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pose irresistible force or overpowering intimidation, and the only duty resting upon the carrier, not otherwise in fault, is to use reasonable efforts and due diligence to overcome the obstacles thus interposed and to forward the goods to their destination.

While the court below conceded this to be the general rule, it did not give the defendant the benefit of it because it held that the men engaged in the violent and riotous resistance to the defendant were its employees, for whose conduct it was responsible, and in that holding was the fundamental error committed by it. It is true that these men had been in the employment of the defendant. But they left and abandoned that employment. They ceased to be in its service or in any sense its agents for whose conduct it was responsible. They not only refused to obey its orders or to render it any service, but they willfully arrayed themselves in positive hostility against it, and intimidated and defeated the efforts of employees who were willing to serve it. They became a mob of vicious law breakers, to be dealt with by the government whose duty it was, by the use of adequate force, to restore order, enforce proper respect for private properey and private rights and obedience to law. If they had burned down bridges, torn up tracks, or gone into passenger cars and assaulted passengers, upon what principle could it be held that as to such acts they were the employees of the defendant for whom it was responsible? If they had sued the defendant for wages for the eleven days when they were thus engaged in blocking its business, no one will claim that they could have recovered.

It matters not if it be true that the strike was conceived and organized while the strikers were in the employment of the defendant. In doing that they were not in its service or seeking to promote its interest or to discharge any duty they owed it; but they were engaged in a matter entirely outside of their employment, and seeking their own ends and not the interests of the defendant. The mischief did not come from the strike from the refusal of the employees to work, but from their violent and unlawful conduct after they had abandoned the service of the defend

ant.

Here upon the facts, which we must assume to be true, there was no default on the part of the defend

ant.

It had employees who were ready and willing to manage its train and carry forward its stock, and thus perform its contract and discharge its duty, but they were prevented by mob violence which the defendant could not by reasonable efforts overcome. That under such circumstances the delay was excused had been held in several cases quite analogous to this, which are entitled to much respect as authorities. Pittsburgh & C. R. Co. v. Hogen, 84 Ill. 36; S. C., 25 Am. Rep. 422; Pittsburgh C. W. L. Ry. Co. v. Hallowell, 65 Ind. 188; S. C., 32 Am. Rep. 63; Bennett v. L. S. & M. S. R. Co., 6 Am. & Eng. Cas. 391; I. & W. L. R. Co. v. Juntgen, 10 Brad w. 295.

The case of Weed v. Panama R. Co., 17 N. Y. 262, and Blackstock v. N. Y. & Erie R. Co., 1 Bosw. 77; affirmed, 20 N. Y. 48, do not sustain the plaintiff's contention here. If in this case the employees of the defendant had simply refused to discharge their duties, or to work, or had suddenly abandoned its service, offering no violence and causing no forcible obstruction to its business, those authorities could have been cited for the maintenance of an action upon principles stated in the opinions in those cases.

We are therefore of opinion that this judgment should be reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.

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J. I. Best and J. H. Baker, for appellees.

ELLIOTT, J. The instrument declared on is a contract. It is a written contract. It cannot be contradicted or varied by parol evidence. The law enters into it as a silent factor, and the obligation implied by law from the language employed is as much part of the contract as though what the law implies had been fully expressed in words. Where there is an express contract, there can be no implied one. An express written contract contains the only competent evidence of the agreement of the parties. There is here an express written contract, and therefore there is no implied one. But this written contract is to be given legal effect, and to give it effect the courts must consider it as embodying all the legal obligations implied from its language. These obligations, we repeat, are part of the written contract. The law imported into the contract does not create an independent agreement, but makes the instrument express the full agreement of the parties. All the words found in a contract are to have a meaning attributed to them, and are not to be thrust aside. We cannot therefore disregard the words found in the contract before us, on deposit in national currency." We know that the words "national currency' denote money, and we know therefore that those words, taken in connection with the words "on deposit," mean that the appellees had received a deposit in money from the appellant's testator. Phelps v. Town, 14 Mich. 373. We know also that the law, as a factor, is an essential part of the contract, and it seems very plain to us that the express agreement of the parties, considered in conjunction with this factor, imports a contract to repay the deposit on demand. Suppose the appellees to have attempted to show by parol that they were not to repay this money, would not the attempt be defeated by the proposition that such a contract cannot be varied by parol evidence? Of this there can be no doubt. Tisloe v. Graeter, 1 Blackf. 352; Hull v. Butler, 7 Ind. 267; Jones v. Clark, 9 id. 341; Príbble v. Kent, 10 id. 325, vide p. 328; Henry v. Henry, 11 Ind. 236; McKernan v. Mayhew, 21 id. 291; Foulks v. Fulls, 91 id. 315.

All contracts have imported into them legal principles, which can no more be varied by parol evidence than the strongest and clearest express stipulations. We have already given one example, that of the days of grace added by force of law to a promissory note. A more striking example perhaps is that supplied by the contract of indorsement, for in such cases, although not a word more than the name of the indorser is written, the contract which the law implies cannot be varied by parol. The authorities all agree that the regular indorsement of a promissory note is as perfect a contract as though the liability which the law implies were written out in full. Smythe v. Scott, 6 N. E. Rep. 145 (November Term). In contracts under seal, as deeds, leases, and the like, covenants are in

*7 N. E. Rep. 763.

grafted into the agreement of the parties by operation of law; and indeed into every conceivable contract the law enters as an essential element.

Into the contract before us the law enters, and makes it an agreement to repay the money received on deposit. As the contract is a written one, not subject to variation by parol evidence, the agreement to repay the money must exist in it, or not exist at all, and surely no just man would assert that one who receives money on deposit, and so states in a written contract, does not undertake to repay it. If he undertakes at all, he does so by his written contract, for there is and there can be no other contract, as all oral negotiations and stipulations are merged in the writing. That, and that alone, expresses the agreement of the parties. Oiler v. Gard, 23 Ind. 212; Cincinnati, etc., R. Co. v. Pearce, 28 id. 502, vide p. 506. The law implies a promise to pay the depositor his money, and where there is a written contract the law conducts this implied promise into the contract as one of its elements, so that the entire contract is a written one. Where there is an effective written contract, there can be no verbal one. Board of Com'rs v. Shipley, 77 Ind. 553; Pulse v. Miller, 81 id. 191. As there is here a written contract into which the law imports a promise to pay, the statute of limitations governing written contracts to pay money is the only one that applies. We thus find that reasoning on elementary principles, the conclusion must be that the contract is a writteu one for the payment of money.

Our conclusion reaches further than that there is an implied promise to pay the depositor his money, for it goes to the extent of affirming that this promise is created by law as an element of the contract, and as such enters into and forms part of the written agreement. We do not regard the promise as an independent one, existing outside of the written contract, but as a promise forming one of the terms of the contract. In short we look upon it as a part of the contract, put there by law, for the parties are presumed to have contracted with reference to the law. The principle on which we proceed is thus stated by Mr. Bishop: "What is implied in an express contract is as much part of it as what is expressed." Bish. Cont., § 121. On this subject the Supreme Court of the United States said: "Undoubtedly necessary implication is as much part of an instrument as if that which was so implied was plainly expressed." Hudson Canal Co. v. Penn. Coal Co., 8 Wall. 276, vide p. 288.

We maintained in our former opinion, as we maintain here, that the law implies a promise to pay back to the depositor his money, and that where there is a written contract stipulating that money has been received on deposit, that promise is an essential part of the written contract itself. It is a promise in the written instrument, and not outside of it. "The acknowledgment of indebtedness on its face implies a promise to pay the plaintiff," said the court in Kimball v. Huntington. 10 Wend. 675. So we say here, an acknowledgment that the money was received on deposit implies a promise to pay it to the depositor, and we hold, as was held in the case cited, that this promise is implied by law as an obligation arising from the language of the contract, thus forming one of its terms. As there is an express contract, and as the promise forms part of the contract, it is a contract for the payment of money, or else it is no contract at all. Once it is granted that the promise to pay back the depositor his money is created by law, then it follows, with absolute, logical certainty, that the promise is as much part of the written instrment as though it were written therein in express words.

The authorities which bear most directly upon the question lead to the conclusion at which we have ar

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rived. We find an able court saying: deposit means, ex vi termini, money placed where the owner can command it at any time." Curtis v. Leavitt, 15 N. Y. 9, vide p. 265. In giving effect to an instrument similar in all material respects to the one before us, that court in a very recent case said:

"Being a deposit, a demand of the money was essential to a cause of action, unless there was a wrongful conversion or loss by some gross negligence on the part of the depositary. The distinction between a deposit and a loan is considered in Payne v. Gardiner, 29 N. Y. 146, and within the rule there laid down the instrument in question was a certificate of deposit." Smiley v. Fry, 100 N. Y. 262; S. C., 3 N. E. Rep. 186.

We referred to Smiley v. Fry as declaring such an instrument to be in the nature of a certificate of deposit, and in this we are, as the quotation we have made shows, sustained by the latest expression upon the question. At another place in the opinion from which we have quoted, it is said: "As the instrument in question was not a promissory note, but a certificate of deposit, the defense of the statute of limitations interposed by the defendant was not available." It is perhaps true that the decision in Hotchkiss v. Mosher, 48 N. Y. 478, is in conflict with the views we have expressed; for it holds, as we understand it, that a certificate of deposit may be contradicted by parol evidence. As the court says: "We are of the opinion that parol evidence was admissible to explain the certificate in the same manner as in the case of a receipt." This ruling is in conflict with our own cases, and with the cases in New York and elsewhere, and cannot be accepted as the law. The case is not a well-considered one, for no authorities are cited in support of the conclusion announced. It is held by many courts, including our own, that an order for property, accompanied by a direction to change its value to an owner, is a written contract containing the promise to pay its value. Garmire v. State, 104 Ind. 444; S. C., 4 N. E. Rep. 54; United States v. Book, 2 Cranch, C. C. 294; United States v. Brown, 3 id. 268; State v. Morgan, 35 La. Aun. 293; State v. Ferguson, id. 1042; Anderson v. State, 65 Ala. 553; Burke v. State, 66 Ga. 157; Peete v. State, 2 Lea, 513; State v. Keeter, 80 N. C. 472; People v. Shaw, 5 Johns. 236; Com. v. Fisher, 17 Mass. 46. The principle which those cases declare is the same as that here involved, for the principle on which they proceed is that the law imports into the order a promise to pay; and that is true of such an instrument as the one now before us.

In the case of White v. President, etc., 22 Pick. 181, the instrument reads thus:

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"Dr. Franklin Bank in Account with B. F. White. Cr. February 10, 1837. "To cash deposited, $2,000. The above deposit to remain until the tenth day of August. "B. F. BUNNELL, "Cashier."

-and this was held to be a promise to pay money at a future day.

In our original opinion we said that the instrument signed by the appellees may not be "just what is known in the commercial world as a certificate of deposit, but it is nevertheless a contract in writing, evidencing the receipt of money on deposit, to which all the legal incidents attach. It is by no means certain whether it it is not a regular certificate of deposit. It is said by a late author, in speaking of certificates of deposit, that "usually they embody an express promise in terms to pay; but even if they do not, they are yet the bank's acknowledgment of its

indebtedness, and so are nearly of the same effect as if they expressly promised payment. Substantially therefore they resemble promissory notes, and the courts have always inclined to regard them as promissory notes; especially when they are made payable otherwise than immediately and upon demand. But this is not a necessary feature. If they are payable at a future day certain, they are simply promissory notes, neither more nor less." Morse Bank. 63.

Our cases, in accordance with the very great weight of authority, hold that a certificate of deposit, written in full and regular form, is a promissory note, and as such negotiable. Gregg v. Union Co. Bank, 87 Ind. 238; Brown v. McElroy, 52 id. 404; National, etc., Bank v. Ringel, 51 id. 393; Drake v. Markle, 21 id. 433. If the instrument we have under consideration had been written out in full, although payable on demand, it would be a promissory note, and it seems, under the principles we have stated, that it is a promissory note, and as such negotiable, for it is well settled that no precise form of words is necessary to constitute a promissory note, as any form that expresses a promise, although not in direct terms, will be sufficient. Thus a written statement that a designated sum is due a person named, or a certificate that a specified sum is due a person designated, or a mere general statement that a certain amount is due, is considered a promissory note, and yet in none of these instances is there

an

express promise to pay. Russell v. Whipple, 2 Cow. 536; Franklin v. March, 6 N. H. 364; Jacques v. Warren, 31 Mo. 28; Cummings v. Freeman, 2 Humph. 145; Bell v. Brewer, 6 Ga. 587, wide p. 589; Hussey v. Winslow, 59 Me. 170; Knight v. Connecticut, etc., Co., 44 Wis. 472; Fleming v. Burge, 6 Ala. 373; Draher v. Schreiber, 15 Mo. 602; Marrigan v. Page, 23 Tenn.

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"Pres. and Treas Local Board of Trustees." Whether the instrument declared on is or is not negotiable is not here an important question, and we need not and do not decide it, for all that the record requires us to decide is that it is a contract, a written contract, and a contract for the payment of money. The character of the instrument, as to negotiability, does not affect the question before us; for as Mr. Morse says, "a certificate of deposit may or may not be made negotiable." Morse Bank. 65.

The authorities we have cited sustain our decision, and it rests on the elementary principle we have expressed in language borrowed from Mr. Bishop. Indeed we do no more than apply to the contract before us the rule declared in Foulks v. Falls, supra, where it was said:

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This agreement being implied by the law as a part of the writer's contract, the averment of it in the complaint, or the proof of it by oral testimony, added nothing to the contract, or to the responsibility of the appellants." 2 Pars. Cont. 54, 515. Reilly v. Cavanaugh, 29 Ind. 435; Weeks, Attorneys, § 259; Skillen v. Wallace, 36 id. 319; Hillegass v. Bender, 78 id. 225; Falmouth, etc., Co. v. Shawhan, 5 N. E. Rep. 410.

If the appellees had inserted the words in this contract, "we promise to pay back the depositor his money," it would not have added to the legal force

and effect of their contract, for what the law implies is in it as it is written. Petition overruled.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

AGENCY ·RATIFICATION GENERAL AGENCY.-A principal who receives and appropriates purchasemoney of land sold by his local agent for him, and rents collected, aud who likewise appropriates repairs made on his real estate by such agent, thereby ratifies the agency, and is estopped from repudiating the action of such agent in any transaction within the general scope of the business. (2) Under such circumstances the agency becomes, not special, but general, and third persons are entitled to actual notice from the principal of any restriction of the agent's authority, though in a special agency the contrary is true. U. S. Cir. Ct., May Term, 1886. Lindroth v. Litchfield. Opinion by Love, J.

CHATTEL MORTGAGE-CROPS TO BE GROWN ON LAND OF MORTGAGOR FILING. - That a chattel mort

on land in

gage of crops to be grown by the mortgagor his possession is valid, must be regarded as settled in this court by Minnesota Linseed Oil Co v. Maginnis, 32 Minn. 193; S. C., 20 N. W. Rep. 85. And this brings us to the remaining question in the case, viz., whether our statute as to filing chattel mortgages is applicable to a mortgage of future crops, the seed of which has not been sown at the time when the mortgage is executed, and which are therefore not then literally in esse. We think it is. The statute (§ 2, ch. 39, Gen. Stats. 1878, as amended by § 1, ch. 38, Laws 1883) reads that every such instrument (chattel mortgage) shall be filed in the town, city or village where the property mortgaged is at the time of the execution of such mortgage." As a literal matter of fact, crops not in esse at the time of the execution of a mortgage cannot be held to be then in any place. But the statute (ch. 39) is intended to apply to all chattel mortgages. "Every mortgage," says section 1, and "every such instrument," says section 2. Clearly it was the design of the Legislature to provide, as respects chattel mortgages in general, an effectual way of dispensing with actual delivery of the mortgaged property as notice of the mortgagee's rights,and to substitute filing in a public office in its place, and with like effect. Keenan v. Stimson, 32 Minn. 377; S. C., 20 N. W. Rep. 364. The statute also proceeds upon the idea that all property which can be the subject of a chattel mortgage has, in contemplation of law, a situs; that is to say, that it is in some town, city or village in which the mortgage can be filed. Now, while the general principle is that the subject of a conveyance, in mortgage, or otherwise, must be something in esse, the theory upou which chattel mortgages of crops to be grown are supported is that they are property having a potential existence, and that the mortgagor, being in possession of the land upon which they are to be grown-that is to say, of the agent which is to produce them, and which has a fixed situshe has a present vested right to have the crops when they come into actual existence. Jones Chat. Mortg., SS 140, 144; Farmers' L. & T. Co. v. Long, B. I. Co., 27 Hun, 89-91; Van Hoozer v. Cory, 34 Barb. 9; and see Wheeler v. Becker (Iowa), 28 N. W. Rep. 40. Minn. Sup. Ct., July 9, 1886. Miller v. Chapel. Opinion by Berry, J.

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENTDESTROYING LEASEHOLD PROPERTY OCCUPIED FOR

SALOON-DUE PROCESS OF LAW.-Where a lease was made of premises to be occupied for the sale of ale, wine and beer, containing a clause that the lease should be forfeited unless so occupied, and before the expiration of the term of said lease the act of the Legislature of Iowa was passed and went into effect prohibiting the sale of ale, beer, etc., and imposing penalties for violating said law, held, that these circumstances presented a Federal question, within the principles of State v. Waldruff, 26 Fed. Rep. 178, and that there is no difference between the destruction of leasehold property and any other kind of property by retrospective legislation, without compensation. U. S. Cir. Ct., S. D. Iowa, June Term, 1886. Mahin v. Pfeiffer. Opinion by Love, J.

CONTRACT-CLAIM FOR SERVICES-FAMILY RELATION -DEGREE OF PROOF.-Claimant, a niece of decedent's wife, was taken into his family when six years of age, clothed and maintained by him as one of his family; she doing the housework until she was twenty-three years of age, when she married and left him. On one occasion her aunt's husband said to her mother that her child should have a good home as long as she lived, and at his death he would provide for her. Held, that as she was the niece of decedent's wife, and treated as one of decedent's family during her stay with them, nothing less than an express contract would be sufficient to sustain a recovery. The case comes almost literally within the decision of this court in Pollock v. Ray, 85 Penn. St. 428. Thus on page 431 we said: "If the declarations had been to the effect that if the plaintiff would remain with him until his death he would then do well by her, or pay her wages, there would be some plausibility in the contention that there was a mutual contract, she to serve him until his death, and he either to provide for her by will or pay her wages. It might possibly have been sustained under the case of Thompson v. Stevens, 71 Penn. St. 161. This was not however pretended to have been the contract. Had she remained until his death, it might perhaps have been implied. But in point of fact she left his service ten years before his death. There was no engagement on her part to remain a day. She might have left immediately, and her case would have stood as strong on the evidence as it is now." In Graham V. Graham's Ex'rs, 34 Penn. St. 475, we held that the parol contract of a decedent to give the plaintiff a certain portion of his estate in consideration of services rendered, even if capable of being enforced, can only be when clearly proved by direct and positive evidence, and when its terms are definite and certain. The testimony in that case was quite as express and positive as in this. As to the length of service, it was very definite, but as to the compensation it was indefinite and uncertain, and for that reason chiefly it was held to be insufficient to sustain the claim. Claims of this nature against dead men's estates, resting entirely in parol, based largely upon loose declarations presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done. We cannot too often repeat the cautions we have so frequently uttered upon this subject, and we feel that the present occasion is one which demands both their repetition and their application. Penn. Sup. Ct., Feb. 15, 1886. Watts' Appeal. Opinion by Green, J.

COURTS-STATE AND FEDERAL COURTS-JURISDICTION-INTOXICATING LIQUORS.-Whether the law of Iowa prohibiting the sale of intoxicating liquors is in violation of the Constitution of the United States, and therefore involving a question of which the Federal

courts have jurisdiction, is involved in so much doubt that the Federal courts will not assume jurisdiction, but will remand the case to the State courts, since no material rights will thereby be affected. U. S. Cir. Ct., S. D. Iowa, June Term, 1886. Kessinger v. Vanatta; Deimer v. Franz. Opinion by Love, J. [27 Fed. Rep. 80.]

CRIMINAL LAW-TWICE IN JEOPARDY

DISCHARGE

OF JURY.-A party is not entitled to an acquittal where he has been put in jeopardy, and by his own motion, or with his consent, the jury before whom he stood has been discharged. Article 6, § 29, of the Constitution of this state declares: "No person, after acquittal upon the merits, shall be tried for the same offense." After a jury has been impaneled and sworn, any discharge thereof without sufficient cause operates as an acquittal, in that it effectually bars another and effect such discharge must have been made withtrial for the same offense. But to have this operation out the consent, express or implied, of the respondent 155; State v. Garvey, 42 Conn. 232; Spencer v. State, 15 Joy v. State, 14 Ind. 139; Stewart v. State, 15 Ohio St. Kee, 1 Bail. 651; Com. v. Sholes, 13 Allen, 555; 1 Bish. Ga. 562; Rex v. Stokes, 6 Car. & P. 151; State v. McCrim. Law, § 998, and cases cited in notes 4 and 5, and note 1, p. 600. The respondent had a right to one trial before a fair and impartial jury. He had announced himself satisfied with the jury first impanelled, and it and a new one impanelled. There were but two poswas upon his objection that this jury was discharged, sible courses for the court to pursue at the time this objection was made by the respondent: One was to go on against the respondent's objection, and try the cause before the jury then impanelled; and the other was to accede to the objection made, and discharge the jury. The discharge of the jury, under the circumstances of the case, must be deemed to have been done upon the request of the respondent, and with his jection was sustained, and the discharge of the jury consent. He has no right to complain that his obwith his consent cannot be set up as an acquittal. The nally filed, and the conviction followed upon the issue issue stood upon the information and plea as origithus made. Mich. Sup. Ct., July 1, 1886. People v. Gardner. Opinion by Champlin, J.

EVIDENCE-STATEMENT OF CONDUCTOR AFTER ACCIDENT.-A written statement made by the conductor of a car, in the line of his duty, giving details of the accident, immediately after it happened, is not admissible in evidence, but the facts must be proved by the conductor or others who witnessed the occurrence. When the paper was offered in evidence the court asked counsel in what view of the case he thought the evidence competent, to which question answer was made, that the offer of the paper was a statement made immediately after the accident by a person in performance of his duty. The court did right in refusing to admit the paper in evidence. The conductor was a witness and could have given his version of what was said and done under oath. He might perhaps have used the written statement made through his dictation in his presence, to refresh his memory, but the paper itself was not legal evidence. It was not made under oath, and if it turned out that the statement was not true, an indictment for perjury N. J. Sup. Ct., July 19, 1886. North Co. v. May. Opinion by Parker, J.

would not lie.
Hudson Co. R.

MARRIAGE-DIVORCE A MENSA ET THORO-CRUELTY OF TREATMENT-DELUSION.-Evidence that the husband has, without cause accused, and still persists in accusing, his wife of the crime of incest with her son; that he has at times struck her; that he stealthily

watches her; and by his general conduct affords her reasonable grounds for believing her life in peril while with him, makes out a sufficient case to warrant a decree of divorce a mensa et thoro, even though the husband does not appear to be entirely sane. Counsel claims that defendant is under an insane delusion about his wife and his son; that he is mentally excitable, of weak physical health, that his wife never was in danger from him, nor did she fear him, or have any reasonable grounds to fear; that she prefers her son to her husband, and has provided him with money to become a rival to his father in business. As to her fear of him, this is opposed by her evidence; for she testifies that she was alarmed while with him, and afraid to live with him alone without some one to protect her. She offered to return to him if the servant whom she had had at the time she left could be with her, without Kendall, but he refused. If she did not fear him while she remained with him, aud was even willing to return to him, she showed in my judgment more devotion and courage than discretion; and if this court should say it is still her duty to go back, and live alone with him, it could not be without the reasonable apprehension that she might be injured; and whether she suffered bodily harm from his insane delusion, hatred, or mental excitability, the effect to her would be the same. His foul suspicion, which continues, would be both an insult and a menace to her, so long as she remained with him, and within his power to hurt her. He is not wholly insane, according to the evidence. His is not a case of dementia for which he is not responsible. In 1880, from April to July, just before he made this charge, he went alone to Europe, and he has always transacted his business with more than ordinary prudence and ability. His answers on the witness stand in this case do not indicate a want of intelligence as to his interests or his position, except in the case of his charges against his wife and son of criminality; but they show his willfulness, to which he evidently thinks his wife and son must always submit themselves. In Hall v. Hall, 3 Swab. & T. 347, the ordinary said: "The sources of the husband's conduct are for the most part immaterial. Thus I have no doubt that cruelty does not cease to be a cause of suit if it proceed from violent or disorderly affections,' as is said in one case; or from 'violence of disposition, want of moral control, or eccentricity,' as said in another; or from liability to become excited in controversy,' in the language of a third. But madness, dementia, positive disease of the mind, this is quite another matter. An insane man is like enough to be dangerous to his wife's personal safety, but the remedy lies in the restraint of the husband, not the release of the wife." I think the chancellor was right in this case (33 N. J. Eq. 461) when he said a distinction is to be made between a case of insane delusion, such as this is alleged to be, and a case where the husband is shown to be insane generally. In the latter case the wife may obtain protection through appropriate proceedings to cause her husband to be declared a lunatic. But how can this wife restrain her husband so that his delusion, suspicion, or hatred of his son, and of her also, shall work her no harm? Or who will say that there is not a reasonable apprehension that he may do her bodily injury, if she shall return to him, as he demands, alone? If this be her position, then she is entitled to the protection of the court, and a judicial separation should be allowed her. N. J. Ct. of Errors and App., Nov., 1885. Smith v. Smith. Opinion by Scudder, J.

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Where an employer furnishes suitable materials, and employs competent carpenters, to construct scaffolding, to be used by them in putting the cornice upon a building, and the same scaffolding is subsequently used by painters hired to paint the cornice, held, that the carpenters who constructed the scaffolding and the painters are fellow-servants, and that the employer is not liable for injuries caused to one of the painters by the breaking of the scaffolding. The case nearest like the one under consideration is that of Coughtry v. Globe Woolen Co., 56 N. Y. 124. In that case the defendants entered into a contract with Osborn & Martin to build a mill. By the contract, if scaffolding or stagings were required in putting up the cornices, they were to be furnished without expense to the contractors. Defendant's employees erected a scaffold for the purpose of the work, and plaintiff's intestate, who was employed by Osborn & Martin, was at work upon the scaffold which owing to defective construction, gave way, and he fell and was killed. It will be noticed that plaintiff's intestate and the employees of defendant were not fellow-servants, and from liability arising from the negligence of a fellowtherefore the rule of law which exempts the master servant could not apply. That element of defense being eliminated, the defendant was very justly held liable for the acts of his servants in erecting an insufficient structure upon his own premises, which was furnished for the very purpose of being used by the plaintiff's intestate. In this case the scaffold was erected by the carpenters for their purpose in building the cornice. They were the persons most interested in building it safe and strong. They had worked upon it for three weeks, and the evening before the accident three men were at work putting up a heavy bracket at the point which fell the next morning, with the weight of but two men upon it, and it bore them safely up. It gave way on the morning after the carpenters had finished using it, for some unexplained The evidence showed that one of the steps that held the foot of one of the brackets had become loosened from the floor to which it was nailed, thus letting the bracket pitch forward, and the plank slide off; but no reason is given why the fastening should give out at this particular time. Evidence was introduced to show that the scaffold might have been made stronger by supporters from the ground, to which the horizontal piece of the bracket might have been fast. ened; but no reason was given, or evidence introduced to show, why the scaffold, as it was constructed, which proved to be sufficiently strong and safe to support the carpenters, would not be equally secure and sufficient to support the painters. It is difficult to see how the defendants neglected any duty which they owed to the plaintiff under the circumstances of the case. They had not undertaken to build this scaffold for the use of the painters, and had not invited them to go upon it. It was there for another purpose, and it was the duty of the painters to ascertain if it would answer their purpose, and of this they were better qualified to judge than defendants. Mich. Sup. Ct., July 15, 1886. Hoar v. Merritt. Opinion by Champlin, J.

reason.

MORTGAGE-ASSIGNEE TAKES SUBJECT TO EQUITIES -POWER OF SALE-PURCHASER TAKES RISK.-(1) The assignee of a mortgage or deed of trust does not occupy the position of an assignee of commercial paper, but takes and holds it subject to all the equities that could have been urged against it in the hands of the original holder. Olds v. Cummings, 31 Ill. 188; Walker v. Dement, 42 id. 272; Cramer v. Willetts, 61 id. 481; Haskell v. Brown, 65 id. 29. In this case John W. Johnson had no interest in the land. He had a mere

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