whole doctrine of privilege must rest upon the interest and the necessities of society. If every one was open to an action for libel or slander for the answers he might make to such inquiries, it would be very injurious to the interests of society.

BRETT, L. J. I am of the same opinion. The question of privilege is for the judge, not the jury, and I gather from what has been stated that Grove, J., did not leave that question to the jury; he intimated to them his opinion that the communication was privileged. The questions left to the jury were (1) whether this writing was a libel, and I suppose the jury found that it was. The second question was whether there was malice in fact, and the jury must be taken to have found that there was not. It is immaterial whether there was justification of the libel-i. e., whether it was true if the occasion was privileged and there was no malice in fact. Was then this communication a privileged one? I think that the definition given by Blackburn, J., in the case of Davies v. Snead is the best that could be given; it left out the misleading word "duty." The question is whether the facts of the present case bring it within that rule, and I am of opinion that they do if the person who was asking the question would reasonably be supposed by the defendant to be asking it in order to be able to form an opinion whether charitable relief should be given or continued to a supposed recipient of it. It is not necessary that the question should have been really asked for that purpose if the defendant reasonably supposed that it was. It is difficult to suppose however that any person would make an application to such a society for any other purpose. The defendant might have reasonably believed that the question was asked by Miss Druce for that purpose. If so, were the society so situated that it became right in the interests of society for them to give the information? It appears to me that they were, and therefore the case comes within the rule that the occasion was privileged. If that is so, the question of malice in fact was properly left to the jury. I should have been very much astonished if the jury had found that there was malice in fact, and very much inclined to set aside their verdict.

COTTON, L. J. The principal question is whether the occasion was privileged. I think the occasion is privileged whenever a communication is made in answer to an inquiry which the person of whom it is made believes to be made by a person who has some interest in the matter, and if he believes that he is making the communication in discharge of a duty legal, moral, or social. It is, no doubt, an imperfect obligation, but it is the duty of every one to do that which it is right in the interest of the public should be done. "Right" is as difficult a word to define as "duty." With that explanation I agree with Brett, L. J. I am of opinion that the case falls within the rule. The communication was privileged, and the only question is whether the jury were right in finding that there was no malice in fact. In order to set aside the verdict of a jury on such a question the court must be satisfied that they could not have reasonably found as they did. Hence I am satisfied that the finding was reasonable. Appeal dismissed.

MURDER BY INDEPENDENT ACT OF ONE JOINTLY INDICTED - DYING DECLARATIONS.

VERMONT SUPREME COURT, JANUARY TERM, 1881. STATE OF VERMONT V. WOOD.*

If dying declarations relate to other and former matters; if they do not relate to the direct transactions and circum* To appear in 53 Vermont Reports.

44

stances from which the death of the person murdered ensues, they are inadmissible; thus, the following question to the wounded man, and his answer, are not admissible: Had either of them threatened to injure you before ?" "Yes; my wife (one of the respondents) has threatened a thousand times to kill me before. She threatened to kill me before she went away the last time. She went away in July; I think, though, it was August 10th. She came back day before yesterday."

If one inflicts a mortal wound, but before death ensues another kills the same person by an independent act, without concert with, or procurement of the first man, he who caused the first wound cannot be convicted of murder or manslaughter or an assault with intent to kill, on an indictment charging both jointly with murder. [NDICTMENT charging Joseph B. Wood and Alma

R. Smith jointly with the murder of Luman A. Smith. Plea, not guilty, and trial by jury. The question as to the admissibility of the dying declarations of Luman A. Smith is sufficiently stated in the opinion. The sixth request made by the prisoners' counsel is as follows: "That if the jnry find that respondent Wood assaulted Smith even with intent to kill him, with or without malice, and inflicted upon him the wound in the abdomen of which he did not die, still if they find there was no previous understanding or concert between him and respondent Alma to assault and kill Smith, and that they acted independently and without any previous understanding or concert, and the acts of each were without the procurement or request of the other, each are only responsible for their own acts, and Wood cannot be convicted of murder, manslaughter, or assault with intent to kill, upon this indictment."

The charge of the court as to this request is stated substantially in the opinion.

M. A. Bingham and H. S. Peck, for the State.
R. H. Start, for the prisoners.

VEAZEY, J. This is an indictment charging the respondents jointly with the murder of one Luman A. Smith. The respondent Alma R. Smith was the wife of Luman A. In support of the indictment the State offered in evidence the dying declarations made by said Luman, and reduced to writing in the form of question and answer. After detailing the account of the fatal affray, this question was asked: "Had either of them threatened to injure you before?" Answer. "Yes, my wife has threatened a hundred times to kill me before. She threatened to kill me before she went away the last time. She went away in July; I think, though, it was August 10th. She came back day before yesterday." This dying declaration was made October 23, the same day of the affray. To the admission of this question and answer, the respondents objected. We think its admission was error.

The admission of dying declarations is an exception to the rule rejecting hearsay evidence. Their admissibility is subject to several well-defined conditions; one is, that the circumstances of the death shall be the subject of the declaration. This was so held in the early and leading case of Rex v. Mead, 2 Barn. & Cres. 605; S. C., 9 Eng. Com. Law Rep. 196. This proposition has been incorporated into the elementary works on criminal law, and is adhered to in the reported cases where the question has arisen. There seems in some cases to have been more or less confusion of the grounds on which dying declarations are admissible. Some writers and courts have apparently overlooked the full force of the restriction announced by Abbott, C. J., in Rex v. Mead, supra, in contemplation of the other proposition of Lord Chief Baron Eyre, in Rex v. Woodcock, 2 Leach Crim. Cas. 256, 567, where he asserts that the general principle on which this species of evidence is admissible is, that dying declarations are made in extremity, when the party is at the point of

death, and when every hope of this world is gone, and every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.

This proposition is sound, but is not the test as to what dying declarations are admissible. The true ground of their admissibility is that of necessity, in order to prevent murder going unpunished. And although it is not indispensable that there should be no other evidence of the same facts, the rule is regarded as founded upon the presumption that in the majority of cases there will be no other equally satisfactory proof of the same facts. "The usual and ordinary rule of evidence must, from the necessity of the case, be departed from," is the remark of Shaw, Ch. J., in discussing this subject in Commonwealth v. Casey, 11 Cush. 417, 421. Such declarations are necessary to identify the prisoner and establish the circumstances or the res gestæ, or direct transactions from which the death results. If therefore they relate to the other, former, distinct matters, they do not come within the reason of the rule. They are without the sanctity of an oath, or the opportunity for cross-examination, a proceeding often quite as essential to the eliciting of all the truth as the obligation of an oath, or its equivalent. The law regards the situation of the individual, being in danger of impending death without hope or expectation of recovery, however slight, as equivalent to the sanction of an oath; and has wisely said that the oath and cross-examination must be dispensed with in this instance on account of the public necessity of bringing murderers to justice in order to preserve the lives of the community. But courts have refused to extend the rule beyond the cause and circumstances of the death, or to former distinct transactions which stand for proof like any ordinary facts. "Speaking for myself," said Lord Chief Baron Pollock, "I must say that the reception of this kind of evidence is clearly an anomalous exception to the law of England, which I think ought not to be extended." Regina v. Hinds, Bell, C. C., p. 256. In our own court Aldis, J., says: "The rule that dying declarations should point distinctly to the cause of death, and to the circumstances producing and attending it, is one that should not be relaxed." State v. Center et al., 35 Vt. 386. To similar purport are the remarks of Mr. Justice Byles in Regina v. Jenkins, L. R., 1 C. C. Red. 193; and Alderson, B., in Rex v. Ashton, 2 Lewis C. C. J. 147. See Hackett v. People, 54 Barb. 370; Ben v. State, 37 Ala. 103; Mose v. State, 35 id. 421; State v. Shelton, 2 Jones Law (N. C.) 360; Nelson v. State, 7 Humph. 542; State v. Varney, 8 Boston Law Rep. 562; 1 Greenl. Ev., § 156.

The threats stated by the declarant were not admissible as a part of the res gesta. The law upon this subject is clearly stated by Royce, J., in the late case of State v. Carlton, 48 Vt. 636, where it was held that a statement of the deceased as to where the respondent shot him, made about two minutes after the affray, and some eleven rods from the scene thereof, was inadmissible. The learned Judge says: "It is well settled in this State that to make such matter admissible it must have been concurrent with the act or transaction in issue, aud a part of it; and that the narrative of a transaction completed and finished when the narrative is given, though made while fresh in memory, and so soon after that the party had not time probably to imagine or concoct a false account, is inadmissible;" and he cites numerous cases in support of that proposition.

[After briefly commenting on but not deciding a mooted question, the court continued.]

We think the exception to the charge of the court to the jury in response to the sixth request must be sustained. The evidence on the part of the State showed that Luman A. died from the effects of the wound inflicted by Alma, and not from that inflicted

by Wood; and their evidence tended to show that there was no concert between them, but that each acted independently.

The court instructed the jury in substance that although Luman A. died of the wound inflicted by Alma and not from that inflicted by Wood, and although there was no concert between them, and each acted independently, and they were therefore only responsible for their own acts respectively, still if the wound inflicted by Wood was mortal, and would in course of time have killed Luman A., if he had not previously died from the wound inflicted by Alma, and although he did not die of the wound by Wood, yet the latter could be convicted of murder.

The court was in error in the assumption that a man can be convicted of murder although his act does not cause the death. The question does not turn upon the moral aspect of the case. The intent to murder may be never so plain, yet if something intervenes to prevent the consummation of the intent, if death does not follow from the act of the accused, he is not in law a murderer. All of the definitions of murder found in the books involve the idea and fact of a killing. This must have reference, when a man is on trial, to a killing by him. If one inflicts a mortal wound, but before death ensues another kills the same person by an independent act, without concert with, or procurement of the first man, how can he be said to have done the killing? The second person could be convicted of murder if he killed with malice aforethought, and to convict the first man would be assuming that he killed the same person at another time. See State v. Scates, 5 Jones Law (N. C.) 425.

Upon the supposition contained in the request and charge, and upon the showing made by the State that Luman A. died from the shot given by Alma and not by that given by Wood, the latter could not be convicted of any crime under this indictment. The statute, section 12, chapter 120, Gen. Stat., providing that a person put on trial for murder may be acquitted of that, and found guilty of manslaughter, would not apply to Wood's case, because upon the supposition stated there was no death from his act. The evidence on the part of the State, as assumed in the supposition, tends to show that Wood is guilty of an assault with intent to kill, being armed with a dangerous weapon. The statute does not provide that a person may be found guilty of this crime under an indictment for murder.

[The remainder of the opinion is not of general importance.]

Verdict set aside and new trial granted.

NEW YORK COURT OF APPEALS ABSTRACT.

ASSIGNMENT FOR CREDITORS-ASSIGNEE CONTINUING BUSINESS RECKLESS EXPENDITURES BY, NOT ALLOWED-COMMISSIONS. —(1) F. made an assignment for the benefit of creditors to D., of property used in a livery business, carried on by assignor. The stock was inventoried at $28,000, and the inventory showed that it was mortgaged for $40,000. After he had taken possession, D. obtained the opinion of three men in whom he had confidence, that the property was not worth more than one-half the mortgage, and it was sold under the first mortgage for $7,000, afterward. After the assignment D. took possession and carried on the livery business for about two months, and then sold the entire property, subject to the mortgages, for one dollar. In carrying on the business he expended $2,500 and received $1,600. In his accounting as assignee, the referee refused to allow these items. Held, proper. D. was not appointed assignee to carry on the business, but to convert the assigned property into

money and distribute that among creditors. The trust estate could not be charged with the loss in the business. Duffy v. Duncan, 32 Barb. 587, and 35 N. Y. 187. The expenses incurred by the assignee were reckless and unwarranted. He was not acting gratuitously but for compensation, and was bound to exercise the diligence required of a paid agent or of a provident owner, and he was liable for ordinary negligence or the want of that degree of diligence which persons of ordinary prudence are accustomed to use about their own business. Litchfield v. White, 3 Sandf. 545, and 7 N. Y. 438. (2) The assignee was not entitled to commissions on the entire value of the property, but only on the value of such property to the trust estate, which was one dollar. Order affirmed. Matter of Dean. Opinion by Earl, J. [Decided Oct. 11, 1881.]

STOPPAGE IN TRANSITU- GOODS SENT TO AGENT OF VENDEE TO AWAIT FURTHER DIRECTIONS-TRANSFER TO BONA FIDE PURCHASER WHILE IN TRANSIT.

- A.. living at Berlin, Germany, sold goods on credit to B. of the same place. By direction of the vendee the goods were sent to plaintiff at Bremen. The vendee procured a loan of money on the security of the goods and bills of lading, from D., a banker at Berlin, and gave plaintiff an order to hold the goods subject to the order of D. D. directed plaintiff to ship the goods to defendants in New York. He also wrote defendants that he had shipped the goods to their order and address and directed them to deliver the goods to E. on the payment of the loan. Pursuant to the directions plaintiff shipped the goods to defendants, procuring bills of lading declaring him to be the shipper and that they were to be delivered to defendants or their assigus. He inclosed one of the bills in a letter to defendants, in which he directed them to dispose of the goods as per instructions of D. The other bill of lading plaintiff sent to B., who sent it to D., who sent it to defendants, with directions similar to those before referred to. Thereafter plaintiff, by cable to defendants, stopped the goods in transitu, and they having the bills of lading thereafter agreed to hold them for plaintiff's account. A. assigned to plaintiff his "claim on accepted draft for 2,500 marks and 1,562 marks, balance of account," etc. Plaintiff having demanded the goods of them, brought this action. The bills of lading were not indorsed by consignee, which was necessary under the German law to pass title to the goods. Held, that there was no right of stoppage in transitu after the goods came to the plaintiff, on behalf of the vendors, even though the vendee might be insolvent. The only consignment by A. was to plaintiff at Bremen, and then the right of stoppage ended. It has been held that the delivery to the vendee, which puts an end to the state of passage, may be at a place where he means the goods to remain until a fresh destination is communicated to them by an order from himself. Valpy v. Gibson, 4 C. B. 837; Briggs v. Barry, 2 Cort. 259; Bolton v. L. & Y. R. Co., L. R., 1 C. P. 439. See also, Dixon v. Baldwin, 5 East, 175; Covell v. Hitchcock, 23 Wend. 611. And the transaction between D. and the vendees was effectual to pass the property to him, and so deprive the vendor of the right of stoppage, if it otherwise existed. That right may always be defeated by indorsing and delivering a bill of lading of the goods to a bona fide indorsee for a valuable consideration and without notice. Lickbarrow v. Mason, 2 T. R. 63; City Bank v. Rome, W. & O. R. Co., 44 N. Y. 136. It was not material unless made so by German law that the bill of lading was not indorsed, being made to defendants. The German law held not to apply to the transaction. Judgment reversed. Becker v. Hallgarten. Opinion by Danforth, J.

[Decided Oct. 4, 1881.]

WILL-DEVISE OF ENTIRE PROPERTY APPLIES TO REAL ESTATE ACQUIRED AFTER MAKING WILL-CONSTRUCTION OF. - The provision of 2 R. S. 57, § 5, that. "every will that shall be made by a testator in express terms of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death," changed the previous rule (Butler and Banker's case, 3 Co. 30; Bullard v. Carter, 5 Pick. 112), that a devise could not operate upon lands acquired by the testator after the making of the will, without republication. But to bring a devise within the statute the testator must make known by words in his will his intent to devise all his real estate. His intention cannot be inferred from extrinsic facts. Express terms need not be used. The statute is satisfied by the use of words which by construction of law and by usage comprehend real property, although not exclusively applicable thereto. General words are to be taken to comprehend a subject which falls within their usual meaning, unless there is something like a declaration to the contrary. Church v. Munday, 15 Ves. 396; Saumanz v. Saumanz, 5 My. & Cr. 331; Mayor of Hamilton v. Hudson, 6 Moore P. C. C. 76; Jackson v. Housel, 17 Johns. 281. Where a testator, at the time the will is made, owns both real and personal property, a devise of all his estate or property manifests an intention to devise all his real estate. See Cushing v. Aylwin, 12 Metc. 169; Loveren v. Lamprey, 22 N. H. 434. By the second clause of his will a testator devised to his wife the use of his dwelling-house or the rents, issues and profits thereof during life. The third clause read thus: "All the rest, residue and remainder of my estate I direct my executors to invest in bond and mortgage," etc., and to pay the net income one-half to his wife and one-half to his daughter, during life, and after their deaths the property was to go to specified persons. Testator had at the time the will was made a dwelling-house. He subsequently acquired other real estate. Held, that express words of devise in the third clause were not essential; that the words used comprehended real estate and indicated an intention to pass all testator's real estate, and were not limited by indications deduced from subsequent language, and the third clause embraced the subsequently acquired real estate. Judgment affirmed. Byrnes v. Baer. Opinion by Andrews, J.

[Decided Oct. 4, 1881.]

MARYLAND COURT OF APPEALS ABSTRACT.*

HIGHWAY-LAND-OWNER MAY PREVENT WAGON ON, OBSTRUCTING ENTRANCE TO HIS LAND. -The control over the grounds where a camp-meeting is being held, and over the road leading from the entrance to the place of meeting to the public road, with the right to keep the entrance and the private road unobstructed, includes the right to keep the public highway immediately in front of said entrance clear, so that vehicles may be able to enter and leave it. And this right may be exercised by private individuals having such control, and on its exercise a public coach may be required to move along and not stop in the highway in front of such entrance. Accordingly, in an action for an assault, against a person who had been authorized in writing by the sheriff to act as his deputy, at a campmeeting, at the request of those managing it, for the purpose of keeping order, and his assistant, brought by the driver of a public coach, who insisted upon stopping for passengers in front of an entrance to the camp-grounds, and was removed by force, it was held, * To appear in 54 Maryland Reports.

that the defendant, as deputy sheriff, had the lawful authority to remove the coach of the plaintiff, when he found it obstructing the public highway and preventing other parties who had a right to use the same, from travelling upon it, and to remove the plaintiff with it if he did not choose to leave his seat, and to arrest him if he should resist him in its removal, and that he also had the right to call to his assistance the other defendant, and such other persons as he might deem necessary in effecting the abatement of the nuisance thus caused and maintained by the plaintiff. Turner v. Holtzman. Opinion by Grason, J.

MUNICIPAL CORPORATION-MAY MAINTAIN WHARVES AT END OF STREETS LEADING TO WATER, AND CHARGE WHARFAGE. - A city has a right to construct wharves at the end of public streets extending to the water, and to charge wharfage for the use thereof, and this right is not affected by the fact whether the street has been regularly opened and condemned as a highway, or whether its use as such has been acquired by dedication. In each case the rights of the city and the public are the same. The right of the city to pass ordinances of this kind was recognized in Dugan v. Mayor of Baltimore, 5 G. & J. 375, where Dorsey, J., after referring to the rights of private wharf owners, says: "It is otherwise with wharfage collected at wharves owned by the town or city, or at the ends or sides of the streets, lanes or alleys; all these are called public wharves; are common highways, free for the use of the public; but at which tolls were collected by the town, now city, officers." In a city situated on navigable water, nothing is of more importance than the privilege of constructing wharves or piers for the benefit and promotion of commerce. Wilson v. Inloes, 11 G. & J. 351; Casey v. Inloes, 1 Gill, 432; Balt. & O. R. Co. v. Chase, 43 Md. 23; Mayor of Balt. v. St. Agnes Hospital, 48 id. 419. It is of equal importance that such improvements should be made at the ends of streets extending to the water. Such an exercise of power is not inconsistent with the use of the same as highways. In Haight v. Keokuk, 4 Iowa, 199, it was decided that a piece of land dedicated to the use of the public as a street upon navigable water, may be used for the purposes of a wharf for the landing of passengers and the depositing of freight, without any infringement of the right of the owner in fee of the land. This ruling was affirmed in Barney v. Keokuk, 94 U. S. 324. See also, Rowan's Ex'rs v. Town of Portland, 8 B. Monr. 253, and Newport v. Taylor's Ex'rs, 16 id. 700. In Barney v. Mayor of Balt., 1 Hughes C. C. 118, decided in 1863, it was held that "where an owner of land exhibits a map of it, in which a street is defined, though not yet opened, and sells building lots with front or rear on the street, and makes no express reservation, he dedicates the street for public use, and if in a city, surrenders it for all public purposes, and if the street runs to or binds on a river or bay, surrenders it for use as a wharf where vessels may load or unload, but yet the fee simple will not pass to the city." McMurray v. Mayor, etc., of Baltimore. Opinion by Bartol, C. J.

SET-OFF SEPARATE DEBT MAY NOT BE, AGAINST JOINT DEBT. — A. conveyed certain land and personal property to B. and C. in consideration of which they agreed to pay him a fixed sum annually during his life. On a bill filed by A. against B. and C. to enforce the payment of said annuity, it was held, that a separate debt due B. could not be allowed as a set-off to the joint debt due by him and C. to A. Set-off is a privilege conferred by statute, or if it existed at all at common law, it was limited to mutual and connected debts, and did not extend to debts unconnected with each other. Balt. Ins. Co. v. McFadon, 4 H. & J. 31. It is in the nature of a cross-claim, and is confined to mutual debts between the plaintiff and defendant. In

Hall's Adm. v. Creswell, 12 G. & J. 37, the court said: "The right of set-off is reciprocal, and mutual claims, and such as are in the same right, alone can be set off. And in Milburn v. Guyther, 8 Gill, 92, and Wilson v. Keedy, id. 195, it was expressly decided that a joint debt could not be set off against a separate, or a separate debt against a joint debt. See also, Scott v. Scott, 17 Md. 78. Tyrrell v. Tyrrell. Opiniou by Robinson, J.

MINNESOTA SUPREME COURT ABSTRACT.

ACCOUNT STATED-ONLY PRIMA FACIE EVIDENCE AS TO BALANCE. There is some confusion in the books as to the precise effect of a stated account upon the rights of the parties, but the court is inclined to the opinion that it is only prima facie evidence of the correctness of the balance, and not conclusive upon it, unless in arriving at the agreed balance there has been some concession made upon items disputed between the parties, so that the balance is the result of a compromise, or some act has been done or forborne in consequence of the accounting, and relying upon it, which would put the party claiming the benefit of it in a worse position than as though it had not been had, s0 as to bring the case within the principles of an estoppel in pais. A stated account not affected by such new consideration or estoppel may be impeached for mistake or error in law or in fact with respect to the items included in it, or for omission of items. These positions are sustained by weighty authority. Perkins v. Hart, 11 Wheat. 256; Harden v. Gordon, 2 Mason, 562; Young v. Hill, 67 N. Y. 162; Thomas v. Hawks, 8 Mees. & W. 140; Wiggins v. Burkham, 10 Wall. 129; Lockwood v. Thorne, 18 N. Y. 292; Hutchinson v. Market Bank of Troy, 48 Barb. 324; Ruffner v. Hewitt, 7 W. Va. 608; 1 Story's Eq. Jur., § 524; 2 Chit. Cont. 962; Warner v. Myrick, 16 Minn. 91. Wharton v. Anderson. Opinion by Clark, J. [Decided Oct. 1, 1881.]

CORPORATION-AUTHORIZED TO ISSUE NEGOTIABLE PAPER TO FIXED LIMIT, CANNOT PLEAD ULTRA VIRES WHEN LIMIT EXCEEDED. — A corporation had authority to incur debts to a fixed amount and to give its negotiable note for such debts. Held, that the corporation was liable upon negotiable instruments issued in excess of the limit, such issue being in the usual course of business and the corporation receiving the benefit derived from the issue. Where a private corporation has authority to issue negotiable securities, such instruments when issued possess the legal character ordinarily attaching to negotiable paper, and the holder in good faith, before maturity, and for value, may recover even though in the particular case the power of the corporation was irregularly exercised or was exceeded; or to state the legal proposition in its application to this case: this defendant having power to incur debts to a limited extent and to issue its neholder of the notes in suit, may recover upon it gotiable notes therefor, this plaintiff, as a bona fide although in this particular case the indebtedness of the corporation at the time of giving this note already exceeded the limits prescribed by its articles of association. Stoney v. Am. Life Ins. Co., 11 Paige, 635; McIntire v. Preston, 10 Ill. 48; Monument Nat. Bank v. Globe Works, 101 Mass. 57; Bissell v. Mich. Sou., etc., R. Co., 22 N. Y. 289; City of Lexington v. Butler, 14 Wall. 282; Moran v. Miami Co., 2 Black, 722; Ang. & Ames Corp. (10th ed.) 268; Field Corp. 303; Green Brice Ultra Vires, 273-4, 729. Although in such a case the corporation or its officers exceeded the corporate authority, and its contract would be hence in a sense ultra vires, yet other legal principles besides those merely relating to the powers of the corporation come in to affect the result. It is true a corporation is a

MORTGAGE- -PERSONAL ACTION WILL LIE AGAINST ONE ASSUMING. — In a personal action by the holder of a note and mortgage against the grantee of the maker of the note, to recover the amount due, it was shown that the grantee in the deed of conveyance to him assumed to pay such note and mortgage. Held, that the action was maintainable. The decided weight of authority in this country is to the effect that with regard to contracts not by specialty, the person for whose benefit the promise is made may enforce it, though he be a stranger to the contract and to the consideration. This is inconsistent with the general rule that an action on contract cannot be maintained unless there is privity of contract between the parties. But justice would be imperfectly administered if no exceptions were allowed to that general rule. Many trusts arising ex contractu would fail. One exception recognized by a mass of authorities, too great to be disregarded, is where the contract creates a duty or relation in the nature of a trust; as if A. should transfer property to B., and as the consideration, or as part of the consideration, for the transfer, B. should assume and promise to pay debts of A. In such case the consideration retained might well be regarded as held in the nature of a trust for the persons indicated by the contract. That such persons may maintain an action at law against the party promising, was held in the following among a great number of cases: Morgan v. Overman S. M. Co., 37 Cal. 534; Snell v. Ives, 85 Ill. 279; Helms v. Kearns, 40 Ind. 124; Johnson v. Knapp, 36 Iowa, 616; Anthony v. Herman, 14 Kan. 494; Joslin v. N. J. Car Co., 36 N. J. L. 141; Thompson v. Thompson, 4 Ohio St. 333; Urquhart v. Brayton, 12 R. I. 169; Hind v. Holdship, 2 Watts, 104; McDowell v. Laev, 35 Wis. 171; Saunders v. Classen, 13 Minn. 379; Campbell v. Smith, 71 N. Y. 26. Follansbe v. Menage. Opinion by Gilfillan, J.

[Decided Oct. 4, 1881.]

MAINE SUPREME JUDICIAL COURT ABSTRACT.*

MARCH, 1881.

MUNICIPAL CORPORATION-NEGLIGENCE-NOT LIABLE FOR MERE SLIPPERINESS CAUSED BY ICE- NO

TICE - EVIDENCE.-(1) Mere slipperiness of a street or sidewalk caused by either ice or snow is not a defect for which a town or city is liable. In this cold climate where ice and snow cover the whole face of the earth for a considerable portion of the year, such an inconvenience ought not, and rightfully cannot be regarded as a defect. No amount of diligence can keep our streets and sidewalks at all times free from ice and snow; and the latter, when trodden smooth aud hard, is nearly and sometimes quite as slippery as ice; and travellers will often slip and fall when no one is to blame. To hold towns and cities responsible for such accidents would practically make insurance companies of them. A block of ice may constitute a defect, the same as a block of wood or stone. So a ridge or hummock of ice or snow may constitute a defect, the same as a pile of lime or sand or mortar upon the sidewalk would. In Gilbert v. City of Roxbury, 100 Mass. 185, *To appear in 72 Maine Reports.

the sidewalk was constructed of earth, and was some three or four inches lower upon one side than the curbstone upon the other, and the ice had formed a ridge in the middle of the walk from three to five inches higher than at the edge, and sloping off toward the edge; and yet, being satisfied that there was nothing which caused the female plaintiff to fall but the slipperiness of the ice, the court held that a direction to the jury to return a verdict for the defendant was correct. (2) Notice of a defect in a way cannot be proved by the admission of a town or city officer: though the declarations of such an officer, which accompany his official acts, and tend to explain them, are admissible. See Corinna v. Exeter, 13 Me. 321. Smyth v. City of Bangor. Opinion by Walton, J. [Decided May 24, 1881.]

NOTICE TO DIRECTOR OF BANK KNOWLEDGE OF AGENT BEFORE EMPLOYMENT. A notice to a bank director or trustee, or knowledge obtained by him while not engaged either officially or as an agent or attorney in the business of the bank, is inoperative as a notice to the bank. A single trustee or director has no power to act for the institution that creates his office, except in conjunction with others. It is the board of directors only that can act. If the board of directors or trustees makes a director or any person its officer or agent to act for it, then such officer or agent has the same power to act, within the authority delegated to him, that the board itself has. His authority is in such case the authority of the board. Notice to such officer or agent or attorney, who is at the time acting for the corporation in the matter in question, and within the range of his authority or supervision, is notice to the corporation. Abbott's Trial Ev. 45; Fulton Bank v. Canal Co., 4 Paige, 127; La Farge Fire Ins. Co. v. Bell, 22 Barb. 54; National Bank v. Norton, 1 Hill, 578; Bank of U. S. v. Davis, 2 id. 454; North River Bank v. Aymar, 3 id. 263; Ins. Co v. Ins. Co., 10 Md. 517; Bauk v. Bayne, 25 Conn. 444; Farrell Foundry v. Dart, 26 id. 376; Smith v. South Royalton Bank, 32 Vt. 341; Washington Bank v. Lewis, 22 Pick. 24; Commercial Bank v. Cunningham, 24 id. 270; Housatonic Bank v. Martin, 1 Met. 308; 1 Pars. Cont. 77; Story Agency, § 140; 6 South, L. Rev. N. S. 45; Hoover v. Wise, 91 U. S. 308. Knowledge of an agent obtained prior to his employment as agent, and which he has no personal interest to conceal, will be an implied or imputed notice to the principal, when the knowledge is so fully in mind that it could not at the time have been forgotten, and relates to a matter so material to the transaction as to make it the agent's duty to communicate the fact to his principal. In such case the presumption that an agent will do what it is his duty to do, having no personal motive or interest to do the contrary, is so strong that the law does not allow it to be denied. See, upon the question, Housman v. Building Assoc., 81 Penn St. 256; Tucker v. Tilton, 55 N. H. 223; Fuller v. Bennett, 2 Hare, 394; Dresser v. Norwood, 17 C. B. (N. S.) 466; Rolland v. Hart, L. R., 6 Ch. App. 687; The Distilled Spirits, 11 Wall. 356; Hovey v. Blanchard, 13 N. H. 148: Hart v. Bank, 33 Vt. 252; Suit v. Woodhall, 113 Mass. 391; National Bank v. Cushman, 121 id. 490; Anketel v. Converse, 17 Ohio St. 11; Hoppock v. Johnson, 14 Wis. 303; Lawrence v. Tucker, 7 Me. 195; Jones' Mort. (2d ed.), § 584; also 16 Am. Law Reg. (N. S.) 1. Fairfield Savings Bank v. Chase. Opinion by Peters, J. [Decided May 13, 1881.]