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driver, it is laid down by some English judges that the master is liable if the servant has only made a slight detour from the road, but not if he has branched off on an independent journey of his own. But it is submitted that Whatman v. Pearson, L. R. 3 C. P. 422 is the better law; for there the court seem to have proceeded on the ground that to guide the horses in a particular direction was only one of a coachman's bundle of duties, and as long as he endeavors to manage the horses in general obedience to the master's orders and for the master's sake, the latter was responsible for faults of management, even though the coachman had deviated widely from the proper line of his journey. Perhaps the test of the master's liability would be whether he would fail in an action against the servant for conversion, on the ground that the constructive possession was in himself.
But a more remarkable instance of an attempt at a general rule by which to determine whether authority may be implied, is the case of Poulton v. The Railroad L. R., 2 Q. B. 534, followed in Bolingbroke v. The Local Board of Swindon, L. R. 9 C. P. 575. In the first case a railroad company was sued for wrongfully arresting the plaintiff, who had paid his own fare but not that of his horse. The statute only gave power to detain a person on non-payment of his own fare. The station master misapplied the statute and detained the passenger for non-payment of the horse's fare, and the court held the company not liable inasmuch as in every view of the facts assumed to be true by the agent, the company themselves would have had no power to make the arrest, and therefore could not be held to have given any implied authority to their agent. One hardly dares to state abstractly the doctrine of this case; but judging from the remarks and the opinion of Blackburn, J., it amounts to this: that though a master cannot limit his responsibility by particular directions as to means and method, yet, when the means is one that on the facts assumed as true by the servant, is necessarily and always ultra vires, or illegal; in other words, when the servant makes a mistake of law, instead of fact, no authority from the master can be held to be implied. But if this be the theory upon which the court proceeded, the effect will be to overrule a great number of cases whose authority has never been doubted. In the cases of “ polting" an omnibus by a driver on a rival line, of which there have been several in the English courts (Limpas v. Gen. Oinnibus Co., 1 H. & C. 526; Green v, McNamara, 1 L. T. N. S. 9.) the company, if present, would have had no right thus to blockade the rival omnibus, and yet they are liable, beyond question, if their agents do so. In the numerous cases where common carriers have been held re.. sponsible when their servants have ejected an offending passenger with unnecessary violence, it is the excess of force which is the ground of the action, and it might be said, as was remarked in Poulton v. The Railroad, that “ an authority cannot be implied to have been given to a servant to do an act, which, if his master were on the spot, the master would not be justified in doing,
on the assumption of a particular state of facts." The companies, if present, in propria persona, if guilty of excess, would have done an illegal act and one beyond their powers, but there has never been a doubt of their liability.
The error of the court, if error there be (and one needs to be cautious in criticising a decision of Lord Blackburn) would seem to have been in considering simply whether the arrest, under the actual circumstances, might by implication, be included among the objects for which the stationmaster was hired (see the above rule) rather than looking at it as a means, illegitimate but not unnatural, chosen by the servant in the exercise of his discretion, to carry out what was without doubt one of the purposes of the hiring, i.e., the collection of fares. Of course nothing that was ultra vires of the corporation could be said to be implied among the objects of the hiring, without some foundation for it in the express commands; but when we come to apply the rule laid down by the Queen's Bench as a test whether an authority for the means used by the servant in the prosecution of the master's purposes, may be implied so as to charge the latter, we are met by the fact, as pointed out somewhere by Chief Baron Kelly, that if a mere trespass or conversion is vltra vires, a corporation could never be made liaable in tort.
A directly contrary decision has been made in Massachusetts in the parallel case of Ramsden v. B. & A. R. R., 104 Mass. 117, in which the corporation were held liable for an assault of a conductor, which consisted of seizing the parasol of a passenger to enforce payment of fare, when he had by law only power to eject the passenger or to detain baggage. The case in the Queen's Bench is also in conflict with a class of cases, found mostly in the law of carriers, the principle of which was first binted at by Judge Story and was laid down in Goddard v. Grand Trunk R. R. 57 Me. 213, as follows: “ The carrier's obligation is to carry his passenger safely and properly and to treat him respectfully, and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which he executes the trust." To the same effect are Bryant v. Rich, 106 Mass.; Railroad v. Finney, 10 Wis. 388. This dictum has not been recognized in England and has scarcely found its way into the text-books; but seems destined in this country to a full development. Stated generally, it is that when the act of the servant is a breach of the master's contract, the master is liable. So far as appears it has never as yet been applied to any cases but those of common carriers, where usually a breach of contract is equally a tort. Cambridge, Mass.
C. H. B.
An English magazine has discovered that the practice of giving detailed descriptions of the personal appearance and social habits of criminals, which are now acknowledged features of newspaper reporting, has a tendency to invest the prisoner with something of a meretricious glory, which ought to be condemned by all properly-minded people.
NOTES OF RECENT DECISIONS.
creditor “having reasonable cause to believe such a person is insolvent” void, does not make them void for a mere suspicion of the debtor's insolvency, but requires for that purpose that the creditor should have some reasonable cause to believe him insolvent. He must have a knowledge of some fact calculated to produce such a belief in the mind of an ordinary intelligent man.-Grant v. First National Bank of Monmouth. Appeal from the Circuit Court of the United States for the Nortbern District of Mlinois. Opinion by Mr. Justice BRADLEY. Reported in full, 17 Alþ. L. J. 367.
EQUITABLE MORTGAGE-POWER-NOTICE OF SALE -TRUSTEE.-1. A conveyance of land to secure the payment of a sum of money with power of sale, whether made to the creditor or a third person, is in equity a mortgage, if there is left a right to redeem on payment of the debt thereby secured. 2. A sale under the power in such an instrument must be made in strict conformity to the directions therein pre. scribed, or to such as may be prescribed by statute, or the sale will be absolutely void. 3. A sale made on six weeks' notice, though followed by conveyance, when the mortgage and the statute of the state require twelve weeks, is void, and does not divest the equity of the party who had the right of redemption. 4. A person holding the strict legal title, with no other right than a lien for a given sum, who sells the land to inno. cent purchasers, must account to the holder of the equity for all he receives beyond his lien.-Shillaber v. Robinson. Appeal from the Circuit Court of the United States, for the Eastern District of New York. Opinion by Mr. Justice MILLER. Decree reversed.
LIABILITY OF MUNICIPAL CORPORATION FOR INJURY BY SURFACE WATER FROM STREETS.— Wakefield v. Newell. Supreme Court of Rhode Island, 17 Alb. L. J. 362. Opinion by DURFEE, J.-1. No action lies against a municipal corporation for allowing the ordinary and natural flow of surface water to escape from a highway on to adjacent land. Nor will an action lie for the results of such usual changes of grade as must be presumed to have been contemplated and paid for at the lay out of the highway. 2. A municipal corporation has the same power over its highways in respect to surface water as an individual has over his land. Inman y. Tripp, 11 R. I. 520, explained and affirmed.
FIRE INSURANCE ESTOPPEL.–Bennett v. Maryland Fire Ins. Co. United States Circuit Court, Northern District of New York. 17 Alb. L. J. 366. Opinion by WALLACE, J.-1. Plaintiff, through an insurance broker, procured from the agent of a fire insurance company a policy insuring his building in such company. Plaintiff paid the broker the amount of premium, but the agent gave the broker credit for such premium. The company informed the agent that it would not accept the risk on plaintiff's building, but the agent said nothing to plaintiff. Thereafter plaintiff, desiring to make some alterations in the building, which would increase the risk, applied to the agent to indorse on the policies permission to do so. The agent said it would be necessary to apply to the company and he took plaintiff's policy to send to the company for such permission. The agent sent the policy, informing the company of the facts. The company kept the policy to cancel it, but gave plaintiff no notice to that effect. Subsequently the building was burned. In an action on the policy: Held, that the company was estopped from claiming that the policy was not in force. The policy required that in case of loss, plaintiff should give notice forthwith in writing to the company. The plaintiff told the agent of the loss, who wrote to the company, which claimed not to be liable on the ground that the policy never had been in force. Held, that the company could not thereafter set up informality in giving notice, etc., of the loss, 2. A desense that plaintiff had, in violation of the terms of the policy, increased the risk, held, not available unless set up in the answer.
VALIDITY OF JUDGMENT OF FEDERAL COURT“ESTATE OR INTEREST IN LAND"-MORTGAGE.Terrell v. Warren. Supreme Court of Minnesota. Ch. L. N. 262. Opinion by CORNELL, J.-1. A judgment rendered by the Circuit Court of the United States for the District of Minnesota, occupies the same footing as a domestic judgment of a superior court of record of this state. Its validity can not be impeached in a collateral proceeding by parol proof, showing that no jurisdiction was ever in fact acquired over the person of the defendant therein. Jurisdiction is conclusively presumed unless the contrary affirmatively appears upon the face of the record. 2. A mortgage lien upon real property is not an “estate or interest in land," within the meaning of Sec. 1, Chap. 75 Gen. Stats. Bidwell v. Webb, 10 Minn. 59, and Brackett v. Gilmore, 15 Minn. 245, followed.
SAVINGS BANKS - DIVIDENDS TO DEPOSITORS, CAPITAL-SURETY BOND.-1. A corporation created to receive deposits for the use and benefit of the de. positors, to be invested and the income or interest thereon to be divided among the depositors or their legal representatives, and to which the corporators contribute nothing, has no shareholders, and the prof. its must be paid to the depositors. 2. A bond to se. cure the depositors can not be considered as capital of the corporation. “We think the complainants have mistaken the nature of the corporation. It is not a commercial partnership nor is it an artificial being, the members of which bave property interests in it. Nor is it strictly eleemosynary. Its purpose is rather to furnish a safe depositary for the money of those members of the community disposed to entrust their property to its keeping. It is somewhat of the nature of such corporations as church wardens for the conservation of the parish, the college of surgeons for the promotion of medical science or the 80ciety of antiquaries for the advancement of the study of antiquities. Its purpose is a public advantage without any interest in its members. The title of the act incorporating it indicates its pur. pose, namely, an act to incorporate a national sav. ings bank, and the only powers given to it are those we have mentioned, powers necessary to carry out the only avowed purpose, which was to enable it to receive deposits for the use and benefit of depositors, dividing the income or interest of all deposits among its depositors or their legal representatives. It is like many other savings institutions incorporated in En. gland and in this country during the last sixty years, intended only for provident investment, in which the management and supervision are entirely out of the hands of the parties whose money is at stake, and which are quasi benevolent and most useful because they hold out no encouragement to speculative dealing or commercial trading. This was the original idea of savings banks. Scratchley's Treatise on Savings Banks, passim; Grant's Law of Bankers, 571, where, in defin
DIGEST OF DECISIONS OF SUPREME
COURT OF THE UNITED STATES.
October Term, 1877.
KNOWLEDGE OF INSOLVENCY UNDER BANKRUPT ACT.-The provision in the Bankrupt Law making a payment or security received from the bankrupt by a
lends its process to enforce it during coverture, because it can not otherwise be enforced; but the occasion ceasing, the extraordinary remedy can not be had. 2. The contract of a married woman creates no lien upon her separate estate; but equity considers the married woman, by reason of her separate property, as a feme sole, and resorts to that property to discharge her obligations, whether written or not. Reversed and remanded. Opinion by HAYDEN, J.-Hooten v. Ran
ing savings banks, it is said the bank derives no benefit from any deposits or the produce thereof. Such are savings banks in England, under the statutes of Geo. 4, c, 92, § 2, and 26 & 27 Victoria, c. 87. Very many such exist in this country. Among the earliest are some in Massachusetts, organized under a general law passed in 1834, which contained a provision like the one in the act of congress, that the income or profit of all deposits shall be divided among the depositors, with just deduction of reasonable expenses. They exist also in New York, Pennsylvania, Maine, Connecticut, and other states. Indeed, until recently, the primary idea of a saving 8 bank has been that it is an institution in the hands of disinterested persons, the profits of which, after de. ducting the necessary expenses of conducting the business, enure wholly to the benefit of the depositors in dividends or in a reserved surplus for their greater security. Such, very plainly, is the defendant corporation in the case."-Huntington v. National Savings Bank. Appeal from the Supreme Court of the District of Columbia. Opinion by Mr. Justice STRONG. Decree affirmed.
MECHANIC'S LIEN-PARTIES PRACTICE.-Where the sub-contractor sues the owner for the purpose of enforcing a mechanic's lien against the property, if he does not make the original contractors parties defendant when he begins the suit, he can not bring them in after the expiration of the ninety days prescribed by law for suing on the lien. The person availing himself of the mechanic's lien law, must bring himself within its special provisions; the ninety days are not a period of repose to bar actions, but are a limit to the existence of the lien. Affirmed. Opinion by HAYDEN, J. -Fury v. Boeckler.
CORPORATION EVIDENCE OF INCORPORATION TRUST DEED - PUBLICATION OF NOTICE--1. In an action by a corporation growing out of a deed to which the corporation and the defendants were parties, the deed reciting the incorporation of plaintiff being in evidence, no testimony of the actuul incorporation of plaintiff is necessary. 2. Where the terms of a deed of trust require thirty days advertisement of fo: eclosure, and it appeared that the first publication was on the 22d of September, and the last on 22d of October, that the sale was on 23d of October, and that publication was omitted on three days between those dates, and these omissions are such as might have occurred owing to the absence of publication on Sunday, the notice will be treated as continuous; and, as more than thirty days elapsed between the first publication and the sale, the notice is good. The appellate court will not curiously inquire to see whether the omitted days were actually Sundays, in order to avoid the foreclosure and reverse the judginent. Affirmed. Opinion by HAYDEN, J.-German Bank v. Stumpf.
MARRIED WOMAN CONTRACTS OF, AT LAW AND IN EQUITY.-1. Where a married woman, together with her husband, executes a promissory note and af. terwards becomes discovert, a court of equity has no jurisdiction, after the deter.. ination of her coverture, of a proceeding to subject her separate estate to the payment of the debt. The remedy is at law. The contract of a married woman, though it can not be enforced at law during her coverture, is not a mere nullity; equity
UNDER SEC, 536 OF THE IOWA CODE, providing that a city marshal “shall bave in the discharge of his duties like powers, be subject to like responsibilities, and shall receive the same fees as sheriffs and constables in similar cases,” a county is not liable for bis services. Reversed. Opinion by ADAMS, J.-Christ v. Polk County.
EXEMPTION-PHOTOGRAPH GALLERY.—A building used as a photograph gallery, although personal property and movable: Held, not exempt from execution under the statute exempting “ tools of a mechanic," in the absence of evidence that any other building would not as well answer the purpose for which it was used. Opinion by SEEVERS, J.-Holden v. Stranahan.
CRIMINAL LAW-" COMPOUND OFFENSE ” ix IOWA CODE.-Burglary and larceny when committed in connection are not a compound offense,” within section 4300 of the Iowa evde, which provides that “the indictment must charge but one offense, provided that in case of compound offenses where in the same transaction more than one offense has been committed, the indictment may charge the several offenses, and the defendant may be convicted of any offense included therein.” 29 Cal. 625; 24 Conn., 65. On rebearing. Judgment reversed. Opinion by ADAMS, J.--State v. Ridley, et al.
INFANCY NEXT FRIEND LIABILITY FOR Costs. -1. At common law, the next friend of an infant plaintiff is liable for the costs of the suit. Schouler's Dom. Rel. 594; 1 Am. Lead. Cas., 325, 329; Bacon's Abridgment, Vol. 5, 153. 2. The Iowa code of 1851 and 1869 provided that the next friend should be responsible for costs. In the revision of 1860 and the preseat code this provision is omitted. Held, that as that provision was merely declaratory of the common law, it may well he said that it was omitted because the next friend is liable without any statutory enactment. Affirmed. Opinion by ROTHROCK, C. J.-Vance v. Fall.
PAYMENT-DEBT TO PARTNERSHIP-PAYMENT OF PARTNER'S INDIVIDUAL DEBT.-Defendant bought cattle of the plaintitf, having reason to suppose that they were owned by plaintiff and another, as partners, while they were in fact the property of plaintiff. At the request of the other partner, defendant paid a note signed by both partners, but which, as he would have learned by reasonable inquiry, was signed by plaintiff as surety. In an action to recover the price of the cattle: Held, that while payment to the supposed partner would have discharged the debt, payment of his individual debt would do so only to the extent of his interest in the cattle, and, he having no interest, plaintiff was entitled to recover their full value. Opinion by ROTHROCK, C, J.-Essiz v. Hays.
CONFESSIONS — INSTRUCTION8.-1. The following instruction was refused by the court: “Confessions, alleged to have been made by the prisoner in the presence of the prosecutor alone, or in the presence of the prosecutor and one or more of his select friends, are the weakest of all testimony deemed competent in law, and should be received and considered as such; and confessions made in the presence of any one witness, alone, are deemed in law as weak and unsatisfactory, unless corroborated by other testimony.” Held, no error. While a confession should be examined with care, if made voluntarily, it should not be rejected as weak or unsatisfactory because made in the presence of the prosecutor and his friends. 2. The condition of the defendant's mind at the time he made the confession should be considered only for the purpose of determining whether he had at the time sufficient mental power and capacity to know what he was saying. Opinion by ROTHROCK, C. J.-State v. Broun.
ATTORNEY AND CLIENT.-1. Action for legal services; one item being a charge of $500 for services in a divorce suit. Plaintiff testified that while the case was pending he desired, on account of«complications in the case that were compromising him in his profession, and told the defendant that he would withdraw unless be had a contract for more than an ordinary fee. Held, error not to allow the defendant in cross-examination to ask the plaintiff what these complications were. Where an attorney sets up an express agreement to pay such a fee exacted of a client when the work was two-thirds done, under a threat of withdrawmg, nothing but the best reasons will be sutticient to uphold the agreement. 2. By “ more than an ordinary fee” is meant more than the reasonable value of the services estimated according to the custom of charging for like services in the court in which the serviees were rendered. Reversed. Opinion by ADAMS, J.--Bilton v. Daily.
commit the act, there, in the absence of any circumstances of excuse, justification or palliation required by law as sutficient, it is murder in the first degree,” is erroneous, and the judgment must be reversed, even though another and proper instruction was given on the same point. State v. Mitchell, 64 Mo. 191. Opinion by NAPTOx, J.-State v. Deering.
TROVER AND CONVERSION.- The plaintiff averred that defendant took and converted to his own use a cow belonging to plaintiff. Proof tending to show that plaintiff had the cow with other cattle in a stock-pen on the railroad, and that after the cattle were shipped the cow was never seen any more in that vicinity. Instruction that “plaintiff must establish, by prepond. erance of testimony, that plaintiff took and sbipped the cow, and converted her to his own use." Held, that the instruction was erroneous. The trespass was of itself a conversion sufficient to maintain the action. 9 Mo. 230; 5 inn. 490; 15 M. & W. 448, Hillard on Torts, 96. Proof that the defendant had the cow in his stock-pens makes a case prima facie. Opinion by NAPTON, J.-Ireland v. Horseman.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF INDIANA.
November Term, 1877.
Hon. HORACE BIDDLE, Chief Justice.
WILLIAM E. NIBLACK,
ARBITRATION AND AWARD.-Where parties agree to leave a controversy to be arbitrated by others, and an award is made, to which both assent, and one of them performs his part thereof, being the surrender of a promissory note of the other, the other, having assented and accepted the performance, must comply with his own part of the award. The statute has nothing to do with the case. Opinion by NAPTON, J.-. Phelphs v. Couch.
CRIMINAL PRACTICE.-Where on appeal in a criminal case a diminution of record had been suggested, supported by affidavit, as to defects and incorrect statements in the record, and a certiorari had been awarded, upon the return of which it appeared that the records of the court below, in relation to the case, had been destroyed, so that no correct record could be made, on motion of the defendant the judgment is reversed and the cause remanded. The defendant is entitled to have his case reviewed in this court. Opinion by NAPTON, J.-State v. Reed.
MURDER-INSTRUCTIONS.-An instruction that “the distinction between murder in the first degree and murder in the second degree lies in the intention with which the act of killing was done. Where a homicide has been committed, and there was an intention to
RAILROADS-NEGLIGENCE.-In this case, the plain. tiff's mare was frightened by the locomotive of the defendant, so that she ran into & bridge, became entangled among the ties, and was so injured that she died. Held, that railroad companies are not liable for frightening animals by their locomotives, even though the fright caused the animals to kill themselves. Opinoin by BIDDLE, C. J.-The B., P. & C. R. R. Co. v. Thomas.
PROMISSORY NOTE – ELECTION BY PLAINTIFFESTOPPEL.–Where it is doubtful whether a promissorv note is the note of a corporation or of the indi. viduals who signed it, the plaintiff puts a practical construction on the note by treating it as the obligation of tbe corporation. Bishop on Cont., 598; 9 Wall. 50. Whether the plaintiff, baving sued upon it as the obligation of the corporation, would be absolutely es. topped to claim that it was the note of the individuals who executed it as directors, not decided. Opinion by WORDEX, J.-Armen, et al. v. Hardin.
PROMISSORY NOTE-INDORSEMENT — PLEADINGLAW OF SISTER STATE.-1. When indorsements on a note are without date or designation of the place where made, the presumption is that they were made at the time and place of the execution of the note. 2. The common law will be presumed to prevail in a sis. ter state, the contrary not being shown. 3. The law merchant is a part of the common law and governs bills of exchange, but it did not, by the common law, apply to promissory notes. 4. To enable the courts of one state to judicially know and administer the statute law of a sister state, that law must be pleaded and proved as a fact. Opinion by PERKINS, J.-Patterson, et al. v. Carrell, et al.
STATUTE OF FRAUDS PROMISE TO PAY THE DEBT OF ANOTHER.--A contract to answer for the debt of another must not only be in writing, but must rest upon a sufficient consideration. Where the plaintiff filed his claim against the estate of a deceased person and obtained judgment thereon, and afterwards the mother of such decedent, in consideration of the receipt by her of all the personal property of the de. ceased, promised to pay plaintiff the amount of his judgment, wbich she afterwards refused to do: Held, that even if the consideration was sufficient, the promise not being in writing was within the statute of frauds. The new agreement must extinguish the orig. inaldebt; otherwise it will be regarded as collateral and within the statute. The agreement in this case did not put an end to plaintiff's claim against the decedent's estate, which he was still free to pursue. Opinion by WORDEN, J.-Langford v. Freeman.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF OHIO.
[Filed May 7, 1878.] Hon. WILLIAM WHITE, Chief Justice.
W. J. GILMORE, " GEO. W. MCILVAINE, 5 W. W. BOYNTON,
Associate Justices. " JOHN W. OKEY,
the mortgaged premises insured for the benefit of the lender, as collateral security, and the policy of iusurance, with a clause that any loss should be payable to the lender, etc., was delivered to him. Held, that after a loss, the 'ender, on presentation of the policy, with the bond showing his continued interest, would have been entitled to receive from the insurer the amount of the loss. Opinion by Lyon, J.-Charter Oak Life Ins. Cov. Smith, et al.
VARIANCE-WARRANTY, EXPRESS AND IMPLIED.1. In an action upon a promissory note, the answer merely set up as a defense a failure of consideration by a failure of the machine for which the note was given, to work as specially warranted, with a claim for damages for such breach of warranty by way of recoupment; but the question litigated, without objection on either side, was whether the contract had not been rescinded by a failure of the machine, and an offer to return it by defendant. Held, That the variance must be disregarded here. 2. The express warranty shown was that the machine was well made, of good materials, and if properly operated would do as good work, in grain or gra 8, as any other machine of its class in the market. The court charged the jury that the taking of express warranties upon other points does not exclude the warranty implied by law, that the article is reasonably fit for the use for which it is manufactured or purchased; and tbat, if the machine was so defective as to be practically useless for the purpose of reaping grain, their verdict should be for defendant, unless he had waived the benefit which the law gives a purchaser under an implied warranty. Held, that as an express warranty is broader than that implied by law, the instruction, if incorrect, could not prejudice the plaintiff's. Opinion by COLE, J.-Russell & Co. v. Loomis.
IN AN ACTION FOR LIBEL, the jury may, in estimating compensatory dumages, allow to the plaintiff reasonable counsel fees in the prosecution of his action, although there may be circumstances of mitigation not amounting to a justitication. Opinion by GILMORE, J.-Finney v. Smith.
PRACTICE -- ACTION FOR SALE OF MORTGAGED PREMISES-SUMMONS-JUDGMENT.-1. In an action for the sale of mortgaged premises and for a personal judgment, pursuant to the act of 1864 (S. & S. 575), no indorsement on the summons as to the amount or nature of the claim is necessary, the case being governed in that respect by section 57 of the civil code; but where an indorsement was made which truly indicated the amount for which judgment was afterwards taken, and contained the further statement that the plaintiff sought " equity relief," a personal judgment and or. der of sale, rendered on default, will not be reversed. 2. Where in such action judgment was rendered on the note secured by such mortgage, against the maker and payee as indorser who had assigned the note and mortgage to the plaintiff, and an order of sale was made, the fact that the payee had not been served with process constitutes no ground for a reversal of the judgment or order as to such maker. Opinion by OKEY, J.-Larimer v. Clemmer.
ASSUMPSIT ROR USE AND OCCUPATION.-In order to maintain assumpsit for the use and occupation of land, something in the nature of a demise must be shown, or some evidence given to establish the relation of landlord and tenant. Codman v. Jenkins, 14 Mass. 93; Boston v. Binney, 11 Pick. 1; Bancroft v. Wardwell, 13 Johns. 489; Smith v. Stewart, 6 Jobns. 46; Wood v. Wilcox, 1 Denio, 38. If the defendant was a mere licensee, or a trespasser, the action will not lie. Opinion by AMES,J.-Central Mills Co. v. Hart.
WITNESSED NOTE-STATUTE OF LIMITATIONS. An action on a witnessed promissory note, which by the statute of limitations is barred after twenty years from the date thereof, may be maintained at any time within twenty years after the date of a part payment thereon; for the statute which begins to run anew from the time of the part payment, is the statute which governed the limitation of actions on the obligation or debt at its inception. Estes v. Blake, 30 Me. 164; Lincoln Acad. emy v. Lowell, 38 Me. 179; Howe v. Saunders. 38 Me. 320. See Von Hemert v. Porter, 11 Met. 210. Opinion by SOULE, J.-Gilbert v. Collins.
MORTGAGE-STATUTE OF FRAUDS-EVIDENCE.-1 In an action of contract it appeared that the plaintiff held the overdue notes of E secured by a mortgage of
COLLATERAL SECURITIES–NEGLIGENCE OF HOLDER IN COLLECTING WHEN DUE.-1. A creditor who holds notes or other obligations for the payment of money, assigned to him by his debtor as collateral security, and neglects to use reasonable diligence to collect them when due, must bear the loss thence accruing. 2. In an action by such creditor against the debtor 'the burden is upon the latter to show that loss upon the collaterals was caused by the creditor's neg. ligence. 3. A bond and mortgage given to secure a loan were conditioned that the borrower should keep