stones, "had a stone which he affirmed to Lopus to be a bezoar stone, and sold it to him for a hundred pounds; ubi revera, it was not a bezoar stone." Under the pleadings judgment was given for the plaintiff in the King's Bench, but was reversed in the Exchequer Chamber on the ground that the bare affirmation that the stone was a bezoar, without warranty, was no cause of action. This is, perhaps, an extreme case, for here the article was not even in specie what it was sold for, nevertheless, as we have seen, it was literally followed in Wetherill v. Neilson (supra), as it was in Seixas v. Woods (2 Caines, 48), and the latter was followed in New York in Holden v. Dakin (4 John. 421). We understand, indeed, that both in England and New York there has been to some extent a departure from the rulings of the above cited cases, but in Pennsylvania there has been a steady adherence to the common law doctrine without any greater qualification than that found in Borrekins v. Bevan (3 Rawle, 37), where it was held that the goods sold must be the same in kind as those mentioned in the contract of sale."] Ryan v. Ulmer, S. C. Pa., Jan. 14, 1885; 16 Weekly Notes of Cases, 121. 32. WORDS AND PHRASES.-The word "obligations," used without limitation, includes coupon bonds payable to bearer. Sinton v. Carter Co., U. S. Cir. Ct. Dist. Ky., Jan. 24, 1885;123 Fed. Rep. 535. OUR FOREIGN EXCHANGES. EQUITABLE ASSIGNMENTS.-Two points connected with this subject have lately received further elucidation in the reports. We will notice them shortly. SPECIFICATION OF FUND.-An equitable assignment is an assignment that will be enforced in equity. It must therefore contain some description of the fund or debt which is the subject of the assignment. A cheque upon a banker or a bill of exchange upon a debtor is not an assignment at all. Schroder v. Central Bank of London, 24 W. R. 710; Thompson v. Simpson, L. R. 9 Eq. 497, L. R. 5 Ch. App. 659; Shand v. Du Buisson, L. R. 18 Eq. 283; Hopkinson v. Forster, L. R. 19 Eq. 74; Caldwell v. Merchants Bank, 26 U. C. C. P. 294; Percival v. Dunn, 20 L. J. Notes of Cases 35. It is sufficient, however, if the fund be indicated, although not fully described. For example, if A be engaged in doing work for B, and the latter give to C an order upon A for the payment of £100 “out of moneys due, or to become due, from you to me," the fund is sufficiently certain. Brice v. Bannister, 3 Q. B. D. 569; Farquhar v. City of Toronto, 12 Gr. 186; Diplock v. Hammond, 5 DeG. M. & G. 320; Lambe v. Orton, 1 Dr. & Sm. 125; Chowne v. Baylis, 31 Beav. 351; but see Re Farrell, 10 Ir. Ch. R. 304. This doctrine is analogous to that recently treated of (See Prophetic Conveyances, 2 Man. L. J. 24), where it was shown that a conveyance of goods not in esse will be enforced in equity, provided that the goods are sufficiently described for identification. When we said that the assignment must contain a sufficient description of the fund, we did not mean to be understood as implying that the assignment must be in writing; (Gurnell v. Gardner, 9 Jur. N. S. 1220; Tibbits v. Genge, 5 Ad. & E., and McMaster v. Canada Paper Co., 1 Man. L. R. 309, are clear authorities to the contrary); nor that a valid assignment may not be partly in writing and partly verbal. A bill of exchange, as we have said, is not an assignment of anything, and yet if it be discounted upon the faith that the drawer will accept it, and pay it out of a particular fund, then there is in equity a good assignment of the fund. Re Thornton, 13 L. T. N S. 568; Lamb v. Sutherland, 37 U. C. Q. B. 143; McLean v. Shields, 1 Man. L. R. 278. WHAT MAY BE ASSIGNED.-Can there be a good assignment of moneys to be earned? In Lamb v. Sutherland, 37 U. C. Q. B., Wilson, J., says: "To constitute an equitable assignment of money in the hands of a third person, it is necessary there must be a particular existing fund which is dealt with, and there must be a specific appropriation of the whole or of some part of that fund. Re Farrell, 10 Ir. Ch. R. 304; Re Thornton, 13 L. T. N. S. 568; Watson v. The Duke of Wellington, 1 Russ. & M. 602." There may be, however, a good equitable assignment of non-existing goods (see Prophetic Conveyances, 2 Man. L. J. 24), that is, there may be a promise to assign them when they come into existence, which equity will enforce; and why may not a promise to assign money when earned be also enforced? The facts in Ex parte Nichols, In re Jones, 22 Ch. Div. 782, were as follows: The debtors carried on the business of the Alexandria Palace, and they made an arrangement, with a railway company, that the fees paid by the public for conveyance to the palace and admission into it should be received in one gross sum by the company, and that this sum should be divided in certain specified proportions between the debtors and the company. During the currency of this agreement, the debtors assigned to Y. & Co., "all and every the sums and sum of money now due and owing, and hereafter to become due and owing from the * railway company to. Subsequently the debtors became bankrupt. The assignee in bankruptcy carried on the Palace business, and claimed as against Y. & Co., to receive the debtor's share of the railway receipts accruing after the bankruptcy. And his claim was held to be well founded. There is nothing in this case to show that the assignment would not have been valid during the lifetime of the debtors, provided they had not become bankrupt; and the head note would seem to imply that a trader may make a good equitable assignment of all the receipts of his business except as against an assignee in bankruptcy. Nice questions arise under building contracts where payments are to be made during the progress of the work. From Tooth v. Hallett, L. R., 4 Ch. App. 242, we may gather, 1, that there may be a good equitable assignment of moneys to become due under such a contract; 2, that if the owner properly discharges the contractor before the completion of the work, and before any money is payable to him, and in finishing the building, expends all that would have become due to the contractor, the assignee has no claim against the owner; and 3, that if a trustee for the contractor's creditors completed the building and expended thereon a sum equal to that payable under the contract, his claim to the money would be preferred to that of the equitable assignee. From Ex parte Moss, In re Toward, 14 Q. B. Div. 310, we may learn, 1, that the application of Ex parte Nicholls (ante) must be very carefully watched; for if a contractor under a building contract, becomes bankrupt after he has received payment of all the installments due to him, and the assignee in bankruptcy completes the building, expending less than the amount remaining due under the contract, the equitable assignee may be entitled to enforce his assignment as against the excess. 2. It is said that if a margin be created by withholding from the contractor a percentage of the value of the work "it could not be questioned that a valid charge might be made upon that margin as a subject of property." This we should fancy might possibly be questioned we speak with all deference. For example, if very shortly after the commencement of the work an assignment of the drawback were made, and before it could fairly be said that any appreciable part of it had been earned, the contractor became bankrupt, would the assignee be entitled as against the trustee in, bankruptcy, in case the latter spent more in completing the building than the whole contract price? We should think not. And if we are right the question must always be, What portion of the money payable after bankruptcy was earned before that time? To that extent the equitable assignee is entitled.-Manitoba Law Journal. CORRESPONDENCE. CODIFICATION. To the Editor of the Central Law Journal: Referring to your leader on "Codification of the Common Law" (May 8, 1885), I notice a letter in the Albany Law Journal, to much the same point, which asks the very pertinent question: What is the use of a million opinions to the effect that contributory negligence is a defense to an action for ordinary negligence? The point being, that something must be done to stop the terrible multiplication of reports. But I beg leave to suggest that codification is a very dangerous remedy. In your same issue you quote a Pennsylvania case, in which a husband may confess judgment in favor of his wife. Another case (at my hand) holds that a telegraph company is not a carrier, but a bailee since it does not take a commodity to be carried, but something to deliver in a different form from which it is received. In other words, the law is keeping step with the times, and adapting itself to civilization, and yet people talk about codification? Yours truly, JULIAN MORRIS. 12 Park Place, N. Y. Query No. 6 [20 C. L. J. 99].-We again ask the attention of our learned readers to the following query: -A woman owning land in fee simple, married. Chilren were born of this marriage. The husband, solvent at time of marriage, became insolvent in course of time. Suits were brought on his debts by creditors and judgment had. During the months intervening between the bringing of suit, and the obtaining judgmen usband and wife went into Chancery, and, on petition, her realty was settled on her as a feme sole free from debts, liabilities and control, etc., and with power of disposition by deed, will, or otherwise. The wife devised the land to her children and died. creditors of the husband levied on what they supposed was the life estate of the husband, as tenant by the curtesy. The devisees enjoined the sale, by bill filed The 31. The attachment law of Arizona provides that: "If any of the property attached be perishable the sheriff shall sell the same in the manner in which such property is sold on execution." Is a stock of merchandise in a country store "perishable property" within the meaning of this statute? What are the rights of a purchaser at sheriff's sale under this statute, if it is decided the goods are not perishable? Can he hold the goods, or must he look to the sheriff for return of the purchase price? G. & S. Tombstone, Arizona. 32. Can interest be recovered from the maker of a note which is barred by the statute of limitations if the note reads "with interest payable annually until paid?” or does the statute bar both principal and interest? Please cite authorities. Yours, etc., A. C. KREP. Sheboygan, Wis. JETSAM AND FLOTSAM. THE MISSOURI BAR ASSOCIATION.-The fifth annual meeting of the Missouri Bar association will be held at Sedalia on the 15th and 16th of July. A reception and banquet will be held on the night of the 15th at Sicher's Park hotel. Hon. George W. McCrary, of Kansas City, will deliver the annual address, and papers will be read by the following well known members: Messrs. Henry Hitchcock of St. Louis, J. V. C. Karnes of Kansas City, Charles Hammond of Brunswick, Edward Higbee of Lancaster, Judge J. B. Gantt of Clinton and Judge John L. Thomas of De Soto. The association numbers nearly 400 members, and has representatives in over seventy counties in the State. Interesting and important reports will be submitted to the standing committee. Ex-Gov. Thomas C. Reynolds, the president of the association, is absent, but is expected to return in time to preside over the annual meeting. The executive commitee recently held a meeting in St. Louis, at which all the necessary arrangments were made to render the ensuing session one of the most pleasant and profitable in its history. The officers of the association are: President, ex-Gov. T. C Reynolds, of St. Louis; secretary, James E. Withrow, of St. Louis; treasurer, Wm. C. Marshall, of St. Louis; executive committee, Gen. John W. Noble, chairman, St. Louis; Gardiner Lathrop, Kansas City; Judge John F. Philips, Kansas City; James E. Withrow, ex-officio member; Wm. C. Marshall, ex-officio member.. INDEX TO VOL. 20. ABATEMENT. Of sheriff's return; striking from files, 195. Effect of stipulation, 254. See Deed. ACQUIESCENCE. See Ratification. ACTION. Against railway company in hands of receiver, 193. For divorce prosecuted by guardian, 348. For damages for negligence; whether one action can For money had and received lies when, 35. For personal injuries; physical examination of plaint- For conspiring with a third party to defeat plaintiff To recover illegal charges of common carrier, 363. ACTION PENDING. Action to rescind contract not pleadable in bar of ac- Suit pending in State court no bar to action in Federal ADMINISTRATION. Administrator has no right to pay an incumbrance 56. Administrator of owner of land not personally liable Claims for services preformed for benefit of estate, Estate for life; disposition of proceeds from sale of Grant of letters procured by suppression of will; Removal of administrator on ground of non-resi- Surviving partner who administers, not entitled to See Interstate Law, 434. ADMIRALTY. Collision of vessels; damages, when divided, 174. Jurisdiction in case of injury to vessel from defective ADMIRALTY-Continued. Jurisdiction of contract of affreightment; libel in rem Jurisdiction of suits in personam; State law giving When a tort is a maritime tort, 273. When State law does not prevent U. S. Court from pro- See Marine Torts; Marine Insurance; Salvage; Sea- ADOPTION. See Parent and Child. ADULTERY. See Criminal Procedure. AGENCY. Burden of proof to show agent's authority, 36. Note signed by agent; recovery against principal, 115. Power of insurance agents to make contracts, 134. Principal repudiating and retaining benefit, 215. Special agent disregarding instructions does not bind See Corporation; Master and Servant; Ratification. Current topics of, interesting, 341. Communication of "Jus" concerning article of, 20. See Divorce and Alimony. Of verdicts, leading article upon, 145. AMERICAN BUILDING ASSOCIATION NEWS, 362. Whether derived from capital or income, 19. Decree for injunction and account a final decree, 212. In cases of contempt, 43. Order appointing receiver appealable, 476. APPEAL-Continued. Rule in Louisiana as to the status of parties who do To U. S. Sup. Court; five thousand dollar limit; meas- See Justice's Courts. APPELLATE PROCEDURE. Affirming decisions without writing opinions, 1. New evidence not admissible in appellate court, 135. Statute requiring value of property killed by railroad To the first items of an account, when, 94. See Water. ARBITRATION. Award without notice and hearing, a nullity, 18. Of proof of waiver of right of hearing. 94. Right to a rehearing in case an umpire is called in, 324. Constitutionality of law of, in proceedings by habeas ASSAULT TO RAVISH. Evidence of previous attempts, 135. Burden of proof to show equitable assignment of part By debtor residing in foreign State; rights of domestic Effect of foreign statutes of limitation, 73. For creditors, substitution of new schedule for old For creditors, valid in case of actual notice without For creditors; assignee's title, how pleaded, 63. Of cause of action for personal injury in another State, Of future wages; garnishment, 174. Of part of a claim, whether a personal obligation, 134. Right of set-off in case of, 36. See Equitable Assignment. ASSUMPSIT. Money paid for certain use only, 135. For money had and received, lies when, 35. Damages for wrongful issue, include what counsel Damages where the levy scatters farm laborers and Fraudulently contracting debt, 332. Evidence of defendant as to intent does not necessa- Levy on saw mill includes circular saw mill, 156. Same, when amendable, 355. Sufficiency of bond for; omission of condition for pay- Need not be signed by principal, 355. Agreements with client as to fees and expenses; in- Communications made to, when privileged, 396. Duty to the court, 156. Evidence of retainer, to object to judgment for taxes, Fees of; collateral securities; expenses of collection, No authority to release judgment of client, 196. Privilege of, in actions for libel, 182. AWARD. See Arbitration. BAIL. Sickness of prisoner, when ground for, in capital cases, What courts have jurisdiction to admit to, 264. BAILMENTS. Extent of rule that bailee cannot dispute his bailor's See Carriers; Conversion; Trover; Trusts and Trus- BANKING. Bank check not an assignment of fund, 36. Certificate of deposit to cashier's credit individually Circumstances under which a loan was held to be a Discharge of endorser for non-appropriation of de- Extension of time to discharge drawer, 36. Payment by check, through clearing house by mis- Powers of bank cashiers; article by L. K. Mihills, 126. When drawer not entitled to notice of dishonor, 36. See Railways and Railway Companies. Delay in shipment; damages, 172. Accidental destruction of passenger's baggage al- Connecting lines; whose agent conductor was, a ques- Evidence of negligence in such a case; res ipsa loqui- Expulsion of passenger who has mislaid his ticket, 56. Injury to passenger through collision of carrier's ve- Liability for injury to passenger by carrier's servant, 476. Liability where one railway company hauls the trains Passenger ejected for not paying fare of child, 135. Railway passage ticket obtained by fraud, but used Rights of gratuitous passengers on railways; article by Rule requiring passenger to show ticket before board- Unlimited excursion ticket, 135. See Negligence; Railways and Railway Companies. Antoni v. Greenhow, 107 U. S. 769, criticised, 417. CASHIERS See Banking. CAUSAL CONNECTION. In joint crimes; article by Francis Wharton, 3. |