Receiving property of the firm or subsequent payment of debts by one partner, will not avoid the statute. against the surviving partners and their representatives, alleging and willingness to pay, which it does not. An expression of a that the partnership was unsettled; that it had made enormous willingness to account either in pais or in an answer, will not avoid profits; and that Wade H and Isaac L. Bolton held the assets and the plea of statute of limitations. property of the concern. It prayed an account and settlement. Dickens admitted the bill, and also demanded a settlement. Wade H. Bolton demurred, and relied on the statute of limitations of three and six years, and on the equitable defence of stale demand, and this demurrer was overruled, and he answered setting up the same and other defences. Isaac L. Bolton's representatives made the same defences by answer. These are chiefly the facts pertinent to this decision. For plaintiff, Luke W. Finlay; for Dickens' estate, Gantt & Mc Dowell, Patterson & Lowe; for Wade H. Bolton's estate, H. T. Ellett, E. L. Belcher, D. E. Meyers; for Isaac L. Bolton's estate, Randolph, Hammond & Jordan. - These defences may be set up in the answer, although overruled in the demurrer. If the court should find upon final hearing, that the plea of limitation should have been allowed upon demurrer, it will decide the question at final hearing. I think it makes no difference as to the-cross bill. It was our mode of defence, but the cross-bill was never acted upon, and could at most only apply to W. H Bolton, as I. L. Bolton made no such defence. The bill will be dismissed with costs. BILL DISMIssed. MORGAN, Chancellor. This bill was filed June 10th, 1868. Fire Insurance-Condition in Policy against PremiPartnership expired June 1, 1857. Three years ended June 1, 1860. Wash. Bolton died February, 1862, the first partner that ses becoming Vacant. died. At the time of his death the courts were opened. It is well settled that the statute of limitations, may be pleaded in chancery in all cases when an action at law will lie for the same cause. When there is concurrent jurisdiction, the statute is a good defence in either court. If there be an action at law not barred, the remedy in equity will not be barred. One partner can not sue another partner in any action in form ex contractu, but must proceed by action of account or by bill in equity. ANN KELLY v. THE HOME INSURANCE COMPANY OF N. Y. U. S. Circuit Court, District of Kansas, Lune Term, 1875. Before Hon. C. G. FOSTER, District Judge. A policy of fire insurance contained the following provision: "If the above mentioned premises shall become vacant or unoccupied, and so remain with the knowledge of the assured, * * without notice to, and consent of this company in writing, ** *this policy shall be void." At the time of the fire the premises had been unoccupied about thirty-three days, with the knowledge of the assured, but without notice The action of account lies between partners at common law; to, or consent of, the insurance company. They were not, however, abandoned, but so also has equity jurisdiction. Mr. Chancellor Kent, in one of his decisions, expresses some surprise that the action is not more often resorted to in the law; courts. The action of account has never been abolished in this state; although it is disused. The limitation is expressly recognized and fixed at three years, by the act of 1715. In 1st Yerg. 312, the supreme court says that equity has concurrent jurisdiction with courts of law in cases of account. No other action at law will lie by one partner against another, except after settlement and promise to pay. If this be true, the three years will apply to actions for account between partners at law, and of consequence the same limitation must apply in equity. This limitation was in force in Tennessee when this right of action accrued. The exception in the statute of accounts, between merchants and merchants, does not apply to accounts of partners inter sese, but it is only applicable between different parties, their factors or servants, originating in current and mutual accounts, and for articles of merchandise. If it were admitted that an action could be maintained at law, by the disuse of the remedy of account, and that jurisdic'ion of the settlement of accounts was exclusive in equity, it would not alter the case, for the same limitations apply in courts of equity to equitable rights and remedies that exist in analogous cases at law, and the analogous case at law would be that of account. The only exception to this principle will be found in cases of express trust; account between partners does not stand upon that ground after dissolution, but upon other equitable considerations. The bill in this case contains no averment, nor does the proof show any fact to take the case out of the statute of limitations. There is no suggestion of any trust, or the allegation and proof of any new promise. All the partners were alive when the three years expired. But even if the doctrine of acknowledgment of indebtedness could be applied, and the bill contained proper averments, the proof must show unqualified and direct admission of indebtedness the plaintiff was all the time endeavoring to procure a tenant for the house Held, that the plaintiff was entitled to recover; that the condition in the policy contemplated only an abandonment of the premises in consequence of their becoming untenantable, or a vacation of them for an unreasonable length of time, and not a mere temporary vacancy, such as would occur while one tenant was moving out and another moving in. Action for $1,500 and interest on an insurance policy. Trial and judgment for the plaintiff. Motion for new trial. Horton and Waggener for the plaintiff; Pratt, Ferry and Brumback, for the defendant. FOSTER, J.-The motion of the defendant for a new trial depends upon the construction of this condition in the policy : * * "If the above mentioned premises shall become vacant or unoccupied, and so remain with the knowledge of the assured without notice to and consent of this company in writthis policy shall be void." * ing * * * * * At the time of the fire the premises had been vacated by the tenant, and had been unoccupied about thirty-three days with the knowledge of the assured, and without notice to, or consent of the insurance company. During that time the premises were not abandoned, but the plaintiff was all the time endeavoring to obtain a tenant for the house. On this state of facts the court on the trial instructed the jury that the plaintiff was entitled to recover. The condition in the policy is a peculiar one, and its meaning is somewhat obscure. Just what meaning was intended to be conveyed by the words “and so remain" is not apparent, but it is certain that they qualify the condition, and make it something more than a mere temporary vacancy, such as would occur while one tenant is moving out and another moving in. The vacancy, or want of an occupant of itself, however brief, is not enough to avoid the policy, but the vacancy must remain so. Remain so how long? The condition may admit of either one of two conditions, viz: Either an abandonment of the premises as tenantable property. Or the vacancy must have remained and continued an unreasonable time. Now this proviso is inserted in the policy by the defendant company, and for its benefit, and is printed in very small type. In the case of Ins. Co. v. Slaughter, 12 Wall. 404, the court, among other things, says: "They (the Ins. Co.) should set forth these restrictions in terms which can not admit of controversy, andshould print these restriction clauses in type large enough to arrest the attention of the assured." When there is doubt in the condition restricting the liability of the company, the construction should be adopted most beneficial to the promisee. 32. N. Y. 405, and cases cited. the Lords Justices had merely decided that the testatrix had adopted the defendant, we should not have so much fault to find with the decision, as such a question is purely one of evidence upon the facts. But it is distinctly stated by Lord Justice James, that no such adoption took place. But he accepted the evidence of the defendant and his wife, as proof positive that the testatrix in Now, in this case, which ever construction we adopt in inter-tended a gift, and not a trust. Now, no previous case has gone preting this policy, I can not see that the company can avoid its liability. If it contemplates an abandonment of the premises, this is not such a case, for there was no abandonment. If its liability was to terminate on the vacancy continuing an unreasonable length of time, then under the circumstances I could not hold that an unreasonable time had transpired. It appeared from the evidence that the plaintiff was all the time trying to get a tenant for the premises, and was in constant expectation of obtaining one. If the company desired to limit the time of its liability to thirty days, it was very easy for them to have expressed it in plain and unmistakable language. The cases referred to by counsel for the defendant do not help us in this case. In 6 Allen 231, the condition was as follows: The policy becomes void when the occupant personally vacates the premises, unless immediate notice be given to this company and additional premium paid." In 10 Allen, 228, it provided: "If the building insured remains unoccupied over thirty days without notice, this policy shall be void." In 15 Wis. 138 (151) it read: "Houses, barns or other buildings insured as occupied premises, the policy becomes void when the occupant personally vacates the premises, unless immediate notice be given to this Co. and additional premiums paid." In the case last cited, the premises had been vacated for seven months without notice to the company. I am of the opinion that my construction, as to the liability of the defendant under the policy and facts proved was not erroneous, and must therefore overrule this motion for a new trial. Foreign Selections. SO ORDERED. nearly so far as this. Joint-purchases, or investments in the name of a nephew alone (Currant v. Jago, I Col. 261), or a jointpurchase by father and son, where the father pays the price (Dyer v. Dyer, 2 Cox, 92), have been held advancements, and similar cases have arisen between husbands and wives, and fathers and daughters. But no case was cited in argument, nor do we believe that one exists, in which a joint-investment in the names of a testator and a stranger has, on the sole evidence of the parties interested, been held to be a gift, and not a resulting trust. And in most of the cases turning upon the question whether a person has placed himself in loco parentis, letters and other documentary evidence have been adduced. The decision is all the more extraordinary, as the Lord Justice himself said most explicitly in Hill v. Wilson, L. Rep 8 Ch. 888, that the evidence of a plaintiff on his own behalf, as to a bargain with a man since dead, ought, in the absence of a corroboration, to be disregarded. The same remark applies certainly to a man's wife. The case was all the harder, as it being decided that no quasi-parental relationship existed, the sums of stock were not deemed advancements in ademption of other benefits conferred by the will. We have little doubt that the judgment of the master of the rolls would be affirmed, and that of the Lords Justices reversed, in the court of final appeal.—| The Law Times. NEGOTIABLE Instruments—There is no part of our law relating to commerce that is of more importance than that which decides what are and what are not negotiable instruments. From one point of view this is a question of fact, rather than of law, the answer depending in many cases upon the custom of merchants; and it is highly desirable that questions such as these should be kept distinct from all that is arbitrary or technical, as far as that may be possible, and considered rather with reference to what is convenient in practice and reasonable in principle. It is not of itself sufficient to make an instrument legally negotiable that it is transferable by established custom. The custom of merchants (unless part of the ancient law merchant), with all the weight that has been given to it for the benefit of commerce, can not confer upon the holder of an instrument the right to sue upon it, unless the instrument is one, the legal right to sue on which passes by delivery, or because the parties are not themselves competent to introduce such an incident by express stipulation. And negotiable instruments must be of this last class. In order, therefore, to ascertain whether an instrument is negotiable, the question of fact must always be enquired into. Is it, by the usage of trade transferable like cash? But there remains the equally es GIFT RESULTING TRUST-A HINT TO JUDGES WHO WRITE LONG OPINIONS. We have often observed that with judges generally, and more especially perhaps, with the learned judge whom we are about to criticize, the soundness of the law laid down is frequently in inverse proportion to the length of the decision, we presume, because when a paradoxical conclusion is arrived at, a large amount of sophistical reasoning is needed to justify it. The prolix judgment of Lord Justice James in Fowkes v. Pascoe, 32 L. T. Rep. N. S. 545, is an instance in point. A widow, Sarah Baker, at several periods between 1843 and 1850, purchased stock in the joint names of herself and of J. I. Pascoe, the son by a second marriage of Mrs. Baker's daughter-in-law. She transferred other sums of stock into the same names. She died in 1850, having appointed Pascoe and Thompson executors and trustees of her will. The bill was filed by parties interested in the will, praying for a declaration that the sums of stock so purchased or transferred, belonging to the estate of the testatrix. The defendant adduced ev-sential question of law. Does the mere delivery of it confer upon idence that he had been treated by the testatrix as her son; and that her intention was that he should have the stock, and former servants of the testatrix deposed that she frequently spoke of him as her adopted son. The master of the rolls held that the evidence of the defendant and his wife could not be received; and that the mere depositions of the former servants could not be taken as proving that the testatrix intended to place herself in loco parentis to the defendant. And proof of quasi-parentage failing, the judge of the court below very properly, as we hold, declared that the equitable doctrine of resulting trust must prevail. The master of the rolls treated the claims of the defendant as entirely depending upon his proving the quasi-parental relationship. And his view of the case is supported by the authorities, notably by the well known case of Powys v. Mansfield, 3 My. & Cr. 359. If any person receiving it bona fide, and for value, a good title to the property which it symbolizes? Of what instruments this last question may be answered in the affirmative, was the point in the recent case of Goodwin v. Roberts and others, and though there could be little room for doubt as to what the judgment would be, the case was one of such immense importance in commercial circles, that it must have been with a feeling of relief that the judgment was heard in the city. The facts were as follows: The plaintiff purchased certain Russian and Austrian scrip in Feb., 1874, through one Clayton, who improperly pledged it to the defendants as security for a loan to himself. Clayton having been adjudicated a bankrupt, the defendants appropriated the proceeds of the scrip to the discharge of their advance to him; and the plaintiff then brought an action against the defendants to recover the sum they had received for the scrip. In delivering judgment, Baron Bramwell said that the question whether foreign bonds were negotiable instruments had been decided in Gorgier v. Mieville, 3 B. & C. 45, and that decision had never been overruled. The remaining question was whether there was such a substantial distinction between bonds the alarm created by the decision was so great that within a month an act (51 Geo. 3, c. 64) was passed, putting them on the same footing as cash and bank notes. In Byles on Bills (5th American edition, p. 281), it is said that in the state of Georgia it has been held that any bond payable to bearer is a negotiable instrument. It only remains to notice the case that was relied upon by the plaintiff in Goodwin v. Robarts (viz., that of Crouch v. Credit Foncier of England, ubi sup.), but which was distinguished in Baron Bramwell's judgment. The facts of that case were as follows:-A debenture of a limited company, registered under the companies' act 1862, payable to bearer on a particular day in the year 1872, with interest in the meantime, but liable to be drawn and paid off before that time, was sold by the company to M., in May, 1869, and stolen from him in July of the same year. Plain and scrip that the law that applied to the former did not apply to the latter. The case that had been relied upon by the plaintiff was Crouch v. The Credit Foncier of England, Limited, 29 L. T. Rep. N. S. 259, where it was held that an engagement to pay money to bearer, not entered into by a promissory note or bill of exchange, could not be rendered a negotiable instrument. But the argument that these scrips being merely engagements to give bonds, can not be made negotiable instruments, was founded upon the assumption, that the agents of the foreign governments for the:ff, at the end of the year 1871, purchased from one S. (who had negotiation of these loans in this country, took upon themselves some liability, which they clearly did not. It appeared to him shocking to common sense, that such scrip, which were in a manner interim bonds, should not be negotiable, while the bonds to which they related were negotiable. The case was governed by the decision in Gorgier v. Mieville, and the judgment of the court must be in favor of the defendant. Baron Cleasby concurred. From the above very brief summary of a most able judgment, it will be seen that these scrips are, as regards their negotiability, placed on exactly the same footing as bonds. since absconded) this debenture, which had been drawn in October, 1871, and demanded payment thereof from the company; but the company having received notice from M. of the debenture having been stolen from him, refused to pay it to the plaintiff, who brought an action against the company to recover the amount of it. At the trial it was admitted that similar documents had been treated as negotiable, it was also admitted that the plaintiff derived title from the thief, but the jury found that the plaintiff had given value for the debenture without notice, and it was held, first, that the contract contained in the conditions prevented the deThe leading case on this subject is Miller v. Race, Smith L. C. benture from being a promissory note, even if it had been under p. 479, 6th edit., in the notes to which the authorities are collected. hand only; secondly, that it was not competent to the defendants It was held in that case, that property in a bank note passes like to attach the incident of negotiability to such instrument, contrary that in cash by delivery, and a party taking it bona fide and for to the general law; and that the custom to treat them as negotiavalue, is entitled to retain it as against a former owner, from whom ble, not being sufficiently ancient to be a part of the law merit had been stolen. Lord Mansfield, in delivering judgment, gave chant made no difference, as such a custom, though general, the true reason why bank notes and cash are on the same footing could not attach an incident to a contract contrary to the general after delivery. "It has been quaintly said that 'the reason why law; and that the plaintiff, therefore, could not recover. Blackmoney can not be followed is, because it has no ear-mark,' but burn, J., in the course of his judgment, speaking of this debentthis is not true. The true reason is upon account of the currency ure payable to bearer, said: "It is under seal, and therefore is of it, it can not be recovered after it has passed in currency. So prima facie a covenant, not a promise; and it is quite clear that in case of money stolen, the true owner can not recover it, after a covenant to pay money is not negotiable, though a promissory it has been paid away fairly and honestly upon a valuable and note is." 3 & 4 Anne, c. 9. He goes on to consider whether the bona fide consideration: but before money has passed in cursealing by a corporation of a promise to pay, is only equivalent rency, an action may be brought for the money itself." So in to their signing it, or is a covenanting to pay; and then says: Foster v. Green, 31 L. J. 158, Ex. "It is essential to the cur"But it is not necessary to decide in the present case whether an rency of money that property and possession should be insepar- instrument under the seal of a corporation can be a promissory able." In Gorgier v. Mieville, ubi sup., the case on the authority note, for the contract of the Credit Foncier is not merely to pay of which Goodwin v. Roberts and others was decided, the King the money, but also to cause a portion of the bonds to be drawn in of Prussia had given bonds whereby he declared himself and his the stipulated manner; and any one entitled to sue on the consuccessor bound to every person who should, for the time being, tract contained in this instrument, would be entitled to sue for be the holder of the bonds, for the payment of the principal and damages, if the company did not fairly give him his chance of interest in a certain manner, and it was held that the property in having his bond drawn according to the stipulated conditions. those instruments, passed by delivery as the property in bank And it is obvious that such a contract as that can not be a promisnotes (Miller v. Race, ubi sup.), exchequer bills (Brandao v. sory note." It is needless to say that there was no such contract Barnett, 12 Cl. & Fin. 987) or bills of exchange, payable to in Goodwin v. Robarts. After alluding to the judgments in Atbearer; and that consequently, an agent in whose hands such a torney-General v. Bouwens, ubi sup., and Gorgier v. Mieville, ubi bond was placed for a special purpose, might confer a good title sup., he distinguishes them as follows: "We have no intention to by pledging it to a person who did not know that the party pledg-throw the least doubt on these decisions, but we do not think them ing it was not the real owner. See also Jones v. Peppercorn, 28 L. & J. 158, Ch. and Attorney General v. Bouwens, 4 M. & W. 171. In this last case, the point as to negotiability arose upon the question whether the instrument was subject to probate duty; and it was held that probate duty is payable in respect of bonds of foreign governments, of which a testator dying in this country, was the holder at the time of his death, and which have come to the hands of his executors in this country, such bonds being marketable securities within this kingdom, saleable and transferable by delivery only, and it not being necessary to do any act out of this kingdom in order to render the transferrence of them valid. And in the case of Glyn v. Baker, 13 East, 509, where it was held that East India bonds were not negotiable instruments, applicable to an English instrument made in England, and we express no opinion as to what might be the law as to the obligations made by subjects abroad, which, by the law of the country where they were made, are negotiable in that country."—[ The Law Times. -NON-RECOGNITION OF ATTORNEYS IN INDIAN BUREAU.-The commissioner of Indian affairs has issued a circular to Indian agents notifying them that by direction of the secretary of the Interior, no attorney or agent of the Indians will hereafter be recognized by the Indian bureau, unless the party proposing to act as agent or attorney for any Indian tribe shall have first submitted the matter in which he desires to act for the Indians, for the consideration of the department, and shall have received specific authority from the commissioner of Indian affairs, approved by the secretary of the interior. Correspondence. OSAGE MISSION, Kas, July 7, 1875. EDITORS CENTRAL LAW JOURNAL:-The numerous western readers who draw inspiration from the JOURNAL have reason to congratulate themselves that the legislature of New York has not adopted an old Roman law in force 302 A. U. C., which prescribed "fustuarium" as the punishment for libel. This law provided. "Si occentassit malum carmen, sive condidisset quod infamiam faxit flagitumque alteri, capital esto." If any one recite or compose words injurious to the reputation or honor of another, let him be beaten to death The Roman poet Horace refers to this law in the celebrated epistle to Augustus Cæsar. Epistles, book 2, Ep. 1. Perhaps an attorney who can convince the Supreme Court of New York that it has jurisdiction over the state of Missouri, can wring this in as a part of the common law. Notes of Unpublished Cases. THE RAILROAD LIEN LAW OF MISSOURI. C. F. H. In the case of James M. Walker and others v. The Mississippi Valley and Western Railway Company and others, in the United States Circuit Court for the Eastern District of Missouri, Judges Dillon and Treat recently decided some important questions, involving a large sum of money, in a contest between lien claimants and bondholders. The complainants, as trustees under two mortgages given by the railroad company to secure its bonds, brought suit in equity to foreclose them, and, among others, made defendants certain parties who had performed work and labor, and furnished materials in the construction and improvement of the railroad, and who claimed liens upon the railroad property under the act of the General Assembly of Missouri, approved March 21st, 1873, entitled "An act to protect contractors, sub-contractors, and laborers in their claims against railroad companies or corporations, contractors or sub-contractors." The first mortgage was executed March 12th, 1872. The second mortgage was executed May 28th, 1873. At the time of the execution of the first mortgage the M. V. & W. Ry. Company was only authorized to own and operate a railroad from West Quincy, Marion county, Missouri, to Keokuk, Iowa, and from Canton, Mo. (a point about equi-distant from West Quincy The and Keokuk), westward to the Missouri river. In January, 1873, the Mississippi Valley & Western Railway Company and two other railway companies consolidated, pursuant to the laws of Missouri and Iowa. The consolidated company retained the name of the Mississippi Valley & Western Railway Company, and was authorized to own and operate a railroad, from St. Charles, Missouri, to Keokuk, Iowa, and from Canton, Missouri, westward to the Missouri river. The first mortgage, therefore, covered the railroad property from West Quincy to Keokuk, Iowa, and from Canton westward. second mortgage, made by the consolidated company, covered the same property, and, in addition thereto, the property of the railroad from West Quincy to St. Charles, and was a first mortgage upon that part of the railroad and property between those points, and a second mortgage upon that part of the railroad between West Quincy and Keokuk and from Canton westward The bill charged that the liens of the defendants, if any, were inferior and prior to the liens of the mortgages. The defendants filed separate answers, and after alleging that they had. liens, and had taken all the steps required by the lien law to preserve and keep alive their liens, charged that their liens were prior and superior to the lien of the mortgage executed May 28th, 1873, and were, therefore, the first liens on all that part of the railroad and its property between West Quincy and St. Charles, Missouri. Agreed statements of facts were filed between the complainants and the lien claimants, by which it was admitted that the lien claimants had complied with the statute in preserving and keeping alive their liens. It was also admitted by the agreed statements that the work and labor was done, and the materials furnished in the construction and improvement of the railroad after June 20th, 1873. The second section of the lien law provides that the lien given by the law shall be prior to all mortgages or incumbrances placed upon the railroad and its property, subsequent to the passage of this act. There is no section of the lien law which says expressly that the act shall take effect from and after its passage, or at any particular time. The General Statutes of Missouri (sec. 4, chapter 5, 2d Wagner, p. 894) provide that "All acts of the General Assembly shall take effect at the end of ninety days after the passage thereof, unless a different time is therein appointed." Two questions were presented and argued : 1. The constitutionality of the law as applied to mortgages upon the property where work and labor was done and materials furnished and made since the passage of the law. 2. When did the lien law take effect? The complainants, representing the bondholders, contended that the lien law was unconstitutional so far as it gave priority over mortgages existing when the work and labor and furnishing of materials were begun. The complainants also contended that the lien law had no force and effect, as to priority or otherwise, until the expiration of ninety days from its approval, namely, until June 19th, 1873. The lien claimants contended, that the law was constitutional, and that the phrase "passage of this act," as used in the second section of the lien act, meant the approval of the governor, namely, March 21st, 1873, and that the lien, whenever acquired, was prior to all mortgages or incumbrances subsequent to that time. Judge DILLON delivered the opinion of the court, orally. The court held, 1, that it was competent for the legislature, and within the legitimate scope of legislative power, to provide in the act, entitled " An act to protect contractors, sub-contractors and laborers in their claims against railroad companies or corporations, contractors or sub-contractors," approved March 21st, 1873 (Session Acts, 1873, page 58), that the lien given by the act should be prior to all mortgages or incumbrances placed upon the railroad property subsequent to the passage of the act. There is no constitutional objection to such a provision. Phillips on Mechanics' Lien, sec. 30, pages 46, 47; Stonewall Jackson Association v. McGruder, 43 Geo. 9; Hildebrand's Appeal, 39 Penn. St. 133; Blauvelt v. Woodworth, 31 New York, 285; lien given by the lien act is prior to all mortgages or incumbrances placed upon the railroad and its property subsequent to March 21st, 1873, the date of the approval of the law. The phrase "subsequent to the passage of this act," and in the second section of the act, means subsequent to the approval by the governor. Hicks v. Murray, 43 Cal. 515; Davis v. Bilsland, 18 Wallace, 659. 2. The And a mortgage lien placed upon the railroad and its property between the date of the approval of the act, to-wit:-March 21st, 1873, and June 19th, 1873, the end of ninety days after the approval, is subordinate and inferior to the lien of the contractor, laborer or material-man acquired nnder the lien act. As to the meaning of the phrase passage of an act," see In re John C. Tibbetts (opinion of Judge Story), 5 Law Reporter, 267; Johnson v. Fay, 16 Gray, 144. And as to when an act is passed, Logan v. State 3 Heiskell (Tenn.), 442; Wartman v. City of Philadelphia, 33 Penn. St. 202; People v. Clark, 1 Cal. 406; Brainard v. Bushnell, 11 Conn. 17; In re Richardson, 2 Story's Rep. 580. Davis, Thoroughman & Warren, and G. Edmunds, Jr., represented the complainants; and Theo. Bruer, Dryden & Dryden, and James Hagerman, the lien complainants. Abstracts of Opinions of the Supreme Court of the United States. [Prepared expressly for this journal, by HENRY A. CHANEY, Esq., of Detroit, Mich.] Common Carrier's Liability Limited by Contract. - Southern Express Co. v. Caldwell. Opinion by Strong, J. The company was sued for failure to deliver at New Orleans a package, received by them April 23, 1862, at Jackson, Tennessee. They had stipulated, when they received it, that they should not be held for its loss or any damage to it, unless claim should be made within 90 days from delivery to them. Claim was not made until 1868. 1. The responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable and not inconsistent with sound public policy. York Co. v. Central R. R. Co., 3 Wall. 107. 2. A common carrier is always responsible for his negligence, no matter what his stipulations may be. Railroad Co. v. Lockwood, 17 Wall. 387. 3. An express stipulation made between a common carrier and its employer that the carrier should not be held liable for any loss of, or damage to the property carried, unless claim should be made within 90 days from its delivery to the carrier, held reasonable, and not against the policy of the law. Lewis v. Gt. Western Ry. Co., 5 Hurl, & Norm. Exch. 867. It leaves the plaintiff at liberty to sue at any time within the period fixed by the statute of limitations, and relieves the defendants from no part of the obligations of a common carrier. It only requires that the shipper should, by asserting his claim, give reasonable notice of the loss so that the carrier, on whom it falls to trace out the goods, may ascertain the facts. See analogous decisions in Riddlesberger v. Hartford Ins. Co., 7 Wall, 386, re lating to a claim for the loss by fire, of insured property; Wolf v. Western Union Telegraph Co., 62 Penn. St. 83; Young v. W. U. Tel. Co., 34 N. Y. 390, as to claims for damages against a telegraph company. The ruling is very important and the question is fully considered in the opinion. Captured and Abandoned Property Act-Right of Recovery under it.-Haycraft v. United States; Lane v. United States, opinion by Waite, Ch. J. A leading opinion on the right to recover the proceeds of captured cotton sold by the government. 1. The act for the seizure and sale of captured and abandoned property, found in rebel territory concerned only such private property of the enemy as was abandoned by its owner, or like cotton was liable to capture for the benefit of the enemy. Acc Mrs. Alexander's Cotton, 2 Wall. 419; Paddleford's case, 9 Wall. 540; Klein's case, 13 Wall. 136; Mrs. Anderson's case, 9 Wall. 67; Zellner's case, 9 Wall. 248. 2. Persons who gave aid and comfort to the late rebellion, can not, after two years from its suppression, receive the proceeds obtained by the United States from the sale of their property under the act authorizing the sale of captured and abandoned property. 12 Stat., 820. 3. Where the same statute creates a right and the remedy for enforcing it, the remedy provided is exclusive of all others. Navigation-Liability of Vessel-Owners-Collisions-Inevitable Accident-Damages.—Steward v. Teutonia, opinion by Clifford, J. At between ten and eleven o'clock on a dark and foggy night, the steamship Teutonia and the river steamer A. G. Brown collided in the Mississippi river, to the destruction of the latter vessel with its cargo. They had exchanged warning signals, but had become confused, and evidence indicates that some of the signals received no reply. Instead of remaining stationary until they could ascertain each other's position, they were both under head-way when the collision took place. 1. Persons engaged in navigation are bound to provide suitable vessels; the vessel owners appoint the master and crew, and are responsible for their care and skill. When a collision happens from the unfitness of the colliding vessel for the voyage, or from the negligence or want of care and skill of those entrusted with her navigation, the fault is imputed to the owners, and the vessel is liable for the consequences. 2. "Inevitable accident" in the case of a collision, is where both parties have endeav ored by all means in their power, with due care and a proper display of nautical skill, to prevent its occurrence, or it may result from darkness of the night, if it clearly appears that both parties were without fault from the time the necessity for precaution began, to the moment when every opportunity to avoid the danger ceased. 3. If a collision ensues in consequence of delay in taking precautions, it is no defence to allege and prove that nothing could be done at the moment to prevent the disaster, or that the necessity for precautionary measures was not perceived until it was too late to render them availing. 4. Where colliding vessels are both in fault, damages are divided between them. Surety's Liability on Appeal-Mandamus-Practice as to Appeals.-Ex parte Sawyer et al., opinion by Waite, Ch J. 1. An appeal from a decree does not involve those who stand simply as sureties on appeal. in the liability of the principal respondents. 2. Mandamus lies to compel a court to act, as e. g., to execute a decree, but the court is supreme within its own jurisdiction while acting. 3. A provisional order can not be appealed from because it is not final. 4. A decision that execution shall not issue, can be reviewed on error or appeal only, and not on an application for mandamus. Recent Reports. Reports of Cases Argued and Determined in the Supreme CoURT OF JUDICATURE OF THE STATE OF INDIANA. BY JAMES B. BLACK, Official Reporter. Vol. 47. Containing cases decided at the May term, 1874, not published in vol. 45 and vol. 46, and cases decided at the November term 1874. Indianapolis: Journal Company, Printers and Binders. 1875. We are indebted to the courtesy of the able reporter, Mr. Black, for this handsome volume, one of the best of this most excellent series, the appearance of which does credit to both publishers and reporter. The tables of cases reported and cited; the index and the general arrangement—particularly in the employment of small-cap side heads to the paragraphs of the syllabi-indicate the care and ability of the reporter. We can not pay the reporter a higher compliment, perhaps, than to say, with reference to his syllabi, that they are models of excellence, and that we have with pleasure made use of them largely in the preparation of the following notes of decisions. learning in the city of Logansport, or its vicinity," it was held that the payees were trustees of an express trust, and were proper parties in an action on the note. To such an action, the plea was that the defendant was, at the time of the execution of the note, of unsound mind. A reply that at said time defendant appeared to be of sound mind, and was not known to the plaintiff to be otherwise; and that in reliance on the promise, and before any disaffirmance by him, they had incurred just liabilities for the purpose stated in the note, and that therefore defendant was estopped, was held bad. Wilder v. Weakley's Estate, 34 Ind. 181, distinguished. Contract- Contradiction by Parol-Set-off. Benoit, Admr., v. Schneider, Admr., p. 13. Opinion by Downey, J. Action for foreclosure of a mortgage securing a note. Answer that the defendant was a bishop of the Roman Catholic Church, and according to the canons of said church, the real estate of each congregation of his diocese was deeded to him to hold in trust, that the mortgage was on real estate purchased by one of his congregations, and was given to secure a note given by him for money lent by the intestate of plaintiff to said congregation, with the agreement and understanding that said congregation and not defendant was to pay the note. Also that said intestate was the priest of said congregation, and as such collected certain moneys from its members with which to pay its debts, including said note, and had not paid over to the congregation any portion of such moneys. Held, that the verbal understanding between the mortgagee and the defendant, could not be set up against the written contract. Railroad-Right of way-Street. Indianapolis, Peru & Chicago R. R. Co. v. Ross, p. 25. Opinion by Downey, J. The constant and exclusive use of part of a public street of a town by a railroad company for a right of way, can not in any time ripen into an absolute ownership. Railroad-Exclusive Right to use of tract-Contributory Negligence.-Jeffersonville, Madison & Indianapolis R. R. v. Goldsmith, p. 43. Opinion by Buskirk, J. Between stations and public crossings, a railroad track belongs exclusively to the railroad company, and all persons who walk, ride or drive thereon, are trespassers; and if such persons so walk, ride or drive thereon at the sufference, or with the permission of the company, they do so subject to all the risks incident to so hazardous an undertaking, and if injured by a train of the railroad company, the company is not liable in damages, unless the injury was wantonly or intentionally inflicted. This very able opinion is of great interest, as showing a new phase of the doctrine of contributory negligence. The case of Gillis v. Pa. R. R. Co., 59 Penn. St. 129, was followed, and the following were cited: Barker v. Midland Railway Co., 18 C. B. 46; Commonwealth v. Power, 7 Metc. 569; Hall v. Power, 12 Metc. 482; Harris v. Stevens, 31 Vt. 79; Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Ald. 304; Bird v. Holbrook, 4 Bing. 628; Hounsell v. Smith, 7 C. B. N. S. 731; Binks v. South Yorkshire R. W. Co., 3 Best & S. 244; Lygo v. Newbold, 9 Exch. 302: Knight v. Abert, 6 Pa. St. 472; Lynch v. Nurdin, I Q. B. 29; Wilson v. Brett, 11 M. & W. 113; P. Ft. W. & C. R. R. Co. v. Evans, 53 Pa. St. 250; Sherlock v. Alling, 44 Ind. 184, and Lewis v. Balt. & O. R. R. Co., 13 Am. L. R. N. S. 284. Railroad-Act of Conductor-Commutation Ticket.-Terre Haute and Indianapolis R. R. Co. v. Fitzgerald, p. 79. Opinion by Osborn, J. A railroad company being the owner of one road and the lessee of another, the two forming a continuous line between Indianapolis and St. Louis, sold a thousand mile ticket," authorizing the purchaser to travel three hundred miles upon one of said roads, and seven hundred miles upon the other, having black figures representing one road and red figures the other, with direc tions to conductors to punch out the figures accordingly, and a contract signed by the purchaser to the same effect. After all the red figures, representing the number of miles which the purchaser was entitled to travel on the eastern division of the line, had been punched out, the purchaser offered the ticket for passage on a train on the said division, which the conductor refused to accept, and also refused to punch out black figures in lieu of the red. The holder of the ticket thereupon refused to pay fare and to leave the train, and was therefore ejected threfrom by the conductor with force. Held, that the terms expressed on the ticket, constituted a contract between the seller and the purchaser of the ticket; that when the purchaser had travelled on the eastern portion of the line, a sufficient number of miles to exhaust the red figures, the ticket gave him no claim to be carried any more on that part of the road; and that his refusal to pay fare, or to leave the car, justified his expulsion therefrom by the conductor. Married Woman's Note-Mortgage by Husband and Wife of We regret not being able to notice a larger number of the many important Wife's Separate Estate.-Brick v. Scott, p. 299. Opinion by Buskirk, and interesting decisions which are contained in the volume. Trust and Trustee-Estoppel-Unsound Mind.-Mussulman v. Cravens, p. 1, opinion by Buskirk, J. Where a note was given payable to certain persons" for the purpose of erecting and endowing an institution of J. The promissory note of a married woman is absolutely void, and is not evidence of any promise on her part to pay the indebtednss for which the note is given. A mortgage executed by herself and husband on her separate estate to secure such note, can not be foreclosed, nor can a personal judgment |