Albany Law Journal

(2) This section was made for the protection of the party under arrest. Plaintiff is not injured by the delay, for the order of arrest remains in force. He can proceed with his action and all his remedies are perfect, no matter how long the decision of the motion to vacate the order of arrest is delayed, or even if it is never decided. (3) Until an order is entered no motion can be made to vacate it. Gallt y. Finch, 24 How. Pr. 193; Whittaker v. Defosse, 7 Bosw. 678. The order of reference may be entered by either party, and either may proceed to execute it. Peet v. Cowenhoven, 14 Abb. 56; Matter of Rhinebeck, etc., R. Co., 8 Hun, 34. Stafford v. Ambs. Opinion by James M. Smith, J.

PLEADINGALLEGATION OF LIBEL PUBLISHED AFTER SUIT BROUGHT, IRRELEVANT, ETC. A libellous publication made after suit brought is not admissible in evidence for the purpose of showing malice, nor for aggravating the damages. Frazier v. McCloskey, 60 N. Y. 337; Distin v. Rose, 69 id. 125. Yet in Corbin v. Knapp, 5 Hun, 197, circulation of the same libel after suit brought was allowed to be set up by supplementary complaint. Therefore, an allegation of such a publication, though made before service of the complaint, will be stricken out as immaterial and irrelevant. Storck v. Buffalo German Republican Printing Asso. Opinion by Beckwith, J.

SERVICE OF IMPERFECT COPY OF ORDER. - A defective copy of an order cannot be treated as a nullity if its sense and object can be ascertained from its terms and from the affidavits served. Thus, where the copy read: "It is hereby ordered that the time for the defendant to interpose his answer therein be and the same is hereby for ten days from the date thereof." Osgoodby v. Seifert. Opinion by Beckwith, J.

WILL

CONTRACT — UNDUE INFLUENCE - DEVISE - POWERS IN TRUST.—(1) In order to invalidate a will or contract on the ground of fraud or undue influence, it must be shown that certain parties made false and fraudulent statements to influence the deceased to execute the instrument, and which he relied upon as true; or that they exercised such influence over him as amounted to moral coercion, which destroyed his independent action and free agency; or that by importunity and persuasion, which he was unable to resist, he was constrained to do that which was contrary to his free will and real purpose. Brick v. Brick, 66 N.Y. 144; Cudney v. Cudney, 68 id. 148; Childrens' Aid Asso. v. Loveridge, 70 id. 387. The mere fact that the parties were very desirous that the deceased should execute the contract as he did, and were active in procuring its execution, that it was highly advantageous to them, and that it was an improvident one, and its performance on the testator's part would sult in serious loss to the estate, is not sufficient, although the contract was executed in his last sickness, and two days before his death. (2) Devise and bequest to the executors in trust to pay the income thereof to the widow during her life, and upon her decease to pay to plaintiff a legacy upon attaining his majority, and in case of his death, without issue, before that time, to defendant; and to convey and deliver the residue of the estate to defendant. Held, that the power of alienation was not suspended beyond two lives in being at the testator's death. That immediately upon the death of the widow the entire residuary estate would vest in defendant. Embury v. Sheldon, 68 N. Y. 227. The trust estate would terminate with the widow's death, and the other provisions of the will could be executed as powers in trust. Post v. Hover, 33 N. Y. 593. Where certain provisions of a will cannot be fully upheld as creating valid trusts under the statute, yet they will be executed as powers in trust whenever it can be lawfully and rightfully done. Jost v. Jost. Opinion by James M. Smith, J.

MAINE SUPREME JUDICIAL COURT AB

STRACT

HUSBAND AND WIFE-REPLEVIN DOES NOT LIE BETWEEN. An action of replevin cannot be maintained by a husband against his wife while the marital relation between them is in full force. Replevin is an action of tort. It was decided in Abbott v. Abbott, 67 Me. 304, that a wife after divorce could not maintain an action for an assault committed on her during coverture. A fortiori, an action of tort cannot be maintained by the one against the other during coverture. Hobbs v. Hobbs. Opinion by Appleton, C. J. MARITIME LAW BILL OF LADING GOODS OWNERS OF VESSELS RESPONSIBLE-AUTHORITY OF MASTER-NATURE OF INSTRUMENT-CONTRADICT

FOR WHAT

ING BY PAROL. Under a contract by a common carrier for the carriage of goods by water, evidenced by a bill of lading in the usual form signed by the proper agent in the ordinary course of business, the owners of the vessel are responsible only for such goods as are embraced in the bill of lading and delivered on board the vessel, or into the actual custody of the master, or such as were so delivered as and for those embraced in the bill before the vessel sails. It is not competent by evidence aliunde to show that such a bill of lading was intended to or did embrace goods elsewhere so as to make the owners responsible therefor. Ordinarily the master has no authority to bind the owners by giving a receipt for goods at any other than the accustomed place of delivery. There can be no constructive delivery of goods so as to bind the owners for their carriage except at such place, as where by constant practice and usage they have received property left for transportation. Rowley v. Bigelow, 12 Pick. 314; The Delaware, 14 Wall. 600; The Lady Franklin, 8 id. 329; 1 Chit. on Contr. 689 n. A bill of lading is an instrument of a two-fold character. It is a receipt as to the quantity and quality of the goods to be carried and a contract as to their carriage. As a receipt it is open to explanation or contradiction the same as other receipts. Its acknowledgment of the apparent condition of the goods, though strong proof of its truth, is no exception to the rule. An admission of that which is not true is not binding except when an estoppel. In this case the admission is not an estoppel because there has been no assignment of the bill of lading, nor has the plaintiff acquired any new rights or changed his position in consequence of it. O'Brien v. Gilchrist, 34 Me. 554; Tarbox v. Eastern Steamboat Co., 50 id. 339; Sears v. Wingate, 3 Allen, 103; Shepherd v. Naylor, 5 Gray, 591; Blanchard v. Page, 8 id. 287; Richards v. Doe, 100 Mass. 524; Hastings v. Pepper, 11 Pick. 43; Maryland Ins. Co. v. Ruden's Admr., 6 Cranch, 340; Nelson v. Woodruff, 1 Black. 156; Ship Howard v. Wissman, 18 How. 231; The Delaware, 14 Wall. 601; 2 Whart. on Ev., § 1070; 1 Greenl. on Ev., § 305. Witzler v. Collins. Opinion by Danforth, J.

NEGLIGENCEWHEN CONTRIBUTORY, QUESTION FOR JURY.-Whether a person travelling with a safe horse and carriage, in the night without a light, upon a highway wholly obscured by darkness, but in the vicinity of his residence, and over which he has travelled many years, is in the exercise of ordinary care, is for the jury to determine under all the circumstances of the case. Stevens v. Boxford, 10 Allen, 25; Williams v. Clinton, 28 Conn. 264; Norris v. Litchfield, 35 N. H. 271; Woodman v. Nottingham, 49 id. 387; Sleeper v. Sandown, 52 id. 244; Shear. & Red. on Neg., § 413 et seq. and notes. Haskell v. Inhabitants of New Gloucester. Opinion by Virgin, J.

tor is the same in form, whether the defendant be the rightful executor, or executor de son tort. Myrick v. Anderson, 68 E. C. L. 719. An executor de son tort is to be declared against as if he were the lawful executor, though the party died intestate. Brown v. Leavitt, 6 Foster, 495. The liability of such an executor is enforced against him as if he were rightful executor. Shaw v. Hallihan, 46 Vt. 389. The executor de son tort may be sued and treated as the rightful executor. Stockton v. Wilson, 3 Peun. 129. Such has been the rule in this State. Allen v. Kimball, 15 Me. 116; White v. Mann, 26 id. 361; Lee v. Chase, 58 id. 432. Sawyer v. Thayer. Opinion by Appleton, C. J.

MINNESOTA SUPREME COURT ABSTRACT.

INJUNCTION-MAY BE ISSUED IN ONE EQUITABLE ACTION TO RESTRAIN ANOTHER IN SAME COURT.- A court of equity may in one action restrain proceedings in another action before it. The general rule as to injunctions is thus stated in 3 Daniel's Ch. 1725: "Injunctions may be obtained to stay proceedings in other courts of justice, whether such courts are courts of law or equity, or spiritual courts, or courts of admiralty, or courts in a foreign country." This statement restricts the rule to staying proceedings in other courts. The power in one equitable action to restrain proceedings in another equitable action in the same court is affirmed in Erie R. Co. v. Ramsey, 45 N. Y. 637. That case decides only on the power and jurisdiction to enjoin, but does not determine when it is proper to exercise it. The same thing was decided in Prudential Assurance Co. v. Thomas, L. R., 3 Ch. App. 74, in which it was held that a bill of interpleader was a proper case in which to enjoin proceedings in another equitable suit in the same court. And inasmuch as the injunction operates only upon the parties to the action, and not upon the court in which it is pending, we can see no difference, so far as the power to restrain is concerned, between an action in the same and one in another court. In either case the power or jurisdiction exists. Mann v. Flower. Opinion by Gilfillan, C. J.

[Decided April 17, 1880.]

MANDAMUS-WILL NOT ISSUE AGAINST EXECUTIVE OF STATE. Whether under the Constitution of Minnesota any officer of the executive department of the State government can be subjected to judicial control and interference in the performance of an official duty is a question which has been before this court in different forms and at different times for consideration and decision, and the holding has uniformly been against the existence of any such jurisdiction or power in the courts. In re Application of Senate, 10 Minn. 78; Rice v. Austin, 19 id. 104; State ex rel. Treasurer of Mille Lacs County v. Dike, State Treasurer; State ex rel. Wright v. Jennison, Secretary of State, 20 id. 363; St. Paul & Ch. R. Co. v. Brown, 25 id. 517, 573, 574. The reasons for the holding are fully stated in Rice v. Austin, and Treasurer v. Dike, supra. It rests upon the constitutional principle that each of these departments of government is entirely independent of the others, so that neither can be made amenable to any other for its action or judgment in discharging the duties imposed upon it, whatever their sources or nature. The principle applies to the performance of all official duties, whether imposed by the Constitution or by legislative enactment simply, or whether they are of a character strictly ministerial, or such as call for the exercise of discretion and judgment alone. It follows that every act done or attempted to be done by any officer of the executive department, in his official and not in his individual capacity, is shielded from all judicial interference or control, either by mandamus or injunction, even though such act may be founded

in an error of judgment, or an entire misapprehension of official duty under the law. Western Railroad Co. of Minnesota v. De Graff. Opinion by Cornell, J. [Decided July 12, 1880.]

WISCONSIN SUPREME COURT ABSTRACT.

JUNE, 1880.

BANKRUPTCY -DISCHARGE OF ONE PARTNER DOES NOT RELEASE OTHER. - Plaintiff and defendant, who were in partnership, dissolved, defendant taking the assets and assuming the debts of the firm, among which were notes due F. Thereafter defendant was discharged in bankruptcy through composition proceedings, F. signing the composition agreement and receiving only a portion of the amount due. Thereafter plaintiff paid the balance due F. Held, that plaintiff was not, by the bankruptcy proceedings, discharged from liability to F., and his payment to F. was not voluntary. Ex parte Jacobs, 44 L. J. B. 34. In McGrath v. Gray, 43 L. J. (N. S.), C. P. 63, the question whether a discharge of one of two partners, by a composition in bankruptcy, discharged his copartner, was decided in the negative, after a very full discussion of the case, and a very elaborate opinion by Ch. J. Coleridge, who concludes as follows: "Consequently, an order of discharge in all these cases releases only the debtor in whose favor it is given, and leaves his solvent co-debtor liable to be sued separately by a joint creditor who has been a party to the release of the insolvent debtor." The same conclusion was arrived at by the Supreme Court of New York in Mason & Hamlin Organ Co. v. Bancroft, 1 Abb. N. Cas. 415. The argument in these cases is that the discharge had in bankruptcy, through a compromise, has the same and no greater effect as to sureties and joint contractors than the discharge granted in such proceedings without compromise. The compromise proceedings are held to be a substitute for the ordinary proceeding in bankruptcy for the accomplishment of the same object, and in construing the whole statute together it must be held that Congress did not intend to give any greater or other effect to the discharge obtained through the compromise proceedings than are given to the discharge given in the ordinary way; and as the statute provides that the ordinary discharge shall not affect the creditor's right to proceed against the sureties or joint contractors for the recovery of his debt, the discharge obtained through the compromise does not impair that right. Knapp v. Anderson, 15 B. Reg. 316; Hall v. Fowler, 6 Hill, 630; Holyoke v. Adams, 10 B. Reg. 270; Towle v. Robinson, 15 N. H. 408; In re Levy, 1 B. Reg. 220; Payne v. Able, 4 id. 327; In re Stevens, 5 id. 112; Done v. O'Neil, 6 Nev. 155; Winslow v. Parkhurst, 1 Root, 268; Blumenst. Bankr. 544, 545. Hill v. Trainer. Opinion by Taylor, J.

MUNICIPAL CORPORATION-NOT LIABLE FOR INJURY FROM DEFECTIVE APPROACH TO BRIDGE NOT OWNED BY IT IN ITS LIMITS.-A bridge was, with its approaches, owned by a corporation which took toll for its use. It was purchased by the county in which it was located and made a free bridge and maintained by the county. One of the approaches was in the city of Centralia, within the municipal limits. Some slight repairs had at one or more times been made by tho street commissioner of Centralia, upon the roadway and sidewalk of such approach, but it did not appear that they were authorized by the municipality. The public used these approaches in the same manner as a public street of the city. Held, that the city was not liable for an injury to one passing over the sidewalk of the approach, caused by a defect in such sidewalk. The county and not the city was bound to keep the bridge in repair. The approaches being for the sole

THE ALBANY LAW JOURNAL.

purpose of enabling the public to reach the bridge
And the
must be treated as part of the bridge itself.
fact that the sidewalk was used as a public thorough-
fare would not render the city liable. State v. Super
visors of Wood, 41 Wis. 28. The liability for injuries
resulting from the want of repairs to a bridge or other
highway, under the statute, rests alone upon the mu-
nicipality upon which the law casts the duty of making
the repairs, and not upon the mere fact that the high-
way is within the bounds of the municipality. This is
the doctrine laid down in Houfe v. Town of Fulton, 34
Wis. 608-617. In that case the late Chief Justice Dixon
says: "It is, of course, a proposition generally correct,
that a town is not liable for damages caused by an
insufficiency, unless the place where the injury was
received and the insufficiency exists, was a lawful
public highway, which it was the duty of the town to
The
keep in a state of reasonable safety and repair."
cases of Johnson v. City of Milwaukee, 46 Wis. 568, and
James v. City of Portage, 5 N. W. Rep. 31, distin-
Opinion by
guished. Bishop v. City of Centralia.
Taylor, J.

TRESPASS CUTTING TIMBER

WHEN PURCHASER
FROM WRONG-DOER WITHOUT KNOWLEDGE LIABLE.

H. entered upon lands of plaintiff without authority
and cut logs thereon. These logs he sold to defendant,
who did not know that H. was a trespasser, but sup-
posed H. owned the logs, and defendant went upon
plaintiff's land and removed them. Held, that defend-
ant was liable to plaintiff in trespass for the damage
done by the cutting and removal of the logs. In Dex-
ter v. Cole, Wis. 319, an action of trespass, it ap-
peared that the defendant, a butcher in Milwaukee,
was driving sheep he had purchased toward the city,
upon the highway, when they became mixed with a
small lot belonging to the plaintiff, running at large
upon the highway. The defendant drove the whole
flock into a yard near the road, for the purpose of part-
ing them, and did throw out a number which he did
not claim, and pursued his way with the remainder to
his slaughter-house, where they were slaughtered in
his business. The evidence tended to show, and the
jury found it did show, that some four of the plaintiff's
sheep remained in the flock, and were driven to Mil-
waukee and slaughtered. The court maintained the
action on the ground that any unlawful interference
with, or acts of ownership over, property, to the ex-
clusion of the owner, was sufficient to sustain the
action, and that it was not necessary to show actual or
forcible dispossession of property; that the intent did
not necessarily enter into the trespass; that it was
sufficient if the act done was without a justifiable
cause or purpose. But, perhaps, the case nearest in
point to the one at bar is Higginson v. York, 5 Mass.
"A having
341. The head note thus states the case:
entered the close of B, and having cut a quantity of
cord-wood, sells the same to C, who hires D, the master
of a coasting vessel, to go in company with C and
transport the wood to market. D was held liable for
the value of the wood in an action of trespass quare
clausum fregit, brought by B, although it was agreed
he was ignorant of the original trespass committed by
A." In Hobart v. Hagget, 12 Me. 67, an action of
trespass for taking an ox belonging to plaintiff, it was
proved that defendant met plaintiff in the street, and
bought of the latter an ox, which plaintiff directed
him to go and take out of his inclosure, and defendant,
The defendant was
by mistake, took the wrong ox.
held liable. The court say: "The taking of the plaint-
iff's ox was the deliberate and voluntary act of the
defendant. He might not have intended to commit
trespass in so doing. Neither does the officer, when,
on a precept against A, he takes, by mistake, the prop-
erty of B, intend to commit a trespass; nor does he
intend to become a trespasser, who, believing that he

is cutting timber on his own land, by mistaking the
line of division, cuts on his neighbor's land; and yet,
in both cases, the law would hold them as trespassers."
Cooley on Torts, 348, lays down the same doctrine.
Hazleton v. Week. Opinion by Cole, J.

INSURANCE LAW.

FIRE POLICY
NON-PAYMENT OF PREMIUM WAIVER.

AGENCY-AUTHORITY OF AGENT.
- In a fire pol-
made in payment of a premium note for thirty days
icy was a condition rendering it void if default was
after due. Held, that an agent of the insurance com-
pany authorized only to receive applications for insur-
ance and collect and transmit premiums had no au-
thority to extend the time of payment of a premium
note so as to avoid a forfeiture by reason of a failure
to pay such premium note within thirty days after
not thereby have authority to bind his principal even
maturity. An agent employed to collect a claim does
to grant an extension of time. Hutchings v. Munger,
41 N. Y. 155; Kirk v. Hiatt, 2 Cart. (Ind.) 322; Coming
v. Strong, 1 id. 329. Where an agent is intrusted with
a policy for the purpose of delivering it, and does de-
liver it, though in violation of a provision of the policy
as to prepayment, it has been held that the assured has
a right to assume that prepayment has been waived.
Young v. Hartford Fire Ins. Co., 45 Iowa, 377; Bowman
v. Agricultural Ins. Co., 59 N. Y. 521; Mississippi Valley
Ins. Co. v. Neyland, 9 Bush, 430; Sheldon v. Connecti-
cut Ins. Co., 25 Conn. 9. But the waiver rests, not
simply upon something said by the agent, which could
be construed into an agreement of waiver, but upon
something done by the agent which he was employed
to do. The authorities all agree that a mere agreement
to waive prepayment will not put a policy in force
It is therefore the delivery
where it is not delivered.

It is true that in Hallock v. Commercial Ins. Co., 2
of the policy which constitutes the ground of waiver.
Dutcher, 268, a recovery was allowed, although the
premium had not been paid, nor the policy delivered.
But the agreement for the insurance had been made
In
and the premium tendered, which the agent declined to
receive because the policy was not made out.
Trustees of Baptist Church v. Brooklyn Ins. Co., 19
N. Y. 305, there was a parol contract for a renewal, but
no payment of the renewal premium. It was held that
That case was
the plaintiff was entitled to recover.
substantially like the case at bar, except that the con-
tract was made by the officers of the company, and not
by an agent. The principle decided therefore was
materially different. Nor does the case at bar come
within the rule held in Viele v. Germania Ins. Co., 26
Iowa, 9. That was a case where the risk was increased
by the act of the assured contrary to the provisions of
the policy. It appeared, however, that the agent as-
sented to the use of the premises, by reason of which
the risk was increased. Such assent was held to be a
waiver of the forfeiture. There is nothing in this
doctrine that affords support to the proposition that
an agent who has not power to make a contract of
insurance can bind the company by his contract to an
indefinite postponement of the payment of a renewal
premium, and keep the policy in force in contraven-
tion of its provisions. In Bonton v. American Mut.
Life Ins. Co., 25 Conn. 542, the premium was actually
paid to the agent, though after the day it fell due.
It was held that though the agent had power to make
the contract of insurance, and had power to receive
the premium when due, he had no power, without an
express authorization, to bind the company by receiv-
ing it after it was due. Substantially the same doctrine
was held by implication in Insurance Co. v. Norton,
96 U. S. 334. In that case a recovery was allowed where
the agent had extended the time of payment of prem-

ium, but the right of recovery was made to turn upon the ground that the jury was justified in inferring from the practice of the company an authorization of the agent to extend the time of payment. There was no pretense that the agent, by virtue of his power to make the contract of insurance and collect premiums, could extend the time of payment. There is a class of cases where a receipt of premium by an agent, paid when due, has been held to be a waiver of a forfeiture incurred by a violation of a condition of the policy. See Walsh v. Etna Life Ins. Co., 30 Iowa, 133. But where an agent, who is authorized to receive premiums, receives a premium paid when due, he is acting within the scope of his general authority. The assured has a right to suppose that the payment is valid; that it becomes a payment to the company, and that the company by receiving it, if it receives it with knowledge of the forfeiture, waives the forfeiture. We have been unable to discover any rule in the law of insurance which would justify us in holding that an agent can bind the company by his consent to a postponement of a payment of a renewal premium, and keep a policy in force contrary to its provisions, unless he is expressly authorized to do so. Iowa Sup. Ct., April 22, 1880. Critchett v. American Insurance Co. Opinion by Adams, C. J.; Beck, J., dissented.

LOSS AFTER PREMIUM PAID BUT BEFORE ISSUE OF POLICY EQUITY MAY ENFORCE PAYMENT MIS

Life Ins. Co., 25 Conn. 207. (2) A condition of the policy is that any interest in property insured not absolute, or that is less than a perfect title, must be represented to the company and expressed in the policy. The insured has the fee simple estate in the building, conveyed by deed reserving a lien for the purchasemoney, about $350; the house worth $1,700. The con dition has reference to the quantity of the interest or estate, which is measured by its duration. Or if not, the words used cannot have been intended to guard against mere incumbrances. (3) The provision in a policy requiring "immediate notice," in case of loss, or as in some policies, what is equivalent, notice "forthwith," must have a reasonable construction. It has always been held, it is said, that due diligence, under all the circumstances, is all that is required. New York Central Ins. Co. v. National Protection Ins Co., 20 Barb. 468, 475. Virginia Sup. Ct. of Appeals. January term, 1879. Woody v. Old Dominion Insurance Co. Opinion by Brooks, J.; Staples, J., dissented. (Appearing in 31 Grattan's Reports.)

FALSE PRETENSES- EVIDENCE -INTENT OF OTHER ACTS OF LIKE CHARACTER.-Upon the prosecution of T. for obtaining goods from M. & Co. upon false pretenses, evidence that the accused, in the same city and at or about the same time, purchased goods from other parties, B. & O., upon the same false pretenses, is admissible to show the intent of the accused in making the representations to M. & Co., but not as

REPRESENTATION-TITLE-NOTICE OF LOSS.- (1)
Where a contract for the insurance of a building has
been made with the agent of an insurance company
having authority to issue policies, and the premium
has been paid, but before the policy is issued the build-proof that the accused had committed other offenses
ing is consumed by fire, a court of equity has jurisdic-
tion to enforce the payment of the policy at the suit of
the assured against the insurance company. Tayloe v.
Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Com.
Mut. Marine Ins. Co. v. Union Mut. Ins. Co., 19 id.
318; Post v. Etna Ins. Co., 43 Barb. 351; Angell on
Ins., § 34; Wood on F. Ins., § 12. The terms of the in-
surance having been agreed upon by the applicant for
insurance and the agent of the insurance company, the
applicant tenders to the agent the money for the pre-
mium; but the agent living in the house, and being
indebted to the applicant for rent, tells him he has in
his hands money belonging to him for rent, and will
credit him for that amount. This was a valid payment
of the premium. Hallock v. Commercial Ins. Co., 2
Dutch. (N. J.) 298. Here plaintiff tendered to an agent,
who was applied to for insurance, the premium, and
the agent declined it, and said he would consider it
paid, and leave it with plaintiff, who was a banker
with whom the agent kept his accounts. The appli-
cation was sent by the agent to the company, the risk
was accepted to commence from a previous day, and
the policy signed was forwarded by mail to the agent:
but it turned out that the building insured was de-
stroyed by fire on the very day the policy was sigued,
and two hours before it was so signed. The company,
being ignorant of the fire when the policy was signed.
countermanded the policy. The company was held
estopped from denying that it had received the pre-
mium. See, also, New York Cent. Ins. Co. v. National
Protection Ins. Co., 20 Barb. 468; Chickering v. Globe
Mut. Life Ins. Co., 116 Mass. 321; Goit v. National
Protection Ins. Co., 25 Barb. 189. In Bouton v. Amer-
ican Mut. Life Ins. Co., 25 Conn. 542, it was decided
that an agreement, made in good faith between an in-
surance agent having authority to receive an insurance
premium and the insured, that the agent shall become
personally responsible to his principals for the amount
of such premium, and the insured his personal debtor
therefor, constitutes a payment of the premium as be-
tween the insured and the insurance company. The
same principle was affirmed in Sheldon v. Conn. Mut.

not charged in the indictment. And this, though the
statute has made the obtaining goods on false pretenses
larceny. Whenever the intent or guilty knowledge of
a party charged with crime is a material ingredient in
the issue of the case, other acts and declarations of a
similar character tending to establish such intent or
knowledge are proper evidence to be admitted, pro-
vided they are not too remotely connected with the
offense charged; and what are the limits as to the time
and circumstances is for the court, in its discretion, to
determine. Upon an indictment for maliciously
shooting at the prosecutor, it has been held proper to
show that the accused had twice shot at the prosecu-
tor the same day, for the purpose of rebutting the idea
of accident, and of establishing the willful intent.
Reg. v. Voke, Russ. & Ry. 531. And so, upon a pros-
ecution for administering sulphuric acid to horses,
with intent to kill them, evidence is admissible that
the prisoner had frequently mixed sulphuric acid with
horses' corn. Reg. v. Mogg, 4 C. & P. 364. Upon an
indictment for libel, the publication of other libels
not laid in the indictment may be given in evidence to
show the quo animo the defendant made the publica-
tion in question. 1 Greenl. on Ev., § 53. Indeed, the
cases upon this subject are almost innumerable, as may
be seen upon examination of the books on criminal
law. 3 Russ. on Crimes, §§ 285, 287, 288; Roscoe on Cr.
Ev. 86, 94; Bottomley v. United States, 1 Story, 135;
Cook v. Moore, 11 Cush. 213. In such cases it has been
held that even the admission of the accused that the
act was done with a fraudulent intent did not preclude
the prosecution from proving it. Commonwealth v.
McCarthy, 119 Mass. 354; Priest v. Groton, 103 id. 530.
In civil cases the decisions are abundant which hold
that on the question of intent to defraud by false pre-
tenses, other acts or representations of a like character
done at or about the same time with that in issue are
admissible with a view to the quo animo. McKinney v.
Dingley, 4 Greenl. 172, is an example. There the suit
was to avoid a sale on the ground of the false and
fraudulent conduct of the purchaser in representing
himself to be a man of good property and credit when

he was not; and it was held proper for the vendor to give evidence of similar false pretexts successfully used to other persons in the same town about the same time to show a general scheme to amass property by fraud. In Hennequin v. Naylor, 24 N. Y. 139, for the purpose of proving the fraud the vendor relied in part upon the fact that the defendant had purchased of several persons large bills of goods, the plaintiff, among the rest, just on the eve of suspension. See, also, Whittier v. Varney, 10 N. H. 291, 477; Murfey v. Brace, 23 Barb. 561; Allison v. Matthieu, 3 Johns. 234; Olmsted v. Hotailing, 1 Hill, 317, 1 Phillips' Ev. 653, 773. In criminal cases the same rule has been followed. Commonwealth v. Eastman, 1 Cush. 189, an indictment for obtaining goods or money under false pretenses, evidence of other purchasers about the time of the alleged offense was held admissible to prove intent. This case was followed in Commonwealth v. Tuckerman, 10 Gray, 173: Commonwealth v. Jeffries, 7 Allen, 548. See, also, Wood v. United States, 16 Pet. 342; Bielschofsky v. People, 3 Hun, 40; Reg. v. Roebuck, 2 D. & B. 24; Queen v. Frances, L. R., 2 Cr. Cas. Res. 128. Sup. Ct. of Appeals, Virginia. Trogden v. Commonwealth. Opinion by Staples, J. (Appearing in 31 Grattan's Reports.)

NEW BOOKS AND NEW EDITIONS.

KERR ON INJUNCTIONS.

A Treatise on the Law and Practice of Injunction. By William Williamson Kerr, A. M. Second American, from the second English edition. Edited, with notes and references to American cases, by Wm. A. Herrick. Boston: Little, Brown & Co., 1880. Pp. lxiv, 644.

THE

Mr.

IE former American edition of this work was published in 1871, and contained 736 pages. The editor of the present edition has wisely omitted some matter having exclusive reference to English statutes, and has inserted about one hundred pages on injunctions in equity to restrain proceedings at law. The subject is of the first importance, and has received a great deal of adjudication in modern days. The equitable power of the court is a variable and elastic one, incapable of fixed and strict bounds, but dependent on times, places, and the differing characteristics of magistrates. There is no branch of the law less dry, or appealing more to the inventive and metaphysical faculties. Kerr's work was founded on English authorities, and its value for the American lawyer must in large degree depend on the editor. The original work was a sound, judicious and well-written one, and the citations by the editor seem to be copious, but by no means exhaustive. Perhaps it is impracticable to exhaust the subject, for it trenches on many other topics of the law, which have been separately and elaborately treated, as for example, copyright, nuisance, patents, trade-marks, etc. In describing the editor's labors we use the word citations rather than annotations, as the more correct designation. With this work, and Mr. High's, the practitioner cannot go astray, and he will probably not be safe without both.

WHARTON'S CRIMINAL EVIDENCE.

In this volume Dr. Wharton completes at once his grand works on Evidence and Criminal Law, both of which we have so fully spoken of that detailed comment on this is unnecessary. It is sufficient to say that in our opinion it is quite unrivalled; uniting philosophy with common sense in treatment; couched in an exact and felicitous style; and so comprehensive and exhaustive as to embrace all important decisions, from the earliest days of our law to the present year in its examinations. The volume contains 334 pages, with independent tables of contents and cases, and index, and is published by Kay & Brother, Philadelphia.

THROOP'S JUSTICES' MANUAL.

The New York Justices' Manual, containing all the Laws of the State, relating to the official tenure and duties of a Justice of the Peace, and the Proceedings in Civil Cases before him, in force on the first of September, 1880; with Explanatory Notes and an Appendix of Forms, by Montgomery H. Throop, late one of the Commissioners to revise the Statutes. Albany: John D. Parsons, Jr., 1880. Pp. xvi, 624.

The enactment of the nine chapters Code bill has made an entirely new body of law appertaining to justices' courts. The design of this book is to lay before the justice of the peace and practitioners in his court every law concerning every subject in respect to which the latter may call on the former to act. The result of our examination is a conviction that it is admirably planned and faithfully executed. No man in the State can be better qualified by experienceprobably none so well-than the author for this particular task. There seems to be no omission, so far as we can judge, and with this manual before him the justice can be satisfied that he has the whole body of the law. An excellent index and 160 forms will enable him and practitioners to find and apply these laws. The work should be in the hands of every person who has any interest in the courts of our justices of the peace and the enormous mass of litigation which is there disposed of.

KENNY'S ENDOWED CHARITIES.

The true Principles of Legislation with regard to Property given for Charitable or other Public Uses. By Courtney Stanhope Kenny, LL. M., of Lincoln's Inn, Fellow and Law Lecturer of Downing College, Cambridge, England. Pp. 274. London: Reeves & Turner, Chancery Lane, 1880.

The matter of this book was written as an essay for the Yorke Prize of the University of Cambridge, England. This is one of a class of books that we think, and are glad to think, is becoming larger. It is not the result of the desire to make a book so much as of a desire to express the thoughts and conclusions of study of the author upon a subject that has attracted and interested him and led him to reflection. It treats of property given for charitable or other public uses. It was written as a contribution to the discussion on

the question of charity reform, and from the position that endowed charities have done more good than harm; that they should be protected and encouraged; but at the same time superintended and controlled. Of course from the situation of the author it is addressed to the British public, and deals with the question mostly as it is of practical importance in Great Britain. Yet it is a work of interest to us in this country, where as wealth accumulates and men decease, large and still larger sums are left for public uses. Nor is it without discussion of the question as we are concerned with it, and there are in it important suggestions worthy of consideration by the lawyer and legislator of these States, notably as to the connection of the subject with the growth of ecclesiastical wealth and power. The essay starts with stating three peculiarities of charitable endowments, viz., indefiniteness, meritoriousness, and perpetuity, and therefrom deduces that there is the need of supervision, restriction and revision, by governmental power. It discusses the question whether those endowments should be prohibited by law, and answers it in the negative. It points out the measures that the lawgiver should take for restriction, supervision and revision. It claims that there should be restriction by law upon the purposes; the nature and extent of the subject-matter; the persons who may give and take; the time when the gift may be made and when it may take effect the solemnities and the publicity that should go with it. That there should be supervision,

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