his own, but for safe custody, and, therefore, under an implied stipulation that it was to be forthcoming for the use of the parish when required. Whether for peace sake, or from neglect of the duties of the plaintiff's predecessors, the defendant was allowed to retain it, and he supplied its place at first by a brazen service, and afterward by another silver service purchased by himself. The plaintiffs being minded to recover the custody of the parish plate recently, before action demanded it of the defendant, and he declined to return it, alleging that it was his own, purchased for him and his successors, and not for the parish - a plea negatived by the verdict, and which, if successful, would tend to defeat the admitted object of the donors, namely, that whoever were holders of the plate, it should be for the use of the parish; because the incumbent, as such, being only a corporation sole, could not, without statute or custom, take chattels by succession. Howley v. Knight, 14 Q. B. Rep. 240; S. C., 19 Law J. Rep. (N. S.) Q. B. 3.

Upon this refusal to deliver up the plate, the plaintiffs brought this action, founded upon the established rule of law that church wardens have succession as representing the parish in respect of its movable property, and may maintain actions in such capacity even against the incumbent. Year Book, M. 11 Hen., 4 fol. 12 a.; Com. Dig. English, fol. 3; Turner v. Baynes, 2 H. Bl. 559.

The defendant pleaded, among other pleas, the statute of limitations, that the cause of action had not accrued within six years. At the trial he gave evidence that, in the year 1859, more than six years before action, he had sold the plate out and out as old silver, and he insisted that the action was, therefore, barred by the statute of limitations. 21 Jack. 1.

The learned judge ruled that the statute ran, or, in other words, that a fresh and substantive cause of action in detinue, as upon a bailment determined, accrued to the church wardens upon the demand and refusal to deliver up the plate, notwithstanding the previous unknown conversion thereof by the defendant to his own use more than six years before action. and the question is whether that ruling can be sustained.

The authorities upon the construction of the statutes are collected in a very useful book (Darby and Bosanquet on the Statute of Limitations, p. 28), from which it appears that the point is, in this instance, new; and we must decide it upon reason.

For the defendant it was urged that a complete cause of action arose against him upon the sale in 1859; that the statute thereupon began to run, and that the ignorance of the plaintiff could not avail to stay the operation of the statute in a court of law; and, if this had been an action for damages for the conversion of the plate, in which the demand and refusal would have been only evidence of a conversion, it would have been impossible to contend that the date of the conversion could be excluded, or to deny that the defense upon the statute was sustained. Nor could the ignorance of the plaintiffs, or their predecessors, have prevented its operation.

It is a general rule, that, where there had once been a complete cause of action arising out of contract or tort, the statute begins to run, and that subsequent circumstances which would, but for the prior wrongful act or default, have constituted a cause of action, are disregarded. As, for instance, in the case of a bill of exchange, drawn at so many months after sight, and refused acceptance, the cause of action is complete,

and the statute begins to run upon the refusal of acceptance, and no new cause of action arises upon refusal of payment.

The rule that a cause of action arises once for all upon the first default is, however, not universal; for in cases where a man undertakes to do an act upon a future day, and, before the day arrives, disables himself from performing the act, or positively and absolutely refuses to be bound by or perform his contract, and, so to speak, declares against the bargain himself and absolves the opposite party, it is in the option of such party at his election to treat that conduct as of itself a violation and breach of the contract, or to insist upon holding the repudiating party liable and sue him for non-performance when the day arrives. The misconduct of the party who acts in fraud of the bargain in such cases gives the other party thereto the election of suing, either for the first violation or for non-performance at the day; and it does not furnish the wrongdoer with any answer to the latter. This principle was well maintained in Hochster v. De La Tour, 2 E. & B. 678; S. C., 22 Law J. Rep. (N. 8.), Q. B. 455. In delivering the judgment in that case, Lord Campbell thus stated the reason of the decision: "It seems reasonable to allow an option to the injured party, either to sue immediately, or to wait till the time when the act was to be done, still holding it (the contract) as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrong-doer." The same doctrine was recognized and approved by the court of exchequer chamber in Avery v. Bowden, 6 E. & B. 953; S. C., 6 Law J. Rep. (N. S.), Q. B. 3.

Upon like reasoning, it seems to follow, on the other hand, that where the action of detinue is founded upon a wrongful conversion of the property only, as it needs must where there is a bare taking and withholding of the property by another, without any circumstances to show a trust for the owner or to found an option to sue, either for the wrong or for the breach of the original terms, the statute would run from the time at which the property was first wrongfully dealt with. This, however, as we have already observed, is not like the present case, in which the plate was originally taken for safe custody, to be restored when required.

On the other hand, if the action of detinue is resorted to, as it may be (Com. Dig. Detinue, a) for the purpose of asserting against a person intrusted for safe custody a breach of his duty as bailee, by detention after demand, independent of any other act of conversion, such as would make him liable in an action of trover, it should seem that the owner is entitled to sue at election, either for a wrongful parting of the property (if he discovers and can prove it), or to wait until there is a breach of the bailee's duty, in the ordinary course, by refusing to deliver up on request; and that, in the latter case, it is no answer for the bailee to say that he has, by his own misconduct, incapacitated himself from complying with the lawful demand of the bailor. Such is the effect of the decisions referred to in the course of the argument, in Williams v. Archer, and Reeve v. Palmer, supra, in which latter case a loss of the chattels by negligence, which, though of itself it plainly gave no cause of action of trover or detinue (Williams v. Gesse, 3 Bing. N. C. 849), yet did give cause of a special action for negligence, at the option of the owner, was held to be no answer to an action of detinue founded upon a subsequent demand and refusal, which were held to con

stitute a substantive cause of action, notwithstanding that the property had, before the demand, ceased to be in the possession of the bailee. In that case the principle that a man intrusted with property for safe custody, cannot better his position by wrongfully part ing with possession of it, but must be answerable if he retained the possession, was applied both in this court and in the exchequer chamber to the action of detinue. And this is agreeable to the maxim, "Qui dolo desiiet possidere pro posidente damnatur.”

The learned judge's direction was, therefore, unobjectionable, and the rule ought to be discharged. Rule discharged.

NOTES AND QUERIES.

Sir, -Can any of your readers inform me, through your columns, whether a bankrupt can be discharged under the act of March, 1867, or under any amendments thereto, without paying fifty per cent on the claims proved against his estate?

It has generally been understood, that he can yet be discharged without paying the fifty per cent on debts K. contracted prior to January, 1869.

BOOK NOTICES.

The American Law Review—Quarterly. Little, Brown & Co., Boston.

The July number opens with a very elaborate "History of the Admiralty Jurisdiction in the Supreme Court of the United States." The other contents are "The Reporters and Text writers"-a paper made up of the comments favorable and unfavorable of the judges and text writers on various books; "The Scotch Courts"-a very interesting article on the judiciary and judicial system of Scotland; digest of the English law reports; selected digest of state reports; book notices; list of new law books for the quarter; summary of events and correspondence. The fifth volume closed with this number.

Bench and Bar. O'Callaghan & Cockcroft. Chicago. July, 1871.

Mr. J. A. J. Whittier, the new editor of the Bench and Bar, is doing most excellent service for that quarterly. The two numbers that have been issued under his management have been particularly noticeable for the ability and variety of their contents. The present number contains articles on "The Taking of Private Property for Purposes of Utility;" "Trial by Jury;" "Circumstantial Evidence," second paper; also "Digest of Recent Decisions, and of Bankruptcy Decisions," notices of new law books, obituaries, legal memoranda, etc.

Reports of Cases in Law and Equity determined in the Supreme Court of the State of New York. By Oliver L. Barbour, LL. D. Vol. 58. Albany: W. Č. Little & Co., 1871.

The decisions reported in this volume are mainly those of the first and fourth departments, and cover the interval from January, 1870, to April, 1871. The reporting is done after the usually careful style of Mr. Barbour. Indeed, one might suppose that it was sometimes a little too carefully done. His desire to present in the head notes every point passed upon by the court not infrequently has the effect of protracting them to an inconvenient length, as in the case of Hobart v. Hobart, p. 296, the head note to which occupies nearly two pages. So, too, he sometimes gives

with unnecessary fullness the fact and the arguments, as in the case of Graves v. Spier, p. 349, wherein the statement of facts and argument of counsel occupy something over thirty-three pages, while the opinion of the court is contained in less than seven. The arguments of counsel, especially of the losing counsel, are undoubtedly of value in important or doubtful cases, but even there they should be condensed into the smallest compass consistent with clearness.

We believe that most, if not all, of the important cases in the volume have been given by us heretofore in our digest. There is one, however, to which we have at present only tried to allude, but which we shall endeavor to notice more fully hereafter. It is the case of Lappin v. The Charter Oak Insurance Co., p. 325. That was an action brought upon a policy of insurance against fire to recover loss. The policy contracted to make good any loss or damage happening by fire, between December 7, 1868, and December 7, 1869. It contained a clause providing that the policy shall not be assignable before or after loss without the consent in writing of the company, and provided, among other things, that "in case of any sale, transfer or change of title in the property insured by this company, or of any interest therein, such insurance should be void and cease;" and also: “in case of any levy by another, or the levy of an execution or attachment, or possession by another of the subject insured, without the consent of this company indorsed thereon, this insurance shall immediately cease."

On the 21st of July, 1869, the assured died intestate, and the property insured descended to his heirs. On the 9th of November the property was destroyed. The court held that the death of the insured and the vesting of the title in the heirs at law operated as a "change of title" within the terms of the policy; and that the possession of the property insured by the insured, without the consent of the company, was also in violation of the terms of the policy, and that, therefore, the plaintiff could not recover.

This occurs to us now as being a very strict and hard construction of the language of the policy, and as hardly borne out by the authorities; but we will speak of it at another time.

Curiosities of the Law Reporters. By Franklin Fiske Heard. Boston: Lee & Shepard, 1871.

To the legal profession, at least, this is a useful and entertaining little book, inasmuch as it shows what absurdities we have outlived, and suggests many others that ought to die. Those who believe that the law is not a progressive science should read this book. Those, also, who do not see why certain necessary reforms are not instantly effected should read it. The most formidable obstacle to legal reform is the laziness of those lawyers who have learned their profession, and dislike to be at the trouble of unlearning any part of it. It is this that makes many sigh for the disused juggernauts of the law, on which they were wont to ride, oblivious of the crowd who were crushed by their wheels. We have said that the book is amusing, and so it is, if dead and dying follies can be said to be amusing; but the amusement to be extracted from its pages is of a sober cast. So, when we are told that "an assault was laid twenty-one different ways in an indictment," it seems, at first thought, to be rather a good joke; but such are the jokes that have rendered our profession a reproach to many. Mr. Heard's volume shows a good deal of discursive mousing among the old books, and he has made a good report of the time so spent.

The Science of Legal Judgment. A treatise designed to show the materials whereof, and the process by which, courts construct their judgments, and adapted to practical and general use in the discussion and determination of questions of Law; by James Ram, with extensive additions and annotations by John Townshend. Baker, Voorhis & Co., New York, 1871.

We believe the only reprint of this admirable work in this country was one without reference to American cases, in the law library. Mr. Townshend, in his preface, modestly says, that what he has added constitutes one-third of the bulk of the volume. He has certainly added more than a third to the interest and value of the present edition. He has done his work thoroughly and well, adopting, we think, the correct course of embodying his own labor in the body of the text inclosed in brackets. But a very faint idea of the number of cases cited, and the doctrines briefly but lucidly discussed, can be given in a review. The volume must be examined and read to be appreciated. Every lawyer who desires to discuss a law point understandingly and clearly, with a definite idea of the value of reports and text books, particular cases and texts, will not only consult but study it. The fourteenth chapter, containing five sections upon adherence to decisions and overruling them, the fifteenth, "distinguishing one case from another," and the seventeenth, "deciding new cases," are among the best. The only thing which occurs to us which might have materially improved the work would have been a more general giving of the names of the parties to the cases cited, with an alphabetical list of all the cases cited, and a separate one of those overruled, shaken or distinguished. There are so many of each that it is somewhat difficult to find any particular case; but where so much is done, and so well done, perhaps it is hypercritical to find fault with such an omission, particularly as the extensive index will go far to supply the deficiency.

The Federal Government: its Officers and their Duties. By Ransom H. Gillett, formerly member of congress. Woolworth, Ainsworth & Co., New York, 1871; S. R. Gray, Albany.

To the lawyer, pur et simple, this book will be of but little use, but to a lawyer who has been so unfortunate as to get an office under the United States government, it may serve to give a brief outline of his duties and responsibilities. Its chief usefulness will be in the hands of the rising generation, who ought to, but seldom do, know something about the government under which they live. Mr. Gillett has had a large experience as an officer under the federal government, and has recorded it in a manner likely to prove interesting as well as instructive.

The National Bankruptcy Register has changed its form to an octavo, whereat most lawyers who take it -and every lawyer at all interested in bankruptcy law ought to take it - will rejoice. Ought not the publishers to have commmenced a new series with this change? as the old volumes and the new will hardly keep company well together when bound.

Messrs. King & Baird, of Philadelphia, have in press a new edition of The American Leading Cases, by Hare & Wallace a work which has for years been deservedly popular.

LEGAL NEWS.

The Pall Mall Gazette thinks that the English judicial system runs great risk of a total collapse.

Joel Prentiss Bishop, the well-known writer on criminal law, has issued the first volume of a treatise on the law of married women.

It is reported that Chief Justice Robertson, of the Kentucky court of appeals, contemplates resigning at an early date on account of continued ill health.

The commissioner of internal revenue is rapidly reducing the number of assistant assessors in the different States.

There were 949 acts passed at the recent session of the legislature of this state, of which number only 92 are what are known as public or general laws.

Hon. W. M. Addington, a leading Baltimore lawyer, and United States District Attorney under President Buchanan's administration, died at White Sulphur Springs, Va., on the 24th ult.

James K. Turner, a member of the Titusville (Penn.) bar, has been convicted of forging pension papers, and sentenced to pay a fine of two thousand dollars and suffer an imprisonment of fourteen years.

It is stated that about one hundred indictments have already been found against members of the Ku-Klux order in North Carolina, and that by the time the present term of the circuit court closes, the number will be doubled.

The following appointments have been made by the president: Hon. D. B. Johnson, associate justice, supreme court of New Mexico; John Glyn, assistant assessor of internal revenue for the second district of New York; Elijah Faulkner, assistant assessor of internal revenue, seventh district of Tennessee.

NEW YORK STATUTES AT LARGE.
СНАР. 84.

AN ACT to authorize the owners and holders of certain railroad mortgage bonds made payable to bearer, to render the same payable to order only. PASSED March 9, 1871. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. It shall be lawful for any person or persons owning and holding any railroad mortgage bonds, or other corporate bonds (for which a registry is not by law provided), heretofore issued, or which may be hereafter issued, and made payable in this state, and which are made payable to bearer, to render the same non-negotiable by the owner and holder indorsing upon the same, and subscribing a statement that said bond is the property of such owner. And thereupon the principal sum of money mentioned in said bond shall only be payable to such owner or his legal representatives or assigns.

§ 2. The bonds described and referred to in the first section of this act may be transferred by an indorsement in blank, giving name and residence of assignor, or they may be transferred by an indorsement payable to bearer, or to the order of the purchaser (naming him), subscribed by the assignor, giving name and place of residence.

§ 3. This act shall take effect immediately.

The Albany Law Journal.

ALBANY, AUGUST 12, 1871.

DYING WITHOUT CONSENT OF INSURERS.

The decision of the supreme court, in the case of Lappin v. Charter Oak Fire and Marine Insurance Company, 58 Barb. 325, challenges attention, if not criticism. The action was brought by an administrator to recover upon a policy of insurance against fire.

On

The insurance had been effected on certain buildings by the intestate during his life-time for the term of a year from the 7th of December, 1868. the 21st of July, 1869, the assured died, leaving three infant children. The property was destroyed on the 9th of November following.

The policy contained an agreement, on the part of the defendants, "to make good unto the said assured, his executors, administrators and assigns, all such immediate loss," etc., and provided that the policy should not be assignable before or after loss without the consent of the company manifested in writing thereon; and that, "in case of assignment without such consent, whether of the whole policy or of any interest in it, the liability of the company shall then cease; also, that "in case of any sale, transfer, or change of title in the property insured by this company, or of any interest therein, such insurance shall be void and cease." There was also the further provision, that, "in case of the entry for foreclosure of a mortgage or the levy of an execution or attachment, or possession by another, of the subject insured without the consent of the company indorsed thereon, this insurance shall immediately cease."

The decision of the court, and the grounds therefor, are shown by the following extract from the opinion: "No consent had been indorsed upon the policy by the company at the time of the fire, and there had been long before, not only possession by others than the assured of the subject insured, but a complete change of title also. It seems clear, therefore, that the policy of the insurance, by the most clear and explicit terms and provisions thereof, became void, and ceased to have any binding force upon the death of the assured, and the vesting of the title to the property insured in his heirs at law. That this was a change of title from the assured to others cannot be denied, and it brings the case within the express terms of the policy. The possession of the property insured by others than the assured, without the consent of the company indorsed upon the policy, also produces the same result. It puts an end to the contract, and renders it no longer obligatory."

The case was distinguished from that of Burbank v. Rockingham Insurance Company (24 N. H. 550), on the ground that, in that case, the policy was to become void if the assured property should be

"alienated by sale or otherwise," and that that decision was an authority only to the effect that descent to an heir was not an alienation. Smith v. The Saratoga Mutual Fire Insurance Co., 1 Hill, 497, Phelps v. The Gebhard Fire Insurance Co., 9 Bosw. 404, and Wyman v. Wyman, 26 N. Y. 253, were also held not to be authorities in the case at bar, as in them it was a transfer or termination of the interest of the assured in the policy, and not in. the premises insured, which was to avoid the policy.

If there is any thing in the maxim noscitur a sociis, the correctness of this decision may be doubted. The policy was to be void "in case of any sale, transfer or change of title.” Construed by this maxim, the clause would read, "in case of any sale, transfer or similar change of title;" that is, a change of title by the act or agreement of the party, and not by act or operation of law. The same is equally true of the clause "in case of the entry for foreclosure of a mortgage, or the levy of any execution or attachment, or possession by another;" that is, similar or like possession by another.

It should be remembered that these provisions and limitations in the policy were the language of the defendants, and, if there was any doubt as to their meaning, it was not to be extended in their favor by construction. Supposing the words "change of title" to be unmodified by the preceding words, it is not so clear that they would cover this case. Under the civil law the succession of the heir did not operate as a change of title. He was regarded as the same person as the ancestor, and the estate, instead of being changed by the descent, was held to continue in the heir. This is, to a limited extent, the theory of the common law. A recent writer on descents says that the notion that the death of the ancestor begets title to land in the heir is only qualifiedly true. "The title which the heir has in the land, neither takes its origin nor gains any strength in the death of the ancestor." Bing. on Descents, 1.

The decision of the United States district court for the northern district of Ohio, in the case of Starkweather v. Cleveland Insurance Company, 10 Am. Law Reg. 333, is to a limited extent an indirect authority against this case. It was there held that a policy of insurance containing a clause that if the "title of the property is transferred or changed," or, "if the policy is assigned," the policy shall be void, is not avoided by the bankruptcy of the assured and the assignment of his estate to an assignee in bankruptcy, and the consignee may recover on it in case of a loss.

But whether the succession of the heir operated as a change of title or not, we do not believe it was such a change as was contemplated by the parties at the time this contract was made, nor one which can be fairly construed to come within the terms of the policy. The court remarked that there was "no conceivable reason for straining the provisions of the

contract, if we were at liberty to do so, in favor of the heirs at law of the insured." Possibly not, but what conceivable reason was there for straining it in favor of the insurers? The equities were certainly in favor of the heirs, even if, as the court said, they had "paid the defendants nothing."

A SHORT LESSON FOR TRADES' UNIONS. Cheetham's exclamation, "Oh, if ever you workmen get power, God help the world," has been verified by a case which recently came before the supreme judicial court of Massachusetts for decision.

The facts of the case were, that Carew, the plaintiff, a free-stone cutter of South Boston, had large contracts to supply cut stone. Fearing that he might otherwise fail to fulfill his obligations, he sent some of the stone to be cut in New York. This proceeding infringed upon the rules of the "Journeymen Free-stone Cutters' Association," and, although Carew was not a member, and in no way bound by its laws, it was determined to hold him amenable to them. Accordingly the association imposed a fine of five hundred dollars. He refused to pay. Immediately the association commanded his workmen to leave him, which they did, until reduced to the alternatives of paying the fine or failing to meet his contracts, he chose the former.

Having filled his contracts, he brought an action against the association to recover, not only the five hundred dollars which he had paid, but also the damages he had sustained by reason of the "strike." The superior court nonsuited him at the trial, but on appeal the supreme judicial court reversed the decision of the court below, holding that the money had been extorted by an illegal conspiracy, and that the association was liable both for the money paid and the loss occasioned.

This case may prove useful, not as establishing any new principle of law, but as illustrating a principle already established but not always understood, viz.: that combinations of all kinds to interfere with trade are illegal. It has been settled, time out of mind, that the law will not permit any one to restrain a person from doing what his own interest and the public welfare require that he should do, much less will it permit a number of persons to combine with a view to the same end. In fact, it has been frequently held to be criminal for persons to conspire to do some acts which, if done by a single individual, would be innocent. For instance, it is lawful for a man to refuse to work for less than a certain price, but combinations of workmen to enhance the price of labor or to coerce other workmen have been time and again held to be indictable offenses. 3 Chitty's Cr. Law, 1163; People v. Fisher, 14 Wend. 9.

This judgment of the Massachusetts court does not interfere with the trades' unions so far as they confine themselves to legitimate objects; nor does it

abridge the right which every man has to control his own labor either as to price or hours. Its meaning and force is, that trades' unions, or any other combinations of men, cannot conspire or attempt to control the actions of others, nor subject them to the will or rules of their confederation. Although this case did not call for a decision of the question, one would not have to look very far for authorities to prove that all "strikes," gotten up by these unions for the purpose of increasing wages, are criminal offenses, and subject the "strikers" to indictment. See Rex v. Bykerdike, 1 M. & Rob. 179; Archibald's Cr. Pl. 507; Commonwealth v. Curlish, Brightley's Rep. 40; Commonwealth v. Hunt, 4 Met. 111; People v. Fisher, 14 Wend. 9. It will go far toward solving the so-called "great problem of labor and capital," if the working men shall come to understand the relative rights of labor and capital. Let them know practically, as well as theoretically, that any attempt on their part to subject others, whether working men or employers, to their confederation, will entail upon them the legal penalties attached to such an offense, and the result will be greatly beneficial to them, as well as to the public.

THE CIVIL LIABILITY OF COMMISSIONERS OF HIGHWAYS.

It is by no means creditable to our legislation that travelers on the public highways of this State are compelled to trust to chance, rather than the law, for safe passage. Most, if not all, the New England States, and many of the western States, have statutory provisions, making towns liable, civilly, for injuries occasioned by defective highways; but, in this State, there is no provision of the kind, although it was settled by the courts nearly a quarter of a century ago, that, in the absence of an express statutory enactment, no liability attached. See Morey v. Town of Newfane, 8 Barb. 645.

To be sure, the commissioners of highways are charged with the duty of keeping roads in repair; but, supposing them to be liable to a civil action at the suit of one injured by reason of their neglect, the conditions necessary to be shown to justify a recovery are such that no action of the kind, in the absence of special statutes, has yet been successful, although often brought. Their liability in any event has been made to depend upon the question whether or not they had the funds needful to repair, the affirmation of which plaintiffs have usually found it impossible to show.

But it is only recently that it has been settled that the commissioners were liable at the suit of one injured, even when they had the necessary funds to repair. Chancellor Kent expressed an obiter opinion in Bartlett v. Crozier, 17 Johns. 439, that such an action would not lie, on these grounds, substantially: 1. Because the duty to repair is not absolute and imperative, but is dependent upon a train of circumstances.