the policy, and the answers therein contained warranties avoiding the policy if untrue, held, that in an action at law to recover the amount of the insurance oral testimony could not be received to show either that the company when it issued the policy knew that the representations were untrue, or that the untrue representations were inserted in the application by the agent employed by the company to solicit the insurance, without the knowledge of the applicant, who had orally stated the truth to the agent. Kibbe v Hamilton Ins. Co., 11 Gray, 163; Draper v. Charter Oak Ins. Co., 2 Allen, 569; Campell v. New England Ins. Co., 98 Mass. 381. McCoy v. Metropolitan Life Insurance Co. Opinion by Field, J.

TROVER- AS TO GRAIN MIXED IN ELEVATOR WITH LARGER QUANTITY. Where grain of plaintiffs was in the course of business put into elevators and mixed with other grain of like quality, and a quantity of grain representing the amount of plaintiffs grain withdrawn from the elevator and wrongfully converted by another, held, that plaintiff could maintain trover for the grain against the wrong-doer. When the grain was put in the elevator the plaintiffs and the other owners of grain stored therein became tenants in common in proportion to their respective interests. Cushing v. Breed, 14 Allen, 376; Keeler v. Goodwin, 111 Mass. 490. And a tenant in common of personal property may maintain trover against a stranger who converts the property or his interest in it. Bryant v. Clifford, 13 Met. 138. Goell v. Morse, 126 Mass. 480. Forbes v. Fitchburg Railroad Co. Opinion by Morton, C. J.

MINNESOTA SUPREME COURT ABSTRACT. AUGUST 3, 1882.

BASTARDY - -PREPONDERANCE OF EVIDENCE SUFFICIENT TO CONVICT. In a bastardy proceeding the court instructed the jury that the issue was to be determined by a preponderance of the evidence, and refused to charge that before they could find a verdict against the defendant they must be satisfied beyond a reasonable doubt. Held, that this was no error in the instruction and ruling of the court. State v. Snure, 12 N.W. Rep. 347; Semon v. People, 42 Mich. 141; Knowles v. Scribner, 57 Me. 495; Young v. Makepeace, 103 Mass. 50; People v. Christman, 66 Ill. 162. State of Minnesota v. Nichols. Opinion by Dickinson, J.

NEGLIGENCE OF ONE IN CARE OF INFANT IMPU

TABLE TO INFANT.-The consequences of negligence on the part of the parent or other person rightfully having charge or control of an infant non sui juris, and himself incapable of negligence, is imputable to the infant; the infant being non sui juris, and having in law a keeper, to whose discretion in the care of his person he is confided, the negligence of such custodian must, as regards third persons, be held in law the negligence of the infant. Hartfield v. Roper, 21 Wend. 615; Mangam v. Brooklyn City R. Co., 38 N. Y. 455; Wright v. Malden & M. R. Co., 4 Allen, 283; Callahan v. Bean, 9 id. 401; Holly v. Boston Gaslight Co., 8 Gray, 123; Brown v. European & N. A. R. Co, 58 Me. 384; Lafayette & I. R. Co. v. Huffman, 28 Ind. 287; Toledo, W. & W. R. Co. v. Grabel, 88 Ill. 441; Meeks v. Southern Pac. R. Co., 52 Cal. 602. Fitzgerald v. St. Paul, Minneapolis & Manitoba Railway Co. Opinion by Dickinson, J.

WARRANTY JUDGMENT FOR PRICE DOES NOT CUT OFF ACTION FOR BREACH.- In an action for the breach of a warranty in the sale of a reaping machine, held, that the former recovery of a judgment by defendant against plaintiffs, on default of the latter upon some

of the notes given for the purchase of the machine, constituted no bar to a recovery in this action for breach of the contract of warranty. The facts constituting the cause of action in this case were not involved in the former action upon the notes, and could only have been properly presented for adjudication therein by affirmative allegations and proof,on the part of the defendants in such action,in the nature of counter-claim or recoupment. Formerly in such an action the practice allowed a full recovery of the purchase price, and left the vendee to seek his remedy by a cross-action. Mondell v. Steel, 8 Mees. & W. 558; Rigge v. Burbridge, 15 id. 598. Now the vendee has his election to plead the breach of contract of warranty in reduction of damages, in an action brought by the vendor for the price, or to bring a cross-action, as was done in this case. Such action is not barred by the former recovery of the price. Davis v. Hedges, L. R., 6 Q. B. 687; Bodurtha v. Phelon, 13 Gray, 413; McKnight v. Devlin, 52 N. Y. 399; Barker v. Cleveland, 19 Mich. 230. Thoreson v. Minneapolis Harvester Works. Opinion by Dickinson, J.

PENNSYLVANIA SUPREME COURT AB

STRACT.

OF

ATTORNEY MAY NOT COMPROMISE CLAIM CLIENT EOR LESS THAN DUE.-The township of N. was indebted to K. in the sum of $409 with interest. K. directed an attorney to collect the amount due by suit, and the attorney instituted suit for that amount. Afterward he, without authority from K., accepted the principal amount in settlement of the claim, and executed a receipt in full in behalf of K. Held, that K. was not bound by the settlement. There is a very general authority conferred upon attorneys-at-law in the conduct of suits, to refer them, to confess judg ments and control executions. But there is a limit to this power; it is created for specific not general purposes. When a claim is put into the hands of an attorney for collection without further instruction, it is generally understood to be for the purpose of having it enforced by legal process, and it is not presumed that the attorney either can or will, without process, compromise and settle it on such terms as either his judgment or caprice may dictate. The court does not say that such power can never be exercised by the attorney without express warrant from his client, for an implied power may result from the character of the claim requiring collection, and the circumstances connected with it. So if on the trial of a case the attorney should consent to a judgment less than the amount due, a court would not ordinarily, in relief of the client, set aside such judgment; but in such case in the conduct of a pending suit, the power of the attorney to direct and control it is undoubted. Nevertheless even in the example put, when the act of the attorney has been obviously wrong, and where the rights of the client have been seriously compromised, the court, notwithstanding the judgment, ought to grant relief. Marshall, C. J., in Holker v. Parker, 7 Cranch, 452. Compromises by attorneys in the absence of and without the assent of their clients, are not looked upon with favor, though as was said in the case just cited, where the compromise is reasonable and fair, a court will not disturb it. Still it remains, as was said by Woodward, J., in Stokley v. Robinson, 10 Casey, 315, that "the principle is that the compromise being an unauthorized act is void," and this though it may assume the form of an award. To a like effect are the cases of Huston v. Mitchell, 14 S. & R. 307, and Stackhouse v. O'Hara's Exr's, 2 Har. 88, in both of which cases the attorneys had agreed to take land in satisfaction of the

debts of their clients. Township of North Whitehall v. Keller. Opinion by Gordon, J. [Decided March 27, 1882.]

FRAUDULENT CONVEYANCE-JUDGMENT CREDITOR HAVING LIEN ON LAND CANNOT SET ASIDE.-H. had a judgment against M., which was a lien on the lands of M. M. conveyed the lands for a nominal consideration to another. Thereafter K. obtained a judgment against M. for a debt due when the conveyance was made. The judgment of H. ceasing to be a lien, he revived it against M. without giving notice to the terre tenant. Afterward the lands were sold under the judgment of K. Held, that the judgment of H. was not entitled to share in the proceeds of the sale. The statute of 13 Eliz., relating to fraudulent conveyances, provides that any conveyance of land, made to the end, purpose and intent to delay, hinder or defraud creditors, shall be deemed and taken to be clearly and utterly void, only as against such person or persons, his or their representatives, heirs or assigns, whose actions, debts or damages, by such conveyance, shall or might be in any way disturbed, hindered, delayed or defeated. As between the parties, and as respects everybody not included among those intended to be defrauded, the deed is valid. A subsequent creditor can only avail himself of the fraud which was practiced against him. Unless there is evidence that the grantor intended to withdraw his property from the reach of his future creditors, his voluntary conveyance is not void as to such creditors, although at the time of its execution he owed debts, the collection of which might be delayed, hindered or prevented by the deed. Harlan v. Maglaughlin, 9 Nor. 293. And the deed is not fraudulent as to a creditor whose debt was secured by judgment or other lien on the land. Necessarily the grantee takes subject to the lien and the creditor may pursue the land just as if it had been conveyed to one who purchased in good faith for a full consideration. The prior lien creditor may follow the land, irrespective of changes in the title, whether honest or dishonest. A judicial sale on his lien vests in the purchaser the title which the debtor had when the lien attached and divests that of the debtor's grantee. But when the judgment is obtained after the conveyance, if such conveyance was in good faith for full consideration, the creditor has no remedy against the land; if fraudulent as to the creditor, he may sell the grantee's title, which sale will not discharge the prior liens, nor will the proceeds be applied to their payment. Byrod's Appeal, 31 Penn. St. 241; Fisher's Appeal, 33 id. 294; Hoffman's Appeal, 44 id. 95; Dungan's Appeal, 88 id. 414. Hoak's Appeal. Opinion by Trunkey, J. [Decided April 17, 1882.]

MASTER AND SERVANT-NEGLIGENCE — LIMIT OF LIABILITY OF MASTER-DANGEROUS WORK.-A. was in the employ of B., a builder of iron structures, and was engaged in the erection of an iron building. The work was done according to the plan of an architect of large experience who superintended the same, but was not present on the occasion to be mentioned. Certain rafters were to be put in place by aid of a block and tackle, and were to rest on iron columns. A., B. and others were at work on this, A. and B. being on one of the rafters, when it fell, injuring A. There was a conflict of evidence as to the cause of the accident, it being testified to by some witnesses that it was caused by the removal of one of the blocks and tackles holding the rafter. This was done by the direction of B. upon the advice of a workman of experience. Held, that even if the removal caused the rafter to fall, B. was not necessarily liable for the injury to A. An employer does not impliedly guarantee the absolute safety of his employee. In accepting an employment, the latter is assumed to have notice of all patent risks incidental

thereto, or of which he is informed, or of which it is his duty to inform himself. Whart. on Neg., § 206. When therefore he undertakes hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain. Id., § 214. The master is bound to provide for the safety of his servant to the best of his judgment. 1 Addison on Torts, pl. 564. In most cases in which danger may be incurred, the servant is as likely to be acquainted with the probability and extent of it as the master. The latter is therefore not responsible for the damages attendant on the mountings of the scaffolds or unfinished staircases, landings or roofs, which the workman has voluntarily undertaken to mount, with as much knowledge of the attendant risk as the person who employs him. Id. See also Railway Co. v. Bressner, 10 Week. Not. 379; Priestly v. Fowler, 3 M. & W. 1. Sykes v. Packer. Opinion by Mercer, J. [Decided May 1, 1882.]

FINANCIAL LAW.

EXECUTOR-DEALINGS OF, WITH TRUST ESTATELIABILITY OF INNOCENT THIRD PARTY-DEPOSIT IN

BANK.-P. having in the respondent bank an account as town treasurer and a private account, transferred $3,200 from the latter to the former, and afterward an equal sum from the former to the latter, and drew $8,132 from his treasurer's account by checks payable to bearer. Later he had an additional account in the bank as executor of his father, and applied to the bank to discount his note as executor for $10,000 at four months, and offered certain stock belonging to the estate as security, telling the president of the bank that it would be for the benefit of those interested in the residue of the estate, of whom he was one, to pay at once certain legacies by borrowing money and holding the stock for a more favorable market. Thereupon the bank in good faith discounted the note and took the stock as collateral. P. deposited the proceeds on his private acount. Soon afterward the bank paid $3,745, from his private account, on his check in favor of a third person, and by his direction transferred $7,321 from his private account to his treasurer's account. Successive renewal notes covering about four years were give for the $10,000, the last of which was never taken up by him. He subsequently fled from the State, largely in default both as executor and as treasBefore his flight, he was publicly regarded as a man of integrity. The petitioner was appointed administrator with the will annexed in his place. On a bill in equity against the bank seeking the transfer of the stock to the petitioner as such administrator, it was held-1. That the declared purpose for which P. sought the $10,000 loan was a proper one, and the loan therefore one which the bank, so long as it had no knowledge of his fraudulent intent, could properly make. 2. That the bank was under no obligation to see to the application of the money. 3. That as the purpose for which the loan was sought was one that would naturally require considerable time for its accomplishment, the bank was not bound to regard as suspicious P.'s application for repeated renewals of the note. 4 That the mingling of the trust funds by P. with his own was within his power as trustee, and was not in itself unlawful; so that the bank was under no obligation to suspect fraud from his doing it. 5. That the bank was under no obligation to regard the acts of P. as fraudulently intended unless it had actual knowledge of such intent, or of facts which afforded convincing proof of it. The contract of a bank with a depositor is that it will pay his checks upon his funds in the bank, and if the checks

urer.

are properly drawn it is bound to pay them. The law will not charge the officers of a bank with knowledge that a depositor is committing a fraud, nor impose upon them the duty of inquiry, simply because he is drawing upon a trust account checks payable to himself, or is transferring funds from a trust account to his private account. Connecticut Supreme Court of Errors, January Term, 1881. Goodwin v. American National Bank. Opinion by Pardee, J. (48 Conn. 550.)

NEGOTIABLE INSTRUMENT SET-OFF-TRANSFER AFTER DUE- EQUITIES.— Under the Maine statute in relation to set off, in an action by the indorsee of a promissory note, indorsed and transferred after it is due, the defendant, the promisor, may file an account which he had against the promisee at the time of the transfer of the note in set-off, as a defense thereto. The rule established in England will not allow a set-off in such a case. The rule there is that the plaintiff in such cases is liable only to the equities arising out of the note itself, or the consideration for it; or to the allowance of such demands due the maker of the note from the payee as might be found by either express or implied understanding of the parties to have been agreed to be applied in discharge of it. Burroughs v. Mass., 10 B. & C. 558. The same rule has been held in several of the States where the terms of the statutes regulating set-off, were held not to be broad enough to permit the set-off. In New Hampshire, Chandler v. Drew, 6 N. H. 469. In Connecticut, Stedman v. Jillson, 10 Conn. 55; Robinson v. Lyman, 10 id. 30. In New York, Johnson v. Bridge, 6 Cowen, 693; Raymond v. Wheeler, 9 id. 295; Bridge v. Johnson, 5 Wend. 346; Haxton v. Bishop, 3 id. 13; Driggs v. Rockwell, 11 id. 504. In Illinois, Gregg v. James, 1 Breese, 107. In New York the rule established in the cases cited has been changed by statutory provision allowing the set-off. The question received a very full and careful consideration by the court in Massachusetts, in Sargent v. Southgate, 5 Pick. 312; and it was there held, that where the note in suit was indorsed and transferred to the plaintiff by the payee after it was dishonored, any demand which the maker held against the payee before the transfer, which he had a right to set off as against the payee, might be set off in a suit by the plaintiff. The doctrine of Sargent v. Southgate has been repeatedly recognized by this court as sound law, Shirley v. Todd, 9 Me. 83; Barney v. Norton, 11 id. 350; Burnham v. Tucker, 18 id. 179; Wood v. Warren, 19 id. 23. Maine Sup. Jud. Ct., January 20, 1882. Robinson v. Perry. Opinion by Libbey, J. (73 Me. 168.)

NEW BOOKS AND NEW EDITIONS.

SEDGWICK AND WAIT ON TRIAL OF TITLE TO LAND. A Treatise on the Principles and Practice Governing the Trial of Title to Land; including Ejectment; Trespass to try Title; Writs of Entry; Statutory Remedies for the Recovery of Real Property; together with the Resulting Claims for Mesne Profits and Improvements; embracing a Consideration of Color of Title; Title by Possession, and Adverse Possession. By Arthur G. Sedgwick and Frederick S. Wait, New York, Baker, Voorhis & Co., 1881, Pp. xl., 696.

The table of contents gives a good idea of the scope of this work. It is as follows: History of the action of ejectment; sketch of real actions in the United States; nature of the rights upon which actions to try title may be based-for what interests ejectment lies;

interests for which ejectment will not lie; relief peculiar to ejectment not to be had in other actions; parties plaintiff; parties defendant; ejectment by municipal corporations for streets and public places; ejectment between co-tenants and by co-tenants against third parties; ejectment between vendor and vendee; ejectment between mortgagee and mortgagor: ejectment between landlord and tenant; notice to quit and demand of possession; attorney's authority to proceed; of the complaint; how the lands are to be described; venue-local and transitory actions; of the plea or answer; of the verdict; of the judgment; writ of possession; statutory new trials, on second actions to try title; provisional remedies and ancillary relief in actions to try title; two actions pending for the same land consolidation of ejectment-joinder of legal and equitable actions-misjoinder of actions; mesne profits and damages; improvements; possession; adverse possession under statutes of limitations; intention - claim of right; color of title.

This is an excellent classification, and we are not acquainted with any other work of the same scope. It is difficult to judge a work on practice except by practice, but a cursory examination leads us to think well of this. One is apt to test such a work by some sore spots in his own experience. It once cost us $60 to find out that an infant in this State could not maintain ejectment except by general guardian or ́ guardian in socage (since changed by our Code), and this work would have saved us that money. As it is designed for use in all the States it is impossible for us to pronounce upon its accuracy, but Mr. Sedgwick is of good repute as an author, and the volume bears many evidences of research and care. The book is well printed.

Judgment affirmed with costs - Riley v. Hulbert, Moore v. Betz, Dowling v. New York Central & Hudson River Railroad Company, Tuthill v. Wilson, Hardy v. City of Brooklyn, Wyckoff v. Anthony, Beattie v. New York Central & Hudson River Railroad Company.Order affirmed with costs-People ex rel. Negus v. Dwyer, People ex rel. Supervisors of Ulster County v. Hardenbergh.-Judgment of General Term reversed; that of Special Term affirmed, with costs-Miller v. Hannibal & St. Joseph Railroad Company.Judgment affirmed and order for extra allowance reversed, without costs - Halman V. Lazarus.Orders of Special and General Term reversed and motion granted, with costs in this court and in the Supreme Court Edward v. Wheeler.- Orders of Special and General Terms reversed, and case remitted to Special Term for a new hearing, costs to abide the event - In re Voorhis.— - Orders of Special and General Terms reversed with costs, and a writ of mandamus to issue in accordance with the prayer of the relators - The People ex rel Farrar v. O'Keefe. Order of General Term affirmed and judgment absolute entered against the plaintiff, dismissing the complaint with costs Calkins v. Vrooman.— Motion for reargument denied with costs-The Providence, Stonington Steamship Companies v. The Phoenix Insurance and Thirteen other Companies. Order affirmed with costs In re The Mayor, etc., of N. Y. on application of Lewis Roberts v. William D. Warren.