the tax. It was said by this court in the case of United States v. Boecker, 21 Wall. 652, that a person about to become a surety on the bond required from a distiller before commencing business "may examine and determine how far, in the event of liability on the part of the principal, the property where the business was to be carried on would be available as security for the government and indemnity for the surety." So we think the fact that the tax due the United States is made by law a first lien on the spirits deposited in the distillery warehouse may fairly be considered by the surety when he estimates the risk he takes by signing the distillery warehouse bond. There is an implied undertaking on the part of the United States, based on the statute making the tax a first lien, that the proceeds of the spirits shall be first applied to the payment of the tax, and this undertaking enters into the distiller's warehouse bond. The government therefore having forfeited the spirits for the misconduct of the distiller, cannot consistently with the rights of the sureties apply their proceeds on some other account, and collect the tax of them, for the contract of a surety is to be strictly construed. Leggett v. Humphries, 21 How. 66; Miller v. Stewart, 7 Wheat. 680; United States v. Boyd, 15 Pet. 187; United States v. Boecker, 21 Wall. ubi supra. We think therefore that the proceeds of the sale of the spirits was in fact and in law applied to the payment of the tax due thereon, and that the bond of the defendants in the case given for its payment was discharged. United States v. Ulrici. Opinion by Woods, J. [Decided March 17, 1884.]

UNITED STATES CIRCUIT AND DISTRICT

COURT ABSTRACT.*

SHIPPING AND ADMIRALTY-OFFER OF PILOT SERVICE-SIGNALS-"STATE" INCLUDES “TERRITORY."(1) The pilot commissioners of Oregon, under the Pilot Act of 1882, are authorized and required to declare by rule what shall constitute a valid offer of pilot service on the Columbia river bar pilot grounds, by a signal addressed to the eye, and in so doing may prescribe the distance within which such sigual must be made from the vessel signaled. (2) The statute of the United States does not prescribe any signal to be used on a pilot boat in making an offer of pilot service; and the light required by section 1233 of the Revised Statutes, to be carried by a sailing pilot vessel at night, is only used to prevent collision and incidentally to give notice of the character of such craft; but the usual signal by which an offer of pilot service is made is the jack set at the main truck in the day-time, and "flareups at night, and this jack is usually the ensign of the country in which the service is offered. In the United States it is a blue flag charged with a star for every State then in the Union, and called the "Union Jack." (3) The term "State" in the act of March 2, 1837 (5 Stat. 153, § 4236, Rev. Stat.), regulating the taking of pilots on a water forming the boundary between two States, construed to include an organized "Territory of the United States. Dist. Ct., Oregon, Feb., 1884. The Ullock. Opinion by Deady, J.

ABATEMENT-DEATH OF ALIEN PLAINTIFF.-Under the provisions of section 955 of the Revised Statutes of the United States, when an alien sues in the Circuit Court and dies, the suit cannot be continued to final judgment by his executor or administrator, unless such executor or administrator has taken out letters testamentary or of administration on the estate in the State where the suit is brought. See Dixon's Ex'rs v. Ramsay's Ex'rs, 3 Cranch, 319; Noonan *Appearing in 19 Federal Reporter.

v. Bradley, 9 Wall. 394. Under that section all personal suits are saved from abatement in cases when the cause of action survives by law. But it would be anomalous to allow a person to continue a suit which he is not authorized to begin. It is a more reasonable construction of the section to hold that when Congress authorized the continuance of a pending suit in the name of the executor or administrator, it meant to refer to an executor or administrator who was competent to begin the action. The present suit is saved from abatement by the statute. The death of the alien plaintiff suspends further proceedings until another lawful plaintiff be substituted. Cir. Ct., D. N. J., Dec., 1883. Kropff v. Poth. Opinion by Nixon, J.

SHIP-LIEN FOR SUPPLIES TAKES PRECEDENCE OF PRIOR MORTGAGE.-For necessary supplies furnished a vessel in a State not that of her owner's residence, a maritime lien presumptively arises. The Neversink, 5 Blatchf. 539; The Lulu, 10 Wall. 192; The Eliza Jane, 1 Spr. 152; The New Champion, 17 Fed. Rep. 816, and cases cited. This lieu will take precedence of a prior mortgage, duly registered, under section 4192 of the Revised Statutes. The mortgagee, by assenting to the use and possession of the vessel by the mortgagor for the purposes of navigation, without restriction, assents by implication to the creation of such maritime liens as by law arise incidentally in the ordinary business of the ship. That rule was laid down in this district in the case of The E. M. McChesney, 8 Ben. 150, and the same rule has been elsewhere sustained. The Granite State, 1 Spr. 277; The Henrich Hudson, 7 L. R. (N. S.) 93. See also The Lulu, 10 Wall. 192, 193; The May Queen, 1Spr. 588. Dist. Ct., S. D. N. Y., Jan., 1884. The Charlotte Vanderbilt. Opinion by Brown, J.

ILLINOIS SUPREME COURT ABSTRACT.*

NEGLIGENCE-WHAT FACTS ESTABLISH-ADMISSION OF IMPROPER EVIDENCE-DECLARATIONS OF THIRD PERSONS. (1) In an action on the case against a railway company, to recover for a personal injury alleged to have resulted from the negligence of defendant, where there was evidence tending to show that the plaintiff was struck by cars being moved by the defendant at a street crossing; that the train was being run at an unusual rate of speed; that no bell was rung or whistle sounded; that there was no light on the forward car that struck the plaintiff, and that plaintiff was observing due care for his safety, it was held that such facts, assuming them to have been proven, established a clear right of recovery in the plaintiff. (2) The admission of improper evidence of a trifling character, not affecting in the slightest degree the defense set up, affords no ground for reversing a judgment in favor of the plaintiff fully justified by the other facts found by the jury. (3) The defense offered to prove that just before the accident the plaintiff, in a saloon, called for a drink of liquor, and that the bar-keeper told him he had enough, which the court excluded on objection. Held, that this evidence was not admissi-, ble, and was properly refused. The fact whether plaintiff was under the influence of liquor was subject to proof the same as any other fact in the case, but could not be proved by the declaration of a third person. Lake Erie v. Zoffinger. Opinion per Curiam.

HIGHWAYS-OPENING STREET-WHEN ENJOINED DEDICATION-WHAT ESSENTIAL- ABANDONMENT. — A plat of a village recorded in 1858 contained lines indicating blocks, with spaces between them, probably intended for streets, but no streets were named, and no length or width of the spaces between the blocks, or *To appear in 107 Illinois Reports,

a

or

any scale, was given by which the streets could be ascertained and located. Held, that where the owner of adjoining blocks had fenced the same, including the unknown space between, and such inclosure had been maintained for over twenty years without complaint, the village authorities were properly enjoined from opening the supposed street through such inclosure, as no surveyor could, from the plat, find the limits of the street. To make good dedication, either under the statute at common law, there should be a definite and certain description of that which is proposed to be dedicated, and an acceptance by the public before the withdrawal or abandonment of the offer to dedicate. Littler v. City of Lincoln, 106 Ill. 353; Trustees, etc., v. Walsh, 57 id. 370. There was therefore as we understand this record, no definite statutory dedication of any particular quantity of ground for this street, and the proof fails to show a sufficient offer to dedicate any definite quantity, or such an acceptance of any offer in that regard as is necessary to constitute a commonlaw dedication. Indeed the evidence shows such an abandonment by the public as now precludes the opening of the street. See Peoria v. Johnston, 56 Ill. 51; Champlin v. Morgan, 20 id. 182; Town of Lewiston v. Proctor, 27 id. 418; Littler v. City of Lincoln, 106 id. 353. Winnetka v. Prouty. Opinion by Scholfield, J. [See 14 Alb. L. J. 278; 7 id. 171; 5 id. 139; 6 App. Cas. 643; 34 Eng. Rep.-ED.]

SURETY-MAY WAIVE DISCHARGE.-The promise of a surety, without other consideration than the extension, to pay the note, if his principal does not, made after the creditor has arranged with the principal to extend the time of payment, but with a full knowledge of all the facts, is good. Where a surety has been discharged by the extension of time, it is a personal privilege which he may waive, and this he does when with a full knowledge of the facts he renews his promise. Brandt on Sur. and Guar., § 300; Fowler v. Brooks, 13 N. H. 240; Porter v. Hodenpuyl, 5 Mich. 11; Bank v. Whitman 66 Ill. 331; Mayhew v. Cricketts, 2 Swanst. 185; Smith v. Winter, 4 M. & W. 454; Stevens v. Lynch, 12 East, 38. Bramble v. Ward. Opinion by Nash, J.

RAILROAD-PRIVATE ROAD CROSSING-FENCE-EVIDENCE-BOOKS-INADMISSIBLE AGAINST STRANGER.

Where a private road extends across the track and right of way of a railroad company, and connects with a public highway, the company is required to maintain across such private road suitable fences, or provide other protection against injuries which may result from animals passing from such highway, through the private road, on or along the railroad track. The whole subject has been recently considered in Iudiana, where the legislation is similar, and after disapproving some of the decisions in that State, the same view here stated is enforced by the Supreme Court in an able opinion by Elliott, J. Indianapolis, etc., R. Co. v. Thomas, 84 Ind. 194. Books kept by a railroad company solely for its own use in the management of its business, are not admissible as evidence, when offered by the company, in an action against it by a stranger to such company seeking to recover damages sustained by the company's negligence. Railroad v. Cunnington (Sup. Ct.). Opinion by O'Key, J.

STATUTE-FOREIGN MUST BE PROVED.-The statutes of another State and also any peculiar construction which the courts of such State may have placed upon *To appear in 40 Ohio State Reports.

them, when they come in question in the courts of this State, must be proved by evidence as matters of fact. Smith v. Bartram, 11 Ohio St. Rep. 690. Larwell v. Hanover Savings Society (Com.). Opinion by Dickman, J. [See 4 Alb. L. J. 130; 5 id. 384; 16 Eng. Rep. 591, 602; 32 id. 468.-ED.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

BONDS BONA FIDE PURCHASER OF STOLEN.-Corporation bonds, of ordinary form, payable to bearer at maturity, like bank notes and promissory notes indorsed in blank, pass by delivery, and a bona fide purchaser is unaffected by want of title in his vendor. Connor v. Fifth Nat., etc. Opinion per Curiam. [See 7 Am. Rep. 423; 20 id. 376; 25 id. 152.-ED.] [Decided Nov. 12, 1883.]

LANDLORD AND TENANT-COVENANT TO PAY TAXES, ETC.-PAVING AND CURBING STREET.-A clause in a lease, which provides that the lessee shall "pay all taxes, water-rents, and assessments upon the premises," includes a charge for paving and curbing the streets in front of the leased premises, when ordered by the municipal authorities. In an action of covenant by the lessors in the above case against the lessees for the cost of curbing and paving the leased premises. Held, that the fact that the parties to the lease had agreed that a third party should do the work, and that the question of the liability therefor should be subsequently determined, was not such an alteration of the covenant as to render necessary a change in the form of the action. McManus v. Cassidy, Penn. St. Rep. 260. Griffin v. Phænix Co. Opinion per Curiam. [Decided Feb. 25, 1884.]

MALICIOUS PROSECUTION-WHEN DOES NOT LIE FOR PROSECUTING CIVIL SUIT.-It has been wisely determined, that for the prosecution of a civil suit, however unfounded, where there has been no interference with either the person or property of the defendant, no action will lie. In Potts v. Imlay, 1 Southard, 330, Chief Justice Kirkpatrick alleged that the books, for four hundred years back, had been searched to find an instance where an action on the case for the malicious prosecution of a civil suit, like the one then trying, had been successfully maintained, and that it was conceded by the counsel for the plaintiff that no such case had been found. In the case of Eberly v. Rupp, 9 Norris, 259, the very latest expression of this court upon the subject in hand, and a case much stronger in its facts than the one under consideration, for there the action was for the recovery of damages resulting from the services of a writ of estrepement, but it was held that the action could not be maintained inasmuch as the writ being purely preventive, neither arrested the person of the defendant nor seized his goods. See also Kramer v. Stock, 10 Watts, 115; Mayer v. Walter, 14 P. F. Smith, 283; Woodmansie v. Logan, 1 Penn. (N. J.) 67. Muldoon v. Rickey. Opinion by Gordon, J. [See 44 Am. Rep. 343, 346, n., maliciously filing lis pendens, 20 Hun, 555.—ED.] [Decided April 16, 1883.]

from duty as to warrant the conclusion that he intended from the first to do wrong, and use his legal authority as a cover for an illegal act. Taylor v. Jones, 42 N. H. 25, 35; Closson v. Morrison, 47 id. 482. It does not appear that the officer acted in bad faith in making the attachment, or that he was culpably negligent in not ascertaining the value of the real estate or that it was unincumbered, before attaching the personal property. Davis v. Webster. Opinion by Alleu, J.

In so

RECEIPT SO FAR AS CONTRACT, CANNOT BE VARIED BY PAROL.-The defendant offered in evidence the following receipt: "In consideration of twenty-five hundred dollars to me paid by Martha Goodwin, executrix of. * ** I hereby waive all right to contest said will or the proof thereof, and all claim I have or might have as heir of deceased. Elisha Goodwin." A writing which partakes of the nature both of a contract and a receipt may be contradicted and explained in regard to any fact which it erroneously recites, but in other respects it is to be treated like other written contracts. 1 Gr. Ev., § 305, and note; Smith v. Holland, 61 N. Y. 635. The writing before us, denominated a receipt, partakes of this double nature. far as it may be regarded as a receipt, it is capable of explanation and contradiction with regard to any fact erroneously recited; but in its main features it is more properly to be regarded as a contract, made binding upon the plaintiff by his signature, and on the defendant, by being delivered to and accepted by her. In this aspect it could no more be varied or controlled by oral evidence than any other written contract between the parties. James v. Bligh, 11 Allen, 4; Egleston v. Knickerbacker, 6 Barb. 458; Kellogg v. Richards 14 Wend. 116; Coon v. Knap, 8 N. Y. 402, 405; Ryan v. Ward, 48 id. 204, 207, 208; Henry v. Henry, 11 Ind. 236. Each of the cases above cited bears a strong resemblance to the case before us in respect to the peculiar character of the written instrument which was the subject of contention. See also Brown v. Cambridge, 3 Allen, 474; Sencerbox v. McGrade, 6 Minn. 484; Wykoff v. Irvine, id. 496; Brown v. Brooks, 7 Jones Law (N. C.), 93; Capps v. Holt, 5 Jones Eq. (N. C.) 153; Harrison v. The Juneau Bank, 17 Wis. 350. Goodwin v. Goodwin. Opinion by Foster, J.

[Decided June, 1880.]

LICENSE-REVOKED BY LEVY UNDER EXECUTIONTITLE BY PRESCRIPTION.—(1) A statement by A. that if B. would dig out a spring on A.'s land, stone it up, and lay pipes to convey the water to B.'s house, B. might have the spring, creates a license merely, which may be revoked, even though B. complies with A.'s offer. Being a license, it was revoked by the set-off on the execution against A. Harris v. Gillingham, 6 N. H. 9; Carleton v. Redington, 21 id. 291, 305; Cowles v. Kidder, 24 id. 364, 379; Houston v. Laffee, 46 id. 505, 507: Dodge v. McClintock, 47 id. 383, 385; Stevens v. Dennett, supra; Blaisdell v. R., 51 N. H. 483, 485; Cook v. Stearns, 11 Mass. 533, 538; Drake v. Wells, 11 Allen, 141; Godd. Ease. (Bennett's ed.) 475; Gale & Wh. 353; Wash. Ease. 5, 19. (2) The right to the spring was an incorporeal right, and could only be created by deed, or by user, under such circumstances and for such a period as to furnish evidence from which it might be inferred that there was a deed. It could not be created by parol, or by writing not under seal. Stevens v. Dennett, 51 N. H. 324, 331; Hewlins v. Shippam, 5 B. & C. 221, 229; Cocker v. Cowper, 1 Cr. M. & R. 418; Gale & Wh. 12; Godd. Ease. (Bennett's ed.) 88. (3) Title by prescription can only be acquired by an adverse, exclusive, uninterrupted use, sufficiently long continued (in this State for twenty years) under a claim of title, and with the knowledge and acquiescence of the owner of the land. It must be under a

claim of legal right, and not by consent, permission, or indulgence, and these facts must be proved by the party claiming the easement. Wallace v. Fletcher, 30 N. H. 434, 448; Burnham v. Kempton, 44 id. 78, 88; Gilford v. Lake Co., 52 id. 262; Sargent v. Ballard, 9 Pick. 251; Smith v. Miller, 11 Gray, 145; White v. Chapin, 12 Allen, 516; Wash. Ease. 110, 111: Godd. Ease. (Bennett's ed.) 172; 2 Gr. Ev., § 539; and authorities passim. Taylor v. Gerrish. Opinion by Stanley, J. [As to first point see 10 Am. Rep. 195; 12 id. 80; 18 id. 455.-ED.]

[Decided June, 1880.]

MICHIGAN SUPREME COURT ABSTRACT.

GIFT-DEPOSIT IN BANK IN ANOTHER'S NAME, SUBJECT TO OWN ORDER-DEATH OF DONEE.-Plaintiff sued defendant for a balance on deposit; the defense was that the money belonged to his deceased wife. Plaintiff recovered and defendant appeals. Held, that the judgment should be affirmed. There is no principle of law which makes the mere placing of money or property in another's name an irrevocable gift to that person. But this arrangement falls short of even this, because in law it was merely a contract between two persons that one should open an account in the name of a third person, the original depositor having a reserved right to draw the sums credited. At common law no one could sue on an express contract, except the parties to it. Under the equitable action for money had and received, a beneficiary may sometimes sue, but this can only be where the parties have given him such a right as transfers the fund to his control. The money belonging to one person cannot cease to belong to him until he does some act to dispose of it. The cases heretofore determined in this court are stronger cases than the present in favor of plaintiff's rights. See Burtnett v. First Nat. Bank of Corunna, 38 Mich. 630, and Detroit Sav. Bank v. Burrows, 34 id. 153. In the former case the bank had no dealings whatever with the plaintiff, but held his money deposited by an agent in his own name. In the latter it was understood that the wife, in whose name the money was deposited, was to draw all the checks, but they were to be payable to the husband's order, which made the case more analogous to the present. In both the question was treated as one of fact. The decisions referred to in the opinions in those cases, as well as in the arguments, sustain that doctrine. Davis v. Lenawee. Opinion by Campbell, J. [Decided March 6, 1884.]

WILL-SURVIVORS OR THEIR LEGAL REPRESENTATIVES DAUGHTER DYING-HER CHILDREN TAKE.— Property was left by will to the four children of the testatrix, none of whom were married at date of the will, with the proviso "that if any of my children die before me, my estate shall be divided among the survivors or their legal representatives, share and share alike." One daughter married, and died before her mother, leaving two children. Held, that by the term "legal representatives" in this will was evidently meant the lawful heirs; a different construction is not claimed by either party. It is only in case of the death of one of the four children of the testatrix that she desired any of the property to go to "legal representatives" of any of her children. If the "legal representatives" intended are confined to those of the survivors, as claimed by counsel for appellant, then the term has no meaning in the will, because survivors could have no legal representatives. A will must be so construed that each word means something, if possible, and this cannot be done unless the words "legal representatives" mean the legal heirs of the deceased

daughter, which will entitle her children to their mother's share (had she lived) in the estate of the testatrix; and this, I think, is the true construction of the will. The following are some of the cases and authorities which may be consulted with interest upon the questions involved, as they are not free from doubt: 2 Redf. Wills, 44, 45, 78, 79; Johnson v. Johnson, 3 Hare, 157; 1 Jarm. Wills, 328; Branson v. Hill, 31 Md. 190; Moore v. Lyons, 25 Wend. 119; Bridge v. Abbott, 3 Brown, Ch. Cas. 224; Smith v. Palmer, 7 Hare, 225; King v. Cleveland, 26 Beav. 26; Holloway v. Radcliffe, 23 id. 163; King v. Cleveland, 4 DeGex & J. 477; Winter v. Winter, 5 Hare, 306; Edwards v. Symonds, 6 Taunt. 213; Garey v. Whittingham, 5 Beav. 268; Locker v. Bradley, id. 593; Stopford v. Chaworth, 8 id. 331; Salisbury v. Petty, 3 Hare, 93; Jarvis v. Pond, 9 Sim. 549; Coulthurst v. Carter, 15 Beav. 421; Ive v. King, 16 id. 54; Barnes v. Ottey, 1 Mylne & K. 464; Gray v. Garman, 2 Hare, 268; Harrison v. Foreman, 5 Ves. 207; Cotton v. Cotton, 2 Beav. 67; Bond's Appeal, 31 Conn. 183; Ram Wills, 96; Gittings v. McDermott, 2 Mylne & K. 69; Doe v. Wilkinson, 2 Term R. 209; Doe v. Dring, 2 Maule & S. 448; 2 Jarm. Wills, 742; Bender v. Dietrick, 7 Watts & S. 284; Howard v. Amer. Peace Society, 49 Me. 288; Areson v. Areson, 3 Denio, 458; Minter's Appeal, 40 Penn. St. 111; Lessee of Hauer v. Sheetz, 5 Bin. 546; Russell v. Long, 4 Ves. Jr. 551; Roebuck v. Dean, 2 id. 264; Fisher v. Hill, 7 Mass. 86; Ballard v. Ballard, 18 Pick, 41; Hooper v. Hooper, 9 Cush. 122; Moore v. Weaver, 16 Gray, 305; Esty v. Clark, 101 Mass. 36; Wimple v. Fonda, 2 Johns. 288. The views here expressed are not in conflict with the decisions of this court heretofore made: Eberts v. Eberts, 42 Mich. 404; 4 N.W. Rep. 172; Rood v. Hovey, 50 Mich. 395; 15 N. W. Rep. 525; Porter v. Porter, 50 Mich. 456; 15 N. W. Rep. 550; Ireland v. Parmenter, 48 Mich. 631; 12 N. W. Rep. 883; Toms v. Williams, 41 Mich. 564; 2 N. W. Rep. 814; Conrad v. Long, 33 Mich. 80. The law favors that construction of a will which will make a distribution as nearly conform to the general rule of inheritance as the language will permit; and favors equities rather than technicalities. Letchworth's Appeal, 30 Penu. St. 175; Johnson v. Ballou, 28 Mich. 392. Rivenett v. Bourquin. Opinion by Sherwood, J.

[Decided March 6, 1884.]

RECENT ENGLISH DECISIONS.

TENANTS IN COMMON-USE AND OCCUPATION BY ONE -CONTRIBUTION FOR REPAIRS.-The defendant became tenant to the plaintiff under a lease of an undivided three-fourths of certain premises to which the plaintiff was entitled as tenant in common with another. During the lease the defendant purchased the interest of the plaintiff's co-tenant in common. On the expiration of the lease the defendant continued in occupation of the above three-fourths as tenant at sufferance to the plaintiff. Held, that the plaintiff was entitled to recover for the use and occupation by the defendant of the above undivided three-fourths. A tenant in common is only liable to contribute towards the cost of repairing the common property incurred in by his co-tenant, where such repairs are necessary to prevent ruin and preserve the common property. Q. B. Div., Dec. 10, 1883. Leigh v. Dickeson. Opinion by Pollock, B. [50 L. T. R. (N. S.) 124.] (See 1 Alb. L. J. 499.)

at and from a cattle dock and siding on land outside their limits of deviation, but acquired under a parliamentary power to purchase land for that purpose by agreement. There was no negligence on the part of the company in managing the cattle traffic, but they brought no evidence to show that some other site might not have been selected where the nuisance would not be caused. Held, that the company might be restrained from carrying on their cattle traffic on the premises in question so as to cause a nuisance. Hammersmith v. Brand L. R., 4 E. & I. App. 192; Geddis v. Baun L. R., 3 App. Cas. 445; 24 Eng. R. 320; Normantown, etc., v. Pope, 48 L. T. R. (N. S.) 666; Chy. Div., Dec. 17, 1883. Truman v. London. Opinion by North, J. [50 L. T.Rep. (N. S.) 89.]

COVENANT-" AGAINST ANY TRADE OR BUSINESS HOME FOR GIRLS-BREACH.-In the lease of a house was contained a covenant not to use the premises for any trade or business of any description whatsoever without the consent in writing of the lessor. The trustees of a charitable institution which existed only for the purpose of providing homes for working girls in London, and which possessed and managed numerous houses at which inmates were provided with board and lodging in return for an unremunerative payment, proposed to use the house in question as a free home, at which no payment should be made. Held, that such user would be a breach of the restrictive covenant. Semble, the application of the words "any business of any description whatever" in a restrictive covenant extends to the user of the premises, the subject of the covenant, for any purpose outside, and diverse from ordinary domestic life. Chy. Div., March 8, 1884. Rolls v. Miller. Opinion by Pearson, J. [50 L. T. R. (N. S.) 152.]

CORRESPONDENCE.

AN EXCEPTION.

Editor of the Albany Law Journal:

"We would gladly see Wall street and all that therein is, sunk in its neighboring Hell-Gate." 29 Alb. L. J., p. 421.

Great Heavens, what have we done?

Yours,

GOODRICH, DEADY & PLATT, 59 and 61 Wall st., New York.

NEW YORK, May 31, 1884.

[We would not, of course, include the righteous men, i. e., the lawyers, in our aspiration against Sodom.-ED. ALB. LAW JOUR.]

IS LIGHTNING FIRE?

Editor of the Albany Law Journal:

I tried an insurance case at the Montgomery County Circuit last week before Hon. Judson S. Landon,

justice, and a jury, which involves a nice question of science as well as of law. The action was brought by a policy holder in the Farmers' Insurance Company of the town of Palatine, against said company to recover the value of a team of horses killed by lightning in June last. The policy provides for an insurance against loss or damage, "by or by reason of fire," and "by fire by lightning." The evidence showed that the horses in question were standing in the stable of their owner tied to the manger by halters during a thunder storm, aud lightning struck the building,

shattering the peak of the gable end of the roof, ran down the siding in front of the horses and killed them. The horses were found a few minutes afterward lying dead. No part of the building was burned, except the siding in a few places was a little charred; nothing was burned in the stable or about the stalls. The bodies of the horses were perfect, except the hair on the ears inside and out was singed, also the foretops and a few inches of the manes were singed and curled. The skin was not broken on either horse. Their bodies were not opened to disclose their internal condition. A strong smell of, sulphur pervaded the stable after the stroke.

The presiding judge after some hesitation refused to nonsuit, and submitted the case to the jury to determine whether the horses were killed by fire, and whether lightning is fire.

The jury found a verdict for the plaintiff, thereby deciding that lightning is fire.

I suppose and still believe that a cause of action was not established under the policy, and I cannot subscribe to this new adjudication, that lightning is fire, in the light of present scientific information as to the character and quality of lightning.

The case of Babcock v. Montgomery County Mut. Ins. Co., 6 Barb. 637; samo case affirmed in the Court of Appeals, 4 N. Y. 326, I think is against the proposition, and is authority for the rule that to sustain an action for loss by fire by lightning, there must be an actual combustion or burning by fire sufficient to produe the loss complained of, and that there can be no recovery in such case merely for loss resulting from the heat or mechanical effect of lightning, which is simply atraospheric clectricity in unrestrained action. The case will undoubtedly be appealed, and the importance of the question involved to the profession and to insurers has induced me to give it to your readers for their interest and investigation in its legal and scientific aspects.

Very respectfully yours,

Z. S. WESTBROOK.

AMSTERDAM, N. Y., June 2, 1884.

"GIVE ME LIBERTY," ETC.

Editor of the Albany Law Journal:

I am fearful that I may be burdening your valuable pages; but as Mr. G. Wilcoxen of Seneca Falls, N. Y., in the JOURNAL of the 24th instant, questions my allusion to the celebrated sentence uttered by Patrick Henry, "Give me liberty," etc., I wish to state that while Wm. Wirt was a florid and graceful writer, he had no superior as a pains-taking biographer. He commenced gathering his material for his "Life and Character of Patrick Henry" as early as the year 1805, and in 1814 sat down to the serious work of carefully gathering from the mass of his material, and not until the year 1817 did he venture to publish. His material facts were gathered from living witnesses, former associates of the great orator, and the address was made at an assembly of delegates in the old St. Johns' Church in Richmond, Va., on Monday, the 20th day in March, 1775. The speech was furnished to the author by Judge Tucker, who was a witness of the remarkable scene, and fills more than two pages of the edition of the work in my possession, and Mr. Wirt gives the speech as reported to him by this intelligent gentleman, who doubtless, like many other careful observers of great events, wrote down at the time, the leading features of the address, that made such a deep impression upon the whole country at a very critical period. That this sentence was the utterance of Patrick Henry is as certainly true and authentic as any other historic fact. No one doubts that at a critical period Dauton

aroused the National convention, as also the people of France, "with a voice," as Carlyle says, "that echoed from the domes and dashed Brunswick across the marshes," when the Prussian forces and the hated Emigrees had passed the frontier and taken Verdun. "It is no time," shouted Danton "for timid, hesitating counsels and unmanly fears. It's a time for heroic courage and daring. We must dare and again dare and always dare." Will Mr. Wilcoxen contend that the above sentence is not authentic? This is no "school-boy error, but historic fact, and not better authenticated than the entire speech of Henry. W. F. WARNER.

WAVERLY, N. Y., May 29, 1884.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, June 3, 1884:

Motion for reargument denied-John Roach and others, respondents, v. John H. Duckworth, and another, executors, appellants.-Denied-In re John Percy to set aside order Disbursing.—Judgment reversed, new trial granted, costs to abide the eventShepherd's Fold, appellant, v. Mayor, etc., of New York, respondents. Judgment affirmed-People, respondents, v. William A. Houghkirk, appellant.Judgment of General Term reversed and that of General Term affirmed, with costs-Charles Wager et al., respondents, v. Eliza H. Wager, impleaded, etc., appellant.- -Order of General Term reversed and that of Special Term affirmed, with costs-Victor Hein, respondent, v. Alex. V. Davidson, appellant. —Judgment and interlocutory order appealed from reversed and judgment of foreclosure ordered in favor of plaintiff, with costs-Clarence J. Anthony, appellant, v. Frances L. Wood et al., respondents. Judgment reversed and record remitted to the Erie county Oyer and Terminer, with direction to resentence the prisoner under the act of 1875-People, respondent, v. Joseph Bork, appellant.Order of General Term denying motion of relator to be discharged from imprisonment and remanding him to the custody of the warden of the Auburn State prison reversed, and re lator remanded to the custody of the sheriff of Erie county, to be dealt with according to law-People ex rel. Joseph Bork, apl., v. F. W. Gilbert et al., resps.Judgment of General Term, as far as it modifies the judgment of the referee by holding that the share of the deceased's son in the personal estate bequeathed by his mother belonged on his death to his father, and was not therefore properly chargeable to him, should be reversed; and in other respects the judgment should be affirmed without costs to any of the parties in this court, and the decision is without prejudice to the rights of any party to apply to the Supreme Court for the correction of alleged clerical errors in the judgment of the General Term, as settled-Edward Beardsley et al., assignees, etc., respondents, v. William Hotchkiss et al. and the Geneva National Bank, appellauts and respondents. Judgment affirmed- People, respondent, v. Alexander Jefferson, appellant.-Judg ment affirmed with costs-Mary Schweitzer, administratrix, etc., respondent, v. Ernest Sander et al., appellants. Judgment reversed, new trial granted, costs to abide the event-Susannah B. Loveridge, respondent, v. Clayton L. Hill, appellant.-Judgment affirmed with costs-Petition of the United States for the appointment of commissioners, etc.--Judgment affirmed--George Riegard, respondent, v. City of Elmira, appellant.-Judgment affirmed with costs-George W. Nichols et al., respondents, v. N. Y. C. & H. R. Co., appellant.