and where the swell would not have injured such ice. Held, that defendant boat was liable for the damage so caused. The court observed: "Was, then, the respondent's right to navigate the Detroit river subject to complainant's right of property in this case? Ordinarily it may be said that the entire width of the highway may be used, yet the owner of the land over which it passes may, within the limits thereof, plant trees, set posts, and do such other acts as will add to his convenience or assist in beautifying his premises. He is encouraged in doing this by public sentiment, in the remission of taxes by the public authorities for the planting of trees, and in the protection which the law gives him by the punishment of those who interfere with or destroy what he has done. Public convenience may, in time, in particular locations, require the removal of some of these things, and whenever the necessity arises and the public authorities request their removal, then the private must give way to the public or paramount right. But while permitted to remain, no one travelling the highway could wilfully injure or destroy them, and should any one do so he would justly be held responsible, notwithstanding his plea of a claim of right to travel over any part of the highway. If the law were otherwise, the streets in our cities and villages and our public highways would soon be stripped of their shade and ornament. Clark v. Dasso, 34 Mich. 86. So, in cities, the right to use the public streets whereon to deposit material for building purposes is frequently granted and enjoyed. Has the traveller the right unnecessarily to willfully or negligently drive over and break, mar or destroy such materials, upon the plea of a right to use the highway? The law in this country requires the owners of vehicles, when meeting, each to bear to the right, yet it has never been supposed that a neglect so to do on the part of one would justify the other in willfully or carelessly injuring the person thus in the wrong. A teamster may temporarily incumber a part of the highway while loading or unloading, and while thus exercising his right another cannot insist upon occupying the same place, or carelessly drive into and injure his team or vehicle. Cary v. Daniels, 8 Metc. 478. The right of fishing in our public navigable waters is one largely and profitably enjoyed, and in order to carry on the business successfully it frequently becomes necessary to set nets extending into the river channels and the deep navigable waters of our lakes. This may, and to a limited extent does, cause vessels to change their course, in order that the property of the fishermen may not be injured or destroyed. The master of the vessel would not be justified if he should unnecessarily or wantonly run his vessel upon the nets and destroy them. Post v. Mum, 1 South. (N. J.) 61. So, in the rafting, running and towing of logs in our navigable waters, vessels are sometimes necessarily delayed, or caused to change their course, yet in cases where the owners of the logs were exercising due care and reasonable diligence, the vessel must suffer the temporary delay or inconvenience caused. So, in estab

lishing dock lines and boom limits on our river and lakes, the channel is frequently encroached upon, in order to reach deep water, that the right may be useful and valuable; and although the channel may thereby be narrowed, yet if ample room for the purposes of navigation remains, the owners of vessels cannot complain. Of course the right of navigation is paramount, and no unreasonable or unnecessary obstruction can be permitted to interfere therewith; but while this is so, yet the riparian proprietor and the public do not thereby lose all right to use the stream for any other and legitimate purpose which will not unreasonably interfere with the right of navigation. The right of navigation, while paramount, is not exclusive, and cannot be exercised to the unnecessary or wanton destruction of private rights or property, where both can be freely and fairly enjoyed. But in this case the vessel did not run into the boom, and therefore it may be said the case is not parallel with those we have been considering. The principle, however, is the same, which recognizes the superior right of the vessel, but punishes any abuse of that right. It is also clearly apparent that vessels have not an exclusive right to use the entire channel, which may be narrowed or used for purposes, some of which are but remotely if at all connected with the subject of navigation. It is well known, as this case proves, that there is a class of vessels navigating our lakes and rivers which cause, when running, very great commotion or swells in the water. It is also well known that on many of the rivers a class of lighters and barges are used for the lighterage or necessary transportation of the agricultural, manufacturing and mining products of the country. This class of vessels are often loaded to the water's edge, and smooth waters are thus considered perfectly safe, and yet they could not venture out where the wind or waves could reach them. Would a steamer approaching such a tow, where it was clearly apparent the swell she created would endanger the lighter or cargo, be justified in recklessly pursuing her course at full speed, in case damage resulted? Upon some of our rivers and water highways artificial banks have been formed for the benefit of commerce, and to prevent a spread of the waters over the adjoining country. The swells caused by steamers of a certain class would, by washing such banks, and otherwise, weaken and injure them, and thus create danger of public and private damage. Such dangers are frequently guarded against by legislation, or rules of the highway, but it may be questionable whether such regulations are not merely declaratory of the common-law maxim that a man must enjoy his own property in such a manner as not to injure that of another person. So the right to boom logs is necessary to their profitable manufacture. The owners must therefore be protected in this right, else it would be of but little value. Vessels would have no right to destroy them, or wantonly run so close to them as to cause a loss of the property therein. A vessel has no right to wantonly run so close to the shore, to a boom or to a dock, as to cause damage

which could easily be avoided by standing further off."

In Higler v. People, Michigan Supreme Court, Oct. 6, 1880, 6 N. W. Rep. 664, it was held that one falsely representing himself to be a "storekeeper" is guilty of a false pretense within the statute in regard to obtaining money or goods under false pretenses. The court, Cooley, J., said: "Pecuniary responsibility is no more a necessary attendant upon a commission in the army than upon the keeping of a store, but the false assertion that one holds such a commission has been held a false pretense. Reg. v. Hamilton, 1 Cox's C. C. 244; S. C., on appeal, 9 Q. B. 271; Thomas v. People, 34 N. Y. 351. So the pretense that one is buying horses as a gentleman's servant may be a criminal false pretense, though the fact of service by itself would not be likely to inspire confidence, except in connection with the further fact, expressed or understood, that the master was to pay the purchase-price. Reg. v. Dale, 7 C. & P. 352. Now, it is unquestionable that the fact that one is a storekeeper is one which would be likely to give a degree of confidence and credit. There is an implication, if not of solvency, at least of the possession of considerable money, in the very idea that one is keeping a store. With no knowledge of his responsibility, one would sooner trust him for small sums than if he had no business, or if his business were unknown. A storekeeper is not expected to refuse payment of small debts whether payment can or cannot be enforced. It is inconsistent with business prosperity that he should do so, and prima facie he will have in his hands the means whereby such debts may be paid; and if such a person, when away from home, had occasion to borrow a few dollars for expenses, a lender would trust, not to his responsibility, but to his honor, for repayment, and would probably ask no questions further after learning what was his business. But the question of the inability of pretense is one rather of fact than of law. If it was

false, and had a tendency to deceive, and did actually deceive and accomplish the intended fraud, the case is within the statute. Reg. v. Hamilton, supra.' Campbell, J., dissenting, said: "The cases which have held a false statement of office or position sufficient are mainly, and so far as original authority goes, I think, entirely, cases where the character assumed involves such elements as to make it safe to trust the party from that alone. They are such instances as officers of the army and navy, government officers, and English university commoners. An officer of the army or navy is liable to punishment for any sort of dishonest conduct, and officers appointed to honorable positions are presumably reputable. Moreover, all of these have a pecuniary | income, which is known to every one, and the assumption of this character is a representation of their means and station. The conditions of residence in an English university make it entirely safe for a local tradesman to trust a commoner to any reasonable extent." The false pretense in Thomas v. People, supra, was that the defendant was a chaplain in the army.

LEGAL DEFINITIONS OF COMMON WORDS. IV.

о resort" means to go once or more.

State v.

Ah Sam, Neyada Supreme Court, Feb., 1880. This was under a statute forbidding any one "to resort" to any place to smoke opium. The court said: "The appellant also contends that the district judge erred in instructing the jury to the effect that going once to a place kept for opium smoking for the purpose of smoking is an infraction of the law. What the statute forbids all persons to do is to 'resort' to such places, and it is argued that resort means, not to go merely once, but to go and go again; in other words, to make a practice of going. The etymology of the word 'resort' lends some support to this argument, but the definitions given in the lexicons show that whatever may have been its original meaning it no longer means any thing more in the connection in which it is employed in the statute than to go once.”

"Eggs" are not "meat" nor "poultry," within a statute prohibiting the sale of such articles when unsound. See 21 Alb. L. J. 360.

Boring through a floor with an auger constitutes burglary, say the Alabama Supreme Court, in Walker v. State. This was where the prisoner bored a hole through the floor of a corn crib, stopped it up with a cob, and afterward, on a separate occasion, drew the shelled corn through the hole into a sack underneath the crib.

"Brass knucks" is used in the statute as the name of a weapon, without reference to the metal of which it is made. Therefore a conviction of unlawfully carrying "brass knucks" will not be set aside because it was proved that the weapon was lead or pewter. Patterson v. State, 3 Lea, 575.

"Terms cash" is not equivalent to "received payment." "Terms cash," on an unreceipted bill of goods sent by a wholesale to a retail dealer, cannot be held as matter of law to imply that the goods were paid for before they were shipped. Wellaner v. Fellows, 48 Wis. 105.

A receipt for money as part of the purchase-price of a farm is an 66 'acquittance," within the statute of forgery. State v. Shelters, 51 Vt. 105; S. C., 31 Am. Rep. 679. The court said: "It is not questioned but that a receipt in full is an acquittance. Why, therefore, is not a receipt for a part of a demand or obligation an acquittance pro tanto? We are aware that lexicographers do not fully agree as to this; but in legal proceedings a receipt is regarded as an acquittance."

A farm overseer is not a "laborer," within the lien law. Whitaker v. Smith, 81 N. C. 340; S. C., 30 Am. Rep. 503.

A stipulation by the vendee of a newspaper to "pay all of the outstanding liabilities," will not cover a subsequent recovery in a suit for libel pending against the vendor at the time of the sale. Perret v. King, 30 La. Ann. 1368; S. C., 31 Am. Rep.

240.

In a statute providing for the punishment of the

seduction of any unmarried woman of "previously chaste character," that phrase refers to moral qualities, and not to reputation. State v. Prizer, 49 Iowa, 531; S. C., 31 Am. Rep. 155.

Notes, bills, etc., representing money loaned on interest by a corporation, are "property" liable to taxation. City of New Orleans v. Mechanics and Traders' Pas. Co., 30 La. Ann. 876; S. C., 31 Am. Rep. 232; Williamson v. Harris, 57 Ala. 40, S. C., 29 Am. Rep. 707.

A railroad depot is a "warehouse," within the statute of burglary. State v. Bishop, 51 Vt. 287; S. C., 31 Am. Rep. 287.

"The

We have seen that a Sunday-school is not "Divine worship;" but a building for the sessions of a Sunday-school and religious lectures is for a "religious purpose," although occasionally used for fairs and other benevolent purposes. Craig v. First Presbyterian Church of Pittsburgh, 88 Penn. St. 42; S. C., 32 Am. Rep. 417. The court said: Sunday-school rooms and the lecture-room of a modern church are as essentially used for religious purposes as the body of the church building itself. The Sabbath-schools are an important auxiliary of every Christian church, and indispensable to its life and growth. That the services in such schools are in the main of a religious character is too well known to be seriously disputed. So of the lectureroom. It is used for the mid-week evening lectures and other services, when the attendance is not large. The expense of lighting and heating the main church building is thus avoided. But the services upon such occasions are as truly religious in their character as the sermon upon the Sabbath. Gass' Appeal, 23 P. F. Smith, 46; S. C., 13 Am. Rep. 726, has no application to the point in controversy. There, a German Reformed congregation and a Lutheran congregation built a church together, in which, by their articles of association, 'Divine service' only was to be held; for many years there was no meeting in it except for public worship. It was held, under the facts of that case, that

Sabbath-schools' were not included in the term 'Divine service,' and upon a bill filed to prevent the continued and unauthorized use of the audience room for Sunday-schools, this court, overruling the court below, granted an injunction. The distinction taken in that case between 'Divine service' and 'Sabbath-school services' was manifestly proper. Says Agnew, J.: 'That prayer and praise, and indeed, oral as well as written instruction in religious matters by laymen, are used in Sundayschool service is true, and in a general sense it may be said to be Divine service. But in its more restricted sense it is used to signify acts of religious worship.' In view of the contract between the two churches, the term was confined to its restricted sense. In the case in hand the act of assembly uses the words 'religious purposes,' a term of much wider meaning, and clearly embracing Sabbath-schools and the ordinary lecture services of a church. Nor do we think it detracts from the character of the occupancy of the building, that it is proposed to use the lecture-room occasionally for

* ** *

social gatherings incident to the church, for societies for benevolent objects, and for fairs held by the ladies to raise funds for missionary work; nor that it is proposed to sometimes furnish a 'plain tea' to those members who attend evening service from a distance. The body needs food as well as the soul. If the church requires the building for its Sabbathschools and for a lecture-room, and such purposes are religious in their nature, as we have endeavored to show, of what possible matter can it be should the church utilize said building by applying it to other collateral objects, not in themselves technically religious, yet germane to the general purpose? And if by such means an income is derived therefrom, there is no violation of either law or morals." A citizen and resident of one State, charged in a requisition with the constructive commission of crime in another State, from which in fact he has never fled, is not "a fugitive from justice." Jones v. Leonard, 50 Iowa, 106; 32 Am. Rep. 116.

A supervising architect is a person performing "labor," although not a "laborer," within the meaning of the mechanics' lien law. Stryker v. Cassidy, 76 N. Y. 50; S. C., 32 Am. Rep. 262. See 21 Alb. L. J. 405.

A widow, keeping a boarding-house, with a female friend residing with her, and female servants, besides the boarders, is the "head of a family." Race v. Oldridge, 90 Ill. 250; S. C., 32 Am. Rep. 27. But a single man, who keeps house and has no other person living with him than servants and employees, is not the "head of a family" or a "householder." Calhoun v. Williams, 32 Gratt. 18. And an unmarried man, who does not keep house, but supports his mother and his unmarried sister, who board with his married sister in another town, is not the "head of a family." Jones v. Gray, 3 Woods, 494. One who has received an injury on the head in childhood, resulting in hardening of the brain, and a weakening of the mental powers in mature age, continuing and increasing till death, and necessitating confinement in an asylum for quiet and treatment, is not afflicted with "insanity," within the meaning of an application for life insurance, it appearing that he knew what was going on, and it not appearing that he was subject to delusions or acted irrationally. Newton v. Mutual Benefit Life Ins. Co., 76 N. Y. 426; S. C., 32 Am. Rep. 335.

A bazaar, owned by a city, and exclusively used for the sale of merchandise other than comestibles, is not a "market," exempt from sale under execution. New Orleans v. Morris, 3 Woods, 103.

Where a policy of insurance provides that no action shall be brought thereon until an award is made fixing the amount of the claim, and no recovery shall be had unless the action shall be commenced within twelve months next after the loss shall "occur," the action must be brought within twelve months after the destruction of the property by fire. It does not mean within twelve months after the award. Johnson v. Humboldt Ins. Co., 91 Ill. 92. Exactly the contrary was held in Hay v. Star Fire Ins. Co., 77 N. Y. 235. In that case the court held to be equivalent to "accrue." See Mayor v. Hamilton Fire Ins. Co., 39 N. Y. 46.

66

occur

upon the ground that in Tilden v. Blair, although the acceptance was made payable in New York by the acceptors who were residents of New York, yet after baving accepted in New York, they returned the acceptance to the drawer in Illinois for the purpose and with the intention that it should be negotiated by him in that State. And this court says in its opinion in Dickinson v. Edwards, that that was the controlling fact in Tilden v. Blair, and that the ruling consideration was the intention of the acceptors that the draft should be used in Illinois, while in Jewell v. Wright and in the case then before the court, there was nothing to show an intent on the part of the maker of the note to give authority to deal with it otherwise than as the law of this State would allow.

The case of Bank of Georgia v. Lewin, 45 Barb. 340, and other cases are distinguished from Jewell v. Wright on the same ground, and it may safely be said that the case of Dickinson v. Edwards rests upon the ground that there was no evidence of knowledge or intention on the part of the maker of the note that it was to be used out of this State, and that in the absence of such proof it must be governed by the law of the place of payment.

In the present case, the fact which was wanting in Jewell v. Wright and Dickinson v. Edwards clearly appears, and the case is brought within the principle of Tilden v. Blair, and the cases which have followed it. The note now in suit was dated and made payable in New York, but it was made for the express purpose of being used in renewal of another note for the same amount then held by the plaintiff in bank in Pennsylvania. The note in suit was actually written in Pennsylvania, in the form in use in that State, by the cashier of the plaintiff at the defendant's request, and forwarded by the cashier to the defendant for signature, and was signed by the defendant in New York aud then mailed by him to the plaintiff in Pennsylvania, together with a check for the discount at the rate of eight per cent per annum which was lawful in Pennsylvania. The note and interest were consequently received by the plaintiff in Pennsylvania, and all this was done in performance of a previous agreement which had been entered into in Pennsylvania between the plaintiff and the defendant. All that was done by the plaintiff in New York was simply in execution of that agreement, and as is said in Dickinson v. Edwards (p. 580), in citing Tilden v. Blair, the designation of the place of payment of the note was an incidental circumstance for the convenience of the maker, and not an essential part of the contract, or with the intent to affix a legal consequence to the instrument. It cannot be contended that a party who goes into another State and there makes an agreement with a citizen of that State for the loan or forbearance of money lawful by the laws of that State, can render his obligation void by making it payable in another State, according to whose laws the contract would be usurious. Neither can it be claimed that where the obligation, instead of being signed in the State where the contract was made, is signed in another State and sent by mail to the place of the contract, it must be governed by the usury laws of the place where it was signed. The counsel for the appellant disputes the fact that the agreement for the giving of the note in suit in renewal of the $2,000 note which fell due was made in Pennsylvania, but the findings and evidence clearly show that it was. The proposition for the renewal was made by the defendant at Honesdale in writing, and there received by the plaintiff. In this proposition defendant requested plaintiff's cashier to send defendant a new note to be signed, which the cashier did. The mailing of the new note by the cashier to Middletown was a clear and definite acceptance of the proposition, and made the agreement to renew complete. The sending of the note and check

by defendant signed was an execution of this completed agreement. He says he sent the check under a previous agreement. The appellant seeks on this appeal to set up a defense to the note in suit on the ground that the original $10,000 note was an accommodation note, and was discounted in violation of the agreement under which it was loaned, and that the plaintiff did not give full value for it, $2.000 of the proceeds of the discount having been applied to the payment of a precedent debt of the indorser. It is sufficient to say that the alleged facts on which this defense is based are not found by the referee nor requested to be found, but that, on the contrary, the referee found that the $10,000 note was discounted by the plaintiff for value in the ordinary course of business, and no exception was taken to this finding.

The judgment should be affirmed.
All concur.

CONDITIONS IN DEEDS RESTRICTING ALIENATION.

IOWA SUPREME COURT, SEPT. 21, 1880.

MCCLEARY V. ELLIS.

A. conveyed land to J. for life and after J.'s death to J.'s children. If J. should leave no children the land should go to G. and his children. The deed provided that the land should not be alienated by J. nor be sold for debts. Held, that the condition against alienation and liability for debts was void.

ACTION by plaintiff, John McCleary, against one of

the defendants as sheriff, who had sold, under execution against plaintiff, plaintiff's interest in certain land conveyed to him by his father, to restrain such defendant from executing to the purchaser at the sale, another defendant, a sheriff's deed. Plaintiff claimed in his petition that by a condition in his father's deed to him, the land could not be alienated and was not liable to be sold for his debts. To the petition defendants demurred, but the purchaser offered to release from the operation of the sale the homestead to which plaintiff was entitled by law. The court below sustained the demurrer, from which plaintiff appealed. The deed to plaintiff reads as follows:

*

"Know all men by these presents: That I, Alvam McCleary, of the county of Louisa, of the State of Iowa, do give my son John McCleary, all my interest in the following lands: * * * * **To have the above-described lands his life-time and to go to his children at his death; but if he dies without children, then the above-described land to go to his brother, George McCleary, and at his death to go to his brother's children-t that is, George McCleary's children; but if George dies without children, it is to go to his sister's children. It is expressly understood that he shall not part with it, nor sell it, nor shall any person sell it for him, or for debts whatsoever." The deed described 190 acres.

Hoffman, Pickler & Brown, for appellant.

Tatlock & Wilson, for appellee.

DAY, J. 1. From an examination of the deed of Alvam McCleary, it is evident that it conveyed a feesimple estate. The conveyanco is of a life estate to John McCleary, the remainder to his children; but if he should die without children, to his brother George and his children, and if George should die without children the remainder to his sister's children. The conveyance is of a life estate and a vested remainder in fee. 4 Kent's Com. 203. No reversionary interest is retained in the grantor. He has disposed of his entire estate in fee. The disposition of the estate is to the beneficiary direct, without the intervention of trustees. The question in this case is, can the grantor of the