the executor named in the will of Gregg, was, under the circumstances, proved sufficient to render Gregg's estate liable on the indorsement, but as at the time when the third note fell due the executors named in the will had renounced the trust, and Ames had been appointed special administrator, and all these facts could readily have been learned on inquiry, the notice to Stockbridge was not sufficient. INSURANCE LAW. the business of life insurance. Such powers are not limited by a provision of the charter of the corporation, allowing its board of directors to declare a policy "forfeited" for failure to pay the premium. Such charter provision may have reference to policies not containing provisions for their own cessation in such case. The Supreme Court of Illinois, in the case of Williamsburg City Fire Insurance Co. v. Cary, decided January 31, 1877, holds that it is not indispensable to a recovery for a loss of goods insured, after their removal to a different place, that consent should be first obtained for the removal; a subsequent ratification of the act, with a full knowledge of all the facts, is equivalent to a precedent consent. When the local agent of an insurance company is informed that goods inTHE case of Burrell v. Simpson et al., decided No-sured have been removed long before any loss occurs, SUBROGATION OF MARINE INSURERS TO RIGHTS OF INSURED.-LIFE INSURANCE: NATURE OF CONTRACT: WHEN CONDITION IS NOT ULTRA VIRES. FIRE INSURANCE: REMOVAL OF INSURED GOODS: LIMITATION CLAUSE. and noticed in the Scottish Law Magazine, involved a very novel question. Burrell was the owner of two steamships, the "Fitzmaurice" and "Dunluce Castle," which, in February, 1876, came into collision near Lowestoft, when the latter vessel was sunk. When he presented his petition under the statutes for limitation of liability, claims were lodged, not only by the owners of cargo on board, but by the underwriters of the "Dunluce Castle," as assignees of the petitioner. In the ordinary case of two ships belonging to different owners coming into collision, there could have been no doubt that the underwriters of the sunk ship could claim in proceedings of this sort. Here, however, the party responsible for the accident might be said to be one with whom the underwriters themselves were identified, and accordingly their appearance upon the field met with vigorous opposition on the part of the other claimants. The case has, however, been decided in favor of the underwriters. The view, expressed with all his usual ability by the Lord President, shortly stated, amounts to this: When there has been total loss, the property of the sunk vessel, with its incidents, passes to the underwriters. There passes along with it a claim of damages against the vessel which has caused the loss. The underwriters are improperly said to represent the former owner of the ship. "They represent him in one sense, in so far as they have in themselves the ownership of the ship and all the rights and liabilities thence resulting, but they do not by any means represent him in the same sense in which an ordinary assignee represents his cedent." The fact, therefore, that Burrell was at once the owner of the "Fitzmaurice" and the "Dunluce Castle" could not prejudice the claim of the underwriters upon the latter vessel, since they were not identified with Burrell as the owner of the "Fitzmaurice." The identity of ownership, which had formerly existed, had come to an end when the assignation of the sunk ship to the underwriters took effect. Accordingly the underwriters were ranked pari passu with the owners of the cargo. and give assured an opportunity of again insuring, it will be liable for the loss. It would be inequitable to permit an insurance company to maintain that its policy was not binding upon it, and still retain the balance of the unearned premium, when it had positive knowledge of that which it insists effected the forfeiture. A policy of insurance does not become absolutely void on a breach of the implied warranty as to the location of the property embraced in it, as the company may waive any restriction made for its benefit; and when such waiver distinctly appears, the insurer will be estopped from insisting upon that which is inconsistent with what he has said and done and which affects the rights of others. The court also holds that although a policy of insurance may contain a clause prohibiting a suit for a certain time after loss, yet if the company positively refuses to pay under any circumstances, claiming that it is not liable at any time or in any event, the assured may bring suit at once, as the refusal will render the limitation clause nugatory. RECENT AMERICAN DECISIONS. SUPREME COURT OF PENNSYLVANIA.* CONTRACT. * 1. When divisible. A contract was for the sale of a piece of land, "also, a tract of coal property; for the land the vendee " agrees to pay $2,500, $2,000 to be paid on delivery of the deeds and possession of the property; * *the coal is to be paid for at the rate of half a cent per bushel, payment to be made for the coal at the end of each year; vendee agrees to use at least $1,000 worth of coal at half a cent a bushel each year." Held, on its face to be a divisible contract. Graver v. Scott. 2. When parol evidence admissible to explain written contract: verbal promise made to induce written.-The vendor being unable on demand to deliver a deed and possession of the property the vendee did not take possession of the coal tract nor mine coal; at the end of the year the vendor sued for the $1,000. Held, the suit being in affirmance of the contract, that parol evidence was admissible that the land was necessary for the vendee's enjoyment of the coal, and that it was the understanding at its execution that the contract was entire. A verbal promise at the making of a writ The Supreme Court of Tennessee, in the case of Equitable Life Insurance Society v. McLennan, recently decided, holds that the ordinary contract of life insurance is an insurance for a year, with the right in the assured of continuing it in force by successive periodical payments of premium. It also held that a clause in the policy providing that, on failure to pay any annual premium, the policy shall cease and determine, is a contract within the usual and ordinary powers of a corporation created for the purpose of engaging in | Rep.). *From advance sheets of 30 P. F. Smith (80 Penn. St. ten contract, if made to obtain its execution, may be given in evidence. Ib. 3. Enforcement of: upon partial failure.— In absence of explanatory proof, on a sale in separate lots, if title to a portion fails, equity will compel the vendee to take the lots to which title can be made. If the part of a contract of sale that has failed be so essential to HO the residue that it cannot be reasonably supposed the purchase would have been made without it, the contract is dissolved in toto. Ib. EVIDENCE. Admissions and declarations of agent after transaction not admissible.- Evidence that the pilot of a steamer which had come in collision with barges, "after the accident, admitted the collision was caused by his neglect, and within twenty-four hours afterward committed suicide by poison," was inadmissible. Declarations of the pilot, unless made before or at the time of the collision and so connected with it as to make them part of the res gesta, were inadmissible. The narrative of an agent of a past occurrence, is not evidence against his principal. The nearness to the accident of the subsequent declarations of an agent does not qualify them as evidence, unless they are so immediately connected as to form parts of its history. (Fawcett v. Bigley, 9 P. F. Smith, 411, followed). Bigley v. Williams. INSURANCE. 1. Action not maintainable by company on surety bond of agent doing business in violation of statute.-A foreign insurance company can transact business in Pennsylvania only under the system established by act of April 11, 1868. Thorne was appointed agent of a foreign insurance company; the conditions required by the act of 1868 not having been complied with, he gave bond with sureties to the company, conditioned for paying over moneys received by him, etc.; in suit by the company against him and his sureties for his not paying over, held, that the plaintiffs could not sustain the suit. Thorne v. Travelers' Ins. Co. 2. Power of legislature to prescribe conditions.-The legislature may prescribe the conditions under which foreign corporations may do business in the State, and the mode of appointing and qualifying agents. An action on a transaction prohibited by a statute cannot be maintained, although a penalty be imposed and the transaction be not declared void. Courts will not aid a party in an action grounded on an immoral or illegal act. Ib. REAL ESTATE. Rights of owners of surface and of right of mining: loss of springs: custom.— Of natural right the surface land is entitled to support from the strata below. When the owner of the whole fee grants the minerals, reserving the surface, his grantee is entitled only to so much of the minerals as he can get without injury to the surface. A custom contrary to such right would not be reasonable and, therefore, would be invalid. A grant of minerals and all privileges necessary for the convenient working, etc., of coal, and the rights incident or usually appurtenant to working and using coal mines," does not affect the grantor's right to a surface support. The loss of springs to the owner of the surface, by reason of the ordinary working of the mines, does not render the owner of the minerals liable for damages. (Horner v. Watson, 29 P. F. Smith, 251; Jones v. Wagner, 16 id. 429, adhered to.) Coleman v. Chadwick. BOOK NOTICES. A Digest of New York Reports from 1872 to 1876: Containing the decisions of all the courts of the State published during that period, with references to the statutes. Being the second supplement to Clinton & Wait's Digest of New York Reports. Vol. V. By William Wait, counselor at law. Albany: William Gould & Son, 1877. ORACE SMITH wittily said of some one that "he lies like the prospectus of a new magazine.” While we do not propose making any application of the simile, we cannot keep it out of our mind as we look over this title page and the list of reports digested in the volume. "Containing the decisions of all the courts of the State published during that period"— such is the unqualified statement, and yet there are at least six volumes of reports "published during that period" of which there is neither line nor precept in all this bulky volume- not so much as even a suggestion that the digester knew of their existence. At the least, three of these volumes contain decisions of the General Terms of the Supreme Court not elsewhere reported, and they were published not later than 1874, or over a year before the close of the period covered, or pretended to be covered by this book. There is no possible excuse for this omission, and it is one which very seriously damages the work. If the author supposed there was an excuse for omitting those reports, he should at least have been frank enough to admit the omission, either in the title or the preface. But passing by the errors of omission, we find very serious errors of commission. Two things are absolutely essential to a digest, and without which it is only a delusion and a snare. The first is accuracy in stating the points decided in the cases digested; and the second is a correct arrangement of those points under their proper title. As regards the first essential, this work is well done, so far as we have observed; indeed it is greatly superior to the first three volumes of the series. But in the arrangement of points or principles, the author has either been careless or forgetful, or had but a confused notion of the work in hand. Two or three illustrations, taken at random, will serve to show his shortcoming in this regard. Under the title "Innkeeper," there are the gist of three cases, with no cross-reference to any other section nor any hint that there is any thing else in the book relating to innkeepers. But turning to "Bailment," we find the gist of six cases relating directly to innkeepers, the first deciding the question, “Who is an innkeeper?" the second and third, as to when the relation of innkeeper and guest exists, and the others as to the liability of innkeepers for property of their guests. There is not, moreover, under " Bailments" any cross-reference to "Innkeepers." Again, there are at least four cases digested relating to official bonds, one of which is put under the title "Bonds" and the others under the title "Principal and Surety," while no reference is made from the one to the other, nor is any reference made to either under the title of "Office and Officer." In fact there is a complete lack of cross-references, without which a digest is of small use, unless principles be repeated again and again under various titles. Of such repetition there has been altogether too much in the volume before us, but not enough to make unnecessary a liberal use of cross-references. The time has gone by when an author or publisher can say of a New York Digest that it is made "to supply a want long felt." That fleld has been so thoroughly and so well occupied, that when a man comes forward with a new venture therein, we have a right to expect a performance of more than usual merit. Such Mr. Wait's is not. A Treatise on the Law of Mortgages of Real and Personal New gan extant. It is well printed and bound, and we must congratulate both the author and the people of his State upon the excellent manner in which he has performed his work. CORRESPONDENCE. MENTS. To the Editor of the Albany Law Journal: A book of this character has long been needed by FRAUDULENT ALTERATION OF NEGOTIABLE INSTRUthe profession of this State. We have treatises which include the subject of mortgage, in fact every work upon real estate embraces mortgages so far as they affect the land, and every one on personal property or on sales says something about chattel mortgages. But heretofore there has been no work that pretended to cover the whole subject of mortgage in its various forms. The mortgage of real property has been considered to be in no way related to that of personal, indeed the name, as applied to movable articles, has been esteemed improperly applied. But whatever may be the differences between the law as relating to pledges of immovable property, and that relating to those of movable, the name chattel mortgage has become firmly established, and is only thought of as a specific kind of mortgage. It is proper, therefore, to treat of the two subjects together, and for the same reason that of mortgages upon ships should also be included. Another thing in this volume strikes us favorably, and that is that the law is given as it is in New York. A general treatise giving what is in force in all the States, is proper enough for a work designed only for the student who is endeavoring to learn the underlying principles governing the subject, but in a book designed for use in the office of lawyers in this State, it is proper that the law as it prevails here be given. The book will not, however, be without use in other States. In most of the States west of us, our statutes have been adopted almost verbatim, and the decisions of our courts are followed. In these States the work will be as acceptable as it will be here. The author, in this work, devotes a chapter to the history of mortgages and their nature, another to the distinction between mortgages and conditional sales. Then follow chapters upon equitable mortgages, parties, rights, and other incidents, recording, insurance, usury, redemption, etc.; then come the topics of pleadings and procedure in foreclosure actions. The subject of mortgages upon personal property fills seven chapters, and a concluding chapter is devoted to mortgages upon ships and vessels. An appendix and index close the book. The volume contains a table of cases cited, and is well printed and bound. Outlines of the Political History of Michigan. By James V. This, although not strictly a law book, is one that is liable to be as important to the practicing attorney as any volume that would properly come under that head. It contains the political history of an important commonwealth, and gives not only those events which usually go to make up a general history, but also those which are too often passed over, namely, the changes in the judicial system, and the laws relating to procedure in the courts. It was originally intended as a sketch for the purposes of the Centennial Committee of Michigan, but grew, we presume, into a historical treatise, almost without a desire on the part of the author to make it such. The book is written in an easy entertaining style, and affords the most comprehensive and accurate history of Michi SIR-In your article on "Fraudulent Filling of Blanks in Negotiable Instruments," you overlooked the case of Bruce v. Westcott, 3 Barb. 374, decided by the fourth district, Paige, Cady and Hand, Justices. Hand, J., stated the question to be, whether the insertion of the words "or his order" in a note, after its execution and delivery to the payee, without the maker's knowledge or consent, and where there is a blank or space sufficient to do so without creating suspicion, invalidates the note in the hands of an innocent holder. "It is well settled, that the alteration of a note, in any material part, as against a party not consenting thereto, renders it wholly invalid, even in the hands of an innocent holder, ** * unless the maker is estopped, because the addition was written upon a blank space left in the note. But I have not been able to find any case that goes so far. Where there is a blank which renders the bill imperfect, the holder, in some special cases, has been allowed to fill it. * I find no case that decides that a space may be filled up in a bill already complete, without any mistake, omission or authority being shown. It is already in the shape of a bill.' * * *The rule, that where one of two persons must suffer by the act of a third, the one who innocently afforded the means to the wrong-doer must sustain the loss, it is believed does not apply to such a case. Goodman v. Eastman, 4 N. H. 455; and see Sentence v. Poole, 3 Car. & Payne, 1. These may be hard cases, but so far, the holder must be considered as giving credit to the intermediate parties, who warrant the genuineness of the note." COURT OF APPEALS DECISIONS. * * M. THE following decisions were handed down in the New York Court of Appeals on Friday, February 23, 1877: Motion denied, without costs - People ex rel. Burroughs v. Brinkerhoff.- -Judgment affirmed, with costs-Manderville v. Reynolds: Smith v. The Mayor; Grinnell v. Kirtland-- - Judgment reversed and new trial granted, costs to abide event - Baird v. Daly. Proclamation and court take a recess to Monday, March 19, 1877. No new calendar will be made. The old one will be taken up where it is now left off. A NOTES. WORK by Mr. Sergeant Cox, on "The Principles of Punishment as applied in the administration of the Criminal Law 'by Judges and Magistrates," is shortly to appear in London.- The Acta Columbiana, which is issued by the students of Columbia College, has added a Law Department to its usual contents. This contains reports of the moot cases argued in the law school connected with the college, reviews of law books and general notes, and must prove, if well sustained, of interest and usefulness to law students generally. Since the Court of Appeals convened on the 15th of January last, 104 cases have been heard, 74 of which have been decided and sent down to the courts below. Two hundred and ten remittiturs have been issued since November last, and there still remains upon the calendar a large number of cases yet to be disposed of. A new calendar will be made in May next. David Reed, a prominent lawyer of Pittsburg, Pa., and lately United States District Attorney for the Western District of Pennsylvania, died at Pittsburg on the 17th ult., aged 56 years.Charles Lowrey, a well-known member of the Kings county, N. Y., bar, died at Brooklyn last week, aged 48 years.— S. G. Throop, aged 87, a practitioner of some local prominence, died recently. He studied law with Martin Van Buren, and was at the time of his death the oldest ex-member of the New York legislature. The Right Hon. George Augustus Chichester May has been appointed Lord Chief-Justice of Ireland. This gentleman is now in the 60th year of his age, and has heretofore occupied the positions of AttorneyGeneral and member of the Privy Council in Ireland. The Irish Law Times says of him: "Popular at the bar, eminently judicial in his cast of mind, intellectual in culture, and gifted with great powers of application, the conscientious and upright lawyer, who is now the Lord Chief- Justice of Ireland, well deserved that high promotion, and it would have indeed been difficult to make a selection more wise and fitting." Hon. Henry W. Williams, Associate Justice of the Supreme Court of Pennsylvania, died at his residence in Pittsburg, on Monday, the 19th of February, after a lingering illness. He was born in Connecticut in 1818, graduated at Amherst College in 1837, moved to Pittsburg in 1839, studied law there with the late Chief Justice Lowrie, and was admitted to the bar in May, 1841. He was elected an Associate Justice of the District Court of Alleghany county in the fall of 1851; and at the expiration of his term, in 1861, he was unanimously re-elected to the same position for another term of ten years. On October 26, 1868, Governor Geary appointed him a Justice of the Supreme Court, to fill the vacancy occasioned by the resignation of Judge Strong, and in the fall of 1869 he was elected to that position for the full term of fifteen years. The well-known principle that an agent cannot delegate his office, that is, where it is a power in the nature of a trust, or an authority clothed with a discretion, has been illustrated by the case of Cook v. Ward, recently before the Common Pleas Division of the English High Court of Justice. It was a drainage case, and was tried last summer assizes at Lincoln, when a verdict was entered for the defendant, leave being reserved to the plaintiff to move to enter a verdict for 1s. damages. A drainage board had power to appoint committees of its members to undertake the supervision of parts of its system. In the instance before us a committee of three was so appointed. They agreed amongst themselves that each of them should look after the part of the drain intrusted to their care which was nearest to his own house. A flood came; one of the committee took active steps. The others saw what he was doing, and approved of his conduct, leaving him to continue to act as he thought best. He then cut through an obstruction, the effect of which was to shift the inundation from one place to another, and in answer to the action brought against him by a person aggrieved, he pleaded authority. It was held that the power of the board, properly delegated to a committee under the provisions of the act of Parliament, must be exercised by the committee acting together, and not by one of them alone. A verdict for 18. damages was accordingly ordered to be entered for the plaintiff. In giving judgment the learned judge said, that if the power had been intended to be capable of being redelegated to a single member of the committee, express words to that effect should have been made use of. This case is important in these days, when the management of municipal affairs has in so many places passed beyond the control of single individuals. Mr. Austin Abbott has appeared as a champion of the civil damage law. He says that the hesitation of judges and lawyers to carry out the law is fast disappearing, and that "it is now generally acknowledged that the law is the declaration of a newly recognized principle of justice, viz.: that he who profits by selling spirituous liquors to those who cannot be trusted to make a temperate use of them, ought to bear the pecuniary injury that is directly consequent upon the intoxication caused thereby. The tenor of the great majority of judicial decisions on the subject, in all the States where such a law has been adopted, shows that the principle is, on the whole, now accepted as a sound rule of justice, and is administered with growing efficiency." The instances of successful actions under this law, cited by Mr. Abbott, cover a wide range of A wife got damages of dealers who sold liquor to her husband, the intoxication causing him to lose his employment and fail to support her; another recovered money that she had loaned to her husband and he had spent in carousal; another got a verdict of $50 against a dealer whose rum incited her husband to strike her. Civil damage laws are in force in New York, New Hampshire, Ohio, Indiana, Illinois, Iowa and Wisconsin. We think, however, that in its main purpose, namely, the restraint of the liquor traffic, the law has proved a failure. cases. According to the report of the Comptroller of Bankruptcy, the number of persons adjudicated bankrupt in England and Wales, in 1875, was 965. The total of liquidations by arrangement was 4,233, showing a decrease of 257, and of compositions, 2,691, giving a gross total of 7,889 cases. In 1875 there were 965 adjudications, and 3,191 bankruptcies were pending at the end of the year. Liquidation seems now to be preferred generally by creditors in place of bankruptcy, which has become almost obsolete. The number of compositions in 1875 was 2,691, including London and the county courts, showing a great increase on previous returns. Of these, in 1875, there were 35 estates which paid 20s. and 88 paying between 10s. and 15s in the pound; 575 paid from 5s. to 10s., and 1,430 paid from 1s. to 5s. in the pound. There were 541 estates paying 1s. and under. The total liabilities in bankruptcies were £6,981,240; liquidations, £12,483,999, and compositions, £6,068,405. The estimated assets in the bankruptcies, compositions, etc., were £7,332,779, or about one-third of the liabilities. The amount of business done in the London Bankruptcy Court amounted, as far as regards liabilities, to the aggregate of the whole of England and Wales besides. ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be addressed to the publishers. The Albany Law Journal. ALBANY, MARCH 10, 1877. CURRENT TOPICS. THE Supreme Court of the United States, in deciding what are known as the Granger cases, determined some of the most important questions relating to the limits of State legislation under the Federal constitution, that have ever come before it. The case of Munn v. People of Illinois, which appears in our present number, is the leading one of the decisions mentioned, and will take rank in the reports with the well-known Dartmouth College case. The principle enunciated and applied, that when one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use and must submit to be controlled by the public, for the common good, to the extent of the interest he has thus created, gives to the States an almost unbounded control over business and traffic, affecting the public, within their respective boundaries. Not only may a State regulate the methods of business and amount of compensation of hackney-coachmen, innkeepers, bakers and the like, but it can in the same manner deal with those of the great companies through whose hands passes the commerce of a continent. Every instrumentality having to do with the public is under the control of State law, and legislation to the end of exercising such control is not repugnant to the Federal constitution. The great importance of the questions involved in the cases mentioned has led the court to keep them under consideration for more than a year after final argument, in order that the decisions might be the result of mature deliberation. The result will not be altogether acceptable, but any other one would have been dangerous to the best interests of the people at large. The statutes of this State relating to practice as well as the rules of the courts, indicate a great aversion to defendants. To begin with justices' courts, the plaintiff is entitled to his original process upon the payment of the prescribed fee, and to one adjournment after issue joined, upon making a proper case therefor. The defendant, however, before he can insist upon an adjournment, must, if the plaintiff require it, furnish security that he will not dispose of his property. Then the plaintiff can, after the pleadings are in and a trial partly had, discontinue, upon payment of costs, while the VOL. 15.- No. 10. defendant, even though he pleads a counter-claim, has no such right. Then, in the courts of record, the defendant cannot procure even an extension of time to plead without an affidavit that he has consulted a lawyer and been told that he had a good case, and until lately he could not introduce evidence upon trial without having filed and served a paper of the same character, notwithstanding his answer, duly verified, exhibited a complete defense, and he must yet file and serve it if he puts in an unverified answer to an unverified complaint. Then, the plaintiff can procure the arrest of the defendant upon security for a very small amount, and with a surety who makes only the ordinary affidavit of sufficiency, while the arrested defendant may have to give security for a large sum, and his sureties be obliged to undergo a searching examination as to their property affairs. These and other discriminations in favor of a party prosecuting would indicate that the maxim melior est conditio defendentis does not apply to New York practice. Some of the daily newspapers, as well as a law contemporary, have thought the remarks made by us in our issue of Feb. 17 upon justices' courts criticised those tribunals too severely, and that the justice of the peace whose doings we described was an exception to the general body of these officials. That there are many honest, upright justices of the peace in this and other States—indeed, that the great majority are honest and upright in all their dealings and acts, is without question, but the tricky ones are numerous, and transact the principal share of the business. The dishonest acts we have mentioned are not the only ones perpetrated in these courts. There are others without limit, but one or two will show to what uses the process issued by justices may be put to. A person has a claim against a debtor unable to pay, and against whom a judgment is worthless. He procures a summons from a justice, and also a subpoena for the debtor as a witness. The summons and subpoena are served at the same time, and in such a way as to leave the debtor with the impression that he has merely been served with an ordinary civil summons. Having no defense to interpose to the claim, he does not appear upon the return day. The plaintiff then applies for an attachment for the defendant as an absent witness, which is issued and placed in the hands of a constable, who arrests the defendant and brings him before the justice, where he is compelled to pay an extravagant charge for the costs of the attachment. The sole object of issuing the subpœna is to lead the defendant into this position, and not because his testimony is desired by the plaintiff. The other trick we will mention is this: A suit is brought, and if the defendant appears, only a demand on contract is set up. If he does not appear, a demand sounding in tort is alleged, an excessive judgment |