SALE-RESCISSION FOR FRAUD OF VENDEE-DEMAND AND REFUSAL-DEMAND OF AGENT-DEFENSE-INCONSISTENT GROUNDS. - This action is based upon the right of a vendor of goods to rescind the contract of sale, and to recover the goods, where the sale and delivery were obtained by the fraud of the vendee. The fraud in such case does not intercept the passing of the title to the goods to the purchaser, but the title acquired is defeasible, subject to the right of the vendor, on the discovery of the fraud, to reassert his original right and reclaim the property, unless it has come to the hands of a bona fide purchaser. Bernard v. Campbell, 58 N. Y. 76; S. C., 55 id. 461. The defendant Wertheimer is the assignee of Goldsmith & Co., the fraudulent vendees, under a general assign. ment made by them to the defendant for the benefit of creditors, and had possession of the goods in question as part of the assigned property at the time of the commencement of this action. But he was not a purchaser for value, and he acquired no better title, as against the plaintiff, than his assignors had at the time of the assignment. Barnard v. Campbell, supra. The trial court dismissed the complaint on the ground that there was no proof that the goods were demanded of Wertheimer before bringing the action. It is not claimed that Wertheimer was cognizant of the fraud committed by Goldsmith & Co. The legal title at the time of the assignment was in Goldsmith & Co., no proceeding having been taken by the plaintiff to rescind the sale until after the assignment had been made. The defendant Wertheimer therefore lawfully acquired the title and possession of the goods, but subject to the same right of reclamation in the plaintiffs, upon their rescinding the contract, as they before had against the assignors. The original possession of Wertheimer being lawful, and not tortious, it was necessary to change the character of his possession by a demand and refusal before the plaintiffs could maintain an action against him for conversion, or to recover the goods. Add. Torts, 312; Holbrook v. Wight, 24 Wend. 169; Mount v. Derick, 5 Hill, 455; Pierce v. Van Dyke, 6 id. 613. There was no proof that the plaintiffs demanded the goods of Wertheimer personally at any time. It was shown however that the plaintiffs' attorney, a few days after the making of the assignment, and just prior to the commencement of the action, went to the store where the goods were, and found three persons, one of whom was Goldsmith, one of the firm of Goldsmith & Co. He asked if the assignee of the Goldsmiths was there, and was informed that he was not, and that Goldsmith was in charge. The witness then stated to Goldsmith that he was attorney for the plaintiffs, and in substance demanded the delivery of the goods on the ground that they had been obtained by fraud. In reply Goldsmith said that he had no power or authority to give up the goods, as the firm had made a general assignment for the benefit of creditors. It does not affirmatively appear what authority Goldsmith had, or in what capacity he was acting. The most that can be inferred from the evidence is that he had the custody of the assigned property for the assignee, and had been placed in charge by him. It is insisted that the demand made of Goldsmith was sufficient to support the action against Wertheimer. If Goldsmith in refusing to deliver the goods was acting in obedience to Wertheimer's orders, there would be no question. But this cannot be assumed in the absence of any evidence on the subject. The refusal of a servant to deliver goods intrusted to him by his master, on a demand by a stranger, is not sufficient evidence to maintain replevin against the servant, nor against the master when a demand and refusal is necessary to make the possession of the defendant tortious, unless the servant acted under the direction of the master in refusing to deliver the An goods. Mount v. Derick, supra. It can make no difference in respect to the sufficiency of the demand against the master, that the servant knew that the person making the demand was entitled to the property, or that the master's title was voidable. agent or servant having the custody merely of goods cannot bind the principal by acceding to the demand of a third person, nor on the other hand, by refusing to deliver the property. It is also insisted that the defendant by setting up in his answer title in himself, as assignee, waived the necessity of a demand. This claim is, we think, untenable. The answer of Wertheimer put in issue the allegation in the complaint, that the defendant wrongfully detained and refused to deliver the goods, and also set up his title under the assignment. A defendant may put his defense upon distinct and even inconsistent grounds. The authorities seem to be decisive that the plea of title was not a waiver by Wertheimer of his right to insist that he could not be made a wrong-doer, without proof of demand and refusal. Scofield v. Whitelegge, 49 N. Y. 259; Southwick v. First Nat'l Bk., 84 id. 420. win v. Wertheimer. Opinion by Andrews, J. [Decided May 5, 1885.] Good UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.* CONSTITUTIONAL LAW-TWO-COUNTY MORTGAGE TAX LAW VOID-" SUBJECT" OF AN ACT AND "MATTER PROPERLY CONNECTED THEREWITH."-The clause in section 3 of the act of October 26, 1882 (Sess. Laws, 65), commonly called "The Mortgage Tax Law," which declares that all mortgages or other obligations whereby land in more than one county "is made security for the payment of a debt, shall be void," is a "matter properly connected" with the "subject" of the act, and therefore not in contravention of section 20 of article 4 of the Constitution of the State; and a mortgage executed by the defendant to plaintiff, as trustee of its road and property in several counties in Oregon, to secure the payment of certain bonds of the same date, in violation thereof, is void and of no effect. A plain provision of a statute cannot be construed so as to exclude a particular case from its operation upon a surmise or conjecture, however probable, that the Legislature did not actually contemplate or consciously intend its application thereto. Where the interest on a debt secured by a mortgage is payable in yearly or half-yearly installments, and the principal at a future period, in the case of the non-payment of any such installment of interest a suit may be maintained thereon to so far enforce the lien of the mortgage; and if the sum due is not paid within a time limited by a decree of the court, sufficient of the property may be sold to pay the same. But if the property cannot be sold in parcels without injury to the parties, or one of them, the court may order the whole of it sold, free from the lien of the mortgage, and apply the proceeds on the whole debt, according to its then value. Brinckerhoff v. Thallhimer, 2 Johns. Ch. 486; Meyer v. Graeber, 19 Kan. 165; Morgenstern v. Klees, 30 Ill. 422; Chicago, etc., R. Co. v. Fosdick, 106 U. S. 67; Credit Co. v. Arkansas, etc., R. Co., 15 Fed. Rep. 52; Jones Mortg., §§ 1181, 1459, 1478. See also Oregon Code Civ. Proc., § 417. Cir. Ct. D. Oreg., Aug. 3, 1885. Farmers' Loan & Trust Co. v. Oregon & C. Ry. Co. Opinion by Deady, J. ASSIGNMENT FOR CREDITORS-ARKANSAS STATUTEPOSSESSION PREVIOUS TO FILING INVENTORY-NOTICE OF SALE. The statute of Kansas regulating assignments for the benefit of creditors prohibits the as*Appearing in 24 Federal Reporter. the statute respecting the sale of property assigned for the benefit of creditors are mandatory, and not directory. It follows that the assignment, which vests the assignee with a discretion contrary to the mandates of the statute, and in effect authorizes him to sell the property conveyed thereby in a method not permitted by the statute, must be void, for contracts and conveyances in contravention of the terms or policy of a statute will not be sanctioned. Peck v. Burr, 10 N. Y. 294; Macgregor v. Dover & D. Ry. Co., 18 Q. B. 618; Jackson v. Davison, 4 Baru. & A. 691; Miller v. Post, v. Moran, 44 Me. 67." It would seem the assignee is bound to observe the terms of the deed, though they conflict with the law, because the condition of his boud is that he "will execute the trust confided to him * * according to the terms thereof." The Supreme Court of the State has laid down the rule that the requirements of the statute regulating assignments are mandatory, and that any stipulation in the deed in contravention of these requirements avoids the instrument. This ruling is in harmony with the general, though not quite uniform, doctrine of the authorities, and is binding on this court. Mr. Burrill says: "The principle that an assignment fraudulent in any of its provisions is void in toto is said to be too well established to need any reference to authorities to support it." Burrill Assignm., § 352; Pierson v. Manning, 2 Mich. 460; Caldwell v. Williams, 1 Ind. 411; Mussey v. Noyes, 26 Vt. 472; Wakeman v. Grover, 4 Paige, 23; S. C., 11 Wend. 187. And such has been the uniform ruling of this court, concurred in by Circuit Judges Dillon and McCrary. Bartlett v. Teah, 1 Fed. Rep. 768; Schoolfield v. Johnson, 11 id. 297. In Burrill Assigum., § 319, it is said: 'An assignment may be void without being positively fraudulent, as where it fails to comply with some merely formal statutory requirement." It is not for the debtor to assume that he can devise a better mode of administering the trust than that prescribed by the statute; and whenever he has attempted to do so the assignment has been adjudged void. An assignee in a deed of assignment for the benefit of creditors is not a purchaser for value, and has none of the equities of such a purchaser. He must stand on the letter of his deed, and if that is in contravention of the law it is void. The deed was fraudulent and void in law, and this fact supports the attachment. Dodd v. Martin, 15 Fed. Rep. 338; Whed bee v. Stewart, 40 Md. 414; Teah v. Roth, 39 Ark. 66. Rice v. Frayser. Opinion by Caldwell, J. signee from taking possession of the assigned property until he gives bond and files an inventory of the property; and a deed of assignment that stipulates that the assignee shall take possession of the property be fore he gives the bond and files the inventory, as required by the statute, is void. No inquiry is permissible to show that no fraud was intended, or that the statute was violated for an honest purpose. In Thatcher v. Franklin, 37 Ark. 64, an assignee who had not given bond or filed an inventory, brought replevin for the assigned property. The Circuit Court, misinterpreting the case of Clayton v. Johnson, held he1 Allen, 434; Parton v. Hervey, 1 Gray, 119; Hathaway could recover; but the Supreme Court said: "But though the deed vested the legal title to the goods in the trustee, yet by the express language in the statute regulating assignments (Gantt's Dig., §§ 385, 387) before he was entitled to take possession, sell, or in any way manage or control the property assigned, he was obliged to file the schedule and execute the bond required by the act. This case differs from the case of Clayton v. Johnson, supra. In that case the trustee filed the schedule and executed bond before he brought replevin, as provided by the statute. In this case it appears that the trustee paid no attention to the statute. The court below erred in refusing to charge the jury, as moved by appellants, in effect, that plaintiff having failed to file the schedule and give bond, as required by the statute, could not maintain replevin for the goods." This doctrine was affirmed in Falconer v. Hunt, 39 Ark. 68. The result of the opinions in Clayton v. Johnson and Thatcher v. Franklin is that the legal title to the property assigned passes to the assignee by the execution and delivery of the deed of assignment; that "he is entitled to access to" the property to make the invoice; but that he cannot take possession, and has no right to the possession, until he gives bond and files an inventory. Until this is done the assignor must retain the possession of the property. The result is not a novel one. It often occurs that the legal title to property is in one person, and the possession and right of possession in another. There never was any excuse for misapprehension ou this subject; for the court in Clayton v. Johnson were particular to say: "But whether the conveyance be of real or personal property, aud whether the assignor make and attach to the deed a schedule or not, the assignee must file a schedule of the property embraced by the deed before he can take possession of, sell, or in any way control or manage it. If the property be goods, choses in action, etc., he is entitled to access to them for the purpose of making the schedule, if the assignor has not attached to the deed a satisfactory one." (2) The statute provides that the assignee "shall have at least thirty days' notice" of the sale of assigned property, and a deed that provides for a sale upon "twenty days' notice" is void. In Jaffray v. McGehee, 107 U. S. 361, a case appealed from this court, the court said: "The question presented is therefore this: Is an assignment for the benefit of creditors, which authorizes the assignee to violate the provisions of the statute regulating such assignments, valid and binding on the creditors of the assignor? The contention of the appellant is that the assignment is valid, (1) because the discretion given the assignee by the assignment leaves him at liberty to follow the law; and (2) because even if the assignment required him to administer the trust in a manner different from that prescribed by the law, only such direction as conflicted with the law would be void, and the assignment itself would remain valid. We think that under the construction given the assignment law by the Supreme Court of Arkansas in Raleigh v. Griffith, 37 Ark. 150, these positions cannot be maintained. The effect of this decision-and there is no other decision of that court in conflict therewith-is that the provisions of SHIP AND SHIPPING-MASTER-AUTHORITY OF.-The master of the ship is the confidential servant or agent of the owners, and they are bound to the performance of all the lawful contracts made by him relative to the usual employment of the ship, and the repairs and other necessaries furnished for her use. The Aurora, 1 Wheat. 102, followed. Cir. Ct. E. D. La., June 27, 1885. The Gulnare. Opinion by Pardee, J. SHIP AND SHIPPING-ADMIRALTY JURISDICTIONTUG ENGAGED IN TOWING SMALL CRAFT IN HARBOR OF BUFFALO-LIBEL FOR SEAMEN'S WAGES.-This is an action to recover seaman's wages. The defenses are want of jurisdiction and payment. The Ella B. is a tug of less than five tons burden. Her chief occupation has been and is the towing of caual-boats and other small craft about the harbor of Buffalo and the waters adjacent thereto. She has occasionally, in pursuing her vocation, been out upon Lake Erie and the Niagara river. Since the act of August 5, 1882 (22 Stat. at Large, 300), she has not been enrolled. It is contended by the respondent that because of her diminutive size and the restricted theater of her operations, she is not within the admiralty jurisdiction of the court. This proposition cannot be maintained. She was engaged in aiding commerce upon navigable waters of the United States. This fact, irrespective of questions relating to the size and tonnage of the vessel, the absence of enrollment and license, and the circumscribed nature of her employment, is sufficient to give the court jurisdiction. The B. & C., 18 Fed. Rep. 543; affirmed, Ex parte Boyer, 109 U. S. 629; The Genesee Chief, 12 How. 443; The Eagle, Wall. 15; The Hine v. Trevor, 4 id. 555; U. S. v. Burlington & H. C. F. Co., 21 Fed. Rep. 331; Enduer v. Greco, 3 id. 111; The General Cass, Brown Adm. 334; Malony v. Milwaukee, 1 Fed. Rep. 611; The Gate City, 5 Biss. 200; The Volunteer, Brown Adm. 159; The Hezekiah Baldwin, 8 Ben. 556; The McChesney, id. 150; affirmed, 15 Blatchf. 183; Murray v. The Nimick, 2 Fed. Rep. 86; The Florence, 2 Flippin, 56. Dist. Ct. N. D. N. Y., July 15, 1885. The Ella B. Opinion by Coxe, J. PLEDGE-SALE OF LAND-PURCHASE BY PLEDGEEDUTY AS TO COLLATERALS.-B. borrowed of defendant on his note $27,500, and deposited as collateral forty bonds, part of an issue of 100, secured by a deed of trust with power of sale on land in Illinois. B. failed to pay his notes, and the land was sold by the trustee pursuant to the terms of the trust deed, and was bought in by an agent of the bondholders, and part of it conveyed by him to the defendant. Held, that the defendant did not sustain such a fiduciary relation to B. as to preclude it from acquiring a valid title to the land, although the relation of pledgor and pledgee existed between B. and the defendant at the time. If the defendant, as a pledgee of the bonds, was under a duty to the pledgors to intervene at the sale under the trust deed, and to promote a sale on advantageous terms for the benefit of the pledgors so as to enable them to realize as much as possible upon the bonds, it might well be urged that this duty would subject the defendant to the ordinary disabilities of a fiduciary, and incapacitate it from purchasing directly or in directly for its own benefit without the consent of the pledgors. In the language of the court in Torrey v. Bank of Orleans, 9 Paige Ch. 663: "It is a settled principle of equity that no person who is placed in a situation of trust or confidence in reference to the subject of a sale can be a purchaser of the property on his own account." Where he has a duty to perform which is inconsistent with the character of a purchaser, he cannot divest himself of the equities of the cestui que trust to demand the profits that may arise from the transaction. As was stated in Michoud v. Girod, 4 How. 555, by Mr. Justice Wayne: "The general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity." It matters not, when the fiduciary relation exists, that the sale was brought about by a third party without any active procurement or intervention on the part of the fiduciary, or that the sale was public, or that the price was fair, or that there was no intention to gain an unfair advantage. The real question in the case is whether the defendant owed such a duty to the pledgors. (2) When negotiable instruments are pledged as collateral, it is the duty of the pledgee, not only so to deal with them as not to destroy or impair their value, but he is to use ordinary diligence to make them available for the payment of the debt. If he suffers indorsed paper to mature without resorting to the necessary steps to charge, the indorser, or fails to pursue reasonably the primary parties, he may become responsible for any loss that may ensue. Whitten v. Wright, 34 Mich. 92; Russell v. Hester, 10 Ala. 535; Barrow v. Rhinelander, 3 Johns. Ch. 614; Lamberton v. Windom, 12 Minn. 232 (Gil. 151). Even the neglect to prosecute overdue paper may subject the pledgee to liability to the pledgor in case of loss. Rice v. Benedict, 19 Mich. 132; Hanna v. Holton, 78 Penn. St. 334; Word v. Morgan, 5 Sneed, 79; Noland v. Clark, 10 B. Mon. 239. (3) When the pledgee has exercised ordinary diligence to secure the fruits of the pledge for the benefit of the pledgor, in view of all the circumstances of the particular transaction, his duty has been fully discharged. Applying this standard of diligence to the present case, it seems clear that the defendant was not required by its duties to the pledgors to become a bidder at the sale, or take any active measure to increase the fund to be realized thereby. By the terms of the trust deed the land was to be sold publicly, after a published notice of twenty days by a trustee, who was to sell or adjourn the sale at his discretion, and whose duty it was to consult the best interests of all parties interested in the sale. The de. fendant might reasonably rely upon the presumption that such a sale would be fairly conducted and would produce a fair return. It occupied 110 better position than the pledgors did in respect to promoting an advantageous sale, and therefore did not stand in the relation of a fiduciary toward the pledgor. In view of the scheme of the sale, the defendant had a right to infer that the pledgor intended to consent in advance that the amount of the fund applicable to the bonds should be determined by the result of the sale. If no active duty to promote an advantageous sale was incumbent upon the defendant, it was not incapacitated from becoming a purchaser at the sale. The reason why a pledgee cannot ordinarily acquire a valid title as against the pledgor by a purchase of the property pledged, although the sale is regularly and publicly made, unless the pledgor assents (Middlesex Bank v. Minot, 4 Metc. 325; Bryan v. Baldwin, 52 N. Y. 232), is because he cannot be at the same time a vendor and a purchaser of the property. The defendant here was not the vendor, but occupied the position of a creditor, or of a cestui que trust, seeking to realize as much as might be practicable out of a fund by which its debt was secured. The defendant and the pledgors stood upon terms of complete equality. The circumstance that the defendant did not actually advance any money upon the purchase is not material. The transaction was the same in substance as if the defendant had paid the purchase-price in money, and when it was received back its portion of the proceeds of the sale had applied the amount upon the debt of the pledgor. Cir. Ct., S. D. N. Y., July 8, 1885. Easton v. German-American Bank. Opinion by Wallace, J. KANSAS SUPREME COURT ABSTRACT.* HOMESTEAD VOID CONTRACT-VOLUNTARY PAYMENT-NO RECOVERY.-The plaintiff made a contract agreeing to convey the tract of land occupied by himself and family as a homestead. As a part of the purchase-price the defendant executed and delivered to plaintiff a promissory note for $200, and made a cash payment of $40. The signature or consent of plaintiff's wife to the contract and sale was never obtained; no deed of conveyance was ever made to defendant by plaintiff and his wife, nor was the defendant ever given possession of the homestead. Plaintiff brought suit to recover upon the promissory note given as a part of the purchase-price, and the defendant in his answer asks to recover the $40 which he paid. Held, that the contract to convey the homestead, made without the consent of plaintiff's wife, is void, and that the note and money given and paid by the defendant as an ad. vance payment on the homestead were without con*To appear in 33 Kansas Reports. sideration. Coughlin v. Coughlin, 26 Kans. 116. See also Dollman v. Harris, 5 id. 597; Anderson v. Anderson, 9 id. 112; Monroe v. May, id. 476; Ayres v. Probasco, 14 id. 190; Chambers v. Cox, 23 id. 393; Ott v. Sprague, 27 id. 620. And also held, that the defendant having voluntarily paid the sum of $40 on such void contract, with full knowledge of all the facts and circumstances relating thereto, cannot recover it. Phillips v. Jefferson Co., 5 Kans. 412; Wabaunsee Co. v. Walker, 8 id. 431; K. P. Ry. Co. v. Comm'rs of Wyandotte Co., 16 id, 587; Sapp v. Comm'rs of Brown Co., 20 id. 245; Lamborn v. County Commissioners, 97 U. S. 185. Thomas v. Stumpff. Opinion by Johnston, J. REPLEVIN-NATURE OF JUDGMENT.- In an action of replevin for the recovery of certain cattle, judgment was rendered in favor of the defendant and against the plaintiff for all the cattle, and in the alternative for $1,948, if a return of a certain portion of the cattle could not be had, and for costs. Held, that such a judgment is not necessarily a judgment that the defendant was the absolute, unqualified and unconditional owner of the cattle, but that such judgment is entirely consistent with the theory that the defendant held the possession of the cattle as the mortgagee of the plaintiff, who was the mortgagor. Layton was not a mortgagee. A mortgagee in possession after default is not merely a lien-holder, but he is the real owner of the mortgaged property, and in him is vested the entire legal title. Mr. Jones, in his work on Chattel Mortgages, says: "Upon default, the title to the mortgaged property becomes absolute in the mortgagee,' and cites a number of authorities. Jones Chat. Mortg., $699. See also 3 Pom. Eq. Jur., § 1229. Of course however the mortgagor has the right to redeem the property by performance on his part within a reasonable time and before the mortgagee has sold the property: and in all cases the mortgagor has a right to any excess over the amount which it may require to satisfy the mortgagee's claim; and the right to redeem or for an accounting he may enforce in equity. A contract like the one stated in the defendant's answer may, under some circumstances, constitute a mortgage; Bunacleugh v. Poolman, 3 Daly, 236; Fowler v. Stoneum, 11 Tex. 478; McKnight v. Gordon, 13 Rich. (S. C. Eq.) 222; or it may under other circumstances constitute a conditional sale, which would become absolute upon default. Chapman v. Turner, 1 Call (Va.), 280; Johnson v. Clark, 5 Ark. 321. But for the purposes of the question now under consideration, and as now presented by counsel, it is wholly immaterial what the character of that contract was. The only question now to be considered is, whether it has already been adjudicated that the contract was not a mortgage. No express adjudication of that kind can be found, and the judgment rendered in the replevin action is precisely what it would have been if it had been determined in that action that the contract was a mortgage. Probably the question as to whether such contract was a mortgage or not was not litigated in that action. If it was however then the judgment in that action is in harmony with the theory that it was a mortgage; but if it was not, then it can hardly be said that there has been a final adjudication, or indeed any adjudication, upon the subject; and certainly it cannot be said that it has already been adjudicated that the contract was not a mortgage. This is substantially an action in equity for an accounting, and it is probably the only kind of action that ever ought to have been brought between the parties. By it, substantial justice may be done. By the former action of replevin complete justice was not done, and could not have been done, in whatever way the judgment in that action might have been rendered. If the judgment in the former action had been for the plaintiffs, justice would in all probability have been defeated; but as it was for the defendants, and as the parties may now in all probability have a fair and just accounting, justice will in all probability be rendered to both parties. This kind of action ought therefore to be encouraged, and we ought not to hold that the former action of replevin was a final adjudication between the parties with respect to the question now presented, unless under the facts and the law of the case no other conclusion could be reached. Armel v. Layton. Opinion by Valentine, J. MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT. PROBATE BOND-SURETIES-DELIVERY OF BOND.— The authority to deliver a bond, merely, may be given by parol. When a probate bond is signed by the sureties with the penal sum left blank, and intrusted by them to the principal to be filled up for a certain amount and delivered, the probability of his being required by the probate judge to insert a penal sum larger than the sureties directed, and of his doing so, is so obvious that the sureties must be held to take the risk of their principal's conduct, and they are bound by the instrument as delivered, provided the obligee has no notice of the breach of orders. This was an action on a probate bond. The following facts are relied on as a defense by the sureties. Having signed another bond, which turned out to be wrong in form, they signed this one in blank, at their principal's request, and upon his representations that the penal sum of the former bond ($2,000) was satisfactory, and that the new bond was to be for the same amount. The principal filled out the blank with a larger penal sum and delivered the bond, but subsequently told the sureties that it was in the penal sum of $2,000, which they believed until this action was brought. It does not appear in terms, that the representation, that the penal sum of the former bond was satisfactory, was false, or that the judge of probate did not require the larger sum, for the first time, when the second bond was offered. And if the bill of exceptions should be taken at all strictly against the defendants, it would seem, that whatever expectations they may have mentioned as to the action of the probate court, when they handed the blank bond over to the principal, they handed it to him to be filled in as the probate court might require, being chargeable with knowledge that the time for final action upon the matter had not yet come. In this view of the facts the only question would be whether the case was governed by Burns v. Lynde, 6 Allen, 305, and more especially Basford v. Pearson, 9 id. 387. And we are of opinion that it is not. At all events, when the grantee or obligee is ignorant of the order in which the several parts of the instrument are written and the delivery to him is duly authorized, he is entitled to assume that the instrument was so written as to bind the grantor or obligor from whose control it comes. We should add that in this Commonwealth at least, we cannot question for one instant that the authority to deliver, merely, may be given by parol. Basford v. Pearson, 9 Allen, 387; Parker v. Hill, 8 Metc. 447; Foster v. Mansfield, 3 id. 412. If we are to interpret the bill of exceptions more favorably for the defendants than we have done thus far, and to take it that they only authorized the bond to be filled in with a penal sum of $2,000, and even if we take the further step of assuming that limitation to have carried with it the understanding between them and the principal that they assented to a delivery, if the bond was filled in as they expected it to be, we are still of opinion that no defense is made out. W. are aware that there are a number of cases more or less opposed to our conclusion. People v. Bostwick, 32 N. Y. 445; Ohio v. Boring, 15 Ohio, 507; United States v. Nelson, 2 Brock. 64; Preston v. Hull, 23 Gratt. 600, and cases cited. But we think that the prevailing tendency, both in this State and elsewhere, has been in the direction we have taken. Thomas v. Bleakie, 136 Mass. 568; Butler v. United States, 21 Wall. 272; Dair v. United States, 16 id. 1; South Berwick v. Huntress, 53 Me 89; State v. Peck, id. 284; State v. Pepper, 31 Ind. 76; Millett v. Parker, 2 Metc. (Ky.) 608. These decisions are generally put on the ground of estoppel. Swan v. North British Australasian Co., 2 Hurlst. & Colt, 175; Tayler v. Great Indian Peninsula Ry. Co., 4 De G. & J. 559, 574. But if the case is properly put on that ground, then as was pointed out in Cousin v. Pierce, 138 Mass. 165, the difference between intent and negligence in a legal sense is ordinarily nothing, but the difference in the probability under the circumstances known to the actor and according to common experience, that a certain consequence or class of consequences will follow from a certain act, and it follows that the question, when an estoppel will arise, is simply remedy on his contract. If he has no such contract and knowingly, although unwillingly, accepts the additional and more dangerous employment, he accepts its incidental risks, and while he may require of the employer to perform his duty, he cannot recover for an injury which occurs only from his own inexperience. The employer is not necessarily unjust because he wishes in his employ a servant who can from time to time relieve a skilled workman, while his ordinary duties will be those of a mere laborer. It must certainly be his right to engage a servant, who while his ordinary duties will be simple and expose him to no danger, is willing, as a part of his service from time to time, to assume duties which, in order to be safely performed, require a higher degree of skill and which expose him to a certain degree of danger. Leary v. Boston & Albany Railroad Co. Opinion by Devens, J. [Decided June 25, 1885.] IE: OUR NEW YORK LETTER. one of degree. If on the other hand the true question machinery of our metropolitan law-mills in a few is one of scope of the principal's authority to deliver the bond, bearing in mind that an authorized delivery will cure defects in the writing of the bond, that the authority to deliver may be by parol, and that the scope of authority may be greater than is wished by the obligor, ostensible authority being actual authority, then the question is equally one of degree, depending on the particular circumstances just as the same question is in tort. Judge of Probate v. Duggan. Opinion by Holmes, J. [Decided June 24, 1885.] MASTER AND SERVANT-SERVANT ACCEPTS RISKS INCIDENT TO EMPLOYMENT. - Where an employer knows of the danger to which his servant will be exposed in the performance of any labor to which he assigns him, and does not give him sufficient and reasonable notice thereof, its dangers not being obvious, and the servant, without negligence on his own part, through inexperience or reliance on the directions given, fails to perceive or understand the risk and is injured, the employer is responsible. But the servant assumes the dangers of the employment to which he voluntarily and intelligently consents, and while ordinarily he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take them. Coombs v. New Bedford Co., 102 Mass. 572; Sullivan v. India Co.,113 id. 396. When one assumes an employment if an additional and more dangerous duty is added to his original labor, and he knowingly, although unwillingly, accepts it, he accepts its incidental risks, and cannot recover for an injury which occurs only from his own inexperience. O'Connor v. Adams, 120 Mass. 427; Railway Co. v. Fort, 17 Wall. 553; Lalor, Adm'rx, v. C., B. & Q. R. R., 52 III. 401; Jones v. Railway, 49 Mich. 573; Chicago and N. W. R. R. Co. v. Bayfield, 37 id. 205; Woodley¡v. Met. Railway, 46 L. J. Exch. 521. To morally coerce a servant to an employment, the risk of which he does not wish to encounter, by threatening otherwise to deprive him of an employment he can readily and safely perform, may sometimes be harsh, but when one has assumed an employment, if an additional and more dangerous duty is added to his original labor, he may accept or refuse it. If he has an executory contract for the original service, he may refuse the additional and more dangerous service, and if for that reason he is discharged, may avail himself of his days will once more be set in motion. The judges and lawyers have returned from outings at the seaside and in the hills, and all are ready for the duties and work of the new judicial year to be ushered in by the first Monday of October. The grist awaiting grinding here is rather formidable. The untried cases on the calendars of the various courts of record in this city at the opening of the forthcoming terms number 5,030, divided as follows: 1,227 in the Superior Court, 1,660 in the Supreme Court, 1,139 in the Common Pleas, 854 in the City Court, 600 in the United States District Court and 560 in the United States Circuit Court. This enumeration does not include cases in the Surrogate's Court. Investigation shows that on an average there are thirty-two new actions at law begun in the various courts of this city every working day in the year. To dispose of this vast volume of litigation there are twenty-seven judges, and to appear for the litigants, nearly 6,000 lawyers. So from the present condition of the calendars there will not be cases enough to go around and give "the officers of the court" one apiece; not a very encouraging situation for the young aspirant for the honors of the bar. Four vacancies on the bench occur here this fall by limitation. Justice Barrett, Chief Justices Sedgwick, Daly and McAdam lay off the ermine as unsoiled as when first assumed. It is believed that Justices Barrett and Sedgwick will receive renominations, and Chief Justice McAdam promotion to the Common Pleas. It certainly would be a well-deserved recognition of faithful and zealous services. They are all honorable, upright and learned judges, just the kind of men we need more of. The bar association would doubtless cordially indorse them and the people elect them if the politicians would give them an opportunity. Among the names mentioned prominently for the vacancy about to occur in the Common Pleas by reason of the age disqualification, are Hamilton Cole, Edward Patterson and Henry E. Howland, all men well equipped for judicial service. Mr. Cole is serving with great satisfaction as referee in the Grant and Ward litigation. He has been a most successful practitioner, is possessed of what Lord Chief Coleridge calls a natural legal mind, is scholarly in his habits and methods of study, and has what the lawyers of this city are beginning to think should have more prominence in a candidate aspiring to judicial honors, and that is courteous and gracious manners. There is a conspicuous absence of "the last aforesaid " in more than one incumbent - I had almost written incumberer of the beuch here. Lawyers practicing in other judicial districts remark the lack of considera |