FINANCIAL LAW.

LIABILITY OF STOCKHOLDER OF INSOLVENT BANK.SURETYSHIP; Cashier of BANK NOT AUTHORIZED TO RELEASE SURETY.-RELEASE OF SECURITY GIVEN BY PRINCIPAL.-INDORSEMENT BY AGENT.

THE Supreme Court of Missouri in the case of State

Savings Association v. Kellogg, 4 Cent. L. J. 332, hold that under the statute of that State, admitted insolvency of a corporation is such a dissolution as will authorize a suit against the stockholders under the statute (52 Mo. 587), and affirm the rule as to the liability of a stockholder, laid down in Perry v. Turner, 55 Mo. 424. In this case, which was an action against a stockholder, the answer was that another creditor had sued the stockholder, and obtained judgment, execution and payment to the full amount of the liability of the stockholder. It was held that this was a good plea in bar, although the suit in which the judgment was rendered was begun after that in which the answer was made. There is nothing in our law which gives any lien or priority to the creditor who first sues, and proceedings against a stockholder rest on the same ground with all other actions in which no special lien is given by statute. The first judgment gives the prior lien on real estate, and the first levy gives it on personal property.

-The Supreme Court of Nebraska in Merchants' Bank v. Rudolph, decided at the January (1877) Term, held that a cashier of a bank, by virtue of his office, is not authorized to release a surety upon a note or bill belonging to the bank, without payment. The mere fact that a bank holds other security for the payment of the note, to which it might resort, is no ground for the release of a surety. Statements made by a cashier, at casual interviews away from the bank, as to payments having been made upon its securities, are not binding upon the bauk. If the cashier, on inquiry by a surety, who is not an officer of the bank, states that the note upon which he is surety has been paid by the principal, the bank is estopped from denying the truth of such statement, when to do so would entail a loss upon the surety, which he would have guarded against had it not been made; contra if he is an officer. And when a firm is surety, and one of its members is also a member of the board of directors of the bank, all the members of such firm are affected with the notice, which the one who is director is presumed to have.

-The case of Wharton v. Duncan, decided in January, 1877, by the Supreme Court of Pennsylvania, also involved the question of suretyship and release of surety. A member of a firm mortgaged his individual property for $25,000 to the president of a bank, to secure notes of his firm discounted, or to be discounted by the bank. A woman, not a member of the firm, gave her mortgage on her property for $25,000 to the bank as additional security for the discounts. On December 23, 1872, the firm notes to the value of $20,000 were held by the bank, and the partner paid the bank $10,000, and it satisfied his mortgage. The court held in a suit afterward brought by the president of the bank against the woman on her mortgage, that she was entitled to have the value of the property covered by the lien of the partner's mortgage over the amount paid by the partner, applied in relief of her liability in payment of the firm notes held by the bank. The court decided that the principles which discharge a surety, where

time has been given to the original debtor, apply with equal, if not greater force, to a case where the creditor, without the consent of the surety, releases the principal by accepting a composition in discharge of his debt.

-In the case of Charles v. Blackwell (36 L. T. Rep., N. S., 195), recently decided by the English Court of Appeal, plaintiffs, through an agent, whose name appeared on the invoices as their agent, sold goods to defendants. Defendants gave the agent a cheque in payment payable to plaintiffs or order. The agent, without express authority, indorsed the cheque in plaintiffs' name, adding "per K., agent." The bankers paid, and the agent failed to account to plaintiffs. Plaintiffs sued defendants for the money and in trover for the cheque. The court held (affirming the judg ment of the Common Pleas Division) that the bankers were justified under 16 & 17 Vict., ch. 59, § 19, in paying the cheque, that there had been a good payment as between plaintiffs and defendants, and that plaintiffs could not recover. It held, also, on the facts, independently of the statute, that there was evidence that the agent had implied authority to indorse the cheque, or that plaintiffs had held him out as their agent so as to justify payment on his indorsement.

INSURANCE LAW.

FIRE FOLICY; BREACH OF CONDITION; ACTS OF AGENT; REMOVAL OF INSURED GOODS; PROOF OF Loss.- LIFE INSURANCE; CHANGE OF BENEFICIARIES BY WILL-MARINE INSURANCE; NEGLIGENCE OF CREW OF INSURED VESSEL DOES NOT PREVENT RECOVERY FOR LOSS.

IN

N the case of Leonard v. Lebanon Mutual Insurance Company, decided on the 26th of March last by the Supreme Court of Pennsylvania, plaintiff insured her property in the defendant company, the policy containing a condition that if such assessments, as were laid by the company, should not be paid within thirty days after notice thereof, the policy should be invalid so long as the assessment remained unpaid. In June, 1872, an assessment was made, and notice given to plaintiff, who, however, neglected to pay it. In May, 1873, another assessment was laid on policies in force on January 1, 1873, and an agent of the company sent a notice of both assessments to plaintiff. The property was destroyed by fire, and plaintiff tendered payment of the two assessments within thirty days of receipt of her second notice. The tender was refused. The court held in an action on the policy, that the act of the agent in sending the second notice of assessment was not in itself a waiver of the suspension of the policy, there being no sufficient evidence that the company had authorized the sending of the notice or had laid the second assessment upon this policy.

- In the case of Williamsburg Fire Insurance Co. v. Cary, recently decided by the Supreme Court of Illinois, it was held that where goods are insured, and are afterward removed to another place, where they are lost, and the company, having been notified of the removal, had not canceled the policy, their failure to so cancel will be taken as a notification of the act of removal, and they will be held liable for the loss. And where it is evident that, in any event, the company intend to dispute the claim, the insured is not bound to make a proof of loss which he has every reason to

believe,will be wholly useless by the rejection of the company. And, in case of refusal, an insured is at liberty to bring suit at once, and is not bound to await the expiration of the time given the company in the policy to pay any loss.

-In the case of Eiseman v. Judah recently decided by the United States Circuit Court for the Western District of Tennessee, it was held that where a policy is payable at the death of the insured to his wife, if then living, or if not living, then to her children, with the proviso "that in case of the decease of the wife during the life-time of the assured, the said assured may, at his option, substitute any other beneficiary under this policy," such substitution must be made upon the decease of the wife, or within a reasonable time thereafter. It cannot be made after the date fixed for the next ensuing payment of premium on the policy. The power of substitution thus conferred on the insured is not executed by a bequest in his last will, made a year after the death of the wife, by which he attempts to give and bequeath the policy in question, with three others, none of which were of his personal estate.

-The Supreme Court of Illinois in the case of National Insurance Co. v. Webster, lately decided, hold that in marine insurance, the settled rule is, that when a loss accrues by a peril against which the vessel is insured, the insurer is liable, although the remote cause be the negligence of the officers and crew.

LIMIT OF ESTOPPEL BY JUDGMENT IN PATENT CONTROVERSY.

THE

HE Supreme Court of the United States in the case of Russell v. Place, decided at the present term,

recovery was had. The validity of the patent was not necessarily involved, except with respect to the claim which was the basis of the recovery; a patent may be valid as to a single claim, and invalid as to the others. If upon the face of a record any thing is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence. These cases were cited in the opinion which was delivered by Mr. Justice Field: W. A. & G. Steam Pack. Co. v. Sickles, 5 Wall. 592; Aiken v. Peck, 22 Vt. 260; Hooker v. Hubbard, 102 Mass. 245.

RE-EXAMINATION OF SETTLED QUESTIONS.

the case of Lowe v. Williams, just decided by the Supreme Court of the United States, the court refused to consider a question presented, upon the ground that it was already settled. Mr. Chief Justice Waite, who delivered the opinion, says: The act of March 2, 1867 (14 Stats. 558), provided for the removal of causes from the State courts to the Circuit Courts under certain circumstances, when due application was made before the final hearing or trial of the suit." This we held in Stevenson v. Williams, 19 Wall. 575, to mean "before final judgment in the court of original jurisdiction where the suit is brought." To the same effect are Vannever v. Bryant, 21 Wall. 43, and Fashnacht v. Frank, 23 id. 419, decided since. The act of March 3, 1875 (18 Stats. 471), under which the removal was attempted in this case, requires the petition to be filed "pefore the final trial." The decisions under the act of 1867 are, therefore, equally applicable to that of 1875. The petition for removal was filed in the appellate court, and, of course, long after the final

tion, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties; but to this operation of the judg ment it must appear, either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, the whole subject-matter of the action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible. In this case which was an action at law for damages for the infringement of a patent for an alleged new and useful improvement in the preparation of leather, which patent contained two claims, one for the use of fat liquor generally in the treatment of leather, and the other for a process of treating bark-tanned lamb or sheepskin, by means of a compound composed and applied in a particular manner, the declaration alleged, as the infringement complained of, that the defendants had made and used the invention, and caused others to make and use it, without averring whether such infringement consisted in the simple use of fat liquor in the treatment of leather or in the use of the process specified. The court held that the judgment recovered in the action does not estop the defendant in a suit in equity by the same plaintiff, for an injunction and an accounting for gains and profits, from contesting the validity of the patent, it not appearing by the record, and not being shown by extrinsic evidence, upon which claim the

these circumstances we consider that while a Federal question is presented by the record, it is one that has already been settled and needs no further argument. The motion to dismiss is, therefore, denied, but that to affirm is granted.

HOW FAR A JUDGMENT IS CONCLUSIVE BETWEEN THE PARTIES THERETO.

IN

N the case of Cromwell v. County of Sac, just decided, the Supreme Court of the United States, Mr. Justice Field delivering the opinion, state the difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties, and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In this case, which was an action against a county in Iowa upon certain interest coupons originally attached to bonds issued by the county for the erection of a court-house, it was found and determined that the bonds were void as

against the county in the hands of parties who did not acquire them before maturity for value; and, inasmuch as the plaintiff in that action had not proved that he had given such value, it was adjudged that he was not entitled to recover. The court held that the judgment did not estop the plaintiff holding other bonds of the same series, and other coupons attached to the same bonds as the coupons in the original action, from showing in a second action against the county that he acquired such other bonds and coupons for value before maturity. The finding in one action that the plaintiff therein is the holder and owner of certain coupons in suit does not estop the defendant from showing, in another action, that such plaintiff prosecuted the first action for the use and benefit of the plaintiff in the second action. The finding only establishes the fact that such plaintiff held the legal title to the coupons, which was sufficient for the purpose of the action, and was not inconsistent with an equitable and beneficial interest in another. In the discussion, the cases of Outram v. Morewood, 3 East, 346; Gardner v. Buckbee, 3 Cow. 120; Miles v. Caldwell, 2 Wall.; Boylean v. Rutlin, 2 Exch. 665, 681; Hughes v. Alexander, 5 Duer, 493; Howlett v. Tarte, 10 C. B. (N. S.) 813; Henderson v. Henderson, Hare, 100, 115, were cited.

RECENT ENGLISH DECISIONS.

LARCENY.

Misappropriation by agent intrusted with funds or securities: 24 & 25 Vict., c. 96, s. 75.-The prisoner was indicted under the second branch of 24 & 25 Vict., c. 96, s. 75, for that he being intrusted, as a broker, attorney, or agent, with valuable securities for a special purpose, without authority to sell, negotiate, transfer, or pledge them, unlawfully and contrary to the purpose for which the securities were intrusted, converted to his own use a part of the proceeds. The facts proved were as follows: The prisoner was an insurance broker, and had, as such, effected insurances on a ship for the prosecutor; and the ship having been lost, the prosecutor sent him the policies, three in number, one with the A. office, one with the I. office, and one with underwriters, with other documents necessary for recovering the loss. On the 17th of December, the prisoner received the amount of the I. office's policy, and on the 31st of December the amount of A. office's policy. Each amount was paid him by a check to his own order, which in each case he paid into his own bank to his own credit. The prisoner did not pay over to the prosecutor any of the money so received by him; but, being pressed for it, gave various excuses for not doing so. On the 27th of January following he filed a petition for liquidation; and his balance at his bank was then much less than the sum received on the policies. The prisoner having been convicted on these facts, held (by Cockburn, C. J., Kelly, C. B., Bramwell and Amphlett, JJ. A., Pollock, B., and Field, J.), that the conviction was wrong. By Cockburn, C. J., on the ground that, even assuming the prisoner could have been properly convicted if there had been evidence that the prisoner had received the money with the intention of embezzling it, in the absence of such evidence and a finding to that effect he could not be convicted. By Kelly, C. B., and Pollock, B., on the ground that, in the absence of evidence of the previous course of dealing between the parties, and of what the duty of the prisoner was

as to handing over or accounting .or the money received, the conviction could not be upheld. By Bramwell and Amphlett, JJ. A., and Field, J., on the ground that the branch of the section in question applies only to the case of an agent, intrusted with securities without authority to obtain money upon them. who wrongfully appropriates the securities, or wrongfully obtains money upon them and appropriates the money; following Reg. v. Cooder, L. R., 2 C. C. 123. The Queen v. Tatlock, L. R., 2 Q. B. D. (C. C. R.) 157.

REAL ESTATE.

Sale of: vendor and vendee: vendor remaining in possession after time fixed for completion of purchase: vendee entitled to "all rents and profits."- Claim for use and occupation, stating that the plaintiffs and defendants entered into an agreement for the purchase by the plaintiffs of warehouses and premises belonging to the defendants. That by the agreement the purchase was to be completed and possession given to the plaintiffs on the 29th of September, 1869, up to which time all outgoings were to be paid by the defendants, and from which time the plaintiffs were to receive all rents and profits, the plaintiffs to pay interest on the purchasemoney from the 29th of September until the completion of the purchase. That in fact the purchase was not completed till the 13th of March, 1876, though the plaintiffs were ready and anxious to have completed it at an earlier date. That the plaintiffs paid the purchase-money by installments on various dates prior to the 13th of March, 1876, and interest on the same according to the agreement. That the defendants refused to give up possession on the completion of the purchase, etc., but the plaintiffs obtained possession by warrant from the sheriff on the 3d of April, 1876. Held, that under the words "all rents and profits" in the agreement, the plaintiffs were entitled to a fair occupation rent, and that it was immaterial whether or not the occupation would by itself have been sufficient to support the action. The Metropolitan Railway Company v. Defries, 2 Q. B. D. 189.

and

or

SALE.

of goods to be delivered: mercantile contract: time of shipment: dates of bills of lading.- Defendants, by contracts, dated London, 17th March, bought of plaintiffs about 600 tons of Madras rice, to be shipped at Madras or coast for this port during the months of March April, per Rajah of Cochin." The 600 tons filled 8,200 bags, of which 7,120 were shipped between the 23d and 28th of February, in three parcels, and the last bill of lading was signed on the latter day; of the other 1,080 bags, 1,030 were put on board on the 28th of February, and the remaining 50 on the 3d of March, and the bill of lading signed on that day. Defendants having refused to accept the rice, held, reversing the judgment of the Queen's Bench Division, that under the circumstances the rice was shipped according to the contracts, for that the fact of there being several bills of lading instead of the whole being shipped under one bill made no difference; and that the defendants were bound to accept the rice. Alexander v. Vanderzee, L. R., 7 C. P. 530, followed. Shand v. Bowes, L. R., 2 Q. B. D. (C. A.) 112.

SPIRITUALISM.

Who is rogue or vagabond: using subtle craft by: palmistry or otherwise: 5 Geo. 4, c. 83, s. 4.—The appellant was convicted by justices under 5 Geo. 4, c. 83, s. 4, which makes punishable as a rogue and vagabond

"every person * * using any subtle-craft, means, or device by palmistry or otherwise to deceive and impose on any of His Majesty's subjects." In a case stated for this court, the justices found as a fact that the appellant attempted to deceive and impose upon certain persons by falsely pretending to have the supernatural faculty of obtaining from invisible agents and the spirits of the dead answers, messages, and manifestations of power, namely, noises, raps, and the winding up of a musical box. Held, that the means used by the appellant came within the words "by palmistry or otherwise," and that the conviction was right. Monck v. Hilton, L. R., 2 Ex. D. 268.

SHIPPING.

Charter-party: rejection: time: detention.-The plaintiff agreed to charter a ship for twelve months after the completion of her then present voyage. After the completion of the voyage and when the plaintiff was ready to load the ship she was detained as unseaworthy; and the repairs were not finished until more than two mouths after the completion of the voyage. Held, affirming the decision of the Queen's Bench Division, that the plaintiff was entitled to throw up the charter-party. Tully v. Howling, L. R., 2 Q. B. D. (C. A.) 182.

WARRANTY.

When implied: sale of chattel for specific purpose: warranty by vendor of fitness for purpose: no exception as to latent defect: measure of damages.- On the sale of an article for a specific purpose there is a warranty by the vendor that it is reasonably fit for the purpose, and there is no exception as to latent undiscoverable defects. The limitation as to latent defects introduced by Readhead v. Midland Ry. Co., L. R., 4 Q. B. 379, does not apply to the sale of a chattel. The plaintiff ordered and bought of the defendant, a coach builder, a pole for the plaintiff's carriage. The pole broke in use and the horses became frightened and were injured. In an action for the damage, the jury found that the pole was not reasonably fit for the carriage, but that the defendant had been guilty of no negligence. Held, that the plaintiff was entitled to recover the value of the pole, and also for damage to the horses, if the jury, on the second trial, should be of opinion that the injury to the horses was the natural consequence of the defect in the pole. Randall v. Newson, L. R., 2 Q. B. D. (C. A.) 102.

1. Dying declarations admissible: constitutional law. -In prosecutions for any form of homicide, the dying declarations of the person whose death is the subject of the charge, in respect to the circumstances of the death, are admissible in evidence, notwithstanding the clause in the bill of rights, which secures to the accused the right to "meet the witnesses face to face." State v. Dickinson.

2. In cases of libel: proof of other acts of same character.-Where words complained of as libelous allege a habit of committing a certain kind of unlawful or

From O. N. Conover, Esq., State reporter. Decisions made during the months of January, February and March, 1877, to appear in 41 Wis.

flagitious acts, as well as a specific instance of the same, defendant may plead in defense or mitigation other specific instances of the same kind of act, of which plaintiff has been guilty. Talmadge v. Baker, 22 Wis. 625. In libel for words which, besides charging plaintiff (a member of Congress) with taking money for using his influence in procuring the appointment of B. as postmaster, also described him as "a man who makes appointments a source of personal revenue," the answer, after justifying as to the specific case mentioned, alleged, as a further defense and in mitigation of damages, that plaintiff had agreed to procure the appointment of T. as a postmaster, in consideration of T.'s paying, or procuring to be paid, a mortgage outstanding upon lana of plaintiff's brother-in-law. Held, that the allegations were relevant. Kimball v. Fernandez.

HOMESTEAD.

1. Homestead of deceased debtor and proceeds exempt: devisee of homestead. It is the policy of the law of this State to exempt the homestead and its proceeds from liability for the mere personal debts of its owner, not only during his life-time but after his decease. Chap. 88 of 1863; chap. 270 of 1864; chap. 111 of 1873. If the owner disposes of the homestead by will, the devisee takes it free from all judgments and claims against the testator; and if he dies intestate, it descends to the widow or heirs. Johnson v. Harrison, Adm'r.

2. Surplus after sale under mortgage. If the deceased die intestate without a family, and it becomes necessary to sell the homestead to satisfy a lien upon it, the surplus proceeds must be distributed according to law, and are not subject to the general debts of the estate. Ib.

3. Division of homestead lot.- Where the homestead consists of forty acres of agricultural land with the dwelling-house thereon, and the owner devises a part of the forty acres, including the dwelling-house and its appurtenances, this does not divest the remainder of the forty acres of the character of homestead, or make it liable for the testator's debts. Ib.

PARTNERSHIP.

Agreement as to dissolution.-N., being engaged in an insurance and real estate business, sold one-half his interest therein to R., and they entered into a written contract to carry on the business as partners, with a stipulation that in case of a dissolution, "the party continuing the business" should pay "the retiring party" a certain sum. After the firm had carried on the business some years, the partnership was dissolved in consequence of a disagreement. At that time the real estate business of the firm had become small, but they were agents for seven insurance companies. Several days before the dissolution, N., without the knowledge of R., wrote to each of said companies that he could no longer continue the partnership, and soliciting for himself the agency of such company; and he was made agent for five of them, one of the others ceasing to take new risks, and the other transferring its agency to a third person. N. took from the late office of the firm all the books of the companies which had made him their agent, and of the one which had ceased to do new business, and thereafter transacted their business as the firm had formerly done, doing also some land business for a. customer of the late firm; while R. transacted no insurance or real estate business after the dissolution.