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law on a certificate entitling the beneficiary to 80 per
cent, of an assessment to be levied and collected on the
death of the insured, when the company has refused to
make any assessment, and denied liability, and it ap-
pears that an assessment, if made, would produce a
substantial sum. — JackMonv. Northwutem Hut, Relief
A$$H., 8. C. WU., Feb. 19, 1889; 41 N. W. Rep. 706.

80. INSUBANOB— Mutual Benefit Societies. Court

of equity has power to decree dissolution of mutual
benefit societies for violation of statute in conduct of
its affairs. — Chicago Mut. Life Aseoc, v. Bunt, 8. C. UL,
Jan. 25, 1888; 20 N. B. Rep. 66.

81. INSUHANOB— Waiver. Evidence suiBcient to

ahow waiver by insurance company of further proofs
of \oa9.—Ligon v. Equitable JAft Ins, Co., 8. C. Tenn., Feb.
23, 1889; 10 8. W. Rep. 768.

82. INTBBBST— Accounts Between Partners. The

rule that interest should not be allowed on partnership
accounts until after a balance is struck, on a settle-
ment between the partners has no application where a
partner has withdrawn greatly more than he was en-
titled to from the firm assets, applying it to his own use,
to the detriment of his copartners. — Masonic Sav. Bank
V, Bang; Ey. Ct. App., Jan. 24, 1889; 10 8. W. Rep. 688.

88. iNTOXiCATiNa Liquors— Constitutional Law.

An act incorporating an agricultural society, which
provides that it shall be unlawful for any person to
sell, or offer for sale, any liquors, tobacco, or other re-
freshments within one-half mile of the grounds of said
society during the week of their annual fair, except
persons doing regular business within the prohibited
territory. Is not unconstitutional as conferring any
special rights or privileges. — State v, Stovall, S. C. N.
€ar., Feb. 25, 1889; 8 8. E. Rep. 900.

84. IRRIQATION— Appropriation of Water. The prior

appropriator of the flow of any water over the public
lands of the United States has, by a local custom which
4s recognized by the United States, a vested right



therein, which cannot be defeated by one who, having
consented to such appropriation, subsequently files a
homestead entry and obtains a patent for the land. —
Tenem Ditch Qo. v. Thorpe, 8. C. Wash. Ter., Jan. 29, 1880;
20 Pac. Rep. 688.

86. JuDQMBNT— Res Adjudicata. Where in an ac-
tion on a promissory note, the defendant files a coun-
terclaim setting out that the note was given as a part
of the purchase price of land, and asking for a rescis-
sion of the contract of sale on the ground of fraud, and
Judgment is rendered granting the relief, the latter is
not thereby precluded from bringing an action for por-
ohase money paid under such contract. — Whright v.
Andereon, 8. C. Ind., Feb. 16, 1889; 20 N. E. Rep. 247.

86. JUSTIGBS OF THB Pbaob— Trial out Of District.

Where a magistrate issued an attachment, went out-
side of the limits of his Jurisdiction, and tried a claim
filed against the property attached, he had neither Ju-
risdiction of the person of the claimant nor of the
subject-matter of the suit, and Jurisdiction could not be
conferred upon him by an agreement of the claimant
to that eUect.— Block v. Mendereon, 8. C. Ga., Feb. 16, 1889;
8 8. E. Rep. 877.

87. Landlord and Tbnant — Tenancy from Year to
T«»ar— Expiration. In South Carolina, the role an-
nounced in Floyd v. Floyd, 4 Rich. Law, 28, that "a
tenancy from year to year of a farm used for agri-
cultural purposes looks to the end of the calendar year *
for its termination," must be held to apply equally to

a tenancy from year to year of premises consisting of a
city house and lot. — JfUeon v, Bodeman, 8. C. 8. Car.,
Feb. 28, 1889; 8 S. E. Rep. 866.

88. Libbl and Slandbb— Mitigation of Damages.

The fact that the slanderous words were used by de-
fendant in the heat of passion and under strong provo-
cation may be shown in mitigation of damages.- iNldUe
V. Steniue, 8. C. Mich., Feb. 1, 1889; 41 N. W. Rep. 687.

89. LIMITATION ov ACTIONS — Acoount Current.

Under Rev. 6t. Wis. % 4226, providing that the caose off
action for the balance due on a mutual and open ac-
count current accrues at the time of the last Item
proved therein, an account in which A charges B with
a number of items extending through a considerable
time, but in which B has no credits, is not a mutual and
open account current.— 2>ttim v. Howard, 8. C. Wis., Feb.
19, 1888; 41 N. W. Rep. 707.

90. Lis Pbndbns— Adverse Possession. An action

of ejectment is not Ut pendent as to one not a party, and
who is In possession under a bond for deed from the
defendant In ejectment, and such possession may ripen
into an adverse title so as to defeat a writ of posses-
sion Issued on the Judgment therein.— IToUooe v. Arnold,
Ky. Ct. App., Feb. 2, 1889; 10 8. W. Rep. 647.

91. MALICIOUS Pbosboution. ^In an acdon^agiOnai

a corporation and its agents for malicious prosecution,
a corporation and its agents are Jointly and severally
liable for the wilful acts of the agents within their au-
thority or ratified, done with malice, and without prob-
able cause. — QuifC* <f 5. F. By. Co. v. Jamee, 8. O. Tex.,
Feb. 12, 1889; 10 8. W. Rep. 744.

92. Mandamus— From Supreme Court to Court of Ap-
peals. The Supreme Court of Missouri has no appel-
late Jurisdiction over the Kansas City court of appeals,
but the constitution gives it "superintending control
over the courts of appeals by moiMiaMta, prohibition,
and certiorari'." Meld, that mandamus, will lie to compel
the Kansas City court of appeals to reinstate and hear
the appeal in the case.— 5ta^ v. Kamae OUy Ct. Apj^, S.
C. Mo., Feb. 18, 1889; 10 8. W. Rep. 864.



98. Marbiaqb— Solemnization— Customs.

riage contracted according to the customs of an Indian
tribe need not be contracted in the territory of the tribe
in order to be valid. — La Riviere v. La Riviere, 8. C. Mo.,
Feb. 18, 1889; 10 8. W. Rep. 840.

94. ICASTBB AND Sbrvant- Negligence. -Defendan

held not liable for damages to servant by fall of em-
bankment where servant had knowledge of the danger



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and was on his gnard. — Songttad v. Burl. C, ML 4' N. S,
B„ 8. 0. Dak., Feb. 9» 1888; 41 N. W. Bep. 766.

96. Habtbr ahd Sxbyaht— Feliow-servants. The

engineer and fireman In charge of the passenger train
were not fellow servants of the section band.— StUUvan
V. Mo. Pae. Jty. Co., 8. 0. Mo., Feb. 1889; 10 8. W. Bep. 863.

96. Mbohanio'8 LIBNS — Jnry Trial. In a salt to

enforce a meohanio's lien, a jary trial is not demand-
able as a matter of right, under Code Civil Proo. Dak. f
286, nor under the constitution of the United States,
providing that in suits at common law the right of Jury
trial shall be preserved.— GtiU River Lumber Co. v. Xee/e,
8. O. Dak., Feb. U, 1889; 41 N. W. Rep. 748.

97. Mortoaobs— Assignment— Merger. A mortgage

assigned to the owner of the premises, subject to a life-
interest reserved to the assignor, is not merged in the
fee. — Coxv. Ledward, 8. 0. Penn., Feb. 86, 1889; 16 Atl.
Rep. 896.

98. MOSTQAOX8— Foreclosure— Redemption. Not-
withstanding Gen. 8t. Ky. ch. 68, art. 8, { 8, the Hen of a
mortgage is extinguished by sale under the Judgment,
and the mortgagee cannot have a resale after redemp-
tion, to recover the balance of the Judgment not satis-
fied by the first sale. — Makibben v. Amdt, Ky. Ot. App..
Jan. 29, 1869; 10 8. W. Rep. 642,

99. MOBTOAOBS- Recording — Priorities. Under

Code N. C. f 1264, declaring that no mortgage shall be
valid to pass any property as against creditors or pur-
chasers tor valuable consideration from the mortgagor
until registration of such mortgage, a mortgage not re-
corded till after the recording of a subsequent one in
the absence of fraud is invalid as against it, though the
later mortgagees had actual notice of the earlier
mortgage.— J9in<on v. Let^h, 8. C. N. Car., Feb. 26, 1889; 8
8. B. Rep. 890.

100. MUHIOIPAL OOBPOBATIONS— Ordinances— Validity.
Under Rev. 8t. Ind. § 8106, providing that the com-
mon council of a city shall have power by ordinance to
regulate and restrain certain pursuits, or to prohibit
them without license, an ordinance prohibiting a cer-
tain pursuit without license, and not fixing a uniform
Uoense fee, but providing that the council should estab-
lish it in each instance, is void.— iNil« v. CUnof Go^un, 8.
C. Ind., Feb. 1, 1889; 20 N. B. Rep. 116.

101. MUNioiPAL CoBPOBATiONS — Constitutional Law.

If a part of a territory of a municipal corporation

is separated from it by annexation to another, unless
some other provision is made in the act authorizing the
separation, the old corporation remains subject to all
its liabilities, and retains all its property, including
that which, upon the change of boundaries, happens to
fall within the limits of the other corporation. — CUff of
Winuma V, School Ditt., 8. C. Minn , Jan. 11, 1869; 41 N. W.
Rep. 689.

102. MmnoiPAL COBPOBATIOB8 — Injunctions. A

court of equity will not interfere, at the suit of a tax-
payer, to enjoin ultru virea proceedings by a city to
establish a system of water- works, when the city has
done nothing further in that direction than to pass a
resolution directing the mayor and clerk to take steps
for the letting of a contract for the construction of such
works. — FedOck v. CUy of RSpon, 8. C. Wis., March 12,
1889; a N.W. Rep. 706.

106. NBOueBBOB— Dangerous Premises. ^The owner

of a lot abutting on a public street in a city has no right
to erect a building on it with a roof so constructed that
Ice and snow collecting on it will naturally and prob-
ably fall into the adjoining sidewalk below, thereby
exposing foot-passengers to bodily injury. — Manmem v.
Penee,8. C. Minn., Jan. 80, 1889; 41 N. W. Rep. 667.

104. Nboligbmob. When a part of a building falls

without apparent reason, the owner Is not relieved
from liability for resulting damages because he used
reasonable care in obtaining plans and emplo^g a
contractor to do the work. — WiMneon v. DeiroU Steel <f
Spring Work$,S. C.Mich., Jan. 26, 1889; 41 N. W. Rep.
49L



106. NBW Tbial — Newly-discovered Bvideuoe.

An aflldavit fbr a new trial on the ground of newly- dis-
covered evidence, held insufllcient as not showing
proper diligence.— FTord v. Vorie, 8. C. Ind., Feb. 19, 1869;
20N.B.Rep. 261.

106. NonoB— Bona FMe Purchasers. The record

of a conveyance of a block of a certain number, ac-
cording to a recorded plat, which is referred to, is smf •
fident to put a subsequent purchaser of the tract
including such block on inquiry, though on the plat as
recorded the blocks are not numbered. — Sehweiee v.
Woodrnf, 8. C. Mich., Jan. 26, 1889 ; 41 N. W. Rep. 611. .

107. Pabtvbbship- Dissolution. On suit for goods

sold partnership, the retiring partner cannot defend by
proving there was an agreement between him and his
partner by which the latter was to pay the debts unless
assent of plalntifl is shown. — Ai^er v. Kilmer, 8. J. O.
Mass., Feb. 26, 1889 ; 20 N. B. Rep. 168.

106. Pabtnbbship— Limitation of Actions. A claim

by surviving partners against the estate of a deceased
partner for contribution to firm debts paid by them
upon the settlement of the partnership transactions,
after the decedent's estate Is fully administered and
distributed, is not barred by failure to present it within
the time fixed by Rev. 8t. Wis. f 8844.— Xo^on v. Dixon, 8.
C. Wis., Feb. 19, 1889; 41 N. W. Rep. 718.

109. Patmbbt — Burden of Proof. In action for

goods sold where defendant pleads payment: iieM error
to charge that plaintifl must establish by preponder-
ance of evidence that groods were not paid for.— DootU-
Ue V. Gavigan, 8. C. Mich., Feb. 8, 1889; 41 N. W. Rep. 846.

110. Pbihoifal ahd Aqbbt -^ Undisclosed Principal —
8eoret Instructions. Where one conducts a busi-
ness in his own name, but really as the agent for an
undisclosed prinopal, the latter cannot resist liability
for goods sold to the agent on credit, on the ground
that he had given secret orders to the agent not to buy
on credit.— Hubbard V. Tenbrook, 8. C. Penn.,Feb. 26, 1889;
16 Atl. Rep. 817.

111. Pbinoipal ahd 8UBBTT— Release of 8urety. ^A

mere indulgence of a principal debtor by the creditor
will not operare to discharge a Buroty,—Edwarde v. IM»r-
gan, 8. 0. 8. Car., Feb. 28, 1889; 8 8. B. Rep. 868.

118. PuBUO LAUDS— Grant. — ^ Where land is patented
to a railroad company as public land, under a grant
providing for its disposal as agricultural land, without
any reservation in the grant, the patent is a conclu-
sive determination by the government that the land is
agricultural.— ^fo v. Reel, 8. C. Cal.,Feb. 18, 1889; 20 Pac.
Rep. 660.

118. QniBTiMO TiTLB— Pleading— Demurrer to Answer.

In actions to quiet title, there Is no prejodldal

error in sustaining a demurrer to paragraphs of the
answer, setting up the statutes of limitations. — (y Don-
ahue V. Oreagor, 8. C. Ind., Feb. 19, 1880; 20 N. B. Bep^ 267.

114. Bailboad COMPABTM— Ballroad Aid Bonds— Va-

llciity. Construction of (3 8tarr A C. 8t. UL ch. 118, $

18, p. 1886,) as to power of town council to grant exten-
sion of time for the completion of a railroad and the
validity of bonds Issued in aid therefor.— .ffddy v. Noien,
8. C. lU., Jan. 26, 1889; 20 N. B. Bep. 88.

116. Bailboad Companibs— Fires— Damages. If,

through the negligence of a railroad company, sparks
and cinders, alive with fires, escape from Its engine,
and set fire to a house, the company Is liable for all the
loss of life, as well as property destroyed by such fire,
without contributory negligence on the part of the
party injured.- Jt^^iMnosM v. Detroit, B. C. ^ A. B. Co., S.
O. Mich., Feb. 8, 1889; 41 N. W. Bep. 847.

116. BAILBOAD COMPAifiB8—8tock Killing. Under

facts defendant held not liable tor killing stock In track
due care having been used. — Oag v. Fremont, ete, Co*, 8.
C. Dak., Feb. 9, 1889; 41 N. W. Bep. 767.

117. Bailboad Compaitibs- Negligence. Where

property Is injured by a train of oars In a city. In a suit
against the railroad company to recover damages, the
ordinance of the city limiting the speed of tn^ns to six ^

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miles an hoar within the corporate limits is proper evi-
denoe to go to the Jnry on the question of negligence.—
Union Poo, Jty, Co. r. Baamusien, 8. O. Neb. Feb. 20, 1888;
41 N. W. Bep. 779.

118. RSOBIYSR— Appointment. A reoeirer will not

be appointed to collect and apply, to judgment debts
against a hasband, notes which are admitted to have
been given for land which was the separate estate of
the wife, and payable to the husband alone by mere
mistake of the latter. — Rodman v, Harvey, 8. 0. N. Oar ,
Feb. 36, 1889; 8 8. B. Bep. 888.

119. BxPLBYm— Oomplaint— Yei^ifloation. Bev. 8t.

Ind. 1881, § 1547, proTiding that **wheneYer any plaintiff
shall, by complaint in writing, verifled by affidavit," set
forth certain facts, he may have a writ of replevin, does
not require verification by plaintiff in person. A veri-
fication by his attorney is sufficient.— JJon v. Durham^ 8.
0. Ind., Feb. 21, 1889; 20 N. B. Bep. 282.

190. Bbyibw— Writ of. Though the Massachussets

statutes do not set any time within which a writ of re-
view must be brought, they impliedly require prompt-
ness, and, a bond having been given conditioned that
the obligor "shall forthwith prosecute a review to final
Judgment," proceedings begun more than a year there-
after are too late.— Quinn v. Brennan, 8. J. 0. Mass., Feb.
28, 1889; 20 N. B. Bep. 184.

121. 8ALB— When Title Passes— Fraudulent Bepresen-

tations. Where plaintiffs sold certain logs to one

II, who falsely represented himself to be the agent of
the defendant, the intention of the plaintiffs being to
sell to the defendant, the latter acquired no title to the
property on subsequently purchasing the same from M.
—Peten Box <f Lumber Co, v. Leih, 8. 0. Ind., Feb. 21, 1889;
20 N. B. Bep. 298.

122. 8BDi}GnoN. There is no substantial difference

u3tween seducing and debauching, as a ground of

€ tion for loss of seryloe.^Stoudt v. Shepherd, 8. 0. Mich.,
leb. 1, 1889; 41 N. W. Bep. 696.

128. TAXATION— Bvidence — Materiality. Under

Bev. St. Ind. 1881, § 6813, evidence that the valuation
placed on the land by the auditor was less than its
actual value Is inadmissible. — Board of Commiuioner «.
Herni, 8. 0. Ind., Feb. 20, 1889; 20 N. B. Bep. 276.

124. Tblbgraph COMP^kNiss — Delay in Transmitting
Message. Plaintiffs sued defendant telegraph com-
pany for delay in transmitting the message: Meld,
that the language of the message was sufficient, of
Itself, to indicate to the operator the urgency of the
message, so as to briog such matter into the contem-
plation of the parties in sending the message. — Wutem
Union TtL Co, v, She^ld, 8. O. Tex., Oct. 26, 1888; 10 8. W.
Bep. 762.

126. Tbnanot in Comkon. A tenant in common

who has had sole possession of land, but has received
no rent therefor from third persons, in the absence of
any agreement to pay rent, Is not liable for the use and
occupation of the land to a co tenant who has never
demand possession.- SeMmap v. Belknap, 8. 0. Iowa, Jan.
30. 1889; 41 N. W. Bep. 668.

126. TBNANOT IN Common— Oonveyance. Where

tenants in common of a tract of land have laid it off
into town lots, one tenant may convey his interest in a
single lot to a BtTAn^^T,— Shepherd v, Jendgan, 8. O. Ark.,
March 2, 1889; 10 S. W. Bep. 766.

127. Tbbspass — Liability of Joint Trespassers. All

joint trespassers are liable civilly for the injuries in-
flicted by their unlawful acts.- Sharpe v, WUliam$, S. O.
Kan., Feb. 9, 1889; 20 Pao. Bep. 497.

128. Tbovbr and Oonvb&bion— Pleading — Sufficiency

of Oomplaint. In an action for the conversion of

certain property, a complaint alleging that the plaint-
iff was appointed receiver to take into his possession
such property and that the defendants had converted
it to their own use, not alleging that plaintiff ever had
possession of the property, is not sufficient. — Kehr v,
HaU, 8. O. Ind., Feb. 20, 1889; 20 N. B. Bep. 279.

139. Tbubts— Bona Fide Purchasers. Where there



is nothing upon the face of a deed from a trustee to a
purchaser showing that the sale was made in violation
of or contrary to the power contained in the deed of
trust, a subsequent purchaser, who has no notice in
fact of any irregularity in the sale by the trustee, will
be protected as an innocent purchaser.— j8lre<to v. Mart-
man, 8. 0. Neb.aFeb.:27, 1889; 41 N. W. Bep. 804.

180. TBU8T8— Trustees— Commissions. A trustee

should not be allowed commission on sums which he
has invested in his own business, securing them on his
own property, without the knowledge of the ceiM que
trust, especially when there is evidence that he agreed
to make no charges therefor. — Marrit v, Sheldon, B. 0.
Penn., Jan. 28, 1889; 16 Ati. Bep. 828.

131. Vbndor and Ybndbb- Vendor's Lien. Plahit*

iff conveyed land to defendant company for right of
way and depot purposes, and took the notes of citizens
of the county through which the railroad ran for the
purchase price, payable when the right of way and
depot grounds should be laid off and established. The
right of way and depot were established by defendant,
but the purchase price was not paid by the citizens:
Held, that plaintiff had no lien on the land for the pur-
chase money. — Springfield ^ M, B, Co, v. Stewart, 8. C.
Ark., March 2, 1889; 10 8. W. Bep. 767.

182. Wabrantt— Damsges. Where horses sold are

warranted as being sound and free from disease, dam-
ages for a breach of the warranty may include loss
suffered from the communication of a contsgious dis-
ease to the other animals, with which the diseased
horses are placed in the ordinary course of business.—
Joy V, Bitzer, 8. C. Iowa, Jan. 80, 1889; 41 N. W. Bep. 676.

188. Wabrantt— Damages. A pork- packer who

sells unsound meats of his own curing to a dealer, the
latter paying for them without an opportunity to ex-
amine them, is liable for the damage resulting, though
he did not expressly warrant their quality. - Copaa v,
AnglO'Amerieain Pfovition Co,, 8. C. Mich., Feb. 1889; 41 N.
W. Bep. 690.

184. WILLS — Construction. Where testator be-
queathed his library to the mayor of the city, presi-
dents of two colleges and their successors in trust:
Meld, that the intention was to vest the property in
persons who might from time to time occupy the
official positions mentioned and not In the corporations
of which they were the heads. — Cattman v, Grace, N. T.
Ct. App., Jan. 29, 1889; 19 N. B. Bep. 889.

136. WILLS— Construction— Testamentary Trust.

A devise to testator's wife of all his property, "to have
and use as she may think best and proper for herself
and my children," creates a trust in the devisee for the
benefit of herself and children. — EUioU v, ElUott, 8. C.
Ind., Feb. 19, 1889; 20 N. B. Bep. 264.

186. WiTNi 88— Impeachment of Character. A wit-
ness in a criminal case who resided in Georgia, formed
here a bad general character, removed to another State
while bearing such character, and has resided there
ever since, may be impeached by proof of such bad
character left behind in Georgia, though there be no
evidence touching the character formed' or borne by
the witness in the State to which he removed.— IFalMiif
V, State, 8. C. Ga., Feb. 18, 1889; 8 8. B. Bep. 876.

187. WBIT8— Service on Non-residents. Anon-
resident, who comes into the State for the sole purpose
of attending and testifying in an action in which he is
defendant, is exempt from the service of summons in a
suit of the plaintiff in that action.— WUmm v. IMmaldeon,
S. C. Ind., Feb. 16, 1889 ; 20 N. B. Bep. 260.



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?0L. 28.



THE CENTRAL LAW JODBHTAL.



3D3



^e Central ^lor K^umaL



8T. LOUIS, MAT 5, iSS9.



CURRENT EVENTS.



We have the highest regard for the editor
of the Advocate, a semi-monthly legal jour-
nal, published at St. Paul, and we are free to
say that, from time to time, we have found in
its columns much of interest and value. We
were particularly pleased with the editorial
on '^ Libel Legislation," which appeared in
its issue of April 1 — the more so, perhaps,
because a part of it was our own and ap-
peared word for word in our editorial columns
of an earlier date. The editor of the ,Advo-
cate doubtless forgot to use quotation marks
with what he copied of our article. He is
welcome to make use of anything we say, if
he deems it of sufficient interest and impor-
tance, but human nature is weak and man is
vain and frivolous, at the best, and where one
has, with great effort and labor, evolved from
his innef consciousness, what he believes to
be a great thought, he wants to have folks
know it's his, especially when it goes away
from home, and without reference to whether
it is in fact a creditable offspring. Does'nt
he, Mr, Advocate?



Ok page 402 of this issue will be found an
interesting case from the Alabama court, on
the subject of the negotiability of certificates
of stock. It is there held, in accordance
with the weight of authority in this coun-
try, that certificates of stock in a cor-
poration are not negotiable. The subject
has been lately brought to the attention
of the English courts, in connection with
the question of negotiability of American
railroad shares, and business men in the
former country seem to be not a little alarmed
at the recent decisions in the cases of The
London & County Banking Co. v. The Lon-
don & River Plate Bank, 20 Q. B. Div. 232,
and Williams v. The London Chartered Bank
of Australia, 38 Ch. Div. 388, wherein it is
practically held that American railroad share

Vol. 28— No. 18.



certificates are not negotiable. It seems that,
by a custom heretofore observed in the Stock
Exchange, such shares are treated as if they
were negotiable securities, Mdd it was sought
in one of the above cases to establish nego-
tiability by proof of such custom, but Mr.
Justice Manisty took the position that if the
right of suing upon an instrument does not
appear upon the face of it to be extendsd be-
yond one particular individual (referring to the
blank endorsement of the original holder),
no usage of trade, however extensive, will
confer upon it the character of negotiability.
Therefore, the English capitalist is becoming
alarmed at the thought that he is practically



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