power was well executed on the actual happening of the contingency. In Larned v. Bridge, 17 Pick. 339, a testator devised to his wife "the use and benefit of all his estate real and personal, and should the income prove insufficient for her comfortable support, she to dispose of so much thereof as shall be sufficient for that purpose; " and that the remainder be equally divided among his children. He appointed her executrix. Held, that she took an estate for life only, with a naked power depending upon a contingency; that the happening of the contingency was a condition precedent to the due execution of the power, and that the power must be executed by the wife alone in her lifetime; that the power did not attach to her in her office of executrix, and so did not pass to the administrator cum testamento annexo, in favor of a creditor who supplied her necessities, on the happening of the contingency provided for by the testator for the execution of the power. The last case serves to illustrate that it is not a power donated to the executors, virtute officii, as in Jackson v. Ferris, 15 Johns. 346; or actione officii, as in Davis v. Christian, 15 Gratt. 11; or annexed to the office of executrix, as better expressed by Mr. Perry on Trusts, section 493. Such power survives and passes to the administrator, cum testamento annexo, because necessary for the due administration of the estate or execution of the will. See, also, Conklin v. Egerton's Adm'r, 21 Wend. 430. Ferre v. American Board of Commissioners for Foreign Missions. Opinion by Ross, J.

FINANCIAL LAW.

BILL OF EXCHANGE-WITHOUT PLACE OF PAYMENT MAY BE PRESENTED WHERE MADE. -The presentation of a draft for payment at the place of its date is a sufficient demand to charge the drawer or acceptor after notice of protest, where the place at which it was payable is not stated in the writing and no proof made that any particular place was agreed upon. "When the bill or note is made on terms payable in a city, without specification of a particular place, and the acceptor or maker has no residence or place of business there, it will certainly be sufficient to charge the drawer or indorser, if the holder have the bill or note in the city at maturity, ready to be presented and delivered up, if the maker or acceptor shall appear." 1 Dan. on Neg. Inst., § 640. In Meyer v. Hibscher, 47 N. Y. 270, Folger, J., thus speaks of a note dated at a place and payable generally: "In such case the note must be presented and payment asked for at the place of business therein of the maker, if he has one, and if he has no place of business, then at his place of residence. And if he neither have place of business, nor residence, then if the holder of the note is at the place where it is in general made payable, on the day of payment with the note, ready to receive payment, it is sufficient to constitute a presentment and demand." North Carolina Sup. Ct., Jan., 1881. Wittkowski v. Smith. Opinion by Smith, C. J. (84 N. C. 671.)

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CHECK ASSIGNMENT FOR CREDITORS BY DRAWER BEFORE PRESENTATION TO DRAWEE FOR PAYMENT.

A bank on the eve of insolvency drew its check in favor of appellant on another bank where it had funds. The check was in the ordinary form of such instruments; and there was no evidence aliunde that it was designed to have any other than its ordinary legal effect. It designated no particular fund out of which it was to be paid, contained no words importing a transfer of the whole or any part of the balance then standing to the credit of the drawer, nor did it even correspond in amount with that balance. Before the check was paid the drawer made an assignment for creditors. Held, that the appellant had no claim on the fund in the drawee bank to pay the check, and that

It

such fund passed to the assignee of the drawer as assets. It is well settled that such a check or draft, without more, is neither a legal nor equitable assignment or appropriation of a corresponding amount of the drawer's funds in the hands of the drawee. gives the payee no right of action against the drawee, nor any valid claim to the funds of the drawer in his hands. If before acceptance or payment of the draft the drawer executes a voluntary assignment for the benefit of creditors, as was done in this case, the funds in the hands of the drawee pass by the assignment as assets of the insolvent's estate to his assignees in trust for creditors. Loyd v. McCaffrey, 10 Wright, 410; Bank of Mount Joy v. Gish's Assignees, 22 P. F. Smith, 13; Bispham's Equity, § 167; Morse on Banking, 278, 279, 470; Carr v. National Security Bank, 107 Mass. 45. In Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325, an insurance company, in payment of a loss, had given its check on a banking institution in which it then had funds on deposit, more than sufficient to meet the check, but before it was presented the insurance company failed, and its receiver withdrew all the funds. It was held that the check, not having been drawn on a particular fund, did not operate as an equitable assignment pro tanto of the money on deposit and that the claim having been only liquidated, not paid, when the insurance company failed, the fund went into the hands of the receiver, whereby the rights of all the creditors became fixed, and that the payee of the check was not entitled to payment out of the funds which the receiver had withdrawn from the bank, in preference to the general creditors. The authorities, both American and English, are quite uniform in holding that until a check or inland bill of exchange, drawn in the ordinary form, is presented and accepted, it vests in the payee no title, legal or equitable, to the funds of the drawer on deposit with the drawee. Before acceptance, he may withdraw his funds or stop payment of the check. The drawee is under no obligation to the payee or holder. Knowledge of the fact that checks have been drawn does not render it obligatory on him to retain the deposit to meet them. Pennsylvania Sup. Ct., Feb. 21, 1881. Appeal of First National Bank of Harrisburg. Opinion by Sterrett, J.

STATUTE OF FRAUDS -INDORSEMENT OF SINGLE BILL UNDER SEAL-CONSIDERATION — M., the mother of G., wrote her name across the back of a single bill, under seal, made by G. in favor of S. The indorsement was written about nine months after the date and delivery of the single bill. The payee sued M. as upon a guaranty of the payment of the bill; and at the trial wrote over her blank indorsement the followtioned in the within single bill to my son, and in ing: "In consideration of the loan of the money menfulfillment of his representations to the payee that I would guarantee or become the surety for the payment of the money, and in consideration of the payee's promise and agreement not to press the payment of this single bill at its maturity, and to forbear suit thereon for two years or more; I hereby guarantee the payment thereof to the said S. should G. make default in payment thereof." In order to meet the defense taken by the defendant, that there was no sufficient writing to gratify the requirements of the statute of frauds, and that there was no sufficient consideration for the alleged undertaking, the plaintiff offered evidence for the purpose of showing that the contract as between himself and G. resulting in the making and delivery of the single bill was not complete and executed until the blank indorsement was placed thereon by the defendant; that the single bill had been made and delivered provisionally only, previous to that time; that it was contemplated from the beginning of the transaction that the defendant would become surety,

for the ultimate payment of the money loaned, and for which the single bill was given, and that the money was loaned upon that assurance and understanding as between the original parties to the single bill. Held, that notwithstanding the parol evidence offered by the plaintiff, the statute of frauds presented an insuperable barrier, and he could not recover, and that the note being under seal the party placing her name upon the back of the note could not be regarded as a joint obligor with the maker of the note, nor could she be regarded as an indorser in the ordinary sense of that term, which implies obligation to pay, as upon a nego

tiable note.

Cases referred to, Moies v. Bird, 11 Mass. 436; Samson v. Thornton, 3 Metc. 275; Union Bank v. Willis, 8 id. 504; Hawkes v. Phillips, 7 Gray, 284; Wain v. Warlters, 5 East, 10. The circumstances of the case all repelled the idea that there was any thing inchoate or incomplete in regard to the binding effect of the note itself as between the original parties to it. The blank indorsement having been placed upon the note nine months after its date and delivery, that indorsement, if it could have any effect at all, could only be effective as a guaranty. Being by a third party it could not be construed into such an agreement or note in writing as would gratify the statute of frauds, 29 Car. II, ch. 3, § 4; nor was the statute gratified either in its letter or object, by the subsequent writing placed over the signature by the plaintiff. See Wyman v. Gray, 7 H. & J. 409: Elliot v. Giese, id. 457; Aldridge

v. Turner, 1 G. & J. 427; Nabb v. Koontz, 17 Md. 283; Mitchell v. McCleary, 42 id. 374; Deutsh v. Bond, 46 id. 164; Ordeman v. Lawson, 49 id. 135; Leonard v. Vredenburgh, 8 Johns. 29; Coldham v. Showler, 2 Car. & K. 261; Jack v. Morrison, 48 Penn. St. 113; Schafer v. F. & M. Bank, 59 id. 144; Wilson v. Martin, 74 id. 159. Maryland Ct. of Appeals. Culbertson v. Smith. Opinion by Alvey, J. (53 Md. 628.)

RECENT ENGLISH DECISIONS.

INCHOATE INSTRU

CRIMINAL LAW -FORGERY MENT. The prisoner was indicted in the first count for forging and uttering an indorsement on a bill of exchange, in the second count on a paper writing in the form of and purporting to be a bill of exchange, and in the third count on a certain paper writing. The facts were these: the prosecutor wrote the body of a bill of exchange, but without signing the drawer's name, and sent it to the prisoner, who was to accept it and procure an indorsement by a solvent person, and return it to the prosecutor. The prisoner accepted it, and forged the indorsement of another person's name, and returned it. Held, that the prisoner could not be convicted upon this indictment, as the document was only an inchoate instrument of no value when the prisoner forged the indorsement. Cases cited, McCall v. Taylor, 34 L. J. 365; Stoessiger v. South-East R. Co., 3 El. & B. 549. Crown Cas. Res., May 21, 1881. Regina v. Harper. Opinion by Lord Coleridge, C. J., 44 L. T. Rep. (N. S.) 615.

MARITIME LAW -CONFLICT OF LAW-COLLISION ON HIGH SEAS BETWEEN VESSELS OF DIFFERENT NATION

ALITIES.-Collisions between ships when one or both are foreign, on the high seas, are questions communis juris, and liabilities created by them are to be decided by the general maritime law of liability as administered in the court where the cause is tried. By general maritime law the liabilities of the ship and of the owners are identical for damages arising from collision. A collision took place on the high seas between a British and a Spanish ship; both vessels sank. The English owners commenced a suit against the Spanish shipowners, who had an office in England. The Spanish shipowners appeared, and pleaded that by Spanish law there was no personal liability. Held, a bad defense,

as the liability was governed by general maritime law and not by Spanish law. The Druid, 1 W. Rob., at p. 399; The Volant, id. 387; The Johann Friederich, id. 35, at p. 40; The Wild Ranger, 7 L. T. Rep. (N. S.) 725; S. C., Lush, 553; The Zollverein, Swabey, 99. Prob. D. & Ad. Div., May 11, 1881. The Leon. Opinion by Sir R. Phillimore, 44 L. T. Rep. (N. S.) 613.

COLLISION -COMPULSORY PILOTAGE.

-A tug

belonging to the respondent was engaged to tow a ship belonging to the appellants to harbor. The ship was attempted to tow the ship across a bank, instead of in charge of a pilot compulsorily employed. The tug going round it, and the ship struck on the bank and sustained damage. In an action brought by the shipowners against the owner of the tug, it was proved but did not cast off the tow rope on finding his signals that the pilot signalled to the tug to change her course, disregarded, and in the opinion of the nautical asses(reversing the judgment of the court below) that this sors he was "negligent, supine, and inactive." Held, did not amount to contributory negligence on the part of the ship, and that her owners were entitled to recover for the damage sustained. The Julia, Lush. 224; 14 Moo. P. C. 210, approved. Other cases cited, The Diana, 1 W. Rob. 131; The Duke of Manchester, 2 id. 470; 36 L. T. Rep. (N. S.) 379; Bland v. Ross, 14 Moo. P. C. The Clyde Navigation Co. v. Barclay, 1 App. Cas. 790; 210; Quarman v. Burnett, 6 M. & W. 509; Smith v. St.

Lawrence Tow Boat Co., L. R., 5 P. C. 308; 28 L. T. Rep. (N. S.) 885; The Energy, L. R., 3 A. & E. 48; 23 L. T. Rep. (N. S.) 601; Thorogood v. Bryan, 5 C. B. 115; Davis v. Mann, 10 M. & W. 546; Ashby v. White, Sm. Lead. Cas. 300. House of Lords, March 7, 1881. Spaight v. Tedcastle. Opinion by Lord Chancellor Selborne, 44 L. T. Rep. (N. S.) 589.

PATENT- -INFRINGEMENT OF TRANSFER OF PATENTED ARTICLE MADE ABROAD THROUGH CUSTOMHOUSE FOR EXPORTATION NOT VENDING, MAKING OR USING AGENCY.-The plaintiffs were holders of a patent for rendering capable of safe transportation a powerful explosive, which had previously been practically useless, and its transportation prohibited by statute, by reason of its extreme sensitiveness to shocks. The defendants, who were export merchants, had transhipped in the Thames, for exportation to Australia, large quantities of the explosive, which had been consigned to them from abroad for that purpose, and had been rendered safe in the mode prescribed by the plaintiff's invention. Held (reversing the decision of Bacon, V. C.) that there had been no interference by the defendants with the plaintiff's invention. The defendants never had any interest in, or any control over, the goods; and it could not be said that writing to the custom-house, in order to get power to transfer them from one ship to another, was making, or using, or vending the patented article. The court always hold a hand over agents, but they must be actual agents directly employed in the transaction in question, and it would not extend its doctrine and say that any person who had any thing to do with the removal of goods from a manufactory to a storehouse would be liable to damages or an injunction, if it turned out that the goods were an infringement of a pat nt or trade-mark. Ct. of Appeal, April 29, 1881. Nobels' Explosive Co. v. Jones, Scott & Co. Opinions by James, Baggallay and Lush, L. JJ., 44 L. T. Rep. (N. S.) 593.

CORRESPONDENCE.

CODE, SECTION 2247. Editor of the Albany Law Journal:

Can you explain the following alleged amendment in one of the provisions of our Code of Civil Procedure? Prior to its amendment at the last session of

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the Legislature (ch. 122, Laws 1881), section 2247 read as follows: "The issue * * must be tried by the judge or justice, unless a party * * * files a written demand that the issues as joined be tried by a jury." As amended, the section declares that "the issues * must be tried by the judge or justice, provided either party * * shall demand a jury." The word not may have been omitted, probably was omitted, by mistake. But it is important for the bar to know whether the mistake occurs in the original law or not. It certainly occurs both in your published edition of the Session Laws and in Bliss's collated amendments of 1881. Is it merely a misprint, or is it a new illustration of the old adage, which may be recommended to our modern law-makers, "Trying to do better, oft we mar what's well?"

RIGHT TO OPEN AND CLOSE.

Editor of the Albany Law Journal:

The New York Daily Register of August 27, 1881, criticises the decision of the Court of Appeals in the case of Murray v. N. Y. Ins. Co., 9 Abb. N. C. 308, on the right to open and close, as "introducing a new degree of uncertainty into this already uncertain subject." It seems to me, with all due respect to the learned editor of the Register, that nothing new or uncertain is introduced by this decision, but that it is strictly in accordance with established principles. The right to begin is with the party holding the affirmative, without regard to the form which the pleadings may take. The complaint alleged that the death was not caused by the breaking of any of the conditions in the policy. The plaintiff here violated the rule of pleading not to anticipate affirmative defenses. He either did so for the very purpose of afterward claiming the affirmative of the issue and his last say to the jury, or else, as is more probable, he blindly followed Abbott's Forms (an excellent work but not infallible), which seem to be drawn on the erroneous theory that an action on a life insurance policy is in the nature of an action to recover a penalty.

The answer denied the negative allegation of the complaint, and also pleaded a particular violation of a clause. Whether or not there was this violation, was the question, and of this the company sought to establish the affirmative.

Suppose a complaint on a promissory note should allege that there was no usury in its inception, and the answer should deny this and allege there was usury, would there be any uncertainty as to who would have the right to open and close?

NEW YORK, August 29, 1881.

GEO. H. MCADAM.

NEW BOOKS AND NEW EDITIONS.

MILLER AND FIELD'S FEDERAL PRACTICE. Federal Practice: Consisting of the statutes of the United States relating to the Organization, Jurisdiction, Practice and Procedure of the Federal Courts and the Rules of said Courts, with full Notes of the Decisions relating thereto. By William E. Miller, late Chief Justice of the Supreme Court of Iowa, and George W. Field. Mills & Company: Des Moines, Iowa.

extent, it ought to be. Why does not some one who has the time, the capacity, and the industry to give the profession a good work on practice in the Federal courts, full and complete, do so? Every lawyer needs it. Such a work, if it were what it should be, would meet with an extensive sale and reap a golden harvest for its author and its publisher. We know of no better field in legal literature.

16TH WEST VIRGINIA REPORTS.

This volume of 955 pages contains only 37 cases. In eleven of these the judicial statements and opinions occupy the following number of pages respectively: 25, 27, 28, 29, 30, 33, 38, 39, 54, 61, 68-432 pages in all, or an average of more than 39 pages. Of course there is a great deal of unnecessary matter in this-tedious and exasperating statement of pleadings, and the like. As a rule, the longest cases are of the least general interest. The following are the cases of chief interest: Where a city, in grading streets, collects surface water and casts it in a new body on the land of an adjoining proprietor, it is liable for the injury. Gillison v. City of Charleston, p. 282. Where a city, in changing the grade of streets, permanently injures private property, and thus infringes the explicit provision of the bill of rights, that private property shall not be taken or damaged for public use without compensation, an action lies for the injury, although no statute has ever been enacted for the enforcement of this constitutional

provision. Johnson v. City of Parkersburg, p. 402. An engine and boiler, brought by the owner of a mill upon the mill grounds for the purpose of being put into the mill, and necessary for the operation of the mill are fixtures, although not actually annexed; and such articles, once annexed, continue fixtures, although washed out by a flood. Patton v. Moore, p. 428. Unauthorized payment by a stranger does not discharge a debt, nor authorize a suit at law, unless the debtor ratifies such payment by pleading or reliance; but in equity the stranger will have relief; and in case of an agreement for an assignment of the debt the stranger may enforce the demand without an actual assignment. Neely v. Jones, p. 625. An insurance policy provided that no action should be sustained thereon unless commenced within six months after the loss should occur; and also that no suit could be maintained until arbitrators had fixed the amount of loss. Held, that the action could be commenced within six months after the arbitrators had fixed the amount of the loss, although more than six months after the loss occurred. Barber v. Fire and Marine Ins. Co. of Wheeling, p. 658, In this case one judge dissented but was "pleased " that a majority of the court were opposed to him, "because it is an equitable view." (Published by W. J. Johnston, Wheeling.)

THE

NOTES.

HE American Law Register for August contains the conclusion of Freehold Qualification of Jurors, by A. Davis Smith, and the following cases in full: Kendall v. Hamilton, on judgment against agent of undiscovered principal, with note by Edmund H. Bennett; Fargo v. Railway Co., citizenship of joint stock company, with note by Marshall D. Ewell; Love v. Payne, on consent to admission of partner, with note by W. W. Thornton; Horan v. Lazier, on note payable at bank, with note by C. M. Dunbar. - The Law Magazine and Review for August contains the following

land, by J. M. Lees; Laws of Wales - the kindred blood feud, by F. W. Maitland; Growth of the Grand Jury System, by John Kinghorn. — The Western Jurist for August contains a pleasant article on Legal Maxims, by Chancellor Cooper of Tennessee.

We have also got to the bottom of the matter of the judges' pensions, on which we commented at p. 181. We were as much behindhand on this as we were beforehand on the other. The people adopted a constitutional amendment last fall that "the compensation of every judge of the Court of Appeals, and of every justice of the Supreme Court, whose term of office shall be abridged pursuant to this provision," i. e., by arriving at the age of seventy years, "and who shall have served as such judge or justice ten years or more, shall be continued during

the remainder of the term for which he was elected." But if this provision needed to be constitutional, why not the provision in case of "removal?" Does either of them need any thing more than a legislative act?

The September number of the Virginia Law Journal contains an article, by Mr. John W. Daniel, on Taxation of National Bank Shares by or under State Authority, in which the learned writer lays down the following rule, deduced from the authorities: "If the State law taxes moneyed capital generally at a lower rate than National bank shares, thus fixing the ruling rate of taxation higher as to them than as to the bulk of other moneyed capital, it is a discrimination against them; and they must be brought within the limit of taxation fixed by the ruling rate of taxation, by operation of law, the excess being an unconstitutional and void exaction. But if they are taxed according to the rule and rate applicable to moneyed capital generally, then the tax is valid, although some moneyed capital similarly invested in State banks (Lionberger v. Rouse, 9 Wall. 468; S. C., Thomp. N. B. Cas. 41), or in local bonds (Adams v. Nashville, 95 U. S. 19; S. C., Thomp. N. B. Cas. 148), or in mortgages, judgments, recognizances, choses in action (Hepburn v. School Directors, 23 Wall. 480; S. C., Thomp. N. B. Cas. 113) be taxed at a lower rate, or not taxed at all. And it matters not what be the articles, or classes of moneyed capital taxed at a lower rate, or not taxed at all, provided that the general and ruling rate be alike applicable to National bank shares, and the great bulk of like property similarly situated."

VOL. 24.- No. 11

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The following from the London Law Times will be of interest to all our readers, and especially to our correspondents therein alluded to: "In commenting recently upon the attack made upon President Garfield, the ALBANY LAW JOURNAL took exception to the view of those who would change the law so as to make an assault with intent to kill the president or vice-president, a capital offense. 'This,' our contemporary remarked, 'would be utterly inconsistent with the theory of our institutions. * The life of the president is no more sacred in the eyes of the law than that of the humblest citizen who casts his vote for or against him.' This statement has given rise to some discussion. One correspondent points out that an assault upon a sheriff, or constable, or other officer armed with legal process, and in the discharge of his duty, is a graver offense, and liable to severer punishment, than an assault upon a private citizen.' Another holds, 'in common with many others, that there would be neither inconsistency nor impropriety in providing specific punishment for attempted assassination of rulers in office. Such provision would not be either class legislation or legislation in the interest of any class, but for the greater security of the people of every class.' We cannot help thinking, that should any attempt be made to alter the law on the lines indicated by these correspondents, it will meet with strong opposition, on the ground that the proposed alteration is, in the words of our contemporary, inconsistent with the theory of American institutions."

A further examination of Simmers v. Wagenseller, ante, 122, the case of breach of promise of marriage, where the plaintiff got $2,000 for "not wanting "the defendant to be her husband, reveals some significant facts. The defendant proved that his entire estate was only $10,000 or $12,000, and yet the jury returned a verdict of $5,000, which on motion for a new trial was reduced to $2,000. The plaintiff was a domestic servant. In the letter in which she assured the defendant that she "did not want" him, but only his money, she indulged in the following tender expressions: "Jim, if you want to make fun of me you must go somewhere else to do it, for no one in this neighborhood thinks any thing of you. All they call you is McConkey and the Marsh Hog. ** is the only friend you have got, and you have to pay him for going with you. * * ** I suppose you think that you have got a rich one now, but such is not the case, every one knows how rich they are. Well, if I am poor, I do not wear the one hat for five or six years like she does, and turn it hind part before like she does. * * * I have been told by dozens of people to sue you, and get some of your money. I don't want you, for I know that I would have a devil's life of it. There is people tell me that I could put you where the dogs would not bark at you, or get some of your money. As you have so much of it, I send a letter away to-day, and I am waiting for an answer from it. There is plenty of lawyers, and some a great deal smarter, too, than