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Agents for the company are not authorized to make, the plaintiffs. [If you shall believe from the evidence alter, discharge contracts, or waive forfeitures." Eg- that the payments of the premiums had before that time gleston died on the 5th of January, 1872.

been made to such agents as the company had desigThe defense set up on the trial was, that the policy nated from time to time, and of which and to where was forfeited by the failure of the assured to pay the said Eggleston was given notice by the defendant, and last installment of premium, which fell due on the 11th that no such notice was given to said Eggleston before of November, 1871. The cause was tried by a jury, the time of the non-paid premium fell due, and that as and the only question raised by the bill of exceptions soon as he did thereafter receive such notice he did and brought here for review is, whether the judge tender to the designated agent the premium due, and properly left to the jury the question of fact which was that such failure to pay was caused by the want of such made by the plaintiffs below in answer to the alleged notice, then the policy was not forfeited, and the forfeiture. The case presented on the trial, as shown plaintiffs will be entitled to recover the amount of the by the bill of exceptions, was as follows:

policy, with six per cent interest from sixty days after The plaintiffs proved that the policy of insurance the company was notified of the death of Eggleston, mentioned in the declaration was delivered and the less the amount of any unpaid premiums, with like first premium received thereon by one Stephens, a interest, up to the death of said Eggleston.) If you local agent of the defendant, in Columbus, Mississippi, shall believe from the evidence that the notices before and that E. C. Eggleston, upon whose life said policy given were by letter through the mail, and that the was issued, then and up to his death resided in the im- agent of the company authorized to receive payments mediate vicinity; that soon after issuance of said of the premium mailed to said Eggleston at his postpolicy the agency of said Stephens was revoked and no office such notice within such time as by due course of other agent appointed at that place; that said Eg- mail he would have received it, and within a reasonagleston was notified by defendant to pay the next ble time for Eggleston to make payment, then Egglespremium falling due to Jobnson & Co., their agents ton will be held to have received such notice, and the at Savannah, Georgia, and that he was also notified plaintiffs will not be entitled to recover. The onus or to pay the subsequent premiums to B. G. Humphreys burthen of proof of such notice having been given is & Co.,the defendant's agents at Vicksburg, Mississippi, on the defeudant." The defendant excepted to so much except the one falling due November the 11th, 1871, of said charge as is included in brackets. all the other premiums falling due before the death We have recently, in the case of Life Insurance of said E. C. Eggleston having been paid.

It was

Company v. Norton, 96 U. 8.-, shown that forfeitalso testified by the sons of said E. C. Eggleston ures are not favored in the law, and that courts are and by Goodwin, the cashier of the bank through always prompt to seize hold of any circumstances that which the other payments had been made, that if any indicate an election to waive a forfeiture, or an agreenotice was given by the defendant to said Eggleston ment to do so on which the party has relied and acted. to whom and where the said premium due the 11th Any agreement, declaration, or course of action on the day of November, 1871, should be made, they part of an insurance company which leads a party indid not know it; aud that said Goodwin had the sured honestly to believe that by conforming thereto money to pay the said premium, which would have a forfeiture of his policy will be inourred, followed by been paid had the notice been given; and after said due conformity on his part, will, and ought to, estop premium became due and payable, said Goodwin, for the company from insisting upon the forfeiture, though said Eggleston, telegraphed to Johnson & Co., it might be claimed under the express letter of the Savannah, Georgia, inquiring to whom payment should contract. The company is thereby estopped from enbe made, who replied to telegraph to B. G. Humphreys forcing the forfeiture. The representations, declara& Co., at Vicksburg; that B. G. Humphreys & Co. tions, or acts of an agent, contrary to the terms of the replied to make payment to Baskerville & Yates, sub- policy, of course, will not be sufficient unless sancagents at Macon, Mississippi, who held the payment tioned by the company itself. Insurance Co. v. Mowry, receipt. On December 30th, 1871, a friend of said Eg- 96 U.S.- But where the latter has, by its course of gleston tendered payment of the premium to Basker- action, ratified such declarations, representations or ville & Yates, which they refused unless a certificate acts, the case is very different. of health was furnished; said Eggleston was then sick, In the present case it appe that the company had and died on the 5th of January, 1872. One Williams, discontinued its agency at the place of residence of the a clerk of Baskerville & Yates in their insurance busi- insured soon after the policy was issued, and had given ness, and a witness for defendant, testified that on the him notice by mail, from time to time, as the premium first of November, 1871, he mailed a notice post-paid installments became due, where, and to whom to pay to said Eggleston, addressed to him at Columbus, Mis- them; sometimes at Savannah, several hundred miles, sissippi, to make payment to Baskerville & Yates, and sometimes at Vicksburg, a hundred and fifty mlles, agents at Macon, Mississippi, and that they held the from his residence. Such notice, it would seem, had proper premium receipt. Macon, Mississippi, it was never been omitted prior to the maturity of the last found, is thirty miles from Columbus by railroad. installment. The effect of the judge's charge was,

Upon this evidence the judge charged the jury as that if this was the fact, and if no such notice had follows: "The non-payment of the premium is ad- been given on that occasion, and the failure to pay the mitted, and if uothing more appears from the evidence premium was solely due to the want of such notice, it the plaintiffs will not be entitled to recover. To avoid being ready, and being tendered as soon as notice was the defense, it is insisted by the plaintiffs that the non- given, no forfeiture was incurred. We think the payment was caused by the defendant's not having charge was correct under the oironmstances of this given to the said Eggleston notice of the place where case. The insured had good reason to expect and to payment was required, and, therefore, the fault of the rely on receiving notice to whom and where he should company, and not that of Eggleston or the plaintiffs. pay that installment. It had always been given before; The onus of proving the cause for non-payment is on the office of the company was a thousand miles away;


and they had always directed him to pay to an agent, such forfeiture in the absence of fault that we held, in but to different agents at different times.

the case of Insurance Co. v. Statham, 93 U. S. 24, that Although, as we held in the case of Insurance Com- the insured was entitled to recover the equitable value pany v. Davis, 95 U. S. 425, the legal effect of a policy, of his policy. when nothing appears to the contrary, may be that the In the present case it seems to us that the charge of premium is payable at the domicile of the company, the judge was in substantial conformity to the princiyet it cannot be expected or understood by the parties ples we have laid down. The insured, residing in the that the policy is, in ordinary circumstances, to be State of Mississippi, had always dealt with agents of forfeited for a failure to tender the premium at such the company, located either in his own State, or within domicile, when the insured resides in a distant State some accessible distance. He had originally taken his and has been in the habit, under the company's own policy from, and had paid his first premium to, such direction, to pay an agent there; and has received no an agent; and the company had always, until the last notice that the contrary will be required of him. He premium became due, given bim potice what agent to would have a just right to say that he had been pay to. This was necessary, because there was no misled.

permanent agent in his vicinity. The judge rightly Let us look at the matter as it stands. The business

held that, under these circumstances, he had reasonof life insurance is in the hands of a few large compa- able cause to rely on having such notice. The comnies, who are generally located in our large commercial

pany itself did not expect him to pay at the home cities. Take a company located, like the plaintiff in

office; it had sent a receipt to an agent located within error, in New York, for example. It solicits business

thirty miles of his residence; but he had no knowledge in every State of the Union, where it is represented by of this fact - at least, such was the finding of the its agents, who issue policies and receive premiums.

jury from the evidence. Could such a company get one risk where it now gets

We think there was no error in the charge, and the ten, if it was expected or understood that it was not

judgment of the Circuit Court must be affirmed. to have local agents accessible to the parties insured to whom premiums could be paid, instead of having to

RECENT AMERICAN DECISIONS. pay them at the home office in New York? The universal practice is otherwise. Local agents are em- SUPREME COURT OF WISCONSIN, APRIL 1878.* ployed. The business could not be conducted on its

ANIMALS. present basis without them. Now suppose the local Liability of owner of dog for trespass by dog.-One agent is removed, or ceases to act, without the knowl.

whose dog, while trespassing upon the close of another edge of the policy-holders, and their premiums become person, kills a domestic animal of the owner of the due, and they go to the local office to pay them, and close, is liable to pay full compensation for the whole find no agent to receive them; are these policies to be injury, though he had no previous knowledge of any forfeited? Would the plaintiffs in error, or any other vicious propensity of the dog. Chanot v. Larson. company of good standing, have the courage to say so?

CONTRIBUTORY NEGLIGENCE. We think not. And, why not? Simply because the

Slight contributory negligence will not prevent recovery. policy-holders would have the right to rely on the

-It is the settled law of this State, that "slight negligeneral understanding produced by the previous course

gence" is not a sligbt want of ordinary care, but of business pursued by the company itself, that pay.

merely a want of extraordinary care (Dreher v. Fitchment could be made to a local agent, and that the

burg, 22 Wis. 675, and other cases in this court); and company would have such an agent at hand, or reason

such negligence on plaintiff's part will not prevent a ably accessible. We do not say that this course of business would alter the written contract, or would

recovery for injuries caused by a defective highway.

Griffin v. Town of Willow. amount to a new contract relieving the parties from their obligation to pay the premium to the company,

MUNICIPAL CORPORATION. if they can find no agent to pay to. That obligation

1. Negligence of: defective streets : when unsafety matter remains. But we are dealing with the question of

of law.-There being a depression in one of the travforfeiture for not paying at the very day; and, in

eled streets of a city, the authorities raised one-half reference to that question, it is a good argument in the

in width of the street over the depression, by emmouths of the insured to say: "Your course of busi

bankment some six feet high in the middle and graduness led us to believe that we might pay our premiums ally lessening toward each end; and the side of the at home, and estops you from exacting the penalty of

embankment, next to that half of the street which was forfeiture without giving us reasonable notice to pay

left in its natural state was precipitous and without railelsewhere.” The course of business would not pre- | ing or barrier. Held, that the street was unsafe, as a vent the company, if it saw fit, from discontinuing all matter of law, even though each half was safe by itits agencies, and requiring the payment of premiums

self. Priedeaux v. City of Mineral Point. at its counter in New York. But, without giving

2. Fact that municipality has no means to repair, no reasonable notice of such a change, it could not insist defense to action for injury from unsafe streets.-Proof upon a forfeiture of the policies for want of prompt

in such a case that the defendant municipality has payment caused by their failure to give such notice. In expended all the means at its disposal in repairing its the case of Insurance Co. v. Davis, cited above, the

streets will pot excuse it, every municipality being agent's powers were discontinued by the ocourrence bound, at its peril, to keep its highways in sufficient of the war, of which all persons had notice; and the repair, or to take precautionary means to protect the law of non-intercourse between belligerents prevented

public against danger of insufficient highways. Ib. any payment at all; and the policy became forfeited 3. Contributory negligence by driver of private carand ended without any fault attributable to either of riage imputable to owner. The driver of a private conthe parties. That case, therefore, was entirely different from the present; and it was in consequence of

* From 0. M. Conover, Esq., State Reporter. To appear in 43 Wisconsin Reports.


veyance is the agent of the person in such conveyance, them for effecting a sale of that particular cargo. so tbat his negligence, contributing to the injury com- Barry v. Boninger. plained of by such person as caused by a defective

CORPORATION. highway, will defeat the action. (Houfe v. Fulton, 29

1. Reservation of power to alter charter: authority of Wis. 296, as to this point approved.) Ib.

Legislature.- Where in the original charter of a rail4. Penal actions when civil actions.- Penal actions for such violations of municipal ordinances as are not

road company the Legislature expressly reserved the also misdemeanors are civil actions. (R. S., ch. 155, $

power to alter, repeal or annul the charter at pleasure, 1. Boscobel v. Bugbee, 41 Wis. 59, explained.) Presi

the question whether a proposed amendment of the

charter is wise or consistent with the public interests dent, etc., of Platteville v. Bell.

and with the prosperity of the company, is one which 5. Power of, to regulate hours of closing of saloons.Municipal authorities empowered by charter to regu

by the charter is made to depend upon the wisdom and

discretion of the Legislature, and is not a question to late saloons, make ordinances for the government and

be determined by the courts. This construction of good order of the municipality, and prescribe penal

the terms of the charter is part of the contract, and ties for their violation, may by ordinance require the closing of liquor saloons at a reasonable hour (in this

all parties dealing with the company acquire and hold case 10 o'clock P. M.) Ib.

their rights subject to the reserved power of the Leg.

islature to alter, repeal or annul the charter at its STATUTE OF FRAUDB.

pleasure. And the court cannot presume that the Sale of interest in standing timber sale of interest in

power will be exercised by the Legislature arbitrarily land.-A sale of an interest in standing timber, or of

or unjustly. an interest in a contract of sale of standing timber,

2. Reduction of forces : validity of statute.- In the is a sale of an interest in land; and if by parol and original charter of the Cumberland and Pennsylvania wholly unexecuted, is void under the statute of frauds.

Railroad Company, the Legislature expressly reserved Daniels v. Bailey.

the power to alter, repeal or annul the charter at

pleasure. By the act of 1876, ch. 64, modified by the COURT OF APPEALS, MARYLAND.

act of 1876, ch. 80, the rates of toll authorized to be charged by said company were reduced. Held, that

both acts were constitutional. American Coal Co v. Right of brokers to lien. — Brokers do not usually Consolidated Coal Co. possess the right of general lien, though, like other agents, they may be in a situation to exercise the right of particular lien. A cargo of sugar was imported by

RECENT ENGLISH DECISIONS. S., A. & Co. under letters of credit from the plaintiffs, dated July 27th, 1875, and arrived in Baltimore under

PARTNERSHIP. bills of lading in the name of the plaintiffs, in accord- Advance by way of loan : lender to share in profit and ance with the agreement between the plaintiffs and S.,

loss: Partnership Amendment (Bovill's) Act, 1865 (28 & A. & Co. as contained in the letter of credit. Upon

29 Vict., C. 86), $ 1.- By an agreement made between the arrival of the vessel, S., A. & Co. gave a receipt to M., S., and D., after reciting that M. and S. had agreed the plaintiffs for the sugar specified in the bill of lad

to become partners together in business upon the ing, in which it was stated that they agreed to hold terms and subject to the stipulations with each other the sugar on storage as the property of the plaintiffs,

and with D. thereinafter contained, and reciting the with liberty to sell the same and account to them for 1st section of the Partnership Amendment Act, 1865, the proceeds, until the amount of drafts drawn on S.

and that D. had agreed to lend them 10,0001. for the & B. of London, in pursuance of the letter of credit, purpose of investing the same in the said business, it and accepted by them against the cargo of sugar, was agreed that M. and S. should be partners together should be satisfactorily provided for. The cargo was under the firm of H. and Co. for three years from the sold to McK., N. & Co. of Philadelphia, through the 1st July, 1869; that the capital should consist of the defendants as brokers, but before it was all delivered

said sum of 10,0001., and such further sum as might be S., A. & Co. failed, on the 26th of August. The de- advanced by any of the parties to the agreement, such fendants were then, on the 27th of August, authorized sum of 10,0001. and further advances to bear interest at to deliver the balance of the cargo and to draw for the five per cent per annum; that the said sum of 10,0001. proceeds. Upon the receipt of the money from the was advanced by D. to M. and S. by way of loan purchasers the defendants retained out of it the under the 1st section of the Partnership Amendment amount due them by S., A. & Co. for brokerage in Act, 1865, and should not be considered to render D. a selling other cargoes imported by them and not be- partner in the said business; that yearly accounts longing to the plaintiffs. In an action brought by the current should be remitted to D., and the yearly profit plaintiffs against the defendants to recover the amount or loss divided between D., M., and S. in certain proso retained, it was held, 1st, that the property in the portions; that in case of the death of any of the partsugar was in the plaintiffs under the letter of credit ners, or in case his original capital of 10,0001. should and S., A. & Co.'s trust receipt; 2d, that the prop

be reduced by losse to one-half, D. should have the erty in the sugar so being in the plaintiffs, the defend- option of dissolving the partnership; and that in case ants had no lien upon it for, and could not retain out

of D.'s death his executors should not withdraw bịs of it, the amount due by S., A. & Co. for brokerage capital until the expiration of the contract. The effected by them; 3d, that the only claim the defend- agreement was twice renewed for two successive ants could legally assert against the cargo of sugar or

periods of three years each in 1872 and 1875. M. and its proceeds was for the amount of brokerage due 8. filed a liquidation petition in 1876, and D. sought to

prove in the liquidation for 67171., being the amount * To appear in 46 Maryland Reports.

of further advances made by him in addition to the


10,0001. originally advanced. Held (affirming the de- ceedings in the Federal courts. A certificate of discision of Bacon, C. J.), that the agreement constituted charge in bankruptcy, signed by the judge and attested him a dormant partner, and that he could not prove by the clerk under the seal of the court, is not only in competition with the creditors of the firm. Ct. sufficiently authenticated, but is precisely the means App., January 24, 1878. Ex parte Delhasse. Re Mege- by which the bankrupt is to prove and to have the vand, 38 L. T. Rep. (N. S.) 106.

benefit of his discharge. Sup. Ct., Louisiana. Miller v. Chandler, 17 Nat. Bankr. Reg. 251.

JURISDICTION. Acceptance and receipt: acceptance by agent.-Defendant verbally agreed to purcbase a specific quan

When State court has : mortgage.- A State court has tity of barley from the plaintiff, on the terms that the jurisdiction of an action brought by an assignee bulk should be well dressed and equal to sample. The

in bankruptcy to foreclose a mortgage belonging to plaintiff accordingly delivered an installment of the

the estate. To entitle a mortgagee to have a receiver barley to defendant, whose foreman received it and

appointed, it must clearly appear that the mortgaged gave a receipt marked “not equal to sample.” Next premises are an inadequate security for the debt, and morning defendant himself inspected the bulk, and

that the mortgagor, or other person personally liable wrote immediately to plaintiff refusing to accept on

for the debt, is insolvent. Sup. Ct., 4th Dept., New the ground that the barley was not well dressed nor

York. Burlingame v. Parce et al., 17 Nat. Bankr. Reg.

246. equal to sample. Held (affirming the decision of the

PREFERENCE. Common Pleas Division), in an action by plaintiff for goods sold and delivered to defendant, that there was

Surrender of proceeds of, can only be made to as. evidence for the jury of an acceptance sufficient to

signee.-P. & D., being insolvent, made an assignment satisfy section 17 of the Statute of Frauds. Ct. App.,

of all their copartnership property to "A," their larg

est creditor, upon which they were adjudicated bankFebruary 15, 1878. Kibble v. Gough, 38 L. T. Rep. (N.

rupt. At the first meeting of creditors. A, having S.) 204.

sold out the partnership goods and collected its notes

and accounts in part, appeared before the register and RECENT BANKRUPTCY DECISIONS.

offered to surrender to him a roll of uncounted bills AGENCY.

as the net proceeds of the fraudulent preference, to When bankrupt agent: misappropriation. The bank

prove his debt and vote for assignee. Held, that the rupt, prior to the commencement of the proceedings,

surrender of.a fraudulent preference can only be made purchased goods of one Q., and gave therefor four

to the assigneo, and pending his appointment and notes, secured by a mortgage on the goods, under an

qualification the proof of debt must be postponed, agreement to sell the goods and apply the proceeds to and the offer of the preferred creditor to vote for the payment of the notes, even before maturity, if assignee be denied. U. S. Dist. Ct., E. D. North sales were brisk enough. He sold part of the goods,

Carolina. In re Parham & Dunn, 17 Nat. Bankr. Reg. and appropriated the proceeds to his own use, and the


TRADESMAN. remainder came into the hands of the assignee. Held, that the bankrupt was in effect an agent for the sale

Who is, within meaning of bankrupt law: firm: manuof the goods; that the goods remaining unsold should facturing corporation.— The word “tradesman,” as go to Q., and that he should be allowed to prove as an

used in section 5110 of the U.S. Revised Statutes, unsecured creditor for the goods sold by the bankrupt

refers to a smaller class of merchants. The members and misappropriated, on surrendering the notes and

of a firm which owns a farm and carries on business in mortgage. U. 8. Circ. Ct., Indiana. Overman v. connection therewith, but who have not carried on Quick, 17 Nat. Baukr. Reg. 235.

any business of merchandising or held themselves out

to the community in that capacity, are not "tradesCONTRACT. Filing petition in bankruptcy: breach of contract for

men” within the meaning of the act. Nor will their employment: damages.- The filing of a petition in

connection with a manufacturing corporation as stock

holders and officers constitute them merchants or bankruptcy by a corporation is, ipso facto, such a breach of a contract of employment as will give the

traders where such corporation is not itself in bankemployee a right of proof for damages which he may

ruptcy. U.S. Circ. Ct., E. D. Missouri. In re Stickhave sustained thereby agaiust the estate of the

ney, 17 Nat. Bankr. Reg. 305. corporation. It is no objection to a proof that the court or a jury may find difficulty in assessing dam

UNITED STATES SUPREME COURT ABSTRACT. ages for a breach of an absolutely broken contract; 80 also as to contingent debts, where the contingency happens before the close of the bankruptcy. Where

Holder of, as collateral security, liable for unpaid balthe contract of employment was to run for ten

ance thereon.-An assignee of corporate stock who has years, and the parties bound themselves in the

caused it to be transferred to himself on the books of sum of ten thousand dollars by way of liquidated

the company, and holds it as collateral security for a damages, and it appears that in a prior contract the

debt due from his assiguor, is liable for unpaid balances sum had been called both a penalty and liquidated

thereon to the company, or to the creditors of the comdamages: Held, that it was a penalty. U. S. Dist. Ct., pany after it has become bankrupt. Judgment of U. Massachusetts. Ex parte Pollard ; In re Elliott Felting S. Circuit Court, N. D. Illinois, affirmed. Pullman, Mills, 17 Nat. Bankr. Reg. 228.

plaintiff in error, v. Upton, assignee. Opiniou by EVIDENCE.

Strong, J. Authentication of records : certificate of discharge in bankruptcy.—The act of Congress of 1790, in relation Printing records of court taxed to losing party.-The to authentication of records, does not relate to pro- provision of the act of Congress, passed March 3, 1877,



as to the expense of printing the records of the Su- terial, and no neglect of duty or misconduct is estabpreme Court, is still in force, and the cost of such lished against the trustee. Decree of Supreme Court printing paid by the government must, by law, be of District of Columbia reversed. McPherson v. Cox. taxed to the losing party. Indianapolis & St. Louis R. Opinion by Miller, J. Waite, C. J., dissented. R. Co. v. Vance. Opinion by Waite, C. J.

2. Contract as to payment of lawyer for services when EVIDENCE.

not champertous nor void under statute of frauds.- A Parol testimony to vary written instrument: showing

contract to pay a specific sum of money to a lawyer absolute deed to be a mortguge.-The rule which ex

for his services in a suit concerning real estate out of cludes parol testimony to contradict or vary a written

the proceeds of said land when sold by the client, if instrument has reference to the language used by the recovered, is not champertous, because he neither pays parties. That cannot be qualified or varied from its

costs nor accepts the land or any part of it as his comnatural import, but must speak for itself. The rule

pensation. Nor is it void under the statute of frauds does not forbid an inquiry into the objects and pur

because not in writing, for it may be performed within poses of the parties in executing and receiving the in

the year. Ib. strument. Thus it may be shown that a deed was

3. Lien of attorney on securities in his hands for made to defraud creditors, or to give a preference, or

services.-The land being recovered in the action in to secure a loan, or for any other object not apparent

which the attorney was employed, and sold by the on its face. These purposes and objects are always

owner for $38,000, for which a bond was taken and left considered by a court of equity, and constitute the

with the attorney, he has a lien on the bond for his principal grounds of its jurisdiction, which is exer

fee, both by express contract and by reason of the cised to give effect to them, or to restrain them so as

lien which the law gives an attorney on the papers of to prevent fraud or oppression and to promote justice.

his client left in his hands, for any balance duo him Accordingly a deed absolute in form, and recorded as

for services. Ib. such, way be shown to be a mortgage by parol testi

4. Attorney also trustee: lien of, on trust securities.mony. Decree of Supreme Court of District of Colum

Where, under the circumstances mentioned, the client bia reversed. Peugh, uppellant, v. Davis.

brings a bill in chancery to remove the attorney from

his position as trustee in a deed to secure the purSTATUTE OF FRAUDS.

chase-money and for a delivery of the bond, it is the Part delivery, what constitutes : when question for jury: duty of the court to decide on the existence and liquor and labels.—Defendant, while in New York, or- amount of the lien set up by the attorney in his dered over $4,000 worth of spirituous liquor from plain answer, and to decree the delivery of the bond on tiffs, to be sent to him in Michigan. At the time, and payment of amount of the lien, if one be found to as part of the agreement for the sale of the liquors, exist. Ib. plaintiffs agreed to furnish certain labels, which were Practice: failure to file cross-bill. Though the decopyrighted and furnished exclusively by them, and fendant, by neglecting to file a cross-bill, can have no which added value to the liquor when attached to the decree for affirmative relief, it is proper that the packages containing it, without extra charge. The la- court should establish the conditions on which the bels were delivered to defendant in New York and the delivery of the bond to complainant, according to the liquors shipped to him in Michigan. By the laws of prayer of the bill, should be made, and require it to the latter State, the sale of spirituous liquor is forbid- be done on that condition being complied with. Ib. den, and contracts founded on such sale are void. Held, that it was for the jury to determine whether the labels constituted a part of the goods sold to de

COURT OF APPEALS ABSTRACT. fendant so as to render a delivery of them in New

APPEAL. York a sufficient delivery within the statute of frauds, and thus render the contract a New York one and not

What is not appealable order to this court : discretion :

opening judgment by default.-When a defendant asks a Michigan one, and notes given for the purchase-price

to have a judgment by default opened, the sufficienoy of the liquors valid, and a verdiot for plaintiff on such notes would not be set aside. Judgment of U. S. Cir

of the excuse given by him for suffering the default, cuit Court, E. D. Michigan, affirmed. Garfield, plain

and the propriety of granting him the relief which he tiff in error, v. Paris. Opinion by Clifford, J.

asks are matters within the discretion of the court below, and the order is not appealable to this court.

It is not rendered appealable by section 190, sub-divisWhen court will not remove trustee: mutual ill-will

ions 2 and 3 of the new Code, which excludes from rebetween trustee and cestui que trust.- Complainant

view here, orders made during the pendency of the brought her bill in chancery to have defendant

action. Besides the case is expressly provided for by removed from his place as trustee in a deed made to

section 1337 of the new Code, which declares that an secure to her the payment of a bond for $38,000, which

appeal from an order made after judgment, brings up was in defendant's possession, and which she prayed

questions not resting in discretion. Appeal dismissed. might be delivered to her. Defendant asserted a lien

Lawrence v. Farley. Opinion by Rapallo, J. on the bond for $5,000 for legal services rendered to

[Decided March 26, 1878.) complainant. Held, (1) that while in a case where the trustee has a discretionary power over the rights

CONTRACT. of the cestui que trust, and has duties to discharge Mutuality : statute of frauds : sale of personal propwhich necessarily bring him into personal intercourse erty. Where there is a parol agreement to sell perwith the latter, a state of mutual ill-will or hostile sonal property over $50 in value, and an agreement in feeling may justify a court in removing the trustee, writing signed by the purchaser only and delivered by it is not sufficient cause where no such intercourse is him to the seller, there is a binding agreement which required and the duties are merely formal and minis- can be enforced against the purchaser, and he cannot


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