INSURANCE LIFE POLICY WHEN GENERAL AGENT MAY NOT WAIVE CONDITIONS APPEAL-WRONG REASON FOR RIGHT DECISION.

(1) A life insurance policy contained an express provision that any alteration or waiver of its conditions "unless made at the head office and signed by an officer of said company, shall not be considered as valid." Held, that a general agent of the company in a place other than the head office had no authority to waive a condition requiring payment of premium when due, even though it may be inferred from the character of his office that a general agent of an insurance company has authority to waive conditions in a policy (Carrol v. Charter Oak Ins. Co., 1 Abb. Ct. App. 318; Sheldon v. Atlantic Ins. Co., 26 N. Y. 465) where he is instructed by an express provision in the policy brought home to the assured he may not. The cases Van Allen v. Farmers' Jt. St. Co., 10 Hun, 399; Pechner v. Phoenix Ins. Co., 65 N. Y. 207; Marcus v. St. Louis Ins. Co., 68 id. 625, put a broad construction upon the powers of a general agent. The true rule and its utmost extent was well stated in Insurance Co. v. Wilkinson, 13 Wall. 222, that the powers of a general 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." See, also, Walsh v. Hartford Ins. Co., 73 N. Y. 5. (2) This court will not reverse a correct decision of the court below because founded upon a wrong reason, unless possibly in a case when the ground of decision stated could be seen to have misled a party to his injury. The rule has been so declared. Deland v. Richardson, 4 Den. 95; Scott v. Pilkington, 15 Abb. Pr. 280; Gillespie v. Torrance, 4 Bosw. 36; affirmed, 25 N. Y. 306. Judgment affirmed. Marvin v. Universal Life Insurance Co. Opinion by Finch, J.

[Decided May 10, 1881.]

STATUTORY CONSTRUCTION LAWS 1853, CHAP. 502, GIVING RAILROAD STOCKHOLDERS RIGHT TO REDEEM FROM MORTGAGE REPEALED. -The second section of Laws 1853, chapter 502, provides that any stockholder of a railroad company whose railroad has been sold under foreclosure of a mortgage shall for six months after the sale have the right, on paying to the purchaser under such sale a sum equal to such proportion of the price paid on such sale as such stockholder's stock shall bear to the whole capital stock of said company, be entitled to have the same relative amount of stock in said company and its road, etc. Held, that the provisions of Laws 1854, chapter 282, and Laws 1874, chapter 430, for the organization of corporations to operate railroads by those who have acquired title to railroad property under sales upon foreclosure, being inconsistent with those of the act of 1853, by implication repealed the latter, according to the maxim that every affirmative statute is a repeal by implication of a precedent affirmative statute, so far as it is contrary thereto. Bacon Abr. Stat. D. Judgment affirmed. Pratt v. Munson. Opinion by Danforth, J. [Decided March 22, 1881.]

UNITED STATES CIRCUIT COURT AB

STRACT

CONFLICT OF LAW LIMIT OF AUTHORITY OF STATES AS TO, BORDERING NAVIGABLE RIVERS. The limit of the authority of States bordering on a navigable river is to protect their own shores and harbors, without interfering with the opposite shores, or common rights of navigation, Where such a State authorizes a structure which, but for such authorization, would be considered a nuisance, its own citizens must accept the legal consequences, though not with* Appearing in 7 Federal Reporter.

out the recovery of damages; but it cannot pass a law to govern a State bordering on the opposite shore, or its citizens, or the realty situated therein. Transportation Co. v. Chicago, 99 U. S. 635; Weeks, D. A. Inj., § 8; Radcliff v. Mayor, 4 Comst. 195; Imler v. Springfield, 55 Mo. 125; Northwest Pack. Co. v. Atlee, 2 Dill. 479, and 21 Wall. 389. U. S. Circ. Ct., E. D. Missouri, Jan. 3, 1881. Reitz v. City of St. Louis. Opinion by Treat, D. J.

RESIDENCE OF PARTIES.

REMOVAL OF CAUSEA bill in equity to establish a resulting trust in land in possession of a mortgagor, upon facts occurring before the mortgage, to which the mortgagee, a citizen of another State than the plaintiff, is made a defendant. cannot be removed to the Federal court on his application, where the mortgagor, being also a defendant, is a citizen of the same State with the plaintiff, the controversy of the plaintiff with either defendant being inseparable from the other. Walden v. Skinner, 101 U. S. 577; Life Association, etc., v. Rundle, id. 500. Such controversy as plaintiff has with the mortgagee is inseparable from that had with the mortgagor, and they are each indispensable parties to a bill like this, in any possible view that may be taken of the case. Hill, Trusts (3d Am. ed.), 246; Perry, Trusts, § 877; 1 Daniell, Ch. Pr. (5th Am. ed.) 246 et seq.; Story, Eq. Pl., §§ 209, 213; Burt v. Dennet, 2 Bro. Ch. 225; Lund v. Blanshard, 4 Hare, 9, at pp. 29-30; Bailey v. Inglee, 2 Paige, 278; Findlay v, Hinde, 1 Pet. 241, 246; Mallow v. Hinde, 12 Wh. 193; Smith v. Shane, 1 McL. 22; Hoxie v. Carr, 1 Sumn. 173; Gaylords v. Kelshaw, 1 Wall. 81. Note. Consult Dillon, Rem. Ca. (2d ed.) passim; 20 Am. Law Reg. (N. S.) 24, 31; Dormitzer v. Bridge Co., 6 Fed. Rep. 217; Broadway Nat. Bank v. Adams, 12 Cent. L. J. 356; Bybee v. Hawkett, 5 Fed. Rep. 1; Hester v. Kernochan, 13 Chic. L. N. 225; Smith v. McKay, 4 Fed. Rep. 353; Merchants' Nat. Bank v. Thompson, id. 876; Shumway v. Railroad Co., id. 385: Ruble v. Hyde, 3 Fed. Rep. 330; Bailey v. N. Y. Bank, 2 id. 14; Whitehouse v. Ins. Co., id. 498; Railroad Co. v. McComb, 17 Blatchf. 371; Cooke v. Seligman, id. 452; Forrest v. Keeler, id. 522; Barney v. Latham, Sup. Ct. U. S.; 23 Alb. L. J. 446; Blake v. McKim (Sup. Ct. U. S.), id. 455. U. S. Circ. Ct., W. D. Tennessee, April 25, 1881. Chester v. Chester. Opinion by Hammoud, D. J.

PRIVILEGE -ONE ATTENDING TO TAKE DEPOSITION PROTECTED FROM CIVIL PROCESS. - In this case, which was in Vermont, one of the defendants having gone to Iowa to attend the taking of a deposition, under order of the master, the orator caused service of summons to be made upon him, in a suit in the Iowa State court, for same cause of action involved in this suit. Held, that such action was a contempt of court, whether so intended or not, and the suit having been removed to the Federal court, a stay of execution in this suit, until evidence of the discontinuance of the Iowa suit was filed, was granted the defendants, and they were allowed the expenses of such suit, including reasonable counsel fees, imposed as a fine against the orator. The privilege to parties to judicial proceedings, as well as others required to attend upon them, of going to the place where they are held, and remaining so long as is necessary and returning wholly free from the restraint of process in other civil proceedings, has always been well settled and favorably enforced. It is mentioned in the Year Book, 20 Henry VI, 10, and enforced to protect not only the body of a suitor from arrest, but his horse and other things necessary for his journey, which would otherwise be attachable, by the custom of London, from seizure for debt. Bac. Abr. Privileges," 4, 17, 55; Sellon's Pr. 123; Meekins v. Smith, 1 H. Black. 636; Norris v. Beach, 2 Johns. 294. It extends to every case where attendance is a duty in conducting any proceeding of a

judicial nature (Bac. Abr. “Privilege," B 2; 1 Greenl. Ev., § 317); to attending upon an arbitrator under a rule of court (Spence v. Stewart, 3 East, 89); upon commissioners in bankruptcy (Arding v. Flower, 8 T. R. 534); to witness giving a deposition under an order of court (1 Greenl. Er., § 317; United States v. Edine, 9 Serg. & R. 147); and to a party inquiring after evidence under leave of court (Bac. Abr. "Privilege," B 2). The privilege arises out of the authority and dignity of the court where the cause is pending, and protection against any violation of the privilege is to be enforced by that court, and will be respected by others. Hurst's Case, 4 Dall. 387. A writ of protection issued out of that court is proper, but is not necessary, except for convenient and authentic notice to those about to do what would be a violation of the privilege. It neither establishes nor enlarges the privilege, but merely sets it forth, and commands due respect to it. McNeil's Case, 6 Mass. 245; 1 Greenl. Ev., § 216. See, also, Hall's Case, 1 Tyler, 274; Halsey v. Stewart, 1 South, 366; Miles v. McCullough, 1 Binn. 77; Blight v. Fisher, 1 Pet. C. C. 41; Watson v. Jones, 13 Wall. 679; Steiger v. Bonn, 4 Fed. Rep. 17; Sugar Refinery v. Mather & Son, 2 Cliff. 304. U. S. Circ. Ct., Vermont, Dec. 21, 1880. Bridges v. Sheldon. Opinion by Wheeler, D. J.

ILLINOIS SUPREME COURT ABSTRACT.*

A

CONTRACT FOR PERSONAL SERVICE. An employer is entitled to the labor and skill of an employee in the pursuit of the business which he was employed to transact, during business hours, but has no claim to his labor or earnings before or after such hours. person employed by a firm as a book-keeper and accountant, may recover for services rendered to another person at his request out of business hours, and also for services during business hours performed by him with the consent and permission of the firm employing him. Wallace v. De Young. Opinion by Walker, J.

ELECTION TO AVOID SALE-IRREGULARITIES - PURCHASER WITHOUT NOTICE NOT AFFECTED BY MUST

BE EXERCISED IN REASONABLE TIME. (1) A person having the right of election to abide by a sale of his property or disaffirm the same, must exercise his option within a reasonable time, and before innocent third parties have invested money or labor upon the faith of its validity; and if he shall not do so, he will be barred from setting it aside. Where the former owner of property sold under a deed of trust, with full knowledge that the sale was not made by the trustee to whom the power of sale was given, and that it was bid off by one not for himself, but for the benefit of the trustee, makes an agreement with the purchaser and agents of the trustee for time in which to procure a purchaser of the property, such arrangement is of itself an election to treat the sale as valid. Hamilton v. Lubukee et al., 51 Ill. 415; Munu v. Burges, 70 id. 636; Mulvey v. Gibbons, 87 id. 367; McHany v. Schenk, 88 id. 357. (2) A purchaser of land who has no notice of any irregularities in the proceedings by which his vendor acquired title, will be protected against the same. Whero real estate was sold under a deed of trust, and the proceedings were such that the former owner might have had the sale set aside in equity, and he, with full knowledge of the irregularities of the sale, stands by and sees the purchaser sell to a third party without notice, and interposes no claim or objection, and allows such third person to pay out his money for the property and make large expenditures in improvements, such second purchaser will be protected against the former owner. Jenkins v. Pierce. Opinion by Scholfield, J. [Decided May 14, 1881.]

* To appear in 98 Illinois Reports.

--

MUNICIPAL CORPORATION — AUTHORITY TO PRESCRIBE MATERIAL FOR BUILDINGS IN LIMITS OF, MAY BE CONFERRED ON. The delegation of legislative power to a city to prohibit the erection, placing or repairing of wooden buildings within limits prescribed by ordinance, without permission, and to direct aud prescribe that all buildings within the limits prescribed shall be made or constructed of fire-proof materials, and generally to define and declare what shall be nuisances, and to authorize and direct the summary abatement thereof, etc., is within the competency of legislative power, and authorizes the passage of an ordinance prohibiting the erection, or repairing of any building within the fire limits, with combustible materials, and providing for the summary abatement or removal of the same. Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may be prohibited in the midst of dense masses of population, on the general principie that every person ought so to use his property as not to injure his neighbor, and that private rights must be subservient to the general interests of the community. An ordinance of a city passed in pursuance of legislative authority, establishing fire limits, and declaring that a wooden roof put on a building thereafter within the fire limits to be a nuisance, and requiring the city marshal, under an order from the mayor, to remove the same, is reasonable exercise of the police power of the State, and has the force and effect of a statute, when set up in justification by the marshal in removing such a roof. Hart v. Mayor of Albany, 9 Wend. 571; Baker v. Boston, 12 Pick. 193; Vanderbilt v. Adams, 7 Cow. 349; Stuyvesant v. Mayor of New York, id. 588; Dore v. Gray, 2 T. R. 358; Governor, etc.. v. Meredith, 4 id. 794; Wadleigh v. Gilman, 3 Fairf. 403; Cooley Const Lim. (4th ed.) 748; Watertown v. Mayo, 109 Mass. 315; Blair v. Forehand, 100 id. 136; Morey v. Brown, 42 N. H. 373; Murray's Lessee v. Hoboken Land Co., 18 How. 272; Toledo Wat., etc., R. Co. v. City of Jacksonville, 67 Ill. 40. See, also, Austin v. Murray, 12 Pick. 126. King v. Davenport. Opinion by Sheldon, J.

[Decided March 21, 1881.]

NORTH CAROLINA SUPREME COURT AB

STRACT.*

JANUARY TERM, 1881.

CHATTEL MORTGAGE — LIABILITY OF MORTGAGEE TAKING POSSESSION BEFORE DEFAULT.- - A mortgagee who takes possession of personal property conveyed by a chattel mortgage, before default, is answerable to the mortgagor for the value of any reasonable use to which the property is or could have been put. But an injury to a crop resulting from the taking of a mule needed in its cultivation is too remote to be recoverable as consequential damages. In Bennett v. Butterworth, 12 How. 367, referring to slaves held as security, "the defendant having possession of the slaves and an entire control over them was bound to exercise a reasonable diligence in keeping them engaged in useful employments so as not only to pay their necessary expenses, but also to obtain a reasonable compensation for their labor." "Certainly a mortgagee in accounting for the hire of a mortgaged slave," says the court in Overton v. Bigelow, 10 Yerg. (Tenn.) 48, "is never charged a larger sum than could be procured for the slave by a contract which would create on the part of the hirer all those duties and responsibilities, and it is difficult to see why the mortgagee should not be held to their performance." "If the mortgagee is in possession," * Appearing in 84 North Carolina Reports.

remarks Reeves, J., in Whitmore v. Parks, 22 Tenn. 94, so far from being entitled to the beneficial enjoyment of hire or rents and profits, he is liable to account for them to the mortgagor." A recent author, quoting McLean, J., says, "the doctrine established by the adjudicated cases is equally applicable to other property yielding an income to its owners, and includes horses within its operation." Humph. on Chat. Mort., $ 140. So in regard to land, Rufin, C. J., declares: "Whatever may be the rule when a mortgagee enters into possession by receipt of rent of premises occupied by tenants, we conceive that when he enters by taking the actual possession and occupies himself, he makes himself tenant of the land, and subjects himself to the highest fair rent, and becomes responsible for all such acts or omissions as would, under the usual cases, constitute claims on an ordinary tenant." Morrison v. McLeod, 2 Ired. Eq. 108. See, also, Sledge v. Reid, 73 N. C. 440. Jackson v. Hall. Opinion by Smith, C. J.

CONTRACT IMPLIED CONTRACT-UNDISCLOSED INTENTION DOES NOT AFFECT. — In an action against an administrator to recover for professional services rendered by the plaintiff, a physician, to the defendant's intestate, which was resisted on the ground that they were intended to be and were gratuitous, plaintiff admitted that he had made no entry of a charge upon his books; and defendant testified that at the administration sale the plaintiff bought a horse and proposed to pay for him from his account, remarking that he had not intended to charge the intestate, but that seeing others present their accounts, he concluded to present his own. Held, that if there was no common understanding between plaintiff and the intestate that the services were to be gratuitous, plaintiff was entitled to recover. A contract express or implied, executed or executory, results from the concurrence of two or more persons, and its legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it; it is not what either thinks but what both agree. Brunhild v. Freeman, 77 N. C. 128; Pendleton v. Jones, 82 id. 249. Prince v. McRee. Opinion by Smith, C. J.

PROCURED BY AGENT FROM HIS PRINCIPAL BY FRAUD MAY BE RESCINDED BY PRINCIPAL.

- Plaintiff, station agent of a railroad company, sues the company in damages for breach of an alleged contract in failing to furnish a train for an excursion. Upon correspondence had the company supposed the train was intended for a third party and agreed to supply it on certain terms, but afterward refused on discovering that plaintiff was attempting to procure it for his own benefit. Held, that plaintiff could not from his fiduciary relation toward the company enter into a binding contract with it for such purpose, unless it agreed thereto after being fully advised of all the circumstances. Brunhild v. Freeman, 77 N. C. 128; Pendleton v. Jones, 82 id. 249; Story on Ag., § 211; Ringo v. Binns, 10 Pet. 269. Pegram v. Charlotte, Columbia & Augusta Railroad Co. Opinion by Smith, C. J.

MORTGAGE IMPROVEMENTS ON LAND BY MORTGAGOR. Improvements put upon land by a mortgagor become additional security for the debt, and do not entitle him or any one claiming under him to any part of the proceeds of a foreclosure sale, unless there be a surplus after satisfying the debt. It may now be considered as an established principle of equity, that whenever a plaintiff seeks the aid of a court of equity to enforce his title against an innocent person, who has made improvements on land, without notice of a superior title, believing himself to be the absolute owner, aid will be given to him, only upon the terms that he shall make due compensation to such innocent person to the extent of the enhanced value of the premises, by reason of the meliorations or improvements, upon

the principle that he who seeks equity must do equity. Story's Eq. Jur., § 799; 2 Greenleaf on Ev., § 549. But it was only in these cases where the right has been set up by way of defense that the courts have lent their aid. It had not been given to a party seeking affirmative relief, before the case of Bright v. Boyd, 1 Story, where Story, J., held that a plaintiff, after a recovery at law against him of a tract of land by reason of illegality in the proceedings of an administrator to sell, under which he had purchased, could recover by bill in equity the value of lasting improvements put by him on the land. The case of Mathews v. Davis, 6 Humph. 324, and Heiring v. Pollard, 4 id. 362 (Tenn.), soon followed and were to the same effect, relying upon Judge Story's decision as authority. See, also, Albea v. Griffin, 2 Dev. & Bat. Eq. 9. This court in several cases has recognized the doctrine of betterments to the extent of the enhanced value of the land, in cases where a contract for the sale of land has been rescinded, or the title has failed by reason of the contract not being in writing. Wetherell v. Gorman, 74 N. C. 603; Hill v. Brower, 76 id. 124; Smith v. Stewart, 83 id. 406. But in no case has it been held to apply to mortgagors. See Martin v. Beatty, 54 Ill. 100; Rice v. Dewey, 54 Barb. 455; Union Water Co. v. Murphy, 22 Cal. 621; McCumber v. Gilman, 15 Ill. 381; 1 Johns. on Mort., § 147. Wharton v. Moore. Opinion by Ashe, J.

MASSACHUSETTS

CORPORATION

SUPREME JUDICIAL COURT ABSTRACT.

FEBRUARY, 1881.

NOT

OFFICER RECEIVING SALARY ENTITLED TO EXTRA COMPENSATION WITHOUT CONTRACT. The plaintiff was one of the directors and the president of the defendant bank, receiving a salary as president. In 1872 the bank bought a building, part of which was to be used for its banking rooms. The directors voted to rebuild and repair it, and appointed the plaintiff, the cashier and one of the directors a committee on alterations and repairs. During the fall of 1872 the plaintiff rendered valuable services in superintending the repairs. There was no express contract to pay him for his services, made by the directors, either by vote or otherwise, but the services were valuable to the bank. Held, that the bank was not liable for any thing beyond the salary of plaintiff as president for his services. A bank or other corporation may be bound by an implied contract in the same manner as an individual may. But in any case, the mere fact that valuable services are rendered for the benefit of a party does not make him liable upon an implied promise to pay for them. To render such party liable as a debtor under an implied promise, it must be shown not only that the services were valuable, but also that they were rendered under such circumstances as to raise the fair presumption that the parties intended and understood that they were to be paid for. Sawyer v. Pawners' Bank, 6 Allen, 207. Pew v. First National Bank of Gloucester. Opinion by Morton, J.

DAMAGES

MEASURE OF, FOR BREACH OF TENANT'S AGREEMENT TO SURRENDER PREMISES IN REPAIR. - In an action brought by a landlord against a tenant for a breach of tenant's covenant to surrender the leased premises in as good a condition as when taken, the breach complained of was the taking down and removal of a fire-proof safe and vault, a furnace with pipes and registers, and certain counters. Held, that the measure of damages in such case must be the sum which will put the premises in the condition in which the defendant was bound to leave them, allowing for reasonable use and wear, and for the increase

in value by substituting new material for old. Yates v. Dunster, 11 Exch. 15. This case is not distinguishable in principle from Lawton v. Fitchburg Railroad, 8 Cush. 230. As a general rule the measure of damages for the breach of a lessee's covenant to keep in repair, and to surrender the demised premises at the end of the term in as good order and condition as they are at the beginning of it, is the sum it would cost to repair the premises and put them in the condition they ought to be in. Shortridge v. Lamplugh, 2 Ld. Raym. 796, 803; Vivian v. Champion, id. 1125. According to later cases, when the lessor sues on the covenant to repair, pending the lease, and so before he is entitled to the possession of the premises, the damages may perhaps be limited to the diminution in the market value of his estate. But when the action is brought after the end of the term, the measure of damages is still held to be such a sum as will put the premises in the condition in which the tenant was bound to leave them. Watriss v. First National Bank of Cambridge. Opinion by Gray, C. J.

HUSBAND AND WIFE-DEALINGS BETWEEN - PAYMENT OF LOAN BY WIFE TO HUSBAND — VOLUNTARY

CONVEYANCE. A husband borrowed money of his wife, which came from her sole and separate property. For the purpose of repaying the loan he conveyed real estate through a third person to her. Held, that such conveyance was valid against his creditors. The question whether a loan by the wife to the husband of money which is her separate property, upon his promise to repay it, creates an equity in her favor which a court of chancery will enforce, has not been determined in this Commonwealth. Snow v. Paine, 114 Mass. 520, 527; Brown v. Wood, 121 id. 137, 139. But it has generally, if not uniformly, been decided in the affirmative by other courts. Tower v. Haguer, 3 Whart. 48; Johnston v. Johnston, 1 Grant (Penn.), 468; Kutz's Appeal, 40 Penn. St. 90; Grabill v. Moyer, 45 id. 530; Babcock v. Eckler, 24 N. Y. 623; Savage v. O'Neil, 44 id. 298; Steadman v. Wilbur, 7 R. I. 481. And while there is nothing in our statutes concerning married women, to enlarge the capacity of the husband and wife to contract with each other, there is nothing to restrict their powers in this respect, or to impair the effect which courts of equity upon general principles accord to such contracts. The jury in this case having found that the money delivered by the wife to the husband was by way of loan, and not of gift, and that his subsequent conveyance of land through a third person to her in repayment of that loan was not made with the purpose of hindering, delaying or defrauding creditors, that conveyance to satisfy his equitable obligation to his wife was not a voluntary conveyance, and was valid against his creditors. Bullard v. Briggs, 7 Pick. 533; Forbush v. Willard, 16 id. 42; Stetson v. O'Sullivan, 8 Allen, 321; Bancroft v. Curtis, 108 Mass. 47; French v. Motley, 63 Me. 326. Atlantic National Bank v. Tavener. Opinion by Gray, C. J.

LUNACY -DEED BY INSANE PERSON VOID AGAINST DEVISE WHILE SANE.-R. by will executed when he was of sound mind devised land to J. Subsequently, while he was insane, R. conveyed the same premises by deed to M., a tenant of the same. R. remained insane until he died, and neither he nor his heirs or devisee or representative ever did any act to avoid the deed. Held, that the deed was invalid and the premises liable to be taken on an execution against J. The deed of an insane person is ineffectual to convey a title to land, good against the grantor or against his heirs and devisees, unless it is confirmed by the grantor himself when of sound mind, or by his legally constituted guardian, or by his heirs or devisees. Arnold v. Richmond Iron Works, 1 Gray, 434; Allis v. Billings, 6 Metc. 415; Howe v. Howe, 99 Mass. 98. Valpey v. Rea. Opinion by Colt, J.

VERMONT SUPREME COURT ABSTRACT. OCTOBER TERM, 1880.*

DUTY OF PLEDGEE AS TO PLEDGE.

BAILMENT The pledgee must exercise good faith toward the pledgor, and reasonable judgment in collecting the security. If there is a depreciation in the collateral, bad faith or faulty discretion must be proved to affix best for his reversionary interest he can at any time the loss upon the pledgee. If the pledgor deems it bring suit, and the court in such case will protect the rights of the pledgee. When the collateral is a mortgage note, and the pledgee forecloses, making the owner a party defendant, and there is no appeal from the decree of the court, or redemption, the pledgor loses all right to the note. Wells v. Wells. Opinion by Barrett, J.

HOMESTEAD ANTE-NUPTIAL RELEASE OF, BY MARRIED WOMAN, INVALID. —The plaintiff and the intestate entered into an ante-nuptial agreement, in writing and under seal, by which she released all right to dower and homestead in his estate, on consideration of marriage, and the payment of $50 per year during his natural life, if she outlived him, but $50 per year during her natural life if he outlived her. They were subsequently married; but it did not appear that the husband performed his part of the contract as to paying. Held, that the widow was entitled to a homestead; because, 1. The homestead by force of the statute vests in the widow on the death of the husband; and the contract being a release or discharge of something not in existence at the time it was given, cannot defeat this right. There was nothing in existence for the contract to operate upon as a release or discharge. It is true a covenant never to prosecute an existing demand operates as a release, to prevent circuity of action. But there must be a demand to release. A release of a future demand not then in existence is void. Hastings v. Dickinson et ux., 7 Mass. 153. Neither can a wife's covenant not to claim homestead operate as an estoppel on her right of homestead, which the statute vests in her. Her covenant not to do so is executory. A party cannot be restrained, by way of estoppel, from asserting a statutory right, because it is in violation of an executory covenant. Neither can such a covenant be set up and given operation by way of rebutter, to bar the assertion of the homestead right by the widow. Gibson v. Gibson et al., 15 Mass. 106; Sullings v. Richmond et al., 5 Allen, 187. Schouler, in his work on Domestic Relations, p. 271, speaking of the enforcement of this class of contracts, says: "But where the performance is sought by the defaulting party, the contract cannot be enforced against the person injured through such default." In Pierce v. Pierce, 9 Hun, 50, the same doctrine is held and applied. It is there said: "When a man in contemplation of marriage agrees to make a settlement on his wife, in consideration of which she agrees to relinquish her rights in his property at his decease, and fails to make the settlement, the widow is not barred of any right which she might have asserted if no such agreement had been executed." Woodard v. Woodard, 5 Sneed, 49; Bliss v. Sheldon, 7 Barb. 152; affirmed by the Court of Appeals, 8 N. Y. 31; Vance v. Vance, 21 Me. 364; Sullings v. Sullings, 9 Allen, 234, are to the same effect. Mann v. Mann's Estate. Opinion by Ross, J.