or invaded, and may delegate this power, but such delegation must be in express terms. Ib.

3. But such intention must unequivocally appear in the statute.-To defeat the attainment of one public purpose to which lands have already been subjected, the legislative intent must unequivocally appear. If an implication is relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject-matter of it, so that, by reasonable intendment, some especial object, sought to be attained by the exercise of the power granted, could not be reached in any other place or manner. Ib.

* * *

4. A new appropriation cannot be made under a general authority.-The city of Buffalo is, by its charter, granted "power to take lands for canals, basins, slips and other public waters, and for any other corporate purpose or object," and to "enlarge and alter" the same; and "unwholesome waters * * * and matter * * * may be abated by draining or in any other way it shall deem expedient." Held not to confer power to excavate a canal sixty feet wide across the yards of a railway company, containing tracks which were constantly in use, and the use of which would be seriously interrupted, if not suspended, by such excavation. Ib.*

[Decided Jan. 16, 1877.]

5. After the confirmation of report of commissioners of appraisal, railroad company cannot abandon proceedings. After the confirmation of the report of commissioners of appraisal, appointed in proceedings instituted by a railroad company under the act to authorize the formation of railroad corporations, etc. (Laws 1850, chap. 140), to acquire lands for the use of the railroad, the company cannot abandon the proceedings and refuse to pay the awards made to the land-owners. Matter of Rhinebeck and Connecticut R. R. Co. v. Radcliffe. Opinion by Andrews, J. [Decided Nov. 14, 1876. Reported below, 9 Hun, 34.]

EXECUTION.

1. Redemption of land by creditor: when it must be made on or after last day. - The decision in Gilchrist v. Comfort, 34 N. Y. 235, that a redemption by a creditor on or after the last day of the fifteen months from the day

of sale of land under execution, must be made at the sheriff's office, and that a redemption at another place, although in the same village and to the sheriff who made the sale, is invalid, reaffirmed and followed. Morss v. Purvis. Opinion per Curiam.

2. Computation of time. -Where a person has a specified period from or after an act is done, the day on which the act is done is to be excluded, but no other day. Where a sheriff's sale took place January 16, 1869, the fifteen months for the creditor to redeem expired April 16, 1870, and April 16 was the last day of the fifteen months. Ib.

[Decided Jan. 16, 1877. Reported below, 5,T. & C. 140.]

PARTIES.

Action against joint obligees: joining survivor with representatives of deceased: surety discharged by death. - In an action against H. and P. it was a question whether P. was liable as a joint obligee or as a surety, but plaintiff treated him as a joint obligee. Pending the action P. died, and his personal representatives were substituted as defendants jointly with H. Held, error, and a nonsuit proper. An action against H. and the representatives of P. jointly upon a joint obligation of P. and H., could not be maintained unless the plaintiff averred in her complaint her inability to procure

satisfaction from the survivor. And in case P. was liable only as surety his obligation was discharged by death, and his representatives were not liable. Hauck v. Craighead. Opinion by Allen, J. [Decided Dec. 5, 1876. Reported below, 4 Hun. 561.]

USURY.

Statute of 1870 (chap. 163): what is payment of usury. - Plaintiff presented commercial paper to defendant, a State bank, for discount, and thereupon indorsed and transferred the paper to the bank, which thereupon credited the plaintiff on its books and upon the plaintiff's pass-book the respective amounts for which the paper discounted was made or drawn, less the amount charged for the discount, which in each case exceeded the rate of seven per cent per annum. The plaintiff parted with all interest in the paper. Held, a payment of usury under the statute of 1870 (chap. 163), which rendered the bank liable to the penalty provided by that statute. Nash v. Man. & Trad. Bank. Opinion by Rapallo, J. [Decided Feb. 13, 1877. Reported below, 5 Hun, 568.]

WILLS.

1. Construction of: mistake in will as to number of children. It is a rule in the construction of wills that where a gift to children speaks of them as a specified number, which is less than the number in existence at the date of the will, the specified number will be rejected as a mistake, and all the children so in existence be held entitled, unless it can be inferred who are the particular children intended, and a like principle would be applied when there is mentioned a greater number than exists. Accordingly the word "eight" applied to children, having no apparent meaning applicable to the facts of the case, rejected. Kalbfleisch v. Kalbfleisch. Opinion by Folger, J.

2. When legacy charged on real property. While it is a general rule that the personal estate is to furnish the fund for the payment of the legacies, yet it may be entirely exonerated, or the real estate may be made to aid the personal, if there be express direction to that effect in the will, or if such be the intent of the testator to be gathered from its provisions. Taylor v. Dodd, 58 N. Y. 335. Accordingly, when there was appended to a will a codicil giving to the executors the power to sell the testator's real estate with no other purpose hinted at, and with no other object appearing for the exercise of it than to make sure of a fund for the payment of legacies, held, that the real estate might be converted in aid of the personalty to the payment of such legacies. Ib. [Decided Nov. 28, 1876.]

SURRENDER OF PATENT-EFFECT UPON

IN

PENDING SUITS.

the case of Meyer et al. v. Prichard, just decided by the Supreme Court of the United States, the effect of a surrender and re-issue of a patent during a litigation in respect to such patent was passed upon. The court say: "In Moffitt v. Garr, 1 Black, 282, we held that a surrender of a patent means an act which, in the judgment of law, extinguishes the patent. It is a legal cancellation of it, and hence can no more be the foundation for the assertion of a right, after the surrender, than could an act of Congress which has been repealed. * * *The re-issue of the patent has no connection with or bearing upon antecedent suits; it has as to subsequent suits. The antecedent suits depend upon the patent existing at the time they were

commenced, and unless it exists and is in force at the time of trial and judgment, the suits fail.' To the same effect is Reedy v. Scott, 23 Wall. 364. We are satisfied with this ruling.

"Since the appeal in this case, the appellants, who represent the original patentees, have surrendered the patent upon which the suit was brought, and obtained a re-issue. This fact is conceded. If we should hear the case and reverse the decree below, we could not decree affirmative relief to the appellants, who were the complainants below, because the patent upon which their rights depend has been canceled. There is no longer any 'real or substantial controversy between those who appear as parties to the suit' upon the issues which have been joined, and for that reason the appeal is dismissed, apon the authority of Cleveland v. Chamberlain, 1 Black, 426, and Lord v. Veazie, 8 How. 255.

ing Fund Society and Dollar Savings Bank of Richmond, recently decided (15 Nat. Bankr. Reg. 44), passed upon a question in bankruptcy of interest to those dealing with banks. A bank which had suspended payments, advertised that it would, on a certain day, resume business by receiving special separate deposits in trust to new account, pledging the bank to use these deposits only in payment of checks against that new account, and as fast as the bank can collect and realize from the loans and securities, to pay pro rata installments on its present indebtedness," etc., etc., and received new deposits, and soon after finally failed, and was adjudicated in involuntary bankruptcy. The court held (on petition of a new depositor to be paid in full as a preferred creditor), that the new deposits were not special deposits: that no lien was secured when they were paid in over the counter of the bank; that no preference was secured by the advertisement; and that the new depositors were general creditors to be paid pro rata.

The Supreme Court of Kansas recently held, in the case of Pritchett v. Rollins, that the plea of usury is a personal privilege, and if the debtor declines to avail himself of it, no stranger to the transaction can. A second mortgagee cannot plead usury in a prior mortgage, either to defeat or postpone its lien.

The case of Third National Bank of Syracuse v. Clark et al., decided on the 5th ult. by the Supreme Court of Minnesota, was an action brought by plaintiff, as indorsee of a promissory note made by defendant, payable to the order of The Williams Mower and Reaper Company, and indorsed as follows, viz.: "Pay Third National Bank, Syracuse, or order, for collection for the Williams Mower and Reaper Co., Syracuse, N. Y., O. Welsh, Treasurer." The court held, that the indorsement was "restrictive" and that parol evidence was inadmissible to show it absolute. The case of Rock County Bank v. Hollister, 21 Minn. 385, was followed and applied to this case.

The case of Hannen v. Sullivan, recently decided by the St. Louis Court of Appeals, and noticed in the Central Law Journal, passes upon a question of payment of negotiable paper. The court held, that when

the maker of a note pays the same to another than the holder, in order to discharge the debt, it must be paid to some one authorized to collect it, or whose action is subsequently ratified. Such authority or ratification may be proved by circumstances, such as leaving the note in the possession of an agent, or silent acquiescence in the payment to the agent; bnt mere silence will not be sufficient to establish a ratification unless the jury believe that the principal intended by such silence to ratify his agent's act. Nor will the mere fact of the agent's having loaned the money and received the note for the principal, warrant a finding that the agent was authorized to collect. The mere possession of an unindorsed promissory note is not of itself sufficient to authorize a payment thereon to the holder, when said note is not exhibited to the payer. The case of Towne v. Rice, decided on the 3d inst., by the Supreme Judicial Court of Massachusetts, was an action upon two notes. In the court below the defendant contended that the instruments sued on were not negotiable notes, and that he was not bound personally thereon, as his signature was that of a receiver only. It appeared at the trial in the Superior Court that the defendant and the other maker, Haralson, were receivers of the Alabama and Chattanooga Railroad Company, a corporation organized and located in the States of Alabama and Georgia, appointed by the United States Circuit Court in Alabama, and that they were engaged in operating and equipping that road. The defendant was allowed, as a witness in his own behalf, against the plaintiff's objection, to show that the notes in suit were actually New York contracts made and given there, and was allowed to impeach the notes for alleged usury under the statutes of New York. The court ruled as a matter of law, and under the statutes of New York in evidence, that the notes were absolutely void on the ground of usury, both as against the original party and any innocent holder for value, and that the plaintiff could not recover against the defendant, either as maker or indorser, and directed a verdict as to each note for the defendant. The plaintiff alleged exceptions, which the appellate court sustained, holding that while the presiding judge correctly ruled that the instruments sued were negotiable promissory notes, it was erroneously held by him that as against an indorser of the same, in this State, for value before maturity and without notice thereof, the defendant might show that the notes, although dated at Boston with intent that they should be Massachusetts contracts, were actually made in New York, and on account of illegal interest reserved or taken, were there void by the statute of New York.

INSURANCE LAW.

MARINE INSURANCE; RECOURSE OF INSURER AGAINST WRONG-DOER; INSURABLE INTEREST.

N the case of Amazon Ins. Co., appellant, decided by the United States District Court for the Southern District of Ohio, in Admiralty, December 23, 1876. it was held that in a libel by the insurer, who has paid the loss to the assured, against the carrier, by whose wrongful act the loss occurred, the respondent is vot permitted to set up as a defense that the insurer was not legally bound to indemnify the assured for the loss sustained by such wrongful act. Such libel is properly filed in the name of the insurer, and it is not necessary nor proper in admiralty that the action be brought in the name of the assured, for the use of the insurer.

In the case of Anderson v. Morice, 35 L. T. Rep. (N. S.) 566, recently decided by the House of Lords, the facts were these: The appellant contracted for the purchase of rice in the following terms: "Bought for account of A, of B & Co., the cargo of new crop Rangoon rice per Sunbeam." The day after making this contract the appellant insured the rice at and from Rangoon to the United Kingdom, "as interest may appear." The ship proceeded to Rangoon, and after the greater part of the cargo had been shipped, she suddenly sank at her anchors, in fine weather, and the rice already shipped was wholly lost. In an action on the policy, held, by Lords Chelmsford and Hatherley (affirming the judgment of the court below), that the appellant had no insurable interest in the rice, it not being at his risk till the cargo was completed. By Lords O'Hagan and Selborne, contra. The evidence tended to show that the ship was seaworthy and in good repair on the voyage to the port where she was lost, and no direct evidence was or could be given why she sank. Held (affirming the judgment of the court below), that there was evidence of a loss by the perils insured against.

JUDGMENTS AGAINST THE UNITED STATES IN STATE COURTS.

IN

IN the case of the United States, plaintiffs in error, v. Thompson and others, decided by the Supreme Court of the United States at the present term, the court held, that judgments in the State courts against the United States cannot be brought before it for re-examination upon a writ of error, except in cases where the same relief would be afforded to private parties. In this case the United States put in a claim against an insolvent firm in a suit in one of the courts of Maryland, claiming priority of payment. It was decided that if the United States ever had a claim it had been paid. It was conceded upon the argument in behalf of the United States that the question of priority of payment, under the laws of the United States, was not decided in the court below, because it was found there was no debt due. The court say, with this concession, which could not be avoided, it is difficult to see what Federal question there is in the record. It appears affirmatively that the Circuit Court rejected the claim because it had been paid, and the presumption, in the absence of any showing to the contrary, is that the Court of Appeals based its decision upon the same ground. But in addition to this, on looking into the opinion which has been sent here as part of the record in that court, we find that all questions as to the original liability of Mc Freely & Hopper (the insolvent firm) to the United States were expressly waived, and the decision placed solely upon the ground that "any claim the United States may have ever had against the firm growing out of these dealings with Thompson has been paid and extinguished.” It is not contended that this decision is repugnant to the Constitution or any law or treaty of the United States, but the argument is that as the check of McFreely & Hopper was not paid, it did not pay their debt. Whether this is so or not does not depend upon any statute of the United States, but upon the principles of general law alone. We have many times held that we have no power to review the decisjons of the State courts upon such questions. Bethel ▼. Demaret, 10 Wall. 537; Delmas v. Ins. Co., 14 id. 666; Ins. Co. v. Hendren, 92 U. S. 287; Rockhold v. Rockhold, id. 130.

RECENT AMERICAN DECISIONS.

SUPREME JUDICIAL COURT OF MAINE.*

DAMAGES.

1. In an action for damages for the breach of an agreement to convey land, held, (1) that the plaintiff is entitled to recover what the land was worth, at the date of the breach, more than what he was then owing for it, with interest thereon; (2) that this rule of damages is not to be varied, because the defendant, through unanticipated causes which he could not control, although acting in good faith, was unable to convey; and (3) that the plaintiff at his election, the failure to convey being total, would be entitled to recover the exact consideration actually paid upon the contract by rescinding the contract, which would be effected by the institution of a suit for money had and received. Doherty v. Dolan, 87.

2. The measure of damages for a continuing nuisance, or a continuing trespass, for which successive actions may be maintained till the wrong-doer is compelled to remove the nuisance or discontinue the trespass, is the loss sustained at the date of the plaintiff's writ, and for which a recovery has not already been had, and not the diminution in the value of the estate. C. & O. Canal v. Hitchings, 140.

3. The value of legal bonds is prima facie the amount due upon them. Canton v. Smith, 203.

4. In a suit against a town to recover for buildings destroyed by a mob, held, that the true rule as to damages is three-fourths of the actual value of the property at the time it was destroyed. Brightman v. Bristol, 426.

5. When the plaintiffs have lost a new and suitably constructed bridge by the fault of the defendants, and have rebuilt the same, the measure of the damages which they are entitled to recover is not necessarily the amount which they have expended and interest, but so much thereof as under all the circumstances it was necessary and suitable they should expend to make the way safe and convenient for travelers; and it is not necessarily limited to the cost of the original structure. Topsham v. Lisbon, 449.

6. The rule is compensation for the expense necessarily incurred by reason of the defendants' fault. Ib. 7. In R. S., ch. 18, § 53, as amended by eh. 46 of the acts of 1872, which provides for the recovery of damages for an injury to the owner of adjoining land by the raising or lowering of a street or way, the “ owner designated is the owner at the time of the injury. Sargent v. Machias, 591.

GIFT.

1. In a case where the gift was by a consumptive, within three months at most before his death, held, that the gift was so near the date of the insolvent's death that the jury were justified by the evidence before them in finding that he was insolvent when it was made, in the absence of any proof tending to show fraud in the proof of debts, or in the exhibition of assets, or that there had been any material change in his pecuniary circumstances subsequent to the date of the gift. McLean v. Weeks, 411.

2. Where the decedent gave to the defendant a large sum of money which was needed for the payment of his own existing debts, and gave it partly in consideration of love and affection, and partly in consideration of her promise to nurse him until his death, the *From 65 Maine Reports.

amount being out of all proportion to the value of the services: held, that an instruction that if the decedent made not such a contract as he would make as a business transaction simply, but was influenced to it in part by friendship and regard for the defendant, it would invalidate it, was not one of which the defendant could complain; that the mingling of any intention in the contract which operates a legal fraud will vitiate it. Ib.

3. In this case, held, that the defendant, having rendered services to the deceased in his last illness for which the plaintiff, his administrator, would be bound to pay, may retain, out of the money given her (by the deceased, when insolvent), enough to compensate her for those services, to avoid circuity of action. Ib.

INDICTMENT.

1. Under a statute imposing a penalty for carrying on a business without a yearly license, the penalty may be recovered as often as the offense is repeated. A recovery for a part of the year does not operate as a license for the residue. State v. Johnson, 362.

2. When the statute imposing a penalty declares that it shall go to the use of the town in which the offense is committed, an indictment to recover the penalty shows with sufficient certainty to whose use the penalty is to be appropriated if it contains a distinct averment of the name of the town in which the offense was committed. Ib.

INSOLVENCY.

The note in suit was given by the defendant to the plaintiff while they were both inhabitants of Nevada, and the discharge in insolvency was regularly granted under the laws of that State while they were yet citizens thereof. Held, a legal defense here. Clark v. Cousins, 42.

INSURANCE.

1. Where there is a stipulation in a policy of insurance that the policy shall be void if the insured shall subsequently make insurance on the same property, and shall not give notice thereof with all reasonable diligence to the insurers, and have the same indorsed on his policy or otherwise acknowledged by them, if the second policy is void, it will not defeat the first, even though the subsequent insurers, after a loss, pay to the insured a sum of money by way of compromise of his claim thereon. Lindley v. Union Ins. Co., 368. 2. And where the case finds that the loss was accidental, and there is nothing to show that the subsequent insurance materially increased the risk, the plaintiff's claim on the first policy would not be defeated even by a valid subsequent insurance. Ib.

3. Such a breach of the terms of the policy by the insured is within the purview of R. S., chap. 49, §§ 19 and 20. Ib.

4. A policy of life insurance, conditioned upon the payment of a given premium upon a day certain, becomes void, unless the premium is paid within the time named. Coombs v. Charter Oak Co., 382.

5. In an action upon a life insurance policy the insured cannot introduce evidence that the agent of the company, before or at the time of the negotiation of the insurance, agreed to extend the time of payment of premium beyond the time stated in the policy. Ib.

6. The plaintiff and wife procured a joint policy on their lives, payable to the survivor on the death of either, conditioned that if the semi-annual premium of $13.93 were not paid each six mouths from April 25, 1873, the policy should cease and determine. The payment of the premium due in October, 1873, was not

made or tendered till December following. Held, (1) the policy became void for non-payment of premium; (2) the plaintiff could not be allowed to introduce evidence "that at the time this insurance was negotiated the agent of the company assured the plaintiff that he might pay down what money he had and take the policy, and that he would wait for the balance any time within the year, and take care of him." Ib.

7. When a part owner of a vessel effects a policy for the benefit of whom it may concern, a suit in case of loss may be maintained for the whole upon such policy, in the name of the party effecting the policy, or, in case of his death, by his administrator. Sleeper v. Union Ins. Co., 385.

46

8. Thus, Alexander owning a fourth of the Abby Brackett, mortgaged the same to the plaintiff to secure a note of $1,500, and procured an insurance for $2,000 on account of whom it may concern, loss payable to him;" the vessel being lost, and Alexander dead: held, (1) that his administratrix could recover in an action on the policy; (2) that payment of the judgment in her favor by the underwriters was a bar to a suit by the mortgagee. Ib.

LIMITATIONS, STATUTE OF.

1. A partial payment within six years, upon a sum due on account for the sale of a single article of property, takes the balance of the claim out of the statute of limitations. Benjamin v. Webster, 170.

2. R. S., ch. 81, § 99, which provides that the statute of limitations does not run while the promisor is out of the State, cannot be avoided on the ground that the right to recover against a co-promisor is barred. Hupgood v. Watson, 510.

3. The firm of John Watson, Jr., & Co., in 1861, gave their negotiable note, on demand unwitnessed, to S. W. Hapgood, one of the firm; the note was by him indorsed to the plaintiff, who brought suit against Watson alone in 1873. Watson had been during most of the interval out of the State. Under the general issue and brief statement of the statute of limitations, held, (1) that the plaintiff was entitled to recover; (2) that the proof that another promised as well as the defendant did not constitute a variance; (3) that the proof that the right to recover was barred as to one of several joint promisors is no defense for the others. Ib.

4. The procuring of the settlement or discharge of an existing and known cause of action by fraudulent means is not the fraudulent concealment of such cause of action within R. S., ch. 81, § 92. Penobscot R. R. Co. v. Mayo, 566.

5. When the fraudulent settlement is such as to entitle the person defrauded to an action, the limitation to the action commences to run from the time of the discovery of the fraud. Ib.

LORD'S DAY.

1. Every passing along a highway under ch. 18, R. S., which constitutes traveling as there used, and entitles the traveler to a remedy therein provided for an injury received, does not, if done on the Lord's day, necessarily constitute a traveling within ch. 124. O'Connell v. Lewiston, 34.

2. A young lady, who on the Lord's day walks onefourth of a mile to her aunt's house, calls there and invites her cousin to walk, and then proceeds to walk with her three-fourths of a mile, simply for exercise in the open air, is not thereby traveling in violation of R. S., ch. 124, § 27. Ib.