4. That all the jurisdiction our courts exercise in such cases results from the powers conferred by our constitution and laws, and not by any means from acts of Congress. And the same is true of the federal courts, as they derive all of their powers from the Federal Constitution.

MARRIAGE. SUPREME Court.

Port v. Port. - In this case the parties

had apparently acted as man and wife, and Silas Port had termed the defendant his wife; but the evidence showed that the female never considered that

they were married. She was aware that they were living together “in a state of fornication," and her relatives had threatened to punish the man for it. The court held that the common-law theory of a marriage per verba de futuro cum copula is based on the idea that the present consent is founded on the future contract; but this may always be rebutted by evidence, and, as in the present case, the consent may be unconditional, and no contract arises.

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PROXIMATE CAUSE. SUPREME COURT. Toledo, Wabash, and Western R. W. Co. v. Jacob Muthersbaugh. It appeared that by the negligence of the servants of the railroad, the sparks from an engine set fire to a warehouse near its track and destroyed it. There being a high wind at the time, sparks from the burning warehouse set fire to the stable of the appellee and destroyed it, together with two horses. The stable was one hundred and one rods from the warehouse, with no intervening buildings. When it was burned there was a high wind blowing toward the stable. Held, that the burning of the appellee's stable was not the natural and proximate consequence of the burning of the warehouse.

The court added:

"It is said by appellee that this was a question of fact for the jury, and that they have found upon that point for the plaintiff. This is true; and although we reluctantly disturb the finding of a jury upon a question of fact, yet it is our duty, and the uniform practice of the court, to do so when there is no evidence to sustain the verdict. Such is the condition of this record; and, as we fail to see any ground upon which a recovery can be had in favor of the plaintiff, the judgment will be reversed."

DESTRUCTION OF RECORDS. - ·Shannon et al., Executors v. James Hall et al. — In this case the court held, according to the Legal News, that where a mortgage was placed on record, the records afterwards were destroyed by fire, and, years after the records were destroyed, a person, without any notice of the mortgage, purchased the premises, he took them subject to the mortgage.

The fact that the records were destroyed by fire, and an act of the General Assembly passed to restore them, imposed no obligation upon the mortgagee to incur the trouble and expense of the restoration. In the view of the court, unless it was his duty to observe this law, and by failing to do so, he was guilty of a fraud upon the community, or committed gross negligence, which is its equivalent, he must be allowed to stand securely on his act of recording.

Nor could the lapse of time since the execution of the note and mortgage (1845) affect the right of complainant, as the note had been kept alive by the payment of interest up to Nov. 4, 1865.

The court also said that Hall's case had much of equity in it, as the mortgagee knew that H. held the land under claim of a clear title, and yet made no statement of his right. But, on the other hand, Hall, in buying of the mortgagor, seemed to have made no inquiries as to the state of the title. The mortgagee's silence could not prejudice his rights.

KENTUCKY.

LIFE INSURANCE. FORFEiture. St. Louis Mutual Life Insurance Co. v. Amanda L. Grigsby. — This very interesting life-insurance case is reported in Central Law Journal for February 19, with instructive comments. The husband insured his life in 1869 for $10,000, and paid part cash and part notes. He made default in 1870 on the premium then due; and, agreeably to the terms of his policy, he then took a reduced policy for $3,000, paying a proportionate cash premium. He also gave a new premium note, but failed to pay the interest thereon in August, 1871, and died Jan. 2, 1872. The office claimed that the policy was forfeited under a provision therein, which is as follows: :

"Second. If the said insured shall fail to pay annually, in advance, the interest on any unpaid notes or loans which may be owing by said insured to said company, on account of any of the above-mentioned annual premiums, at the office of the company, in the city of St. Louis, or to agents when they produce the receipts signed by the president or secretary, then, and in every such case, the said company shall not be liable for the payment of the sum insured, or any part thereof, and this policy shall cease and determine."

The court also found the following facts :

This note was for $817.41; the amount of interest due on the 16th of August, 1871, was $49.04. The proof shows that appellee was then entitled to a dividend amounting to $42.07. The application of this dividend to the payment of the interest would have reduced it to $6.97.

The court took the view that there was a difference between the payment of annual premiums and the payment of the interest on the same when they were converted into notes. It was acknowledged as settled by other decisions, that a policy might become void through failure to pay the stipulated annual premium, or to pay a note given as such premium. But as to a default to pay interest on such a note, the case was different. In fact, it seemed that by the policy in this case, a default in paying premiums was expressly agreed not to work a forfeiture, but only a certain reduction in the amount assured. In the next section, it was claimed that a failure to pay the interest should do what the failure to pay the principal did not do, viz., to create a forfeiture. But it was held that as the collaterals pledged by an ordinary debtor to secure the payment of his debt would not be forfeited to the company by the non-payment of interest, in exact accordance with the terms of the loan, notwithstanding his agreement that they should be so forfeited, there was no reason why the company should be allowed to forfeit the paid-up policy of insurance, hypothecated to secure the ultimate payment of the "note or loan " owing by Grigsby. Say the court : "The failure to pay the interest due on

the note or loan is a defect which admits of a certain compensation. The insurance company holds, and has always held, ample security. We have already seen that the reasons that forbid courts of equity from interposing to relieve against forfeitures for the non-payment of premiums, or notes representing portions of cash premiums, do not apply in cases like this. We are satisfied, from the nature of the contract, that the forfeiture was intended as a penalty to secure, not the ultimate, but the prompt payment of the interest to become due; and as the default is only in time, and as the company can be given all that it stipulated to receive, a case is presented in which relief can and ought to be afforded."

The chancellor ordered the company to pay the amount of the commuted policy, less the note due from Grigsby, and its accrued interest up to the date of the judgment, and this judgment was affirmed.

The Central Law Journal, in its comments, speaks of the equity of the case, the amount owing being only $6.97, for which the forfeit was $3,000. As to the point here taken by the Kentucky Court of Appeals, it adds :

"The forfeiture here depended on the non-payment, not of the note itself, but of the interest on it. But this distinction was ignored, and a directly opposite result was reached by the Supreme Court of Vermont, in a case where the agreement that failure to pay interest on the premium note should work a forfeiture was indorsed on the margin, instead of being included in the body of the policy; and the agreement was enforced, and the policy was avoided, on the ground that the interest upon the notes becomes practically a premium upon the policy, payable annually in advance.' Patch v. Phoenix Mutual Life Co., 44 Vt. 481. This and the principal case (Robert v. New England Mutual Life Ins. Co., 1 Disney, 355, 2 Disney, 106) appear to be the only ones reported, in which the question was the non-payment of interest. But when it is conceded that the giving and acceptance of a premium note constitute a payment of the premium, and a consummation of the contract, and of this there is probably now no question (Bliss on Life Insurance, p. 735; May on Insurance, § 345; Hasbrook's Case and McAllister's Case, supra; Maury v. Home Ins. Co., 9 R. I.; Baker v. Union Life Co., 6 Abb. Pr. R. N. s. 144; Hodsdon v. Guardian Life Co., 97 Mass. 144), the loan thus granted by the insurer seems to be a debt quite independent of, and separate from, the contract of insurance, and fully within the rulings of the principal case, as to the interest on a note."

MARYLAND.

PRINCIPAL AND AGENT. SUPERIOR COURT.

Benninghaus v. B. & 0. R.R. Co. This case resulted in favor of the plaintiffs. The railroad company, with others, formed the Continental Line of freight transporters, each company guaranteeing the through bill of lading. One McClosky, grain dealer at Owanico, Ill., was agent of the line there. He sent to the plaintiff bills of lading for ten car-loads of grain, and drew against them as his property. The plaintiffs, after paying the drafts, seem to have received no grain, and sued the road for non-delivery. It was conceded that no such cars were loaded or sent; but the verdict was that the railroad was liable for the value of such goods as the bills of lading described.

MASSACHUSETTS.

RATE OF INTEREST AFTER MATURITY OF A NOTE. Daniel Brannan v. John C. Hursell and Horace Humphrey. This was an action of contract on a promissory note for $1500, signed by the defendant Hursell, and indorsed by the defendant Humphrey. The note was dated March 14, 1870, and was payable four months after the date, with interest at ten per cent. At the trial in the court below, the presiding judge ruled, among other things, that, if the plaintiff was entitled to recover, it was for the amount of the note and interest at the rate of ten per cent from the date of the note to the time of the verdict. A verdict was taken for the plaintiffs, and the defendant Humphrey excepted to this and other rulings. The Supreme Court have overruled the exceptions. Upon the question of interest Judge Morton in his opinion says:

"One point of practical importance as to the amount of Humphrey's liability remains to be considered. The rate of interest specified in the note is ten per cent, and the plaintiff claims interest at that rate since the maturity of the note. We are of opinion that he is entitled to receive it. The legal rate of interest is six per cent in the absence of any agreement for a different rate; but it is lawful for parties to contract to pay and receive a different rate; and where the agreement to pay a greater rate is in writing, it can be recovered by action, statutes 1867, chapter 56. In the case at bar, the defendants have agreed in writing that the rate of interest for the use of the plaintiff's money shall be ten per cent. The plaintiff recovers interest both before and after the note matures, by virtue of the contract, as an incident or part of the debt, and is entitled to the rate fixed by the contract."

SUNDAY LAW. - Michael Connolly v. City of Boston. - This was a suit to recover for personal injuries. It appears that the plaintiff was walking over Dover Street about nine o'clock on Sunday evening of Oct. 6, 1872; that the draw of the bridge had been swung off; and the plaintiff, who says that there were no barriers, walked overboard, and received severe and permanent injuries. At the trial in the Superior Court, he testified that he was going from South Boston to Way Street, on Sunday night, to his boss, to see if he could get a chance to work by day; that he had been working by night, and was going to work on Monday night; that he was seeing if he could get work; that he had been shovelling in Cambridge; that he wanted to work by day instead of by night, because he could sleep better; that it was on account of sleep that he wanted to work by day.

The case was then stopped by the presiding judge, who ruled that inasmuch as the plaintiff was passing over the highway on Sunday night, and not for any work of necessity or charity, he could not recover. The plaintiff alleged exceptions to the ruling, which have been overruled by the Supreme Court on the ground that "the plaintiff was not travelling from necessity or charity, but on secular business." 1

1 The following case in the Superior Court for Suffolk is worth noting in connection with the above. Such actual cases are better than a hundred dissertations on the folly of the existing law. If there is no necessity for a man to travel on Sunday to procure labor for the

FRAUDULENT DISCHARGE IN BANKRUPTCY NOT IMPEACHABLE.

N. Black v. William A. Blazo. - At the trial of this case in the Superior Court, a discharge in bankruptcy was pleaded in answer, and the court ruled that a discharge in bankruptcy could not be impeached in that court for any of the reasons set forth. A verdict was thereupon ordered for the defendant. The Supreme Court have now ordered judgment on the verdict, on the ground that "the remedy, by application to the District Court of the United States, given by the thirty-fourth section of the Bankrupt Act, is exclusive of any other mode of impeaching the validity of a discharge."

FRAUD. Comins v. Coe et al. - In our notice of Matthews v. The Massachusetts National Bank, in our October number, we gave an account of the doings of the defendant, Coe. Another of his transactions has been brought into court, with the following result. This was a bill in equity, brought by the complainant to compel the retransfer to him of one hundred shares in the capital stock of the Cary Improvement Company, sold by him to the respondent, Coe, who gave Comins a check for $1337.50 on the Massachusetts Bank. The check was given the day Coe's forgeries were detected, but before he was aware of the discovery, and was presented for payment the next morning, when the bank refused to pay it, having received notice of Coe's forgeries. The court, at the hearing, found that Coe, when he purchased the shares of the complainant, had no intent to defraud him, and that when he gave the check for $1337.50, he supposed that it would be paid, having funds enough

ensuing week, as the French judge told the criminal, there is no necessity of his living any

way.

Christopher Smith v. Boston and Maine Railroad Company.—Action of tort to recover for injuries. The plaintiff was passing along Austin Street, in Charlestown, one Sunday afternoon in August last, when he was struck by a gate stretched across the railroad track, the gate having been struck by one of the defendant's engines. It appeared that the plaintiff was a machinist, occupied with his work during all the week, residing at the time in Boston; that he had engaged rooms in Charlestown, and went over to see them on Sunday afternoon, intending to occupy them on Monday; and that as he was returning the accident happened, to recover for which this action was brought. The judge ruled that inasmuch as the plaintiff was travelling on Sunday, not for necessity or charity, he could not recover. A formal verdict was taken for the defendant, and the case is to be reported to the Supreme Court for the de ermination of the question of law.

See also the following case in the same court:

Patrick McCarthy et ux. v. William Soule. - This is an action to recover damages for injuries to the female plaintiff. The defendant was the occupant of a planing-mill on Albany Street. Upon the street there is an iron fence with an opening for pulling in timber. Sometimes this was closed by gates and others by a bar. The accident occurred on Sunday. The plaintiffs were going to visit a sister of the female plaintiff, accompanied by her husband and children; that when opposite this place there was a large number of persons about there crowding each other. The plaintiff placed her hand upon this bar to support herself, when it gave way, and she fell into the opening and some ten feet down, to her great injury. The defendant claims that she was not travelling upon a work of necessity or charity, and therefore cannot recover.

In a recent case in Pennsylvania, the court held that coaling a cattle-train on Sunday was a work of charity, so as to enable it to reach a station where food or water could be obtained for the animals.