the determination of his partnership with Mogford he would join them.

On the 25th June the defendant informed the plaintiff that he intended issuing the following printed circular to all the customers of their firm and the trade generally: "St. Dunstan's-buildings, St. Dunstan'shill, London, E. C., 1st July, 1881. - Gentlemen, - In consequence of my partnership with Mr. W. H. Mogford having expired by effluxion of time, I have joined my friends Messrs. William and James Fickus, to whose circular, annexed, I beg to draw your attention. I hope in a few days to announce the agencies with which my firm will be entrusted. I take this opportunity to thank you for your valued support during the last seven years, and to solicit a continuance of the same in the future. I am, Gentlemen, your obedient servant, T. W. COURTENAY."

There was however no circular annexed to the above.

On the 29th June the plaintiff's solicitors wrote to the defendant's solicitors a letter containing the following words referring to the above-mentioned circular: "Mr. Mogford has just called upon us with a printed form of circular which Mr. Courtenay proposes to issue on the 1st July next. We can scarcely think that you have seen a copy of it, and we feel quite confident that you cannot in any way approve of it. It is to our mind highly objectionable on two grounds: first, it is a clear solicitation to the customers of our client's firm to continue their dealings with Mr. Courtenay on the dissolution, and a gross violation of the clear expression of the second deed."

The remainder of the letter was not material to the present matter. The next day the plaintiff's solicitors received the following letter, dated the 29th June, 1880, from the defendant's solicitors: "We have received your letter of this day's date, and have advised Mr. Courtenay to alter his circular by striking out the only words to which Mr. Mogford can possibly have any objection."

The alteration here referred to was the striking out of the above-mentioned circular the words "to solicit a continuance of the same in future;" but the letter did not contain a specimen of the circular as it would appear when so altered.

On the 30th June the plaintiff's solicitors replied: "Unless your client, Mr. Courtenay, or you on his behalf, will give us immediately an undertaking not to issue any circular to customers, we shall be compelled to apply to-morrow for an injunction to restrain Mr. Courtenay from issuing such circular."

No answer having been received from the defendant or his solicitors to this letter, on the 1st July the plaintiff applied for, and upon an affidavit of the above facts, obtained an interim order restraining the defendant from issuing to any customers, or other person or persons having dealings with or connection with the late partnership between the plaintiff and defendant, the circular mentioned in the plaintiff's affidavit, or any other circular soliciting business, and from in any manner soliciting business from such customers or other person or firm."

The circular of Messrs. Fickus, referred to in the defendant's original circular, was printed on the opposite page of the same sheet of paper, from which, however, it had been torn off before the latter circular was shown to the plaintiff. It was as follows: "St. Dunstan's-buildings, St. Dunstan's-hill, London, E., 1st July, 1881. - Gentlemen - We have the pleasure to inform you that our friend Mr. T. W. Courtenay has this day joined our firm, the style of which will be Fickus, Courtenay & Co. At foot we beg to hand you our respective signatures. Thanking you for your support in the past, and soliciting a continuance in the future to the new firm, we are, gentlemen, your obedient servants, W. and J. FICKUS & Co."

Below this were fac similes of the signatures of Mr. W. Fickus, Mr. Courtenay, and Mr. James Fickus when siguing for the firm.

On the 4th July the plaintiff served upon the defendant the writ in this action, together with a notice that on the 7th a motion would be made for an injunction restraining the defendant "from either directly or indirectly applying by circular or otherwise to any customer of the partnership lately subsisting between the plaintiff and defendant, or to any other person or firm with whom the said partnership had had dealings, or for whom the said partnership had acted as agents or consignees, to continue to do business with the defendant, and from asking or soliciting such customer or other person to deal with or employ the defendant or appoint him, or any firm to which he might belong, agent or agents or consignee or consignees, and from in any manner interfering with the sole enjoyment by the plaintiff, and any person who might claim through or under him, of the good will of the said partnership business."

The defendant had never issued the circular, either in its original or amended form, and it was in evidence at the time the solicitor's letter of the 30th June was written, the defendant had not nor had he since any wish to issue or intention of issuing the original circular or any circular to which the plaintiff could reasonably object, and that he had not solicited, nor did he propose to solicit business by the means of such circular, or in any other manner so as to withdraw business unfairly from the plaintiff or to injure him in any way whatever.

By the writ the plaintiff claimed to have the partnership wound up by the court, and to be declared to be solely entitled to the good will of the business of the late partnership, besides an injunction in the terms of his notice of motion.

The motion now came on for hearing.

FRY, J., after referring to the clauses above set out from the articles and agreement, continued: Mr. Mogford is therefore a purchaser of the good will from Mr. Courtenay. The right of Mr. Mogford to possess the good will is not protected by any prohibitory covenant. Mr. Courtenay has not entered into any stipulation limiting his rights as a trader, except so far as they are limited by his being the vendor of the good will of the wine business. The rights of a late partner who has no interest in the good will of the old business to carry on trade are somewhat refined. They amount, I think, shortly to this, that he may carry on a similar trade or similar business, but he cannot carry on the identical business; he is at liberty to do every thing which flows from the right to carry on a similar business; he is prohibited or liable to be restrained from doing any thing which conduces to his carrying on the identical business; but what acts come within either of those classes is a question of very considerable nicety. In the case of Churton v. Douglas, 33 L. T. Rep. O. S. 57; Johus. 174, the late Lord Hatherley (Wood, V. C., as he then was), came to the conclusion, which Cotton, L. J., in Leggott v. Barrett, 43 L. T. Rep. (N. S.) 641, considered to be in accordance with the previous decisions, that such a person might, if he thought fit, have carried on business with the customers of the old firm, provided that he did not profess to them that his was the old business, or that he was the successor in business of the old firm; but at the same time it has been determined by Lord Romilly, in the case of Labouchere v. Dawson, 25 L. T. Rep. (N. S.) 894, which has received the assent of the Court of Appeal, that the person who has sold the good will of a business "must not ask any customers of the old business to continue to deal with the defendant or not to deal with the purchaser." I intend, for the purposes of the present moment, to proceed on the lines of

those two judgments, and the question I have therefore to ask myself is this: did the defendant intend, on the 30th June, when the action was begun, to suggest in any way that he was the successor in business of the firm of Mogford, Courtenay & Co., or did he intend in any way to ask the customers of the old firm to continue to deal with himself, or not to deal with the plaintiff? Matters stand in this way: On the 28th June of this year the defendant showed the plaintiff a printed circular, and stated his intention to issue that on the 1st July. That circular was in these terms. [His Lordship read the defendant's original circular, and continued.] It is obvious that that circular in terms is addressed to old customers of the firm, and that this language is properly applicable to nobody else. It appears from the statement in the affidavit of the plaintiff, which is not contradicted, that the intention of the defendant was to issue it to that class of persons, the customers of the old firm, and also to the trade, which I understand to mean those persons who are concerned in the wine trade, and who are therefore interested in knowing the changes which are effected in partnerships; but there is no evidence before the court to infer any intention to issue that circular to the public generally, or to persons (not customers of the old firm) who are likely to buy wine; in fact, I repeat, the language of the circular is not applicable to them. Now, it appears before the action had begun, a correspondence had taken place between the parties, and that it was the intention of the defendant, before the action had begun, to make an alteration in the terms of the circular; and the intention to make the alteration had been communicated to the plaintiff, although the precise nature of the alteration had not been made known to him. It becomes, then, in my judgment, very material to consider whether the alteration which was so proposed and of the intention to make which the plaintiff had a general knowledge, was such an alteration as satisfied the rule I have endeavored to lay down. The alteration intended was this: it was intended to strike out from the circular the words "and to solicit a continuance of the same in future," leaving however the expression of thanks for "valued support during the last seven years;" but when the circular to which it was intended to be attached is brought to my attention, as it has been, a copy of the latter having been handed up to me by the defendant's counsel as being the circular in question, I find that that is a circular signed by Fickus & Co., in which they state: [His Lordship read the circular of Messrs. Fickus & Co., and continued.] Do they affect to thank the whole of the trade for past support? It seems to me that that being addressed to the customers of the old firm of Mogford, Courtenay & Co., it must mean by implication this: "We, Fickus & Co., have become Fickus, Courtenay & Co., and having become Fickus, Courtenay & Co. we are the successors of Mogford, Courtenay & Co., and we therefore thank you for your past support of Mogford & Co." It seems to me that is the only inference; and the only evidence to rebut that was this, that it was suggested that it was intended to send that circular to the old customers of Fickus & Co. There is not a tittle of evidence of that; the only evidence is of the intention to send out the circular of the 28th to the customers of the old firm. I think therefore it is the suggestion that Fickus, Courtenay & Co. were to be the successors in trade of the old firm of Mogford, Courtenay & Co.; and that was a violation of the right of the plaintiff as a purchaser of the good will from Mr. Courtenay. I accordingly grant an injunction restraining the defendant from issuing the three circulars specifically, and also restraining the defendant, his partners, servants and agents from applying to any person who was a customer or correspondent of the late firm prior to the 30th June, privately, by letter, personally, or by a

traveler, asking such person or correspondent to continue to have dealings with the defendant or not to deal with the plaintiff. I enlarge the words which were used by the late Master of the Rolls in Labouchere v. Dawson from " customer " to " customer and correspondent," because it appears that a considerable part of the value of the trade depends, not upon persons who are distinctly customers, but upon agencies and correspondents; and therefore as the same principle applies to both, I think it is only just to extend it. I say nothing about the costs of this motion, and I only grant the injunction to the hearing of the cause.

NEW YORK COURT OF APPEALS ABSTRACT.

AGENCY -AGENT TO COLLECT RENTS NO AUTHORITY TO INDORSE CHECK PAYABLE TO ORDER OF PRINCIPAL RECEIVED FOR RENT - TRUST CHECK FOR TRUST

MONEYS TO ORDER OF TRUSTEE. — - Cruger and Beare were trustees having control of trust real estate and the renting thereof. The firm of Muller & Co. were tenants of such real estate and owed rent therefor. Beare was the acting trustee, having the exclusive management of the trust estate. He employed as his clerk and agent for the collection of rents, and other matters, one Leonard. On the 16th of November such clerk, acting as such agent, called on the firm for the rent, and they gave him a check for the amount on the Manhattan Co., payable to the order of Beare. Leonard indorsed the check thus: "Pay to the order II. K. Leonard. Thomas M. Beare, per H. K. Leonard, attorney for defendant Chemical National Bank, H. K. Leonard." On the 24th day of November Leonard deposited the check in the Chemical National Bank, and it certified thereon that the indorsement was correct and collected the amount thereof of the Manhattan Co. oud placed it to the individual credit of Leonard, who subsequently checked out the same for his own use. Beare died on the same 24th day of November. In an action by the trustee of the trust estate succeeding Cruger and Beare, against the Chemical National Bank for the amount received on the check, held, that the action was maintainable. Leonard had no authority to indorse or use the check or its proceeds, and the defendant bank had no right or authority, as against Beare or the trustees, to take, collect or appropriate the proceeds of the check. The authority which Leonard had as agent to collect the rents and transact other business for Beare, gave him no legal authority to indorse this check, and his indorsement thereof was just as ineffectual to pass any title as if he had forged Beare's name. 1 Pars. Cont. (6th ed.) 62; Hogg v. Snaith, 1 Taunt. 347; Graham v. United States Sav. Inst., 46 Mo. 186; Holtsinger v. National Corn Exch. Bk., 6 Abb. Pr. (N. S.) 292; Thompson v. Bank of Br. N. Am., 82 N. Y. 1. Although this check was made payable to the order of Beare it in fact belonged to the trustees. It was a part of the trust estate. The drawees, if chargeable upon non-payment of the check, could have been sued thereon in the name of both trustees and plaintiffs, as the successors to those trustees have sufficient title for the maintenance of this action. Talbot v. Bank of Rochester, 1 Hill, 295; Johnson v. First Nat. Bk. of Hoboken, 6 Hun, 124; Boyce v. Brockway, 31 N. Y. 490. Judgment affirmed. Robinson v. Chemical National Bank. Opinion by Earl, J. [Decided Oct. 18, 1881.]

NEGLIGENCE- -CARRIER OF PASSENGERS -DUTY AS TO CONSTRUCTING SHIP LIABILITY FOR INJURY TO PASSENGER FROM HELPLESSNESS RESULTING FROM

NEGLIGENCE. (1) In an action by a passenger on defendant's steamer, for injury received, as claimed, on the occasion of the falling of a berth, neg

ligently left unsafe, held, that the defendant was bound to use ordinary care and skill in the construction of the berths in the ship, and to use materials of sufficient strength, and so far as practicable, such as would be safe and secure against the commotion of the elements and the violence occasioned thereby, and failing to perform this duty, defendant would be liable for an injury to plaintiff directly traceable to such failure. There was evidence showing that the same fastenings were used for the berths that are used in all steamers for similar structures, and that they were ordinarily sufficient. There was also evidence that some parts of the section where plaintiff was had given away several times during the day preceding the time when plaintiff was hurt; that the attention of the steward of the vessel was called, and he fixed them up. In the evening the bottom boards of the lower tier fell and the steward was notified and refused to fix them. Held, that it was for the jury to say whether the falling of the berth, which resulted in injury to plaintiff, was due to the negligence of defendant and its servant the steward. (2) It appeared that in the confusion arising from the falling of the berths plaintiff was frightened and became almost paralyzed with fear. Before she had recovered her self-possession she was removed from her berth by the steward, placed on her feet, but from fear being unable to stand, was thrown down by the rolling of the vessel and injured. Her removal was for the purpose of repairing the berths. Held, that under the circumstances it was the duty of defendant's servants to have guarded plaintiff against injury from her being unable to care for herself. If the plaintiff was placed in a position, by the act of defendant's sorvants, which exposed her to injury, and under the circumstances was unable to protect herself, the defendant was liable for not exercising proper care in extending to her such protection as was required. Sheridan v. Brooklyn C. & N. R. Co., 36 N. Y. 39. Whether defendant's servant was guilty of negligence in the case was for the jury to determine. Judgment affirmed. Smith v. British & North American Boyal Mail Steam Packet Co. Opinion by Miller, J.; Folger, C. J., Andrews and Danforth, concur; Finch, Rapallo and Earl, dissent.

charge to the jury was extended, filling in the case more than four printed pages. At its close, as the appeal book stated, "the defendant's counsel excepts to every sentence of the charge not contained in his written requests." Held, not enough to raise a question for review. If any portion seemed objectionable the attention of the judge should have been called to it. The duty of comparison was on the counsel, and good faith toward the court and a proper regard to the rights of his adversary required him to state in what particular the charge as given differed from the charge as requested. Ayrault v. Pacific Bank, 47 N. Y. 570; Decker v. Mathews, 12 id. 313; Caldwell v. Murphy, 11 id. 416. Judgment affirmed. Schelley v. Diehl. Opinion by Danforth J.

[Decided Oct. 28, 1881.]

TITLE TO PERSONAL PROPERTY UNDER EXECUTION SALE DOES NOT PASS WHERE NO CHANGE OF POSSESSION AS AGAINST CREDITORS HEAVY MACHINERY -CITY CREDITOR FOR TAXES-SUBSEQUENT DELIVERY.—(1) Upon judgments by default against a failing corporation, execution was issued and a sale of machinery belonging to the corporation made by the sheriff to plaintiffs herein, who were individual members of the corporation or their relatives. The sale was not accompanied by an immediate or other delivery of the property sold, nor followed by any actual or continued change of possession. Held, that the pro

visions of the statute of frauds (3 R. S., 5th ed., 222, §§ 5 and 6), applied to the transaction, and the title of the purchasers was not valid against a creditor of the corporation. That the statute applies to a sale ou execution as against the purchaser, whether he be the plaintiff in the execution or a third person was early decided. Fonda v. Gross, 15 Wend. 628; Gardinier v. Tubbs, 21 id. 169. The reason of the rule and the evil at which it was aimed justify these decisions. As an honest purchaser buys because he wants the property and its possession, and therefore naturally and usually takes it, the absence of that fact indicates some purpose different from that of an honest purchaser, and requires proof of good faith and honest intention. This applies to a sale by execution where a delivery and change of possession on the sale is possible by the act of the judgment debtor and the vendee. The case of Mumper v. Rushmore, 79 N. Y. 19, distinguished. Judgments do not conclusively prove good faith as to third parties. The statute with its presumption from non-delivery and absence of changed possession draws no distinction between modes of transfer. (2) While immediate or actual removal of heavy machinery screwed to the floor of a mill may not be necessary to satisfy the statute there must be something tantamount to actual delivery, some plain surrender of possession on the one hand and assumption of it on the other. (3) Warrants for taxes against the debtor delivered to the chamberlain of a city held to constitute the city a creditor within the statute. (4) Subsequent delivery of the possession of property will not, under a sale which was invalid when made, render valid even as against a creditor who does not hold process which creates a specific lien until after such subsequent delivery. The opinion of Leonard, J., at special term, and in Dutcher v. Swortwood, 15 Hun, 34, approved. Judgment affirmed. Stimpson v. Wrigley. Opinion by Finch, J. [Decided Oct. 11, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

BANKRUPTCY ASSIGNEE MAY NOT MAINTAIN ACTION TO ENFORCE AGREEMENT BETWEEN CREDITORS.—

B. was pecuniarily embarrassed but had property he believed sufficient to pay his debts. E. and S., two creditors, brought suits against him. While these suits were pending, B. called a meeting, at which a portion of his creditors, including E. and S., were present, and all promised to accept the notes of B. for their debts, secured by a mortgage to be executed by B. and his wife, upon all his real estate including a homestead, to a trustee, for the benefit of creditors. Relying on this promise B. prepared the notes and the mortgage stipulated for was executed. B. paid no further attention to the suits. The creditors present at the meeting accepted the notes as agreed, except E. and S., who refused to do so and took judgments by default. The notes were dated before the judgments were entered, but the mortgage did not take effect until after that was done, so that the judgments were a prior lien on the real estate mortgaged. Thereafter B. went into bankruptcy and his assignee in bankruptcy brought this action to compel E. and S. to comply with the agreement made at the creditors' meeting, and to set aside their judgment. Held, that such an action was not maintainable by an assignee in bankruptcy. Such an assignee represents the general or unsecured creditors, and his duties relate chiefly to their interests. He is in no respect the agent or representative of secured creditors, who do not prove their claims. need not take measures for the sale of incumbered property, unless the value of the property is greater than the incumbrance. He has nothing to do with the disputes of secured creditors among themselves, unless

He

it becomes necessary for him to interfere in order to settle their rights in the general estate, or to determine whether there is an excess of property over what is required for the purposes of the security. McHenry v. La Société Française, 95 U. S. 58. He cannot enforce contracts between creditors, except so far as they may directly or indirectly affect the fund he is to get into his hands for distribution under the law. Neither is it any part of his duty to protect the dower rights of the wife of the bankrupt, against the consequences of her own acts before the bankruptcy, or to inquire whether the bankrupt or his wife can claim homestead rights as against incumbrancers whose title is superior to his own. As to every thing except fraudulent conveyances and fraudulent preferences under the bankrupt law, he takes by his assignment as a purchaser from the bankrupt with notice of all outstanding rights and equities. Whatever the bankrupt could do to make the assigned property available, for the general creditors he may do, but nothing more, except that he may sue for and recover that which has been conveyed away in fraud of the rights of creditors, and set aside all fraudulent preferences. As to fraudulent conveyances and fraudulent preferences he has all the rights of a judgment creditor as well as the powers specifically conferred by the bankrupt law. Decree of U. S. Circ. Ct., E. D. Missouri, affirmed. Dudley v. Easton. Opinion by Waite, C. J.

[Decided Nov. 14, 1881.]

EQUITABLE ACTION TO SET ASIDE JUDGMENT AT

LAW-NEGOTIABLE INSTRUMENT CHECK SIGNED BY

OFFICER OF CORPORATION AS SUCH. —(1) When a party has been deprived of his rights by fraud, accident or mistake, and has no remedy at law, a court of equity will grant relief. Although in view of the equitable control over their own judgments which courts of law have assumed in modern times, the judgment might have been set aside, on motion, for the cause set forth in the bill, the remedy in equity would still be open; and if the court declined to exercise the power upon motion, a resort to a bill would be necessary and proper. Formerly bills in equity were constantly filed to obtain new trials in actions at law, a practice which still obtains in Kentucky, and perhaps in some other jurisdictions; but the firmly settled practice by which courts of law entertain motions for new trial, and the dislike of one court unnecessarily to interfere with proceedings in another, has caused an almost total disuse of that jurisdiction. Courts of equity however still entertain bills to set aside judgments obtained by fraud, accident or mistake. The counsel for a defendaut in an action on a check, brought in the United States Circuit Court in Virginia, appeared at the clerk's office to plead and was informed that it was usual to file pleas in open court. When the court came on at Richmond the counsel called the attention of the judge to the case and stated that he desired to have entered the plea of nil debet. He did not file a formal written plea, as it was not customary in the State courts of Virginia to write out a plea of the general issue, but simply to have the clerk note it on the record. The judge informed the counsel that he had ordered cases against persons living where defendant did to be tried in Alexandria,. When the term of the Circuit Court came On at Alexandria, defendant's counsel learned that the case was not on the calendar there, but that after he had requested the entry of his plea at Richmond, judgment had been entered against defendant by default, a formal written plea not having been filed. Defendant had a meritorious defense. Held, that there was sufficient ground for setting aside the judgment on the ground of surprise, and that an action in equity for that purpose was maintainable. (2) A check given by the officers of a corporation on

X 100

its account, read thus: "The First National Bank of Alexandria, Va., pay to the order of A. E. & C. E. Tilton seven thousand dollars. W. G. Williams, V. Pres't." "E. P. Aistrop, Sec'y." Held, that the officers signing the check were not liable individually to one receiving the check with knowledge of its character. The ordinary rule undoubtedly is that if a person merely adds to the signature of his name the word

agent,' "trustee." "treasurer," etc., without disclosing his principal, he is personally pound. The appendix is regarded as a mere descriptio persona. It does not of itself make third persons chargeable with notice of any representative relation of the signer. But if he be in fact a mere agent, trustee, or officer of some principal, and is in the habit of expressing in that way his representative character in his dealings with a particular party, who recognizes him in that character, it would be contrary to justice and truth to construe the documents thus made and used as his personal obligations, contrary to the intent of the parties. See Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326; Brockway v. Allen, 17 Wend. 40; Kean v. Davis, 1 Zabr. 683. Decree of U. S. Circ. Ct., E. D. Virginia, affirmed. Metcalf v. Williams. Opinion by Bradley, J. [Decided Nov. 14, 1881.]

SURETYSHIP -WHEN NOTICE OF ACCEPTANCE OF

GUARANTY NOT ESSENTIAL- CONSIDERATION — CON

STRUCTION-WAIVER. —(1) The rule requiring notice of the acceptance of a guaranty and of an intention to act under it, applies only to those cases where in legal effect the instrument is merely an offer or proposal, acceptance of which by the guarantee is necessary to that mutual assent, without which there can be no contract. If the guaranty is made at the request of the guarantee, it then becomes the answer of the guarantor to a proposal made to him, and its delivery to or for the use of the guarantee completes the communication between them and constitutes a contract. The same result follows where the agreement to accept is contemporaneous with the guaranty and constitutes its consideration. It must be so wherever there is a valuable consideration, other than the expected advances to be made to the principal debtor, which passes at the time the undertaking is given from the guarantee to the guarantor; and equally so where the instrument is in the form of a bilateral contract, in which the guarantee binds himself to make the contemplated advances or which otherwise creates by its recitals a privity between the guarantee and guarantor. In each of these cases the mutual assent of the parties is either expressed or necessarily implied. The cases, Adams v. Jones, 12 Pet. 207; Russell v. Clarke, 7 Cranch, 69; Edmonston v. Drake, 5 Pet. 624; Douglas v. Reynolds, 7 id. 113; Lee v. Dick, 10 id. 482; Reynolds v. Douglas, 12 id. 497; Louisville Manufact. Co. v. Welch, 10 How. 475, and Wilds v. Savage, considered. (2) When a guaranty is expressed to be in consideration of one dollar paid to the guarantor by the guarantee, the receipt of which is therein acknowledged, it is not an unaccepted proposal, requiring notice of acceptance to bind the guarantor, but without such notice becomes binding on delivery. It is not material that the expressed consideration is nominal. That point was made as to a guarantee in Lawrence v. McCalmont, 2 How. 452, and was overruled. Story, J., said: "The guarantor acknowledged the receipt of the oue dollar and is now estopped to deny it. If she has not received it, she would now be entitled to recover it. A valuable consideration, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on any parol contract; and this is equally true as to contracts of guarantee as to other contracts. A stipulation in consideration of one dollar is just as effectual and valuable a consideration as a larger sum stipulated for or

paid. The very point arose in Dutchman v. Tooth, 5 Bingh. New Cas. 577, where the guarantor gave a guaranty for the payment of the proceeds of the goods the guarantee had consigued to his brother, and also all future shipments the grantee might make in consideration of two shillings and six pence paid him, the guarantor. And the court held the guaranty good, and the consideration sufficient." (3) Where a guaranty declares that the guarantor thereby guaranties unto the guarantee, unconditionally at all times, any advances, etc., to a third person, notice of demand of payment and the default of the debtor is waived, as well as notice of the amount of the advances, when made, when either or both would otherwise be required. But a failure or delay in giving such notices, if required, is no defense to an action upon the guaranty, unless where loss or damage has thereby accrued to the guarantor, and then only to the extent of the loss or damage proved. (4) Notwithstanding the contract of guaranty is the obligation of a surety, it is to be construed as a mercantile instrument in furtherance of its spirit, and liberally to promote the use and convenience of commercial intercourse. Judgment of Utah Sup. Ct. affirmed. Davis v. Wells, Fargo & Co. Opinion by Matthews, J. [Decided Nov. 14, 1881.]

VERMONT SUPREME COURT ABSTRACT.

JANUARY TERM, 1881.*

ADMINISTRATOR -ACTION WILL LIE AGAINST-PERSONALLY ON AWARD TO HEIRS. — An action of assumpsit will lie upon an award in favor of one of the heirs against the administrator personally, when they had regularly submitted their differences to arbitration. Such a submission by an administrator is in law regarded as a personal undertaking to pay the sum properly awarded under it. It is a contract by the administrator-not his intestate-and is subject to the same rules which govern executors' and administrators' contracts generally. According to the uniform course of the decisions in this State and elsewhere, the administrator under such circumstances is personally liable upon the award. Barry v. Rush, 1 T. R. 691; Worthington v. Barlow, 7 id. 453; 2 Rose's Bankruptcy Cases, 50; Willard v. Brewster, Brayt. 104; Moar v. Wright, 1 Vt. 57; Lovell v. Field, 5 id. 218. Administrators are held personally liable for costs (O'Hear v. Skeels, 22 id. 152); and upon personal contracts made by them, though wholly relating to the estate, may sue in their individual capacity. Bottam v. Morton, Brayt. 108; Flowers v. Kent, id. 134; Trask v. Donoghue, 1 Aik. 370; 33 Vt. 106; Adams v. Campbell, 4 id. 447; Manwell v. Briggs, 17 id. 176; 46 id. 394; Rix v. Nevins, 26 id. 384; Aiken v. Bridgman, 37 id. 249; Haskell v. Bowen, 44 id. 579. Powers v. Douglass. Opinion by Royce, J.

ATTORNEY-RIGHT OF ACTION BY SURVIVING PARTNER-STATUTE OF LIMITATIONS. — D., an attorney, was indebted to B. The two entered into a contract, by which D. was to do B.'s law business at one-half the usual price, and B. was to let D. have all his business in one county, except what he should do himself. Soon after the execution of the contract D. formed a law partnership with N.; but this contract was not made known to him. B. broke his part of the contract by giving the greater part of his law business to another attorney, and only the smaller part to D. and N. D. and N. charged their usual fees on their company book for what they did for B. A part of the account accrued more than six years before the commencement

* Appearing in 53 Vermont Reports.

of this suit, but was for services rendered in suits terminated within the six years. Held, that the plaintiff, as surviving partner, is entitled to recover; that the defendant should have performed his part of the contract before he was entitled to an application upon his debt, or a reduction of the account; that the employment of D. was a condition precedent to be performed by the defendant. That an attorney's employment in a suit is continuous; and that the statute of limitations does not begin to run on his account until the case is ended, or he is otherwise discharged. Langdon v. Castleton, 48 Vt. 52. Noble v. Bellows. Opinion by Royce, J.

INSURANCE LAW.

LIFE POLICY FOR BENEFIT OF WIFE AND CHILDREN INURES TO GRANDCHILD, ISSUE OF DECEASED CHILD.—

The

The life of H. was insured for $5,000 by a policy which was therein declared to be for the sole use and benefit of his wife, and in case of her death before her husband the amount of insurance was made payable to her children for their use, or to their guardian if under age. The wife died before H., and at his death he left two of her children living and a grandchild, the issue of another child, who died before the wife. Held, that the grandchild was entitled to share in the proceeds of the policy. By the policy an irrevocable trust was created in behalf of the wife and her children. Barry v. Equitable Life Assurance Soc., 59 N. Y. 587. same principles should be applied in its construction which govern testamentary disposition of property. The intention is clear that in the event of the wife's death before the falling in of the policy, it was to inure to the benefit of her children generally. There is no limitation to class or condition (see Teed v. Morton, 60 N. Y. 506; Low v. Harmony, 72 id. 408) nor to living or surviving children. Evidently this phraseology was intended to include the children of a deceased child. Murphy v. Harvey, 4 Edw. Ch. 131; Campbell v. Rawdon, 18 N. Y. 412; Prowitt v. Rodman, 37 id. 42; Bowne v. Underhill, 4 Hun, 130; Continental Life Insurance Co. v. Palmer, 42 Coun. 60. New York Sup. Ct., Special Term, 1st Dept., Sept. 27, 1881. Hull v. Hull. Opinion by Larremore, J.

NON-FORFEITABLE MEASURE OF DAMAGESEVIDENCE-TEXT-BOOKS - EXPERTS. —(1) A non-forfeitable policy of life insurance issued by the M. Co. to B., in the amount of $2,000, for the term of the life of the assured, among other conditions contained the following: "If the said premiums shall not be paid on or before the days above mentioned for the payment thereof, at the office of the company in the city of Baltimore (unless otherwise expressly agreed in writing), or to agents when they produce receipts signed by the president or secretary, then in every such case, the said company shall not be liable for the payment of the whole sum assured, but only for an amount proportionate to the premiums paid." In an action by B. to recover the amount of the insurance, among other things the death of the assured was proved, and that prior to his decease, twenty-seven quarterly premiums had been regularly paid from the date of the policy, and that thereafter default was made, and no other quarterly premiums had been paid; and that four other quarterly premiums had after said default became due, and were unpaid at the decease of the assured. Held, that the plaintiff was entitled to recover twenty-seven thirty-one parts of $2,000, with interest in the discretion of the court on the amount so ascertained from the date of the institution of the suit. (2) The charter and by-laws of the company aud a table referred to in the application for insurance were admissible in evidence in this case, but not the