being non-compliance by the factors with his orders to sell-the alleged order being, however, but a verbal one, and a conflict of testimony existing as to whether such an order was given at all, an instruction was rightly refused to the consignor which rested the liability of the factor on the bare fact of an order to sell, and which made no allusion either to the advances or to the fact that three weeks after the alleged order was given, the factors wrote to their consignor a letter informing him that they had not sold his goods, as the market had been dull and on the decline every day since he left them; that the goods would not then sell for more than so much (a decline on former prices); that they would be compelled to sell unless he made other shipments, or remitted cash as a margin, the money market being tight; that they had held on thus far to meet his views, but that the declining tendency of the market induced them to write, and asking to hear from him on his receipt of their letter, which letter the consignor received, but purposely declined to answer: Feild v. Farrington, 10 or 11 Wall.

When factors have made large advances or incurred expense on account of the consignment, the principal cannot by any subsequent orders control their right to sell at such a time, as in the exercise of a sound discretion, and in accordance with the usage of trade, they may deem best to secure indemnity to themselves, and to promote the interest of the consignor; they acting of course in good faith and with reasonable skill: Id.

The effect of a refusal by the consignor to reply to such a letter as that mentioned in the paragraph next but one above, within a reasonable time after he received it, was to raise a presumption that he approved of what his factors had done, so far as their letter informed him, and in the absence of anything to rebut that presumption, he was to be regarded as having consented to whatever delay had occurred in effecting a sale, even though the delay was contrary to his directions: Id.

The receipt and non-acknowledgment of such a letter would not, however, relieve the factors from a continuing obligation to sell within a reasonable time after sending it off, all the circumstances of the case being considered, and at the best prices that could be obtained: Id.

Hence where, after mailing such a letter, the factors did not sell for nearly ten months afterwards, the market declining all the while: Held, though the letter was never acknowledged, that it was a question which should have been submitted to the jury whether the long delay to sell in view of a market falling all the while, was in the exercise of sound discretion, good faith, and reasonable diligence; and that an instruction that the consignors should bear all losses sustained after a refusal to answer the factor's letter, without excepting such portion of the loss as might have been caused by the factor's fault, was error: Id.

Cannot make profit for himself out of his Principal's Property.-The managing agent of a steamboat employed to secure freights and make contracts, cannot speculate for his own private advantage with the business intrusted to him. If he make a contract in his own name for freight which is carried out by the boat, he will be compelled to account for the sums received by him to his co-owners, notwithstanding he may have owned the larger share of the boat: Rea et al. v. Copelin, 46 or 47 Mo.

ASSUMPSIT.

Contract-Member of Family-Liability for Board.—Where a man lives in the family of his son-in-law, such marriage connection rebuts any presumption of an implied promise of the father-in-law to pay for board which would exist in the absence of such a relation between the parties: Daubenspeck, Executor, v. Powers, 32 Ind.

ATTACHMENT.

Whether an action in rem or in personam-Must be a Levy on Property as Foundation of Jurisdiction-Regularity of Proceedings.-Proceedings to enforce a debt or demand by attachment of the defendant's property partake of the character of suits both in rem and in personam: Cooper v. Reynolds, 10 or 11 Wall.

If there is a personal service of the process on the defendant or personal appearance by him, the case is mainly a personal action; but if in the absence of either of these the property is attached and sold, it becomes essentially a proceeding in rem and is governed by principles applicable to that class of actions: Id.

In this class of cases the court cannot proceed without a levy on the property of the defendant; and the judgment binds nothing but the property attached: Id.

The seizure of the property of the defendant under the proper process of the court, is, therefore, the foundation of the court's jurisdiction, and defective or irregular affidavits and publication of notice, though they might reverse a judgment in such case for error in departing from the directions of the statute, do not render such a judgment void: Id.

Where there is a valid writ and levy, a judgment of the court, an order of sale, and a sale and sheriff's deed, the proceeding cannot be held void when introduced collaterally in another suit: Id.

BOND.

Reforming. A bond will not be reformed by striking out portions alleged to be erroneous, where there is no evidence to show that it was not drawn in exact conformity to the agreement previously made between the parties, but on the contrary the complaint alleges that the bond was drawn according to such agreement, and it is clear that both obligor and obligee understood that the bond should contain the provisions sought to be stricken out: Garner v. Bird et al., Ex'rs., 57 Barb.

The fact that the obligor employed a lawyer, who gave him bad advice, and thereby deceived him as to his rights, and induced him to execute the bond, furnishes no authority to the court to alter the contract of the parties: Id.

BOUNDARY.

Deed referring to Map or Plat-Evidence dehors the Deed to show the Line.-A deed which refers to a plat of the land for one of the lines of the boundary, may be read in evidence to the jury without the production of the plat, subject to an identification of such line by competent evidence during the progress of the trial: Dreery v. Cray, 10 Wall.

A deed which refers to such a plat for one line, or which authorizes the line to be run by a certain person according to such a plat, is not void for uncertainty on its face: Id.

In case of such a deed made a great many years ago, though the plat is not produced, it is competent to show by other proof, written or parol, or both, that such a line existed and where it was located: Id.

This may be shown by long possession on each side of the line, evidenced by a fence, by the parol declarations of the parties holding under the deed on each side of the line, or by any facts which clearly establish the existence of such a line and its location: Id.

Hearsay Evidence-Ancient Maps and Surveys.-In trespass q. c. f., not guilty" puts the plaintiff's possession in issue, which the defendant may disprove by proving his own ancient and continued possession of the locus in quo: McCausland v. Fleming, 63 Penna.

Pedigree and boundary are the excepted cases wherein reputation and nearsay of deceased persons are received in evidence: Id.

Ancient maps and surveys are evidence to elucidate and ascertain boundary and fix monuments: Id.

No drafts when offered for title will be received except they bear an official character; and in this they differ from those offered to show boundary: Id.

A party claimed to what was known as the "Taylor line." On the trial he offered a draft dated forty-five years previously, proved to have been in the possession of a former owner, who claimed by it thirty-five years before, and proved also to be the handwriting of Taylor, who was a surveyor, and was dead. Held, to be evidence of boundary: Id.

BROKER. See Evidence.

COMMON CARRIER.

Negligence-Act of God or the Public Enemy.-When a common carrier shows that a loss was by some vis major as by flood, he is excused without proving affirmatively that he was guilty of no negligence: Railroad Co. v. Reeves, 10 Wall.

The proof of such negligence, if the negligence is asserted to exist, rests on the other party: Id.

In case of a loss of which the proximate cause is the act of God or the public enemy, the common carrier is excused, though his own negligence or laches may have contributed as a remote cause: Id.

The maxim causa proxima non remota spectatur applies to such cases as to other contracts and transactions, and ordinary diligence is all that is required of the carrier to avoid or remedy the effects of the overpowering cause: Id.

The mere promise of a carrier, made without additional consideration, to forward freight already on the route by an earlier train than usual, is not evidence from which a jury may infer a special contract to do so: Id.

Torboats.-Steam towboats or tugs are not common carriers as regards the vessels they have in tow and their cargoes. The commonlaw rule as to common carriers applied to goods only, and not to vessels: Brown v. Clegg, 63 Penna.

CONFEDERATE STATES. See International Law.

CONFLICT OF LAWS. See Descent.

Limitations-Lex Fori.-The statute of the state where the suit is brought is alone applicable to a cause of action accruing in another state: Carson v. Hunter, 46 or 47 Mo.

CONTRACT.

Covenant to Forbear-Breach of.-A covenant or agreement to forbear to sue on an obligation for a limited time after maturity of such obligation, though founded on a sufficient consideration, cannot be pleaded as a release, or in bar of an action on such obligation brought within the time limited. In such case, the defendant sued is left to his action for a breach of the covenant or agreement: Irons v. Woodfill, 32 Ind.

Illegal Consideration.-A promissory note, given for the purchase of slaves taken from Missouri and sold in Arkansas after the date of the President's proclamation of August 18th 1861, forbidding commercial intercourse with the insurgent states, is founded upon an illegal consideration and is void: Carson v. Hunter, 46 or 47 Mo.

Dependent Contracts.—Where a note is given in consideration of the purchase which is to be conveyed upon payment of the money, the payee cannot recover upon the note without tender of a conveyance: Dietrich v. Franz, 46 or 47 Mo.

CORPORATION.

Promissory Note-Signature.-The secretary of the "Neal Manufacturing Co., Madison, Ind.," gave a promissory note, in which were the words "we promise," &c., signed in his own name, with "Sec'y" affixed thereto, and bearing the seal of said corporation. Held, that he was not personally liable on the note. Means v. Swormstedt, 32 Ind.

CRIMINAL LAW.

Ohio River-Boundary of the State-Jurisdiction.-A county of this state lying along the Ohio river is bounded, on the side adjoining that river, by low-water mark; and the boundary of Kentucky opposite to such county is low-water mark on the Indiana side of the river. The proper courts of such county have concurrent jurisdiction with the courts of Kentucky over crimes committed on said river opposite to such county: Carlisle v. The State, 32 Ind.

Venue-Variance.-A variance between the allegation in an indictment as to the place where the offence was committed and the proof on the trial, the place not being a part of the description of the offence, and both places being within the jurisdiction of the court, is not material: Id.

An indictment for murder, in the Circuit Court of the county of Spencer, charged the offence to have been committed "at and in the said county of Spencer." The evidence tended to prove that the crime was committed on the Ohio river opposite to said county, below lowwater mark. Held, that the variance was immaterial: Id.

DEBT. See Master and Servant.

DEBTOR AND CREDITOR. See Evidence; Husband and Wife. Fraudulent Assignment-Set-off.—If an insolvent debtor take notes payable to his wife, the consideration moving from him, with intent to hinder and delay his creditors, the notes will be treated as an assignment of the debt to the wife and fraudulent as to creditors. If the payees of the note when sued by the wife have a claim against the husband which would be a competent set-off at law, they may plead this debt as an equitable set-off against the wife, the husband being insolvent: Reppy v. Reppy, 46 or 47 Mo.

Fraudulent Conversion of Debtor's Property.-Although one may have intended to defraud the creditors of another by taking and converting his property into cash, such intention will be rendered harmless by his delivering the proceeds of the sale to the debtor, or his wife as authorized agent: Cramer, Receiver, &c., v. Blood, 57 Barb.

And if he subsequently receives a portion of such proceeds, with like intent, from the debtor's agent, for the use of the debtor and his wife, and to be handed over to them or for their use as they may want, such intent will be rendered harmless by his paying over the money to creditors, or to the debtor or his wife by his directions: Id.

Rights of Subsequent Judgment Creditors.-A settlement between such person and the debtor, and payment of the amount due for such property or its proceeds, will discharge the former from any liability to creditors of the owner who subsequently obtain judgments against the latter: Id.

Creditors at Large-Fraudulent Transfers.-A creditor at large is not in a situation to question the bona fides of a transfer of the debtor's property; nor the right of a third person to take such property; nor his right to retain the proceeds of its sale: Id.

The statute in relation to conveyances of a debtor's property with the intent to delay, hinder, and defraud his creditors, has no application to a fraudulent transfer of such property by any one except the debtor; and no one can avail himself of the statute except a creditor who is hindered, delayed, or defrauded thereby. A creditor at large cannot be hindered by such transfer, within the purview of the statute: Id.

DEED. See Boundary.

DESCENT.

Personal Status.-When a canon of descent makes the right of inheritance to depend on personal status, such status must be ascertained from the lex domicilii; but if a statute of descent directs the inheritance of land without regard to personal status, then the law of another state as to such status can have no influence in determining upon whom the descent is cast: Harvey v. Ball, 32 Ind.

Section 123 of chapter 28, Revised Statutes 1843, which provided, that "if any man shall marry a woman who has, previous to the marriage, borne an illegitimate child, and after marriage shall acknowledge such child as his own, such child shall be deemed legitimate to all

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