commenced in a court of record for the examination of a person against whom such an action is about to be brought, upon the application of the person who is about to bring the action. (101 N. Y., 176.)

If some part of the desired examination will consist of questions tending to criminate the person examined, the order may be granted and the witness left to assert his privilege when such questions are put. (33 Hun, 32.)

But if the examination as a whole will be of an incriminating character, the order may be refused.

An individual who is a party cannot be compelled by an order for examination before trial to produce books, papers, etc., for examination and inspection, but must proceed for that purpose under §§ 803-809 of the code. (41 Hun, 603.)

The affidavit need not state that the deponent will use the evidence as a part of his proof on the trial. It is sufficient that such intention be inferable from the affidavit. (30 Hun, 61.)

If the attorney's office address or residence is not duly stated, the order will be vacated.

(30 Hun, 77.)

§ 873. The order must be granted by a judge at Chambers and not by the Special Term. (77 N. Y., 278.)

It seems that the judge is not absolutely bound to grant the order, though the affidavit conforms to the code requirements. If the judge can see that the examination is not necessary, and is sought merely for annoyance and delay, he may in his discretion deny the application, (106 N. Y., 272.)

The judge granting the order for the examination of one party upon the application of his adversary, may in his discretion authorize a general examination, and

this need not be limited to an affirmative cause of action or affirmative defense set forth in favor of the party desiring such examination. (109 N. Y., 81.)

DEPOSITIONS.

§ 875. The order must be served on the party personally. (See § 802).

Service only upon the attorney is not enough to give jurisdiction to punish the party for non-compliance. (77 N. Y., 33.)

§ 887. This section only authorizes taking depositions in an action, not in a special preceeding. (83 N. Y., 164.) The provisions of this article, however, apply to Surrogate's Courts. (5 Civ. Pro. Rec., 444.)

§ 888. Different forms of commissions and other modes of securing depositions.

(1.) The primary form of commission names commissioners, names witnesses, and provides for written interrogatories annexed. This form may be used in any of the cases specified in § 888.

(2.) Modified form: This is like the first form, except that it authorizes the putting of oral questions in whole or in part.

(3.) Open commission: This names commissioners, but instead of naming witnesses authorizes the examination of any witnesses produced on or before a certain day; it provides also for oral questions.

(4.) Order to take depositions: This simply directs that depositions be taken, while the Code specifies in section 899, before whom they may be taken. Notice

is then given by counsel of the time and place of taking the deposition, naming the witnesses to be examined and the person before whom the examination is held.

(5.) Letters Rogatory: Sometimes commissioners sent to foreign countries will not be aided by the foreign courts so as to enable them to secure the attendance and examination of witnesses. Then letters rogatory are used, which consist of a request by one of our courts to a foreign court to obtain and return the testimony under promise of a like favor when requested. (N. Y., 313.)

PARSON ON CONTRACTS, VOL. II.
NOTES ON SHIPPING AND INSURANCE.
BY PROFESSOR Dwight.
Officially Revised.

P. 279. Transfer by Mortgage. The transfer of a ship before delivery of cargo transfers accruing freight. (22 Beav., 522; 3 D. G. & J., 690.) This rule would apply to a mortgagee as being a conditional purchaser in case he took possession. (L. R., 3 Ex., 269; H. & N., 423; L. R., 3 ch., 597.) The necessity of taking possession seems to arise from the requirement that the owner of the goods should have notice of the change of title. Any other mode of giving notice would apparently suffice. (See same cases.) The (See same cases.) The mortgagee becomes entitled to freight as owner only on getting possession. (L. R.. 2 app. Cas., 636.) It is only necessary to record mortgage in the U. S. Collector's office. (R. S., § 4192 and § 4193; 7 Wall., 646; 8 Wall., 491.)

P. 280. In England the power of a master to issue a bottomry bond under implied authority depends on the law of the country to which the ship belongs or where the owner resides. This principle

is called the "law of the flag." As it depends on an implied contract the law implies it from the law governing the ship. American goods on an Italian ship are governed by Italian law as to communicating with owner of cargo, though London is the port of discharge. (7 P. D., 137; L. R., IQ. B., 115.) For a similar rule in contract of affreightment (see 3 Story, 465; contra, 1 Miller, La., 240.) The case of Malpisen vs. Mc Kowan, 1 Miller, 240 254 agrees with the case last cited. (See also on the general subject, Garver on Shipping; Henry's Admiralty, Arts. 11 and 207; Scruttons, Arts. 7 and 105.)

In the (Heinrich Bjoin, 10 P. D. 44), the bond was put in an alternative form; either the personal liability of the owner if the ship returned, or a policy of insurance obtained at the cost of the borrower. This was held not a true bottomry bond, In a bottomry issued by the master there must be a necessity for it, and the ship owner or cargo owner as the case may be, must be consulted, if practicable. Communication with cargo owner is not, in general, practicable. (See 7 Mos. P. C. C., 398.

P. 286. Liens. The lien of a passenger for loss of baggage is analagous to that for loss, of merchandise. (4 Wall., 417.) The owner of a ship on a single voyage is a common carrier. (L. R.. 1, Ex., 338.) In the last case the language is "incurs the liability of a common carrier." In an employment of a ship by a master to receive freights, pay expenses, and pay over to the owner a certain portion of the freights, he may be either a servant or a partner according to the facts. (L. R., 3 C. P. D.) The contract of affreightment by a particular ship implies, on the part of the ship owner, continuance of the existence of the ship as a means of carrying foward the cargo. If before she breaks ground she is so injured by fire that she is rendered unseaworthy and incapable of earning freight the contract is dissolved. (10 8 U. S., 3 42, 357.)

It is really a case of implied condition in the law of contracts. A common law court cannot enforce the lien of the owner The clause,

of the cargo. 4 Wall., 411.

lost or not lost, is sometimes found in bills of lading. It means lost by perils excepted in the bill of lading, 53 Law Times, 325.

P. 289. The bill of lading consists of two parts; a receipt and a contract. Between the parties the receipt part can be contradicted by parol evidence; while the contract part cannot be as against a purchaser in good faith. 9 N. Y., 529; 24 Hun, 607.

One who discounts a draft with a bill of lading attached acquires a title to the property. 22 Hun, 327; 92 Pa. St., 57.

The ship owner is liable who loads goods on deck without consent of owners of goods in case of jettison; L. R., 12 App. Car., II. The power of a master of a ship to bind owners by bill of lading when goods are not on board opposed, 10 C. B., 104; 18 How. (U. S.) 182; 105 U.

S., 7: and later cases. In favor, 34 N. Y., 30; 65 N. Y., 111; 106 N. Y., 199; 108 Pa. St., 529, 544. The Supreme Court of the U. S. in Pollard vs. Vinton, 105 U. S., 7, distinguished the case of N. Y., N. H. & H. R. R. Co. vs. Schuyler, 34 N. Y., 30, by stating that that case concerns bills of lading issued by corporation agents while in the Pollard case the bill of lading was issued by the agent of private owners. This distinction, however, tends to confusion, making the rule of agency depend on the personality of the principal rather than on the nature of the act to be done. On the general subject, see 9 Ill. App., 48. It is unsafe to issue more than one bill of lading to one consignee. The continuance of this ancient custom is deprecated in the case of the Mill Co. vs. the Dock Co., L. R., 7 App. Cas., 573. In this case there were in a set bills marked first, second and third, any one of which being accomplished the others were void. The first bill was assigned to a banker; the second to a third person, and the possession of the goods; and a person standing in the position of master delivered them to the second holder without notice of the first assignment. It was held that there was no liability of the ship owner to the first holder. The second bill had been accomplished within the meaning of the bill. See same case. Even in England bills of lading may be made conclusive as to the amount shipped by agreement to that effect between the ship owner and the charterer, on the principle of estoppel. L. R., 192, B. D., 333. When a bill of lading is endorsed to one who has made advances upon it, he has a lien or claim upon the goods to the extent of his advances; the residuary interest being in the owner. If, then, the goods had been purchased on credit and had not been paid for, the purchaser owning the goods