ILLEGAL CONSIDERATION.

The statute (Gen. Statutes, tit. 28, § 1) provides that all contracts of which the consideration is in whole or part money won at a horse race shall be utterly void. A. and B. agreed to race their horses for a purse of $500,❘ each to put half that amount into the hands of the defendant as stakeholder, and the whole to belong to the winner. Each deposited $250 with the defendant, and he deposited in the bank $125 in bills received by him of B., the same being placed to his credit in bank with his other private funds. B. won the race and demanded the $500 of the defendant. A. forbade the payment, but the defendant delivered to B. the money in his hands, $375, and gave him his own check on the bank for $125, payable to bearer. Held, that the plaintiff, to whom B. transferred the defendant's check for a valuable consideration, could not recover upon the check. Conklin v. Roberts.

INSOLVENT LAW.

1. Where a conveyance of property was made by an insolvent within sixty days before his going into insolvency, but was made in pursuance of an agreement entered into several months before, and upon a consideration then received, and for a purpose then intended, it was held, that the conveyance should be treated as if made at the time of the agreement, and that therefore it was not affected by the insolvent proceedings. Marvin v. Bushnell.

2. But where a trustee in insolvency held certain property which the debtor had equitably assigned to a surety who was insolvent, but the surety had not paid the debt for which he was holden, and it was neither alleged nor found that certain security already held by him was not adequate, the court refused to decree the property to him. Ib.

CORPORATION.

1. A dissolution of corporation by forfeiture can only be effected by judicial proceedings against the corporation, taken for that purpose, a hearing or an opportunity for a hearing had, and a judgment of forfeiture had thereon. Puhquioque Bank v. Bethel Bank. 2. A dissolution of a corporation by winding up, or other act of its stockholders, or by limitation, or in any mode except legislative repeal or judicial decree, does not affect the rights of creditors. Ib.

3. The act of 1865 provides that mutual insurance companies chartered by this State shall every year make return under oath to the State comptroller of the total amount of cash capital belonging to them on the first day of October, and that it shall be their duty to pay to the treasurer of the State a sum equal to one per cent on such capital. Held, that the tax was upon the franchise of the corporation and not upon its property as such, and that, therefore, such a corporation was not entitled to deduct from the amount of its capital so to be returned, the amount of bonds of the State and of the United States held by it which were by law exempt from taxation. Coite v. Connecticut Mutual Life Ins. Co.

4. The defendants were a mutual life insurance company, and on the first of October were chargeable with a considerable amount of declared dividends. These dividends were intended to be paid by applying them on premium notes, of which the company held a larger amount, and it was their practice to apply the dividends in this way at the maturity of the notes. The premium notes were not included in the return of its cash capital made by the company. Held, that these

unpaid dividends were not to be deducted from the cash capital in ascertaining the amount which was to be the basis of the tax. Ib.

5. The company also owed at the time a large amount of ascertained unpaid losses. Held, that the amount of these should be deducted from the amount of the cash capital. Ib.

6. The statute provides that the treasurer and comptroller of the State shall be a board to examine and correct all statements returned to the comptroller for the purpose above mentioned, and that if such return should not be made or should in the opinion of the board be incorrect, the board shall, within ten days after the time limited for making such return, make out such statement upon the best information they can obtain; that a copy of each statement approved, corrected, or made out by the board shall be sent by them to the corporation interested; and that their decision shall be final as to the value and amount of the property of such corporation. The defendants made a return on the first day of October, 1865, in the words following: "Total amount of cash capital (less $3,134,026 United States and state bonds), $1,994,799." It did not appear by the record whether any action had been taken by the board with regard to the return, but it appeared that the defendants had paid the tax to the treasurer upon the basis of the return as made. Held, 1. That there was no presumption that the board had exercised its jurisdiction in the matter and that the burden of proof upon the point lay upon the defendants. 2. That any approval of the return by the board which might be inferred was to be regarded as an approval of the statement with regard to the whole amount of the cash capital, and was not to be taken as an approval of any deductions therefrom, a statement of such deductions not being an appropriate part of such a return. 3. That the provision of the act with regard to the sending of a copy of the approved or corrected statement to the corporation was merely directory, and the sending of such copy not essential to the validity of the proceedings. Ib.

INSURANCE.

Where an insurance company has an agent in another State upon whom service of suit can be made as required by the law of such State, it cannot revoke the authority or representative character of such agent (having no other such agent within the State), and thus prevent the service, while it has contracts of insurance outstanding in such State. Semmes v. City Fire Ins. Co.

LANDLORD AND TENANT.

1. The plaintiff leased certain premises to A., who covenanted to pay the rent, and the defendant became his surety. In a suit on the guaranty against the defendant, he claimed in his defense that the plaintiff, by receiving an order drawn by A. on P. for the rent, and accepted by the latter, discharged the defendant from his suretyship. The court below found that neither the plaintiff nor A. understood the receiving of the order as releasing A. from any of the obligations of his lease. Held, that A.'s obligation to pay the rent was not affected, nor the liability of the defendant as his surety. Burnham v. Hubbard.

2. The express covenant of A. to pay the rent could not be discharged by any mere collateral matter and by nothing short of a mutual agreement. Ib.

3. A receipt by a lessor of rent from an under-tenant of his lessee is not necessarily an acknowledgment of the under-tenant as his own tenant. Ib.

LIFE INSURANCE.

N., who had for many years been a local agent of a life insurance company, held a policy of the company on his own life in the name and for the benefit of his wife. Renewal certificates signed by the secretary of the company were placed in his hands to be used in receiving payment of premiums upon policies held in his vicinity, all of which contained a provision that they should not be valid until the premium was paid and they were countersigned by N. as agent. Upon the payment of the premium upon the policy in question, in 1866, such a renewal certificate was taken by N., but was not countersigned by him as agent. N. died in 1867, and after his death a similar receipt was found among his papers for the premiums due in 1867, but was not countersigned by him. Held, in a suit by his widow on the policy, that the court committed no error in charging the jury that the receipt, under the circumstances, was prima facie evidence of the payment

of the premium. Norton v. Phonix Mutual Life

Ins. Co.

MORTGAGE.

1. The parties in a foreclosure suit agreed upon a time for redemption to be limited by the decree, but by mistake the time was inserted in the decree. The mortgagor failed to redeem within the time agreed, and the mortgagee, supposing his title to be absolute, took possession and continued in possession for three years, making extensive improvements, the mortgagor, during that time, occupying a portion of the premises as his tenant. The premises were worth at the time of the decree but little more than the incumbrance, but during the three years nearly doubled in value, aside from the improvements. At the end of the three years the mortgagor, discovering the mistake in the decree, brought a petition to redeem, to which the mortgagee filed a cross-bill praying the court to amend the decree in accordance with the original agreement. The court decreed that the amendment be made, and dismissed the petition. Held, to be no error. Colwell v. Warner.

2. The mortgagor, upon the hearing of his petition to redeem, offered evidence to show that the mortgage note was without consideration. His petition contained no averment to that effect. Held, 1. That the evidence was inadmissible for want of such averment. 2. That it was inconsistent with the admissions of his petition in which he offered to pay the amount that should be found due upon the note. 3. That it was not rendered admissible by the allegations of the cross-bill with regard to the mortgage note, the cross-bill praying only for an amendment of the original decree and a confirmation of the mortgagee's title under the same, and the mortgagor having filed no answer thereto. Ib. 3. A second mortgagee foreclosed the mortgagor and afterward redeemed the first mortgage. Held, that the mortgagor had no right to redeem the first mortgage. The equity of redemption, upon which alone the mortgagor could stand to redeem, was extinguished by the foreclosure and his title had become absolutely vested in the second mortgagee. Ib.

4. A creditor of a mortgagor levied an execution on the equity of redemption and had an undivided part of it set off to him thereon. The mortgaged premises were appraised at more than sufficient to pay both the mortgage and execution debts. Held, that the levying creditor could not sustain a petition for the sale of the mortgaged premises and a division of the proceeds among the parties interested. Spencer v. Waterman.

5. A mortgagee has a right to the whole mortgaged premises as security for his debt, and cannot be compelled to take a portion of the premises either as security or payment, nor to submit to the uncertain result of a sale made by order of the court. The only remedy of any person holding or interested in the equity of redemption is to redeem by paying the mortgagee the full amount of his debt in money. Ib.

OUSTER.

The receipt of rents and profits from real estate is not of itself such a possession as to prove an ouster of the party holding the legal title, and to render void a conveyance by him, but is consistent with the supposition of a possession in some way subordinate to the title of the owner. Averill v. Sanford.

PRINCIPAL AND AGENT.

1. The plaintiff sold certain goods to the defendants through F., their general agent, who was fully authorized to make the purchase. Afterward, upon the representation of F. to the plaintiff that it was necessary to send a receipted bill to the defendants in order to obtain payment of it, the plaintiff receipted the bill of the goods and delivered it to F. F. presented the bill, thus receipted, to the defendants, who paid the amount to him, they having no knowledge of the circumstances under which the receipt was given. The money so received by F. was never paid to the plaintiff. Held, in an action of an assumpsit, brought against the defendants for the amount of the bill, that the plaintiff was entitled to recover. Willard v. Buckingham.

2. F. being the general agent of the defendants, and authorized to purchase the goods, he was acting in the whole matter within the scope of his authority, and his acts and declarations were to be considered as the acts and declarations of the defendants, and his knowledge of the circumstances under which the receipt was given as their knowledge. Ib.

3. And held that it could not be inferred from the facts that the plaintiff had made F. his own agent in the matter. Ib.

RECOGNIZANCE, CRIMINAL.

A prisoner gave bond, with sureties, for his appearance at the next term of the court, and before such next term was arrested in the State of New York upon a governor's requisition from the State of Maine, for a crime previously committed in the latter State, and was taken to that State and there imprisoned, and was actually in prison there at the time his appearance was demanded in court in this State. A motion for a continuance of his case was made by his counsel, and denied, and his bond was called and forfeited. Held, that the facts constituted no defense to a suit on the bond. Taintor v. Taylor.

STATUTE.

A statute that prescribes that a thing shall be done in a particular way carries with it an implied prohibition against doing it in any other way. City of New Haven v. Whitney.

TAXATION.

A New York corporation, having its principal office and business in that State, owned and occupied certain real estate in B. in this State which became taxable on the 1st day of October. On the 11th September, the corporation having shortly before been adjudged a bankrupt in the State of New York, the bankrupt court assigned to an assignee all their property, includ

ing the real estate in B. On the 27th September, the assignee took possession of said real estate, but the assignment was not recorded in the land records of B. until the 19th of December. In November, no tax list having been handed in by the corporation or the assignee, the assessors, not knowing of the bankrupt assignment, filled out a list in the name of the corporation and put said real estate therein, and added ten per cent to the actual valuation of the same, such additional valuation being authorized by law in the case of resident tax payers who failed to file their lists. Held, 1. That the tax list was lawfully made in the name of the corporation. 2. That the corporation could not be regarded as a resident tax payer, and that therefore the ten per cent valuation was not lawfully added by the assessors. Jones v. Town of Bridgeport.

TRADE-MARK.

A decree enjoined the respondents from selling my britannia spoons in packages with certain described labels and numbers, which were found to be a violation of the petitioners' trade-mark, or with labels and numbers so nearly like those of the petitioners, which were particularly described in the decree, as to be calculated to induce purchasers to believe the spoons to be the manufacture of the petitioners. On a writ of error brought to reverse the decree on account of its uncertainty, it was held, 1. That the respondents could clearly understand from the decree that they were enjoined against using the particular labels and numbers described in it, and that so far the decree was free from uncertainty. 2. That if, beyond this, the decree was so indefinite that the respondents could not know with reasonable certainty what they were prohibited from doing, their remedy was by way of application to the superior court to modify the decree, and not by a writ of error. Boardman v. Meriden Britannia Co.

TRUSTEE.

A will gives property to a trustee for the benefit of a daughter of the testator, the income to be paid to her annually until she should reach the age of twenty-five years, at which time the property was to be conveyed to her absolutely, with a right on the part of the trustee in his discretion to convey all the property to her before reaching that age, and with a bequest over to other relatives of the testator in case the daughter should die without issue before the property was so conveyed to her. The daughter died without issue before arriving at the age of twenty-five years. Previous to her death the trustee had delivered to her a small portion of the trust estate. Held, that the trustees under the provision authorizing him to convey to her all the property in his discretion before she should reach the age of twenty-five, had a right to deliver to her such portion of the property as he thought best. Sellew's Appeal from Probate.

TRUST ESTATE.

A will contained the following devise:-"I give to K. (certain real estate, describing it) in trust for my nephew G., and I direct said trustee to pay to said G. the rents and profits of said estate exclusive of all other persons, to be paid to him or upon his written order made annually, and this devise is not to inure in any manner for the benefit of any creditors of said G., but is intended to be for the only use and benefit of said G. and for such use and purpose only as he shall annually appoint." Held,-1. That the interest of G. in the devise was a vested life estate in the rents and profits

of the land. 2. That this interest could not be reached by an attachment of the land and levy of execution upon it. 3. That a bill in equity against the trustee, by a creditor of G. who had levied on the land, to compel him to pay over the accruing rents and profits to the creditor, could not be sustained. 4. That rents and profits in the hands of the trustee could be taken by any creditor of G. by foreign attachment, and that there was no way in which a creditor could secure the future rents and profits. Easterly v. Keney.

VESSEL.

1. A master of a vessel is presumed to continue such until some overt act or declaration of the owners displaces him from that station. Fox v. Holt.

2. The enrollment which describes him as master is evidence of the fact till the contrary is shown. Ib.

3. A bill of lading signed by the master binds the vessel, although the word "master" is not appended to his signature. Ib.

4. A master taking on board cargo for carriage binds his vessel to deliver it, whether he signs a bill of lading or not. Ib.

5. The owners, and the master as their agent, have a lien on the cargo carried in their ships for the freight money, and can retain the same until the freight is paid or the payment secured by the consignee. Ib.

6. A master can bind his owners for necessary repairs and supplies furnished in a foreign port, or a port of another State, but such supplies must relate to the condition, or the use and employment of the ship. Ib.

7. If the master is owner pro hâc vicê, he cannot bind the owners, but his contracts for necessaries may bind the ship and constitute a lien on her. Ib.

8. In case of pressing necessity, where the master cannot conveniently and readily communicate with his owners, he may bind them and the ship in a home port. Ib.

9. A master can in no case bind the ship or owners for his private debts, or for supplies furnished his family. Ib.

10. A mortgagee of a ship, or the holder of a conditional bill of sale, out of possession, is not liable for supplies and repairs. Ib.

11. Where a consignee refuses to pay the freight on a cargo, or properly secure the payment, it is the duty of the master to store the same at the port of delivery in care of a third party, in some convenient place, subject to the order of the owner or consignee on payment of the freight money. Ib.

12. In case no one will receive the cargo on storage at the port of delivery, the master may leave it at the nearest convenient port. Ib.

VOLUNTARY CONVEYANCE.

1. The defendant, at the request of R., to whom he was indebted for money previously received, made two notes for the amount of the debt, payable one to the defendant's wife, and the other to his daughter, and delivered them to R., who at once delivered them to the defendant's wife and daughter, they giving no consideration therefor. R.'s assets, at this time, were insufficient to pay his debts without these notes, but more than sufficient with them. In an action brought by the administrator of R. against the defendant, for the amount of the notes, it was held,-1. That the gift of the notes by R. to the wife and daughter of the defendant was not good against his creditors. 2. That judgment ought to be rendered for the plaintiff for the

full amount of the notes, and that he would hold the balance, not needed for the payment of debts, in trust for the wife and daughter of the defendant. Freeman v. Burnham.

2. It was found by an auditor that R. was indebted at the time of the delivery of the notes, and that his estate was still indebted for the same debts, and that without the notes his estate was insufficient to pay the debts in full. Held, to be the fair import of the finding that R.'s estate, at the time the notes were delivered, was insufficient without the notes to pay his

debts in full. Ib.

WAR.

1. A state of war, recognized as such by and between belligerent parties, suspends all contracts in existence between citizens of the respective belligerents at the time war commences. Semmes v. City Fire Ins. Co.

2. At the termination of the war such contracts are revived, and the remedies for their enforcement are restored. Ib.

3. The late war between the United States and the so-called Confederate States suspended all contracts between the citizens of the respective parties thereto. Ib.

4. A treaty of peace usually marks the time at which a war ceases and contracts between the belligerents are revived. Ib.

5. But the late war was not, and could not, be terminated by a treaty of peace, as the so-called Confederate States were politically annihilated, only one party to the contest surviving. Ib.

6. The question when a war begins or terminates is a political and not a judicial one, and courts must, in ascertaining whether a state of war exists, look to the action of those departments of the government in which that subject is confided by the constitution. The action of those departments, when within the authority conferred by the constitution, is conclusive and binding on the courts as well as on the citizens. Ib. 7. The proclamation of the president of the United States, of June 13th, 1865, declaring, among other things, "that all restrictions upon internal, domestic and coastwise intercourse and trade, heretofore imposed on the territory of the United States east of the Mississippi river, are annulled, and I do hereby direct that they be forthwith removed," was a valid exercise of executive power, the effect of which was to revive all contracts and remedies thereon between citizens of the rest of the United States and those of the seceding States east of the Mississippi river, which had been suspended by the war. Ib.

WATER-COURSE.

1. The petitioners were mill owners on Westfield river. Prior to 1826, Strap brook was a tributary of that river. In that year the brook was lawfully taken by the Farmington canal company under powers conferred by its charter and by a new channel transferred from its old bed into the canal and through the canal into Farmington river. The canal company, in 1848, abandoned its canal and practically ceased to exist, but the brook thus diverted had ever since continued

to flow toward Farmington river. The petitioners purchased their mill sites and established their mills after the brook had thus been diverted and while the canal company was in existence and operation. The question as to their right to a restoration of the brook to its original channel as against riparian owners upon the new channel, discussed but not absolutely decided. Agawam Canal Co. v. Edwards.

WILL.

1. A testator gave the use of one-half his property "to L., and H. his wife, during their natural lives." Held, to mean L. and H. and the survivor of them. Jacobs v. Bradley.

2. A legacy was given to "the Episcopal society in Hamden. Held, to be a good legacy to "Grace church," that being the only Episcopal society in Hamden. Ib. 3. A pecuniary legacy was made payable at the expiration of the lives of certain persons to whom, by the preceding bequests, the testator had given the life use of most of his estate. This legacy was followed by sundry other pecuniary legacies, in most of which no time of payment was specified. Held, that the provision with regard to the time of payment of the legacy first mentioned did not apply to the other legacies. Ib. 4. A legacy to a school district contained the following condition: "Provided the school-house shall be located one-half mile from where it now stands." The school district, after the death of the testator, voted to build a new school-house where the old one stood, and were proceeding with the construction of the same. Held, that the legacy should be treated as lapsed. Ib.

5. The will gave "all articles of furniture in the house to H., so long as she or her husband shall occupy the house and use the same." Held, to be a bequest of the use of the furniture, under the limitation stated, to H. and her husband, and the survivor of them. Ib.

WITNESS.

A party requested the court to charge the jury that, where a witness soon after a transaction had given a version of it materially conflicting with his testimony in court, his evidence must be regarded as impeached. The court charged that the testimony of the witness in such a case was entitled to little if any credit, but that testimony as to such conflicting statements was often very unreliable and likely to be colored by the feelings of the listeners. Held, to be unexceptionable. Thorp v. Town of Brookfield.

COURT OF APPEALS ABSTRACT.
JUNE DECISIONS, 1871.

ARBITRATION AND AWARD.

Judgment under: how reviewed.-The judgment upon award, under the statute, can only be reviewed in this court by writ of error. Proceedings under the revised statutes relating to arbitrations are expressly excluded from the operation of the code and the remedies given by it. Turnbull v. Martin. Opinion by Allen, J.

ATTORNEY AND CLIENT.

Employment of attorney by one of jointly interested parties.- An agreement whereby the several subscribers undertake to contribute to a common fund to maintain, by litigation, a general right asserted by them, upon which their separate interests depend, gives no right to any one of those subscribing to employ counsel in behalf of the whole; and where such counsel is employed by some subscribers, representing themselves as a committee, he cannot recover from the others without some proof of their assenting to such employment, or of the proper appointment of such committee. Smith v. Duckhardt. Opinion by Andrews, J.

BILLS AND NOTES.

Draft on bank as to subsequent deposits.— A draft drawn upon a savings bank, where the depositor has

no funds, will not operate as an assignment of funds subsequently deposited by him in such bank. It is to such funds a mere direction or authority to the bank. Fordsed v. Seaman's Savings Bank. Opinion by Rapallo, J.

COMMON CARRIERS.

1. Effect of stipulation in bill of lading: how far available to carrier.- The plaintiff, at Louisville, placed certain goods in the possession of the Jeffersonville Railroad Company, they agreeing to transport such goods to New York and to deliver them to plaintiff's consignee there. The Jeffersonville railroad extends only to Indianapolis, and had necessarily to send the goods over connecting lines to execute its contract. At the time of making the shipment the plaintiff accepted a bill of lading, in which it was stated that the company would not be liable for loss by "unavoidable accident of the railroad and fire in the depot," and after other specifications were the words, etc., "all rail, P. R. R." The defendant, a corporation having a line running from Philadelphia to New York, included in which are twenty miles of water transportation, received the goods, and while in its possession, in a place used by it for the deposit of merchandise to be transported, were destroyed by fire. There were from Philadelphia to New York all rail routes, with the exception of a ferry across the river at New York. Held, that the Jeffersonville railroad, having taken the goods for transportation at a special rate, and delivered at the time a bill of lading, which was accepted by the plaintiff, he is bound by the exemption from liability inserted in the bill, and the Jeffersonville railroad would not be liable for loss occurring within the exception. Magee v. Camden and Amboy Railroad, etc., Co. Opinion by Andrews, J.

2. In the absence of evidence to the contrary, it is to be presumed that the defendant and other connecting lines in the transportation of the goods were acting in the employ of the first company, and under the same liability as provided in the bill of lading. Ib.

3. A railroad company may bind itself by a contract beyond the termination of its own road. Ib.

4. If, however, the first company should make with the connecting lines any contract as to liability more favorable than the one made by the shipper with it, that contract would, at his election, inure to his benefit. Ib. 5. The words "all rail," inserted in the bill of lading, constituted a direction by the owner to transport the goods by that mode, and the carriage of the goods in a different manner, as by a route which is partly by water, and which was not necessarily taken, renders the party undertaking such carriage an insurer, and he cannot avail himself of any exception. Ib.

6. The defendant, having undertaken to carry the goods in violation of the contract, lost the benefit of the exemption from liability, and is liable for their loss. Ib.

CONSTITUTIONAL LAW.

1. Act for collection of claims against vessels: constitutionality of.-Any State law which attempts to provide for the enforcement of a maritime claim or contract, by any but a common-law remedy, infringes upon the exclusive jurisdiction of the federal courts over that class of cases. Brookman v. Hamill. Opin

ion by Rapallo, J.

2. So far as State laws create liens and provide remedies for claims not maritime, and over which the courts of admiralty have no jurisdiction, they are perfectly valid and operative. Ib.

3. Where process in rem is refused by the United States courts, on the ground of want of jurisdiction over the cause of action, such cases must be left to the State tribunals. Ib.

4. Cases arising from claims for material or supplies furnished to vessels in foreign commerce, though at the home port, or to domestic vessels not engaged in purely internal navigation of the waters of a State, are of admiralty and maritime jurisdiction. Ib.

5. All State statutes which attempt to confer on State courts a remedy for marine torts or marine contracts, by proceedings strictly in rem, are void. Ib.

6. Wharfage demands have been, from very early times, treated as one class of well-recognized maritime demands, and are cognizable only in United States courts. Ib.

7. And a bond given to discharge a vessel from an attachment issued by a State court, in pursuance of the act to provide for the collection of demands against ships and vessels (Laws of 1862, chap. 482), where the claim was for wharfage, is void, and an action cannot be maintained thereon. Ib.

CONTRACTS.

1. Effect of contract to assume perils of navigation: negligence. The plaintiff, owning a canal boat, engaged the defendant to tow it from Albany to New York, and paid him the agreed price therefor. It was agreed that the service should be done at the risk of the owner of the boat. The boat was detached from the towboat, and abandoned a short distance from Albany. Held, that the defendant was not a common carrier, and that the contract made by the parties, exempting the defendant from liability to be incurred in the performance of his duties, was valid. Woodin v. Austin. Opinion by Grover, J.

2. The defendant was, by the agreement, exempted from liability for damage arising from the perils of navigation, but not for that arising from his own negligence, whether gross or ordinary. Ib.

3. The correct rule is, that such a contract creates no exemption for injuries sustained by negligence of any degree, for the reason that such exemption was not in the contemplation of the parties, and is not embraced in the contract. Ib.

See Common Carriers.

CORPORATIONS.

Subscription for shares in unorganized.—The plaintiff subscribed for certain stock of an oil company about organizing, on the faith of a prospectus, which stated that "the company's property now comprises almost 270 acres in fee simple," etc., and then proceeds: "Whereas, G. A. B.," etc., "and their associates, propose to organize a company, to be known as the N. L. O. Co.," etc.; "whereas, said company intend to purchase certain oil and mineral lands," etc. The name

of the plaintiff and other subscribers for stock were affixed to this prospectus. The company was organized and went into operation. Eight of the parcels of land named in the prospectus were purchased; two other parcels named were not purchased, because a good title to the land could not be given; but one parcel not named, but believed to be of equal value to one of the unpurchased parcels, was purchased in its place. The plaintiff brought action to recover for the amount he had paid for his stock. Held, that the prospectus, properly construed, gave no assurance that the land described was already acquired, but only of an intention to purchase. That the company having acted in