having only twelve hours each. Is a man who works on February 28 and 29 to have pay for one day only? Is one who borrows money on February 27, for one day only, entitled to the use of it for one day longer, and that, too, without interest? Has a judgment rendered February 28 no priority as a lien over one rendered February 29th? Could a man sentenced to be hung on February 29, be legally executed on February 28th? Could a man, indicted for selling whiskey on Sunday, February 29th, escape punishment on the plea that he sold the liquor on the latter part of Saturday, February 28?" The service was therefore held to be sufficient.

THE SECOND VOLUME OF THE "AMERICAN DECISIONS."

The decisions in Mr. Proffatt's second volume cover eight years, from the year 1800 to the year 1808, and embrace twenty volumes of reports, from the states of Massachusetts (1 Mass.), Connecticut (1 & 2 Day), New York (3 Johnson's Cases, 1, 2 & 3 Caines Rep., 1 & 2 Caines Cases), New Jersey (1 Pennington), Pennsylvania (3 & 4 Yeates, 1 Binney), Maryland (1 Harris & Johnson), Virginia (3, 4 & 5 Call), North Carolina (2 Haywood, 1 Conference), South Carolina (1 Brevard, 2 Desaussure), and Kentucky (1 Sneed).

Tuttle v. Russell, 2 Day, 201, (Connecticut 1802-1807), 2 Am. Dec. 89, decides that a witness may be impeached by showing that, at the time the facts sworn to occurred, he was intoxicated. But the intox

ication, it appears, must be proved by direct evidence, or by the acts and conduct of the witness, and not by the quantity of spirituous liquor he had previously drunk. Gardner v. Preston, in the same volume, was an action against A, B and C, founded on a fraudulent combination by them to defraud such merchants and traders as they might be able to impose on by representing A, who was insolvent, as a man of large property and safely to be trusted. It was held that evidence that the defendants made such representations to other persons than the plaintiff, in consequence of which such persons, without the request of the defendants, recommended A to the plaintiff, whereby he was induced to give him credit, was admissible. This case

has been subsequently cited and approved in Thompson v. Rose, 16 Conn. 71, and in Luckey v. Roberts, 25 Conn. 492.

Slander and libel cases are both frequent and varied in this volume. In Lewis v. Hawley, 2 Day, 495, 2 Am. Dec. 121, to say of a drover whose business was to purchase cattle, drive them to market and sell them; "He is a bankrupt and is not able to pay his just debts," was held actionable without proof of special damage. In Riggs v. Denniston, 3 Johns. 198 (New York, 1802-1804), 2 Am. Dec. 145, the plaintiff was a counselor-at-law and commissioner of bankruptcy. The defendant had published of him that he was a misanthropist, a virulent partizan, and that he defeated nearly one-third of all the unfortunate debtors that had been before him, first stripping them of every cent they had in the world, and then depriving them of the benefit of the act; and that in his position as counselor-at-law he had received a fee from his client, and then had offered himself as a witness against and in order to divulge the secrets of his client. On demurrer to the defendant's pleas, it was held, as to the first charge, that, in order to justify, the defendant would be obliged to show to a certainty that the plaintiff had willfully perverted the law for illegal and oppressive purposes; and, as to the second charge, that the defendant must prove that the matters communicated to the plaintiff by the client were pertinent to the merits of the cause in which he was engaged. In Hopkins v. Beedle, 1 Caines, 347 (New York, 1803-1805), 2 Am. Dec. 191, the declaration in an action for slander contained three counts. In the first, the charge was for saying: "You have sworn to a lie, and I will prove it." will prove it." In the second: "You have sworn to a lie." And in the third: "You have perjured yourself as one of the overseers of the town of Washington, and I can prove it." The objection that the words in the first and second counts were not actionable in themselves was sustained by the court. Kent, J., said: "Swearing to a lie does not necessarily imply that the party has, in judgment of law, perjured himself. It may mean that he has sworn to a falsehood without being conscious at the time that it was a falsehood. It may mean extra judicial swearing, and, therefore, it is held that a charge that one is forsworn is not actionable, because it shall not

be intended in a case where perjury may be committed. On the other hand, a charge that one is perjured is actionable; for that implies the direct legal crime." So in Pelton v. Ward, 3 Caines 73 (New York, 1803-1805); 2 Am. Dec. 251, the words "You swore to a lie for which you now stand indicted," were held actionable; and in Miles v. Oldfield, 4 Yeates 423 (Pennsylvania, 1800-1803); 2 Am. Dec. 412, the words, "She is a vagrant." Cook v. Barkley, 1 Pennington 169; (New Jersey 1804-1807); 2 Am. Dec. 343, is a lengthy and well discussed case, which holds that in actions for slander the defendant may give in evidence, under the general issue, in mitigation of damages, the manner and circumstances of speaking the words; that they were in circulation and reported by others, and that he only repeated them. In McMillan v. Birch, 1 Binney 178; (Pennsylvania 1804-1808); 2 Am. Dec. 426, it is held that to call a clergyman a drunkard is actionable. See on this point Hayner v. Cowden, 3 Cent. L. J. 716. We can not help feeling flattered in observing that to the report of McMillan v. Birch the editor of the American Decisions has added a note on the subject of Privileged Expressions, which we recognize as a portion of our article on "The Privilege of an Advocate," published in this journal on the 26th of January, 1877. Our satisfaction might, however, have been somewhat greater had its source been acknowledged in a work of the permanent character of this series of reports.

People v. Barrett, 2 Caines. 304 (New York 1803-1805); 2 Am. Dec. 239, holds that the discharge of the jury, after the prisoner has pleaded to the indictment and the jury has been sworn, is a virtual acquittal of the prisoner, who can not afterwards be tried on the same indictment.

The syllabus to Jordan v. Meredith, 3 Yeates 318 (Pennsylvania 1800-1808) 2 Am. Dec. 373, is as follows: "The usage of plasterers to charge half the size of the windows, at the price agreed on, for work and materials is unreasonable and bad," because, as remarked by the court, "to charge an employer with materials never received is the height of injustice." The reporter's note to this case states that this decision was criticised in Walls v. Bailey, 49 N. Y. 464. In Coxe v. Heisley, 19 Pa. St. 247, it is said: "Our own decisions on this subject have not

been very consistent. The court in the early cases stood over the law and guarded it against invasion faithfully enough. A rule among merchants to charge interest for goods sold after six months, 1 Dall. 265; a usage of plasterers to charge for their work at a certain rate, 3 Yeates 318; a custom to reenter for a forfeiture incurred by non-payment of rent, 6 Binn. 417. All these were held inadmissible. But in 1822 a custom on the Ohio river was permitted to vary the responsibility of a carrier there, 8 Serg. & R. 533; and nine years latter a usage in Philadelphia was allowed to add a warranty to a contract of sale, which, in fact and in law, did not embrace one; 3 Rawle. 101. In both these cases, Chief Justice Gibson dissented from a bare majority; and his warning, though unheeded at the time, was remembered when the question came up again; 3 Watts 179; 5 Barr. 42. Our latest decisions are consistent with the oldest. The law of Pennsylvania may, therefore, be considered as settled in accordance with reason and with the judicial authorities of other commercial states. A local usage, if it be ancient, uniform, notorious and reasonable, may enter with and become part of a contract, which is to be executed at the place where the usage prevails; but here, as elsewhere, it is checked by this wholesome limitation that it must not conflict with the settled rules of law, nor go to defeat the essential terms of the contract."

Sexias v. Woods, 2 Caines 48 (New York 1803-1808); 2 Am. Dec. 215, though modified by later decisions, is a leading case in New York on the question of implied warranty on the sale of chattels. It was an action on the case for selling peachum wood for brazilletto, the former worthbeing almost less, the latter very valuable. The defendant had received the wood from a house in New Providence, whose agent he was, and it was described in the invoice, advertised and sold by him as brazilletto. Neither of the parties suspected that the wood was other than brazilletto, and no fraud was charged. The court held, following the leading English case of Chandelor v. Lopus, 2 Cro. 4, that no action lay in the absence of an express warranty or fraud on the part of the vendor. This decision, it appears from the reporter's note, was followed in the later cases of Holden v. Dakin, 4 Johns. 421; Sweet v. Col

gate, 20 ib. 196; and Hotchkiss v. Gage, 26 Barb. 141; but the principle there announced was greatly modified in Hawkins v. Pemberton, 51 N. Y. 198, and in Dounce v. Dow, 64 N. Y. 411.

The case of Respublica v. Dennie, 4 Yeates, 267 (Pennsylvania, 1800-1808), 2 Am. Dec. 403, serves to remind the reader that, in reading the pages of this volume, he is studying the records of the past. The defendant was indicted for having in a newspaper called the Portfolio, "falsely, maliciously, factiously and seditiously, made, composed, wrote and published," a libel against the government of the United States, as follows: "A democracy is scarcely tolerable at any period of national history. Its omens are always sinister, and its powers unpropitious. With all the lights of experience before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France and terminated in despotism. It was tried in England, and rejected with the utmost loathing and abhorrence. It is on trial here, and its issues will be civil war, desolation and anarchy. No wise man but discerns its imperfections; no good man but shudders at its miseries; no honest man but proclaims its fraud; and no brave man but draws his sword against its force, The institution of a scheme of polity so radically contemptible and vicious is a memorable example of what the villainy of some men can devise, the folly of others receive, and both establish, in despite of reason, reflection and sensation.' Mr. Dennie seems, from this extract, to have been a powerful writer, and it is rather surprising to find that he was acquitted by the jury.

Want of space alone prevents us from extending this notice of the cases of interest in Mr. Proffatt's second volume. No lawyer can look through the book without experiencing both pleasure and profit in its perusal.

THE statistics relating to the administration of criminal law in France during the year 1875 have just been made public. The number of persons tried at the Assizes during the year 1875 amounted to 4,791, as against 5,228 in 1874. Of the accused 1,547 were described as wholly illiterate. 3,042 could read and write; 202 had received a superior education. The men

were 4,008, the women 783. The acquittals were 947, or over 20 per cent.

United States Circuit Court, Eastern District of Michigan, April 1, 1878.

Before Hon. H. B. BROWN, District Judge.

A RESOLUTION OF A FOREIGN CORPORATION, filed pursuant to a state statute, authorizing its agent" to acknowledge service of process for and in behalf of such company, and consenting that service of process upon any agent shall be taken and held to be as valid as if served upon the company or association," amounts to an agreement for a constructive presence within such state; and a federal court may obtain jurisdiction over such corporation by service upon its agent.

On motion to set aside the summons, upon the ground that defendant was a foreign corporation organized under the laws of the province of Ontario, and, therefore, not suable in this court.

C. E. Warner, for motion; H. E. Windsor, contra.

BROWN, J.:

This is an action brought by a writ of summons, in which the defendant is described "as a body corporate, organized and existing under the laws of Ontario, in the Dominion of Canada, and an alien and a subject of the Queen of Great Britain and Ireland." The motion raises the question of the jurisdiction of this court over the defendant, and is based upon the fact that it is not an inhabitant of, or found within this district.

The first section of the act of 1875, following in this respect the language of the judiciary act, provides that no civil suit shall be brought before either of said courts against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of the serving of such process, or of commencing such proceeding, except as hereinafter provided." A series of decisions of the supreme court has settled the law that a corporation is only a citizen of the state by which it is created; that it is a mere creature of local law, and has not even an absolute right of recognition in other states, but depends for that, and for the enforcements of its contracts, upon the assent of those states, which may be given upon such terms as they please. Bank of Augusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 168; O. & M. R. R. Co. v. Wheeler, 1 Black. 286; R. R. Co. v. Harris, 12 Wall. 81. Accordingly, it has always been held that a foreign corporation was not an inhabitant of any district except that within which it was incorporated, and that service upon its officers in another district was not a finding of the corporation in that district, within the meaning of the judiciary act. Day v. Newark India Rubber Mnfg. Co., 1 Blatch. 628; Main v. Second National Bank, 6 Biss. 26.

If the service of the summons in this case is supported at all, it must be by virtue of the statute of this state, which provides that every foreign insurance company shall file with the secretary of

state a resolution,"authorizing any agent, duly appointed by resolution, under the seal of the company, to acknowledge service of process for, and in behalf of such company, "consenting that service of process upon any agent shall be taken and held to be as valid as if served upon the company or association, according to the laws of this state or any other state, and waiving all claim of error by reason of such service." That such service is valid and regular, has not only been repeatedly recognized by the supreme court of this state, but was held to be valid as applied to process from the state courts in the case of the Lafayette Ins. Co. v. French, 18 How. 404. It is true the question was not discussed whether such service would be valid as applied to process of the federal court, but there is no intimation that it would not be so considered. In the case of The Railroad Company v. Harris, 12 Wall. 81, the supreme court observed in speaking of a foreign corporation: "It can [not migrate, but may exercise its authority in a foreign territory, upon such conditions as may be prescribed by the laws of the place. One of these conditions may be that it shall consent to be sued there. If it do business there it will be presumed to have assented, and will be bound accordingly." The question at issue here, however, was not directly passed upon in that case. In Pomeroy v. The N. Y. & New Haven R. R. Co., 4 Blatch. 120, it was held that the provision in the judiciary act above quoted could not be altered or modified by any state law, and that the law of New York in regard to a Connecticut corporation, declaring it liable to be sued in the same manner as corporations created by the laws of New York, and that process might be served on the officers or agent of the corporation, would not have the effect to give the federal court jurisdiction of a suit against such corporation by service within the district on an officer or agent.

I am better satisfied, however, with the opinion in the case of Knott v. The Southern Life Ins. Co., 2 Woods 479, in which jurisdiction in a similar case was sustained. It seems to me the very object of the state law was to provide that no insurance company should do business within the state that was not capable of being sued there, and that the constructive presence of a corporation in the person of its agent should be recognized as well by us as by the state courts. The cases holding that a corporation is a citizen only of the state in which it is organized, are quite as applicable to state courts as to federal courts, and would be as effectual to prevent a foreign corporation being sued in the state courts of another state as in the federal courts. Now, if statutes like this may be held to constitute a constructive presence of the corporation in another state for the purpose of the service of process from the state court, I see no reason why it should not operate equally in favor of process from this court. And if a foreign corporation may appear after the issuing of process and defend a suit, (of which no doubt was ever entertained), it is difficult to see why it may not agree beforehand that it will accept service of all process that may be served upon it. In this particular the case

of Day v. Newark India Rubber Co., above cited, differs from the one under consideration-there was no express agreement on the part of the corporation to accept service-the jurisdiction could only be sustained upon the theory that the acceptance of the franchise implied an agreement to be bound by the conditions of the statute.

With deference to conflicting opinions, the reasoning of Judge Woods in the case cited from his reports seems to me unanswerable, and for the present I shall act upon it as the law in these cases.

The mortgagee named in a mortgage of real estate, containing a condition that the mortgagor shall keep the buildings thereon insured for the former's benefit, in a sum named, at such offices as he shall approve, can not maintain an action in the mortgagor's name against the insurer, upon a policy issued to the mortgagor for a smaller sum, and covering both the real estate and certain personal property of the mortgagor, although the insurer has been notified, before payment to the mortgagor, of the mortgagee's claim. The facts appear sufficiently in the opinion. COLT, J., delivered the opinion of the court: This is an action to recover upon a policy of fire insurance on the plaintiff's dwelling-house and furniture. It is brought in the name of the plaintiff, by Andrews, who claims to have an equitable lien upon the money due on the policy, to the extent of his interest as mortgagee of the real estate. This claim on the part of Andrews is founded on a clause in the condition of the mortgage from Stearns, the plaintiff, to him, which declares that if the mortgagor shall, until payment of the debt secured, keep the buildings standing on the land insured against fire, for the benefit of the mortgagee, at such offices as he shall approve, and perform the other conditions named, then the deed shall be void. At the time the policy was issued, the insurance company had no knowledge of the terms of the mortgage, although in the month of June before, they did know that Andrews had a mortgage on the property. The policy, when taken out, was kept by Stearns, until after the fire, and was never delivered to Andrews; nor was there any agreement between them in reference to insurance, or any assignment either of the policy or of the claim against the company for the loss, either before or after the fire, except that which is implied in the condition of the mortgage. It does not appear that Andrews approved of the

insurance in this company, or had any knowledge of it until after the loss.

After the fire Andrews gave notice of his claim to the company, but they paid the amount of the loss to Stearns before this action was brought. This payment is claimed by Andrews to have been wrongfully made; and the question is whether Andrews, suing in the name of the plaintiff at law, can also recover the same to his own use and benefit.

The plaintiff relies on the rule that, when a promise is made by one person to procure insurance upon property in which another has some interest, for the benefit of the latter, and then with the intention of performing his promise, obtains a policy of insurance in his own name, the party intended to be benefited will have an equitable lien on the policy and its proceeds which he may enforce against the insurer, or the promisor, or may maintain against the creditor of the latter. This rule and the lien thus created, it is said, will be regarded and enforced both at law and in equity.

In Providence County Bank v. Benson, 24 Pick. 204, a party expressly agreed to obtain insurance, for the benefit of the owner, on a quantity of wool at his mill, then in process of manufacture. He accordingly obtained such insurance in his own name, but as the case found, with the sole purpose and intention of performing his agreement; and before the loss he informed the owner of the wool that he had effected the insurance as agreed. It was decided that the owner had an equitable interest in the policy, which was equivalent to that of an assignee of a chose in action, and was sufficient to enable him to hold the avails against an attaching creditor of the party in whose name the policy was issued. The fact that, in the transaction, there was an intention to comply with the agreement in effecting the insurance, and the fact that the owner was informed of it before the loss, are recognized in the opinion of Dewey, J., as important elements in the decision of the case. In Hazard v. Draper, 7 Allen, 266, such a lien was enforced by suit in equity in a case when, after the loss, the policy was delivered to a third person in trust to collect the insurancemoney, and pay the mortgage debt out of it. In Nichols v. Brybee, 5 R. I. 34, cited by the plaintiff, which was a bill in equity to enforce such an equitable lien, the policy of insurance was in existence at the time the mortgage was made, and conformed in amount to the required insurance. The bill was sustained, but the court found as a fact that it was the intention of the parties that this particular policy should be assigned to the mortgagee, in performance of the agreement to insure. And in Cromwell v. Brooklyn Ins. Co., 44 N. Y. 42, it was said that it must be inferred from the facts in the case, in the absence of anything to the contrary, that the insurance then in question was made in pursuance of the previous agreement to in

sure.

In all the cases found, which will support this claim of the mortgagee to insurance obtained by the mortgagor in his own name, the facts were such as to justify the conclusion, by estoppel or otherwise, that such insurance was obtained by the lat

ter as agent of, or with intent to perform the obligation he had assumed to the former.

It is said that an executory agreement alone will not amount to an equitable assignment of a chose in action, or of property not then in existence; some agreement or delivery after it comes into existence must be shown. Moody v. Wright, 13 Met. 17, 32; Palmer v. Merrill, 6 Cush. 282. A mere promise to pay a debt out of a particular fund, is not an assignment even in equity. There must be an actual and constructive appropriation of the subject-matter in favor of the party to be benefited. Christmas v. Russell, 14 Wall. 70. And in Morn. ington v. Keane, 2 DeG. & J. 291, 317, which was a bill in equity to enforce a charge on real estate, created by a covenant in a separate deed, it was said that an equitable lien is created by covenant only; first, when the covenant refers to particular property, or, second, when property has been acquired with an intention to perform or satisfy the covenant; and this intention must be an actual intention existing in fact.

In the case at bar, the facts agreed do not justify the inference that this policy was obtained with the intention, at the time, to perform the condition in the mortgage. That condition required insurance on the dwelling-house only, in a sum not less than $3,200, for the benefit of the mortgagee, at such offices in Massachusetts as he should approve. This insurance was obtained without his approval or knowledge, more than a year after the mortgage was made, for $2,000 in all, $500 of the same being on the mortgagor's personal property not covered by the mortgage, and only $1,500 on the house. Both mortgagor and mortgagee had an insurable interest in the property, and each had the right to protect himself from loss by his own contract of insurance. So far as these facts go, the inference is that Stearns intended to insure only his own interest in the house as well as in the personal property, and the important element is lacking which is necessary to establish the claim of Andrews.

There is another view of this case which leads to the same result. For, assuming that Andrews has an equitable claim to that part of the policy which covers the house, yet it is one which he can not enforce in a suit at law on the policy in the name of Stearns, the mortgagor, because the latter must have an equal right to recover his share in such an action, and the company would be required to pay over the loss by instalments to different persons, and be subject to two suits for the same cause of action in favor of the same plaintiff. Palmer v. Merrill, 6 Cush. 287; Gibson v. Cook, 20 Pick. 15. Judgment for defendants.

THE following statement of the legal modes of accepting bills in Europe may be of interest: "Denmark and Sweden-Acceptance is expressed by the word 'accept' written on the bill itself, and followed by the signature of the drawee. Netherlands and Portugal-The acceptance must be clearly expressed in the bill itself, and must be written and signed by the acceptor. Russia-The acceptance is expressed by the word accepted' written on the bill itself, followed by the signature of the acceptor. Spain-The acceptance must be written."