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WHEN SUBSEQUENT INSURANCE AVOIDS A POLICY.

THERE

are two or three recent decisions construing the ordinary condition in fire policies against double insurance that deserve more than a passing notice. The courts are not agreed as to whether or not a second invalid policy will avoid a prior one. In Thomas v. Builders' Mutual Fire Ins. Co., 119 Mass. 121, it was held that a policy of insurance, conditioned to be void in case of other insurance without the consent of the company, is not avoided by the taking of a subsequent invalid policy, i. e., which is invalid by reason of the non-compliance with a condition against the existence of any other insurance without the consent of the insurer; and the assured may set up the invalidity of the second policy in an action by him upon the first policy, although he has received payment of the second policy from the insurer. Still later the Supreme Court of Maine held the same rule in Lindley v. Union Farmers' Insurance Co., 65 Me. 368, following a dictum in Philbrook v. New England Insurance Co., 37 Me. 137. These decisions are in conflict with the decisions of the United States Supreme Court in Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, and the Court of Appeals of New York in Bigler v. New York Central Ins. Co., 22 N. Y. 402. These are, however, supported by the decisions of the Supreme Court of Pennsylvania in Stacey v. Franklin Fire Ins. Co., 2 W. & S. 506, and of New Hampshire in Gale v. Insurance Co., 41 N. H. 170, and Gee v. Cheshire Ins. Co., 55 id. 66. In this latter case the plaintiff, having a valid insurance in one company conditioned to be void if the assured should have existing during the existence of such policy, any other contract of insurance, whether valid or not, obtained a policy from the defendants upon part of the same property, which was also conditioned against double insurance. Held, (1) that the first policy did not terminate instantly upon the execution of the second so as to save the condition in the second, and that there was a double insurance within the terms of the second policy; and (2) semble that the condition in the first policy, making it void in case of an "invalid" contract of insurance, was void.

In Hubbard v. The Hartford Fire Insurance Co. (33 Iowa, 325), 11 Am. Rep. 125, the court gave the following as the general principle of law upon the point in question: "In order to avoid a policy on account of a subsequent insurance against an express condition therein, it must appear that such subsequent insurance is valid, and that the policy upon which it is made is capable of being enforced. If it cannot be enforced it is no breach of the prior policy," and the following cases were cited as sustaining such principle: Jackson v. Mass. Mut. Ins. Co., 23 Pick. 418; Clark v. New England Ins. Co., 6

Cush. 343; Gale v. Belknap Ins. Co., supra; Stacy v. Franklin Ins. Co., supru; Philbrook v. New England Mutual Ins. Co., supra; Schenck v. Mercer Co. Mut. Ins. Co., 4 Zabr. 447; Jackson v. Farmers' Ins. Co., 5 Gray, 52.

In Philbrook v. The New England Mut. Ins. Co., supra, which is usually cited as a leading authority of this question, the point was not necessary to the decision, but the opinion went to the full extent of the first two cases above cited, and held that the prior policy is valid, even though the subsequent policy is not avoided by the underwriter issuing it but the loss thereon is paid.

Flanders says (Fire Ins. 57): "It is well settled that if the second policy against which the contract stipulates is itself a void one, or one that cannot be enforced, it does not avoid the first, notwithstanding the clause of forfeiture," and he cites, in addition to the cases given above: Obermeyer v. Globe Mut. Ins. Co., 43 Mo. 573; Forbes v. Agawam Ins. Co., 9 Cush. 470; Rising Sun Ins. Co. v. Slaugh ter, 20 Ind. 520.

But in Hubbard v. Hartford Fire Ins. Co., supra, the court said (p. 130): "The doctrine which we recognize here is based upon the fact that the subsequent policy was treated and considered as avoided by the company issuing it as soon as it had notice of the prior insurance. In our view this is a most important consideration, for, if the underwriter in the second policy does not treat it as avoided, it cannot be so considered by the insured or the company is suing the prior policy. The condition against prior insurance in the subsequent policy is for the benefit of the insurer, who may at his option waive it, or insist upon enforcing its terms. If he seeks to enforce the condition, and treats the policy as a void contract, it is indeed difficult to see upon what grounds it may be regarded as valid, as an insurance that will defeat the prior policy."

In Mitchell v. Lycoming Ins. Co., 51 Penn. St. 402, the policy stipulated that "the aggregate amount insured shall not exceed two-thirds of the estimated cash value." Held, that policies ab initio did not constitute insurance; but policies that were at any time valid were to be treated as such. In Continental Ins. Co. v. Horton, 28 Mich. 173, it was held that a provision in a policy against double insurance is not violated by a prior policy in another company which was known to both parties while the policy in suit was being negotiated, and which, it was fully understood between them, was to be canceled if the second policy was taken, and which was in fact canceled, if not actually before the manual reception of the second policy, at least contemporaneously with its complete and effective delivery.

In Hand v. Williamsburgh City Ins. Co., 57 N. Y. 41, the policy stipulated, "Other insurance permitted without notice until required;" "if any other insurance has been or shall hereafter be made upon

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the said property not consented to by this company in writing hereon this policy shall be null and void. In case of loss the insured shall not recover on this policy any greater portion of the loss or damage sustained to the subject insured than the amount hereby insured shall bear to the whole amount insured on the said property." At the time this policy was made there was another policy in favor of the insured, which covered this and other property, "loss, if any, payable to K." But that policy prohibited other insurance without consent of the company, which was not obtained to this insurance. The defendants, however, had notice of such prior policy. Held, that defendants were liable for the whole amount of the loss, for there was in law no other insurance.

In Bigler v. The New York Central Ins. Co., 22 N. Y. 402, the policy was conditioned to cease and be of no further effect if the insured "shall hereafter make any other insurance and shall not, with all reasonable diligence, give notice" thereof to, the defendant. The plaintiff, the insured, did "make other insurance" without giving notice, and a loss occurring, the subsequent insurance was paid. The Court of Appeals held, two judges dissenting, that the policy issued by defendant was avoided by the act of making another insurance irrespective of the question whether the subsequent policy might legally have been resisted or not. The opinion took the further ground, that a policy containing a condition against subsequent insurance is avoided by the taking of another policy "whether the latter policy was void or voidable merely." The Massachusetts cases and that of Philbrook v. The New England Fire Ins. Co., supra, were considered and disapproved, while the case of Carpenter v. The Providence Washington Ins. Co., 16 Pet. 495, was cited as a direct adjudication on the question and its conclusion was followed. But as is pointed out in Hubbard v. The Hartford Fire Ins. Co., supra, if such a conclusion was reached in the Carpenter case it was obiter.

In Georgia the Revised Code provides that, "A second insurance on the same property, without the consent of the insurer, voids his policy," and the court held under the provision, that the policy was voided, even though the second insurance, valid upon its face, is voidable by the second company on the ground of the failure of the insured to give it notice, at the time the policy was procured, of a prior insurance of the same property in another company. The court expressly refrained from stating what its conclusion would have been had the question arisen on the contract, instead of upon the statute. But, arguendo, it said: Now, it is just as entirely within this public policy to have a second insurance, which one thinks is good as to have one which is really good. The danger of a burning is the same in both cases nay, the very fact that one has fraudulently procured an over-insurance is, prima

The public evil,

facie, a suspicious circumstance. which the law intended to prevent, is just the same, perhaps greater, if the second insurance be a fraudulent one. Technically, it may be true that there is no second insurance; but to give this construction to the statute would, as it seems to us, be indeed sticking in the bark. Such is not the usual mode of construing even criminal statutes. Our law against bigamy provides a punishment for one who marries having at the time another wife living. But, says this mode of reasoning, the second marriage is void, one cannot marry with a wife living. So, too, we make it penal to alter a promissory note; yet, in fact, the alteration is void, and if detected can hurt no one." Lackey v. Georgia Home Ins. Co., 42 Ga. 456.

A subsequent valid policy unquestionably avoids a prior one conditioned against other insurance. Burt v. People's Mutual Fire Ins. Co., 2 Gray, 397; Illinois Fire Ins. Co. v. Fix (53 Ill. 151), 5 Am. Rep. 38. So in Shurtliff v. Phænix Ins. Co., 57 Me. 137, it was held that where one of the conditions, in a policy of insurance against fire, is that the policy shall become void, "if any other insurance shall thereafter be made upon the property, and not consented to by the company, in writing thereon," and, in case of an action thereon, it appears that at the time of the loss there was an insurance beyond the amount allowed, the insured will not be entitled to recover in the absence of proof of a waiver of the condition.

In Fabyan v. Union Mut. Ins. Co., 43 N. H. 203, the charter, which was made part of the contract, prohibited other insurance without consent, and it was held that other insurance avoided the policy, although the clause of the charter prohibiting it was not known to the insured, nor contained either in or on the policy.

A stock of goods was insured by a policy conditioned against other insurance. The company afterward consented that the goods should be removed into an adjoining store wherein the insurer had other goods of the same kind which were insured in another company, of which fact the defendant had no notice. Held, not other insurance. Vose v. Hamil ton Mut. Ins. Co., 39 Barb. 302. But in Washington Ins. Co. v. Hayes, 17 Ohio St. 432, A. had goods in store at B. and C., insured by separate policies. The policy on the goods at B. prohibited other insurance, but the company consented to transfer the policy to insure the goods at C., and the goods were removed to C. and mingled with the stock there. The policy on the stock at C. covered "Accruing Stock." Held, that the policy written on the goods at C. was other insurance upon the goods removed from B.; and that the policy on such goods was void. So, where a policy on a stock of goods prohibited other insurance, and the insured purchased another stock of goods upon which there was a policy, and took an assignment thereof and mingled the two stocks,

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& F. Ins. Co., 2 Rob. (La.) 563.

A policy on a store conditioned against other insurance thereon, "or any other property connected with it," was held not avoided by subsequent insurance on the stock in the store, it not being "connected" with the store. Jones v. Maine Mut. Ins. Co., 18 Me. 155. The insurers had notice of a prior policy but were informed that it would not be renewed. It was renewed and no notice given. Held, other insurance within the clause. Deitz v. Mound City M. F. Ins. Co., 38 Mo. 85.

As to what constitutes other insurance as to apportionment of loss, it was held in Ogden v. The East River Ins. Co., 50 N. Y. 388 (overruling Howard Ins. Co. v. Scribner, 5 Hill, 298), that where property is insured by a policy containing the usual clause for apportionment of the loss in case of other insurance, and the same property is covered by another policy which also includes other parcels, all insured together for a lump sum, this constitutes other insurance within the meaning of such clause.

estate.

Such condition is not voided by other insurance made by a stranger to the policy: as where insured held under a contract for a deed and the "other insurance" was obtained by the owner of the legal Etna Ins. Co. v. Tyler, 16 Wend. 385; Rowley v. Empire F. I. Co., 36 N. Y. 550; S. C., 4 Abb. Dec. 131; so, where a third person interested in the property had previously obtained insurance in the name and for the benefit of the plaintiffs; but they, in ignorance of the fact, procured the policy sued on. Held, not other insurance. Nichols v. Fayette Mut. Fire Ins., 1 Allen, 63; so the insurance of one mortgagee is not affected by other insurance by another mortgagee. Fox v. Phænix Fire Ins. Co., 52 Me. 333; so an owner's insurance is not avoided by subsequent insurance obtained by a sheriff who has seized the insured property at the suit of a creditor. Marigny v, Home Mut. Ins. Co., 13 La. Ann. 338; so a policy to the mortgagee is not avoided by subsequent insurance by mortgagor. Norwich F Ins. Co. v. Boomer, 52 Ill. 442; but it matters not in whose name it is effected if it be for the benefit of the first insured and he know of and consent to it, it is other insurance. Holbrook v. American Ins. Co., 1 Curtis' C. C. 193. So a policy to a mortgagor assigned to mortgagee is other insurance and will avoid a prior policy to the same mortgagee which prohibited other insurance. Carpenter v. Providence Washington Ins. Co., 16 Pet. 495.

The owner of a stock of goods sold them and the vendee procured insurance and assigned the policy with insurer's consent to the vendor. The vendee obtained other insurance for his own account. Held, that the second was void. Neve v. Columbia Ins. Co., 2 McMul. 220; Leavitt v. Western F. Ins. Co., 7 Rob. (La.) 351.

In Shurtliff v. Phoenix Ins. Co., supra, it was

doubted whether an agent of the company can waive a condition against other insurance. It was held that he can in Hayward v. Nat. Ins. Co., 14 Am. Rep. 400; Geibv. International Ins. Co., 1 Dill. C. C. 443; Whitwell v. Putnam F. I. Co., 6 Lans. 136; Pechner v. Phonix Ins. Co., id. 411; McEwen v. Montgomery County Mut. Ins. Co., 5 Hill, 101; Sexton v. Montgomery Mut. Ins. Co., 9 Barb. 191; Carroll v. Charter Oak Ins. Co., 1 Abb. Dec. 316; Hadley v. N. H. F. Ins. Co., 55 N. H. 110; Schenck v. Mercer County Mut. F. Ins. Co., 24 N. J. 447; National Ins. Co. v. Crane, 16 Md. 260; Kenton Ins. Co. v. Shea, & Bush, 174; Van Bories v. United Life Ins. Co., 8 id. 133; New England Ins. Co. v. Schettler, 38 Ill. 166; Cobb v. Ins. Co., 11 Kan. 83; Carrugi v. Atlantic F. Ins. Co., 40 Ga. 135; Planters' Mut. Ins. Co. v. Lyons, 38 Texas, 253.

Where one man is agent of both companies notice will be implied. Kenton Ins. Co. v. Shea, 6 Bush, 174; Insurance Co. of N. A. v. McDowell, 50 Ill. 120; Russell v. State Ins. Co., 55 Mo. 585.

In Westchester Fire Ins. Co. v. Earle, 33 Mich. 143, the policy provided that nothing less than a distinct specific agreement, clearly expressed and indorsed upon the policy, should be construed to be a waiver of any condition in it. Yet the court held that where an agent with whom all the dealings were had and whose authority was not shown to have been restricted in any way, has so acted as to have bound himself by way of estoppel not to dispute the va lidity of additional insurance on the point of consent, the company will be likewise bound.

But notice to an insurance broker who procures policies for a large number of companies is not notice to the company. Mallen v. Hamilton F. Ins. Co., 17 N. Y. 609. There is a dictum in Gilbert v. The Phonix Ins. Co., 36 Barb. 372, that verbal notice of other insurance to an agent with authority to receive applications and issue policies would not affect the question of breach "by reason of not having such insurance mentioned in or indorsed upon the policy or otherwise acknowledged in writing."

Where a company's by-laws required consent of the directors, signified in the policy or by indorsement, signed by the secretary, to subsequent insurance, it was held that consent of one director indorsed upon the application was not sufficient. Forbes v. Agawam Mut. Fire Ins. Co., 9 Cush. 470. So in Hale v. Mechanics' Mut. Ins. Co., 6 Gray, 169, where the policy prohibited other insurance, unless the assent of the president should be obtained in writing, it was held that a waiver could not be proved, and that the president's parol consent was not good. When the company's charter made policies void for other insurance, unless indorsed upon them, held that the condition could not be waived, nor consent proved by other evidence than indorsement. Couch v. City Fire Ins. Co., 38 Conn. 181; S. C., 9 Am. Rep. 375. So, where the charter and by-laws provided "the

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In Security Ins. Co. v. Fay, 22 Mich. 467; S. C., 7 Am. Rep. 670, the policy was conditioned to be void "if without written consent herein, there is any other prior or subsequent insurance." Nothing was said as to who should sign the consent, but the policy was required to be countersigned by the general agent of the company. Afterward other insurance was obtained without the first insurer's consent, but subsequently an agent indorsed on the policy permission for other insurance, though the indorsement was not signed. The court held that the unsigned indorsement was invalid in the absence of the signature of the general agent, without proof that it was made by some one authorized to bind the company, or had been ratified by it; that no act of the company or its agent could operate as a waiver of written consent, and render valid a void policy unless performed with full knowledge of all the facts.

In Mentz v. Lancaster Fire Ins. Co., 79 Penn. St. (29 P. F. Smith) 475, the plaintiff insured in defendants' company, one condition being that if additional insurance were effected, it should be indorsed on the policy; the plaintiff effected additional insurance in another company with their agents, who were also agents of the defendants; on inquiry by plaintiff, who gave his policy to the agent, he said that the indorsement of the second insurance had been made on the first policy; the indorsement had not in fact been made. In an action against the defendants for a loss, held, that the declarations of their agent estopped them from objecting to the want of indorsement, and the plaintiff could recover.

Written notice is not necessary. Schenck v. Mercer County Mut. Fire Ins. Co., 24 N. J. 447.

Notice to the secretary of the company estops that company from alleging no notice where the same person is also secretary of the other company and the same persons were directors of both companies and examined the application. Goodall v. New England Mut., 25 N. H. 169.

Where other insurance is obtained for an amount in excess of that for which consent was given the policy is void. Shurtliff v. Phoenix Ins. Co., 57

Me. 137.

Where a policy stipulated that "insured shall give notice of all additional insurance and of all changes that may be made in such additional insurance,” notice must be given of a renewal of other insurance and of any change in the distribution or division of it. Simson v. Pennsylvania Fire Ins. Co., 38

Penn. St. 250.

IN

SUI JURIS.

N the opinion delivered in McGarry v. Loomis, 63 N. Y. 104, the phrase sui juris is used with meaning of "having sufficient capacity to take care of one's self." It is found with the same meaning in Ihl v. Forty-second St., 47 N. Y. 317. And it seems to have been caught up from an opinion of Judge Mason, in Mangam v. Brooklyn R. R., 38 N. Y. 455. This use of the phrase is incorrect. The words have a definite meaning, and they ought not to be used in a sense quite contrary to that which belongs to them.

The words belong to the civil law, and Judge Mason quotes from the civil law: Quædam personæ sui juris sunt quædam alieno juri subjectæ. Inst., 1, 8, pr. But he quite mistakes the meaning, for he goes on to say: "This rule applies to infants in their relations to society, who are of such tender age that they are incapable of self-control and personal protection. An infant, in its first years, is not sui juris."***"The law has not fixed the age at which the infant shall be deemed in law non sui juris, although it may be safely assumed, in law, that an infant of three years and seven months is not sui juris."

It is to be observed that in several of the cases holding that notice to the agent or a waiver by the agent was of no effect, the companies were mutual companies whose members were bound by the by-ing of the words. Sui juris and the opposite alieni juris

laws and which provided that the agents and officers should not deviate from the conditions.

It is sufficient that the company is informed of the true amount although there is a mistake as to the company. Benjamine v. Saratoga Mut. Fire Ins Co., 17 N. Y. 415; Osser v. Provincial Ins. Co., 12 U. C., C. P. 141. So, where notice of other insurance is given, notice of renewal is not necessary. Brown v. Cattaraugus Mut. Ins. Co., 18 N. Y. 385; nor where privilege for a stipulated amount of other insurance is given is notice of the names and amounts of the other risks necessary. Benedict v. Ocean Ins. Co., 31 N. Y. 389; Liscom v. Boston Mut. Ins. Co., 9 Metc. 205. The insured is not bound to state the particulars of the amount of other insurance unless specially required to do so. McMahon v. Portsmouth Mut. Fire Ins. Co., 22 N. H. 15.

This shows a complete misunderstanding of the mean

are terms which have no reference to age or to mental or physical capacity. A child a year old might be sui juris; a man in full maturity might be alieni juris. The words refer to that patria potestas which was peculiar to Rome and which was so striking a feature in the social organization of that city.

When a Roman citizen, who had no ancestors living, married and had children, those children and their descendants were under his power; and hence they were alieni juris. They so continued as long as he lived, unless he emancipated them; or unless in the case of a female descendant, she married into her husband's family.

When such a citizen died, his sons were freed from his power and became sui juris, and the children of each son fell under his power and still remained alieni juris.

As long as the ancestor lived, whatever his descendants, thus under his power, acquired, they acquired for him. They were, in this respect, like the slaves of

a master. They owned no property themselves. Whatever they earned, or whatever was given to them, belonged to their ancestor, under whose power they were. This is a general statement, to which exceptions were made in the later years of Roman law. So, although these children and grandchildren of a living ancestor should be chosen to the highest offices of the State (with some exceptions of peculiarly sacred offices), they still remained under their ancestor's power and were not sui juris.

On the other hand, if such a citizen, who had no living ancestors, died, leaving a child of only a few years old, that child became thereupon sui juris. And he was sui juris, even though he was under a guardian. In fact, he would have little need of a guardian unless he were sui juris; because otherwise he would have no property to require a guardian's care.

This brief explanation will show that sui juris cannot accurately be used to denote the possession of any degree of physical or marital power. We have no persons who are alieni juris. And every person, of any age and of either sex, is properly sui juris. No person is under the power of another in the sense that all property acquired by him belongs to the other. The condition expressed by the words alieni juris was, in a great degree, the condition of a slave, who had no rights of property. And, like the slave's condition, it was not terminated by the age or capacity of the person.

Judge Story, in his Agency, section 11, uses the phrase sui juris. But, as it might be supposed he would do, he uses it in its correct meaning. There is no good reason that it should be used otherwise.

STATUTE OF FRAUDS.

LEX.

DISTRICT COURT OF THE UNITED STATES-MASSACHUSETTS, APRIL, 1877.

EX PARTE SAFFORD AND AL., RE DOWNING. Leather was bought on a credit of sixty days, by parol, and the goods were weighed in the presence of the buyer, and the damaged hides rejected and the shrinkage agreed on, and they were placed by themselves in the seller's warehouse and marked with the buyer's name, and he was to send for them when he pleased. He made an arrangement with the seller concerning the insurance of the goods. The course of dealing was usual between the parties. Held, the goods had been accepted and received by the buyer within the statute of frauds of Massachusetts, and they having been destroyed by fire in the seller's warehouse, that the seller could prove for the price against the assets of the buyer in bankruptcy.

SAF

AFFORD & CO. offered for proof against the estate of Downing, in bankruptcy, the price of certain lots of leather bought by him of them at sundry times, under parol contracts. Some of the leather had not been taken away from the petitioners' store at the time of the great fire in Boston, on the night of November 9-10, 1872. As to these lots the question was whether they had been accepted and received by the bankrupt, within the statute of frauds of Massachusetts. Gen. Stats., chap. 105, § 5.

The parties had dealt together for a long time. The habit of Downing was to come to the warehouse of the petitioners nearly every day, and to buy entire "tannages," as the lots from a single tannery are called, on a credit of sixty days. The leather was always weighed in his presence, the damaged hides were thrown out, the shrinkage agreed on, and his leather was piled up by itself in the petitioners' place of busi

ness, and marked with his name, and he sent for it when he pleased. Some time before the fire, Downing asked one of the petitioners whether the leather was insured, and was told that they had a general insurance, which was more than enough to cover any probable loss, and that he should have the benefit of any surplus after they were indemnified on their own stock. He testified that he made this inquiry because he considered the leather to be his. B. F. Hayes, for the creditors. B. Dean, for the assignee.

LOWELL, J. The single question in this case is whether the goods had been accepted and received by Downing within the meaning of the statute of frauds. They had been weighed in his presence and the precise hides were agreed on, and the shrinkage ascertained; at his request, though whether in his presence or not is not quite clear, they had been set apart from all other goods and marked with his name, and he was to take them when he chose to send his carrier for them. No delivery could be more complete, unless they had come into his personal possession, and I do not understand it to be denied that, at common law, the property would have passed. Undoubtedly the decisions upon the statute have introduced some refinements, not easily reconciled with common sense, by which the property in goods is held to have passed and not to have passed at the same time, and they are held to have been delivered by the buyer before they are received by the seller. I have no intention of departing from those decisions, but this case steers wide of them.

The latest authorities make the distinction between accepting goods and receiving them to be this: goods may be constructively delivered, as to a carrier or warehouseman, and yet not accepted, if, for instance, they were ordered by a person who had not seen them, or were bought by sample; for the carrier or warehouseman is not, as such, without special appointment, the agent of the buyer to ascertain that the goods conform to the order or to the sample; and, therefore, in such a case the goods may be received and yet not accepted. It was formerly said that the goods must be received and an opportunity be given to examine them before they could be accepted; but in a very elaborate opinion of the Queen's Bench this doctrine was denied to be sound, and a defendant was held bound who had exercised acts of ownership over the goods, though he had not precluded himself from objecting that they did not conform to the contract; or, in other words, that there might be an acceptance to satisfy the statute, and let in proof of the contract, which yet would not be an acceptance under the contract itself when proved. Morton v. Tibbett, 15 Q. B. 428.

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In Cusack v. Robinson, 1 Best & S. 299, Blackburn, J., says: Acceptance may be before receipt," and it was there decided that specific goods agreed on and afterward sent to a warehouse named by the vendee, had been both accepted and received by him. Whether the courts of Massachusetts would assent to the full extent of the law laid down in Morton v. Tibbett, ubi supra, I do not know, nor, indeed, whether all the courts in England would, but I take it to be clear that by the law of this State, and of the United States generally, as well as of England, if specific goods are fully agreed on and bought, and afterward sent to a warehouseman or carrier designated by the vendee, the statute is satisfied. Ullman v. Barnard, 7 Gray,

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