ous to avoid all questions as to whether the policy was to be avoided by the physical act simply of the assured when unaccompanied by any corresponding intellectual purpose or act of the mind. Nor do we see any reason why a life insurance company may not stipulate against voluntary and intentional self-destruction. The courts have repeatedly recognized their right to stipulate against numerous kindred risks, and we see no difference in principle between stipulating against a voluntary death by poison or by violence, and voluntary death by opium or habitual drunkenness. In either case the avoidance of the policy proceeds upon the theory that it was within the power of the assured to avoid death by such instrumentalities and therefore his duty to do so.

There is some difficulty, however, in applying to the admitted facts of this case the construction which we have given to the language of the policy here sued on in consequence of a want of perspicuity in the language of Mr. Justice Hunt in Terry v. Life Ins. Co. heretofore quoted, a portion of which has been adopted by the parties to this suit as descriptive of the state of mind of the insured at the time of his death. Wo think with Rapallo, J., in Van Zandt v. Mutual Benefit Life Ins. Co., supra, that the passage literally construed includes several conditions which cannot co-exist. We copy his comment: "It can be conceived that the act might have been voluntary and the self-destruction intentional, though the assured failed to appreciate its moral character. But it is difficult to conceive how the act could have been voluntary and intentional when the faculties of the deceased were so impaired that he was not able to understand the general nature, consequences and effect of the act he was about to commit, or when he was impelled thereto by an insane impulse which he had not the power to resist." In order to make the extract from the opinion of Mr. Justice Hunt consistent with itself the words, general nature, consequences and effect of the act' must be taken to be an amplification of the words, 'moral character' immediately preceding and to refer to the moral nature, moral consequences and effect of the act; and the last alternative must be regarded as an independent statement of manner of the death of the assured because it is impossible that the death could be caused by the voluntary act of the assured' when he was impelled thereto by an insane impulse which he had not the power to resist.'"' Besides this is evidently the construction put upon this passage by the Supreme Court of the United States in the subsequent case of Bigelow v. Berkshire Life Ins. Co., supra.

The language of the agreed statement denoting the state of mind of the assured having been adopted from the opinion in Terry v. Insurance Co. must be regarded as having been used by the parties in the sense in which it was employed in that opinion, and as it appears from such statement so construed that the mind of the assured was only so far impaired that he did not understand the moral quality and consequences of his act, it follows from the views we have expressed that the defendant is not liable for the full amount of the policy.

The judgment will therefore be reversed and the cause remanded, with directions to the Circuit Court to enter a judgment against the defendant for the net value of the policy at the time of the death of the insured. All concur.

NEW YORK COURT OF APPEALS ABSTRACT.

AGENCY AGENT CONTRACTING IN HIS OWN NAMENOT UNDER SEAL.-A lease for one year, purported to have been made by the lessors named therein, who were stated to be "agents as landlords" with the defendant in 1873, and renewals for one year were in

dorsed thereon up to 1876. Neither lease nor renewals, which were signed by the lessee, were under seal, and the name of the principal did not appear. Held, that the principal could maintain an action in his own name for rent on the lease and renewals, and the renewals could be introduced in evidence. The principle is well settled that if an agent possesses due authority to make a written contract, not under seal, and he makes it in his own name, whether he describes himself as agent or not, or whether the principal be known or unknown, his principal will be made liable and will be entitled to sue thereon in all cases, and the instrument may be resorted to for the purpose of ascertaining the terms of the agreement. Briggs v. Partridge, 64 N. Y. 357. A different rule prevails as to sealed instruments. Nicoll et al., executors, v. Burke, appellant. Opinion by Miller, J. [Decided Nov. 18, 1879.]

APPEAL-ORDER GRANTING RESALE DISCRETIONARY AND NOT APPEALABLE. — Although cases can be supposed in which an order granting a resale can be reviewed in this court, such orders are usually discretionary and no appeal to this court lies. But an order refusing a resale has been held appealable where the conceded and established facts constituted a fraud in law, which, upon established principles, gave to the complaining party a legal right to have the original sale vacated. Howell v. Mills, 53 N. Y. 332. But it does not follow that where a resale has been granted on allegations of fraud, the order is necessarily reviewable in this court, and must be reversed if it appears that the proofs fall short of establishing such a fraud as rendered the granting of the resale a matter of legal right. Accordingly when a resale was ordered where it was claimed that no actual fraud was established, but there were very suspicious circumstances, the evidence tended to show that plaintiff, by an artifice on the part of one of the defendants, was led to believe that one W. would buy the property offered for sale from him at a high price, and on that account himself bid a high price, held, that the order was not reviewable by this court. Appeal dismissed. Fisher v. Hersey et al., appellants. Opinion by Rapallo, J. [Decided Oct. 14, 1879.]

EMINENT DOMAIN -PRACTICE.-In proceedings by a company building a railroad to acquire the right to cross an existing railroad, it appeared that the latter road was owned by the A company, but was by it leased to the B company by a perpetual lease; the petition did not show that any attempt had been made to agree with the A company as to the points or manner of crossing its road, or the compensation to be paid therefor, but stated this fact as to the B company. Held, that the court below had no jurisdiction to appoint commissioners as to the A company, but had as to the B company. The attempt and failure to agree is a condition precedent to the authority of the court to appoint commissioners, and unless this is averred in the petition there is no jurisdiction. But the A company was not a necessary party to the proceeding. There is nothing in the statute which requires that the proceeding in such a case as this should embrace all the parties who either as lessees or reversioners have an interest in the railroad which may be crossed by a new line. The proceeding will only affect the parties brought in, and when the lessee is made a party alone the estate in reversion will not be affected. Matter of Boston, Hoosac Tunnel & Western Railroad Co. Opinion by Andrews, J. [Decided Nov. 25, 1879.]

RAILROAD CROSSING RAILROAD

EVIDENCE-PAROL TO VARY WRITTEN CONTRACT.Parol evidence is admissible to show a mistake or misapprehension in one drawing a deed contrary to the design of the parties, but it is to be received with great

caution. It is said in Graham v. Child, 1 Bro. C. C. 93, that it "should be proved as much to the satisfaction of the court as if it was admitted," and such is the rule now. Gillespie v. Moore, 2 Johns. Ch. 597; Mead v. Westchester F. Ins. Co., 64 N. Y. 453. Accordingly where evidence fell short of this and there was none at all indicating that one of the parties to the instrument had any intention other than that expressed in it, held, that the finding of a referee that there was mistake or misapprehension should not be sustained. Judgment reversed and new trial granted. Ford and ano., ex'rs, appellants, v. Joyce. Opinion by Danforth, J.

[Decided Nov. 11, 1879.]

UNITED STATES SUPREME COURT

ABSTRACT.

OCTOBER TERM, 1879.

CONTRACT· -CONSTRUCTION OF PAROL CONTRACT TO VARY CONTRACT UNDER SEAL.-A canal company leased water-power to defendant, who owned a mill near its canal, by a lease under seal. The lease provided for the location of a water gauge and aperture at or near the bank of the canal, and they were located there. The lease provided that such alterations should be made from time to time in the forebay or trunks, cover, or bridge aperture, and sliding gate or gates as might be considered necessary by the company or their officers, to prevent or lessen the inconvenience to the navigation of the canal and the use of its towing-path, which might be found to arise from said use of the water, or that might be thought necessary by the company for the greater security of the canal or of its works. Subsequently at the request of other millers the board of directors of the company passed a resolution providing that the location of the water gauges of the various mills taking water from the canal might be altered and the superintendent of the company was directed to place them "at such points as may be deemed most advisable to effect the objects of the respective water grants, and to limit the flow of water to the quantity to which the lessees are severally entitled. Provided, that the board may, at any time during their pleasure, if they shall deem it necessary, alter or change the position of such gauge or gauges, or any of them, as contemplated by the lease, and that this resolution shall not in any manner change or impair the provisions or requirements of the respective leases granted to said parties." This resolution was consented to in writing by defendant, who subjected himself to certain obligations contained therein and the alteration was made. In 1865, thirteen years after this was done, the company required defendant to again change the location of the water gauge. There was no cause which under the terms of the lease would justify a demand for change. Held, that the resolution and acceptance thereof by defendant constituted an alteration of the original lease; that the company obtained thereby no greater right to require a change in the location of the water gauge than it had under the lease, and that the last demand for change could not be enforced. Notwithstanding what was said in some of the old cases, it is now recognized doctrine that the terms of a contract under seal may be varied by a subsequent parol agreement. Certainly, whatever may have been the rule at law, such is the rule in equity. Dearborn v. Cross, 7 Cow. 48; Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241; Fleming v. Gilbert, 3 Johns. 528. These are cases at law. Numerous others might be cited. The rule in equity is undoubted. Decree of District of Columbia Supreme Court affirmed. Chesapeake & Ohio Canal Co., appellant, v. Ray. Opinion by Strong, J.

DAMAGE FOR NEGLIGENCE-MENTAL SUFFERING.— This was a suit to recover damages for the careless and negligent shooting and wounding of Giblin, the plaintiff below, by McIntyre, the defendant. On the trial the court charged the jury that in computing the damages they might take into consideration "a fair compensation for the physical and mental suffering caused by the injury." Held, that the effect of this instruction was no more than to allow the jury to give compensation for the personal suffering of the plaintiff caused by the injury, and that the charge was not erroneous because the words "and mental" were included. Judgment of Utah Supreme Court affirmed. McIntyre, plaintiff in error, v. Giblin. Opinion by Waite, C. J.

FORECLOSURE-SETTING ASIDE SALE UNDER TRUST DEED.-The fact alone, that the price received at a sale under a trust deed was grossly inadequate, if the preponderance of testimony shows that the sale was duly advertised, and was fairly and properly conducted, and it appears that the inadequacy was not such as to shock the conscience, or raise a presumption of fraud or unfairness, does not constitute a sufficient reason to impeach the genuineness or validity of the sale. Hill on Trustees, 152, note. 3 Wash. C. C. 546; 23 Md. 66. Decree of District of Columbia Supreme Court affirmed. Clark, Trustee, appellant, v. Commissioners of Freedmans' Savings & Trust Co. Opinion by Harlan, J.

PRACTICE-LEGAL AND EQUITABLE CAUSE OF ACTION CANNOT BE UNITED.-In the Federal courts the union of equitable and legal causes of action in one suit is not permissible under the process act of 1792, substantially re-enacted in the Revised Statutes, declaring that in suits in equity, in the Circuit and District Courts of the United States, the forms and modes of proceeding shall be according to the principles, rules, and usages which belong to courts of equity. So held in a case transferred to the Federal court from a court of Texas, in which State the union of equitable and legal causes of action in one suit is permitted. The court remark in regard to the requirement mentioned (1 Stat. 276, § 2, U. S. R. S., § 913), that it has always been held obligatory upon parties and the court whenever the question has been raised. Thompson v. Railroad Companies, 6 Wall. 134. A party who claims a legal title must, therefore, proceed at law, and a party whose title or claim is an equitable one must follow the forms and rules of equity proceedings as prescribed by this court under the authority of the act of August 23d, 1842. 5 Stat. 518, § 6. The case of Hornbuckle v. Tombs, 18 Wall. 648, does not conflict with this view; it only decides that the process act of 1792 does not extend to proceedings in the courts of the several Territories, which may be regulated by their respective Legislatures. Judgment of U. S. Circ. Ct. E. D. Texas reversed. Hurt, plaintiff in error, v. Hollingsworth. Opinion by Field, J.

STATUTORY CONSTRUCTION-GRANTS TO RAILROADS BY CONGRESS SUBJECT TO PRIOR ACQUIRED RIGHTSPACIFIC RAILROAD GRANTS.- Defendant, a mining company, in 1853, constructed a canal for the purpose of furnishing water for mining operations over lands in California belonging to the United States, and expended a large sum of money in so doing. This canal was necessary for mining purposes of defendant. In 1862 and in 1864, acts were passed by Congress granting lands including a portion of those over which this canal passed, to the Pacific railroad companies. The last-named act contained this: "Any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp-land, or other claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler, or any lands returned

or denominated as mineral lands, and the timber necessary to support his said improvements as a miner or agriculturist." In July, 1876, Congress passed this act, the purpose of which was to deal with the rights of miners who had theretofore, without objection, and with the tacit encouragement of the United States, discovered, developed, and mined the public lands. The 9th section of that act contains this declaration: "That wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged." The canal has since its construction been uniformly acknowledged and recognized by the local customs, laws, and decisions of the courts of the State of California, in which it lies, and that the land covered by the canal and its branches is indispensable to its use. In August, 1866, plaintiffs pre-empted lands through which the canal rau, and also purchased other lands through which it ran from the Pacific railroad companies. Held, that the defendant was entitled to maintain its canal, and the title of plaintiff in the lands pre-empted and purchased was subject to defendant's right of way. It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations, and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. And the section of the act quoted was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one. Atchison v. Peterson, 20 Wall. 507; Basey v. Gallaher, id. 670; Forbes v. Gracy, 94 U. S. 762; Jennison v. Kirk, 98 id. 453. And in making donations in aid of railroads Congress could not be supposed to exercise its liberality at the expense of pre-existing rights, which, though imperfect, were still meritorious, and had just claims to legislative protection. See Wolcott v. Des Moines Navigation Co., 5 Wall. 681; Williams v. Baker, 17 id. 144; Leavenworth, L. & G. R. R. Co. v. U. S., 92 U. S. 733. Judgment of Supreme Court of California affirmed. Broder, plaintiff in error, v. Natoma Water and Mining Co. Opinion by Miller, J.

ILLINOIS SUPREME COURT ABSTRACT.

NOVEMBER, 1879.

CONSTITUTIONAL LAW LAW RELATIVE TO TEXAS CATTLE INVALID.-The statute of Illinois relating to Texas and Cherokee cattle, and making a party having them liable for disease communicated by them is unconstitutional, and no action can be maintained under its provisions. Jarvis v. Riggin.

SCHOOLS-TEMPORARY USE OF SCHOOL-HOUSE FOR RELIGIOUS WORSHIP NOT FORBIDDEN BY THE CONSTITUTION.-The provisions of the statute that school directors may grant the temporary use of schoolhouses, when not occupied by schools, for religious meetings and Sunday schools, for evening schools, for literary societies and such other meetings as they may deem proper, is not repugnant to any constitutional provision, and the use of a school-house for temporary religious meetings, which do not interfere with the

schools, will not be enjoined as illegal. An incidental use of a school-house for the holding of religious meetings not interfering with school purposes is not in any reasonable sense inconsistent with its faithful application to the object of a gift or donation for school purposes, and such an use of the same is not an appropriation or payment from any public fund in aid of any church, etc. Religion and religious worship are not so placed under the ban of the Constitution that they may not be allowed to become the recipient of any incidental benefit whatever from the public bodies or authorities of the State. Nichols v. School Directors.

TAXATION -PROPERTY OF UNITED STATES EXEMPT FROM, THOUGH LEASED-LESSEE MAY OBJECT TO TAX. The power of taxation by a State, however broad and comprehensive it is, is not so extensive as to embrace property regarded as the means or instruments of conducting the Federal government in pursuance of the Constitution, nor to subjects over which the sovereign power of the State does not extend. Such property is exempt from State taxation. The power of a State to tax, ample as it is, does not reach the means and instruments of the Federal government, nor to the administration of justice in the Federal courts, nor the collection of the public revenue, nor so as to interfere with any constitutional regulation of Congress. Property, while the title to it is in the United States, no matter for what purpose it is acquired or held, is exempt from State taxation. Where taxes are levied upon property while owned by the United States, and are sought to be collected by judgment and sale after a lease of the property to a private citizen, it is not a matter of any consequence who files objections to the taxes, whether it is done by the lessee or by the United States through its proper officer, and the district attorney of the United States, resident in the district where the property is situate, is a proper person to interpose objections on behalf of the United States. People ex rel. McCrea v. United States.

MICHIGAN SUPREME COURT ABSTRACT. OCTOBER, 1879.

CONTRACT-IMPLIED PROMISE-COVENANT AGAINST INCUMBRANCES.-Defendant agreed to convey land to plaintiff and to pay certain incumbrances thereon. Defendant, at plaintiff's request, conveyed the land to plaintiff's wife, but did not pay off the incumbrances, and plaintiff was compelled to pay them in order to save the land. In an action to recover the amount so paid, held, that as the defendant was charged with the duty of making payment, but neglected to do so, and plaintiff was compelled to pay for the protection of his own interest, the law will imply a promise to repay. Hales v. Freeman, B. & B. 391; Fosler v. Ley, 2 Bing. N. C. 269; Dawson v. Linton, 5 B. & Ald. 521; Brown v. Hodgson, 4 Saund. 187; Hale v. Huse, 10 Gray, 99. It was decided in Hunt v. Amidon, 4 Hill, 345, followed in Sargent v. Currier, 49 N. H. 310, that a vendor of incumbered property was liable in a count for money paid to the purchaser who had been compelled to discharge the incumbrance in order to retain the property. Such a payment is a compulsory discharge by the vendee of a duty incumbent on the vendor; it is in no sense a voluntary payment. Held, also, that the defendant would not be relieved from liability, even if the deed from him to plaintiff's wife contained a covenant against incumbrances. The defendant would be liable on it for nominal damages only, unless the wife herself paid off the incumbrances. Delavergne v. Norris, 7 Johns. 358; Stanard v. Eldridge, 16 id. 254; Porter v. Bradley, 7 R. I. 538; Willetts v. Burges, 34 Ill. 494; Linder v. Lake, 6 Iowa, 164. Norton v. Colegrove. Opinion by Cooley, J.

REVIVING

STATUTE OF LIMITATIONS- PAYMENT DEBT BY JOINT DEBTORS.-A principal and surety on a note went together to the holder of the note to make a payment thereon. Both principal and surety participated in the transaction, but the money was paid by the principal and belonged to him. Held, sufficient to avoid the statute of limitations as to both. At the common law a payment made by one of the debtors would have kept the demand alive as to both, and would have been equivalent to a new promise by both. Wyatt v. Hodson, 8 Bing. 309. But it was by the statute provided that one joint debtor should not have it in his power to keep alive or revive a debt against another by a payment in which the other did not participate. A payment under this statute is equivalent to a new promise, and as one cannot make the express promise for the other, neither can he make for him the indirect promise which a payment implies. Marienthal v. Mosler, 16 Ohio St. 566. In Quimby v. Putnam, 28 Me. 419, it was decided that a payment made by one of two joint debtors on the debt could not be considered the payment of both, merely because of the other being present when the payment was made. The ruling seems entirely correct. This case is quite different. Not only were both present here, but both came for the express purpose of making the payment and for no other. Both were co-operating in it, and the mere fact that the manual delivery of the money was made by one only was not only an unimportant circumstance in itself, but it is what would be expected in any case of a joint payment. Mainzinger v. Mohr. Opinion by Cooley, J.

WISCONSIN SUPREME COURT ABSTRACT. NOVEMBER 28, 1879.

LIBEL- -CHARGE OF OFFICIAL DISHONESTY LIBELLOUS PER SE― PRIVILEGE.—A publication which charges that a person, while formerly holding the office of sealer of weights and measures and inspector of scales for a certain city, "tampered with" or "doctored" such weights, measures and scales, for the purpose of increasing the fees of his office, is prima facie libellous, as tending to bring the accused into public hatred or contempt. On demurrer to a complaint in libel which alleges that defendant made such charges against plaintiff "falsely, wickedly and maliciously," the question whether the publication was privileged does not arise; as privilege does not extend to false charges made with improper motives or express malice. Folkard's Starkie on Slander, ch. 11; White v. Nicholls, 3 How. (U. S.) 266; Klinck v. Colby, 46 N. Y. 427; Noonan v. Orton, 32 Wis. 106; Cottrill v. Cramer, 43 id. 242. Eviston v. Cramer. Opinion by Cole, J.

MARITIME LAW-ARREST OF VESSEL BY MASTER TERMINATES HIS EMPLOYMENT.-A vessel, of which plaintiff was master, was arrested by process in admiralty issued at the suit of himself and another, and her voyage or employment interrupted until she was released by her owners. Held, that plaintiff by his act terminated his employment at the option of the owners of the vessel. The court say that it is the master's duty to protect, as far as it may lawfully be done, his vessel and the interest of his owners in it. In case of arrest, or threatened arrest, it is his duty to do all that he may properly do, on behalf of the vessel and her owners, to free her from arrest, so that she may prosecute her voyage or employment; and in the performance of these duties the master is held to a high degree of care and integrity. Abbott's Shipping, 167; 1 Parsons' Shipping, 140; 2 id. 3; The Aurora, 1 Wheat. 96; Smith v. Gould, 1 Moore's Pr. C. 21; The Gauntlet, 3 W. Robinson, 82. Plaintiff took a course inconsistent with his employment and duties as master, stopping the employment of the vessel with which he

was charged, and terminating his own employment as master at the election of the owners. He could not by his own act, in his own behalf, stop the navigation of the vessel, and at the same time be entitled to wages for navigating her. As far as it lay with him he rescinded his contract of employment as master by putting it out of his own power to perform it. Budge v. Mott. Opinion by Ryan, C. J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

OCTOBER, 1879.

BANKING-TITLE TO DEPOSITS-APPLICATION UPON LIABILITY OF DEPOSITOR.- Where a depositor had money in a bank and the bank held a promissory note upon which such depositor was liable, held, that the application of the amount of deposit toward the payment of the note was proper. Money deposited in a bank does not remain the property of the depositor, upon which the bank has a lien; but it becomes the absolute property of the bank, and the bank is merely a debtor to the depositor in an equal amount. Foley v. Hill, 1 Phil. 399, and 2 H. L. Cas. 28. So long as the balance of account to the credit of the depositor exceeds the amount of any debts due and payable by him to the bank, the bank is bound to honor his checks, and liable to an action by him if it does not. When he owes the bank independent debts, already due and payable, the bank has the right to apply the balance of his general account to the satisfaction of any such debts. And where by express agreement, or by a course of dealing between the depositor and the banker, a note or bond of the depositor is not included in the general account, any balance due from the banker to the depositor is not to be applied in satisfaction of such note or bond, even for the benefit of a surety thereon, except at the election of the banker. Clayton's case, 3 Meriv. 572, 610; Bodenham v. Purchas, 2 B. & Ald. 39, 45; Simpson v. Ingraham, 2 B. & C. 65; Pemberton v. Oakes, 4 Russ. 154, 168. Accordingly when a bank held a note which was upon an individual transaction of the depositor and for his benefit, and one which was an official matter, and the consideration of which never went to the account of the depositor individually, held, that the bank might apply the amount of the deposit upon the first-mentioned note and refuse to apply it on the second. National Mahaiwe Bank v. Peck. Opinion by Gray,

C. J.

CONTRACT-FOR PERSONAL SERVICE - REPRESENTATIONS" FIRST RATE SALESMAN. Defendants employed plaintiff to work for them for a year at a stipulated rate and commissions. At the end of ten mouths they discharged him. In an action for a breach of the contract defendants offered, for the purpose of proving misrepresentation and fraud on the part of the plaintiff in procuring the contract, to show that plaintiff represented to them when he was hired that he was a first-rate salesman, and to prove that he was not a first-rate salesman and knew that he was not, and that such representation was an inducing cause for the defendants entering into the contract; but the question and offer of proof were excluded as immaterial. Held, not error. Such a general statement, by way of selfcommendation, unaccompanied by affirmation of any specific fact, and without evidence that the words used had acquired a precise and definite meaning among business men, was not a representation of fact on which defendants had a right to rely. Blair v. Laflin. Opinion by Gray, C. J.

the equity of redemption, took a deed of quitclaim and special warranty from the holder of the equity without assuming any obligation as to mortgage or mortgage debt. Held, that this did not extinguish the mortgage or debt, and that the holder of the mortgage could recover upon the notes secured thereby. Loud v. Loud, 8 Metc. 519. It is undoubtedly true that in general, when a greater and lesser estate, which together constitutes the entire fee, unite in one person, a merger results by operation of law. But it is equally true that in equity such merger is not allowed except to promote the intention of the party. And the doctrine of equity is adopted at law where the peculiar circumstances of the case require it as an alternative to sending the parties to a court of equity for relief. Accordingly it is established that when the owner of an equity of redemption purchases the mortgage on the premises, such purchase shall or shall not work a merger as it may be for his interest; and that the strict rule of law will not be permitted to work a manifest injustice. Gibson v. Crehore, 3 Pick. 475; Hunt v. Hunt, 14 id. 374; Swett v. Sherman, 109 Mass. 231, distinguished. Tucker v. Crowley. Opinion by Soule, J.

VERMONT SUPREME COURT ABSTRACT.

FEBRUARY TERM, 1879.*

HUSBAND AND WIFE-LIABILITY OF HUSBAND FOR NECESSARIES.-To recover of a husband who lives apart from his wife for necessaries furnished to the wife, it must be shown that they live apart either by mutual consent or by reason of the fault of the husband. Thus, where plaintiffs sought to recover for medicine furnished to a wife on a physician's prescription, while she was living apart from her husband under circumstances q. v., showing that she had deserted him without apparent fault on his part, it was held that the wife could not pledge the husband's credit, and that the plaintiffs could not recover. Thorne & Co. v. Kathan. Opinion by Redfield, J. LIBEL-PROCEEDINGS OF CHURCH ORGANIZATION

PRIVILEGED.- When a defamatory communication is fairly made in the discharge of some public duty, moral or social, the occasion prevents the inference of malice that the law ordinarily draws from such a communication, and affords a qualified defense, depending on the absence of actual malice. Thus, in case for libel it appeared that the Windham County Association, of which plaintiff and defendant were members, was an association of Congregational ministers, organized in accordance with Congregational usage, and having an association covenant and by-laws, to which any Congregational minister residing in the county and of good standing might, by vote of the association, be admitted, and from which, on removal from the county, he might be dismissed by a letter commending him to other like associations in other counties; and that such associations were recognized by Congregational churches, and membership thereof was considered among the churches as evidence of good ministerial standing. At one of its regular meetings the association, being actively incited thereto by the defendant, adopted by a unanimous vote the following preamble and resolutions: "Whereas, charges of untruthfulness, deception and creating disturbance among the churches, have been made against Rev. David Shurtleff [the plaintiff ], a member of this body, therefore: Resolved, that we hereby withdraw fellowship from him till the 7th day of August next, at which time he is invited to appear before our body, at Wilmington, and show reason why he should not be finally dismissed without papers. Resolved, that the

* To appear in 51 Vermont Reports.

scribe be instructed to send a copy of this minute to the brother, and also to The Congregationalist and The Vermont Chronicle." Agreeably to the vote and resolutions the scribe sent copies thereof, showing the votes, including the defendant's, to the newspapers referred to, and they were therein published. It appeared that the former of those newspapers was a denominational paper published at Boston, Mass., and circulated among Congregationalists throughout New England; that the latter was a like paper published at Montpelier, Vt., and circulated among Congregationalists in Vermont; and that both were at the time of the publication organs of Congregational churches, and of organizations and institutions connected therewith. For several years prior to the publication complained of, reports of difficulties between plaintiff and his parishioners were in circulation, and defendant had received letters in relation thereto from time to time from ministers and parish committees in various places where plaintiff was preaching, giving unfavorable accounts of his career, and some of them speaking of him as unfit for the office and work of the ministry, and asking defendant to do what he could to restrain him. Held, that defendant's action before, and as a member of, the association, and the publication of the preamble and resolutions which were the result of that action, were privileged. Held, also, that the burden of proof as to whether defendant was actuated by actual malice was on plaintiff. Shurtleff v. Stevens. Opinion by Powers, J.

SALE OF PERSONAL PROPERTY - CONCURRENCE OF DELIVERY AND PAYMENT.-Plaintiff sold defendant certain tobacco in three lots at three different prices, to be delivered on plaintiff's premises, but to be taken to the railroad depot by plaintiff free of charge. Plaintiff, assisted by defendant, packed two lots of the tobacco, and defendant went away, after directing plaintiff to pack the other lot. The tobacco so packed was forwarded to defendant and duly received, and defendant paid part of the purchase-money. Plaintiff packed the third lot as directed and made it ready for delivery on his premises, and requested payment, which de fendant refused, insisting that the tobacco was to be delivered at the depot and paid for there. Plaintiff, in the exercise of reasonable diligence, afterward sold the third lot for its full value, but for less than defendant had agreed to pay for it. Held, that as plaintiff was required only to be ready to deliver the tobacco at the time and place agreed on, and as he had done that, and as defendant had neither paid nor offered to pay, defendant had broken the contract; that the contract was entire; that plaintiff had a right to resell the tobacco, and might recover of defendant the difference between the most that he could get on resale and the agreed price, and in addition, the unpaid balance of the agreed price of what was delivered, and that as the cause was referred, and the damages sought to be recovered such as might have been recovered on declaration such as the court might have allowed in amendment of a declaration in common counts in assumpsit, plaintiff might recover on such counts. Chitty on Cont. 431; Parsons on Cont. 484; Jones v. Marsh, 22 Vt. 144. Phelps v. Hubbard. Opinion by Dunton, J.

WARRANTY GOODS SOLD FOR A PARTICULAR USE.— Goods ordered of a manufacturer for a particular purpose, are impliedly warranted fit for that purpose. But the manufacturer is not bound to furnish the best goods of the kind that are or can be made, but only such as are usually made and used-such as are reasonably fit for the purpose. Thus, where it appeared that gas-meters furnished by manufacturers on a general order worked as accurately and well, and lasted as long as the meters of other reputable makers, but did not work as accurately and well, nor last as long as the meters of certain English, and perhaps certain other