It is insisted that the libelant could not legally be ejected from the boat for any offense or violation of rules committed on a former occasion. It is insisted also, that having purchased a ticket from the agent of the company his right to a passage was perfect. Neither of these propositions is correct. In Commonwealth v. Powers, 7 Metc. 596, the passenger had actually purchased his ticket, and the chief justice says:

"If he, Hall, gave no notice of his intention to enter the car as a passenger and of his right to do so, and if Powers believed that his intention was to violate a reasonable subsisting regulation, then he and his associates were justified in removing him from the depot."

605, Mr. Justice Davis, court, held the expul

In Pearson v. Duane, 4 Wall. in giving the opinion of the sion of Duane to have been illegal, because it was delayed until the vessel had sailed. "But this refusal,

he says, should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exception to the character of a passenger as to his peculiar position, provided he violated no inflexible rule of the boat in getting on board."

The libelant in this case refused to give any intimation that he would abandon his trade on board the vessel. The steamboat company, it is evident, were quite willing to carry him and his baggage, and objected only to his persistent attempts to continue his traffic on their boat. He insisted that he had the right to pursue it, and the company resorted to the only means in their power to compel its abandonment, to wit: his removal from the boat. This was done with no unnecessary force, and accompanied by no indignity. In my opinion, the removal was justified, and the decree must be reversed.

COMMISSION OF APPEALS ABSTRACT.

COUNTER-CLAIM-ACCOUNTING.

Action to recover money alleged to have been paid by plaintiff at defendant's request, and for goods sold and delivered. Defendant in his answer set up as a counter-claim a balance due him upon an unsettled partnership account between the parties, which partnership was dissolved prior to the commencement of the action. Held, that the counter-claim was proper, and defendant could ask for an accounting, and the application of the balance found due him in extinguishment of the plaintiff's demand. Waddell v. Darling. Opinion by Earl, C.

EVIDENCE.

In an action upon a promissory note, to show a consideration for the note, plaintiff proved various items of account and claims against defendant Van Voorhies, to settle which it was claimed the note was given. Defendants gave evidence tending to show that some of these items had been paid by counter-items of account. Plaintiff, to extinguish these counter-items, offered evidence of certain other claims against defendant Van Voorhies. This evidence was objected to, that no such claims were set up in the complaint, and as immaterial and incompetent. The objection was overruled and the evidence received. Held, no error, that the evidence was competent for the purpose for which it was offered. Peck v. Winne et al. Opinion by Lott, Ch. C.

EVIDENCE-ESTOPPEL.

1. Defendants contracted to transport a quantity of barley for plaintiff from Albany to Baltimore, to be delivered in good order, "the dangers of the seas alone excepted." There were two customary or usual routes, one the inside or canal route, the other the outside or ocean route. Defendants' vessel took the latter, and the barley was injured by a peril of the seas. In an action to recover damages plaintiff offered to prove, in substance, that defendants before signing the bill of lading, knowing that plaintiff designed to effect an insurance, and that it was necessary for that purpose to designate the route, agreed to transport the barley by the inside route, that relying upon such agreement he caused the barley to be insured by that route, and in consequence of defendants taking the other route lost his insurance and suffered the damages claimed. The evidence was objected to and excluded. Held, no error; that by the contract defendants had the choice of routes, and it was not competent to vary it by parol, nor was the evidence competent by way of estoppel. White v. Ashton, impleaded, etc. Opinion by Hunt, C.

2. An estoppel in pais can only be founded upon an assent to or admission of some fact, or the doing of some act. A promise to act is insufficient, and the doctrine cannot be invoked to subvert the principle, that prior or cotemporaneous agreements are absorbed in a written contract. Ib.

GOLD CONTRACT.

Where a mutual insurance company, aside from its usual risks, issues policies whereby, in consideration of the premium being paid in gold, it agrees to pay any losses in gold, in the absence of any provision to that effect, it is not bound to pay dividends declared upon such policies in gold. Luling et al. v. Atlantic Mut. Ins. Co. Opinion by Gray, C.

LANDLORD AND TENANT -HOLDING OVER-REFEREE. 1. Plaintiff leased to defendants a certain dock for one year, from May 1, 1863, at $500 a year, payable quarterly. Defendants entered into possession of the premises, and continued to occupy the same after May 1, 1864, when their lease expired. Plaintiff brought an action to recover for two quarters' rent. Defendants in their answer allege that plaintiff, in March, 1864, notified them that if they wished to continue the occupation of the premises for another year, he would charge them $100 more rent; that before their term expired they notified him that they would not take the premises for another year, that they hired other premises, but continued to use plaintiff's until May 21, 1864. The case was referred. At the trial plaintiff, without offering any evidence, moved for judgment upon the pleadings, which motion was granted by the referee.

Held, that defendants having held over after the expiration of their term, plaintiff had the option to treat them as trespassers or as tenants for another year upon the terms of the prior lease, so far as applicable. Plaintiff's right to elect to continue the tenancy is not affected by the fact that defendants refused to renew the lease and gave him notice that they had hired other premises. It is not in the power of the tenant alone to throw off the character imposed upon him. Schuyler v. Smith et al. Opinion by Earl, C.

2. A referee has power to give judgment on the

pleadings where the answer does not contain facts constituting a defense. Ib.

PRACTICE.

A judge who tries a cause is not authorized to entertain a motion made upon his minutes to set aside a verdict, upon the ground that it was contrary to the instructions of the court. Tinson, survivor, etc. v. Welch. Opinion by Lott, Ch. C.

SALE-AUCTION WARRANTY.

1. Defendants, relying upon the representations of the auctioneer, purchased at an auction an article which was represented to be "blue vitriol." It had the appearance of that article, and by no examination practicable at that time could they discover it was not. It proved to be what was known as "Salzburger vitriol," composed of a small proportion of "blue vitriol," the residue being green vitriol, an article much less valuable. Defendants, on ascertaining the true character of the article, refused to take and pay for it. and it was re-sold on their account. In an action to recover the loss the court directed a verdict for plaintiff. Held, error; that the representation at the sale amounted to a warranty; at least the court should have submitted the question to the jury. Hawkins v. Pemberton et al. Opinion by Earl, C.

2. In order to constitute a warranty upon a sale, it is not necessary that the representation should have been intended by the vendor as a warranty. If it is clear and positive, not an expression of opinion, and the vendee understands it as a warranty, and relying upon it, purchases, the vendor cannot escape liability by claiming that he did not intend what his language indicated. Ib.

3. There is no distinction in principle between a representat on as to the quality and condition of an article, and one as to its character; what would amount to a warranty in the one case is a warranty in the other. The authorities upon the subject of warranty collated and discussed. Ib.

SALE-FRAUD ASSIGNMENT.

1. Action to recover a quantity of whisky alleged to have been purchased by defendants R. & P., upon a credit, while insolvent, with a preconceived design not to pay. October 21, 1862, said R. & P., who were partners, doing business in Auburn, who were at that time insolvent, ordered of plaintiffs eleven barrels of whisky, which were shipped to them from Lockport, October 24, 1862. Nothing was paid on the whisky, the sale was on a credit of four months. October 24, 1862, R. & P. assigned to defendant O. R. all their stock in trade, and property in their trade, and all their accounts, etc., he agreeing in payment therefor to pay all the debts of the firm upon which he was liable as indorser or otherwise, and also to cancel a demand held by him against the firm. The parties immediately commenced making an inventory. The whisky arrived October 29th, and was placed upon the inventory, taken possession of by the assignee, who sold it and appropriated the avails. The latter paid the secured debts as agreed, which amounted to much more than the value of all the property. At the close of the evidence, defendant moved for a nonsuit, which was denied. The general term set aside the verdict as to O. R., the assignee, upon the ground that the motion for a nonsuit should have been granted. Held, that the motion was properly denied, that the

whisky was not transferred by the assignment, and was delivered up to the assignee without consideration. He was not therefore a bona fide holder and was liable. Lackor et al. v. Rhoades, impl'd, etc. Opinion by Earl, C.

2. Action by plaintiff as receiver of the property of defendant K., to set aside an assignment made by him to defendant T. It appeared that B., by false representations, made to the Glen Cove Manufacturing Company and others, as to his pecuniary responsibility shortly prior to January 20, 1860, purchased of these parties merchandise to a large amount with intent to convert it to his own use, and disburse and assign the proceeds for the benefit of his creditors. January 20, 1860, he did assign the same to defendant T. The Glen Cove Manufacturing Company brought an action in the court of common pleas in New York, against defendant B., as for goods sold and delivered, and February 9, 1861, recovered judgment; on a nulla bona return of execution instituted supplementary proceedings, in pursuance of which plaintiff was appointed receiver, and by permission of that court brought this action.

Held, that the vendor having affirmed the contract of sale by bringing the suit, and prosecuting it to judgment, neither he nor a receiver appointed in supplementary proceedings instituted upon such judgment, can set up the fraud in the sale for the purpose of defeating the assignment, although it was made in furtherance of fraud, with full notice thereof on the part of the assignee. Kennedy, Receiver, etc. v. Thorp et al. Opinion by Gray, C.

3. The receiver occupies the place of the judgment creditor, at whose instance he was appointed, and cannot interfere with the assignment on account of frauds perpetrated by the judgment debtor upon others. Ib.

SALE AND DELIVERY.

1. Defendants executed to plaintiffs a receipted bill of sale of 100 barrels and 4000 gallons of oil, "to be delivered when called for, subject to $2.50 per month storage, and the quality of the oil to be like the sample delivered." The oil was understood to be a portion of 150 barrels averaging 40 gallons each. There were three different qualities of the oil, 68 barrels corresponding with the sample, 46 of a superior quality, and the residue inferior. When plaintiffs called for the oil defendants delivered 100 barrels, containing but 1,821 gallons, the diminution in quantity occurred by leakage, after the execution of the bill of sale. In an action to recover for the deficiency,

Held, that the contract was an executory, not an executed one, and plaintiff was bound to deliver the quantity specified in the contract. Kimberly v. Patchin, 19 N. Y. 337, distinguished. Foot et al. v. Marsh et al. Opinion by Gray, C.

2. To substitute an arrangement between the parties, for a manual delivery, under a contract of sale of a quantity of property mixed, with an ascertained and defined larger quantity, the portion sold must be so clearly defined, that the purchaser can take it, and he must be invested with the right to take it. Ib.

was a prior mortgage of $650 on the premises, not due. Plaintiff insisted, as part of the transaction, that said prior mortgage be assigned to him for $550. After negotiations with the mortgagee, he consented to and did assign same on payment of the face of the mortgage, defendant paying the $100 difference.

Held, usurious. Plaintiff advanced $1,900, and received this mortgage of $1,350 and the prior mortgage of $650 for $550, thus realizing a premium of $100. Walch v. Cook. Opinion by Smith, J.

2. The premises were, subsequently to giving of mortgage in suit, sold to one K., with no agreement to pay the mortgages, but to sell and pay off said mortgages and a debt due by defendant to K., and pay the surplus to defendant's wife, and the premises before this suit was brought were re-conveyed to defendant.

Held, that the sale to K. was really but a mortgage, and not within Hartley v. Harrison, 24 N. Y. 170, and that Cook was at liberty to set up the defense of usury. Ib.

WILL-CONSTRUCTION.

One G. H. was owner in fee of a certain farm, and in and by his last will gave and bequeathed the use of said farm to his wife, and on her death he devised the same to his son, C. S. H., subject to such life estate, and if he died without lawful issue it was then devised to certain grandchildren. By a subsequent clause of said will said farm was devised to the executors in said will named as trustees, to be held by them in trust for making improvements and the payment of his just debts and legacies, and to divide the net income from said farm between the widow and C. S. H. during their lives. By a codicil G. H. devised to said C. S. H. other real estate previously devised to another son, and he also made said executors trustees of the real and personal estate of his said son, C. S. H., to be held for his use and benefit. Said C. S. H. was an idiot, and, in 1864, a committee was appointed for him. The mother of C. S. H. is dead. Said C. S. H. died intestate, leaving a wife and three children. Administrators were appointed for his estate, and accounts against said C. S. H. were presented amounting to more than the value of the personal estate. Some of the accounts were for necessaries for his family. The administrators allowed the accounts, and paid them pro rata. This action is brought to charge the real estate with the debts unpaid. The defendants are the infant heirs of said C. S. H., and claim the land under the will of said G. H., and that they take as purchasers and not by descent from their father.

Held, that the estate granted to C. S. H. by the will of G. H. was a fee, and that the children of C. S. H. took by descent from him and not as purchasers.

2. That the trust to the executors did not interfere with the descent of the land to the children of C. S. H. 3. That claims for necessaries furnished an idiot may be collected although furnished without the approval of the committee, but when so furnished the good faith of the transaction must be clearly established.

4. Evidence that some of the accounts were for "goods, wares and merchandise," was not sufficient evidence that they were for necessaries, and the finding of the referee that they were for necessaries was not justified.

5. That it was necessary for the plaintiffs to prove what amount of debts had been allowed by the administrators and the amount of assets realized and applied in payment of such debts. That the defendants were

not bound by the action of the administrators or of the surrogate in paying debts. Plaintiffs must prove the debts to be the debts of the father equitably and legally chargeable upon him. Judgment reversed. Barnes v. Hathaway. Opinion by Mullin, P. J.

BANKRUPTCY LAW.

NOTES OF RECENT DECISIONS.
ABATEMENT.

On the death of an involuntary bankrupt before a jury trial has been had to determine whether he has committed an act of bankruptcy, the proceedings must abate. In re McDonald, U. S. Dist. Ct., W. D. Pa., 30 Leg. Int. 232.

EXEMPTION.

A bankrupt, whose petition was filed in May, 1871, and had been allotted an exemption in August, 1871, under the provisions of the bankrupt act as it then stood, applied, after the amendment of June, 1872, for the additional exemptions allowed by that amendment.

Held, that he was entitled thereto. Held further, that where the real estate had been sold prior to June, 1872, the bankrupt was entitled to an exemption out of the proceeds of said real estate in the hands of the court, equal to the amount of real estate he would have been entitled to retain had his petition not been filed until after June, 1872. In re E. A. Volger, U. S. Dist. Ct., W. D. N. C., 8 N. B. R. 132.

INFANTS.

1. At the time of Derby being adjudicated bankrupt, 18th of December, 1871, he was a minor, not attaining his majority until the 14th of May, 1872. On the 5th of April, 1872, Barton, Alexander & Weller, creditors of Derby, who had not proved their debt in bankruptcy, filed a petition to set aside the adjudication in bankruptcy, on the grounds: 1. That Derby was a minor. 2. That the petitioning creditor's debt not being for necessaries was not a debt provable in bankruptcy, and, therefore, not capable of supporting the petition for adjudication.

Before this case was heard, Derby, arriving at full age, filed a petition ratifying the proceedings in bankruptcy, already commenced against him, and also the debt of Stevens (the petitioning creditor) and setting forth the other facts necessary to entitle him to file a petition in bankruptcy, asking not to be adjudicated bankrupt on that petition, but that the proceedings in bankruptcy commenced on the petition of Stevens may be continued, perfected and carried through.

Held, Any creditor, whether he has proved his debt in bankruptcy or not, may move to set aside an adjudication of his debtor as a bankrupt, whenever such adjudication injuriously affects his interest, following In re Boston, Hartford & Erie R. R. Co., 9 Blatch. 101; S. C., 6 N. B. R. 209. In re Derby, U. S. Dist. Ct., S. D. N. Y., 8 N. B. R. 106.

2. Infants, at least in regard to their general contracts, as subjects of voluntary or involuntary bankruptcy, are not embraced within the provisions of the act of 1867. In re Book, 3 McLain, 317, doubted. Ib.

3. This is a question of jurisdiction, and the subsequent ratification and confirmation by Derby of the proceedings against him can have no effect to give to

the court authority and jurisdiction as of the time of the adjudication. In re Lady Bryan Mining Co., 2 Abb. U. S. Rep. 527. Ib.

4. The question as to whether an infant may voluntarily petition in respect of contracts for which he is liable, such as debts for the value of necessaries, left open and undecided. Ib.

5. A debt contracted by an infant (not for necessaries) cannot be proved in support of a petition in bankruptcy. Ib.

LANDLORD'S LIEN.

A landlord claimed a preference for rent of a plantation, leased by him to the bankrupt, upon which plantation it was alleged there was remaining, at the time of the adjudication of bankruptcy, property more than sufficient to pay the rent due, which property was sold by the assignee.

Held, that the petitioner, having failed to take the necessary steps to secure his lien on the property for the rent due, had no prior claim to the fund in the hands of the assignee, and that he must share pro rata with the general creditors. Austin v. O'Rielly, Assignee, U. S. Dist. Ct., S. D. Miss., 8 N. B. R. 29.

SERVICE.

The service in this case, made in manner set out, held sufficient, viz.: The person serving it went to the dwelling-house, which was the last usual place of abode of Derby, the alleged bankrupt, in this district, and rang the door-bell; a woman of mature age came to the door, who appeared to be and acted as if she was the mistress of the house; the person inquired for Derby by his full name; she answered that he was not in, and declined to give any further information concerning him. The person then left with her a copy of the petition and the order, and stated to her that they were for Derby. In re Derby, U. S. Dist. Ct., S. D. N. Y., 8 N. B. R. 106.

SURETY - MORTGAGE.

1. A surety may pay the debt for which he is contingently liable, so as to satisfy the requirements of section 19 of the bankrupt act, by giving his individual note, if such note is expressly received as payment. In re Morrill, U. S. Dist. Ct., Nevada, 8 N. B. R. 117.

2. A mortgage fraudulent and void as to creditors is so as to the assignee in bankruptcy. Ib.

3. By statute, in Nevada, a chattel mortgage is void as to creditors unless immediate possession of the mortgaged property be taken and retained by the mortgagee, arguendo. Ib.

4 That, independent of the statute, a mortgage of goods is fraudulent and void as to creditors, if the mortgagor is allowed to remain in possession and sell and traffic with them as his own. Ib.

CLAIM AGAINST INSURANCE COMPANY - PRACTICE.

1. Where an insurance company became bankrupt, and a creditor filed proof of his claim in the ordinary form in bankruptcy but after the expiration of one year from the date of the loss-the policy, by its ninth clause, requiring proof of loss to be furnished in a particular manner, and by the twelfth clause providing, "that no suit at law or in chancery should be sustainable unless commenced within twelve months from the date of loss."

Held, to entitle claimant to recover, he must show that he has furnished the proof of loss in the manner required by the policy, or that there has been a waiver thereof; that the insurance company, while solvent, may waive the proof of loss, but an assignee in bankruptcy has no power to waive it. In re Firemen's Insurance Company, U. S. Dist. Ct., N. D. Ill., 8 N. B. R. 123.

2. Where the claim has been adjusted between the insured and the company, while solvent, it may be proved in bankruptcy as an ordinary debt, irrespective of the "year clause." But where not so adjusted previous to the insolvency of the company, the insured must not only furnish the "proof of loss," in the mode and manner pointed out in the policy, but must, in addition, file his proof of debt with the assignee in bankruptcy, within the time limited by the policy. Ib. 3. Where a company becomes bankrupt, filing proof of debt with the assignee is to be taken and held as equivalent to commencing suit. Ib.

4. Where an assignee in bankruptcy is not satisfied with the legality or correctness of any claim filed with him, the proper practice is for him to move to have it expunged under the thirty-fourth rule of the general orders in bankruptcy, and proceed as in that rule directed. Ib.

CONTRIBUTORY NEGLIGENCE.

A question of considerable interest has been raised in several of the cases that have been lately decided with regard to the liability of railway companies in action of negligence. The point in dispute is, whether on a motion to enter a nonsuit in an action against a railway company for personal injuries, on the ground that there was no evidence of negligence to go to the jury, it is open to the court to consider whether there was contributory negligence on the part of the plaintiff such as to disentitle him to recover. The case of Gee v. The Metropolitan Railway Company, 21 W. R. 584, L. R., 8 Q. B 161, is the latest case in which the subject is discussed, and after what fell from the judges who decided that case, the doubts which have prevailed appear to be as far from solution as ever. Kelly, C. B., in the course of the argument, expressed an opinion that if there be evidence of negligence on the part of the defendants, and of contributory negligence on the part of the plaintiff, there must always be a question for the jury, and it is not a case for a nonsuit. Bridges' case, 19 W. R. 825, L. R., 6 Q. B. 377, was cited as deciding the contrary. The headnote in the L. R. states it to have been held by four judges against three that the question of contributory negligence is open to the court in such cases. Grove, J., however, in giving judgment in Gee's case, pointed out that the head-note in Bridges' case seemed hardly correct, in so far as it attributed to Pigott, B., any judgment on the point at all. If his view be correct with regard to the effect of Pigott, B.'s, judgment, it follows that there was no decision of a majority upon the point at all, and the case cannot be considered a binding authority on the subject. In addition to the doubt thus expressed with regard to the effect of the judgment of Pigott, B., in Bridges' case, it seems doubtful whether the judgment of Bramwell, B., also one of the majority, is based at all on the view that the question of contributory negligence was involved. That learned judge's decision appears to be