point, and suit was brought to recover damages suf fered by the plaintiff because of such refusal. After discussing the question at great length, the court held that the company was bound to furnish gas to the citizen who has made all necessary preparation to receive the same, upon compliance by the citizen with such reasonable terms as the company may rightfully impose. But the court declares that the fact of an exclusive right to manufacture and sell gas in the city would imply an obligation on the part of the company to furnish the city and citizens with a reasonable supply upon reasonable terms; that when the nature and objects of the corporation are considered, namely, the exclusive right to manufacture and sell gas for the purpose of lighting the city and dwellings and business places of its inhabitants, how can it be urged that this is a mere private corporation, for the manufacture and sale of a commercial commodity? In Williams v. Gas Co., 52 Mich. 499, the action was for damages for the failure of the defendant to furnish the plaintiff with gas, as plaintiff claimed was the defendant's duty. The court says: "The questions presented and argued before the judge of the Superior Court by counsel for the defendant were: First, the plaintiff could not recover for the reason that the defendant was under no legal obligation or duty to supply any citizen of Detroit with gas. The court below disagreed with the defendant's counsel upon this point. I agree with the judge of the Superior Court that it is the duty of the defeudant, upon reasonable conditions, to supply the citizens of Detroit who have their residences at and places of business east of the center of Woodward avenue with gas, wherever the defendant has connected its mains and service-pipes with the pipes and fixtures used at such residences and places of business, and the owners or occupants shall desire the same. The defendant is a corporation in the enjoyment of certain rights and privileges under the statutes of the State and charter and by-laws of the city, and derived therefrom. These rights and privileges were granted that the corresponding duties and benefits might inure to the citizens when the rights and privileges conferred should be exercised. The benefits are the compensation for the rights conferred and privileges granted, and are more in the nature of convenience than necessity, and the duty of this corporation imposed cannot therefore be likened to that of an innkeeper or common carrier, but more nearly approximates that of the telegraph, telephone or mill-owner." Price v. Riverside, etc., Co., 56 Cal. 431; McCrary v. Beaudry, 67 id. 120; Lloyd v. Gas-light Co., 1 Mackay, 331; People v. Gaslight Co., 45 Barb. 136; Gas-light Co. v. Colliday, 25 Md. 1; Gas-light, etc., Co. v. Paulding, 12 Rob. (La.) 378. The same principle applies to telephone companies, which are regarded so far as common carriers in their relation to the public that they must serve all members thereof alike in the transmission of messages. In Telephone Co. v. State, 118 Ind. 206, the court says: "While it may not supply and take the place of the telegraph in many instances and for many purposes, yet in others it far surpasses it, and is and can be put to many uses for which the telegraph is unfitted, and by persons wholly unable to operate and use the telegraph. It has been held universally by the courts, considering its use and purpose, to be an instrument of commerce, and a common carrier of news, the same as the telegraph, and by reason of being a common carrier, it is subject to proper obligations and to con duct its business in a manner conducive to the public benefit, and to be controlled by law. It is by reason of the fact that business men can have them in their offices and residences, and without leaving their homes or their places of business, call up another at a great distance, with whom they have important business, and converse without loss of valuable time on the part of either, that the telephone is particularly valuable as an instrument of commerce. It being an instrument of commerce, and persons or corporations engaged in the general telephone business being common carriers of news, what are the rights of the public independent of the statute as regards discrimination? Any person or corporation engaged in the telephone business, operating telephone lines, furnishing telephonic connections, facilities and services to business houses, persons and companies, and discriminating against any person or company, can be compelled by mandate, on the petition of such person or company discriminated against, to furnish to the petitioner a like service as furnished to others." State v. Telephone Co., 17 Neb. 126; Commercial Union Tel. Co. v. New England Tel. & Tel. Co., 61 Vt. 241; State v. Telephone Co., 36 Ohio St. 296. A corporation undertaking, by its acceptance of a public franchise, to perform a certain service, cau be by mandamus compelled to perform that service. People v. Railroad Co., 104 N. Y. 58; Vincent v. Railroad Co., 49 Ill. 33; Trust Co. v. Heuning, 17 Am. Law Reg. (N. S.) 266. The pipe which was laid by the defendant in Tillamook street was laid under the franchise granted by the city, and it had no authority to lay any other kind of pipe or main than prescribed by the ordinance, or for any other purpose than conducting water to supply the city and its inhabitants, without discrimination, to all persons having buildings or lots on the lines of their pipe, upon tender of the proper compensation. There is no claim that Hughes and Prescott had any right to dig up the street and to lay such pipe. It could only be done by the defendant, so far as disclosed by this record, under the grant in the mode prescribed and for the purposes already stated. It is true it is alleged in effect that the pipe was laid along the street and in front of the property of the plaintiff for the exclusive benefit of Hughes and Prescott's property, and for the sole purpose of supplying their lands with water. The street in front of the plaintiff's property was subjected to this public use for the special benefit of aiding in the sale of their property. Their object was to induce purchasers to buy land from them for homes in places of others whose property along the street abutted on the main. To favor them the defendant, by virtue of the franchise granted, laid the pipe but refused to supply the plaintiff with water from it upon the tender of the amount usually charged for such service. As neither Hughes nor Prescott are parties to this record, what rights or contractual relations they may bear to the defendant we neither know nor decide. We attach no significance to words "supply-pipe" used in the answer. The pipe was laid along the street and in front of the lot of the plaintiff under the franchise granted by the city, and by the terms of its incorporation, to supply water to the city and its inhabitants. This being a public purpose, and the business of a public nature, the defendant must serve all alike, and for any discrimination mandamus is the appropriate remedy. We discover no error and the judgment must be af. firmed. NEW YORK COURT OF APPEALS ABSTRACTS. ΤΑΧΑΤΙΟΝ CONSTITUTIONAL LAW -LEGISLATIVE POWERS-TESTING VALIDITY OF ASSESSMENTS.-(1) The charter of Long Island City (Laws 1871, chap. 461, tit. 10, as amended by Laws 1875, chap. 415; Laws 1879. chap. 100, § 4, and Laws 1881, chap. 684) created a board of water commissioners, and empowered it, with the proceeds of bonds to be issued, to supply the city with (2) *特 * water, and establish a scale of water rents to be charged (5) Act of Held, that the remedy herein prescribed was properly invoked to cancel assessments on the ground that they were levied under an unconstitutional law, and though the petitioner's affidavit avers that the lots assessed were vacant, it is immaterial whether the allegation is true or not. (6) Section 10, which provides that any proceeding to test the validity or regularity of any tax levied or assessment or water-rates made shall be commenced within one year from the time of the delivery of the roll in which they are contained to the treasurer, is not retroactive. Dec. 22, 1891. In re Union College. Opinion by Finch, J. 7 N. Y. Supp. 866, reversed. ally awarded to executors and administrators. Dec. 1, 1891. Woodruff v. New York, L. E. & W. R. Co. Opinion by Ruger. C. J. Earl, Peckham and O'Brien, JJ., dissenting. 10 N. Y. Supp. 305, modified. ABSTRACTS OF VARIOUS RECENT DE- BANKS-LIABILITY OF DIRECTORS.-The directors of a savings bank, who have in good faith lent to one person a sum greater than one-fourth of the bank's capital stock, contrary to law, are liable to the bank or its receiver for any loss that may accrue from such loan, although the statute itself does not provide any penalty for its violation. It is insisted that, notwithstanding the directors of a corporation at common law may be liable for a fraudulent or negligent breach of duty, still no liability is shown, for the reason that the acts prohibited are not such as would make them liable at common law, and no penalty is fixed for the violation of the statute, and the acts charged were not charged to have been done negligently, fraudulently or corruptly. The cause of action stated is based upon an alleged disregard and violation of section 916, Revised Statutes of 1879, which is as follows: ors. * * * The petition contains no charge of bad faith or negli- TRUSTS-ACTION BY TRUSTEE-ALLOWANCE OUT OF ESTATE.-(1) The G. railroad company conveyed all its property to the plaintiff in trust to secure its bonds, and afterward leased its said property to the plaintiff who assumed the bonds secured by the trust deed. The plaintiff then leased the property to the E. railroad company, upon condition that the company should assume plaintiff's obligation under the lease. The E. company having become insolvent and defaulted in the payment of its bonds, an action was brought against the plaintiff and the receiver of the company, which resulted in a sale of the property and a judgment for the deficiency. Afterward plaintiff commenced an action in his own name against the receiver, to enforce payment of the bonds, and a judgment was rendered which relieved the plaintiff from personal liability, but was also unfavorable to the bondholders in other respects. Plaintiff appealed and 1 Mor. Priv. Corp., § 555; Associaprocured a judgment which again fixed his liability, Cal. 126. tion v. Coriell. 34 N. J. Eq. 383; Bank v. Wilcox, 60 and made the bondholders secure. Held, that the liti-guished. Fusz v. Spaunhorst, 67 Mo. 264, distingation was not for the benefit of the plaintiff, but of Mo. Sup. Ct., Dec. 2, 1891. Thompson v. Opinion by Macfarlane, J. the bondholders, and plaintiff was therefore entitled to an allowance for expenses and attorney's fees. Trus- CONSTITUTIONAL LAW EXEMPTION OF SEAMEN tees v. Greenough, 105 U. S. 527, followed. (2) A trusFROM ARREST.-Section 6 of the act of 1889, providing tee in discharge of duties which pertain to his trust that no officer or seaman of a sea-going vessel or ship should be allowed only the compensation which is usu- shall be arrested or imprisoned for debt, etc., is not in Greeley. -- conflict with section 20 of the Bill of Rights, which pro- It is plain, 66 laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply, and they are then public in character, and of their propriety and policy the Legislature must judge." Cooley Const. Lim. 482, 483. As a general proposition the doctrine is well established that the State, in the exercise of its police powers, is authorized to subject all occupations to a reasonable regulation, when such regulation is required for the protection of public interests or for the public welfare. Tied. Lim. Police Powers, § 85. So too there is in all the States, a class of exemptions or immunities granted to certain classes of persons, as the exemption of sailors from trustee process, or militia men on training day from the service of civil process, or ministers, physicians and firemen from jury duty; not so much for the benefit of this class of persons themselves as for the benefit of the community and the protection of the public interests and welfare. This is not class legislation, conferring special privileges upon some and denying them to others, but legislation which has for its object the public welfare, and within the sphere of its operation pre-. scribes the same rule of exemption to all persons placed in the same situation or circumstances. It is not disputed that the object of the act, as shown by its subject-matter, was to aid and extend our foreign commerce by protecting sailors, and preventing such burdens or exactious from being laid upon shipping as would discourage vessels from frequenting our ports. The persuading of sailors to desert, or harboring them after they had deserted, or demanding from them sums as blood money, or arresting them for small debts, or on frivolous pretenses of debt, are all acts which must affect injuriously our commerce, and as a consequence the prosperity and welfare of our people. In aid of this public purpose, the immunity granted by section 6 of the act to the officers and sailors of a seagoing vessel may be enjoyed by any other class of citizens upon the same terms. Its effect is not to create a privileged class, or invidious discriminations against any one. All persons who are sailors are treated alike, and enjoy the immunity; and all other persons may enjoy it, or become entitled to it, who bring themselves within its terms. The objection that this is class legislation is without force. As said by Mr. Justice Field: "The discriminations which are open to objection are those where persons engaged in the same business are subject to different restrictions, or are held entitled to different privileges, under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws." Soon Hing v. Crowley, 113 U. S. 709. And again: "Class legislation, discriminating against some and favoring others, is prohibited; but legislation which in carrying out a public purpose is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment." Barbier v. Connolly, 113 U. S. 32; Railroad Co. v. Beckwith, 129 id. 26. Legislation which affects alike all persons pursuing the same business, under the same conditions, is not such class legislation as is prohibited by the Constitution of the United States or of this State. Oreg. Sup. Ct., Dec. 14, 1891. In re Oberg. Opinion by Lord, J. INSURANCE-SUICIDE -RELEASE- FRAUD.-(1) The condition in a life insurance policy that it shall be void if the insured die by his own hand, has no application where the insured killed himself by accidentally taking an overdose of laudanum, nor where he intentionally took the overdose of laudanum, but at the time was of unsound mind, and incapable of judging the moral consequences of the act. "The condition in a policy " of life insurance, that it shall be void if the insured shall die by his own hand, has no application where the insured kills himself by accident.' Insurance Co. v. Hazelett, 105 Ind. 212; Insurance Co. v. Paterson, 41 Ga. 338; Mallory v. Insurance Co., 47 N. Y. 52; Penfold v. Insurance Co., 85 id. 317; Edwards v. Insurance Co., 20 Fed. Rep. 661. Nor does such a condition in a policy of life insurance apply if the insured destroys his life while of unsound mind, if his mind is so impaired by disease that he does not comprehend the moral character of the deed, though he may have sufficient mental capacity to know the physical consequences of the act. Breasted v. Farmers', etc., Co., 8 N. Y. 299; 59 Am. Dec. 482, and note on page 487; Phadenhauer v. Insurance Co., 7 Heisk. 567; Phillips v. Insurance Co., 26 La. Ann. 404; Insurance Co. v. Groom, 86 Penn. St., 92; Schultz v. Insurance Co., 40 Ohio St. 217; Insurance Co. v. Terry, 15 Wall. 580; Insurance Co. v. Rodel, 95 U. S. 232; Insurance Co. v. Broughton, 109 id. 121; 21 Cent. L. J. 378. (2) Where a life insurance company, for the purpose of compromising a loss for one-half the amount of the policy, fraudulently represented to the beneficiary that the deceased died by his own hand, while of sound mind, and that the company had proof of it, these were material facts which the beneficiary had a right to rely on, and the beneficiary may retain the money received and sue for the damages resulting from the deceit. It is insisted by the appellant however that the alleged fraudulent representations were not such as the appellee had the right to rely upon, that they were not of material facts and were at most representations of opinion. This we think is true as to some of the representations made, but not of all. The representations that the decedent had died by his own hand, while he was of sound mind, and that the appellant had evidence whereby it could prove that he so died, were each representations of fact and of material facts. We think, under the circumstances detailed in the complaint, the appellant was justified in relying and acting upon them. In our opinion the facts stated in the complaint clearly bring the case within the rule stated in Insurance Co. v. Howard, 111 Ind. 544, which like this was where a party alleged that he had been induced by fraud to settle a claim on an insurance policy, and surrendered the policy on receiving a portion of the sum due. The court said (111 Ind. 548): "A person so circumstanced may retain what he has received, and sue whoever is liable for the consequences of the deceit by which the compromise was brought about, and recover whatever damages resulted therefrom." See also Johnson v. Culver, 116 Ind. 278; Hayes v. Insurance Co. (Ill. Sup.), 18 N. E. Rep. 322. Ind. Sup. Ct., Dec. 15, 1891. Michigan Mut. Life Ins. Co. v. Naugle. Opinion by McBride, J. MARRIAGE-POST-NUPTIAL AGREEMENT- CONVEYANCE OF LAND BY WIFE.-In order to secure a reversal of the judgment, the defendant must successfully maintain the proposition that a post-nuptial agreement between husband and wife for the conveyance to him of her general fee-simple estate in lands, made upon sufficient consideration, though void at law, will be enforced in a court of equity against the wife and her heirs. This proposition the learned counsel for the defendant undertake to maintain in the face of the doctrine laid down and repeatedly approved in this State, that a feme covert, except as to her separate estate, is utterly incapable of binding herself by a contract to convey her land, either at law or in equity, except by compliance with the prescribed statutory forms." The argument seems to proceed upon the theory that this doctrine is founded upon the oneness of the husband and wife in the marital relation at common law, in consequence of which they could make no binding individual contract with each other, but that it does not obtain in courts of equity in regard to contracts between husband and wife, wherein either has executed his or her part of it, and the other has received a valuable and sufficient consideration for the contract; and we are cited to many cases in which such courts have ignored this common-law idea of absolute unity, and have sustained post-nuptial settlements and contracts of the husband made with or for the benefit of the wife upon sufficient consideration; but these do not reach the case in hand. The incapacity of the wife to contract does not rest alone upon the unity of the husband and wife in the marital relation, but upon the further maxim that the wife is sub potestate viri. Her acts ex contractu during the marital relation are presumed to be the fruits of his power and influence, and not of her own volition. They may bind him, but cannot bind her, only so far as this disability has been removed by statute. The husband rests under no such incapacity. He has power to bind himself, and courts of equity in many instances enforce his contracts for her benefit, founded upon a sufficient consideration. A mode has been provided by statute by which the wife may dispose of or incumber her real estate. She has no power, directly or indirectly to charge or dispose of it in any other manner, and courts of equity have never enforced quasi contracts by which married women attempted to do so in any case except where the feme covert was seized of a separate estate, over which (it being originally a creature of equity) such courts have always claimed the right to exercise jurisdiction ex æqua et bono, and in respect to which, holding that she was a feme sole, her contracts have been by them enforced even in favor of the husband, when in equity and good conscience they ought to be. But courts of equity have never undertaken to enforce the wife's executory contracts with the husband or anybody else in regard to her general legal estate in lands, nor could they, except in jurisdictions where, as to such estate, she is by statute authorized to contract as a feme sole, and where she might be treated in respect thereof the same as if she were seized of a technical separate estate, as previously recognized by courts of chancery. Under such a statute. enacted in 1849, in New York it has been held by the Court of Appeals of that State, that while the incapac ity of the wife to convey has been removed, the incapacity of the husband to take has not, and that a voluntary deed from the wife to the husband is void; but that court seems to hold, in view of this legislation, that her contract with him in respect of her real estate, if just and fair, and founded upon an executed, adequate consideration, might be charged upon her real estate upon the same equitable principles that would obtain if she were seized of a technical, equitable, separate estate therein. Yale v. Dederer, 18 N. Y. 265; White v. Wager, 25 id. 328; Winans v. Peebles, 32 id. 423; Hendricks v. Isaacs, 117 id. 414. And in other States, where similar statutes have been enacted, the wife's statutory separate estate seems to be placed on the same footing as her technical, equitable, separate estate. Johnson v. Cummins, 16 N. J. Eq. 97; Dreutzer v. Lawrence, 58 Wis. 594; Love v. Watkins, 40 Cal. 547; Spafford v. Warren, 47 Iowa, 47. But for the purpose of this case it is not necessary to pursue the investigation further in this direction. That prior to such legislation the covenant of a married woman, except as to her technical, equitable estate, was absolutely void, and afforded no basis for equitable relief wherever the common law prevailed, is made manifest in Martin v. Dwelly, 6 Wend. 9; Butler v. Buckingham, 5 Day, 492, and 2 Kent Comm., § 168; 1 Cord Mar. Wom., § 428; Cahill v. Cahill, L. R., 8 App. Cas. 420, and a host of other authorities that might be cited. At the time the contract in this case is alleged to have been made and the deed executed there was no statute in this State authorizing a married woman to contract as a feme sole, or to convey or bind her real estate except by will (Rev. Stat. 1879, § 3961), or by deed or power of attorney made in conjunction with her husband, and by her duly acknowledged upon a privy examination separate and apart from him (Rev. Stat. 1879, §§ 669, 670, 681. With these exceptions her power over her real estate was just the same as at common law. We have examined all the cases cited by counsel, and many others, in which courts of equity have passed upon the property rights and contracts of husband and wife, but have not found, and do not think a well-considered case can be found, in which it is held that a post-nuptial contract could be enforced in favor of the husband against the wife in respect of her real estate, unless she was possessed of a separate estate therein, either technical or statutory. Mo. Sup. Ct., Nov. 9, 1891. Shaffer v. Kugler. Opinion by Brace, J. Sherwood, C. J., dissenting. CHECKS- DAYS OF If it 177 Gluck and August Becker, of Buffalo. Mr. Gluck is widely known in this State as a remarkably capable corporation lawyer, and is a man of culture in literature as well as in law. His coadjutor is well spoken of for industry and legal merit. It will be noted that the treatise is confined to receivers of corporations, and especially includes National banks. As the titlepage indicates, it is "illustrated by abstracts of the facts of and excerpts from the opinions in leading cases." These excerpts are chiefly, we infer, in the notes, and the text is of an independent and original order, with unhesitating expressions of the authors' opinions. The volume is not padded with cases-the table is only thirty-five pages, in single columns, rather openly set. The book strikes us as judiciously and ably prepared, and as quite likely to fulfill the authors' design of furnishing to the profession "in compact shape, the general principles relating to the subject under investigation, in almost the exact language of the best authorities," with "carefully-prepared statements of the essential facts of the cases cited." Especial praise is due the index of eighty-four pages. NOTES. NEGOTIABLE INSTRUMENTS GRACE. An instrument in form of a check, which read: "100 Franklin Street. $200. Boston, Aug. 31, 1889. The National Revere Bank of Boston, pay to the order of Geo. H. Towle, Oct. 1, 1889, two hundred dollars. No. 9,288. [Signed] SAMUEL W. CREECH, JR.," was a check and was not entitled to grace. The question whether a check made payable on a day subsequent to its date should be regarded as a check or as a bill has been decided differently in different jurisdictions. In re Brown, 2 Story, 502; Champion v. Gordon, 70 Penn. St. 474; Bank v. Wheaton, 4 R. I. 30; Ivory v. Bauk, 36 Mo. 475; Henderson v. Pope, 39 Ga. 361; Morrison v. Bailey, 5 Ohio St. 13; Minturn v. Fisher, 4 Cal. 36; Bowen v. Newell, 13 N. Y. 290. In the present case the check appears to be upon one of the ordinary printed blanks of the bank on which it is drawn. It is dated August 31, 1889, and the only difference that is suggested between it and an ordinary check is that it is made payable October 1, 1889. had been post-dated as of that date it would not have been payable until then, and yet would in that case have been a check. It has all the other characteristics of a check, and we cannot believe that it was intended by the parties, or would have been taken by the bank on which it was drawn, as any thing else than a check. It is often convenient to make a check payable at a future day, and we see no valid distinction between post-dating it and making it payable at a subsequent date. In the latter case, as in the former, it is expected that it will be presented on the day when pay-ers-chiefly professors-which from a practical patent able, which in the one instance would be the day of its date, and in the other the day fixed for its payment, and that there will be funds to meet it, and that it will then be paid. And neither in the latter case, any more than in the former, would it be expected that the holder would present the check for acceptance before payable to the bank on which it was drawn, and on its refusal to accept it protest it and bring suit forthwith against the drawer for non-acceptance. We think it better accords with the intent and understanding of the parties and of bankers and business men generally HE remarks of Romer, J., in Nettlefolds v. Reynolds, trial of patent actions form a curious commentary on the proposal of the joint committee of the bar committee and the Incorporated Law Society, that such actions shall be included in the suggested commercial list. It is true that the attorney-general has promised to be more concise in future, and it may be that a similar attempt at amendment will be made by other leadPossibly too the persons engaged may ing counsel. accept the statement that judges are the possessors of a certain amount of sense and intelligence, and spare them some of the instruction to which they have hitherto been condemned. But when all this has had its due effect, patent actious will still occupy a length of time disproportionate to their real importance, and probably the true remedy will be found to lie in the institution of a patent court. The judge of this court would naturally be chosen for his scientific ability, and he might be assisted where necessary by specially qualified assessors. The attorney-general complains that the minds alike of judge and counsel are frequently diverted from the main issue in the case by a number of disquisitions of scientific witnesses and oth to treat the instrument in suit as a check than as a bill of exchange, and we see no valid objection to doing so. Mass. Sup. Jud. Ct., Jan. 9, 1892. Way v. Towle. Opinion by Morton, J. NEW BOOKS AND NEW EDITIONS. GLUCK AND BECKER'S RECEIVERS OF CORPORATIONS. law point of view, have really nothing to do with the case, and the waste of time generally is ascribed to the introduction of irrelevant matter and the undue illustration and discussion of minor points. Even if the judge does not see his way to interfere with this, a change might not unreasonably be expected if some of the professors or other experts were to be transferred from the witness-box to the bench. They would be less likely than a judge of the High Court, with his habitual tolerance, to put up with the verbose harangues either of counsel or of their fellow scientists and the judge, having their knowledge to rely upon, would himself also have less hesitation in interfering. We do not expect that Mr. Justice Romer's expostulations will materially alter the course of patent actions, but they certainly call attention to the advisability of relegating them, not indeed to a commercial cause list, but to a specially constituted tribunal.-Solicitors' Journal. A correspondent sends us the following actual an This handsome volume, published by Banks & swer in a justice's court: "1. the Defendent for answer to the Plaintiff com |