the court to appoint one, there is no power in the American courts to administer such an inchoate and imperfect gift." Id., § 731. That "it is immaterial how uncertain the beneficiaries or objects are, if the court, by a true construction of the instrument, has power to appoint trustees to exercise the discretion or power of making the beneficiaries as certain as the nature of the trust requires them to be." Section 732. See also 2 Story Eq. Jur., § 1169.

In the present case the testatrix appoints no trustee to distribute the fund, but expressly refers its distribution to a court of chancery. The power of distribution, in our opinion, carries with it the power to select the individuals to whom distribution shall be made. The trustee appointed by the court to make the distribution will have the incidental power to select the beneficiaries, so that the case stands the same as if the testratrix herself had appointed a trustee to distribute the fund. The trustee to be appointed by the court will, in effect, be a trustee of her appointment made through the court of chancery.

Courts incline strongly in favor of charitable gifts, and take special care to enforce them. As observed by Mr. Perry (8 687), charitable bequests are said to come within that department of human affairs where the maxim ut res magis valeat quam pereat has been, and should be applied; and further (§ 690), that until the statute of distribution (22 Car. II, chap. 13), was enacted, the ordinary was obliged to apply a portion of every intestate estate to charity, on the ground that there was a general principle of piety and charity in every man. This shows the favor in which charity is held in the law. There is to be the most liberal construction of the donor's intention in support of a charitable donation. Charities have always received a more liberal construction than the law will allow in gifts to individuals. 2 Story Eq. Jur., § 1165.

The charity here is not vague and indefinite, but quite specific, to the worthy poor of the city of La Salle. Individuals of the class named will ever be readily found to whom the fund may be distributed. The trust is not difficult of execution according to the intention of the testatrix. Instead of herself naming a trustee to make the distribution of her bequest, the testratrix preferred that the distribution should be mode by a court of chancery, whose peculiar province | it is to effect the administration of trusts, and especially charitable trusts. There can be no doubt that the execution of the trust by such court would be to effectuate the donor's intention, the aim which is always sought to be accomplished.

Under the principles and the strong current of authorities which are properly applicable, we are fully satisfied that the bequest in question is a valid charitable gift, and that it should be carried into effect by a court of chancery, as the testatrix expressly willed that it should be. The residuary clause of the codicil being held valid, it follows that the complainants take nothing as heirs at law, and are not entitled to maintain their bill. The decree of the Circuit Court will be reversed, and the cause remanded to that court with directions to dismiss the bill.

Decree reversed.

[See Webster v. Morris, 66 Wis. 366; S. C., 57 Am. Rep. 909; “for the relief of the resident poor in a certain village," held valid. To "establish a school for the education of young persons in the domestic and useful arts." Same case. Held valid. "For such charitable and religious purposes and objects, and in such sums and in such manner as will in his judgment best promote the cause of Christ," held invalid. Maught v. Getzendanner, 65 Md. 527; S. C., 57 Am. Rep. 252. For the aid and support of those of my chlidren and their descendants who may be destitute,

and in the opinion of said trustees need such aid," held invalid. Kent v. Dunham, 142 Mass. 216; S. C., 56 Am. Rep. 667. For testator's "next of kin who may be needy," held invalid. Fontaine's Adm'r. v. Thompson's Adm'r., 80 Va. 229; S. C., 56 Am. Rep.

588.

"To be used at discretion by the selectmen of B. for the special benefit of the worthy, deserving, poor, white, American, Protestant, Democratic widows and orphans, residing in B.," held valid. Beardsley v. Selectmen of Bridgeport, 53 Conn. 489; S. C., 55 Am. Rep. 152. "For such charitable institution for women in the city of Chicago as he may select," held valid. Mills v. Newberry, 112 Ill. 123; S. C., 54 Am. Rep. 213. For a home "for aged, respectable, indigent women who have been residents of New London, held valid. Coit v. Comstock, 51 Coun. 352; S. C., 50 Am. Rep. 29. "To be distributed by them (executors) after my decease among my relations, and for benevolent objects, in such sums as in their judgment shall be for the best," held valid. Goodale v. Mooney, 60 N. H. 528; S. C., 49 Am. Rep. 334. For the suppression of the manufacture and sale of intoxicating liquors, held valid. Haines v. Allen, 78 Ind. 100; S. C., 41 Am. Rep. 555. "To assist, relieve and benefit poor and necessitous persons, and to assist and cooperate with any such charitable, religious, literary and scientific societies and associations, or any or either of them, as shall appear to the trustees best to deserve such assistance or co-operation," held valid. Suter v. Hilliard, 132 Mass. 412; S. C., 42 Am. Rep. 444. For "the education of the scholars of poor people "of a certain county, held valid. Clement v. Hyde, 50 Vt. 716; S. C., 28 Am. Rep. 522. "Among such Roman Catholic charities, institutions, schools or churches in the city of New York," as a majority of the trustees should select, and in such sums as they should think proper, held valid. Power v. Cassidy, 79 N. Y. 602; S. C., 35 Am. Rep. 550. "For the purchase and distribution of such religious books as they shall deem best," held valid. Simpson v. Welcome, 72 Me. 496; S. C., 39 Am. Rep. 349. To "distribute to such persons, societies or institutions as they shall consider most deserving," held valid. Nichols v. Allen, 130 Mass. 211; S. C., 39 Am. Rep. 445. For any and all benevolent purposes that he may see fit," held void. Adye v. Smith, 44 Conn. 60; S. C., 26 Am. Rep. 424. "Among such incorporated societies organized under the laws of the State of New York or the State of Maryland, having lawful authority to receive or hold funds upon permanent trusts for charitable or educational uses," as the trustess might select, and in such sums as they should determine, held void. Pritchard v. Thompson, 95 N. Y. 76; S. C., 48 Am. Rep. 9. "To aid indigent young men of a certain town "in fitting themselves for the evangelical ministry," held valid. Trustees, etc., v. Whitney, Conn. Sup. Ct., Jan. 26, 1887, 35 Alb. Law Jour. 384.-ED.]

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CARRIER -EXPULSION OF MOTHER AND CHILDHALF-FARE TICKETS-DAMAGES.—(1) If the conductor refuse to pass a child travelling on half-fare rate because he believes it to be over the limited age, and the mother also leaves the train, she may recover damages, if the refusal be wrongful, although the conductor offer to pass her upon her own ticket without the child. It is unreasonable in such a case to ask a mother to leave her child. (2) If there be a reasonable dispute between the passenger and the conductor as to the validity of the ticket offered, and the passenger obstinately refuse to pay the additional fare de

manded, when able to do that, and insist on being expelled from the train, the jury must take that fact in mitigation of damages, and disallow any compensation for wounded feelings, although the conductor be mistaken in his action. Hall v. Memphis & C. R. Co., 15 Fed. Rep. 57, followed. U. S. Cir. Ct., W. D. Tenn., June 8, 1887. Gibson v. East Tennessee, V. & G. R. Co. Opinion by Hammond, J. (orally).

CONSTITUTIONAL LAW - - STATUTE-COMMERCE.-A statute which requires a license of a person peddling tea, the growth of a foreign country, is unconstitutional. In Brown v. State of Maryland, 12 Whart. 436, it was held that a tax upon the sale of an article was in legal effect a tax upon the asticle itself, and that the law of the State of Maryland requiring persons to take out a license for selling imported goods in the original package was in conflict with the Constitution, in that it purported to tax an import, and sought to regulate commerce with foreign nations. The opinion of Chief Justice Marshall in that case is exhaustive, and it has stood for more than half a century as the settled and unquestioned doctrine of the subject. In Welton v. State of Missouri, 91 U. S. 275, decided in 1875, the question again arose upon a statute of Missouri, which required a license of peddlers selling goods not the growth, produce or manufacture of that State, and it was argued that the license fee was a new tax upon the occupation or calling of the peddler, and not upon the goods themselves. But the court said: "Where the business or occupation consists in the sale of goods, the license tax is upon the goods themselves." The court held that the Missouri statute was in conflict with the Constitution as an attempted regulation of commerce between the States. It permitted the free sale of goods which were of growth or manufacture of Missouri, but taxed the sale of those of the growth of other States. The same rule obviously must apply to a statute which permits the free sale of goods of Vermont growth or manufacture, but taxes the sale of those grown in foreign countries, inasmuch as the clause giving to Congress the power to regulate commerce specified inter-State and foreign commerce in the same section. Under our system of dual government, wherein two existing jurisdictions are exerted over the same territory and people, it is of the highest importance that legislation in each be restricted to the proper boundaries that circumscribe it. Free intercourse and travel between the States and with foreign countries can be safely regulated only by that jurisdiction that looks to the general interests of the nation as a whole rather than the separate advantage of a particular locality. The clauses of the Constitution referred to are couched in clear and explicit language, and the cases cited are directly in point. Vt. Sup. Ct., May 28, 1887. State v. Pratt. Opinion by Powers, J.

are

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EVIDENCE-REPUTATION. Two propositions necessary to be established in order to authorize a conviction under Laws Iowa, 20th Gen. Assem., chap. 142: (1) That the house in question is a house of ill fame; and (2) that it is resorted to for the purposes of lewdness. The provision in the statute that the character of the house may be shown by its general reputation, is therefore not unconstitutional, as subjecting one to a conviction upon evidence of the mere reputation of the house kept by him. It is provided by chapter 142 of the Laws of the Twentieth General Assembly, that "if any person keeps a house of ill fame resorted to for the purpose of prostitution or lewdness, such person shall be punished by imprisonment in the penitentiary not less than six months nor more than five years." And section 4 of the act provides that "the State, upon the trial of any person indicted for keeping a house of ill fame, may for the

purpose of establishing the character of the house kept by the defendant, introduce evidence of the general reputation of the house so kept, and such evidence shall be competent for such purpose." The court instructed the jury that "the burden is on the State to prove that the defendants kept the house in question, and that it was kept by them as a house of ill fame in fact, and by their procurement or permission it was resorted to for the purpose of prostitution or lewdness. For the purpose of establishing the character of the house kept by defendants, evidence of the general reputation of such house, as to reputation, is competent for the consideration of the jury as a circumstance in the case." It is claimed by counsel for appellants that this instruction is erroneous because section 4 of the act above cited, and upon which the instruction is based, is unconstitutional. It is said that such a law deprives the accused of property or liberty without due process of law, because he may be convicted of crime upon evidence of the mere reputation of the house kept by him. It will be observed, that under the statute, two propositions are necessary to be established in order to authorize a conviction for the crime: (1) That the house in question is a house of ill fame, that is, that it is a house of bad repute or evinotoriety; and (2) that it is resorted to for the purpose of prostitution or lewdness. Under the statute in question it is competent to establish the first proposition by proof of the reputation or character of the house. The very fact required to be proved rests upon the character or reputation of the house. To establish the other required fact it is necessary to prove as a fact that the house is resorted to for the purpose of prostitution or lewdness. The defendants' counsel cite the cases of State v. Beswick, 13 R. I. 211; State v. Kartz, id. 528; and People v. Lyon, 27 Hun, 180, as sustaining the objection he makes to the section of the law under consideration. These cases are not in point. The statutes therein declared to be unconstitutional authorized a conviction for crime upon evidence of reputation alone, without proof of the crime denounced by the law. In order to authorize a conviction of keeping a house of ill fame, it is necessary to prove the fact that it is resorted to for the purpose of prostitution or lewdness. We think the law is not unconstitutional, and that the instruction complained of is not erroneous. Iowa Sup. Ct., June 23, 1887. State v. Haberle. Opinion by Rothrock, J.

CRIMINAL LAW- BURGLARY "BUILDING." — A structure in course of erection, intended for a dwelling, but unfit for the purpose for which it is ultimately designed, but used temporarily or permanently for the shelter or occupation of man or beast, or the storage of tools or other personal property for safe-keeping, is a "building" within the meaning of the statute of burglary. It is said a structure which is unfinished, unfit for occupation or the purposes for which it was designed, is not a building within the meaning of the statute. But on considering the objects of the statute, we are fully satisfied that the word "building," as used therein, does not necessarily mean a structure so far completed as to be in all respects fit for the purpose for which it was intended. It doubtless does mean an edifice or structure erected upon land, and so far completed that it may be used temporarily or permanently for the occupation or shelter of man or beast, or for the storage of tools or other personal property for safe-keeping. Webster defines the word "building" as "a fabric or edifice constructed; a thing built." Worcester defines it, "a structure or edifice;' the Imperial Dictionary, fabric or edifice constructed for use or convenience, as a house, church, shop." In La Crosse & M. Ry. Co. v. Vanderpool, 11 Wis. 121, Mr. Justice Paine says: "The

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a

well-understood meaning of the word is a structure which has a capacity to contain, and is designed for the habitation of man or animals or for the sheltering of property." In this case the structure was intended for use and occupation as a residence when completed. Now to hold that it was not a building (does not satisfy the definition of the statute, because it is unfinished; not perfect for the purpose for which it was designed eventually to be used) would be giving the statute a stricter construction than we are disposed to place upon it. We are rather inclined to hold that the Legislature intended to include in the term "building" a dwelling-house not completed, but in the condition in which the one in question was, and in which tools or other articles of personal property were or might be temporarily stored or left for safe-keeping. The language is broad enough to include such an edifice, and we think does include it. But counsel refers in support of his construction of the statute to the cases of Elsmore v. St. Briavells, 8 Barn. & C. 461; State v. McGowan, 20 Conn. 245; McGary v. People, 45 N. Y. 153. Elsmore v. St. Briavells was an action against the hundred to recover satisfaction for damage sustained for setting fire to a building intended for and constructed as a dwelling-house, but which had not been completed or inhabited, and in which the owner had deposited straw and agricultural implements. The act gave the action against the hundred where the fire consumed a house, barn or outhouse It was held the building in that case was not a dwelling-house, though it was intended for one; nor was it an outhouse or barn, within the meaning of the statute, so as to entitle the owner to maintain the action against the hundred. Bayley, J., says: "The hundred are liable to make satisfaction to the party injured by the burning of a house, outhouse or barn, provided a capital offense be committed against that statute by such burning. This building was not a barn within the meaning of that word as used in the statute, though the house had been applied to the purposes which a barn might be used for." State v. McGowan was an information charging the defendant with burning a dwelling-house, and it appeared that the building burned was designed and built for a dwelling-house, but was not completed, ready for the habitation of man. The court held the crime of arson meant the common-law offense, which was defined to be the willful and malicious burning of a dwelling-house which was completed and inhabited, or at least ready for occupation in the condition in which it was. McGary v. People was an indictment under the statute for setting fire to an unfinished building. The indictment was under a statute making it a felony to set fire to or burn any building erected for the manufacture of cotton or woolen goods or both. The court held that the statute applied to a completed building, and not one in the process of construction or erection. These cases furnish but little aid in the construction of our own statutes, for it is obvious, as Mr. Bishop remarks, that the word "building" in a statute will almost always depend for its meaning in some degree on the particular subject, and its connection with other words. Stat. Crimes, $292. And while, as the assistant attorney-general suggests, it may be difficult to say at what time a structure in process of construction presents such a degree or state of completion as that it may be described as a building in the sense of the statute, still we think the edifice in question may be properly denominated a building, within the meaning of section 4409. In the connection in which the word is used it cannot import a finished structure ready for use, as a residence, for the words are, "any other building not adjoining or occupied with a dwelling-house." The other building was a structure different from a dwelling-house, as those words were used in this and the

two preceding sections. We think the provision was intended to include any building not within the curtilage of which property might be stored or men or animals sheltered. There are cases which show that the word is often used in statutes in that sense. In Rex v. Worrall, 7 Car. & P. 516, an unfinished building intended as a cart-shed, which was boarded up on all its sides, had a door with a lock to it and the frame of a roof, with loose grass thrown upon it, but not thatched, was held a building. In Queen v. Manning, L. R., 1 Cr. Cas. 338, an unfinished house, of which the walls were built and finished, and the roof on and finished, considerable part of the flooring laid, and the internal walls and ceilings prepared ready for plastering, was held to be a building. This shows that a building, as the word is often used, does not necessarily imply a completed structure. In Barnett v. State, 38 Ohio St. 7, a defendant was indicted for the burglary of a barn. The proof showed that the building which had been broken and entered was erected by the owner on his farm for a dwelling-house, but had never been occupied or used as such; that the owner had for several years, and ever since its erection, used it to store wheat after it was threshed, and corn after it was husked, such grain being the products of the farm on which the building was erected; and the court held the building a barn within the meaning of the statute. In People v. Stickman, 34 Cal. 242, the defendant was indicted for burglary for breaking and entering a chicken-house in the nighttime, with the intent to steal the domestic. fowls there being. An objection was taken that to constitute burglary there must be breaking and entering into a house, room or tenement where some person dwells or lives. But the court decided that the language, "any dwelling-house, or any other house whatever, or tent, or vessel or other water craft," was broad enough to include buildings of any kind, and used for any purpose, and sustained the conviction. In Orrell v. People, 94 Ill. 456, in an indictment for breaking and entering a stable, the objection was taken that it should have been averred that the defendant broke and entered a building. But the court said that the word 'stable," as the word was commonly used and understood, was equivalent to "building." In Com. v. Squire, 1 Metc. 258, the defendant was indicted for feloniously setting fire to a building erected for a dwelling-house, but not completed or inhabited. It was objected that the indictment was bad, and did not charge a crime, because the building described was not completed. The court say, in answer to the objection: "The ground of the objection is that a structure cannot be considered a building while it is yet incomplete and unfinished in any respect. Looking at the objects of the statute and its provisions, we are fully satisfied that the term 'building,' as used in the statute, does not necessarily import a structure so far advanced as to be in every respect finished and perfect for the purpose for which it was designed eventually to be used. If this were so, then the burning of a structure designed for a dwelling-house at any period before the last door was hung would not be punishable. We cannot adopt a construction of the statute which would leave open so wide a door to escape from its penalties." Wis. Sup. Ct., June 22, 1887. Clark v. State. Opinion by Cole, C. J.

ARSON-SETTING FIRE TO CHURCH.-A statute of Kentucky (ch. 29, art. 7, Gen. Stat.) provided “that if any person shall willfully and unlawfully burn a powder-house, warehouse, store-house, stable, barn or any house or place where wheat, corn, or other grain, fodder, hemp, cotton, wood, fruit, ice, hay or straw is usually kept, or any other house whatever, or any stack, rick or shock of hay, fodder, etc., pile of lumber, plank, rails, posts, hop-poles, shingles [and other

property specifically mentioned], he shall be confined in the penitentiary not less than one nor more than six years." Held, that the words,." or any other house whatever" were sufficiently broad to include a church. The unlawful and willful burning of a church was not arson in the offender by the rules of the common law. He was liable to fine and imprisonment only under an indictment for malicious mischief; and it is therefore urged that the burning of a church building, not being specifically mentioned, is not embraced by the statute; that after the enumeration of the various subjects of the offense, such as powder. houses, warehouses, barns, stables, store-houses, or places where grain, hemp or cotton are kept, the words, or any other house whatever," are restricted iu meaning to buildings or objects of a like kind; and such is ordinarily the rule of construction in interpreting the meaning of a statute. The Legislature, in the list of offenses enumerated by this statute, and for which punishment is inflicted, seems to have omitted churches, school-houses, etc., but indirectly intended, by the general language used, to embrace all kinds of buildings; and while church edifices and school-houses should have been more prominent in the minds of the Legislature, and therefore specially mentioned, than a barn, stable or pile of lumber, at the same time it is unreasonable to suppose that the willful and unlawful burning of a stable or pile of lumber should be made an offense, the punishment of which is confinement in the State prison at hard labor, while the burning of a house of public worship is only to be considered a misdemeanor, and the offender punished only by fine and imprisonment in the county jail. This court, in Wallace v. Young, reported in 5 T. B. Mon. 155, held under a similar statute that the burning of a school-house was embraced by the words, or any other house whatever." The construction, as there said, should be as broad as the words naturally import. The legislative intention must control; and where there is no provision of the statute punishing the burning of church property as a distinct offense, the words, "or any other house whatever" should be held to embrace a church building; and the law-making power evidently intended, in using such comprehensive language, to make it apply to all houses, the distinction of which is not made the subject of punishment by some other statute. The demurrer to the indictment was therefore properly overruled. Ky. Ct. App., June 9, 1887. McDonald v. Commonwealth. Opinion by Pryor, C. J.

made to a physician or surgeon while he is examining the party as a patient. Quaife v. Chicago & N. W. Ry. Co., 48 Wis. 513; S. C., 33 Am. Rep. 821; Barber v. Merriam, 11 Allen, 322; Fay v. Harlan, 128 Mass. 244; Gray v. McLaughlin, 26 Iowa, 279; Matteson v. New York Cent. R. Co., 35 N. Y. 487; Louisville, N. A. & C. R. Co. v. Falvey, 101 Ind. 409. Declarations however of a party with regard to a present and existing pain or suffering, or with regard to the present condition of the body or mind, may generally be shown by any person who has heard them. Insurance Co. v. Mosley, 8 Wall. 397; Hatch v. Fuller, 131 Mass. 574; Denton v. State, 1 Swan, 279; Illinois Cent. R. Co. v. Sutton, 42 Ill. 438; Collins v. Waters, 54 id. 485; Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 409; 1 Greenl. Ev., § 102, and cases there cited; 1 Whart. Ev., § 268, and cases there cited. These are authorities seemingly opposed to this last proposition. Reed v. New York Cent. R. C., 45 N. Y. 574; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537. We think however that whenever evidence is introduced tending to show a real injury or a real cause for suffering or pain, as in this case, the declarations of the party concerning such suffering or pain while it exists, and as simply making known an existing fact, should be allowed to go to the jury for what they are worth, and the jury in such a case should be allowed to weigh them, and to determine their value. If they were made to a physician or surgeon while he was examining the party as a patient, for the purpose of medical or professional treatment, and for that purpose only, the declarations would be of great value. If however they were made at any other time or under any other circumstances, they might not be of such great value. If made casually to some person not a physician, and with whom the party had no particular relations, they might possibly, in some cases, be of but very little or no value. Reed v. New York Cent. R. Co., 45 N. Y. 574. Yet generally they should be permitted to go to the jury for what they are worth. Insurance Co. v. Mosley, 8 Wall, 397; Hatch v. Fuller, 131 Mass. 574; Rogers v. Crain, 30 Tex. 284; Matteson v. New York Cent. R. Co., 35 N. Y. 487; Gray v. McLaughlin, 26 Iowa, 279; Kennard v. Burton, 25 Me. 39; State v. Howard, 32 Vt. 380; Lush v. McDaniel, 13 Ired. 485. Also if the declarations are made to a physician or other person merely for the purpose of obtaining testimony in the party's own case, they might be of but very little value, and possibly might in some cases be wholly excluded. Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537. But the mere fact that the declarations are made after suit has been commenced, and while it is pending, will not be sufficient to exclude the declarations; and generally, they should be allowed to go to the jury. Barber v. Merriam, 11 Allen, 322; Hatch v. Fuller, 131 Mass. 574. Kan. Sup Ct., June 11, 1887. Atchison, T. & S. F. R. Co. v. Johns. Opinion by Valentine, J.

land v. Inhabitants of Marlborough, 99 Mass. 48; Insurance Co. v. Mosley, 8 Wall.397, 405. There are probably no authorities opposed to these propositions, and yet there are authorities which seem almost to oppose the last one, especially where the declarations are

INSURANCE-APPORTIONMENT-INDIVISIBLE CONTRACT. Where insurance is apportioned in the policy, part to a building and part to the furniture and household goods therein, and the policy prohibits the taking of additional insurance on " the property insured, or any part thereof," without the written consent of the company, taking additional insurance merely on the building, without the knowledge or consent of the company, avoids the entire policy. Where the property covered by one policy, although consisting of separate items, appears to be so situate as to constitute

amounts of insurance be apportioned to each separate item or class of property, if the consideration for the contract and the risk are both indivisible, the contract must be treated as entire, nevertheless. To such a policy the principles governing entire and indivisible

contracts are applicable, for the reason that the matter which renders the policy void as to part affects the risk of the insurer in respect to the other items in the same manner as it affects those items in respect to which the contract is voided. In such a case the only effect of apportioning the amount of the insurance upon the separate items of property specified in the policy is to limit the extent of the company's liability to the sum specified upon each item or class of property insured. While many well-considered cases seem to justify a much broader conclusion than that above stated in regard to the indivisibility of insurance contracts, we believe that in the main, the authorities may be harmonized on the principles above stated, which we regard as the better view of the subject. Etna Ins. Co. v. Resh, 44 Mich. 55; McGowan v. People's Ins. Co., 54 Vt. 211; Gottsman v. Pennsylvania Ins. Co., 56 Penn. St. 210; Schumitsch v. American Ins. Co., 48 Wis. 26; Hinman v. Hartford Ins. Co., 36 id. 159; Plath v. Minnesota, etc., Ass'n, 23 Minn. 479; Bowman v. Franklin Ins. Co., 40 Md. 620; Moore v. Virginia, etc., Co., 28 Grat. 508; Lovejoy v. Augusta Ins. Co., 45 Me. 472; Richardson v. Maine Ins. Co., 46 id. 394; Gould v. York Ins. Co., 47 id. 403; Barnes v. Union Mut. Ins. Co., 51 id. 110; Day v. Charter Oak Ins. Co., id. 91; Lee v. Howard Ins. Co., 3 Gray, 583; Kimball v. Howard Ins. Co., 8 id. 33; Friesmuth v. Agawam, etc., Co., 10 Cush. 537; Brown v. People's Mut. Ins. Co., 11 id. 280; Garver v. Hawkeye Ins. Co., 28 N. W. Rep. 555; Wood Fire Ins. § 165. In the following among other cases, which involved suits upon insurance policies wherein different properties were insured for separate sums, the contracts were held divisible, and the policyholder in each instance allowed to recover as to some of the separate items, notwithstanding there had been a violation of some condition which avoided the policy as to the other items included in the same policy: Merrill v. Agricultural Ins. Co., 73 N. Y. 452; Trench v. Chenango Ins. Co., 7 Hill, 122; Koontz v. Hannibal, etc., Co., 42 Mo. 126; Loehner v. Home Ins. Co., 17 id. 247; Commercial Ins. Co. v. Spankneble, 52 Ill. 531; Hartford Ins. Co. v. Walsh, 54 id. 164. While we concur in the suggestion that courts incline toward such a liberal construction of insurance contracts in favor of the assured, as if possible to avoid a forfeiture, yet where parties have without fraud, mistake, or surprise, deliberately entered into a contract, that alone must be looked to as furnishing the measure of their respective rights and obligations. Phenix Ins. Co. v. Lamar, supra. Courts cannot by construction compel insurauce companies to assume obligations which they have fairly guarded against, in order to protect themselves against imposition, so that their solvency may be legitimately preserved in order to afford indemnity to policy-holders who observe their contracts. Ind. Sup. Ct., May 24, 1887. Havens v. Home Ins. Co. Opinion by Mitchell, J.

STEALING AND EMBEZZLING MAIL

POST-OFFICE MATTER - DECOY.— A “decoy or test was prepared as follows: A post-office inspector wrote a letter, placed it in an envelope, sealed, and directed it to a fictitious person, and to a place where there was no post-office; then wrapped it up in a newspaper, and inclosed both letter and paper in an ordinary newspaper wrapper,said wrapper sealed and properly stamped and directed as the envelope inside. This packet was then handed to a post-official, to be placed by him as a "decoy or test," in what is known as the "nixes basket," a receptacle for apparently worthless and unmailable matter, said "nixes" to be opened and examined by a postal employee, who was to send any letter or article of value found therein to another official, to be forwarded to the dead-letter office. Held, that this was not a mailing of the packet, and it did not become "mail matter," in the meaning of section

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5467, 5469, Rev. Stat. I do not hold that what is called in the testimony in this case a decoy or "test" letter, or the contents thereof, might not, when regularly mailed, be the subject of embezzlement, and punishable under these sections. But I think it should get into the mail in some of the ordinary ways provided by the postal authorities, and become fairly and reasonably part of the "mail matter," under control of the postal authorities. In the case of U. S. v. Cottingham, 2 Blatchf. 470, cited by the district attorney, it was held that the fact that the letter mailed was a decoy letter would not prevent it being the subject of embezzlement. But it appears that the letter in that case was mailed, and presumably, from the statement of the case, regularly mailed. Also in the case of U. S. v. Foye, 1 Curt. 464, it appeared that the letter was regularly mailed. The judge in his decision uses the following language: "This letter was mailed precisely like other letters." The case of U. S. v. Whittier, 5 Dill. 35, cited above, was a case for a violation of a different part of the postal laws, but the opinions of Judges Dillon and Treat are interesting in this connection as to the manner in which these statutes should be construed, the matter of decoy letters being also discussed. No case from any of the courts of the United States has been cited upon the precise points made in this case. Some English cases have been referred to which are in point. In the case of Queen v. Gardner, 1 Car. & K. 628, it was held, in effect, that the embezzlement of a decoy letter, or its contents, was not stealing a "post letter," within the statute (1 Vict. chap. 36), but the taking of the contents was larceny. This case was subsequently doubted in the case of Queen v. Young, 1 Den. Cr. Cas. 198; but under this case, even a decoy letter must be deposited in the ordinary way. In the case of Queen v. Rathbone, 2 Moody, Cr. Cas. 242, it was held as follows: 'An inspector secretly put a letter, prepared for the purpose, containing a sovereign, among some letters which a letter carrier, suspected of dishonesty, was about to sort. The letter carrier stole the letter and sovereign. Held, not rightly convicted under 1 Vict. 31, 36, § 26, of stealing a post-letter, such letter not having been put in the post in the ordinary way, but rightly convicted of larceny of the sovereign laid as the property of the postmaster-general." In the case of Queen v. Shepherd, 25 Law. J. 1856 (N. S.), Com. Law. 52, last division of volume, the head-notes, which give the facts and conclusions of the court, are as follows: "The post-office authorities, having suspicions of the dishonesty of the prisoner, who was a sub-sorter of letters at the general post-office, London, caused a letter containing marked money to be prepared, directed, sealed, and stamped. This letter one inspector delivered in at the window of the outer hall of the general post-office to another inspector, who handed it over to a third, who kept it locked up all night, and on the following morning gave it to a sorter to put in among the letters which the prisoner had to sort. This was done. The prisoner secreted the letter, opened it, and the marked money was found on him. The ordinary mode of posting letters at the general post-office is by putting them into the letter-boxes there. It did not appear that either the inspector who received the letter in at the window, or the inspector who kept it all night, were authorized by the course of their official duty so to receive or keep letters. Held, that this letter was not a post-letter, within the meaning of the statute, 1 Vict. chap. 36, and that the prisoner could only be found guilty of the simple larceny of stealing the money." It may be that the method employed by the officials in this case is very proper to unveil and disclose a dishonest official, and thereby rid the department of such persons, and it may be that a prosecution for larceny, under proper indictment, would