received no advances on the goods. Upon appeal, however, the insurer abandoned this point, and the ruling of the lower court was approved.

Perhaps the most liberal construction given to a commission merchant's policy was in Franklin Fire Ins. Co. v. Hewitt, 3 B. Mon. 231, where a poliey on "their stock" was held to include goods held on consignment, the character of their business as commission merchants appearing clearly on the face of the contract. J. O. P.

BOOK NOTICES.

WHITE AND TUDOR'S LEADING CASES IN EQUITY.-A Selection of Leading Cases in Equity, with Notes by F. T. WHITE and O. D. TUDOR, with Annotations containing References to American Cases by J. I. CLARK HARE and H. B. WALLACE, with Additional Notes and References to American Decisions by J. I. CLARK HARE. Fourth American from the Fourth London Edition; in Two Volumes. Philadelphia: T. & J. W. Johnson & Co. 1876.

When, many years ago, Mr. Smith published the first edition of his collection of leading cases, a new era in the history of legal literature may be said to have commenced. The value of his production was soon recognized, and caused it in a short time to run through several editions, while his plan speedily found a number of followers, not less, at this day, than a score of volumes containing leading cases on a score of legal topics, attesting both the zeal of his disciples and the popularity and worth of this method of presenting the law. The work before us is, perhaps, the only one of the many subsequent compilations after the method of Mr. Smith, that can be said, both in the extent of its subjects and the thoroughness of their treatment, to rival the earlier work, and stands in the same relation to the equity lawyer that the leading cases of Mr. Smith stand to the common-law practitioner. An American critic might even be allowed to go further, and say that the English leading cases in equity would, in practical usefulness to both the lawyer and student, be superior even to those great and standard cases decided on the other side of Westminster Hall. The decisions of the chancellors differ from those of the common-law judges in this, that they were not grounded to the same extent on custom or ancient usage, but were made in many cases to avoid the harshness of the common-law rules; to do equity where the benches, with all their machinery, were totally unable to render justice. Therefore, many of the great cases on the common law of England, though monuments of learning and research, are to us only history, while the equity decisions, built upon a surer and more enduring base, will live as long as the ideas of justice survive among men. This, perhaps, better than any other reason, explains why, in these reports, going back, as they do, to the times of Talbot and King, there should be so few useless cases to the American lawyer of the nineteenth century. It is true that a few titles, such as Equitable Mortgages, The Tacking of Incumbrances, and The Duty of a Purchaser to see to the Application of Purchase-Money, on account of the change in the law caused by our registration laws, have not engaged the attention of our courts to any extent. But, with these very few exceptions, the cases here given have ever been followed in this country, and our courts, although "not influenced by considerations of authority, but proceeding freely in quest of essential justice, and under the guidance of a reason proud of its independence," have given to them all the force of established precedents.

The work before us, though announced as in two volumes, is really in four, each volume being in two parts, and each part being a separate book. Appended to the cases are given all the subsequent English decisions, and following them are the notes of the Amer

ican editors, containing a complete review of the American authorities, down, almost, to the date of publication. The student or practitioner who possesses these volumes has, without any other treatise on his shelves, and so far as equity is concerned, an excellent library. An enumeration of the subjects treated of in the leading cases will show, they cover nearly the whole domain of equity jurisdiction. Here are discussed, by the most distinguished of judges in the principal cases, and by the excellent lawyers who have undertaken the annotations, the discharge of sureties; the law of subrogation generally; the marshaling of assets; the order in which assets are to be applied to the payment of debts, and the doctrine of equitable assets; the rules of equity with regard to mortgages; the right of the mortgagee to foreclosure, and of the mortgagor to redemption; the rule in Shelley's case, as applied to executed and executory trusts, created by will or marriage settlement; what may be assigned, and what will operate as an assignment at law and in equity, and when and on what consideration an assignment will be good in equity, which would fail at law; the specifie performance of agreements for the sale of land and of chattels, and the circumstances under which it will be enforced, or may be resisted; the effect in equity of a contract for the sale of land, the lien of the vendor for the purchase-money, and the duty of the vendee to see that it is properly applied by the vendor; what will inure as a trust by operation of law, or resulting trust; the effect of a purchase for value without notice, in defeating antecedent equities; what will operate as notice, and when a grantee, by deed recorded, will be liable to an unrecorded equity; the effect of the registry of deeds and mortgages as notice, and when notice will supply the want of registration; the order in which successive purchasers from the same vendor will be subject to mortgages or other incumbrances; the duties and compensation of trustees and executors, the liabilities which they incur by joining formally or actually in the execution of their office; the restraints imposed on them, and on agents, in dealing with or purchasing the property committed to their care; the course of equity in setting aside acts procured by undue influence; in aiding and controlling the execution of powers; in sustaining assignments, voluntary or for value; the powers of equity in partition, in granting injunctions, and when the property in dispute lies beyond its jurisdiction; donations mortis causa; when legacies are to be regarded general, specific, or demonstrative; when a legacy will operate as a satisfaction of a debt, or advancement; or a portion of a legacy; the validity of conditions in restraint of marriage; the equity of the wife to her choses in action, and a husband to set aside a settlement in fraud of his marital rights; gifts to the separate use of the wife, and her power over them; agreements between husband and wife for separation and separate maintenance; compromise between members of the same family and generally, and when an agreement which would be bad as an accord and satisfaction, will be sustained as a compromise; penalties and forfeitures, and when a stipulation for the payment of a sum certain will be construed as a penalty, or as liquidated damages; injunctions, and when judgments obtained by fraud or surprise will be restrained by injunction; rights of joint and separate creditors of partnership in case of bankruptcy and insolvency; the doctrine of equitable conversion, and of election.

The great American commentator has recommended the study of leading cases which have stood the scrutiny of contemporary judges, and have been illustrated by succeeding artists; which have spread their influence far and wide, established principles which lie at the foundation of law, and are destined to guide and

control posterity, as worthy the attention not only of lawyers, but of scholars of general literature, as authentic memorials of the customs and manners of the age in which they were composed. "Law reports," says Chancellor Kent, "are dramatic in their plan and structure. They abound in pathetic incident and displays of deep feeling. They are faithful records of those little competitions, factions and debates of mankind,' that fill up the principal drama of human life; and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-interest, the melancholy perversion of talent, or the machinations of fraud. They give us the skillful debates at the bar, and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interesting, because they contain true portraits of the talent and learning of the sages of the law."

The case which heads the table of cases of the first volume of this work, is so excellent an example of what we have quoted that, although there are many more of which the same might be said, we would fain devote a few lines to its history. It is the celebrated case of Ackroyd v. Smithson, so intimately connected with the name and fame of the greatest chancery lawyer of Great Britain during the first quarter of the present century. In the year 1780, when this case was decided, John Scott, a young lawyer, the son of a Newcastle coal dealer, after having been admitted to the bar, found himself in London without much acquaintance or any clients, and with a wife with whom he had eloped. How soon he would have succumbed to circumstances and left forever the profession which seemed to bring so poor rewards, had not fortune at this moment smiled upon him, it is perhaps not hard to imagine; for according to his biographer, he had felt too often that hope deferred which makes the heart sick. But one day he received a brief. The fee must have been a small one; for all he was retained to do was, to consent for one of the parties to a decree when the cause came on. The case was that of a testator who had directed his estate to be sold, and after the payment of his debts, the residue to be divided among fifteen persons named in the will. One of the fifteen died in the testator's lifetime, and a bill had been filed by the next of kin, claiming, among other things, this lapsed share, and Mr. Scott was instructed to consent for the heir at law of the deceased beneficiary. It was fortunate for the client that he chose a young lawyer who "had nothing then to do but to pore over the brief." The result of his examination of the law was to convince him that the lapsed share was to be considered as real estate, and belonged to his client. When the cause came on, Mr. Scott refused to consent, but claimed for the heir at law his portion of the lapsed share, and argued the matter at length before the Master of the Rolls. Here, though he was much complimented by the judge on his argument, a decree was rendered against his client. The case was then carried before Lord Thurlow, then Lord Chancellor; but so little confidence had any one in his chances of success, that an eminent barrister to whom the heir at law applied for advice wrote: "Do not send good money after bad; let Mr. Scott have a guinea to give consent, and if he will argue, why let him do so, but give him no more." It was when, a few days later, the case came before Thurlow, that the argument was delivered, which made the advocate's fortune, and which has decided all similar questions ever since; for the chancellor's judgment was but a repetition of the barrister's plea. As he left Westminster Hall, a solicitor came up to him and touched him on the shoulder, saying: "Young man, your bread and butter is cut for life." And assuredly it was, and for life, too; for from

that day his good fortune never left him, till it had seated him on the woolsack, as Chancellor of Great Britain. Lord Eldon was fond of relating an anecdote of himself subsequent to the decision in this celebrated case. "In the chancellor's court of Lancaster," to give it in his own words," where Dunning (Lord Ashburton) was chancellor, a brief was given me in a cause in which the interest of my client would oblige me to support, by argument, the reverse of that which had been decided by the decree in Ackroyd v. Smithson. When I had stated to the court the point I was going to argue, Dunning said: 'Sit down, young man.' As I did not immediately comply, he repeated: 'Sit down, sir, I won't hear you.' I then sat down. Dunning said: 'I believe your name is Scott, sir.' I said it was. Upon which Dunning went on: 'Mr. Scott, did you not argue the case of Ackroyd v. Smithson?' I said that I did argue it. Dunning then said: 'Mr. Scott, I have read your argument in that case of Ackroyd v. Smithson, and I defy you or any man in England to answer it. I won't hear you.'"

One, and perhaps not the least, cause of the permanence of these old cases as precedents, may be discovered in the manner in which they were argued and considered. In the common-law courts an important case, involving new questions of law, would be argued and re-argued term after term, and in court after court. Cases like these were not unfrequently first argued before a judge and afterwards in banc, then adjourned to another term and once more argued, again transferred to another court, and there again argued, perhaps by fresh counsel. Lastly, the cause would be discussed together by the judges, when a decision would be arrived at. It need hardly be said that a case which had gone through such an examination would, in the chancery courts, be considered to have been settled with dispatch. For, at the time when most of these decisions were rendered, the notorious case of Jarndyce against Jarndyce, we are confident, had more than one parallel. Suitors might come and go, but the court went on forever; yet though grinding slowly, it ground exceeding fine. While the clients hoped in vain, the lawyers argued, and the judges considered. Surely, to the memory of these ancient martyrs to the construction of the law some respect is due from us of to-day. Yet have they not their reward? For are not their names written imperishably in the reports? And who could ask a more enduring monument? The long and wearisome delays, the repeated and protracted arguments, the extended and oft-renewed discussions, placed the law on a solid and immovable foundation. They dissipated doubts, and united the opinions of the bench, and also, as has been remarked by a distinguished jurist, prevented that constant division among the judges which has so much weakened the authority of some American courts.

NOTES OF RECENT DECISIONS.

SLANDER-EVIDENCE OF COMMON REPORT.-Pease v. Shippen. Supreme Court of Pennsylvania. 7 Pitts. Leg. Jour. 97. Opinion by WILLIAMS, J. In Pennsylvania, in an action for slander, evidence that when the words were uttered a general rumor or report existed in the neighborhood, that the plaintiff was guilty of the offense charged, is inadmissible. In England and in some of the states such evidence is admissible under the general issue in slander in mitigation of damages. Earl of Leicester v. Walter, 2 Campbell, 251; Wetherbee v. Marsh, 20 N. H. 561; Case v. Marks, 20 Conn. 248; Fuller v. Dean, 31 Alabama, 654; Galloway v.

Courtney, 10 Kirk (S. C.) Rep. 414; Calloway v. Middleton, 2 A. K. Marsh, 372; Henson v. Veatch, 1 Blackf. 369. In other states it has been held that general reports of the truth of the charges can not be given in evidence in mitigation of damages. Walcott v. Hall, 6 Mass. 514; Alderman v. French, 1 Pick. 17; Bodwell v. Swan, 3 Id. 376; Matson v. Buck, 5 Cowan, 499; Root v. King. 7 Id. 613; Cole v. Perry, 8 Id. 214; Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Wend. 602; Shehan v. Collins, 20 Ill. 325; Young v. Bennett, 4 Scam. 43; Anthony v. Stevens, 1 Miss. 254. But whatever, say the court, may have been at one time the rule in this state as to the admission of such reports, (Kennedy v. Gregory, 1 Binn. 85; Beehler v. Steever, 2 Whart. 313; Smith v. Stewart, 5 Barr, 372), it must now be regarded as the settled law of Pennsylvania, that they are not admissible for any purpose. Fitzgerald v. Stewart, 3 P. F. Smith, 343; Lukehart v. Byerly, 3 Id. 418; Long v. Brougher, 5 Watts, 439; Conroe v. Conroe and wife, 11 Wright, 201, and the cases cited.

BROKER'S COMMISSIONS.-Reed v. Reed. Supreme Court of Pennsylvania 34 Leg. Int. 49. Opinion by WOODWARD, J. 1. When a broker, authorized to sell at private sale,has commenced a negotiation, the owner can not, pending the negotiation, take it into his own hands and complete it either at or below the price limited, and then refuse to pay the commission. 2. Plaintiff's right to recover commission for making a sale is not affected by the fact that he was to be one of the purchasers if he acted openly and fairly. [Citing Kys v. Johnson, 18 P. F. Smith, 42; Edwards v. Goldsmith, 4 Harris, 43; Taylor v. Salmon, 4 Mylne & Craig, 139; Bollman v. Loomis, 15 Am. L. R. (N. S.) 75.]

SEWING-MACHINE SOLD ON CONDITION-REPUGNANT AGREEMENT-WHEN WRITTEN CONTRACT MAY BE VARIED BY PAROL EVIDENCE.-Domestic SewingMachine Co. v. Anderson. Supreme Court of Minnesota, 9 Ch. L. N. 163. Opinion by BERRY, J. 1. The rule forbidding the use of parol evidence to affect a written instrument, does not apply to a case in which a part only of the dealings between parties, in respect to a particular subject-matter is reduced to writing, except as respects such fact. 2. In case of an absolute sale and delivery of personal property, an agreement by the purchaser to pay the vendor for the future use of the same, or to deliver it up to him on demand, is repugnant to the contract of sale and is void. The receipt of the property by the purchaser furnishes no valid consideration for such agreement.

ACTION AGAINST CITY FOR FAILURE TO OPEN STREET -MANDAMUS THE PROPER REMEDY.-Webster v. City of Chicago. Supreme Court of Illinois. 9 Ch. L. N. 168. Opinion by DICKEY, J. An action of assumpsit will not lie against a city to recover damages alleged to have accrued to the owner of property by reason of the failure of the city to open a street within a reasonable time. The order for the opening of the street, it is to be presumed, was made because the street would be an accommodation to the public. From the delay in opening it, very many persons besides the plaintiff may be supposed to have experienced inconvenience and damage. To sanction this kind of an action, and thus expose the city to the numerous suits for damage which might be brought by persons who had sustained inconvenience and loss by reason of the delay in opening the street, would not seem to consist with sound principles. If the delay were without excuse, mandamus would be the proper remedy. Higgins v. The City of Chicago, 18 Ill. 276; Hall et al. v. The People, 57 Id., 307; Whiting v. Mayor and Aldermen of Boston, 106 Mass. 89.

WHEN ASSIGNEE OF NOTE MAY SUE IN FEDERAL COURT.-Gregg v. Weston et al. United States Circuit Court, District of Indiana. 9 Ch. L. N. 175. Opinion by GRESHAM, J. The plaintiff, a citizen of Ohio, sued defendants, both citizens of Indiana, on a note executed by W to S, and by the latter assigned to the plaintiff. The note was given in Indiana, payable to the order of S. Defendants demurred to the complaint on the ground of jurisdiction. The court said: "Under the judiciary act of 1879, the Circuit Courts of the United States have no cognizance of any suit on a promissory note, in favor of an assignee, unless a suit might have been prosecuted in such court, on such note, if no assignment had been made. It is admitted that the plaintiff insists that Congress contemplated all promissory notes negotiable at common law, or by the statute of Anne. I think, Congress means by this language notes having the qualities of promissory notes, negotiable by the law merchant, namely, notes which, in the hands of a bona fide purchaser for value before maturity, were subject to no equities in favor of the maker. The note sued on was given in Indiana, and payable in Indiana, but not at a bank in this state, so that, by the law of Indiana, whatever equities the maker was entitled to, as against the payee, he may assert against any indorsee. That was the law of the contract. The statute of the state entered into and became a part of the note. Holloway v. Porter, 46 Ind. 62; Dundas v. Bowers, 3 McLean, 397; Brabston v. Gibson, 9 How. 263. The statute already cited makes all promissory notes negotiable, so far as to vest the property in each indorsee successively; but unless a note is made payable to order or bearer at a particular bank in this state, it can not be said to possess all the privileges or immunities of a note negotiable according to the law mer chant. The statute of Anne has generally been adopted in this country, but has never been adopted in this state. This opinion has been submitted to my brother Drummond, and he concurs therein. The defendant's demurrer is sustained."

BANKRUPTCY AND ASSIGNMENT UNDER STATE LAWS -CONFLICTING RIGHTS OF CREDITORS.-Johnson, Ass., v. Rogers. U.S. District Court, Northern District of New York, 14 Alb. L. J. 421. Opinion by WALLACE, J. 1. A firm being solvent, but having actions pending against them, with the advice and consent of certain creditors made a general assignment of real and personal property, under the New York State law, without preferences. Thereafter several of the creditors obtained judgments, and the firm became bankrupt. In an action by the assignee in bankruptcy to set aside assignment and determine rights of creditors, held, (1) that assignment was void, under bankrupt law, as to existing creditors, and such creditors might, by judgment, obtain lien; (2) but it might be valid as to some creditors, and then judg ments would not be liens, nor would they become so if assignment was set aside at the suit of the assignee in bankruptcy. 2. Among those who recovered judg ments against the firm was B. He consented to the assignment. Held, that the assignment was valid as to the judgments, and they were not a lien. 3. S recov ered judgment upon a demand, colorably transferred by a creditor consenting to the assignment. Held, that S stood in no better position than the creditor, and his judgment was not a lien. 4. R, who had assented to the assignment, recovered judgment upon a claim transferred to him by a creditor who had not assented. Held, that R stood in the place of the creditor, who could impeach the lien, was not concluded by his assent, and the judgment was a lien. The creditor had dealt with the assignees under the assignment with respect to the firm property. Held, that this did not prevent him from impeaching the assignment. 5. V,

who did not assent to the assignment, had a judgment against a partner in the firm, individually, and had instituted proceedings in the nature of a creditor's bill thereon. Held, that by these proceedings V acquired a lien upon choses in action and equitable interests, etc., but not upon property subject to sale under execution. He acquired a lien in this action upon the equitable interest of the partner in the property of the firm not subject to levy. [Citing Chautauqua Co. Bank v. Risley, 19 N. Y. 369; Steel v. Brown, 1 Taunt. 381: Phillips v. Wooster, 36 N. Y. 412; In re Allen, 5 L. R. 322; Clark v. Rist, 3 McLean, 494; 2 Denio, 570; 3 Paige; 365; Isador v. Stewart, 1 N. B. R. 485; Becker v. Torrance, 31 N. Y. 637; Storm v. Waddell, 2 Sandf. Ch. 494; Edmonston v. McLoud, 16 N. Y. 543; Lynch v. Johnson, 48 Id. 27; Becker v. Torrance, 31 N. Y. 631.]

PAROL EVIDENCE TO VARY WRITTEN INSTRUMENT -WHEN ADMISSIBLE.-Lippincott v. Whitman et al. Supreme Court of Pennsylvania-3 Weekly Notes, 313. Opinion by PACSON, J. 1. Parol evidence is admissible to vary the terms of a written instrument (other than commercial paper) by showing that its execution was procured upon the express agreement that its terms should not be enforced, but should be qualified in accordance with a previous and contemporaneous parol agreement of the parties. 2. It is not necessary, in order to pave the way for the admission of such evidence, to show that the party procuring the writing was actuated by a fraudulent intent at the time of its execution; it is sufficient if he afterwards seeks to procure an unfair advantage by denying the parol qualification. 3. In a suit upon a mortgage, payable one year after date, the affidavit of defence averred that the understanding and agreement, at the time of the transaction, was that the mortgage should be payable in three years; that defendant, finding it was drawn payable in one year, remonstrated about it, but finally executed and delivered it, upon the plaintiff's assurance and agreement that "it should be considered as for three years, and would not be enforced before the expiration of that time." The court, having entered judgment for plaintiff, for want of a sufficient affidavit of defence; held (reversing the judgment of the court below), that the facts set forth in the affidavit constituted a sufficient defence, and the defendant should have been afforded an opportunity to prove them before a jury. "It may be, that parol evidence in such cases is of a dangerous character. We may concede it to be so. But the rule in this state is too well settled to be disturbed." [Citing Christ v. Dieffenbach, 1 S. & R. 464; Iddings v. Iddings, 7 Id. 111; Miller v. Henderson, 10 Id. 290; Parke v. Chadwick, 8 W. & S. 96; Clarke v. Partridge, 2 Barr, 13; Renshaw v. Gans, 7 Id. 117; Rearich v. Swinehart, 1 Jones, 233; Martin v. Berens, 17 P. F. Sm. 459; Kostenbader v. Peters, 2 Weekly Notes, 531; Fulton v. Hood, 10 Cafey, 365; Caley v. R. R. Co., 2 Weekly Notes, 313.

CRIMINAL LAW-DEFENCE OF INSANITY-REASONABLE DOUBT-Myers v. Commonwealth. Supreme Court of Pennsylvania. 7 Pitts. Leg. Jour. 90. Opinion by Agnew, C. J. The prisoner in this case was indicted for murder, and his counsel put in the plea of insanity. The court instructed the jury that they must be satisfied, beyond a reasonable doubt, that the prisoner was insane at the time the act was committed, and the jury found a verdict of murder in the first degree. Held, error. This statement is too stringent, and throws the prisoner upon a degree of proof, beyond the legal measure of his defense. That measure is simply proof which is satisfactory, such as flows fairly from a preponderance of the evidence. It need not be beyond doubt. A reasonable doubt of the fact of insanity, on

the other hand, is not sufficient to acquit upon a defence of insanity. This has been held in several cases, Ortwein v. Commonwealth, 26 P. F. Smith, 414; 22 Leg. Jour. 81 Lynch v. Commonwealth, 27 P. F. S. 205; Braun v. Commonwealth, 28 P. F. S. 122. Sanity being the normal condition of men, and insanity a defense set up to an act, which otherwise would be a crime, the burden rests upon the prisoner of proving his abnormal condition. But the evidence of this need be only satisfactory, and the condition such as fairly results from the evidence. Where the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind; yet the actual weight may be with the prisoner, and this should be considered satisfactory. In cases of conflicting evidence the preponderance must govern, there being no other rational means of decision. But if it is said in such a case, it must be satisfactory, beyond a reasonable doubt, it is evident the expression implies more than a mere preponderance. It is difficult to define the precise difference between the two measures; yet it is obvious that to be convinced beyond a reasonable doubt, is a severer test of belief than to be satisfied that the preponderance falls on that side. Próbably the true reason of the difficulty in defining the difference lies in the inability to define a reasonable doubt. A reasonable doubt must be an honest and conscientious difficulty in believing, one not merely subtle or ingenious-it must arise out of the evidence, and not be fanciful, or be confined up to escape consequences. It must shake the mind with such force as to compel it to pause in yielding belief. These are characteristics, but do not define the measure of belief, which is beyond a reasonable doubt.

BIRDSELL'S PATENT FOR CLOVER HULLER-HAGERSTOWN DOUBLE-HULLER CLOVER MACHINE NOT AN INFRINGEMENT.-Birdsell v. Hagerstown Agricultural Implement Man. Co. United States Circuit Court, District of Maryland. From original opinion. Opinion by BOND, Circuit Judge, Giles, J., concurring: This was a suit brought upon re-issued letters patent for improvements in machines for hulling and threshing clover, granted John C. Birdsell, April 8th, 1862, as a re-issue of letters patent granted same, May 18th 1858, and extended seven years. A preliminary injunction had been granted, as reported in 6th Off. Gaz. 604. The defendants having made certain modifications in their machines, resumed their manufacture and sale. The machines thus sold by the defendants are known as "Double-Huller Patent Clover Machines." The complainant thereupon moved for an attachment for contempt. The motion was heard upon exhibits, affidavits and arguments of counsel. The court said: "The injunction in this case was to restrain the defendant from making, using or vending any combined machines for threshing and hulling clover seed, made in accordance with any of the inventions specified or claimed in any of the claims of the complainants, patents re-issue 1299, or such as they have heretofore made and sold. Petition now is for an attachment against defendant for violating this injunction, by making and selling machines containing a threshing and a hulling machine combined, as patented to complainant in the first claim of this patent. The defendant denies that it has done this, but that the machines made and sold by it are substantially different from what it made before the issuing of said injunction and from the machine described in complainant's patent No. 1299. This is largely a question of fact, and many affidavits have been submitted to the court by the counsel for the respective parties. The complainants have filed the affidavit of Frank Millwood (an expert), Jas. W. Dougall, Jno. C. Birdsell complainant, Hiram King

-four in all. The defendant has filed the affidavits of William C. Dodge, J. F. Reigart, S. W. Downin, Jacob Downin, Jacob W. Zentmyer, Jno. Weller, S. C. Downin, A. Miller-eight in all. In considering the question of a violation of an injunction, the court can not but regret, that they have not been furnished with models of the machine patented by Birdsell, and the machine which he alleges to be a violation of the first claim of his patent. The court can always best judge from models whether one machine differs in principle and mode of operation from another. In the absence of such evidence, the court must look to the testimony of the experts who have examined the two machines. Now, it is a rule governing courts of equity in such cases, that they will never attach a defendant for contempt, where the violation of the injunction is not plain and proved to the satisfaction of the court. So far from a violation being proved in this case, the evidence of the witnesses clearly shows to the court that the two machines are different in their mode of construction, and it is for the court to decide whether there is a substantial difference in the principle upon which they act. Now the expert produced by complainant, swears that they are substantially the same. But the two experts on behalf of defendants, Reigart and Dodge, both men of great experience in such matters, testify that the machines now made by defendant do not contain the feature of Birdsell's first claim. This the court thinks is fully sustained by the written evidence in the cause. Birdsell's patent is for a combination of a pure threshing cylinder, with a pure hulling cylinder. The defendant's machines contain a combination of two hulling cylinders, and although the upper cylinder may in some measure separate the straw from the heads by rubbing or crushing, it is not a pure threshing cylinder. This has been done in machines made and patented before the date of Birdsell's patent, as will be clearly seen by the diagrams T, K & L, attached to the depositions of Dodge, filed in this case. The court will therefore dismiss the motion for an attachment in this case."

PRACTICE-MOTION FOR JUDGMENT ON THE PLEADINGS. -Where the allegations of the petition, in connection with the admissions of the answer, fail to show facts sufficient to warrant a judgment for the plaintiff, or if the allegations of the answer, in connection with the admissions of the reply, fail to show facts constituting a good defence, a motion for judgment by the party so failing will be overruled, notwithstanding the answer or reply may have admitted the allegations of the petition or answer. The facts substantially as in Borden v. St. Louis Mutual Life Ins. Co. Judgment reversed, and judgment entered for defendant (appellant). Opinion by HAYDEN, J.-Sherman v. The St. Louis Mutual Life Ins. Co.

ACTION FOR RENT-COVENANT TO REPAIR-SUIT BY ADMINISTRATOR-RECOUPMENT OF DAMAGES.-In an action for rent on a lease containing covenants to repair, the defendant (lessee) may recoup his damages for breach of contract to repair. [Citing Myers v. Burns, 35 N. Y. 269.] Though an action would not lie against personal representatives of deceased lessee for breach of covenant to repair, the lessee would have the same right of recoupment against the executor who sues for rent, as he would have had against deceased in his lifetime. [Citing 2 Pars. Cont. 744, and cases there cited.] In such case, lessee may recoup as well on account of injuries, on account of such failure to repair,

provided they are the proximate unavoidable consequences of such failure, as for the cost of repairs made by lessee. Judgment reversed. Opinion by BAKEWELL, J.—Green v. Bell.

DEMURRER TO EVIDENCE-FIRE INSURANCE-CONDITIONS OF POLICY-WAIVER.-Where there is an entire absence of evidence on the part of plaintiff, tending to prove material allegations in plaintiff's petition, it is error for the court to refuse an instruction, at the request of defendant, in the nature of a demurrer to the evidence. Where an insurance policy contains a provision that additional insurance, of which the insurer is not notified, and which is not endorsed upon the policy, shall render such policy void, and the policy offered in evidence bears no such endorsement, and the plaintiff offers evidence that the broker who effected the insurance for insured knew of the additional insurance, such evidence does not tend to prove a waiver of the conditions of the policy with reference to additional insurance, as the broker was the agent of the insured, and not of the insurer. Judgment reversed. Opinion by BAKEWELL, J.-Lange v. The Lycoming Fire Ins. Co.

LIFE INSURANCE-CONSTITUTIONAL LAW-LAWS IMPAIRING THE OBLIGATION OF CONTRACTS-RE-INSURANCE-ULTRA VIRES-JURISDICTION-PRACTICE.-The legislature, in the exercise of its powers of supervision over private corporations, may render the provisions of the "Act for the Incorporation and Regulation of Life Insurance Companies" applicable to a company organized under a prior special act, as was done by §§ 19, 20, 22 and 41 of the general law. Such an exercise of its powers by the legislature in no way impairs the obligation of a contract. [Citing Curtis v. Whitney, 13 Wallace, 68; Ochiltree v. Railroad Co., 21 Id. 249; State of Missouri v. Mathews, 44 Mo. 523; State, etc., v. King, Id. 283.] The statute divides companies subject to its provisions into two classes: 1. Those incorporated under the laws of this state; 2. Those doing business in this state, and not incorporated under its laws. The words, "doing business in this state," in the fourth line of § 41, have reference to companies not incorporated under the laws of this state. A life insurance company having re-insured all its risks in another company, and doing no new business, but still receiving premiums on its old policies, and paying losses, is transacting the business of life insurance, which may be the subject of injunction. The power to re-insure does not carry with it the power of the company to close its business, dispose of its assets and transfer its policy-holders over to a stronger company. The general rule is that a corporation can not transfer its entire assets against the will of a majority of its stockholders. There are exceptions to this rule. [Citing Buford v. Keokuk N. Line Packet Co., decided at this term; Treadwell v. Salisbury Manf. Co., 7 Gray, 404.] The state has an interest in the matter of this transfer. By acts of legislature, life companies are subjected to constant supervision, and to many restrictions. This excludes them from the class of companies that have power to sell or transfer all their property against the will of a minority. The contract by which respondent undertook to turn over its assets to another company, was, as against policy-holders, ultra vires and void. The court below had jurisdiction of the subject-matter, and if petition was defective, should have allowed plaintiff to amend. The court below committed error in dismissing the proceeding without allowing plaintiff to amend. Judgment reversed, and cause remanded. Opinion by HAYDEN, J.-Price v. St. Louis Mutual Life Ins. Co.