to the office, or by any other language, from which the intention of the testator to invest him with that character may be inferred. Carpenter v. Cameron, 7 Watts, 51. FRAUD. (Judicial sale.) No title passes to a vendee who is guilty of actual fraud in procuring it, whether the sale be private or judicial. He who purchases at sheriff's sale, knowing at the time that the judgment on which the sale is made was satisfied, acquires no title; and a purchaser from him stands in no better situation, unless he be a purchaser for a valuable consideration, without notice of the fraud. Hoffman v. Strohecker, 7 Watts, 86.

2. (Sale to defeat creditors.) A sale and delivery of personal property for the purpose of hindering and defeating creditors in the collection of their debts, is fraudulent and void as to such creditors; but good and available as to the parties themselves. Nor can the creditors avoid such sale and delivery except by legal process; and in taking the property without such process they are trespassers; and the officer taking it with process out of his jurisdiction, thereby becomes a trespasser. M' Gee v. Campbell, 7 Watts, 545.

3. (Existence of prior mortgage.) Where one exchanges a chattel, previously mortgaged by him, without disclosing the exist ence of the mortgage, the other party has a right to regard it as fraudulent. Such contract is not absolutely void, but voidable only at the election of the party defrauded. Junkins v. Simpson, 2 Shepley, 364. FRAUDS, STATUTE OF. (Debt of another.) A promise by

one to pay the debt of another in consideration of an agreement to delay the collection of an execution, is not within the statute of frauds. Russell v. Babcock, 2 Shepley, 138. 2. (Shares in the stock of a corporation.) A contract for the sale of shares in a manufacturing corporation, is a contract for the sale of goods or merchandise within the statute of frauds, and in the absence of the other requisites of the statute, must be proved by some note or memorandum in writing signed by the party to be charged or his agent. Tisdale v. Harris, 20 Pick. 9.

3. (Agreement for the sale of land.) The plaintiff made a parol agreement for the purchase of a parcel of land, with a dwellinghouse thereon, of the defendant, and paid the purchase money, taking a written receipt that it was paid for the estate, the defendant undertaking to procure a discharge of a mortgage on the estate, and which he accordingly did, but before a deed was given or tendered to the plaintiff the house was destroyed by fire. It was held, that the payment did not take the contract out of the statute of frauds, and that the plaintiff was entitled to recover back the money, on the ground of a failure of the consideration. Thompson v. Gould, 20 Pick. 134. FREEHOLD. (Fixture.) A steam engine with its fixtures, used to drive a bark mill and pounders to break hides in a tannery, erected by the owner, is real and not personal property; it passes by a sale of the freehold. Oves v. Ogelsby, 7 Watts, 106.

2. (Grain growing.) A conveyance of land conveys the grain growing upon it to the purchaser; and the fact, that the vendor took care of the grain growing and the fences around it after the conveyance without objection from the vendee, does not alter the rights of the parties. Wilkins v. Vashbinder, 7 Watts, 378. GUARDIAN. (Investment by.) A loan by a guardian, upon the promissory note of the borrower, payable in one year with interest, secured by a pledge of shares in a manufacturing corporation, the amount of the loan being about three quarters of the par value of the shares, and less than three quarters of their market value, was held to be an investment made with sound discretion; and although the borrower failed before the note became due, and the shares fell in value below the amount of the note, the guardian was held not be responsible for the loss. Lovell v. Minot, 20 Pick. 116.

2. (Same.) And the guardian having sold the shares and taken the purchaser's note for the price, with two indorsers and the notes of another person secured by a mortgage on land, he was held to have exercised a sound discretion, and not to be respon

sible for a loss occasioned by the failure of all the parties to the notes and a fall in the value of the mortgaged premises. Ib. HUSBAND AND WIFE. (Reduction to possession.) If a distributive share of intestate personal estate accrue to a married woman during coverture, and the husband die before the decree of distribution, and without any act on his part reducing it to possession, it survives to the wife. Hayward v. Hayward, 20 Pick. 517.

2. (Separate estate of wife.) A married woman lent the interest accruing after marriage upon a note held by her before her marriage, and the borrower gave her therefor a promissory note, which was made payable to her, in accordance with the wishes of her husband, in order that she might be the exclusive owner thereof; and the husband frequently declared, that the money, as well as the interest thereon, was her separate property, and that he did not intend to claim or receive any part thereof to his own use; but he also stated to a third person, that no agreement had been made with the wife in relation to the money, either before or after the marriage. After the death of the husband, the borrower paid to the wife the amount due on his note, she having retained it in her custody. It was held, that she was entitled to retain the amount so paid, for her own use, as against the executor of the husband. Phelps v. Phelps, 20 Pick. 556.

3. (Waiver of provision in will.) The husband, in such case, devised his real estate to his wife for life, in lieu of dower, and upon the condition, that she should make no claim to any property as her own out of his estate and allow all property which she had usually considered as her own private property to be distributed as the other parts of his estate. After his death on April 3, 1837, the wife continued to reside in his house, but without setting up any claim thereto, a portion of it being occupied, with her permission, by a stranger for five months. It was held, that these acts did not amount to an acceptance of the provision made for her in the will and to a relinquishment of her right to the money, she being entitled, under Revised Statutes, c. 60,

6, to continue in the occupation of the house with the heirs of her husband, so long as they should not object. Ib. INSURANCE. (Enrollment.) An old vessel built upon and enlarged and enrolled by a new name, without delivering up the old register, and thereby rendered liable to forfeiture by the laws of the United States, is the lawful subject of insurance against the usual perils of the seas; and the insurers cannot avoid the payment of a loss covered by the policy by reason of such liability. Polleys v. Ocean Insurance Company, 2 Shepley, 141.

2. (Same.) If there be no stipulation in the policy, that the vessel insured is a vessel of the United States, such enrollment by the new name is competent evidence to prove the property to be in the assured. Ib.

3. (National character.) Where the national character of the vessel is not made a part of the contract of insurance, the want of the proper documents to show such character is not material, unless it appear, that the loss happened, or that the risk was increased, in consequence of the want of such documents.

Ib.

4. (Abandonment.) In a policy upon a ship it was stipulated, that the underwriter should not be liable for a partial loss unless it should amount to fifty per cent., and that the assured should not abandon for damage merely, unless the amount, under an adjustment as of a partial loss, should exceed half of the amount insured. The ship was stranded, and the assured offered an abandonment, but the underwriter refused to accept it; and, against the will of the assured, the underwriter, within a reasonable time, got her off and repaired her for less than half of the amount insured, and delivered her to the assured. It was held, that the interference of the underwriter in saving and repairing the ship was justifiable, and that inasmuch as he was not to be liable for a loss not exceeding half of the amount insured, he was entitled to recover of the assured the amount of the expenses of saving and repairing the ship. Commonwealth Ins. Co. v. Chase, 20 Pick. 142.

5. (Insurable interest.) The plaintiff and two others contracted for the purchase of a ship, paid part of the price in cash, gave their joint and several notes for the remainder, and received possession of the ship, but the vendor retained the legal title, with authority, in case the price should not be paid, to sell the ship and apply the proceeds to the notes. The plaintiff caused a sum to be insured on the ship, for whom it might concern, payable, in case of loss, to the vendor; and after a partial loss, the vendor repaired and sold the ship and paid himself out of the proceeds; and the other two contractors assigned to the plaintiff all their interest under the contract, and all benefit to be derived therefrom. It was held, that the plaintiff and the other two contractors had an insurable interest; and that the plaintiff might recover on the policy for the whole of the partial loss, by an action in his own name alone, but that he should aver the interest truly in his declaration, viz., that the policy was made for the use of himself and the other two, and that they were jointly interested at the time when the policy was made and when the loss happened. Rider v. Ocean Ins. Co. 20 Pick. 259.

6. (Sailing.) Where a vessel insured quits her moorings in complete readiness for sea, and it is the actual intention of the master to proceed on the voyage, and she is afterwards stopped by head winds and comes to anchor, still intending to proceed as soon as wind and weather will permit, this is a sailing on the voyage, within the meaning of the policy. Bowen v. Hope Ins. Co. 20 Pick. 275.

7. (Same.) Thus, a vessel was insured for a year, and if "at sea" when the year expired, then the risk was to continue until her arrival in port. Before the expiration of the year, the vessel being at Bangor, in Wales, on the easterly side of the straits of Menai, ready for sea, dropped down seven or eight miles below Bangor, with the intention of proceeding on her voyage to Boston, but in consequence of head winds, came to anchor and was unable to get out of the straits, although she attempted to do so for several successive days, until after the 28

VOL. XXI.-NO. XLII.