two or three weeks after the money was paid to them. Before examining the case in its strictly legal aspects it is proper to make several remarks suggested by the facts as found.

(1) The defendants sold the bonds absolutely by their dispatch of the 25th of May. The qualification insisted upon was by their letter of that date received by the plaintiffs on the 29th. If the defendants intended to qualify, it should have been done in the dispatch. This would have given the plaintiffs notice in time for reflection before the presentation of the draft, might have prevented their selling the bonds before the letter was received, and would have enabled them to avoid the hurry and confusion incident to the payment of the draft and the delivery of the bonds to their vendees. If the draft had not been paid at sight it would doubtless have been protested.

(2) The circumstances attending the purchase of the bonds by the defendants are shown in our analysis of the facts of the case. The statement in the letter upon the subject is not accurate.

(3) They refused upon any terms to put the plaintiffs in their place with respect to any claims they might have against the Commercial Bank.

(4) They were notified on the 12th of June that the bonds were counterfeit. If they had thereupon at once caused Newman & Havens to be advised also, it is not improbable that the latter would have retained the funds, and thus have saved from loss all the honest parties through whose hands the bonds had passed. The defendants failed to take any step whatever in this direction.

It cannot be questioned that the dispatches between the parties on the 25th of May constituted a complete contract of sale, upon the condition or with an implied warranty, which it is not material here to consider, that the bonds were genuine. Nor can it be doubted that if the bonds had been delivered without any thing further occurring, the defendants, upon the bonds proving to be counterfeit, would have been liable in this action. Taylor v. Merchants' Fire Ins. Co., 9 How. 390; Benjamin on Sales, 56; Flyn v. Allen, 57 Penn. St. 482; Webb v. Odell et al., 49 N. Y. 583.

Was this contract changed so that this condition or warranty was waived by the plaintiffs? In other words, did the letter of the defendants propose the modification insisted upon, of the pre-existing contract, and if so, did the plaintiffs agree to it, and accept the delivery of the bonds accordingly?

We pass by without remark the plaintiffs' propositions that the alleged modification was within the statute of frauds, and could not therefore be effectually accepted otherwise than in writing; that there was no consideration for such an agreement, and that, if made, it was contrary to public policy and therefore void. The view which we take of the case renders it unnecessary to consider either of these points.

The first sentence of the letter relied upon by the defendants recognizes distinctly the contract as made by the dispatches. The defendants say: "In accordance with your offer for 15 Central Pac. 1st mort. bonds, 102, we replied, we accept your offer, and have forwarded them by ex. to Bank North America, with draft attached for $15,375."

This standing alone would have been a mere carrying out of the contract as made, and as it must have been understood by both parties. The stress of the case is upon what follows. The letter proceeds: "We would further add that we have purchased the bonds from a

party strange to us." They had in fact bought them from the Commercial Bank, but were not to take them unless genuine, and were not to pay for them until found to be so. Next: "And not having ever handled any of the Pacific Central, we would sell the bonds without recourse as to their being genuine; consequently please examine them, and upon being found correct telegraph immediately (Central O. K.)." The phrase, “we would sell without recourse," considered in the light of the context and the circumstances, may well be interpreted to mean that the writers would prefer or like so to sell, if it could be done. This view derives support from the succeeding member of the sentence, "please examine," etc. Examine for whom? It is not said examine for yourselves. The language employed is usual where the thing asked is for the benefit of the asker, but not where it is for the benefit of the party addressed. Lastly, it is said: "We do not doubt the bonds, but coming through strange hands we use this precaution, and are not willing to take risk." This is consistent with the construction we have given to the preceding clause. If the examination the plaintiffs were requested to make showed clearly that the bonds were not counterfeit, then there could be no risk, whether the sale was with or without warranty of genuineness. In connection with these views it is to be observed that while the bonds and draft were sent on pursuant to the original contract, which is distinctly recognized, it is not said in the letter in plain terms, such as would naturally have been used if such had been the intent of the writers, we will sell only at your risk as to genuineness. We will not guarantee it - examine for yourselves. If the bonds are counterfeit, and you take them, the loss will fall upon you, and not upon us. If this language, or terms equally clear and explicit, had been used, the case would have presented a very different aspect. Every intendment is to be made against the construction of a contract under which it would operate as a snare." Hoffman v. Etna Ins. Co., 32 N. Y. 405.

66

Upon the whole letter, considering what it does and what it does not contain, we are unable to come to the conclusion that the defendants intended to require that the modification since insisted upon should be made, and to make such modification the condition upon which the plaintiffs should take the bonds, if they took them at all. This result leaves the rights of the parties as they were under the original contract, and entitles the plaintiffs to recover.

But conceding for the purposes of this opinion that the letter did contain such a proposition or annunciation as is insisted upon, then the inquiry arises whether it was so understood and agreed to by the plaintiffs.

There can be no contract without the mutual assent of the parties. This is vital to its existence. There can be none where it is wanting. It is indispensable to the modification of a contract already made, as it was to making it originally, where there is a misunderstanding as to any thing material, the requisite mutuality of assent as to such thing is wanting. Consequently the supposed contract does not exist, and neither party is bound. In the view of the law in such case there has been only a negotiation, resulting in a failure to agree. What has occurred is as if it were not, and the rights of the parties are to be determined accordingly.

In Phillips v. Bistotti, 2 B. & C. 511, the defendant was a foreigner and understood the English language imperfectly. Certain jewelry was struck off to him at

In Baldwin et al. v. Middleburgher, 2 Hall, 176, the defendant bought merchandise of the plaintiff, and it was agreed that it should be paid for by the note of a third person payable to the defendant, to be by him indorsed to the plaintiff. After the goods were delivered the note was tendered, indorsed without recourse. The plaintiff refused to receive it, insisting that the agreement was that the note should be indorsed without this qualification, and thereupon brought the suit. The court left it to the jury to find whether there was a misunderstanding between the parties as to the manner of the indorsement. The jury so found, and it was held that the plaintiff was entitled to recover as if there had been nothing said about the note, there being no such assent of the two minds as was necessary to make a contract in relation to it.

In Coles v. Browne, 10 Paige, 526, a block of lots was struck off at auction to the defendant. The plaintiff insisted and proved that the sale was of the lots separately. The defendant insisted that his bid was for the entire block as one parcel, and that he so understood the premises to be offered and sold. The vendor instituted the suit for specific performance. The evidence rendered it doubtful whether the defendant's allegations as to his understanding and bid were not true, and upon that ground the chancellor dismissed the bill. If there was a misunderstanding on the subect between the parties, there was clearly no contract. See, also, Calverly v. Williams, 1 Vesey, jr., 210; Saltus v. Pryn, 18 How. (N. Y.) Pr. 512; Bruce v. Pierson, 3 J. R. 526; Crane v. Portland, 9 Mich. 493; 2 Parsons on Cont. (4th ed.) 475, et seq.

It is essential to the validity of a contract that the parties should have consented to the same subjectmatter in the same sense. They must have contracted ad idem. Hazard v. N. E. M. Ins. Co., 1 Sumn. 218. "Where a written agreement exists and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for the written agreement, he must clearly show not merely his own understanding as to the new terms of arrangement, but that the other party had the same understanding." Darnley v. The Proprietors, etc., 2 L. R., H. L. Clark, pp. 43, 60.

The plaintiffs were not asked to assent expressly with respect to the waiver of the warranty, if it were demanded, and made no such answer. They were asked to "please examine," etc., and to telegraph the result. This they did. The dispatch was wholly silent as to any thing else. That they understood the waiver was demanded as a sine qua non in no way appears. On the other hand, the contrary is clearly manifest. The moment they had reason to apprehend that the bonds might be counterfeit they notified the defendants, and as soon as it became certain they were so, the defendants were advised of the fact and that they would be looked to for indemnity. The defendants denied their liability by reason of their letter. In due time this suit was brought. Conceding that both parties have acted in good faith, it is clear that there was a misunderstanding between them as to the meaning

and effect of the letter, and that the plaintiffs never understood and agreed to it as it is now interpreted and insisted upon by the defendants. The aggregatio mentium requisite to give that interpretation effect was, therefore, wanting.

To constitute the abandonment of a contract the act must be mutual. Robinson v. Page, 3 Russ. 122. It has been held that to make a negotiation for the modification of a contract effectual, it must appear that it was the intention of the party proposing it wholly to abandon the original contract, if the modification proposed were not assented to. Murray v. Harway, 56 N. Y. 347; Robinson v. Page, supra.

"A waiver of a stipulation in an agreement, to be effectual, must be made intentionally and with knowl edge of the circumstances." Darnley v. The Proprietors, etc., supra, pp. 43-57; Howard et al. v. Carpenter, 2 Md. 259.

When one party assents to a contract, relying upon the representations of the other, his assent is given upon the condition that the representations are true. Duncan v. Hoge, 24 Miss. 671.

Upon the whole case we are of opinion that the judgment of the court below should be reversed and a judgment entered for the plaintiffs in error, and it is so ordered.

The proper mandate will be sent to the Circuit Court.

Mr. Justice Davis did not hear the argument in this case and took no part in its decision.

Strong, Clifford and Hunt, JJ., dissented.

THE INSURABLE INTEREST OF A SISTER IN A BROTHER'S LIFE.

THE

HE Supreme Court of the United States in the case of Etna Life Insurance Company v. France, recently decided, consider the question as to whether a sister has an insurable interest in the life of a brother upon whom she is not dependent for support. The action was brought by David France and Lucetta P., his wife, to recover the amount of a policy of insurance for ten thousand dollars issued on the life of Andrew J. Chew, of Philadelphia, dated September 13, 1865, and payable to the said Lucetta. One ground of defense was that Lucetta P. France had no insurable interest in her brother's life. The facts were these: That the said Lucetta was Chew's sister, and this fact was stated in the policy; that, at the time the policy was issued, she was married to the other plaintiff, David France, and in no way dependent on her brother for her support; that the latter was earning his living as a ladies' shoemaker, and was of small means. Evidence was given tending to show that Mrs. France had, at different times, loaned money to her brother to an amount of some $2,000, and lent him $400 more in September, 1865; that a previous policy of like amount with the present had been obtained of the defendant company on Chew's life for his sister's benefit in June of the same year, and that at the time of issuing the policy now in suit he was unmarried, but was engaged to be married, and was in fact married the next day. The policy as well as the several receipts for the annual premiums, signed by the secretary of the company, and countersigned by its agent in Philadelphia, all acknowledge that said premiums were received from Chew.

The court says in affirming the judgment of the court below: The construction given to the policy by

the court below was, that it was a contract between the company and Chew for an assurance of his life, with a stipulation and agreement that the money should be paid to his sister; and the court held that such a policy is sustainable at law on account of the nearness of the relationship between the parties, and especially as Mrs. France, at the time the insurance was effected, was one of Chew's next of kin, prospectively interested in his estate as a distributee. We concur in the construction of the policy made by the court, and in the validity of the transaction. As held by us in the case of The Connecticut Mutual v. Schaefer, just decided, any person has a right to procure an insurance on his own life and to assign it to another, provided it be not done by way of cover for a wager policy; and where the relationship between the parties, as in this case, is such as to constitute a good and valid consideration in law for any gift or grant, the transaction is entirely free from such imputation. The direction of payment in the policy itself is equivalent to such an assignment.

The defendant below (the insurance company) gave in evidence three promissory notes given by Lucetta P. France herself for part of the last three premiums paid on the policy, and requested the court to charge, that if the jury believed that the premiums on the policy were paid by Lucetta P. France, whether in cash or by her notes, there was evidence from which they could find that the application for insurance was made, and the policy in question taken out by her for her own benefit; and, if such was the case, she must show an insurable interest in the life of her brother, beyond that of mere relationship, before she could recover. The court refused so to charge; and we think rightly. Waiving the question whether, merely as sister of Chew, Mrs. France could have effected in her own name an insurance on his life, without its being obnoxious to the charge of a wager policy, the evidence was incompetent to prove the fact sought to be proved by it. The company, when taking the notes in question, acknowledged the premiums to have been received from Chew, and was estopped from going behind its own admission under the circumstances of the case. The contract of insurance, as correctly construed by the court, was made with Chew; and the relationship of the parties was such as to divest the assignment of the policy or the direction of its payment to his sister of all semblance of a wagering transaction. Under the circumstances, it matters not if the money or notes required for paying the premium did come from Mrs. France; at most, it was by way of advance on her brother's account, and on his contract. He had a right to take out a policy on his own life for his sister's benefit; and she had a right to advance him the necessary means to do so. As between strangers, or persons not thus nearly connected, such a transaction would be evidence to go to the jury, from which, according to the circumstances of the case, they might or might not infer that it was mere gambling. But as between brother and sister, or other near relations, desirous of thus providing for each other, and (as said by Chief Justice Shaw) presumed to be actuated by considerations of strong morals, and the force of natural affection between near kindred operating often more efficaciously than those of positive law" (Loomis v. Eagle Life Insurance Co., 6 Gray, 399), the case is divested of that gambling aspect which is presented where there is nothing but a speculative interest in the death of another, without any interest

in his life to counterbalance it. On this ground we hold, that where, as in this case, a brother takes out a policy on his own life for the benefit of his sister, it is totally immaterial what arrangement they choose to make between them about the payment of the premiums. The policy is not a wager policy. It is divested of those dangerous tendencies which render such policies contrary to good morals. And as the company gets a perfect quid pro quo in the stipulated premiums, it cannot justly refuse to pay the insurance when incurred by the terms of the contract.

ULTRA VIRES - LIMITATION OF CORPORATE POWER BY STATUTE.

IN

N the case of Howell v. Western Railroad Co. et al., recently decided by the Supreme Court of the United States, the plaintiff was the owner of five bonds of one thousand dollars each, issued by the defendant corporation, and he sought the foreclosure of a mortgage on the railroad and its appurtenances given to secure their payment. They were part of an issue of like bonds to the amount of nine hundred thousand dollars, made at the same time, to wit, October 31, 1870, payable thirty years after date, with coupons for interest attached at the rate of eight per cent per annum.

On the back of each bond was printed the act of the Legislature of North Carolina, which authorized the corporation to make these mortgage bonds, which declared that "said president and directors are hereby authorized and empowered to issue the mortgage bonds of said company in sums of not less than one hundred dollars each, and not exceeding in amount nine hundred thousand dollars, and to be negotiated at not less than par, and not to mature at an earlier period than thirty years," etc.

The face of each bond contained a provision that on the failure to pay any coupon when presented at the place of payment, and continued default thereon for six months, the whole sum mentioned in said bond became due and payable, and the mortgage deed contained a provision that a like failure as to any one coupon of any single bond should make all the bonds become due and payable. The plaintiffs were bona fide holders of the bonds for value. Several issues were raised by the pleadings, but the principal one related to the validity of the bonds as affected by the provision of the statute, that they should not mature at an earlier period than thirty years, whereas the bonds provide that on failure to pay a single interest coupon they shall mature in six months thereafter, if it is still unpaid. The court said as to this: The provision, in our opinion, differs widely from a mere direction as to the length of the time the bonds should run or the period when they should be made payable. Such a direction or provision in an act authorizing a corporation to issue bonds, is not in general inconsistent with a contract that if the interest is not paid as agreed the holder may treat the whole sum as due. The language of this statute is not that these bonds are to be made payable in thirty years, or payable at a given time, and there is no direction as to the terms in which that is to be expressed. They may be made to run fifty or a hundred years, but however worded or expressed, they are "not to mature at an earlier period than thirty years." We construe this as an express enactment that they shall not mature earlier. No matter what device the parties interested may resort to, nor what form of language may be inserted in the

bond, the principal sum of the bond shall not become due until the expiration of that period. The Legislature had an undoubted right to annex to the power which it conferred of making these mortgage bonds this absolute condition, and they have used language which we can construe in no other way.

We do not see how a condition of the contract by which the bonds can be made to mature in one year can be valid when the only authority to make the contract at all is the statute we have cited. But while this condition is invalid, it does not avoid the remainder of the contract which is complete without it, and the agreement to pay interest semi-annually is specifically authorized by the statute.

The company, therefore, had a right to mortgage their property for the payment of these installments of interest as well as principal, and to make it one of the provisions of the mortgage that it might be foreclosed if these installments were not paid as they fell due. There can, in fact, be but one decree of foreclosure of the same mortgage on the same property, and it is a necessity of that foreclosure, under the principles of the Court of Chancery, that all the sums secured by that mortgage must be protected according to their priority of lien.

We are of opinion, then, that there is due from the railroad company to plaintiff the amount of his overdue and unpaid coupons.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF INDIANA.
BRIBERY.

Giving promissory note: when it does not constitute.The acceptance by a prosecuting attorney of any money, gift, property or undue reward, with the corrupt purpose and intent that his behavior in office or the discharge of his official duty shall be influenced thereby in any particular cause, matter or proceeding, constitutes a crime under the statute, and it is unnecessary to charge what particular effect it was intended such acceptance should have on the officer's official conduct. 2 R. S. 1876, 443. To make out a case of bribery under the statute it must be shown that the officer received something of value. It is not enough to show that something of value was promised to be paid. A note executed to a public officer to improperly influence his official conduct is not only without a valid consideration, but is against public policy and hence utterly void. For this reason the notes executed to appellee by Waugh & Waugh to influence his behavior in office must be held to be void and of no value, and not to have constituted an undue reward within the meaning of the statute. State of Indiana v. Walls, April Term, 1877.

DAMAGES.

Nominal damages: what they are: de minimis non curat lex. This was an action by appellant against appellee for damages for the failure of the latter to publish in their newspaper a certain notice of appellant's intention to file an application to the board of commissioners for a liquor license. It is contended by the appellees that the complaint at most but shows a case for nominal damages. This court will not reverse a case, perhaps, where nothing more than nominal damages are involved, but where a considerable amount of costs or other legitimate expenses depend upon nominal damages which are wrongfully denied the party, it

might become proper ground for reversing a judgment. Nominal damages are such as a person is entitled to for a mere nominal breach of his rights where no damages have been suffered (damage absque injuria), and may be a cent, five cents or a dime, or such insignificant sum in relation to the case as would fall within the maxin de minimis non curat lex. In this case, however, the appellant alleges that he paid the appellee $3.50 in reference to the present case is no more than nominal damages, especially when a considerable amount of costs must depend upon them. And

we think if in consequence of the facts averred, the complainant's house and fixtures therein and place of business became useless to him for a time, that it is a fair element for a jury to consider in estimating the damages the appellant may have suffered, and perhaps there may be other proper grounds for damages which we do not mention, but the mere uncertain, contingent and speculative profits upon expected sales of liquor by retail, which may or may not be made, do not constitute a proper basis upon which to assess damages; but the facts alleged in each paragraph of the complaint entitle the appellant to something more than nominal damages. Glass v. Garber, May Term, 1877.

INFANCY.

Disaffirmance of contract: failure to pay back no tort. -Alcestus Bowen joined her husband in the conveyance of certain property, she being an infant. After reaching her majority she, by due notice, disaffirmed the contract and instituted suit for partition. Judgment rendered in her favor and the defendant Green ousted. Green now brings suit for the $1,000 which he paid her on the purchase-price. Held, Alcestus has been guilty of no tort or legal wrong. She sold her land and joined her husband in a deed of conveyance and received the purchase-money while she was an infant. She disaffirmed the deed after becoming of age aud had the land restored to her. The law gives her this right. The doing of what the law gives her a right to do cannot be imputed to her as a tort. She had a right to disaffirm the deed and recover the land back, without returning or offering to return the purchase-money. 45 Ind. 142. Therefore she was guilty of no tort or legal wrong in disaffirming without restoring the purchase-money. Having disaffirmed the law imposes upon her no legal obligation to repay the money. If an infant disaffirms a contract he must do it in toto. If he has property in his hands acquired by the contract the other party may reclaim it. But if the property has passed from his hands the law imposes no obligation upon him to account. It is not necessary that the other party should be placed in statu quo. Dill v. Bowen, February Term, 1877.

MALICIOUS PROSECUTION.

Grounds for: mere belief.-The court below refused to give the following instruction to the jury: "If the jury believe that the acts of the plaintiff, which had come to the knowledge of the defendant, pertaining to the check and its indorsement, were such as would lead a man, in the defendant's position, of ordinary caution and prudence to believe or entertain an honest suspicion that the plaintiff was guilty of forgery, they should find for the defendant." The court committed no error in refusing this instruction. The mere belief that a person has been guilty of a crime is not sufficient to authorize a criminal prosecution against him. There must have been reasonable and probable

cause for instituting the criminal proceeding. (4 Ind. 194; 23 id. 67; 30 id. 457.) Graitu v. Williams, May Term, 1877.

MARRIED WOMAN.

Liability of: contract for medical services.-It appears that the appellant, Elmora, was a married woman, whose husband was worthless and insolvent. During her coverture she was very lame, sick and disabled, and much in need of medical attention. Passage, the appellee, was a physician, and was called to visit her. Passage told her he could not rely on her husband for pay. She therefore promised him that if he would continue his professional attendance upon her she, out of her separate and individuallestate, would pay him for his medical attendance. Was this special promise of appellant Elmora a valid and binding promise? If valid and binding it would afford a legal and sufficient consideration for her subsequent execution of the note in suit. The law is well settled in this State that a married woman cannot, during her coverture, make any contract which will be valid and binding on her personally. 31 Ind. 111. As an exception to this rule she may, during coverture, charge her real estate by her contracts relating thereto which are for the betterment of her estate or to preserve or protect her title, etc. 31 Ind. 92; id. 233, 106; 44 id. 346. In the case at bar the contract does not come within the exception. If there ever was a case where a married woman's contract ought to be a charge upon her separate estate the case at bar is such a one. If there ever was a case where the court would be justified in making a little law in order to uphold an invalid contract in the interest of fair dealing, the case stated in the complaint is one. But we are not legislators. Her promise was void, and did not afford any consideration for the execution of the note sued on. Thomas v. Passage, February Term, 1877.

MISTAKE OF LAW.

Recovery of money voluntarily paid in pursuance of void ordinance.-The controlling question is, did the appellee make the payments for the license voluntarily? If he voluntarily paid these sums of money he cannot recover back the said sums of money, although the appellant demanded and received said sums without any authority of law for so doing. The true test for determining the character of appellee's payments to appellant is this: Does it appear from the averments of appellee's complaint that his payments to appellant were made for the purpose of procuring the release of appellee's person or property from the power of appellant's officers. If it does so appear, appellee's payments were not voluntary and he could recover them back. If it did not so appear the complaint did not state facts sufficient to constitute a cause of action. The payments were made to procure a license to sell intoxicating liquors, and the complaint avers "for the purpose of avoiding the penalty and forfeiture provided for in said ordinance for the violation thereof and to save himself from arrest and imprisonment." Under decisions of this court the complaint does not state facts sufficient to constitute a cause of action. Town of Edinburg v. Hackley, at this term; Town of Princeton v. Vierling, 40 Ind. 340, and so much of the case of The Town of Ligonier v. Ackerman, 46 id. 552, as approve of the decision of the former are overruled. Town of Brazil v. Kress, April Term, 1877.

REAL ESTATE.

Fences part of realty.-Replevin of fence-rails and stakes, commenced before a justice of the peace. The special finding in this case shows that the rails and stakes replevied, at the time the suit commenced and when they were taken by virtue of the writ, constituted part of a standing fence, and were, therefore, a part of the realty. We are of opinion that they were not personal goods in the true meaning of the statute authorizing replevin (2 R. S., 1876, 628, § 71), and, therefore, not subject to replevin, even admitting that they were wrongfully taken and wrongfully detained and wrongfully put in the fence by the appellants. Ricketts v. Dorrel, May Term, 1877.

COURT OF APPEALS ABSTRACT.

CERTIORARI.

1. Review of questions of fact upon. The office of a common-law certiorari has been very much enlarged by the later decisions in this State, but there is no authority holding that questions of fact from conflicting evidence, or conflicting inferences which may be drawn from facts, or matters of judgment or discretion in a case justifying their exercise, can be reviewed. Only errors in law affecting materially the rights of the parties may be corrected, and the evidence may be examined in order to determine whether there is any competent proof to justify the adjudication made. 39 N. Y. 506; 45 id. 766; People ex rel. Folk v. Board of Police and Excise of Brooklyn. Opinion by Church, C. J.

2. Removal of chief of police of Brooklyn.-In this case relator was removed, on the ground of incapacity, from the position of superintendent of the Brooklyn police force, under the provisions of Laws 1873, chap. 863, § 14, which allows removals for, among other things, incapacity. Held, that in order to sustain the removal it was not necessary to establish a defect of general capacity, but a defect of capacity for the particular office.

[Decided April 24, 1877.]

CONTRACT.

Construction of contract of sale: when condition as to time strictly construed.-C., who owned land upon which hemlock trees were standing, agreed to sell and convey to W. & B. all the hemlock bark on such trees. The contract contained a clause by which W. & B. agreed to peel said bark, and "to have said bark all peeled by the 1st of September, 1864, piled, measured

and settled for in full." The contract also contained a provision allowing W. & B. free ingress and egress as The to the premises for the purposes mentioned. bark was not peeled within the time mentioned, and thereafter the owner of the lands peeled and sold the bark to defendants. Held, that after the time limited for the peeling of the bark had expired the rights of C. under the contract had terminated, and he had no longer an interest in the bark, and he could not maintain an action against defendant for the value thereof. Kellam v. McKenstry. Opinion by Miller, J. [Decided April 10, 1877. Reported below, 6 Hun, 381.]

CORPORATION.

1. Mortgage by: statutory requirement of stockholders' consent: what is compliance with statute.- Under the provisions of the act relating to manufacturing corporations (Laws 1848, chap. 40, § 2; Laws 1864, chap. 517), corporations may mortgage their real estate to secure