and I confess I am surprised to find that there has been so much conflict. The point was originally decided in Thomas v. Cook, upon the plainest principles of common sense and justice. I was therefore surprised to find that in the later case of Green v. Cresswell, in the same court, but constituted by different judges, a different view was taken. In Reader v. Kingham, when the full number of judges was present, the case of Green v. Cresswell was overruled, and the law as laid down in Thomas v. Cook restored. The decision in Reader v. Kingham, was questioned in Mountstephen to go, under the fanciful theories of incompetent and dogmatic witnesses, who have brought discredit on science and made the name of experts unsavory in the community. No doubt many criminals have escaped justice, by the weight foolishly given by credulous jurors, to evidence which their common sense should have disregarded. But the remedy is to be sought by correcting false notions, and not by destroying the safeguards of private liberty. The judgment must be reversed, and the prisoner discharged. Statute of Frauds-Verbal Promise to Indemnify. v. Lakeman, by Mr. Justice Blackburn, but his decision was sub This was a suit for the administration of the estate of John Dudlow, who died in 1854. The bill was filed in 1868 by legatees. The cause was heard in 1870, and the common administration decree was made. The estate proved insufficient to pay the legacies in full. Thereupon the plaintiffs took out a summons to vary the chief clerk's certificate, by striking out a sum of £1,000, which John Noble Dudlow, the son and one of the executors of the testator, had been allowed to charge against the estate and retain under the following circumstances: In the year 1853, the testator, who had often assisted his son-inlaw, Henry Atkinson Wildes, in raising money, requested his son, John Noble Dudlow, to join Henry Atkinson Wildes in a joint and several promissory note for £1,000, saying that he (the testator) did not like his (the testator's) name going so often to Randall & Co., from whom Henry Atkinson Wildes intended to raise the said sum, and offering to indemnify the said John Noble Dudlow from any loss that might arise from his joining in the said note. John Noble Dudlow was afterwards compelled to pay the said sum, and the chief clerk had allowed his claim in respect of such payment. Glasse, Q. C., and Herbert Smith, for the plaintiffs, contended that this argreement was to pay the debt of another, and was therefore void by the Statute of Frauds as not being in writing. Green v. Cresswell, 10 A. & E. 453; Cripps v. Hartnoll, 31 L. J. Q. B. 150; 10 W. R. C. L Dig. 38; Mountstephen v. Lakeman, 18 W. R. 1001, L. R. 5 Q. B 613. Higgins, Q. C., and Grosvenor Woods, for the defendants. The most recent decisions are against such an agreement being brought withing the Statute of Frauds. Thomas v. Cook, 8 B. & C. 728; Eastwood v. Kenyon, 11 A. & E. 438; Fitzgerald v. Dressler, 7 C. B. N. S. 374; Reader v. Kingham, 11 W. R. 366, 13 C. B. N. S. 344. Glasse, Q. C., in reply. MALINS, V. C.-The question is whether this contract is within the 4th section of the Statute of Frauds, and therefore required to be in writing. The words of that section are, "charge the defendant upon any special promise to answer for the debt, default or miscarriage of another." It is a contract between father and son. It is an agreement, not that the father will pay the son the debt of Wildes, because Wildes did not owe him anything, but that if the son will guarantee Wildes' debt he will indemnify him. If one man could induce another to alter his line of conduct in that way, and then set up the Statute of Frauds, that statute, instead of being a protection against fraud, would be a direct means of fraud. It appears to me plain upon principle that the case is not within the statute. It is true there has been a conflict of authority, sequently reversed, and the law now rests on the reasonable ground on which it was put in Reader v. Kingham. I accordingly decide that where one person induces another to enter into an engagement by a promise to indemnify him against liability, that is not an agreement within the Statute of Frauds, and does not require to be in writing. This is a case in which a father induced his son to guarantee the debt of his son-in-law, upon a promise that he would see him harmless. Upon every principle of justice he is bound to indemnify him. The chief clerk has done perfectly right in allowing this £1,000 with interest. Therefore the motion to vary the certificate in that respect must be dismissed with costs. Solicitors, Clabon & Fearon; W. Compton Smith, NOTE.-Compare Bessig v. Britton, ante, p. 296, and cases cited. Foreign Selections. CONSIDERATION-FORBEARANCE TO SUE.-That forbearance to sue in respect of a disputed claim which turns out not to be maintainable, is a sufficient consideration to support a promise, is a principle which was laid down with great clearness by Mr. Justice Blackburn in a considered judgment, in Cook v. Wright, 4 L. T. Rep., N. S. 704. And the principle has been applied without hesitation in the recent case of Wilby v. Elgee, in which the court of common pleas refused a rule on Saturday last. The facts were these: The plaintiff was a widow, of whom the defendant, in 1867, had borrowed 207. during the lifetime of her husband. Shortly after the death of the husband, the defendant gave the plaintiff an IO U for the amount. In 1871 a person whom the court held to be acting for the plaintiff, demanded the money, and the defendant in answer promised to pay, with many deprecations of legal proceedings, but the money not being paid, it became necessary to issue a writ. The writ, however, was not issued until 1874, when the original debt had become barred by the statute of limitations, so that it became necessary for the plaintiff to rely upon the defendant's promise in 1871. The jury found for the plaintiff, that in forbearing to sue she had acted upon the defendant's promise to pay in 1871, and the court refused a rule to enter the verdict for the defendant. Among the many points made for the defendant was this, that the money lent was her husband's money, so that she had in reality no claim to forbear. But Lord Coleridge pointed out that it had been held on very good grounds that it was sufficient if the claim forborne were reasonably doubtful, and as the I O U had been given to the plaintiff in her own name, we think that the principle to which we have referred was very properly applied. As was said by Chief Justice Cockburn, in Callisher v. Bischoffeim, L Rep. 5 Q. B. 452: "Every day a compromise is effected on the ground that the party making it has a chance of succeeding. When such a person forbears to sue, he gives up what he believes to be an advantage, and the other party gains an advantage, and instead of being annoyed with an action, he escapes from the vexations incident to it." And in Llewellyn v. Llewellyn (3 D. & L. 318), a declaration was held good which alleged that there were disputes concerning accounts between the plaintiff and defendant, and in consideration that the plaintiff would relinquish all claims the defendant promised to pay the plaintiff an annuity, although there was no allegation that any sum was due to the plaintiff, and it this character, although the application is in form the act of the might have turned out that the plaintiff's claim could not be made good. Of course if a plaintiff knew he had no cause of action, and mala fide induced the defendant to believe that he had, the principle would not apply. See Wade v. Simeon, 2 C. B. 548.— [The Law Times. pers on RESPONSIBILITY OF POLICY-HOLDERS FOR ACTS OF INSURANCE AGENTS.—In the recent case of In re The Universal Non-destroy the effect of the policy, without fault upon the part of the Tariff Fire Insurance Co., ex parte Forbes, Malins, V. C., thus concluded his judgment: "Was Donald, the agent of the company, to inspect and describe the property to be insured? Upon a careful consideration of all the evidence in this case, I am of opinion that the description of the property was given to the company by Donald as their agent, and did not proceed from the assured at all, and that they are, consequently, not responsible for the mistake which was made as to the felt roof or any other misdescription of the property." We need not recapitulate the facts of that case, to which we very fully adverted in our previous pa"Conditions in Policies of Life Insurance." Ante, PP. 111, 125. But, in addition to its bearing on the doctrine of warranties in policies of insurance, that decision is noticeable as affecting the question of the responsibility of policy-holders in respect of misdescriptions by the agents themselves of the insurance companies Upon that subject there is a remarkable paucity of reported authority. Yet the question is one, indeed, of very great importance, and any consideration of the startling effects of the doctrine of warranties would be incomplete without referring to the decision of Lord Lyndhurst, in Parsons v. Bignold, 15 L. J. Ch. 399 (1846), holding that if the agent of the office act, also as agent of the assured in effecting the assurance, even an unintentional misstatement through such agent may be a breach of warranty. In that case it appeared that a party applied to the agent of an insurance office to effect an insurance on the life of his son. The agent gave to him a printed form of application, which was filled up, as to the name, age, etc., of his son, and signed, but he did not fill up the declaration as to the nature of his pecuniary interest in his son's life. The agent had enquired into these particulars, and filled them up, after the insurer had left his office, with a statement which was incorrect. The insurance was effected; but on the death of the nominee the company refused to pay the amount of the policy, on the ground that the interest of the insurer was falsely described, and that the policy was therefore void. No evidence being produced as to the statements which were made to the agent respecting the matters inserted by him in the declaration, the court refused to rectify it, or to grant an injunction to restrain the company from setting up the declaration as a defence to an action at law. In a recent American case, Cheek v. Columbia Fire Insurance Company, * M'Farland, J., delivering the judgment of the Supreme Court of Tennessee, said: "Even if the written application be construed to contain statements inconsistent with the facts, still, in cases where the application is made out by the agent of the underwriters, and the facts are fully disclosed to him, and he fails to insert them, this will not avoid the policy. Upon this question the defendants' counsel have referred us to a large number of cases, and it is maintained that this is in conflict with the rule which re jects parol evidence to contradict a written contract, and is only allowed in exceptional cases, where the facts untruly stated are of a public or notorious character, or where there is fraud, accident or mistake. We can not review, or undertake to reconcile, these authorities. We can only give the rule, which is sustained by one class of authorities, and which we think is sound. The agent who fills up the blanks, or makes out the written application, is still in this the agent of the insurers, and not of the insured. He is in the employ of the insurers, it is his duty to represent them, and protect their interest, and he can not rightfully divest himself of #1 CENT. L. J. 465. insured. Bearing this in mind, and regarding the acts of the agent as the acts of the company, then if we assume that the facts are fully disclosed to him, and he fails to state them truly in the application, it would be manifestly against all sound principle to allow any false statement thus inserted in the application to avoid of their own wrong. It would put it in the power of the agent to the policy. It would be to allow the defendants to take advantage applicant. Of course, if actual collusion be shown between the agent and insured, the case would be different. This may be placed either upon the ground of fraud or estoppel. We refer to the cases of The Insurance Co. v. Wilkinson, 13 Wallace, 222, and the Planters' Insurance Co. v. Sorrells, by this court, at Nashville, Mss., recently decided as authorities for this holding. In the former case, it was said, this does not come in conflict with the rule rejecting parol evidence to vary a written contract, but proceeds upon the ground that the application in such case is not the statement of the applicant." The Supreme Court of Errors of Connecticut, however, seems to have entertained a different view, in the contemporaneous case of Ryan v. World Mutual Life Insur. Co. (CENT. L. J. Feb. 19, 1875), † where it was held as follows: In a suit on a policy of life insurance, the plaintiff can not claim that the local agent of the company wilfully, and without the knowledge of the plaintiff or the insured, wrote the answers in the application incorrectly, for this is an attempt to substitute a different parol contract for the warranties and representations contained in the written agreement. Where the agent well knew that if correct answers were given in the application, it would be rejected by the company, and therefore he sought to obtain a policy by means which could not have been contemplated as being within the scope of false answers, the company was not responsible for an act of the agency. Where the plaintiff was either an accomplice or instrument in the perpetration of a fraud on the company, she is not entitled to recover, on the ground that where one of two innocent persons must suffer by the fraud, negligence, or unauthorized act of a third, he who clothed the third with the power to deceive in the plaintiff to sign an application without reading it or knowor injure must be the one to suffer. It was inexcusable negligence will be used to see that the answers are correctly written. A limiing its contents. The law presumes that all reasonable diligence ted agency in a case of life insurance will not be extended by operation of law, to an act done by the agent in fraud of his principal, and for the benefit of the insured, especially where it is in the power of the insured, by the use of a reasonable diligence, to defeat the fraudulent intent. Any waiver or estoppel, to be effectual, must be made by an authorized officer of the company. In a yet more recent case, American Life Insurance Co. v. Mahone (Albany Law Journal, March 6th, 1875), it appeared that among the questions propounded to Dillard, whose life was insured, was the following, marked No. 5: "Is the party temperate and regular in his habits?" to which the answer was "Yes." The answers in the "proposals for insurance" were all written by Yeiser, the agent of the company; but Dillard signed his name at the bottom. Evidence was offered to show that Dillard's answer was not "Yes," but "I never refuse to take a drink," or "I always take my drink," and that the answer "Yes" was improperly written down, without the knowledge or consent of Dillard. The evidence was received under objection, and this raises the most important point in the case. Strong, J, who delivered the opinion of the court, said: "That there is no substantial reason for complaining of the ruling of the court in this particular is, we think, fully shown by what was decided in Insurance Company v. Wilkinson, 13 Wall. 222, and in the cases therein mentioned. The testimony was admitted not to contradict the written warranty, but to show that it was not the warranty of Dillard, though †S. C., in full, 4 Ins. L. J. 37. signed by him. Prepared as it was by the company's acter-both in thought and action. The lines about the mouth agent, and the answer to No. 5 having been made, as the witness proved, by the agent, the proposals, both questions and answers, must be regarded as the act of the company, which they can not be permitted to set up as a warranty by the assured. And this is especially so when, as in this case, true answers were in fact made by the applicant (if the witness is to be believed), and the agent substituted for them others, now alleged to be untrue, thus misrepresenting the applicant, as well as deceiving his own principals. Nor do we think it makes any difference that the answers, as written by the agent, were subsequently read to Dillard and signed by him. Having himself answered truly, and Yeiser having undertaken to prepare and forward the proposals, Dillard had a right to assume that the answers he did make were accepted as meaning, for the purpose of obtaining a policy, what Yeiser stated them in writing to be. The acts and declarations of Yeiser are to be considered the acts and declarations of the company, whose agent he was, and Dillard was justified in so understanding them." Those decisions throw light upon a branch of insurance law which is but little treated of in the standard textbooks on the subject, but which is deserving of the most serious attention, not only by policy-holders, but by the agents of the companies, for though they are such agents for the purpose of receiving and forwarding proposals, yet at the same time, in acting for the parties making the proposals to the extent of the delegated authority, the company's agents are also the agents of the assured, and notwithstanding their official capacity, it is important to remember that carelessness or mistake on their part may jeopardise the insurance.-[The Irish Law Times. seem to indicate that he has engendered, in some way or other, a misanthropic, or scornful opinion of mankind,—the under lip over-lapping the upper. He possesses a florid, an impassioned style of oratory, characteristic of southern speakers, that is, very rapid in his enunciation, his thoughts, as it were, crowding upon his utterance. It devolved upon Mr. Pryor to answer the argument of Mr. Evarts, on the question of the admissibility of the plaintiff as a witness in his own behalf. In his investigation of the subject, he touched upon the levitical law, which held that both husband and wife should suffer death for the act of adultery; and the acts of the Puritans, in Great Britain, in 1650, when a law was passed denouncing death against adultery, and the repeal of that law upon the return of the Stuarts; and illustrated that adultery never was a crime at common law, and is not a crime to-day in New York state. But is regarded simply as a private wrong, exposing the tort feasor to an action for civil damages, but not to a criminal prosecution. This defect in the New York law has worked great hardship and injury, and is a scalding stain upon the escutcheon of the jurisprudence of that state. In reviewing and discussing the points raised by Mr. Evarts, and more particularly in illustrating the true intent and meaning of the law of 1867 relative to husband or wife testifying for or against each other, Mr. Pryor used clear and explicit sentences and logic—and we can do no better than to give his words verbatim on the law of 1867 as being of much interest to the reader. He said (in referring to the case of Dann v. Kingdom, N. Y. Supreme Court Repts., as also to the statute): My learned friend, using the license legitimately belonging to counsel, imagined that this case had been argued by the profession with research and vigilance; but the report exhibits nothing of the kind, and the opinion of the A Bird's-Eye View of the Court and Counsel in judge himself, as you will observe, is embodied in this brief, curt paragraph : the Tilton-Beecher Case. VIII. ROGER A. PRYOR. "The plaintiff was not a competent witness to prove such marriage. The act of 1867, to enable husband and wife to be witnesses for and against each other (Laws 1867, Chap. 887), expressly excepts the cases where the question of adultery of the husband or wite is in controversy, except to prove a former marriage, in case of bigamy, and the fact of marriage in actions of divorce." Thus you perceive that the learned judge arrives at the conclusion by no process of reason, nor is he sustained in the conclusion by any citation of authority, but he merely reaches it per saltum, and announces it oracularly as an ipse dixit. And what is that ipse dixit? Why, that the act of 1867 prohibits a wife, in an action involving a question of adultery, from being a witness. Now, sir, the act of 1867 accomplishes no such thing. The decision, therefore, is founded upon a plain, palpable misreading and misconstruction the words of the judge, that this second section of the act of 1867 forbids a of the very act upon which it purports to be founded. Bear in mind, now, party in action involving a question of adultery from being a witness, that is to say, from being a witness absolutely and unqualifiedly. He announced the proposition in general terms without restriction or modification; whereas, what are the terms of the act itself? "Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against the other." Not competent or compellable merely to give evidence, but competent and compellable to give evidence for or against the other. This gentleman, who is one of the senior counsel for the plaintiff, figured quite conspicuously in the argument of the motion which was made by the defendant for a bill of particulars. He argued the motion in opposition to the defendant's counsel in the city court, and afterwards in the court of appeals, at Albany, where he made a successful and an elaborate effort, Mr. Evarts being opposed to him. The court of appeals gave no positive decision upon the issue of law arising on the appeal, but remitted the matter back to the city court, leaving the question to the wise judgment and discretion of that court, whether or not, under all the circumstances of the case, the bill of particulars ought to be granted. The general term of the city court finally denied the motion. Mr Pryor, is commonly called "General," from his having served as an officer in the confederate army-and having acquitted himself with credit. He was a member of Congress representing one of the districts of Richmond, at the time of the outbreak of the rebellion, and from that time forward and until the close of the war, took an active part on the side of the confederate cause. Soon after the war ended he came to New York and commenced the practice of his profession, since which time he has acted as counsel in a number of cases of importance, and has achieved considerable reputation as an analytical searcher-sal, inasmuch as the qualifying clause is found in the second line of the senout of law points, and as a speaker of force and eloquence. Intence, before the learned judge arrived at the concluding line he had dropthe case now depending in Brooklyn, he has taken no very ac-ped from his mind and his memory those qualifying words, namely," for or tive part in the matter of examining or cross-examining of witnesses, but has employed much of his time in collating, developing and illustrating the law points as they have arisen from time to time in the course of the trial. His appearance is somewhat peculiar and striking; he is about six feet tall, slender, and of nervous temperament, wears his hair rather long, has a smooth face,-no facial appendages of hair,—and the general bearing and appearance of a person of decided and positive elements of char "In any criminal action or proceeding (except to prove the fact of marriage, except in case of bigamy), or in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation." Now, sir, the sentence is long and involved, and likely upon a cursory peru against the other." So he announced that this act, in peremptory and absolute terms excluded husband or wife from being a witness in an action of criminal conversation; whereas, the act only excludes husband or wife from being a witness in an action of criminal conversation for or against the other, The counsel then cited several cases bearing upon the question at issue, among them a case in 7th Robinson's Reports, the case of Bunnell v. Greathnead, 49 Barbour, 106, which was an action of criminal conversation, and where the plaintiff was admitted as a witness and testified to the fact of the wife's adultery. Also the cases of Petrie v. Howe, Vol. 4, New York Supreme Court Reports, page 85, which case was decided in 1874, a case of criminal intercourse, where the husband was permitted to testify without question of his competency as a wit ness. In Greenleaf's Evidence, vol. 1, sec. 342, we read: "But they, the husband and wife, are not admissible as witnesses against each other where either is directly interested in the event of the proceedings, whether civil or criminal." (Speaking of the common law): "Yet in collateral proceedings not immediately affecting their mutual interest, their evidence is receivable, notwithstanding it may tend to criminate, or may contradict the other, or may subject the other to a legal dem ind." And so Mr. Phillips, in his book touching upon the rule just referred to from Greenleaf, says, in so many words: Although the husband and wife are not allowed to be witnesses against each other where either is directly and immediately interested in the event of a proceeding whether civil or criminal, yet in collateral proceedings not immediately affecting their mutual relations, their evidence is receivable, notwithstanding that the evidence of the one tends to contradict the other, or may subject the other to a legal demand or even to a criminal charge. It will readily be seen that these two authorities, on this particular point, run in the same line and groove. And from the several New York authorities on the admissibility of a plaintiff to testify in actions of this character, there seems to be little room for doubt on the question that the husband or wife may give their testimony in matters which only affect each other collaterally. Thus, Mr. Chief Justice Neilson rendered his decision, holding in effect, that the plaintiff was competent to be sworn and to testify in his own behalf; but was not competent to testify to any confidential communications; and his honor remarked that this qualified direction respected the present state of the law of evidence, as the same has received legislative and judicial expression. It is rumored that Mr. Pryor is, in connection with Mr. Beach, to sum up the case on behalf of the plaintiff. If it be so, it will give him a glorious opportunity to indulge himself in his royal eloquence, and certainly the importance and magnitude of the issues involved would warrant him in making the grandest forensal effort of his life. BETA. NEW YORK. Correspondence. DOWER-DAVIS' ESTATE, 36 IOWA, 24. is in his power by will to divest her of every dollar of his per- [We do not see the necessity of printing the case above mentioned in the JOURNAL. Volume 36 of the Iowa Reports is in the hands of the profession throughout that state; and hence the observations of our correspondent will prove sufficient to direct attention to the evil complained of.—ED. C. L. J.] Recent Reports. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME The statute requiring that every decision of the supreme court, no matter how unimportant or frivolous the case, or how often the questions involved have been decided and reported, shall be reduced to writing by the judges, and published by the reporter, although, perhaps, a considerable advantage to the publisher, increasing the number of volumes required, certainly contributes largely to make the reports of our state, what all well-read lawyers will readily agree in pronouncing them to be, among the poorest now offered to the public and the profession. An effort was made at the last session of the legislature to have this absurd and expensive law repealed or modified, but an intelligent (!) judiciary committee reported adversely; and thus the people of the state stand in the anomalous position of refusing to invest their supreme judges with a needful and proper discretion in selecting the causes which should be reported at length, and discarding those which are too unimportant, or which involve questions which have been decided and reported over and over again, and in which the preparation and publication of written decisions in extenso, constitute a vicious and unwarranted waste of time and The defendant was prosecuted, and convicted in the St. Louis Court of Criminal Correction of an assault and battery. He filed a motion for a new trial which was overruled, and he appealed to this court. There was no bill of exceptions tendered or filed, and the case stands before us upon the naked record, there being no assignment of errors or briefs of counsel on either side. I have examined the record and find the information sufficiently formal and substantially good. The trial and judgment appear to be regular, Judgment affirmed; Judge Sherwood absent, the other judges concur. and I find no error in the record. No more eloquent commentary could be made upon the absurdity of the law which compels the judges to prepare and the reporter to publish written opinions duct of the cause, and the patience of the judges in dealing with it, than the instance we have given; and the volume is marred by many similar ones. The mechanical execution of the book is by no means what it should be. The paper is far from first class, and the type old and worn. A careful proof-reader has done much to repair the errors of inefficient printers, but without producing by any means a "good job." In fine, there must be much improvement in very many respects, before the Missouri Reports regain their proper place in the estimation of those who have occasion to use them. KEOKUK, IOWA, May 5th, 1875. EDITORS CENTRAL LAW JOURNAL :-A recent decision of the Supreme Court of Iowa, and contained in the 36 Iowa Reports, page 24, in the matter of the estate of Jacob Davis, deceased, although satisfactory to the bar, and no doubt a true construction of our laws on the subject of dower, will undoubtedly lead to leg-in such cases as this, or the looseness of practice which is indicated by the conislation on that subject at the next session of our legislature. As your journal has a wide-spread circulation in Iowa, I suggest the insertion of this opinion in your next issue. It will be seen how easy a matter it would be for a husband to convert his real estate into personalty and then devise it to his children, or even strangers, to the entire exclusion of his wife, thus leaving her penniless, saving her rights in the homestead, if he left one The doctrine of dower in lands had its origin, no doubt, in the feudal system, and at a period when personalty constituted but a very small part of the wealth of a country as compared at the present time. In large towns and cities a large part of the wealth of merchants, bankers county on bonds issued in aid of railways beyond the limit of tax allowed to and business men consists of personal property, and in many be levied by statute. See same case reported in full, 1 CENT. L. J. 229. cases the wife, on marriage, or by inheritance, afterwards has conInsurance-Acceptance of Premium-Delivery of Policy-Paytributed more to the capital stock than the husband; yet, if leftment of Premium-Waiver. Baldwin v. Chouteau Ins. Co., p. 151. under his control and reduced to his possession in her life-time, it The acceptance of premium and delivery of policy, render the contract of yond Statutory Limit.-State, ex rel. Aull v. Shortridge et al., p. 126. County courts have no power to levy a tax to meet indebtedness of the Railway-Aid Bonds-Mandamus to Compel Levy of Tax De insurance complete and executed; and it relates back to the date of the opening of the negotiation by the filing of the application, and the making and signing of the policy. The actual payment of the premium is not necessary to bind the contract, where credit is extended by the conpany, and time of payment deferred by agreement, although the policy is not delivered until actual payment. Where a loss occurred after such execution of the policy, and before the actual payment of the premium, the insured is not bound to notify the company of such loss before making payment. Following Keim v Home Mut. F. & M. Ins. Co., 42 Mo. 38. Citing May on Ins., 44; Lightbody v. North Missouri Ins. Co., 23 Wend 18; Hallock v. Com. Ins. Co., 2 Dutch. 268; s. C. affirmed, 3 Dutch 645; Flint v. Ohio Ins. Co., 8 Ohio, 501; Xenos v. Wickham, 2 Law Rep. [H. L.] 296; Am. Home Ins. Co. v. Patterson, 28 Ind. 17; Kohne v. Ins. Co. of North America, 1 Wash, C. C. 93; Comm. Mut. Mar. Ins. Co. v. Union Mut. Ins. Co., 19 How. 318; Whittaker v. Farmers' Union Ins. Co., 29 Barb. 312. Sale of Personal Property-Change of Possession within Reasonable Time.-Bishop v. O'Connell, p. 158. No sale of personal property is valid as against creditors or vendor, unless an actual open and apparent change in the possession occurs within a reasonable time after the alleged sale. If the vendor continues in possession, although under color of a lease, the sale will be held fraudulent. Following Claflin v. Rosenburg, 42 Mo. 439 Lessem v. Herriford 44 Mo. 323. What is a reasonable time, must be determined by the circumstances of each case. Damages for Injuries Caused by Street out of Repair.-Market v. St Louis, p. 189. (See this case reported in full, I CENT. L. J. 211.) The city was held liable in damages for injury to a team, caused by crossing a street-gutter which had been out of repair two months, although the city authorities had not been notified of its condition. Confirmation of Land Title by Congress-Good Against Subsequent Grant from the United States.-Le Beau v. Armitage, p. 191. The title of land held under Spanish claim was confirmed in 1811 to the legal representative of one Provenchere, Calvin Adams. The land was located by a survey approved in 1845. The same land was afterward, in 1866, by act of Congress, granted to one Amiot, of whom plaintiff is the legal representative. The family and legal representatives of Adams have continued in possession from the date of the confirmation to him. Held, that the United States at the time of granting the land to Amiot, had only the bare legal title, no patent, but a certificate of patent, having been issued to Adams, and that such title should enure to the holder of the original equitable title. Citing O'Brien v. Perry, 1 Black, 138; Smith v. Stephenson, 7 Mo. 610; Polk's Lessee v. Wendall, 9 Cranch, 87; Carrol v. Safford, 3 How. 441. Statute of Frauds-Guaranty-Verbal Agreement.-Barker v. Scudder, p. 272. A verbal agreement wher in the party sought to be charged agrees to be originally bound, need not be in writing, but if it is collateral to that of a principal contractor, or is that of a guarantor or surety of another, it must be in writing. To constitute a verbal guaranty, it is not necessary that the word "guaranty" should be used. It is sufficient, if it was the intention of one party, that his affirmation should operate as an inducement to the other party to do the thing required, and the other party accepted and relied on such affirmation and promise. Factor's Lien for Advances-Right to Sell and Reimburse for Expenses and Advances.-Howard v. Smith, p. 314. Where merchandise is consigned to a commission merchant, to be held and disposed of on account of the consignor, without specific directions as to sales thereof, and the commission merchant incurs expense and makes advances on account of such consignment for the benefit of the consignor the legal presumption is that the consignee has the right to sell, according to the ordinary usages trade, and reimburse himself for such expenses and advances. Citing Denny v. Rhodes, 18 Mo. 147; Phillips v. Scott, 43 Mo 92; Brown v. McGraw, 14 Pet. 479; Marfield v. Douglass, 1 Sandf, 360, 3 Comst.; Blot v. Boiceau, Id. 78; Gihon v. Stanton, 5 Seld 476; Blackman v. Thomas, 28 N. Y. 67; Field v Farrington, 10 Wall. 141. of Divorce-Desertion-Failure of Husband to Provide Place of Residence.-Messenger v. Messenger, p. 329. The wife is bound to follow the fortunes of her husband, and live where and in such manner as he chooses. If she declines to do so on the ground that he does not provide a suitable place of residence, her refusal, if continued, will be a desertion on which the husband may base an action for divorce. Executor - Responsibility of for Arsets acquired in another State.-Cabanne v. Skinker, Exr., p. 357. An executor can not reach real estate in another state, unless the will be again proven, as the provisions of a will probated here have no extra-territorial force. Nor can he be held liable on his bond for acts done in another state. Parties-Alien Enemies-Sale of Land under Trust Deed during the War.-De Jarnette v. De Giverville, p. 440. (See same case, I CENT. L. J. 226.) Plaintiffs filed a bill to set aside a sale of land in St. Louis, made during the war by virtue of a trust deed executed before the war, securing the payment of notes, the last of which fell due in April, 1861, and was unpaid, the plaintiffs who owed it being then in Virginia, within the confederate lines. Held, that such facts did not justify a court of equity in granting relief. The trustee having absolute power to seli on default, it was immaterial what were the circumstances or disabilities of the makers of the dishonored note. Napton, J., dissenting, held, that the plaintiffs being alien enemies, were subject to the law of nations, under which they were prohibited from paying their note hence default in such payment would not authorize a sale by the trustee, and equity would interpose to set the sale aside. Party Wall-Rebuilding.-Crawshaw v. Sumner, p. 517. The owner of each building supported by a common wall, has the right to have it supported thereby, so long as it is sound, but when it becomes ruinous or dangerous, either party may rebuild, and the adjacent proprietor who refuses or neglects to join in the expense of rebuilding, can have no right of action for damage or inconvenience occasioned by such rebuilding. Common Carriers-Liability beyond Route.-Cramer v. American Merchants' Union Express Company, p. 524. This case is a very elaborate and interesting one, and will richly repay perusal. In brief, it decides that when a carrier who accepts goods, marked and destined for a point beyond the terminus of his own route, stipulating in the bill of lading only to carry to the end of his own route, if he there delivers the goods to another carrier in as good condition as received and in the usual course of commerce, his responsibility is at an end; otherwise if he had agreed to deliver at destination. C. A. C. Abstracts of Recent Decisions of the Supreme Court of the United States. [Prepared expressly for this journal, by HENRY A. CHANEY, Esq., of Detroit, Mich.] Common Insurance Carriers by Water - Vessel-Masters. Companies v. Steamboat Lady Pike, opinion by Clifford, J. The steamer, with three barges in tow, lashed abreast of her, broadside to broadside, attempted to pass between certain piers in the Mississippi river near St. Paul. The space was too narrow to make the passage safely, and one of the barges struck a pier, and was sunk, to the total loss of a load of wheat. 1. The supreme court will examine the evidence as well as the questions of law in ap. peals in admiralty. The Baltimore, 8 Wall. 382. The concurrence of both subordinate courts upon the merits of the controversy is not conclusive, though it leaves the burden on the appellant to show that the decree below is erroneous. 2. Carriers of merchandise by water, seeking general employment, are common carriers, and, unless otherwise provided by law, are generally to be held responsible as insurers for all loss and damage to the merchandise, unless it occurred without fault or negligence on their part. 3. A common carrier by water must provide a seaworthy vessel, well furnished with proper motive power, and furniture necessary for the voyage; a crew adequate in number, and competent for their duty with reference to all the exigencies of the intended route, and a competent and skillful master, of sound judgment and discretion, and sufficient knowledge of the route and experience in navigation to be able to perform properly all the ordinary duties required of him as master. Unless otherwise specially provided in the bill of lading or contract of shipment, his duty extends to all that relates to the loading as well as safe-keeping, due transportation and right delivery of the goods, and for the faithful performance of all these duties the ship is liable, as well as the master and owners, Abbott on Ship. 344, Laveroni v. Drury, 8 Exch. 166; Clark v. Barnwell, 12 How 272; The Cordes, 21 Id 27; King v Shepherd, 3 Story, 349 3 Kent Com. 213; 1 Smith Lead. Cas. (7th Ed.) 387; 1 Smith M. L. 386. 4. The vessel-master's ignorance of danger in the route is not a sufficient excuse for loss occasioned thereby. The vessel-owner appoints him and is responsible for his want of skill and knowledge as vessel-master, and for his negligence and bad seamanship. The owner is bound to employ a master mariner who knows enough about the route to avoid the known obstructions and choose the most feasible track. Tait v. Levi, 14 East, 482. Such knowledge is practically essential in river navigation, because of frequently shifting currents, cross-currents between piers of bridges and snags, sand-bars and shoals, which no degree of skill would enable the mariner or pilot to avoid without prior knowledge of their existence. 5. A disaster caused by the incompetency, unskillfulness or negligence of the master or pilot in charge of the deck, can not be attributed to " inevitable accident." The Morning Light, 2 Wall. 560; Union Steamship Co. v. N. Y. Steamship Co., 24 How. 313. Findings of Deficiency in Government Contract-Waiver |