timony were admissible, the plaintiff proved that the sum of $8,000 was placed in the hands of the sureties to indemnify them against the liability they assumed, and if the testimony were admissible, the sureties proved that the money was not placed in their hands by McGuire, nor by any one in his behalf; and that, so far as the sureties knew, it was done without his knowledge.

The superior court gave judgment for the plaintiff. The defendants thereupon removed the case to the supreme court of errors for Fairfield county. That court affirmed the judgment, and the defendants thereupon brought this writ of error.

The fact that the sureties were indemnified was proper to be considered by the superior court, upon an application for time to produce the body of McGuire. Bank of Geneva v. Reynolds, 12 Abb. Pr. 81; Same v. Reynolds et al., 20 How. Pr. 18. But it could have no effect upon the rights of the parties in this action, and may therefore be laid out of view.

It is the settled law of this class of cases that the bail will be exonerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of the law. People v. Bartlet, 3 Hill, 571; Coke Lit. 206, a; Bac. Abr., tit. Conditions (2); Vin. Abr., tit. Condition (Gc), pl. 18, 19, and (I. c.), pl. 16; Hurls. on Bonds, 48. Where the principal dies before the day of performance, the case is within the first category. Where the court, before which the principal is bound to appear, is abolished without qualification, the case is within the second. If the principal is arrested in the State where the obligation is given, and sent out of the State by the governor, upon the requisition of the governor of another State, it is within the third. State v. Allen, 2 Humph. 258; State v. Devine, 5 Sneed, 626; State v. Adams, 3 Head, 260. In such cases the governor acts in his official character, and represents the sovereignty of the State in giving efficacy to the Constitution of the United States and the law of congress. If he refuse, there is no means of compulsion. Kentucky v. Dennison, 24 How. 66. But, if he act, and the fugitive is surrendered, the State whence he is removed can no longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect. The authorities last referred to proceed upon this principle.

It is equally well settled that if the impossibility be created by the obligor or a stranger, the rights of the obligee will be in nowise affected. 3 Hill, 570. And there is "a distinction between the act of the law proper and the act of the obligor, which exposes him to the control and action of the law." U. S. v. Van Fossen, 1 Dillon, 409. While the former exonerates, the latter gives no immunity. It is the willing act of the obligor which creates the obstacle, and the legal effect is the same as of any other act of his, which puts performance out of his power. This applies only where the accused has been convicted and sentenced. Before judgment-non constat-but that he may be innocent. Where a State court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted; and this rule applies alike, in both civil and criminal cases. Hagan v. Lucas, 10 Pet. 400; Taylor v. Caryl, 20 How. 584; Troutman's case, 4 Zabr. 660; Jenkins' case, opinion of Mr. Justice Grier, Amer. Law Reg. It is indeed a principle of universal juris

prudence that where jurisdiction has attached to person or thing, it is, unless there is some provision to the contrary, exclusive in effect, until it has wrought its function.

Where a demand is properly made by the governor of one State upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter State have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied. The duty of obedience then arises and not before. In the case of Troutman, cited supra, the accused was imprisoned in a civil case. It was held that he ought not to be delivered up until the imprisonment had legally come to an end. It was said that the constitution and law refer to fugitives at large, in relation to whom there is no conflict of jurisdiction.

The law which renders the performance impossible, and, therefore, excuses failure, must be a law operative in the State where the obligation was assumed, and obligatory in its effect upon her authorities. If, after the instrument is executed, the principal is imprisoned in another State for the violation of a criminal law of that State, it will not avail to protect him or his sureties. Such is now the settled rule. Withrow v. The Com., 1 Bush (Kentucky), 17; United States v. Van Fossen, 1 Dillon, 406; Devine v. The State, 5 Sneed, 625; United States v. French, 1 Gall. 1; Grant v. Fagan, 4 East, 190. When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath, and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. Noue is needed. It is likened to the re-arrest by the sheriff of an escaping prisoner. 3 Blackst. Com. 290; Nicholls v. Ingersoll, 7 Johns. 152; 3 Conn. Rep. 84, 421; 2 Yeates, 263; 8 Pick. 140; 1 Johns. Cas. 413; 1 Serg. & R. 311; 7 Mass. 169. In 6 Mod. 231, case 239, Anonymous, it is said, "the bail have their principal on a string, and may pull the string whenever they please and render him in their discharge." The rights of the bail in civil and criminal cases are the same. Harp v. Osgood, 2 Johns. 218. They may doubtless permit him to go beyond the limits of the State within which he is to answer, but it is unwise and imprudent to do so; and if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee. 5 Sneed, 624; 1 Dillon, 410; 2 Yeates, 265, cited supra. In the case in Sneed, the court, speaking of the principal, say, "the sureties had the control of his person; they were bound at their peril to keep him within their jurisdiction, and to have his person ready to surrender when demanded." * * * "In the case before us, the failure of the sureties to surrender their principal was, in the view of the law, the result of their own negligence or connivance, in suffering their principal to go beyond the jurisdiction of the court, and from under their control." The other authorities cited are to the same effect.

The plaintiffs in error were not entitled to be exonerated for several reasons:

When the recognizance was forfeited for the non

appearance of McGuire, the action of the governor of New York, pursuant to the requisition of the governor of Maine, had spent its force and had come to an end. McGuire was then held in custody under the law of Maine to answer to a criminal charge pending there against him. This, as already stated, cannot avail the plaintiffs in error. The shortness of the time that intervened between the arrest in New York and the imprisonment in Maine, on the one hand, and the failure and forfeiture in Connecticut on the other, are entirely immaterial. Whether the time were longer or shorter-one year or one day-the legal principle involved is the same, and the legal result must be the

same.

If McGuire had remained in Connecticut he would probably not have been delivered over to the authorities of Maine, and would not, therefore, have been disabled to fulfill the condition of his obligation. If the demand had been made upon the governor of Connecticut, he might properly have declined to comply until the criminal justice of his own State had been satisfied. This right, it is not to be doubted, he would have exercised. Had he failed to do so, the obligation of the recognizance would have been released. The plaintiffs in error are in fault for the departure from Connecticut, and they must take the consequences. But their fault reached further. Having permitted their principal to go to New York, it was their duty to be aware of his arrest when it occurred, and to interpose their claim to his custody. Alguire v. The Commonwealth, 3 B. Monr. 349, 351.

We have shown that when McGuire was arrested in New York the original imprisonment, under the information in Connecticut, was continued; that the bail had a right to seize him wherever they could find him; that the prosecution in Connecticut was still pending, and that the superior court having acquired jurisdiction, it could neither be arrested nor suspended in invitum by any other tribunal. Though beyond the jurisdiction of Connecticut, he was still, through his bail, in the hands of the law of that State, and held to answer there for the offense with which he was charged. Had the facts been made known to the executive of New York by the sureties at the proper time, it is to be presumed he would have ordered McGuire to be delivered to them, and not to the authorities of Maine. The result is due, not to the Constitution and law of the United States, but to their own supineness and neglect. Under the circumstances they can have no standing in court to maintain this objection.

sibility of performance thus created; and what will not avail him cannot avail his sureties. His contract is identical with theirs. They undertook for him what he undertook for himself.

The act of the governor of New York was the act of a stranger.

It is true that the constitutional provision and the law of congress, under which the arrest and delivery were made, are obligatory upon every State, and a part of the law of every State. But the duty enjoined is several and not joint, and every governor acts separately and independently for himself. There can be no joint demand and no joint neglect or refusal. In the event of refusal, the State making the demand must submit. There is no alternative. In the case of McGuire, no impediment appeared to the governor of New York, and he properly yielded obedience. The governor of Connecticut, if applied to, might have rightfully postponed compliance. If advised in season he might have intervened, and by a requisition have asserted the claim of Connecticut. It would then have been for the governor of New York to decide between the conflicting demands. Whatever the decision, if the proceedings were regular, it would have been conclusive. There could have been no review and no inquiry going behind it. The matter of Clarke, 9 Wend. 221; Ex parte Jenkins & Crosson, 2 Am. Law Reg. 144. We cannot hold that Connecticut was in any sense a party, or consenting to what was done in New York. It follows that if McGuire had been held in custody in New York, at the time fixed for his appearance in Connecticut, it would not in any wise have affected the obligation of the recognizance.

A different doctrine would be fraught with mischief. It could hardly fail, by fraud and connivance, to lead frequently to abuses, involving the escape of offenders of a high grade, with pecuniary immunity to themselves and their sureties. Every violation of the criminal laws of a State is within the meaning of the constitution, and may be made the foundation of a requisition. Kentucky v. Dennison, 24 How. 66; Certain Fugitives, 24 Law Magazine, 226. Hence the facility of escape if this instrumentality could be used to effect that object. The rule we have announced guards against such results.

The supposed analogy between a surrender under a treaty providing for extradition and the surrender here in question has been earnestly pressed upon our attention. There, the act is done by the authorities of the nation, in behalf of the nation, pursuant to a national obligation. That obligation rests alike upon the people of all the States. A national exigency might require prompt affirmative action. In making the order of surrender, all the States, through their constituted agent, the general government, are represented and concur, and it may well be said to be the act of each and all of them. Not so here.

The judgment of the supreme court of errors of Connecticut is affirmed.

Judge Davis and Judge Hunt did not sit in this case.

Hon. Chester Isham Reed, recently attorney-general of Massachusetts, and judge of the superior court of that State, died at White Sulphur Springs, Virginia, on the 2d inst. Mr. Reed was about fifty years old. The death is also announced of Judge Q. S. Dickey, of Ross county, Ohio, who recently retired from the common

LORD KENYON.

The chief interest connected with the professional career of Lord Kenyon arises from the example which it affords of patient and persevering industry carrying a man of fair ability and sound judgment to a very high point of success. At the bar he worked his way entirely by his knowledge of law. He left school at an early age, and commenced his legal education in the office of an attorney, having been articled to Mr. Tomlinson of Nantwich. There he laid the foundation of the accurate and extensive legal knowledge by which he was so distinguished; and is said, before he left the office, to have become an expert conveyancer. In consequence of the death of an elder brother, during the time he was with Mr. Tomlinson, Lloyd Kenyon became heir to the family property, and it was finally resolved that he should go to the bar. He was accordingly entered at the Middle Temple, and, on the expiration of his articles, he removed to London, where he pursued his legal studies with the same energy and assiduity which had characterized him at Nantwich. After being called to the bar in 1756, he began to attend the court of king's bench, and to take notes of cases argued there before Lord Mansfield. His practice at first was small, and confined chiefly to conveyancing business. Having formed an intimacy with Dunning, he employed himself in "devilling" for the latter. Afterward he did the same for Thurlow. those days the distinction between the equity and common-law bars was much less marked than it afterward became; and Kenyon, while now chiefly attending the court of chancery, went also the Oxford and North Wales circuits. His practice and position at the bar had, in 1780, become so considerable that, on the death of Mr. Justice Blackstone in that year, he was offered the vacant judgeship in the court of common pleas, by Thurlow, who was now lord chancellor. This, however, he declined, and was shortly afterward appointed to the office of chief justice of Chester. Having entered parliament in the same year as member for Hindon, in Wiltshire, he was made attorneygeneral in March, 1782, and continued in office till 1783, when the coalition ministry came in. He was re-appointed to the office in the following December, under Mr. Pitt's ministry, and in March, 1784, was made master of the rolls, and in the following July received the honor of a baronetcy. On the resignation of Lord Mansfield in 1788, Sir Lloyd Kenyon was made chief justice of England, and was created a peer.

In

We mention these facts merely for the purpose of showing the sure and steady progress of Kenyon. He worked hard for every step he gained, and he carried every thing before him by his persevering industry. The period in which he flourished was singularly rich in great lawyers, and Kenyon certainly held a conspicuous place among them. In one respect it is obvious to us of the present day, that his influence was unfavorable. Although he had practiced extensively in the court of chancery, and had held the office of master of the rolls for four years, he entirely departed, as a common-law judge, from the course which had been adopted by his great predecessor in the court of king's bench, of endeavoring to fuse law and equity. Lord Kenyon adhered to the hard and fast lines of the common law. He had been an able equity judge, but he had left his equity behind him at the rolls, and administered the law, in the court of king's bench, with as much rigor as if he had been all his life a special

pleader. The truth is that, although an admirable lawyer, he wanted comprehensiveness. He could administer, as a judge, either law or equity with great ability; but he was entirely deficient in the power of seeing them, like Lord Mansfield, to be one great system accidentally divided, to the detriment of the public and against the interests of substantial justice. His judgments, however valuable they may be, deal very little with general principles, and it is perfectly obvious, from the mode in which he proceeds to arrive at his conclusions, that it would have been almost impossible for him to follow the course which Lord Mansfield had adopted. At all events he made no such attempt, and the consequence was that, after his day, law and equity were more and more separated from each other, until at last it became obvious to all men that matters had gone too far, and that something must be done to remedy what had become a great evil in the administration of justice in this country. How much more easy and safe would the work of law reformers at the present day have been, if the lines laid down by Lord Mansfield had been followed by his successor, and a gradual fusion effected without any risk of the effervescences, to say nothing of the explosions, which may attend the sudden mixture of elements so long kept separate. - Law Magazine and Review.

COMMISSION OF APPEALS ABSTRACT.

ACTION-FARM-CROSSINGS.

1. Action to compel defendant to build a suitable farmcrossing for plaintiff, who owned land on both sides of defendant's road, and also for damages. The court that tried the cause found that the crossing actually built by defendant was inconvenient for plaintiff and not of easy access, and that the proper place for the crossing was where plaintiff desired it. Held, that this established a cause of action. Wademan v. Albany & Sus. R. R. Co. Opinion by Johnson, C.

2. The court gave plaintiff a pecuniary compensation, to an amount less than the cost of erecting a new crossing in the proper place, instead of directing a specific performance by defendant of its obligation. Held, that this was correct; that nothing in the statute prevents the giving of damages for the breach of duty on the part of defendant, and that defendant could not complain, as the judgment was more favorable than it was otherwise entitled to. Ib.

3. The case of Wheeler v. R. & S. R. R. Co., 12 Barb. 227, overruled. Ib. CONTRACT PARTNERSHIP FIDUCIARY CAPACITY." Plaintiff's complaint alleged, and the proof showed in substance, that defendants were attorneys at law and partners in the business of purchasing prize claims, and received from plaintiff certain sums of money under agreement that they should invest the same in purchasing prize claims and should collect the same for plaintiff, and that the net profits accruing should be divided equally between the parties. Defendants only invested a portion of the sum as required, and refused to render any account. Plaintiff asked to have the agreement dissolved, and for an accounting, and that defendants be held liable as for moneys received in a fiduciary capacity. Held, that the arrangement was one of copartnership. That plaintiff was entitled to recover the amount advanced, with one-half the net profits on the claims purchased, and also interest. But that the character and nature of defendants' employment was not

an issuable fact, and a finding of law of the referee, that defendants acted in a “fiduciary capacity" within the meaning of subdivision 2 of section 179 of the Code, was not warranted by the issues, and that a direction in the judgment for its enforcement by execution against the person of defendant was error. Prouty v. Swift, impleaded, etc. Opinion by Lott, Ch. C.

LANDLORD AND TENANT — HOLDING OVER.

Defendant entered into possession of certain premises under a lease which expired April 18, 1865. He held over without the permission of plaintiff, his landlord, until June 18, when this action was commenced to recover possession. Plaintiff had served no notice to quit. Held, that no notice was necessary, and that plaintiff was entitled to recover. Defendant had not become tenant by sufferance. To entitle him to notice the holding over must be continued for such a length of time, and under such circumstances, as to authorize the implication of assent upon the part of the landlord. Smith v. Littlefield. Opinion by Earl, C.

PARTIES.

Action to recover for necessary supplies furnished to and for work, labor and materials, in repairing the steam ferry boat “International." The boat was owned by the Buffalo & L. H. R. Co., and was used in connection with, and in the business of, that road, plying between Fort Erie, Canada and Buffalo. One S. had charge of the boat, and acted as her master, under an agreement by which he was to furnish crew, stores and every thing needful for the efficient workings of the ferry, and to keep her in repair, for the sum of $130 per month, the vessel to be under the control, and subject to the direction of, the company. Under an agreement between said company and defendant, the latter assumed the control and undertook the management of the road of the former, and appurtenances, for the term of twenty-one years. Defendant was, by the agreement, to keep the road in good and efficient repair, and deliver it up at the expiration of the term, the receipts to be divided between the companies in specified proportion. No new agreement was made with S., but he continued running the boat as before, the same being controlled by defendant, and the supplies, etc., being furnished at his instance. After defendant commenced operating the road

Held, that defendant was, pro hac vice, the owner of the boat, and, as such, was liable; that the presumption, from the continuance of S. in the performance of the same duties, was that it was with defendant's consent; and that plaintiffs, without notice, were not affected by any private agreement by which S. assumed such liability.

Also held, that the Buffalo & L. H. R. Co. was not a necessary party defendant. Scott v. Grand Trunk R. Co.; Muson et al. v. Same. Opinion by Lott, Ch. C.

PROMISSORY NOTE.

Defendant made a note for the accommodation of one Church, and delivered it to him without any restrictions as to the manner of its use. Church was indebted to plaintiff in a larger sum than the amount of the note, and transferred it to him on account thereof, and plaintiff credited the amount of the note on Church's indebtedness. Before crediting it plaintiff sent to defendant to inquire about it, and defendant stated it was all right. Held, that the existence of the antecedent debt from Church to plaintiff was a sufficient consideration for the transfer of the note, and plaintiff can maintain an action against defendant

for its recovery. Schepp v. Carpenter. Opinion by Johnson, C.

TRESPASS-EXEMPLARY DAMAGES.

Action of trespass brought by plaintiff, who, having found defendant's cattle trespassing upon his premises, took them into possession. A few hours after, defendant, against plaintiff's remonstrances, threw down the latter's fence, and drove the cattle away. For this trespass the action was brought. It does not appear that the cattle did more than nominal damage.

Held, that the trespass was willful, as the law authorized the detention of the cattle for twenty-four hours. While plaintiff so held them they were in the custody of the law. The jury, therefore, were authorized to give exemplary damages. (Hunt, C., dissenting.) Allaback v. Utt. Opinion by Earl, C.

DIGEST OF ENGLISH LAW REPORTS FOR JULY. AUCTIONEER.

Liability: withdrawal of goods advertised for sale.The defendant, an auctioneer, advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St. Edmunds on a certain day and two following days. The plaintiff, a commission broker in London, having a commission to buy the office furniture, went down to the sale; on the third day, on which the furniture was advertised for sale, all the lots of furniture were withdrawn. Upon which the plaintiff brought an action against the defendant to recover for his loss of time and expenses. Held, that plaintiff could not maintain the action; for that the advertising the sale was a mere declaration and did not amount to a contract with any one who might act upon it, nor to a warranty that all the articles advertised would be put up for sale. Harris v. Nickerson, L. R., 8 Q. B. 286.

BILL OF EXCHANGE.

Alteration in date: plea denying acceptance. - An alteration in the date of a bill of exchange, payable at a specified period after date, is a material alteration; and where the bill is declared upon with its altered date, the defense is available to the acceptor under a traverse of the acceptance. Parry v. Nicholson, 13 Mees. & Wels., discussed. Hirschman v. Budd, L. R., 8 Ex. 171.

CONCEALMENT.

Marine insurance: election to avoid contract: delivering out policy. The plaintiff's insurance broker effected an insurance with the defendants on the chartered freight of the plaintiff's ship Cambria, without disclosing to the defendants certain information in his possession which it was material that they should know (October 10). In so doing he acted in good faith, suppossing from inquiries that he had made that the information was incorrect. After initialing the ship, but before executing the policy, the defendants (October 13) became possessed of the information which the broker had not disclosed; and they afterward executed and delivered out the policy without any protest or any notice that they would treat it as void (October 14 or 15). Upon receiving news of the loss of the vessel, they gave notice to the plaintiff that they did not consider the policy binding on them (October 20). On the trial of the action upon the policy, the learned judge directed the jury (in substance) that the defendants were bound to make their election within a reasonable time after they became aware of the concealment, and left it to

them, without expressing any opinion, whether the defendants had elected to go on with the policy. The jury having found that the defendants did not so elect, and a rule for a new trial on the ground of misdirection having been obtained and afterward made absolute in the court below, held (reversing the judgment of the court below), that this direction was right; and that there being no election in fact, and no evidence that the plaintiff had been prejudiced by the defendants not electing earlier to disaffirm the policy, the defendants were not estopped from denying its validity, nor was it material to consider whether their conduct in delivering out the policy without a protest had been such as to entitle the plaintiff to consider it as an election. Morrison v. Universal Marine Insurance Co., L. R., 8 Ex. (Ex. Ch.) 197.

CONDITIONS OF SALE.

Vendor and purchaser: waiver of objections: forfeiture of deposit.-The defendant (with A, since deceased), sold a farm to the plaintiff under conditions of sale; by the third condition it was stipulated that the venders should deliver an abstract of title within seven days, and "all objections and requisitions not stated in writing and delivered to the venders' solicitor within fourteen days from the delivery of the abstract shall be considered as waived, and in this respect time shall be of the essence of the contract;" and by the fourteenth condition, "if the purchaser shall fail to comply with these conditions, his or her deposit shall be thereupon actually forfeited to the venders," who were to be at liberty to resell, and recover any deficiency and the cost of resale from the purhaser. The plaintiff paid a deposit of £300. An abstract of title was delivered within seven days; and from the abstract it appeared that the venders sold as trustees under a will which devised the estate to them on trust to pay the income to F S, the testator's son-in-law, for life, or to permit him to receive the same, and, after his decease, on trust to sell the estate and hold the produce “upon the trusts for the children of the said F S, as therein mentioned;" it was further stated in the abstract that F S would join in conveying the property. It was objected by the purchaser, but not till after the expiration of fourteen days from the delivery of the abstract, that FS being still alive, the venders' power of sale had not arisen. It subsequently appeared that the trusts of the will as to the produce of the sale were for the benefit of such of the children of FS by H S, the testator's daughter, who should be living at testator's death, to be paid to them at twenty-one, or, if daughters, at twenty-one or on marriage, with limitations over for the benefit of survivors on the death of any child under twenty-one or before marriage. There were eight children of F S and H S living at the testator's death, of whom some had since married and settled their shares. In an action brought by the purchaser to recover his deposit, held, that he was entitled to succeed (by Kelly, C. B.) on the ground that no complete abstract had been delivered, and that therefore the time limited for taking objections had never commenced running; (by Martin and Pollock, BB.) on the ground that the fourteenth condition did not apply to the case of the venders being unable to give a good title, but only to objections and requisitions which might have been properly enforced against a vender who had a valid title. Want v. Stullibrass, L. R., 8 Ex. 175.

FRIENDLY SOCIETY.

"Sickness:" insanity. By the rules of a friendly society, after payment of a year's subscription, "any

member shall receive 88 per week during any sickness or accident that may befall him, unless by rioting or drunkenness." Held, that insanity was "sickness" within the meaning of the society's rules. Burton v. Eyden, L. R., 8 Q. B. 295.

INSURANCE.

1. It is a principle of insurance law that no abandonment is necessary where there is nothing which, on abandonment, can pass to or be of value to the underwriters. Where, therefore, there was a policy on ship, and also on charter-party freight (that is, on freight to be earned by the carriage homeward of a cargo chartered to be put on board at a distant port), and the ship was so injured on the outward voyage that the ship-owner abandoned to the underwriter on ship, there was nothing to pass to the underwriter on charter-party freight, and, consequently, there was no necessity for abandonment to him. Rankin v. Potler, L. R., 6 H. of L. 83.

2. The damage to the ship from perils of the sea during the voyage, covered by the policy on ship, being such as to justify abandonment to the underwriter on ship before the cargo was put on board, the insured freight could not be earned, and there would therefore be a total loss on the policy on freight. Ib.

3. A ship sailed on its outward voyage to New Zealand. More than a month afterward the owners chartered it to M to bring home a cargo from Calcutta. By this charter-party, after discharging at New Zealand, it was to sail to Calcutta, and being there "tight, staunch, and strong, and everyway fitted for the voyage," the charterer bound himself to put on board a specified cargo for England at a stipulated freight. The owners then effected a policy in the usual form, against perils of the sea, etc., upon the freight to be earned on this homeward vovage. The ship was seriously injured in the outward voyage; it was repaired as well as the master, with insufficient funds, and at a place not capable of making full examination and effecting complete repairs, could get it repaired; and with the ship thus partially repaired he sailed from the place where the ship then was, and arrived at Calcutta, where the fullest examination and the completest repairs could be had. He immediately tendered the ship to the agents of the charterers for the homeward cargo. They, on the ground that the charterer had become bankrupt, refused to load a cargo. The master then had the ship fully examined, and it was found that the injuries on the outward voyage had been such that the complete repair of the ship, to render it fit for the voyage home, would exceed the value of the ship when repaired, and the amount of freight to be earned. The owners, on receiving this intelligence, abandoned.

Held, that this was a loss of freight occasioned by the perils of the sea;

Held, also, that no notice of abandonment to the underwriters on freight was necessary;

Held, also, that, if a notice of abandonment to the underwriters on freight had been necessary, the notice here would not, under the circumstances, have been too late. Ib.

LARCENY.

Taking invito domino: post-office savings bank: 24 & 25 Vict. ch. 14. The prisoner was a depositor in a postoffice savings bank, in which 11s stood to his credit. He gave notice in the ordinary form to withdraw 10s, stating in his notice the number of his depositor's book and the amount to be withdrawn. A warrant for 10s