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dry, a hotel, to support disabled firemen, by forced contributions from one class of persons exclusively, the object is not governmental; it is to promote primarily the interests of individuals. The convenience of the public may be promoted, but the property is that of the individual, who may use it as he thinks proper, independent of any special public control. When the facts of a case show the act to come within the first class, it is valid; when it clearly comes within the latter, the courts whose province it is to decide whether the purpose be public or private will declare it void.(17) The only exception to the rule is the case of a theater company, incorporated with powers to build a theater and to take fire and marine insurance risks. An act of the legislature, causing a municipal subscription to the stock of this company, was held valid on the ground that "it would contribute to the wealth and embellishment, and afford a place of relaxation and amusement, and would tend to correct and enlighten the morals of the citizens."(18) This case is adverse to the whole current of authority on the subject.




Mutual Life Insurance Company of New York v. Young, the Supreme Court of the United States considered the validity of a contract of life insurance made under the following circumstances:

On the 5th of June, 1867, McPherson Young applied to the agent of the plaintiff in error in San Francisco for insurance upon his life, and thereupon received from the agent a receipt, which is as follows: "Amount, $99.30.] [Insurance, $5,000. "The Mutual Life Insurance Company of New York. "H. S. Homans, General Agent, 424 Montgomery street, San Francisco.

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Received, San Francisco, June 5th, 1867, from Mack P. Young, of San Francisco, Cal., ninety-nine 30-100 dollars, being the first 1-4-annual premium on his application for a policy of insurance of the Mutual Life Insurance Company of New York, for the sum of five thousand ($5,000) dollars on the life of Mack P. Young, payable at 45 or death, and premiums paid up in full in 10 y'rs; said policy of insurance to take effect and be in force from and after the date hereof, provided that said application shall be accepted by the said company, but should the same be declined or rejected by said company, then the full amount hereby paid will be returned to said applicant upon the production of this receipt.

"For the Mutual Life Insurance Company,

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(17) Judge Redfield's note to Allen v. Jay, 13 Am. Law Reg. 497, 500.

(18) Judge Redfield's note to Allen v. Jay, 13 Am. Law Reg. 495; what is public use, Sedgwick Stat. and Const. Law (2d ed.), 446-50, note a, especially gas company; Bloomfield Gas-light Co. v. Richardson, 63 Barb. 437; sewerage of a city, Hildreth v. Lowell, 11 Gray, 315; aqueduct and waterworks companies for supply of cities with water, Reddall v. Bryan, 14 Md. 444; Barden v. Stein, 27 Ala. 104; Lombard v. Steavens, 4 Cush. 60; Mayor, etc., v. Bailey, 2 Denio, 452; park or highway for pleasure, Matter of Central Park, 63 Barb. 282; In re Mount Washington R R., 35 N. II. 134; all of these held to be for public use.

The application of Young was received by the company at New York, and was answered by a policy transmitted to the agent at San Francisco. The policy bore date on the 5th of April, 1867, and varied from the terms specified in the receipt in the following particulars: (1) It took effect from the 5th of April instead of the 5th of June. The loss to the applicant by this change is obvious and needs no comment. (2) The quarterly payments were to be $96.60 instead of $99.30. (3) The days of payment during the ten years were to be the 6th days of April, July, October and January, instead of the 5th days of June, September, December and March. It contained a provision that "if the said premiums shall not be paid on or before the days above mentioned for the payment thereof," "then in every such case the company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine."

The policy was received by the agent at San Francisco on the 2d of August, 1867. With the policy were received two receipts to be signed by the secretary of the company, and to be countersigned by the agent before delivery. One of them was for the payment of the installment due on the 6th of April, 1867, and the other for the installment due on the 6th of July in that year. On the 8th of August, 1867, the agent addressed a note to Young at Vallejo, notifying him that the policy had arrived, and requesting to be advised whether it should be forwarded to Vallejo or be held until he should call for it in San Francisco. It does not appear in the case when or how this note was forwarded, nor whether Young ever received it. Notice of the receipt of the application by the company, or of the receipt of the policy by the agent, was not shown to have been given to or received by him. No demand was made upon him for any further payment, and no receipt requiring such payment was presented to him.

Young was shot and mortally wounded at Vallejo on the 21st of August, 1867. He was removed the next day to a hospital in San Francisco, where he died on the 20th of September following. From the time he was shot until his death he was unable to leave his bed, and was incompetent, mentally and physically, to attend to any business. The communication at that time from San Francisco to New York was by ocean steamers to Panama, thence by rail to Aspinwall, and thence by steamers to New York. The time consumed in the transit was from twenty-three to thirty days. After the death of Young the agent wrote on the policy "cancel-dead," and sent it to the office in New York. The officers there, on the 21st of October, 1867, canceled it by tearing off the seal of the company and the signature of the president. The agent countersigned the receipts and applied and canceled the proper stamps. They remain in the hands of the company, attached to the policy, uncanceled. The sum of $99.30, mentioned in the receipt of June 5th, 1867, was not paid. Young gave his note for that amount, payable to the agent individually, at sixty days. Nothing was paid upon it. It remained in the possession of the defendant. The word "canceled" was written upon it, but by whom did not appear. Young never paid any thing on account of the contract claimed to have been made. On the 24th of August, 1871, letters of administration upon the estate of Young were issued to the defendant in error. He qualified under them according to law. Shortly afterward notice of the death of the intestate was given

and payment of the insurance money demanded. Payment was refused on the ground that the company was not liable.

Swayne, J., who delivered the opinion, said: "Several objections, some of them technical, have been taken by the counsel for the plaintiff in error to the judgment rendered. We shall confine our remarks to one of them. It is fundamental, and goes to the right, justice and law of the case. The receipt of the 5th of June was the initial step of the parties. It reserved the absolute right to the company to accept or reject the proposition which it contained. There was a necessary implication that if it were accepted the response and acceptance were to be by a policy, in conformity with the terms specified in the receipt as far as they extended, and, beyond that, in the usual form of such instruments as issued by the company. But it was clearly within the power of the company, under the condition expressed, wholly to reject the application, without giving any reason; or to accept the proposition with such modifications of the terms specified, and of the usual conditions of such policies, as it might see fit to prescribe. The entire subject was both affirmatively and negatively within its choice and discretion. The acceptance was a qualified one, and there was none other.

"It was by a policy departing from the terms specified in the receipt in the particulars before mentioned, but containing, as to the conditions imposed otherwise, nothing beyond what was usual in such cases. At this stage of the business the company was not bound according to the receipt, because it had not agreed to a part of the terms specified, and those terms were material and of the essence of the proposition. Clearly the company never did agree to those terms. What it would have done if the applicant had refused, as he might have done, to take the policy, it is not material to consider. It is enough that the company did not so agree. This court has no power to make such an agreement for it. The indispensable element of the consent of one of the parties is shown not to have existed. The contrary appears by the policy transmitted to the agent. The consent of the applicant appears, but that alone is unavailing. That fact, in any sound legal view of the case, is as if it were not. In the analysis of the case the receipt, for the reasons stated, must be laid out of view.

"This brings us to the examination of the controversy as respects the policy of insurance. Here the position of the parties is reversed. The applicant assented to the proposition contained in the receipt, but the company did not. The company assented to the policy,

up the necessary communication with the agent by calling upon him when the answer from the office in New York might have been expected to arrive, and, if he intended to be absent, by giving the agent his address during his absence, and taking from him a promise to communicate the result as soon as the reply was received.

"It does not appear that he took any step whatever in this way. Neither he nor his personal representative, therefore, had any reason to complain. If he had received notice of the proposition made through the policy, it would have been at his option to give or refuse his assent. He was certainly in no wise bound until sueb assent was given. Until then, there could be no contract on his part, and if there was none on his part, there could be none on the part of the company. The obligation in such cases is correlative. If there is none on one side there is none on the other. The requisite assent must be the work of the parties themselves. The law cannot supply it for them. That is a function wholly beyond the sphere of judicial authority. As the applicant was never bound, the company was never bound. The policy was, therefore, no more a contract than the receipt. Both had the same fatal defect-the want of the assent of one of the parties.

"Even where the parties supposed they had agreed and it turned out there was a misunderstanding as to a material point, the requisite mutual assent as to that point being wanting, it was held that neither was bound. Baldwin & Forbes v. Middleburger, 2 Hall, 176; Coles v. Browne, 10 Paige, 526. One of these cases was at law and the other in equity. See, also, Calverly v. Williams, 2 Ves. Jr. 240, and Crane v. Partland, 9 Mich. 493.

"The deceased paid nothing. The contest is an effort on that side to gather where he had not sown. The law involved is expressed by the phrase "it takes two to make a bargain." In this view of the case, irrespective of the other considerations which have been urged upon our attention, we hold that the facts found do not warrant the conclusion reached. The judgment is, therefore, reversed, and the case will be remanded to the Circuit Court with directions to enter a judgment in favor of the plaintiff in error."



but the applicant never did. The mutual assent, the THE London Law Times comments on this subject as

meeting of the minds of both parties, is wanting. Such assent is vital to the existence of a contract. Without it there is none, and there can be none. In this case it is not established by any direct proof, and there is none from which it can be inferred. This is not controverted. If it be alleged there was fault on the part of the agent, for which the company is responsible, in not communicating promptly and fully with the applicant upon the arrival of the policy, there are several answers to the imputation. Such fault, viewed in any light, cannot be taken as the legal equivalent of the assent of the applicant to the terms of the policy. But no such fault is shown. The applicant knew that the company was not bound, and would not be bound until it chose to become so, and that it had the right to do what it did. It was his duty to keep

follows: "The case of Currie and others v. Misa, in which judgment was given in the Court of Exchequer Chamber last term, has attracted much attention in commercial circles, as it decides a point of mercantile law on which there have been few decisions. The question decided in the case was, that a pre-existing debt is a sufficient consideration for a negotiable security payable on demand in the hands of a bona fide holder, and it arose in the following manner: The defendant had purchased of one Lizardi bills on Cadiz to the amount of £2,000, which were delivered him on the 11th February, 1873, and which, according to the usual course of business, were to be paid on the next post day, the 14th February. Lizardi was at this time largely indebted to the plaintiffs, Messrs. Glyns, Mills, Currie & Co., who were his bankers, both on his

drawing account and a loan account, and he had, for several days previously, been pressed for payment or further security. On the 13th February he paid in various checks on account of the balance, and at the same time he handed to the plaintiffs a document, which was described as a bill, but which was in effect an order on Misa to pay to the plaintiffs the amount due for the bills. On the morning of the 14th notice of this order, described as a bill lying due at Messrs. Glyns & Co., was left at Misa's office, and shortly afterward the check in question was paid in by the defendant to Messrs. Glyns & Co., and the bill was given up to him in exchange for it. The amount of the check was, together with other checks paid in by Lizardi, entered to the credit of Lizardi's account, on which a large amount still remained owing to the plaintiffs. Soon after the check was thus paid in and entered, the defendant Misa heard that Lizardi had stopped payment, and he at once instructed his bankers, Messrs. Barnett, Hoare & Co., not to honor the check. In consequence of this, the check was returned from the clearing house in the after part of the day, and on the following morning, the 15th, it was entered in the plaintiffs' books to the debit of Lizardi's account. Glyns & Co. then sued Misa on the check, and he set up as a defense that there never was any consideration for the check, and that the plaintiffs had always held it without having given any consideration for it. The Court of Exchequer gave judgment in favor of the plaintiffs, and the Exchequer Chamber confirmed the decision, but Chief Justice Coleridge dissented from the opinion of the other members of the court.

"The court below, in giving their judgment, proceeded, partly at least, upon the special circumstance that the check was given to take up the so-called bill, and considered that this formed a sufficient consideration to entitle the plaintiff to recover. But in the Court of Error the argument turned on the broader question, as to whether an existing debt forms of itself a sufficient consideration for a negotiable security payable, so as to constitute the creditor to whom it was paid a holder for value. It is well known that as a general rule, no one can pass a better title than he has himself. But negotiable instruments are an exception to this rule, as experience has proved that it is indispensable for the interests of commerce that they should be so. It seems that with regard to bills of exchange and payments in money, the rule has been well settled, and though there have been no decisions with regard to checks, it seems hard to place them on a different footing. Checks are generally governed by the same rules and principles that regulate bills of exchange; but checks are intended for immediate payment on being presented, and in fact amount to payment unless dishonored. There would appear to be very little difference between a check and payment in money from a dictum of Chief Justice Cockburn in Watson v. Russell, 31 L. J. Q. B. 304, and that the maker of a check cannot afterward repudiate it and claim back the proceeds, any more than he could claim back gold or bank notes, if the payment had been made in that way instead of by check.

"It was contended on behalf of the defendant that there was a difference between a negotiable security payable at future date and a check payable on demand, because the former instrument implies an agreement by the creditor to suspend his remedies for a period, and that constituted a new consideration, which is wholly wanting in the case of a check, and therefore

the holder gains no independent title of his own, in the latter case, and has no better right to the security than the debtor had himself. But it does not follow that the legal element of consideration is absent entirely where the security is payable immediately. The holder of a check may either cash it at once or may hold it over for a reasonable time. If he cashes it at once he is safe, and the maker cannot afterward repudiate; but if he holds over the check for a short time, the presumption appears still to be in favor of the holder. In truth, the title of a creditor to a bill given on account of a pre-existing debt, and payable on a future day, does not rest on the implied agreement to suspend his remedies; but upon the fact that a negotiable security given for such a purpose is a conditional payment of the debt, the condition being that the debt revives if the security is not realized. The security is offered to the creditor, and is taken by him as money's worth, and on every principle of justice it should be as truly his property as the money which it represented would have been had the payment been made in money.

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With this view, the authors of the principal textbooks on this branch of law seem to agree. Byles, in his work upon Bills of Exchange (last edition, p. 124), has laid it down, that a pre-existing debt due to the holder of a negotiable instrument is a good consideration, and it should seem is equivalent to a fresh advance.' And Mr. Story, in his treatise (§ 192), has stated the same principle, without suggesting any difference between a note payable after date and one payable on demand. The case of De la Chaumette v. The Bank of Englund, which was relied on for the defendant, had this difference from the present case, that the note had not been remitted as payment, but for collection by a party as agent, and the court held that under these circumstances the plaintiff had no better title than the person who remitted the note to him. In the old case of Solomons v. The Bank of England, which is reported in the notes to Lowndes v. Tudnor, 13 East, 136, the plaintiffs were London merchants in advance to foreign correspondents, and a note having been fraudulently obtained, had been stopped at the bank by the person defrauded. The plaintiffs were innocent of the fraud, and had received the note to be applied in diminution of an existing debt; there was evidence to connect the foreign correspondents with the fraud, and the Court of King's Bench held that the plaintiffs had given no consideration, and were mere agents to receive the amount of the note from the bank, and, therefore, as Mr. Justice Buller expressed it, they must stand or fall by the title of the foreign correspondents. But these cases both differ from the case of a party who gives a check to a banker to discharge a debt due from him to a third party, who was likewise indebted to the banker, and who evidently intended that the payment made by his debtor to the banker should be applied by the banker in reduction of his debt.

"It is of course improbable that the defendant will, with the opinions of so many of the judges against him, and Chief Justice Coleridge only in his favor, take the case to the House of Lords; and it is of course to be regretted that there was not an unanimity of opinion in the Exchequer Chamber, as the case will be considered a leading one on the subject concerning which it treats. It would, however, appear that the present decision is in accordance with the views of most mercantile men."



Trial by jury: directors of railroad corporation: action by people. This action was brought in the name of the people to determine which of two sets of claimants, both claiming to have been duly elected directors of the A. & S. R. R. Co., was in fact duly elected; and in case neither set was found entitled to the offices, then to provide for a new election and for other causes of action of an equitable nature. Upon the trial, after reading the pleadings, plaintiffs rested. Some of the defendants having admitted in their answer that they were acting as the officers whose titles were in dispute, thereupon requested a trial by jury, which was denied. Held, error; that the right to such a trial was not waived by delay in making the application until plaintiff rested; that it was then proper to raise the question and to object to a trial by the court, as said defendants had not until then the means of knowing that plaintiffs intended to rely upon the legal claim, and as upon the issue made thereon plaintiffs had the right to require said defendants to prove their title and authority to act. The action was one of legal, not equitable cognizance, and the issues were strictly legal, and the trial of such issues by a jury is the constitutional right of the parties. If other equitable causes of an action are united with such a cause of action, all must be tried by a jury, unless a jury trial is waived.

Whether a party can be precluded of his right to a trial by jury in other ways than those pointed out by section 266 of the Code, i. e., by failing to appear upon the trial, by written consent filed, or oral consent entered on the minutes, unless it be by failing to object, quere.

One cannot be deprived of his constitutional right by a mere technicality.

Also held, that a civil action cannot be maintained in the name of the people of the State for the redress of private wrongs; these are remedial at the suit of the parties only. The people cannot intervene, except upon the assertion of a distinct right on the part of the public in respect to the subject-matter litigated. People v. A. & S. R. R. Co. et al. Opinion by Johnson, C.


Payment of deposits: pass-book: forged order.Plaintiff deposited money in defendants' bank, receiving a pass-book wherein the deposits were entered, which contained, among other printed rules and regulations, two declaring in substance that no depositor should be paid any part of his deposits without producing his pass-book, and that all payments made to persons producing the deposit-book should be deemed good and valid payments to the depositor. A person presented the book at the bank with a forged order, purporting to be signed by plaintiff, directing the payment of $60, which sum the defendant paid. In au action to recover the amount, held, that the rules were part of the contracts between the parties; that they were reasonable and free from legal objection, and that thereunder the defendant was at liberty to pay to the person presenting the book. No order was required, and whether the one presented was a forgery or not was immaterial, and that, in the absence of proof of bad faith or want of proper care and diligence on the part of defendant, plaintiff could not recover. Schoenwald v. Met. Savings Bank. Opinion by Reynolds, C.


Action for services and materials. This action was brought to recover for services performed for defendant and materials furnished at his request, and which he agreed to pay for. Before defendant answered he demanded and received a bill of particulars. The answer admitted that plaintiffs performed the work and furnished the materials for defendant as the complaint alleged, but denied that they were of the value specified. Defendant offered to prove on the trial that the work and materials charged had not been furnished to or rendered for him. This offer was rejected. Held (Earl, C., dissenting), no error; that the answer only put in issue the value of the services and materials. Van Dyke et al. v. Maguire. Opinions by Gray, C., and Earl, C.


Partnership: omission.-This action was brought upon a partnership settlement in writing between plaintiff and defendants, which is not controverted in the defendants' answer. They set up as a counterclaim, however, a fraudulent omission and concealment on the part of the plaintiff of items, in the settlement between the parties, which formed the basis of the agreement upon which the action was brought. The court refused to submit to the jury the question whether the omission was by mistake. Held, no error; that defendants were bound to establish the fraud.

Also held, that a cause of action, based on fraud in the execution of a written contract, is distinct from one founded on a mistake merely, and it is not competent upon the trial to substitute one for the other. Dudley v. Scranton et al. Opinion by Lott, Ch. C.


1. Act of 1863.-This action was brought to enforce a mechanic's lien. The notice of lien was filed under and as required by the act of 1851 (chap. 513, Laws of 1851), and the proceedings to enforce the lien were commenced before the taking effect of the act of 1863 (chap. 500, Laws of 1863). At the trial no evidence was offered on either side, and plaintiff moved to dismiss the complaint on the ground that the lien had not been continued from year to year in conformity with section 11 of the act of 1863, which section provides, that "liens shall in all cases cease after one year unless, by order of the court, the lien is continued," etc. Held (Dwight and Gray, CC., dissenting) that this section did not apply; that the lien continued until the rendition of judgment; that the act of 1863 has no retroactive operation; that it repealed the old act as to all liens subsequently created, but continued it in force as to existing liens. Fitzpatrick v. Boylan, Impl'd, etc. Opinions by Earl, C., and Dwight. C.

2. Special proceedings: notice of lien. This action was brought to foreclose a mechanic's lien commenced by D. against defendants under the mechanics' lien law for the city and county of New York (chap. 513, Laws of 1851, amended by chap. 404, Laws of 1855). On January 7, 1864, notice was served on the defendants to appear, and submit to an accounting. The parties appeared and the usual order to plead was entered. Before the complaint was served on the defendants, D. died, and plaintiff, as assignee of D., was substituted as plaintiff in this action. Held, that the proceeding was not an action within the meaning of the Code (§ 2), but was a special proceeding, and that section 111 of the Code, directing that "every action must be prosecuted in the name of the real party in inter

est," etc., did not apply to such proceedings, but that in case of an assignment by a lienor before the commencement thereof, they still might be prosecuted in his name for the benefit of the assignee. A personal judgment against a party personally liable for the amount found due is proper under said act.

The filing of a notice of lien, which has ceased to be operative for want of enforcement, does not bar the enforcement of one subsequently filed, and does not in any way affect it. Hallahan v. Herbert et al. Opinion by Lott, Ch. C.



CONVENTION of the Justices of the General Term of the various departments of the Supreme Court of this State was held June 1, 1875, in the Senate Chamber of the Capitol, for the purpose of electing a Supreme Court Reporter, and transacting such other business as might seem necessary. The following Justices were present: Noah Davis and John R. Brady, of New York, Charles Daniels, of Buffalo; Joseph Mullin, of Watertown; Douglas Boardman, of Ithaca; Abram D.Tappen, of Fordham; Augustus Bockes, of Saratoga; Wm. L. Learned, of Albany; E. D. Smith, of Rochester; and Jasper W. Gilbert, of Brooklyn. Those absent were: Joseph F. Barnard, of Poughkeepsie, and John L. Talcott, of Buffalo. On motion of Justice Learned, Justice Mullin was called to the chair, and on motion of Justice Gilbert, Justice Brady acted as Secretary. A ballot for Reporter of the Supreme Court being taken, it stood: Marcus T. Hun, 6; Isaac Grant Thompson, 4. On motion of Justice Learned, Marcus T. Hun was declared Reporter of the Supreme Court. Mr. Justice Learned offered the following, which were unanimously adopted:

Resolved, That when any special meeting of the Judges of the Supreme Court designated to hold the General Terms thereof shall be held under the act entitled "An act to appoint a reporter of the decisions of the Supreme Court," passed April 23, 1875, the same shall be held at the capítol, in the city of Albany, or at any other place to which such meeting may be adjourned.

Resolved, That such special meeting may be called by the presiding justice of any department, by written notice served on each of said justices, either personally or by mail, at least two weeks before the day of meeting.

Resolved, That such special meeting may be called for the purpose of filling a vacancy, or for the purpose of removing the reporter for good cause shown; and that the objects of the meeting and the time and place thereof shall be stated in the notice thereof; and that, whenever the object of the meeting shall be to consider the removal of the reporter, a copy of the notice and of the specifications of the charges or grounds on which such removal is brought shall be served on the reporter at least ten days before the meeting of the judges, and such order shall be taken thereon, if such meeting of the judges shall then direct.

Mr. Justice Learned offered the following:

Resolved, That the reporter be requested to cite the volume and page of authorities in the body of the printed opinion instead of citing them at the foot of the page.

The resolution was unanimously adopted.

Mr. Justice Daniels offered the following:

Resolved, That the legislature of this State be and it is hereby respectfully requested so to amend chapter 267 of the Laws of 1859, chapter 260 of the Laws of 1870, and chapter 486 of the Laws of 1871, as to entitle the graduates from the law schools or colleges mentioned in said acts to only an allowance of an equal period

for the time spent in attendance at either of such schools or colleges upon the terms of clerkship prescribed for other students at law by the Court of Appeals for admission to the bar of the several courts of this State, requiring such graduates, before they shall be entitled to apply for admission to practice as attorneys and counselors, to complete the term of clerkship prescribed for by said rules, and to be examined in the same manner as other applicants are required to be examined by said rules.

Resolved, That the preceding resolution, or a copy thereof, attested by the president and secretary of this convention, be transmitted to the presiding officers of the senate and assembly at the next session of the legislature of this State.

Mr. Justice Daniels also offered the following:

Resolved, That the justices of the general term of each judicial department shall deliver copies of their opinions to the reporter of the Supreme Court, and to counsel applying for the same, and that the copies delivered to the reporter be retained by him and delivered only to his successor in office, and that such only of said opinions be reported at large as the public interest may appear to require, and that the same be exclusively reported in the series of reports compiled by him and published under his authority; and in citing or referring to decided cases, counsel be and they are hereby respectfully requested to cite and refer to them only as they may be found in the said series of reports.

Resolved, That counsel receiving copies of such opinions be and they hereby are requested to withhold the same from publication, to the end that only such of them may be reported as shall be published under the sanction and authority of the Supreme Court reporter.

These resolutions were unanimously adopted.

Mr. Justice Tappen moved that the secretary be directed to file a certified copy of the proceedings of the convention, signed by all the justices, with the Secretary of State. The motion was adopted, and the convention then adjourned.



Sufficiency of description of grantor: "accountant." -The grantor of a bill of sale was described in the affidavit filed under the bills of sale act, as an "accountant." He was in fact a clerk in the accountant's department at the Euston Square Station of the London and Northwestern Railway Company, but in his leisure time was occasionally employed to balance tradesmen's books. Held (affirming the decision of the court below), an insufficient description. Larchin v. The Northwestern Deposit Bank, L. R. 10 Ex. (Ex. Ch.) 64.


Recovery of costs of litigation: separate contracts: proximate cause.-H. having contracted with the plaintiffs, who were carriers, for the carriage of two pictures from London to Paris, the plaintiffs contracted with the defendants for the carriage by the defendants of the pictures over a part of the distance. The pictures were damaged on the journey by the defendants' negligence. H. thereupon brought an action against the plaintiffs, who gave notice of it to the defendants, and requested them to defend it. The defendants refused, and told the plaintiffs to take their own course. The plaintiffs defended the action brought against them by H. without success, and then brought an action against the defendants to recover not only the damages found by the jury to have been sustained by H., but also the costs of the unsuccessful defense. The defendants paid the damages into court, and disputed their liability as to the costs. Held (reversing

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