mencing nine months previously to its birth, and where there is not evidence to rebut the presumption it is conclusive. We are also of opinion that the distinction between a woman being pregnant and being quick with child is applicable mainly, if not exclusively, to criminal cases, and that it does not apply to cases of descents, devises and other gifts; and that, generally, a child will be considered in being from conception to the time of its birth, in all cases where it will be for the benefit of the child to be so considered. In a recent case it was held that where a gift was to children born, etc., a child en ventre sa mere should take a share. Among other considerations it was suggested that a child en ventre sa mere, even in the early stages of pregnancy, should be deemed living, because the potential existence of such child places it within the reason and motive of the gift. And the maxim of the civil law was cited, posthumus pro nato habetur. (Trower v. Butts, 1 Sim. & Stu. 181.) Whether the court would feel justified in going to this extent, the gift is to children born, etc., it is not now necessary to decide; but the court are of opinion, that a child en ventre sa mere is to be considered a child living, so as to take a beneficial interest in a bequest, where the description is "children living." The case of Doe v. Clarke, 2 H. Bl. 399, is directly in point. The devise was by the testator to his brother for life, and from his decease, to all and every such child or children as should be living at the time of his decease. The brother died in October, 1782, and the plaintiff was born in May, 1783, and it was held that she was entitled to a share as a child living. And it was stated as a fixed principle, that wherever such consideration would be for his benefit, a child en ventre sa mere shall be considered as absolutely born." Hall v. Hancock, 15 Pick. (Mass.) 255; s. c., 26 Am. Dec. 598.

But in a will, the phrase "living at the time of his decease," where the words his decease refer to the death of some one else than the testator, is insufficient to take the case out of the general rule that in gifts to a class, the class must be ascertained at the death of the testator. Therefore, where a testatrix bequeathed the residue of her

estate to "all the nephews and nieces in the first degree of relationship to my late husband who were living at the time of his decease;" and the testatrix's husband left nine such nephews and nieces surviving him, two of whom died during the lifetime of the testatrix, one before and one after the date of her will, it was held that the seven who survived the testatrix took the whole residue. Dimond v. Bostock, 23 Weekly Rep. 554.

1. Living in Adultery, Living Together, or as Husband and Wife.-See ADULTERY; COHABITATION, AND LEWD AND LASCIVIOUS CONDUCT.

2. Not to Load More than Her Registered Tonnage. In the warranty in question the words "not to load more than her registered tonnage" must have the same meaning and application as if they had stood alone and extended to all kinds of merchandise, instead of being restricted by the succeeding words. to particular articles. They cannot, according to their obvious, strict and natural meaning, include things put on board as necessary parts of the ship's stores or provisions or equipments. They would not, for instance, apply to guns and ammunition for the defence of the vessel, nor to spare chains and anchors, nor to coal carried to be consumed on board, nor to salt or grain for provisions, according to the duties resting upon the owner by law and the rights reserved to him in the charter party. Nor do they include articles shipped for the purpose of serving as ballast or dunnage. If the warranty "not to load more than her registered tonnage" had extended to goods of every description, and the dunnage used had been of the ordinary kind, planks or pieces of wood placed against the sides and bottom of the hold to receive, support and protect the cargo, it could hardly have been contended that their bulk or weight should be ascertained and computed in estimating the burden or tonnage of the vessel. The true meaning and whole effect of the warranty, in our opinion, are to forbid the loading of an amount greater than the prohibited articles as cargo in a ship properly fitted to receive it. Thring v. Great West. Ins. Co., 103 Mass. 406. See DUNNAGE, vol. 6. p. 55. In this case the word "cargo" is de-

LOADED.-See note I. LOADING.-See note 2.

fined to be "all the merchandise and effects which are laden on board a ship, exclusive of the soldiers, crew, rigging, ammunition, provisions, guns, etc., though all these things load it sometimes more than the merchandise." See Wolcott v. Eagle Ins. Co., 4 Pick. (Mass.) 433

"Ton"-Not a "Load."-A written agreement for drawing stone "at the rate of one dollar and twenty-five cents per load of two tons each" fixes the rate by the ton without regard to the number of tons actually drawn in one load, and cannot be varied by oral evidence. SHAW, C. J.: "The whole clause is to be taken together, 'at the rate of one dollar and twenty-five -cents per load of two tons each.' The words 'two tons' show what was to be considered a load. The words 'at the rate of' show that it was to be at the rate of so much for two tons. At the rate of so much per load without defining the load would be useless. This writing is not made for the benefit of one party more than of the other, but of both. It is very clear that it must be computed for two tons whether the load be larger or smaller." Huntley v. Woodward et al., 9 Gray (Mass.) 86, 88. Load and Unload.-The amount of time a railway company ought to allow a consignee to unload and remove a consignment depends upon the varying circumstances of each particular case. That forty-eight hours after a consignee receives notice of the arrival of his goods is a reasonable time on the average. A charge for the use and detention of wagons, caused by exceeding the time allowed by a railway company to unload in, should not (except where the permission to occupy an extra time in unloading forms part of the original contract) be included in the rate for conveyance. Coxon v. Northeastern R. Co., No. 2, 284.

coal at the port of L, "to be loaded with the usual despatch of the port, or if longer detained to be paid 40s. per day demurrage," and defendants engaged to load upon the above terms. The loading was to take place at the B docks, and by one of the regulations of the docks no coal agent was to be allowed to have more than three vessels in the B docks loading and to unload at the cranes at one time. The defendants acted as their own coal agents, and when the charter party was entered into they had three ships loading in B docks, and ten other charters in their books having priority over the plaintiffs. In consequence of these engagements the D was not allowed to go into the B docks until thirty days after she was ready to do so. Held, that the contract by the defendants was absolute to load and unload with the usual despatch of the port of L; that the D had not been so loaded, and that the defendants were therefore liable to pay for delay. Ashcroft v. The Craw Orchard Colliery Co., Limited, L. R., 9 Q. B. 540.

1. Sending a tin box filled with gunpowder and peas to a prosecutor, so contrived that prosecutor should set fire to the powder by opening the box, is not attempting to discharge certain loaded firearms. Rex v. Mountford, I Moody 441.

If an instrument be found so near and in such a direction as to be likely to kill or do other grievous bodily harm, and with intent that it should do so, though loaded with powder and paper only, it will be shooting at a person. Rex v. Kitchen, 1 Russ. & Ry- 94.

& Can. Cas. 426.

plaintiff's vessel, the D, engaged to receive on board and load a cargo of

to, or from or in the loading or unloading the stock." As we read this agreement it refers to loss or damage to the party by reason of injuries to the stock, caused by delay, etc., upon the cars, and to loss or damage by reason of delay in loading or unloading; and has no reference to other losses which the delays of the carriers may cause to the shipper. There are good reasons for an agreement of this description growing out of the manner in which cattle are usually transported; the owner or his agent accompanying and taking charge of them, and being on hand to prevent injuries of the kind specified, while no care of the owner could prevent other delays, or protect against losses which might follow incidentally from other delays. The stipulation appears to us carefully worded to cover such injuries and losses as the owner might guard against, while it studiously avoids losses like the one complained of here (i. e. delays). Sisson v. Cleveland & Toledo R., 14 Mich. 500.

Plaintiff shipped certain horses over the railway of the defendants, under a contract which provided that the owners took all risks of loss, injury, damage, and other contingencies "in loading, unloading, conveyance or otherwise, whether arising from the negligence, default, or misconduct, gross or culpable, or otherwise, on the part of the railway company's servants, agents, or officers." The contract contained a further provision that, when free passes were given to persons in charge of animals, or to their owners or consignees, the company should not be responsible for any negligence, default, or misconduct, gross, culpable, or otherwise, on the part of the company or their servants, or of any other person or person, causing or tending to cause the injury or detention of the animals. The injury in this case occurred by reason of the bottom of the carriage giving way. Whether this was caused by a defect in the carriage, or by reason of some other neglect or fault in the course of the transit, does not distinctly appear, as the court below found that the company was not liable at all under this agreement. But from the course of the argument we infer that defective cars caused the damage.

shipped, we think they were entitled to expect that reasonably proper cars would be furnished. While there is in one clause of the contract an exception of every default, the fair inference is that this language was used as referring to defaults in the particulars specified in the previous articles, viz: "loading, unloading, conveyance and otherwise," and matters of a like kind. The rule is usually applicable, that where no intention to the contrary appears, general words used after specific terms are to be confined to things ejusdem generis with the things previously specified. (Am. Trans. Co. v. Moore, 5 Mich. 368)

We think it would not occur to any one executing such a contract, that it had reference to any risks except such as were likely to arise from the nature of the freights, from delays, and from casualties and defaults occurring during the loading, transportation and unloading and delivery. It would not lead him to contemplate risks not incident to the ordinary transaction of business, and arising from negligence in no way likely to be incurred by a company using ordinary care in the management of its affairs. Hawkins v. Great Western R. Co., 17 Mich. 62.

Loading Offshore Prohibited. This is an action on a marine policy of insurance issued by the defendant upon a schooner, the property of the plaintiff. The vessel was lost while taking in a load of wood at a bridge pier near Bagley's harbor on the west shore of Lake Michigan. The policy had printed on the margin the words, "loading offshore prohibited."

And, giving

The important question in the case is in regard to the meaning of these words in the policy, and as to whether they did or did not prohibit loading at a bridge pier. to the language used its common and apparent meaning, we should say that the clause in question was only intended to prohibit loading at a distance from and away from the shore while the vessel was lying at anchor, and that it did not include loading at a bridge pier. A bridge pier is really a projecting wharf; is a permanent structure attached to and firmly connected with the main land. Loading from such a place, one would naturally suppose, was like taking in a cargo from shore. If the words are not used in a nautical sense in the contract, and have not a technical meaning, this is the construction we

Unless some showing was made that the plaintiffs, with proper opportunities of observation and with notice of their actual condition, assented to the use of the cars in which their horses were

whose benefit it is made, or that of another, is expressly and specifically pledged at the time for its repayment. It would seem to imply, also, that that should be the only security then given, and we should hardly understand that a loan was made on a pledge of stock where other security was also taken. Still we could not say that the phrase in question would not apply to such a case. Vansands v. Middlesex County Bank, 26 Conn. 157.

A loan is a grant of something, made in a gratuitous manner, for some certain use and for some certain time, express or implied, to the end that the same species should be again returned or restored again to us; and not another species of the same kind or nature, and this in as good plight as it was delivered. Booth v. Terrell, 16 Ga. 25..

Every advancement of money, for the accommodation of another, to be repaid to the person making the advance, by the person receiving it, or by any person for him, or by or out of his funds, is literally and legally a loan of money. Freeman v. Britlin, 2 Harr. (N. J.) 206.

A loan is said to be that which is furnished for temporary use, with a condition that it shall be returned or its equivalent, with a compensation for the use. Rodman v. Munson, 13 Barb. (N. Y.) 75.

A loan, in general, implies that a thing is lent without a reward; but in some cases a loan may be for a reward, as the loan of money. 7 Pet. 109.

It would be an enquiry too purely speculative, whether this use of the term ioan originated in the times when taking interest was considered usury and improper, the bailment of money which was to be returned in kind. The supposition would furnish a reasonable explanation of the exception to the general rule that loan includes properly only those bailments where no reward is given or received by the bailee. Bouv. Law Dict. 123 (15th ed.).

2

Loan of Money.-The distinction between a loan and a deposit of money to be used by the depositary is not a broad one, but sufficiently so to have enabled courts and elementary writers on the law to establish rules for both species of contract. By loan of money is meant the delivery by one party, who is called the lender, to, and the receipt, by the other party, who is called the borrower, of a given sum of money, upon an agreement, express or implied, to repay 13 C. of L.-62

the sum loaned with or without interest. A loan is usually made at the request and for the benefit of the borrower, and differs from the commodatum of the civil law in this, that in the latter the specific thing loaned was to be returned; whereas, by the other, the thing loaned may be consumed, and the depositary discharged himself by returning another thing of the same value or its equivalent in money. A deposit is commonly defined to be a naked bailment of goods to be kept without recompense, and to be returned when the bailor shall require it. Story on Bailments, 3, § 4.

A deposit of money with a bank or private person is not, therefore, the deposit of the civil law, nor is it what in that law was designated by the term mutuum, which was a loan of property for consumption and to be returned in kind, and without interest or compensation for the use; but is what Pothier calls an irregular deposit, which differed from a mutuum in this, that the latter has principally in view the benefit of the receiver, the former the benefit

of the bailor.

In cases of mutuum, the party borrowing was not held to pay interest upon the money lent; but in cases of irregular deposit, interest was due by the depositary, both ex nudo facto and ex mora. This distinction between the two classes of deposit, as to interest, is not recognized by our law, the depositary being liable in each for interest in the event of a breach of duty.

A deposit of money with a bank or private person is what is known in the civil law as a mutuum or irregular deposit-the distinction between the two kinds of deposit not being recognized by the common law. When money is borrowed, and no time of payment is fixed by the contract of the loan, the debt, as already stated, is instantly due, and an action may be brought without demand-the bringing of the action being a sufficient demand to entitle the lender to recover.

Even if the debt is by the terms of the agreement to be paid on demand, yet no special demand is necessary, the money being due without it.

In the cases of deposit, however, a demand was by the civil law, and as now by our law absolutely essential to a right of action, unless there was a wrongful conversion or some loss by gross negligence on the part of the depositary.