if duly presented; (3) but that the measure of damages was the actual loss, and evidence was admissible to reduce it to a nominal sum. Comer v. Cunningham, p. 391. Williams bought of plaintiffs, at Savannah, Georgia, 118 bales of cotton, giving therefor his checks on Bryan & Hunter, of the same place, having previously put the latter in funds by his draft on defendants to their order, and otherwise. Plaintiff delivered sixty bales to Williams, and it was shipped by Williams to defendants, at New York, the bill of lading being in his name and having attached thereto the draft indorsed by B. & H. Defendants paid the draft on presentation, the amount being more than the price of the sixty bales, and the transaction being according to their custom with Williams, and received the cotton without knowledge of any claim on it. One of the checks on B. & H., being post-dated, was dishonored, and plaintiffs brought replevin for fortyfive bales, part of the sixty, relying on a statute of Georgia which provides that "cotton, rice, and other products sold by planters and commission merchants on cash sale shall not be considered as the property of the buyer, or the ownership given up until the same shall be fully paid for, although it may have been delivered into the possession of the buyer." Held, that the action could not be maintained; that assuming that the statute was part of the contract, it simply made the delivery conditional, affected nothing but the delivery, and could not affect the rights of a bona fide purchaser in this State; and the sale being absolute and unconditional, title passed to defendants.

National Trust Co. v. Gleason, p. 400. In an action against several, including a married woman, for money had and received by one by means of a forgery to which all were parties, it is necessary to a recovery against all, to show that all were interested in the money received; mere complicity in the forgery will not charge any in such an action; and the married woman could not be rendered liable without showing a contract by her in her separate business, or for the benefit of her separate estate, or for which she had charged her separate estate. The conviction of one of felony in another State does not disqualify him as a witness in this.

Hennequin v. Clews, p. 427.-A discharge in bankruptcy bars an action for the conversion of securities pledged to the defendant as collateral to a loan, the cause of action not being a debt created by fraud, nor while acting in a fiduciary capacity, within the meaning of the bankrupt act.

Butler v. Butler, p. 472. --Plaintiff agreed to furnish and erect on defendant's premises a gas generator "all ready to make gas," the defendant agreeing to pay freight, furnish tank and house, and pay $1,500 for the machine, "$500 when the works are on the ground," and the balance in two subsequent specified installments. The plaintiff shipped the materials, which the defendant received and paid the freight on, but the defendant refused to permit him to erect the machine. Held, that the contract was entire and indivisible, and an action for the contract price was not maintainable.

Prentice v. Knickerbocker Life Insurance Co., p. 483.- A policy of life insurance, assigned to plaintiff, provided that the defendant should be notified forthwith of the death of the insured, and that the owner should, as soon as possible thereafter, deliver to the defendant a particular account of the cause, time, place, and circumstances, and that unless such proofs were presented within twelve months from the time the death occurred the policy should be forfeited. After the assignment the plaintiff paid the premiums by his checks. About July 1, 1872, the plaintiff, being about to go to Europe, paid in advance the premium due August 10. It was then agreed between him and the general agent that if the insured should die before the premium became due, the company's agents would know of it before the plaintiff could, and that the premium should be returned, and that "there was no trouble at all in regard to that whole thing." The plaintiff returned in October, 1872. The insured died July 27, 1873, but his death was not known to either party until July, 1875. The plaintiff paid the premiums for 1873 and 1874, having received notice from the company of the time when they were to fall due, and receiving renewal receipts. In June or July, 1875, plaintiff learned of the death, notified the company, received blanks for proofs of death, and delivered the proofs to them July 9. The proof stated the death in July, 1873. The company retained the proofs until October next without objection, and then took the ground that the policy was forfeited by the omission to serve the proofs within twelve months of the death. The policy was payable in three months after proof of death. The company retained the premiums paid after the death, and never offered to return them until after the action. Held, that the forfeiture was waived.

Steinbach v. Relief Fire Insurance Co., p. 498.The defendant, a New York corporation, insured the plaintiff at Baltimore, Maryland, against fire, on "his stock of fancy goods, toys, and other articles in his line of business, contained in his store occupied by him as a general jobber and importer." The policy contained a condition against storing or keeping hazardous, extra hazardous, or specially hazardous articles in the second class of hazards annexed to the policy, and that during the time of such storing or keeping the policy should be of no effect. "Fire-crackers in packages were classed as hazardous No. 2 in the second class, and fireworks were classed as specially hazardous. There was a written permission "to keep fire-crackers on sale," but no express permission to keep fireworks. The plaintiff kept fireworks and a fire originated from them. The plaintiff sued to recover for the loss in a Baltimore court, the cause was removed to the United States court, and on the trial the court held that the policy prohibited keeping fireworks, and rejected proof to show that they constituted an article in the line of business of a "German jobber and importer," and gave judgment for defendant. This was affirmed by the United States Supreme Court. Before that action the plaintiff had sued the Lafayette Fire Insurance Company in the New

York Supreme Court on a similar policy on the same stock and had recovered, and on appeal the evidence rejected in the United States court was held competent, and the appellate court refused to be bound by the rule laid down in the United States Supreme Court. Plaintiff then brought this action to reform the policy by inserting permission to keep fireworks, on the ground that it was omitted by mistake, and to recover on the policy so reformed. Held, that the judgment of the United States Supreme Court is a bar to this action.

People ex rel. Kelly v. Common Council of Brooklyn, p. 503. The charter of the city of Brooklyn prohibits every alderman from holding "any other public office," and provides that by election to and acceptance of "such public office," "his office as such alderman shall immediately become vacant,' and a special election shall be held to fill the vacancy. An alderman was elected representative to Congress, and accepted the office. Held, that his office as alderman immediately became vacant; no judicial proceeding was necessary to determine his title; and it was the duty of the defendant to order a special election to fill the vacancy.

McDonald v. Mallory, p. 546. — Under a statute of New York, giving a right of action for wrongfully or negligently causing the death of any person, an action may be maintained for negligently causing the death of a citizen of New York on the high seas, on a vessel hailing from and registered in a New York port, and employed by the owners at the time in their own business.

Dickinson v. Edwards, p. 573.

Where a resident

of this State makes a note here, dated, payable, and intended to be discounted here, and specifying no rate of interest, and the note is first negotiated in another State, at a rate of interest lawful there but unlawful here, it is invalid for usury.

The following are of important local application: Underwood v. Sutcliffe, p. 58. — A receiver in supplementary proceedings cannot maintain an action to have the judgment under which he was appointed declared a lien upon lands conveyed by the judgment debtor in fraud of his creditors.

Brown v. Clark, p. 369. The statutory revocation of an unmarried woman's will by her subsequent marriage is not abrogated by the married women's enabling acts.

First National Bank v. Tamajo, p. 476. — An oral agreement between parties to an action on trial before a referee, entered by the stenographer in his minutes, but not signed, and fixing no rate of compensation, but leaving it to the referee to fix the rate, is not an agreement in writing within section 313 of the old Code of Procedure.

Matter of Garvey, p. 523. —A sidewalk is within the purview of a statute providing that when a street has once been paved and the expense assessed to the adjoining owners, it shall not be thereafter paved at their expense, unless a majority of such owners petition for it.

Edington v. Etna Life Ins. Co., p. 564. — Under a statute prohibiting a physician from disclosing any information acquired in the course of professional

attendance and necessary to enable him to prescribe, a physician, who had ceased to attend a certain patient, but continued to know and see him, may testify as to his state of health when he ceased to attend him, and afterward, and whether, in his opinion, excluding knowledge and information obtained while treating him, and judging from his appearance, he was and continued in good health. But see, contra, Grattan v. Metropolitan Life Ins. Co., 21 Alb. L. J. 288.

The volume contains the proceedings of the court upon the death of Chief Judge Church.

DRINKS, DRINKERS AND DRINKING.

THE dry and thirsty days of summer are here once more. Drinking is the order of the day. Our bodies require to be constantly moistened internally, else with the thermometer among the nineties, quickly would the human form divine become little heaps of dust and ashes. If we cannot drink just now let us think about it. Longfellow says, "He who drinks beer, thinks beer; and he who drinks wine, thinks wine." Let us for a few minutes fondly imagine the converse of this to be true, and while we think of beer, cider, wine and ale, let us drink in fancy.

In dealing with this subject let us take the division

suggested by Lindley Murray's definition of a noun, and speak of "person, place and thing."

Then, firstly, as to the "person." A "common drunkard" is not a regular tippler, but one who is frequently drunk. Proof that one was drunk six times on six different days in three months, when there was no evidence of his state on the other days, does not entitle him to the presumption that he was sober on the other days. Com. v. McNamee, 112 Mass. 285. The rule of law is that things are presumed to continue in statu quo.

An "habitual drunkard" is one who has the habit of indulging in intoxicating drink so firmly fixed that he becomes drunk whenever the temptation is presented by his being near where liquor is sold. Magahay v. Magahay, 35 Mich. 210.

The phrase "addicted to the excessive use of intoxicating liquors" means not the occasional excessive use, but the habitual excessive use. Moury v. Home

Ins. Co., 1 Big. Life and Acc. Ins. Co. Cas. 698.

A court being called upon to define in an insurance case, what was meant by saying that "a man had always been sober and temperate," very wisely concluded that such a thing could not be said of one who although usually sober and temperate in his habits yet occasionally indulges in drunken debauches which sometimes end in delirium tremens. Mutual Benefit Life Ins. Co. v. Hotterhoff, 2 Cin. Sup. Ct.

To say that a man is "intemperate " does not necessarily imply that he is in the habit of getting drunk. Mullinex v. People, 76 Ill. 211. We fancy, however, the courts would not hold the converse of this.

A "saloon-keeper" is one who retails segars, liquors, et hoc genus omne. Cahill v. Campbell, 105 Mass. 60. In England, one who on Sunday walked to a spa two and a half miles away from his home for the purpose of drinking the mineral water for the benefit of his health, and then took some ale at an hotel (to keep the water down, we suppose), was held by the Court of Common Pleas to be a "traveller." Pepler v. Richardson, L. R., 4 C. P. 168.

England is a small country; one cannot travel far in any direction there without getting his feet damp, like Kanute and his friends. We presume this is why what would here be called "taking a stroll" is there dignified by the name of "travelling."

In considering the question of selling liquor to a "minor," the court held that the fact that a youth wore a beard and said that he was 21 was no proof that he was an adult. Gelty v. State, 41 Ind. 162.

The Bench doubtless believed that although every American boy may become President, still every one is not a George Washington; but that, as Mark Twain says, "Some Americans will lie." As to beards, nature occasionally "bursts out with a chin-tuft" before her turn, or where she should not.

44

Now as to place." Judges do not exactly knowat least when on the Bench-what a "saloon" is. They say that it does not necessarily import a place to sell liquors; that it may mean a place for the sale of general refreshments, Kelson v. Mayor of Ann Arbor, 26 Mich. 325; or that it may mean a room for the reception of company, or for an exhibition of works of art, etc. State v. Mansker, 36 Tex. 364. This latter idea shows how high-toned Texan judges are, and that they have travelled in foreign parts. Neither an inclosed park of four acres in extent, nor an uninclosed and uncovered platform, erected for the votaries of the Terpsichorean art and where lager beer is sold, can rightly be considered a "saloon," or a "house," or "building," within the meaning of the Connecticut statute forbidding Sunday selling of intoxicating liquors, etc. State v. Barr, 39 Conn. 41.

We opine that the Texan court would have held both this park and platform a "saloon," as there would certainly be "room for the reception of company," and if the dancing was good and the dresses of any Worth these would be an exhibition of works of art.

66

A "cellar" may be referred to as "the above-mentioned house." Com. v. Intoxicating Liquors, 105 Mass. 181. In England it was held that a covenant not to use a house as a "beer house" was not broken by the sale under a license of beer by retail to be consumed off the premises. L. & N. W. Railway v. Garnett, L. R., 9 Ex. 26. One Schofield had a license to sell beer not to be drunk on the premises," the bartender handed a mug of beer through an open window in Schofield's house to a thirsty soul, who paid for it and immediately drank it standing on the Queen's highway, but as close as possible to the window; the Court of Queen's Bench considered that this was not a case of selling beer "to be consumed on the premises." Deal v. Schofield, L. R., 3 Q. B. 8.

As to the "thing" itself. The phrase "spirituous liquors" does not include "fermented liquors." State v. Adams, 51 N. H. 568.*

Cider is not a "vinous liquor." Feldman v. Morrison, 1 Ill. App. 469. This seems reasonable enough in view of the decision that "vinous liquors" mean liquors made from the juice of the grape. Adler v. State, 55 Ala. 16.

A "dram" in common parlance, in Texas, means something that has alcohol in it-something that can intoxicate; at least so say the judges. Lucy v. State, 32 Tex. 227.

Some years ago in Indiana they were very virtuous, and the court decided that the mere opinion of a wit

ness

that common "brewer's beer" was intoxicating was not sufficient to prove that it was so, unless the testimony of the witness was founded on a personal knowledge of its effects, or of its ingredients or mode of manufacture; and the court could not take judicial notice that it was intoxicating. Glaso v. State, 43 Ind. 483.

But alas for the good old days and the childlike innocency of judges and jurymen! Now both courts and juries in that State will take notice of the fact that "whisky" is an intoxicating drink without any proof. Eagen v. State, 53 Ind. 162.

In Massachusetts a jury was held warranted in finding "ale" to be intoxicating, merely on the testimony of a witness who saw and smelled, but did not taste it. Haines v. Hanrahan, 105 Mass. 480. Perhaps these twelve men, good and true, had had a view themselves.

In Maine one may be indicted and convicted for selling for tippling purposes "cider and wine," although made from fruit grown in the State, if the jury find that they are intoxicating. State v. Page, 66 Me. 418.

How much and how long would it take the jury to find this out? Would they be allowed to take specimens with them into their withdrawing-room, as they do documents, to examine? Or would the judge look upon cider and native wine as Mr. Justice Creswell did upon water? A counsel once objected to a jury having water while considering their verdict. "Why not, Mr. why not?" queried the judge, "water is neither meat' nor 'fire,' and no sane man can say it is 'drink;' let the jury have as much as they want." *

The "Sabbath night" includes as well the time between midnight on Saturday and daylight on Sunday, as the time between dark on Sunday and midnight. Kroer v. People, 78 Ill. 294.

In England "habitual drunkenness" is not cruelty in the eye of the law (N. B.-'Tis strange that justice should be blind and law a Polyphemus), so to entitle a wife to divorce. L. R., 1 P. & M. 46.

As to the mode of selling, Richards, C. J., thought that selling a "bottle of brandy" for $1.25 was selling by retail (Reg. v. Durham, 35 U. C. R. 508); and in another case Haggerty, C. J., said that he would assume that a sale of a "bottle of gin" at sixty cents was a sale by retail. Reg. v. Strachan, 20 C. P. 184. While in Illinois the court held that proof that intoxicating liquors were retailed "by the drink" warranted a finding that the sale was in "no larger quantity than a quart" (as restricted in the Ill. Rev. Stat., 1845). Lappington v. Carter, 67 Ill. 482. See, also, United States v. Jackson, 1 Hugh, 531. The judges of this court clearly never heard of the Duke of Tenterbelly. Bishop Hall tells us that this famous nobleman, when returning thanks for his election, took up his large goblet of twelve quarts, exclaiming should he be false to their laws, "Let never this goodly formed goblet of wine go jovially through me," and then, says the historian, "he set it to his mouth, stole it off every drop, save a little remainder, which he was by custom to set upon his thumb's nail and lick it off as he did."

Now that we have finished we fear that the foregoing will not prove as satisfying as the descriptions of Hawthorne's old Inspector, and that not only is the reader and the writer, but also the thing written is "dry." R. V. ROGERS, JR.

ACTION BY INHABITANT OF CITY AGAINST CONTRACTOR WITH CITY FOR BREACH OF CONTRACT.

IOWA SUPREME COURT, JUNE 15, 1880.

DAVIS V. CLINTON WATER-WORKS COMPANY.

A water-works company made a contract with a city to furnish water to be used in such city for the extinguishment of fires, etc. Held, that an inhabitant of the city had no right of action against the water-works company for loss from a failure by it to fulfill the contract, whereby his property was destroyed by fire.

CTION to recover the value of buildings destroyea by fire. Sufficient facts appear in the opinion. *The oath of the officer in charge of the jury, down this way, says "water excepted."-[ED. Alb. L. J.

From a decision overruling a demurrer to the complaint defendant appealed.

E. S. Bailey, and Wright, Gatch & Wright, for appellant.

J. S. Darling and A. R. Cotton, for appellee.

BECK, J. 1. The petition alleges that the defendant entered into a contract with the city of Clinton to supply water to be used by the city for the purpose of extinguishing fires. The contract is embodied in an ordinance passed by the city authorizing defendant to establish its works for supplying water to the city, and providing for compensation to be paid defendant by the city for water furnished for public purposes, including the extinguishing of fires. The terms and conditions of this contract need not be recited. It is sufficient to state that the parties thereto were the city and the defendant, and the plaintiff in this case in no seuse was a party to the contract. The power of the city to pass the ordinance and enter into the contract is not questioned. The petition alleges that a fire occurred in certain store-rooms owned by plaintiff in the city, and they were entirely consumed, for the reason that the necessary supply of water was not furnished by defendant, and a sufficient pressure of water was not found at the hydrants contiguous to the buildings, which was caused by defective machinery and the negligence of defendant's servants, all of which was in violation of defendant's contract under said ordinance of the city. A demurrer to the petition was overruled.

2. The only question presented in the case is this one: Is the defendant liable to plaintiff upon the contract embodied in the ordinance? The petition does not allege or show any privity of contract between plaintiff and defendant. The plaintiff is a stranger, and the mere fact that she may find benefits therefrom, by the protection of her property, in common with all other persons whose property is similarly situated, does not make her a party to the contract, or create a privity between her and defendant. It is a rule of law, familiar to the profession, that a privity of contract must exist between the parties to an action upon a contract. One whom the law regards as a stranger to the contract cannot maintain an action thereon. The rule is founded upon the plainest reasons. The contracting parties control all interests, and are entitled to all rights secured by the contract. If mere strangers may enforce the contract by actions, on the ground of benefits flowing therefrom to them, there would be no certain limit to the number and character of actions which would be brought thereon. Exceptions to this rule exist, which must not be regarded as abrogating the rule itself. Thus, if one, under a contract, received goods or property to which another, not a party to the contract, is entitled, he may maintain an action therefor. So, the sole beneficiary of a contract may maintain an action to recover property or money to which he is entitled thereunder. In these cases the law implies a promise on the part of the one holding the money or property to account therefor to the beneficiary. Other exceptions to the rule, resting upon similar principles, may exist. See National Bank v. Grand Lodge, 98 U. S. 123.

The case before us is not an exception to the rule we have stated. The city, in exercise of its lawful authority to protect the property of the people, may cause water to be supplied for extinguishing fires and for other objects demanded by the wants of the people. In the exercise of this authority it contracts with defendant to supply the water demanded for these purposes. The plaintiff received benefits from the water thus supplied in common with all the people of the city. These benefits she received just as she does other benefits from the municipal government, as the

benefits enjoyed on account of improved streets, peace and order enforced by police regulations, and the like. It cannot be claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order, are liable to a citizen for loss or damages sustained by reason of the failure to perform their duties and obligations in this respect. They are employed by the city and responsible alone to the city. The people must trust to the municipal government to enforce the discharge of duties and obligations by the officers and agents of that government. They cannot hold such officers and agents liable upou the contracts between them and the city. These views and conclusions are supported by the following authorities: Atkinson v. Newcastle & Gateshead Water Co., L. R., 2 Exch. Div. 441; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; Vrooman v. Turner, 69 N. Y. 280; Wharton on Negligence, §§ 438, 439, 440; Shearman & Redfield on Negligence, §54. The cases cited by counsel for plaintiff, we think, are not in conflict with the view we have above expressed.

3. Counsel for defendant base an argument upon the position that the city itself would not be liable to defendant in case it owned and operated the water-works. They agree that the defendant, therefore, would not be liable to plaintiff. We find it unnecessary to consider the argument, or the premise upon which it is based. We are content to rest our conclusion upon the grounds and arguments we have attempted to present. The Circuit Court erred in overruling the demurrer to plaintiff's petition. Its judgment is, therefore, reversed.

MORTGAGE OF CEMETERY LOTS INVALID.

NEW YORK SUPREME COURT-SPECIAL TERM, JUNE,

1880.

THOMPSON V. HICKEY.

Plaintiff conveyed to H., by deed absolute in form, a lot in a cemetery in which plaintiff had buried his children. This deed was intended as a mortgage security for a loan of money. H. conveyed the lot to F., who con-veyed it to C. for a valuable consideration, C. knowing that interments had been made in the lot. Held, that the deeds were void and equity would restrain a removal of the bodies interred.

ACTION by Andrew J. Thompson against William

Hickey and others, to have declared void a conveyance of a lot in a cemetery, and to restrain the removal of the bodies of plaintiff's children buried therein. Sufficient facts appear in the opinion.

John T. McGowan, for plaintiff.

Charles Bradshaw, for defendants.

VAN VORST, J. The evidence clearly enough shows that the conveyance made by the plaintiff to the defendant Hickey, of the burial plot, was intended as security only for the repayment of the moneys loaned; and although it is absolute in form, it was a mortgage security only, which character it has not lost, and as such it must be considered. Horn v. Keteltas, 46 N. Y. 605.

The right of the plaintiff as mortgagor could not be divested by the private sale made by Hickey to Farnham, and by the latter to Clark. Lawrence v. Farmers' Loan and Trust Co., 13 N. Y. 200. Neither Hickey nor his immediate grantee could give any better right or interest than he really took. Besides, Clark, when he was asked on the trial as to his knowledge of the original transaction between plaintiff and Hickey, and as to its being a loan of money, replied, "In writing I never heard of it." A fair implication arises from the qualification, that he had otherwise heard of it, and

that would be sufficient to put him upon inquiry. Hickey conveyed to Farnham for the nominal consideration of one dollar, and on the same day Farnham conveyed to Clark, for the consideration of two hundred and twenty-five dollars, but Clark held back part of the price until the bodies of the plaintiff's children should be removed. The whole transaction between Hickey and the other defendants wears a suspicious appearance, which the evidence does not remove, and suggests a plan to deprive the plaintiff of the burial plot unjustly and without notice. But I apprehend that there are sufficient reasons in law and equity to prevent the consummation of the wrong.

The Greenwood Cemetery Association was incorporated for the purpose of establishing a burial ground, and for this purpose it was authorized to acquire a tract of land within the limits of the city of Brooklyn. The corporation was authorized to sell the grounds in lots or plots, to be used exclusively as a place of burial of the dead (see the original act of April 18, 1839, and the several acts amending same). There does not appear in the charter of this corporation, in terms, any absolute restraint upon the power of voluntary alienation of a cemetery lot by an owner. Yet I am persuaded that when a person has taken a conveyance of a burial lot, and has made interments therein of the dead of his family, it is in such condition that it caunot be mortgaged to secure the payment of a debt or the return of money borrowed. Such an act is prohibited by the equity and true spirit of the statute. For observe how careful the Legislature has been to secure the sleep of the dead from disturbance. The cemetery itself is exempted from public taxation, and the lots or plots of ground when conveyed are declared to be exempt from assessment, and cannot be sold on execution or be applied to the payment of debts under any insolvent law. And as no public road, street or avenue shall be laid out or opened over the land, the same would seem to be absolutely secured against invasion. A mortgage, equally with an execution upon a judgment, might in the end expose the lot for sale. And although the letter of the charter under consideration is not so full, yet the Legislature has clearly expressed its mind upon this precise subject in the provisions contained in chapter 133 of the Laws of 1847, entitled an act authorizing the incorporation of "rural cemeteries." By section 11 of that act it is provided that when plots or lots shall be transferred to individual holders, and after there shall have been an interment in a lot or plot so transferred to individual owners, such lot or plot, from the time of such interment, shall be forever thereafter inalienable, and shall, upon the death of the holder or proprietor thereof descend to the heirs-at-law of such holder or proprietor, and to their heirs-at-law forever; and chapter 310 of the Laws of 1879 declares that it shall not be lawful to mortgage land used for cemetery purposes or to apply it in payment of debts.

Legislation upon this subject has been in accord with the sentiments of humanity, and with the spirit of our civilization, and has shown a considerate regard for the sanctity of the resting places of the dead. By the incorporation of cemeteries, and their preservation as such, it has secured an immunity from disturbance for the dead, which had failed to be obtained through burials in church yards, which were liable to be unsettled by the sale of church property.

When the case of Lautz v. Buckingham was before Justice Brady at Special Term, he distinctly pronounced against the legality of a mortgage executed upon a cemetery lot by the proprietor thereof. He says, "regarding it in the light of a mortgage security, I think it is not to be sustained. It is against good morals, and therefore against the policy of the law, to encourage such instruments. 11 Abb. (N. S.) 64. It is true that the judgment of the Special Term was re

versed at the General Term. Lautz v. Buckingham, 4 Lans. 484. But it is to be borne in mind that in that case no interment had been made in the lot at the time the mortgage was given, and it may be that it might not be considered an offense, either against good morals, public policy, or against the spirit of the statute, to convey or mortgage a cemetery lot before an interment had been actually made therein. For such a sale or conveyance satisfactory reasons might possibly exist. A man might desire to change his lot for one larger or more eligible.

I do not regard the act of April 5, 1850, as affecting the question we are now considering. It declares under what circumstances a lot is inalienable. It does not authorize a mortgage or a sale thereunder by implication even. But that it is an offense against good morals to mortgage a small isolated plot of ground in a cemetery, dedicated exclusively, under the sanction of the law, as a sanctuary for the dead of one's family, and already consecrated by the ashes of one's kindred, I am sure cannot be well questioned. Such a transaction is clearly a breach of the policy of the statute, is contrary to its equity, and is within the evils it was designed to cure, and our moral nature protests against it. As a consequence of such a transaction, we have here a stranger calling upon a father to disinter his three children, who have been buried for a period of ten years in a cemetery lot, with a threat that if the parent will not he himself will do it. And suppose he carries his threat into execution, what then? Sepulture must, in the end, be had, and that, it is believed, the statute was intended to secure permanently, against disturbance from any such cause as is indicated by the mortgage in question.

The sentiments and feelings which people in a Christian State have for the dead the law regards and respects, and however it may have been anterior to our legislation on the subject of cemeteries, the dead themselves now have rights, which are committed to the living to protect, and in doing which they obtain security for the undisturbed rest of their own remains. In any view which may be taken of this subject, I am sure that the defendant should be restrained from interfering with the children's graves. If the conveyance executed by the plaintiff to Hickey, although it be in form absolute, is supposed to confer any present right, it must yield to the easement of the bodies already buried there, which should in no event be disturbed. Moreland v. Richardson, 22 Beav. 596; S. C., 24 id. 33; First Presbyterian Church v. Second Presbyterian Church, 2 Brewst. (Penn.) 372.

But as has been already decided, the conveyance to Hickey was a mortgage security only, and until the plaintiff's rights have been judicially ended through a proceeding in court, his complete possession and control of the lot cannot be interfered with, and for that reason also the threatened acts should be restrained. And a suit in equity is a proper proceeding to secure such restraint.

In Kurtz v. Beatty and another, Pet. 566, 584, Judge Story says: "It is a case where no action at law could afford an adequate and complete remedy. The remedy must be sought, if at all, in the protecting power of a Court of Chancery, operating, by its injunction, to preserve the repose of the ashes of the dead and the religious sensibility of the living."

Taking up dead bodies from the place where they have been interred, without authority, is a misdemeanor at common law. Stephen's Com., vol. 4, 371; Reg. v. Twiss, 10 B. & S. 298; see, also, Paper of Mr. R. Guernsey, read before Medico-Legal Society, Feb. 4, 1880, on the "Law of Burial."

But in addition to relief by injunction, I am of opinion that it should be adjudged, for the reasons above stated, that the transfer made by the plaintiff to Hickey of the cemetery lot, as security for a loan of