may be briefly stated. We have first the Crimes Act of 1860 (P. L. 382), the 116th section of which prescribes and punishes the offense of embezzlement by any person "being an officer, director, or member of any bank, or other body corporate or public company." Then we have the act of May 1, 1861 (P. L. 515), entitled “A supplement to an act to establish a system of free banking in Pennsylvania, and to secure the public against loss from insolvent banks, approved 31st March, 1860," which also prescribes and punishes embezzlement by bank officers. Lastly, there is the act of 12th of June, 1878 (P. L. 196), which amends the aforesaid 116th section of the act of 1860, by substituting a new section in its place, and imposing a different punishment. This leaves the acts of 1861 and 1878 as the only ones which could possibly support the indictment. It was urged, however, and with much force, that the act of 1861 was only intended to apply to banks organized under the free bauking law, of which it forms a part; and that as to the act of 1878, the offense charged in the indictment was committed prior to its passage. This fact was formally conceded upon the argument, and while we might not be able for such reason to grant relief upon habeas corpus, it furnishes a conclusive reason why, upon a trial in the court below, the Commonwealth could derive no aid from the act of

1878.

We are spared further comment upon these acts for the reason that they have no application to National banks. Neither of them refers to National banks in terms, and we must presume that when the Legislature used the words "any bank," that it referred to banks created under and by virtue of the laws of Pennsylvania. The National banks are the creatures of another sovereignty. They were created and are now regulated by the acts of Congress. When our acts of 1860 and 1861 were passed there were no National banks, nor even a law to authorize their creation. When the act of 1878 was passed, Congress had already defined and punished the offense of embezzlement by the officers of such banks. There was therefore no reason why the State, even if it had the power, should legislate upon the subject. Such legislation could only produce uncertainty and confusion, as well as a conflict of jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punishment, an enormity which no court would permit if it had the power to prevent it.

An act of Assembly, prescribing the manner in which the business of all banks shall be conducted, or limiting the number of directors thereof, could not by implication be extended to National banks, 1-r the reason that the affairs of such banks are exclusively under the control of Congress. Much less can we, by mere implication, extend penal statutes, like those of 1861 and 1878, to such institutions.

The offense for which the relator is held is not indictable either at common law or under the statutes of Pennsylvania. We therefore order him to be discharged.

ciously, willfully and fraudulently making false entries in the books, reports and statements of the said bank. James Ryon, for plaintiff in error.

A. W. Schalck, district attorney, Geo. R. Kaercher and Lin Bartholomew, for defendant in error.

PAXSON, J. The second assignment denies the jurisdiction. The plaintiff in error was convicted upon an indictment charging him as receiving teller of the First National Bank of Mahanoy City, with fraudulently making false entries in the books, reports, and statements of said bank, with intent to injure and defraud the said bank, and we are asked to reverse the judgment upon the ground that the offense charged having been committed by an officer of a National bank, it is not the subject of an indictment in a State court. Commonwealth ex rel. Torrey v. Ketner, reported above, was relied upon to sustain this position. Torrey was indicted as cashier of a National bank with embezzling the funds of the bank, and was discharged upon habeas corpus, for the reason that the offense was not indictable at common law, and our statutes defining and punishing the offense do not apply to National banks. Here the indictment charges an offense which was a crime at common law. In Commonwealth v. Beamish, 31 P. F. S. 339, it was decided that the fraudulent alteration of a book, known as a tax duplicate, was forgery at common law. It is plain, under this authority, that the plaintiff in error could have been indicted for forgery. The indictment here is laid under the statute, and does not charge the offense of forgery in the technical manner required by the strict rules of the common law, but, as in Commonwealth v. Beamish, is good under our Criminal Procedure Act. That the act of Assembly does not call it forgery makes no difference. It is the same offense.

The first assignment alleges error in another case, in which the plaintiff in error was convicted and sentenced. We cannot, upon this writ of error, reverse a judgment in another case though against the same party. Nor is it material, as the record shows the plaintiff has served out the term of imprisonment imposed by the court.

Judgment affirmed.

MORTGAGE OF SUBSEQUENTLY ACQUIRED PERSONAL PROPERTY.

ENGLISH HIGH COURT OF JUSTICE, COMMON PLEAS DIVISION, MAY 14, 1880.

LAZARUS V. ANDRADE, 43 L. T. Rep. (N. S.) 30.

The grantor of a bill of sale assigned to the grantee the whole of the stock-in-trade, chattels, goods, and effects in certain specified premises, and also the stock-intrade, goods, chattels, and effects which might at any time during the continuance of the security be brought into the premises either in addition to or on substitution for the stock-in-trade, goods, chattels, and effects therein at the time of the making of the bill of sale. Held, by Lopes, J. (in further consideration), that the property in stock-in-trade brought upon the premises subsequently to the making of the bill of sale passed by it to the grantee.

THIS

HIS was an interpleader issue tried before Lopes, J. The plaintiff was the holder of a bill of sale given by one Phillips, whereby he assigned to the plaintiff "all and singular the stock-in-trade, chattels, goods, and effects now being in, upon, or about the messuage or dwelling-house, warehouse and premises, situate and being No. 62 Wilson street, Finsbury, in the county of Middlesex, tho particulars whereof are set forth in the schedule hereunder written. And also the stock-in-trade, goods, chattels, and effects which shall or may at any time or times during the continuance of this security be brought into the aforesaid messuage or dwelling-house, warehouse and premises,

or be appropriated to the use thereof, either in addition to or in substitution for stock-in-trade, goods, chattels, and effects now being therein or any of them."

The schedule specified various quantities of ostrich and other feathers and some furniture.

The defendant, an executive creditor, seized the property on Phillips's premises, including stock which had been brought there in substitution for that which was there at the date of the making of the bill of sale.

LOPES, J. This bill of sale purported to assign to the plaintiff all the stock-in-trade, chattels, goods and effects in the messuage, particulars whereof were set forth in a schedule thereunder written. And also the stock-in-trade, goods, chattels, and effects which should or might at any time or times during the continuance of the security be brought into the messuage, warehouse and premises, or be appropriated to the use thereof, either in addition to or in substitution for stock-in-trade, chattels, and effects now being therein, or any of them. The sheriff had seized stock-in-trade not being contained in the said schedule, nor in the premises when the bill of sale was executed, but other stock-in-trade not comprised in the schedule, which had been brought into the premises by the grantor subsequently to the date of the bill of sale. Such lastmentioned property had been brought into the premises in addition to or in substitution for stock-in-trade in the premises when the bill of sale was executed. It was contended for the defendant (the execution creditor) that the goods brought into the premises subsequently to the execution of the bill of sale did not pass to the plaintiff, and that the title of the defendant in respect of them was preferable to the title of the plaintiff (the claimant). Holroyd v. Marshall, 7 L. T. Rep. (N. S.) 172; and Leatham v. Amor, 38 L. T. Rep. (N. S.) 785, were relied upon by the plaintiff, and Belding v. Read (ubi sup.) by the defendant. principle deducible from these decisions is, that property to be after acquired, if described so as to be capable of being identified, may be, not only in equity but also at law, the subject-matter of a valid assignment for value. The contract must be one which a court of equity would specifically enforce. Belding v. Read, 3 H. & C. 955, was decided before the Judicature Acts, and is distinguishable from the present case. The ground of that decision was that the description, "all other the personal estate and effects whatsoever now being or hereafter to be on the premises or elsewhere in the United Kingdom," was so vague that it did not entitle the claimant to institute a suit for specific performance of the contract. Neither the character of the property nor its whereabouts was indicated, and there was nothing to earmark it. In this case the property is to be brought into the premises, or to be appropriated to the use thereof, either in addition to or in substitution for property then on the premises. I think the assignment sufficiently specific, the property in question having become specific by being brought on to the premises in addition to or in substitution for property mentioned in the schedule. The case of Leatham v. Amor (ubi sup.) is a strong authority in favor of this view.

The

Judgment for the plaintiff.

NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATION-RAILROAD COMPANY RIGHTS OF

STOCKHOLDER-FORECLOSURE OF MORTGAGE-FORMA

TION OF NEW COMPANY. -An action was carried on to foreclose a mortgage upon the railroad and franchises of the T. & W. railroad company, and the mortgaged property sold thereunder to a committee representing the holders of the mortgage funds. Α

portion of the stockholders of the company disputed the validity of the sale and of the bonds, and appointed a committee to represent the stockholders. An arrangement was made between the two committees whereby the opposition to the foreclosure sale was withdrawn and the stockholders of the company were awarded the right to subscribe for the stock of a new company to be organized by the bondholders' committee called the W. company, upon the terms set forth in a circular mentioned. By that circular the stockholders named were to have the option for thirty days from its date upon the payment of ten dollars per share in installments and the surrender of their old stock to join in the W. corporation. After thirty days the right to do this was to cease; the railroad property was to pass at once to the new corporation. This company was organized. Plaintiff in his complaint set up that the W. company, the defendant, obtained the property of the T. & W. company; that plaintiff was an owner of shares in the latter company; that he had no knowledge of the agreement between the committees until long after the expiration of the thirty days named, and that after he had notice and before the payment of the last assessment he tendered to the chairman of the purchasing committee of the bondholders the amount of the assessment upon his shares, and offered to surrender them, and demanded stock in the W. corporation, which demand was not complied with. Held, that no action for damage would lie by plaintiff against the W. corporation. If the foreclosure sale was invalid plaintiff might by proper proceeding attack it, but if he claimed rights under the arrangement made for the benefit of the stockholders of the T. & W. company between the committees, he must show that he had complied with the terms of the arrangement. Judgment affirmed. Thornton, appellant, v. Wabash Railway Co. et al. Opinion by Rapallo, J. [Decided Sept. 21, 1880.]

NEGOTIABLE INSTRUMENT-PAYMENT OF DEBT BY CHECK LOSS OF CHECK-CERTIFIED CHECK-PAYMENT ON FORGED INDORSEMENT — RIGHTS AND LIA

BILITIES OF PARTIES.-Where a party pays his own debt by a check to the order of his creditor or of a party nominated by his creditor, he can be called upon to pay it again in case the creditor loses or is defrauded of the check and it is paid to the finder or fraudulent holder on a forged indorsement. And the case is not varied by the circumstance that the check was certified after delivery and before payment, it not being shown that such certification was procured by the creditor to whom the check was given or by the payee of the check. If the check had been lost and the finder had procured it to be certified and forged the indorsement, the certification would not be binding upon the bank nor affect the rights of the parties after it had been surrendered. It is only in case the true owner of the check has received the certification that recourse can be had upon it against the certifying bank notwithstanding the subsequent loss of the check and the payment upon the forged indorsement. In this case where plaintiff received a check to the order of H. from the defendants on the M. bank, and this check was certified by the M. bank and afterward paid upon a forged indorsement, the amount of the check having been charged by defendant against plaintiff and by them settled, held, that defendant was liable to plaintiffs for the amount of the check, it not appearing that the certification was obtained by plaintiffs or their agent, or that the claim of defendants upon the M. bank for the check had been barred by the statute of limitation. It is well settled that a bank paying upon a forged indorsement must bear the loss and cannot charge to a depositor. Judgment affirmed. Thompson et al. v. Bank of British North America, appellants. Opinion by Rapallo, J. [Decided Sept. 21, 1880.]

RECORDING ACT — ASSIGNMENT OF MORTGAGE-UNAUTHORIZED DISCHARGE BY ASSIGNOR AFTER ASSIGNMENT CONTENTS OF ASSIGNMENT AND RECORDESTOPPEL-SILENCE OF ASSIGNEE AFTER KNOWLEDGE

OF UNAUTHORIZED DISCHARGE. (1) Decker, the owner of laud, mortgaged the same to Vaughn; Vaughn assigned the mortgage to Viele. Both the mortgage and assignment were recorded. Thereafter Vaughn, without authority, discharged this mortgage. Ludlum, who acquired title to the land from Decker, knowing that the discharge was without right, executed a mortgage to Hubbard, who had like knowledge. Hubbard assigned this mortgage to Judson. Held, that the discharge of the first mortgage was invalid and that mortgage was prior to the second. The record of an assignment of a mortgage is not constructive notice to those claiming under the mortgagor but is to those claiming under the mortgagee. Campbell v. Vedder, 3 Keyes, 174; Gillig v. Maas, 28 N. Y. 199; Purdy v. Huntington, 42id. 334; Green v. Warnick, 64 id. 220. But a recorded assignment is notice that the assignor has no right to discharge the mortgage. Belden v. Meeker, 47 N. Y. 308; Vanderkemp v. Shelton, 11 Paige, 29. The record of the assignment is notice to others than those acquiring rights in the mortgage itself. It shows to all title out of the assignor and incapacity to discharge. An assignment which contains the name of the mortgagor and of the assignor, and the date of the mortgage, and a covenant as to the amount due, is sufficiently certain when there is no other mortgage to the assignor bearing the same date. There need not be a description of the lands to make it the duty of the clerk to record. It is not the duty of the clerk to note the record of an assignment in the margin of a mortgage. Moore v. Stevens, 50 Barb. 442, was not rightly decided. Judson got no greater rights than Hubbard, by the assignment. The doctrine is fully established that the assignee of a mortgage takes not only subject to the equities existing between the original parties, but also subject to the latent equities which exist in favor of third persons against the mortgagor. Bush v. Lathrop, 22 N. Y. 535; Schaeffer v. Reilly, 50 id. 61; Trustees of Union College v. Wheeler, 61 id 88; Green v. Warnick, 64 id. 220. In this case Judge Earl states the rule with accuracy in the terse phrase of Lord Thurlow in Davis v. Austin, 1 Ves. 247, that " a purchaser of a chose in action must abide by the case of the person from whom he buys." The case was not affected by the fact that the mortgage given to Hubbard was without consideration and never had inception until its assignment to Judson, who was a purchaser. (2) Viele knew of the discharge of Vaughn but took no steps to correct the record or to foreclose his mortgage. Held, that he was not estopped from asserting his mortgage against Judson. In the case of Cornish v. Abington, 4 Hurl. & Norm. 550, which was followed by the court below, the silence of one party, knowing facts, operated as a fraud and actually, itself, misled the other party. In this case all the facts was upon the record and Judson was not misled by the silence of Viele. A proper search of the record would have shown the invalidity of the assignment. Judgment of General and Special Term reversed and new trial ordered. Bryan, appellant, v. Judson. Opinion by Finch, J.

judgment operates as an estoppel as to that question in any subsequent suit between the same parties, whether the second suit be upon the same or some other cause of action. Hopkins v. Lee, 6 Wheat. 109; Campbell v. Cross, 39 Ind. 155-158; Bank of the U. S. v. Beverly, 1 How. 134, 135; Davis v. Brown, 94 U. S. 423. So, when an issue is made in a case and decided, whether with or without trial, the judgment is conclusive between the same parties in any subsequent action for the same cause, and as to all questions which were or might have been raised upon the first trial. Stockton v. Ford, 18 How. 418; Mallony v. Horan, 49 N. Y. 111. But where a suit is tried and determined between parties, the mere fact that in that suit a question might have been raised, tried, and determined, does not prevent the raising of such question in a suit upon a different cause of action. Cromwell v. County of Sac, 94 U. S. 356; Davis v. Brown, id. 423-428; Russell v. Rau, id. 602; Nims v. Vaughn, 40 Mich. 356-360; Jacobson v. Miller, 41 id. 90-92. In this case A began a suit in Iowa against B, to obtain his possession and quiet his title to certain lands standing in A's name. Pending this suit A conveyed a portion of the lands to C, who intervened as co-plaintiff, and asked that this portion might be set off to her. The case was tried and submitted. Before decision A was adjudicated a bankrupt, and his assignee was substituted as plaintiff, and the lands still standing in A's name were set off to his assignee, but no question was raised as to the validity of the conveyance from A to C. Subsequently A's assignee filed a bill against C to have the conveyance set aside as a fraud upon A's creditors. Held, that the proceedings in Iowa were not an estoppel. District, E. D. Michigan, June 14, 1880. Radford v. Folsom. Opinion by Brown, D. J.

PATENT INVENTION IN FORM OF A BOOK -MUNICIPAL CORPORATION LIABLE FOR INFRINGEMENT. —(1) A bond and coupon register, in the form of a book, with a page or pages spaced for each bond and its coupons of any series of coupon bonds, and with the spaces numbered and designated to show what bonds and coupons they are for, while any of them are outstanding, and for receiving them for safe-keeping as vouchers, or memoranda, when any of them are taken up or paid, held to be a legal subject for a patent. It is not a proper subject for copyright, as although the plan is the same for registers for different bonds of a series, and for different series of bonds, the registers are not copies of one another, and the right to multiply copies would afford no protection at all. A copyright is a right to copy merely, as the word imports, and covers only the multiplication of copies. Perris v. Hexamer, 99 U. S. 674; Baker v. Selden, S. C. U. S., Oct. 7, 1879, 20 Alb. L. J. 168. There is no difference because the contrivance is in the form of a book, although books are commonly copyrighted. Hawes v. Washburn, 5 O. G. 491. (2) A city is liable in its corporate capacity for the infringement of a patent. Circuit, S. D. New York, June 15, 1880. Munson v. Mayor of New York. Opinion by Wheeler, D. J.

PATENT LICENSE-BREACH OF COVENANT DOES NOT FORFEIT. A breach of covenant by the licensee does not per se work a forfeiture of a patent license. A few patent cases beginning with Brooks v. Stolley, 3 McLean, 523, hold otherwise. But Hartell v. Tilghman, 99 U. S. 547, overrules these. Until put an end to in a proper way the contract still exists. It cannot be treated as ended, as a legal consequence of a failure to pay royalties. To this effect are the authorities, even before the case of Hartell v. Tilghman. See Wilson v. Sandford, 10 How. 99; Hartshorn v. Day, 19 id. 211; Goodyear v. Union R. Co., 4 Blatchf. 63; Blanchard v. Sprague, 1 Cliff. 288; Merserole v. Union Paper Collar Co., 6 Blatchf. 356-7. Circuit, Massachusetts, Opinion by Lowell, C. J.

July 24, 1880.

White v. Lee.

PENNSYLVANIA SUPREME COURT ABSTRACT.

LUNATIC- -DEED OF, WHEN AVOIDED RATIFICATION - WHEN CONTRACT HELD VALID. It is a general rule that a grantor in a deed may avoid his conveyance by proof that he was non compos mentis at the time of its execution. Bensell v. Chancellor, 5 Whart. 371; 2 Kent's Com. 451; Gibson v. Loper, 6 Gray, 279. Like the deed of an infant, a lunatic's deed may be ratified and confirmed. Where there is no evidence of ratification after restoration to reason, it is impossible, upon legal principles, that the estate passed to the grantee in the deed. An insane person is incapable of making a valid deed for he wants the consenting mind. In Moulton v. Camroux, 2 Exch. 487, an action to recover money paid for annuities, it was held that when a person of apparently sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and said property has been paid for and enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterward be set aside, either by the alleged lunatic or those who represent him. A like doctrine prevailed in Beals v. Lee, 10 Barr, 56. The decision in Lancaster Nat. Bank v. Moore, 28 P. F. S. 407, rests on the same principle there was neither fraud nor knowledge of the insanity. Without inconsistency, in Moore v. Hershey, 36 Leg. Int. 412, it was ruled that it is competent in an action by an indorser of a note made by a lunatic, for the lunatic to defend, either by showing that the indorser had knowledge of the lunacy, or that the note was originally obtained fraudulently, or without proper consideration. Paxson, J., said: "I know of no case in which it has been held that a lunatic, when sued upon his contract, may not show want of consideration." After speaking of the rule which had been urged in favor of the plaintiff, he adds: "We place our ruling upon the broad ground that the principle of commercial law above referred to does not apply to the case of commercial paper made by a madman." In Elliott v. Ince, De G. M. & G. 475 (487), it is said that Moulton v. Camroux was called a decision of necessity, and it is suggested that the same principles might apply to sales of land or mortgages. But in this country the rule is not universally extended to sales of personalty, and is not applied to conveyances of real estate. Crawford v. Scovell. Opinion by Trunkey, J. [Decided March 22, 1880.]

EMINENT DOMAIN. - A provision of statute that compensation shall be made for damages to owners of land upon which a spring or stream of water is situated, by reason of the permanent appropriation of the same under the power of eminent domain, held to apply to an artificial water-course of such long continuance "that the memory of man runneth not to the contrary." Such a stream, for all practical purposes, is a natural water-course prescriptively, and therefore legally it is so. The right to it could be no better were it natural. As was said by Gibson, C. J., in Seibert v. Levan, 8 Barr, 383: "Whilst the grantor was lord of the whole, he might assign a permanent channel to the stream, and as regards himself and those who claim

under him, impress it with any character he should see proper. There is no particular sanctity in the natural bed of a stream, which is perpetually changing its course from accidental causes. And in speaking of the rule, that water shall flow ubi currere solebat et consuevit, he says it applies rather to the duty of returning it than to the channel through which it flows. And so in Sutclife v. Booth, 32 L. J. Q. B. 136, it was held per Wightman, J., that a water-course, though artificial, may have been originally made under such circumstances, and have been so used as to give all the rights that the riparian proprietors would have had had it been a natural stream. Of like import is the case of Nuttall v. Bracewell, L. R., 2 Exchq. 1, in which the chancellor says: "I see no reason why the law applicable to ordinary running streams should not be applicable to such a stream as this, for it is a natural flow or stream of water, though flowing in an artificial channel." So, also, on a similar footing ho puts the case where two adjoining riparian owners should by agreement so alter or divert a stream that it shall run in two channels instead of one. In such case he holds that a grantor of land on the new stream would have all the rights of a riparian owner. See, also, Stockport Waterworks Co. v. Potter, 32 L. J. Q. B. 136; City of Reading v. Althouse. Opinion by Gordon, J.

[Decided March 22, 1880.]

MASSACHUSETTS

SUPREME JUDICIAL
COURT ABSTRACT.
JULY, 1880.

CONFLICT OF LAW - JURISDICTION AS TO CLAIMS FOR MONEYS STOLEN FROM MAILS AND RECOVERED - TRUST DEED OF PROPERTY STOLEN.- Plaintiff executed a deed to defendant, Burt, who was postmaster at Boston, conveying certain real and personal property in trust, to apply the proceeds to pay all claims growing out of money and property stolen by the plaintiff from letters in the Boston post-office, and return any balance remaining to the grantor. It appeared that all the property was the proceeds of money and property stolen by plaintiff from the mails. By the United States statutes (U. S. R. S., §§ 4050, 4058), "all moneys taken from the mails of United States by robbery, theft or otherwise, which come into the possession or custody of any of the agents of the post-office department, or any other officers of the United States, or any other person, shall be paid to the order of the postmaster-general, to be kept by him as other moneys of the post-office department to and for the use and benefit of the rightful owner, to be paid whenever satisfactory proof thereof shall be made," etc. Held, that the trust in the deed could not be enforced. By the provisions referred to the postmaster-general has the exclusive right to the custody of money or other property stolen from the mails and which comes into the possession of any officer of the United States or other person, and the exclusive jurisdiction to determine who are the rightful owners and to distribute it among them. No court and no individual by an agreement with the thief can take away this right or defeat this jurisdiction. The case is not altered by the fact that the deed did not convey the identical property or money stolen from the mails. When plaintiff's property was transferred to Burt the jurisdiction of the postmaster-general attached, and this court has no right to determine who is entitled to the property. Laws v. Burt. Opinion by Morton, J.

CRIMINAL LAW - FORGERY MATERIAL ALTERATION CONSTITUTES. -The material alteration of a genuine written instrument is forgery. Accordingly where defendant was indicted for forgery of a certain receipt and it was shown that he had merely added

certain words and figures to a genuine receipt so as to increase the amount, held, that there was no variance. The crime of forgery at common law is defined to be the fraudulent making or alteration of a written instrument to the prejudice of another's right. 4 Bl. Com. 247. It is not necessary to the offense that the whole instrument should bo fictitious. A fraudulent insertion of additional words, or an alteration in a material part of a true document, by which another may be defrauded, is a forgery, and is well described as such. The Gen. Stats., ch. 162, § 1; imposes punishment upon any one who falsely makes, alters, forges or counterfeits certain written instruments therein named. When this statute was passed, it had been settled by the law of England under similar statutes, that a forgery of the whole instrument and a material alteration of it were not distinct offenses, and that the latter act was well charged in criminal proceedings as a forgery of the whole. There are several cases in which the English rule has been followed by the courts of this country, but none in which it appears to have been departed from. See Commonwealth v. Wood, 10 Gray, 478; Commonwealth v. Butterick, 100 Mass. 12; State v. Flye, 26 Me. 312; State v. Floyd, 5 Strobh. 58; State v. Weaver, 13 Ired. 491; State v. Maxwell, 47 Iowa, 454; State v. Marvels, 2 Harring. (Del.) 527. Commonwealth of Massachusetts v. Boutwell. Opinion by Colt, J.

STATUTE OF FRAUDS - CONTRACT INVALID BY, CAN ONLY BE AVOIDED BY PARTIES TO-MARINE INSUR

The oral

ANCE INSURABLE INTEREST. - Machado, who had by a verbal contract agreed to purchase a vessel for $11,000, payable on the execution of a proper bill of sale, no part of the money being then paid, caused the vessel to be insured. Shortly after the bill of sale was executed to a third person in trust for Machado, and a part of the purchase-money paid. In an action upon the policy for a loss thereafter occurring, it was set up in defense that Machado had not, at the time of the insurance, an insurable interest in the vessel, the contract for its sale to him not being valid under the statute of frauds, and being incapable of enforcement. Held, that the defense would not avail. contract to purchase was not void or illegal by reason of the statute of frauds. Indeed, the statute presupposes an existing lawful contract; it affects the remedy only as between the parties, and not the validity of the contract itself; and, where the contract has actually been performed, even as between the parties themselves, it stands unaffected by the statute. It is therefore to be "treated as a valid subsisting contract when it comes in question between other parties for purposes other than a recovery upon it." Townsend v. Hargraves, 118 Mass. 325. Machado had, under his oral agreement, an interest in the vessel, and would have suffered a loss by her injury or destruction. Eastern Railroad v. Relief Ins. Co., 98 Mass. 420. Amsink v. American Insurance Co. Opinion by Endicott, J.

USAGE-AS TO SALE OF TOBACCO BY WEIGHT at TIME OF PACKING INSTEAD OF AT THAT OF SALE-ONE WITNESS MAY PROVE USAGE. —(1) Where tobacco was sold by sample and by weight, without more specific agreement, held, that evidence of a general usage was admissible to show that the weight was to be computed as previously ascertained at the time of packing and marked on the cases, and not by the actual weight at the time of the sale. Bottomley v. Forbes, 6 Scott, 866; Barry v. Bennett, 7 Metc. 354; Miller v. Stevens, 100 Mass. 518. (2) Notwithstanding the dictum in Boardman v. Spooner, 13 Allen, 353, 359, there can be no doubt, at the present day, that the circumstance that but one witness testifies to a usage is important only as bearing upon the credibility and satisfactoriness of his testimony in point of fact, and does not affect its com

petency or its sufficiency as matter of law. Parrott v. Thacher, 9 Pick. 426; Vail v. Rice, 5 N. Y. 155; Partridge v. Forsyth, 29 Ala. 200; Robinson v. United States, 13 Wall. 363. Jones v. Hoey. Opinion by Gray, C. J.

RECENT ENGLISH DECISIONS.

AGENCY-FRAUD OF AGENT, LIABILITY OF UNINCORPORATED SOCIETY FOR.- By the rules of an unincorporated building society the directors were authorized to borrow money for the purposes of the society, but the total amount borrowed was at no time to exceed a certain limited amount. The plaintiffs lent 100l. to the society, paying it in the ordinary course to the treasurer. At the time of the loan the amount authorized to be borrowed by the directors had been largely exceeded. The treasurer having embezzled the money, both the society and the directors denied their liability. The jury having found that the treasurer had been held out both by the directors and by tho society as a person authorized to receive the money, held, that the society as well as the directors were equally liable for the frauds committed by him in the course of his employment, and therefore both were liable to repay to the plaintiffs the amount advanced. Held, also, that the society were liable, although at the time the plaintiffs advanced the money the amount the directors were authorized by the rules to borrow had been largely exceeded. Barwick v. Joint Stock Bank, L.R., 2 Exch. 259; Mackay v. Commercial Bank of New Brunswick, L. R., 5 P. C. 394. C. P. Div., April 24, 1880. Charles v. Brunswick Permanent Building Society. Opinion by Coleridge, C. J., 42 L. T. Rep. (N. S.) 741.

NOTICE

WHEN NOTICE OF MORTGAGE TO SOLICITOR NOT NOTICE TO CLIENT EQUITABLE INTEREST.- A solicitor, who was the sole trustee of certain settled funds, advanced them to the tenant for life, and acted as his solicitor, on his purchasing therewith land, which was conveyed to the tenant for life, in his own name, in fee simple. There was no power under the settlement to invest the trust funds in the purchase of land. The land was subsequently mortgaged by the tenant for life, who received and appropriated the money advanced to C., the trustee of the settlement acting as solicitor for both mortgagor and mortgagee, and the mortgage containing absolute covenants for title in fee by the mortgagor. The land was subsequently mortgaged to several persons, subject to the prior mortgage or mortgages, but without notice of the trust. Held, that the circumstances were such as to repel the construction or imputation of notice to the solicitor-trustee being notice to C., and that he was entitled to his mortgage for the money intended to be thereby secured. Held, also (following Lewis v. Maddocks, 17 Ves. 48), that the interest of the person beneficially entitled in remainder under the settlement was an equitable estate or interest, that as such it was different from a mere equity, as distinguished in Phillips v. Phillips, 5 L. T. Rep. (N. S.) 655; 4 D. F. & J. 208, and following the last-named case, that being prior in date to the equitable interests of the subsequent mortgagees, it prevailed over them, notwithstanding they were purchasers for value without notice of the trust. Ch. Div., April 27, 1880. Cave v. Cave. Opinion by Fry, J., 42 L. T. Rep. (N. S.) 730.