vatism of the courts. Unwise and hasty legislation aimed at railroad corporations, as at the avowed enemies of popular rights, has been curbed by impartial judicial construction of the fundamental law, and the protection thereby afforded to individuals, recognized as extending in like manner to corporations. Railroad law may now be regarded as being as well settled, both in this country and in England, as any other part of our jurisprudence.

The

No branch of this peculiar litigation has been more vibratory in its nature, in the United States, than that at present under consideration. English common law requiring owners of live stock to prevent their straying upon the lands of others, has been declared in force in the states of Maine, New Hampshire, Massachusetts, Vermont, New York, New Jersey, Pennsylvania, Delaware, Maryland, Kentucky, Minnesota, Indiana, Michigan, Kansas and Nevada. (Lord v. Wormwood, 29 Me. 282; Wheeler v. Rowell, 7 N. H. 515; Evans v. L. & L. R. R. Co., 98 Mass. 560; Holden v. Shattuck, 34 Vt. 336; Munger v. Tonawanda R. R. Co. 4 Comstock (N. Y.) 349; Price v. N. J. R. R. & T. Co., 2 Vroom (N. J.) 229; N. P. R. R. Co. v. Rehman, 49 Penn. St. 101; Vanderbilt v. Del. R. R. Co. 2 Houston (Del.) 287; Keech v. B. & W. R. R. Co. 17 Md. 32; L. & F. R. R. Co. v. Ballard, 2 Mel. (Ky.) 177; Lacke v. 1st. Div. St. P. & P. R. R. Co., 15 Minn. 350; M. G. & N. I. R. R. Co. v. Fisher, 27 Ind. 96; I. C. & L. R. R. Co. v. Harter, 38 Ind. 557; Johnson v. Wing, 3 Mich. 163; U. P. R. R. Co. (E. D.) v. Rollins, et al., 5 Kansas, 167; Walsh v. V. & T. R. R. Co., 8 Nev. 110.)

The application of this rule to cases involving the question of liability of railroad companies for the killing of cattle straying upon their tracks, renders the owners of such cattle liable for the injuries resulting from a collision of the train with their cattle, and in many instances exonerates the company. The cattle are declared to be trespassers, notwithstanding the road is insufficiently fenced or not fenced at all. The rnle does not require the owners of the animals to build fences to prevent their straying. N. P. R. R. Co. v. Rehman, 49 Penn. St. 101. But on the other hand, neither railroads nor the owners of uninclosed fields are required to fence against them. In many of the cases cited above, notably in the Pennsylvania case, it is decided that no special negligence on the part of the owners of trespassing animals, is necessary to fix upon them the liability for damages resulting from the trespass. They are not even exonerated by the fact that their animals are enclosed by a lawful fence, and are suffered to escape through no negligent act of their owners. This rule is held not to be abrogated by statutes requiring land owners to fence against cattle in order to hold their owners liable for damages committed by their trespassing cattle, so far as to give the cattle of one man rights upon the land of another. It does not impose upon railroad managers any greater diligence with reference to the animals straying upon their tracks, than would be required of them at common law. (U. P. R. R. Co. (E. D.) v. Rollins

et al., 5 Kansas, 167; Durham v. Mussilman, 2 Blackf: 96; 2 Mich. 259.) It has been held, also, that even where the animals stray upon the track through defects in a fence which the railroad company is required to maintain, still the company will not necessarily be liable, except to adjoining proprietors, for the reason that it owes no duty except to the owners of land adjoining the line of its road. (Evans v. S. & L. R. R. Co., 98 Mass. 560.) It is probably questionable whether such a construction would be given to the statutes of all the states where railroads are required by statute to be fenced, though it is generally held that strangers and trespassers have inferior rights to land owners, when their stock is killed. See Ells v. P. R. R., 55 Mo. 278, and cases cited by appellant. In applying the rule that all animals straying upon uninclosed land are trespassers, and their owners liable for the damage resulting from their incursions, in some of the earlier New York cases the courts seem to go to the length of practically denying to the owners of animals run down by a railroad train, any right of action whatever against the company. They hold that one is under no obligation to be cautious and circumspect towards a wrong doer, and as the cattle stray upon the road through the negligence of the owners, they are trespassers, and the company cannot be held liable for mere negligence in running them down. Nothing short of actual malice on the part of the company or its agents will render it liable. It is claimed that the owner of the animals killed, being guilty of contributory negligence,the negligence cannot be apportioned; so that the destruction of this species of property through the negligence of railroad companies, as the proximate cause, is literally damnum absque injuria. Tonawanda R. R. Co. v. Munger, 5 Den. 255. See also Williams v. M. C. R. R. Co., 2 Mich. 259. The reasoning of this case is ably combatted in Needham v. S. F. & S. J. R. Co., 37 Cal. 417, and it seems from some recent decisions in New York to have been abandoned in that state. 2 N. Y. Sup. Ct. 388; Ib. 585; see also Redfield's Amer. Railway cases, 355-6, and cases cited. Nor is the rule recognized by the courts in England, as susceptible of such a rigorous construction. The maxim injuria non excusat injuriam is applied, and it has been frequently held that a trespasser, notwithstanding his trespass, may have redress for the injuries inflicted on him. Alston et al v. Hening, 11 Exch. 822; Davies v. Mann, 10 M. & W. 546. In other states where the English common law-rule is in full force, it has been decided that it is no defence to an action for the reckless killing of animals in this manner, that they were trespassing on the railroad when run down. I. & C. R. R. Co. v. McClure, 26 Ind. 370; Beemis v. C. & P. R. R. Co. 42 Vt. 375; Railroad Co. v. Stout, 17 Wall. 657, and cases cited above.

In the states of the Union, other than mentioned above, the English common law rule is decided not to be in force, for the reason that it is inapplicable to the conditions of society, the nature and settlement of the country, the habits and pursuits

of their people. Stoner et al. v. Shugant, 45 Ill. 76; C. O. R. R. Co. v. Lawrence, 13 O. St. 66; Smith v. C. R. I. & P. R. R. Co. 34 Ia. 506; Low v. N. C. R. R., 7 Jones, 468; 10 Rich. 227; 42 Ga. 305; N. O. R. R. v. Field, 46 Miss. 573; Crafton v. H. & St. J. R. R. Co., 55 Mo. 580; Walker v. Herron, 22 Tex. 55; Waters v. Moss, 12 Cal. 535; 17 Cal. 308. The rule that required the owners of cattle to restrain them within narrow limits, would not be favored in a community where a large proportion of the territory is necessarily uninclosed, and grazing animals would be comparatively valueless if their owners were compelled to keep them constantly within their own enclosures. In some of the states, where this rule has been adopted in an early stage of settlement, before the country was prepared for it, legislation has been resorted to as a corrective of the evils of inconsiderate judicial action. But it seems to be a rule that is difficult to legislate against, where it has been once adopted by the courts. See cases in Ind., Minn. and Kansas above cited.

The most important differences between the adjudications in states adopting and those rejecting the English rule, are in the effect of contributory negligence, and the degree of diligence imposed upon either the owners of animals or the railroad companies. In those states adopting the rule, the owners of animals thus killed are always held to be guilty of negligence. This follows as a corollary of the duty imposed to restrain the animals, and the right of the company to the exclusive possession of its track. Little v. Lathrop, 5 Green., 35; Avery v. Maxwell, 4 N. H., 36; and cases cited above. Under the operation of this rule, gross negligence is necessary to render the railroad company liable, and the constituents of negligence recognized as gross by some of the courts are such as to amount almost to malicious intent on the part of the railroad managers. In one case (M. S. & N. J. R. R. Co. v. Fisher, 27 Ind., 96), under an order of county commissioners made pursuant to statute, authorizing cattle to run at large, it appeared in evidence that the cow was killed at the crossing of a public highway; that the whistle was not sounded nor the bell rung; that the train was running at an unusual rate of speed, and it was during a snow storm that rendered it difficult to see or hear at a great distance, it was held that the company was not liable. The reason assigned was that the statute was passed authorizing the order of the county commissioners, for the benefit of sparsely settled communities, and imposed no greater diligence on the part of any one using their own property, than at common law. The case of N. P. R. R. Co. v. Rehman, 49 Penn. St., 101, cited above, is analogous, and was decided the same way. In the cases cited where the English rule is not recognized, the element of contributory negligence rarely enters, for the reason that it was held not to be negligence on the part of the owners of animals, to allow them to run at large. The best considered cases require, on the part of the railroad managers, the exercise of ordinary diligence in the use of their property so

as not to injure others. It will also be seen by an examination of the cases cited from the reports of Ohio, Illinois, Missouri, Iowa, and other states where the rule under consideration is not in force, that the degree of negligence on the part of the railroads, that renders them liable, is merely such as will render persons liable, ordinarily, for injuries to the property of others by a careless use of their own. But the courts in these states have, for the most part, carefully avoided going to the extreme of imposing upon railroad corporations the duty of observing a degree of diligence in avoiding the infliction of injury upon others, that would make them the insurers not only of what they undertook to carry, but of all the animals that run at large on the line of their roads. None of the authorities cited undertake to fix upon the railroad companies the duty of fencing their tracks. Where, however, this duty is imposed by statute, it has been held that the company is prima facie liable for injuries resulting to animals wandering on the track through defects in the fence. Brady v. R. R., 3 N. Y. Sup. Ct. R. 537; Child v. Hearn, L. R. 9 Exch. 176; Bay City v. Austin, 21 Mich. 390; McCoy v. Cal. P. R. R., 40 Cal. 532; Swift v. N. M R. R. Co., 29 Ia. 243; Walch v. V. & T R. R. Co., 8 Nev. 110; Bradley v. B. N. Y. & E. R. R. Co., 34 N. Y. 427; Walthen v. P. R. R., 55 Mo. 271.

As we have already remarked, in some instances the courts of those states holding to the common law rule, have given very reluctant acquiesence to the operation of statutes imposing this duty upon railroads, so as to fix upon them the liability for killing animals straying upon their unfenced tracks. On the other hand, where the rule is rejected and the statute for fencing railroads in full force, as appears by decisions in Missouri, Texas and other Western states cited above, the companies are not held liable in cases where the statute does not apply in the absence of proof of negligence on their part. The true rule, as deduced from the best considered cases, decided where the rule is recognized, as well as where it is rejected, seems to be, that if the engineer of a moving train, could, by the exercise of the diligence of a prudent man engaged in his particular calling, avoid the collision, then the company would be liable for the consequences of such collision. 57 Ill. 514; Needham v. S. F. & S. J. R. Co., 37 Cal. 417. But when the animals are injured by any dangerous agencies, which are the usual, lawful and necessary incidents of the place on which they stray, their owners have no redress. In construing the act requiring railroads to be fenced in Missouri (Wag. Stat. 310-11), the court in Walthen v. Pacific railroad, cited above, hold that section 43 of the act designating the points adjacent to enclosed and cultivated fields, as the points at which the road must be fenced, under a fair construction, required both sides of the road to be fenced, although the enclosed or cultivated fields were only on one side, and rough timber lands on the other. And when in such a case the stock killed strayed upon the track from the side of the timber land, the company would be liable. When the question

A receiver appointed by a state court, who has reduced property to possession in his own state, may maintain replevin for such property in another state.

MCFARLAND, J., delivered the opinion of the Court. Toof, Phillips & Co. caused 14 bales of cotton to be attached as the property of R. E. Treviathan, by process from the 2d Circuit Court of Shelby County. Shane, Harris & Co. brought an action of replevin to recover the property from the sheriff. Afterwards, W. J. Cagill was substituted as plaintiff, and Toof, Phillips & Co. as defendants, in this action; and the cause was subsequently revived against Wooldridge and Oliver, assignees of Toof, Phillips & Co. The trial resulted in a verdict and judgment for the defendants. The plaintiff has appealed in error. The case which the plaintiff insists was made by the proof is, in brief, that in certain litigation in the state of Arkansas, in which said Treviathan was a party defendant, the details of which need not be set out, the plaintiff Cagill was appointed receiver of certain property and effects, and ordered to take the same into his possession,among other things, the 14 bales of cotton in controversy, and to sell said cotton, or to ship the same to Memphis, or elsewhere, for that purpose, and to hold the proceeds subject to the order of the court; that the appointment was made upon allegations in the pleadings, giving the court power and jurisdiction to make the appointment; that the cotton was then within the jurisdiction of the court in the State of Arkansas, and was actually taken into possession by the plaintiff Cagill, and shipped to Shane, Harris & Co. at Memphis, for sale, where it was attached as the property of Treviathan by Toof, Phillips & Co., as before stated.

The Circuit Judge charged the jury that, "In order to entitle the plaintiff to recover, it is necessary that he shall have established some general or special property in the cotton in controversy. It is not sufficient for him merely to have established the fact that he was appointed receiver by the Chancery Court of Independence County, Arkansas, and came into possession of the cotton by virtue of such appointment; and if you find from the evidence that he has shown no other right to the property than as such receiver, and that the parties whom defendants represent, Toof, Phillips & Co., were creditors of Treviathan, and attached the property in Memphis as the property of Treviathan, you will find for the defendants." This was the entire charge, although further specific instructions were asked by the plaintiff's attorney.

We think the charge is erroneous, and that the judgment must be reversed. It is true, that if a receiver appointed by the courts of another State should, by virtue of such appointment, seek to recover in our

courts property to which others had acquired rights here, the claim would not be enforced; that is, our courts would not, in such a case, lend their aid to enforce and carry out the order of the foreign court as to the property within our jurisdiction. The right of the receiver as such could not be recognized in our courts. But where the court of a sister state, having jurisdiction of the parties and subject-matter, and having the property within its actual control, appoints a receiver to take possession of and sell the property, and this order is executed by the property being actually taken into possession by the receiver, we think, beyond doubt, this would give to the receiver, against the parties to the litigation and those claiming through them, a special property and right of possession, that would enable him to maintain an action of replevin, and that this right would not be lost by sending the property to this state for sale; that to this extent we would respect the orders and judgments of the courts of sister states.

The receiver can, in such case, maintain the action in his individual capacity. See Graydon v. Church, 7 Michigan, 36. We do not think the authorities referred to by the counsel for the defendants establish a contrary doctrine.

Of course we decide nothing as to the other questions argued, or as to whether the proof sustains the plaintiff's case. The charge being erroneous upon this material question, the judgment must be reversed.

NOTE.-The question of the right of power of a receiver to bring a suit in a court of a state or jurisdiction foreign to that of his appointment, has been much controverted.

Booth v. Clark, 17 How. 322, is a leading case in opposition to such right or power, based upon the propositions, asserted with great positiveness, that a receiver has no extra-territorial power of official action, that the court appointing him can confer none, and that none such is sanctioned by comity. Missouri adheres to the same doctrine, her Supreme Court having, in Insurance Co. v. Needles, 52 Mo. 17, followed Booth v. Clark as an authority, and laid down the rule broadly, that "a receiver cannot sue in a foreign jurisdiction for the property of the debtor." The courts of Louisiana have with equal warmth and earnestness espoused the contrary view, and recognized the fullest right of foreign receivers and "trustees" to bring suits in that State, in Planters' Bank v. Bass, 2 La. Ann. 436; Paradise v. F. & M. Bank of Memphis, 5 La. Ann. 710, and McAlpin v. Jones, 10 La. Ann. 552.

Other States have conceded the right more guardedly. In New York it is allowed from comity alone, with the reservation that no liens already created or other rights accrued, under State laws, to citizens of that state, may be contested by the intruding foreigner. Runk v. St. John, 29 Barb. 587. But in Willitts v. Waite, 25 N. Y. 584-587, the privilege was refused to receivers from Ohio, where liens had been acquired by citizens under the attachment laws. It is noticeable that one of the rejected receivers in that case has since become Chief Justice of the United States. Massachusetts and Maine have adopted a similar rule in Taylor v. Columbian Ins. Co., 14 Allen, 353, and Hunt v. same defendant, 55 Me. 298. In these cases, receivers of a New York corporation were refused permission to sue and set up their title as against liens already acquired under the local laws. Comity was referred to with evident consideration, as though it would have permitted a different ruling but for the adverse liens already acquired. In 52 Mo., 17, the refusal is positive, without reference to any question of adverse claims or of favor to domestic suitors.

It is intimated in the opinion in the principal case that liens in favor of home suitors would receive preference, if prior in point of time to any actual possession of the foreign receiver.

In still other cases a qualified rule has been adopted, and the suit has been sustained under special circumstances, as in ex parte Norwood, 3 Bissell, 513-515, where a receiver was allowed in the Federal District Court in a state other than that of his appointment, to prove in bankruptcy a debt due to the estate represented by him. This is based on the rational features and general application of the bankrupt act. In Hoyt v. Thompson, 5 N. Y. 320, plaintiff was per

mitted to sue in his own name on a chose in action acquired by him in New Jersey by assignment from receivers in chancery appointed in the latter state. The case of Graydon v. Church, 7 Mich. 51-53, is correctly cited in the principal case as the one most closely analogous thereto. In that case the receiver had, in addition to the title given by his appointment as such, received from the defendant, under the practice in vogue in New York, an assignment of the property, which was situated in Michigan; and this assignment had been recorded in the latter state. So it was held that plaintiff sued, not strictly in his capacity as receiver, or by virtue of his appointment, but also by virtue of the assignment. So in the principal case, the receiver in Arkansas had reduced to possession there the property he was following to Tennessee, and he was pursuing a possessory remedy, based on possession once personally enjoyed by himself. In the Michigan case, the New York receiver had acquired a title personal to himself by the assignment duly made and recorded. In the Tennessee case the Arkansas receiver had acquired a title personal to himself by reducing the property to possession. There can be little doubt of the correctness of the ruling in both of these cases. They show by contrast how technical is the ruling in Booth v. Clark.

Technical though the rule may be, it is conceded by the Supreme Court of Michigan, in Graydon v. Church, that the weight of American authority is against the right of a receiver to sue in a foreign court; and the same conclusion is reached by Mr. High, in his work on Receivers, § 239. It must be a very thin and unsubstantial comity that can consist with the refusal to recognize the officer of a court beyond the lines of his state. J. O. P.

CAMPBELL, J., delivered the opinion of the court. Plaintiffs in error sued defendants in error in trover for the conversion of certain furniture which had been the stock in trade of plaintiffs. Defendants justified, under a chattel mortgage, the terms of which are important as presenting most of the questions in controversy.

This mortgage, dated July 3, 1870, was made by Emanuel Shnyder to defendants Illenden & Collver to secure $2,000 and interest at ten per cent. annually; $1,000 in two years, and $1,000 in three years from date. It was given for the purchase-money of the stock of goods mentioned in it. The property mortgaged was set forth in these terms, with the conditions appended: "All the goods, wares and merchandise, chattels and effects mentioned and described in the schedule hereto

annexed and marked "Schedule A," this day bought of Illenden & Collver, thereby intending to convey all the present stock in trade as enumerated in said schedule, also all the stock I may have from time to time in trade, as security for the above-named consideration, said goods to remain and continue in the possession of the party of the first part, in the village of Three Rivers, Michigan, except as they are disposed of in the usual course of retail trade; the party of the first part is to have the privilege of selling the goods for cash or on credit in the usual course of trade, and is to apply the proceeds of the sales in buying other goods to keep up the stock and to the support of his family. The party of the first part covenants to keep up a stock of like goods to the value of three thousand dollars as security to the parties of the second part until the above amount, with interest, is paid, and also covenants to keep the stock insured to the amount of $2,000 for the benefit of the party of the second part and as collateral thereto, and a breach of the last two covenants shall cause the whole sum secured to become due and payable."

In addition to the usual conditions of defeasance, the mortgage contained the following as among the acts which would authorize a seizure and sale: "If the said party of the first part shall sell, assign or dispose of, or attempt to sell, assign or dispose of the said goods and chattels contrary to the terms of these presents, or remove or attempt to remove the whole or any part thereof from the said village of Three Rivers, without the written assent of the party of the second part, or if the insurance is not kept up, or if the stock is sold below the amount covenanted to be kept up, then, and from thenceforth, it shall and may be lawful for the said party of the second part," etc., "to enter,"

etc.

The undisputed facts are, that Shnyder, after making this mortgage, continued in business alone and in partnership with others until August 30, 1871, when he sold out his interest in the firm of Shnyder & Bellows to one John Koahn, who, in a short time, bought out Bellows also, and continued in business alone until, on the 11th of November, 1871, he sold out his stock to the plaintiff Nancy Moore, giving an inventory which was declared to be "subject to a chattel mortgage." There was no other chattel mortgage than the one in question. The other plaintiff's became partners with Nancy Moore, and during their continuance in business they added $344 worth of goods purchased from other parties, and sold about $1,500 worth at retail. Illenden & Collver seized the stock, under their chattel mortgage, on the 22d of February, 1872, and sold it. The property sold included some recent purchases and unfinished articles. But a small part of the property was in that originally sold by Illenden & Collver to Shnyder. Alfred B. Moore, husband of Nancy Moore, acted for her in making her original purchase, and in superintending all her business, in which she did not act personally for herself at all. All the persons who became interested in the stock of goods took with notice of the chattel mortgage and bought subject to it.

The principal question, which is presented under many forms, is, whether Illenden & Collver had a right, under the chattel mortgage, to seize and sell the property not originally in their possession, and within their sale, to Shnyder, for the purchase price, whereof the security was given. It is not insisted by defendants in error, as matter of law, that the mortgage became operative as a present conveyance upon each successive addition to the stock in trade as soon as purchased. The claim, as we understand it, is, that it gave the mortgagees authority to seize and subject such property to sale, and to make good title under such power, unless prevented by the paramount right of some per

son intervening with a valid claim or title created prior to such seizure.

Some question appears to have arisen concerning the effect of a confusion of goods by intermixture. It would be difficult to create such a confusion among such articles as those in controversy, and it does not appear, in fact, that any serious difficulty was found in distinguishing the property. The questions, in our judgment, need not be considered in that point of view. But as the legal propositions themselves are somewhat intermingled, they can be more satisfactorily disposed of together than separately. It was held in Holmes v. Hall, 8 Mich. 66, that an agreement whereby a creditor was authorized in a future contingency to take possession of a stock of goods and sell them, but which contained no terms of transfer or hypothecation, was not a mortgage, but was only a beneficial power, which could not fix any rights in the property before seizure. A similar doctrine was held in Dalton v. Laudahn, 27 Mich. 529, where the power was contained in a lease. But it was further held, in the latter case, that the agreement was valid and operative according to its terms, and no good reason occurs to us, and we think there is no satisfactory authority why it should not be. Parties can, if they choose, make contracts of agency, bailment, or other authority as broadly as they choose, where no legal policy and no paramount right intervenes before their enforcement. And if those agreements contain a license or permission to take possession and sell, no court can deny the validity of the possession and sale if the parties are capable of contracting and no other rights intervene. Cases are not rare in which tenants of lands have been compelled to perform their stipulations, to leave certain live stock or other property on the estate at the end of their leases. And trusts in personal property are of every day occurrence in which the specific property is constantly changing while the fund remains subject to the duties and burdens of the trust. Partnership operations are notable instances of this kind.

The present mortgage is one where the parties both agreed that the primary fund should be kept good by successive sales and re-investments, which it is evident was necessary, in the first place, to enable Shnyder to pay for his goods, and, in the second place, to make Illenden & Collver secure by replacing what had been sold. The agreement was fair and intelligible, and it is as easy to identify this fund as any other which changes its shape, but not its legal identity, by re-investment.

If the mortgage had not authorized sales, and the property had been sold notwithstanding, a court of equity would find no difficulty in pursuing the trust fund, so long as it could be identified, into the property wherein it had become re-invested, and it pursues this course because the new property is regarded as belonging to the trust as effectually as the old. And this pursuit of trust funds is not confined in all cases to the possession of the original wrong-doer. Persons taking with notice are in the same position in a large class of

cases.

In the present case, the parties have seen fit to stipulate expressly that the body of the fund may be changed without losing its identity, and that the mortgagee may deal with it as if unchanged. The various purchasers have made their purchases subject to this arrangement, and are estopped from denying it. The mortgagees, in taking the property, did only what Shnyder agreed they might do, and what the several purchasers also understood they were authorized to do. A purchase of property subject to such a power would certainly be regarded in equity as liable to be subjected to a disposition in furtherance of the trust. Every one taking it on those terms becomes, in equity, a trustee of the fund. And where the contract itself

points out the way for the enforcement of rights by act of the party, and he has only done what it was agreed he might do, it would be unjust and absurd to hold him responsible as a wrong-doer as against those who were bound by the terms of their own holdings to allow him to do it. If the additions to the stock made by the later purchasers had exceeded in value the amount of sales from the stock, there might, possibly, be some difficulties which do not exist here. But the sales largely exceed the additions. For any sale beyond such articles as raised the amount of the mortgage with interest and expenses, the mortgagees were liable. But this the court distinctly charged, and we find nothing to indicate that this point was not fairly placed before the jury. They were expressly told that the sale of a single article, after the requisite sum had been raised, would be unauthorized.

Some questions were raised concerning the right to foreclose before the maturity of the mortgage. It is claimed that, under the terms of the mortgage, it did not all become due on the failure to insure alone, or on the reduction of the stock alone, below $3,000. This, we think, is not so. It is true that in the early part of the mortgage, the covenants to insure and to keep up stock are united, and it is said "a breach of the last two covenants shall cause the whole sum secured to become due and payable." Assuming-what we very much doubt that this, by itself, technically requires a double breach, yet it must be read with the rest of the mortgage. In the proviso, or defeasance, where it is proper to look for the careful statement of the mortgagee's rights, there is no ambiguity. The remedy is expressly given on a breach of either one of the two conditions.

We also think there was no error in the instructions given concerning what would amount to a waiver of the condition that a sale, except at retail, without written consent, would operate as a forfeiture. The court told the jury that the condition might be waived, but that they could not find such a waiver unless they found the property was sold with the knowledge and consent of the mortgagees. This was certainly going as far as could be asked. If the jury have not taken a proper view of the testimony, their course can not be reviewed in this court. Their finding has not been disapproved by the court below, and we may fairly presume it was justified.

The objection to evidence of the insurance of the property by the mortgagees for their own protection is not well taken. Where there is a covenant to insure and it is not kept, the mortagee may very properly insure and can add the premium to his debt, if fair and reasonable.

Objection was also made to the reception of testimony of certain remarks of A. B. Moore, the husband of Nancy Moore, the plaintiff, as not res gestæ, and therefore incompetent. One of these was a declaration made about the time of the removal of the goods to his wife's store, that he had got a whip row on Illenden & Collver and intended to keep it. The other was that the mortgage was worthless, and he was going to beat them out of the mortgage if he could. The evidence showed, or tended to show, that in the transaction of the business of Mrs. Moore she was practically a cipher, and that Moore had entire control and did as he chose. If this testimony had any materiality at all, it was to show notice of the defendant's rights, or such conduct as would justify them in proceeding to an enforcement of them. In both these particulars it was admissible, under such circumstances, to urge and assume that she knew, what he knew and intended what he intended, and perhaps still further, to urge that she was merely a figure-head, and her husband the actual dealer. Where husband and wife are engaged in business on