RECEIVER-OF CORPORATION-ESTATE IN HANDS OF, LIABLE UPON COVENANT OF CORPORATION TO PAY RENT. · A corporation which had leased from plaintiffs certain real estate for a term of years was dissolved and its affairs placed in the hands of a receiver. The assets of the corporation were sufficient to meet all its obligations and leave a surplus for distribution among stockholders. Held, that by the dissolution of the corporation the lease was not terminated and the covenant to pay rent did not cease to be obligatory. Under the statute, upon the dissolution of a corporation, its assets become a trust fund for the payment of its debts, and these include debts to mature as well as accrued indebtedness, and all engagements entered into by the corporation which have not been fully satisfied or cancelled. These cannot be cancelled without the consent of the party holding them, and receivers of dissolved corporations are authorized to retain out of their assets a sufficient amount to cancel and discharge such open and subsisting engagements. R. S., part 3, chap. 8, tit. 4, art. 3. The lease in question was one of the class of engagements designated in the statute as open and subsisting. The receiver is authorized by the statute to contract for its extinguishment, but until this is done the lessors are entitled to payment of the rent as it accrues. The position of receiver is analogous to that of executor. If he waives the term he cannot be charged as assignee of the lease, but if the landlord does not choose to re-enter the estate of the testator, may be liable for the rent in the due course of administration See Martin v. Black, 9 Paige, 644. The case Quain's Appeal, 22 Penn. St. 510, does not affect this rule. Orders of General and Special Terms reversed. People of New York v. National Trust Co. Opinion by Rapallo, J. [Decided October 12, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

OCTOBER TERM, 1880.

APPEAL-EFFECT OF IRREGULAR BOND ON.- Where the bond upon appeal was insufficient in form either for the purposes of a supersedeas or an appeal, as containing no security for costs, held, that does not necessarily avoid the appeal, but the court might impose such terms on the appellants for the omission as under the circumstances should seem to be proper. Martin v. Hunter's Lessee, 1 Wheat. 361; Davidson v. Lanier, 4 Wall. 454. Motion to dismiss appeal from U.S. Circuit Court, Louisiana, allowed, unless appellant files proper bond. Seward et al., appellants, v. Comean et al. Opinion by Waite, C. J.

LIFE INSURANCE - NON-PAYMENT OF PREMIUM INVALIDATING POLICY.-The charter of a Wisconsin life insurance company contained this: Every person who shall become a member of this corporation by effecting insurance therein shall, the first time he effects insurance, and before ho receives his policy, pay the rates that shall be fixed upon and determined by the trustees." G. presented an application to the Chicago agents of the company in August, 1872, for insurance on his life for $6,000. This was forwarded to the company by the agents. Tho company decided to issue a policy, and the same month sent to the agents a policy in terms insuring the life of G. for $6,000, which contained this: "This policy shall not take effect and be. come binding on the company until the premium be actually paid, during the life-time of the person whose life is assured, to the company or to some person authorized to receive it, who shall countersign the policy on receipt of the premium." This policy the agents kept until the 2d of October, when the premium, which was $302.52, not having been paid, they returned it to

the company, and it was cancelled. G. died on the 16th of September, 1872. On the 12th of November plaintiffs, his administrators, tendered the amount of the premium to the Chicago agents, and demanded the policy. Held, that the policy never became valid as to G., and the company were not liable under it. Where there is a condition subsequent, and it is broken, relief may be given upon equitable terms, but where it is precedent, and neither fulfilled nor waived, no right or title vests, and equity can do nothing for the party in default. Davis v. Gray, 16 Wall. 229. Here there was clearly no performance by the applicant, and it is equally clear that hence there was no contract or obligation whatsoever on the part of the company. It was the business of the applicant, if, after sending forward his application, he continued to desire a policy, to keep up the proper communication with the Chicago agents, and during his life-time to avail himself of the offer which the company had made. The proposition of the company expired with his life. After his death his legal representatives could not act vicariously for him. To allow them to enforce such a claim would be contrary to the plainest principles of both law and equity. Ins. Co. v. Young's Admr., 23 Wall. 106; Piedmont Life Ins. Co. v. Ewing, 92 U. S. 380. Decree of U. S. Circuit Court, N. D. Illinois, affirmed. Giddings et al., appellants, v. Northwestern Mutual Life Insurance Co. of Milwaukee. Opinion by Swayne, J. [Decided Nov. 8, 1880.]

MARRIED WOMAN-DISAFFIRMANCE OF CONTRACTS MADE BY, WHEN INFANT—WHEN NEED NOT BE, DURING COVERTURE - ESTOPPEL-INFANT NOT BOUND BY.

Complainant S., a married woman, and an infant, in 1847, joined with her husband in conveying, for a valuable consideration, lands belonging to her, to E. At the time, complainant signed a statement that she had attained her majority. The husband had by threats induced her to join with him in selling the lands. She became of age in 1849.. In 1870 she procured a divorce from her husband for his wrong, and immediately thereafter, for the first time, disaffirmed the conveyance to E., and brought suit to recover the lands. At the time complainant acquired title to the lands as to the rights of married women, the common law prevailed in Indiana, where they were situated, though laws giving to married women the control of their separate property were passed in 1847 and 1852. The wife did no act affirming the sale. Held, that sho was entitled to recover the lands. By the marriage, complainant's husband acquired a vested freehold interest in her lands, and became entitled to the rents and profits. His control over the usufruct thereof became absolute. His interest extended during the joint lives of himself and his wife, or at least so long as the marriage relation continued. It was an interest capable of sale. When, therefore, the deed was made to E., it gave to the grantee the wife's right, subject to disaffirmance, and the husband's right to the possession and enjoyment of the profits absolutely. When the wife subsequently came of age she continued powerless to disturb the possession of the grantee so long as her coverture lasted, for the grantee held not only her right but that also of her husband. The most she could have done was to give notice that she would not be bound by her deed. That she was not bound to do. The land was not her separate estate. In regard to it she was sub potestate viri, incapable of suing or making any contract without her husband's assent, except such as might relate to separate property. She could not even receive a grant of land if her husband dissented. Her disability during her coverture was even greater than that of an infant, and it is settled that an infant cannot disaffirm his deed while his infancy continues. Zouch v. Parsons, 3 Bur. 1808; Roof v. Stafford, 7 Cow. 183. The reason is, that a disaffirm

ance works a reinvestiture of the estate in the infant, and he is presumed not to have sufficient discretion for that. Why should not the greater disability of coverture be attended with the same consequences? If a wife cannot contract about any land which is not her separate property, how can she, without the concurrence of her husband, do any act, the effect of which is to transfer the title to land from another to herself? The question is whether complainant did disaffirm her deed within a reasonable time after she attained her majority. What is a reasonable time is nowhere determined in such a manner as to furnish a rule applicable to all cases. The question must always be answered in view of the peculiar circumstances of each case. State v. Plaisted, 43 N. H. 413; Jenkins v. Jenkins, 12 Iowa, 195. It is an acknowledged rule that when there are two or more co-existing disabilities in the same person when his right of action accrues, he is not obliged to act until the last is removed. 2 Sugd. on Vend. 103 (482); Mercer v. Selden, 1 How. 53. This is the rule under the statute of limitations. But complainant could not sue until after her divorce, and until the right the husband acquired by his marriage terminated. And had she given notice during her coverture of disaffirmance of her deed, it was in the power of her husband to disaffirm her disaffirm

ance.

2 Bish. on Marr. Wom., § 392. Giving notice, therefore, which was all she could do, would have been a vain thing. The law does not compel the performance of things that are vain. Bishop, in the work referred to, says that if an infant, who is also a married woman, makes an instrument voidable because of her infancy, the disability of coverture enables her to postpone the act of avoidance to a reasonable time after the coverture is ended. § 516. In support of this he refers to Dodd v. Benthal, 4 Heisk. 601, and Matherson v. Davis, 2 Cold. 443. These cases certainly sustain the rule stated. In the former it was decided that an infant, who is also a married woman, has the option to dissent from her deed within a reasonable time after her discoverture, though her coverture may continue more than twenty years. And if this were not so, the disability of coverture, instead of being a protection to the wife, as the law intends it, would be the contrary. But the continued coverture of complainant, after she attained full age, is not the only circumstance of importance to the inquiry whether she disaffirmed her deed within a reasonable time. The circumstances under which the deed was made are to be considered. There was evidence that she was constrained by her husband to execute the deed; that his conduct toward her was abusive, violent, and threatening in order to induce her to consent to the sale; that she was intimidated by him; that a look from him would make her do almost any thing, and that she was in a weak and nervous condition. It is not strange that a woman bound to such a husband should delay during her coverture disaffirming a contract which he had forced her to make. The most that is alleged against her is that she was silent during her coverture. But silence is not necessarily acquiescence. It is true that the de cisions respecting the disaffirmance of an infant's deed are not in entire harmony with each other. While it is generally agreed that the infant to avoid it must disaffirm it within a reasonable time after his majority is attained, they differ as to what constitutes disaffirmance and as to the effect of mere silence. Where there is nothing more than silence, many cases hold that an infant's deed may be avoided at any time after his reaching majority until he is barred by the statute of limitations, and that silent acquiescence for any period less than the period of limitation is not a bar. Such was in effect the ruling in Irvine v. Irvine, 9 Wall. 627. See, also, Prout v. Wiley, 28 Mich. 164, a wellconsidered case, and Drake v. Ramsey, 5 Ohio, 251. But on the other hand, there appears to be a greater

number of cases which hold that silence during a much less period of time will be held to be a confirmation of the voidable deed. But these cases either rely upon Holmes v. Blogg, 8 Taunt. 35 (which was not a case of an infant's deed), or subsequent cases decided on its authority, or they were rested in part upon other circumstances than mere silent acquiescence, such as standing by without speaking while the grantee has made valuable improvements, or making use of the consideration for the deed. The preponderance of authority is that in deeds executed by infants, mere inertness or silence, continued for a period less than that prescribed by the statute of limitations, unless accompanied by affirmative acts, manifesting an intention to assent to the conveyance, will not bar the infant's right to avoid the deed. And those coufirmatory acts must be voluntary. As was said, one who is under a disability to make a contract cannot confirm one that is voidable, or, what is the same thing, cannot disaffirm it. Affirmance or disaffirmance are in their nature mental assents. They necessarily imply the action of a free mind, exempt from all constraint or disability. The complainant, having been a feme covert until 1870, and never having done, during her coverture, any act to confirm the deed which she made during her infancy, could effectively disaffirm it in 1870, when she became a free agent, and her notice of disaffirmance and her suit avoided her deed made in 1847. And she was not estopped by her statement that she was of age. An estoppel in pais is not applicable to infants, and a fraudulent representation of capacity cannot be an equivalent for actual capacity. Brown v. McCune, 5 Sandf, 228; Keen v. Coleman, 39 Penn. St. 299. A conveyance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. But he can no more do that effectively than he can make the contract alleged to be confirmed. Decree of U. S. Circ. Ct., Indiana, reversed. Sims, appellant, v. Everhardt et al. Opinion by Strong, J. [Decided Oct. 25, 1880.]

KENTUCKY COURT OF APPEALS ABSTRACT.

OCTOBER, 1880.

CONFLICT OF LAW-FOREIGN JUDGMENT — JURISDICTION ENTICING PARTY INTO STATE TO SERVE PROCESS. A, by a device, induced his debtor B, who owned a horse and wagon that was exempt under the laws of Kentucky, to go with it into the State of Tennessee, where such property was not exempt, in order to attach the horse and wagon, which he did, and B not answering, recovered judgment, and so collected his debt. On his return to Kentucky B sued A for damages by reason of the proceeding and recovered judgment. Held, that the judgment in favor of B was proper and the action was not a collateral attack upon the Tennessee judgment, but a direct one. A judgment rendered by a Superior Court of another State may be attacked for want of jurisdiction of the subject-matter, or of the person, regardless of the recitals of the judgment or record. Wharton on Conflict of Laws, § 811; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light and Coke Co., 19 id. 59. The service of process on B in Tennessee did not conclusively establish the jurisdiction of the court, and unless the jurisdiction properly attached, the judgment was a nullity. The device by which the debtor was induced to go into Tennessee was a fraud, and A could not be allowed to take advantage of his own wrong and thus acquire rights which he could not have had except for the fraud. It

Ind. 347; Mershom v. State, 51 id. 14. In Hardin v. State the court say that “no doubt challenges to the polls may be made where any of the jurors have not the necessary qualifications. These challenges, however, must be made before the jury are sworn and charged." In Pennsylvania, the defendants in the case of Commonwealth v. Clark, 2 Browne, 325, being in jail on a charge of homicide, were allowed to challenge grand jurors for favor, before the grand jury were sworn. In New Jersey, the court in the case of the State v. Rockafellow, 1 Halst. 332, held that it was a good plea in abatement to an indictment for rape that one of the grand jurors by whom the bill was found was not a freeholder as required by the statutes of that State. In State v. Richey, 5 Halst., a plea in abatement of the indictment, that two of the grand jurors who found it had expressed an opinion before they were sworn, was not sustained. See, also, United States v. White, 5 Cranch's C. C. 457; Boyington v. State, 2 Port. (Ala.) 100; State v. Easton, 30 Ohio St. 542. If a disqualification discovered after indictment found can be taken advantage of, it must be one that is pronounced such by the common law, or by the statute (if it be a matter of statute), and one that absolutely disqualifies, as alienage or the want of a freehold. (2) One of several defendants indicted by a grand jury pleaded in abatement that there were not twelve members of the grand jury who were in favor of finding a true bill against him, but that the foreman stated to them that they could not find a true bill against the others unless they included him, and that his name was included because the grand jurors thought it necessary in finding a true bill against the others. The State's attorney demurred to this plea. Held, that the court could not allow any evidence as to the proceedings within the grand jury room, which, by their oath, the jurors were to keep secret, and that the State's attorney had no authority by demurrer or otherwise to admit the plea. It was early decided that a grand juror should not be allowed to swear what was given in evidence before them, because he is sworn not to reveal the secrets of his companions. 12 Vin. Abr., B., art. 5, 20, Evidence H. 4; State v. Fassett, 16 Conn. 465. It was also decided at an early day that the clerk of a grand jury could not be compelled to testify what took place before that body. 12 Vin. Abr. 38, Evidence B.

And the principle which would prevent disclosure by a grand juror must extend to all persons required by law to be present; for such persons are equally interested in the administration of the penal law. 1 Greenl. Ev., § 288. They are not permitted to disclose who agreed to find the bill of indictment, or who did not agree; nor to detail the evidence on which the accusation was founded. Sykes v. Dunbar, Selw. N. P. 815 (1059); Huidekoper v. Cotton, 3 Watts, 56. And in Regina v. Marsh, 6 Ad. & El. 236, which was an indictment for a misdemeanor, the court refused to receive the affidavit of a grand juror as to the number of grand jurors who concurred in finding the bill. See, also, Regina v. Russell, 1 Car. & Marsh. 247; State v. Baker, 20 Mo. 338. Connecticut Supreme Court of Errors, May term, 1879. State of Connecticut v. Hamlin. Opinion by Hovey, J. (To appear in 47 Conn. Rep.)

both. We note the following: Matter of Leszinsky, p. 9.--A statute provides for a pecuniary penalty, for a fine, and for imprisonment. A civil judgment for the penalty does not bar a criminal prosecution for the fine or imprisonment. United States v. Buffalo Park, p. 189. A racing park association are not liable to taxation as conducting a "public exhibition of feats of horsemanship," or a "show." Robinson v. Mutual Benefit Life Ins. Co., p. 194.-A policy procured by a husband on his own life for his wife's benefit is assignable by both. U. S. v. Bennett, p. 338.-The celebrated conviction for mailing obscene matter. Matter of Gallagher, p. 410.-A municipal permit, revocable at pleasure, to occupy a market stand, is property passing to an assignee in bankruptcy. Grace v. American Central Ins. Co., p. 433.-A sub-insurance broker, who procures an insurance, is the agent of the insured for the purpose of notification of the cancelling of the policy, under a provision, that any person, other than the insured, who procures the insurance to be taken, shall be deemed the agent of the insured and not of the insurer, "under any circumstances whatever, or in any transaction relating to this insurance." The Southern Home, p. 447.-A vessel is not liable for the consequences of not keeping a look-out, when the omission is caused by the disabling of the crew by the yellow fever. The Niagara, p. 516.-A vessel carried fine table salt in sacks, and powdered arsenic in casks; the casks became broken, and the arsenic penetrated some of the sacks and was distributed throughout the vessel; the sacks were indiscriminately discharged; nothing but an analysis could determine whether any of the salt was fit for consumption; held, that the vessel was liable for the difference in value of all the salt, as sound, and what it produced for fertilizing purposes. The Fidelity, p. 569.-A steam-tug, belonging to and used by a city in performance of municipal duties, is not liable to seizure in a suit for damages inflicted by the tug while actually engaged in the performance of such duties.

INDEX OF AMERICAN DECISIONS. Index to the American Decisions and the Editor's Notes thereto, with a table of the Cases re-reported. Volumes one to twenty, inclusive. 1760-1830. By A.C. Freeman. San Francisco: A. L. Bancroft & Co. 1880. Pp. 563.

This is a very important accessory to the excellent series which it accompanies. We have so often expressed our sense of the usefulness of the American Decisions that it would be superfluous now to enlarge on the subject. This volume is a gift, and a very generous and timely gift, to the subscribers. It seems, and we have no doubt is, well executed in every particular. THOMPSON'S LIABILITY OF OFFICERS AND AGENTS OF CORPORATIONS.

The Liability of Directors and other Officers and agents of Corporations. Illustrated by leading cases and notes. By Seymour D. Thompson. St. Louis: Wm. H. Stevenson, 1880. Pp. xxxix, 722.

From the rapidity with which this author has been pouring forth law books this year, it might be suspected that the quality would not keep pace with the quantity. But of this we discover no indication. We can see no marks of padding, inaccuracy, or want of consideration. In Mr. Thompson's recent election to the bench the profession have lost one of their best authors. The present work is on the same plan as those on Negligence and Carriers, which we regard as among the most useful of recent treatises, and it seems to be equally excellent. It grows out of and supplements his Liability of Stockholders, and the lino of study involved in the preparation of that excellent work must have given the author a large advantage in the preparation of this. There are six chapters, as follows: per sonal liability of contracting agents of corporations or