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the plaintiffs. [If you shall believe from the evidence that the payments of the premiums had before that time been made to such agents as the company had designated from time to time, and of which and to where said Eggleston was given notice by the defendant, and that no such notice was given to said Eggleston before the time of the non-paid premium fell due, and that as soon as he did thereafter receive such notice he did tender to the designated agent the premium due, and that such failure to pay was caused by the want of such notice, then the policy was not forfeited, and the plaintiffs will be entitled to recover the amount of the policy, with six per cent interest from sixty days after the company was notified of the death of Eggleston, less the amount of any unpaid premiums, with like interest, up to the death of said Eggleston.] If you shall believe from the evidence that the notices before given were by letter through the mail, and that the agent of the company authorized to receive payments of the premium mailed to said Eggleston at his postoffice such notice within such time as by due course of mail he would have received it, and within a reasonable time for Eggleston to make payment, then Eggleston will be held to have received such notice, and the plaintiffs will not be entitled to recover. The onus or burthen of proof of such notice having been given is on the defendant." The defendant excepted to so much of said charge as is included in brackets.
Agents for the company are not authorized to make, alter, discharge contracts, or waive forfeitures." Eggleston died on the 5th of January, 1872.
The defense set up on the trial was, that the policy was forfeited by the failure of the assured to pay the last installment of premium, which fell due on the 11th of November, 1871. The cause was tried by a jury, and the only question raised by the bill of exceptions and brought here for review is, whether the judge properly left to the jury the question of fact which was made by the plaintiffs below in answer to the alleged forfeiture. The case presented on the trial, as shown by the bill of exceptions, was as follows:
The plaintiffs proved that the policy of insurance mentioned in the declaration was delivered and the first premium received thereon by one Stephens, a local agent of the defendant, in Columbus, Mississippi, and that E. C. Eggleston, upon whose life said policy was issued, then and up to his death resided in the immediate vicinity; that soon after issuance of said policy the agency of said Stephens was revoked and no other agent appointed at that place; that said Eggleston was notified by defendant to pay the next premium falling due to Johnson & Co., their agents at Savannah, Georgia, and that he was also notified to pay the subsequent premiums to B. G. Humphreys & Co., the defendant's agents at Vicksburg, Mississippi, except the one falling due November the 11th, 1871, all the other premiums falling due before the death of said E. C. Eggleston having been paid. It was also testified by the sons of said E. C. Eggleston and by Goodwin, the cashier of the bank through which the other payments had been made, that if any notice was given by the defendant to said Eggleston to whom and where the said premium due the 11th day of November, 1871, should be made, they did not know it; and that said Goodwin had the money to pay the said premium, which would have been paid had the notice been given; and after said premium became due and payable, said Goodwin, for said Eggleston, telegraphed to Johnson & Co., at Savannah, Georgia, inquiring to whom payment should be made, who replied to telegraph to B. G. Humphreys & Co., at Vicksburg; that B. G. Humphreys & Co. replied to make payment to Baskerville & Yates, sub-policy, of course, will not be sufficient unless sancagents at Macon, Mississippi, who held the payment receipt. On December 30th, 1871, a friend of said Eggleston tendered payment of the premium to Baskerville & Yates, which they refused unless a certificate of health was furnished; said Eggleston was then sick, and died on the 5th of January, 1872. One Williams, a clerk of Baskerville & Yates in their insurance business, and a witness for defendant, testified that on the first of November, 1871, he mailed a notice post-paid to said Eggleston, addressed to him at Columbus, Mississippi, to make payment to Baskerville & Yates, agents at Macon, Mississippi, and that they held the proper premium receipt. Macon, Mississippi, it was found, is thirty miles from Columbus by railroad.
We have recently, in the case of Life Insurance Company v. Norton, 96 U. S.-, shown that forfeitures are not favored in the law, and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will be incurred, followed by due conformity on his part, will, and ought to, estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture. The representations, declara. tions, or acts of an agent, contrary to the terms of the
tioned by the company itself. Insurance Co. v. Mowry, 96 U. S.—. But where the latter has, by its course of action, ratified such declarations, representations or acts, the case is very different.
In the present case it appeared that the company had discontinued its agency at the place of residence of the insured soon after the policy was issued, and had given him notice by mail, from time to time, as the premium installments became due, where, and to whom to pay them; sometimes at Savannah, several hundred miles, and sometimes at Vicksburg, a hundred and fifty miles, from his residence. Such notice, it would seem, had never been omitted prior to the maturity of the last installment. The effect of the judge's charge was, that if this was the fact, and if no such notice had been given on that occasion, and the failure to pay the premium was solely due to the want of such notice, it being ready, and being tendered as soon as notice was given, no forfeiture was incurred. We think the charge was correct under the circumstances of this case. The insured had good reason to expect and to rely on receiving notice to whom and where he should pay that installment. It had always been given before; the office of the company was a thousand miles away;
Upon this evidence the judge charged the jury as follows: "The non-payment of the premium is admitted, and if nothing more appears from the evidence the plaintiffs will not be entitled to recover. To avoid the defense, it is insisted by the plaintiffs that the nonpayment was caused by the defendant's not having given to the said Eggleston notice of the place where payment was required, and, therefore, the fault of the company, and not that of Eggleston or the plaintiffs. The onus of proving the cause for non-payment is on
and they had always directed him to pay to an agent, but to different agents at different times.
Although, as we held in the case of Insurance Company v. Davis, 95 U. S. 425, the legal effect of a policy, when nothing appears to the contrary, may be that the premium is payable at the domicile of the company, yet it cannot be expected or understood by the parties that the policy is, in ordinary circumstances, to be forfeited for a failure to tender the premium at such domicile, when the insured resides in a distant State and has been in the habit, under the company's own direction, to pay an agent there; and has received no notice that the contrary will be required of him. He would have a just right to say that he had been misled.
Let us look at the matter as it stands. The business of life insurance is in the hands of a few large companies, who are generally located in our large commercial cities. Take a company located, like the plaintiff in error, in New York, for example. It solicits business in every State of the Union, where it is represented by its agents, who issue policies and receive premiums. Could such a company get one risk where it now gets ten, if it was expected or understood that it was not to have local agents accessible to the parties insured to whom premiums could be paid, instead of having to pay them at the home office in New York? The universal practice is otherwise. Local agents are employed. The business could not be conducted on its present basis without them. Now suppose the local agent is removed, or ceases to act, without the knowledge of the policy-holders, and their premiums become due, and they go to the local office to pay them, and find no agent to receive them; are these policies to be forfeited? Would the plaintiffs in error, or any other company of good standing, have the courage to say so? We think not. And, why not? Simply because the policy-holders would have the right to rely on the general understanding produced by the previous course of business pursued by the company itself, that payment could be made to a local agent, and that the company would have such an agent at hand, or reasonably accessible. We do not say that this course of business would alter the written contract, or would amount to a new contract relieving the parties from their obligation to pay the premium to the company, if they can find no agent to pay to. That obligation remains. But we are dealing with the question of forfeiture for not paying at the very day; and, in reference to that question, it is a good argument in the mouths of the insured to say: "Your course of business led us to believe that we might pay our premiums at home, and estops you from exacting the penalty of forfeiture without giving us reasonable notice to pay elsewhere." The course of business would not prevent the company, if it saw fit, from discontinuing all its agencies, and requiring the payment of premiums at its counter in New York. But, without giving reasonable notice of such a change, it could not insist upon a forfeiture of the policies for want of prompt payment caused by their failure to give such notice. In the case of Insurance Co. v. Davis, cited above, the agent's powers were discontinued by the occurrence of the war, of which all persons had notice; and the law of non-intercourse between belligerents prevented any payment at all; and the policy became forfeited and ended without any fault attributable to either of the parties. That case, therefore, was entirely different from the present; and it was in consequence of
such forfeiture in the absence of fault that we held, in the case of Insurance Co. v. Statham, 93 U. S. 24, that the insured was entitled to recover the equitable value of his policy.
In the present case it seems to us that the charge of the judge was in substantial conformity to the principles we have laid down. The insured, residing in the State of Mississippi, had always dealt with agents of the company, located either in his own State, or within some accessible distance. He had originally taken his policy from, and had paid his first premium to, such an agent; and the company had always, until the last premium became due, given him notice what agent to pay to. This was necessary, because there was no permanent agent in his vicinity. The judge rightly held that, under these circumstances, he had reasonable cause to rely on having such notice. The company itself did not expect him to pay at the home office; it had sent a receipt to an agent located within thirty miles of his residence; but he had no knowledge of this fact at least, such was the finding of the jury from the evidence.
We think there was no error in the charge, and the judgment of the Circuit Court must be affirmed.
RECENT AMERICAN DECISIONS.
SUPREME COURT OF WISCONSIN, APRIL, 1878.*
Liability of owner of dog for trespass by dog.-One whose dog, while trespassing upon the close of another person, kills a domestic animal of the owner of the close, is liable to pay full compensation for the whole injury, though he had no previous knowledge of any vicious propensity of the dog. Chanot v. Larson.
Slight contributory negligence will not prevent recovery. -It is the settled law of this State, that "slight negligence" is not a slight want of ordinary care, but merely a want of extraordinary care (Dreher v. Fitchburg, 22 Wis. 675, and other cases in this court); and such negligence on plaintiff's part will not prevent a recovery for injuries caused by a defective highway. Griffin v. Town of Willow.
1. Negligence of: defective streets: when unsafety matter of law.-There being a depression in one of the traveled streets of a city, the authorities raised one-half in width of the street over the depression, by embankment some six feet high in the middle and gradually lessening toward each end; and the side of the embankment, next to that half of the street which was left in its natural state was precipitous and without railing or barrier. Held, that the street was unsafe, as a matter of law, even though each half was safe by itself. Priedeaux v. City of Mineral Point.
2. Fact that municipality has no means to repair, no defense to action for injury from unsafe streets.-Proof in such a case that the defendant municipality has expended all the means at its disposal in repairing its streets will not excuse it, every municipality being bound, at its peril, to keep its highways in sufficient repair, or to take precautionary means to protect the public against danger of insufficient highways. Ib.
3. Contributory negligence by driver of private carriage imputable to owner.-The driver of a private con
From O. M. Conover, Esq., State Reporter. To appear in 43 Wisconsin Reports.
veyance is the agent of the person in such conveyance, so that his negligence, contributing to the injury complained of by such person as caused by a defective highway, will defeat the action. (Houfe v. Fulton, 29 Wis. 296, as to this point approved.) Ib.
4. Penal actions when civil actions.- Penal actions for such violations of municipal ordinances as are not also misdemeanors are civil actions. (R. S., ch. 155, § 1. Boscobel v. Bugbee, 41 Wis. 59, explained.) President, etc., of Platteville v. Bell.
5. Power of, to regulate hours of closing of saloons.— Municipal authorities empowered by charter to regulate saloons, make ordinances for the government and good order of the municipality, and prescribe penalties for their violation, may by ordinance require the closing of liquor saloons at a reasonable hour (in this case 10 o'clock P. M.) Ib.
STATUTE OF FRAUDS.
Sale of interest in standing timber sale of interest in land.-A sale of an interest in standing timber, or of an interest in a contract of sale of standing timber, is a sale of an interest in land; and if by parol and wholly unexecuted, is void under the statute of frauds. Daniels v. Bailey.
COURT OF APPEALS, MARYLAND.*
Right of brokers to lien. - Brokers do not usually 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 S., A. & Co. under letters of credit from the plaintiffs' dated July 27th, 1875, and arrived in Baltimore under bills of lading in the name of the plaintiffs, in accordance with the agreement between the plaintiffs and S., A. & Co. as contained in the letter of credit. Upon the arrival of the vessel, S., A. & Co. gave a receipt to the plaintiffs for the sugar specified in the bill of lading, in which it was stated that they agreed to hold the sugar on storage as the property of the plaintiffs, with liberty to sell the same and account to them for the proceeds, until the amount of drafts drawn on S. & B. of London, in pursuance of the letter of credit, and accepted by them against the cargo of sugar, should be satisfactorily provided for. The cargo was sold to McK., N. & Co. of Philadelphia, through the defendants as brokers, but before it was all delivered S., A. & Co. failed, on the 26th of August. The defendants were then, on the 27th of August, authorized to deliver the balance of the cargo and to draw for the proceeds. Upon the receipt of the money from the purchasers the defendants retained out of it the amount due them by S., A. & Co. for brokerage in selling other cargoes imported by them and not belonging to the plaintiffs. In an action brought by the plaintiffs against the defendants to recover the amount so retained, it was held, 1st, that the property in the sugar was in the plaintiffs under the letter of credit and S., A. & Co.'s trust receipt; 2d, that the property in the sugar so being in the plaintiffs, the defendants had no lien upon it for, and could not retain out of it, the amount due by S., A. & Co. for brokerage effected by them; 3d, that the only claim the defendants could legally assert against the cargo of sugar or its proceeds was for the amount of brokerage due
*To appear in 46 Maryland Reports.
them for effecting a sale of that particular cargo. Barry v. Boninger.
1. Reservation of power to alter charter: authority of Legislature.- Where in the original charter of a railroad company the Legislature expressly reserved the power to alter, repeal or annul the charter at pleasure, the question whether a proposed amendment of the charter is wise or consistent with the public interests and with the prosperity of the company, is one which by the charter is made to depend upon the wisdom and discretion of the Legislature, and is not a question to be determined by the courts. This construction of the terms of the charter is part of the contract, and all parties dealing with the company acquire and hold their rights subject to the reserved power of the Legislature to alter, repeal or annul the charter at its pleasure. And the court cannot presume that the power will be exercised by the Legislature arbitrarily or unjustly.
2. Reduction of forces: validity of statute.- In the original charter of the Cumberland and Pennsylvania Railroad Company, the Legislature expressly reserved the power to alter, repeal or annul the charter at pleasure. By the act of 1876, ch. 64, modified by the 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. Consolidated Coal Co.
RECENT ENGLISH DECISIONS.
Advance by way of loan: lender to share in profit and loss: Partnership Amendment (Bovill's) Act, 1865 (28 & 29 Vict., c. 86), § 1.- By an agreement made between M., S., and D., after reciting that M. and S. had agreed to become partners together in business upon the terms and subject to the stipulations with each other and with D. thereinafter contained, and reciting the 1st section of the Partnership Amendment Act, 1865, and that D. had agreed to lend them 10,000l. for the purpose of investing the same in the said business, it was agreed that M. and S. should be partners together under the firm of H. and Co. for three years from the 1st July, 1869; that the capital should consist of the said sum of 10,000l., and such further sum as might be advanced by any of the parties to the agreement, such sum of 10,000l. and further advances to bear interest at five per cent per annum; that the said sum of 10,000l. was advanced by D. to M. and S. by way of loan under the 1st section of the Partnership Amendment Act, 1865, and should not be considered to render D. a partner in the said business; that yearly accounts current should be remitted to D., and the yearly profit or loss divided between D., M., and S. in certain proportions; that in case of the death of any of the partners, or in case his original capital of 10,000l. should be reduced by losses to one-half, D. should have the option of dissolving the partnership; and that in case of D.'s death his executors should not withdraw his The capital until the expiration of the contract. agreement was twice renewed for two successive periods of three years each in 1872 and 1875. M. and S. filed a liquidation petition in 1876, and D. sought to prove in the liquidation for 67171., being the amount of further advances made by him in addition to the
10,000l. originally advanced. Held (affirming the decision of Bacon, C. J.), that the agreement constituted him a dormant partner, and that he could not prove in competition with the creditors of the firm. Ct. App., January 24, 1878. Ex parte Delhasse. Re Megevand, 38 L. T. Rep. (N. S.) 106.
STATUTE OF FRAUDS.
Acceptance and receipt: acceptance by agent.-Defendant verbally agreed to purchase a specific quantity of barley from the plaintiff, on the terms that the bulk should be well dressed and equal to sample. The plaintiff accordingly delivered an installment of the barley to defendant, whose foreman received it and gave a receipt marked “not equal to sample." Next morning defendant himself inspected the bulk, and wrote immediately to plaintiff refusing to accept on the ground that the barley was not well dressed nor equal to sample. Held (affirming the decision of the Common Pleas Division), in an action by plaintiff for goods sold and delivered to defendant, that there was evidence for the jury of an acceptance sufficient to satisfy section 17 of the Statute of Frauds. Ct. App., February 15, 1878. Kibble v. Gough, 38 L. T. Rep. (N. S.) 204.
RECENT BANKRUPTCY DECISIONS.
When bankrupt agent: misappropriation.—The bankrupt, prior to the commencement of the proceedings, purchased goods of one Q., and gave therefor four notes, secured by a mortgage on the goods, under an agreement to sell the goods and apply the proceeds to the payment of the notes, even before maturity, if sales were brisk enough. He sold part of the goods, and appropriated the proceeds to his own use, and the remainder came into the hands of the assignee. Held, that the bankrupt was in effect an agent for the sale of the goods; that the goods remaining unsold should go to Q., and that he should be allowed to prove as an unsecured creditor for the goods sold by the bankrupt and misappropriated, on surrendering the notes and mortgage. U. S. Circ. Ct., Indiana. Overman v. Quick, 17 Nat. Baukr. Reg. 235.
Filing petition in bankruptcy: breach of contract for employment: damages.-The filing of a petition in bankruptcy by a corporation is, ipso facto, such a breach of a contract of employment as will give the employee a right of proof for damages which he may have sustained thereby against the estate of the corporation. It is no objection to a proof that the court or a jury may find difficulty in assessing damages for a breach of an absolutely broken contract; so also as to contingent debts, where the contingency happens before the close of the bankruptcy. Where the contract of employment was to run for ten years, and the parties bound themselves in the sum of ten thousand dollars by way of liquidated damages, and it appears that in a prior contract the sum had been called both a penalty and liquidated damages: Held, that it was a penalty. U. S. Dist. Ct., Massachusetts. Ex parte Pollard; In re Elliott Felting Mills, 17 Nat. Bankr. Reg. 228.
Authentication of records: certificate of discharge in bankruptcy.-The act of Congress of 1790, in relation to authentication of records, does not relate to pro
ceedings in the Federal courts. A certificate of discharge in bankruptcy, signed by the judge and attested by the clerk under the seal of the court, is not only sufficiently authenticated, but is precisely the means by which the bankrupt is to prove and to have the benefit of his discharge. Sup. Ct., Louisiana. Miller v. Chandler, 17 Nat. Bankr. Reg. 251.
When State court has: mortgage.-A State court has jurisdiction of an action brought by an assignee in bankruptcy to foreclose a mortgage belonging to the estate. To entitle a mortgagee to have a receiver appointed, it must clearly appear that the mortgaged premises are an inadequate security for the debt, and that the mortgagor, or other person personally liable for the debt, is insolvent. Sup. Ct., 4th Dept., New York. Burlingame v. Parce et al., 17 Nat. Bankr. Reg. 246.
Surrender of proceeds of, can only be made to assignee.-P. & D., being insolvent, made an assignment of all their copartnership property to "A," their largest creditor, upon which they were adjudicated bankrupt. At the first meeting of creditors. A, having sold out the partnership goods and collected its notes and accounts in part, appeared before the register and offered to surrender to him a roll of uncounted bills as the net proceeds of the fraudulent preference, to prove his debt and vote for assignee. Held, that the surrender of a fraudulent preference can only be made to the assignee, and pending his appointment and qualification the proof of debt must be postponed, and the offer of the preferred creditor to vote for assignee be denied. U. S. Dist. Ct., E. D. North Carolina. In re Parham & Dunn, 17 Nat. Bankr. Reg. 300.
Who is, within meaning of bankrupt law: firm: manufacturing corporation.-The word "tradesman," as used in section 5110 of the U. S. Revised Statutes, refers to a smaller class of merchants. The members of a firm which owns a farm and carries on business in connection therewith, but who have not carried on any business of merchandising or held themselves out to the community in that capacity, are not “tradeswithin the meaning of the act. Nor will their connection with a manufacturing corporation as stockholders and officers constitute them merchants or traders where such corporation is not itself in bankruptcy. U.S. Circ. Ct., E. D. Missouri. In re Stickney, 17 Nat. Bankr. Reg. 305.
UNITED STATES SUPREME COURT ABSTRACT. CORPORATE STOCK.
Holder of, as collateral security, liable for unpaid balance thereon.-An assignee of corporate stock who has caused it to be transferred to himself on the books of the company, and holds it as collateral security for a debt due from his assignor, is liable for unpaid balances thereon to the company, or to the creditors of the company after it has become bankrupt. Judgment of U. S. Circuit Court, N. D. Illinois, affirmed. Pullman, plaintiff in error, v. Upton, assignee. Opinion by Strong, J.
Printing records of court taxed to losing party.-The provision of the act of Congress, passed March 3, 1877,
as to the expense of printing the records of the Supreme Court, is still in force, and the cost of such printing paid by the government must, by law, be taxed to the losing party. Indianapolis & St. Louis R. R. Co. v. Vance. Opinion by Waite, C. J.
Parol testimony to vary written instrument: showing absolute deed to be a mortgage.-The rule which excludes parol testimony to contradict or vary a written instrument has reference to the language used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the objects and purposes of the parties in executing and receiving the instrument. Thus it may be shown that a deed was made to defraud creditors, or to give a preference, or to secure a loan, or for any other object not apparent on its face. These purposes and objects are always considered by a court of equity, and constitute the principal grounds of its jurisdiction, which is exercised to give effect to them, or to restrain them so as to prevent fraud or oppression and to promote justice. Accordingly a deed absolute in form, and recorded as such, may be shown to be a mortgage by parol testimony. Decree of Supreme Court of District of Columbia reversed. Peugh, appellant, v. Davis.
STATUTE OF FRAUDS.
Part delivery, what constitutes: when question for jury: liquor and labels.-Defendant, while in New York, ordered over $4,000 worth of spirituous liquor from plain tiffs, to be sent to him in Michigan. At the time, and as part of the agreement for the sale of the liquors, plaintiffs agreed to furnish certain labels, which were copyrighted and furnished exclusively by them, and which added value to the liquor when attached to the packages containing it, without extra charge. The labels were delivered to defendant in New York and the liquors shipped to him in Michigan. By the laws of the latter State, the sale of spirituous liquor is forbidden, 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 defendant so as to render a delivery of them in New York a sufficient delivery within the statute of frauds, and thus render the contract a New York one and not a Michigan one, and notes given for the purchase-price of the liquors valid, and a verdict for plaintiff on such notes would not be set aside. Judgment of U. S. Circuit Court, E. D. Michigan, affirmed. Garfield, plaintiff in error, v. Paris. Opinion by Clifford, J.
When court will not remove trustee: mutual ill-will between trustee and cestui que trust.- Complainant brought her bill in chancery to have defendant removed from his place as trustee in a deed made to secure to her the payment of a bond for $38,000, which was in defendant's possession, and which she prayed might be delivered to her. Defendant asserted a lien on the bond for $5,000 for legal services rendered to complainant. Held, (1) that while in a case where the trustee has a discretionary power over the rights of the cestui que trust, and has duties to discharge which necessarily bring him into personal intercourse with the latter, a state of mutual ill-will or hostile feeling may justify a court in removing the trustee, it is not sufficient cause where no such intercourse is required and the duties are merely formal and minis
terial, and no neglect of duty or misconduct is established against the trustee. Decree of Supreme Court of District of Columbia reversed. McPherson v. Cox. Opinion by Miller, J. Waite, C. J., dissented.
2. Contract as to payment of lawyer for services when not champertous nor void under statute of frauds.— A contract to pay a specific sum of money to a lawyer for his services in a suit concerning real estate out of
the proceeds of said land when sold by the client, if recovered, is not champertous, because he neither pays costs nor accepts the land or any part of it as his compensation. Nor is it void under the statute of frauds because not in writing, for it may be performed within the year. Ib.
3. Lien of attorney on securities in his hands for services.-The land being recovered in the action in which the attorney was employed, and sold by the owner for $38,000, for which a bond was taken and left with the attorney, he has a lien on the bond for his fee, both by express contract and by reason of the lien which the law gives an attorney on the papers of his client left in his hands, for any balance due him for services. Ib.
4. Attorney also trustee: lien of, on trust securities.Where, under the circumstances mentioned, the client brings a bill in chancery to remove the attorney from his position as trustee in a deed to secure the purchase-money and for a delivery of the bond, it is the duty of the court to decide on the existence and amount of the lien set up by the attorney in his answer, and to decree the delivery of the bond on payment of amount of the lien, if one be found to exist. Ib.
Practice: failure to file cross-bill.-Though the defendant, by neglecting to file a cross-bill, can have no decree for affirmative relief, it is proper that the court should establish the conditions on which the delivery of the bond to complainant, according to the prayer of the bill, should be made, and require it to be done on that condition being complied with. Ib.
COURT OF APPEALS ABSTRACT.
What is not appealable order to this court: discretion: opening judgment by default.-When a defendant asks to have a judgment by default opened, the sufficiency of the excuse given by him for suffering the default, and the propriety of granting him the relief which he 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-divisions 2 and 3 of the new Code, which excludes from review here, orders made during the pendency of the action. Besides the case is expressly provided for by section 1337 of the new Code, which declares that an appeal from an order made after judgment, brings up questions not resting in discretion. Appeal dismissed. Lawrence v. Farley. Opinion by Rapallo, J. [Decided March 26, 1878.]
Mutuality: statute of frauds: sale of personal property. Where there is a parol agreement to sell personal property over $50 in value, and an agreement in writing signed by the purchaser only and delivered by him to the seller, there is a binding agreement which can be enforced against the purchaser, and he cannot