selves and granted the relief which the plaintiff prayed for, and we are of opinion that his order was right and should be affirmed, and that this appeal should be dismissed with costs.

NEW YORK COURT OF APPEALS ABSTRACT.

CARRIER OF PASSENGERS-NEGLIGENCE IN RUNNING FREIGHT TRAINS-DUTY OF PASSENGER AT STATION AS TO CROSSING TRACK-DAMAGES.- (1) The attempt of an engineer of a freight train to pass at a high rate of speed a station, which a passenger train about to stop there and leave and take up passengers is approaching, is an act of gross negligence. The ringing of the bell and blowing of the whistle does not change the character of the act. The statutory enactment on this subject relates to the passing over a crossing on the highway, and is not intended as a notice to passengers seeking to get on a train at a station. (2) Plaintiff's intestate had purchased a ticket at a station on defendant's railroad, and as the train she was intending to take approached left the station-room to go toward it. The train stopped a moment and then started, though only for the purpose of moving a short distance further along. Intestate walked to board it across an intervening track when she was struck and killed by a rapidly passing freight train on that track. Held, that whether she was guilty of contributory negligence was a question of fact for the jury. The rule applicable to a traveller on a highway crossing a railroad track, that he is bound to use his eyes and ears to ascertain whether a train is approaching, has not been held in this State to apply to passengers who are crossing a track at a station to get on a train. No absolute rule can be laid down to govern in the latter case under all circumstances. A charge that if the jury found that the passenger killed while crossing the track at a station, exercised that care, caution and prudence which would be expected to be used by persons of ordinary prudence under like circumstances, she was free from negligence, held, correct. Also, a charge that the passenger had a right to assume that the railroad company would run its trains in a lawful manner, and to act accordingly, held, correct. Warren v. Fitchburg R. Co., 8 Allen, 227; Klein v. Jewett, 26 N. J. Eq. 474, affirmed; 27 id. 550. (3) A refusal to charge that the jury might take into consideration in estimating the damages the fact that plaintiff inherited the property of deceased, held, no error. Judgment affirmed. Terry v. Jewett, Receiver, appellant. Opinion by Miller, J. [Decided Oct 7, 1879.]

NEGLIGENCE -TENEMENT-HOUSE OWNER NEGLECTING TO PROVIDE FIRE ESCAPES LIABLE FOR INJURY FROM NEGLECT — PRESUMPTIONS.-In an action against the owner of a tenement-house in the city of Brooklyn, to recover for the death of plaintiff's wife, it appeared that plaintiff hired apartments of defendant in the rear of the third story of such tenement-house, and occupied the same with his wife and family. On the fifth day of his occupancy, in the day-time, a fire took place, originating in the lower story of the house, and plaintiff's wife and child were smothered to death. There had not been constructed for the house either a fire escape or ladder for access to the scuttle, the construction of which is required by Laws 1873, chap. 863, tit. 13, § 36. Held, that in case the death of the wife was in consequence of the neglect of defendant to comply with the law, he was liable for such death. There was an absolute duty imposed upon defendant by statute to provide a fire escape, and the duty was imposed for the sole benefit of the tenants of the house so that they would have a mode of escape in case of a fire. For a breach of this duty causing damage the tenants have a remedy. It is a general rule that whenever one owes another a duty, whether such duty be imposed

by voluntary contract or by statute, a breach of such duty causing damage gives a cause of action. When a statute imposes a duty upon a public officer it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof causing him damage, and the same is true of a duty imposed by statute upon any citizen. Cooley on Torts, 654; Hover v. Barkhof, 44 N. Y. 113; Jetter v. N. Y. & Harlem R. Co., 2 Abb. Ct. App. Dec. 458; Heeney v. Sprague, 11 R. I. 456; Couch v. Steel, 3 El. & B. 402. Held, also, that in the absence of proof that plaintiff knew that there was no fire escape, etc., on the house when he hired his apartments, he will not be presumed to have known it. He had the right to assume that the statutory duty had been performed. Judgment affirmed. Willey, Administrator, v. Mulledy, appellant. Opinion by Earl, J. [Decided Sept. 30, 1879.]

PRACTICE-STATUTE OF LIMITATIONS — DELIVERY OF SUMMONS TO SHERIFF TO SAVE BAR OF AMENDMENT OF SUMMONS-NEW PARTIES.- An action was brought by summons by Michael W. Shaw against George E. Cock and seven other individuals named and the Overland Dispatch Company. It was on a cause of action which would be barred by the statute on the 14th of September, 1872. On the 8th of August, 1872, the summons was delivered to the sheriff of New York with an intent that the same should be served. There was no actual service upon any of the defendants except George E. Cock, who was served July 29, 1873. Attorneys appeared for Cock and the other defendants named, and demanded a copy of the complaint. Thereafter and on the 6th of October, 1873, an order was made at Special Term on motion of plaintiff, on notice to the attorneys for defendants, striking out of the summons the names of all the individual defendants and changing it in other respects so as to make the title of the action "Michael Shaw agt. George E. Cock as treasurer of Butterfield's Overland Dispatch." The amended summons was not served on any one, but the order of October 6th was served on the original defendants' attorneys, also a complaint entitled in accordance with the amended summons. The attorneys who had previously appeared, again appeared and put in an answer setting up the statute of limitation. Held, that the constructive service by delivery to the sheriff would only avail against the defendants actually named in the summons, and an amendment of the summons so as to change the party would not deprive that party of his right to set up the statute if it had run when the amendment was made, and this would not be affected by the fact that the original summons did not name the true defendant in the action by mistake, and that plaintiff intended to sue the party named in the amended summons. The two corporations named being distinct legal organizations, the delivery of the summons for service upon the wrong corporation would not constitute the commencement of a suit against the other under section 99 of the old Code. Section 175 of the new Code would not apply to the case. Order affirmed. Shaw, appellant, v. Cock. Opinion by Andrews, J. [Decided Sept. 17, 1879.]

NORTH CAROLINA SUPREME COURT AB

STRACT.

JUNE TERM, 1879.*

CONTRACT ILLEGAL CONSIDERATION -PAST COHABITATION NOT.-The fact that a bond is executed in consideration of past cohabitation does not affect its validity, it not appearing that there was any stipu

*To appear in 81 North Carolina Reports.

lation for future cohabitation; and this is so, although in fact the cohabitation continues after the execution of the bond. In an action upon such bond, the onus is on the defendant to prove the immoral consideration. The court remark that the bonds in question being under seal, the execution and delivery made them effectual at law, made them deeds, things done, and by the common law they had the force and effect to authorize the plaintiff to recover without any consideration, with power, however, in the defendant to have the same held null upon proof of illegal or immoral consideration, not from any motive of advantage to him, but from consideration of the public interest and of morality. Harrell v. Watson, 63 N. C. 454; 2 Chitty on Contracts, 971; Collins v. Blautern, 1 Smith's Lead. Cas. 609. The only restriction put on the contracts of the parties is, that they shall not stipulate for future fornication, or in such manner that the security given shall operate as an inducement or motive to go on in the vicious course. 2 Chitty on Contracts, 979; Trovinger v. McBurney, 5 Cow. 253; Gray v. Mathias, 5 Ves. Ch. 286; Hall v. Palmer, 3 Hare, 532. In these cases it is held that the continuation of the criminal intercourse after the execution of the bond or contract impeached for immorality, does not invalidate the same; but that it is to be avoided and held null only on proof that it was executed in whole or part on the understanding that the connection was to continue. Brown v. Kinsey. Opinion by Dillard, J.

DAMAGES MEASURE OF, IN CONTRACT FOR SERVICE -BURDEN OF PROOF.-In an action for breach of contract in not delivering corn to be ground for defendant by the plaintiff at the mill of the latter, the measure of damages is prima facie the difference between the cost of grinding and the contract price, and the burden is on the defendant to prove all matters in reduction of such damages. The court say that in the case of clerks, agents, laborers and domestic servants who have engaged to serve for a year, or a shorter determinate period, if the person so employed is improperly dismissed before the time of service expires, he is entitled to recover for the whole time, unless the defendant, on whom the burden of proof lies, can show, either that the plaintiff was actually engaged in other profitable service during the time, or that such employment was offered to him and rejected. 2 Greenl. Ev., § 261; Shannon v. Comstock, 21 Wend. 457; Costigan v. Mohawk R. R. Co., 2 Den. 610. This doctrine has been held in the case of Hendrickson v. Auderson, 5 Jones, 246, which is the leading case in our own State upon this subject. The decision in this case has been cited and approved in the case of Brinkley v. Swicegood, 65 N. C. 626, and the same doctrine is recognized in the case of Hecksher v. McCrea, 24 Wend. 305. The rule that the contract furnishes the measure of damages is subject to the other rule that compensation is only to be given for the actual loss. But there must be evidence furnishing ground for the application of the latter rule, and the burden of producing that evidence, according to the authorities, lies upon the defendant. Oldham v. Kerchner. Opinion by Ashe, J.

FORMER ADJUDICATION- PROOF OF IDENTITY OF ACTION BY PAROL.-Whenever the record of a trial in a former action is pleaded as an estoppel in a subsequent action, and such record fails to disclose the precise points on which the first action was decided, it is competent to the party pleading it to aver the identity of the point or question on which the decision was had and to support it by proof; and the same, if proved, is equally conclusive as if the same matter appeared of record. The court reasons thus: A verdict and judgmeut directly upon the point in issue is as a plea, a bar, or as evidence, conclusive upon the same matter directly in question in another suit, not extending to

any matter coming collaterally or incidentally in question, or inferred by way of argument. Duchess of Kingston's Case, 1 Leach's C. C. 146. A system of pleading more general and loose having been adopted and allowed at this day, but little of the ancient certainty of allegation and denial is now required; and hence it is difficult if not impossible to ascertain the subject-matter of a controversy and the precise points made and decided by a mere inspection of the record as formerly; and therefore it grew to be the rule that it was not necessary that the record should show definitely the precise point or question, upon which the right of a plaintiff to recover, or the validity of a defense depended, but only that the same matter might have been litigated and decided, and that extrinsic evidence might be admitted to define what the question was, its materiality, and its decision by the jury. Young v. Black, 7 Cranch, 565; Packet Co. v. Sickles, 24 How. 333; Wood v. Jackson, 8 Wend. 9; Eastman v. Cooper, 15 Pick. 276; 1 Greenl. Ev., § 531. The question has been an open one in this State, but the prevailing doctrine is in favor of the above rule which is adopted in New York and other States. See Burt v. Sternberg, 4 Cow. 559; Doty v. Brown, 4 N. Y. 71; Lawrence v. Hunt, 10 Wend. 80; Gardner v. Buckbee, 3 Cow. 120; Miles v. Caldwell, 2 Wall. 36; Aurora City v. West, 7 id. 82. This conclusion does not conflict with Rogers v. Ratcliff, 3 Jones, 225. Yates v. Yates. Opinion by Dillard, J.

LABORER

- FARM OVERSEER IS NOT.-An overseer on a farm held not to be a "laborer" within the meaning of a statute giving a lien on crops in favor of laborers. The court say: In a Georgia case, Adams v. Goodrich, 55 Ga. 233, a laborer was held to be one who performs manual labor. In Pennsylvania an action was tried involving the construction of a statute of that State to prevent the wages of laborers from being liable to attachment in the hands of their employers: and the court decided that the word "laborer" used in the statute meant manual laborer by profession and occupation. Heebner v. Chave, 5 Penn. St. 117. And in another Pennsylvania case the question arose whether an engineer on a railroad was a laborer within the meaning of a statute of that State which gave a lien to contractors, laborers, and workmen upon railroads and other works and property of public corporations; and the court held that he was not within the purview of the act, that a laborer was one who toils, who is dependent upon his manual labor for his subsistence. Railroad Co. v. Leuffer, 8 Penn. St. 168. In the common use of the word, we mean one who toils, one who labors with his hands. But an overseer is an agent, superintendent, a sort of "alter ego." His business is not to labor, but to oversee those who do work in subjection to his authority. Such a person does not come within the meaning of the Constitution or acts of the Legislature giving protection to laborers. Whitaker v. Smith. Opinion by Ashe, J.

HUSBAND AND WIFE-LIABILITY FOR WIFE'S TORTS. At common law the husband is liable for the wife's torts committed during coverture, and the action is brought against both husband and wife. Head v. Briscoe, 5 C. & P. 484. If the tort is done by the wife in the company of the husband, the law presumes coercion on his part, which excuses her from liability, but such presumption may be rebutted by proof. The presence and command of the husband must concur to justify the exemption of the wife from responsibility. An offense by his direction but not in his presence, or in his presence but not by his direction, is not within the rule which gives immunity to her. 2 Kent, 150; Keyworth v. Hill, 3 B. & Ald. 685; Wagener v. Bill, 19 Barb. 321; Commonwealth v. Lewis, 1 Metc. 151; Cassin v. Delaney, 38 N. Y. 178. State, Hildreth Prosecutor, v. Cump. Opinion by Van Syckel, J.

USURY-TAKING UNLAWFUL INTEREST FOR FORBEARANCE IS. Defendant sold to H. a farm, and took from him a purchase-money mortgage for $10,500. H.'s grantee conveyed to the plaintiff subject to the mortgage, which was then due, and which the plaintiff assumed to pay. An agreement that the plaintiff should pay ten per cent on the mortgage (the legal rate being seven per cent), and that as long as he continued to do so the defendant would let the mortgage remain, held, to be usurious, and that the plaintiff was entitled to recover in this action whatever amount had been paid by him to the defendant in excess of the legal interest. The court say that usury, the offense aimed at by the statute, is defined to be the taking of illegal interest eit or upon a lending of money or the forbearance of a debt. Diercks v. Kennedy, 1 C. E. Green, 210, and cases cited. Any agreement intended to enable the lender to receive more than legal interest for his money is usurious. Muir v. Newark Savings Institution, 1 C. E. Green, 537. In Diercks v. Kennedy, the forbearance or giving time for the payment of a debt is said by Chancellor Green to be in substance a loan. In Manners v. Postan, 3 Bos. & P. 343, more than legal interest had been taken by the defendant on a note given to A by B, as a collateral security for money lent to C, and indorsed by A to the defendant; and such usury was held to be well described to be for the forbearance of money lent by the defendant to B. To the same effect are Wade v. Wilson, 1 East, 195; Lee v. Cass, 1 Taunt. 511. "It should always be remembered," says Mr. Comyn, "that the statute lays as much stress upon the word 'forbearance' as upon the word 'loan."" Comyn on Usury, 156. McAdams v. Randolph Opinion by Woodhull, J.

WISCONSIN SUPREME COURT ABSTRACT. OCTOBER 14, 1879.*

DAMAGES-MEASURE OF, IN ACTION FOR WRONGFUL CONVERSION.- (1) In actions for the tortious taking or conversion of goods, or for breach of contract to deliver goods, unless plaintiff has been deprived of some special use of the property, anticipated by the wrongdoer, or is entitled to exemplary damages, the general measure of damages is the value of the chattels at the time and place of the wrongful taking or conversion, or at which delivery was due, with interest to the time of trial. (2) In case of a wrongful taking or conversion, if defendant has sold the goods, plaintiff may, at his election, recover the amount for which they were sold, with interest from the sale to the trial. (3) If the chattels wrongfully taken or converted are still in defendant's possession at time of trial, plaintiff may, at his election, recover their present value at the place of the taking or conversion and in the form in which they

To appear in 47 Wisconsin Reports.

were when taken or converted. (4) These rules do not apply to cases in which damages are regulated by special statutes. Ingram v. Rankin. Opinion by Taylor, J.

OF CONTRIBUTORY.

NEGLIGENCE-IMPUTATION Contributory negligence of the driver of a private conveyance in which a person is voluntarily riding at the time of receiving an injury from a defective highway, is imputable to the person so injured, to prevent a recovery. Otis v. Town of Janesville. Opinion by Orton, J.

MUNICIPAL CORPORATION - MAY NOT DELEGATE POWERS CONFERRED ON IT.-Complaint that by certain acts of the Legislature the defendant city was authorized to construct a pier into Green Bay and a road thereto from the city limits, and to keep the road in good repair, and the mayor and common council of said city were empowered to fix, regulate and collect tolls upon said pier; that the city having constructed such pier and road, the common council leased the pier to plaintiff for one year for a specified sum; that by said lease plaintiff acquired the valuable privilege of charging commissions for all merchandise and freight landed at or shipped from said pier, which amounted to a specified sum for the year previous to the action; and that, by reason of defendant's neglect to maintain said road in good repair, plaintiff had suffered damage by loss of tolls or commissions for the use of said pier, in a sum named. Held, on demurrer, that the power of the common council to regulate the tolls could not be delegated, and the lease was void. The power to regulate the tolls was vested solely, by the Legislature, in the mayor and common council, and such power could not be delegated by the common council alone, or jointly with the mayor, to any other officers or persons by lease or otherwise. 1 Dill. on Mun. Corp., § 60, 445, 618; Cooley's Coust. Lim., § 204. In Lauenstein v. City of Fond du Lac, 28 Wis. 336, where the law conferred upon the common council, in connection with the board of education, the power to purchase a site for a school-house, it was held that such power could not be delegated by the common council to the board of public works, and that a contract for the purchase of such site, entered into by the board of education, was not binding. In Mullarky v. Town of Cedar Falls, 19 Iowa, 21, where the town conveyed away by deed of trust a toll bridge, with the franchise of collecting the tolls, it was held that the town could not delegate such power to collect the tolls, and that the deed for such purpose was void. The same principle, in nearly parallel cases, is recognized in Gale v. Village of Kalamazoo, 23 Mich. 344, and in Milhau v. Sharp, 17 Barb. 435. Lord v. City of Oconto. Opinion by Orton, J.

SURETYSHIP

SURETY TAKING SECURITY FROM PRINCIPAL, NOT ADMISSION OF VALIDITY OF BOND.In an action on a bond, where the sureties defended on the ground that the instrument actually signed by them was essentially different from that which they promised to execute and believed themselves to be executing, it was error to admit evidence for the plaintiff that the principal obligor had turned over property to one of said defendants as security against the liability; the taking of such security not being an affirmance by the sureties of their liability on the bond in suit. Rounsavell v. Wolfe. Opinion by Ryan, J.

CRIMINAL LAW.

CONSPIRACY-ORDER OF EVIDENCE IN-ACQUITTAL OF ONE CONSPIRATOR. -- (1) In cases of conspiracy the rule is that a foundation should first be laid by proof sufficient in the opinion of the judge to establish prima facie, the fact of conspiracy between the par

ties, or at least proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprize being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan, and with reference to the common object, is in contemplation of law, the act and declaration of them all. Rex v. Stone, 6 T. R. 528, 529; 25 How. St. Trials, 1277, 1313; Crowninshield's Case, 10 Pick. 497; U. S. v. Gooding, 12 Wheat. 469; Com. v. Eberle, 3 Serg. & R. 9; 1 Taylor's Evidence, note 1, p. 540. But this rule is liable to qualification for the sake of convenience, and the acts or declarations of one are admitted in evidence, before sufficient proof is given of conspiracy, the prosecutor undertaking to furnish such proof in a subsequent stage of the cause. But this mode of proceeding rests in the discretion of the judge, and in seditions or other general conspiracies is seldom permitted, but the admission of such testimony is not error. (2) Although it has been held that, where one of several defendants charged with a conspiracy had been acquitted, the record of acquittal is evidence for another defendant subsequently tried. Rex v. Horne Tooke, Old Bailey, 1794; Burns' Justice, tit. "Conspiracy." This rule does not apply when the acquittal has taken place in another State. Maryland Court of Appeals. Bloomer v. State. Opinion by Bowie, J. (To appear in 48 Md. Repts.)

FORGERY -OF RECEIPT A RECEIPT AN ACQUITTANCE"-FORM OF INDICTMENT.-(1) A writing in the common form of a receipt, for money paid as part of the purchase-money of a farm, is an acquittance within the meaning of sec. 1, ch. 114, Gen. Stats., providing for the punishment of those who alter, forge, or counterfeit acquittance or discharges for money or other property. The court remark that the word "acquittance," although perhaps not strictly speaking synonymous with receipt, includes it. A receipt is one form of an acquittance; a discharge, another. It is not questioned but that a receipt in full is an acquittance. Why, therefore, is not a receipt for a part of a demand or obligation an acquittance pro tanto? We are aware that lexicographers do not fully agree as to this; but in legal proceedings, a receipt is regarded as an acquittance. See 2 Bishop's Crim. Law, § 557; Rex v. Martin, 7 C. & P. 549; Regina v. Houseman, 8 C. & P. 180; Regina v. Atkinson, 1 Car. & M. 325; Com. v. Ladd, 15 Mass. 526; Wharton's Preced. Ind. 383. (2) An indictment in two counts for altering, forging, and counterfeiting such a receipt, set out the receipt in full, but alleged no dealings between the respondent and the receiptor showing that the receipt could have been used to defraud, nor that the receipt alleged to have been altered was ever delivered to the respondent as an acquittance, or ever held by him as such. Held, that allegations of extrinsic facts were necessary only where the operation of the instrument on the rights of another was not apparent from the instrument itself; and that allegations such as were wanting in the indictment were unnecessary. Vermont Sup. Ct. State v. Shelters. Opinion by Dunton, J. (To appear in 51 Vt. Repts.)

LARCENY DOG NOT SUBJECT OF.-The defendant was indicted for stealing a dog. It is no offense at common law. 4 Bl. Com. 236; Arch. Cr. Pl. 175; 1 Hale's P. C. 512. The common law is the law of this State, except where altered by statute; and we have no statute making it larceny to steal a dog; therefore, the indictment cannot be sustained. North Carolina Sup. Ct., June Term, 1879. State v. Holder. Opinion by Ashe, J.

TRIAL-MISTRIAL, WHEN COURT MAY ORDER-TAMPERING WITH JURY.-The necessity of doing justice arising from the duty of courts to guard its administration against all fraudulent practices, is an exception

to the rule that a jury sworn in a capital case cannot be discharged without the prisoner's consent until they have given a verdict. Therefore, where the jury were sworn and impaneled in a trial for murder, and the court ordered a mistrial on the ground that one of the jury had fraudulently procured himself to be selected at the instance of the prisoner to secure an acquittal, it was held, that there was no jeopardy, and that an order remanding the prisoner for another trial was proper. State v. Prince, 63 N. C. 529; State v. Jefferson, 66 id. 309; State v. McGimsey, 80 id. 377. The court remark: It is a well-established and is a sacred principle of the common law, that a man cannot be put twice in jeopardy of life or limb; and the same principle has been declared in the Constitution of the United States. Hawkins lays it down that a jury sworn and charged in a capital case cannot be discharged without the prisoner's consent till they have given a verdict. Vol. 2, ch. 2, § 1. But to this general rule, cases of necessity are excepted, and these cases of necessity are of two classes, and numerous: 1. What are denominated physical necessities, as where during trial, the judge, juror or prisoner is taken suddenly ill; the judge dies; or the prisoner or a juror becomes insane; or a juror abandons his fellows; or where there is no possibility for the jury to agree and return a verdict, and such like cases. 2. What is termed the necessity of doing justice, which arises from the duty of the court to prevent the obstruction of justice by guarding its administration against all fraudulent practices, such as tampering with the jury, keeping back the witnesses; and to which may be added as especially belonging to this class, the fraudu lent introduction into the panel of a perjured juror, who at the instance of the prisoner has procured himself to be selected on the jury for the purpose of acquitting the prisoner. State v. Wiseman, 68 N. C. 203; State v. Bailey, 65 id. 426; Com. v. Cook, 6 Serg. & Rawle, 577. North Carolina Sup. Ct., June Term, 1879. State v. Bell. Opinion by Ashe, J.

FINANCIAL LAW.

JOINT PAYEES - RIGHTS OF TRANSFER OF NOTEAUTHORITY OF EACH PAYEE.-If a note be made payable to several persons, not partners, it can only be transferred by a joint indorsement of all of them, but when it is made to two or more persons, as partners, it may be transferred by the indorsement of any one of them. The mere fact that an abbreviated form, as "Chas. and Wm. Feickert," instead of Charles Feickart and William Feickart," is used in describing the payees of a note, does not, as a matter of law, authorize the public to assume that they are partners. The possession of a note by one or two joint payees is not evidence that the payees are partners, but is simply prima facie evidence of the title disclosed upon the face of the note. Neither of two joint payees being the agent of the other, he can no more bind the other by a sale of the note without indorsement than he can by a sale with indorsement. The fact that one joint payee is authorized by the other to collect the note when due, does not authorize him to sell or compound it. Illinois Sup. Ct., Oct. 2, 1879. Ryhiner v. Feickert.

PROTEST-DUE DILIGENCE, WHAT IS-INDORSEMENT - AGREEMENTS BY HOLDER OF NOTE AS TO COMPROMISE. (1) Where a notary makes inquiry at the bauk where paper is payable, and receives information from the cashier as to the residence of the indorser, upon faith of which the notary addresses the notice of protest, the jury are justified in finding that he has used due diligence. The court remark that the officers of the bank were proper ones to apply to for information concerning the place of business or domicile of parties

doing business through the bank. "It does not appear that he inquired of the officers of the bank," says Justice Whitehead, in giving his reasons for holding a notice of protest insufficient, in the case of Hazelton Coal Co. v. Ryerson, Spenc. 129-33. In Barr v. Marsh, 9 Yerg. 255, and Harris v. Robinson, 4 How. 336, the fact that inquiries had been made at the bank was stated to be evidence of diligence in making inquiry. (2) An agreement between the holder of the note and a creditor of the maker, by which the holder was to accept fifty per cent of his claim, to be secured by mortgage, which said assumption by the creditor so secured should be in full satisfaction of the holder's claim against the maker, does not discharge the indorser because the maker is a stranger to the agreement. New Jersey Sup. Ct., June Term, 1879. Herbert v. Servin. Opinion by Reed, J.

SEALED NOTES - NEGOTIABLE ONLY BY VIRTUE OF STATUTE-DEFENSES TO.-Where the form of a promissory note, with blank spaces, payable to payee or bearer, was printed, and after the spaces were filled the maker signed his name in front of a device consisting of a bracket and the word seal therein, thus, "[seal]," which device was also a part of the form and was printed in ink, held, that the device mentioned is a "scrawl seal," and under the statute of this State has the effect of a common-law seal. That by affixing his signature in front thereof the maker adopted the device as his seal. Such a sealed note is only negotiable by virtue of the statute which requires the negotiation to be by "indorsement thereon." In an action on such a note in the name of the holder to whom it was transferred by mere delivery, the maker may set up any defense he could have made against the payee. Ohio Supt. Ct., Sept. 30, 1879. Osborn v. Kistler. Opiniou by Gilmore, J.

JURISDICTON

INSURANCE LAW.

- CONDITIONS AS TO FOREIGN COMPANIES IN STATUTE- EFFECT OF STIPULATION AS TO SER

VICE OF PROCESS.-The statute of Vermont provides that "no insurance company not organized under the laws of this State shall do business in this State until it has filed with the Secretary of this State a written stipulation agreeing that any legal process affecting the company, served on either of the insurance commissioners, shall have the same effect as if served personally on the company in this State. So long as any liabilities of the stipulating company to any resident of this State continue, such stipulation cannot be revoked or modified. Service of process according to the stipulation aforesaid shall be sufficient service on the company." In an action by residents of New Hampshire on a policy of insurance against fire, issued in Vermont for the benefit of plaintiffs, on property in Vermout, by an insurance company that was incorporated and organized under the laws of Massachusetts, and that had complied with the requirements of the statute, the writ was served on one of the insurance commissioners, in accordance with that statute. Held, that the court thereby acquired jurisdiction of defendant, and that it made no difference that plaintiffs resided out of the State. The court say: By the common law personal actions may be brought in any place or State where the party defendant can be found. But if neither the person nor property of a citizen of another State can be found in this State whereon to serve process, the courts of this State can acquire no jurisdiction over him by notice; and any judgment against him without voluntary appearance is wholly void. See Price v. Hickok. 39 Vt. 292. The defendant corporation is treated in legal proceedings, so far as its residence is concerned, as a citizen of Massachu

setts, so that unless service of the writ upon one of the insurance commissioners of this State is to have the same force and effect as service of process against a citizen of Massachusetts, made upon him in this State, then by such service the county courts acquired no jurisdiction of the defendant. But, as is said by Wells, J., in Smith v. Insurance Co., 14 Allen, 339: "A corporation being a mere creature of local statute, can of right have no existence nor recognition beyond the limits of the State wherein it is established. By comity such artificial persons are permitted to contract and sue in other States. If they avail themselves of that comity * * *they may become liable to its jurisdiction to the extent to which they have thus voluntarily subjected themselves." A foreign corporation can transact business in this State only by its consent, express or implied; and the Legislature has the right to say upon what terms or conditions such consent shall be given. The condition imposed upon foreign insurance companies is equivalent to an agreement that they may be found here for the service of process; and such agreement, when entered into by them, is valid and binding. See Lafayette Ins. Co. v. French, 18 How. 407; Railroad v. Harris, 12 Wall. 81. In Ex parte Schollenberger, 6 Otto, 369, the law upon this subject is stated thus: "If the Legislature of a State requires a foreign corporation to be found within its territory for the purpose of the service of process in a suit as a condition to doing business in the State, and gives the jurisdiction, notwithstanding the finding was the corporation does so consent, the fact that is found procured by consent. The essential fact is the finding, beyond which the court will not ordinarily look." Therefore the defendant, having consented to be sued or found here, by entering into the contract in question, subjected itself to the jurisdiction of the courts of this State, so far, at least, as said contract is concerned, it having been made in this State concerning property within the same. This case is clearly distinguishable from Sawyer v. Insurance Co., 46 Vt. 697; Smith v. Insurance Co., 14 Allen, 337, and Mill Co. v. Swede Iron Co., 3 Vroom, 15. In each of these three cases, the contract in suit was made in a State other than the one in which the action was brought. Vermont Sup. Ct. Osborne & Woodbury v. Shawmut Ins. Co. Opinion by Dunton, J. (To appear in 51 Vt. Rep.)

LIFE POLICY

CONCEALMENT IN APPLICATION.-To the questions, "Has a proposal ever been made on your life at any other office or offices? If so, when? Was it accepted at the ordinary premium, or at an increased premium, or declined?" the answer was: "Insured now in two offices for £16.000 at ordinary rates. Policies effected last year." The answer was true so far as it went; but the applicant had made proposals for policies to several life offices which had been declined. Held, that there had been a concealment of material facts such as entitled the insurance office to have the contract rescinded. In the contract of life assurance uberrima fides is requirred. Daglish v. Jarvie, 2 McN. & G. 243; Moens v. Hayworth, 10 M. & W. 147; Lindenau v. Desborough, 8 B. & C. 591; Anderson v. Fitzgerald, 4 H. of L. 484. English High Ct. of Justice, Feb. 21, 1879. London Assurance v. Mansel. Opinion by Jessel, M. R.