mal-administration and civil war may have strained the superstructure, the foundations stand firm and unmoved.

This is our Union of States (Staaten bund), of which the only bond is the constitution, a permanent compact, adopted freely by all the States, as parties to it; whereby a Government was created into whose every organ, the forces of each State, drawn from its legislatures and its people, are infused, and whereby citizen rights in each are secured in all, and the honor and dignity of each is respected and accredited by every State; and by the terms of which, the delegated power is made supreme over all and each, only when exercised in pursuance of the constitution; and the powers not delegated nor forbidden to them are reserved to the governments and people of the States; thus securing by this double system of governments (checks each upon the other), safety and respect among the nations, and peace and safe commerce among ourselves under the Federal Government; and justice, right and self-rule under the States, as the homes of the people.

And this Union, through which we are one as to all international relations, as to all external and interState commerce, and as to all those general and common interests, delegated to it by the Constitution, while we are separate and exclusive as to all State interests and rights - this great Union of free commonwealths, if preserved in its integrity by patriotic fidelity to constitutional obligations, and by purity of administration, from centralism in the head, and anarchy among its members, is destined to do more for the freedom and progress of the human race and for the cause of Christian civilization in the world, than any system of governments ever devised by the wit of men. In this sense, and with these deep convictions of the truths I have uttered, my heart's desire and prayer to God is for this Constitutional Union of States!

OVER

Esto perpetua!

THE STATE AS A CREDITOR.

VER eighty years ago Congress passed a law making debts due to the United States preferred claims in all cases where assets were insufficient to satisfy creditors. It is strange that, while this matter was settled so early with regard to the Federal government, the rights of this State to have its debts satisfied before private creditors are not asserted or denied either by our statute or by the decisions of the Court of Appeals, except as to distribution by executors and administrators, in which case taxes are given the precedence. There were some laws in New York which gave priority to personal taxes in cases of insolvency as well as of death, but these were repealed before the Revised Statutes were adopted.

The question has indeed been decided for us in particular instances, but never in the court of last resort, nor at any General Term. An opinion delivered in the N.Y. Common Pleas, Special Term, bears directly upon this subject. Receiver of Taxes v. Yonkers & N. Y. Fire Ins. Co., June, 1872. It is there distinctly held that the State is a preferred creditor. The chief groundperhaps the only one upon which this decision was based was that the State had succeeded to the common-law prerogative of the king. The doctrine expressed in this opinion has recently been upheld in the New York Supreme Court at Chambers, and in a dictum a judge of the Court of Appeals once stated that

"there is great force in the argument that the people of the State have succeeded to all the prerogatives of the British crown, so far as they are essential to the efficient exercise of powers inherent in the nature of civil government." The general drift of authority in New York, therefore, is in favor of the prerogative of the State. It is to be expected, however, that whenever this question will reach the Court of Appeals, strong arguments will be presented on both sides. Those who would deny the right of the State have a good foundation to stand upon. Let us examine their position.

In two States, South Carolina and Maryland, this question has been set at rest. In the former the debts of the State are not preferred. In the latter such debts are given the preference. In the case of Commissioners v. Greenwood, 1 Desaussure's Eq. R. 450 (South Carolina), Chancellor Rutledge says: The idea of the State retaining this prerogative * * * seems to be altogether a new one; the direction to executors and administrators in the law of 1789," preferring debts due to the State, "plainly evinces it." The court goes on to say that this case does not depend upon the prerogative . It is therefore not decisive. O'Neall, J. (State v. Harris, 2 Bailey, 599), said in his opinion: "The preference is claimed on the ground that in England it is a branch of the king's prerogative; but it is one, which I rejoice to have it in my power to say, has not been extended to the State. If, however, it were a common-law prerogative of the crown, it does not follow that it has been transferred to the State. * * * Monarchy is strictly a government for the benefit of the king. A republic, on the other hand, is a government for the protection of the citizen against the exercise of all unjust powers. With this as the cardinal object of the State government, it has no privileges, but such as are conferred upon it by the Constitution, by act of the legislature, or such as are necessary for the due administration of the government. ** If it were true that it," this prerogative, "is an incident of sovereignty, why is it that the United States' government, which is unquestionably sovereign, as to the management of the revenue to be collected under the Constitution, have found it necessary to pass acts, giving to a debt due to the government the preference now claimed for the debt of the State; and that in the construction of these acts, the United States courts have confined the preference to the cases described by the acts?" In this case taxes are admitted to be preferred claims on the ground of being liens. In Keckley's Executor v. Keckley, 2 Hill's Ch. 256, it is said that "the right of the State to be paid in preference to other creditors depends now altogether on the statute law." Two of these decisions in South Carolina are founded upon substantial reasoning. They refer to statutes which were passed when the law was evidently understood to be against the prerogative of the sovereign power, and one of them is enforced by decisions in the courts of the United States.

*

In Maryland, however, the courts have sustained the opposite view. The reports do not contain the arguments which led to this conclusion. The cases of State v. Rogers, 2 Harris & McH. 198, and Murray v. Kidley's Administratrix, 3 id. 171, were decided in the last century and are reported without any opinion of the court except the mere decisions. The case of State v. Bank of Maryland (1834), 6 G. & J. 205, is based upon the authority of the two early cases. Bu

chanan, C. J., there says (p. 226): "It is too late therefore, at this day, to deny the State's right at common law, to have its debt first paid out of the property of its debtor remaining in his hands, and no lien standing in the way." These words do not show a very emphatic approval of the doctrine. A dictum of Judge Ruffin in North Carolina adds weight to the law as it stands in Maryland. Hoke v. Henderson, 3 Devereux, 17. If a selection were to be made between the authorities in South Carolina and those in Maryland, the former, by means of their sound reasoning, might be more convincing than the latter.

The United States courts have recognized the fact that the sovereign power as represented by the national government has no right of preference independent of the statute-book. The United States form a fair example for the State to follow, as they represent the king in those matters which are under their control. "It," the Federal government, "is clothed with the principal attributes of political sovereignty." 1 Kent's Com. 208. In U. S. v. Bryan, 9 Cranch (U. S. Supreme Court), 387, we find the following: "The court is of opinion that Hendrickson was indebted to the United States before this act," preferring the United States as creditors, "passed, * * *aud that, therefore, the law which secures a priority against the estates of persons who shall thereafter become indebted, does not apply to this case." This opinion clearly shows that our highest court denies the existence of any common-law prerogative touching this matter. Another decision of the same character was that in U. S. v. Howland, 4 Wheat. 108, where it was held that the United States had no priority unless the debtor had assigned all his property according to a strict rendering of the statute.

The argument used by Chancellor Rutledge in Commissioners v. Greenwood, cited above, derived from the statutory direction to executors and administrators, is of equal force in New York. In the case of Receiver of Taxes v. Yonkers, etc., Ins. Co., which affirms the right of the State, it is held that, "The State not being named in the provisions of the Revised Statutes relating to the distribution of the estates of insolvent corporations, its rights are not affected by the order of preference in payment there enacted, all

quently work hardship among the owners of other claims. However this may be, the difference between the statutes is important in the settlement of this question.

The argument in favor of the State's right of priority is plainly stated above in the quotation from an opinion in the matter of the Columbian Ins. Co., viz.: that the people of "the State have succeeded to all the prerogatives of the British crown, so far as they are essential to the efficient exercise of powers inherent in the nature of civil government." Can it be said that the preference of the State's claims above those of private creditors is essential to the efficient exercise of the powers of the State, including the power of taxation? The answer to this question will only be of force as it is considered in the light of the already existing decisions in our own courts and in those of the United States, South Carolina, Maryland, and the other States, while the arguments drawn from the statutes should not be overlooked. It is to be hoped that before long the Court of Appeals will finally settle this point for us, unless the legislature renders such a settlement useless. ERNEST H. CROSBY.

JUDGMENTS FOR TORTS.-JOINT AND SEVERAL WRONG-DOERS.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1876.*

SESSIONS, plaintiff in error, v. JOHNSON, assignee. K. on April 5 mortgaged personal property to S. to secure indorsements. S., owing defendant, assigned the mortgage to him to secure the debt. On October 4 K. gave to G. a second mortgage for $4,000 (which was used to pay note of K. indorsed by S. and G.) on the property which also covered other property. October 12 K. sold the property for $6,000, of which sum G. received $3,500 and defendant $2,500. S. paid nothing on the secured indorsements. November 2 bankruptcy proceedings were commenced against K., and plaintiff appointed assignee, who brought action against G. for the $3,500 received by him, and another for the money paid on the notes. The first-named suit resulted in a judgment for $4,000 which was satisfled, and the second was settled for $2,000 and G. was released. Held, (1) that though the mortgage to S. was originally valid, he having paid nothing, the sum paid to defendant on it was a preference, and defendant liable to the assignee therefor; and (2) that the judgment against G. and its satisfaction and the release did not bar an action therefor against defendant.

error to the Circuit Court of the United States

it being an ancient prerogative of the king that his rights were not affected by implication, nor unless he was expressly named in a statute." In the list of preferred claims in the case of testators or intestates (2 R. S., p. 87, § 27), taxes due to the State find a place. Why, it may be asked, were any debts to the State there mentioned, if its rights would have been the same, had they been passed over in silence? Of course there is no objection to a declaratory provision. But why in the sections referring to insolvent debtors (2 R. S., p. 46, §§ 32, 33) and to receivers of corporations (2 R. S., p. 470, § 79) is the State omitted? This discrepancy seems to be significant. It may denote an intended difference in the order of distribution. There may be some slight reason for the distinction. It is to be presumed that executors and administrators generally have sufficient assets to pay the debts of the deceased. Priority of payment would therefore give preference to the State only in point of time, as the estate is gradually converted into money. But in the case of the assignee of a debtor or of the receiver of a corporation where the assets are always supposed to be insufficient, the preference of taxes would fre

in the opinion.

Mr. Justice CLIFFORD delivered the opinion of the court.

Even without satisfaction a judgment against one of two joint contractors is a bar to an action against the other, within the maxim transit in rem judicatem'; the cause of action being changed into matter of record, which has the effect to merge the inferior remedy in the higher. King v. Hoare, 13 M. & W. 504.

Judgment in such a case is a bar to a subsequent action against the other joint contractor, because the contract being merely joint there can be but one recovery, and consequently the plaintiff, if he proceeds against one only of two joint promisors, loses his security against the other, the rule being that by the recovery of the judgment the contract is merged and a higher security substituted for the debt. Robertson v. Smith, 18 Johns. 477; Cowley v. Patch, 120 Mass. 138; Ward v. Johnson, 13 id. 149; Mason v. Eldred, 6 Wall. 236.

This decision was not handed down until the present October term, 1877.

But the rule is otherwise where the contract or obligation is joint and several, to the extent that the promisee or obligee may elect to sue the promisors or obligors jointly or severally, but even in that case the rule is subject to the limitation that if the plaintiff obtains a joint judgment he cannot afterward sue them separately, for the reason that the contract or bond is merged in the judgment; nor can he maintain a joint action after he has recovered judgment against one of the parties in a separate action, as the prior judgment is a waiver of his right to pursue a joint remedy.

Different modifications of the rule also arise where the controversy grows out of the tortious acts of the defendants. Where a trespass is committed by several persons, the party injured may sue any or all of the wrong-doers, but he can have but one satisfaction for the same injury, any more than in an action of assumpsit for a breach of contract.

Courts everywhere in this country agree that the injured party in such a case may proceed against all the wrong-doers jointly, or he may sue them all or any one of them separately, but if he sues them all jointly and has judgment he cannot afterward sue any one of them separately; or if he sues any one of them separately and has judgment he cannot afterward seek his remedy in a joint action, because the prior judgment against one is, in contemplation of law, an election on his part to pursue his several remedy.

Where the injury is tortious the remedy may be joint or several. but the rule in this country is that a judgment against one without satisfaction is no bar to an action against any one of the other wrong-doers. Lovejoy v. Murray, 3 Wall. 10; S. C., 2 Cliff. 196; Livingston v. Bishop, 1 Johns. 291; Drake v. Mitchel, 3 East, 258.

Sufficient appears to show that the bankrupts, Kane, Sprague & Co., on April 5, 1870, mortgaged their stock, tools, fixtures and machinery to W. W. Sprague to secure him as their 'indorser; that the mortgagee, on the thirteenth of the same month, assigned the mortgage to the defendants below as security for a debt due from the mortgagee to the assignee of the mortgage. On the 4th of October following, the bankrupts made a second mortgage, including the property described in the first mortgage, together with other property, to E. A. Goodnow, for $4,000, which sum the mortgagee paid to the mortgagee of the first mortgage, as the agent of the bankrupts, and which he, the agent, used in part to pay three notes given by the bankrupts, upon which the mortgagees in both mortgages were indorsers. Eight days later the bankrupts sold the whole property covered by the mortgages to Nichols and Johnson, and received in payment their notes and those of Henry W. Snow, to the amount of $6,000, which they divided between the said mortgagees, as follows; $2.444.40 to the first mortgagee and $3,556.60 to the second mortgagee, the said mortgagees releasing their respective mortgages.

Bankruptcy proceedings against the mortgagors in the two mortgages were commenced on the 2d of November in the same year, and the plaintiffs were duly appointed assignees of the bankrupts' estate. Subsequently they sued the mortgagee in the second mortgage to recover the value of the property covered by his mortgage, and judgment was, by agreement, entered in their favor for $4,000, interest and cost, and the evidence showed that the judgment was

satisfied by the judgment debtor. They, the assignees, also brought another suit against the same party to recover for the preference he obtained when the agent of the bankrupts paid three of their notes upon which the defendant in the last-named suit was indorser, which suit was settled by the payment of $2,000 and a release given by the assignees of all their claims against the defendant in that suit.

Beyond doubt the first mortgage was valid, but it was given to secure the mortgagee as indorser for the mortgagors, and, inasmuch as the defendant failed to prove that the mortgagee had taken up any paper on which he was so liable, it is evident that the defendant derived no right to the proceeds of the property paid to him by virtue of that mortgage. Nothing having been paid by the defendant as indorser for the bankrupts, the money paid him for the release of his mortgage was plainly a preference by the way of indemnity. Proceedings in bankruptcy were commenced within four months thereafter, and the assignees brought the present suit in the District Court against the defendant to recover back the proceeds of so much of these notes given to the defendant for the release of his mortgage from the bankrupt debtors, the claim being that the amount was paid to secure the defendant for his indorsements for the insolvent debtors, he having reasonable cause to believe that they were insolvent, and that the payment was made to prevent the property from coming to the assignees for distribution and to impede and evade the provisions of the bankrupt act.

Service was made and the defendants appeared and pleaded the general issue, and that the plaintiffs previously recovered judgment against E. A. Goodnow for the value of the same property and that the said judgment has been fully paid and satisfied.

Issue being thus raised, the parties went to trial, and the verdict and judgment were for the plaintiffs in the sum of $2,786.56 and costs of suit. Exceptions were filed by the defendant and he removed the cause into the Circuit Court, where the parties were again heard, and the Circuit Court affirmed the judgment, and the defendant removed the cause into this court.

Five errors are assigned to the effect following: (1) Because the District Court did not instruct the jury that the action is not maintainable, the assignees having disaffirmed the sale of the goods and received the value of the property. (2) Because the District Court did not instruct the jury that the plaintiffs were estopped by their previous proceedings from maintaining the suit. (3) Because the District Court did not instruct the jury that the plaintiffs could only have judgment for the value of the property, deducting the amount previously recovered. (4) Because the District Court did not instruct the jury that the plaintiffs could not recover the proceeds of the property in the hands of the mortgagee so long as any contingent liability remained. (5) Because the issue submitted to the jury, whether the defendant had paid any thing for the bankrupts was an immaterial one, if there was any outstanding and undischarged indorsement of the defendant for which he was liable.

Separate mortgages were held by the defendant and the other mortgagee, of different dates, and it appears that they were given for entirely different considerations. Of course the respective mortgagees held the property subject to an equity of redemption in the mortgagors, and the case shows that the mortgagors

sold the respective equities of redemption and distributed the proceeds of the sale between the respective mortgagees. Throughout the relations of the mortgagees to the insolvent debtors were entirely separate. They never held any joint claim against the insolvent mortgagors, nor did the mortgagees ever receive any joint security from the insolvent debtors for their separate claims. Instead of that the respective equities of redemption remained in the mortgagors, and the conceded facts show that they sold the equities and distributed the proceeds between the respective mortgagees, showing to a demonstration that there never was any joint contract relation between the mortgagees and the insolvent debtors.

Even the proceeds of the sale of the equities of redemption, as distributed between the respective mortgagees, were entirely separate, nor would it make any difference if the mortgagees in receiving their respective portions of those proceeds had acted jointly, as it is well-settled law that where the tort is joint the injured party may have a joint or several remedy, the rule being that a judgment against one wrong-doer without satisfaction is no bar to an action against any one of the other joint tort-feasors. Lovejoy v. Murray, 3 Wall. 10.

Joint wrong-doers may be sued separately, and the plaintiff may prosecute the same until the amount of the damages is ascertained by verdict, but the injured party can have only one satisfaction, the rule being that he may make his election de melioribus damnis, which, when made, is conclusive in all subsequent proceedings. Heydon's Case, 11 Co. 50; White v. Philbrick, 5 Greenl. 147; Knickerbocker v. Colver, 8 Cow. 111; O'Shea v. Kirker, 4 Bosw. 120.

Without more, these remarks are sufficient to show that the theory of estoppel cannot be maintained and that the first two errors assigned must be overruled for two reasons: (1) Because the relation of joint contractors never subsisted between the insolvent debtors and the mortgagees to whom the proceeds of the equities of redemption were distributed by the insolvent mortgagors. (2) Because the mortgagees acted separately in accepting certain portions of the proceeds of that sale; nor would it have made any difference if they had acted jointly, as it is settled by all the authorities that when several persons have been jointly concerned in the commission of a wrongful act they may all be charged jointly as principals, or the plaintiff may sue any one of the parties separately, torts being in their nature several, even when the wrongful act was jointly committed. Addison on Torts (3d ed.), 939.

Suppose that is so, still it is insisted by the defendant that the plaintiff cannot, in any proper view of the facts, recover more than the difference between the amount paid by the other mortgagee and the value of the property distributed. What the plaintiffs claim is the amount the defendant received from the insolvent debtors as part of the proceeds of the sale of the equities of redemption. Abundant proof is exhibited that he received $2,444.40, and it is conceded that the whole of that amount remains in the hands of the defendant.

Two sums, amounting in the whole to $6,000, were received by the plaintiffs of the second mortgagee before the present suit was instituted; $4,000 of the amount was recovered by judgment in favor of the plaintiffs. They also instituted a second suit against the same party to recover the amount received by him

in payment of the notes upon which he was liable as indorser, which action was compromised by the payment to the assignees of $2,000, as appears by the agreed statement of facts. Such payment being made the assignees executed a release to the defendant in that suit of all claims and demands which they, as such assignees, had against him on that account.

Judgments bind parties and privies, but they do not bind strangers, and it is clear that the present defendant was neither a party nor privy to the action in the first suit, nor had he any thing to do with the compromise of the second suit between those parties.

Enough appears in the evidence to establish that theory, but if any possible doubt could otherwise arise in respect to the conclusion, the matter is set entirely at rest by the verdict of the jury. They were told by the court that if the plaintiffs had once received full satisfaction for the proceeds of the sale from the other mortgagee, "then they can recover nothing from the defendant," and it follows from the verdict that they did not recover in the suits against the other mortgagee any thing for the portion of notes taken for the sale of the equities which was distributed to the defendant in the present suit. All that he received remains in his hands, and inasmuch as the assignees are not estopped by the proceedings against the second mortgagee from prosecuting their claim against the defendant for the portion of the proceeds of the equities of redemption which was distributed to him by the insolvent debtors, it follows that the assignee may recover the whole amount of that portion without regard to the antecedent proceedings against the second mortgagee, which is all that need be said in response to the third assignment of error.

[The remainder of the opinion is devoted to immaterial matters.] Judgment affirmed.

NOTES OF RECENT DECISIONS. Arrest: assault by police officer: aggravated assault.— An officer having a prisoner in custody, who refuses to proceed further and pulls away from him, may handle him roughly if necessary, or call others to aid him; but the officer has no right to assault him to make him go when he stops. Sup. Ct., Texas, June 30, 1877. Skidmore v. State.

Constitutional law: regulation of inter-state commerce: liability of owner of vessel: statutory construction. Where a vessel running upon the ocean between ports of the same State carries merchandise between such ports, destined to points in other or foreign States, on through bills of lading, or carries passengers between such ports, destined to points in other States or foreign countries, upon through tickets, she is engaged in inter-state and foreign commerce, and, as an instrument of such commerce, is subject to the regulating power of Congress; and the provisions of section 4283 of the Revised Statutes, limiting the liability of owners, are applicable to such vessel. Where such a vessel also carries merchandise from one port to another port of destination in the same State, the provisions of section 4283 of the Revised Statutes, limiting the liability of owners of vessels for losses occurring without their privity or knowledge, are applicable to such merchandise, as well as to merchandise destined to other States or foreign countries. A party using for the transportation of his goods an instru

ment of commerce, which is subject to the regulating power of Congress, must use it subject to all the limitations imposed upon its use by Congress. The word "privity" of the owner, used in section 4283 of the Revised Statutes, means some fault or neglect in which the owner of the vessel personally participates; and "knowledge," as used, means some personal cognizance, or means of knowledge, of which he is bound to avail himself, of a contemplated loss, or of a condition of things likely to produce or contribute to a loss, without adopting appropriate means to prevent it. Where the owner is a corporation, the privity or knowledge of the managing officers of the corporation is privity or knowledge on the part of the corporation itself. U. S. Circ. Ct., California. Lord v. The G. N. & P. S. S. Co. (San Fran. L. Jour.).

Contract: note made on Sunday.-A note for the purchase-money of land, executed on Sunday, is void, although the trade for the land was made the day before, and the note was taken on the day in question, solely to accommodate the maker. Inasmuch as the plaintiff was a party to the illegal agreement that the note should be made on Sunday, the courts will not aid either party to enforce its collection, but leave the parties where it finds them. Sup. Ct., Georgia, Oct. 2 1877. Morgan v. Bailey.

Corporation: special charter: insurance company: ultra vires: re-insurance.- An insurance company incorporated under a special act is as much subject to the general insurance law of the State as if incorporated under the general law of the State. The directors and officers of a mutual life insurance company have no power in the name of such company, against the wishes of any of its policy-holders, to transfer all its assets to another company, under the pretense of reinsurance, or otherwise, and a contract entered into for such purpose is ultra vires and void as to such dissenting policy-holders. The power given to an insurance company in its charter to reinsure any risk or risks of said company does not empower it in one contract to reinsure all its risks, dispose of all its assets, turn its policy-holders over to a stranger company, and thus deprive itself of the power to insure. St. Louis Court of Appeals, Jan. 29, 1877. Price v. St. Louis Mut. Ins. Co. (Cent. L. Jour.).

Damages: measure of, in breach of contract.- In a suit for breach of contract to deliver specific articles at a certain time, the measure of damages is the highest price for which said articles might have been sold from the time of such failure to deliver them to the time of trial. Sup. Ct., Texas, April 28, 1877. Heilraner v. Douglass (Texas L. Jour.).

Former conviction: conviction by court having no jurisdiction. Appellant was indicted for an aggravated assault; tried and convicted of a simple assault. In support of a plea of autrefois convict, he offered a transcript of the mayor's court of McKinney. The State objected, because the mayor's court had no jurisdiction of the offense, which objection was sustained. Held, that the plea of autrefois convict presented no defense to the prosecution in this case; that the Constitution of 1869 repealed so much of the laws as conferred upon mayors the jurisdiction of justices of the peace. Sup. Ct., Texas, June 30, 1877. Bingham v. State.

Former conviction: when a bar: plea of pardon.Where the defendant was tried and convicted for a conspiracy to defraud the government out of the taxes

due on whisky distilled by the several parties named in the indictment, and it was alleged that, in pursuance of that conspiracy, other parties than defendant, who were his co-conspirators, did unlawfully remove said whisky, held, that such conviction would be a bar to another indictment against the defendant, charging him with aiding and abetting this same removal, and that the plea of pardon is a bar to the present suit. U. S. Circ. Ct., E. D. Missouri, Sept. 28, 1877. United States v. McKee (Chicago Leg. News).

Juror: remarks made by, to escape jury duty: disclosing conduct in jury room.- Grossly improper remarks by a juror before his qualification may be explained by him, and if made solely for the purpose of avoiding jury duty, they will not render him incompetent. A juror will not be heard to impeach the verdict by disclosures of what took place in the juryroom in the course of the deliberations. Sup. Ct., Georgia, Oct. 2, 1877. Moughon v. State.

Mortgage: deed and defeasance: unrecorded defeasance.--An absolute deed and defeasance, made at the same time, constitute a mortgage; but, if the defeasance be not recorded, it is to be considered as an unrecorded mortgage, and postponed to a judgment of subsequent date, notwithstanding the absolute deed has been duly recorded. Sup. Ct., Pennsylvania, May 28, 1877. Corpman v. Baccastow.

Shipping: duty of owner in fitting up ship: seawor thiness: master and crew: compasses.-The owner is bound to exercise the utmost care in the selection of a competent master and crew, and in providing a vessel in all respects seaworthy; and if, by reason of any neglect or fault in these particulars, a loss occurs, the owner is in privity within the meaning of the statute. If the owner exercises due care in the selection of the master and crew, and in providing a seaworthy vessel, and a loss afterward occurs, without his privity or knowledge, through the negligence of the master or crew, or from some secret defect in the ship or its equipments, which could not have been discovered or avoided by the exercise of proper care on his part, the owner's liability is within the limitation of the statute. In order to be seaworthy a ship must be furnished with suitable compasses. Where a vessel is properly officered and manned, and in all respects seaworthy, when she leaves port, and a loss occurs from the subsequent negligence of the master or crew, or from other causes arising during the voyage, without the privity or knowledge of the owner, the owner's liability is within the limitations prescribed by the statute. Where the ship is provided with several correct compasses, and one compass, from any cause, deviates, if the master, by the exercise of ordinary care and skill, can discover the deviation, and correct the deviating compass by the others, and thus be able to steer the proper courses, the ship is, in this respect, seaworthy. U. S. Circ. Ct., California. Lord v. The G. N. & P. S. S. Co. (San Fran. L. J.).

Title: to personal property: of agent or factor in goods for sale.-Plaintiffs delivered to one Miller a stock of liquors to sell on commission, as their agent or factor, for them and in their name, with the understanding that Miller would open a store, proceed to sell the goods, bear all the expenses of carrying on the business, account to plaintiffs for the proceeds at an agreed invoice price, retaining as compensation for his services and expenses whatever might be realized therefrom over and above such invoice price: it being also