The theory adopted by the court in trying the case, as evidenced by the instructions given of its own motion, was that if the mortgage after its execution and delivery was modified by agreement to the effect that plaintiff might sell the property and apply the proceeds on the debt it was given to secure, and that if he sold pursuant to this agreement, defendant had no right to take possession of the property in question, but that if he sold the property without any agreement or modification of the mortgage, then by its express terms defendant had the right to take possession of the property, sell it and apply the proceeds to his debt. This theory was the correct one. Cottey v. Barnes, 20 Ver. 78; McNeal v. Emmerson, 15 Gray, 384: Huggans v. Freyer, 1 Lou. 276; Saxton v. Williams, 15 Wis. 292-8.

There is nothing in the objection made that the instructions are erroneous in that they ignore the fact that plaintiff tendered defendant the amount received for the hogs he sold which defendant refused to accept. The instructions as given were more favorable in this respect to plaintiff than the case made in the pleadings, for under the replication the only modification of the mortgage claimed to have been made was that plaintiff should have the right to sell the property and apply the proceeds on the debt, whereas under the instructions a finding was authorized for plaintiff if it only appeared that under such modification he sold the property for the purpose of applying the proceeds on the debt without finding the further fact that the proceeds were either applied or offered to be applied thereon. If on the other hand he sold the property without any modification of the mortgage as set up in the replication, the mere tender of the proceeds of such sale to defendant would not, unless accepted by him, be sufficient to charge him with a waiver of the conditions of the mortgage or his rights under it. Patchin v. Pierce, 12 Wend. 61.

Judgment affirmed, in which all concur, except Judge Black, who did not sit.

NEW YORK COURT OF APPEALS ABSTRACT.

BONDS MATURITY - DEFAULT IN INTEREST PAYMENTS BONA FIDE PURCHASER-BURDEN OF PROOF

-PRESUMPTION.-(1) Interest-bearing bonds, secured by mortgage, provided that the principal should become due upon non-payment of accrued interest on demand, or failure to make stipulated semi-annual contributions to a sinking fund provided for, and the continuance of such default for six months. In au action involving the title of a purchaser of the bonds as against the owner, from whom they had been stolen, it appeared that the interest and sinking-fund contributions were several years in arrears, and that a foreclosure suit had been begun by the bondholders, to the knowledge of the purchaser, when the latter bought the bonds. The statement of facts on which the case was tried, while not expressly alleging a demand of interest made by the bondholders, used the word "default" in regard to the non-payment thereof. Held, that the language of the statement of facts must be construed to mean that the demand necessary to render the principal due was made or dispensed with; that at any rate, the non-payment of the contributions to the sinking fund caused a default, which after the expiration of six months made the principal due; that the foreclosure suit sufficiently evinced the election of the bondholders to take advantage of the default; and that therefore the purchasers acquired the bonds when overdue, and got no title as against the former owners. (2) In an action brought by the former owner of negotiable paper, from whom it has been stolen,

against a subsequent purchaser of it, the burden is on the defendant to show that he is, or has succeeded to the rights of a bona fide holder; and if it appears that he bought the paper when overdue, it will not be presumed that any prior holder succeeding the thief acquired the paper before its dishonor. June 7, 1887. Northampton Nat. Bank v. Kidder. Opinion by Peckham, J.

CARRIERS ING LINES

ACTION AGAINST PARTIES -CONNECT-
BILL OF LADING - PREVIOUS AGREE-

MENT.- (1) Shippers who are in control of merchan-
dise shipped, and are both consignors and consignees,
should be assumed, in the absence of evidence to the
contrary, to have sufficient title to enable them to
maintain an action against the carrier. The merchan-
dise being whale oil, the product of a whaling voyage,
evidence that seamen on the whaling vessels "were
interested in the oil," is not sufficient to establish that
they are partners or joint-owners, so as to require them
to be joined as plaintiffs. (2) A carrying corporation
which transports goods over a portion of a continuous
line of transportations may contract to carry beyond
the terminus of its route, or two corporations owuing
continuous lines may become joint carriers. It is the
well-settled law in this State that a carrying corpora-
tion over a portion of a continuous line of transporta-
tion may contract to carry beyond the terminus of its
route, and that such a contract is not ultra vires.
Weed v. Sarotoga & S. R. Co., 19 Wend. 534; Wylde v.
Northern R. Co., 53 N. Y. 156; Root v. Great Western
R. Co., 45 id. 524; Condict v. Grand Trunk R. Co., 54
id. 500. Such contracts have been upheld sometimes
'upon the ground of estoppel, and sometimes upon the
ground that they were incident to the business for
which the contracting corporation was organized.
While the defendants admit that such contracts could
be made, they contend that the Pacific Mail Steam-
Ship Company could not contract to receive goods
away from its terminus, and to transport them to
such terminus over the route of another carrier, and
thence transport them over its own route to their
destination; that is, while they admit that the steam-
ship company could receive goods at the city of New
York, and contract to carry them to Panama on the
Pacific coast, they deny that it could receive goods at
Panama, and agree to transport them to the city of
New York. We see no reason for distinguishing be-
tween the two kinds of contracts, and for holding that
the company could make the one kind and not the
other. If when it receives goods at New York for
transportation to Panama it is engaged in business
authorized by its charter, or incident to such business,
then when it procures freight at Panama, for trans-
portation to Aspinwall, and thence to New York, it is
also engaged in promoting the legitimate business for
which it was organized. It thus procures freight for
transportation upon its steamships, and the business it
thus does at Panama, and across the isthmus, is just as
legitimate as it would be to establish agencies on the
Pacific coast to solicit freight for transportation from
Aspinwall to New York, or to contract with news-
papers there to advertise the carrying of such freight.
Cannot a railroad company take freight for trans-
portation at a point a few rods from its depot? And
if it may be a few rods, why not a few miles? If it
may have a depot for the receipt of freight one mile
from its terminus, why may it not have a depot fifteen
or twenty miles therefrom, and transport the freight
thence to its road by any means that it chooses to
adopt? The Panama Railroad Company terminated
on the Pacific coast at Panama, and there it owned
lighters to go out into the ocean to take freight from
vessels. If it could send its lighters out one mile, why
could it not send them out several miles, for the same

or

been apprehended by any one. It is obvious that no so such thing was likely to occur." In Loftus v. Union Ferry Co., 84 N. Y. 455, plaintiff's intestate, a child six years old, while leaving one of the defendant's boats, fell through one of the openings in the guard rails into the water, and was drowned. The plaintiff recovered, and it was held that the verdict was properly set aside. Andrews, J., writing the opinion of the court, said: The law does not impose upon the defendant the duty of so providing for the safety of passengers that they shall encounter no possible danger, and meet with no casualty in the use of appliances provided for it. It was possible for the defendant so to have constructed the guard that such an accident as this could not have happened, and this, so far as appears, could have been done without unreasonable expense trouble. If the defendant ought to have foreseen that such an accident might happen, or if such an accident could have reasonably been anticipated, the omission to provide against it would be actionable negligence. But the facts rebut any reference of negligence on this ground. The company had the experience of years certifying to the sufficiency of the guard. That it was possible for a child, even a man, to get through the opening, was apparent enough; but that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty." In Burke v. Witherbee, 98 N. Y. 562, while an empty car was descending a mine, the hook which fastened it to the cable became detached from the car, and it ran down the mine, and killed plaintiff's intestate. The judgment for plaintiff was reversed, because there was not sufficient proof of actionable negligence on the part of the defendants. The judge writing the opinion said: "In this mine alone cars drawn by a hook must have made several hundred thousand passages without a single accident. What more could any reasonable or prudent man have to justify him in believing that this convenient appliance was also a safe and proper oue? What greater or different test could it have been subjected to before a mine-owner could use it without the imputation of negligence? It seems to us quite inadmissible, if not preposterous, to attribute negligence to a mine-owner for using an implement which had been employed in different mines, and which under varying conditions, upon countless occasions, uuiformly answered its purpose without injury to any one." The application of these authorities to this case is quite obvious. No construction is ever so made that it may not be made safer; but as a general rule, when an appliance, or machine, or structure not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe, and convenient, its use may be continued without the imputation of culpable imprudence or carelessness. On the evening when this accident happened the evidence teuds to show that it was dark, and that the platform was not plainly visible. It was somewhat lighted by light which came from the car windows, the depot windows, and a lantern in the hands of the conductor; and it does not appear that it was ever lighted in any other way, or that it was usual to light such platforms in any other way. The fact that it was dark made it incumbent upon the plaintiff to take the greatest care. She could have kept hold of the iron railing until her foot touched the platform, and then she would have been safe. It was not the duty of the defendant to furnish some one to aid her in alighting from the car. June 7, 1887. Lafflin v. Buffalo & S. W. R. Co. Opinion by Earl, J.

CRIMINAL LAW - EVIDENCE -CORROBORATION OF ACCOMPLICE. On the trial of an indictment for forgery, there was evidence, in addition to that given by the accomplice, that the accused had once before been

convicted of the same crime; that the accomplice and the accused had been friends and associates; that about the time the forgery was committed, the accused was in the city where the crime was committed, under an assumed name; and that upon his arrest his conduct and conversation were such as to show that he knew of the forgery. Held, that there was evidence to corroborate the accomplice, within Code Crim. Proc. N. Y., § 399, providing that "a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." June 28, 1887. People v. Elliott. Opinion by

Earl, J.

ABSTRACTS OF VARIOUS RECENT DE-CISIONS.

ABATEMEMT-SLANDER OF TITLE-INJURY TO PROPERTY. The plaintiff in an action claimed damages from the defendants in respect of an alleged fraud and malicious libel published by them of him in his character of wine merchant and wine importer. He alleged in his statement of claim that he was a wine merchant and importer, and the registered proprietor of a trade-mark which consisted of the words, "The Delmonico," and the figure of a woman, and was a dealer in a brand of champagne introduced by him, and known as "The Delmonico" champagne: that the defendants falsely and maliciously published statements to the effect that the champagne bearing the "Delmonico" brand was not the wine it was represented to be, unless it bore the name of a particular French firm of dealers and importers, who, if such wine were shipped from France, would take proceedings to vindicate their rights in England, meaning thereby that the plaintiff had no right to use his registered trade-mark; that in using such trade-mark he was acting fraudulently; that the wine imported and sold by the plaintiff was not genuine wine; and that no person other than the defendant Mege had the right to use the word "Delmonico" as a trade-mark. The plaintiff alleged damage to his credit and reputation and trade and business of wine merchant. After the statement of claim was delivered the plaintiff died, but an order was made that his widow and executrix should carry on the action. At the trial, after the counsel for the plaintiff had opened his case, the learned judge directed a verdict of nonsuit and judgment for the defendants on the ground that the cause of action died with the plaintiff. The plaintiff moved for a new trial on the ground of misdirection. Held, that the causes of action in the statement of claim were separable, and that which was based on the alleged libel as affecting the personal reputation of the plaintiff as a trader and wine importer died with him, and so far the nonsuit was right; but that which was based on the statement that the plaintiff had no right to use his trade-mark or brand was in the nature of slander of title, and survived to his personal representative, and consequently to that extent the nonsuit was erroneous, and there ought to be a new trial in respect of the damage done to his estate by reason of such statement. Q. B. Div., 56 L. T. Rep. (N. S.) 662, April 1, 1887. Hatchard v. Mege. Opinions by Day and Wills, JJ.

CRIMINAL LAW-WILLFUL OR MALICIOUS DAMAGE TO REALTY-PICKING MUSHROOMS.-By section 52 of the Malicious Injuries to Property Act, 1861, it is enacted that "whosoever shall willfully or maliciously commit any damage, injury or spoil to or upon any real or personal property whatsoever, either of a public or a private nature, for which no punishment is hereinbefore provided, shall on conviction thereof before a

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positions are antagonistic to each other, for if a trust was created, the possession of the bonds and the legal title thereto remained in the trustee. In that case there was no delivery to the donee, and consequently no valid executed gift; while if there was a valid

lings' worth of mushrooms from such field. The appellant turned cattle out to graze in the said field; he did not cultivate it for the growth of mushrooms, but they grew there in a wild state. The respondent did no damage to the grass or fences. The appellant thereupon took out a summons against the respondent under section 52 of the Malicious Injuries to Property Act 1861, charging the respondent for having willfully and maliciously committed damage to certain mushrooms to the amount of 2s. The justices dismissed the summons, being of opinion that mushrooms growing in a wild and spontaneous manner, not being the subject of larceny at common law or by statute, the circumstances of this case did not come within the provisions of section 52 of the said act. From such decision the appellant now appealed. Held (affirming the decision of the justices), that no offense was established in this case within the meaning of section 52 of the Malicious Injuries to Property Act, 1861. To constitute an offense within that section there must be proof of actual positive damage to the realty. Mere proof of damage to the products growing upon the realty, and consequent loss to the owner of such products, is not sufficient to establish an offense within the meaning of said section. Q. B. Div., July 5, 1887. Gardner v. Mansbridge. Opinions by Smith and Wills, JJ.

GIFT-INTER VIVOS-DELIVERY.-A father invested $2,000 in bonds for the benefit of his daughter, who lived at a distance, but by her request kept them in his possession and under his control. The bonds never passed into her hands, but he collected the interest paid on them, and remitted it to her. Held, that there had been no delivery, and that the transaction did not constitute a valid gift inter vivos. A gift inter vivos has been described as an immediate, voluntary and gratuitous transfer of his personal property by one to another. It is essential to its validity that the transfer be executed, for the reason that there being no consideration therefor, no action will lie to enforce it. A gift inter vivos has no reference to the future, but goes into immediate and absolute effect. To render the gift complete, there must be an actual delivery of the chattels, so far as the object is capable of such a delivery, and without such a delivery the title does not pass. If the subject be not capable of actual delivery, there must be some act equivalent to it. The necessity of delivery," says Chancellor Kent, has been maintained in every period of the English law." The donor must part, not only with the possession, but with the dominion and control, of the property. An intention to give is not a gift, and so long as the gift is left incomplete a court of equity will not interfere and give effect to it. Gray v. Barton, 55 N. Y. 68; Martin v. Funk, 75 N. Y. 134; 2 Kent Com. 438; Noble v. Smith, 2 Johns. 52; Pearson v. Pearson, 7 id. 26; Grangiac v. Arden, 10 id. 293; Hooper v. Goodwin, 1 Swan, 486; Picot v. Sanderson, 1 Dev. 309; Pennington v. Gittings, 2 Gill & J. 208; Gano v. Fisk, 43 Ohio St. 462. But it was further contended that there was not only a gift, but that the father constituted himself a trustee for his daughter. In this connection the language of the court in Young v. Young, 80 N. Y. 430, finds a direct application in the present "The transaction," says Rapallo, J., in delivering the opinion of the court, "is sought to be sustained in two aspects: First, as an actual executed gift; and secondly, as a declaration of trust. These

case.

transferred to the donee, and no trust was created." It is manifest that there was an inchoate gift of the bonds by the decedent which he never completed; but we find nothing that can be construed into a declaration that he held them in trust, or that he regarded himself as standing, in reference to the bonds, in a fiduciary relation to his daughter. If a gift is imperfect at law, and for want of consideration cannot be enforced, a court of equity will not aid the donee by construing it into a declaration of trust. In Milroy v. Lord, 4 De Gex, F. & J. 274, in referring to the modes of making a voluntary settlement, the principle is announced that if the settlement is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust; for then every imperfect instrument would be made effectual by being converted into a perfect trust. The owner of property that is meant to be donated may at the last moment before delivering it change his mind; and in such case equity will not virtually divest him of his property by creating a trust in favor of a volunteer. By the civil law, however absolutely a donation inter vivos might have been made, yet if the object of the donor's bounty proved ungrateful, he was permitted in certain specified cases to revoke the donation. But by the common law, when the gift is perfect, by delivery and acceptance, it is then irrevocable; and hence until there is a final delivery of the subject the donor will continue vested with the title. The leading case on this point is Antrobus v. Smith, 12 Ves. 39, in which Gibbs Crawford made the following indorsement upon a receipt for one of the subscriptions in the Forth & Clyde Navigation: "I do hereby assign to my daughter, Anna Crawford, all my right, title and interest of and in the inclosed call, and all other calls, of my subscription in the Forth & Clyde Navigation." As this was not a legal assignment, and was therefore without effect as a gift, it was argued that the father meant to make himself a trustee for his daughter of the shares. But Sir W. Grant, M. R., observed: "Mr. Crawford was no otherwise a trustee than as any man may be called so who professes to give property by an instrument incapable of conveying it. He was not in form declared a trustee, nor was that mode of doing what he proposed in his contemplation. He meant a gift. He says he assigns the property. But it was a gift not complete. The property was not transferred by the act.

Could he himself have been compelled to give effect to the gift by making an assignment? There is no case in which a party has been compelled to perfect a gift which in the mode of making it he has left imperfect. There is locus pænitentiæ as long as it is incomplete." In Jones v. Lock, L. R., 1 Ch. Div. 25, a check of £900 was put by the father into the hands of his child, signifying in strong terms his intent to give in præsenti the check to the child. He subsequently took the check and locked it up, saying he should keep it for the child, and died the same day. A bill was brought in behalf of the child against her father's representatives to enforce his interest in the check as a trust. Lord Cranworth said: "This case turns on a very short question-whether the father intended to make a declaration that he held the property in trust for the child-and I cannot come to any other conclusion than that he did not. It was all very natural, but the father would have been very much surprised if he had been told that he parted with the £900, and could no longer dispose of it; and that the

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child by his next friend could have brought an action of trover for the check." It is obvious, and well settled by authority, that before the owner can be held as a trustee for the benefit of a mere volunteer, there must be a distinct, perfect and unequivocal declaration of trust. There should be an expression of an intention to become a trustee; not that the owner should use technical words of language, but he should declare in unmistakable terms that he means to stand in a fiduciary relation to the object of his bounty. The record shows no such declaration by the decedent, and his acts were wholly inconsistent with the idea of making himself a trustee. There are no reasonable grounds for concluding that when he invested the bonds in his business without the knowledge of his daughter he deemed himself as acting under a trust which he had assumed and declared. If in the alleged purchase and setting apart of the bonds as the gift to his daughter, and assenting to their being left in his custody, he had made use of words expressing a gift which was never perfected by delivery, such words would have shown an intention to give property over to another, and not to retain it in his (the donor's) hands for any purpose, fiduciary or otherwise. Richards v. Delbridge, L. R., 18 Eq. 11, 15. In the case last cited, Delbridge, who was possessed of leasehold business premises and stock in trade, purported to make a voluntary gift in favor of his grandson, E. B. Richards, who was an infant, and assisting him in his business, by the following memorandum, signed and indorsed on the lease: "This deed, and all thereto belonging, I give to E. B. Richards from this time forth, with all the stock in trade." The lease was then delivered to the mother of the grandson in his behalf. It was held by Sir G. Jessel, M. R., that there was no valid declaration of trust of the property in favor of the grandson. In the same line of decisions are numerous other authoritative cases, but we deem it unnecessary to refer to them. Ohio Sup. Ct., April 26, 1887. Flanders v. Blandy. Opinion by Dickman, J.

GUARANTY WHEN NOTICE OF ACCEPTANCE UNNECESSARY. It is unquestionably true that a contract of guaranty is a transaction between the guarantor and guarantee, and is separate, and in many respects entirely distinct from the contract between the latter and the principal. In order to the completion of such a contract, it is essential, as in all other contracts, that the minds of the parties shall have mutually asseuted to its terms. Where therefore there is a mere proposal, on the part of those sought to be charged as guarantors, to guaranty the faithful performance of some obligation which another may enter into, provided credit shall be extended or a duty undertaken, authorities all agree that the contract remains incomplete until the original obligation is entered into, and the proposition of guaranty accepted, and due notice thereof given. This is so upon the familiar principle that while the proposition remains pending, without notice of acceptance, that simultaneous concurrence of mind, essential to the completion of a contract, has not taken place. Where however the guaranty is for the fulfillment of a contract already made, or for one executed contemporaneously with the contract of guaranty, or for the payment of an existing debt, or where the contract of guaranty is upon a consideration distinct from the credit extended to the principal debtor, and which moves directly between the guarantor and guarantee, notice of acceptance is unnecessary. In such cases the acceptance of the guaranty, and the performance of the consideration upon with it rests, is all that is essential to make the contract complete and enforceable. Davis v. Wells, 104 U. S. 159; Wills v. Ross, 77 Ind. 1; Kline v. Raymond, 70 id. 271; Cooke

v. Orne, 37 Ill. 186. The contract here in question purports to have been made, in part at least, upon an independent consideration, the receipt of which the guarantors acknowledged. It bears upon its face indisputable evidence that the contract between the guarantee and the principal debtor had either been concluded, or that the two contracts were executed as part of the same transaction. The form of the obligation is that of a present undertaking, and purports to be an absolute guaranty of the fulfillment of an existing, consummated contract. Notice of its acceptance was therefore not necessary. Ind. Sup. Ct., June 21, 1887. Furst & Bradley Manuf'g Co. v. Black. Opinion by Mitchell, J.

INSURANCE FRIENDLY SOCIETY — SICKNESS - OLD AGE-NATURAL DECAY.-The respondent, over eighty years of age, belonged to a friendly society, one of the rules of which provided that every member, after paying a certain amount of contributions, falling sick, lame, or blind, or otherwise disabled from work, should be entitled to receive a certain weekly amount from the funds of the society for sixteen weeks, if his illness continues so long, and half pay for the remainder; and another provided that where a member falls sick, lame or blind, he is to give notice to the stewards, with a certificate from the surgeon of the society, stating the cause of his indisposition. The surgeon of the society certified to the appellants (stewards of the society) that the respondent "continued unable to work by reason of natural decay." The respondent drew sicks pay for some weeks; then the appellants refused to allow him any more, holding that the certificate did not entitle him to receive it. Held, that incapacity to work arising from natural decay, as the result of old age, did not entitle the respondent to sick pay under the society's rules. Q. B. Div., March 28, 1887. Dunkley v. Harrison, 56 L. T. Rep. (N. S.) 660. Opinion by Smith, J.

PREMIUM-GROSS SUM-CONTRACT-ENTIRESEVERABLE.-A., for a consideration in gross, was insured against loss by fire to the amount of $2,400; viz., $2,000 on two connecting dwelling-houses, $1,000 on each, and $400 on a building in the rear of the others. Held, the contract was entire, subject in all its parts to the condition imposed by the insurance company, and that a violation of one of the conditions of the policy as to part of the risk affected the entire. As a general rule, where the consideration is entire and single, the contract must be held to be entire, although the subject may consist of many distinct and wholly independent items. The leading case on which the plaintiff relies to take this policy out of the operation of that rule is Merrill v. Ins. Co., 73 N. Y. 452, where it was held that a contract of insurance upon several separate and distinct classes of property, each of which is separately valued, in consideration of a premium in gross on the sum total of the valuation, is severable, and a breach of the conditions may avoid the policy as to one of the items, but not affect it as to the others. Folger, J., in an able opinion, remarks that upon the question there has been contrariety of opinion, cites conflicting rulings in other States, and adds: "In such case we must learn whether there are adjudications in our own State authoritative upon us, or to what conclusion the reason of the case will lead us." Turning to the decisions of our own State we find that the precise points now discussed have been decided namely that such a contract of insurance as the one on which this suit is founded is entire; and that an act done in violation of the condition of the policy, after the making of the contract, in one of the buildings insured, avoids the policy as to the whole. Where, in consideration of $30, property was insured for $2,000, of which $500 was on barn and stable, and $1,500 on per