and other sanitary inconveniences than would otherwise be required. In Secor's case, Pratt, J., says: "A proper respect for the memory of the dead, a regard for the tender sensibilities of the living, and the due preservation of the public health, require that the corpses should not be disinterred or transported from place to place, except under extreme circumstances of exigency." 18 Alb. L. J. 488; 31 Legal Int. 268. The exposure of unburied human remains, or neglect to inter the same by the person on whom the duty is cast, is a misdemeanor at common law. See Rex v. Stewart, 12 Ad. & E. 773; Chapple v. Cooper, 13 Mees. & Wels. 252; Ambrose v. Kerrison, 10 Com. B. 776; Jenkins v. Tucker, 1 H. Black. 394; Willes, 536. And this is doubtless so in part, at least, upon sanitary considerations generally recognized among enlightened nations.

We see nothing in the language of the act, in the surrounding circumstances, or in the nature of the subject-matter upon which the statute operates, to justify us in holding that the object of the Legislature was to impose burdens on the commerce or intercourse between this country and China, rather than to provide wholesome sanitary regulations for the protection of our people. The statute is general, and operates wholly upon matters within the territorial jurisdiction of the State, and without discrimination as to remains to be removed to any considerable distance, whether within or without the State, and is within the principle of the case In re Rudolph, recently decided in the United States Circuit Court for Nevada, upon drummer's licenses. 10 Cent. L. J. 224; 2 Fed. Rep. 65. The exhumation and removal of the dead is not a matter of public indifference, harmless in itself, like the style of wearing the hair, as in the queue case; but it affects the public health, and its regulation is like the regulation of slaughter-houses and other noxious pursuits, strictly within the police powers of the State. See Ex parte Shrader, 33 Cal. 286; Slaughter-House cases, 16 Wall. 36.

* **

In Gibbons v. Ogden, 9 Wheat. 203, Mr. Chief Justice Marshall says: "But the inspection laws are said to be regulations of commerce, and are certainly recognized in the Constitution as being passed in the exercise of a power remaining with the States. *The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or it may be for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to a general government, all of which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass. If then, as claimed, the transportation of the remains of deceased persons to China is a part of foreign commerce, these supervising and inspection laws act upon the subject before it becomes an article of foreign commerce," and while the remains are being "prepared for that purpose." They simply provide that the preparation of the remains for foreign transportation, while still within the State and under its jurisdiction, shall be made in such a manner as not to be detrimental to the public health.

The principles relating to sanitary laws, recognized in City of New York v. Miln, 11 Pet. 102; Thorpe v. R. & B. R. Co., 27 Vt. 140; Passenger cases, 7 How. 283; Railroad Co. v. Huson, 95 U. S. 471, and numerous other cases, are broad enough to cover the provisions in question. In these respects this case differs materially from the Queue case, reported in 5 Sawyer, 553, and is more like the cases arising under the Cubic Air

Statute, which we held to be constitutional. It being within the constitutional power to regulate the disinterment and removal of the dead, and to provide officers to scrutinize and supervise the operation in order to secure a conformity to the laws, we see no reason why a fee cannot be charged to and collected from those who desire to excrcise the privilege to defray the expenses of the inspection and supervision. The fee is charged under the law, not for the transportation or for the privilege of carrying the remains out of the country, but to pay the expenses of supervising their disinterment and due preparation for passing through the territory of the State, and through the streets of populous cities either to other parts of the State or elsewhere, without endangering the health of the people.

For similar reasons the provision in question does not violate subdivision 2 of section 10, Article 1, of the Constitution, which provides that "no State shall, without the consent of Congress, levy any imposts or duties on imports or exports, except what is absolutely necessary for its inspection laws." The case also seems to be within the terms of this exception. Besides, the remains of deceased persons are not " exports" within the meaning of the term as used in the Constitution. The term refers ouly to those things which are property. There is no property in any just sense in the dead body of a human being. 18 Alb. L. J. 487; 17 id. 258; Pierce v. Pro. of Swan Point Cemetery, 14 Am. Rep. 667; 10 R. I. 227, aud cases cited. There is no impost or duty on exports in any proper sense, or in the sense of the Constitution. This provision of the Constitution was intended to prevent discrimination in matters of trade.

There is no violation of the Fourteenth Amendment to the National Constitution. There is no discrimination against or in favor of any class of residents. It operates upon aliens of all nationalities and upon all citizens alike. It applies to all cases of remains to be removed beyond the boundaries of the county, whether to foreign countries, to other States, or to other parts of this State. And there are no restrictions upon disinterments and removals of Chinese dead to other places within the same county for burial not applicable to citizens and all other aliens. It may be that the large number of Chinese removals suggested the necessity for stringent supervision; but we see no reason to suppose that the act was not intended to operate upon all within its terms; and the testimony shows if it is admissible to look at the testimony - that it is, in fact, enforced against all alike. But whether enforced or not, the subject-matter, as we have seen, is a proper one for regulation; and if the act is not enforced upon all alike, there is a gross neglect of duty on the part of those appointed for this purpose under the law. If the provisions of the act affect a larger number of Chinese than of any other class, it is not on account of any discriminations made by the law, but only because under their customs there is a much larger number of disinterments and removals by them than by any others. In re Rudolph, supra, and cases cited.

There is nothing in the provision in question in conflict with Article IV of the Burlingame Treaty, which provides that "Chinese subjects of the United States shall enjoy entire liberty of conscience, and shall be free from all disabilities or persecutions on account of their religious faith or worship." Conceding that the religious sentiment of the Chinese requires that they shall remove the remains of their deceased friends to China for final burial, there is nothing in the provision forbidding or unduly obstructing the performance of that rite or religious duty, and nothing that does not equally apply to aliens and other citizens. It is only provided that in the performance of that duty proper precautions shall be taken not to endanger the health of the people among whom they have elected to live,

and have died and once been buried. The fee established is only to liquidate the portion of the expense of supervision and inspection imposed upon the public resulting from their custom; and like the other expenses of disinterment and removal, which the surviving friends voluntarily incur, is necessarily incident to their peculiar practice. The custom of the Chinese in this respect renders the supervision necessary and proper; and we can perceive no impropriety in charging them with the expense incident to it. The amount of ten dollars may seem large, but it is charged alike to all, and is not so large as to justify us in holding that it was manifestly intended to obstruct the performance of the duty; and we do not understand that the amount is regarded as objectionable if the charge is otherwise legal. Besides, it may well be questioned whether the treaty making power would extend to the protection of practices under the guise of religious sentiment, deleterious to the public health or morals, or to a subject-matter within the acknowledged police power of the State. See Reynolds v. United States, 98 U. S. 145, with respect to religious belief as affected by the First Amendment to the National Constitution. But under the view we take, it is unnecessary to consider the question now.

We are satisfied that the provisions of the act in question do not violate any provision of the National Constitution or of the treaty with China, and that there is no ground for discharging the prisoner by this court.

Let the writ be discharged, and the prisoner remanded to the custody of the officer from whom he was taken.

Hoffman, District Judge, concurred.

SUPERIOR COURT OF BUFFALO. SPECIAL TERM ABSTRACT

MORT

CHATTEL MORTGAGE RIGHTS OF JOINT GAGEES.-One part owner of a chattel mortgage, not holding the same as partners, can make no agreement with the mortgagor which will affect the rights of the other; as for example, by permitting mortgagor to retain possession after default in payment of an installment. Gock v. Keneda, 29 Barb. 120; White v. Osborn, 21 Wend. 72; Tyler v. Taylor, 8 Barb. 585. And such an agreement does not even preclude the mortgagee making it from taking possession of the chattel by virtue of the clause in the mortgage that the mortgagee may, at any time he deems himself unsafe, take possession. Hanrahan v. Roche. Opinion by James M. Smith, J.

CONSIDERATION-MARRIAGE.- Where, at the time of a loan made by plaintiff to defendant, the latter was under a legal obligation to marry plaintiff's daughter, the performance of that obligation can form no consideration of a promise by the plaintiff, made subsequent to the loan, to forgive him the debt if he fulfilled his obligation. Gerlach v. Steinke. Opinion by James M. Smith, J.

CORPORATION DE FACTO-MUNICIPAL CORPORATION - RAILROADS IN CITIES.-(1) Where twenty-four persons subscribed articles of incorporation, while the statute required twenty-five, and filed the same pursuant to the statute, and exercised the powers and franchises which would have belonged to them if duly incorporated, they become de facto a corporation, and a defendant in an action brought by the corporation cannot question the validity of its incorporation. That can be done only in an action by the people, brought for the purpose of testing its right to the corporate powers and franchises which it has assumed. (2) A resolution of the common council of a city giving to a railroad corporation permission to lay its

tracks in the streets of the city, is not the grant of a franchise, but is simply a license. No estate or property right whatever was granted to it, for the city had no power to grant any, nor to confer upon it any franchise. The streets are held in trust for the people, and are not corporate or municipal property. Therefore, where the city reserved the right to revoke the license for non-compliance with its conditions, it may do so by resolution without obtaining a judgment declaring the forfeiture. Buffalo City Railway Co. v. N. Y. Cent., etc., R. Co. Opinion by James M. Smith, J.

MORTGAGE TO A CORPORATION DE FACTO-ESTOPPEL - BUILDING ASSOCIATION-USURY.- Where a member of a corporation de facto executed a mortgage to it and afterward gave mortgages to other parties, it was held that neither the mortgagor nor the mortgagees could question the validity of the mortgage on the ground that the corporation had no legal existence; the certificate of incorporation not having been filed as required by statute. The right of a corporation de facto to exercise the powers and privileges of that class of corporations to which it belongs, cannot be inquired into in a private action to which such corporation is a party. Persons who become members of a corporation de facto by subscribing to or taking shares of its stock, and those who make contracts and deal with it in its corporate capacity, so as necessarily to recognize its corporate existence by such contracts and dealings, and who accept the benefits thereof, are thereby precluded from denying the legal validity of its incorpora tion. And estoppels bind not only the parties, but their privies. When a party by his contract, his acts or his statements, has qualified his own rights, and another succeeds him as heir, grantee, or executor, he succeeds only to the right as thus qualified when his title commenced. 1 Greenleaf on Ev., § 189. Therefore, as the mortgagor was estopped from showing that the association was not a corporate body, for the purpose of invalidating his mortgage, his grantees or mortgagees are also estopped. His title being subject to the lien of the mortgage, any subsequent grant or incumbrance by him must necessarily be subject to the same lien. See Merch. Exch. Bank v. Com. Warehouse, 49 N. Y. 643, note; Mason v. Lord, 40 id. 476; Stewart v. Bramhall, 74 id. 85; Real Est. Trust Co. v. Seagrave, 49 How. 489. (2) A bond and mortgage given by a member of a building association to secure a loan, and conditioned to pay seventy cents contribution and forty cents interest each and every week during the existence of the association, and also all dues, fines and penalties which may be imposed upon the mortgagor as a member of it, pursuant to the Constitution, etc., is within the provision of the act of 1851, ch. 122, § 7, and is exempted from the statute of usury. Citizens' Mut. Loan Assoc. v. Webster, 25 Barb. 263. In Melville v. Amer. Benev. Assoc. 33 Barb. 108, the mortgage was given previous to the act Erie County Savings Bank v. Baldwin. Opinion by James M. Smith, J. (Affirmed at General Term, but no opinion delivered.)

of 1851.

REFER

PRACTICE-VACATING ORDER OF ARREST ENCE-ENTRY OF ORDER.- (1) Section 719 of the Code, which provides that an application to vacate an order of arrest must be finally decided within twenty days after it is submitted for decision, is directory merely, and a decision made after that time is valid. See People ex rel. v. Dodge, 5 How. Pr. 47; Burger v. Baker, 4 Abb. 11; Stewart v. Slater, 6 Duer, 84; O'Brien v. Bowes, 4 Bosw. 663; Heroy v. Kerr, 21 How. 409. And the court or judge may, even after the twenty days, refer it to a referee to take proofs of the facts stated in the affidavits, and the reference, though unexecuted at the hearing of the motion to vacate it, will not be set aside. See Brinkley v. Brinkley, 56 N. Y. 192.

(2) This section was made for the protection of the party under arrest. Plaintiff is not injured by the delay, for the order of arrest remains in force. He can proceed with his action and all his remedies are perfect, no matter how long the decision of the motion to vacate the order of arrest is delayed, or even if it is never decided. (3) Until an order is entered no motion can be made to vacate it. Gallt v. Finch, 24 How. Pr. 193; Whittaker v. Defosse, 7 Bosw. 678. The order of reference may be entered by either party, and either may proceed to execute it. Peet v. Cowenhoven, 14 Abb. 56; Matter of Rhinebeck, etc., R. Co., 8 Hun, 34. Stafford v. Ambs. Opinion by James M. Smith, J.

PLEADING -ALLEGATION OF LIBEL PUBLISHED AFTER SUIT BROUGHT, IRRELEVANT, ETC. A libellous publication made after suit brought is not admissible in evidence for the purpose of showing malice, nor for aggravating the damages. Frazier v. McCloskey, 60 N. Y. 337; Distin v. Rose, 69 id. 125. Yet in Corbin v. Knapp, 5 Hun, 197, circulation of the same libel after suit brought was allowed to be set up by supplementary complaint. Therefore, an allegation of such a publication, though made before service of the complaint, will be stricken out as immaterial and irrelevant. Storck v. Buffalo German Republican Printing Asso. Opinion by Beckwith, J.

SERVICE OF IMPERFECT COPY OF ORDER. - A defective copy of an order cannot be treated as a nullity if its sense and object can be ascertained from its terms and from the affidavits served. Thus, where the copy read: "It is hereby ordered that the time for the defendant to interpose his answer therein be and the same is hereby for ten days from the date thereof." Osgoodby v. Seifert. Opinion by Beckwith, J.

- UNDUE INFLUENCE -DEVISE

re

WILL CONTRACT POWERS IN TRUST.- (1) In order to invalidate a will or contract on the ground of fraud or undue influence, it must be shown that certain parties made false and fraudulent statements to influence the deceased to execute the instrument, and which he relied upon as true; or that they exercised such influence over him as amounted to moral coercion, which destroyed his independent action and free agency; or that by importunity and persuasion, which he was unable to resist, he was constrained to do that which was contrary to his free will and real purpose. Brick v. Brick, 66 N.Y. 144; Cudney v. Cudney, 68 id. 148; Childrens' Aid Asso. v. Loveridge, 70 id. 387. The mere fact that the parties were very desirous that the deceased should execute the contract as he did, and were active in procuring its execution, that it was highly advantageous to them, and that it was an improvident one, and its performance on the testator's part would sult in serious loss to the estate, is not sufficient, although the contract was executed in his last sickness, and two days before his death. (2) Devise and bequest to the executors in trust to pay the income thereof to the widow during her life, and upon her decease to pay to plaintiff a legacy upon attaining his majority, and in case of his death, without issue, before that time, to defendant; and to convey and deliver the residue of the estate to defendant. Held, that the power of alienation was not suspended beyond two lives in being at the testator's death. That immediately upon the death of the widow the entire residuary estate would vest in defendant. Embury v. Sheldon, 68 N. Y. 227. The trust estate would terminate with the widow's death, and the other provisions of the will could be executed as powers in trust. Post v. Hover, 33 N. Y. 593. Where certain provisions of a will cannot be fully upheld as creating valid trusts under the statute, yet they will be executed as powers in trust whenever it can be lawfully and rightfully done. Jost v. Jost. Opinion by James M. Smith, J.

MAINE SUPREME JUDICIAL COURT AB

STRACT.*

HUSBAND AND WIFE-REPLEVIN DOES NOT LIE BETWEEN. An action of replevin cannot be maintained by a husband against his wife while the marital relation between them is in full force. Replevin is an action of tort. It was decided in Abbott v. Abbott, 67 Me. 304, that a wife after divorce could not maintain an action for an assault committed on her during Coverture. A fortiori, an action of tort cannot be maintained by the one against the other during coverture. Hobbs v. Hobbs. Opinion by Appleton, C. J. MARITIME LAW BILL OF LADING

FOR WHAT

GOODS OWNERS OF VESSELS RESPONSIBLE-AUTHORITY OF MASTER-NATURE OF INSTRUMENT-CONTRADICT

ING BY PAROL. — Under a contract by a common carrier for the carriage of goods by water, evidenced by a bill of lading in the usual form signed by the proper agent in the ordinary course of business, the owners of the vessel are responsible only for such goods as are embraced in the bill of lading and delivered on board the vessel, or into the actual custody of the master, or such as were so delivered as and for those embraced in the bill before the vessel sails. It is not competent by evidence aliunde to show that such a bill of lading was intended to or did embrace goods elsewhere so as to make the owners responsible therefor. Ordinarily the master has no authority to bind the owners by giving a receipt for goods at any other than the accustomed place of delivery. There can be no constructive delivery of goods so as to bind the owners for their carriage except at such place, as where by constant practice and usage they have received property left for transportation. Rowley v. Bigelow, 12 Pick. 314; The Delaware, 14 Wall. 600; The Lady Franklin, 8 id. 329; 1 Chit. on Contr. 689 n. A bill of lading is an instrument of a two-fold character. It is a receipt as to the quantity and quality of the goods to be carried and a contract as to their carriage. As a receipt it is open to explanation or contradiction the same as other receipts. Its acknowledgment of the apparent condition of the goods, though strong proof of its truth, is no exception to the rule. An admission of that which is not true is not binding except when an estoppel. In this case the admission is not an estoppel because there has been no assignment of the bill of lading, nor has the plaintiff acquired any new rights or changed his position in consequence of it. O'Brien v. Gilchrist, 34 Me. 554; Tarbox v. Eastern Steamboat Co., 50 id. 339; Sears v. Wingate, 3 Allen, 103; Shepherd v. Naylor, 5 Gray, 591; Blanchard v. Page, 8 id. 287; Richards v. Doe, 100 Mass. 524; Hastings v. Pepper, 11 Pick. 43; Maryland Ins. Co. v. Ruden's Admr., 6 Cranch, 340; Nelson v. Woodruff, 1 Black. 156; Ship Howard v. Wissman, 18 How. 231; The Delaware, 14 Wall. 601; 2 Whart. on Ev., § 1070; 1 Greenl. on Ev., § 305. Witzler v. Collins. Opinion by Danforth, J.

NEGLIGENCE-WHEN CONTRIBUTORY, QUESTION FOR JURY.-Whether a person travelling with a safe horse and carriage, in the night without a light, upon a highway wholly obscured by darkness, but in the vicinity of his residence, and over which he has travelled many years, is in the exercise of ordinary care, is for the jury to determine under all the circumstances of the case. Stevens v. Boxford, 10 Allen, 25; Williams v. Clinton, 28 Conn. 264; Norris v. Litchfield, 35 N. H. 271; Woodman v. Nottingham, 49 id. 387; Sleeper v. Sandown, 52 id. 244; Shear. & Red. on Neg., § 413 et seq. and notes. Haskell v. Inhabitants of New Gloucester. Opinion by Virgin, J.

tor is the same in form, whether the defendant be the rightful executor, or executor de son tort. Myrick v. Anderson, 68 E. C. L. 719. An executor de son tort is to be declared against as if he were the lawful executor, though the party died intestate. Brown v. Leavitt, 6 Foster, 495. The liability of such an executor is enforced against him as if he were rightful executor. Shaw v. Hallihan, 46 Vt. 389. The executor de son tort may be sued and treated as the rightful executor. Stockton v. Wilson, 3 Penn. 129. Such has been the rule in this State. Allen v. Kimball, 15 Me. 116; White v. Mann, 26 id. 361; Lee v. Chase, 58 id. 432. Sawyer v. Thayer. Opinion by Appleton, C. J.

MINNESOTA SUPREME COURT ABSTRACT.

INJUNCTION-MAY BE ISSUED IN ONE EQUITABLE ACTION TO RESTRAIN ANOTHER IN SAME COURT.- A court of equity may in one action restrain proceedings in another action before it. The general rule as to injunctions is thus stated in 3 Daniel's Ch. 1725: "Injunctions may be obtained to stay proceedings in other courts of justice, whether such courts are courts of law or equity, or spiritual courts, or courts of admiralty, or courts in a foreign country." This statement restricts the rule to staying proceedings in other courts. The power in one equitable action to restrain proceedings in another equitable action in the same court is affirmed in Erie R. Co. v. Ramsey, 45 N. Y. 637. That case decides only on the power and jurisdiction to enjoin, but does not determine when it is proper to exercise it. The same thing was decided in Prudential Assurance Co. v. Thomas, L. R., 3 Ch. App. 74, in which it was held that a bill of interpleader was a proper case in which to enjoin proceedings in another equitable suit in the same court. And inasmuch as the injunction operates only upon the parties to the action, and not upon the court in which it is pending, we can see no difference, so far as the power to restrain is concerned, between an action in the same and one in another court. In either case the power or jurisdiction exists. Mann v. Flower. Opinion by Gilfillan, C. J.

[Decided April 17, 1880.]

MANDAMUS-WILL NOT ISSUE AGAINST EXECUTIVE OF STATE. Whether under the Constitution of Minnesota any officer of the executive department of the State government can be subjected to judicial control and interference in the performance of an official duty is a question which has been before this court in different forms and at different times for consideration and decision, and the holding has uniformly been against the existence of any such jurisdiction or power in the courts. In re Application of Senate, 10 Minn. 78; Rice v. Austin, 19 id. 104; State ex rel. Treasurer of Mille Lacs County v. Dike, State Treasurer; State ex rel. Wright v. Jennison, Secretary of State, 20 id. 363; St. Paul & Ch. R. Co. v. Brown, 25 id. 517, 573, 574. The reasons for the holding are fully stated in Rice v. Austin, and Treasurer v. Dike, supra. It rests upon the constitutional principle that each of these departments of government is entirely independent of the others, so that neither can be made amenable to any other for its action or judgment in discharging the duties imposed upon it, whatever their sources or nature. The principle applies to the performance of all official duties, whether imposed by the Constitution or by legislative enactment simply, or whether they are of a character strictly ministerial, or such as call for the exercise of discretion and judgment alone. It follows that every act done or attempted to be done by any officer of the executive department, in his official and not in his individual capacity, is shielded from all judicial interference or control, either by mandamus or injunction, even though such act may be founded

in an error of judgment, or an entire misapprehension of official duty under the law. Western Railroad Co. of Minnesota v. De Graff. Opinion by Cornell, J. [Decided July 12, 1880.]

WISCONSIN SUPREME COURT ABSTRACT. JUNE, 1880.

BANKRUPTCY -DISCHARGE OF ONE PARTNER DOES NOT RELEASE OTHER. Plaintiff and defendant, who were in partnership, dissolved, defendant taking the assets and assuming the debts of the firm, among which were notes due F. Thereafter defendant was discharged in bankruptcy through composition proceedings, F. signing the composition agreement and receiving only a portion of the amount due. Thereafter plaintiff paid the balance due F. Held, that plaintiff was not, by the bankruptcy proceedings, discharged from liability to F., and his payment to F. was not voluntary. Ex parte Jacobs, 44 L. J. B. 34. In McGrath v. Gray, 43 L. J. (N. S.), C. P. 63, the question whether a discharge of one of two partners, by a composition in bankruptcy, discharged his copartner, was decided in the negative, after a very full discussion of the case, and a very elaborate opinion by Ch. J. Coleridge, who concludes as follows: "Consequently, an order of discharge in all these cases releases only the debtor in whose favor it is given, and leaves his solvent co-debtor liable to be sued separately by a joint creditor who has been a party to the release of the insolyent debtor." The same conclusion was arrived at by the Supreme Court of New York in Mason & Hamlin Organ Co. v. Bancroft, 1 Abb. N. Cas. 415. The argument in these cases is that the discharge had in bankruptcy, through a compromise, has the same and no greater effect as to sureties and joint contractors than the discharge granted in such proceedings without compromise. The compromise proceedings are held to be a substitute for the ordinary proceeding in bankruptcy for the accomplishment of the same object, and in construing the whole statute together it must be held that Congress did not intend to give any greater or other effect to the discharge obtained through the compromise proceedings than are given to the discharge given in the ordinary way; and as the statute provides that the ordinary discharge shall not affect the creditor's right to proceed against the sureties or joint contractors for the recovery of his debt, the discharge obtained through the compromise does not impair that right. Knapp v. Anderson, 15 B. Reg. 316; Hall v. Fowler, 6 Hill, 630; Holyoke v. Adams, 10 B. Reg. 270; Towle v. Robinson, 15 N. H. 408; In re Levy, 1 B. Reg. 220; Payne v. Able, 4 id. 327; In re Stevens, 5 id. 112; Done v. O'Neil, 6 Nev 155; Winslow v. Parkhurst, 1 Root, 268; Blumenst. Bankr. 544,545. Hill v. Trainer. Opinion by Taylor, J.

MUNICIPAL CORPORATION - NOT LIABLE FOR INJURY FROM DEFECTIVE APPROACH TO BRIDGE NOT OWNED BY IT IN ITS LIMITS. —A bridge was, with its approaches, owned by a corporation which took toll for its use. It was purchased by the county in which it was located and made a free bridge and maintained by the county. One of the approaches was in the city of Centralia, within the municipal limits. Some slight repairs had at one or more times been made by the street commissioner of Centralia, upon the roadway and sidewalk of such approach, but it did not appear that they were authorized by the municipality. The public used these approaches in the same manner as a public street of the city. Held, that the city was not liable for an injury to one passing over the sidewalk of the approach, caused by a defect in such sidewalk. The county and not the city was bound to keep the bridge in repair. The approaches being for the sole

of enabling the public to reach the bridge treated as part of the bridge itself, And the the sidewalk was used as a public thoroughuld not render the city liable. State v. Super of Wood, 41 Wis. 28. The liability for injuries ig from the want of repairs to a bridge or other y, under the statute, rests alone upon the muity upon which the law casts the duty of making pairs, and not upon the mere fact that the highwithin the bounds of the municipality. This is ctrine laid down in Houfe v. Town of Fulton, 34 08-617. In that case the late Chief Justice Dixon "It is, of course, a proposition generally correct, town is not liable for damages caused by an ciency, unless the place where the injury was ed and the insufficiency exists, was a lawful pu. highway, which it was the duty of the town to keep in a state of reasonable safety and repair." The cases of Johnson v. City of Milwaukee, 46 Wis. 568, and James v. City of Portage, 5 N. W. Rep. 31, distinguished. Bishop v. City of Centralia. Opinion by Taylor, J.

TRESPASS

· CUTTING TIMBER -WHEN PURCHASER FROM WRONG-DOER WITHOUT KNOWLEDGE LIABLE.

H. entered upon lands of plaintiff without authority and cut logs thereon. These logs he sold to defendant, who did not know that H. was a trespasser, but supposed H. owned the logs, and defendant went upon plaintiff's land and removed them. Held, that defendant was liable to plaintiff in trespass for the damago done by the cutting and removal of the logs. In Dexter v. Cole, 6 Wis. 319, an action of trespass, it appeared that the defendant, a butcher in Milwaukee, was driving sheep he had purchased toward the city, upon the highway, when they became mixed with a small lot belonging to the plaintiff, running at large upon the highway. The defendant drove the whole flock into a yard near the road, for the purpose of parting them, and did throw out a number which he did not claim, and pursued his way with the remainder to his slaughter-house, where they were slaughtered in his business. The evidence tended to show, and the jury found it did show, that some four of the plaintiff's sheep remained in the flock, and were driven to Milwaukee and slaughtered. The court maintained the action on the ground that any unlawful interference with, or acts of ownership over, property, to the exclusion of the owner, was sufficient to sustain the action, and that it was not necessary to show actual or forcible dispossession of property; that the intent did not necessarily enter into the trespass; that it was sufficient if the act done was without a justifiable cause or purpose. But, perhaps, the case nearest in point to the one at bar is Higginson v. York, 5 Mass. 341. The head note thus states the case: "A having entered the close of B, and having cut a quantity of cord-wood, sells the same to C, who hires D, the master of a coasting vessel, to go in company with C and transport the wood to market. D was held liable for the value of the wood in an action of trespass quare clausum fregit, brought by B, although it was agreed he was ignorant of the original trespass committed by A." In Hobart v. Hagget, 12 Me. 67, an action of trespass for taking an ox belonging to plaintiff, it was proved that defendant met plaintiff in the street, and bought of the latter an ox, which plaintiff directed him to go and take out of his inclosure, and defendant, by mistake, took the wrong ox. The defendant was held liable. The court say: "The taking of the plaintiff's ox was the deliberate and voluntary act of the defendant. He might not have intended to commit trespass in so doing. Neither does the officer, when, on a precept against A, he takes, by mistake, the property of B, intend to commit a trespass; nor does he intend to become a trespasser, who, believing that he

is cutting timber on his own land, by mistaking the line of division, cuts on his neighbor's land; and yet, in both cases, the law would hold them as trespassers." Cooley on Torts, 348, lays down the same doctrine. Hazleton v. Week. Opinion by Cole, J.

INSURANCE LAW.

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FIRE POLICY AGENCY — AUTHORITY OF AGENT— NON-PAYMENT OF PREMIUM WAIVER. - In a fire policy was a condition rendering it void if default was made in payment of a premium note for thirty days after due. Held, that an agent of the insurance company authorized only to receive applications for insurance and collect and transmit premiums had no authority to extend the time of payment of a premium note so as to avoid a forfeiture by reason of a failure to pay such premium note within thirty days after maturity. An agent employed to collect a claim does not thereby have authority to bind his principal even to grant an extension of time. Hutchings v. Munger, 41 N. Y. 155; Kirk v. Hiatt, 2 Cart. (Ind.) 322; Coming v. Strong, 1 id. 329. Where an agent is intrusted with a policy for the purpose of delivering it, and does deliver it, though in violation of a provision of the policy as to prepayment, it has been held that the assured has a right to assume that prepayment has been waived. Young v. Hartford Fire Ins. Co., 45 Iowa, 377; Bowman v. Agricultural Ins. Co., 59 N. Y. 521; Mississippi Valley Ins. Co. v. Neyland, 9 Bush, 430; Sheldon v. Connecticut Ins. Co., 25 Conn. 9. But the waiver rests, not simply upon something said by the agent, which could be construed into an agreement of waiver, but upon something done by the agent which he was employed to do. The authorities all agree that a mere agreement to waive prepayment will not put a policy in force where it is not delivered. It is therefore the delivery of the policy which constitutes the ground of waiver. It is true that in Hallock v. Commercial Ins. Co., 2 Dutcher, 268, a recovery was allowed, although the premium had not been paid, nor the policy delivered. But the agreement for the insurance had been made and the premium tendered, which the agent declined to receive because the policy was not made out. In Trustees of Baptist Church v. Brooklyn Ins. Co., 19 N. Y. 305, there was a parol contract for a renewal, but no payment of the renewal premium. It was held that the plaintiff was entitled to recover. That case was substantially like the case at bar, except that the contract was made by the officers of the company, and not by an agent. The principle decided therefore was materially different. Nor does the case at bar come within the rule held in Viele v. Germania Ins. Co., 26 Iowa, 9. That was a case where the risk was increased by the act of the assured contrary to the provisions of the policy. It appeared, however, that the agent assented to the use of the premises, by reason of which the risk was increased. Such assent was held to be a waiver of the forfeiture. There is nothing in this doctrine that affords support to the proposition that an agent who has not power to make a contract of insurance can bind the company by his contract to an indefinite postponement of the payment of a renewal premium, and keep the policy in force in contravention of its provisions. In Bonton v. American Mut. Life Ins. Co., 25 Conn. 542, the premium was actually paid to the agent, though after the day it fell due. It was held that though the agent had power to make the contract of insurance, and had power to receive the premium when due, he had no power, without an express authorization, to bind the company by receiving it after it was due. Substantially the same doctrine was held by implication in Insurance Co. v. Norton, 96 U. S. 334. In that case a recovery was allowed where the agent had extended the time of payment of prem