for the present has been found in the rapid simplification of that part of the law which pertains to remedies. Not a few books that were of high authority and in constant requisition on the subjects of pleading, practice and evidence a few years ago, have been laid on the shelf, and are now rarely referred to unless to show the origin of some derivative principle. The difference between the presentation and trial of causes brought about by recent changes in the law governing such matters, might be easily apprehended by an unprofessional observer of tolerable acuteness. Under the former system the orderly arrangement of the troops seemed to be rather more important than the real battle that was to follow. Volumes were required to show whether some long consecrated and talismanic word or phrase might be safely omitted from a pleading, or whether it was, in the particular case before the court, introduced in the proper manner, in the proper place, or with the proper surroundings. In like manner much learning was required to show whether a witness was interested in the event of the suit in which he was called to testify, whether his interest was direct, contingent, or remote, or whether it was not balanced by some countervalling interest. In the latter case, the witness was supposed to be in the position of the ass so often referred to, which, being placed between two sacks of oats, at equal distances, could have no inducement to select either in preference to the other, and was therefore in a state of profound indifference. As these questions pertaining to interest were often of considerable intricacy, the unlettered witness, the probabilities of whose moral condition were so finely and freely discussed, must often have been not a little puzzled to know what it was that enabled him to tell the truth, or prevented him from saying anything. He might, however, enjoy the odd satisfaction of seeing a cause tried by rules which excluded the testimony of every one who knew anything about the matter in dispute; though he, perhaps, would not be pleased at the low estimate of his moral nature, which implied that he might swear falsely rather than risk the loss of a few cents about which he had never thought, and which, in all probability, he would never acquire; nor would he, perhaps, have a very high opinion of that sordid philosophy which took no notice of any interest except one that was strictly pecuniary. These discussions and these anomalies that once filled so much space in works on evidence, and consumed so much of the time of the courts, are things of the past. It is possible that there is more false swearing than there was formerly; but even this is by no means certain. The amount of false swearing that is done may be supposed to bear some sort of ratio with the number of those who are sworn. Under the old system, from the exclusion of interested witnesses, it was necessary often to prove many collateral facts, from which a pertinent inference might be drawn;and thus many witnesses were introduced concerning some fact which a party to the suit, or some other disqualified witness, might have settled to the satisfaction of every one by a word. Hence many more witnesses were sworn, on the whole, than at present; and amongst them were those who concealed some disqualifying interest, and who had stronger motives to bias their language than the pecuniary interest upon which alone the law fastened its peremptory judgment.

In addition to the change in the law which takes away the disqualifications of parties and witnesses, our author mentions the following changes in the law which have effected changes in the law of evidence: The disuse of special pleading, and the almost unlimited amendment in civil issues, which have rendered so many of the old decisions on variance useless; the application of equity rules to common-law cases; the re

ception of more liberal views with regard to the relevancy of evidence; and the gradual, but somewhat rapid decay of arbitrary presumptions. All of these changes have been in fact brought about by the substitution of the free logic of Bentham and Mill in the place of the formal rules of the scholastic dialectics, which seemed to suppose that the truth was a thing not to be apprehended in itself, but only through certain representatives to which a character of absolute or approximate infallibility was attached.

The present volumes are designed to meet these changes; consequently they are indicated in a striking manner. Familiar chapters in the old books-old only as regarding the progress made in the law-are looked for in vain. They have passed quite away and forever. The space which they occupied is given up to decisions that show forth the law as it stands at this time. Any one who knows the value of the adjudications of late years on questions of evidence presented by the new laws, will readily perceive the value of the present work, which not only disencumbers the law of a large amount of useless matter, and gives place to new matter, but illuminates the whole subject with lights from what may be considered as a new philosophy at present pervading alike the statutes and the decisions. The chapters of our author on the nature of proof, relevancy and presumptions must be regarded as being contributions to legal science of unusual value. We have never had any complaint to make of the style of our author; but we think that the style of the present work is superior to that of his former treatises, insomuch as it shows an increased power or will to condense what he has to say. We are very decidedly of the opinion that this compression adds to the clearness and distinctness of the execution of the work. U. M. R.

REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF WISCONSIN, with Tables of the Cases and Principal Matters. By O. M. CONOVER, Official Reporter. Vol. 40. Chicago: Callaghan & Co. 1877.

This is a volume of 750 pages, containing the decisions of the Supreme Court of Wisconsin, delivered at the January and August terms, 1876. Ninety cases are reported here, some of them of great interest and importance. Among these are the celebrated insurance cases, involving the right of a state to prescribe conditions upon which an insurance company may transact business within its borders; and the case, an abstract of which we append, relating to the effect of the statute abolishing uses and trusts upon charitable trusts. Three of the cases reported in this volume have been already published in this journal, viz., Heiss v. Murphy, 3 Cent. L. J. 639, upon the doctrine of cy pres in Wisconsin; State v. Wilner, ib. 715, as to the defense of insanity in criminal cases; and Ahnert v. Zaun, ib. 769, in regard to the suspension of statutes of limitations during the war. The work of both reporter and publisher is excellent.

MUNICIPAL CORPORATIONS-WHEN LIABLE FOR TRESPASS.-Hamilton v. City of Fond du Lac. Opinion by LYON, J., p. 47. 1. For acts constituting a trespass, done by direction of city officers who had authority to act upon the general subject-matter, and acted in good faith, with an honest desire to obtain for the public a lawful benefit, the city is liable. 2. The council of a city being empowered to abate nuisances, and also to straighten, widen, and otherwise improve the bed or channel of either branch of a river within the city limits, passed an ordinance declaring one branch of said river within said limits a public nuisance, and providing for its abatement by the excava tion of a new channel across plaintiff's premises. Afterwards, pursuant to a contract let by the board of

public works of said city in its name, for the excavation of said new channel, acts were done by the contractor constituting a trespass on plaintiff's premises. The court held that the city was liable; the action of the council being within the scope of its general powers, and taken in the belief that it was exercising a lawful power for the public good. The principle upon which this case depends was laid down by this court in Hurley v. Texas, 20 Wis. 634, and in Squiers v. Neenah, 24 Wis. 588, to the effect that, if the trespass complained of is within the general authority of such officers or agents, the city is liable. In thus holding, the court adopted the rule on this subject laid down by Shaw, C. J., in Thayer v. Boston, 19 Pick. 511. The same rule was sanctioned by the New York Court of Appeals in Lee v. Sandy Hill, 40 N. Y. 422; see also Crossett v. Janesville, 28 Wis. 420.

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WILLS-CHARITABLE TRUSTS-EFFECT OF STATUTE ABOLISHING USES AND TRUSTS. Ruth v. Oberbrunner et al., p. 238. Opinion by COLE, J. 1. Section 1, chapter 84, of the Revised Statutes of Wisconsin, which abolishes all uses and trusts within the state except those specifically authorized by the chapter, held to apply to charitable trusts. 2. A devise of land to A. & B., "to hold the same in trust for the use and benefit of the order of St. Dominican and St. Catherine's Female Academy-and for no other purpose-which is located in the City of Racine, in the State of Wisconsin," can not be sustained under sub-division 5, sec. 11, of said chapter, because the trust is not "fully expressed and clearly defined upon the face of the instrument." 3. The trust being a mere passive one is not authorized by the other provisions of said chapter. 4. If, when the will took effect, the order of St. Dominican and St. Catherine's Female Academy had been incorporated and empowered to take and hold the legal estate in said lands, such legal estate would have vested in them under the statute. But neither of them having been incorporated at that time, nor until after the commencement of this action by the testator's heirs to recover the land, the devise is void. The question to be decided in this case was rendered difficult by the different views entertained in regard to the origin of equity jurisdiction over charities; some holding that it was almost entirely founded on the statute of 43 Eliz., while others claim that this statute was not introductory of any new principles, but was only a new and less dilatory and expensive method of establishing charitable donations, which were understood to be valid by the laws antecedently in force." Denio, J., in Williams v. Williams, 8 N. Y., 525, 542. Mr. Spence, in his work on Equitable Jurisdiction (vol. 1, p. 587), while speaking on this subject, observes that "when gifts of personal estate were made by act inter vivos to persons capable of taking for definite charitable purposes or uses, and when lands, or the use of lands, were by deed or will directed to be applied for the like purposes, the court of chancery, apparently under its general power to enforce the performance of trusts, entertained jurisdiction of trusts of this description equally as of private trusts. Where there was no trustee, or where there was a trustee and the trust was indefinite, as for the poor generally, if applications to the court of chancery were ever made and sustained, as some high authorities have maintained, it must have been at the instance of some person on behalf of the king as parens patriæ; but there is no memorial, at least amongst the records that have yet been published, or to be discovered from the searches that have been made in the repositories of the court, of any information on behalf of the crown to the court of chancery for such a purpose before the time of Elizabeth." He closes his remarks by saying: "There was nothing to exclude the court of chancery from ex

ercising its authority under its general jurisdiction for compelling trustees properly constituted to apply the rents and profits of charity estates according to the trust reposed in them. It seems, however, that no bill could have been sustained to establish a charity which was void at law for want of sufficient devisee, prior to the statute 43 Eliz." See, also, 2 Story's Eq. Jur., ch. 32; 2 Kent, 363, et seq.; Vidal et al. v. Girard's Ex'rs, 2 How. (U. S.), 127; Fontain v. Ravenel, 17 Id. 369; Williams v. Williams, supra; Owens v. Missionary Society, 14 N. Y. 380; Beckman v. Bonsor, 23 Id. 298, 575; Levy et al. v. Levy et al., 33 Id. 97; Bascom v. Albertson, 34 Id. 584; Holmes et al. v. Mead, 52 Id. 332. It may be admitted that this devise would be sustained in England, and by some courts in this country where the doctrine of cy pres prevails. But the concession does not obviate or remove the serious objections taken to it under our statutes. By sec. 1, ch. 84, R. S., it is enacted "that uses and trusts, except as authorized and modified in this chapter, are abolished; and every estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in this title." By the next two sections, every estate held as a use was confirmed as a legal estate; and any person who, by virtue of any grant or devise, was entitled to the actual possession of lands and the receipt of the rents and profits thereof in law or equity, must be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest. And section 5 provides that every disposition of lands, whether by deed or devise, shall be directly to the person in whom the right to the possession and the profits shall be intended to be vested, and not to any other to the use of or in trust for such person; and if made to one person for the use of another, except as otherwise provided in the chapter, no estate or interest, legal or equitable, shall vest in the trustee. The first inquiry is, whether there is any ground, in view of the well-settled rules of construction, for introducing an exception in the statute, and for holding that it does not include charitable uses and trusts in lands. "Uses and trusts, except as authorized and modified in this chapter, are abolished." These are the words the legislature has used in enacting the law. They are plain, broad and explicit. They apply to all trusts and uses. The legislature has spoken; it has used words which include public and charitable trusts and uses, as well as private trusts; and the intent of the legislature must prevail. The statute was evidently an attempt on the part of the legislature to revise and codify the law of uses and trusts; including, it would seem, within clearly prescribed regulations, charitable uses as well as other trusts. It must therefore be held that all trusts, except those specifically authorized and saved by the subsequent provisions of chapter 84, are abolished by the first section. This result fully accords with the rule recognized by this court, that a statute which revises the subject-matter of a former statute works a repeal thereof, without express words to that effect. Lewis, Gov., v. Stout et al., 22 Wis. 234. The Wisconsin Statute of Uses and Trusts is copied from the statute of New York. A great diversity of opinion has prevailed in the courts of that state on the question whether charitable uses were included in its provisions. In Potter v. Chapin, 6 Paige. 640-650, decided in 1837, there is a strong intimation by the chancellor that, under the Revised Statutes, a devise of real estate could only be made to a person capable of holding the same for the purposes of the charity, and that "all general trusts are abolished." It was not necessary, however, in that case to decide the question. In Shotwell, Ex'r, etc., v. Mott et al., 2 Sandf. Ch. 46, de

cided in 1844, Vice-Chancellor Sandford held that the article of uses and trusts only related to private trusts, and that public trusts and charitable uses were excepted from its provisions. One consideration which seems to have had influence on the mind of the vicechancellor and led him to this conclusion, was the fact that the revisers, in their notes accompanying the article when it was submitted to the legislature, did not say one word upon the subject of charitable uses. Had the revisers proposed sweeping and radical changes in the existing law of uses and trusts, the vice-chancellor thought they would have stated their reasons and objects fully and elaborately. This suggestion or argument is considered and quite effectually disposed of by Mr. Justice Duer (himself one of the revisers, as is well known), in the case of Ayres v. The Methodist Church, 3 Sandf. S. C., 351-372, decided in 1849, where a full and exhaustive review of the subject and the history of charitable trusts both in England and this country will be found, and from which it will be seen that the later and better doctrine of the Court of Appeals of that state is, that "the sweeping provisions of the revised statutes, abolishing all uses and trusts except those specially named, are sufficiently general and comprehensive to include all charities; and, if these are saved, it must be by some exception expressed in or implied from the terms of the statute itself." The express trusts retained by the New York statute are four in number, and are active trusts for special temporary purposes in the interest of individuals. Downing v. Marshall, 23 N. Y. 336; Holmes v. Mead, supra. The statute of Wisconsin contains a provision in regard to that class of trusts, not found in the statutes of that state. It is the 5th subdivision of section 11, and reads as follows: "An express trust may be created for the beneficial interests of any person or persons, when such trust is fully expressed and clearly defined on the face of the instrument creating it, subject to the limitations as to time prescribed in this title." Upon the argument it was attempted to sustain the bequest under this section. But the court say: "Instead of the trust being 'fully expressed and clearly defined,' there is a fatal uncertainty about it in every particular. The trust not only fails to impose any active duty upon the trustees, but it fails to designate any special purpose to which the income of the property is to be applied. The property is to be held for the use and benefit of the cestui que trusts. It need not necessarily be devoted to a charitable use. Suppose the profits of the real estate should be applied to the payment of taxes, to the erection or repair of buildings upon it, or to any purpose which would promote the pecuniary interests of these unincorporated associations, would this be a violation of the trust? Apply another test. Suppose a bill were filed to compel the trustees to execute the trust, what could the court order the trustees to do? Would it not be compelled to resort to the cy pres doctrine, establish a trust or frame a scheme to carry out the charitable intent of the testatrix, where she had given no directions, and had declared in the will no charitable purpose? It seems to us this course would be inevitable. The title of the trustees under the will is merely nominal, connected with no power or duty in respect to the management or disposition of the estate, and is unlike the trust created in Goodrich v. The City of Milwaukee, 24 Wis. 422. In the case of Owens v. The Missionary Society, supra, there was a bequest "to the Methodist General American Missionary Society appointed to preach the gospel to the poor, L. C.," a voluntary association then existing. One question considered in the case was, whether the bequest was accompanied by a trust, so that, if the society obtained the fund, it would be bound to appropriate it to some

pious or charitable use. Upon that point Mr. Justice Selden says: "If, then, a bequest, unaccompanied by any designation of the purposes to which it is to be applied, be made to a society whose name and public acts indicate that its objects are religious or charitable, is there an implied trust which limits the use to such objects? When the bequest is to a corporation, there would seem to be some basis for such an implication, because, the objects, purposes and powers of the corporation being in all cases more or less clearly defined by its charter, the bequest may fairly be presumed to have been intended for those specific objects. But we have no such criterion for ascertaining the nature and purpose of a voluntary association. Those purposes may change with the will of the associates. They may be pious to-day, and impious to-morrow. There is no law to prevent or restrain such changes. It is difficult to see, therefore, how a bequest to such an association can be deemed to create a charitable use,' unless the purpose to which it is to be devoted is pointed out by the testator." pp. 385-6. After this distinct intimation of his opinion on the question, the learned judge assumes, for the purposes of the case, "that where a bequest is made to an unincorporated society, whose general objects are known to be, as its name indicates, religious or charitable, a trust is implied that the fund shall be devoted to those objects." In that case the bequest was declared invalid on account of the incapacity of the association to take, and the court held that it could not uphold it for a charitable or religious purpose. No importance can be attached to the act of incorporation obtained subsequent to the commencement of the action. Owens v. Missionary Society, 14 N. Y. 380; White v. Howard, 46 N. Y. 144.

NOTES OF RECENT DECISIONS.

COSTS IN BANKRUPTCY PROCEEDINGS-PRIVILEGED CREDITORS. In re Sawyer. United States District Court, District of Massachusetts. From original opinion of LOWELL, J. The account rendered in this case brings to view one of the weak points of this, as of all the bankrupt laws, the temptation which assignees are under to exhaust the assets in unwarrantable charges. I wish it to be distinctly understood that it is the duty of the registers to examine and regulate the charges, whether any creditor takes the trouble to object to the account or not; and to see that, when the account is correct, a dividend is paid. I had supposed this was well known; but this account seems to have lain in the register's office for some months without action. The assignees in this case have received about $6,000, and the charges for legal services are about $2,000, and for the assignees themselves, $1,200. These are all disallowed. For their services the assignees may have the commissions established by the rule of the supreme court, and no assignees are ever to have more, without my order, as I have already decided. For counsel fees I allow the sum of $200. I disallow the item of $100 paid to the register's clerk. The bill will be reformed by the clerk on this basis, and a dividend will be paid forthwith, to the privileged creditors, of the amount in the hands of the assignees, as found upon a proper sccount. In this case the debts, not exceeding $50 each due the workmen, are more than enough to absorb the fund. And I wish to repeat what I said at the hearing, that when there are debts due workmen which are privileged, the assignee has no moral right to stake their money in litigation for the supposed benefit of the general creditors. If the latter want litigation, they must pay for it. In future I shall allow no counsel fees in such a case, until the privileged debts are paid in full. I do not think it necessary in most cases

that the workmen should be put to the expense of proving their debts, and the estate to the very considerable cost of paying their dividends in due and regular form. If the general creditors agree, the assignee may pay these, out of hand, as soon as he receives enough money for the purpose; or may pay a part equally among them. The assignee, no doubt, is entitled to the protection of a proof, if he requires it; but he will not often find it essential to his safety. Account to be reformed.

NON-RESIDENCE-SERVICE BY PUBLICATION. Collinson v. Teal et al. United States Circuit Court, District of Oregon. From original opinion of DEADY, J. A person temporarily residing or sojourning at Honolulu, as United States Commissioner to the Hawaiian government, is a non-resident of the state within the meaning of sub-division 3 of § 30 of the code of 1854, authorizing the service of summons by publication in certain cases where the defendant is not a resident of the territory. This section of the code provides that service of summons may be made upon a defendant by publication, among others, in the following case: "When the defendant is not a resident of the territory, but has property therein, and the action arises on contract, and the court has jurisdiction of the subject of the action." Literally, a resident is one who sits, abides, inhabits or dwells in a certain place. A person sojourning-which is only a synonym for residing -at Honolulu, is prima facie residing there, and can not be a resident of Oregon at the same time. The word is of a narrower signification than domicile, and like the word inhabitant implies a bodily presence. Considered with reference to the purpose of the statute the mischief to be remedied-its meaning is the same. It was enacted to give this class of creditors, whose debtors were absent from the state and could not therefore be personally served with process within it, a means of enforcing their securities and so far collecting their debts. In Roosevelt v. Kellogg, 20 Johns. 210, the court held that an averment in a plea of discharge under the insolvent act, that the insolvent was a resident of the county in which the application for the discharge was made, was equivalent to stating that he was an inhabitant of such place, saying: "These words signify the same thing; a person resident is defined to be one one dwelling or having his abode in any place'; an inhabitant, one that resides in a place."" In the matter of Thompson, 1 Wend. 44, it was held that under the act allowing an attachment against the property of a debtor who resides out of the state, an attachment might issue against the estate of a debtor who was resident abroad permanently or temporarily, the court saying: "The object of the statute was to authorize creditors to prosecute their debts when their debtors were abroad; and whether their absence from the state is permanent or temporary, whether it is voluntary or involuntary, the reason for giving this remedy to the creditor is the same." In Frost v. Brisbin, 19 Wend. 12, it was held that a person who had a domicile within the state, but carried on a business without the same which he superintended personally, was liable to arrest on civil process as a non-resident. In Haggart v. Morgan, 5 N. Y. 428-a case arising under the attachment law-it was held that a person may be a non-resident of the state within the meaning of the statute allowing an attachment against the property of non-resident debtors, although his domicile is within the state; and that actual non-residence, without regard to the domicile of the debtor, is what is contemplated by the statute. See also, upon the subject of residence, In re Wrigley, 4 Wend. 603; s. c., 8 Wend. 209.

TREASURER'S BOND-PLEA BY SURETY THAT HIS PRINCIPAL, WITH THE CONSENT OF THE DIRECTORS OF THE CORPORATION, HAD KEPT THE MONEY IN AN UNAUTHORIZED PLACE.-Spring Hill Mining Co. v. Sharpe. Supreme Court of New Brunswick. 16 Am. Law Reg. 237. Opinion by ALLEN, C. J. The condition of a bond, given for the faithful discharge of the duties of the treasurer of an incorporated company, declared that S (the treasurer) should well and truly account with the company and the directors thereof, whenever required, for all moneys, etc., which should come into his hands as treasurer, and should well and faithfully obey all such by-laws, orders, directions and instructions as the board of directors of the company should make, prescribe and appoint. One of the bylaws of the company required that the treasurer should make his cash deposits in the bank of New Brunswick, as the money was received, and that all checks, to draw the same, should be signed by the president, or two directors of the company, and countersigned by the treasurer. In an action on the bond, alleging as a breach, that S had received money as treasurer, which he had neglected to pay over on request, and had converted to his own use, the surety pleaded, that before any breach of the bond, S, with the knowledge, consent and authority of the directors, did not deposit the money in the bank of New Brunswick, but kept it in his own custody, and paid out his own check, and as he thought proper. Held, on demurrer, that an order of the directors, not warranted by the act of incorporation or the by-laws, was no justification for the treasurer in misappropriating the money, and did not relieve the surety from liability. Citing Fellows v. Albert Mining Co, 3 Pugs. 203; Mactaggert v. Watson, 3 Cl. & F. 542; Salem Bank v. Gloucester Bank, 17 Mass. 28. The principle involved in this case is fully considered, and the law very clearly laid down by Mr. Justice Story, in the case of Minor v. The Mechanics' Bank of Alexandria, 7 Curt. 445. That was an aciion against the sureties in a bond given for the faithful discharge of the duties of the cashier of a bank. One ground of defense was, that by the usage and practiice of the bank, the cashier had allowed customers to overdraw their accounts, and to leave their checks and notes charged without funds in the bank to meet them; and it was contended on behalf of the sureties, that the jury should have been instructed that those facts constituted a defense to the action. Mr. Justice Story, delivering the judgment of the eourt, said: "If the instruction had been given, and thereupon a verdict upon these issues had been found for the defendants, could any judgment have been given upon these issues in favor of the defendants; or ought the judgment non obstante veredicto to have been for the plaintiff? If it ought, then the error becomes wholly immaterial, since in no event could the instruction, in point of law, have benefited the defendants. Upon deliberate consideration we are of opinion that the pleas on which these issues are founded are substantially bad. They set up a defense for the cashier, that his omission well and truly to perform the duties of cashier was by the wrong connivance and permission of the board of directors. The question then comes to this, whether any act or vote of the board of directors, in violation of their own duties, and in fraud of the rights and interest of the stockholders of the bank, could amount to a justification of the cashier, who was a particeps criminis? We are of opinion that it could not. However broad and general the powers of the directors may be for the government and management of the concerns of the bank, by the general language of the charter and by-laws, those powers are not unlimited, but must receive a rational exposition. It can not be pretended that the board could by a vote authorize the cashier to plunder the

funds of the bank, or to cheat the stockholders of their interest therein. No vote could authorize the directors to divide among themselves the capital stock, or justify the officers of the bank in an avowed embezzlement of its funds. The cases put are strong, but they demonstrate the principle only in a more forcible manner. Every act of fraud, every known departure from duty by the board, in connivance with the cashier, for the plain purpose of sacrificing the interest of the stockholders, though less reprehensible in morals, or less pernicious in its effects than the cases supposed, wonld still be an excess of power from its illegality, and, as such, void as an authority to protect the cashier in his wrongful compliance. Now, the very form of these pleas sets up the wrong and connivance of the board as a justification; and such wrong and connivance can not for a moment be admitted as an excuse for the misapplication of the funds of the bank by the cashier. The instruction prayed for proceeds upon the same principles as the pleas. It supposes that the usage and practice of the cashier, under the sanction of the board, would justify a known misapplication of the funds of the bank. What is that usage and practice, as put in the case? It is a usage to allow customers to overdraw, and to have their checks and notes charged up, without present funds in the bank. Stripped of all technical disguise, the usage and practice, thus attempted to be sanctioned, is a usage and practice to misapply the funds of the bank, and to connive at the withdrawal of the same, without any security, in favor of certain privileged persons. Such a usage and practice is surely a manifest departure from the duty both of the directors and the cashier, and can not receive any countenance in a court of justice. It could not be supported by any vote of the directors, however formal; and, therefore, whenever done by the cashier, is at his own peril, and upon the responsibility of himself and his sureties."

STATUTE OF FRAUDS-RECEIPT AND ACCEPTANCE OF GOODS.-Ex parte Safford. United States District Court, Dist. of Massachusetts. 15 Alb. L. J. 328. Opinion by LOWELL, J. Leather was bought on a credit of sixty days, by parol, and the goods were weighed in the presence of the buyer, and the damaged hides rejected and the shrinkage agreed on, and they were placed by themselves in the seller's warehouse and marked with the buyer's name, and he was to send for them when he pleased. He made an arrangement with the seller concerning the insurance of the goods. The course of dealing was usual between the parties. Held, the goods had been accepted and received by the buyer within the statute of frauds of Massachusetts, and they having been destroyed by fire in the seller's warehouse, that the seller could prove for the price against the assets of the buyer in bankruptcy. The latest authorities make the distinction between accepting goods and receiving them to be this: Goods may be constructively delivered, as to a carrier or warehouseman, and yet not accepted, if, for instance, they were ordered by a person who had not seen them, or were bought by sample; for the carrier or warehouseman is not, as such, without special appointment, the agent of the buyer to ascertain that the goods conform to the order or to the sample; and, therefore, in such a case the goods may be received and yet not accepted. It was formerly said that the goods must be received and an opportunity be given to examine them before they could be accepted; but in a very elaborate opinion of the Queen's Bench this doctrine was denied to be sound, and a defendant was held bound who had exercised acts of ownership over the goods, though he had not precluded himself from objecting that they did not conform to the contract; or, in other words, that there

might be an acceptance to satisfy the statute, and let in proof of the contract, which yet would not be an acceptance under the contract itself when proved. Morton v. Tibbett, 15 Q. B. 428.

In Cusack v. Robinson, 1 Best & S. 299, Blackburn, J., says: "Acceptance may be before receipt," and it was there decided that specific goods agreed on and afterward sent to a warehouse named by the vendee, had been both accepted and received by him. Whether the courts of Massachusetts would assent to the full extent of the law laid down in Morton v. Tibbett, ubi supra, I do not know, nor, indeed, whether all the courts in England would; but I take it to be clear that by the law of this state, and of the United States generally, as well as of England, if specific goods are fully agreed on and bought, and afterward sent to a warehouseman or carrier designated by the vendee, the statute is satisfied. Ullman v. Barnard, 7 Gray,555; Cross v. O'Donnell, 44 N. Y. 661; Howes v. Ball, 7 B. & C. 484; Dodsley v. Varley, 12 A. & E. 632. There is no doubt that the vendor may himself be the warehouseman or bailee. This was decided in the leading case of Elmore v. Stone, 1 Taunt. 458. I have seen it stated that this case has been overruled; but that is a mistake. It was cited and followed in Beaumont v. Brengeir, 5 C. B. 313, and Marvin v. Wallis, 6 Ellis & B. 726, and its doctrine re-affirmed in Cusack v. Robinson, ubi supra. See Benj. on Sales (2d Am. ed.), 136. It is stated with approval, though not named, by Shaw, C. J., in Arnold v. Delano, 4 Cush. 40. If the decision were to turn merely on the conditional contract of insurance made by the vendee, that would be sufficient evidence to warrant a jury in finding a receipt of the goods. The cases are many where a sale or a mere offer to sell, or a request by the vendee to the vendor to sell on account of the vendee, and various other acts of ownership have been held sufficient for that purpose, though the goods remained in the actual possession of the vendor, or of a middleman. Chaplin v. Rogers, 1 East, 192; Blenkinsop v. Clayton, 7 Taunt. 597; Marvin v. Wallis, 6 Ellis & B. 726; Castle v. Sworder, 6 Hurlst. & N. 828; Amsen v. Dreher, 35 Wis. 615. It may be said that a resale would be a fraud on the vendor if the goods are not the property of the vendee, and that for this reason the latter is estopped; but the true reason for the decision is that such an act is of itself evidence of acceptance and receipt, and a contract of insurance is fully as significant in this respect. It was argued that, in a certain sense, the lien of the vendor was not gone, because, if the vendee had become insolvent, it might have revived under the decision in Arnold v. Delano, 4 Cush. 33, and similar cases; and it was added that so long as the right of stoppage in transition was not lost, there could be no receipt by the vendee; but there are many decisions to the contrary of that statement, and none in its favor, that I have seen. In Bushell v. Wheeler, 15 Q. B. 422, n., Coleridge, J., said of the right to stop in transitu: "That is a bad test: there might be stoppage in transitu, though there had been a note in writing." ." Lord Denman, C. J., made a similar remark in delivering the opinion of the court; and the decision covers the point. So are Cross v. O'Donnell, 44 N. Y. 661; Castle v. Sworder, 6 H. & N. 828; and in point of principle the following cases, as well as those above cited in which accepted goods delivered to a carrier were held to have been received by the vendee, within the statute, though in most of them the right of stoppage might have been exercised if the vendee became insolvent; Dodsley v. Varley, 12 A. & E. 632; Howes v. Ball, 7 B. & C. 484; Pinkham v. Mattox, 53 N. H. 600. The revival of the vendor's lien in case of insolvency is an equitable doctrine very difficult to explain at common law; but it arises only upon bankruptcy or insolvency, and does not then revest the