Five Cents Savings Bank, 104 Mass. 228. In Hill v. Stevenson, 63 Me. 367, a delivery of a savings bank book with intent to give the donee the deposits represented thereby, was held a good delivery to constitute a complete gift of such deposits, but here there is the absence of proof of any delivery or intent to give. There must be an intention to give and this must be carried into effect by an actual delivery. Taylor v. Fire Department of New York, 1 Edw. Ch. 294.

In all the cases cited there was a delivery or a declaration that the deposits were in trust, as in Minor v. Rogers, 40 Conn. 513, where shortly after the time of making the deposits, the depositor stated that the deposits were for the boy in whose name they were made by her as trustee, and the court found it was a complete gift at the time of the deposit. In Kerrigan v. Rautigan, 43 Conn. 17, the deposit was made by the depositor as guardian for the niece, in whose name the deposit was made, and at the same time the declaration was made that it was for her. In Davis v. Ney, 125 Mass. 590, there was a delivery and assignment which the court held a valid gift. In Blasdell v. Locke, 52 N. H. 238, the deposit when made was intended as a gift, and subsequently the donee was informed of such intention, and the court enforced the trust upon which the deposit was made. In Tillinghast v. Wheaton, 8 R. I. 536, the gift was of one in extremis and was accompanied with a delivery of the savings bank passbook.

Without going more fully into an examination of the authorities, the evidence fails to satisfy us that there was any intention to give, any delivery to, or any trust created in favor of Stillman H. Ring.

NOVATION OF PARTIES.

VERMONT SUPREME COURT, JANUARY TERM, 1881.

CADENS V. TEASDALE.*

A. owed B., and C. owed A.; by agreement of the three, C gave his note to B. and was substituted in place of A. as B.'s debtor. C. was insolvent at the time; but this fact was unknown to all the parties. Held, that the loss fell on B.

A

CTION of assumpsit in common counts. Plea non assumpsit, and notice of payment by the note of W. N. Oliver. Trial by the court, September term, 1880, Ross, J., presiding Judgment for the defendant. The facts appear in the opinion.

Redington & Butler, for plaintiff.

P. R. Kendall, for defendant

TAFT, J. The plaintiffs having a claim against the defendant, agreed if the defendant would procure one Oliver, a debtor of the defendant, to give the plaintiffs his (Oliver's) note on four months time, that they would take it in payment of so much of the defendant's account. The agreement was accepted and the contract consummated. At the time all the parties believed that Oliver was solvent. He was in fact insolvent, failing before the maturity of the note, and nothing was realized by the plaintiffs upon it. The plaintiffs now seek to recover of the defendant the original account. The question presented is, upon whom was the risk of the insolvency of Oliver? In Wainwright v. Webster, 11 Vt. 576, the court say, that where the note of a third person is received in payment of a precedent debt, the risk of the insolvency of the maker is upon the party from whom the paper is received, unless there is an express agreement that the risk of the paper, in this respect, is to be the receiver's, or one is to be implied from the facts and circumstances of the case. In the case at bar, the defend*To appear in 53 Vermont Reports.

ant, at the time of the transaction, had simply an account, the collection of which he could enforce in presenti. Upon application to Oliver for money with which to pay the plaintiffs, it was arranged between the parties that Oliver should give his note to the plaintiffs, and they should accept it in lieu of their claim against the defendant. The note was given and the right to enforce the collection of the defendant's debt against Oliver was suspended for the life of the note. We regard the transaction as a substitution of the debt against Oliver for the one against the defeudant; and that it was the intention of the parties that the defendant should be discharged from his indebtedness, and from any claim on account of the insolvency of Oliver; from the facts and circumstances in the case, we think such was the intention. The taking of a note, either of the debtor or of a third person, upon an open account, is prima facie payment of such account, upon the presumption that such is the intention of the parties at the time. The intention of the parties upon the question presented in this case should be held as equally decisive, as upon the question of payment. Finding that it was the intention of the parties, from all the facts and circumstances of the transaction, that the risk of Oliver's insolvency should be borne by the plaintiffs, the case is brought within the exception to the general rule as stated by Bennett, J., in the case cited, and the result is the judgment of the county court is affirmed.

IOWA SUPREME COURT ABSTRACT.

CIVIL DAMAGE LAW-ACTS GIVING ACTION NEED NOT BE PROVED BEYOND REASONABLE DOUBT. — In an action by a wife, under the civil damage law, although the acts constituting the cause of action are of a criminal character, it is not necessary to prove them beyond a reasonable doubt. As the consequences which follow a recovery in a civil action are so materially different from those which follow a conviction in a criminal action, and as the reason for the establishment of the doctrine of reasonable doubt has no application to civil actions, the rule should not be extended to the latter unless slander and libel, when a crime is charged and justification pleaded, constitute an exception. The doctrine that where a criminal act is charged in a civil action it must be established beyond a reasonable doubt before there can be a recovery, is approved in 2 Greenl. on Ev., § 408; Taylor's Ev. 97; and Bishop ou Marriage and Divorce, § 644. It is disapproved in 2 Wharton on Ev., § 1246; Cooley on Torts, 208; and Proffatt on Jury Trials, § 335. The only case cited by Greenleaf in support of the rule is Thentill v. Beaumont, 1 Bing. 339. This case was decided in 1823, and the court is not aware that it has been followed by the courts of England. In relation thereto it has been said: "The decision ou this point in Thentill v. Beaumont was made on application for a rule, and without much consideration. It has never received approval in the English courts, although as a rule of evidence occasions have repeatedly arisen for its adoption and application." Depue, J., in Kane v. Hibernia Ins. Co. (N. J.), 17 Am. Law Reg. (N. S.) 293. Leaving out of view actions of slander and libel, the following cases should be regarded as adhering to the rule adopted in Thentill v. Beaumont: Thayer v. Boyle, 30 Me. 475: Butman v. Hobbs, 35 id. 228; McConnell v. Mutual Ins. Co., 18 Ill. 228; Pryce v. Security Ins. Co., 29 Wis. 270; and Freeman v. Freeman, 31 id. 235. The following cases have been cited as also adhering to the rule: White v. Comstock, 6 Vt. 405; Brooks v. Clayes, 10 id. 37; and Riker v. Hooper, 35 id. 457. But as these actions were brought to recover statutory penalties. there is some doubt whether a rule applicable to them should prevail in civil actions brought to recover dam

ages. In the following cases the rule aforesaid is disapproved: Washington Union Ins. Co. v. Wilson, 7 Wis. 169; Blaeser v. Milwaukee Mechanics' Ins. Co., 37 id. 31; Knowles v. Scribner, 57 Me. 495; IIoffman v. Western Ins. Co., 1 La. Ann. 216; Schmidt v. Ins. Co., 1 Gray, 529; Bissell v. Wert, 35 Ind. 54; Young v. Edwards, 72 Penn. St. 267; Ins. Co. v. Johnson, 11 Bush, 587; Rothschild v. Ins. Co., 62 Mo. 356; Munson v. Atwood, 30 Conn. 102; Elliott v. Van Buren, 33 Mich. 49; Bradish v. Bliss, 35 Vt. 326; Kane v. Hibernia Ins. Co., before cited. Welch v. Jugenheimer. Opinion by Seevers, J.

[Decided April 21, 1881.]

EXEMPTION-HUSBAND LIVING APART FROM WIFE ALONE NOT HEAD OF FAMILY.-The statute of Iowa provides that when a deceased person "leaves a widow, all personal property which in his hands as the head of a family would be exempt from execution," "shall be set apart as her property in her own right and be exempt as in the hands of the decedent." Held, that where a husband and wife have lived separate and apart for seven years preceding his death, and he neither contributed nor was asked to contribute to her support, and during said time he lodged in his office and boarded in the family of others, he was not at the time he died the head of a family within the meaning and intent of the statute. A family is "the collective body of persons who live in a house under one head or manager." Tyson v. Reynolds, 52 Iowa, 431. A person may be the head of a family although he has never been married. Whalen v. Cadman, 11 id. 226. The converse of this proposition may also be true. In the absence of a statute so providing it is difficult to see why a person boarding in the family of others, and lodging in his office for seven years, can, at the expiratiou of that time, be regarded as a family, or the head of one. It is true a person may be a boarder and yet the head of a family. But in order to constitute him such the boarding must be regarded as of a temporary character. It may be, if decedent had contributed to the support of his wife, he, under the statute, was the head of a family. The mere fact he was liable for her support should not make him the head of a family. No family relation, as generally understood, existed between himself and wife. The policy and intent of the statute is to exempt certain property because the support of a family, great or small, is cast upon the head thereof. Such family must have an actual existence, as distinguished from one that exists theoretically only. See, also, Ellsworth v. Ellsworth, 33 Iowa, 164; Scholes v. Murray Iron Works, 44 id. 190, 431; and Arnold v. Waltz, 53 d. 706. Linton v. Crosby. Opinion by Seevers, J. [Decided June 6, 1881.]

LIEN-TAKING OF SECURITY DISCHARGES VENDOR'S LIEN. The rule that the taking of collateral security for the payment of moneys due upon the sale of land discharges the vendor's lien, is not affected by the circumstance that the security supposed by all parties when taken to be good, afterward proved to be worthless. It is a general doctrine of equity that the vendor of real estate retains a lien upon the property sold for the unpaid purchase-money, unless it appears from the circumstances of the case that the lien was waived. It is also a general principle that the taking of distinct security, whether of real or personal property, is evidence that the seller did not repose upon the lien, and discharges the lien. It is also said that the sounder doctrine and the higher authority is that taking the responsibility of a third person for the purchase-money is taking security, and discharges the lien. 4 Kent Com. 153. In 1 Lead. Cas. in Eq. it is said: be considered as settled by the unanimous concurrence of the cases in this country, that wherever this lien is recognized at all it will not be affected by the vendor

"It may

taking the boud or bill single of the vendee, or his negotiable promissory note, or a check drawn on a bank by the vendee which is not presented or paid, or any instrument whatever involving merely the personal liability of the vendee; but that taking a mortgage of other property, or the bond or note of a vendee, with a surety, or a negotiable note, drawn by the vendee and indorsed by a third person, or drawn by a third person and indorsed by the vendee, will repel the lien, presumptively;" that the taking of security is prima facie a waiver of the lien. See 2 Washb. Real Prop. 9; Vail v. Foster, 4 Coms. 312; Fish v. Howland, 1 Pai. 20; Sears v. Smith, 2 Mich. 243; 4 Wait's Actions and Defenses, 323; Boynton v. Champlin, 42 Ill. 57; Sanders v. McAffee, 41 Ga. 684: Durette v. Briggs, 47 Mo. 356; Yaryan v. Shriner, 26 Ind. 364; Brown v. Gilman, 4 Wheat. 255; Banks v. Gray, 6 How. (Miss.) 527; Campbell v. Baldwin, 2 Humph. 248. It is true, as held in Garson v. Green, 1 Johns. Ch. 309, that prima facie the purchase-money is a lien upon the land, and it rests upon the purchaser to show that the vendor agreed to rest on other security. But when it is shown that other security was taken, the presumption that a lien tended is rebutted, and the burden of proof is then cast upon the vendor to show that a waiver of the lien was not intended. Kendrick v. Eggleston. Opinion by Day, J.

[Decided April 23, 1881.]

was in

ING. - (1) That clause in the bill of rights that no person shall be deprived of life, liberty or property without due process of law is not infringed by a statute giving the county board power to remove a county treasurer from office for nonfeasance or malfeasance in office, without a trial in a court of law, there being no such thing as title or property in a public office, within the meaning of that provision. Conner v. Mayor of New York, 1 Seld. 285. (2) The election and induction of a person into an office does not create such a contract as is protected in its obligation under the Federal and State Constitutions. Dartmouth College v. Woodward, 4 Wheat. 518. (3) As to the question whether an officer can be removed from office for misfeasance or malfeasance without a judicial sentence, there would seem to be little doubt. It has been held they may, by many respectable courts. In State v. McGarry, 21 Wis. 496, it was held the board of supervisors, under the statute conferring the power, and for the causes specified, might remove the incumbent of the office of inspector of the house of correction. In State v. Prince, 45 Wis. 610, it was held the board of supervisors might, on statutory grounds, remove the clerk of the board. In McGregor v. Supervisors, 37 Mich. 388, it was held that the board of supervisors had power, under the statute, to remove the county treasurer. In Keenan v. Perry, 24 Tex. 253, it was held that under a law conferring the power on the executive to appoint a superintendent of a lunatic asylum, without fixing his term of office, the governor had the power to remove the incumbent, and his action in doing so could not be reviewed. In Taft v. Adams, 3 Gray, 126, it was held the Legislature had power to shorten the term of any officer, when the term is not fixed by the Constitution. The case of State v. Dougherty, 25 La. Ann. 119, held that power conferred by statute on the executive to remove an officer for cause implies the power to judge of the existence of the cause. Having been invested with both the power Appearing in 99 and 100 Illinois Reports.

*

to appoint and to remove for cause his action was not subject to review. The same rule is announced in Alabama and Georgia, that officers, when the Constitution has not required impeachment, may under statutory provisions be removed without a proceeding by quo warranto, or judicial trial and judgment. See Ex parte Wiley, 54 Ala. 226; Thompson v. Holt, 52 id. 491; State v. Frazier, 48 Ga. 137. Donahue v. County of Will. Opinion by Walker, J. [Decided May 14, 1881.]

EQUITABLE ACTION—TO REMOVE CLOUD-PLAINTIFF MUST SHOW TITLE. — Unless a party shows title to land in himself, he cannot complain that there is a cloud upon it. He must have a title to the land to give him a standing in court before he can contest a cloud upon the title, whether it is created by an incumbrance or an adverse title. In such case the real contest is as to that which creates the cloud, and not the title of the party complaining, unless it is put in issue by the pleadings. Hopkins v. Granger, 52 Ill. 504; West v. Schnebly, 54 id. 523; Emery v. Cochran, 82 id. 65; Wing v. Sherrer, 77 id. 200; Gage v. Bussee, 94 id. 590. Hutchinson v. Howe. Opinion by Scott, J. [Decided June 20, 1881.]

PARTNERSHIP -RIGHTS OF SURVIVING PARTNER AS ΤΟ PURCHASE OF FIRM PROPERTY. - A surviving partner cannot become a purchaser of the property of the firm at his own sale- he cannot thus occupy the position of both vendor and purchaser;-nor can he become the purchaser of such property from a cotrustee. But this rule has no application to the case of a purchase by a surviving partner of the share in the partnership property belonging to the estate of the deceased partner from the personal representatives of the latter. In such a transaction the surviving partner is not to be considered as dealing with trust property, in that sense which would bring the sale within the legal prohibition. The executor of a deceased partner sold to the surviving partner "all the interest in the flour mill and property of the firm, which the testator had at the time of his death, or which the executor then had, the sale to include the debts due said firm by account or otherwise." The guardian of one of the legatees under the will of the testator filed his bill in chancery against the executor and the surviving partner for au account of certain profits which it was alleged had been earned by the firm property while in the hands of the surviving partner subsequent to the death of the testator. But it was held, that whatever profits had been thus earned, they passed by the sale from the executor to the surviving partner so there was no ground for an accounting. Chambers

v. Howell, 11 Beav. 6; Roys v. Vilas, 18 Wis. 169. Kimball v. Lincoln. Opinion by Craig, C. J. [Decided June 20, 1881.]

STATUTE OF FRAUDS - PROMISE TO PAY THE DEBT OF ANOTHER. Where a surviving partner holding a policy of insurance upon the life of the deceased parther in pledge for his partnership indebtedness to him, surrenders such policy upon the promise of the widow of the decedent to pay the debt of her deceased husband, whereby she is enabled to collect money to be applied upon her specific allowance as widow, her promise, though not in writing, is not within the statute of frauds, but is an original undertaking. Wilson v. Bevans, 58 Ill. 232; Meyer v. Hartman, 72 id. 442; Clifford v. Luhring, 69 id. 401; Emerson v. Slater, 22 How. 43. In Curtis v. Brown, 5 Cush. 491, the court say: "Where the plaintiff, in consideration of the promise, has relinquished some lien, benefit or advantage for securing or recovering his debt, and where, by means of such relinquishment, the same interest or advantage has inured to the benefit of the defendant -in such cases, although the result is that the pay

ment of the debt of the third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase by the defendant of the plaintiff of the lien, right or benefit in question. But where the original debt still subsists, and where the plaintiff has relinquished no interest or advantage which has inured to the benefit of the defendant, it is not an original contract, but a contract to pay another's debt, and must be in writing." Borchsenius v. Canutson. Opinion by Sheldon, J [Decided May 14, 1881.]

MAINE SUPREME JUDICIAL COURT ABSTRACT.

FEBRUARY, 1881.*

CONFLICT OF LAW

RULES OF U. S. TREASURY AS TO DISTRIBUTION OF PAY OF DECEASED SEAMAN IN NAVY PREVAIL OVER STATE LAW - EVIDENCE.-The rules adopted by the treasury department of the United States government for the payment of arrears of pay due to deceased officers, seamen and marines in the United States navy have the force of law, and courts will take judicial notice of them. Gratiot v. United States, 4 How. 80; Ex parte Reed, 100 U. S. 13. Money paid in accordance with such rules, to the guardian of the minor children of a deceased officer, seaman or mariner, belongs to such minors, and not to the administrator on the estate of the deceased. Reed v. Reed, 53 Me. 527; Shirley v. Walker, 31 id. 541. Low v. Hanson. Opinion by Libbey, J.

PRACTICE- -AT COMMON LAW PLEADING OVER AFTER DEMURRER SUSTAINED. By the common law as administered in this country, courts having common-law jurisdiction have power, after the defendant's plea in bar, or the plaintiff's replication is adjudged bad on demurrer, to allow the defendant to replead, or the plaintiff to reply anew. Andrews v. Beecker, 1 Johns. Ca. 411; Seaman v. Haskins, 2 id. 284; Service v. Heermance, 1 Johns. 91; Furman v. Haskin, 2 Cai. 369; Miller v. Heath, 7 Cow. 101; Bolton v. Lawrence, 7 Wend. 461; Patten v. Harris, 10 id. 623; Perkins v. Burbank, 2 Mass. 81; Aiken v. Sanford, 5 id. 494; Gerrish v. Train, 3 Pick. 124. A like power exists to allow a plea or replication to be amended after it has been adjudged bad on demurrer. Cruger v. Cropsey, 3 Johns. 242; Hartwell v. Hemmenway, 7 Pick. 117: Hutchinson v. Brock, 11 Mass. 119. The power is to be exercised in the discretion ot the court, and only in furtherance of justice. This power may be exercised by the judge at nisi prius. Strout v. Durham, 23 Me. 483. Bank v. Blake, 66 id. 285. Mayberry v. Bruckett. Opinion by Libbey, J.

RAILROAD MORTGAGE-LIEN OF, ON ROLLING STOCK CONSOLIDATION OF COMPANIES DOES NOT AFFECT.

- Under the mortgage to the plaintiffs, purporting to convey to them as trustees all the right, title and interest of the European and North American Railway Company in and to "all and singular its property, real and personal, of whatever nature and description, now possessed or to be hereafter acquired, including its railway, equipments and appurtenances; all the rights, privileges, franchises and easements; all buildings used in connection with said railway or the business thereof, and all lands and grounds on which the same may stand or connected therewith; also all locomotives, tenders, cars, rolling-stock, machinery, tools, implements, fuel, materials and all other equipments for the constructing, maintaining, operating, repairing and replacing the said railway or its appurtenances, or any part thereof." Held (1), that the lien of the mortgage was not lost upon rolling-stock withdrawn, under cir

*To appear in 72 Maine Reports.

cumstances stated in the opinion, from present use upon the then broad gauge and changed to meet a contemplated narrowing of the gauge; notwithstanding the stock upon the road was kept up or improved at the same time that these materials for the narrowgauge use were withdrawn. (2), that repairs and improvements made upon such rolling-stock by the Consolidated European and North American Railway Company, which had acquired the right to control the road subsequently to the plaintiffs' mortgage, were in the nature of accessions to a mortgaged chattel, and subject first to the mortgage that had priority of date. (3), that there can be no loss of identity of the original companies in the consolidation to the prejudice of the rights of prior creditors, or to the destruction of prior liens, and that such increased values do not belong to the consolidated company as a distinct entity. Held, further, that the plaintiffs, being in possession of other rolling stock, to which their own mortgage does not apply, purchased by the New Brunswick company, which consolidated with the E. and N. A. Railway Company, or the consolidated company, and mortgaged by them to other trustees; the plaintiffs, having the right to use and consume it in the performance of the duties the corporation owed to the public, and being liable to the mortgagees for their interest, under the facts stated, may recover its full value of the attaching creditors of the mortgagor, or the attaching officer; holding any part to which their own mortgage does not apply, in trust, or subject to their liability to those from whom they received possession, as they held the property before the attachments were made. Shepley v. Atlantic & St. L. R. Co., 55 Me. 407; Kennebec & P. R. Co. v. Portland & K. R. Co., 59 id. 9; Pennock v. Coe, 23 How. 117; Dunham v. R. Co., 1 Wall. 254; Galveston R. Co. v. Cowdrey, 11 id. 459; United States v. New Orleans R. Co., 12 id. 362; Shaw v. Bill, 5 Otto, 10; Meyer v. Johnston, 53 Ala. 237; Scott v. R. Co., 6 Biss. 529; Maryland v. North Central R. C., 18 Md. 193; Pullan v. Cin. & Chi. R. Co., 4 Biss. 35; Brett v. Carter, 2 Lowell, 458; Barnard v. Nor. & Worc. R. Co., 4 Clifford, 351; Mitchell v. Winslow, 2 Story, 630; Pierce v. Emery, 32 N. H. 484; Cook v. Corthell, 11 R. I. 482; Hope v. Hayley, 5 Ell. & Bl. 829; Holroyd v. Marshall, 10 H. of L. 191; Hoyle v. Plattsburg & M. R. Co., 54 N. Y. 314. Hamlin v. Hayford. Opinion by Symonds, J.

VERMONT SUPREME COURT ABSTRACT. FEBRUARY, 1881.*

AGENCY-WHEN PAYMENT TO AGENT VALID.- An

agent (a travelling salesman) of the plaintiffs sold goods to the defendants. By the contract the defendants were to pay the agent in three months; and did. Held, that such payment was a defense to an action brought by the principals; and this on the ground that they held their agent out to the public as having competent authority; that it was within the agent's apparent authority, though not his actual, to collect for what he sold. And this is so, although the bill, rendered by the principals to the defendants, on sending the goods, contained these words, "Payable at office," the defendants never having seen them, and being guilty of no negligence in not seeing them. Putnam v. French. Opinion by Veazey, J.

COVENANT-RUNNING WITH LAND-WIDOW WHO IS DEVISEE OF HUSBAND LIABLE UPON HIS COVENANT

OF WARRANTY. - A widow, the devisee and legatee of her husband, is liable for a breach of his covenant in a warranty deed of real estate, she having received by virtue of the will property sufficient to satisfy the

* To appear in 53 Vermont Reports.

same.

And this is so, although she is not liable in damages for a breach of her own covenant, she having joined in the deed with her husband. The covenant of warranty is a real covenant, and runs with the land; and it has always been held that any incumbrance resting upon the land at the time the covenant was entered into constitutes a breach of that covenant. Derisley v. Custance, 4 Term R. 75; Kellogg v. Robinson, 6 Vt. 276; Russ v. Steele, 40 id. 310; Mitchell v. Warner, 5 Conn. 497; Boyd v. Bartlett, 36 Vt. 9; Smith v. Perry, 26 id. 279. At common law such a covenant is transferable; and the assignee of the premises that the covenant bound the covenantor to defend may sustain an action of covenant against the executor or administrator of the covenantor while his estate is being administered by them, and after distribution against the parties to whom it has been distributed; and the amount for which an executor or administrator may be held liable is dependent upon the amount of funds that he may have in his hands belonging to the estate that can be applied in payment of the claim; and in the case of distributees, to the amount that they have received as such. Dyke v. Sweeting, Willis, 585; Morse v. Aldrich, 1 Metc. 544. Clark v. Winchell. Opinion by Royce, J.

MUNICIPAL CORPORATION - LIABILITY FOR NONREPAIR OF MARGIN OF HIGHWAY. - If a traveller goes upon the margin of the highway by his own fault and there receives an injury, he cannot recover. If he goes upon the margin, made into road by the town, or by long use, or by an individual, and adopted by the town, and receives an injury there, without his own fault, he can recover. By long use the margin becomes road. The test of liability is not how or by whom the road has been made, but whether the town authorities suffered it to be used for public travel. The greater the travel the more care the law imposes upon the town in constructing the highway. Rice v. Montpelier, 19 Vt. 470; Ozier v. Hinesburgh, 44 id. 220. Potter v. Town of Castleton. Opinion by Powers, J.

An action based upon a written contract itself can only be brought against the party named in the instrument; hence an action of assumpsit cannot be maintained against a railroad company, based upon a written contract signed by and in the name of the trustees of the mortgage bondholders of such road. Sprague v. Smith, 29 Vt. 421; Blumenthal v. Brainerd, 38 id. 402. There could not be a novation of parties in this case, because the trustees had bound themselves not binding the company-and one of them was also president of the defendant company; and acting in this double capacity he could not contract with himself; could not discharge himself and put the company in his place. Chaffee v. Rutland Railroad Company. Opinion by Ross, J.

INSURANCE LAW.

FIRE POLICY- CONDITIONS IN-WARRANTY AS TO

PRIOR INSURANCE-INTENT OR KNOWLEDGE OF AGENT

DOES NOT AVOID.-A fire policy was issued upon an application that provided thus: "This application shall form a part of this policy of insurance, and all the statements herein shall constitute warranties on the part of the insured." One of the statements was that the amount insured on the property is $1,500 in Pennsylvania Mutual of Columbia. In fact the amount of insurance was $2,000. It appeared in evidence that the insured, when an agent of the insurance company, who only had authority to receive applications for insurance and forward them to the company which issued the policy, read the question as to prior