rights, if any, to have contribution from them, claiming that the general words of the policy, cited above, "goods in trust," etc., entitled the depositors to share in the benefits of the insurance obtained by the warehousemen, upon the authority of the case of Home Ins. Co. v. Baltimore Warehouse Co., supra. In that case, which we have already considered at some length, Justice Strong said, speaking for the court: "Turning then to the policy issued to the plaintiff below, and construing it by the language used, the intention of the parties is plainly exhibited. Its words are: Insure Balt. Warehouse Co. against loss or damage by fire, on merchandise, their own, or held by them in trust, or in which they have an interest or liability, contained in' a certain described warehouse. There is nothing ambiguous in the description of the subject insured. It is as broad as possible. The subject was merchandise contained in a certain warehouse. It was not merely an interest in that merchandise. The merchandise of the warehouse company owned by them was covered, if any they had. So was any merchandise in the warehouse in which they had an interest or liability, and so was any merchandise which they held in trust. The description of the subject must be entirely changed before it can be held to mean what the insurers now contend it means. If as they claim only the interest which the warehouse company had in the merchandise deposited in their warehouse was intended to be insured, why was that interest described as the merchandise itself? Why not as the assured's interest in it? And again 'the insurance company agreed to make good all loss,' etc., to the property as above specified.' Nowhere is any less interest in the goods insured alluded to than the entire ownership." Double insurance" may be defined to be additional and valid insurance, prior or subsequent, upon the same subject, risk and interest, effected by the same insured, or for his benefit, and with his knowledge and consent; but owners of different interests in the same property may respectively insure their interest without risk of violating a provision against other insurance. Tyler v. Etna Fire Ins. Co., 12 Wend. 507; 16 id. 387; Sloat v. Royal Ins. Co., 49 Penn. St. 14; Forbush v. Western Mass. Ins. Co., 4 Gray, 337; Parks v. General Interest Assurance Co., 5 Pick. 34. From the plain words of this policy, can there be any difficulty to determine the question involved? The policy limits its liability to the loss affecting the interest of the assured, not to exceed the sum agreed on as the amount of the policy, and not to exceed the interest of the assured. This the appellant company has promptly and fully paid. Can they, the said appellants, be held responsible for goods on storage in which the assured had no interest? Again the policy responds in plain terms: "Goods on storage must be separately and specifically insured." The depositors followed and obeyed this requirement, and did insure the goods on storage separately and specifically, but not in this company. They paid their premiums to other companies, and insured their goods on storage with them. These companies claim to have contribution of the appellant company, upon the ground of double insurance; that is, that the policy of the appellant company extended to a greater interest in the goods in the warehouse than the interest of their insured, and extended to goods on storags, and constituted double insurance. This cannot be maintained unless the court can make a contract for the parties. If we are to confine our action to the enforcement of the contract as made by the parties themselves, there can be no contribution in this case; there is no double insurance. The appellant company have discharged every application growing out of their contract, and are entitled to be dismissed out of

the Corporation Court of Norfolk with their costs. Va. Sup. Ct. App., Feb. 17, 1887. Home Ins. Co. v. Gwathmey. Opinion by Lacy, J.

NEGOTIABLE INSTRUMENT-CONDITIONAL-DRAFT -AGREEMENT TO ACCEPT-EVIDENCE.-A party who purchases a praft upon the authority of a letter from the drawees to the maker, authorizing him to draw upon them for the amount thereof, takes it subject to the conditions, if any, contained in the letter. The drawees, by letter, authorized the maker of the draft to draw upon them for $500 "as soon as the schooner Russell should complete her cargo of yellow pine flooring." The maker presented the draft and letter with a bill of lading, which stated that the schooner had been loaded with yellow pine lumber, to certain bankers, who cashed the draft. The cargo turned out to be not of the kind called by the letter, and the drawees refused to pay the draft. In an action to enforce payment, held, that the conditions contained in the letter not having been complied with, they were not liable upon their agreement to accept. It is a settled doctrine in our law that a letter written a reasonable time before or after the date of a bill of ex

change, describing it in terms not to be mistaken, and promising to accept it, is, if shown or made known to the person who afterward takes the bill on the credit of the letter, a virtual acceptance binding the writer. Lewis v. Kramer & Rahn, 3 Md. 289. It was said by Judge Story in Wildes v. Savage, 1 Story, 22, that this principle was not applicable to any bill of exchange except such as were payable on demand, or at a fixed time after date. On this question he said: "Where bills are drawn payable at so many days after sight it is impracticable to apply the doctrine; for there remains a future act to be done, the presentment and sight of the bill, before the period for which it is to run, and at which it is to become payable, can commence, whether it be accepted or be dishonored. If it is said that the acceptance is treated as made, where the bill is actually presented for acceptance, and it is dishonored by the drawee, it is plain that we set up a prior intent or promise against the fact. Upon what ground can a court say, when a party promises to do an act in futuro, such for example as to accept a bill, when it is drawn and presented to him at a future time, that his promise overcomes his act at that time? My judgment is that the doctrine of a virtual acceptance of a non-existing bill by a prior promise to accept it when drawn has no application to a bill drawn payable at some fixed period after sight; for it then amounts to no more than a promise to do a future act. I have looked into the authorities, and I do not find in any one of them that the bill drawn, and to which the doctrine was applied, was drawn at an after sight." This court, in the case of the Franklin Bank, 52 Md. 270, refers to Judge Story's opinion in terms of marked approval.

We could not therefore hold the letter as a virtual ac

ceptance of the draft. Another reason is that the promise to accept is conditional, whereas every acceptance of a bill of exchange ought to be positive and unconditional. All persons however who should bona fide take a bill of exchange, on the faith of a letter promising to accept it, would have ample remedy by an action for the breach of the promise to accept. So the difference would be of no practical importance in its bearing on their rights. (2) Upon the trial the court admitted evidence to show that the cargo delivered was quite as valuable as the cargo of yellow-pine flooring would have been. Held, error. Md. Ct. App., Jan. 5, 1887. Brown v. Ambler. Opinion by Bryan, J.

RAILROADS-NEGLIGENCE-CHILDREN-DEGREE OF CARE. A railroad company is held to the exercise of

a higher degree of care when a young child is seen on the track than in the case of an adult; and where the child is of tender years the employees of the company have no right to act upon the presumption that it will leave the track, but must use ordinary care to prevent running upon it. We have patiently and perhaps at unnecessary length reviewed all the cases cited by the appellant, and find that not one among them all supports the proposition that where a child is seen upon the track in time to easily check the train, he may be run over and killed without any effort to stop the train. The authorities, as we feel confident in affirming, all agree that there is difference between children of tender age and persons old enough to possess judgment and discretion. We sought to make this distinction prominent, for we thought, and still think, that it is of controlling inportance. An adult, it may be presumed, will, after warning, leave the track when danger approaches; but this is not presumed where very young children are on the track of a railroad. Where a young child is on the track, it cannot be presumed, as in the case of an older person, that he will leave it in time to avoid an approaching train. Under the authorities it is probable that this complaint would not have been good had Arthur Pitzer been old enough to be presumed to exercise judgment and discretion; but it is good because he is a child of tender years. It was necessary therefore to emphasize as we did his age; for had he been of mature years, it might perhaps have been presumed by the trainmen that he would have left the track in time to escape the approaching train. But we are not here dealing with the case of a person who had arrived at the age of discretion, but the case of a young child, and we decide nothing that can be considered as applicable to any other case. Ind. Sup. Ct., Jan. 12, 1887. Indianapolis, P. & C. R. Co. v. Pitzer. Opinion by Elliott, C. J.

THE TRIAL OF THE RHODE ISLAND JUDGES.

MR.

R. JOHN WINSLOW read last fall, before the Brooklyn Republican League and Rhode Island Historical Society, an interesting paper on the Trial of the Rhode Island Judges in 1786. This trial, probably unfamiliar to the large majority of citizens at this time, grew out of the law of the colony making paper money legal tender. Mr. Winslow says:

"The failure of this measure did not convince its supporters that legislation, though piled mountain high, could not change intrinsic value, nor create confidence, nor transmute paper into gold. It was found impossible to create and maintain confidence in a worthless paper issue. But the Legislature persisted, and in August, 1786, passed another extraordinary law. This law, after reciting the necessity of having penal laws followed up by immediate punishment, provided that offenders, that is, persons who refused to receive such bills as equal to coin, should be liable to complaint and arrest. The offender must appear within three days, before a special court, and there stand his trial, without a jury. If convicted, the offender must pay the penalty, or go to jail. This judgment must be final and conclusive, and without appeal. No delay or injunction should in any case be prayed for, allowed or granted. How this denial of a right to apply for an injunction must have stirred the lawyers of that day!

"It was under this law that John Trevett, of Newport, in September, 1786, made his complaint against John Wheeden, a butcher. Trevett walked down the street one morning, in Newport, and bought of Wheeden some meat, tendering in payment bills emit

ted in May preceding, by the State of Rhode Island. The butcher thought his meat nearer par value than the paper, and refused to receive it. A complaint was made before Judge Mumford, of the Superior Court, where the defendant appeared and pleaded in part that the act was unconstitutional because it deprived the Supreme Court of the power of revision, and because it deprived the accused of a trial by jury. The case was heard in September, 1786, before Judges Mumford, Hazard, Tillinghast and Howell. Mr. Varnum and Mr. Marchant, eminent counsellors, defended. Varnum stood high as an able lawyer and as a citizen of great influence. He had been a general in the revolution and also a member of the Continental Congress.

"In appearing for Wheeden, Mr. Varnum represented his own views as well as the welfare of his client, which it is said is not always the case. His argument, which time will not permit me to rehearse, was regarded as able and conclusive. Mr. Varnum said, his client was called upon to answer criminally, for refusing to sell his beef for four pence the pound,' when it cost six pence upon the hoof. I need not say that in the course of his argument Magna Charta and Blackstone, and the charter granted by King Charles the Second, and Vattel, were largely drawn on as illustrated by the bill of rights.

"The counsellor exclaimed, 'Have the judges a power to repeal, to amend, to alter laws, or to make new laws? God forbid! In that case they would become legislators. Have the legislators power to direct the judges how they should determine upon the laws already made? God forbid! In that case they would become judges. The true distinction lies in this, that the Legislature have the uncontrollable power of making laws not repugnant to the Constitution; the judiciary have the sole power of judging of those laws and are bound to execute; but caunot admit any act of the Legislature as law, which is against the Costitution.'

"Strange as it may now seem, the right of a court to declare an act void, because repugnant to the Constitution, though now well settled, was in 1786 denied, and as we shall see, stoutly questioned for several years until finally decided by the Supreme Court of the United States, by an opinion written by Chief Justice Marshall.

"The Rhode Island court decided that the complaint was not cognizable before them. This was understood to mean that in the judgment of the court the act was unconstitutional and void. The decision caused an outbreak of great excitement. The sound currency men were glad and their adversaries were not pleased. The Legislature was indignant beyond expression. The general assembly was speedily convened in extraordinary session on the first Monday in October, 1786, by a warrant issued by Governor John Collins, and the judges were put on trial on the 2d day of November, 1786, for declaring an act of the Supreme Legislature of the State unconstitutional, and so absolutely void. It is not worth while nor practicable within the limits of this paper to recite fully all that took place at this extraordinary hearing or trial. The assembly declared that the aforesaid judgment was unprecedented in the State and may tend directly to abolish the legislative authority thereof. Judge Howell made an elaborate and learned speech of six hours and denied that the judges were accountable to that tribunal, for the reasons of their judgment, though he stated them very fully.

"Baron Montesquieu was quoted, where he says, in his 'Spirit of Laws' that there is no liberty, if the judiciary power be not separated from the legislative and executive.'

"Judge Tillinghast and Hazard followed Judge Howell. Judge Tillinghast said: 'The opinion I gave upon the trial was dictated by the energy of truth; I thought it right- I still think so. Be it as it may, we derive our understanding from the Almighty, and to him only are we accountable for our judgment.'

"After the defense made of the judges an earnest debate followed in the assembly, on the question 'whether the judges in support of their judgment had given reasons satisfactory to the assembly?' It was decided in the negative. A motion was then made to dismiss the judges from office. Pending this the judges sent in a memorial, reciting the circumstances so far and asking for a hearing on this motion. This was granted. Here now we have presented the spectacle of a Legislature proposing to remove judges for an honest expression of opinion on a law question before them in due course of procedure.

"The memorial and Mr. Varnum's argument evidently made a deep impression on the assembly. The debate became calmer and more rational. A motion was adopted that the opinion of the attorney-general be taken, and that of other eminent lawyers, whether the assembly could constitutionally suspend or remove the judges, without a previous charge, followed by due process, trial and conviction. William Channing, who was the attorney-general of the State, was the father of the eminent William Ellery Channing, D.D. The attorney-general told the assembly he was happy in the conviction that the judges had acted with candor and uprightness, and in his opinion in accordance with the principles of constitutional law; further, that the judges could not lawfully be suspended or removed from office for a mere matter of opinion, without a charge of criminality. Other leading counsel gave similar advice. It was then resolved by the assembly that the judges had given no satisfactory reasons for their judgment in the case of Trevett v. Wheeden; but as they were not charged with criminality in giving their judgment, it was voted that they be discharged from attendance upon the assembly on that account. The paper issue laws which had so fermented Rhode Island were soon after repealed, and a better conception of the true principles of government touching currency began to prevail. In our estimate of this legislative procedure, we must remember that no work on political economy was at this time known. Adam Smith's treatise on the Wealth of Nations appeared in 1776, but had not, it is apparent, dawned upon the Rhode Island assembly, nor much upon the rest of mankind as late as 1786.

"Indeed we are told that as late as 1820, the professor of History, in Cambridge, England, publicly lamented that there was no work upon this important subject he could give his class.

"This violent controversy discloses two salient and creditable features, worthy, in this connection, of our grateful notice. First, that the judges had the intelligent courage to stand for a principle, which though questioned then, has since become the palladium of our safety and our liberty, against legislative encroach

ment.

Second, that the general assembly, beset as it was by the distress of the period and the fanaticism it produced, finally had the good sense to listen to the voice of reason and justice, and so abandon its absurd incogitant attack upon the judiciary."

There is much now of interest in the paper, but the above will suffice for the history of the trial. Mr. McMaster also gives an account of these paper money troubles and of this trial in the first volume of his History of the American People.

CORRESPONDENCE.

JOSHUA A. SPENCER-A REMINISCENCE. Editor of the Albany Law Journal:

In running over back numbers of your valuable journal, whose perusal crowding work had hitherto prevented, I note with great pleasure Mr. Proctor's article upon Joshua A. Spencer. It was my good fortune to be a school boy and law student at Whitesboro, then a town of more importance than now, for a few years, including and immediately preceding the year 1834. The terms, or a part of the terms, of the Queida Court of Common Pleas, then a court of more importance than its successor, the County Court, were held in Whitesboro, and I was always an interested attendant. Some of the leading advocates of the county attended it, and the ablest of them, as it seemed to me, was Joshua A. Spencer. William C. Noyes took a leading position, and Hiram Denio lead its criminal side as prosecutor. The latter was severe upon the accused; but few escaped. He seemed rather hard in style and manner, and did not always make a pleasant impression upon me. Mr. Noyes was energetic, fluent and able, but to my young and rather fastidious ear, he indulged too much in words-he seemed to talk too easily to be impressive. I often heard him, but I cannot now command a point which I carried away. This may not be strange after more than fifty years of active life, but these things have failed to crowd out many things connected with Mr. Spencer's advocacy. He was, as I remember, remarkable for simplicity and clearness of statement and argument. Above rant or personal abuse, without redundancy, without display or rhetoric, without oratorical show, his idea became pictured in the mind of the hearer, and it seemed to me that he said nothing, either to court or jury, which was not easily understood. His highest efforts were of course in the other courts, but I venture to say that in no court did he fail to make his points fully appreciated. Your correspondent says that he was without educational advantages, but he certainly was a student; he certainly possessed, by whatever means, a finely disciplined mind with an excellent command of English.

The following shows his tact and good sense in conducting a case when there was no real defense. His client was a young man, the defendant in an action of crim. con. The plaintiff had been the young man's employer, had brought him into his family, where he fell into the hands of his wife. She was older than the boy, and had seen much more of the world. The evidence against him was strong. Mr. Spencer sought only to reduce the damages, and his tactics remind me of Erskine in a similar case. His first words after the evidence was in were substantially these: "Our experience, gentlemen, shows us, that while there may be many Potiphar's wives, there are unfortunately but few Josephs," and he proceeded to picture the young man, almost a boy, brought into the house by the plaintiff, and placed by him in the hands of a cunning and passionate woman, who did not love her husband, and who was on the lookout for just such a victim as the defendant. That he proved no Joseph did not prevent all who heard the defense for feeling a deep sympathy with him, and from regarding his error as rather a misfortune than a crime, and a misfortune brought upon him largely by the plaintiff.

I might give other instances, but my object has been to call the attention of young lawyers to the directness, simplicity and force of a great nisi prius lawyer, who was also great in appellate courts.

Some of the leading lawyers of Utica, as Maynard,