by the next of kin against a railroad company for negligently causing death. MeIntyre v. N.Y. Central R.R. Co., 37 N.Y. 287.

3. In an action against a railroad company for injuring the plaintiff by negligence, declarations of the engineer by whose negligence the plaintiff was injured, made at the time of the injury, are admissible as part of the res gesta.-Hanover R.R. Co. v. Coyle, 55 Pa. 396.

See CARRIER, 4, 7, 8, 10, 12; CONFEDERATE MONEY, 3, 4; CONFESSION; COURTS OF STATES; CUSTOM; DAMAGES, 2, 4; DEATH, 2; DIVORCE, 2; ESTOPPEL, 1; FRAUD; HUSBAND AND WIFE, 1; INSURANCE, 2, 5; PAYMENT; PRIVILEGED COMMUNICATION; RAPE, 3; TELEGRAPH, 2; WILL, 1, 3; WITNESS, 2. - See LEGAL TENDER, 2.

EXCHANGE.

Commission merchants receiving goods for sale, and selling them, do not own the proceeds, but only hold the same subject to their lien as factors. Consequently, if they deposit such proceeds on their own general account, use the same in their general business, and fail to pay over the same on demand, they are liable to arrest, under the New York Code, as having misapplied another's money, received by them in a fiduciary capacity (MARVIN, J., dissenting).— Duguid v. Edwards, 50 Barb. 288.

1. When a church was erected, a niche was left in the walls for the reception of an organ. An organ was placed there, on a floor built to receive it, and was fastened to the same by nails driven through the outer case of the organ. The wall in rear of the organ was unfinished. Held, that, on a sale of the realty, the organ passed as a fixture. Rogers v. Crow, 40 Mo. 91.

2. Defendant conveyed a house and land to plaintiff by warranty deed. Said house was supplied with water by a pipe leading from a branch of the main pipe in the highway, across land of a third party, under an oral license from the latter. Defendant had a right to all the water drawn from said branch, on payment of an annual compensation. Held, that the whole of said pipe passed to plaintiff, as appurtenant to the house, but not a right to draw water from said branch.Philbrick v. Ewing, 97 Mass. 133.

FOREIGN ATTACHMENT.-See FOREIGN JUDGMENT.

FOREIGN JUDGMENT.

An action in this State, in which the defendant has appeared, is not barred by his payment of an execution against him as garnishee of the plaintiff here, ob

tained on his voluntary default, in a subsequent action in another State. -Whipple v. Robbins, 97 Mass. 107.

FORGERY.

In an information for forgery of checks, it is not necessary to show that the forged checks and their signatures resemble the genuine sufficiently to deceive persons of ordinary business observation. A bare possibility of fraud is enough. State v. Dennett, 19 La. An. 395.

The presumption of fraud arising in case of a sale of chattels, not accompanied by an immediate delivery, may be rebutted.-Bullis v. Borden, 21 Wis. 136; Mayer v. Clark, 40 Ala. 259.

See CHATTEL MORTGAGE, 3; RAPE, 3; SALE, 4.

FRAUDS, STATUTE OF.

1. A promise to pay the debt of another, in consideration of the release to the debtor of security held by the creditor, is within the Statute of Frauds.- Corkins v. Collins, 16 Mich. 478.

2. A contract to make brick at a spot, and out of clay, selected by the purchaser, is not a contract for the sale of chattels, within the Statute of Frauds.O'Neil v. N. Y. & S. P. Mining Co., 3 Nev. 141.

FREIGHT COMPANY.-See EMINENT DOMAIN, 1.

GARNISHEE. -See FOREIGN JUDGMENT.

1. The fact that the plaintiff, a feme covert, had for some years lived apart from her husband, who did nothing for her support, is evidence from which a jury may infer that the contract sued upon was made by her on her separate account. — Burke v. Cole, 97 Mass. 113.

2. A married woman may charge her separate estate by joining with her husband, who is also her trustee, in a deed with covenants of warranty. - Gunter v. Williams, 40 Ala. 561.

3. Under the statutes of New York, a married woman's separate estate is charged by her agreement to pay the price of real estate purchased by her for her separate property. Ballin v. Dillaye, 37 N.Y. 35. Judgment of Supreme Court reversed. See Estabrook v. Earl, 97 Mass. 302.

4. In an action by a married woman to recover damages for a personal injury, she cannot recover the physician's and nurse's bills, in damages, unless she has

charged her separate property therewith, as otherwise her husband only is liable for those expenses. - Moody v. Osgood, 50 Barb. 628.

See CONDITION; DEATH, 1; WITNESS, 1.

1. "Selling short," i.e., a nominal sale of stock at a certain price, at so many days from date, with no intent to transfer the stock, but only that the difference between the price named and the value of the stock on the day named should be paid, by the purchaser if the price named is greater, by the seller if it is less: held, to be void as a gambling contract. So are notes given for margins in the same transaction,- Brua's Appeal, 55 Pa. 294.

2. Contracts of insurance on freight made with a steamboat which, contrary to a prohibition by act of Congress, is navigating the waters of the United States, without having obtained inspection papers, are void. — Benton v. Hope, 19 La.

An. 463.

3. A policy of insurance against loss by fire on intoxicating liquors, kept by the assured for sale, in violation of law, is void as to him. -Kelly v. Home Ins. Co., 97 Mass. 288.

See CONFEDERACY; CONFEDERATE MONEY, 1, 3; CONTRACT, 2; SLAVE, 1, 3; SUNDAY, 4.

The right of a wife to waive a provision in lieu of dower, and to be endowed, is within the covenant against incumbrances in a conveyance, by the husband, of land acquired after making such provision, and during her life. - Bigelow v. Hubbard, 97 Mass. 195.

See SPECIFIC PERFORMANCE, 2; TAX, 8.

INDICTMENT.-See AUTREFOIS ACQUIT; MURDER, 1; RAPE, 1; VARIANCE. INFANT.-See MASTER AND SERVANT, 1. INJUNCTION.See TAX, 6; TRADE MARK.

1. In order to avoid a policy of insurance, made and accepted on condition that it should be forfeited on failure by the assured to pay, when due, a premium note given by him to the insurers, the burden is on the latter to prove non-payment. If an agent receives payment of such a note when over-due, and accounts for the same to the insurers, and they receive it without inquiry, they thereby waive the forfeiture, although the agent had no authority to do so.. Hodsdon v. Guardian Life Ins. Co., 97 Mass. 144.

2. A policy contained a condition, that the insurance should not be considered as binding until payment of the premium. Held, that parol evidence that the premiums were not generally paid at the time the policies were delivered was admissible to show a customary waiver of the condition; and that, no intimation

having been given to the plaintiff that he would form an exception to said custom, the policy was binding from its date. - Pino v. Merchants' Mutual Ins. Co., 19 La. An. 214.

3. A policy of insurance, assuming the perils of men-of-war, pirates, rovers, arrests, restraints, detainments, &c., contained this clause in the margin: "Warranted free from loss or expense arising from capture, seizure, or detention, or the consequences of any attempt thereat." Held, that said clause was a warranty by the insured, controlling the other part of the policy, and that a capture by authority of the Confederate States, during the war, was within the same, but not a capture by a mob.

April 21, 1861, a vessel, lying at the wharf in Norfolk, Virginia, was seized by a body of men professing to act by authority of the State of Virginia, towed into the channel, and sunk, to prevent the ingress or egress of vessels of war, amid great confusion and excitement. No relief could be got from the courts or the military, and the vessel was lost. Held, that, whether this was an act of war by the State of Virginia, or the act of a mob, should have been left to the jury. That the Virginia Ordinance of Secession, of April 17, 1861, was evidence on the point, and that the courts would take judicial notice of the civil war and the acts which created it. Decision of Supreme Court reversed (DAVIES, C.J., and WRIGHT, J., dissenting). — Swinnerton v. Columbian Ins. Co., 37 N.Y. 174. See Marcy v. Merchants' Mut. Ins. Co., 19 La. An. 388; Mauran v. Ins. Co., 6 Wallace, 1.

4. Insurers are liable on a fire insurance policy for damages done to goods by water used in saving them from fire. Geisek v. Crescent Mutual Ins. Co., 19 La. An. 297.

66

5. In an action upon a life insurance policy, where the question is, whether the death of deceased was accidental, or was intentionally brought about by himself, it is not competent to show that he was an ́infidel” or an “atheist," as evidence that he would therefore have been more likely to commit suicide. —Gibson v. American Mut. Life Ins. Co., 37 N.Y. 580.

6. Upon a policy of life insurance, payable to the assured, his executors, administrators, and assigns, for the use of his wife and children, and assigned by him and his wife for valuable consideration, with the assent of the insurers, the assignee may sue at law, on the death of the assured after his wife, but living a child, notwithstanding the Massachusetts statutes on the subject. — Burroughs v. State Mutual Life Ass. Co. of W., 97 Mass. 359.

7. A life insurance policy was payable to the party insured, or, in case of his death within fifteen years, to his "heirs or representatives." He died within that time, and his heir sued. Held, that the suit was well brought by her, and not by the executors. Loos v. John Hancock Mut. L. Ins. Co., 41 Mo. 538. See ILLEGAL CONTRACT, 2, 3; LEGAL TENDER, 3.

INTEREST.

Interest is allowed upon a penalty of a bond when it is necessary to protect that which the penalty was given to secure.

See STAMP, 5.

INTERNAL REVENUE.

- Weikel v. Long, 55 Pa. 238.

See STAMP; TAX, 6.

INVESTMENT.-See TRUST, 1.

JEW.

An ordinance prohibiting the sale of goods on Sunday does not violate a provision in a State Constitution, that no person shall, "upon any pretence whatever, be hurt, molested, or restrained, in his religious sentiments or persuasions," when applied to pious Jews who wish to traffic on that day. - Frolickstein v. Mayor of Mobile, 40 Ala. 725.

JOINT PROMISOR.

One joint debtor cannot execute an assignment of joint property without the authority of the other. Judgment of Supreme Court reversed. - Gates v. Andrews, 37 N.Y. 657.

See CONFLICT OF LAWS, 2.

JUDGMENT. See ESTOPPEL, 1.

JUDICIAL ACT.

Supervisors, in examining, settling, and allowing accounts chargeable to the county, act judicially, and are not, it seems, liable to a civil action in that behalf; but they are liable to indictment for an abuse or fraudulent excess of their power. -People v. Stocking, 50 Barb. 573.

See ASSUMPSIT, 2. JURISDICTION.

- See BANKRUPT LAW; CONFLICT OF FEDERAL AND STATE AUTHORITY, 2, 3; LEGISLATURE; PROBATE; TAX, 6.

JURY.

1. Under the first section of the Act of Congress of June 17, 1862, any party to a case, civil or criminal, may challenge a grand or petit juror for the causes specified.

Grand jurors may be challenged, for cause, by one who, though still at large, has been warned by the Government prosecuting officers that he will be indicted. The accused party has no right to submit evidence on his behalf to the grand jury (U.S. Dist. Ct.) - United States v. Blodgett, 35 Ga. 336.

2. A jury to try a felony must consist of twelve men. The prisoner cannot consent that one of them be withdrawn. Otherwise, it seems, of misdemeanors. -State v. Mansfield, 41 Mo. 470.

3. In a trial for murder, a new trial was moved for on the ground that one of the jurors was an alien. This was not known to the prisoner or his counsel until after verdict, and the juror had not been challenged, although the prisoner's challenges had not been exhausted. A new trial was granted. It seems that the prisoner could not have waived his rights, even had he known the facts. - Hill v. People, 16 Mich. 351. Same case more fully stated, ante, 2 Am. Law Rev. 574. See Jeffries v. State, 40 Ala. 387,

LANDLORD AND TENANT.-See TENANT AT WILL.

LARCENY.

A. agreed to lend B. a sum of money, and handed him a larger sum to count in A.'s presence, and take from it the proper amount. B. refused to return any of it, and carried it all off. Held, that this was not embezzlement, but larceny. -Commonwealth v. O'Malley, 97 Mass. 584.

See EMBEZZLEMENT.