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-ON ACTION FOR SEDUCTION-ILLICIT

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the grantee, or his heirs, as the ground of an escheat. This is the better doctrine. See, also, Bigelow on Escheat, 246, and the authorities there cited; Nieto v. Carpenter, 7 Cal. 527. In support of the general doctrine of estoppel see the following authorities: Welland, etc., Co. v. Hathaway, 8 Wend. 480; Carver v. Jackson, 4 Peters, 1; Laney v. Laney, 4 Ind. 149; Gatling v. Rodman, 6 id. 289; Conklin v. Smith, 7 id. 107; Barnes v. McKay, id. 301; Morris v. Stewart, 14 id. 334; State v. Stanley, id. 409; Junction R. Co. v. Harpold, 19 id. 347; Burton v. Reeds, 20 id. 87; Berry v. Anderson, 22 id. 36; Fletcher v. Holmes, 25 id. 458; Love v. Wells, id. 503; Joyce v. First Nat. Bank of Madison, 62 id. 188; Hadley v. State, 66 id. 271. Reid et al. v. State of Indiana. Opinion by Biddle, J. EVIDENCE INTERCOURSE OF FEMALE. It is abundantly established that in an action for seduction the woman seduced cannot be asked on cross-examination, for the purpose of showing her bad character, whether she has not had criminal intercourse with other men, nor for the purpose of impeaching her if she deny it. Shattuck v. Myers, 13 Ind. 46; 5 Wait's Act. and Def. 667; 1 Greenl. Ev., § 458; 2 id., § 577; Hoffman v. Kemerer, 44 Penn. 452; Doyle v. Jessup, 29 Ill. 460. In the language of this court in the case of Bell v. Rinker, 29 Ind. 267, supra, "character could not be attacked or sustained by proof of specific acts." But in such an action by a woman seduced, under a statute allowing her to bring it, such questions may be asked for the purpose of showing the paternity of a child brought forth by her and of affecting the damages. Walker v. State, 6 Blackf. 1; Hill v. State, 4 Ind. 112; Townsend v. State, 13 id. 357; Whitman v. State, 34 id. 360. Smith v. Garagan. Opinion by Worden, J.

MICHIGAN SUPREME COURT ABSTRACT. APRIL, 1880.

CONSTITUTIONAL LAW- STATE UNDER POWER TO AMEND CHARTER CANNOT TAKE AWAY PROPERTY

RIGHTS FROM CORPORATION. A State statute providing that no plank road company organized under a general act mentioned, to which the statute was an amendment, should maintain a toll-gate within the corporate limits of a city or village without the consent of the local authorities,for collect toll for any portion of its road within such limits in which a pavement was maintained by the municipality, held, invalid where the effect of its enforcement would be to deprive a company of the right to take toll on two and a half miles of its road, and the fact that the general act contained a provision authorizing the Legislature to amend, repeal, or alter such act, would not affect the result. There is no well-considered case in which it has been held that a Legislature under the power to amend a charter might take from the corporation any of its substantial property or property rights. See Albany, etc., R. R. Co. v. Brownell, 24 N. Y. 345. It was there decided that although the Legislature might require railroad companies to suffer highways to cross their tracks, they could not subject the lands which the companies had acquired for other purposes to the same burden, except in connection with provision for compensation. The decision was in accord with that in Commonwealth v. Essex Co., 13 Gray, 239, 253, in which, while the power to alter, amend or repeal the corporate franchises was sustained, it was at the same time declared that " no amendment or alteration of the charter can take away the property or rights which have become vested under a legitimate exercise of the powers granted. The same doctrine is clearly asserted and affirmed in Railroad Co. v. Maine, 96 U. S. 499, and is assumed to be

unquestionable in the several opinions delivered in the Sinking Fund Cases, 99 U. S. 700. But for the provision in the Constitution of the United States which forbids impairing the obligation of contracts, the power to amend and repeal corporate charters would be ample without being expressly reserved. The reservation of the right leaves the State where any sovereignty would be if unrestrained by express constitutional limitations, and with the powers which it would then possess. It might therefore do what it would be admissible for any constitutional government to do when not thus restrained, but it could not do what would be inconsistent with constitutional principles. And it cannot be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightfully have acquired. In the most arbitrary times such an act was recognized as pure tyranny, and it has been forbidden in England ever since Magna Charta, and in this country always. It is immaterial in what way the property was lawfully acquired; whether by labor in the ordinary avocations of life, by gift or descent, or by making profitable use of a franchise granted by the State; it is enough that it has become private property, and it is then protected by the law of the land." Even municipal corporations, though their charters are in no sense contracts, are protected by the Constitution in the property they rightfully acquire for local purposes, and the State cannot despoil them of it. Terrett v. Taylor, 9 Cranch, 43; Pawlet v. Clark, 9 id. 292; State v. Haben, 22 Wis. 660; People v. Common Council, 28 Mich. 228. City of Detroit v. Detroit & Howell Plank Road Co. Opinion by Cooley, J.

HIGHWAY

ALLEY IN CITY NOT.-An alley in a city can in no proper or legal sense be considered as a public highway, or governed by rules relating thereto. While the city may have, and undoubtedly has, certain limited rights therein for municipal purposes, yet the public have no general right of way over or through the same. It is designed more especially for the use and accommodation of the owners of property abutting thereon, and to give the public the same unqualified rights therein that they have in and to the use of the public streets would defeat the very end and obPaul ject intended. v. Detroit, 32 Mich. 110. Any obstruction to the right of passage through or to the proper use of any alley, by those entitled thereto, cannot, therefore, be considered as a public wrong. The grievance, if any, is an individual one, and for which there may, for a willful or unnecessary obstruction, be a private remedy. Bagley v. People. Opinion by Marston, C. J.

MARRIED WOMAN-MAY BE ENTITLED TO SERVICES PERFORMED IN HUSBAND'S FAMILY.- Under a statute which had been held to authorize a married woman to carry on business on her own account with the consent of her husband, held, that she might with his consent be entitled to perform for compensation services in his family, such as attending upon his aged, blind and imbecile father, who lived with her husband. No distinction can be drawn between the services of the wife performed in and about the house and those performed elsewhere, as a foundation for a claim to recovery for her own benefit. If the husband can consent to her giving her time and attention to the management of a millinery or dress-making establishment, or to any other regular business, away from her own, and if this makes the business her own, there seems to be no conclusive reason why she may not consent to her making her services in the household available in the accumulation of independent means on her own behalf. He relinquishes her right to her services in the one case no more than in the other, and perhaps in the last case the ordinary course of marital

relations is least disturbed. In Tillman v. Shackleton, 15 Mich. 447, the business for which the wife was preparing was that of keeping boarders; and in Merriweather v. Smith, 44 Ga. 541, she was to give her personal labor in the cultivation of a cotton crop. In the well considered case of Peterson v. Mulford, 36 N. J. 481, the labor in the proceeds of which the wife was protected was picking berries, boarding children, selling milk, butter, eggs, etc. Mason & Dunbar. Opinion by Cooley, J.

VIRGINIA SUPREME COURT OF APPEALS

ABSTRACT.

JANUARY TERM, 1880.*

MORTGAGE OF GOODS TO BE MANUFACTURED WHEN VALID IN EQUITY.-A., being the owner of a cotton factory, enters into a covenant under seal with T., which is duly admitted to record, which, reciting a previous deed of trust by A. to secure advancements made or to be made by T. to A., witnesses that in consideration of the premises and of the advances already made and to be thereafter made by T. for the purchase of cotton or for other expenditures connected with the manufacture of cotton goods at A.'s factory, the said A. covenants to deliver to the said T. each yard of cotton goods manufactured by him at the said factory. And T. covenants that he will, from time to time, advance such sums of money as may be required for the purchase of cotton manufactured in said factory, and that he will advance further sums of money as may be required to pay hands and necessary expenses incurred in running the machinery in said factory, etc. And it was further agreed between the parties that the said A. shall sell no goods manufactured in the said factory, unless upon receipt of a written authority from T. to that effect, specifying the amounts of goods to be sold, the price and terms of sale, and approving the credit of the purchaser; and T. shall receive five per cent for commissions and guaranty on the entire product of said factory, whether sold by T. or A., by the authority of T. as aforesaid. And T. is to have the same security under the said deed of trust as if this covenant had been executed at the same time as the deed. Held, that the covenant by A. is valid in equity to secure to T. the cotton and goods thereafter purchased and made at the said factory, for the repayment to him of all money advanced or paid by him for cotton to be manufactured at said factory and the expenses incurred in running the said machinery, whether said advances were made before the date of said covenant or afterward. That the covenant having been duly recorded, it is notice to all parties claiming under A. That the right of T. to the raw cotton, cotton yarn and cotton cloth on hand is preferable to the right of an execution creditor of A. on an execution issued since the covenant was executed. Holroyd v. Marshal, L. R., 10 H. L. 19; Beall v. White, 94 U. S. 382, 387; Story's Eq. Jur. (9th ed.), § 1040; Dunham v. Railway Co., 1 Wall. 254; United States v. New Orleans Railroad, 12 id. 362; Borst v. Nalle, 28 Gratt. 423. First National Bank of Alexandria v. Turnbull & Co. Opinion by Anderson, J.

NEGLIGENCE — BAILMENT — QUESTION FOR JURY.— A gratuitous bailee is only liable for gross negligence. The question of negligence on the part of an agent, as a general rule, is a question of fact, and not of law. It is only in that class of cases where a party has failed in the performance of a clear legal duty, that when the facts are undisputed, the question of negligence is necessarily one of law. When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negli*To appear in 32 Grattan's Reports.

gence cannot be determined until one or the other of these conclusions has been drawn by the jury. The inference to be drawn from the evidence must be certain and incontrovertible, or they cannot be decided by the court. Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ. Detroit & M. R. Co. v. Van Steinberg, 17 Mich. 99; Railroad Co. v. Stout, 17 Wall. 657; West Chester & P. R. Co. v. McElwee, 67 Penn. St. 311; Barron v. Eldredge, 100 Mass. 455; Doorman v. Jenkins, 2 Ad. & El. 256. The degree of negligence is a question for the jury. How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending upon a great variety of circumstances, which the law cannot exactly define. Storer v. Gowen, 18 Me. 174. 177. The question of gross negligence was left to the jury by Mr. Justice Story in Tracy v. Wood, 3 Mason, 132. Carrington v. Ficklin's Exr. Opinion by Burks,

J.

SURETYSHIP-UNDERTAKING FOR EMPLOYEE OF CORPORATION-CONSTRUCTION OF INSTRUMENT CHANGE

OF EMPLOYMENT.-E. was employed by the S. Express Company as freight clerk at P., and whilst so employed executed a bond, with sureties, by which, after reciting that whereas E. is to be hereafter employed by the S. Express Company in its business of forwarding by different railroads, etc., packages of any and all kinds, and movable property, including money and securities for money, E., in consideration of said employment and the compensation he is to receive from said company for his services, covenants, etc., that he will well and truly perform all the duties required of him in said employment, and truly account for all money, etc., which may come to his possession or control by said employment, etc. And E. and his sureties bound themselves for the faithful performance of the above covenants by E. in the penalty of $2,000. After the execution of this bond, E. was raised to the office of principal agent of the company at P., and whilst acting as such principal agent embezzled money which came into his hands. Held, there being no dispute about the facts, it is for the court to construe the instrument, and the jury are bound to take the construction of the court as correct. The rule, as laid down by Baron Parke in Neilson v. Harford, 8 M. & W. 806, 823, is generally accepted. "The instruction of all written instruments," he says, "belongs to the court alone, whose duty it is to construe all such instruments as soon as the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words of art or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so there would be no certainty in the law," etc. See, also, Brown's Leg. Max. 104, (side p.); 1 Chitty on Cont. (11th Am. ed.), 103; Talbot v. R. & D. R. R. Co., 31 Gratt. 685. And surrounding circumstances relied on may be accepted as facts established, in like manner as if found by the jury. It is the province of the court to construe in the light of the facts, but the construction is limited by the rules of law to the language employed in the instrument. "The writing," says Greenleaf, "may be read by the light of surrounding circumstances in order more perfectly to understand the intent and meaning of the parties; but as they have constituted the writing to be the only outward and reliable expression of their meaning, no other words are to be added to it, nor substituted in its stead. The duty of the court in such cases is to ascertain, not what the parties may have

secretly intended, as contradistinguished from what their words expressed; but what is the meaning of the words they have used." 1 Greenl. on Ev., $277; Beaumont v. Field, 18 Eng. Com. L. Rep. 331; Doe v. Templeman, 24 id. 336, 343. In the case at bar, the obligation, by its terms, extends to any employment of E. by the express company, and the sureties are liable to the company for the money embezzled by E. whilst acting as principal agent of the company at P. Collier v. Southern Express Co. Opinion by Burks, J.

SUPERIOR COURT OF BUFFALO. GENERAL TERM ABSTRACT.

HUSBAND AND WIFE-LIABILITY OF HUSBAND FOR REPAIRS ON WIFE'S HOUSE. - For many purposes a house belonging to the wife, but occupied by the husband as the home and residence of himself and family, may be regarded as in his possession rather than that of the wife. Alexander v. Hard, 64 N. Y. 228. When repairs become necessary upon the premises, and no arrangement on the subject exists between them, it would appear to be as much his duty as that of the wife to bear the expense, since he has the beneficial use of the premises. In ordering the repairs, she may be regarded as acting consistently with either character, that of owner, or as agent of her husband. Where, therefore, the wife directed the person who performed the work to her husband, and the latter promised to pay the bill, and he paid similar bills to other persons, it was left to the jury to find whether the wife acted as his agent in ordering the repairs - whether he intended to adopt and ratify her act as his agent, and make the debt his own; and a verdict for the plaintiff was sustained. In such case, therefore, he promises to pay his own debt, and not merely that of a third person. Ross v. Janes. Opinion by Beckwith, J.

FORECLOSURE-DEFENDANT CANNOT SET UP PARAMOUNT TITLE.-The only proper parties in a foreclosure suit are the mortgagor and mortgagee and those who have acquired rights or interests under them subsequent to the mortgage. The rights of those claiming by title paramount, or in hostility to the title of the mortgagor, cannot be litigated in such an action. Where, therefore, the complaint] avers that a defendant claims an interest in the premises accruing subsequent to the mortgage and inferior thereto, it is not necessary or proper for such defendant to set up a title existing in him which is paramount to the mortgage, since no decree can be made in the action which will affect such title. Banks v. Walker, 3 Barb. Ch. 438; Holcomb v. Holcomb, 2 Barb. 20; Lee v. Parker, 43 id. 611; Brundage v. Dom. & For. Miss. Soc., 60 id. 204; Lewis v. Smith, 9 N. Y. 502; Merchants' Bank v. Thomson, 55 id. 7. Yerkes v. Roots. Opinion by James M. Smith, J.

A por

MUNICIPAL CORPORATION-NEGLIGENCE.tion of the plank of a cross-walk was gone, leaving a space about four feet long, fifteen inches wide, and eight inches deep, and the plaintiff, before reaching this space, accidentally tripped and fell therein, breaking his collar bone. Held, (1) that the defect in the walk was not the cause of plaintiff's fall. (2) That the evidence is insufficient to warrant the conclusion that the hole or space was the cause of the injury received, and that the injury would not have been the same if the plank had remained there and he had fallen upon that. The burden was upon the plaintiff to show that the defect in the walk caused the injury. Luedecke v. Buffalo. Opinion by James M. Smith, J. TURNPIKE ROAD - ABANDONMENT OF OF BUILDINGS REMAINING THEREON.— - Upon the repeal of the charter of a turnpike company, and the abandonment or surrender of its road to a municipal

OWNERSHIP

corporation, pursuant to the statute of 1854, chap. 87, buildings erected thereon do not become the property of the person owning the fee of the highway upon which they stand, even though they are allowed to remain thereon a considerable length of time; and an injunction cannot be maintained at the suit of such person against a purchaser of the buildings from one of the directors of the late company to restrain him from removing them. Johnson v. Heiser. Opinion by Beckwith, J.

FORECLOSURE-RIGHTS OF MORTGAGEES AS TO SALE OF PARCELS.-A mortgagee of two lots of land released one of them from the lien of his mortgage, and at the same time the mortgagor gave a mortgage to B. on the lot released. Held, that the former mortgagee had a right to insist that the lot released, the title to which still remained in the mortgagor, should be first sold to satisfy a prior mortgage held by another party. Bernhardt v. Lymburner. Opinion by James M. Smith, J.

PLEADING INFANCY- EVIDENCE NOT OBJECTED TO.- The defense of infancy must be pleaded in order to be available. Where defendant's counsel asked him his age, and the question was not objected to, and no further evidence was given upon the subject, held, that plaintiff was not precluded from raising the objection, upon exception to the judge's charge to the jury, that the defense of infancy not being pleaded, the testimony admitted was, under the issues, wholly immaterial. See Hamilton v. N. Y. Cent. R. R. Co., 51 N. Y. 100. Cutter v. Getz. Opinion by James M. Smith, J.

JUSTICES' COURTS- MISJOINDER OF DEFENDANTS.-The common-law rule that in an action upon contract against several persons alleged to be jointly liable, the plaintiff must establish the joint liability of all the defendants in order to recover against any of them, no longer prevails even in justices' courts. That rule was adopted when the rules of pleading and practice were highly artificial and technical, and the rule itself is purely technical. It rested upon the doctrine that the allegations of the pleading must be proved exactly and without the slightest variance. Now, no variance between the pleadings and proofs is regarded, unless it affects the merits and the essential rights of the parties, and amendments are allowed upon very liberal terms. The rule should cease with the reason for it. It was adopted in justices' courts from courts of record and was enforced in the former merely because it was established and enforced in the latter. As to the latter, the Code has changed it (§ 1204), and there ought not to be any difference between the practice in such cases in the courts of record and in the inferior courts. Otherwise, upon a new trial in the higher court (old Code, § 352), there would be this anomaly in the law: plaintiff could recover against one defendant and dismiss as to the other, while he could not do so in the court below. Therefore, where in an action against several, upon an alleged joint contract, plaintiff proves one of them liable upon the contract, but fails to estabagainst one, and be dismissed as to the others. Lowe lish the liability of the others, he may have judgment v. Rommel, 5 Daly, 17; Ackley v. Tarbox, 31 N. Y. 564; McGuire v. Johnson, 2 Lans. 305. Hammer v. Knell. Opinion by James M. Smith, J.

CRIMINAL LAW.

CONSTITUTIONAL LAW-RIGHT OF TRIAL BY JURY IN VICINAGE. - Under constitutional provisions that "The right of trial by jury shall remain," etc., and that this method of trial shall be guaranteed in every criminal prosecution, held, that a statute providing that an accused person may be tried in another county than that where the offense was committed, the selec

tion of the county of trial being left to State officials engaged in the prosecution, was unconstitutional. This right of trial by jury is not described but is understood, as it had existed before and had become known in the previous jurisprudence of the State. By implication, at least, even a waiver of its advantages is forbidden. Nothing is better settled on the authorities than that the Legislature cannot take away a single one of its substantial and beneficial incidents. Opinions of Judges, 41 N. Y. 550; Ward v. People, 30 Mich. 116; and even the accused cannot waive any one of the essentials. Work v. State, 2 Ohio St. 296; Cancemi v. People, 18 N. Y. 128; Hill v. People, 16 Mich. 351; Allen v. State, 54 Ind. 461. Now, that in jury trial it is implied that the jury shall be by vicinage, is familiar law. Blackstone says the jurors must be "of the issue or neighborhood, which is interpreted to be of the county where the fact is committed." 4 Com. 350. This is an old rule of the common law. Hawk. P. C., b. 2, ch. 40; 2 Hale's P. C. 264; and the rule was so strict and imperative that if an offense was committed partly in one county and partly in another, the offender was not punished at all. Hawk. P. C., b. 2, ch. 25; 1 Chit. Cr. L. 177. This over nicety was long since dispensed with, but the old rule has, in the main, been preserved in its integrity to this day. It is true that Parliament, as the supreme power of the realm, made some exceptions, which are enumerated by Mr. Chitty in 1 Crim. Law, 179, the chief of these being cases of supposed treason, or misprision of treason, examined before the Privy Council, and which, under a statute of Henry VIII, might be tried in any county; and offeuses of the like character committed out of the realm, and which, by a statute of the same arbitrary reign, were authorized to be tried in any county in England. But it is well known that the existence of such statutes, with a threat to enforce them, was one of the grievances which led to the separation of the American colonies from the British empire. If they were forbidden by the unwritten Constitution of England, they are certainly unauthorized by the written Constitution of the American States, in which the utmost pains have been taken to preserve all the securities of individual liberty. It has been doubted in some States whether it was competent even to permit a change of venue, on the application of the State, to escape local passion, prejudice and interest (Kirk v. State, 1 Cold. 344; Osborn v. State, 24 Ark. 629; Wheeler v. State, 24 Wis. 52); but this may be pressing the principle too far (State v. Robinson, 14 Minn. 447; Gut v. State, 9 Wall. 28); but no one doubts that the right to a trial by a jury of the vicinage is as complete and certain now as it ever was, and that in America it is indefeasible. 1 Bish. Crim. Law (2d ed.), § 552; Whart. Crim. Law, § 277; Paul v. Detroit, 32 Mich. 108; Ward v. People, 30 Mich. 116. Michigan Sup. Ct., April 28, 1880. Swart v. Kimball. Opinion by Cooley, J.

FORGERY ALTERATION OF MEMORANDUM INDORSED BY HOLDER OF NOTE. - On the back of a promissory note, made by L., defendant, who held the note, had indorsed, "Received from S. Lloyd the sum of $120. 24-8-74." This was not signed by any one. Afterward he altered the indorsement by changing the $120 to $20 and adding the words "as interest." Held, that in the absence of any allegation that the indorsement was intended as a receipt for the benefit of the maker of the note, an indictment for forgery would not lie. This does not conflict with Kegg v. State, 10 Ohio, 75. In that case one Patterson owed Kegg a note of $100. Patterson made a payment of $33.25, and in the presence and with the concurrence and by the direction of Kegg, Patterson made this indorsement on the note: "Rec'd May 4, 1839, on the within note, thirtythree dollars and 25 cents." Kegg retained the note, and when presented for final adjustment the indorse

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ment had been altered so as to read thirteen instead of "thirty-three" dollars. Kegg was held guilty of forgery because the words were indorsed on the note by Patterson by his direction, and the court say that "it is unnecessary to determine what would have been the effect of the indorsement if made by the payee without the privity and knowledge of the maker." In the case at bar the indorsement may have been no more than a mere private memorandum made by the payee, never delivered as a receipt, and not being signed, he had the right to alter it. In the case cited it was the concurrent act of the parties, and was the means employed by them to preserve the evidence of payment. The distinction is apparent. Iowa Sup. Ct., April 7, 1880. State of Iowa v. Davis. Opinion by Rothrock, J.

TRIAL ACQUITTAL CANNOT BE SET ASIDE OR REVIEWED. - It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury. 2 Hale's P. C. 310; 2 Hawk. P. C., b. 2, ch. 47, § 12; 3 Whart. Am. Crim. Law, § 3221; 1 Bishop's Crim. Law, §§ 992, 993. This cardinal rule has been clearly and definitely settled in England, and has never been modified by legislation there, nor in any other State in this Union, nor indeed, so far as is known, in any other country where trial by jury under the common law prevails. Maryland Ct. of Appeals. State of Maryland v. Shields. Opinion by Miller, J. (Appearing 49 Maryland Reports.)

RECENT ENGLISH DECISIONS.

AUCTIONEER -DUTY AS TO GOODS IN POSSESSIONBAILMENT. — An auctioneer has not merely the custody of goods intrusted to him for sale, but also an interest in aud possession of them, whether the sale be on the premises of the owner or in public auction room. An auctioneer having been requested by A to sell certain goods, agreed to do so at a warehouse where they were stored by A. The day before the sale he received notice that B claimed the goods, notwithstanding which he put them up for sale and returned to A those not sold. B having proved her right to the goods, held, that the auctioneer was liable for the value of the goods returned to A, as well as of those sold. Williams v. Millington (1 H. Bl. 81) followed. Chan. Div., May 1, 1880. Davis v. Artingstall. Opinion by Fry, J., 42 L. T. Rep. (N. S.) 507.

CRIMINAL LAW - INDECENT ASSAULT ON CHILD.

On the trial of an indictment for an indecent assault upon a little girl only seven years of age, the child was examined as a witness. The prisoner's counsel proposed to address the jury on the consent of the child to the assault. The chairman refused to allow him to do so, ruling that a child of seven years old might submit, but could not give consent to the assault. The prisoner was convicted. Held, that the conviction must be quashed. Following Reg. v. Read (1 Den. C. Cas. 377; 3 Cox's C. Cas. 266). Cr. Cas. Res., May 1, 1880. Regina v. Roadley. [Note.-In Reg. v. Read the jury returned a verdict of "Guilty; the child being an assenting party, but that from her tender years she did not know what she was about." An obviously imperfect verdict. See Reg. v. Lock, L. Rep. C. Cas. R. 10; 12 Cox's C. Cas. 244.] 42 L. T. Rep. (N. S.) 515. DEED- -FROM COMMITTEE OF LUNATIC-EXECUTION. - A deed to which a lunatic is expressed to be a party

THE ALBANY LAW JOURNAL.

by his committees is sufficiently executed by the committees merely affixing seals and signing their own names. Ct. of Appeal, April 8, 1880. Lawrie v. Lees. Opinions by James and Bramwell, L. JJ., 42 L. T. Rep. (N. S.) 485.

WARRANTY ON SALE OF HORSE AT AUCTION.— Where, at a sale by auction of a horse warranted a good worker, one of the conditions of sale was that any horse not answering a warranty must be returned by five o'clock on the day after the sale, to be tried by a competent person appointed by the proprietors of the repository where the sale took place, whose decision should be final, held, that no action could, in the absence of fraud, be brought by the purchaser for breach of warranty, the horse not having been returned on the day after sale. Ct. of Appeal, Feb. 26, 1880. Hinchcliffe v. Barwick. Opinions by Bramwell, Baggallay and Thesiger, L. JJ., 42 L. T. Rep. (N. S.) 492.

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NEW BOOKS AND NEW EDITIONS.

39TH MICHIGAN REPORTS.

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of the word "annually" to the interest clause of a note payable in less than two years is not a material alteration, as it does not require the payment of interest at the end of the year. Johnston v. Kimball Township, p. 187.-A surety is not bound by an official bond not signed by a principal named therein, but delivered without the surety's knowledge or consent, and the burden of proving such consent is on the plaintiff. To the same effect is Hall v. Parker, p. 287. Faulks v.

People, p. 200.- On a prosecution for selling intoxicating liquor to a minor, it is a good defense to show that the seller reasonably believed him of age. To same effect, Farrell v. State, 32 Ohio St. 456; S. C., 30 Am. Rep. 614; and see note, p. 617. Brown v. Barnes, p. 211. In an action of slander, the pecuniary standing of the defendant may be shown to indicate the influence of his speech, but not in itself to enhance damages. People v. Cook, p. 236.-Homicide is not justified by the defendant's belief that the deceased had administered drugs to the defendant's sister in the unaccomplished endeavor to effect her seduction. Long v. Battle Creek, p. 323.- An oral proposition by a citizen to a city council, that if the city would build one-half of a bridge across a certain river, he would IIS volume contains decisions from June 11th to build the other half, or if the city would build the November 22, 1878, thus closing up the gap left by who he would pay for half, is binding on him if the the reporter, whose last volume is the 41st The vol- city buils the bridge. Gregory v. Wendell, p. 337.—An ume contains 884 pages, is reported by Henry A. agreement for future delivery of stocks, where there Chaney, and is published by W. S. George & Co., of is no intention of delivering, but only of settling the Lansing. It is rich in interest. We briefly note the difference between the agreed and the market price, is following decisions: Rindskopf v. De Ruyter, p. 1.—An invalid, and "margins cannot be recovered back. oral order, in Michigan, to the agent of a Wisconsin Woods v. Ayres, p. 345.- Assumpsit cannot be based firm, for liquors to an amount exceeding fifty dollars, on a spontaneous and unasked service, rendered subject to acceptance or rejection on arrival in Mich- through kindness or to be more probably accounted igan, followed by delivery to a carrier in Wisconsin, for than by the expectation of payment. Foster v. does not constitute a binding contract under the Wise Sc Schipps, p. 376.—A publication in a newspaper of a consin statute of frauds, and is void under the Michfalse statement that a city physician, who is appointed igan prohibitory law. This in harmony with Hausman v. Nye, 62 Ind. 485; S. C., 30 Am. Rep. 199; Keiwert v. Meyer, 62 Ind. 587; S. C, 30 Am. Rep. 206. People v. Bringard, p. 22. —It is embezzlement for a town treasurer to appropriate trust funds to private purposes and refuse to account for them, although he is not bound by law to pay over the identical money received. McFarlane v. Clark, p. 44.A probate judge named as legatee may lawfully make the orders of hearing and notice for proof of the will. Brockway v. Innes, p. 47.- An assistant chief engineer of a railroad company is not a "laborer" within the meaning of provisions rendering the stockholders of corporations liable for labor debts. The same is held of a contractor for building the road-bed. Peck v. Miller, p. 594. See Stryker v. Cassidy, 76 N. Y. 50; also 21 Alb. L. J. 405. Gibson v. Cranage, p. 49.— A contract for a portrait to be "satisfactory" to the customer, gives him the option of refusing it at his pleasure. To the same effect, Zaleski v. Clark, 44 Conn. 218; S. C., 26 Am. Rep. 446; also 21 Alb. L. J. 465. Wheeler v. Constantine, p. 62.- A note valid in Michigan is there presumed valid in Indiana; and if an Indiana woman pleads her disqualification to make a note given by her for goods purchased by her in Michigan, she must support it by proof of the Indiana law. Bullock v. Taylor, p. 137.- A provision in a note for an attorney fee in case of proceedings to collect is void. Liddle v. Needham, p. 147.- An oral agreement by A to B for land to be deeded by him to C is void, although B deeds the land accordingly. Keer v. Kingsbury, p. 150.- Erections made by a lessee on the leased property do not come within a subsequent mortgage of the premises, although the lessee neglects to remove them during the term and accepts a renewal of the lease from a new landlord. Bay County v. Bradley, p. 163. -A county cannot maintain ejectment to remove obstructions from land dedicated as a street, but held adversely. Leonurd v. Phillips, p. 182. — The addition

by the common council and not publicly elected, has caused the death a patient by malpractice, is not privileged, and is libellous. Mastus v. Houck, p. 431.— One party to a building contract cannot be compelled to accept work not performed according to the specifications, and to rely on recoupment for his indemnity. Campan v. Langley, p. 451.-A statute permitting the public sale by a public officer of animals found running at large in a public highway, and directing the payment of the proceeds, less the expenses of sale and keeping, to the owner, with a certain time for redemption, is constitutional. Kelly v. Reynolds, p. 464.- A will provided, "To my wife the provision made for her by the statutes of this State I deem sufficient;" and after giving sundry legacies, concluded by giving to the testator's son, "all the residue of my estate after paying the above bequests, legacies, and my debts and the expenses of settling my estate;" held, that the wife took such a share as if the testator had died intestate. School District v. Gage, p. 484. A school district cannot be garnished for teachers' wages, the statute prohibiting the garnishment of municipal corporations. Teachers' wages are not subject to deductions for recognized holidays. Lake Superior Iron Co. v. Erickson, p. 492. Where a mining company contracts for the removal of ore, but assumes the duty of making arrangements to protect the workmen, it is liable to the contractor's employees for injury in consequence of neglect of that duty. Cordes v. Miller, p. 581. A lessee of wooden building, covenanting to rebuild in case of fire, is released by the enactment of a valid ordinance prohibiting the erection of wooden buildings. Campau v. North, p. 606.- Under a statute prohibiting the disclosure by a physician of information acquired in professional attendance and necessary to enable him to prescribe, in an action for damages for a personal injury by defendant's violence, a physician is not precluded from divulging the plaintiff's admission to him that the

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