have received actual or constructive notice of the transfer to the preferred creditor, and this intent is reached by the declaration that in such cases the transfer constituting the act of bankruptcy shall be held to date from the time the instrument of transfer is recorded, or the possession is taken, or notice is otherwise brought home to the creditors of the bankrupt." The facts in this case were somewhat analogous in principle to those in the case at bar. Other Federal decisions tend in the same direction. White v. Bradley Timber Co. 119 Fed. 989; Re Metzer Toy & Novelty Co. 114 Fed. 957; Re Edward W. Wright Lumber Co. 114 Fed. 1011; Re Sheridan, 98 Fed. 406. Even though the proceedings by which the mortgagee obtained his lien three weeks before the filing of the petition were not proceedings in court, and not legal proceedings, if the term is construed narrowly, they were proceedings to enforce his legal rights. If the present case is not covered by the decision in Wilson Bros. v. Nelson, 183 U. S. 191, 46 L. ed. 147, 22 Sup. Ct. Rep. 74, the principles upon which the two cases rest are very similar. ment for a debt which he then contracted, | ors of an insolvent, the limitation of time and this power was exercised by the cred- for invoking relief against a preference does itor shortly before his bankruptcy. Among not begin to run until in some form they the acts of bankruptcy mentioned in § 3 of the act, one is defined as follows: Having "suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference, vacated or discharged such preference." In § 67f (30 Stat. at L. 564, chap. 541, U. S. Comp. Stat. 1901, p. 3450), it is provided "that all levies, judgments, attachments, or other liens obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien, shall be deemed wholly discharged and released from the same," etc. In § 67c (U. S. Conip. Stat. 1901, p. 3449), it is declared that "a lien created by or obtained in or pursuant to any suit or proceeding, at law or in equity, including an attachment upon mesne process or a judgment by confession, which was begun against a person within four months before the filing of a petition in bankruptcy by or against such person, shall be dissolved by the adjudication of such person to be a bankrupt, if it appears that said lien was obtained and permitted while the defendant was insolvent and that its existence and enforcement will work a preference," etc. In view of these and other provisions of the act, it was decided in the case just cited that suffering and permitting the creditor to obtain a preference through legal proceedings was an act of bankruptcy, by the express provisions of the statute, irrespective of any active intent of the debtor at that time to hinder, delay, or defraud his creditors, or to give a preference, and notwithstanding that the power of attorney to confess judgment was given many years before, and it was said that the preference could be avoided and the property recovered by the trustee. It was held that, in determining the time of an alleged act of bankruptcy, it must be deemed to have occurred when something open and notorious was done affecting the debtor's estate. It is also said in the opinion that "the act of 1898 makes the result obtained by the cred-recorded chattel mortgage, the transfer itor, and not the specified intent of the debtor, the essential fact." Under another clause of the statute the same distinction is drawn between this and the former act in the case of Re Klingaman, 101 Fed. 691, where it is said that "the intent of this section is to declare that, as against credit In § 3a (30 Stat. at L. chap. 541, 546, U. S. Comp. Stat. 1901, p. 3422), one of the acts of bankruptcy mentioned is having "transferred while insolvent any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors." In the same section, under "b," the time for filing a petition founded on such an act of bankruptcy is within four months after "the date of the recording or registering of the transfer or assignment . . . if by law such recording or registering is required or permitted, or, if it is not, from the date when the beneficiary takes notorious, exclusive, or continuous possession of the property, unless the petitioning creditors have received actual notice of such transfer or assignment." In view of these several provisions, and the language of §§ 60a and 606 (30 Stat. at L. 562, chap. 541, U. S. Comp. Stat. 1901, p. 3445), and the construction put upon the statute by the Supreme Court of the United States, we are of opinion that, in the case of a preference by way of an un dates, under the bankruptcy act of 1898, and the amendatory act of February 5, 1903, chap. 487 (32 Stat. at L. 797, U. S. Comp. Stat. Supp. 1903, p. 409), from the acquisition of possession under the mortgage. In Mathews v. Hardt, 79 App. Div. 570, 80 N. Y. Supp. 462, the appellate division of the supreme court of New York, in a wellconsidered opinion, made a decision which entirely covers the present case. The court held that the preference should be deemed to have been obtained at the time when possession was taken, though the taking of possession was merely to effectuate an agreement made in good faith, and many months before the prohibited time for making the transfer. The case at bar certainly falls within the spirit and reason of the statute as interpreted in these decisions. The reason for the enactment, as it is interpreted, is well illustrated by the fact that the mortgagor in this case, less than four months before the proceedings in bankruptcy, made a statement to certain of his creditors and to com. mercial agencies that there was no encumbrance on his stock or fixtures, a statement which was literally true if we look only to the state of the title as against creditors, but wickedly false in its understood meaning if the mortgagee, on the eve of the debtor's bankruptcy, could take all the debtor's property, and leave nothing for the other creditors, who had trusted him because of his possessions. Judgment for the plaintiff. A PPEAL by plaintiff from a judgment of Superior Court for Hampden County in favor of defendant in an action brought to recover the premiums paid upon a contract of life insurance. Reversed. The facts sufficiently appear in the opinion. Mr. N. P. Avery, for appellant: A contract of insurance, made by an infant, is not a contract for necessaries. NOTE. On the question of insurance on the life of a minor, see also O'Rourke v. John Hancock Mut. L. Ins. Co. 57 L. R. A. 496, and note. Pippen v. Mutual Ben. L. Ins. Co. 130 N. C. 23, 57 L. R. A. 505, 40 S. E. 822; New Hampshire Mut. F. Ins. Co. v. Noyes, 32 N. H. 345. The contract of insurance not being a contract for necessaries, the plaintiff had a right to avoid it. McCarthy v. Henderson, 138 Mass. 310; Dube v. Beaudry, 150 Mass. 448, 6 L. R. A. 146, 15 Am. St. Rep. 228, 23 N. E. 222; Gillis v. Goodwin, 180 Mass. 140, 91 Am: St. Rep. 265, 61 N. E. 813; Walsh v. Young, 110 Mass. 396; Chandler v. Simmons, 97 Mass. 514, 93 Am. Dec. 117; Bartlett v. Drake, 100 Mass. 174, 97 Am. Dec. 92, 1 Am. Rep. 101; Gaffney v. Hayden, 110 Mass. 137, 14 Anı. Rep. 580; Morse v. Ely, 154 Mass. 458, 26 Am. St. Rep. 263, 28 N. E. 577; New Hampshire Mut. F. Ins. Co. v. Noyes, 32 N. H. 345; Union Cent. L. Ins. Co. v. Hilliard, 63 Ohio St. 478, 53 L. R. A. 462, 81 Am. St. Rep. 644, 59 N. E. 230; Medbury v. Watrous, 7 Hill, 110; Monoghan v. Agricultural F. Ins. Co. 53 Mich. 238, 18 N. W. 797. The plaintiff can maintain her action without putting the defendant in statu quo, or allowing anything for the expense of keeping the policy in force. Morse v. Ely, 154 Mass. 458, 26 Am. St. Rep. 263, 28 N. E. 577; Pyne v. Wood, 145 Mass. 558, 14 N. E. 775; McCarthy v. Henderson, 136 Mass. 310; Dube v. Beaudry, 150 Mass. 448, 6 L. R. A. 146, 15 Am. St. Rep. 228, 23 N. E. 222; Walsh v. Young, 110 Mass. 396; Chandler v. Simmons, 97 Mass. 514, 93 Am. Dec. 117. Mr. Harlan P. Small, for appellee: The policy was never repudiated by the plaintiff. Miles v. Boyden, 3 Pick. 213. If an infant's appointment of an attorney is void, it is not easy to see how any act done by the attorney under the void power is effectual. Cassier's Case, 139 Mass. 458, 1 N. E. 920; Burns v. Smith, 29 Ind. App. 181, 94 Am. St. Rep. 268, 64 N. E. 94. A life insurance policy is not strictly a contract of indemnity. The insured obtains a right which may be assigned. Joyce, Ins. §§ 2, 26; Mutual L. Ins. Co. v. Allen, 138 Mass. 24, 52 Am. Rep. 245. The contract is executory as to the insurer so long as it is held against the happening of the contingency insured against; it is executed by the insured so far as he has paid the premiums or performed other I duties. New York L. Ins. Co. v. Statham, 93 U. S. 24, 23 L. ed. 789; Cohen v. New York Mut. L. Ins. Co. 50 N. Y. 610, 10 Am. Rep. 522. It is substantially the purchase by the in sured from the insurer of a reversionary interest for a present sum of money. Biddle, Ins. § 4. The relation between the parties to this action was very similar to that existing between a lessor and an infant lessee in pos. session. It is clear that the latter cannot be held to perform the obligations of the lease which accrue after he has elected to disaffirm it, but, on the other hand, he cannot, after a period of possession and enjoyment, repudiate the lease and recover back what he has paid. Holmes v. Blogg, 8 Taunt. 508; Corpe v. Overton, 10 Bing. 252; Blake v. Concannon, Ir. Rep. 4 C. L. 323; Valentini v. Canali, L. R. 24 Q. B. Div. 166. If the contract was beneficial to the plaintiff she cannot recover. A contract of insurance is beneficial. Clements v. London & N. W. R. Co. [1894] 2 Q. B. 482. Morton, J., delivered the opinion of the court: The The plaintiff in this case is a minor, and brings this action, by her next friend, to recover the premiums paid by her on a life insurance policy issued to her by the defendant. The case was heard upon agreed facts, and judgment was ordered for the defendant, and the plaintiff appealed. policy was what is termed a twenty-year endowment policy, for $500; and the agreed facts state that there was no fraud or undue influence practised upon the plaintiff by the defendant or its agents, and that the contract was a reasonable and prudent one for a person in the plaintiff's situation and condition in life. Public policy There is a great practical difference between protecting an infant defendant against his improvident promises to pay, on the one hand, and, on the other, encouraging him to act as the aggressor in demolishing completed transactions. and the best interests of minors themselves have recognized this distinction. Chicago Mut. Life Indemnity Asso. v. Hunt, 127 Ill. 257, 2 L. R. A. 549, 20 N. E. 55; Rice v. Butler, 160 N. Y. 578, 47 L. R. A. 303, 73 Am. St. Rep. 703, 55 N. E. 275. The legal defense of infancy is not intended to be a prohibition of contracting, but a shield against improvident contracts. Stone v. Dennison, 13 Pick. 1, 23 Am. Dec. 654: Bartlett v. Cowles, 15 Gray, 445; Wilhelm v. Hardman, 13 Md. 140. A minor cannot recover back payments made by him as compensation for a risk assumed by another for his benefit. Breed v. Judd, 1 Gray, 456; Heath v. Stevens, 48 N. II. 251. Rev. Laws, chap. 118, § 73, line 30, clearly contemplates the insurance of minors. As the protection of infancy is by force of the common law, it may be taken away by statutory enactment if the language of the statute implies that minors might be bound as well as others. French v. Marshall, 136 Mass. 564. Where a contract of insurance is free from fraud, and has been wholly or partly executed on both sides, and is fair and reasonable except that what the minor paid was in excess of the value and of what he received, he can only recover such excess. Johnson v. Northwestern Mut. L. Ins. Co. 56 Minn. 365, 26 L. R. A. 187, 45 Am. St. Rep. 473, 57 N. W. 934, 59 N. W. 992; Metropolitan L. Ins. Co. v. Bowser, 20 Ind. App. 557, 50 N. E. 86; Hedden v. Griffin, 136 Mass. 229, 49 Am. Rep. 25; Nash v. Minnesota Titie Ins. & T. Co. 163 Mass. 583, 28 L. R. A. 753, 47 Am. St. Rep. 489, 40 N. E. 1039. Before the action was brought, the plaintiff, through her attorney, had notified the defendant that she repudiated the policy and the contract contained in it, and demanded a return of the sums she had paid as premiums. The premiums paid amounted to $54, and it is agreed that the expense to the defendant of keeping the policy in force was $28.72. The defendant contends that this should be deducted from, off against, premiums, if the plaintiff is allowed to recover for them. or set the It is manifest, we think, that, however reasonable and prudent it may be for an infant to take out a policy of life insurance, it does not come within the class of necessaries, or within the class of contracts which have been held, as matter of law, to be beneficial to, and therefore binding upon, an infant. It is only when the contract comes within the class of contracts which, as matter of law, are binding upon an infant, that the question of its reasonableness and prudence is material. Tupper v. Cadwell, 12 Met. 559, 46 Am. Dec. 704. The defendant contends that this contract having been executed, in part, at least, the plaintiff cannot recover without making the defendant whole for the expense to which it has been subjected. But that would be compelling the plaintiff to carry out, to that extent, a contract which is not binding on her, and which she may avoid. Morse v. Ely, 154 Mass. 458, 26 Am. St. Rep. 263, 28 N. E. 577. It is well settled in this commonwealth, whatever may be the law elsewhere, that, in order to avoid a contract, an infant is not obliged to put the other party in statu quo. Gillis v. Goodwin, 180 Mass. 140, 91 Am. St. Rep. 265, 61 N. E. 813, and cases cited; White v. New Bedford Cotton Waste Corp. 178 Mass. 20, the opinion that the appointment of an 59 N. E. 642. The defendant further contends that there has been no rescission because the notice and demand were made by an attorney, and an infant cannot appoint an agent or attorney, and the authority of a prochein ami is only commensurate with the writ. Cassier's Case, 139 Mass. 458, 1 N. E. 920; Miles v. Boyden, 3 Pick. 213; Burns v. Smith, 29 Ind. App. 181, 64 N. E. 94; 1 Am. & Eng. Enc. Law, 2d ed. p. 940. If we assume that the bringing of the action did not of itself constitute all the rescission and demand that was necessary, then we are of agent for the purpose of giving notice of rescission and making a demand was not such an act, under the circumstances of this case, as could be held, as matter of law, to be prejudicial to the plaintiff, and therefore void, but that it was, at the most, only voidable; and therefore the notice and demand, until avoided by the plaintiff, would be sufficient. Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229; Towle v. Dresser, 73 Me. 252. Judgment reversed and judgment for the plaintiff. MICHIGAN SUPREME COURT. Joseph SKINN et al., Plffs. in Err., บ. Gottlieb REUTTER et al. (........Mich.........) 1. Liability of one who knowingly sells animals infected with an in fectious disease, for the death of sound animals belonging to a subsequent purchaser, which contract the disease from them, is not destroyed by the intervention of an intermediate owner of the animals, where the latter did not know of the disorder, and was, therefore, not a wrongdoer. 2. One selling hogs known to be infected with a dangerous and in fectious disease commits a wrong immi nently dangerous to human life, within the rule that one guilty of such an act may be liable for injury to life or property thereby caused, even to persons not immediately connected with the transaction. 3. The infection of sound hogs, with which they are innocently placed by a remote purchaser, is a legal consequence of the sale, as sound, of animals suffering from an infectious disease, so as to render the seller liable for the resulting loss. (November 17, 1903.) with a dangerous and infectious disease. Reversed. The facts are stated in the opinion. Messrs. Black & Dolan, for plaintiffs in error: The damages sustained by the plaintiffs are the direct and natural results of a breach of duty that the defendants owed to them, and no question of privity of contract is involved. Webb v. Portland Mfg. Co. 3 Sumn. 192, Fed. Cas. No. 17, 322. A person may be liable as a wrongdoer: (1) By actually doing to the prejudice of another something he ought not to do; (2) by doing something he may rightfully do, but wrongfully or negligently doing it by such means, or at such time, or in such manner, that another is injured; (3) by negdo, whereby another suffers injury. lecting to do something which he ought to Cooley, Torts, p. 64. A person is liable who permits his diseased cattle to trespass upon the lands of another, even if he is unaware of the diseased condition of such cattle. Barnum v. Vandusen, 16 Conn. 200; Her ERROR to the Circuit Court for Ingham rick v. Gary, 83 Ill. 85; Eaton v. Winnie, County to review a judgment in favor of defendants in an action brought to recover the value of hogs alleged to have been lost through defendants' selling animals infected NOTE. For a case in this series very similar to the one above, holding that the sale of a horse known to be infected with a contagious disease, to one who is ignorant of the fact, will render the seller liable to a third person who contracts the disease from the horse, see State use of Hartlove v. M. Fox & Son, 24 L. R. A. 679. As to liability for injury to third persons generally by sale of spoiled or impure food, or other dangerous or defective articles, see Blood Balm 20 Mich. 156, Am. Rep. 377. The owner of animals affected with a contagious disease has no right to bring them in contact with other animals. Co. v. Cooper, 5 L. R. A. 612; Heizer v. Kingsland & D. Mfg. Co. 15 L. R. A. 821; Schubert v. J. R. Clark Co. 15 L. R. A. 818; Craft v. Parker, W. & Co. 21 L. R. A. 139, and note; Lewis v. Terry, 31 L. R. A. 220; Smith v. Clarke Hardware Co. 39 L. R. A. 607; Wise v. Morgan, 44 L. R. A. 548; Tyler v. Moody, 54 L. R. A. 417; Ives v Weiden, 5 L. R. A. 854; McCaffrey v. Mossberg & G. Mfg. Co. 55 L. R. A. 822; and Huset v. J. I. Case Threshing Mach. Co. 61 L R A. 303. Mills v. New York & H. R. Co. 2 Robt. | Bishop. Non-Contract Law, §§ 141, 413-415, 326. 456, 457; 1 Shearm. & Redf. Neg. § 36. Th sale of diseased animals, where the vendor knows of the presence of the disease and fails to communicate his knowledge to the purchaser, makes the vendor liable for the damages resulting from the spread of the disease. Fultz v. Wycoff, 25 Ind. 321; Jeffrey v. Bigelow, 13 Wend. 518, 28 Am. Dec. 476; Kemmish v. Ball, 30 Fed. 759. The intervention of an independent owner between plaintiff and defendant was imma terial. Johnson v. Spear, 76 Mich. 139, 15 Am. St. Rep. 298, 42 N. W. 1092. The sale of the hogs to Robinson & Carrier was the proximate cause of the injury complained of. McDonald v. Snelling, 14 Allen, 290, 92 Am. Dec. 768; Smethurst v. Independent Cong. Church, 148 Mass. 261, 2 L. R. A. 695, 12 Am. St. Rep. 550, 19 N. E. 387; Weick v. Lander, 75 Ill. 93; Vandenburgh v. Truax, 4 Denio, 464, 47 Am. Dec. 268; Binford v. Johnson, 82 Ind. 426, 42 Am. Rep. 508; Wellington v. Downer Kerosene Oil Co. 104 Mass. 64; Brewer v. Crosby, 11 Gray, 29; Miller v. St. Louis, I. M. & S. R. Co. 90 Mo. 389, 2 S. W. 439; Forney v. Geldmacher, 75 Mo. 113, 42 Am. Rep. 388; Billman v. Indianapolis, C. & L. R. Co. 76 Ind. 166, 40 Am. Rep. 230; Hill v. Winsor, 118 Mass. 251; Evans v. Fitchburg R. Co. 111 Mass. 142, 15 Am. Rep. 19; Lowery v. Manhattan R. Co. 99 N. Y. 158, 52 Am. Rep. 12, 1 N. E. 608; Scott v. Hunter, 46 Pa. 192, 84 Am. Dec. 542; Lee v. Union R. Co. 12 R. I. 383, 34 Am. Rep. 668; Cooley, Torts, 68, 70, 76; Bailey v. Lay, 18 Colo. 405, 33 Pac. 407; White Sewing Mach. Co. v. Richter, 2 Ind. App. 331, 28 N. E. 446; Hughes v. McDonough, 43 N. J. L. 459, 39 Am. Rep. 603; Isham v. Dow, 70 Vt. 588, 45 L. R. A. 87, 67 Am. St. Rep. 691, 41 Atl. 585; Baltimore & P. R. Co. v. Reaney, 42 Md. 117; Scott v. Shepherd, 3 Wils. 403; Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 45 Am. Rep. 30, 15 N. W. 65; Hoyt v. Jeffers, 30 Mich. 181; Griffin v. Jackson Light & P. Co. 128 Mich. 653, 55 L. R. A. 318, 92 Am. St. Rep. 496, 87 N. W. 888; Smith v. Baker, 22 Blatchf. 240, 20 Fed. 709; Johnson v. Chicago, M. & St. P. R. Co. 31 Minn. 57, 16 N. W. 488; Henry v. Dennis, 93 Ind. 452, 47 Am. Rep. 378; Mount v. Hunter, 58 Ill. 246; Clark v. Lebanon, 63 Me. 393; Rich v. New York C. & H. R. R. Co. 87 N. Y. 382; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Clark v. Chambers, L. R. 3 Q. B. Div. 327; Lynch v. Nurdin, 1 Q. B. 29; Whenever the common law, a statute, a municipal by-law, or any other law, imposes on one a duty of a sort affecting the public within the principles of the criminal law, a breach of it is indictable, and a civil action will lie in favor of any person who has suffered specially therefrom. Bishop, Non-Contract Law, § 131; Egbert v. Greenwalt, 44 Mich. 245, 38 Am. Rep. 260, 6 N. W. 654; Billings v. Breinig, 45 Mich. 65, 7 N. W. 722. Messrs. L. B. Gardner and H. M. Gardner, for defendants in error: No liability grows out of a contract to one who is not, through some means, made a party to it. Necker v. Harvey, 49 Mich. 517, 14 N. W. 503. sale of poisonous drugs through mistake for The dynamite cases, so-called, and the a harmless one, are exceptions to the rule. bility is grounded is, that human life is imminently put in danger. The basis upon which such exceptional lia Watson, Damages for Personal Injuries, P. 82; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. Negligence, to be actionable, must occur in breach of legal duty, arising out of a contract, or otherwise, owing to the person sustaining the loss. 27 L. R. A. 583, 11 C. C. A. 253, 24 U. S. App. 7, 63 Fed. 400; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638. Goodlander Mill Co. v. Standard Oil Co. The sale of hogs is through contract, and plaintiffs could have fully protected themselves by a warranty inserted in the contract. Smith v. Green, L. R. 1 C. P. Div. 92; Rose v. Wallace, 11 Ind. 112; Joy v. Bitzer, 77 Iowa, 73, 3 L. R. A. 184, 41 N. W. 575; Packard v. Slack, 32 Vt. 9. Where one sells stock which is diseased at the time of sale the vendor is liable, if he knows it, on the ground of fraud. Rose v. Wallace, 11 Ind. 112. If the injury is of a nature falling on the entire community, and individuals suffer from it only as others do, they can maintain no action against the wrongdoer, even should it in a degree casually press more heavy upon them than upon others. Bishop, Non-Contract Law, § 71; Shearm. & Redf. Neg. § 13a; Taylor v. Lake Shore & M. S. R. Co. 45 Mich. 74, 40 Am. Rep. 457, 7 N. W. 728; Wellington v. Downer Kerosene Oil Co. 104 Mass. 64. |