him. The third section of chapter 224, laws of 1848, as amended in 1850, chapter 245, provides that "it shall not be lawful for the reporter, or any other person within this state, to secure or obtain any copyright for said reports of the judicial decisions of the court of appeals." The copyright of any notes or references made by the state reporter to any of said reports shall be vested in the secretary of state for the benefit of the people of this state. Laws 1850, chapter 245. And yet Mr. Banks, in direct violation of this statute, procured the copyright to 3 Hand. in the name and for the benefit of his firm, and to the exclusion of the people.

This brief review of Mr. Banks' connection with the publication of the court of appeals reports may serve to indicate the justness of his claim to a legislative extension of his contract. Having grossly violated that contract in every essential particular, he now asks and secures its extension. Were his claim ever so just, the manner in which the necessary legislation has been smuggled through would be a sufficient condemnation. The whole thing is a fraud on its face, and the secretary of state ought not to make himself a party to it by giving his sanction to the extension.

CURRENT TOPICS.

The supreme court of Pennsylvania, in the case of Schuylkill County v. Copley, has re-affirmed the doctrine of Thoroughgood's Case, 2 Rep. 9 b., that, if an illiterate man have a deed falsely stated or read over to him and he afterward execute and deliver it, it is not his deed, nor is he liable thereon. In the Pennsylvania | case, the defendant, an illiterate person, executed a bond as surety for a collector of taxes, upon the false representation that it was a petition, and the court held that this fact was a defense to an action on the deed, even as against an obligee who had no notice of the fraud. The ratio decidendi was the same as that applied in the two cases published by us on page 3 of this volume, and holding that a bill or promissory note obtained by similar fraud was not valid even in the hands of a bona fide holder for value. Of course these cases are clearly distinguishable from a case where a party has been induced, by a misstatement of facts, to sign an instrument the contents of which he knows. In such case it is his deed and he may be liable to an innocent holder; but in the case in question the instrument signed is not his deed, and no liability attaches.

"We have to condole with an American contemporary who for four weeks has been burnt out of existence. We believe our readers have derived some edification and amusement from extracts reprinted by us from the ALBANY LAW JOURNAL. Owing to a great fire on the premises of its printers, four numbers have been lost to the world. During its suppression it appears to have been in very select society, for the first spark of humor which enlightens its resurrection is contained in an expression of amazement at our reference to the fact that Vice-Chancellor WICKENS was the ATTORNEY-GENERAL'S 'Devil in Equity.' Says our re-animated contemporary, 'Let us hope that the new VICE-CHANCELLOR will not find his tail in the way of his protracted sittings.' We have admired some of the wit of the ALBANY LAW JOURNAL before its temporary extinction, but if the above quotation is a specimen of the humor of its new existence, would it not be expedient to consider the advantage to be derived from encouraging fires on the premises of the printer?"

We cut the above from the London Law Times. Let not our neighbor take our pleasantry amiss. Let him cultivate a more amiable habit of mind. Otherwise we

fear, from the savageness of the foregoing, that he may be led to the commission of some reckless act that will consign him to "premises" where the fire needs no "encouragement."

The necessity of eating thirty-six dinners seems to have proved a no more serious obstacle to admission to the English bar than was the sham examination heretofore required in this state, and the result is, according to a contemporary, that there are several times as many barristers as causes. An application was recently made to Mr. Justice Byles, under the debtors' act, the debtor being a barrister, and his lordship ordered payment to be made by monthly installments of £2. It was stated, on behalf of the debtor, that he could not pay that amount, as he had on the average only one brief in a twelvemonth. The learned judge, in the course of his remarks, stated that not one in twenty covered his outlay on entering the profession. Our contemporary proceeds to give the following description of legal matters in that country:

"Sound lawyers of acknowledged capacity and experience are unemployed, and this fact it is to which we would principally call the attention of undergraduates and men already in professions which they desire to leave. A livelihood is not to be got out of sessions, where there are on the average two counsel to one prisoner, nor out of circuits, save to the favored few, where there are frequently three times as many (on the home circuit we should say ten times as many) counsel as there are causes. London business is in the hands of a score of prominent men, but the cause lists are slowly dwindling to insignificant proportions. This is no exaggerated description of the present condition of the common-law bar, while in chancery, although business there is comparatively plentiful, progress is even more difficult without strong connection."

GENERAL TERM ABSTRACT.

NEW YORK COMMON PLEAS. OPINIONS DELIVERED APRIL AND MAY, 1871.

ATTACHMENT.

Partnership property. — Attachment under section 227 of the code, on the ground that Blath, one of the partners in a mercantile firm, had absconded or kept himself concealed with the books, vouchers and credits of the firm, with the purpose and intent of hindering and defrauding the creditors of the firm. The attachment was granted after the defendant Calm had appeared in the action.

The questions presented are, 1. Whether an attachment under section 227 of the code can be issued against the property of the copartnership when only one of the firm has absconded. And, 2. Whether such attachment can be issued in any event after one of the defendants has appeared in the action, except on notice according to section 414 of the code. Held, 1. That the attachment was properly issued against all the copartnership property. 2. That no provision of the code exists for an attachment upon notice as a provisional remedy. It may be issued at any time after the summons is issued, is always granted ex parte, and by the judge and not the court. The provisions of section 414 are not applicable, for the attachment under section 227 is not "an ordinary proceeding in the action," but an extraordinary and collateral proceeding.

The order appealed from affirmed. Schundt v. Calm & Blath. Opinion by J. F. Daly, J.

BAILMENT. See Sales.

BILLS OF LADING.

Appeal from judgment in favor of plaintiffs. - Comstock & Co., who were residents of Indianapolis, telegraphed to Col

ton & Sprague, commission merchants in Chicago, to purchase in Chicago, on account of Comstock & Co., certain tierces of lard, in controversy in this action, and to ship it to New York, consigned to Colgate & Co., the defendants, and to draw on Comstock & Co., at Indianapolis, at sight, with the bill of lading attached to the draft. Colton & Sprague did as requested, and on the 17th of August, 1867, shipped by the railroad 200 tierces consigned to the defendal.ts, and took from the railroad company the original bill of lading, and the duplicate, which acknowledged that the 200 tierces had been received from Colton & Sprague, to be transported, as consigned, to the defendants; and on the 19th of August, Colton & Sprague drew a draft for the amount of purchase and their commissions upon Comstock & Co., at sight, and attached to it the bill of lading for the 200 tierces, retaining the duplicate, which draft, with the original bill of lading, they sent through a bank at Chicago to the Indiana Banking Company, at Indianapolis, for collection, with instructions that if it was not paid to return the draft and bill of lading to them. The draft was received by the banking company on the 21st of August, and was on that day presented to Comstock & Co., and accepted by them but not paid, as that firm claimed three days' grace. In the mean time Colton & Sprague, fearing that they were about to lose the advances they had made on the lard, went to the railroad company on the day prior to the last day of grace and stopped the lard in transit, requesting the railroad company to stop and hold it until the draft was paid. The draft and bill of lading remained in possession of the banking company till the last day of grace, when one of the firm of Comstock & Co. was allowed by the banking company to take the bill of lading to obtain from the plaintiffs, the Indiana National Bank, by means of it, the money wherewith to pay the draft, which he did, and returned with a certified check on that bank for $5,985, and paid the draft, which was for $7,700.47, the banking company giving him credit for the amount of the certified check on the plaintiff's bank, the residue being made up of money which Comstock & Co. had on deposit in the banking company. Colton & Sprague, having advice the next day that the draft was paid, directed the railroad company to forward the 200 tierces, which were received by the defendant on the 28th of August, 1867, and they were sold by them upon the day they were received.

It appears that the plaintiff, the Indiana National Bank, let Comstock & Co. have the $5,985 upon a draft drawn by H. W. Comstock on the defendant for $6,000, indorsed by Comstock & Co., secured by an indorsement of the bill of lading and the delivery of it to the plaintiff as security. The draft, dated the 24th of August, 1867, with the bill of lading attached, was presented to the defendant for payment on the 29th of August, 1867, which was refused, and on the following day they were requested to pay the draft or deliver the goods, and replied that they had sold them and could not, therefore, deliver them. Held, that the direction given by Comstock & Co., that the bill of lading was to be attached to the draft to be drawn upon them at sight, shows that it was alike their understanding, as well as that of Colton & Sprague, that the title to the shipment was not to pass unless the draft was paid. No title to the lard was or could have been obtained by Comstock & Co. until the draft of Colton & Sprague was paid. Up to that time neither they nor their consignees, the defendants, could acquire any property in the lard, and whatever interest Comstock & Co. could acquire was by them immediately transferred to the bank to enable them to do the very act, the payment of the draft, by which alone they could obtain any right to the lard. When the goods are shipped or afloat, the bill of lading represents them, and the indorsement and the delivery of it has exactly the same effect as the delivery of the goods themselves, where the intention is to transfer thereby the title to the goods or to pledge them by way of security for advances or otherwise. Such was the case here. Comstock & Co. procured an advance from the plaintiffs upon the security of the bill of lading to enable them to pay for the lard, and but for which payment it wo ld never have been forwarded at all. The indorsement

and delivery of the bill of lading operated as a valid pledge of the lard to the bank, and entitled the bank to demand it of the consignees, the defendants, and, the defendants having sold it immediately upon the day of its arrival, the plaintiff could maintain an action for the proceeds of the sale as money received to its use. The defendants had no property in it except such as they might acquire as consignees, subject to the right, title and interest which the bank had acquired by the advance made and the delivery of the bill of lading to it, before the property came into the possession of the defendants. Having sold the lard they must account to the plaintiffs for the proceeds, and as the value of the lard was much more than the amount of the draft, the plaintiff was entitled to recover the amount of the draft and damages upon the protest. Meyerstein v. Barber, Eng. Law Rep. 2 C. P. 45; Bank of Rochester v. Jones, 4 Comst. 497, cases cited and reviewed. Judgment affirmed. Indiana National Bank v. Colgate et al. Opinion by Daly, C. J. CONSIDERATION. See Notes.

CONSIGNOR AND CONSIGNEE. See Bills of Lading. CASES CRITICISED (Peterson v. Walsh, 1 Daly). See Pilots. CONTRACTS.

1. When title passes in executory contract. - The plaintiffs, merchants in Boston, upon the order of one Curtis, a merchant in New York, sold to him ten tierces of salmon, the property in dispute, and shipped them to him-taking a receipt from the common carriers therefor, expressing that the goods were to be delivered to Curtis or his order, at the depot of the company in New York, on payment of freight. The sale was a "cash sale" in the regular course of business between the parties, and on the promise of the purchaser to pay on arrival. After the goods arrived in the city of New York, and while they were still on the wharf of the common carriers, they were attached and taken possession of by the defendant, under an attachment issued to him out of the New York supreme court, at the suit of a creditor of Curtis, for an amount exceeding the value of these goods, and on taking such possession he paid the freight from Boston. Curtis had failed in business in the time which intervened between his order and the arrival of the goods, and never attempted to exercise any control over them. Plaintiffs subsequently gave notice to defendant that the goods were their property, but he refused to deliver them up. Plaintiffs then brought suit against the defendant and obtained judgment for the value of the goods. Held, that the payment for the goods was to be made on their arrival in New York, and, while they remained in the custody of the common carrier and in course of transit, the purchaser having failed, the plaintiffs (vendors), not having been paid, were legally entitled to reclaim possession of the goods. No possession having been taken by the purchaser, no title could pass to any one claiming in his right, until payment on arrival was made. The right as owner existed in the plaintiffs when the goods were seized by defendant, and when notice was given him of their title to the goods. Judgment affirmed. Clark et al. v. Lynch, Sheriff, etc. Opinion by Robinson, J.

2. Stoppage in transitu. - The right of stoppage in transitu is not strictly one of lien, although frequently styled one of equitable lien, because, possession of the goods having been surrendered to the common carrier for delivery to the vendee, without condition or restriction in favor of the vendor, he is either actually or constructively agent for the latter. The right is not to retain but to regain possession, and where it exists and is asserted the title to the property and right to its possession is re-invested in the person in whom such right of stoppage exists. A purchaser of property in transitu, by his omission to take possession or to pay the purchase-money, defeats the rights of his creditor's attachment as against the vendor's right of stoppage in transitu and reclamation of the goods. The creditor can only make his process available by payment of the purchase. money. Ib.

3. Strict performance, when essential. — The plaintiff clairns to recover upon a certain contract between defendants

Tallman and Sullivan, for the plumbing work of certain houses. The work was to be done for $4,000, and paid for when done according to specifications. It appeared that Sullivan (the contractor) has not duly performed all the conditions of said contract. Held, that as by the terms of the contract performance is made the condition of payment, and plaintiff having admitted that the contract has not been fully performed, no liability exists on the part of defendant to pay. The payment of certain moneys by defendant, in advance, cannot be considered a waiver of strict performance. Judgment rendered below in favor of plaintiff, reversed. Carr v. Tallman. Opinion by Larremore, J.

4. Quantum meruit recoverable where defendant prevents fulfillment of contract. -In June, 1869, defendants employed Stewart and Doughty (the last named being an auctioneer) to foreclose a certain chattel mortgage. Defendant agreed to pay Doughty two and a half per cent, and Stewart five per cent, of the proceeds of the sale for their respective services. Doughty and Stewart entered upon the performance of their duties, and rendered service and incurred expense therein, but were prevented by defendant from fulfilling the agreement. Actions were brought to recover damages for the breach of said agreement by the defendant. Held, the testimony shows that the services of Doughty were reasonably worth $50, and those of Stewart $160. It is a general rule that the contract furnishes the standard of relief, but compensation will only be given for actual loss sustained. But when the party for whom the services is to be rendered willfully delays and embarrasses performance of the contract by the other party, who endeavors to complete it, and finally is compelled to abandon the work, the rule that the special contract must control the rate of compensation no longer prevails, and the party is entitled to the actual value of his services. There seems to be no reason why, in a case for damages for breach of contract, the performance of which the defendant has prevented, the plaintiff may not recover for services rendered. Such recovery is in reality but compensation in damages pro tanto, and if by his neglect or default defendant has precluded plaintiff from ascertaining the actual amount of damages under the contract, he should be held for services actually rendered, the amount of which he does not pretend to deny was in excess of damages fixed by the contract. Judgment affirmed. Doughty v. O'Donnell and Stewart v. Same. Opinion by Larremore, J.

5. What amounts to rescission.-In December, 1864, an agreement was entered into, and a memorandum made and signed, by the parties to this action, for the sale and purchase of 10,000 sides of oak wood leather, as follows: 3,000 sides to be delivered at once, and paid for in thirty days; the residue to be delivered as fast as finished, from 100 to 150 sides daily, commencing January 15, 1865.

After plaintiffs commenced the delivery of the 3,000 sides, defendant requested that 5,000 additional sides should be added to the contract, which was done, by plaintiff's writing the same on the memorandum of sale in presence of defendant. On the 24th of February, 1865, the deliveries of leather by plaintiffs amounted to 6,365 sides.

About this time, a misunderstanding arose as to the quality of the leather and times of delivery. No further deliveries were made until March 29th, 1865, when a new arrangement was made between the parties, whereby it was verbally agreed that the whole number of sides to be sold and delivered should be reduced from 15,000 to 12,000, the limitation as to time waived, and additional facilities of payment offered.

Plaintiff's then resumed the delivery of said leather, and, by the 8th of April, 1865, had delivered 5,635 sides, in addition to the 6,365 previously delivered, making 12,000 called for by the new agreement.

On April 12, 1865, defendant, by letter, complained of the quality of the leather, and subsequently rejected the whole 5,635 sides, and notified plaintiffs to take them away. This was done by plaintiffs without admitting the position of defendant as to the quality of the leather. The sides were taken to plaintiff's store, examined, found to be good, and

again offered and retendered to defendant, who refused to receive them.

Shortly after, the market fell, and, on the 5th of September, 1865, the leather was sold by the plaintiffs. For the damages caused by defendant's rejection of the goods, judgment was rendered for the plaintiffs for $9,649.46, from which this appeal is taken. Held, that there was no rescission of the contract of sale between the parties as to the 5,635 sides in question. The defendant had no right to disaffirm the contract and reject the goods, since it appears that they were not inferior to the quality agreed to be furnished. The jury found this fact under the charge, and the evidence is sufficient to sustain the finding. The question, therefore, is, was there an agreement between the parties to rescind, or an acquiescence by plaintiffs in defendant's rejection of the goods amounting to rescission? From the evidence, it cannot be claimed that there was any agreement to rescind the contract of sale. The essential of such an agreement is the same as of all agreements; the minds of the parties must meet; there must be perfect acquiescence; they must consent as fully as to the canceling of the contract as to the making of it. The evidence discloses no such agreement to cancel the contract. Judgment affirmed. Schultz et al. v. Bradley. Opinion by J. F. Daly, J. Robinson, J., dissentiente.

6. Statute of frauds. It will hardly be claimed that the contract in question is within the statute of frauds. It calls for the delivery of an article of manufacture. But even if this were not the case, there was a delivery of a portion of the hides in pursuance of the verbal agreement on the day it was made and the residue a short time thereafter. The jury have found that there was an acceptance by the defendants of the hides, and this is sufficient to take the case out of the statute. The retaking of the goods by the plaintiffs for the purpose of re-examination as to their quality was not a rescission. There can be no doubt of the plaintiff's right to sell the property after a refusal by defendant to receive it, and no notice of such sale to defendant was necessary. Ib. Opinion by Larremore, J.

Also, see Bills of Lading, and Sales.

EVICTION.

Action was brought to recover damages for eviction from hired premises. Held, the refusal of the landlord to give the plaintiff possession, after demand, of the part of the demised premises withheld originally by consent, justified the plaintiff in removing and relieved him from the payment of rent after removal. The relations of the parties and the rights of the tenant were not altered by his demanding rent from his landlord for the portion of the house sub-held. The tenant had no right to rent or any compensation for use and occupation from his own landlord because the latter withheld any part of the premises. The landlord did not agree to pay rent, and so no complication of their relations ensued, and the tenant's right to remove was unquestionable. The action was well brought for damages for eviction.

But the justice erred in his rulings on the admission and exclusion of testimony. Plaintiff testified as an expert and real estate agent as to the value of the premises for the balance of the term after the removal, and the rent reserved for the same period. It was error to disallow the defendant's question as to the number of houses he had let, where they were, and what rent they let for, in order to ascertain the correctness of plaintiff's estimates of the rental value. It is doubtful whether the plaintiff was entitled to the difference in rent he paid for the premises he removed to, or that any evidence on that head should be allowed. If proper at all, the question by the plaintiff, viz.: "What rent he paid for the place he moved to after he left the demised premises," was clearly improper without evidence as to the situation and equality of the premises removed to as compared with those removed from.

It is doubtful, in any event, if he could recover both the difference in value of the premises he removed from and the difference in rent of those he removed to. The former seems the compensation intended by law, to protect him

against the extra expense incurred by the latter. Judgment reversed. Drucker v. Simon. Opinion by Daly, J.

EVIDENCE. See Eviction.

LANDLORD AND TENANT. See Eviction.

MECHANICS' LIEN.

Statute of 1863 as to New York city.-Appeal from an order made at special term denying plaintiff's motion to vacate or modify a judgment on the merits entered in favor of defendant.

This was a proceeding under the mechanics' lien law of 1863, relating to New York city. The lien was filed May 6, 1868, by plaintiff, as subcontractor, against the defendants, the contractor, and the owner, for work and materials furnished in the erection of premises in New York.

Proceedings were commenced by the leinor, serving the notice of foreclosure required by the statute upon the contractor and the owner on May 29, 1868, which was returnable June 15, 1868. On the return day all the parties appeared, and under an order of the court the issues were finally joined by plaintiff (leinor), serving his complaint and bill of particulars, and defendants answering. The complainant demanded judgment: first, directing a sale of the owner's interst, and, second, personal judgment against the defendant. Defendant's answer denied his indebtedness, averred payment in full, and set forth that he had deposited with the county clerk, under the statute, the full amount of the lien and costs, and had it removed. The owner did not answer, and on November 27, 1868, the proceedings were dismissed as to him on account of the deposit made as above.

On November 27, 1868, the issues between plaintiff and defendant were referred, by consent, to a referee to hear and determine the same.

The lien expired May 6, 1869, and was not renewed. The proceedings, nevertheless, were continued, and on May 30, 1870, the referee reported in favor of defendants, finding that plaintiff had been paid in full by defendant, and that defendant was entitled to judgment, dismissing the complaint, with costs. Defendant excepted to referee's finding, and the report was confirmed by this court June 28, 1870, and judgment for cost entered in favor of defendant. On October 1, 1870, plaintiff moved to vacate the judgment, or to modify the same so as to make it simply a judgment dismissing the lien with costs, and not a judgment against him on the merits. His grounds were: 1. That all proceedings were void after the lien ceased on May 6, 1869. 2. That all proceedings were irregular after the unauthorized dismissal as to the owner. 3. That the judgment was irregularly entered before argument of the exceptions to the referee's report. The motion was denied, whereupon this appeal. Held, the effect of not renewing the lien under the statute of 1863 is to destroy all recourse of the lienor to the particular property described in the lien. The proceedings, so far as the owner of the property is concerned (if he be not therein personally liable), is at an end, and the proceedings should be dismissed as to him. But as between the lienor and the contractor, personally liable to him, the ceasing of the lien does not affect the proceeding, if the issue joined and the judgment claimed by the lienor depend, not upon the lien, but upon the merits of the claim upon which it was founded, if the court have jurisdiction of the proceeding. By the proceedings in this case had before the lien expired, the court acquired full jurisdiction of the controversy between the parties. Jurisdiction having been acquired, the judgment was regular. As to the second point, it was proper to dismiss the proceedings as to the owner after the lien had been removed by the deposit of the amount with the county clerk by the contractor, in pursuance of the statute. As to the third point, rule 32 (now rule 39) does not apply to a reference "of the issues" in a lien proceeding, and the exceptions are not to be heard first at special term. Order appealed from affirmed. Schaettler v. Gardner. Opinion by Daly, J.

NEGLIGENCE.

The owner of a chattel may recover damages for its injury from the person by whose negligence such injury was occa

sioned. This may result not only from a contract between the parties by which a promise is implied to take care of the property and return it in good condition, but also for any tortious injury done to it by the wrong-doer. The fact that defendant had the possession and use of the mare (for injury to which this action is brought), supported by proof of negligence in such use, would be sufficient to establish his liability, apart from any contract of hiring. The action is not for the proceeds of hiring, but for damages for a wrong done. Judgment affirmed. Smith v. Fuller. Opinion by Larremore, J.

NOTES.

On January 27th, 1869, the defendants, Balen & Co., made a firm note for $897.86 for value received, payable on demand to the order of C. H. Provost, a member of said firm, and indorsed by him to the plaintiffs. Prior to such indorsement Provost had received and credited payments on said note amounting to $541, and leaving a balance due thereon of $356.86, for which last named sum and interest plaintiff brought suit. It appeared, on trial, that one Home received the note from Provost in August, 1869, and by the request and direction of Provost, and in pursuance of his instructions, it was transferred through Home, his attorney, to plaintiff for $25. On appeal from judgment for dismissal of complaint, - Held, that the judge below erred in dismissing the complaint. The validity of the note is unquestioned, and no offset appears to have existed to the recovery of the amount therein named, or the balance claimed to be due thereon. Though the payee could not maintain an action at law upon it, yet his indorsee, the plaintiff, is not thus restricted in his remedy. The consideration paid, though apparently nominal, may have been the actual value of the note at the time of its transfer to the plaintiff. Judgment reversed, and new trial ordered. McGuire v. Balen, Jr., et al. Opinion by Larremore, J.

PARTNERSHIP. See Attachment.

PILOTS.

The plaintiff, a duly licensed pilot for the port of New York, offered his services, as such pilot, to a schooner then bound to said port. The master of the vessel declined his services, for the alleged reason that the vessel was not then on "pilot ground," and came into port without a pilot. Suit was then brought against the defendants, the consignees of said vessel, for pilotage fees, and judgment was rendered therefor, from which this appeal is taken. Laws 1857, c. 243, § 29, provides that, "all vessels sailing under register, bound to and from New York by way of Sandy Hook, shall take a licensed pilot, or, in case of refusal to take such pilot, the master shall himself, or the owner or consignee shall, pay the said pilotage, as if one had been employed, and such pilotage shall be paid to the pilot first speaking or offering his services as pilot to such vessel." It appeared that the plaintiff was the first pilot offering his services. Held, that the conduct of the master amounted to a refusal within the act, and his misapprehension as to the location of pilot ground would not bar plaintiff's recovery. Nothing appears to show that the term "pilot ground" is prescribed by law. On the trial there was conflict of testimony on this point, and the decision of the justice thereon cannot be reviewed on appeal. But it is claimed (under authority of Peterson v. Walsh, 1 Daly, 182) that the place where such offer and refusal were made being more than a marine league from the state's line, the court has no jurisdiction in the premises; that the action being for a penalty under a law of the state, and strictly local in its character, there can be no recovery for an offense under it, committed beyond the territorial jurisdiction of the state. Since that decision, the case of Cisco v. Roberts, 36 N. Y. 292, has been determined by the court of appeals, and under that decision a pilot, in pursuance of the rules and regulations of the commissioners of pilots, can lawfully claim pilotage for services rendered beyond the territorial limits of state jurisdiction. Judgment affirmed. Wilson v. Mills. Opinion hy Larre

more, J.

2. The pilotage laws of the state stand on the same footing as our quarantine laws, and the state may guard the public

health or provide for the security of general commerce by laws in relation to acts performed on the sea without the bounds of its exclusive territorial jurisdiction. Ib.

PLEADINGS. See Contracts.

QUANTUM MERUIT. See Contracts.

SALES.

On

Conditional sale distinguished from mortgage.-On December 24, 1867, the plaintiffs held the promissory note of defendant for $615. The defendant being unable to pay the note gave plaintiffs an unsigned bill of sale of certain wines. The goods were not delivered, but defendant gave plaintiffs a storage receipt therefor. Plaintiffs gave defendant permission to get them back in thirty or forty days on paying the money. Plaintiffs always retained the original note. March 27th and May 23d, 1868, defendant made payments of $50 each on the note. On November 12th, plaintiffs demanded the delivery of the wines, which defendant refused. Plaintiffs then brought this suit for unlawful conversion, claiming damages in $615. Defendant answers that he delivered the bill of sale and storage receipt as security only for the indebtedness of $615, with the understan ing that as he paid he might withdraw a proportional amount of the wines, and that he had paid $100 on account of the debt.

On the trial, plaintiffs offered to return the note, which offer the defendant refused. The court ordered a verdict for full amount claimed. Defendant asked the court to instruct the jury to deduct the $100 paid by him, which request was refused. On appeal, held, that the unsigned bill of sale and the storage receipt, dated simultaneously, but subscribed by the defendant, are to be taken together and accepted as part of the same transaction. The latter constituted more than a symbolical delivery, and, being in writing, not only affirmed the sale but evidenced in express terms that the possession of the goods, retained by the defendant, was in the character of bailee. This written recognition of the sale, and express acknowledgment of the contract of sale, was a compliance with the statute of frauds, which is only directed against executory contracts for the sale and delivery of goods. No proof was given by defendants that the papers were executed as a mere security, or that the transaction was intended as a mere mortgage.

The present transaction must be considered as a conditional sale. The evidence established that the property was sold for a fixed price; that the debt due upon the note was paid and extinguished by the sale, and the mere retention of the paid note for the purpose of a conditional repurchase did not continue it as a legal obligation of any force or effect. The plaintiff's testimony and the writings showed that the transaction was a sale with a conditional right of purchase, by payment in 30 or 40 days of $615 (the amount of the matured note). By express agreement the property was held in storage, and the new relation of bailor and bailee was established. This vested in the plaintiff the complete ownership of the property with all attendant risks of casual loss, except such as might occur through the neglect of defendant as warehouseman. The point under consideration is solved by an answer to this question: Which of the parties would have sustained the loss from accidental destruction of the property by fire immediately after the transaction of Dec. 24th? It is manifest that it would have fallen on the plaintiffs. The express agreement of the parties in writing, constituted the transaction a conditional sale, and the obligation of the defendant, that of a mere bailee, could not be waived by parol testimony-far less (in the absence of fraud, accident, or mistake) can any latent intent be presumed contrary to the express declaration of the parties, so as to construe the transaction into a mortgage. The conditional right of repurchase was never consummated, and the partial payment did not under the evidence restore defendant to any rights in the property, or entitle him to any credit for the amounts so paid in part (but uncomplete) performance. Judgment should be rendered for amount of verdict. The amount at which the verdict was directed was far less than the value

of plaintiff's interest in the property converted by the defendant to his own use, and was in no respect property prejudicial to any of his legal rights. Gomez v. Kawping. Opinion by Robinson, J.; dissenting opinion by J. F. Daly, J.

2. The learned judge, in dissent, views the transaction as a mortgage of the property, and holds that the verdict should be modified so as to deduct the two payments of $50 eachif not so modifled, a new trial should be ordered. Ib.

STATUTE OF FRAUDS. See Contracts, also Sales. STATUTES-CONSTRUCTION OF. See Pilots. STOPPAGE IN TRANSITU. See Contracts, and Bills of Lading.

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF PENNSYLVANIA.*

EMBLEMENTS.

1. At termination of life estate. - Tenant for life leased the premises and died during the year. Held, that uncut grass belonged to the owner of the reversion, and not to the lessees, as emblements. Reiff et al. v. Reiff.

2. Emblements are corn and other growth which are produced annually, not spontaneously, but by labor and industry. Ib.

3. Such productions are fractus industriales. Ib.

4. Growing grass, even if produced from seed and ready to be cut for hay, is not emblements, because the improvement is not distinguishable from natural product, although it be increased by cultivation. Ib.

PASSENGER CARRIERS.

1. Carriers of passengers are liable only for negligence, and are not insurers of the safety of their passengers as they are as carriers of goods and baggage of passengers. Meir v. Pennsylvania Railroad Company.

2. The carrier is bound to guard the passenger from every danger which extreme vigilance can prevent. Ib.

3. Although carriers of passengers do not warrant absolute safety, they are bound to exercise the utmost degree of diligence and care. Ib.

4. The slightest neglect resulting in hurt or loss, against which human foresight and prudence may guard, renders carriers of passengers liable. Ib.

5. Negligence is the ground of liability on the part of a carrier of passengers. Ib.

6. The requirement of extreme care does not extend beyond the use of known machinery and the modes of using it. Ib.

7. Railroads must keep pace with science, art and modern improvement in their application to the carriage of passengers. Ib.

8. Prima facie where a passenger on a train is injured without his own fault, there is negligence in the carrier, casting the burden of disproof on the carrier. Ib.

9. The carrier may relieve himself by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent. Ib.

10. The rule as to carriers of passengers requires that the highest degree of practicable care and diligence should be exercised that is consistent with the mode of transportation adopted, but not every possible preventive which the highest scientific skill might suggest. Ib. Per Thayer, J.

PRINCIPAL AND AGENT.

1. Instruction to agents: ratification.-A principal instructed agents conducting his plantation: "it is expressly under stood that your purchases shall be for cash." This was communicated to a merchant with whom the agents dealt. Held, that goods sold by him to the agent on credit were sold on the personal credit of the agent.-Wright v. Burbank. 2. The principal might ratify the act of the agent. Ib.

*From P. F. Smith, Reporter, and to appear in vol. 14 of his reports (64 Penn.)