action or indictment, if any, shall be made, in order to indemnify the estate of the intestate or her relatives, or to punish the party causing the injury to her. Our statute permitting the survival of similar actions in this State does not therefore apply.

The question considered in the case at bar was fully and ably discussed in Wadham v. Grand Trunk R. Co., 38 Vt. 294, and the same result reached as that to which we have arrived. To the same effect also is State v. Pittsburgh & Conn. R., 45 Md. 41, 45.

The plaintiff in his argument attaches importance to chapter 289 of the acts of 1873, by virtue of which the defendant's railroad is operated in the several States through which it runs as a continuous line, but the fact that it is a corporation by the law of Massachusetts as well as Connecticut, cannot make its liabilities different or greater in this State on account of transactions occurring entirely in Connecticut, nor are the rights of plaintiff greater by reason that his intestate, who was injured in this transaction, was a citizen of this Commonwealth. Whitford v. Panama R., 23 N. Y. 472, 473; Richardson v. New York Cent. R., ubi supra. Exceptions sustained.

[To same effect, Vawler v. Mo. Pac. Ry. Co., 84 Mo, 679; S. C., 54 Am. Rep. 105; Debevoise v. N. Y., etc., R. Co., 98 N. Y. 377; S. C., 50 Am. Rep. 683. Contra: Herrick v. Minneapolis, etc., Ry. Co., 31 Minn. 11; S. C., 47 Am. Rep. 771.-ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

ASSESSMENT-RECOVERY OF MONEY PAID ON VOIDPAID BY REFEREE ON FORECLOSURE PRESENTING CLAIM AGAINST NEW YORK CITY-LAWS 1873, CH. 385 -STATUTE OF LIMITATIONS-CODE OF CIVIL PROCEDURE, $$ 406, 410.—(1) A referee to sell, appointed in a foreclosure action, paid out of the proceeds of sale an assessment as directed by the judgment. On the application of the owner of the equity of redemption, the assessment was vacated. Held, that his administrator might maintain an action to recover back the money paid thereon. The validity of an assessment cannot be determined in an action to foreclose a mortgage. (2) The presentation of a claim against the city of New York, pursuant to section 105 of the charter of 1873 (Laws of 1873, ch. 385), although a necessary preliminary to enable the claimant to maintain an action thereon, is not the commencement of an action. (3) An assessment was paid June 6, 1871; on the 4th of the following December an order was entered vacating the same. November 17, 1877, a written demand was presented to the comptroller of the city for the payment to him of the amount paid to discharge the assessment; and payment not having been made, this action was commenced on the 18th of December following. The statute prohibited the commencement of any action for a period of thirty days after said demand. Held, that plaintiff's action was not barred. Under section 406, Code Civ. Proc., the statute of limitations was suspended during the term of the statutory prohibition. This view is quite consistent with the case of Dickinson v. Mayor, etc., 92 N. Y. 548. In that case it would not have helped the plaintiff, the term of the statutory suspension being only thirty days, and the plaintiff having exceeded the statutory limitation more than one year, and the claim not having been presented to the comptroller until more than three months after the statutory limitation had expired. But here the action was brought on the 18th of December, 1877. The statutory limitation is claimed by the defendant to have expired the 4th of December, 1877. The excess was only fourteen days, and the operation of section 406 being to sus

pend the running of the statute during the thirty days following the 17th of November, 1877, when the claim was presented, the action was commenced in due time. This construction also relieves the statutes from the apparent inconsistency pointed out in the opinion at General Term of allowing a plaintiff six years within which to commence an action, and at the same time prohibiting him during thirty days of that term from maintaining any action, Section 410 of the Code of Civil Procedure does not affect this question. It provides only for cases where a simple demand is a necessary preliminary to the bringing of an action, and the action may immediately follow non-compliance with the demand. Its language is: "Section 410. Where a right exists, but a demand is necessary, to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete, except in one of the following cases." The exceptions have no reference to the question now under consideration. This section (410) applies to many cases where a demand is necessary, and an immediate right of action follows, but it could hardly apply to the case of a promissory note, payable thirty days after demand. In the present case not only a demand was necessary, but a presentation of the claim and a neglect for thirty days to pay. The maintenance of an action before the expiration of the thirty days was prohibited, and the question is, whether under section 406 the statute ran during the thirty days. Jan. 18, 1887. Brehm v. Mayor, etc., of New York. Opinion by Rapallo, J.

CONTRACT-FOR SALE OF LAND-SPECIFIC PERFORMANCE-ASSIGNMENT BY HEIRS.-The interest in a party in a contract for the sale of land is real estate, and at his death passes as such to his heirs, and not to his administrator; and the heirs alone can assign and convey such an interest. Boon v. Chiles, 10 Pet. 180; Simonds v. Catlin, 2 Caines, 61; Hathway v. Payne, 34 N. Y. 92-103; Stoddart v. Whiting, 46 id. 627. Jan. 18, 1887. Palmer v. Morrison. Opinion by Earl, J.

CREDITOR'S ACTION-WHEN DEED CANNOT BE DECLARED MORTGAGE-COSTS.-Plaintiff brought a creditor's action to set aside a conveyance of real estate by the judgment debtor to his wife, alleging that it was without consideration, and made to hinder, delay and defraud the husband's creditors; and the complaint demanded that the conveyance be cancelled of record and the judgment declared a lien upon the property. The Special Term found that the conveyance to the wife was for a consideration of $1,000, as recited in the deed, and ordered judgment that the deed should stand as a mortgage security for that sum, and that plaintiff's judgment should be a lien upon the property subject to such mortgage. The General Term affirmed the judgment of the Special Term except as to costs, holding that as the wife had maintained her defense, she should not pay costs. Held, that the judgment could not stand; that it in effect affirmed the validity of the conveyance to the wife, so far as she was concerned, and that there was no authority for changing her deed into a mortgage. Jan. 18, 1887. Truesdell v. Sarles. Opinion by Danforth, J.

LIBEL-EVIDENCE-FACTS IN BULK AS STATED IN PAMPHLET.-Upon the trial of an action for libel, the defendant, for the purpose of showing the occasion and provocation of the alleged libel, put in evidence a pamphlet which the plaintiff had caused to be published and circulated concerning him previous to the publication complained of. The pamphlet was received for that purpose, but not as evidence of the facts therein stated. Afterward, while the plaintiff was giving evidence on his own behalf, he was shown the pamphlet,

and asked: "Are the facts stated in that pamphletthose that are stated upon your personal knowledgetrue?" The defendant objected to the question, but the objection was overruled, and he answered: "They are." The pamphlet contained many allegations of fact which were wholly incompetent and irrelevant to the issue, and extremely prejudicial to the defendant. Held, that the court erred in permitting the question to be answered. (2) When a party assumes to prove in bulk a large group of facts, he must be sure that they are all competent, and it is no answer to an objection made to such a question that some of the facts are competent. It is not the duty of counsel to grope through the great mass of facts and point out such as are particularly objectionable. (3) Where the evidence as a whole is in its very nature essentially objectionable, a general objection is sufficient. Jan. 18, 1886. Hinman v. Hare. Opinion by Earl, J.

MANDAMUS-TO COMPEL DECISION IN PARTICULAR WAY-TAX SALE-NOTICE-LACHES.-A Writ of mandamus will not lie to compel an officer exercising judicial functions to reach any particular decision or to set aside a decision already made. People, ex rel. Equitable Life Ins. Co. v. Chapin, 103 N. Y. The mere record of a deed is not notice to the comptroller that the grantee is the party entitled to the money to be refunded by the State on account of an invalid tax sale of the premises. Application for a mandamus may in the discretion of the court be denied when the delay in moving it is unreasonable, although it was within the time given for the commencement of actions; but after that time, when the delay is unexplained, it ought not to be granted. Jan. 18, 1887. People, ex rel. Millard, v. Chapin. Opinion by Danforth, J.

MORTGAGE-VOLUNTARY DEED OF PREMISES-PAYMENT OF INTEREST BY GRANTEE-NO RESORT ΤΟ GRANTOR'S ESTATE.-An executory agreement, supported by a meritorious, as distinguished from a valuable or pecuniary consideration, cannot be enforced either at law or in equity, and an executory covenant falls within the operation of the rule. Whitaker v. Whitaker, 52 N. Y. 368; S. C., 11 Am. Rep. 711. A father, who was the owner of certain premises subject to a mortgage, conveyed the mortgage lands to a daughter by a full covenant deed. The daughter paid some interest on the mortgage which had accrued after her father's death, and sought to be reimbursed for the same from his estate. Held, that as the land was the primary fund for the satisfaction of the mortgage, she was not entitled to recover. It is the settled doctrine in equity that one who purchases land subject to a mortgage makes the land thereby the primary fund for the payment of the mortgage debt. It is otherwise as between mortgagor and mortgagee when the bond of the mortgagor accompanies the mortgage in the absence of any statute regulation. In that case the bond is the principal thing, and the mortgage is the incident. The debt is represented by the bond, and the mortgage is collateral security for the personal obligation. But on a conveyance by the mortgagor, subject to the mortgage, the plain meaning of the transaction between the parties is that the land shall pay the mortgage debt in exoneration of the personal liability of the mortgagor on his bond, and in equity, on such a conveyance, the land is treated as the principal debtor, and the mortgagor as surety for the mortgage debt. If the deed in addition contains a covenant on the part of the grantee to pay the mortgage, the land still remains the primary fund for the payment of the mortgage. This question was very fully considered upon authority by the chancellor in the case of Cumberland v. Codrington, 3 Johns. Ch. 229; S. C., 8 Am. Dec. 492, and he declared the re

sult of the authorities to be that "the mere covenant with the vendor to pay the mortgage debt does not shift the charge from the fund primarily liable." This is in accordance also with the real intent of the transaction. The essential purport of such a covenant is to indemnify the mortgagor against the contingency that the land may not bring enough to pay the mortgage debt, and thereby leave him exposed to a claim for a deficiency. Halsey v. Reed, 9 Paige, 451. Although the covenant may be in the form of a direct undertaking to pay the mortgage debt, and not a mere covenant of indemnity, yet that is its essential character. The covenant is treated as an additional security for the mortgage debt, and inures as a promise to the mortgagee, yet it is settled that it will support an action by the mortgagee only when the immediate grantor of the covenantor is himself liable for the mortgage debt. King v. Whitley, 10 Paige, 465; Vrooman v. Turner, 69 N. Y. 280; S. C., 25 Am. Rep. 195. In Halsey v. Reed, supra, the grantor of premises subject to a mortgage, which was assumed by the grantee before making any payment thereon, brought an action against the covenantor on the covenant of assumption, and recov. ered nominal damages only. He afterward paid the mortgage, and claimed the amount of the payment from the estate of his grantee. It was insisted that the former judgment was a bar, as the claimant might have recovered the whole amount of the mortgage in that action. But the point was overruled, the chancellor holding that until actual payment only nominal damages could be recovered. It is unnecessary to inquire whether this would now be regarded as a controlling authority on the question. But even if the grantor could, on default of the grantee to perform his covenant to pay the mortgage, recover the whole amount thereof without having paid it himself, yet he would be bound to apply the sum recovered in satisfaction of the mortgage debt. Whichever view may be taken, the fact remains that indemnity is the primary purpose of such a covenant. Can it be doubted that when the grantor is not himself liable for the mortgage debt, and has no personal interest, that the covenant shall be performed, he can recover nothing beyond nominal damages? The giving of a covenant by the grantee does not work a novation of the mortgage debt. It does not make the debt his own except in respect to the estate (Butler v. Butler, 5 Ves. 534), and his liability is auxiliary, and not primary. We think therefore there can be no doubt upon the authorities that when Enos Warren conveyed the mortgaged premises to his daughter, the land was the primary fund for the satisfaction of the mortgage. The remaining question is whether the burden was shifted by the circumstances attending the conveyance to Mrs. Wilbur, rendering that which before was primarily a debt against the land, to which his covenant was collateral, his personal debt, to which the mortgage was incident. It was doubtless competent for the intestate upon a consideration to change his position, and as between his daughter and himself, to make himself the principal debtor, and the land the secondary fund for the payment of the mortgage. This probably would have been the effect of the covenants in this deed, except for invalidity. It is said that the insertion of the covenants in the deed, although not enforceable as such, indicates an intention on the part of the father to himself to pay the mortgage. This may be true. The circumstances do indicate an intention on the part of the grantor to give the land to his daughter free from incumbrance. But this intention was never effectuated. The father died leaving the mortgage unpaid. The question is, whether the existence of this unexecuted intention is sufficient in law or equity to shift the primary burden of the mortgage debt from the land, and put it upon the father's es

tate. To hold this would, we think, be introducing a dangerous doctrine, which so far as we know has no sanction in the law. The father incurred no legal or equitable obligation to pay the mortgage in exoneration of the land. The daughter took the land charged with the mortgage, and if she pays it out of her own means, nothing is taken from her which her father had given her. If on the other hand, the estate of the father is compelled to pay the mortgage, she in effect is enabled to perform an unexecuted gift, to the prejudice of others interested in the estate. It may be admitted that in a loose sense there is an equity that her father's intention should be carried out, but an intention, not moved by any consideration recognized by the law as sufficient to create an enforceable obligation, is not, we think, sufficient to change the natural order of liability as between the real and personal estate, in respect to an obligation which, when created, was secondary, and not primary. The intention of the father rested in intention merely, because no effectual act was done in execution of it. The case of Cole v. Malcolm, 66 N. Y. 363, is not in point. There lands conveyed by a husband to his wife, without consideration, were subsequently subjected to a charge in favor of creditors, which the heirs of the wife were compelled to pay, and the court held they were entitled to be subrogated to the claim of the creditors against the husband. In that case there was a gift of land unincumbered without actual fraud, perfected by a conveyance, and in effect a portion of it was subsequently taken away through a latent equity in the creditors of the husband. The cases are quite dissimilar, and do not rest on the same principle. Jan. 18, 1887. Wilbur v. Warren. Opinion by Andrews, J.

MUNICIPAL CORPORATION-AUTHORITY TO CONTRACT -NOTICE.-One can contract with a municipal corporation only through its authorized agents, and is chargeable with notice of the limitations upon their official authority imposed by general laws. Donovan v. City of New York, 33 N. Y. 293. The act of 1870, ch. 719, authorizing the common council of Long Island City to employ an attorney, was repealed by the act of 1871, ch. 461, and the city is not liable for services rendered by an attorney employed by the common council subsequent to the act of 1871. Jan. 18, 1887. Lyddy v. Long Island City. Curiam.

Oninion per

OFFICE AND OFFICER-APPOINTMENT BY MAYORAD INTERIM IN FULL TERM-CITY OF TROY-CHAMBERLAIN OF CITY OF TROY-ESTOPPEL-FORMER JUDGMENT.-(1) The charter of the city of Troy contains this provision: "In the event of sickness or absence of the chamberlain, if he shall neglect to appoint some suitable person to discharge the duties of the office, the mayor may appoint some suitable person, te be approved by the common council, to discharge the duties of such officer during such sickness or absence." February 7, 1884, the mayor sent to the common council the following communication: "Gentlemen-It becomes my painful duty to inform you that Henry S. Church, the chamberlain of this city, has abandoned his office, and according to all accounts has left the city. A partial investigation and examination

entered upon the duties of the office. It was afterward insisted by Hall, that although the appointment on its face was an ad interim oue, yet it was in legal effect an appointment for the full term of three years, for the reason that the mayor, under the circumstances existing at the time, had no power to make a temporary appointment, but did have power to nominate a chamberlaim for a full term, and no other. Held, that if the power to make a temporary appointment could not under the circumstances be exercised, then the appointment of Hall was void, and did not inure as an appointment for a full term. (2) A former judgment cannot operate as an estoppel, when by its terms it expressly disclaims any decision of the matter in controversy, notwithstanding it may be inferred as a necessary sequence to the fact found, that the question at issue was really decided. Jan. 18, 1887. People, ex rel. Bridgeman, v. Hall. Opinion by Andrews, J.

SALE-CONTRACT IN WRITING-COURT SHOULD CONSTRUE.-Plaintiff sold to defendants a quantity of goods by the following contract in writing signed by them: "Sold to Cassidy & Adler the entire manufactured stock, in good condition, consisting of pipes, fittings, fines, etc., now on hand at foundry and storerooms on Fifty-fifth and Fifty-sixth streets, Tenth and Eleventh avenues. The price on same to be eighty (80) per cent from list price, besides the sum of $700. The stock to be taken without tarring, and to be left on premises, the same to be paid for in cash. The receipt of $100 in part payment of the same is hereby acknowledged." Upon receiving the inventory defendants objected that a part of the stock on hand at the time of the sale was not included in the inventory. This the plaintiffs admitted, and claimed that the goods had been sold to other parties prior to the sale to the defendants, but had not been delivered at that time; and they claimed that such goods were not included, or intended to be included, in the sale to the defendants. Upon the trial the court, against defendants' objection, left it to the jury to determine what the parties meant by the use of the term, "stock now on hand," as used in the bill of sale; whether it meant all of the goods which were present at the time of the sale, or only such as the plaintiffs still owned. Held, error; that the construction of the bill of sale was for the court (Dwight v. Germania Ins. Co., 103 N. Y. 341; First Nat. Bank v. Dana, 79 id. 108); that there was no ambiguity in its language, and that it should be construed as covering the entire stock on hand at the time of the sale. Jan. 18, 1887. Brady v. Cassidy. Opinion by Ruger, C. J.

WILL-LEGATEES ELECTING TO TAKE LAND-LIABILITY FOR TESTATOR'S DEBTS-CODE, § 1843-EQUITABLE SET-OFF.-(1) Legatees of proceeds arising from the sale of real estate may elect, no other rights intervening or being prejudiced thereby, to take the land itself; and an election is established in taking possession of the land as their own. Although such election does not divest the naked legal title of the heirs at law still it vests the equitable ownership, and the legatees may at any time require and compel a transfer of the former title. (2) Section 1843, Code of Civil Procedure, which provides that devisees are made liable to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by the decedent," does not require, as a condition of liability, that the legal title shall have passed. (3) The doctrine of equitable set off will be exerted only in a case where the equity invoked is entirely clear and certain. Jan. 18, 1887. Armstrong v. McKelvey. Opinion by Finch, J.

UNITED STATES SUPREME COURT ABSTRACT.

FRAUD

- INTOXICATION INADEQUACY OF CONSIDERATION-CONDITION PRECEDENT REPAYMENT OF CONSIDERATION — INABILITY TO REPAY.—(1) A complaint alleging that while plaintiff was in such a state of intoxication as not to be in his right mind, or capable of transacting business, defendants knowing his condition, fraudulently extorted from him, for $1,200, $80,000 worth of stock of a mining corporation, and praying for a cancellation of the transfer, a sale of enough of the stock to repay the $1,200, the issue of the rest to plaintiff, the restoration of any certificate he may have transferred, and for an account and injunction, states a case entitling plaintiff to relief in equity. (2) The complaint showing that the $1,200 never came to plaintiff, but was used in part by defendants in extinguishing a debt of plaintiff to them, and in part by his wife in paying other debts, and that he has no means of tendering the $1,200 except his interest in the mining company, equity will not require a repayment as a condition precedent, since plaintiff's inability is without fault of his; and the court can, in its final decree, make provision for repayment. Dec. 20, 1886. Thackram v. Haas. Opinion by Gray, J.

HUSBAND AND WIFE-JOINDER- OREGON STATUTE -MORTGAGE-FORECLOSURE-DECREE-SALE UNDER

SECOND OF TWO DECREES - JURISDICTION. —(1) Under the Oregon statute of October 21, 1880, repealing all laws imposing or recognizing any civil disabilities of the wife not imposed or recognized as to the husband, except that the right to vote and hold office was not conferred on her, the wife's identity is no longer merged with that of her husband, and she can be joined as co-defendant with him in an action for the recovery of land of which both are in possession; especially when the greater part of it is claimed by her as her separate property. (2) Article 15, Const. Or., declaring that "the property and pecuniary rights of every married woman at the time of marriage, or afterward acquired by gift, devise, or inheritance," shall not be subject to the debts or contracts of the husband, merely preserves her property from its compulsory subjection to his debts or contracts; it does not control her voluntary disposal of it for any purpose, including her mortgaging it to secure the payment of a debt owing to him. (3) A sale under the latter of two decrees for foreclosures rendered in the same suit is not void for want of jurisdiction when the second is made at the same time with the first, and is the same as the first, except that it gives the oound. aries of the property to be sold as one tract, and also the boundaries of each of the several parcels into which it was divided. Jau. 10, 1887. Barrell v. Tilton. Opinion by Field, J.

MUNICIPAL BONDS IN AID OF RAILROAD - ILLINOIS ACT OF FEB. 24, 1869, § 10 — CONSTRUCTION OF STATE STATUTE-BAR LIS PENDENS NOTICE.- -(1) The term "village," in section 10 of Illinois act of February 24, 1869, amending the charter of the Illinois Southeastern Railway Company, authorizing “any village, city, county or township" along the route of the railway to subscribe to the stock of the company, or make donations to it, and to issue bonds for such subscriptions or donations, includes "towns," and the bonds of an incorporated town issued thereunder are valid. The general and popular distinction between them in English speech will not carry us far toward a solution. The dictionaries tell us that the word "town," signifies any walled collection of houses. (Johnson.) But that is its antique meaning. By modern use, it is said to be applied to an undefined collection of houses or

habitations; also to the inhabitants; emphatically to the metropolis. (Richardson.) Again a town is any collection of houses larger than a village; or any number of houses to which belongs a regular market, and which is not a city. (Johuson, Webster, Ogilvie.) The same authorities define a village as a small collection of houses in the country, less than a town. According to this distinction, the law, in giving power to "any village, city, county, or township" to make donations and issue bonds to the railroad company, confers the power upon bodies of higher and lower degrees of municipal organizations than towns, and leaves them out. This is an incongruity which we can hardly suppose was intended. The Supreme Court of Illinois, in a recent decision against the power, to which we shall presently refer, is obliged to say, "Why incorporated towns were omitted in that act cannot now be known." In seeking aid from collateral sources, we shall probably derive more light from the political use of the terms "town" and " village "in this country, than from general lexicography. In New England and New York towns are the political units of territory into which the county is subdivided, and answers, politically, to parishes and hundreds in England, but are vested with greater powers of local government. In Delaware the counties are divided into hundreds, the words "town" and village" being indiscriminately applied to collections of houses. In Maryland and most of the southern States the political unit of territory is the county, though this is sometimes divided into parishes and election districts for limited purposes. The word "town" is used in a broad sense, to include all collections of houses from a city down to a village. Thus, in Virginia, by an act passed in 1778, on the death or removal of "any one of the trustees and directors of the several towus within this State, not incorporated," provision is made for filling the vacancy. By act of 1793, "electors of towns entitled to representation in the house of delegates" are authorized to vote at their respective court-houses for representatives in Congress. By Revised Code of 1819, "trustees of the respective unincorporated towns of this commonwealth" are empowered to make by-laws to prohibit horse-racing in the streets of the town. By the Revised Code of 1849, in the chapter entitled "Of Towns," the council and board of trustees of any town, heretofore or hereafter established, may cause to be made a survey and plan of the town, showing each lot, public street, etc., to lay out, alter, improve and light the streets, and to adopt various municipal regulations relating to public grounds, markets, health, nuisances, supply of water, fire departments, etc. Most of these towns were nothing but villages. The close connection between Virginia and Kentucky and the early settlement of Illinois renders this use of the word " "town' in the mother State apposite to the question under consideration. In New Jersey, Pennsylvania, Ohio, Indiana, Michigan and Illinois, the subdivision of a county, answering to the towns of New England and New York, are called townships, though the word "town" is also applied to them in Illinois. In these States the words "town" and "village" are indiscriminately applied to large collections of houses less than a city. Welch v. Post, 99 Ill. 471, disapproved. (2) The provision of the Illinois Constitution of 1870 forbidding any municipality to subscribe to the stock of, or to make a donation in aid of any private corporation, except in the case of "subscriptions" previously voted under existing laws, having been construed by several decisions of the Illinois Supreme Court as including, under the word "subscriptions" in the excepting clause, "donations," held, that the Federal Supreme Court would follow such decisions, although it had previously construed the provision

differently. (3) The decision in an action upon certain coupons is not conclusive upon the parties in a subsequent suit upon other coupons of the same bond, unless the issues in the former action embraced all the issues in the latter. (4) The pendency of a suit relating to the validity of negotiable paper not yet due is not constructive notice to subsequent holders thereof before maturity. (5) Nor is the purchaser of municipal bonds put upon inquiry in relation to pending suits because an illegal provision appears upon the face of them in that they are made payable at a place other than the town treasurer's office, such provision being merely void itself, and not avoiding the bonds. Jan. 10, 1887. Town of Enfield v. Jordan. Opinion by Bradley, J.

PRINCIPAL AND AGENT LIABILITY OF AGENT TO THIRD PERSONS-POSSESSION UNDER BOND AFTER SEQUESTRATION. — Libellants sue libellee, as on an implied contract, for the value of the use of a tug owned by libellants, and wrongfully used for a certain time by libellee. Libellee held the tug during the time in question as agent for N. & L., who, having a mortgage on the tug, caused her to be seized under a writ of sequestration, and afterward duly gave bond and received possession of her. Held, that libellee was only the agent of N. & L., who only were liable, if any persons were. Jan. 10, 1887. Baldwin v. Black. Opinion by Blatchford J. Bradley, J., dissenting.

SHIP AND SHIPPING-SALVAGE-DRY-DOCK.- A fixed structure, such as this dry-dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water. The fact that it floats on the water does not make it a ship or vessel, and no structure that is not a ship or vessel is a subject of salvage. A ferry-bridge is generally a floating structure, hinged or chained to a wharf. This might be the subject of salvage as well as a dry-dock. A sailor's floating bethel or meeting-house, moored to a wharf, and kept in place by a paling of surrounding piles, is in the same category. It can hardly be coutended that such a structure is susceptible of salvage service. A ship or vessel, used for navigation and commerce, though lying at a wharf, and temporarily made fast thereto, and also her furniture and cargo, are maritime subjects, and are capable of receiving salvage service. **Salvage is a reward or recompense given to those by means of whose labor, intrepidity, or perseverance a ship or goods have been saved from shipwreck, fire, or capture." 2 Bell Comm. (7th ed.) 638. "Salvage," says Kent, "is the compensation allowed to persons by whose assistance a ship or its cargo has been saved, in whole or in part, from impending danger, or recovered from actual loss, in cases of shipwreck, derelict, or recapture." 4 Kent Comm. 245. Lord Tenterden defines it as "the compensation that is made to those persons by whose assistance a ship or its lading may be saved from impending peril, or recovered after actual loss." Abb. Shipp. 554. Sir Christopher Robinson defiues salvage as follows: "Salvage, in its simple character, is the service which those who recover property from loss or danger at sea render to the owners, with the responsibility of making restitution, and with a lieu for their reward." The Thetis, 3 Hagg. Adm. 14, 48. This definition is adopted by Machlachlan, in his Treatise on Merchant Shipping, ch. 13, p. 523. Sir John Nicholl, in The Clifton, 33 Hagg. Adm. 117, 120, says: "Now, salvage is not always a mere compensation for

work and labor. Various circumstances, upon public considerations, the interests of commerce, the benefit and security of navigation, the lives of the seamen, render it proper to estimate a salvage reward upon a more enlarged and liberal scale. The ingredients of a salvage service are- First, enterprise in the salvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellowcreatures, and to rescue the property of their fellowsubjects; secondly, the degree of danger and distress from which the property is rescued, whether it were in imminent peril, and almost certain to be lost if not at the time rescused and preserved; thirdly, the degree of labor and skill which the salvors incur and display, and the time occupied; lastly, the value. Where all these circumstances concur, a large and liberal reward ought to be given, but where none, or scarcely any takes place, the compensation can hardly be denominated a salvage compensation; it is a little more than a remuneration pro opere et labore." If we search through all the books, from the Rules of Oleron to the present time, we shall find that salvage is only spoken of in relation to ships and vessels and their cargoes, or those things which have been committed to or lost in the sea or its branches, or other public navigable waters, and have been found and rescued. It is true that the terms "ships and vessels' "are used in a very broad sense, to include all navigable structures intended for transportation. In a recent case decided by the Court of Appeal, in England, which arose upon that part of the merchant shipping act (17 & 18 Vict. ch. 104, § 487) giving jurisdiction to justices of the peace in certain cases of salvage, "whenever any ship or boat is stranded, or otherwise in distress, on the shores of any sea or tidal water situate within the limits of the United Kingdom," it is held (overruling Sir Robert Phillimore) that the word ship" would include a hopper-barge used for receiving mud from a dredging machine, and carrying it out in deep water, though it had no means of locomotion of its own, but was towed by other vessels. It had a bow, stern, and rudder, and was steerable. Lord Justice Brett said: "The words 'ship' and 'boat' are used; but it seems plain to me that the word ship' is not used in the technical sense, as denoting a vessel of a particular rig. In popular language, ships are of different kinds, barks, brigs, schooners, sloops, cutters. The word includes any thing floating in or upon the water, built in a particular form, and used for a particular purpose. In this case the vessel,' if she may be so called, was built for a particular purpose. She was built as a hopper-barge. She has no motive power- -no means of progression within herself. Towing alone will not conduct her. She must have a rudder, and therefore she must have men on board to steer her. Barges are vessels in a certain sense; and, as the word 'ship' is not used in a strictly nautical meaning, but is used in a popular meaning, I think that this hopper-barge is a 'ship.' * *This hopper-barge is used for carrying men and nud. She is used in navigation; for to dredge up and carry away mud and gravel is an act done for the purposes of navigation. Suppose that a saloon-barge, capable of carrying 200 persons, is towed down the river Mersey in order to put passengers on board the vessels lying at its mouth, she would be used for the purposes of navigation, and I think it equally true that the hopper-barge was used in navigation." The Mac, 7 Prob. Div. 126, overruling S. C., id. 38. Perhaps this case goes as far as any case bas gone in extending the meaning of the terms "ship" or "vessel." Still, the hopper-barge was a navigable structure, used for the purpose of transportatiou. We think no case can be found which would construe the terms to include a dry-dock, a floating-bridge, or meeting-house, permanently moored or attached to a

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