23 Barb. 103, two of three judges of the Supreme Court of this State held that such a street could not be a | highway, basing their decision on what they supposed to be the common law. But in People v. Kingman, 24 N. Y. 559, the Court of Appeals condemn this decision, holding that, upon principle as well as authority, it is no objection to a highway, or public street, that it is a cul de sac; that public ways, with an outlet at one end only, may and often do exist; that they are quite common in some parts of the country; that in many cities and villages there are short streets leading to ravines, and to cliffs, whence there can be no outlet, and where they must necessarily stop; that the same thing is true of streets running to unnavigable waters, or to points on the sea shore, where there cannot be a harbor or landing place; that in new settlements many of the public ways extending into the wilderness have outlets at one end only. The court on the principal case says, that it cannot see why it should have ever

been doubted that such roads and streets are as much public highways as roads and streets open at both ends.

The Court of Errors and Appeals of New Jersey has reversed the decision of the Court of Chancery in the case of Williamson v. New Jersey South. R. R. Co., 1 Stewart, 277, wherein the question whether the rolling stock used in operating a railroad would be considered real estate, so as to render a mortgage upon the railroad whereon such rolling stock was, together with the stock which was described thereon, duly executed and recorded, a valid lien thereon against subsequent judgment creditors. The Court of Chancery held that such stock was real estate and covered by the mortgage, but the Court of Errors held that, so far as regarded that kind of property, the mortgage was a chattel one, and must be filed as required by the statute to give it validity against subsequent creditors, if the property remained in the possession of the mortgagor. The court says that actual annexation to the realty, or something appurtenant thereto, is the condition upon which property ordinarily regarded as personal becomes a fixture and part of the realty. The intention to make a chattel a part of the realty is only important upon the question whether the owner intended to make the chattel so affixed a temporary or permanent accession to the freehold. The doctrine of constructive annexation is only applicable to cases in which the chattel, by actual annexation, was once part of the realty and had been temporarily

detached from the freehold without intent to sever it therefrom. Having once been part of the realty, a removal temporarily without intent to sever permanently will not reconvert the chattel into personalty and destroy its character as a fixture. The

The Supreme Court of Rhode Island in the case of Williams v. Winsor, decided on the 13th of October, 1877, decides that in that State a mortgage of personal property to be subsequently acquired creates a lien on such property when acquired, which is valid in equity against the mortgagor or his voluntary assignee. The court says that while in some States a mortgage containing a power to sell and replace has been held to be therefore void, such has not been the doctrine in Rhode Island. It is a wellsettled principle of law that nothing can be mortgaged which is not in existence or which does not belong to the mortgagor at the time of the execution of the mortgage, consequently at law a mortgage of property to be acquired in futuro is void as to that property. See Henshaw v. Bank, 10 Gray, 571; Bellows v. Wells, 36 Vt. 599; Gale v. Burnell, L. R., 7 Q. B. 850; Head v. Goodwin, 37 Me. 181; Pierce v. Emery, 32 N. H. 484; Otis v. Gill, 8 Barb. 102. But courts of equity have adopted in some instances law and held that whenever parties by their contract another principle which is derived from the civil intended to create a positive lien or charge upon real or personal property, whether then owned by the one giving the lien or not, such lien attaches to the particular property as soon as the one giving it acquires a title thereto as against such person and all others asserting a claim thereto under him voluntarily or with notice. See Winslow v. Mitchell, 2 Story, 630; Preble v. Boghurst, 1 Swanst. 369; Needham v. Smith, 4 Russ. 318; Metcalf v. York, 1 M. & C. 553; Field v. Mayor, etc., 6 N. Y. 179; Langton v. Horton, 1 Hare, 549. Also, Brett v. Carter, 2 Lowell's Dec. 458, where a mortgage of future additions to a stock of goods in a particular shop was held to be a valid mortgage of such goods as fast as they were put into the shop by the mortgagor. See, also, Yates v. Olmstead, 56 N. Y. 632, where a clause in a chattel mortgage upon a stock of goods, some of which was to be afterward acquired, was held not to be void if there was no arrangement permitting the mortgagor to deal with the goods mortgaged or knowledge of the mortgagee that he did so deal and no intent to defraud creditors. See further, McCaffrey v. Woodin, 65 N. Y. 459; S. C., 22 Am. Rep. 644; Titus v. Maybee, 25 Ill. 257; Walkan v. Vaughn, 33 Conn. 577; Wyatt v. Watkins, 16 Alb. Law Jour. 205; and Williams v. Briggs, id. 387.

GUARANTIES OF PAYMENT AND OF COL

LECTION.

THE decision of our

months after the money secured thereby became due and payable, did not discharge the defendants from their liability to pay the deficiency." "Whenever he had exhausted his remedy against lands

involves an interesting distinction between guaranties of payment and guaranties of collection. The guaranty in question was upon the assignment of a mortgage, and was in the following language: "And I hereby covenant that in case of foreclosure and sale of the mortgaged premises described in said mortgage, if the proceeds of such sale shall be insufficient to satisfy the same, and the costs of foreclosure, I will pay the amount of such deficiency," etc. The assignee of the mortgage neglected to foreclose it for some fourteen months after it became due, and meantime the premises, originally an ample security, were seriously damaged by fire, and became insufficient to pay the debt. The Court of Appeals hold, reversing the decisions of the General Term and the referee, that this was a guaranty of collection and not of payment; that the creditor did not enforce his remedy with due diligence, and that in consequence the surety was released. Although the court allude to the fact of the damage accruing from the delay, yet they do not seem to lay any stress upon it as a necessary ingredient, but seem to treat the condition strictly as a condition precedent, which the creditor is bound at all hazards to pursue with reasonable diligence, without any regard to the situation of the property or probable consequences. This case was decided in the lower courts upon the authority of Goldsmith v. Brown, 35 Barb. 484. The covenant in that case was as follows: "Whensoever the money secured by the said mortgage shall become due and payable, and a foreclosure of the same shall be had for the non-payment of principal or interest, and upon a sale of the premises therein described, a deficiency shall occur, then, in such case, the said parties of the first part will pay unto the said parties of the second part, or his assigns, the amount of any deficiency," etc. The court in that case observe upon this guaranty: "The obligation of the defendants was to pay the deficiency upon the mortgage debt, whenever the remedy against the lands mortgaged should have been exhausted and the deficiency ascertained; not that the debt was collectible by a diligent pursuit of the remedies to recover it at the command of the holder." "The defendants were sureties for the payment of Worcester's debts to the extent of any sum or balance which the proceeds of the mortgaged premises, upon sale thereof, failed to pay; and the contingency upon which their duty and obligation arose was the entering of the decree or judgment for the deficiency upon the referee's or sheriff's report of the sale. The omission of the creditor to institute proceedings to foreclose the mortgage, for more than fourteen

the deficiency, his right to receive and collect the amount thereof from the defendants became consummate and complete. Such was the legal effect of their contract with the plaintiff. They undertook to pay the deficiency whenever it should occur," etc. It is not quite clear from the opinion of the Court of Appeals in the case under consideration whether they approve or disapprove of Goldsmith v. Brown, nor is it quite clear whether they adopted the suggestion of counsel that the cases were distinguishable on the ground of the different significance of the word "whensoever" and the phrase "in case." The court say: "The decision in that case can only be sustained by construing the covenant as waiving diligence in foreclosing, and binding the covenantor to pay the deficiency without regard to the time of the foreclosure. Nothing in the covenant now under examination has any relation to the time of the foreclosure, or can be construed as waiving the diligence required by the general rule of law in performing the condition." The decision seems to be based on the idea that the measure of liability on the guaranty being ascertainable only by a foreclosure, the ordinary rule prevails that the foreclosure must be promptly and diligently prosecuted. In a word, as we might express it, that although in phrase and form the guaranty is one of payment, yet it is pregnant with a guaranty of collection. The court say: "The respondent claims that it is an undertaking to pay any deficiency which may arise, and is, therefore, a guaranty of payment of the mortgage debt to that extent, and to be governed by the same rules as if it had been a guaranty of payment of the whole mortgage. But the fallacy of this reasoning is that it is not an unconditional guaranty that the mortgagor will pay the mortgage debt, or any part of it, but only that after the remedy against the land has been exhausted and the deficiency ascertained by foreclosure and sale, the guarantor will pay such deficiency. The only difference between this and an ordinary guaranty of collection is that in the latter case the undertaking is, that after it has been ascertained, by all such legal proceedings as the case admits of, that the demand cannot be collected, the guarantor will pay, while in the present case the only proceedings which the creditor is bound to adopt are a foreclosure of the mortgage and sale of the mortgaged lands. To that case the condition precedent exists alike in both cases, and the duty of exercising due diligence attaches, there being nothing in the instrument qualifying or dispensing with it." question is certainly a very nice and interesting one,

The

and we imagine a very good argument could be made on either side.

It was formerly quite commonly understood that the rule, applicable to guaranties of payment, that the creditor was not prejudiced by a failure to proceed with diligence against the principal debtor even at the request of the surety, unless the failure resulted in damage to the surety, as for example, where the debtor meanwhile became insolvent, was applicable to guaranties of collection as well.

Whether a guaranty of collection involves the necessity of a prompt pursuit of the remedy against the principal debtor, at all hazards, and without any regard to the circumstances, is a question that has been much mooted in this State, and if settled by the court of last resort was uneasily settled in the case of Craig v. Parkis, 40 N. Y. 181. Before that decision, there was excellent, although not unbroken authority, for the doctrine that the insolvency of the principal debtor excused the creditor from the necessity of prompt action against him in the case of a guaranty of collection. Thus in Gallagher v. White, 31 Barb. 92, a case upon a guaranty of collection, the court say: "There is a very material distinction between the omission to prosecute the principal debtor altogether, and the omission to prosecute within a reasonable time and with due diligence. A reasonable time is not a definite time and must always depend upon the particular circumstances of the case presented; because if the principal debtor was hopelessly insolvent at the time of the making of the guaranty, and so continued, the guarantor could not be prejudiced by an omission to prosecute within two months, or ten months, or any other given period. If a suit instituted and prosecuted to judgment at the expiration of twelve months would be as effectual to collect the money of the principal debtor, as one instituted and prosecuted at the expiration of two months, the guarantor would have no reason to complain that he had suffered injury from the laches of the creditor. This I understood to be the doctrine of the authorities, upon the question of due diligence and reasonable time."

The most learned and exhaustive examination of this subject by the Supreme Court will be found in the case of Cady v. Sheldon, 38 Barb. 103, where Judge Hogeboom delivered the opinion of the General Term of the Third District. That was a case of a guaranty of collection. The court go a step further than in the case of Gallagher v. White, and hold that under proof of the continuous insolvency of the principal debtor, the creditor is excused from any action against him at any time. The court observe: "It is not absolutely indespensable that legal proceedings should be resorted to, to test the collectibility of the paper, if it otherwise satisfactorily appears that a resort to such proceedings

would be entirely ineffectual; and proof that the principal debtors from the period of the maturity of the debt have been uniformly insolvent and unable to pay any part of the debt, is satisfactory and sufficient evidence that legal proceedings would be unavailing to collect the debt. Legal proceedings are not, under the authorities, absolutely a condition precedent to the liability of the guarantor but equivalent evidence of the inability to collect any part of the debt will suffice." This conclusion certainly is not warranted by the authorities cited in the opinion Without exception, we think they recognize the necessity of action at some time, although they differ in their estimate of the effect of the debtor's insolvency on the question of due diligence.

In Vanderveer v. Wright, 6 Barb. 547, Judge Willard says: "In general a party who suffers a term to elapse without prosecuting the maker is guilty of laches, and loses his remedy against the guarantor. The remedy, however, against the guarantor will not be impaired, if the debtor was insolvent and so continued, after the guaranty, and up to the commencement of the suit," etc. The case of Merritt v. Lincoln, 21 Barb. 249, cited by Judge Hogeboom as authority for his position, seems to have been upon a guaranty of payment. Indeed, it must have been so, for the same judge, Welles, who gave the opinion in that case, also gave an opinion adverse to Judge Hogeboom's views, in Newell v. Fowler, infra. The cases of Lamourieux v. Hewitt, 5 Wend. 307, and Thomas v. Woods, 4 Cowen, 183, are authorities for the doctrine of Gallagher v. White. In Wakeman v. Gowdy, 10 Bosw. 208, the court treat the question of reasonable diligence as one depending on the circumstances of the case, and regard the fact of damage to the surety from the delay as an element to be considered, and therefore this court cannot be an authority for the doctrine of a strict condition precedent. In Penniman v. Hudson, 14 Barb. 579, the court held that a delay of seven months, especially where the creditor knew that the debtor was in failing circumstances, required explanation, and, in the absence of any such proof, granted a new trial.

serve:

On the other hand, in Burt v. Horner, 5 Barb. 506, it is said: "The question is not whether the defendants have been injured by the delay, but whether the plaintiff has performed his contract, the condition precedent to his right to call upon them." In Newell v. Fowler, 23 Barb. 632, the court ob'Nothing will excuse the party holding the guaranty from the performance of this condition but the act of the guarantor himself. It was a part of the contract, and it will not answer for the party to say it would have been of no use to prosecute. Conditions precedent must be strictly performed." "The contract imposed upon Starke and his assignees the burden of exhausting by legal proceed

and adjoining a certain street and public highway in said town, called Pleasant street, and which street said town were bound to keep in good and suitable repair, for traveling in and upon the same, and to keep certain gutters and sluiceways running in and along said highway, so and in such good repair that the water that usually and of right should run therein should not overflow and run out and upon the said land of the said plaintiff; but the said town, by themselves, their officers, agents, and employees, so negligently and wrongfully kept the said street and public highway, and the sluiceways thereof in such bad repair, that the water which they ought and should have carried in and along said street overflowed on and over the land of the plaintiff, so that the said land was by said water overflowing thereon greatly damaged, and the crops growing thereon were greatly injured," etc.

The defendant demurs to the declaration upon the ground that it does not properly set forth any cause of action. The plaintiff relies in support of the action upon Inman v. Tripp, 11 R. I. 520. In that case the plaintiff owned an estate in the city of Providence, on Public street, at the lowest point thereof, and the city so changed the grade of several streets as to allow surface water which formerly flowed in other streets,. and surface water which was formerly ponded in another street at some distance from the plaintiff's estate, to run down Public street, and thence on to his estate and into his cellar and well, and the court held that the plaintiff was entitled to an action against the city for the injury. The declaration in the case at bar does not show any such case. It merely shows that water escaping from the highway upon the plaintiff's land injured it, and the crops growing upon it. It is true the declaration alleges that the water ought to have been kept or carried by the town in the gutters or sluiceways of the street. The question of duty, however, is a question of law, and the defendant is entitled to have the facts alleged on which the duty is predicated. For any thing that appears, the injury to the plaintiff was the result of the ordinary and natural flow of the surface water, which the defendant would be under no obligation to confine in gutters or sluiceways for the plaintiff's protection, or of such changes near at hand as are usually made, and must, therefore, be presumed to have been contemplated, and paid for in the lay out. Flagg v. City of Worcester, 13 Gray, 601. In Inman v. Tripp, 11 R. I. 520, we did not mean to decide that a town or city has any less power over its streets or highways, in respect of surface water, than an individual has over his own land, but only that it has no greater power; or, in other words, that it is liable for discharging the surface water accumulating in its streets and highways, to the same or very much the same extent, as an individual is liable for discharging such water from his own upon his neighbor's land. If this action were against an individual instead of a town, we do not think the declaration, similar in form, would be sufficient; for mere neglect by an individual to retain on his own land water which, falling there, would naturally flow on to his neighbor's land, is no cause of action, unless he first accumulates it by artificial means so as considerably to increase the volume and detrimental effect with which it would flow on his neighbor's land. Pettigrew v. Evansville, 25 Wis. 223, 229; Livingston v. McDonald, 21 Iowa, 160; Gannon v. Hargadon, 10 Allen, 106; Butler v. Peck, 16 Ohio St. 334; Goodale v.

Tuttle, 29 N. Y. 459, 467; Washburn on Easements, etc., 450 seq.

We think, therefore, that as the declaration now stands, the demurrer must be sustained.

Demurrer sustained.

FIRE INSURANCE AND ESTOPPEL. UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF NEW YORK, APRIL, 1878. BENNETT, ADMINISTRATOR v. MARYLAND FIRE INSUR ANCE CO.

Plaintiff, through an insurance broker, procured from the agent of a fire insurance company, a policy insuring his building in such company. Plaintiff paid the broker the amount of premium, but the agent gave the broker credit for such premium. The company informed the agent that it would not accept the risk on plaintiff's building, but the agent said nothing to plaintiff. Thereafter plaintiff, desiring to make some alterations in the building which would increase the risk, applied to the agent to indorse on the policies permission to do so. The agent said it would be necessary to apply to the company and he took plaintiff's policy to send to the company for such permission The agent sent the policy, informing the company of the facts. The company kept the policy to cancel it, but gave plaintiff no notice to that effect. Subsequently the building was burned. In an action on the policy, held, that the company was estopped from claiming that the policy was not in force. The policy required that in case of loss, plaintiff should give notice forthwith in writing to the company. The plaintiff told the agent of the loss, who wrote to the company, which claimed not to be liable on the ground that the policy never had been in force. Held, that the company could not thereafter set up informality in giving notice, etc., of the loss.

A defense that plaintiff had, in violation of the terms of the policy, increased the risk, held not available unless set up in the answer.

MOTION for a new trial by defendant. Sufficient

facts appears in the opinion.

WALLACE, J. None of the objections urged to the recovery are tenable.

First. Hamlin was the agent of the defendant, authorized to make insurance and deliver policies.

The assured paid the premiums to a broker, and Hamlin, knowing of the payment, accepted the responsibility of the broker, by an agreement with him, in lieu of the money paid by the insured. The assured subsequently, desiring to build an addition which would increase the risk, applied to Hamlin to indorse consent Hamlin informed the assured he would have to forward the policy to the company, but the consent would be given, and the assured might rely upon it, and go on with his addition.

The company knew the policy had been issued, and declined to take the risk, and so notified Hamlin. Notwithstanding this, Hamlin did not inform the assured. Sometime after this, Hamlin forwarded the policy to the company to obtain the consent of its officers to the building of the addition, at the same time informing them of the whole transaction relative to the premium. The company retained the policy, and did not notify Hamlin that consent would not be allowed, or that the policy would be deemed canceled.

It thus appears that the company knew the policy had not been recalled by Hamlin, and that the assured supposed it to be in force, and was acting in reliance upon that assumption. By silence the defendant ratified the act of its agent, in accepting the responsibility of Nichols in lieu of the money of the assured. Slight acts are sufficient to constitute ratification; and silence, when the good faith requires the principal to speak, is sufficient.

Again, the policy did not require payment of the premium in money; and when the agent of the de