to recover damages for personal injuries to the wife. In case the husband died before the damages were recovered, they survived to the wife; but if the wife died before the damages were recovered, the suit abated.

If the husband died after the recovery of the judgment, the whole interest survived to the wife; and, if the wife died, the whole interest survived to the husband. They did not hold the judgment by a divisible title-one-half to the one, and onehalf to the other-but owing to the unity of the matrimonial relation they held it as if they were one and the same person. The husband, however, had the right to receive payment of it, to release it, or to dispose of it as he might see fit. But if he died without having exercised these rights, the judgment became absolutely the property of the wife, and was not subject to the claims of his creditors.

Independently of his wife the husband had no cause of action whatever for personal injuries to her; and in this respect his rights were different from those which he had in a certain class of choses in action of his wife, on which he might sue without joining her in the action. In this last description of cases, the judgment itself in the husband's own name was regarded as a reduction into possession, and worked an extinguishment of his wife's rights. But although a judgment in the joint names of husband and wife did not proprio vigore vest exclusively in the husband so as to leave no interest in the wife, it was nevertheless subject to the payment of the husband's debts.

We must now, however, inquire whether any change in the rights of the respective parties to this controversey has been effected by the constitutional and legislative enactments which have been made.

II. Effect of Separate Property Act.-The Act of 1874, chapter 57, re-enacted with a slight modification the Act of 1853, chapter 245. This latter Act is codified as the first section of article 45 of the Code of Public General Laws.-The original Act of 1853 was merely intended to exempt the property therein embraced from liability for the husband's debt, and did not have the effect of altering or impairing the marital rights of the husband. Schindel v. Schindel, 12 Md. 108; s. c., 12 Md. 313.

But the second section of article 45 of the Code has expressly provided that the married woman should hold such property for her separate use, with power of devising the same as fully as if she were a feme sole. it embraces, according to the enumeration of the Act of 1874, the property, real and personal, belonging to a woman at the time of her marriage; and all property which she may acquire or receive after her marriage by "purchase, gift, grant, devise, bequest, descent, or in a course of distribution."

The right of property in this judgment was not obtained in either of these modes. There is a mode of acquiring personal property distinct from

those enumerated in these acts. Blackstone, in treating of the title to personal property, classifies the methods of acquiring it under twelve distinct heads, and among these he mentions the title by judgment. And herein, as one species of property acquired by this mode, he specifies damages awarded to a party as a compensation for some injury sustained by him. He remarks that the injured party has unquestionably a vague and indeterminate right to some damages as soon as the injury is committed, and the verdict and judgment do not so properly vest a new title in him as fix and ascertain the old one; yet as the legal proceedings are the only visible means of this acquisition of property, he maintains that the classification is correct. 2 Blackstone's Com. 438.

All the property acquired in the modes mentioned in the first section of article 45 of the Code, and the amendment to it, is by the section expressly made the separate property of the married woman; but it has never yet been supposed that the husband was excluded from an interest in the damages recovered in an action for personal injuries to the wife. It has always been held that both husband and wife should join in the action. and that damages should be claimed in behalf of both; because both had an interest in the judgment. Newcomer and wife v. Kean, 51 Md. 121. And this very suit, in which these damages were recovered against the railway company, is as good an illustration as can be found of the practice in this particular. We conclude that the first and second sections of article 45 of the Code, and the amendments to them, do not affect any rights existing under this judgment.

III. Effect of Constitution.—It is now necessary to inquire whether the 43 section of the third article of the constitution has any bearing on the question involved in this case.

It is in these words: "The property of the wife shall be protected from the debts of the husband." The previous constitutions of 1851 and 1864 had contained directions to the legislature to pass laws necessary to secure this protection; and these requirements had been partially fulfilled. But our present constitution does not commit this matter to the action of the General Assembly. It adopts the language of the Act of 1853, so far as it declared the protection in question, and incorporates it into the fundamental law of the land. There was, after this constitutional enactment, no longer any necessity for the functions of the General Assembly. How could a statute, declaring that the property of the wife should be protected, give any additional efficacy to the supreme law? The words of the section are general and comprehensive. They give protection to all of the property of the wife; there is no reason for excluding any portion of it from this immunity. The Act of 1853 did not give the wife a separate estate in the property which she had at the time of the marriage and which she afterwards acquired in the mode therein mentioned. It did not impair the right of

ownership which the husband had by the common law; but, leaving this right unaffected, it exempted the property from the claims of his creditors. Schneidel v. Schneidel, 12 Md. 313; Bridges v. McKenna, 14 Md. 266; Plummer v. Jarmin, 44 Md. 637; Keller v. Keller, 45 Md. 276.

This clause of the constitution must receive the same construction which has been given to the similar language of the Act of 1853. The interest of the wife in this judgment is co-extensive with that of the husband, subject, of course, to his right of defeating it at his own will. In the eye of the law they are one person; as Blackstone says, the very being or legal existence of the woman is incorporated or consolidated into that of her husband. As a consequence of this union and identity, when an estate was given to a man and his wife they did not take it by moities, but each took the entirety; they held per tout et non per my.

But without dwelling upon the quaint language of the books, it is more to the present purpose to say that by the common law the husband, whenever he chose, could divest all interest which his wife had in this judgment, and that before the above-mentioned clause of the constitution became the law of the land, as a consequence of this right of the husband, his creditors could do the same thing in opposition to his wishes by subjecting it to the payment of their debts. If they now have the power to do it, it is very clear that they can wrest from the wife a valuable interest and appropriate it to the payment of debts due by the husband. To permit this would be to defeat that complete protection which the constitution designed to give to married women. It intended that no property right should be taken from her for the satisfaction of her husband's debts. It is nothing to the purpose to argue that the husband has an interest in this judgment which ought to be subject to his creditors' demands. The law exempts the husband's right to this judgment from execution for the sake of the wife: it protects him because thereby it can most efficiently protect her. By the construction given to the Act of 1853 the husband was allowed to own, possess and enjoy the property which he had acquired by his marital rights, and nevertheless it was exempt from execution by his creditors. All this resulted from the words of the statute that the property should be "protected from the debts of the husband and not in any way liable for the payment thereof." The same construction must prevail here. We think that the attachment cannot be sustained.

NOTES. "Property," etc., defined.-The meaning of the word "property," in such clauses as "the property of a married woman shall be held by her as if unmarried," has been much discussed. It is said not to include mere contingent interests, but it does include

1 Dering v. Kynaston, Law. R., 6 Eq. 210, 214.

corporeal and incorporeal,2 animate and inanimates property; it includes money, though where one statute prohibited contracts for the payment of money, and another authorized contracts with reference to separate property, a note was held invalid; it includes a mining interest in a "lead;" it also includes choses in action ex contractu, and this case decides that it includes choses in action ex delicto, about which, as we shall see below, there has been some question. An incidental question involved in this case, was whether the judgment in favor of both husband and wife could be called "her" property. Out of an injury to the wife two actions might arise in favor of her husband at common law,-one in the right of the wife, in which the husband and wife sue jointly for the direct injuries to her, the other in the right of the husband in which the husband sues alone for consequential damages to himself.9 The latter is his property; the former is hers, though he has marital rights in it just as he has in any other chose in action of hers.

2. Constitutional Protection of Property.-It follows from what has been said, that when a constitution protects the property of married women, a joint judgment for injuries to her cannot be attached by her husband's creditors. And that the protection is immediate, and not dependent on subsequent legislation, though the provision says "shall be protected," is in accordance with the authorities.10.

3. Effect of Specification of Kinds of Property in the Statute.-In many States the statute making the property of married women separate property, does not cover all property, but specifies certain kinds,—as property owned at the time of marriage, acquired by purchase, etc. As a preliminary rule, it may be stated that when a statute names any particular kind of property, its effect will be strictly limited to that kind,11this too is decided in the principal case.

A right in an undistributed estate, existing at the time of marriage, is property owned or "held" at the time of marriage,12 though when it comes into her

2 Smilie v. Siler, 35 Ala. 88, 95; Selden v. Bank, 69 Pa. St., 424, 425.

3 Gaus v. Williams, 62 Ala. 41, 43.

4 Mitchell, 35 Miss. 108, 114.

5 Butler v. Baber, 54 Cal. 178, 179.

6 Cheuvete v. Mason, 4 G. Greene, 231, 238, 239.

7 Nicholson v. Drury, Law R. 7 Ch. D. 48, 53, 54; Barton' 32 Md. 212, 224, 225; Cooper v. Alger, 51 N. H. 172, 175; Vreeland, 16 N. J. Eq. 512, 522; Selden v. Bank, 69 Pa. St. 424, 425; Bennett v. Reid, 4 Heisk. 440, 444; Williams v Lord, 75 Va. 390, 398; Gibson, 43 Wis. 23, 35; 28 Am. Rep. 527.

8 Brockbank v. Whitehaven, 7 Hurl. & N. 834, 838; Hunter v. Ogden, 31 Up. Can. Q. B. 132, 140; Pollard v. N. J. 101 U. S. 223, 244; Fuller v. Naugatank, 21 Conn. 557, 571; Ruder v. Purdy, 41 Ill. 279, 287; Long v. Morrison, 14 Ind. 595, 596; Anderson, 11 Bush, 327, 330; Hooper v. Haskell, 56 Me. 251, 252; Laughlin v. Eaton, 54 Me. 156, 159; Michigan v. Coleman, 28 Mich. 440, 442; Smith v. St. Joseph, 55 Mo. 456, 458; 17 Am. Rep. 660; Klein v. Jewett, 26 N. J. Eq. 474, 480; Lewis v. Babcock, 18 Johns. 443, 444; Crump v. McKay, 8 Jones, 32, 33; Whitcomb v. Barre, 37 Vt. 148, 151; Lindsey v. Danville, 46 Vt. 144, 148; Wheeling v. Trowbridge, 5 W. Va. 353. 354; Meese v. Fond du Lac, 48 Wis. 323, 328.

9 Smith v. St. Joseph, 45 Mo. 449; 55 Mo. 456; 17 Am. Rep. 660; cases last cited.

10 Story on Const., §§ 400-102; Cooley on Const. Lim (5th ed.) pp. 74, 88, 93, 94, 98; Lucas v. McBlair, 12 Gill & J. 16; Thomas v. Owens, 4 Md. 225; State v. Mace, 5 Md. 350, 351; McPherson v. Leonard, 29 Md. 381; Hoyer v Colton, 43 Md. 422.

11 Rule discussed Stewart Husb. & W. § 16.

12 Sharp v. Burns, 35 Ala. 653, 662; Witsell v. Charleston, 7 S. C. 88, 99, 100.

possession it is also property acquired during coverture.13

Under the terms "property acquired in any manner," a right of action for personal injuries to the wife,14 and personalty obtained from a sale of realty,15 are included.

The words "gift and grant" include all modes of acquiring property by deed;16 "gift" includes a grant of realty:17 "grant" applies equally to personalty;18 "grant" includes a deed of bargain and sale.19 A "gift" of personalty may be by parol.20 A lease is property acquired by grant.21

Property acquired by an executed contract is property acquired by purchase, gift, or grant. An executory contract is a chose in action ex contractu;22 if made by the married woman herself, her right to enforce it depends on her capacity to make the contract,23 her remedies, on the particular statutes of the forum,24 and there seems to be no more reason to question her ownership of the proceeds of a suit thereupon, than there would have been had the contract been voluntarily executed.25 If it is a contract made by a third party, but acquired by her by purchase, gift, etc., it is property so acquired, for choses in action, ex contractu are property.26

As already mentioned, it is disputed whether a right of action growing out of a tort is "property."27 Such a right has been held to come under "property acquired in any manner," and, of course, statutes may be so framed as to include it.29 Thus, when a statute gives a married woman as separate property, any right of action growing out of a violation of her "personal rights," a right of action for assault and battery,30 or for enticing away her husband,31 is included. But where the statute provides only for injuries to her person or character, she cannot sue for enticing away her husband.82

But statutes by implication protect the same property in a new form and the increase of property protected.

13 White v. Waite, 47 Vt. 502, 507.

14 Berger v. Jacobs, 21 Mich. 215, 220, 221.

15 Brevard v. Jones, 50 Ala. 221, 238.

16 Huyler v. Atwood, 26 N. J. Eq. 504, 505; Lyon v. Green, 42 Wis. 532, 536.

17 Libby v. Chase, 117 Mass. 105, 106.

18 Spaulding v. Day, 10 Allen, 96, 98; Abbey v. Deyo, 44 Barb. 374, 379.

19 Lyon v. Green, 42 Wis. 522, 535.

20 Tinsley v. Roll, 2 Met. Ky. 509, 510.

21 Darby v. Callaghan, 16 N. Y. 71, 75. See Vandevoort v. Gould, 36 N. Y. 639; Dayton v. Walsh, 47 Wis. 113, 120; 32 Am. Rep. 757.

22 Stewart Husb. & W. § 171.

23 See 19 Am. Law Rev. N. S. 359, etc.; Stewart Husb. & W. §§ 355, 393.

24 Stoneman v. Erie, 52 N. Y. 429, 432; Stewart Husb. & W. § 35.

25 See Fuller v. Naugatuck, 21 Conn. 357, 573, 574; supra

note 7.

26 Gibson, 43 Wis.23, 27, 28; 28 Am. Rep. 527; supra note 7. See Pro, Berger v.Jacobs, 21 Mich. 215, 220, 221; Leonard v. Pope, 27 Mich. 145, 146; Mann v. Marsh, 21 How. Pr 372, 376; Clark v. Harlan, 1 Cin. Rep. 418, 423; WestJake, 34 Ohio St. 621, 633; 32 Am. Rep. 397; Stevenson v. Morris, 37 Ohio St. 10, 17; supra note 7. Contra. Ballard v. Russell, 33 Me. 196, 197; 54 Am. Dec. 620; Laughlin v. Eaton, 54 Me. 156, 160: Gibson, 43 Wis. 23, 33; 28 Am. Rep. 527. See also Chicago v. Dunn, 52 Ill. 260, 263; Logan, 77 Ind. 558, 564.

28 Chicago v. Dunn, 52 Ill. 260, 263; Berger v. Jacobs, 21 Mich. 215, 220; Leonard v. Pope, 27 Mich. 145, 146.

29 Berger v. Jacobs, 21 Mich. 215, 220; Mann v. Marsh, 21 How. Pr. 372, 376.

30 Stevenson v. Morris, 37 Ohio St. 10, 17.

31 Clark v. Harlan, 1 Cin. Rep. 418, 423.

32 Logan, 77 Ind. 558, 564, 565.

33 Merritt v. Lyon, 3 Barb. 110, 114.

34 Pike v. Baker, 53 Ill. 163, 167; Ireland v. Webber, 27 Ind. 256, 259; Welch, 63 Mo. 57, 60; Hutchins v. Colby, 43 N. H. 159, 160.

35 Beal v. Storm, 26 N. J. Eq. 372, 376.

36 Sharpless v. Westchester, 1 Grant, 257, 260. 87 Gore v. Knight, 2 Verm. 535; Prec. Ch. 255.

38 See Barrack v. McCullough, 3 Kay & J., 110, 119; Hart v. Sorrell, 11 Ala. 386, 404; Sanford v. Atwood, 44 Conn. 141, 143; Bongard v. Core, 82 III. 19, 21; Stout v. Perry, 70 Ind. 501, 504; Russell v. Long,52 Iowa, 250, 252; Hanson v. Millett, 55 Me. 184, 189; Hill v. Chambers, 30 Mich. 422, 429; Williams v. McFade, 13 Minn. 46, 52; Hutchins v. Colby, 43 N. H. 159, 161; Knapp v. Smith, 27 N. Y. 280; Holcomb v. Meadville, 92 Pa. St. 338, 343; Nelson v. Hol lins, 9 Baxt. 553, 554; De Blane v. Lynch, 23 Tex. 25, 27; Braden v. Gose, 57 Tex. 37, 40; Dayton v. Walsh, 47 Wis. 113, 118; 32 Am. Rep. 757.

39 Bongard v. Core, 82 III. 19, 21.

1. CONTRACT. Covenants Running with the Land.Adjoining lot owners entered into and had recorded, a written contract that one of them should erect a brick wall on the line of the lots, half on one and half on the other lot, and if, after the erection of the wall, the other party, his heirs, assigns or executors used said wall or attached any part of their building thereto, the one erecting the party wall should be paid the full value of one half of the original cost of said wall. Held, that the contract constituted a covenant, which runs with the land, and whoever thereafter acquired the land and used the party wall became liable to the party erecting for the full value of one-half the original cost of said wall. [Citing Richardson v. Tobey, 121 Mass. 457; Standish v. Lawrence, 111 Mass. 111; Maine v. Cumston, 98 Mass. 317; Betram v. Curtis, 31 Iowa, 46; Brown v. McKee, 57 N. Y. 684; Masury v. Southworth, 9 Ohio St. 340]. Conduitt v. Ross, S. C. Ind., April 21, 1885.

2.

[Discharge.] Evidence of Substitution of New Agreement for Old One.-Whether a new agreement has been substituted for an old one, and then operates as a rescission or discharge of it, must be determined by the intention of the parties, to be ascertained by their correspondence and conduct. [Peck v. Requa, 13 Gray, 407; Munroe v. Perkins, 9 Pick. 298; Holmes v. Doane, 9 Cush. 135; Stearns v. Hall, Id. 31; Cummings v. Arnold, 3 Metc. 486; Cooke v. Murphy, 70 Ill. 96; Lawrence v. Davey, 28 Vt. 264; Stewart v. Keteltas, 36 N. Y. 388; Moore v. Locomotive Works, 14 Mich. 266.] Rogers v. Rogers, S. C. Mass., June, 1885; 1 N. E. Repr. 122.

3. DAMAGES. [Insurance.] The Fact that Insurance was Paid on Damaged Property Constitutes no Defense by a Wrongdoer for His Negligence.In an action for property destroyed by fire, when it is claimed that plaintiff's property was consumed and destroyed by defendant's actionable negligence, it is no defense that plaintiff's property was insured for its full value, and that he has received the insurance money. In such case the plaintiff is entitled to recover his entire loss from the defendant; and the fact that the insurance companies in which the property was insured had paid them the amount of such insurance, cannot constitute any defense. Nor can the payment of insurance money be used in mitigation of damages against the wrong-doer. [The court cites: Webber v. Morris, etc., R. R. Co., 35 N. J. L. 409; Clark v. Wilson, 103 Mass. 219; Hayward v. Cain, 105 Mass. 213; Perrott v. Shearer, 17 Mich. 47; Peoria Ins. Co. v. Frost, 37 Ill. 333; Conn. Ins. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265; 1 Suth. Damages, 242; Ohio R. W. Co. v. Dilkerson, 59 Ind. 317]. Cunningham v. Terre Haute R. Co., S. C. Ind., June 25, 1885.

4. EVIDENCE. [Privileged Communications.]—Executor or Administrator cannot Waive Privilege.— A statute of New York prohibits the receiving in evidence of communications made to a religious confessor, (N. Y. Code Civ. Proc. § 833), to a physician, (Ibid, § 834), or to an attorney or counsellor at law, (Ibid, § 835), unless the privilege is "expressly waived by the person confessing, the patient, or client." It is held that an executor or administrator is not authorized to make such a waiver of the privilege of his testator or intestate. [Earl, J., in giving the opinion of the court, says: "An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator. If one representing the property of a patient can waive the seal of the statute because he represents the property, then the right to make the waiver would exist as well before death as after, and a general assignee of a patient, for the purpose of protecting the assigned estate, could make the waiver; and yet it has been held that an assignee in bankruptcy is not empowered to consent that the professional communications of his assignor shall be disclosed. Bowman v. Norton, 5 Car. & P. 177. In Edington v. Mutual Life Ins. Co., 67 N. Y. 185, it was not decided nor stated that a personal representative could waive the protection of the statutes; but it was held that the personal representative or assignee of the patient could make the objection to evidence forbidden by the statute; and the opinion might have gone further and held that any party to an action could make the objection, as the evidence in itself is objectionable, unless the objection be waived by the person for whose protection the statutes were enacted." Westover v. Etna Life Ins. Co., N. Y. Ct. App., April 14, 1885; 1 N. E. Repr. 104.

5. GUARANTY. [Bond.] A Complaint on a Contract of Guaranty Need not Aver Notice of Default, as that is Matter of Defense.-Where a bond is given that one will faithfully perform his duties, and honestly account for moneys that might come into his hands as cashier of a bank, the undertaking is one of guaranty, and the guarantors are entitled to notice of a default in their principal. But a complaint on such a bond is not bad for failure to aver

6.

notice of default, as that is a matter of defense. With failure to give notice, resulting damages must concur in order to work a discharge of the guarantor. [The court says: "It was argued that the undertaking of Goodwin's bondsmen constitutes a continuing guaranty and is collateral to the original contract, and that the complaint is bad for failure to aver a notice of default before suit. Goodwin's contract with the bank was, that he would devote himself, in skill, experience and fidelity to the conduct of its affairs as cashier. This was his personal obligation, which no one could discharge in his stead. His bondsmen engaged that he was possessed of the requisite qualifications to that end, and that he would exert them in its behalf. In no event was it contemplated that they, or either of them, would discharge the duties of cashier, or do the things he might fail to do. The fair import of their contract is, that they will pay any damages which may accrue on account of his default. This constituted them guarantors and not sureties. The fact that Goodwin also joined in this collateral contract did not make any difference. It was collateral to the principal contract, and, being collateral, it is brought within the terms of a guaranty. Their contract with the bank must be determined by its substance and terms, and not by the fact that it was joined in by the principal."] LaRose v. Logansport Nat. Bank, S. C. Ind., June 25, 1885.

Mere Moral Delinquency in the Conduct of the Person Guaranteed will not Release the Guarantor.-The misconduct of which an employer has knowledge, and which will release the guarantor if concealed, or if he is thereafter continued in the employment, relates to the service in which the person whose conduct is guaranteed is engaged, and must be something more than mere moral delinquency, having relation to or connection with the subject matter of the guaranty. [Citing Atlas Bank v. Brownell, 11 Am. Rep. 231. A notice by the bondsmen was given to this bank that the cashier was guilty of whoring, drunkenness and gambling, and his discharge was asked. Upon this point the court; says: "Whatever the vices and indulgences, they cannot be made the basis of any legal right or remedy, until they affect the fitness of the person to whom they are attributed for the service required, or until some at least probable relation is shown between the indulgences and the business in which he is employed."] Ibid.

7. MANDAMUS. [Appellate Procedure.] To Compel Judge of Inferior Court to Sign Bill of Exceptions.-If a judge of an inferior court, by his return to the alternative writ, alleges that the bill of exceptions is not true, or shows other sufficient cause, a peremptory writ will not issue to interfere with his discretion in the premises; but where it appears, upon the issue joined, that the act is purely ministerial in its character, the rule is otherwise. McIlvaine, C. J., and Okey, J., dissented, on grounds special to the facts of the case. In the opinion of the court it is said by Johnson, J.: The authorities are all in support of the conclusions reached by the majority. Thus, People v. Pearson, 2 Scam. (Ill.) 189, was a mandamus to compel a judge to sign a "certain bill of exceptions which was tendered to him on the trial." The judge had signed a bill with certain portions of the evidence stricken out, and this was a proceeding to compel him to sign another bill containing the evidence which he had stricken out. The judge made no

return or answer to the alternative writ, nor did he return the writ itself; but, by counsel, appeared and filed an answer which contested the power of the court over him. The court say his answer is an insufficient compliance with the mandamus heretofore awarded, (the alternative writ,) and awarded a peremptory writ 'directing the signing the bill of exceptions required by the first writ.' The court add that if the judge had been of the opinion that the bill was not true, it would not interfere with the discretion of the judge in this respect. After pointing out the limits of this discretion, and showing that if the bill was true the act of allowing and signing was a mere ministerial act, it is said: 'In the absence of such a return,' (that is, one showing the existenee of such a discretion), 'with such explanatory reasons for a refusal to sign the bill of exceptions required by the party, we are bound to award a peremptory mandamus to cause the signing of the particular bill of exceptions exhibited.' This case, in another form, again came before the court in People v. Pearson, 3 Scam. 270, where the same rulings were reaffirmed. In Page v. Clopton, 30 Grat. 417, 418, it is said, if the relator's right is clear, and he is without any other adequate remedy, the mandamus will be granted; but if it is doubtful, or there is a discretion to be exercised, it will not. 'If the conditions of the statute are satisfied, the right of the party is clear, and the duty of the judge equally clear, and it is imperative. He has no discretion in the matter.' In Springer v. Peterson, 1 Blackf. 188, a mandamus was awarded to compel the associate judges to sign a bill of exceptions which had been signed by the president judge, or show cause, and no cause was shown. The court awarded a peremptory writ compelling them to sign the particular bill. Douglass v. Loomis, W. Va. 542, is also directly in point, and it was held that the power exists to compel a judge to sign a particular bill, which is conceded by him to correctly state the facts. The rule as there laid down is 'that the judge, in a case where the charge is that he refused to sign any bill, is commanded in the conditional writ to sign and seal the bill if it correctly sets out the facts. But where the complaint is, that he refused to sign a particular bill, he is required to sign the bill, or show cause why he has not done so.' The answer to a mandamus must respond to all the allegations in the writ, or it will be held bad on demurrer. Gorgas v. Blackburn, 14 Ohio, 252. And if a judge refuses to sign a bill of exceptions, he should make known the cause. Ohio v. Judges, 1 West. Law J. 358. While the mandatory part of the writ may be very general, the return or answer must be very minute in showing why the party did not do what he was commanded to do. Crompton and Blackburn, JJ., Regina v. Commissioners, 1 Best & S. 5. So a return to an alternative writ is insufficient, which merely alleges that the relator had no authority to compel the respondent to sign the bill, since he himself must be the judge of the correctness of the exceptions, if it fails to show that the bill as presented did not truly state the facts, or that the exception was not taken in the proper time and manner. Etheridge v. Hall, 7 Port. (Ala.) 47; High, Extr. Rem. § 210. It is the duty of the respondent to set forth, in his return or answer, the nature of his defense; either deny the allegations of the writ, or state facts sufficient to defeat the relator's right. It should contain positive allegations of fact, and not mere inferences from facts. Com. v. Allegheny, 37 Pa. St. 277. By the ancient common law,

the greatest rigor was applied in construing returns to alternative writs. The object of the pleading was, as it still is, to produce a definite issue; and while the rigor of the ancient rule as to the return, is relaxed under our Code, the sufficiency of the return, and the judgment that follows upon the issue found, is the same now as then. See High. Extr. Rem. §§ 457-487, for a full discussion of this subject. Also chapter 10 of the same volume. Under the head of "Pleadings in Mandamus," in that work, this whole subject is ful iscussed, and the view of the majority fully sustained. It is said that the peremptory writ should leave him the discretion to refuse to sign this bill, if, upon examination, he found it not a true bill. This, in legal effect, would be but an alias alternative writ, a thing unheard of in practice. He was commanded to sign this bill or show cause. He shows no cause, though he had a day in court, and filed an answer which, by the rules of pleading, admits this to be a true bill. A mandate now, upon this state of facts, simply to sign a bill of exceptions, leaving the judge, after he has had his day in court, to put up some new defense, or give some new reason, would be an anomaly as a peremptory command. It would only be another command to do the act, or again show cause." State ex rel Ottenberger v. Hawes, S. C. Ohio, Feb. 24, 1885; 1 N. E. Repr. 1.

S. MASTER AND SERVANT [Seaman]-Liability of Employer for failing to Furnish Surgical Attendance to Injured Seaman.-Although a seaman may not recover for an injury received in the course of his regular service, yet recovery may be had by him against his employer for an aggravation of the injury by neglect to give him proper medical attendance, and to perform other acts necessary for his welfare. Danver v. Morse, S. C. Mass., May, 1885; 1 N. E. Repr. 123.

9. MORTGAGE-Effect of Cancellation of Old Mortgage and Substitution of New.-The cancellation of an old mortgage and the substitution of a new one are to be regarded as cotemporaneous acts, and the result is, not the creation of a new mortgage, but simply a change in the form of the old one, and the momentary seizin of the mortgagor does not give his wife a right of dower. [In the opinion of the court, by Bicknell, Ch. Com., it is said: "We regard the cancellation of the old mortgage and the substitution of the new as cotemporaneous acts. It was not creating a new incumbrance, but simply changing the form of the old. A court of equity, looking to the substance of such a transaction, would not permit a release, intended to be effectual only by force of, and for the purpose of giving effect to, the last mortgage, to be set up, even if the last mortgage were in operation. Swift v. Kraemer, 13 Cal. 526. In Packard v. Kingman, 11 Iowa 219, it was held that the taking of a new note and mortgage to secure an indebtedness already existing by note, and secured by a mortgage on the same property, does not, even where the first note and mortgage are canceled, operate to discharge the lien of the first mortgage. The principle of these decisions is recognized in Jones, Mortg. §§ 924, 927, and in Story, Eq. §§ 1085c, 1035e. The foregoing authorities show that the taking of a new note and mortgage by a mortgagee from a mortgagor for the same debt, upon the same land, will not discharge the lien of the first mortgage, but such lien will be continued in the new mortgage, even if the first mortgage be