and it being understood when the contract is let, that Chinese labor shall not be employed, the reasonable inference is, that parties make their bids accordingly. The demurrer is sustained and the restraining order vacated.

J. G. Chapman, for complainants.

F. O. McCowan and J. C. Mooreland, for defendant.

Gompertz v. Bartlett, 24 Eng. Law & Eq. 156; Terry v. Bissell, 26 Conn. 23; Merriam v. Wolcott, 3 Allen, 259; Aldrich v. Jackson, 5 R. I. 218; Lobdell v. Baker, 3 Metc. 469; 1 Add. on Cout. 152; Ellis v. Wild, 6 Mass. 321; Eagle Bank v. Smith, 5 Conn. 71; Shaver v. Ehle, 16 Johns. 201: Dumont v. Williamson, 18 Ohio St. 515; 2 Parsons on Notes and Bills, ch. 2, § 2.

But in the case at bar the signature of the maker was genuine. The objection is that it was never his

INDORSEMENT WITHOUT RECOURSE.

SUPREME COURT OF KANSAS, JUNE, 1879.

CHALLIS V. MCCRUM.

One who transfers a note by indorsement without recourse, impliedly warrants that the prior signatures to the paper are genuine, and that it expresses upon its face the exact legal obligations of all such prior parties.

THE

facts are stated in the opinion.

BREWER, J. On December 4, 1871, plaintiff in error loaned one Edward A. Ege $250 and took his note therefor in the sum of $265, payable to Richard Probasco or bearer, and secured by mortgage. Long after its maturity and in 1876, several payments having been made thereon in the meantime, plaintiff in error sold the note for its then face value to defendant in error. At the time of such sale he indorsed it "without recourse, W. L. Challis." McCrum sued on the note. Ege pleaded usury. The plea was sustained and McCrum recovered $229.90 less than the face value of the note, for which sum he brought this action. A demurrer to the petition was overruled, and this ruling is now presented for review. Can the action be sustained? Of course no action will lie on the indorsement, for by his written contract Challis expressly declined to assume the liabilities of an indorser. If sustainable at all, it must be as against him as a vendor and not as an indorser, and upon the doctrine of an implied warranty. The theory of the defendant in error is that every vendor of a bill, bond or note impliedly warrants that it is what it purports on its face to be, the legal obligation of the parties whose names appear on the instrument, and that the character of the indorsement, or the lack of an indorsement, in no manner affects this implied warranty. On the other hand, the counsel for plaintiff in error lays down the broad proposition that "there is no such thing as implied warranty in the sale of chattels," and that in the absence of express warranty the maxim caveat emptor is of universal application. It is clear that the character of the indorsement cuts no figure in the question. As stated, no action will lie on it. But further, the restriction is only as to his liability as indorser, and in no manner affects his relation to the paper as vendor. An unqualified indorsement is the assumption of a conditional liability. The indorser becomes a new drawer and is liable on the default of the drawee. "Without recourse "does away with this conditional liability. It leaves the indorsement simply as a transfer of title and the indorser liable only as a vendor. Yet it leaves him a vendor and divests him of none of the liabilities of a vendor. It makes the transaction the equivalent of a delivery of paper payable to bearer and transferable by delivery. Hannum v. Richardson, 48 Vt. 508. Independent, therefore, of any matter of indorsement, what implied warranty is there in the transfer of a promissory note? Two things are clear under the authorities: 1st, that there is an implied warranty of the genuineness of the signatures; and 2d, that there is no warranty of the solvency of the parties. It is unnecessary to more than refer to a few of the authorities upon these propositions. Byles on Bills, 123, 125, and cases in notes; Jones v. Ryde, 5 Taunt. 488; Gurney v. Womersley, 4 Ell. & Bl. 133;

ported to be. How far is there any implied warranty in this respect? A reference to some of the leading cases will throw light upon this question.

In Thrall v. Newell, 19 Vt. 203, it appeared that one of the makers of a note was insane. The vendor made a written assignment, in which was a description of the note, and the court construed this as an express warranty that the instrument was the legal obligation of the apparent makers, and one being incapable of contracting gave judgment against the vendor on account of this breach for the amount received by him. While the judgment of the court is rested upon the fact of an express warranty, the judge who writes the opinion expresses his individual conviction that the same result would follow ou a mere transfer without any express warranty, and quotes approvingly an extract from Rand's edition of Long on Sales, that "there is an implied warranty in every sale that the thing sold is that for which it was sold." In Lobdell v. Baker, 3 Metc. 469, it appeared that the owner of a note procured the indorsement of a minor and then put the paper in circulation. He was held liable to a subsequent holder. Chief Justice Shaw, delivering the opinion of the court, says: "Whoever takes a negotiable security is understood to ascertain for himself the ability of the contracting parties, but he has a right to believe without inquiring that he has the legal obligation of the contracting parties appearing on the bill or note. Unexplained the purchaser of such a note has a right to believe upon the faith of the security itself that it is indorsed by one capable of binding himself by the contract which an indorsement by law imports."

In Hannum v. Richardson, 48 Vt. 508, a note was given for liquor sold in violation of law, and was by statute void. Defendant knew its invalidity, transferred it by an indorsement without recourse, and he was held liable to his vendee. In Delaware Bank v. Jarvis, 20 N. Y. 226, a usurious note was sold and the vendor was adjudged liable, not merely for the money received by him, but also the costs paid by his vendee in a suit against the makers on the note. In the opinion Mr. Justice Comstock used this language: "The authorities state the doctrine in general terms that the vendor of a chose in action, in the absence of express stipulation, impliedly warrants its legal soundness and validity. In peculiar circumstances and relations the law may not impute to him an engagement of this sort. But if there are exceptions, they certainly do not exist where the invalidity of the debt or security sold arises out of the vendor's own dealing with or relation to it. In this case the defendant held a promissory note which was void because he himself had taken it in violation of the statutes of usury. When he sold the note to plaintiff and received the cash therefor, by that very act he affirmed in judgment of law that the instrument was unattainted, so far, at least, as he had been connected with its origin." In Young v. Cole, 3 Bing. N. C. 724, certain bonds were sold as Guatemala bonds, which turned out afterward to be lacking the requisite seal, and the vendor, though ignorant of the defect and innocent of wrong, was compelled to refund the money. The thing in fact sold was not the thing supposed and intended to be sold.

In Gampertz v. Bartlett, 24 Eng. Law & Eq. 156, the plaintiff discounted for the defendant an unstamped

bill purporting on its face to have been a foreign bill drawn at Sierra Leone and accepted in London, but which was in fact drawn in London. If actually a foreign bill, it required no stamp and was valid, but being an inland bill, it required a stamp to make it a valid bill in a court of law. The acceptance was genuine, and the acceptor had previously paid similar bills. But the acceptor becoming bankrupt, the commissioner refused to allow it against his estate because not stamped. Thereupon plaintiff, who had sold the bill and been compelled to take it up, brought his action to recover the price he had paid for it, and the action was sustained. Lord Campbell, before whom the case had been tried, and who then held adversely to the plaintiff, said: "I then thought that the rule caveat emptor applied; but after hearing the argument and the authorities cited, I think the action is maintainable, and upon this ground, that the article sold did not answer the description under which it was sold. If it had been a foreign bill, and there had been any secret defect, the risk would have been that of the purchaser; but here it must be taken that the bill was sold as and for that which it purported to be. On the face of the bill it purported to be drawn at Sierra Leone, and it was sold as answering the description of that which on its face it purported to be. That amounted to a warranty that it really was of that description."

In Ticonic Bank v. Smiley, 27 Me. 225, an overdue note was transferred, and with this indorsement: "Indorser not holden," yet it was decided that the indorser was liable to his vendee for any payment made on the note before the transfer, or any set-off existing against it, of which the note gave no indication and the vendor no information.

In Snyder v. Reno, 38 Iowa, 329, it was held that there is an implied warranty that there has been no material alteration in the paper since its execution. The court says: "We have no doubt that there is an implied warranty of the transferor that there is no defect in the instrument, as well as that the signature of the maker is genuine." See, also, Blethen v. Lovering, 58 Me. 437; Ogden v. Blydenburgh, 1 Hilt. 182; Fake v. Smith, 2 Abb. (N. Y. App.) 76; 2 Parsons on Notes and Bills, ch. 2, § 2, and cases in notes; Terry v. Bissell, 26 Conn. 23; 1 Daniels on Neg. Instruments, $ 670.

In this the author thus states the law: "When the indorsement is without recourse the indorser specially declines to assume any responsibility as a party to the note or bill; but by the very act of transferring it he engages that it is what it purports to be- the valid obligation of those whose names are upon it. He is like a drawer who draws without recourse; but who is, nevertheless, liable if he draws upon a fictitious party or one without funds. And, therefore, the holder may recover against the indorser without recourse: (1) If any of the prior signatures were not genuine, or (2) if the note was invalid between the original parties because of the want or illegality of the consideration; or if (3) any prior party was incompetent; or (4) the indorser was without title."

These authorities fully sustain the ruling of the District Court. The note was not the legal obligation of the maker to the full amount. As to the usurious portion it was as if it were no note.

This was a defect in the very inception of the note. It was known to the vendor and arose out of his own dealings in the matter. By all these authorities there is an implied warranty against such a defect, and the vendor is liable for a breach thereof.

The suggestion of counsel that the change in the usury law by the legislation of 1872 affected the right of recovery upon the note has been already decided adversely in the case of Jenness v. Cutler, 12 Kans. 500.

Judgment will be affirmed. All the justices concurring.

NEW TRIAL FOR INSUFFICIENT DAMAGES. ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, JUNE 20, 1879.

PHILLIPS V. SOUTH-WESTERN RAILWAY COMPANY. A plaintiff complaining of a personal injury is entitled to compensation for the pain undergone, the effects on the health according to degree and probable duration, the incidental expenses, and the pecuniary loss; and if it appear that a jury must have omitted to take into account any of these heads of damages, and that the verdict is, under the circumstances, unreasonably small, it is competent to a court to order a new trial at the instance of the plaintiff, although there be no misdirection by the judge, nor mistake or misconduct on the part of the jury.

THIS was an action for damages caused by personal injuries resulting from an accident on the defendants' railway, tried before Field, J., and a special jury, of the city of London, at the beginning of April, 1879.

The plaintiff was a London physician, who, in December, 1877, when at the age of forty-six, was so injured whilst travelling on the defendants' line, as to be utterly incapacitated, both physically and mentally, from pursuing his profession; and his life, according to the medical evidence, must in a very short time be lost in consequence.

The average of his net professional income for the ten years preceding the accident, after large deductions for the expense of making the income, was £5,000 a year. The medical attendance upon the plaintiff had been gratuitous, but it was estimated that £1,000 was the expense incurred before the trial by reason of the accident. The plaintiff was in the enjoyment of a private income of £3,500 a year.

The jury found a verdict for the plaintiff on the question of the defendants' negligence, and assessed the damages at £7,000.

A rule nisi for a new trial had been obtained on the plaintiff's behalf on the grounds that the judge had misdirected the jury in saying that they were not to attempt to give the plaintiff an equivalent for the injury he had suffered, and that the damages were insufficient.

Ballantine, Serg't, and Dugdale, for the railway company, showed cause against the rule, citing Forsdike and Wife v. Stone, L. R., 3 C. P. 607; Falvey v. Stanford, L. R., 10 Q. B. 54; Rowley v. London and NorthWestern Railway Co., L. R., 8 Ex. 221; Mayne on Damages, 447; Armytage v. Haley, 4 Q. B. 917; Hayward v. Newton, 2 Str. 940; Rendall v. Hayward, 5 Bing. N. C. 424; Kelly v. Sherlock, L. R., 1 Q. B. 686.

The Attorney-General (Sir J. Holker, Q. C.), Pope, Q. C., and A. L. Smith, supported the rule, citing Pym v. Great Northern Railway Co., 2 B. & S. 768, 769.

COCKBURN, C. J., delivered the judgment of himself and LOPES, J. This was an action brought by the plaintiff to recover damages for injuries suffered, when travelling on the defendants' railway, through the negligence of their servants. A verdict having passed for the plaintiff, with £7,000 damages, an application is made to this court for a new trial, on behalf of the plaintiff, on the ground of the insufficiency of the damages, as well as on that of misdirection, as having led to an insufficient assessment of damages; and we are of opinion that the rule for a new trial must be made absolute; not, indeed, on the ground of misdirection, for we are unable to find any misdirection, the learned judge having in effect left the question of damages to the jury, with a due caution as to the limit of compensation, though we think it might have been more explicit as to the elements of damages. It is ex

tremely difficult to lay down any precise rule as to the measure of damages in cases of personal injury like the present. No doubt, as a general rule, where injury is caused by the wrongful or negligent act of another, the compensation should be commensurate to the injury sustained. But there are personal injuries for which no amount of pecuniary damages would afford adequate compensation; while, on the other hand, the attempt to award full compensation in damages might be attended with ruinous consequences to defendants, who cannot always, even by the utmost care, protect themselves against the carelessness of persons in their employ. Generally speaking, we agree with the rule as laid down by Brett, J., in Rowley v. London and North-Western Railway Company, L. R., 8 Ex. 231, an action brought on the 9 and 10 Vict., ch. 93, that a jury in these cases "must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider, under all the circumstances, a fair compensation." And this is in effect what was said by Field, J., to the jury in the present case. But we think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. There are the bodily injury sustained, the pain undergone, the effect on the health of the sufferer, according to its degree and its probable duration, as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure, or to lessen the amount of injury; the pecuniary loss sustained through inability to attend to a profession or business, which again may be of a temporary character, or may be such as to incapacitate the party for the remainder of his life. If a jury have taken all these elements of damage into consideration, and have awarded what they deemed to be fair and reasonable compensation under all the circumstances of the case, a court ought not, unless under very exceptional circumstances, to disturb their verdict. But, looking to the figures in the present case, it seems to us that the jury must have omitted to take into account some of the heads of damage which were properly involved in the plaintiff's claim. The plaintiff was a man of middle age and of robust health. His health has been irreparably injured, to such a degree as to render life a burden and source of the utmost misery. He has undergone a great amount of pain and suffering. The probability is that he will never recover. His condition is at once helpless and hopeless. The expenses incurred by reason of the accident have already amounted to £1,000. Medical attendance still is, and is likely to be for a long time, necessary. He was making an income of £5,000 a year, the amount of which has been positively lost for sixteen months, between the accident and the trial, through his total incapacity to attend to his professional business. The positive pecuniary loss thus sustained all but swallows up the greater portion of the damages awarded by the jury. It leaves little or nothing for health permanently destroyed and income permanently lost. We are, therefore, led to the conclusion not only that the damages are inadequate, but that the jury must have omitted to take into consideration some of the elements of damage which ought to have been taken into account. It was contended on behalf of the defendants that, even assuming the damages to be inadequate, the court ought not on that account to set aside the verdict and direct a new trial, inadequacy of damages not being a sufficient ground for granting a new trial in an action of tort, unless there has been misdirection, or misconduct in the jury, or miscalculation, in support of which position the cases of Rendall v. Hayward, 5 Bing. N. C. 424, and Forsdike v. Stone, L. R., 3 C. P. 607, were relied on.

But in both those cases the action was for slander, in which, as was observed by the judges in the latter case, the jury may consider not only what the plaintiff ought to receive, but what the defendant ought to pay. We think the rule contended for has no application in a case of personal injury, and that it is perfectly competent to us, if we think the damages unreasonably small, to order a new trial at the instance of the plaintiff. There can be no doubt of the power of the court to grant a new trial where in such an action the damages are excessive. There can be no reason why the same principle should not apply where they are insufficient to meet the justice of the case. The rule must, therefore, be made absolute for a new trial.

Judgment for plaintiff.

PRACTICE-SECURITY FOR COSTS-PLAIN

TIFF TEMPORARILY RESIDENT
IN ENGLAND.

ENGLISH COURT OF APPEAL, MAY 27, 1879.

REDONDO V. CHAYTOR.

A plaintiff, who is a foreigner, domiciled abroad, and has come to England for the purpose of bringing an action, and intends to leave England as soon as the action is decided, cannot be compelled to give security for costs.

THE

HE action was brought by the plaintiff, who was a foreigner, against the defendants, as executors of a person named John Foster, to recover certain arrears of an annuity, which were alleged to have been due from the testator to the plaintiff. The statement of claim alleged that Mr. Foster entered into an agreement with the plaintiff, by which it was provided that in consideration of the plaintiff going abroad, and continuing to reside abroad, Mr. Foster was to pay her an annuity as long as she lived. The statement of claim further alleged that the plaintiff had resided abroad since the making of the agreement, until she came to this country, temporarily, for the purpose of the present action. From the affidavits, which were filed, the court came to the conclusion that the plaintiff was in this country bona fide for the purpose of carrying on the action, but only temporarily, and intended to go abroad again when the action was decided. On the application of the defendants, Lindley, J., made an order at chambers that the plaintiff should give security for costs.

This order was rescinded by the Common Pleas Division, and the defendants appealed.

Fullerton, for the defendants, cited Goodwin v. Archer, 2 P. Wms. 452; Adderly v. Smith, 1 Dickens, 355; Duke de Montellano v. Christin, 5 M. & S. 503; Ainslie v. Sims, 17 Beav. 57; Pray v. Edie, 1 T. Rep. 267; Ciragno v. Hassan, 6 Taunt. 20; Jacobs v. Stevenson, 1 B. & P. 96; Anon., 8 Taunt. 737; Oliva v. Johnson, 5 B. & Ald. 908; Naylor v. Joseph, 10 J. B. Moore, 522; Dowling v. Harman, 6 M. & W. 131; Tambisco v. Pacifico, 7 Ex. 816; 21 L. J. 276; Ex.; St. Leger v. Di Nuovo, 2 Scott, N. R. 587; Cambottie v. Inngate, 1 W. R. 533; Swinbourne v. Carter, 22 L. T. Rep. (O. S.) 123; 2 W. R. 80; Swanzy v. Swanzy, 4 K. & J. 237; Raeburn v. Andrews, 30 L. T. Rep. (N. S.) 15; L. Rep., 9 Q. B. 118; Westenberg v. Mortimore, 32 L. T. Rep. (N. S.) 402; L. Rep., 10 C. P. 438.

Lumley Smith, for the plaintiff, cited Calvert v. Day, 2 Y. & C. Ex. 217.

THESIGER, L. J. I have been asked to deliver judgment first, although there is no difference in the result at which the members of the court have arrived. The case comes before us as an appeal by the defendant from an order of a divisional court, rescinding an order of Lindley, J., by which the plaintiff had been

directed to give security for costs. The action is brought against the executors of a person named Foster, to recover certain arrears of an annuity alleged to be payable to the plaintiff under an agreement, by which Mr. Foster, in consideration of the plaintiff going and residing abroad, agreed to pay her an annuity for as long as she might live. The statement of claim alleges that the plaintiff has resided abroad since the making of the agreement, until she came temporarily to this country for the purpose of the present action; and it is out of the statement of claim, and on the affidavits which have been filed, that the question of security for costs arises. It is sufficient to say that, in my opinion, the true inference to be drawn from the facts is that the plaintiff is bona fide here for the purpose of this action, but is only temporarily here, and if the action is determined in her favor, will certainly leave this country, and very probably, if the action is determined against her, will leave the country under such circumstances as to prevent the defendants from successfully issuing protests for the costs of this action. Therefore, unless there is a settled practice that under such circumstances a plaintiff cannot be ordered to give security for costs, there is some reason why the plaintiff in this case should be called upon to give security. But the Common Pleas Division have decided that the established rule of practice is that, whether the plaintiff be a foreigner or an Englishman, where he is resident in this country at the time of the application for an order for security for costs, though only temporarily so resident, the courts have no power to require him to give security. I think this decision is right, and in order to show that it is so, it is necessary to go into the cases which have been referred to on the point. In favor of the view that a plaintiff who is temporarily resident within the jurisdiction cannot be compelled to give security for costs there are five cases in which the point has been decided. In 1815, Ciragno v. Hassan, 6 Taunt. 20; in 1819, an Anonymous case, 8 id. 737; in 1827, Willis v. Garbutt, 1 Y. & J. 511; in 1840, Dowling v. Harman, 6 M. & W. 131; and in 1852, Tambisco v. Pacifico, 7 Ex. 816. So far I have only referred to the authorities at common law, and in addition to these decisions the textbooks at common law practice, viz., Chitty's Archbold's Practice, vol. 2, p. 1415, 12th ed., and Lush's Practice, vol. 2, p. 931, 3d ed., state the rule to the same effect, though some doubt is expressed, because there have been decisions to the contrary. Three decisions have been cited in argument, which were supposed to be contrary to the conclusion at which the court below has arrived; but two of these cases, when examined, appear to be no authority for the proposition to support which they were cited. These are Naylor v. Joseph, 10 J. B. Moore, 522, and Gurney v. Key, 3 Dowl. P. C. 559; for in both those cases, though the plaintiffs may have been within the jurisdiction of the court when the actions were brought, yet it is clear that when the applications for security for costs were made they were out of the jurisdiction. Therefore, there is only one case which is really in favor of the contention that security for costs can be ordered in a case like the present, and that is Oliva v. Johnson, 5 B. & A. 908, decided in 1822. That case was decided by the Court of Queen's Bench after Ciragno v. Hassan, 6 Taunt. 20, and the Anonymous case, 8 Taunt. 737, had been decided in the Common Pleas, and neither of these cases were cited. But when the point came before the Court of Exchequer in 1840, in Dowling v. Harman, 6 M. & W. 131, although Oliva v. Johnson was not cited, yet (as pointed out by Martin, B., in Tambisco v. Pacifico, 7 Ex. 816) it is clear that it must have been in the mind of one of the judges at least, for Parke, B., who took part in the decision in Dowling v. Harman, had been counsel in Oliva v. Johnson; and, besides, when the

point came again before the Court of Exchequer in Tambisco v. Pacifico, Oliva v. Johnson was cited, and notwithstanding that decision, the court followed what seems to me to be, with one exception, the unanimous view that has been taken, and decided that security for costs could not be ordered; and in all the cases, except Oliva v. Johnson, it may be observed that the courts did not deal with the question as if they had to decide whether security for costs might reasonably be ordered, but in all these cases they have decided on the settled practice of the courts. That is how the question stands, so far as the common-law authorities are concerned, and it seems impossible, on that state of the decisions, to hold otherwise than as the Common Pleas Division have held. But Mr. Fullerton says that there are some cases in equity which are in conflict with their decision. The first of these cases is Ainslie v. Sims, 17 Beav. 57, decided in 1853. No doubt in that case the rule previously laid down in the common-law courts was not followed by the Master of the Rolls, but none of the common-law authorities were cited, and, moreover, in the previous year, Tambisco v. Pacifico was decided, which was directly contrary; besides which, in the same year (1853) there was a decision to the contrary in Chancery (Cambottie v. Inngate, 1 W. R. 533), where Wood, V. C., called attention to the common-law authorities, and pointed out that they had not been referred to before the Master of the Rolls, and said that for that reason he did not feel bound to follow the decision in Ainslie v. Sims. He says: "By the comity of nations a foreigner, while in this country, was entitled to the same relief in a court of justice as a British subject; on quitting the country the same security could be demanded from both of them. In Willis v. Garbutt, 1 Y. & J. 511, Alexander, C. B., said, 'no one can have security for costs until his opponent has quitted the country.' But it is said that, although Wood, V. C., took that view in 1853, he took a different view in 1858 in Swanzy v. Swanzy, 4 K. & J. 237. I have seen the report of that case and it seems to me that the Vice-Chancellor did not withdraw from the view he took in 1853, nor did he express any opinion to the effect that the decision in Ainslie v. Sims was right. It seems to me that Swanzy v. Swanzy was decided upon a totally different principle from that suggested on behalf of the defendants in the present case; that is, that when a plaintiff, whether a foreigner or an Englishman, who is temporarily resident in this country, in order to mislead the defendant, either conceals his address, or gives a false address, or lives at his residence under a false name, under such circumstances the conduct of the plaintiff is in the nature of a fraud on the court, and therefore he will be ordered to give security for costs. In Fraser v. Palmer, 3 Y. & C. Ex. 280, Alderson, B., said: “If a plaintiff gives the right description of his place of abode when he files his bill, his circulating about afterward is immaterial unless he goes abroad. He is still open to the process of the court. It is a different thing if he makes a false statement as to his residence; he is then guilty of a fraud on the court, and on that ground is made to give security for costs. It cannot be contended that a person is to give that security on the mere ground that he is in the habit of moving from place to place. The evident meaning of Lord Abinger's dictum in Calvert v. Day is this, that it is no excuse for a man to say that he is a hawker and peddler in order to give a false description as to his place of residence." Therefore that explains the meaning of the Vice-Chancellor in Swanzy v. Swanzy, and shows that Calvert v. Day, 2 Y. & C. Ex. 217, the peddler's case, is no authority on the present point. So stand the authorities, and therefore it seems to me that there is no course open to us except to dismiss this appeal. We are not called upon to say what, if

the matter were res integra, would be the proper rule, but only to say whether the court below has acted rightly or wrongly in the view which they have taken as to what the rule of practice is. But, as I believe one member of the court has a strong feeling that the present rule is unreasonable, I shall say a few words as to my own view of the matter. From one point of view, if it is clear that a man will leave the country before any execution against him can be satisfied, it would appear unreasonable to hold, from the mere fact that he is temporarily resident within the jurisdiction, that he ought not to be called upon to give security for costs. It is clear that in the converse case no such hard and fast rule exists, for, although generally a plaintiff resident out of the jurisdiction can be called upon to give security for costs, yet it has been held that when he is only temporarily out of the jurisdiction, and his permanent residence is within the jurisdiction, and there is every probability of his returning, the court will not compel him to give security. Again, if a plaintiff, who is permanently resident out of the jurisdiction, but has property within the jurisdiction which can be made subject to the process of the court, in such a case, the reason of the rule being withdrawn, the rule gives way, and the court will not order security to be given. It might fairly be said that the converse ought to hold good, and that where the court sees every probability of the plaintiff going out of the jurisdiction, if he should fail in his action, before the process of the court could be executed against him, this should be considered good ground for ordering security for costs; on the other hand, however, it is neither convenient nor proper to extend the cases in which plaintiffs are compelled to give security for costs. Although I cau see some strong reasons why a change in the rule might be beneficial, I do not wish to be understood as giving an opinion in favor of a change.

BAGGALLAY, L. J. The authorities both at common law and in the Chancery courts have been so fully explained by Thesiger, L. J., that I only wish to make a few observations with reference to the case of Swanzy v. Swanzy. In all proceedings in chancery it was always necessary for the plaintiff or petitioner to state his residence accurately and fully, and, as a general principle, independently of whether the plaintiff was a foreigner or not, or was temporarily or permanently resident within the jurisdiction of the court, it was sufficient ground for ordering him to give security for costs if his residence was not truly and accurately stated on the bill when it was filed. In Swanzy v. Swanzy the plaintiff had taken lodgings in one place and had then gone to live in another place, in both cases under a name which was not really her true name. That clearly amounted to a failure to give the description required, and that alone was sufficient to cause the court to order security for costs to be given, quite irrespective of the question of the plaintiff being a foreigner. I may add, that I think the principle always acted on, except in one or two cases, is that laid down by Wood, V. C., in Cambottie v. Inngate.

BRAMWELL, L. J. The question is as to what the practice of the court is, and I cannot disagree with the judgment of the court, for I think that it is as Thesiger, L. J., has laid it down. I must admit that I formerly thought it was otherwise, and I wish we could alter it. If one looks at what is to be guarded against, it is the possibility of the defendant, if he should hereafter be successful, losing the fruits of his judgment; but, as the practice stands, we do not inquire whether in all probability the plaintiff or his goods will be here after judgment, but whether they are here now. I cannot but think that the practice is unreasonable, and I regret that it is as it has been shown to be.

Judgment affirmed.

FROM CERTIFICATE WHEN NOT MATERIAL. - Three rules, applicable to the certificate of the acknowledgment of a deed or mortgage, are deducible from the authorities: 1. It is a judicial act, and in the absence of fraud or duress, is conclusive of the facts therein certified: Jamison v. Jamison, 3 Whart. 457; Hall v. Patterson, 1 P. F. Smith, 289; McCandless v. Engle, id. 309; Heeter v. Glasgow, 29 id. 79; Miller v. Wentworth, 1 Norris, 280; Singer Manufacturing Co. v. Rook, 3 id. 442. 2. The certificate may be impeached by proof of fraud or duress in the acknowledgment, except as against a good faith purchaser without notice. Schrader v. Decker, 9 Barr, 14; Loudon v. Blythe, 4 Harris, 532; S. C., 3 Casey, 22; Michener v. Cavender, 2 Wright, 334. 3. A substantial compliance with the form of certificate prescribed by the Act of Assembly is sufficient. McIntire v. Ward, 5 Binn. 296; Shaller v Brand, 6 id. 438. Accordingly, where the acknowledgment of a married woman was properly taken the omission of a single word required by statute from the certificate, held, not to invalidate the certificate. Hornbeck v. Mutual Building, etc., Association. Opinion by Mercur, J.

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BILL OF LADING TRANSFER OF TRANSFEROR'S RIGHT OF POSSESSION OF GOODS COVERED BY. - Bills of lading, properly indorsed, are symbols of the property covered by them, serving all the purposes of actual possession, and so remain until there is a valid and complete delivery of the property to some person entitled to the possession under the bill of lading. In this case cotton was shipped from Galveston for Philadelphia, via New York, and the bills of lading therefor in the name of A, properly indorsed, forwarded together with drafts on the purchaser for the price of the cotton, to a bank in Philadelphia for collection, with directions to hold the bills of lading until payment of the drafts (this being in accordance with the terms of the sale). The cotton was re-shipped from New York, new bills of lading being issued in a new name, and was delivered at Philadelphia by the carrier (the original bills of lading remaining in possession of the bank) to the purchaser in this city, who obtained from B an advance of $10,000 thereon. In replevin by the bank against B, held, that the delivery was unauthorized, and the bank was entitled to recover. The court say: “Numerous authorities might be cited in support of these views, among which are the following: Dows V. Nat. Exch. Bank of Milwaukee, 1 Otto, 618, in which a very able and exhaustive opinion was delivered by Mr. Justice Strong; Stollenwerck v. Thatcher, 115 Mass. 224; Alderman v. Eastern Railroad, id. 233; Meyerstein v. Barber, 2 Law Rep. C. P. 38, 661; Turner v. The Trustees, etc., 6 Exch. Rep. 543; Jenkyns v. Brown, 14 Q. B. 496; Henry v. Warehouse Co., 31 P. F. S. 76; Benj. on Sales, §§ 381, 382, and note. Meyerstein v. Barber, supra, was a case in which advances had been made on cotton shipped from Madras to London, and bills of lading, delivered to secure the lender. It is there said by Chief Justice Erle, "If it were established that a bill of lading, one of the most frequent securities for advances amongst mercantile men, becomes exhausted and ceases to be a security when the ship has reached her destination, and the goods which it represents have been landed and warehoused, what a wide door would be opened for fraud! It is scarcely possible to exaggerate the evil consequences which would be likely to flow from such a doctrine. There is no authority for it. In a concurring opinion it is said, "That there can be no complete delivery of the goods under a bill of lading until they come into the hands of some person who has a right to