounced equally true, yet it may confidently be asserted that to the successful practice of the law (understanding "practice" in its technical sense of directing the machinery of justice, rather than determining its principles), other things being equal, the good prothonotary will have a great advantage over his less practically instructed rivals.

Readiness in the actual practice of the law is, as a rule, among the latest acquisitions of the thorough student. Of two young men of equal advantages, of whom one is put to a systematic course of reading for three years, the other placed in the office of a lawyer of large miscellaneous business in the courts, or as an assistant in the prothonotary's office, where the greater part of his time will be taken up with the details of business, the more capable at the end of the three years to conduct the routine business of the law, will be the man who has studied least, and who is probably least acquainted with the theory and principles of jurisprudence.

Now, to put the real student as nearly as possible on an equality in this respect with the man who learns by doing, has been one of the difficult problems legal educators have had to deal with.

The devotion of a certain portion of time to the consideration

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