that the policy was null and void, and that it refused to recognize any claims thereunder. Held, that the company waived conditions as to furnishing proofs of death. 2. In reply to a question in the application as to his occupation, insured described himself as a soda-water maker." He was in fact a soda-water maker by trade, but at the time in question, he was only a peddler of soda water. Held, that there was no misrepresentation or breach of warranty. 3. In connection with the application for insurance was a medical examiner's certificate, which the company required the medical examiner to fill out. This was filled out by the examiner and signed by the insured, and contained a declaration by him that he had given true answers to the questions; that they agree ex, etc. actly with the foregoing, A question was left unanswered at the time insured signed, but he gave the correct answer to the medical examiner, who afterward inserted an incorrect one. Held, that the company, and not the insured, was responsible for the error of the examiner, and the company could not take advantage of such error to defeat the policy. Held, also, that the transaction between the insured and the examiner could be proved by parol. 4. A physician was called to attend the mother of insured in a professional capacity in her last illness. There was no evidence that he knew or visited, or saw her at any other time or in any other capacity. Held, that the knowledge of the cause of such mother's death, acquired by the physician by observation of her symptoms or any physical examination to which she was subjected, was a privileged communication, and under the statute could not be disclosed by the physician. Held, also, that the death of the patient did not authorize a disclosure by the physician of such knowledge. Affirmed. New York Court of Appeals. Opinion by DANFORTH, J.--Grattan v. Metropolitan Life Ins. Co. 21 Alb. L. J. 288.

interest that is due on the coupons. But no such intent is inferable by the bequest of a bond in a will, where nothing is said about interest which is then due upon coupons attached to the bond, or which may become due at the time of the testator's death; and in the case of a promissory note drawing interest, the interest is payable, together with the principal, when the note becomes due, and necessarily passes, as incident of the note, by the transfer of a note to another. New York Court of Common Pleas.-McGrath v. Van Stavoren. 22 Alb. L. J. 271.

MARITIME LAW-SEAMAN CAN BE REQUIRED TO WORK ON SUNDAY.-A seaman upon a schooner in the harbor of Frankfort, Michigan, where she was towed to receive a cargo of lumber, can not refuse to work on Sunday, in loading the schooner, where the towing vessel is not able to enter the harbor by reason of an insufficiency of water, and is lying outside in the lake, awaiting the schooner, and is in a place of danger. Where the master of the schooner was of opinion that it was necessary, for the safety of the towing vessel, that the loading of the schooner (begun on Friday) should be completed on Sunday, and ordered the work to be done, it was the duty of the crews to obey. In this case: Held, that a seaman refusing to work on Sunday was rightfully expelled from the schooner, and forfeited his wages for his disobedience. The Richard Matt, 1 Biss. 440. United States District Court, Eastern District of Pennsylvania. Opinion by ACHESON, J.-Smith v. The J. C. King. TRESPASS-OCCUPYING HOUSE AS SCHOOL-HOUSE WITHOUT CONSENT OF OWNER-LIABILITY FOR ACteacher and CIDENTAL FIRE. 1. An entry by a

children into a house without the consent of the owner, is a trespass. 2. One who advises or counsels the unauthorized use of a house is a co-trespasser, and is therefore liable as a trespasser, either jointly or severally. The good faith of such adviser can not protect him against the legal right of the owner to compensation for damages. The fact that a person occupied the house in part, and rightfully, to store corn in, did not confer on him a right to advise its use also as a school-house. 3. The house in question being destroyed by fire during its occupancy as a schoolhouse aforesaid, the parties and the adviser are liable for the injury, and it is no excuse that the fire did not result from any negligence, but merely from a defective flue. The fire being caused in consequence of the trespassers being there without right, the owner is entitled to recover for the resulting damage. Reversed. Court of Appeals of Kentucky. Opinion by COFER, C. J.-Brown v. Lewis. 1 Kent. L. J. 238.

UNLOADING VESSEL-RISKS-CUSTOM OF PORT.1. Under a charter party providing "for prompt loading without loss of time, weather permitting, and customary lay days for discharging,' 'the owner of the vessel takes the risk of the weather being suitable for unloading the cargo; and the charterer takes the risk of being able to provide the proper transpor2. Suitableness of tation from the ship's side. weather for discharging the cargo of each vessel, under such a charter party, will depend upon the custom of the port of discharge. 3. Under such a charter party the owner of the cargo is bound by the customs of the port of discharge. A custom of the port of Baltimore, of consignees, to refuse to receive brimstone in windy weather is a good custom, but must be reasonably construed and enforced. Libel dismissed. United States District Court, District of Maryland. Opinion by MORRIS, J.-Bertollati v. A Cargo of Brimstone. 24 Balt. Undr. 160.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

September, 1880.

EQUITY MORTGAGE INDORSEMENT OF PAYMENT.-The substantial obligations in a bill in equity were that the plaintiff, in 1874, mortgaged her real estate to one Palmer, and as additional security obtained a policy of insurance against fire, payable to the mortgagee in case of loss. In 1876, she gave a second mortgage to one Eames, and in June, 1877, conveyed the estate in fee to one Jones, who assumed and agreed to pay the two mortgages. Jones afterwards conveyed the same to one William D. Hayden, who, as part of the consideration, also assumed and agreed to pay both mortgages. Palmer, on receiving the amount of his note and mortgage, assigned the same, when overdue, to a bank to hold as collateral security for the joint note of William D. and one Joseph O. Hayden to the bank, upon the payment of which the mortgage was assigned by the bank to Joseph O. Hayden. The building insured was destroyed by fire in 1877, and in March, 1878, the Haydens received a sum in settlement of the loss. Joseph O. Hayden then assigned the note and mortgage to one Burrows in July, 1878, after the plaintiff was entitled to have the insurance money indorsed on the note. The estate was not sufficient for the payment of the mortgages unless the money so received was applied in payment. The prayer was that the defendants might be ordered to indorse the insurance money upon the note secured by the first mortgage, and to cancel the mortgage to that extent, and for general relief. On demurrer, it was held that these allegations failed to bring the case within any known head of equity jurisdiction. Upon all the allegations it does not appear that the plaintiff has suffered, or is likely to suffer, any loss by the failure or reʼusal of Hayden to apply the insurance money in payment of the first note and mortgage. Opinion by COLT, J.-Stevens v. Hayden. TRADE-MARK - INFRINGEMENT-SIMILARITY.-In a suit in equity to restrain the defendants from using the plaintiff's trade-mark and for compensation, the alleged trade-mark of the plainfiff consisted of the figure of an eagle, surmounting a wreath formed of the branches of the cotton plant; the wreath inclosing the words "Lawrence Manufacturing Company'' printed in a circle, having underneath it the word "trademark," and below all the figures 523," printed in large hollow black numerals. This device had been stamped for many years on hosiery of a certain grade, and was known and recognized as indicating that the goods so marked were of the plaintiffs' manufacture. Before this the plaintiffs had used an eagle and scroll in combination with other numerals as a trade-mark, upon the same grade of hosiery; and the wreath and eagle of the present device without the numerals 523, or any other numerals, had been previously used on other grades of their goods. The stamp adopted by the defendants in alleged imitation of the plaintiffs' stamp, consisted of an eagle surmounting a double circle or garter, on which are printed the words "extra finish iron frame, "and beneath which are the figures 523" printed in large hollow black numerals of the size and description used by the plaintiffs, and occupying the same position with reference to other parts of the device. The presiding justice found that this stamp was placed by the defendants upon hosiery goods made by them for the purpose of imitating the plaintiffs' stamps, and in order that such goods might be supposed to be of the plaintiff's manufacture, and also found that the plaintiffs' customers had been misled and deceived thereby. The eagle and garter were used by the defend

ants before the plaintiffs' trade-mark was adopted, and the plaintiffs at the argument therefore made no claim to the exclusive use of them when not combined with the numerals "523." The presiding justice further found that the plaintiffs adopted and used · the numerals "523" as part of their trade-mark. Held, that it was enough to constitute an infringement that such a similitude exists as would lead an ordinary purchaser to suppose that he was buying the genuine article and not an imitation; McLean v. Fleming, 96 U. S. 245; Gorham Co. v. White, 14 Wall. 511; Metzler v. Wood, L. R. 8 Ch. Div. 606; that the numerals constituted one of the most prominent features in the plaintiffs' design, and when used in connection with the rest of the defendants' mark were calculated to aid in deceiving the public; and that there must be a decree for the plaintiffs. Opinion by COLT, J.-Lawrence Manufacturing Co. v. Lowell Hosiery Mills.

LIFE INSURANCE CONDITION PAYMENT BY STRANGER.-A policy of insurance upon the life of H expressly stipulated that it shall not take effect until the advance premium thereon shall have been paid, during the lifetime of the person whose life is thereby insured." At the trial of an action thereon, it appeared that in February, 1878, said H made application for insurance in the defendant company, and that in the early part of May following, said policy was left at his place of business by an agent of the company, who, by letter, requested payment of the premium, if the policy was correct and satisfactory." This request was repeated by letter May 21, addressed to H, who was then at home, having arrived there in ill health on the 18th of the same month. He died of this illness May 27. The letter of the 21st was opened by his sister, who, without communication with, or direction from him, caused the advanced premium to be paid to the company. H died without knowledge of the payment. Held, that no contract of insurance existed between the parties at the time of H's death. The possession of the policy without a waiver on the part of the company of the condition upon the performance of which it was to take effect, does not, on the facts disclosed, show a delivery of it in completion of the contract, or furnish any evidence that the minds of the parties had met. The payment, made by a stranger, would not bind H or the company. Opinion by COLT, J.-Whiting v. Massachusetts Mut. Life Ins. Co.

SUPREME COURT OF PENNSYLVANIA.

INJUNCTION

June-October, 1880.

LANDLORD. POWDER MAGAZINE AND TENANT.-When a storehouse for explosive materials is erected, and the court is satisfied that such buildings have not been multiplied beyond the business requirements of the neighborhood, and that the one in question is well built and situated in a tolerably isolated position, so as to endanger as few persons and as little property as possible, and yet be reasonably accessible as a point of supply and distribution, an injunction will not be issued against its maintenance. Wier's Appeal, 74 Pa. St. 230, distinguished. If tenant holds his lease at will or by the month, and his landlord grants that a lawful and necessary, yet offensive or dangerous factory or magazine may be erected, the tenant has not a right of action for its prevention. Reversed. Opinion by TRUNKEY, J.-Dilworth's Ap-peal. 9 W. N. 133.

SURVIVAL OF ACTIONS-CONSTRUCTION OF CONSTITUTION.-The provisions of the Constitution of 1874, declaring that in cases of death resulting from injuries the right of action shall survive, and the general assembly shall prescribe for whose benefit such actions shall be prosecuted," does not, in the absence of legislative enactment, give a right of action to the personal representatives of the deceased. The act of April 26, 1855, prescribing the persons for whose benefit such actions shall be prosecuted, is still the law. No other persons have been clothed with the right, and hence no other persons can sustain such actions. Affirmed. Opinion by GREEN, J.-Brooks v. Danville. 11 Pitts. L. J. 71.

NUISANCE-LIABILITY OF RAILROAD FOR NUI SANCE CAUSED BY TRACKS CROSSING TURNPIKE ROAD IN A MANNER TO OBSTRUCT TRAVEL.-1. While the mere construction of a railroad track across a public highway, in pursuance of law, is no nuisance, it must be constructed in such a manner as not to impede travel. 2. Indictment for maintaining a nuisance lies against a railroad company where the track crossing is such as to cause a dangerous obstruction to travel. 3. The fact that the crossing has existed in its present condition for twenty-four years is no answer to an indictment for maintaining a nuisance, as the statute of limitations runs not against the Commonwealth. 4. A turnpike road, constructed by a turnpike corporation, on which tolls are collected, is a public highway' in so far that an indictment will lie against one obstructing it, as for a public nuisance. Affirmed. Opinion by MERCUR, J.-Northern Cent. R. Co. v. Com. 9 W. N. 129.

BAILMENT - SALE ON CONDITION - BONA FIDE PURCHASER.-1. A bailment of lending or hiring is not within the rule requiring possession to accompany ownership in chattels. 2. A delivery of chattels to a vendee with the price thereof charged to him on the books of the vendors, under an agreement that the said price should be paid in certain instalments, and that until paid for the goods shall remain the property of the vendors subject to their removal, is not a bail. ment but a present sale; and a bona fide purchaser for value, without notice, from said vendee, takes title to the goods as against the original vendors. Enlow v. Klein, 79 Pa. St. 488, distinguished. Reversed. Opinion by PAXSON, J.-Stadtfeld v. Huntsman, 37 Leg. Int. 413.

SUIT BY HUSBAND AND WIFE-SET-OFF OF HUSBAND'S DEBT.-A executed a note to B and wife as joint payees. In a suit brought in their joint names he offered as a set-off a debt due by the husband, which offer was rejected. Held, not to have been error. As a general rule, set-off is admissible only where it is in the same right and between the same parties. Milliken & Co. v. Gardner, 37 Pa. St. 456. To this rule there are some exceptions. Among them may be stated where suit is brought by a surviving partner, a set-off against the late firm is allowable. So those sued jointly may set-off a debt due by the plaintiff to one of them. Childertson v. Hammon, 9 S. & R. 68. This may be done unless there be some superior equity in the third person. Stewart v. Coulter, 12 S. & R., 252. But a defendant can not set-off a debt due him by one of several plaintiffs. 1 Parsons on Contracts, 739; Henderson v. Lewis, 9 S. & R. 379; Watson v. Hensel, 7 Watts, 344; Archer v. Dunn, 2 W. & S. 361; Norcross v. Benton, 38 Pa. St. 217. The fact that the defendants in error are husband and wife does not change the rule. She may hold, use and enjoy, her separate property to the exclusion of her husband, and of all other persons. The note was made to the defendants in error as joint payees.

It

did not rest on an agreement between them. The plaintiff in error agreed to so pay it to them, jointly. No other creditor of the husband complained of the maker having so agreed. He does not offer to prove any fact showing that he was induced through fraud or deceit to so make the note. He is in no position to gainsay the validity of his agreement. His subsequent disappointment and expectations in no manner relieve him from it, and can not defeat her vested rights. Judgment affirmed. Opinion by MERCUR, J.-Bentz v. Bentz.

SUPREME COURT OF KANSAS.

October, 1880.

EVIDENCE-OPINION AS TO VALUE OF SERVICES OF ATTORNEY-STOCK LAW-NEGLIGENCE-DAMAGES. -1. On the trial of an action under the stock law of 1874, the opinion of a witness as to the value of the services rendered by the plaintiff's attorney in prosecuting the case is competent, if such opinion is founded upon the character of the case set out in the bill of particulars filed in the action, or upon a hypothetical case put to the witness corresponding with the real case. Held, further, not error for the witness to give his opinion of the value of such services when a particular railroad company is singled out, if he shows himself acquainted with the value. 2. In an action for the recovery of damages for the killing of a cow under the stock law of 1874, the plaintiff is entitled to recover the market value of the animal. The jury in estimating the value may consider all the qualities of the animal which affect her market value, and are not limited in their inquiry to the value of the cow for beef or milking purposes. 3. Where the findings show that an animal was injured on a railroad track through the failure of the company to fence the track and the negligence of the company in running and operating the cars on its road, attorneys' fees are recoverable under the statute of 1874. Affirmed. Opinion by HORTON, C. J. All the justices concurring.-Central Branch, etc. R. Co. v. Nichols.

MORTGAGE--ERRONEOUS DESCRIPTION.-C and H mortgaged a certain mare to A, describing her as follows: "One bay mare, one hind foot white, and white spot in face, branded G, seventeen hands high, five years old," and being in the possession of the mortgagors, in Clay County, Kansas. This description was correct in every particular, except that the brand was J (though very indistinct and scarcely discernible), and the mare was not seventeen hands high, and possibly only fifteen and three-quarters hands high. So far as was shown, the erroneous part of said description did not apply to any other animal, nor did the correct part thereof apply to any other animal; and taking the whole description together, it did not apply to any other animal. Held, that as the description applied to the mare in controversy in so many particulars, and not applying to any other animal, the description is not void, and although partially untrue it does not render the mortgage void in any respect. Affirmed. Opinion by VALENTINE, J. All the justices concurring.-King v. Aultman.

INTOXICATING LIQUOR-SALE-NOTICE-CONDUCT OF TRIAL.-1. A conviction for unlawfully giving or selling intoxicating liquor to a person in the habit of being intoxicated, can not be sustained, unless the proof shows that the notice, required to be given by section 6 of the dram-shop act, informed the defendant that the party to whom he is charged with fur

nishing liquor is in the habit of being intoxicated. 2. It is the duty of the district courts to interfere of their own motion in all cases where counsel in argument in jury trials, state pertinent facts not before the jury, or use vituperation and abuse, predicated upon alleged facts not in evidence, calculated to create prejudice against a prisoner. Reversed. Opinion by HORTON, C. J. All the justices concurring.-State v. Gutekunst.

SUPREME COURT OF ILLINOIS.

September, 1880.

PARTNERSHIP-EFFECT OF DEATH OF ONE PARTNER POWER AND DUTY OF SURVIVING PARTNER. -1. Where one partner in two firms dies, that terminates the existence of both firms, and the surviving partners of neither firm have any power to continue the business of the partnership, but they are required by law to wind up and close the same, and, after paying the partnership debts, to distribute the assets among the surviving members and the representatives of the deceased partner. 2. The death of one partner not only terminates the partnership, but also all unexecuted portions of the partnership agreement, and the survivors have no authority to proceed to carry them out and execute their provisions, and consequently they can not lawfully execute any verbal agreement among the members relating entirely to the partnership business which is dependent on the continuance of the firm. 3. So where A and B were partners as lumber merchants in the City of Chicago, and A, B and C were partners in the manufacture of lumber in the State of Michigan, and an agreement was entered into between the two firms that the latter firm was to buy logs, and manufacture lumber and ship the same to the lumber yard of the former, to be by them sold, they guaranteeing to A, B and C the cargo price of the lumber, and the profits on the sales to be equally divided between the two firms, and A died, it was held that this verbal agreement was terminated, and that if B, the surviving partner of the Chicago firm, received any further shipments of lumber under such agreement, or purchased other lumber, after A's death, which was lost by fire, A's estate was not chargeable with any part of the loss. 4. If a surviving partner is required to execute contracts entered into by the firm before the death of a member thereof, it is only so as to contracts entered into with persons not members of the firm, and not in respect to contracts made between the several members of the firm as to the mode of conducting the partnership business. 5. While it may be conceded that a surviving partner in a mercantile business may make small purchases of some articles of the stock to render it more salable, and to enable him to close it out, he has no power to make large purchases intended to continue the business. But a surviving partner in the lumber business has no right to purchase a cargo of lumber, and charge the estate of the deceased partner with any part of the loss caused by its destruction by fire. 6. Where one partner of a firm engaged in the purchase and sale of lumber, dies at a dull season for making sales, the survivor will have the right to delay a reasonable time in making sale of the lumber on hand. He will not be bound to force it on the market when there is but little demand for it, and thus sacrifice the property; and if an accidental loss of the stock occurs by fire during such reasonable delay, the estate of the

deceased partner must bear its share of such loss. 7. Where a surviving partner did not intend to continue the firm business in the sense condemned by law, but did, under a mistaken idea that he was bound to complete a verbal agreement with another firm of which the survivor and the deceased partner, with another, were members, continue to receive lumber, such surviving partner ought not to be charged as with a conversion of the whole of the partnership property, unless the business was in fact so transacted by him as to inseparably commingle the property proper of the late firm with that which was put into the business after his partner's death, from purchases, etc., so that one can not be distinguished from the other. If the property was so intermingled, he will be liable to be treated as having converted the assets of the firm to his own use, and should be held to account for the deceased partner's net interest in the partnership assets at the time of his death, and will be chargeable with interest thereon. Reversed. Opinion by WALKER, J.- Oliver v. Forrester.

1. CHATTEL MORTGAGE RIGHT OF MORTGAGEE TO TAKE POSSESSION UNDER INSECURITY CLAUSE. -Under a clause in a chattel mortgage, that if the mortgagee shall, at any time before the debt becomes due, "feel himself unsafe or insecure," he shall have the right to take possession of the mortgaged property, the mortgagee has the right to judge of the crisis for himself, subject only to the limitation that his judgment of insecurity must be exercised in good faith upon reasonable grounds or probable cause. 2. This rule does not require that there should be actual danger, or that the proof should furnish the court at the time of the trial with reasonable ground to decide that there was actual danger; but it will be sufficient if at the trial it appears that at the time of the taking of possession there was apparent danger-such that a reasonable man might in good faith act upon it; or, in other words, there should be reasonable grounds to believe there was danger, or that the mortgagee did not act without probable cause. 3. The feeling of insecurity mentioned in a chattel mortgage, as giving the right to take possession of the mortgaged property before the maturity of the debt, has reference to such feeiing as is produced by some future cause, or some cause not in being when the mortgage was executed. It is not sufficient that it arises from a question of law as to the validity of the mortgage as against third persons, as where it is taken upon crops not in esse at the time of its execution. Opinion by DICKEY, J.-Ray v. Goings.

ASSIGNMENT OF INSURANCE IN LIFE POLICY.-1. Where a party holding a policy in an association which entitled him in case of personal injury to certain benefits, and the sum of $2,500 on his death, on payment of all assessments against him, and he being absent from home and indebted for assessments which he was unable to pay, sent his wife a writing that he made his life policy read for her benefit in case of his death, and for her special benefit and all that might be derived therefrom, and also wrote to her of his inability to pay his dues, and that "this makes the policy yours, if you will keep it up," and she paid the assessments accordingly: Held, that this in connection with the wife's act, amounted to an equitable assign. ment of the sum payable by the policy on his death, but not of the sum payable for personal injury, and that on his death she was entitled to receive the sum due on the policy. 2. Where neither the wife nor the children of an assured have any interest, conditional or otherwise, in an insurance of the party's life so long as he lives, but the contract is between the assured and the insurers, the insured may make an

equitable assignment of the same. Reversed., Opinion by DICKEY, J.-Swift v. Railway Pass, Ass. Co.

SUPREME COURT OF IOWA.
October, 1880.

MUNICIPAL CORPORATIONS POWER TO PUNISH KEEPING HOUSES OF ILL-FAME.-1. Section 456 of the Code giving cities power to suppress and restrain' disorderly houses and houses of ill-fame, does not confer power to pass an ordinance punishing the keeping of a house of ill-fame, or the leasing of premises for that purpose. It is insisted that the punishment of the offense of keeping such houses will lead to suppress and restrain them, and the power to punish the offense is, therefore, incidentally conferred. But this court has held that the authority conferred upon a city to suppress gambling did not authorize the punishment of keeping devices for gambling. City of Mount Pleasant v. Breeze, 11 Iowa, 399. It was held that the authority was to suppress, not punish gambling, and it must be exercised in such a way that the suppression will be the direct, not incidental, result of the application of the provisions of the ordinance. The decision is not without grave objections to the reasons upon which it is based; but it has been accepted without question or challenge for more than nineteen years. We ought not at this late day to disturb it. It may well be remarked that the power conferred may be exercised by ordinance, which shall provide for the direct suppression of houses of illfame. In attaining that end, the ordinance may provide for closing the houses, removing the inmates and other like proceedings. The keepers of such houses may be made liable for the costs in the proceedings, and for fines for refusing assistance to the officers and obedience to their lawful requirements. 2. A power to pass ordinances to improve the morals and order" of the people, does not authorize an ordinance to "punish" the offense of keeping such houses. Whether the Legislature can constitutionally confer power upon cities to punish acts made crimes by the laws of the State, undecided. Affirmed. Opinion by BECK, J.-City of Chariton v. Barker.

SALE - DELIVERY BY RAILROAD COMPANY. - A agreed to ship to B from Portlandville. Iowa, a car of wheat to be billed to Cairo, Ill., to be milled by B in transit at Council Hill, Ill.; that B was to take the wheat from the car at Council Hill, take the same to his mill, weigh it and pay for as much as there was of it. The car containing the wheat arrived at Council Hill on the morning of July 11, and was run on a side track, notice of its arrival being mailed by the road and received by B on the 12th. On the night of July 11, the car containing the wheat was washed from the side track by an unusual and extraordinary flow of water, and the wheat was lost. Held, that the delivery was complete, and the loss must fall upon B. When the wheat arrived at Council Hill, the contract on plaintiff's part was completed. The defendant should have been there to receive it. This duty necessarily followed. Not being there, the railroad company became his agent, because the plaintiff had done all he agreed to do. This being so, the plaintiff is not responsible for what was done by the defendant's agent. It is, therefore, immaterial whether the car was placed at a proper and convenient place for unloading or not. But it is urged the defendant was not to pay for the wheat until it had been weighed on the defendant's scales, which were ten miles distant from the place of delivery. Suppose the defendant had

taken the wheat into his custody by placing it in wagons, for the purpose of transporting it to his mill and scales, and it had been destroyed without his fault or negligence before reaching there, upon whom should the loss fall? Most clearly upon the defendant. Therefore, the weighing is not a pivotal matter. It was to be done by the defendant after he received it into his actual custody, and after it had been deliv. ered at the place fixed by the contract. Reversed. Opinion by SEEVERS, J.-Sedgwick v. Cottingham. WILL WHERE HUSBAND A LEGATEe, Wife a COMPETENT WITNESS TO EXECUTION.-That a husband is a legatee under a will does not disqualify his wife from being a competent witness to its execution. By sec. 3636 of the Code it is provided that "every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, both civil and criminal, except as herein otherwise declared." A married woman, then, is a competent subscribing witness to a will. She is not within any of the exceptions contained in the Code. If it be said that she is not competent to establish that part of the will which makes her husband a legatee, the answer is by sec. 3641: "The husband or wife are, in all civil and criminal cases, competent witnesses for each other." Is the wife a disinterested witness? No person offered as a witness is incompetent by reason of his interest in the event of the action or proceedings, except in certain cases. Code, sec. 3638. This section is qualified by section 2327, which requires that a legatee or a devisee, who is a subscribing witness to a will, can derive no benefit therefrom unless there be two disinterested and competent subscribing witnesses. Our statute nowhere defines the interest which disqualifies a witness. Tested by the common law rule the wife was a disinterested witness. She had no present, certain, and vested interest in the legacy given to her husband. It was remote and contingent. Reversed. Opinion by ROTHROCK, J.-Hawkins v. Hawkins.