transfer and issuing a new certificate in accordance with it, the defendant is guilty of negligence which renders it liable to the estate for the stock or its value in any form of action. When a transfer of its stock is presented to a corporation, it is bound at its peril to see that it is a genuine transfer by one who has the power of disposition over the stock. Sewell v. Boston Water Power Co., 4 Allen, 277; Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241; Pratt v. Taunton Copper Co., 123 id. 110. If it issues a new certificate upon a forged or unauthorized transfer, the real owner retains his property in the stock, and the corporation may also be liable to a bona fide holder of the new certificate. But when a transfer, by one who has the full power to transfer, is presented, it has the right to act upon it, and it is not its duty to inquire into the purposes of the parties or to investigate the question whether the transaction is in good faith or is fraudulent. Rand, as executor, had the full power of disposing of this stock; there is nothing in the will restricting his general authority as executor as to it; he had the power and right to sell it or to pledge it for the purposes of the estate. The defendant took care to inform itself of the authority of Rand, and knew the relation of heir and legatee which Dillon sustained toward the estate. We do not think it was bound to go further and ascertain at its peril whether the transaction between Rand and Dillon was in fraud of the estate. Hutchins v. State Bank, 12 Metc. 421. Crocker v. Old Colony R. Co. Opinion by Morton,

C. J.

[Decided July, 1884.]

INSOLVENCY-HOLDER OF COLLATERAL SECURITY— PROOF OF CLAIM.-Where the creditor of the insolvent estate of a deceased person holds a mortgage or other collateral security for his debt, which he received from his debtor, he cannot be admitted to prove his debt except for the balance which may remain after deducting the value of the security (which value is first to be ascertained by sale or appraisal), unless he will surrender the security to go into the common fund for the payment of creditors. Amory v. Francis, 16 Mass. 308; Middlesex Bank v. Minot, 4 Metc. 325; Savage v. Winchester, 15 Gray, 453; Haverhill Association v. Cronin, 4 Allen, 141. But as this rule does not apply where the collateral security is furnished by a third person not primarily responsible for the debt, because if the security is first applied to the reduction of the debt there is eo instanti created a new debt of equal amount in favor of the surety whose property is thus expended, the claimant deems that it has here no proper application. The security in question was certainly furnished by the debtor; but the claimant's contention is that as it here appears that Seekell, previously to conveying in mortgage to the plaintiff, had made a quit-claim deed of the premises to Foster, reserving to himself and wife a life estate therein, although the record title was still in him, he had no right thus to furnish security to the claimant, and it must be dealt with as if it had been furnished by Foster. A proceeding to which Foster is not a party does not afford the means of determining whether as between her and Seekell the latter had a right to make this mortgage and furnish the security, nor whether the application to the reduction of this debt would or would not immediately create a new debt equal in amount thereto from the estate of Seekell to her. As the security was not furnished to the plaintiff by Foster, it has made no contract and is under no obligation to her, and it should avail itself of the security received from Seekel toward the satisfaction of its debt, or by a proper assignment and transfer of it to the administrator of Seekell's estate enable him to assert, as against Foster, the right of Seekell to do that

which he did. It is only in this mode that, as between the other creditors of Seekell and Foster, it can be determined whether he had such a right. The result to which we have arrived does not conflict with the decision in Wilson v. Bryant, 134 Mass. 291. Bristol Co. Savings Bank v. Woodward. Opinion by Devens, J. [Decided July, 1884.]

LIMITATIONS-NEW PROMISE-LETTER.-The general rules of law applicable to this case are well settled in this Commonwealth. As the plaintiff's original cause of action accrued more than six years before his suit was commenced, it is incumbent upon him, in answer to the defense of the statute of limitations, to prove a new promise in writing, either absolute or conditional, by the defendant within six years. Pub. Stats., ch. 197, § 15; Bangs v. Hall, 2 Pick. 368; Gardner v. Tudor, 8 id. 206; Bailey v. Crane, 21 id. 323; Penniman v. Rotch, 3 Metc. 216; Roscoe v. Hale, 7 Gray, 274; Weston v. Hodgkins, 136 Mass. 326, cited. The defendant in bis letter does not deny or question the plaintiff's debt; by fair implication he admits it. But the letter does not contain any new promise to pay the debt. The plain object of the letter was not to make a new promise, but to refuse to make a new promise by giving a note as requested by the plaintiff. The only plausible ground for contending that the letter contains a new promise is founded upon the last sentence. Construing it in connection with the other facts of the letter, it cannot reasonably or by fair implication be inferred that the defendant intended by it to make a new promise or create a new obligation. The fact to be proved by the plaintiff is a new promise, and we are of opinion that the letter is insufficient for this purpose. Krebs v. Olmstead. Opinion by Morton, C. J. [Decided Sept., 1884.]

SHIP AND SHIPPING-GENERAL AVERAGE-FAILURE TO MAKE ADJUSTMENT OF LOSS-FIRE EXTINGUISHED BY MUNICIPAL AUTHORITY.-The gist of the action is negligence in delivering the cargo without an adjustment of the loss as a general average loss, and without taking security for the payment of the contributive shares. The fundamental question is, was this a general average loss? Although the steamship was at her wharf, the maritime adventure was not at an end; the ship was still bound to the cargo for its safe delivery, and the cotton, on account of which the suit has been brought, was undischarged. It must be considered that it is now established that damage to unburnt portions of the cargo, caused by water intentionally used to extinguish a fire in a ship, is of the nature of a general average loss. Whitecross Wire Co. v.Savill, 8 Q. B D. 653; Nelson v. Belmont, 21 N. Y. 36; Nimick v. Holmes, 25 Penn. St. 366. The defense is that the fire was extinguished, not by the master or by any person in charge of the steamship or her cargo, but by the chief engineer of the fire department of New Bedford under his authority to extinguish fires within the city, and that it was necessary to do what he did, not only for the purpose of saving the ship and cargo, but for preventing the spread of the fire to buildings and other property in the city. The right to extinguish fires in the city of New Bedford is a part of the police power of the Commonwealth. It is clear that the chief engineer and his men were not employed to extinguish the fire by any person lawfully in charge of the steamship, but that they acted wholly under their public employment. To constitute a general average loss, there must be an intentional sacrifice of a part of the property for the purpose of saving the remainder from a common peril, or extraordinary expenditures must be incurred for the purpose of saving the property in perll. The authority to determine when a sacrifice shall be made and what property shall

to the panel, on the ground that they had just passed upon a similar case between the same plaintiff and others against the same defendant, for burning the grain of plaintiffs on the same day the fence was burned, and that they were not fair and impartial, but had formed and expresed an opinion. The court overruled the objection. Upon error the Supreme Court affirmed the judgment, and in the opinion by Baldwin, J., say: "We do not see how the court could determine, in advance of the development of the facts, that the questions involved in this case were the same as in the case before tried by the jury. They might or might not have been. The opinion expressed or implied by the jury in their verdict was merely hypothetical. It was merely the conclusion they drew from the facts in evidence and the law given them in the charge in the particular case before them. It would be absurd to say that if they had rendered a verdict a year before, on facts before them going to establish, or which they supposed established, the liability of a steamer for acts of negligence, they could not now sit upon a case which might involve the same liability; and the question is not different merely because the first trial was immediately before the last. The jury could not possibly know what facts would be brought out in the case, nor what the argument of counsel would be, nor what the rulings of the court * * * If one plaintiff sues a sheriff for not making money on an execution, and the jury find for plaintiff, and if a dozen other plaintiffs should afterward sue for similar malfeasance it would scarcely be contended that a juror was incompetent in every case after the first." See also Com. v. Hill, 4 Allen, 591. Chariton Plow Co. v. Deusch. Opinion by Cobb, C. J. [Decided Aug. 7, 1884.]

NEGLIGENCE-CONTRIBUTORY.-G., a boy, between eleven and twelve years of age, while walking on a railroad track at a point where there was no thoroughfare, by accident stepped between the guard and main rail at a switch, and was unable to extricate his foot, and a switch engine being turned on to that line, ran over and crushed his foot. Held, that if the employees of the company, after becoming aware of the perilous condition of the plaintiff, by the exercise of a reasonable degree of care, could have prevented the injury, the company was liable. The rule is well settled that a party who is injured by the mere negligence of another cannot recover for the injury, if he by his ordinary negligence or willful wrong, proximately contributed to produce the injury complained of, so that but for his co-operating fault it would not have occurred, except where the proximate cause of the injury is the omission of the defendant, after becoming aware of the danger to which the plaintiff is exposed, to use a proper degree of care to avoid injuring him. Shear. & Red. Neg.,§ 25; C., C. & R. Co. v. Elliott, 4 Ohio St. 474; Brown v. Hannibal, etc., R. Co., 50 Mo. 461; Railroad Co. v. Davis, 18 Ga. 679; Cooper v. Central R. Co., 44 Iowa, 134; Cooley Torts, 674; Trow v. Railroad Co., 24 Vt. 487; Isbell v. Railroad Co., 27 Conn. 393; Hicks v. Railroad Co., 64 Mo. 430. If therefore the employees of the defendant in charge of the locomotive, after being aware of the perilous condition of the plaintiff, did not exercise a reasonable degree of care to prevent the injury, the defendant cannot rely on the plaintiff's negligence to defeat the recovery. Burtnett v. Burlington, etc., R. Co. Opinion by Maxwell, J. [Decided Aug. 6, 1884.]

ADMINISTRATOR LETTERS

ISSUED IN

AN

OTHER STATE-AUTHORITY.-A citizen and resident of this State died at his home in L. county owning property in this State and the State of Illinois. Letters of administration of his estate were granted by the Pro

bate Court of A. county, in Illinois, to the plaintiff in error, who applied to the District Court of L. county, in this State, for license to sell the real estate. Held, that such administrator had no authority as such in this State, and such license could be granted legally only to an administrator appointed by the Probate Court of L. county, in this State, that being the place of domicile of the deceased at the time of his death. It is a generally recognized legal proposition that the last place of domicile of the deceased is the place where letters testamentary or of administration must issue, and that the Probate Court of that place alone has jurisdiction. In Rubber Co. v. Goodyear, 9 Wall. 789, the Supreme Court of the United States has held that the last domicile of the deceased determines the jurisdiction as to administration. See also Wells Juris., § 275. See also Creighton v. Murphy, 8 Neb. 356; S. C., 1 N. W. Rep. 138; Minkler v. Woodruff, 12 Neb. 270; S. C., 11 N. W. Rep. 296; Cadman v. Richards, 13 Neb. 386; S. C., 14 N. W. Rep. 159. McAnulty v. McClay. Opinion by Reese, J. [Decided Aug. 7, 1884.]

INSURANCE LAW.

FIRE-PROOFS OF LOSS “FORTHWITH "— ¿UESTION FOR JURY.-Compliance as to giving notice and furnishing proofs of loss, is a condition precedent to recovery, when the loss is not payable until after such notice is given, etc., and such compliance must be alleged and proved; and a want of such allegations and proof can be taken advantage of under the general issue; it is not necessary to plead such defense specially. Edgerly v. Farmers' Ins. Co., 43 Iowa, 587; St. Louis Ins. Co. v. Kyle, 11 Mo. 278; Inman v. Western Fire Ins. Co., 12 Wend. 452; Columbian Ins. Co. v. Lawrence, 10 Pet. 507; Mason v. Harvey, 8 Exch. 819. One required to give notice of loss "forthwith" must give such notice with due diligence and within a reasonable time. St. Louis Ins. Co. v. Kyle, and Inman v. Ins. Co., supra; Peoria M. & F. Ins. Co. v.Lewis, 18 I11.553; Niagara Fire Ins. Co. v. Scammon, 100 Ill.644; S. C., 11 Ins. Law Jour. 614; Phillips v. Protection Ins. Co., 14 Mo. 220; Edwards v. Baltimore Ins. Co., 3 Gill, 176. And although the notice was given twenty-two days after the fire, it was held to be a question for the jury, whether given forthwith. The Supreme Court of Connecticut in Lockwood v. Ins. Co., 47 Conn. 553, say: Extreme cases either way may be easily determined. Between them there is a wide belt of debatable ground, and cases falling within it are governed so much by the peculiar circumstances of each case that it is much better to determine the matter as a question of fact." Such being the rule, the defendant had no right to have the question passed upon as one of law, and his request was properly refused. But the refusal did not terminate the duty of the court in the matter. Whether the insured had given notice forthwith, was a point material to the decision of the case; without proof of that fact the plaintiff could not recover. There was evidence upon that point, and it was the duty of the court to charge correctly and fully whether requested to do so or not. Vaughan v. Porter, 16 Vt. 266. A party is entitled to such a charge as the facts in the case require. Hazard v. Smith, 21 Vt. 123. The County Court is always bound to charge the jury according to the rules of law whether specifically requested so to do or not. Redfield, J., in Buck v. Squiers, 23 Vt. 498; and see 16 id. 579; 28 id. 222; 39 id. 565; 40 id. 495. The plaintiffs claim that such notice may be waived; but a waiver is an intentional relinquishment of a known right. The existence of such an intent is a matter of fact. First Nat. Bank v. Hartford L. & A. Ins. Co., 45 Conn. 22;

Home Ins. Co. v. Davis, 98 Peun. 280: Dey v. Martin (Va.), 16 Rep. 443; but no question of waiver was brought into the case; had it been, and found against the defendant, there would have been no error in this point. Sup. Ct. Vermont. Donahue v. Ins. Co. Opinion by Taft, J. (56 Vt. 374.)

LIFE-POLICY-PREMIUM NOTE-WAIVER.-A policy of insurance was made September 4, 1879, to run five years, and a note taken for the premium due May 1, 1880. The policy contained a provision that if the note was not paid when due the policy should be void. In October, 1880, a loss occurred. The premium note was paid in April, 1881. Held, that the acceptance of the premium was a waiver of the forfeiture of the policy, and that the company was liable for the loss; that the policy was voidable, not void. Sup. Ct. Neb., May 27, 1884. Phoenix Ins. Co. v. Lansing. Opinion by Maxwell, J. (20 N. W. Rep. 22.)

FIRE-INTRODUCTION OF NEW PARTNER INTO FIRM AVOIDS.-The sale or transmutation of the various interests between partners themselves, and nobody else having the control, and leaving the possession where it was, does not invalidate the policy; but the introduction of a new partner, with an investiture of an interest in him which he did not have before, does invalidate the policy. Cir. Ct., D. Minnesota, June 26, 1884. Drennen v. London Assurance Corp. Opinion by Miller, J. (20 Fed. Rep. 657.)

FIRE-AUTHORITY OF AGENTS-WAIVER OF PROOFS OF LOSS.-Where the authority of agents of a fire insurance company consists of full power to receive proposals for insurance, to receive moneys, and to countersign, issue, and renew policies, subject to such rules and regulations as may be adopted by the company, and such instructions as may, from time to time be given by the management, they have authority to waive the immediate payment of premiums. Where an insurance company asserts that a policy has been cancelled previous to a fire, it waives all right to insist that the policy has been forfeited because the proofs of loss came too late. Portsmouth Ins. Co. v. Reynolds, 32 Grat. 613; Allegre v. Maryland Ins. Co., 6 Har. & J. 408; Graves v. Ins. Co., 12 Allen, 391; Nor. & N. Y. Transp. Co. v. Ins. Co., 34 Conn. 561; Girard Co. v. Ins. Co. of New York, 97 Penn. St. 15; Bennett v. Ins. Co., 14 Blatchf. 422; 9 How. 196; May Ins., $469. But whether there was, in this case, a complete waiver or not, it is quite clear, under the circumstances in proof, that the plaintiff should be held to be excused for the neglect, if neglect it was, to forward the proofs sooner. Cir. Ct., Dist. Ind., Feb., 1884. Ball, etc., Wagon Co. v. Aurora Fire and Mar. Ins. Co. Opinion by Woods, J. (20 Fed. Rep. 232.) FIRE-CONDITION-INCUMBRANCE-JUDGMENT IS.A. held a policy of fire insurance for $800 upon certain premises, issued in the usual form, and containing, inter alia, the following condition: "If after insurance * * * the property * *shall be incumbered by judgment, mortgage, or otherwise * * and the assured should neglect or fail to give written notice thereof, and pay such additional premium as the company shall determine, and obtain written consent of the company to a continuance of the policy, such insurance shall be void and of no effect." A. afterward gave a bond, with confession of judgment, and the same was entered of record without his knowledge, and without notice to or consent of said company. The condition of the bond was duly complied with, so that at no time could execution have issued upon the above judgment, held, that such judgment was an incumbrance upon the insured premises within the meaning of said policy and that upon a subsequent loss of the premises by fire there could be no recovery. The terms of the policy are not ambiguous, and do

*

*

not need construction; hence Insurance Co.v. Berger, 6 Wright, 285, and other cases cited have no application. The argument that the judgment was entered without the knowledge of the assured is without force. It was entered upon his confession, and he is chargeable with knowledge. A man who gives a judgment or mortgage knows that it may and probably will be placed on record. He may not have actual knowledge of the time of its enty, but the act is his, and he must be held responsible therefor. I am aware that it has been held in Green v. Homestead Fire Ins. Co., 82 N. Y. 517, and other New York cases, that mechanics' liens are not incumbrances within the meaning of similar clauses in fire insurance policies. These cases however go upon the ground that the liens were not entered by the consent or procurement of the assured. These cases are not analogous, and do not apply. Sup. Ct. Penn., April 30, 1883. Hill v. Penn. Mut. Fire Ins. Co. Opinion by Paxson, J. [See 37 Am. Rep. 830; 28 Eng. Rep. 161.-ED.] (15 W. Notes, 43.

FIRE--CONDITIONS-WRITTEN AND PRINTED--CONFLICT CONSTRUED AGAINST INSURER.—Insurance being a contract of indemnity, policies must have a reasonable construction in view of that main intent of the parties, having reference to the particular nature and situation of the subject-matter insured. Where the reason of a general condition in a policy of insurance does not exist in a particular case, the condition itself becomes meaningless and inoperative. Where therefore a form of policy is used by an insurance company for the insurance of a peculiar kind of property, peculiarly situated, which policy contains general conditions which are inapplicable to the subject-matter of the insurance, such conditions will be ignored by the court in construing the contract. Where printed clauses in a policy of insurance conflict with written clauses therein, the former must yield to the latter. Harper v. Insurance Co., 22 N. Y. 443. If a policy of insurance be obscure in its meaning, it must be construed, as between the parties, most strongly against the insurance company which issued it. A. owned individually and owned in common with others a certain number of barrels of petroleum placed for transportation and storage in the Tidioute aud Titusville Pipe Line, limited. To protect himself from loss by assessment in case of fire, he took out a policy of insurance for $2,500 on petroleum, "his own or held by him in trust for others." One of the printed conditions of said policy provided that "if the insured is not the sole, absolute, and unconditional owner of the property insured, then this policy to be void." An assessment having been made on A. for a loss from fire. Held, that the condition above set forth was not under the circumstances applicable, and that the insurance company was liable to the extent of the policy, upon all oil destroyed in which A. had any interest whatever. The company in the above case was not liable for the loss of oil in which A. had no interest but which the owners had in writing requested him to insure before the issuing of the policy in suit. See Insurance Co. v. Berger, 6 Wright, 285; Insurance Co. v. Mills, 8 id. 241; Hutchison v. Com., 1 Nor. 472. Sup. Ct. Penn., June 9, 1884. Grandin v. Rochester German Ins. Co. Opinion by Paxson, J. (15 Week. Notes, 1.)

CORRESPONDENCE.

LAW OF JUDGMENT DEBTS. Editor of the Albany Law Journal:

There are certain causes at work, especially in our large cities, which will result, it seems to us, sooner or later, in a great diminution of legal business. In the first place, nearly every large organization, like, for example, the New York Stock Exchange, has a private