that neither the judgment nor the order of court denying defendant's motion to open the default is a bar to such action. (2) The fraud of defendant in procuring said default was assigned as cause for setting aside the judgment. Held, that as plaintiff had no defense to the action of nullity, she was not entitled to have the default thereon set aside. Her charge of fraud consists simply of an allegation, in substance, that the defendant, who is a lawyer, represented to her that her marriage to him was void by the law of New York, and that she had incurred liability to a criminal prosecution for entering in it, and that she was by these representations induced to refrain from defending the action. Without discussing the question of law involved, it is sufficient for the purpose of this appeal to say that whether the marriage between the defendant and the plaintiff was legal or illegal, as matter of law, the fraud by which she was charged with having induced the defendant to enter into the contract was sufficient to justify the court in setting it aside, and that she does not in any manner attempt to deny that she was guilty of the fraud charged, nor to show that she had any defense upon the facts to the action of nullity of which the defendant deprived her, even if he was wrong in his statement of the law-a question which we do not now decide. Oct. 11, 1887. Blank v. Blank. Opinion by Rapallo, J.

STATUTE OF LIMITATIONS -FRAUD- DISCOVERY PLEADING-VARIANCE.-Under the New York Code of Civil Procedure, § 382, a right of action for fraud, within the meaning of the statute of limitations, accrues on discovery of the facts constituting the fraud. In an action to set aside for fraud a deed to defendant by plaintiff's father, it appeared that the father was weak in mind, but not destitute of mental capacity; that the facts constituting the fraud and right of action thereon were disclosed to and understood by him; and that an action thereon had been brought by his consent. Held, that this was such a discovery as set the statute in motion, and that the running of the statute was not arrested by a subsequent fraud in obtaining a settlement of the suit, or by regaining an undue influence over the father. (2) An answer that the cause of action did not accrue within six years before the commencement of the action, sufficiently pleads the statute of limitations. (3) The action cannot be sustained to obtain relief for fraud in inducing the marriage between plaintiff's father and mother, committed by defendant in falsely representing to the mother that the property in question was so left to the father, that if he married and had an heir, it would go to the heir. Oct. 11, 1887. Piper v. Hoard. Opinion by Finch, J.

WILL-CONSTRUCTION-CODICIL-RELEASE OF INDEBTEDNESS.-A testator had been counsel for defendant in certain litigation, and at his death held possession of certain papers, etc., relating to the litigation, and on which he had a lien for his services, most of the services antedating his will. By will made January 22, 1883, 'testator reJeased all demands which he might have at his death against any person "named in his will," and in terms revoked all previous wills and codicils, but defendant was not named in the will. This release came after the naming of all to whom it was to apply. Testator afterward, by a clause in a codicil made two weeks before his death, released certain specified debtors, excluding defendant, and including two who had been released by the previous testamentary instrument, and including also one who had not been released. In the next succeeding clause of the codicil defendant was mentioned by name, without words of release, called testator's "faithful and honorable friend," and given the papers, etc. The codicil began

as follows: "This is Charles O'Conor's first codicil to his last will and testament. This instrument made and signed April 28, 1884." At the date of the codicil an important argument in the litigation was approaching. Held, that the gift of the papers, etc., was a voluntary surrender of the lien, and that as the lien would fail if defendant had been released, testator did not intend to release him, and the word "will" in the phrase "named in this will" did not include the codicil. Oct. 11, 1887. Sloane v. Stevens. Opinion by Finch, J.

UNITED STATES SUPREME COURT ABSTRACT.

CARRIER-PASSENGER'S LOSS OF LUGGAGE REFUSAL TO STOP.-A railroad company is not liable in damage for a loss resulting to a passenger from its refusal to stop the train upon which he was riding, short of a usual station, to enable him to recover a hand-bag which he was carrying with him, and which he dropped from a window of the car while attempting to lower the sash. Oct. 31, 1887. Henderson v. Louisville & N. R. Co. Opinion by Gray, J.

PARTNERSHIP - DISSOLUTION BY CONDUCT.-In a suit for an accounting, under articles of partnership, brought by the administrator of one of the parties against the executrix of the other, it appeared that the partnership was to continue for a certain time, unless dissolved by mutual consent; and that the complainant's intestate had never complied with the terms of the agreement, but shortly after its execution had accepted a public office in a distant city, and absented himself, in the discharge of the duties thereof, until after the date of the expiration of the agreement, and on his return had made no attempt to enforce the same; and that a written agreement, executed by the parties to the articles of partnership shortly before the death of the complainant's intestate, was inconsistent with any claim thereunder. Held, the evidence showed that complainant's intestate regarded the agreement as never having gone into effect, or as having been cancelled, and that the bill was properly dismissed. Oct. 31, 1887. Davis v. Key. Opinion by Blatchford, J.

PUBLIC LANDS-STATE GRANTS-DISPUTED BOUNDARY LINE. The boundary line between Georgia and Florida was long in dispute-Georgia claiming to a line called "Watson's Line," and exercising political jurisdiction, and making grants of land to that line; while Florida claimed to a line called "McNeil's Line," further north than Watson's. Upon running the true line, as finally agreed upon by the two States, it was found to be further north than McNeil's line. Held (1) that the grant made by Georgia of the land in dispute, which was south of McNeil's line, though made while Georgia exercised the powers of government de facto over the territory there, was nevertheless void; (2) that the confirmation by Florida of the grants made by Georgia did not invalidete or disturb the grant of the land in dispute previously made by itself. The first case in which the question arose was that of Foster v. Neilson, 2 Pet. 253, in which the grant was made in 1804 for land in the district of Feliciana, east of the Mississippi. The principal questions argued were-First, the true interpretation of the trea ties of 1800 and 1803 as to what territory was ceded to the United States; and secondly, the effect of the confirmation of Spanish grants contained in the treaty of 1819. Mr. Coxe, it is true, took the ground that the acts of a sovereign power over territory it has ceded are lawful until possession has been transferred, and therefore that the grants of Spain, while still in possession, and exercising the powers of government de

fect that the grants of North Carolina and Tennessee were not rightfully made, because they were originally beyond their territorial boundary. The case of People v. Fleeger covers the case now under consideration. It was a case of disputed boundary, and Tennessee exercised sovereign jurisdiction de facto up to a certain line (Walker's), which she claimed to be the true boundary line, and made grants of land to that line, just as Georgia did in the present case to Watson's line. Walker's line, like Watson's, was found not to be the true line, and the grants made by Tennessee were found to be for lands in territory belonging to Kentucky just as the grants of Georgia, next to Watson's line, were found to be for lands in the territory belonging to the United States and Florida. This court decided that the Tennessee grants were void, notwithstanding the exercise of sovereign jurisdiction de facto by that State over the territory in dispute when the grants were made. If that decision was correct, the grant made by Georgia of the land in controversy must be held to be invalid for the same reason. The only difference between the cases is that Kentucky and Tennessee adopted the erroneous line as their permanent boundary, though recognizing the fact that it was not the true original line; while in the present case Georgia and Florida adopted the nearest practical approach to the true line as their permanent boundary. This difference does not affect the question, except to make the present case the stronger of the two. The only authority cited by the Supreme Court of Florida for the proposition that a government de facto can make a valid grant is a dictum of Mr. Justice Baldwin, in delivering the opinion of the court in the case of Rhode Island v. Massachusetts, 12 Pet. 748. The question there was whether the people whose lands would be affected by the change of State line involved in that case ought to be made parties to the suit. Justice Baldwin says: "It is said that the people inhabiting the disputed territory ought to be made parties, as their rights are affected. It might with the same reason be objected that a treaty or compact settling boundary required the assent of the people to make it valid, and that a decree under the ninth article of confederation was void, as the authority to make it was derived from the legislative power only. the same objection was overruled in Penn v. Baltimore; and in Poole v. Fleeger this court declared that an agreement between States, consented to by Congress, bound the citizens of each State." Thus far the reasoning of the court was unanswerable. Settlements of boundary belong to the sovereign power, and cannot be questioned by individuals. But the learned justice proceeds to lay down what he supposes to be two principles of the law of nations, which were entirely unnecessary to the decis ion of the question of parties which he was considering. He says: "There are two principles of the law of nations which would protect them [private citizens] in their property: (1) That grants by a government de facto of parts of a disputed territory in its possession are valid against the State which had the right (12 Wheat. 600, 601); (2) that when a territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property are respected and sacred (8 Wheat. 589)." etc. This is the passage quoted and relied on by the Supreme Court of Florida. The second of these propositions is in accordance with what we have already stated to be the received rule of international law; but the first is opposed to the case which we have already cited in relation to Spanish grants in Mississippi and West Florida, and to the case of Poole v. Fleeger. As to the authority referred to (12 Wheat. 600, 601), it is a mere dictum of Mr. Justice Trimble in De la Croix v. Chamberlain, clearly inconsistent with the decision made at the same term in

Henderson v. Poindexter's Lessee, and with all the subsequent decisions above referred to; and as Mr. Justice Catron, in a manuscript note upon this part of Justice Baldwin's opinion, justly remarks: "No such question was raised in that case, and Poole v. Fleeger is certainly to the contrary." We think that the decision of the Supreme Court of Florida is erroneous in deciding against the title of the plaintiff in error. That title is claimed under a grant from the United States of land acquired by treaty with Spain, identified as such by the former treaty of limits, and the proceedings of the commissioners appointed to carry out that treaty. The decision of the Supreme Court of Florida, in effect, is either that the land was not embraced in the treaty of cession, or if it was, that the possession of Georgia gave a superior right. We think it clear that the land was embraced in the treaty, and that the possession of Georgia did not give a superior right. Oct. 24, 1887. Coffee v. Groover. Opinion by Bradley, J.

SALVAGE-CONTRACT-WAIVER OF SALVAGE CLAIM. -The captain of a salvage company, in response to telegrams, went to a sunken steamer, removed her cargo, pumped her out, and towed her safely into port. Before going to work the captain of the sunken vessel asked what it would cost to get the vessel off, to which the captain of the salvors replied: "I do not know." The captain of the vessel then said: "This is not a salvage service," to which the other replied: "Call it what you please, so I get my pay;" and the captain then said: "It is no salvage service." They finally agreed to submit the amount to be paid to arbitration, in case the salvage company and the owners of the vessel could not agree upon a sum. Held, that the salvage company was entitled to salvage compensation for the services rendered, as the conversation between the captains did not amount to a contract for compensation that would bar a claim for salvage, and such claim was not affected by the agreement to arbitrate. It was held by this court in the case of The Comanche, 8 Wall. 448, 477, that "nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for salvage." Nor was there in this case any agreement for a quantum meruit for the work and labor to be done by the libellant. In the case of The Independence, 2 Curt. 350, 357, the proper rule on the subject was laid down by Mr. Justice Curtis in these words: "To bar a claim for salvage, where property in distress on the sea has been saved, it is necessary to plead and prove a binding contract to be paid at all events for the work, labor and service, in attempting to save the property, whether the same should be lost or saved." A binding contract of that character is not proved by such a conversation as took place between the respective parties in the present case. In The Salacia, 2 Hagg. Adm. 262, 265, it was shown that the master of the salvor vessel declared at first "that he should not demand any salvage, but that his crew would not work unless paid for their labor, and that they declined taking a dollar a day, but would take two." As to this, Sir Christopher Robinson said: "It is probable that some such conversation may have passed at the beginning of this service, but it might not be known what would be the extent of it; and the court is not in the habit of considering such loose conversations as conclusive of the merits of any case, when brought regularly before it." In the present case there was no assent by Capt. Stoddard to the statement of Capt. Baldwin that the service was not a salvage service; and the assertion by Capt. Stoddard that the name of the service was immaterial, so long as he should get his pay, was fairly a statement that

he should insist on his pay for the services according to their actual character. Nor can the agreement for arbitration affect the question of a salvage service. In the case of Hobart v. Drogan, 10 Pet. 114, there was an agreement to tow a ship in distress, "the matter of compensation to be left to arbitrators at home, to be appointed by the respective owners." As to this, Sir James Hannen said: "This however was valueless as an agreement. It could not have been pleaded as any answer to an action for salvage brought in the ordinary way in the Admiralty Division, and if effect could have been given to it at all, it would only have been by bringing an action upon it for not submitting to arbitration." Oct. 24, 1887. Potomac Steamboat Co. v. Baker Salvage Co. Opinion by Blatchford, J.

ABSTRACTS OF VARIOUS RECENT

DECISIONS.

CRIMINAL LAW-SEARCH-WARRANT-EXECUTION AT NIGHT.-A warrant to search for and seize intoxicating liquors, issued under Public Statutes of Massachusetts, ch. 100, $ 30, in the form prescribed by that statute, may be executed in the night-time. The only search-warrant known to the common law was to search for stolen goods. The usual direction of it was to search in the day-time. Whether at common law a warrant which directed a search not limited to the day-time would be valid, and whether such a warrant could be executed in the night-time, it is not necessary to con. sider. See Dane Abr., ch. 217, A 2; Dav. Just. 30, 51, 148; 2 Hale P. C. 113; Burus, J., Search-Warrant, Bartons, J., 481; 3 Wms. Just. 861. The warrant in question was not a common law search-warrant, and its validity and effect must be determined by the statute. The authority to execute a warrant in the nighttime, and to issue a warrant in which the authority to execute it is not limited to the day-time, must be found in the statute which authorizes the warrant. Such authority will be inferred unless the statute expressly or impliedly limits it to the day time. We think such authority is found in the statute under which the warrant in the case at bar was issued. Pub. Stat., ch. 100, § 30. It does not, like Pub. Stat., ch. 58, § 4, provide that the warrant shall be directed and executed as provided in Pub. Stat., ch. 212, § 3; nor like Pub. Stat., ch. 207, § 57, that no search shall be made after sunset unless specifically authorized; nor like Pub. Stat., ch. 207, § 60, require that a warrant shall be issued to search at any hour of the day or night; but it contains full and explicit provisions, even prescribing a form of the warrant, excluding the inference that it is governed by Pub. Stat.,ch.212, § 3,and that the execution of the warrant under it is limited to the day-time. Its provisions differ in every particular from those of Pub. Stat., ch. 212, § 3. The direction of the warrant, instead of to the sheriff or his deputy, or constable, is to be to the sheriff, deputy-sheriff, city marshal, chief of police, deputy chief of police, deputy-marshal, police officer or constable. There are particular provisions, not contained in section 3, as to the description in the warrant of the place to be searched, and special provisions as to authorizing the search of dwelling-houses. The warrant is to command the officer to search the premises, and to keep the property found until final action, and to return his warrant to the court, instead of to search in the day-time, and to bring the property, and the person in whose possession the property is found, before the court; and the warrant itself, in the form prescribed by the statute, is to "forthwith enter the premises herein described, and make diligent and careful search," instead of to search in the day-time. The general rule is that process, civil or

criminal, can be as well served in the night-time as in the day-time; and a direction in a warrant to serve it, without limitation as to the hour of the day, is a direction to serve it in the night-time as much as in the day-time. The intention of the Legislature to authorize the execution of the warrant in the night-time is shown by providing for and by prescribing a direction in the warrant which includes that instead of the direction to search in the day-time, which it required in the ordinary search- warrant. Since the Statutes of 1852, ch. 222, these provisions have been the subject of careful scrutiny, and have been enacted no less than five times. St. 1855, chaps. 215, 397; Gen. Stat., ch. 86; Stat. 1869, ch. 415; Stat. 1876, ch. 162; Pub. Stat., ch. 212. The repetitions emphasize the intention manifested in the statute. The intention that there should be authority to execute the warrant in the night-time might also be shown by the purpose and the particular provisions of the statute, and by its history, and the history of other statutes authorizing searches and seizures; but the considerations already presented are sufficient, and render further discussion unnecessary. Mass. Sup. Jud. Ct., Oct. 20, 1887. Commonwealth v. Hinds. Opinion by W. Allen, J.

INDICTMENT-VARIANCE-NAME.-At the trial of an indictment for threatening to accuse of a crime one Frank E. White," the evidence showed that the threats were made to one Frank A. White. Held, a fatal variance. The name of the person threatened is necessary to the identity of the offense charged in the indictment, and therefore must be proved as set forth. Com. v. Mehan, 11 Gray, 321. It is settled in this Commonwealth that a middle name or initial is part of the name, and a variance in regard to it is fatal. Com. v. Perkins, 1 Pick. 388; Com. v. Hall, 3 id. 262; Com. v. Shearman, 11 Cush. 546. The ruling that there was no variance if Frank A. White was the person called Frank E. White in the indictment, probably went upon the ground that E. might be rejected as surplusage, as is held in some States. It cannot be said as matter of law that A. and E. are the same. There was no evidence that the party was ever called Frank E. White. Mass. Sup. Jud. Ct., Oct. 20, 1887. Com, monwealth v. Buckley. Opinion by Holmes, J.

EVIDENCE-ACCOUNT BOOK.-A small account book in which the plaintiff, who was unable to write, entered by marks the number of loads of sand delivered to defendant, is admissible, being supported by his oath, even though the marks were transferred by him to the book from marks made on his cart by his servant, and the evidence of such servant as to the correctness of the number of marks is competent and necessary. It was a rough and imperfect book of accounts, but it was honestly kept, and was the record of the daily business of the party, made for the purpose of establishing a charge against another. Pratt v. White, 132 Mass. 477. Such a book, supported by the oath of the plaintiff, is competent, though the account was kept only by marks, the plaintiff being unable to write. These entries are intelligible, and no more liable to fabrication than other entries. It is a book of original entries, though the marks were transferred from marks made on the cart by the servants of the plaintiff who delivered the sand. Smith v. Sanford, 12 Pick. 139; Kent v. Garvin, 1 Gray. 148; Harwood v. Mulry, 8 id. 250. In the case where goods are delivered by a servant, and his entries or marks are transferred to the plaintiff's account book, it has been held that the servant must be a witness to support the charges, and to prove the delivery. Kent v. Garvin, supra. In the case before us therefore the testimony of Joseph Pratt was competent and necessary. If there was doubt whether the plaintiff's book ought to have gone to the jury, there is another ground upon

which the defendant's exceptions should be overruled. In a transaction like that involved in this case it is not to be expected that any memory, unaided, could retain accurately the number of loads of sand delivered. The plaintiff bad clearly the right to use his account book as a memorandum to refresh and aid his memory. The fact that the book went to the jury could not prejudice the defendant. The only possible use the jury could make of it would be to count the marks and see if the plaintiff had stated their number correctly. Mass. Sup. Jud. Ct., Oct. 20, 1887. Miller v. Shay. Opinion by Morton, C. J.

CHI

CHIEF JUSTICE WAITE.

HIEF JUSTICE WAITE is seventy-one years old to-day. He was eligible to retirement just one year ago, and he could then have left the bench and have drawn his $10,000 a year for the rest of his life. Like Justices Field, Bradley and Miller, he prefers to earn his salary, rather than receive it as a pensioner, and we have on the Supreme Bench of the United States the curious instance of four hearty old men working away day after day when they could receive the same amount of pay for doing nothing. Chief Justice Waite promises to work for many years to come. He has no intention of resigning his position, and his health is better now than it has been for years. He has recovered from his sickness of two years ago, and he looks more like a man of sixty than of seventy

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His black eye is bright, and his strong face is almost free from wrinkles. A thick growth of dark, irongray hair covers his head, and a full beard of black, mixed with silver, falls upon his chest. He has a splendid physique. Of medium height, his shoulders are broad, and his head fits firmly upon them. He stands as straight as a Lake Superior oak, and his carriage has all the dignity that should pertain to the head of our judiciary.

His face is a striking one. The forehead is broad and full, though not remarkably high. The eyebrows are dark and heavy, and the eyes which look out from under them sparkle with the feeling of the soul behind. Sometimes they are grave and serious. At others they twinkle with laughter, and when Waite laughs the twitching of a smile is seen about his strong, firm mouth. This mouth is full of character, and the nose above it is large enough to be that of a great man. I took a good look at him as he sat upon the Supreme bench to-day. He has the central seat in the row of the eight grave seniors who comprise the present Supreme Court, and the old-fashioned, high-backed mahogany chair in which he sits is directly under the golden American eagle which looks down from the Supreme Court gallery. This eagle has what looked to me like a golden snake in its mouth, and if it should let it fall the snake would drop upon the bushy hair of the chief justice. Fastened to the eagle's talons is the key to an arched canopy of royal purple silk, and the chief justice has thus a background like that of a king upon his throne. These decorations however are the only ostentatious things about him. He wears his robe, it is true, like the toga of a Roman senator, but there is nothing of the snob about him, and he is not puffed up with the great conceit of little men. He shows himself human as he sits upon the bench, and he will laugh at the joke of a lawyer and yawn repeatedly at a prosy speech. He listens closely to the evidence presented to the court, asks questions now and then, and not infrequently puzzles the young lawyers by his interrogatories.

Chief Justice Waite is a very kind-hearted man, and it is probable that he would pardon serious informali

ties in a young lawyer, though he would hardly do so in a man of experience. Our Supreme Court is very careful of its dignity, and it would decidedly resent any thing which compromised this. Chief Justice Waite, while he is simple in his manners, never forgets that he is chief justice of the Supreme Court, and he carries the dignity of a justice into his social life. He is fond of society, and I have often seen him with his pretty daughters at a White House reception. He lives very nicely at Washington, and owns a big brown-stone house just next to the Mexican legation. and within a stone's throw of the Arlington Hotel. He entertains frequently, and gives dinners and receptions during the season.

The Waite family is one of the oldest families in the country, and the coat-of-arms granted to it bears the date of 1512. Thomas Wayte, who was a member of Parliament, signed the death warrant of Charles I, and the family moved to this country soon after the Restoration. It was about thirty years after the landing of the pilgrims that Thomas Wayte settled at Lyme, Conn., and this man's son was one of the first presidential electors after the war of the Revolution, and cast his vote for George Washington. Judge Waite's father was chief justice of the Supreme Court of Connecticut, and he studied law under Matthew Griswold, one of the most noted statesmen of early days. Like Judge Waite, he was a graduate of Yale, and like Judge Waite, he was eminent as a jurist. He left the Supreme bench however at the age of sev. enty, and he died at eighty-two. If Chief Justice Waite lives as long, he will come within two years of outlasting the century.

Waite's father gave him a good education. He entered Yale at seventeen, and he graduated in the same class with William M. Evarts, Edwards Pierrepont and Prof. Benjamin Silliman. Years afterward, when he had moved to Toledo, Ohio, and made a reputation there, and Evarts had gone to New York, the two met as representatives of the United States in the arbitration at Geneva. This was, I think, his first entrance upon his national career. He was known as a successful practitioner at Toledo, and had been a member of the Ohio Legislature, but it was not until 1872 that the people at large knew of his existence.

He returned to Toledo at the close of the arbitration, became a member of the constitutional convention of the State of Ohio, and two years later President Grant, to the surprise of all, sent in his name to the Senate as the successor of Chief Justice Chase. Waite was surprised to receive the nomination. It came entirely without solicitation on his part, and without pressure on the part of his friends. It was confirmed unanimously, aud Charles Sumner, John Sherman, George F. Edmunds and Allen G. Thurman made speeches in his favor. He took the oath of office March 4, 1874, just about one year after he had been admitted to practice in the Supreme Court of the United States.

Judge Waite is a man who has made a success of life by sticking to his business. Neither the presidential nor any other political bee has ever buzzed in his thick thatch of dark hair, and he declined to be a candidate for the presidency in 1876. Ex-Representative Hill, of Ohio, tells me that he made the address of welcome to Grant on the occasion of his visit to Toledo. This address was so full of good sense, and so free from adulation that Grant was delighted with it. He had been pleased with Waite's action at Geneva, and he knew Waite to be a man of the utmost probity and no political aspirations. He extended his inquiries, and concluded that he was the man to be appointed chief justice of the United States, and sent in his name to the Senate. Waite accepted it, and the country gained by his act.-New York World.