The order to sell lands to pay debts is not such an adjudication in favor of a creditor, whose debt is included therein as prevents the administrator's setting up the Statute of Limitations in an action against him for the debt: Id.

If the proceeds of a sale of lands under such an order are impressed with a trust for the payment of debts, the administrator is not thereby estopped from resorting to the statute at law. If relief may be had on that ground, it must be sought in a court of equity: Id.

The insertion of a debt not yet barred by the Statute of Limitations, in a representation of debts made by an administrator to the Orphans' Court, for the purpose of procuring an order to sell lands to pay debts, is not such an acknowledgment as takes such debt out of the statute or as estops the administrator from setting up the bar of the statute against it: Id

MORTGAGE.

Of Chattels Subsequent Mortgagee of same Chattels.-If one gives a mortgage of chattels belonging to another, the oral consent to, or ratification of, such mortgage by the owner, cannot affect the rights of one subsequently taking a mortgage of the same chattels from the owner without notice of such ratification: Maier v. Davis, 57 Wis.

MUNICIPAL CORPORATION. See Surety.

Power of a City to issue Bonds as a donation to a Water-power Company-The City of Ottawa, in Illinois, was incorporated in 1853, and given the ordinary powers of a municipal corporation of that class for local government; in 1869, councils were authorized by ordinance, approved at a city election, to borrow sixty thousand dollars on the bonds of the city, to be " expended in developing the natural advantages of the city for manufacturing purposes." These bonds were donated to a manufacturing company, and sold by them to Eames, and by Eames to Carey for value, but with full knowledge of all facts. Held, that in the absence of express power given to the city to subscribe or donate to such enterprises, the bonds were not valid in the hands of Carey, who took with full knowledge of all the facts: City of Ottawa v. Carey, S. C. U. S., Oct. Term 1882.

In Illinois, under the constitution of the state, the corporate authorities of cities cannot be invested with power to levy and collect taxes except for corporate purposes, hence the city could not borrow money nor issue bonds unless it had the power to pay the same by taxation: Id.

NATIONAL BANK.

NOTARY PUBLIC. See Criminal Law.

OFFICER. See Sheriff.

Town Marshal and Bailiff-A town marshal may be a bailiff. There is nothing incompatible or inconsistent in the exercise of the powers and duties of both offices by the same person. The office of constable cannot be joined with that of sheriff, deputy-sheriff or clerk of the superior court; but the same person may be both a constable and a marshal: Lewis v. Wall, 67 or 68 Geo.

PARTNERSHIP.

Action against Partner for not Accounting.-The rule omnia præsumuntur contra spoliatorem is for wrongdoers, and should not be applied to a case where the failure to perform a duty is due solely to incapacity: Diamond v. Henderson, 47 Wis. 172, distinguished; Knapp v. Edwards, 57 Wis.

So held, in an action for an accounting, by one partner against another who had covenanted to keep correct books of account, but had failed to do so because incompetent, the plaintiff having known such incompetency and having condoned or waived it: Id.

In an action by one partner against another for an accounting, though it appears on the trial that nothing is due to the plaintiff, yet, if the defendant had unreasonably neglected to render an account to which the plaintiff was entitled, the complaint should not be dismissed, but there should be a judgment adjusting the rights of the parties, and the court may, in its discretion, impose the costs upon the defendant: Id.

PLEDGE. See Corporation.

PROCESS.

Service of Summons on Party or Witness while Attending TrialPractice.-Service of a summons upon a person non-resident in this state while going to, attending or returning from a trial here, as a witness or party, will be set aside: Massey v. Colville, 16 Vroom.

Service upon a resident witness or party is not a nullity. But the court will control the service, and either set it aside or change the venue arising from such service, or otherwise remedy any special disadvantage which such service entails upon the defendant: Id.

RAILROAD.

Assault by Conductor-Action-Trespass.-A declaration against a railroad for damages alleged as follows: Plaintiff entered one of defendant's trains as a passenger, and took his seat as such. It was a freight train with the usual cab and accommodations for passengers provided on such trains. Before entering it, he inquired of the engineer if the latter would stop at Tilton. The latter replied that he did not know, but that they would stop at Beardsley's he knew, and plaintiff could walk the balance of the way. Upon this statement, plaintiff entered the car orderly and decently, with the money to pay his passage, and thereby become a passenger of said company and entitled to all privileges and treatment incident to that relation. Being thus situated, the conductor in charge of the train entered, and plaintiff asked him the same question that had been asked of the engineer, when the said conductor and servant of the company, whilst thus being treated with about matters in the line of his duty and without provocation, cursed, abused, and ill-treated plaintiff, striking him over the head and face with a large lantern from five to seven blows, thereby bruising, wounding, and cutting him in the head, face, and lips, and finally knocking him out of the car door and causing him to fall across the iron on the track, producing a severe injury of the back and hips, which continues a great source of pain and expense, etc. Held, that this declaration was not an action brought for a breach of contract in not carrying

plaintiff as a passenger on defendant's train, but was an action of trespass on the case, and the holding of the judge to the contrary was error: Turner v. Western and Atlantic Railroad, 67 or 68 Geo.

Evidence of the above facts was sufficient to carry the case to the jury, and the granting of a nonsuit was erroneous: Id.

RECEIVER. See Assignment.

Application of Funds to Improvements-Rights of Creditors furnishing Supplies.-The Cairo & St. Louis R. R. Co. being insolvent, a receiver was appointed at the instance of the bond-holders, under an order of the court, "to pay running expenses and expenses of the receivership, and to pay debts due by said company for labor and supplies that may have accrued in maintenance of such property within six months preceding the rendition of this decree." After the receiver took possession, Souther & Bro. intervened with a petition for payment of a claim due them for supplies, out of the net earnings, before any improvements were made upon the property. An order was made to allow this claim. The receiver moved to set aside this order. This motion remaining undisposed of, the road was sold under a decree of foreclosure and did not realize enough to pay the bonds. While in the hands of the receiver the road paid running expenses with an excess which was devoted to improvement of the property before the payment of the claims for supplies. Held, that the income of the receivership having been applied, with consent of the bond-holders, to make per manent improvements, thus adding to the value of the property afterward sold, the fund in court represented in equity the income which belongs to the labor and supply creditors, as well as the mortgage security, and there was, therefore, no impropriety in appropriating it as far as necessary to pay the creditors especially provided for when the receiver was appointed: Union Trust v. Souther & Bro., S. C. U. S., Oct. Term, 1882.

REPLEVIN.

Cattle Impounded for wandering at Large.-Where an ordinance of a municipal corporation provided that owners of horses or mules should not permit the same to run at large within the corporate limits of the city, and subjected one violating its terms to fine therefor, if the city marshal impounded a mischievous horse running at large in the streets, the owner could not proceed against him by possessory warrant. Such action on the part of the marshal would not constitute a disappearance without consent from the possession of the owner, and a taking possession under a pretended claim without warrant or authority: King v. Ford, 65 or 66 Geo.

By the common law cattle wandering about, damage feasant, might be taken up and impounded: Id.

If the rights of the owner have been violated, she has a remedy not only against the marshal, but against the municipality under whose orders he acts; but the remedy is not by possessory warrant: Id.

SHERIFF.

Escape-Remedy against Debtor.—A sheriff who suffers an arrested debtor to escape is liable in his official character and not as bail. Hence,

if compelled to pay the debt in consequence of his default he has no remedy against the debtor: Carpenter v. Fifield, 14 R. I.

An officer who allows one lawfully arrested to go at large without taking bail suffers the escape of such person: Id.

SHERIFF'S SALE.

Purchase by Plaintiff Notice of Irregularities.-When the plaintiff in the judgment and execution purchases at an execution sale, he is presumed to have notice of all defects in the record and proceedings, and will not be protected as a bona fide purchaser if the notice of the sale was insufficient: Collins v. Smith, 57 Wis.

ance

SURETY.

Bond of Municipal Officer-Defence that Municipality induced the Breach. To a declaration upon a bond, given for the faithful performof official duty by the city treasurer, the sureties pleaded that the municipality induced and was privy to the misconduct of the treasurer, which was alleged as the breach. Held, that the plea was good on demurrer: Mayor and Common Council of the City of Newark v. Dickerson, 16 Vroom.

TRIAL.

Practice Additional Instructions to Jury in absence of Counsel.— After the defendant's counsel had left the court room, the jury came in and reported that its members differed on a question of fact, and were unable to agree, whereupon the defendant being present, but his counsel absent, the presiding justice gave additional instructions to the jury, and caused the phonographic clerk to read to the jury his report of the defendant's evidence. After verdict for the plaintiff: Held, that the defendant had no ground for exception: Brothers v. Gardiner, 14 R. I.

UNITED STATES.

Customs Duties-Duty on Malt Liquor and the Bottles in which it is put up-Schedule D. of section 2504 of the Revised Statutes imposes the following customs duties: " Ale, porter and beer in bottles thirtyfive cents per gallon; otherwise than in bottles, twenty cents per gallon." Schedule B. of the same section imposes the following customs duties: "Glass bottles or jars filled with articles not otherwise provided for, thirty per centum ad valorem. All manufactures of glass *** not otherwise provided for, and all glass bottles or jars filled with sweetmeats or preserves not otherwise provided for: forty per centum ad valorem.” Under these provisions, the bottles in which ale and beer are imported are subject to a duty of 30 per cent. ad valorem, in addition to the duty of thirty-five cents per gallon on the ale and beer imported in the bottles: Schmidt & Zeigler v. Badger Collector of New Orleans, U. S. S. C., Oct. Term 1882.

UNITED STATES COURTS. See Errors and Appeals.

THE

AMERICAN LAW REGISTER.

SEPTEMBER 1883.

EXPRESS WARRANTIES IN SALES OF PERSONAL PROPERTY IN THE UNITED STATES

AND CANADA.

WE have recently examined the law relating to the subject of the "Warranties implied in Sales of Personal Property in the United States and Canada," (22 Am. Law Reg. 85), and it is now intended to consider the legal principles that are applicable to the subject of express warranties, as laid down by the American and Canadian courts, in sales of a similar nature, the English authorities being ably reviewed by Mr. Benjamin, Q. C., in his work on Sales.

It will be convenient to examine the subject of express warranties with reference to,

I. THE PARTIES TO THE CONTRACT OF WARRANTY; PRINCIPAL AND AGENT.

(a) Creation of the contract of warranty by the agent.

(b) Effect of the contract of warranty on the parties.
(c) Scope of the agent's authority to warrant.

II. THE CONTRACT OF WARRANTY.

(a) Sales.

(b) Exchanges.

III. THE REMEDIES OF THE PARTIES.

(a) Remedies of the buyer; avoidance of the contract for

fraud of the seller.

(b) Action for breach of warranty.

IV. MEASURE OF DAMAGE.

VOL. XXXI.-70

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