pany: crossings at grade: when questions of negligence should not be submitted to the jury.-F., a partially deaf man, drove a wagon up a steep slope, to a railroad crossing at grade on a road with which he was familiar. At about five feet from the railroad the company had recently erected a watch-house which obstructed the view to the north for about eight feet. Back of the watch-house was an open space for about thirteen feet through which there was an unobstructed view of the railroad. Beyond this the view was again closed by some buildings. F. drove past the buildings and the open space and stopped opposite the watch-house. He then looked in both directions, though it was impossible for him to see toward the north. Without leaving his wagon, he then drove on to the track and was killed by a train: Held, that under the circumstances there was a clear case of contributory negligence, and the judge should have directed a verdict for the defendant. Semble, it is not negligence per se for a railroad company to place a watch-house near a crossing in such a position as to obstruct the view of travelers using the crossing. The question of the company's negligence in such case is for the jury. Sup. Ct., Pennsylvania, May 7, 1877. Central Railroad of N. J. v. Feller (W. N. Cas.).

Power of attorney: construction of: power to receive check does not include power to indorse; statute of limitation.-A power of attorney to prosecute a claim against the United States, and to receive any check, order or certificate issued by the government for the payment thereof, confers no power upon the attorney to assign or indorse the paper in the name of the payee. When the drawee of such check had settled with the drawer and charged up the amount against him, there is sufficient privity between the parties, to enable the payee to recover the amount upon a count for money had and received. This principal is applicable to a case where the bank had paid the check upon a forged indorsement. The statute of limitations refers to the time of the institution of the suit, and not to the time of filing an amendment to the declaration. Sup. Ct., Dist. of Columbia. Millard v. Bank of Republic (Wash. L. Rep.).

Statute of limitations: does not bar debt: for money borrowed from trustee.-If a trustee loans the trust fund in breach of the trust, and the borrower has notice of the trust and the breach, he becomes a quasi trustee, and he cannot separate the loan from the trust, nor insist that the statute of limitations, which bars a loan as a loan, also bars the remedy for the trust fund in his hands, and if it be followed into the hands of one who receives it by collusion or with express notice of the trust, he cannot plead the statute of limitations, for the reason that he himself becomes a trustee, and the fund can be recovered. Sup. Ct., Tennessee, April, 1877. Merriman v. Cannovan. (Tenn. L. Rep.).

Suretyship: promissory note: indorsement of guaranty signed by four persons: right of one who advances money on the note: each guarantor severally liable: affidavit of defense.-A promissory note was indorsed, "For the amount of the within note received, I hereby guarantee its prompt payment," etc., which guaranty was signed by the payee and three others. In a suit by a holder for value against the last of the guarantors: Held, that the guaranty necessarily applied to the holder for value, and that the omission in it to indicate to whom it was made was supplied by the advancement of money upon it. Held, further, that the contract of each subscriber was sufficient to make him severally

liable, and that therefore the suit was properly brought. Sup. Ct., Pennsylvania, Nov. 24, 1876. Douglass v. Second National Bank of Titusville (W. N. Cas.).

Trade-mark: numerical symbol may be used as.-The numerical symbol . printed in large, bold, red characters, in a certain form and style, had been used since 1873 by the complainant as one of his trade-marks on the packages and boxes of certain classes of cigarettes manufactured by him, and was registered in the United States Patent Office in June, 1875. This symbol was originally employed to indicate the idea that the cigarettes were composed of two kinds of tobacco in the proportion of half and half; but except so far as it indicates this idea, which it does not really express, it is a merely arbitrary device. On a bill brought to enjoin against another's use of this symbol, held, that the complainant had not a right to the exclusive use of the numerical character, written in any ordinary manner; but that he had a right to the exclusive use of it in the particular form, size, color and style in which he had used and registered it. U. S. Circ. Ct., E. D. Virginia, May, 1877. Kinney v. Allen & Co. (Am. L. T. Rep.).

COURT OF APPEALS ABSTRACT.

AGENCY.

1. Authority to make contract to sell real estate may be by parol.-An agent of defendant's testator made an agreement in writing with plaintiff whereby he agreed for his principal to convey certain real estate to plaintiff for a specified price, and it was orally agreed between the agent and plaintiff that work which plaintiff agreed to do on houses belonging to the agent should be applied in payment for the real estate. Held, that the authority to execute the agreement to convey might be conferred by parol. Judgment below affirmed. Moody v. Smith. Opinion by Folger, J.

2. Statute of frauds, when not applicable: contract with agent for agent's benefit.-The plaintiff did the work as agreed upon the houses of the agent, and the fulfillment of the contract for the sale of the real estate being refused, plaintiff brought action against the principal for the value of his labor on the houses. Held, that the action was maintainable, and the objection that the contract was invalid by the statute of frauds was not available. Held, also, that the rule that he who undertakes for another by authority from him shall not act for his own benefit and to the detriment of the principal would not prevent recovery, it being shown that the agent had express authority to make the contract in question. Ib.

3. Contract: work not in exact accordance: waiver.When work was done in some respects not in perfect accordance with the specifications of a contract, but the party for whom such work was done constantly supervised it while being done and found no fault, and there has been a substantial compliance with the terms of the contract, held, that a judgment would not be disturbed on account of the work falling short of the requirements of the contract. Neither would it be because the contract was not performed within the time agreed, no objection being made to work done after that time by the party for whom it was done, and he taking the benefit of such work. Ib. [Decided June 5, 1877.]

CONTRACT.

1. Agreement in relation to life insurance: parol con tract: holding insurance policy as mortgagee: consideration: mutuality.-Plaintiff's testator and defendant entered into an arrangement whereby the testator was to procure a policy of insurance upon his life and assign it to defendant, who was to pay the premiums and have the benefit of the policy, with the understanding that, if at any time the testator desired to redeem the policy, he could do so by paying the premiums advanced by the defendant and the interest thereon. In pursuance of this the testator procured a policy on his life which was immediately assigned to defendant by an assignment absolute in form, and defendant paid all the premiums up to the time of testator's death and received from the insurance company the amount for which the policy was issued. Previous to his death testator, for the purpose of redeeming the policy, offered to defendant the amount advanced by him for premiums, etc., and defendant refused to receive the same. Held, affirming judgment below, that the agreement was founded on a consideration and was valid, notwithstanding that it was in parol and the assignment was absolute in form; that defendant held the policy as mortgagee only, and this was not affected by the fact that there was no obligation on the part of the testator to repay the premiums, and that defendant was liable to the personal representative of the testator for the amount received from the insurance company on the policy, less the amount of premiums and interest advanced by him. Matthews v. Sheehan. Opinion by Earl, J.

2. Contract construed a mortgage rather than conditional sale.-In all doubtful cases a contract will be construed to be a mortgage rather than a conditional sale, because in the case of a mortgage the mortgagor, although he has not strictly complied with the terms of the mortgage, still has his right of redemption, while in the case of a conditional sale, without strict compliance, the rights of the conditional purchaser are forfeited. Ib.

[Decided May 22, 1877.]

IMPRISONED DEBTOR.

1. Discharge of: practice on application for discharge. -An application under article 5, title 1, chap. 5, part 2, of the Revised Statutes, for the purpose of exonerating the person of an imprisoned debtor from imprisonment, is required to be made (§ 2, art. 7), to an officer residing in the county in which the insolvent debtor resides or is imprisoned, and section 5 provides that in case of disability, resignation, removal from office or absence from the county, of the officer before whom the proceedings were commenced, the same may be continued by his successor in office or by any other officer who might have originally instituted such proceedings, and in case of (§ 6) there being no such officer, then a judge of the County Court may attend and adjourn, etc. In this case the original order was made in New York county on the 20th of July, 1876, by Donohue, J., returnable on the 2d of September, 1876. On the return day the parties appeared, but there was no justice in attendance. On the 4th of September, which was Monday, the next court day, Westbrook, J., who resides at Kingston, continued the proceedings until the 8th of September. Held, reversing the order of General Term, and dismissing appeal to that court, that all subsequent proceedings were invalid, Westbrook, J., neither residing in the county or the district, and be

ing in no sense the successor of Donohue, J. In the matter of Roberts. Opinion per curiam.

2. Who may make order: appeal. - Application under article 5, mentioned, must be made to certain officers therein mentioned, and cannot be made to any court, and an order made by such a person is not appealable either to the General Term or to this court. Ib. [Decided May 22, 1877.]

MASTER AND SERVANT.

1. Liability of master for negligence causing death of servant. In an action by the personal representative of a workman against his employer for death caused by the caving in upon the workman of an embankment which was being cut down, under the supervision of such employer, the court, at trial, charged the jury among other things, "that if the defendant could have done any thing to preserve the life of the deceased, he should have done it." The defendant excepted, and the court qualified the charge by saying that he meant to have said " any thing that could have prevented the accident," to which defendant also excepted. Held, that the charge was error. The fact that the defendant could have done something which would have prevented the accident, was not the test of his liability; the question was, was he negligent; did he exercise ordinary care and prudence in conducting the excavation, in view of the position of the deceased; the probable consequences which would result from the falling of the overhanging earth while intestate was below? Judgment below reversed. Leonard, administratrix, v. Collins. Opinion per curiam.

2. Evidence bearing on question of negligence: charge to jury: contributory negligence.-It was claimed that defendant made a promise when deceased went below the bank, that it would not be cut away for half an hour, but that he caused work to be commenced immediately. The court charged that this promise was a very important feature in the case and that "it might go very far in the opinion of the jury to establish his (defendant's) want of care and prudence." Defendant asked the court to charge in addition that, if the jury believed that "the defendant said he was not going to begin work at once or any thing that could be so construed, and notwithstanding that statement the deceased saw the two men working upon the bank and cutting it down, the plaintiff cannot recover upon the theory that the deceased had no warning that the work was going on." This request was refused. Held, error. Ib.

[Decided June 5, 1877.]

NEW TRIAL.

When refusal to submit to jury, not ground for.Where evidence is not conflicting and is unimpeached and not controverted by circumstances and probabilities and is such that no verdict could properly be given against it, it is not the duty of the judge at circuit to submit the question at issue to the jury, and a refusal to do so in such a case is not a ground for a new trial. Affirming judgment below. (See case on former appeal, 57 N. Y. 229.) Cutts v. Guild. Opinion by Allen, J. [Decided June 22, 1877.]

RAILROAD AID BONDS.

Statutory construction: Laws 1867, chap. 953; 1868, chap. 317. By Laws 1867, chap. 953, authority is given to the village of Fort Edward to borrow money and issue bonds of the village in aid of a railroad mentioned in the act. The exercise of the authority is made to depend upon a vote of the taxable electors of

the village at an election to be held at a time and place to be designated by the board of trustees, notice of which " shall be published in a public newspaper of the village for at least two weeks previous to the time appointed for such election." This act was amended by Laws of 1868, chap. 317, but not as to the time of publication. Held, that it was necessary that two weeks should intervene between the publication of the notice and the election, and the statute was not satisfied by a publication in two successive weeks before the election, the first publication being made April 24th and the meeting being held May 5th. Order below refusing mandamus affirmed. In re petition of Hetfield v. Trustees of Fort Edward. Opinion by Andrews, J. [Decided May 29, 1877.]

SALE.

Of personal property at fixed price to be paid in other property at fixed price: condition precedent.- Defendant agreed to take from plaintiff a quantity of old rails at a specified price per ton, to be paid for in fish joints at a specified price each, and a quantity of old rails and of fish joints were delivered by the parties respectively. Plaintiff then sent a large amount of old rails to defendant, who notified plaintiff that he did not wish them, but would accept them and credit the amount agreed to be paid therefor to the fish-joint account. Held, reversing judgment below, that plaintiff was not entitled to recover from defendant without showing a demand and refusal to deliver the fish joints. Long Island R. R. Co. v. Verree et al. Rapallo, J.

[Decided May 22, 1877.]

Opinion by

TAXATION OF THE PRODUCT OF MINES.

THE

case of Forbes, appellant, v. Gracey et al., de_ Icided at the last term of the United States Supreme Court, was a suit brought by appellant to enjoin the collector of taxes for Story county, Nevada, from collecting a tax imposed by the law of that State upon the property of the Consolidated Virginia Mining Company, the appellant being a stockholder in the company and an alien subject of the Queen of Great Britain. The tax is by the State statute imposed upon the proceeds of the mine worked by the corporation, and is resisted on the ground that title to the land from which the mineral is taken is in the United States, and is not for that reason liable to State taxation. The tax was imposed upon 66 ores, tailings and mineral-bearing material" taken from mines, and was adjusted according to net product of such material, and the collection of the tax was enforceable by sale of personal property, and was made "a lien upon the mines or mining claims from which the ores or minerals are taken." The right to mine and remove mineral from lands of the United States independent of the title which was not parted with, has been recognized by the United States government. In regard to the questions involved, the court says: From the first section of the statute we ascertain what it is that is taxed, namely, all the ores, tailings or mineralbearing material of whatever character, after deducting the actual cost of extracting said ores as mineral from the mines and other expenses, such as transporting them to the place of reduction, etc. From this it is clear that it is the ore after it has been separated from the bed in which it is found, and its proceeds and products which are taxed, and not the ore or min

eral in the earth. Indeed, this latter idea is not advanced by any one, and it would be preposterous. As we construe the statutes of the United States and the recognized rule of the government on this subject, the moment this ore becomes detached from the soil in which it is embedded it becomes personal property, the ownership of which is in the man whose labor, capital and skill has discovered and developed the mine and extracted the ore or other mineral product. It is then free from any lien, claim or title of the United States, and is rightfully subject to taxation by the State as any other personal property is. The truth of this proposition is too obvious to need or admit of illustration or elaboration, and, as we have already said, the pressure of business does not admit of it.

In regard to the taxing of this personal property, and the mode of collecting it by sale as provided in the section last cited, it does not seem to us that there can be any reasonable ground for asserting that the United States has any interest in the tax or in the sale of the property taxed. It is, however, urged with more show of reason that section six, which makes this tax "a lien on the mines or mining claims from which the ores or minerals bearing gold or silver are extracted for reduction," is an interference with the right of property of the government in the lands in which the mineral remains are extracted.

An examination of the language we have quoted will show that it was carefully prepared to avoid this objection, and we think it does.

The use of the words "mines or mining claims" is evidently intended to distinguish between the cases in which the miner is the owner of the soil, and therefore has perfect title to the mine, and those in which the miner does not have title to the soil, but works the mine under what is well known in the mining districts and what is, as we have said, recognized by the act of Congress as a mining claim. In the first case, the statute makes the tax a lien on the mine, because the title to the mine is in the person who owes and should pay the tax. In the other, the tax is a lien only on the claim of the miner; that is, on his possessory right to explore and work the mine under the existing laws and regulations on the subject.

In the former case, of course, the United States has no interest to be protected, and the State is at liberty to declare and enforce such a lien for her taxes. In the latter, also, such right as the mining laws allow and as Congress concedes to develop and work the mines, is property in the miner, and property of great value. That it is so, is shown most clearly by the conduct of the mining corporation in whose interest this suit is brought, which, for the purpose of evading this tax, permits its investment in this mine, said to be worth from fifty to a hundred millions of dollars, to rest on this claim, this mere possessory right, when it could at a ridiculously small sum compared to the value of the mine, obtain the government's title to the entire land, soil, mineral and all. Those claims are the subject of bargain and sale, and constitute very largely the wealth of the Pacific coast States. They are property in the fullest sense of the word, and their ownership, transfer and use are governed by a well-defined code or codes of law, and are recognized by the States and the Federal government. This claim may be sold, transferred, mortgaged, inherited, without infringing the title of the United States. Why may it not also be made subject to a lien for

taxes, and the claim, such as it is, recognized by statute, be sold to enforce the lien? We see nothing in principle or in any interest which the United States has in the land to prevent it.

RECENT BANKRUPTCY DECISIONS.

CONFLICT OF LAW.

Rate of interest and damages upon dishonored bill: by what law governed.-The rate of interest and damages which the drawer of a bill is to pay ex mora is governed by the law of the place where the bill is drawn. If a bill is made and dated at the business domicile of the drawer, his undertaking is to pay it there, in case of dishonor, though it may have been negotiated elsewhere. Damages in a case of this sort are a part of the law of the performance, and not of the execution and validity of the contract, nor of the remedy. Such a question, arising in the courts of the United States, is one of general jurisprudence, and not of local law. U. S. Dist. Ct., Massachusetts. In re Glyn; Ex parte Heidelbach; Ex parte Paton, 15 Nat. Bankr. Reg. 495.

DISCHARGE.

1. When validity of, not impeachable in collateral action. The validity of a discharge under the bankrupt law of 1867 cannot be impeached in a collateral action on the ground that the bankrupt fraudulently represented in his schedule that plaintiff's place of residence was unknown to him, and thereby prevented his receiving notice of the proceedings. Sup. Ct. Commission, Ohio. Rayl, administratrix, etc., v. Lapham, 15 Nat. Bankr. Reg. 508.

2. When want of notice will not invalidate.-Actual notice to the creditors is not essential to the jurisdiction of the bankrupt court, and the want of it will not invalidate the discharge where the bankrupt is found to have honestly complied with the requirements of the act. Ib.

EXEMPT PROPERTY.

Bankrupt law does not interfere with debtor's power over. The bankrupt law does not interfere with the debtor's power to sell or incumber his exempt property. The bankrupt act of 1867, while adopting the exemption laws of the States as to the measure and amount thereof, does not embrace local restrictions upon the debtor's estate in and dominion over exempted property. Sup. Ct., Georgia. Farmer v. Taylor et al., 15 Nat. Bankr. Reg. 515.

FIDUCIARY DEBT.

What is not debt in fiduciary capacity: factor.-A debt due by a factor for the value of goods consigned to him to be sold on commission, and remittance made in thirty days, is not such a debt contracted in a fiduciary capacity as will be excepted from the operation of a discharge. U. S. Circ. Ct., South Carolina. Owsley & Co. v. Cobin & Co., 15 Nat. Bankr. Reg. 489.

PETITION.

Practice, when facts requisite to authorize, denied: supplementary petition.-Where upon a written denial by the debtor that the requisite number and amount of creditors have united in the petition, no reference to ascertain that fact is actually made, although an entry of an order therefor appears upon the minutes, the judge is not called upon, under section 5021, to fix a time within which additional creditors may join. Where, under such circumstances, a supplementary

petition is afterward filed, it will not be dismissed on the ground that a sufficient number and amount of creditors are not included therein, unless it is made to appear that, taking both petitions together, a sufficient number and amount have not joined. U. S. Circ. Ct., S. D. New York. In re Frisbie and McHugh, 15 Nat. Bankr. Reg. 522.

PRACTICE.

Termination of proceedings: what does not constitute. -Where assets have come into the hands of the assignee, and he has not rendered his final account within three years from the adjudication, and the bankrupt has not been discharged, or refused a discharge, the proceedings are not terminated without a discharge, within the meaning of section 5105 of the Revised Statutes, so as to revive the right of action by a creditor who has proved his claim. N. Y. Sup. Ct., Gen. Term, 4th Dept. Wood v. Hazen, 15 Nat. Bankr. Reg. 491.

PREFERENCE.

Distress pursuant to lease.-A distress, pursuant to the terms of a lease, made within four months of the commencement of proceedings in bankruptcy, is not fraudulent under the bankrupt law, although the bankrupt consented to it, unless collusion is shown. Sup. Ct., Pennsylvania. Goodwin et al. v. Sharkey et al., 15 Nat. Bankr. Reg. 526.

SURETYSHIP.

Payment made on surety debt by bankrupt and recovered back does not release surety.-Where a payment made by a bankrupt debtor has been recovered by his assignee in bankruptcy, the acceptance of such payment with knowledge of the debtor's insolvency is no defense to an action by the creditor against the surety for the amount thereof, where the creditor has acted in good faith toward the surety and has been reasonably diligent to save him from loss. The surety is liable for the amount of such payment, although he has in the meantime paid the balance of the indebtedness and taken up the evidence thereof. Sup. Ct., Iowa. Watson v. Poague et al., 15 Nat. Bankr. Reg. 473.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF OHIO.*

CARRIER OF PASSENGERS.

1. Right to enforce payment of fare.-A railway company has the right to require passengers to pay fare, and a rule directing its conductors to remove from the cars those who refuse to comply with the requirement is reasonable. Shelton v. Lake Shore and Mich. So. Railway Co.

2. Ticket wrongfully taken up.-The fact that a ticket has been purchased by a passenger, which was afterward wrongfully taken up by a conductor of one of the defendant's trains, will not relieve the passenger from the duty of providing himself with a ticket, or paying fare on another train of the defendant in which he may be a passenger. In such case, the right of action of the passenger would be for the wrongful taking up of the ticket, and for not having been removed from a train by another conductor for refusing to pay fare. Ib.

CHATTEL MORTGAGE.

1. Mortgage void as against creditors: right of administrator of mortgagor as to.-Where a chattel mort

* From advance sheets of 29 Ohio State Reports.