case of more or less merit, according to the degree of peril in which the property was, and the danger and difficulty of relieving it. But these circumstances affect the degree of the service, not its nature." The Alphonso, 1 Curtis, 376, 378. The contract of the towboat and her officers and crew was to tow the ship, and did not include the rendering of any salvage service, by putting out fire or otherwise. Such a service, which, by the use of the steam pump and engine of the towboat, rescued the ship from an unforeseen and extraordinary peril, gave the owner as well as the officers and crew of the towboat a right to salvage. The William Brandt, Jr. 2 Notes of Cases, Supplement, lxvii.; The Saratoga, Lush. 318; The Minnehaha, 15 Moore P. C. 133; S. C., Lush. 335; The Annapolis, id. 355, 361, 372. And no doubt is or could be raised as to the right of the passengers on the towboat, whose exertions contributed to putting out the fire, to share in the salvage awarded to her officers and crew. The Cora,2 Pet. Adm. 361; S.C., 2 Wash. C. C.80; The Hope,3 Hagg. Adm. 423. A passenger cannot indeed recover salvage for every service which would support a claim by one in no wise connected with the ship. In the case of a common danger, it is the duty of every one on board the ship to give every assistance he can, by the use of all ordinary means in working and pumping the ship, to avert the danger. Yet the passenger is not, as the officers and crew are, bound to stand by the ship to the last; he may leave her at any time and seek his own safety; and for extraordinary services, and the use of extraordinary means, not furnished by the equipment of the ship herself, by which she is saved from imminent danger, he may have salvage. Newman v. Walters, 3 B. & P. 612; The Branston, 2 Hagg. Adm. 3, note; The Salacia, 32 L. J. Adm. 41; The Vrede, Lush. 322; The Pontiac, 5 McLean, 359, 363; The Great Eastern, 2 Marit. Law Cas. 148; S. C., 11 Law Times (N. S.) 516; 3 Kent Com. 246. (2) Under the act of Congress of 16th February, 1875, ch. 77, a decree of salvage by the Circuit Court is not to be altered by this court for excess in the amount awarded, unless the excess is so great, that upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case. The services performed being salvage services, the amount of salvage to be awarded, although stated by the Circuit Court in the form of a conclusion of law, is largely a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case. The Blaireau, 2 Cranch, 240, 267; The Adventure, 8 id., 221, 228; The Emulous, 1 Sumner, 207, 213; The Cora, 2 Pet. Adm. 361, 375; S. C., 2 Wash. C. C. 80; Post v. Jones, 19 How. 150, 161. In The Sy bil, 4 Wheat. 98, Chief Justice Marshall said, "It is almost impossible that different minds, contemplating the same subject, should not form different conclusions as to the amount of salvage to be decreed and the mode of distribution." And by the uniform course of decision in this court, during the period in which it had full jurisdiction to reverse decrees in admiralty upon both facts and law, as well as in the Judicial Committee of the Privy Council of England, excercising a like jurisdiction the amount decreed below was never reduced, unless for some violation of just principles, or for clear and palpable mistake or gross over-allowance. Hobart v. Drogan, 10 Pet. 108, 119; The Comanche, 8 Wall, 448, 479; The Neptune, 12 Moore P. C. 346; The Carrier Dove, 2 Moore P. C. (N. S.) 243; S. C., Brown. & Lush. 113; The Fusilier, 3 Moore P. C. (N. S.) 51; S. C. Brown. & Lush. 341. By the act of Congress of the 16th February, 1875, ch. 77, the appellate power of this court is restricted within narrower bounds; its authority to revise any decree in admiralty of the Circuit Court is limited to questions of law; and the finding of facts by that court is equiva

lent to a special verdict, or to facts found by the court in an action at law when a trial by jury is waived. The Abbotsford, 98 U. S. 440; The Francis Wright, 105 id. 381. The effect of this change may be illustrated by referring to the revisory power of the courts in actions at law tried by a jury. The facts are decided by the jury in the first instance. If the jury return a general verdict, clearly against the weight of evidence, or assessing exorbitant damages, the court in which the trial is had may set aside the verdict and order a new trial. But a court of error, to which the case is brought by bill of exceptions or appeal on matter of law only, cannot set aside the verdict, uuless there is no evidence from which the conclusion of fact can be legally inferred. Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359. Sinclair v. Cooper. Opinion by Gray, J.

[Decided April 30, 1883.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.

MARITIME LAW SECURITY FOR COSTS REQUIRED.— By the long-standing practice in courts of admiralty, parties prosecuting or defending or intervening are In actions in required to give a stipulation for costs. personam, such security was formerly obtainable under the express rule, when the process was by warrant, which was at the option of the libellant. Now that the process by warrant is abolished in ordinary cases, the requirement of security for costs should still be maintained under the Supreme Court rule 25, and an amendment of the old rule 44 of this court should be made, in order that no doubt may exist as to the proper practice. U. S. Dist. Ct., S. D. New York. March 15, 1883. Rawson v. Lyon. Opinion by Brown, J.

MUNICIPAL CORPORATION-CONTRACT BY-CONVEYANCE OF WHARFAGE RIGHT-STATUTORY CONSTRUC

TION-REPEAL.-Where a city had full power derived from the State to establish wharves and to cause them to be erected by the owners of the adjacent property, and to grant the right to receive and collect wharfage, but was restrained from conveying the land in coutroversy by an act of the Legislature, and the restricting act was subsequently repealed, with a proviso enacted that no grauts should be made beyond the exterior line fixed by statute, and it granted to the orator the land of which he was riparian owner to the exterior bulk-head line, as fixed by the Legislature, upon which, by the terms of the indenture, he was required and covenanted to build a wharf, with the right to collect wharfage and cranage advantages by or from that part of the exterior line of the city, but the grant was not to be construed as a warranty or seisin, or to operate further than to pass the title or interest the city may lawfully have or claim by virtue of its charter and the various acts of the State Legislature, held, that a preliminary injunction may issue to restrain the city from building permanent structures outside of the orator's wharf, which structures would have the effect to cut plaintiff's wharf wholly off from the navigable waters of the river and destroy his right to collect wharfage and cranage at his wharf without making compensation therefor. Where the State Legisture fixed the exterior line of the city, and left the city with authority to grant wharves to that line, and expressly declared that there should be no solid filling beyond that line, the act of the Legislature is a part of the consideration for the purchase of the land and the building of the wharf, and the city cannot divest rights which have accrued under its contract without just compensation therefor. U. S. Circ. Ct.,

In re Barker, 6 Wend. 509; In re Wheeler, 2 Abb. Prac. (N. S.) 361; Boone on Corp., § 69. But with respect to the qualifications of a director, the company's books are not conclusive. Matter of St. Lawrence Steamboat Co. Opinion by Depue, J.

EXCISE-LICENSE- RESTRICTIVE COVENANTS AS TO LIQUOR.-Covenants in deeds not to sell intoxicating liquors on premises for which a license is sought, however they may bind the parties to such deeds, are no legal restraint upon the court in granting tavern licenses for the public convenience. Barnegat Beach Association v. Busby. Opinion by Knapp, J.

NEW JERSEY COURT OF ERRORS
ABSTRACT.*
NOVEMBER, 1882

BOUNDARY-PRACTICE COSTS.- Where no monuments are named in a grant and none are intended to be afterward designated as evidence of the extent of it, the distance stated therein must govern the location. Tyler on Bound. 29. Said Marshall, C. J., in Chinoweth v. Haskell's Lessee, 3 Pet. 92, 96, “If a grant be made which describes the land granted by course and distance only, or by natural objects not distinguishable from others of the same kind, course and distance, though not safe guides, are the only guides given us, and must be used." Costs are the creature of the statutes and are not recoverable unless by force of the statute, and the allowance of them in any case will depend upon the terms of the statute. Hull. Costs, 6; Metler v. E. & A. R. Co., 8 Vroom, 222; Apperson v. Mutual Benefit Co., 9 id. 388. At common law there was no such thing as costs of suit; and no person, whether plaintiff or defendant, was entitled to costs of suit in any action, real, personal, or mixed. It seems that in early times, before any statute on the subject was passed, the justices in Eyre were wont, at their iters, to give a plaintiff who had prevailed a reasonable sum beyond the damages, not as costs of suit, but as an allowance ex gratia for the expenses of the suit. Hull. Costs, 3; Gilbert C. P. 210, 214. The first statute on the subject was the statute of Marlbridge (52 Hen. III, c. 6), which gave to the defendant his damages and his costs of suit in a writ of right of ward, where the suit was malicious. 2 Inst. 109, 112. Then followed the statute of Gloucester (6 Edw. I, c. 1), which by construction gave to the plaintiff or demandant costs in all cases where he recovered damages. Gilbert C. P. 215; Hull. Costs, 4; 3 Steph. Com. 638. With the exception of the one instance provided for by the statute of Marlbridge, costs were not allowed to the defendant until the statute of 23 Hen. VIII, c. 15. By that statute costs were given to the defendant if successful in the suit in all cases where the plaintiff would have had costs if judgment had been in his favor. Hull. Costs, 124; 3 Steph. Com. 638. Lehigh Valley Railroad Co. v. McFarland. Opinion by Depue, J.

EXECUTION-DUTY AND LIABILITY OF SHERIFF.—(1) When a sheriff has taken an ample bond of indemnity from the plaintiff in execution to indemnify him against liability for selling under the execution goods not the property of the defendant in execution, he must look to the bond as security against the claim of third persons. In such a case the sheriff cannot in an action against him by the plaintiff in execution, to recover the amount realized from a sale under the ex. ecution, set up the title of a third person to the property sold, unless he has been sued by the adverse claimant, and a recovery has been had against him for *Appearing in 15 Vroom's (44 N. J. Law), Reports.

wrongfully selling the property. See Newland v. Baker, 21 Wend. 264. (2) A sheriff selling goods under an execution, and delivering them to purchasers without payment of the price, is answerable for the amount of the sales in an action of assumpsit for money had and received, and may be proceeded against by a rule to pay over the amount of the sales to the plaintiff in execution. In neither proceeding, whether by rule or action, will an officer, who has sold property levied on, be allowed to defeat the right of the plaintiff in execution to receive the proceeds of the sale, by showing that he wrongfully gave the purchasers a credit or permitted them to take the property without paying the purchase-money. Mildmay v. Smith, 2 Saund. 343, is the leading case. The sheriff, to whom an execution had been delivered, returned that by his bailiffs he had seized divers goods and chattels of the defendant in execution, to the value of £160, and that they were rescued out of their custody so that he could not levy the debt. The plaintiffs in execution proceeded against the sheriff by scire facias to recover execution against him for the said £160. The sheriff demurred. The court held the proceeding against the sheriff to have been well taken, "for the sheriff, by his return of the rescue, has put the plaintiffs to the end of their suit, for they cannot sue out a new execution, except for the surplus over and above the £160." It was added by the court that "true it is, that if the sheriff do not misbehave himself, he is not chargeable in debt or scire facias, unless it appears by his return that he has the money in his hands, but it is otherwise here, for he has suffered the goods to be rescued out of his hands, which is a great fault in him." That case was followed in Clark v. Withers, 2 Ld. Raym. 1072, and was approved in Stimson v. Farnham, L. R., 7 Q. B. 181. The reasoning upon which Mildmay v. Smith was decided applies to this case. In Denton v. Livingston, 9 Johns. 96, the court held that if the sheriff deliver to the purchaser goods seized and sold under execution without receiving the money, he is answerable for the amount of the sale in an action of assumpsit for money had and received. Adams v. Disstow. Opinion by Depue, J.

MUNICIPAL BONDS DEFENSE RIGHTS OF BONA FIDE HOLDER FOR VALUE.-It is no defense to municipal bonds in the hands of a bona fide holder for value, that the corporation treasurer, charged with the duty of negotiating them, absconded with them, and fraudulently put them in circulation for his own benefit. No rule of law is better settled than that which affirms the title of a bona fide holder for value of negotiable paper, notwithstanding the person by whom it was transferred to him acquired possession of it by felony or fraud. This without exception is the language of the books in every case where the instrument sued on is executed by one competent to contract, and is not declared to be absolutely void between the original parties by the rules of the common law or by positive statute. There is no virtue in the transfer of com. mercial paper to an innocent holder, which is potent to give life and validity to a note which is tainted by an infirmity which in the law renders it null and void. 1 Pars. on Bills and Notes, 275; 1 Daniel's Negotiable Instruments, § 837; Swift v. Tyson, 16 Pet. 16; Boyd v. Kennedy, 9 Vroom, 146. Bonds issued by municipal corporations, payable to bearer, are negotiable instruments, and in the hands of a bona fide holder are free from all equities between antecedent parties to the like extent as bills of exchange and promissory notes. "The title of the purchaser of such a security for a valuable consideration has all the qualities of the title of the holder of ordinary commercial paper, under the same circumstances." Boyd v. Kennedy, 9 Vroom, 146. The title of the bona fide holder of municipal

MAINE SUPREME JUDICIAL COURT

ABSTRACT.*

CORPORATION-TREASURER'S TITLE TO MONEYS, AND DUTIES ASSIGNEE FOR CREDITORS-ACTION TO ANNUL CONTRACT. (1) The treasurer of a corporation has no title to the money in his possession as such and owes no duties to the corporation as such, except that of safely keeping and disbursing in accordance with the directions of the proper officers. He is a mere depositary and his possession is that of the corporation for whom he acts. Insurance Co. v. Hill, 60 Me. 183; Sprague v. Steam Nav. Co., 52 id. 592; Pettingill v. Androscoggin R. Co., 51 id. 370; Angell on Corp. (8th ed.), § 312. (2) The assignee in insolvency represents the creditors as well as the insolvent. (3) A bill in equity may be maintained by an'assignee in insolvency against one holding money or property of the insolvent under a contract fraudulent and void as to creditors, when the bill seeks to have the contract annulled and the consideration restored. It is a rule subject to few exceptions, that courts of equity exercise a general jurisdiction in cases of fraud, sometimes concurrent with, and sometimes exclusive of other courts and with the exceptions of wills as above stated, courts of equity may be said to possess a general, and perhaps universal, concurrent jurisdiction with courts of law in cases of fraud, cognizable in the latter; and exclusive jurisdiction in cases of fraud beyond the reach of the courts of law." 1 Story Eq. Jur., § 184. (9th ed.) "Among other cases in which courts of equity and courts of law entertain concurrent jurisdiction, are those arising upon frauds; therefore where fraud is made the ground for the interference of this court, a demurrer will not hold." 1 Daniell Ch. Pr. 576. In Massachusetts the decisions are somewhat different, as there in cases of fraud as well as in others, it is provided by statute that the jurisdiction in equity shall not attach when there is "a plain, adequate and complete remedy at law;" the courts holding that the statute limits the rule, as to jurisdiction, applicable to courts having full equity powers. Pratt v. Pond, 5 Alleu, 59; Law v. Thorndike, 20 Pick. 317; Thayer v. Smith, 9 Met. 469; Suter v. Matthews, 115 Mass. 253. On the other hand the courts of the United States, notwithstanding a provision in the judiciary act in regard to their equity jurisdiction the same as that in Massachusetts, maintain the doctrine of the English courts as laid down by Story and Daniell, as well as other writers, holding that this clause in the judiciary act is merely affirmative of the general doctrine of courts of equity and in no sense intended to narrow the jurisdiction of such courts." Bean v. Smith, 2 Mason, 270; Robinson v. Campbell, 3 Wheat. 221; United States v. Howland, 4 id. 115; Smith v. McIves, 9 id. 532; Jones v. Bolles, 9 Wall. 369. Taylor v. Taylor. Opinion by Danforth, J. [Decided March 23, 1883.]

LEASE-TENANCY AT WILL-WHAT WILL CONSTITUTE CONTRACT OF.-Where one who has sent a verbal message to the owner of a landing-place inquiring whether and upon what terms he can have the use of the landing to pile wood upon for the market, has received a verbal response from the owner that he can pile his wood there for six cents per cord, and in pursuance of such permission has entered upon the landing and begun to pile his wood thereon without any objection interposed by the proprietor, such action constitutes an acceptance of the terms; and he becomes a tenant at will of such proprietor to the extent of the contract without a written or verbal acceptance of the terms communicated by him to the proprietor. Duley v. Kelley. Opinion by Barrows, J.

[Decided March 14, 1883.]

*To appear in 74 Maine Reports.

PAYMENT-WORTHLESS NOTE OF THIRD PERSON ACCEPTED, WHEN NOT.-The receipt, by the vendor of a chattel, of the worthless note of a third person, falsely and fraudulently represented by the vendee to be solvent, is no payment; and the vendor may maintain an action for the balance due according to the bargain. Vallier v. Ditson. Opinion by Barrows, J. [Decided March 14, 1883.]

MINNESOTA SUPREME COURT ABSTRACT.

SALE OF PERSONAL PROPERTY— DELIVERY- STATUTE OF FRAUDS.-Defendants purchased by sample, two car loads of grain to be delivered at a specified place. The grain was then in an elevator. Defendants requested thereafter plaintiff to send the grain to them, and plaintiff gave them an order upon the manager of the elevator, which they gave to the manager. Thereafter two car loads of grain were sent by a carrier to the place agreed upon for delivery. Defendants refused to receive it on the ground that the grain was inferior in quality to the sample from which they purchased. Held, that there was no delivery, and if the contract was otherwise invalid by the statute of frauds it could not be enforced against defendants. Delivery according to the terms of a written contract passes the title, but delivery under a contract invalid by the statute of frauds is at the vendor's risk. No act of the vendor alone is sufficient. Stone v. Browning, 68 N. Y. 601. While the grain remained in the elevator, in the name of the plaintiff, there had been neither delivery nor acceptance. The mere issuance of the delivery order did not constitute an actual delivery of the grain. It was merely a written authority to receive the possession. Tanner v. Scovell, 14 Mees. & W. 28; Benj. Sales, $$ 776, 806, 815. A constructive receipt, by the carrier at the elevator, upon plaintiff's order, though upon defendants' request to send it to the place for delivery, followed as it was by a seasonable inspection and rejection, because not equal to the sample, falls short of an acceptance. Caulkins v. Hellman, 47 N. Y. 452, 455; Knight v. Mann, 120 Mass. 220. To constitute an acceptance, within the meaning of the statute, there must have been some act on the part of the defendants showing their intention to accept and appropriate the grain unconditionally as owners. Simpson v. Krumdick, 28 Minn. 355. It is well settled that delivery to a carrier, not selected or designated by the buyer, does not constitute an acceptance within the statute. Caulkins v.¡Hellman,47 N. Y. 454. If the buyer do not accept in person, he must do so through authorized agent. Allard v. Greasert, 61 N. Y. 5, 6. Nor is it material that the buyer has agreed or directed that it should be sent by carrier. Norman v. Phillips, 14 Mees. & W. 277; Frostburgh Manfg. Co. v. New England Glass Co., 9 Cush. 120; Johnson v. Campbell, 105 Mass. 449. As they did not order or control the cars, nor remove or disturb the grain, it was sufficient to give notice of their refusal to accept it, leaving it in the custody of the carrier on the transfer track. Grimaldy v. Wells, 10 C. P. Cas. 391. The distinction between a mere delivery or receipt and acceptance is not to be lost sight of; and where the goods are sold by sample, that fact must be considered as an element in the case in determining whether the buyer has taken actual or constructive possession as owner, so as to indicate an acceptance thereby; and the burden of proof rests on the vendor to show the intent on the buyer's part to take possession as owner. Remick v. Sanaford, 120 Mass. 316. Taylor v. Mueller. Opinion by Vanderburgh, J. [Decided March 29, 1883.]

SHERIFF INDEMNITY TO-CONTRIBUTION BETWEEN INDEMNIFIERS.—(1) Those indemnifying a sheriff for