Held, that it could not in this action enforce its claim to the fund. Thurber v. Blanck, 50 N. Y. 80. By voluntarily appearing in a State court as a claimant to a fund in such court, the United States subjects itself to the jurisdiction of such court and like any other litigant will be bound by its decision. Order affirmed. Johnston v. Stimmel. Opinion by Tracy, J. [Decided May 2, 1882.]

SURETYSHIP UNDERTAKING TO RELEASE ATTACHMENT BRINGING IN NEW PARTY DEFENDANT DOES NOT MAKE NEW SUIT LIABILITY OF SURETIES.—(1) The sureties in an undertaking given to discharge an attachment in an action originally commenced against two defendants as copartners, to recover on a firm note, are liable to pay a judgment subsequently recovered on the note against the original defendants and another person, a partner in the firm, who was brought in, after plea in abatement interposed by the original defendants, by stipulation between the attorneys of the original parties for the amendment of the summons and complaint, and his subsequent voluntary appearance in the action, the summons being amended by inserting the name of the third defendant but without the order of the court or the consent of the sureties. In defense to this action which was upon an undertaking in the statutory form it was contended, first, that the judgment was not recovered in the action in which the undertaking was given, but in a new action against three defendants; and second, that it was a judgment against three persons and that the undertaking only extended to a judgment which might be recovered against the two defendants originally named when it was given. Held, that neither objection was well founded. The amendment of the summons and complaint and the voluntary appearance of a party not originally brought in was not the commencement of a new action but was the continuance of the original one with the addition of another defendant. That no order of the court bringing in the party was made cannot be objected to by the parties who consented to the amendment, and as they are bound by the judgment their sureties are. Casoni v. Jerome, 58 N. Y. 315; Schofield v. Churchill, 72 id. 565. Considering that the language of the undertaking was not chosen by the parties but was prescribed by the statute, and considering the object of the statute authorizing the undertaking, and that except for the undertaking the attached property would have been available to satisfy the judgment obtained, the second ground of objection ought to fail. (2) The admission of immaterial evidence, even if improper to prove a fact, when there was sufficient evidence besides to prove the same fact, held, not ground for reversal. Judgment affirmed. Cristal v. Kelly. Opinion by Andrews, C. J.

[Decided March 7, 1882.]

MAINE SUPREME JUDICIAL COURT ABSTRACT.

DECEMBER, 1881.*

ADVERSE POSSESSION-OCCUPANCY OF WRONG LOT BY MISTAKE.-S. received a deed of a lot of land, but took possession of the adjoining lot, claiming it as his own, and that possession was continued by him and his successors, with that claim, for more than twenty years. Held, that such possession had ripened into a title, though it appeared that there was a mistake either in the deed or in the taking of possession. The law applicable to this case in clearly laid down in Abbott v. Abbott, 51 Me. 584, and the facts bring it within the decision in Hitchings v. Morrison, 72 id. 331. Ricker v. Hibbard. Opinion by Danforth, J.

* To appear in 73 Maine Reports.

ATTORNEY-CONTROL OF, OVER PROCEEDINGS IN SUIT.-An attorney-at-law having control of a suit has control of the remedy and the proceedings connected therewith, and may release an attachment of real or personal property, and such release will bind his client as between such client and a party purchasing or taking a mortgage of such released estate on the strength of such release. Jenny v. Delesdernier, 20 Me. 183; Moulton v. Bowker, 115 Mass. 36; Pierce v. Strickland, 2 Story, 292. Benson v. Carr. Opinion by Appleton, C. J.

MORTGAGE-RIGHT OF STRANGER PAYING DEBT TO ASSIGNMENT.- A stranger to a mortgage debt, paying it with his own funds, has a right in law or in equity, at his option, to take an assignment of the mortgage and claim secured, and uphold it as a valid, subsisting mortgage, against the mortgagor and all claiming under him. The general rule that when the legal and equitable estates are joined in the same person, that of the mortgagee is merged in that of the mortgagor is not inflexible. It will depend upon the intention and interest of the person in whom the estates unite. See Hatch v. Palmer, 58 Me. 271; Wedge v. Moors, 6 Cush. 8; McCabe v. Swap, 14 Allen, 188. Lovejoy v. Vose. Opinion by Danforth, J.

RELIGIOUS CORPORATION -WHEN ACTS OF AGENT AUTHORIZED.-A religious society, at a legal meeting thereof, voted to raise a specific sum of money by various methods, including a sale of pews, and appropriate the money toward its debt; to choose an agent to regulate the sale, with directions that ten per cent of the purchase-money be paid down, and the balance in sums not less than ten per cent annually; to adopt the form of deed reported by the committee to be given purchasers; and that the pastor (naming him) "be appointed agent of the society to raise the abovenamed sum, and that he have full power to make terms, contracts and agreements with purchasers of pews, and to transact all business legitimately belonging thereto." Held, in an action on a note given for a pew sold by said agent, "for and in behalf of " said society, that the agent had authority under the vote to execute the deed. Nobleboro v. Clark. Opinion by Virgin, J.

TROVER-WILL NOT LIE TO RECOVER POSSESSION OF EVIDENCES OF DEBT FROM CREDITORS.- Where the mortgagee assigned a mortgage of real estate and the notes secured thereby, to secure a loan to him from the assignee, payable at a specified time, and the loan not being repaid on time the assignee foreclosed the mortgage, and after such foreclosure was perfected the assignor tendered the amount due, and demanded the notes and mortgage which the assignee refused to assign or transfer, held, that trover would not lie for the same. Whatever remedy the assignor may have is in equity. "A pledge of goods or chattels is completed by a delivery of them; it does not transfer the title; it only gives the pledgee a lien on them. If there be a transfer of the property it is more than a pledge, it is a mortgage. "Edw. Bailm., § 186; Langdon v. Buel, 9 Wend. 80. In Halliday v. Holgate, L. R, 3 Ex. 299, Willes, J., says: "There are three kinds of security: the first, a simple lien; the second, a mortgage passing the property out and out; the third, a security intermediate between a lien and a mortgage, viz. : a pledge, where by contract a deposit of goods is made security for a debt, and the right to the property vests in the pledgee so far as is necessary to secure the debt.' Until the debt is paid the pledgee has only the present interest. But the assignor's rights here were those of an equitable mortgagor, and not those of a pledgor. Rice v. Dillingham. Opinion by Appleton, C. J.

Tho

WAY-DEDICATION BY ACQUIESCENCE IN USE.Silent acquiescence in the use of a way by the public across his land even for several years is not of itself sufficient to establish a dedication by the owner. maintenance of a fence with bars or gate across the way by the owner of the land at any time is evidence negativing his intention to dedicate. The naked fact that the owner has suffered the way to remain open for a few years without maintaining such fence, will not of itself prove a change of intention. See Schenley v. Commonwealth, 36 Penn. St. 29; Ward v. Davis, 3 Sandf. 502; Gentleman v. Soule, 32 Ill. 279. Cyr v. Madore. Opinion by Barrows, J.

WILL-CONSTRUCTION OF PERFORMANCE OF CONDITION IMPOSSIBLE BY act of GOD EXCUSED.-M., eighty-three years of age, in 1876 made his will, giving among other bequests to his grandson D., then fourteen years old (who had lived with him from the time he was two years old, his mother being dead and his father worthless), "one hundred dollars and a suit of clothes if he remains with me until he is twenty-one years of age, to be given him by my said son J. M." who had all the property, real and personal, subject to bequests. The grandson remained with his grandfather while he lived, and with his grandmother on the place as long as she or the son wished him to do so. No complaint was made of his conduct there or of his leaving when he did. Held, that the grandson was entitled to the legacy mentioned. The testator intended to make the legacy depend on the voluntary act and conduct of the grandson, and not upon the contingency of his own life's being prolonged for seven years from the time of the making of the will; and the grandson, having performed the condition until its further performance was rendered impossible by the act of God, was entitled to the legacy which was payable at the end of a year from the time the executor qualified. In Thomas v. Howell, 1 Salk. 170, a testator devised to his daughter on condition that she should marry his nephew on or before reaching the age of twenty-one years. The nephew died at the age of twelve, and after his death, but before she became twenty-one years old, the devisee married another person. But the court held that the performance of the condition having become impossible by the act of God, the condition was not broken and the estate of the devisee became absolute. The principle upon which Thomas v. Howell was decided is recognized in Aislabie v. Rice, 3 Madd. 137; S. C., 8 Taunt. 459; and in Burchett v. Woodward, Turn. and Russ. 442; Merrill v. Emery, 10 Pick. 507; Finlay v. King's Lessee, 3 Pet. 346; McLachlan v. McLachlan, 9 Paige, 534; Hughes v. Edwards, 9 Wheat. 489; 2 Story Eq. Jur., § 1304. Decrow v. Moody. Opinion by Barrows, J.

WISCONSIN SUPREME COURT ABSTRACT.* JANUARY 10, 1882.

ESTOPPEL- ADMISSION OF INDEBTEDNESS LEADING TO SUIT.-The mere fact that during the pendency of an action for a money judgment by plaintiffs against T., B., knowing that plaintiff's were making the inquiry with a view to determining whether they should garnish him, admitted an indebtedness on his part to T., and that plaintiffs were thus induced to commence garnishment proceeding against him, does not estop him from afterward denying the existence of such indebtedness, though such admission is evidence for the jury as to the fact of indebtedness. Pierce v. Andrews, 6 Cush. 4; Jackson v. Pixley, 9 id. 490; Bank v. Fulmer, 2 Vroom, 52; Jones v. Church, 12 Pick. 557; Campbell v. Nichols, 4 Vroom, 81; Bank v. Cooper, 40 Mo. 169; * To appear in 54 Wisconsin Reports.

Kinnear v. Mackey, 85 Ill. 96; Lewis v. Prenatt, 24 Ind. 98; Ford v. Smith, 27 Wis. 261; Warder v. Baldwin, 51 id. 450; Perry v. Williams, 39 id. 339-343; Goodale v. Scannell, 8 Cal. 27; Winegar v. Fowler, 82 N. Y. 315; Bursly v. Hamilton, 15 Pick. 40. Warder v. Baker. Opinion by Taylor, J.

RECORD -RECORDING OF SEAL.- Where a tax deed as recorded purports to have been executed by the county clerk in behalf of the State and county, and duly witnessed and acknowledged, and recites that the clerk has subscribed his name officially and affixed the seal of the county board, it is admissible in evidence of title, although the only representation of a seal therein is a scroll near the clerk's name, with the word “seal” written within it. See Huey v. Van Wie, 23 Wis. 613; Scheiber v. Kaehler, 49 id. 291; Hartwell v. Root, 19 Johns. 345; 1 Greenl. Ev., § 38a; Griffin v. Sheffield, 38 Miss. 359; Smith v. Doll, 1 Cal. 510; Jones v. Martin, 16 id. 165. Putney v. Cuiler. Opinion by Cassoday, J.

NEGLIGENCE EVIDENCE-OTHER ACTS OF NEGLIGENCE ADMISSION BY OFFICER OF CORPORATIONCONTRIBUTORY, MATTER OF DEFENSE - COMPARATIVE NEGLIGENCE.-(1) In an action for injuries from defendant's negligence in permitting its telegraph wires to be down and lying across a highway at a certain spot, proof that defendant's poles and wire were down at other places, within a few miles of the place of the injury, and at other times, within a few months of the time of the injury, would seem to be admissible to show defendant's negligence. (2) An admission by the defendant company's general agent, after the injury was received, that defendant was liable therefor, was not admissible in evidence, and a judgment for plaintiff is reversed for its admission, against a sufficient objection to its competency, the court not being able to say that defendant was not injured thereby. A mere instruction to the jury, that such admission of the agent was not conclusive against the defendant company, was not a sufficient withdrawal of the evidence from the consideration of the jury; and the fact that such instruction was given at defendant's request, after its objection to the evidence had been overruled, will not cure the error of the court in admitting the evidence. Mil. & Miss. R. Co. v. Finney, 10 Wis. 388; Betts v. Farmers' L. & T. Co., 21 id. 80; Livesley v. Lasalette, 28 id. 38; Hazleton v. Union Bank, 32 id. 34; Richards v. Noyes, 44 id. 609; Rounsavell v. Pease, 45 id. 506; Austin v. Austin, id. 523; Packet Co. v. Clough, 20 Wall. 540; 2 Whart. Ev., §§ 1090, 1174 6; 2 Thomp. Neg. 848, note 7. These cases show that the rank or station of the person making the admission does not affect the question of its admissibility. In Hazleton v. Union Bank the admission of the president of the bank was held inadmissible. In Packet Co. v. Clough it was held that the admission of the captain of the boat could not be admitted. The authority to make the admission for the principal or corporation is not to be inferred from the position or rank of the party making the same. If such authority is alleged to exist, it must be shown by competent proofs. (3) It is the settled rule in this State that contributory negligence is purely matter of defense, and the burden of proof in relation thereto upon the defendant, and where evidence introduced by the plaintiff tends to show contributory negligence, while defendant may avail himself of such evidence, the burden of proof is not shifted thereby. Hoyt v. Hudson, 41 Wis. 105; Railroad Co. v. Hunter, 11 id. 160; Prideaux v. City of Mineral Point, 43 id. 524; Bessex v. Railroad Co., 45 id. 477. (4) The rule in this State is contributing to the injury, will defeat his recovery, that a slight want of ordinary care on plaintiff's part, however gross defendant's negligence may have been, provided his act was not willful and malicious. Potter v. Railway Co., 21 Wis. 372; Cunningham v. Lyness, 22 id. 245; Dreher v. Fitchburg, id. 675; Ward v. Railway

Co., 29 id. 144; McCandless v. Railway Co., 45 id. 365. Randall v. Northwest Telegraph Co. Opinion by Taylor, J.

STATUTE -CONSTRUCTION OF LEGALLY LAID OUT ROADS.- A Wisconsin statute requires, under a penalty for neglect, the erection of guide-boards at certain points upon "legally laid out roads." Held, that the words "legally laid out roads" apply only to roads laid out by the authorities in accordance with the statute upon that subject, and not to roads which have become such by mere use or dedication. See State v. Huck, 29 Wis. 202; Doughty v. Brill, 36 Barb. 488; Christy v. Newton, 60 id. 332; Talmadge v. Huntting, 29 N. Y. 447; Parker v. People, 22 Mich. 92; Roberts v. Highway Com'rs, 25 id. 23; People v. Smith, 42 id. 138. State of Wisconsin v. Siegel. Opinion by Orton, J.

NAVIGABLE STREAM- WATER OF, MAY BE DIVERTED WITHOUT COMPENSATING RIPARIAN OWNER.- Where necessary for the purpose of improving the navigation of a stream, the waters thereof may be diverted from the shores of a riparian proprietor, and he will not be entitled to compensation for the damages sustained in consequence thereof. Canal Appraisers v. The People, 17 Wend. 571; People v. Canal Appraisers, 33 N. Y. 461, 500. These cases were thoroughly discussed by learned counsel, and the opinions delivered were learned and exhaustive of the subject, and in both cases it was held "that riparian owners along a navigable stream are not entitled to damages for any diversion or use of the waters by the State." In these cases the waters were not diverted in order to improve the navigation of the same stream, but to supply the Erie canal, an artificial water-course constructed by the State. Lansing v. Smith, 8 Cow. 146, and many other cases in that State, are to the same effect. Hollister v. Union Co., 9 Conn. 436. In it was held that as to navigable rivers, the State, holding the river for that purpose, may do every thing for the full enjoyment of such right not inconsistent with the great constitutional provision that "private property shall not be taken for public use without just compensation," and that consequently the placing of piers and other obstructions in the river in good faith, by a company authorized by the State to improve the navigation of such river, by means of which the water within the banks of the river was raised and the current thereof changed opposite the plaintiff's land, by reason whereof his bank was undermined and washed away, did not give any cause of action against the company. In McKeen v. Delaware Div. C. Co., 49 Penn. St. 424, it is held that every one who buys property upon a navigable stream purchases subject to the superior rights of the Commonwealth to regulate and improve it for the benefit of all her citizens. If therefore he chooses to place his mills or his works, for the qualified use he may take of the water, within the limits or influence of high water, he does so at his own risk, and cannot complain when the Commonwealth, for the purposes of improvement, chooses to maintain the waters of the stream at a given height within the channel." The same doctrine of the right to control the navigable waters of the State by the State, without liability for damages, is held in the following cases in that State: Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 id. 9; Monongahela Bridge Co. v. Kirke, 46 Penn. St. 112; and many other decisions of the courts of that State hold the same doctrine. In Railroad Co. v. Railroad Co., 3 Cush. 53, Chief Justice Shaw says: "It is incident to the power of the Legislature to regulate a navigable stream so as best to promote the public convenience; and if in doing so, some damage is done to riparian proprietors, and some increased expense thrown upon them, it is damnum absque injuria." See also, Rundell v. Delaware & R. C. Co., 14 How, 80;

Wilson v. Blackbird Creek Marsh Co., 2 Pet. 250; | Transportation Co. v. Chicago, 9 Otto, 635; Pumpelly v. Green Bay Co., 13 Wall. 166, 181; Fay v. Aqueduct Co., 111 Mass. 27; Com'rs Homochitto River v. Withers, 29 Miss. 21; Treat v. Low, 42 Me. 552. These cases and many others hold the doctrine that the waters in a navigable river, or other navigable body of water, are so far the property of the State that the State may control them for public purposes, in their flow or otherwise, without making any compensation to the riparian owners upon the borders of such streams or bodies of water. The flowing waters in such streams are public highways, and such water-ways are as much subject to the control of the State for the purposes of the improvement of such ways as a highway upon the land. The right of the public to raise or lower the grading of a public street without being required to compensate the adjacent owners is well established by the decisions of this court. Dore v. City of Milwaukee, 42 Wis. 108; Harrison v. Supervisors, 51 id. 645. And the right to discontinue a highway without making compensation has always been recognized by the law. The right of the riparian owner to have the water of a navigable stream flow past his lands adjoining the same as they were accustomed to flow, is as perfect against everybody except the State, or some person or corporation standing in its stead, as it is in the case of unnavigable streams, and that right does not, as this court has decided, depend upon his ownership of the soil under the water, but upon his riparian ownership. See Cohn v. Wausau Boom Co., 47 Wis. 314, 322. And the right of the State to control the waters of such streams in the public interest is the same whether the ownership of the soil under the water be in the State or in the riparian owner. Wisconsin Riv. Imp. Co. v. Lyons, 30 Wis. 61; Stevens Pt. Boom Co. v. Reilly, 46 id. 237. Black River Improvement Co. v. La Crosse Booming Co. Opinion by Taylor, J.

FINANCIAL LAW.

MUNICIPAL BONDS-NOTICE OF INVALIDITY TO BONA FIDE PURCHASERS.-A purchaser before maturity of municipal bonds payable to bearer, is not, ipso facto, chargeable with constructive notice of their alleged invalidity because he undertook to satisfy himself by investigation that the condition necessary for their issuance had been fulfilled, and did not rely on their face. Such knowledge, when there are no marks of infirmity on the face of the bonds and no want of power in the municipality, is a question of fact. Where the officers issuing municipal bonds are invested with power to decide whether the conditions precedent to their issue have been complied with, their recitals to that effect in the bonds when held by a bona fide purchaser are conclusive. See Coloma v. Eaves, 92 U. S. 484; Walnut v. Wade, 103 id. 683. U. S. Circ. Ct. S. D. New York, Feb. 9, 1882. Carrier v. Town of Shawangunk. Opinion by Shipman, D. J. (10 Fed. Rep. 220).

NEGOTIABLE INSTRUMENT BILL PAYABLE TO FICTITIOUS PERSON FRAUD — DEFENSE.-(1) Where a draft or bill of exchange is made payable to a real person, known at the time to exist and present to the mind of the drawer when he makes it, as the party to whose order it is to be paid, such draft or bill must bear the genuine indorsement of such payee in order for a bona fide holder to recover thereon, although the bill is drawn without the knowledge or consent of the payee, through the false representations of a party obtaining it from the drawer by fraud. (2) Where a drawer of a bill of exchange is induced by the false

representations of a correspondent seeking to defraud him, to make a bill payable to a fictitious person, not knowing the payee to be fictitious when he makes the bill, and intending that such bill shall be payable to a real person, and thereafter transmits such bill to his correspondent with instructions to obtain a note and mortgage therefor from the payee therein named, and then to deliver to such payee the bill, and the correspondent negotiates the bill to an innocent holder for value, and before dishonor, it will be no defense against such bona fide holder for the drawer to set up that he did not know the payee to be fictitious, and as such bill runs to a fictitious payee it is as if drawn payable to bearer. Kansas Sup. Ct. Jan. 7, 1882. Kohn v. Watkins. Opinion by Horton, C. J. (27 Kan. Rep.)

FENSES SURETYSHIP.

NEGOTIABLE INSTRUMENT PAST DUE NOTE-DEA., taking an overdue and paid note from B., who is not a party to it, is deemed to have taken it upon the credit of B., and subject to the defenses which the signers could make against B., and cannot compel some of the signers (who were sureties in fact) to pay it a second time on the ground, that after it was due and paid by them and B., they authorized B. to hold and use it as a valid note against W., another signer and sole principal, and B., in violation of his trust and without authority, transferred it to A. Wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it." This principle is declared, by Ashurst, J. (Lickbarrow v. Mason, 2 T. R. 63), to be "broad and general;" but it is not without exception, and is always to be applied with great circumspection and caution. Broom's Leg. Max, 562, 563; New York Iron Mine v. Negaunee Bank, 39 Mich. 644. The purchaser of a negotiable note, dishonored or overdue, takes it subject to all the legal defenses which might have been made to it in the hands of the original holder. New Hampshire Sup. Ct. Hardy v. Waddell. Opinion by Foster, J., 58 N. H. 460.

INSURANCE LAW.

FIRE POLICY - AGENT'S AUTHORITY, PRESUMPTION AS TO ESTOPPEL — FORFEITURE - WAIVER.- One Heminway wrote for the assured and delivered to him a fire policy of insurance, upon which was indorsed "D. C. Heminway, agent." The policy contained no limitation upon the agent's authority, and no intimation was given to the insured of the existence of any restriction. Held, that H. is to be regarded as the general agent of the company so far as to bind it for any act by him done within the apparent range of his employment. The policy-holder cannot be affected by any limitation existing upon the agent's authority not communicated to him. The agent had power, on behalf of the company, to receive notice of sale and conveyance of the property insured, to waive the condition of the policy and assent to the alienation. If the agent used such language to the assured as reasonably led him to believe that the life of his policy would be secure without any further act on his part, the defendant company cannot take advantage of an omission on his part thereby induced, to work a forfeiture of the contract of insurance. In Insurance Company v. Wilkinson, 13 Wall. 234, Miller, J., says in speaking of insurance agents: "The agents are stimulated by letters and instructions to activity in procuring contracts, and the party who in this manner is induced to take out a policy rarely sees or knows any thing about the company or its officers by whom it is issued, but looks to and relies upon the agent who has persuaded him to effect insurance, as the full and complete rep

resentative of the company, in all that is said or done in making the contract. Has he not a right so to regard him? The powers of the agent are prima facie co-extensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals." That the authority of the agent will be assumed to be general in all matters relating to the effecting of the insurance, was maintained by Sharswood, J., in Mentz v. Lancaster Fire Ins. Co., 79 Penn. St. 476, a case which is cited with approbation by Chancellor Runyon, in Combs v. Shrewsbury Ins. Co., 7 Stew. 403. That such an agent may assent to alienation and waive conditions on behalf of an insurance company is established by numerous authorities. Woodbury Savings Bank v. Charter Oak Co., 31 Conn. 517; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; Goit v. National Ins. Co., 25 Barb. 189; Sheldon v. Atlantic Ins. Co., 26 N. Y. 460; Bodine v. Exchange Fire Ins. Co., 51 id. 117; Merserau v. Phoenix Mut. Co., 66 id. 274; Durar v. Hudson County Mut., 4 Zabr. 171; Shearman v. Niagara Ins. Co., 46 N. Y. 526; Wood on Fire Ins., §§ 391, 393. See also Miller v. Phoenix Ins. Co., 27 Iowa, 203; Catoir v. American Ins. Co., 4 Vroom, 487. New Jersey Court of Errors and Appeals, Nov. Term, 1881. Millville Mutual Marine and Fire Insurance Co. v. Mechanics and Workingmen's Building Association. Opinion by Van Syckel, J., 14 Vroom (43 N. J. Law), 652.

FIRE POLICY RIGHTS OF HOLDER OF, IN DISSOLVED INSOLVENT CORPORATION FIXED AT DATE OF DISSOLU

TION.-The rights of the holder of a policy in a fire insurance company dissolved on account of insolvency are fixed at the date of the dissolution. Consequently when the amount due to him at that time is the amount of premium paid for the unexpired term of the policy, the subsequent destruction by fire of the insured property, although before distribution of the assets of the company, would not give him a claim on such assets for the loss. In Miller's Appeal, 11 Casey, 481, it was held that in the case of a voluntary assignment the creditors became the owners of the assigned estate by virtuo of the assignment, and their ownership was fixed by the amount of their respective claims when the assignment was made. It follows from this that in such cases the rights of the parties are fixed as of the date of the assignment. Miller's Appeal has been followed in a number of later cases, and is settled law. There is no reason why the same principle shall not be applied to the case of an insolvent corporation which has been dissolved by a decree of the court. The corporation is dead for every purpose; but one duty remains, and that is to distribute its assets among its creditors. Who are the creditors entitled to participate in the distribution? Clearly those who were such at the time of the dissolution of the corporation. At that time the policy-holders who had suffered no loss were creditors to the extent of the premium they had paid. Beyond this they had no claim apon their policy, for no loss had occurred. A possibility of loss in the future would not be a claim upon the assets, and if it were it would be common to all policy-holders. If distribution had been practicable immediately after the dissolution the policy-holders who had not suffered loss would have received only a dividend upon the premium they had paid. Does the fact that the distribution was necessarily delayed change the rights of the parties and introduce a new class of creditors who were not creditors at the time of the distribution? There is neither reason nor authority for such a proposition. In Mayor V. Attorney-General, decided in the Court of Errors of New Jersey, at June term, 1880 (see 23 Alb. L. J. 98), it was held: "The day on which the insolvency occurred, as adjudged by the decree, fixes the time to which the several claims must be referred for adjustment, and not the date of the decree itself." And in

Commonwealth v. Massachusetts Ins. Co., 119 Mass. 51, it was said: "The proceedings under the statute are in the nature of proceedings in insolvency, the object of which is to close up the affairs of the corporation as speedily as possible. The object would be defeated if the fund in the hands of the receiver is liable for future losses, for the fund could not be distributed until the longest policy had expired by lapse of time." Pennsylvania Sup. Ct., Oct. 3, 1881. Dean's Appeal. Opinion by Paxson, J.

CORRESPONDENCE.

QUERY.

A., an assignee under the State insolvent laws of Kansas, under an order of the court to sell for cash sells at private sale on credit a large number of horses and mules belonging to the estate of the assiguor. The horses and mules at the time of the sale were affected with glanders, and a large number of them died within a few days after the sale and delivery. The assignee knew of the glandered condition of the horses at the time of the sale, but fraudulently concealed the fact and claimed that a few of the horses were apparently sick were affected with a trivial and harmless disease called Pink Eye." The purchaser was ignorant of the fact that the horses were afflicted with glanders, and did not discover it until after the confirmation of the sale by the court. Under the laws of Kansas it is made a misdemeanor to sell glandered horses. On an action for the price of the horses can the purchaser as against the assignee on the above facts defeat the claim or set up as a defense the above facts? ATCHISON, KANS. S & S.

NEW BOOKS AND NEW EDITIONS.

FULLER'S IMPOSTORS AND ADVENTURERS. Noted French Trials. Impostors and Adventurers. By Horace W. Fuller, of the Suffolk Bar. Boston: Soule & Bugbee, 1882. 12 mo. pp. 264.

THE

HE contents of this book are: The False Martin Guerre, the Woman without a Name, the Beggar of Vernon, the False Caille, the False Dauphins cases of disputed identity; Collet- the story of the world's most adroit swindler; Cartouche, the story of the most audacious of robbers; Mandrin, the story of the most considerable of brigands. This is a book which the lawyer will not lay down until he has read it through. Much of its contents is new to us, and every thing is conveyed in a clear and agreeable style, with a light and rapid touch. No fairy tale is more fascinating to a child than this book to a lawyer. It is very neatly printed and bound.

SMITH'S ELEMENTS OF THE LAWS.

Elements of the Laws; or outlines of the system of Civil and Criminal Laws in force in the United States, and in the several States of the Union. Designed as a Text-book and for general use, and to enable any one to acquire a competent knowledge of his legal rights and privileges in all the most important political and business relations of the country; with the principles upon which they are founded and the means of asserting and maintaining them in Civil and Criminal cases. By Thomas L. Smith, late one of the judges of the Supreme Court of Indiana. New and Revised edition. Philadelphia: J. B. Lippincott & Co., 1882. 12 mo. pp. 384.

This is truly an ambitious title page. It reads like a publisher's puff. The book is one of a class with which generally we have but little patience. But we feel bound to say that this is one of the best of its class. Its divisions are made with excellent judgment, its statements of the law are correct, and it is ex

pressed in a remarkably concise, exact, and intelligible manner. It is supplied with questions at the foot of every page for examinations. If law is to be studied in a common school we know not of a better text-book for the purpose. Its greatest defect is the lack of an index. It is fairly printed.

Howson's REISSUED PATENTS.

Reissued Patents. Comments on the decision of the US. Supreme Court in the case of Miller v. The Bridgeport Brass Co., Practical effects of the decision and its warning to inventors. T. & J. W. Johnson & Co., Philadelphia, Pa. 12 mo. pp. 108.

This handsomely printed title volume, bearing elsewhere than on its title-page evidence that it is prepared by H. Howson, senior, will doubtless have interest for those concerned in patents. The subject in question has been recently discussed in the American Law Review by Messrs. Cox, Baldwin, Hosea, and others at great length. Judging from the diverse views of these competent gentlemen, and the great expanse of paper that seems necessary for them to express themselves, we congratulate ourselves and our readers that we know nothing whatever of the subject, and cheerfully refer our readers to these sources of information.

Judgment affirmed, with costs-Birdrim v. Braender. - Judgment reversed, new trial granted, with costsBill v. National Park Bank. Order affirmed, with costs In re Roberts; In re opening of Eleventh avenue. ·Order affirmed, without costs In re Husson v. Raymond.- -Motion to put cause on preferred calendar-Hun v. Salter; Hun v. Van Dyck. Motion to dismiss appeal granted, with costs-St. Clair v. Day; Woodhouse v. Woodhouse. Motion for reargument

denied, with costs - Crowley v. Royal Exchange Shipping Company; Robertson v. The Metropolitan Life Insurance Company.

NOTES.

The Western Jurist, for May, contains a leading article on Negligence and Mismanagement of a Party's own Counsel as Ground for a New Trial. The Law Magazine and Review, for May, contains the following leading articles: Family Laws of England and Islam, by Almaric Rumsey; Evidence of Foreign Laws, by Sir Sherston Baker; Suzerainty, Mediæval and Modern, by Charles Stubbs; Early English Land Law- Villein Tenure and Copyholds, by Frederick Pollock. Mr. Rumsey asserts that Mohammed bequeathed to the world a "legal system remarkable for its justice, discrimination and unrivalled symmetrical beauty," and that "the Family Laws of Islam may be studied and imitated with advantage in our own country." The latter proposition we think he fairly makes out, so far as it concerns England. Our own family laws are much nearer the Prophet's humane and sensible standard,