and the holder of the paper. Hill v. Boyds, L. R., 8 Eq. 290; Johnson v. Roberts, L. R., 10 Ch. App. 505; Barned's Banking Co; In re Massey, 22 L. T. (N. S.) 853; Bank of Republic v. Millard, 14 Wall. 152. The only effect of the payer having the money at the bank where the paper is payable, is that it will enable him to plead a tender in exoneration of interest and costs of suit, provided he makes his tender good by payment of the principal into court. Caldwell v. Cassidy, 8 Cow. 271; Haxton v. Bishop, 3 Wend. 13; Carley v. Vance, 17 Mass. 389; Ward v. Smith, 7 Wall. 447; Wood v. Mechanics', &c., Co., 41 Ill. 267; 1 Am. Lead. Cas. 478.

The judgment should be reversed.

UNITED STATES SUPREME COURT

ABSTRACT.

CRIMINAL LAW NATIONAL BANK- CONSPIRACY UNEARNED DIVIDEND.-A conspiracy entered into by the officers of a National banking association to misapply the moneys of the association by procuring the declaration by the association of a dividend greater than the net profits of the association is not a criminal offense against the United States. There are no common law offenses against the United States; United States v. Hudson, 7 Cranch, 32; United States v. Coolidge, 1 Wheat. 415, and the statutes do not make the act in question an offense. United States v. Britton Opinion by Woods, J.

[Decided March 30, 1883.]

MARITIME LAW THORITY OF MASTER AS TO CARGO. Where a ship became disabled and put into port for repairs, and the cargo was discharged, and it was for the interest of the shipper that his property should be forwarded by some other vessel rather than that it should be hypothecated to pay for the repairs, and such repairs could not have been effected without an expense to him of very much more than it would cost to reclaim his property, pay all lawful charges upon it, and send it forward by some other conveyance, and communication between the port and that of the shipper by telegraph was reasonably certain and prompt, and no notice was given to him by telegraph, but only by mail, which required several weeks, of the necessity of hypothecating the cargo for the repairs to the vessel, and the vessel and freight would secure only a small portion of the required expense, held, that a hypothecation by the master to secure the money for the repairs was not authorized, and one advancing the money upon a bottomry bond was chargeable with notice of the master's want of authority. It is now the settled law of the English Courts that a master cannot bottomry a ship without communication with his owner, if communication be practicable, and a fortiori, cannot hypothecate the cargo without communicating with the owner of it, if communication with such owner be practicable." The Cassa Marittima, 2 App. Cas. 157. This doctrine was first announced in The Bonaparte, 8 Moore's P. C. 459, decided in 1853, and has been steadily adhered to since, not however, without decided opposition by Dr. Lushington. The Hamburg, 2 Moore's P. C. (N. S.) 319; The Cargo ex Sultan, 1 Swabey, 511. Whether the rule, to the extent it has been carried in England, is in accordance with the general maritime law, as understood in this country and the maritime nations of Europe, other than Great Britain. The master can neither sell nor hypothecate the cargo, except in case of urgent necessity, and his authority for that purpose is no more than may reasonably be implied from the circumstances in which he is placed. He acts for

BOTTOMRY BOND - LIMIT OF AU

the owner of the cargo because there is a necessity for some one to do so, and like every agent whose authority arises by implication of law, he can only do what the owner, if present, ought to do. Necessity develops his authority and limits his powers. What he does must be directly or indirectly for the benefit of the cargo, considering the situation in which it has been placed by the accidents of the voyage. As was said in The Gratitudine, 3 C. Rob. 261, by which the power of the master, under proper circumstances, to hypothecate the cargo to pay expenses of repairs on the ship was incontrovertibly established: "In all cases it is the prospect of the benefit to the proprietor that is at the foundation of the authority of the master. It is therefore true, that if the repairs of the ship produce no benefit or prospect of benefit to the cargo, the master cannot bind the cargo for such repairs; but it appears to me that the fallacy of the argument, that the master cannot bind the cargo for the repairs of the ship, lies in supposing that whatever is done for the repairs of the ship, is in no degree and under no circumstances done for the benefit, or with the prospect of benefit to the cargo; whereas the fact is, that though the prospect of benefit may be more direct and more immediate to the ship, it may still be for the preservation and conveyance of the cargo, and is justly to be considered as done for the common benefit of both ship and cargo." To the same effect is what was said in Duncan v. Benson, 1 Exch. 557: "But this agency for the freighter is confined to cases affecting his interest, and where the sale or pledge is directly or indirectly for his benefit. It is directly beneficial where goods are damaged by perils of the sea, and sold; it is indirectly so where there is damage to the ship, and the repairs become necessary for the benefit of the whole adventure." Sir Robert Phillimore was even more explicit in the case of The Onward, L. R., 4 Ad. & Ec. 57, where he used this language: "The next consequence from the doctrine of agency is that the master must sustain, to the best of his power, the interest of the absent owner. This is a principle of general maritime law, and not of English law only. Boulay Paty observes he must do that which there is fair reason to suppose the owner, if present, would do. The master is to remember the foundation of his authority to give a bottomry bond on cargo is the prospect of benefit, direct or indirect, to the proprietor of it. This principle limits the authority of the master in this matter." So in this country Washington, J., said, in Ross v. Ship Active, 2 Wash. C. C. 237: "At all events the necessity must be such as to connect the act with the success of the voyage; and not for the exclusive interest of the shipowner." Undoubtedly in all such cases much is left to the master's discretion, but to use the language of Story, J., in the Packet, 3 Mass. 259, "he must exercise it conscientiously for the general interest." court said in New England Ins. Co. v. The Sarah Ann, 13 Pet. 400, speaking of the analogous authority of the master to sell the ship: "All will agree that the master must act in good faith, exercise his best discretion for the benefit of all concerned, and that it can only be done upon the compulsion of necessity, to be determined in each case by the actual and impending peril to which the vessel is exposed." And in The Amelie, 6 Wall. 27. it was said: "And this necessity is a question of fact to be determined in each case by the circumstances in which the master is placed and the perils to which the property is exposed. If the master can within a reasonable time consult the owners, he is required to do it, because they should have an opportunity to decide whether, in their judgment, a sale is necessary." When the master is dealing with a cargo for the benefit of the voyage, he "must endeavor to hold the balance evenly between his two principals; he

This

must not sacrifice the ship to the cargo or the cargo to the ship." The Onward, supra, p. 58. It is equally well settled that a lender, upon the hypothecation of the cargo by a master of the vessel under his implied authority, is chargeable with notice of the facts on which the master appears to rely as a justification for what he is doing. Such a lender is presumed to know that the power of the master is to be determined by the necessities of the case in their legal operation on the owner of the cargo. As necessity creates the agency, and that only can be authorized which under the circumstances is reasonable and just, he must make his own inquiries and judge for himself, and at his own risk, whether if the owner were present, he would do or ought to do that, or something equivalent, which the master is undertaking to do for him in his absence. A lender cannot shut his eyes to existing facts as they appear, or by reasonable inquiry could be made to appear, and treat with the master as a general agent, having authority to do not only what the owner ought to do, but what he might do if he chose. Before there can be a recovery against the owner it must be shown that the circumstances were such as to make it apparently proper for the master to do what he has done. To this extent the burden of proof is clearly on the lender. The Aurora, 1 Wheat. 102; Thomas v. Osborn, 19 How. 30; The Amelie, 6 Wall. 27; The Grapeshot, 9 id. 141; The Lulu, 10 id. 203. In these cases the rule was applied to the hypothecation of the ship by the master, where less strictness will ordinarily be required than in the hypothecation of the cargo, because the master is the appointed agent of the owner of the ship, but the involuntary agent of the owner of the cargo. Bank of St. Thomas v, Brigantine Blake. Opinion by Waite, C. J.

[Decided April 30, 1883.]

PRACTICE-DEFINITION-" BROUGHT" AND "COMMENCED.--A suit is brought when in law it is commenced, and there is no significance in the fact that in the legislation of Congress on the subject of limitations the word "commenced" is sometimes used, and at other times the word "brought." In this connection the two words evidently mean the same thing, and are used interchangeably. Goldenberg v. Murphy. Opinion by Waite, C. J.

[Decided March 26, 1883.]

-

BONA

RAILROAD AID BONDS - LOCATION OF ROAD FIDE HOLDERS-ESTOPPEL.-Under an act of the Legislature of Missouri, county courts of counties were authorized to subscribe, in behalf of townships in their respective counties, to the capital stock of any railroad company within that State, "building or proposing to build a railroad into, through or near such township," and to issue bonds in the name of the county in payment of such subscription. There was a vote of a township in favor of issuing bonds in aid of a particular railroad company. The subscription was made and the bonds issued, reciting that they were authorized by a vote of the people, and were issued under and pursuant to an order of the county court by authority of the act. When the vote was taken and the bonds issued, the company did not propose to build a road into or through the township, but it was proposing to build one from a point nine miles distant from the township to a farther distance. Interest on the bonds was paid for three years. In a suit on coupons of the bonds by a bona fide holder for value,held, that the courts should acquiesce in the determination by the qualified voters and the local authorities that the proposed road was near the township, and hold that there was legislative authority for issuing the bonds. Van Hostrup v. Madison, 1 Wall. 291; Meyer v. Muscatine, id. 391. Kirkbride v. Lafayette County. Opinion by Hanlon, J. [Decided March 30, 1883.]

NEW JERSEY SUPREME COURT ABSTRACT. NOVEMBER TERM, 1882.*

DOMICILE-SETTLEMENT OF WIFE AND CHILDREN— ORDER OF REMOVAL OF PAUPER CONCLUDES TOWN.

(1) The maiden settlement of a wife remains and is imparted to her children when the husband has no settlement in this State. 3 Burn. Just.35; Paterson v. Byram, 3 Zab. 394; Alexandria v. Kingwood, 3 Halst. 340. (2) An order of removal of a pauper, unappealed from or affirmed on appeal, is conclusive upon the township charged thereby, and no other removal of such pauper can be made except to subsequently acquired settlement. Rex v. Silchester, Bur. Set. Cas. 551; Rex v. Hincksworth, Cald. 42; Rex v. Southo wram, 1 T. R. 353; Rex v. Kenilworth, 2 id. 598; Rex v. St. Mary's 6 id. 615; Rex v. Woodchester, 2 Str. 1172; Rex v. Rudgeley, 8 T. R. 620; Regina v. Holsworth, 1 Ad. & E. 221; Regina v. Wye, 7 id. 766; Southfield v. Bloomingrove, 2 Johns. 105. Township of Little Falls v. Township of Bernards. Opinion by Knapp, J.

EVIDENCE-IN ACTION OF TRESPASS FOR CUTTING TIMBER.-In an action of tresspass for cutting timber on outlands, it is incumbent on plaintiff to prove that the deeds under which he claims title cover the locality of the cutting. Where the premises on which the timber is cut are what is called wild land-not improved on any part of the tract-repeated cuttings by a party not having the paper title, are repeated acts of trespass, and will not give title by possession against the party having the documentary title. Every presumption is in favor of the possession, in subordination to the title of the true owner. Townsend v. Reeves. Opinion by Parker, J.

RECORD-SEARCH BY CLERK FOR TITLE-WHAT CAN BE REQUIRED.-The clerk, when called upon to make a search for title, is entitled to have such information either by the names of the parties or by reference to the records in his office, as will enable him, by examining the indices or the record to which he is referred, to ascertain the premises in relation to which he is required to make a search. A party desiring a search cannot carve out a description of lands at his will, and require the services of the clerk to ascertain the condition of the title. Under a call for a search by such a description, the clerk is not required to certify that he can find no deeds on record conveying the premises described. Where the clerk certifies a description from the record, he is not obliged to certify that such description contains part only of the premises described in the order for a search. It is sufficient if he gives the description as it is on the record, with all its qualifications and recitals. State of New Jersey v. Deacon. Opinion by Depue, J.

MISSOURI SUPREME COURT ABSTRACT.+

FALSE REPRESENTATIONS-OF VENDOR-SCIENTER— NEGLIGENCE OF VENDEE.-(1) In legal effect a false representation made by a party as of his own knowl edge, and not as a matter of opinion or general assertion, about a matter of which he has no knowledge whatever, is the same as the statement of a known falsehood, and will constitute a scienter. Delaney v. Rogers, 64 Mo. 204; Dunn v. Oldham, 63 id. 181; Raley v. Williams, 73 id. 310. (2) The fact that the vendee omits to examine the property or to make inquiries of persons to whom he is referred by the vendor before buying, will not relieve the latter of liability for false representations made by him concerning it in the

*To appear in 15 Vroom's (44 N. J. Law) Reports To appear in 76 Missouri Reports.

Buun, 32 Caldwell

course of the negotiation. Wannell v. Kem, 57 Mo. 478; Langdon v. Green, 49 id. 367; Mead v. N. Y. 275; Van Epps v. Harrison, 5 Hill. 63. v. Henry. Opinion by Norton, J.

PROBATE LAW-POWER OF COURTS TO CORRECT THEIR OWN ERRORS-ADMINISTRATION.-It is an inherent power in every judicial tribunal to correct an error which it may have committed, when no positive rule of law forbids. Hence where it was made to appear to the probate court that a pending administration was without authority of law, held, that it was the duty of that court to revoke the authority claimed by the administrator and to stay further proceedings, though there was no express statutory provision authorizing such action. McCabe v. Lewis. Opinion by Henry, J.

TAX DEEDS THEIR CONCLUSIVENESS -EFFECT OF JUDGMENT ON DELINQUENT LIST-OMISSION OF DOLLAR MARK.- (1) The Revenue Act of 1872 made tax deeds conclusive evidence that every thing had been done, the omission of which would have been nothing more than an irregularity in procedure, and prima facie evidence of every thing else. Wag. Stat., p. 1199, § 193; p. 1206, § 219; p. 1212, § 241; Abbott v. Linden bower, 42 Mo. 162; Town of Fox v. Town of Kendall, 97 Ills. 76; Cooley Const. Lim. 371. (2) Where a judgment of the County Court upon the delinquent tax list expressly avers that the collector has given due notice, a tax deed founded upon the judgment cannot be attacked by showing that the printer failed to affix to the copy of the newspaper containing the list, which was filed in court at the time the judgment was rendered, his certificate under oath showing the due publication thereof. Voorhees v. Bank of United States, 10 Pet. 449. But per Norton and Ray, JJ., dissenting: Without the printer's certificate the County Court had no jurisdiction to enter judgment, and the judgment is void. (3) Where the published delinquent list in a column entitled "Tax, Interest, and Cost," contained the figures "5,88" opposite the description of the land, but no dollar character, or other thing to indicate the meaning of the figures, held, that this would not invalidate the tax deed; especially in a case where the judgment recited that due notice of the proceeding had been given before judgment. Cahoon v. Coe, 52 N. H. 523. Raley v. Guinn. Opinion by Henry, J.

WITNESS-IMPEACHMENT OF.-For the purpose of impeaching a witness it is competent to inquire as to his general moral character. State v. Miller, 71 Mo. 590. State of Missouri v. Grant. Opinion by Sherwood, C. J.

MAINE SUPREME JUDICIAL COURT

ABSTRACT.*

CONTRACT FORFEITURE -LIQUIDATED DAMAGESRULE TO DETERMINE AS TO.-J. and B. agreed in writing, that B. should "the present season plant and cultivate with sweet corn suitable for packing (four acres), and when the corn is in proper condition for packing, he will from time to time, upon reasonable notice from J., gather and deliver to J., as wanted by J., all the corn raised on said land," at a certain factory; and J. agreed to pay B. "for all his corn so received," at a price named; and B. further agreed "as fixed and liquidated damages," to pay J. a certain price "for each and every canister of corn which shall be raised or grown" on the four acres, and "which shall be sold to and be taken by any other person in violation of this contract or in diminution of the quanti

ties so contracted to be delivered." Held, that the *To appear in 74 Maine Reports.

forfeiture was liquidated damages. While an explicit statement in the contract that the forfeiture is liquidated damages is not conclusive, and this part of the contract is to be construed so as to carry out the intention of the parties, yet to ascertain that intention we are to examine the words used, its nature, the purpose to be accomplished, and all its parts. For this purpose the statement of the parties, though not conclusive, is strong evidence, and sufficient unless overcome by other tests which are to be applied. In this case the tests to be applied corroborate and confirm this statement rather than weaken it. One of the most usual and certain tests is, where otherwise the damages "would be wholly uncertain, and incapable, or very difficult of being ascertained except by mere conjecture." Another is, "where the agreement is in the alternative to do some particular thing or pay a sum of money," or the sum "is payable for one breach of contract." Sedgwick Dam. (5th ed.) 478, 481; 3 Parsons Cont. 159; Dwinel v. Brown, 54 Me. 468; Lynde v. Thompson, 2 Allen, 456; Hall v. Crowley, 5 id. 304; Chase v. Allen, 13 Gray, 42; Higginson v. Weld. 14 id. 165. Jones v. Binford. Opinion by Danforth, J.

[Decided Feb. 22, 1883.]

EXECUTION-PROPERTY TO BE SOLD ON, SHOULD BE PRESENT-EXCEPTIONS.- Generally property sold on execution should be present at the place of sale, in order that persons desirous of purchasing may examine it; but a barn situated in a sparsely settled place, may, in the absence of any unfair practices, be sold at some convenient place in its neighborhood, especially when the sale takes place in an inclement season of the year. Philips v. Brown. Opinion by Virgiu, J. [Decided March 13, 1883.]

REMOVAL OF CAUSE-ACTION OF REVIEW NOT ORIGINAL AND NOT REMOVABLE.-The statute of the United States for the removal of causes from the State to the Federal courts, where the alleged reason for removal is that a controversy between citizens of different States is involved, authorizes such removal only when the action could have been originally entered in the Federal court and tried there as an original action. An action of review is not an original action but arises out of and is supplemental to an original action which has been ended by a final judgment. An action to review a judgment of a State court is not one of which the United States Court has original jurisdiction, or which could be entered and tried in such court. The remarks of Miller, J., in Nougue v. Clapp, 101 U. S. 554, are applicable in this connection: "We think that for this court, after all that has been done, to undertake to decree that what that court did is void, to sit in review on its judgment, and reverse its decree and set aside its sale, in a case where its jurisdiction is undoubted, is unwarranted by the relations which subsist between the two courts. It would be an invasion of the powers belonging to that court, and such doctrine would, upon the simple allegation of fraud practiced in the court, enable a party to retry in the Federal court any case decided against him in the State court." In Railroad Company v. McKinley, 99 U. S. 147, the petition for removal was filed while the question for new trial was pending, and the court held that the State court retained jurisdiction, and refused to interfere. Harter v. Kernochan, 103 U. S. 562, confirms this view rather than otherwise. Though in that case the defendant came in for the first time after a final decree had been entered, yet under the facts of the case and by virtue of a statute of Illinois, this coming in vacated the decree, and the case was redocketed and stood for trial the same as though no decree had ever been entered. It was upon this ground

that the removal was allowed. The inference is inevitable that but for the effect of the statute in vacating the decree, it would have stood and have been considered final and conclusive, and the removal denied. In Stevenson v. Williams, 19 Wall. 576, Field, J., says: "After a final judgment has been rendered in the State court, the case cannot be removed to the Circuit Court of the United States, and there proceed as the statute provides, in the same manner as if brought there by original process without setting aside the trial and judgment of the State court as of no validity. No such proceeding is contemplated by the act." In Insurace Co. v. Dunn, 19 Wall. 224, the question was whether the action of the State court was a final judgment, and the court held if it was so it could not be removed, otherwise it might be. That statute, for the removal of causes, removes them for trial, but gives the Federal court no authority to review the doings of the State court, and certainly not to restrain or modify the execution of any judgment in the State court. See West v. Aurora City, 6 Wall. 139; Barrow v. Hunton, 99 U. S. 80; Bank v. Turnbull, 16 Wall. 190; Vannevar v. Bryant, 21 id. 41. In Freeman v. How, 24 How. 450, Nelson, J., after referring to several cases, says:

"The principle is, that a bill filed on the equity side of this court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice, or an equitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to the original suit, out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties." This writ of review is equivalent to a bill in equity, granted for the sole purpose of restraining or regulating the judgment in the original suit, that injustice may not be done thereby. In Du Vivier v. Hopkins, 116 Mass. 125, Gray, C. J., says: "When a cause is legally removed into the Circuit Court of the United States, the jurisdiction of the State courts over it ceases, and the suit is thenceforth to proceed to trial, judgment and execution in the Federal courts, and cannot afterward be remanded to the State courts for any purpose." Jackson v. Gould. Opinion by Danforth, J.

[Decided March 23, 1883.]

RHODE ISLAND SUPREME COURT

ABSTRACT.*

EQUITABLE ACTION-EQUITABLE CREDITOR ENTITLED TO PROTECTION AS TO ASSIGNMENT FOR CREDITORS.

S. made a conveyance to C. of certain property in trust upon special trust to secure the debts of S., and subsequently transferred to C. his stock in the Q. company as "pledge and collateral security" to secure the performance by S. of the conditions of the trust deed. After breach in the conditions of the trust deed, C. filed a bill in equity, and asked that a receiver be appointed of the Q. company charging that the property of the company was managed and controlled by one not a stockholder, whose control was adverse to the interests of the creditors, whose management was impairing the value of the property, and through whom it had become impracticable for C. to sell the stock pledged for any sum commensurate with its just value. C. held in pledge nearly all the stock of the Q. company, the balance of the stock being held by F. as administrator. Held, that C., though not technically a creditor, was as pledgee of a majority of the stock for the benefit of the S. creditors to be considered as an equitable creditor, and as such was entitled to the protection of the court. The rule is that "if it appears to the court that *To appear in 14 Rhode Island Reports.

the plaintiff has established a good prima facie equitable title, and that the property, the subject-matter of the suit, is in danger if left in the possession of the party against whom the receiver is prayed, until the hearing, or at least that there is reason to apprehend that the plaintiff will be in a worse situation if the appointment of a receiver be delayed, the appointment of a receiver is almost a matter of course." See Kerr Receiver, 7. Said Bowie, C. J., in State v. Northern Central R. Co., 18 Md. 193, 214: "In general where personal property, or the rents and profits of real estate in dispute are in imminent danger of being wasted or lost, a receiver may be appointed to take care of it for the benefit of all concerned during the controversy. Lord Hardwicke considered this power of appointment to be of great importance and most beneficial tendency. It is a discretionary power exercised by the court, with as great utility to the subject as any authority which belongs to it, and is provisional only for the more speedy getting in of a party's estate and securing it for the benefit of such persons who shall appear to be entitled; and does not at all affect the right. Equity will appoint a receiver at the instance of parties beneficially interested where there is no fraud or spoliation, if it can be satisfactorily established there is danger to the estate or fund, unless such step is taken." In the leading case of Clark v. Ridgely, 1 Md. Ch. Dec. 70, it is laid down that "the authority and duty of the court to appoint or not to appoint a receiver, depends upon the question whether the property is or is not in danger, in the hands of the party who may at the time be in possession." And see also Davis v. Duke of Marlborough, 2 Swans. 145, and 2 Daniels Ch. Pract. 1716, as to cases in which receivers are granted. Chafee v. Quidnick Co. Opinion by Tillinghast, J.

[Decided Feb. 3, 1883.]

LIMITATION-BANKRUPTCY OF DEBTOR DOES NOT STOP STATUTE RUNNING.-A disability to sue "happening by an invincible necessity" is like a disability expressly excepted from the statute of limitations. Under the Revised Statutes of the United States, §§ 5105, 5106, a creditor, after proving his claim against the bankrupt, may bring action upon the claim by writ of summons, and may, unless stayed by an order of the court in bankruptcy, prosecute the action to any stage short of final judgment. Hence when a creditor proved his claim in bankruptcy, but did not bring suit until a discharge in bankruptcy had been refused, held, that the statute of limitations was a good defense. Hill v. Phillips. Opinion by Carpenter, J. [Decided Feb. 3, 1883.]

SURETYSHIP

REPLEVIN BOND DISABILITY OF PRINCIPAL TO CONTRACT-DEED SIGNED BY AGENT.—

(1) One of the principals to a replevin bond was a married woman and a minor. Held, that her co-obligors could not take advantage of her disability to avoid the bond. Held further, that only the married minor and the defendant in replevin could take advantage of her disability. Morse v. Hodsdon, 5 Mass. 314; Simonds v. Parker, 1 Met. 508; Bigelow v. Comegys, 5 Ohio St. 256; Burgess v. Merrill, 4 Taunt. 468; Hartuess v. Thompson, 5 Johns. 160. (2) A deed signed by B. with A.'s name in A.'s presence and under A.'s direction, is the deed of A. Gardner v Gardner, 5 Cush. 483; Kime v. Brook, 9 Ired. 218; Jansen v. McCahill, 22 Cal. 563; Frost v. Deering, 21 Me. 156; Rhode v. Louthain, 8 Blackf. 413; Byers v. McClanahan, 6 Gill & J. 250; Pierce v. Hakes, 23 Penn. St. 231; Ball v. Dunsterville, 4 Term Rep. 313; Rex v. Inhabitants of Longnor, 4 B. & A. 647. Goodell v. Bates. Opinion by Durfee, C. J.

[Decided Jan. 26, 1883.]

MASSACHUSETTS SUPREME JUDICIAL

COURT ABSTRACT.

JANUARY, 1883.

CRIMINAL LAW-OFFENSE NOT CHANGEABLE ON APPEAL.-A defendant cannot be legally convicted in an appellate court of a different offense from that of which he was convicted in the court appealed from. He can only be tried for the same offense. But the identity of the offense is not to be determined solely by the date given in the complaint as, or as testified to by the witnesses, especially where time is not a material element of the offense. See Commonwealth v. Dillam, 4 Gray, 67. Commonwealth of Massachusetts v. Mahoney. Opinion by Morton, C. J.

PENSION-ATTORNEY CAN RECOVER FOR SERVICES ONLY STATUTE FEE.-In an action for services and disbursements in procuring a pension, defendant claimed that plaintiff as to his compensation for services was confined to the amount prescribed by statute, and the disbursement. Held, that plaintiff could recover the statute fees snd disbursements only, in accordance with U. S. R. S., §§ 4785, 4786, 4768, 4769, 5485. Whatever may be thought of the policy of establishing statutory fees for services that are not compulsory, such statutes to be effectual in completely protecting the persons for whom the services are rendered, must prohibit all other compensation than that established by law, and thus compel persons either to receive only the statutory compensation or to abandon the business of reudering the service. It was the intention of Congress by these provisions to prohibit the receiving from any person whatever any compensation for services in securing a pension other or greater than that provided by the statutes. Wolcott v. Fussell. Opinion by Field, J.

SURETYSHIP-PAYMENT BY JOINT DEBTOR IN FORM OF PURCHASE. -Payment by one of two joint debtors, although it be made by him in the form of a purchase, and be accompanied by an assignment of the debt, is still a payment and discharge of the debt. Where the payment thus made is by surety, as he is entitled in equity to be subrogated to the right which the creditor may have in the securities which have been given him by the principal debtor, so that he may enforce them for his own benefit, the debt is there treated as still existing so far as it may be required for that purpose. Wall v. Mason, 102 Mass. 313. The doctrine of subrogation is one recognized in equity and is ordinarily enforceable there only. It implies an equitable exception to the general principle that payment by one joint debtor discharges the debt as against all, and holds it as continuing to exist for the protection of the parties to the note and the enforcement of their rights inter sese. Edgerly v. Emerson, 23 N. H. 555. As to the question whether a surety, with whom security has been deposited, is entitled to such security only to the extent of enforcing a claim for that which he has paid on behalf of the co-surety, or whether he may enforce the full claim which the creditor had against the co-surety, provided that he does not himself thus obtain more than he has actually paid on behalf of the co-surety, the authorities are conflicting. Hess's Estate, 69 Penn. St. 272; Lidderdale v. Robinson, 2 Brock. 160, and 12 Wheat. 594; Ex parte Stokes, DeG. 618; Maxwell v. Herron, 3 Ross, 129; Apperson v. Wellbourne, 58 Miss. 439. The conclusion of the court is that neither in his own name nor in that of the creditor ought the surety paying the debt to enforce any claim against his co-surety except for the amount actually paid by him for his co-surety; and if by reason of the insolvency of such surety there is a loss, it is one to which the relation in which they stand to each other compels him to submit. New Bedford Institution for Savings v. Hathaway. Opinion by Devens, J.

INSURANCE LAW.

FIRE POLICY — LIMITATION OF TIME FOR ACTION TITLE EQUITABLE TITLE SUFFICIENT-USE OF PREMISES. (1) A policy of fire insurance provided that no suit or action against the company for the recovery of any claim by virtue of the policy should be sustainable in any court of law or chancery, unless such suit or action should be commenced within six months after the loss occurred. Held, that if the delay to bring suit is a result to which the company mainly contributed by holding out hopes of amicable adjustment, the company cannot be permitted to take advantage of the delay under the limitation clause, and that if the company, in any negotiations or transactions with the assured, after the period of limitation has expired, recognizes the continued validity of the policy, the clause of limitation is waived. Held, also, that where the other conditions of the policy are such that a reasonable compliance with them, insisted on by the company, is inconsistent with the observance of the limitation clause, the latter will not be allowed to defeat a recovery. See Titus v. Glenn's Falls Ins. Co., 81 N. Y. 410; Killips v. Putnam Ins. Co., 28 Wis. 472; Ames v. New York Ins. Co., 14 N. Y. 253. (2) The naked legal title of the property insured was in a third party, but the whole beneficial interest and the possession were in the assured. Held, that the latter had the entire, unconditional and sole ownership of the property. The character of the plaintiff's title was considered in Franklin Fire Ins. Co. v. Martin, 11 Vroom, 568, under a policy issued on this same property, which described it as "his," and which required any interest not absolute to be expressed in the policy. The Court of Errors held that the plaintiff's interest was absolute, and was aptly described by the possessive "his." I can see no substantial reason for regarding the plaintiff's rights as an absolute interest in the property, and not considering them as the entire, unconditional and sole ownership of it. The mere fact that Wilson held the naked legal title did not destroy the plaintiff's ownership, Bonham v. Iowa Ins. Co., 25 Iowa, 328, and as his ownership was of the fee simple in equity, and was not held jointly or in common with another, it was entire and sole, Dolliver v. St. Joseph Ins. Co., 128 Mass. 315, and to be absolute is to be unconditional. Therefore this clause in the policy was not violated. (3) The policy described the subject of the insurance as being "a two-story and attic frame, shingle-roof building, occupied as a boarding-house.' The proof showed that about one-third of the lower story was occupied by a bar-room and billiard-roomthe place was not licensed as an inn and tavern or otherwise-and the remainder of the property was used as a boarding-house by the tenant of the whole property. There was no evidence that the existence of the bar-room and billiard-room was at all material to the risk. Held, that there was no breach of warranty. In Wall v. Ins. Co., 7 N. Y. 370, a building was described as a store house and the policy forbade the carrying on trades denominated hazardous, of which rope making was one. A portion of the building was occupied by a branch of the businesss of rope making. The policy was held void. In Sarsfield v. Ins. Co., 61 Barb. 479, by reason of the existence of a billiard-room and eating-saloon in a part of premises insured as a dwelling-house, billiard saloons and eating-houses being prohibited by the policy as extra hazardous, the policy was held to be avoided. In Duvies v. Manhattan Ins. Co., 6 Vroom, 366, a policy on premises described as a country store was held avoided by the use of a part for a private stable, an expressly prohibited use. In Lappin v. Charter Oak Ins. Co., 58 Barb. 325, the property was described as a dwelling-house, and according to the policy, any misrepresentation or omission to state any fact material