tended and applied to officers of corporations not municipal. In Walworth County Bank v. F. & L. Trust Co., 16 Wis. 629, it was applied to an officer of a railroad company, and in United Brethren Church v. Vandusen, 37 Wis. 54, to the trustees of a church society. The principle was also applied to a school district officer in Pickett v. School District, 25 Wis. 551. In Coles v. Trustees of Williamsburgh, 10 Wend. 659, the same principle was applied to a village trustee. Mr. Justice Nelson said in substance that such trustee was disqualified by general principles of law to vote on a certain proposition before the board of trustees affecting his property. Supervisors of Oconto v. Hall. Opinion by Lyon, J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

ADMINISTRATOR-ADMISSION BY, OF DEBT DOES NOT BIND ESTATE.-The acknowledgment of an administratrix of a debt is insufficient to bind the estate of her intestate. Lobb v. Lobb, 2 Casey, 331; Anderson v. Washabaugh, 7 Wright. 119; Clark v. Maguire's Admr., 11 Cas. 259; Fluck v. Hage, 1 P. F. Smith, 464; Hummel v. Brown, 12 Harris, 312. Orr's Appeal. Opinion per Curiam.

[Decided Feb. 24, 1879.]

MARITIME LAW-ACTION TO RECOVER ILLEGAL FEES PAID TO UNITED STATES SHIPPING COMMISSIONER LIES IN STATE COURT.--(1) Under the act of Congress of June 7, 1872, in relation to the shipping of seamen, the shipping commissioner is not entitled to the shipping fee of two dollars for re-shipping the crew of a vessel after its return to the original point of shipment. (2) Fees for such re-shipping paid by the owner of a vessel without protest may be recovered back in an action against the commissioner, and (3) a State court has jurisdiction of such an action. In regard to the right to recover fees illegally claimed by an officer, the court state thus: In Prior v. Craig, 5 S. & R. 44, Justice Gibson says: 'It is true an action of assumpsit to recover back fees illegally taken may be sustained against a justice of the peace, without giving him notice, for the plaintiff thereby waives the official tort, as he may well do, and goes only for the money extorted.' To the same effect is Walker v. Ham. 2 N. H. 238. Again, in Reed's Admr. v Cist, 7 S. & R. 183, in which the action was by the personal representative of the injured party for the statutory penalty, the court remarked, The plaintiff could recover back any thing beyond the legal fees, but not for the forfeiture or penalty.' In an action by a sheriff for fees, the defendant was allowed to set off former fees illegally demanded and paid to the plaintiff; and in sɔ ruling the court said, that if the defendant paid more money to the sheriff than he was entitled to demand he cannot upon any ground of either law or equity retain it. Dew v. Parsons, 2 Barn. & Ald. 5C2. In Steele v. Williams, Exch. Rep. C25, it is said by one of the judges that any person who illegally takes money under color of an act of Parliament is liable to be sued for it, though the money is not to go into his own pocket.' The language of Judge Woodruff in The Ins. Co. v. Britton, 8 Bosw. 148, is in point. He says in sustaining an action against a public officer for money illegally demanded and paid: 'It should be deemed sufficient that the officer takes advantage of his official position to make the exaction; due protection to those whose necessities require them to deal with persons exercising official powers, or discharging duties in their nature official, requires that moneys so paid should be the subject of reclamation.' In Ogden v. Maxwell, 3 Blatchf. 319, it is said that it is not necessary to the maintenance of a civil action for the recovery of money wrongfully collected, that any turpitude should be

proved against the officer. The suit rests on no illegal purpose of the defendant in exacting the payment. It is well sustained if his official power was exercised in the collection without warrant of law." American Steamship Co. v. Young. Opinion by Sterrett, J. [Decided May 5, 1879.

PROCESS-ABUSE OF, MUST BE MALICIOUS TO CREATE ACTION.-Where process is legal the plaintiff is answerable only for the malicious abuse of it, and where the circumstances afford no inference of malice, actual malice must be proved. And though legal process may by its malicious use give rise to a cause of action, yet even in such case there must not only be a malicious use, but there must be no reasonable or probable cause for such process, since, if there be such cause, the intention goes for nothing. McCollough v. Grishobber, 4 W. & S. 201; Gibson v. Chaters, 2 Bos. & Pul. 129; Mayer v. Walter, 14 P. F. Smith, 283. Eberly v. Rupp. Opinion by Gordon, J.

[Decided June 2, 1879.]

SALE OF PERSONAL PROPERTY- -FRAUDULENT MISREPRESENTATION BY VENDOR.-In an action to recover the price of a horse sold by defendant to plaintiff, which it was claimed defendant represented to be sound, knowing him to be unsound, the declaration was upon two counts, 1st, fraudulent warranty; 2d, deceit and fraudulent representations. At the trial plaintiff in substance requested the court to charge tho jury that the defendant was liable in case he, with intent to deceive the plaintiff, answered him artfully so as to deceive him to his injury. The court overlooked the distinction between warranty and deceitful representation, and in the answer to the request blended the two so as to fail to present the law as to the latter to the minds of the jury in a proper manner. Held, (1) that the willful misrepresentation or concealment of a material fact by a vendor constitutes a fraud authorizing a rescission of the contract, and fraudulent representations may be as well by acts or artifices calculated to deceive as by positive assertions. 2 Kent's Com. 483; 1 Story's Eq., § 192; Brightly's Eq., § 55; Cornelius v. Molloy, 7 Barr, 293. (2) The answer of the court was error as calculated to mislead the jury as to the law applicable to fraudulent artifices. Relf v. Rapp, 3 W. & S. 21; Wenger v. Barnhart, 5 P. F. Smith, 300: Gregg Township v. Jamison, id. 468; Stall v. Meek, 20 id. 181. Croyle v. Moses. Opinion by Mercer, J.

[Decided June 23, 1879.]

VERMONT SUPREME COURT ABSTRACT.*

MEASURE OF

DAMAGES CONTRACT TO SUPPLY MACHINE. A delinquent is in general bound to make good the loss occasioned by his delinquency; yet, if one who is entitled to the benefit of a contract can by the exercise of reasonable diligence and ordinary prudence protect himself from loss by reason of a breach thereof, he is bound to do so. Thus: Before the opening of the quarrying season in the spring of 1868, the orators bought of defendants a patent stone channelling machine, at the price of $6,000, defendants agreeing to indemnify them for loss by reason of any suit that might be brought for infringement of other patents in the use thereof. Orators used the machine till December 12, 1870, when they were enjoined from 1rther use thereof by owners of another patent of which orators' machine had been adjudged to be an infringement, whereupon they hoisted the machine from the quarry, and set it aside, where it ever after remained. Orators might then have bought another equally valuable machine at the same price; but as defendants from time to time gave them to understand that they would *To appear in 51 Vermont Reports.

furnish them another efficient and satisfactory machine that should be non-infringing, they chose to and did hire their channelling done at regular prices, but at an expense in the succeeding season greater by $1,749 80 than they would have incurred had they been permitted to use their own machine. By the opening of the season of 1872 it came to be understood that defendants would not be able to furnish such a machine, but orators continued to hire their channelling done as before, until the total increased cost amounted to $9,243.45, which, with the use of the money invested in their machine, they sought to recover. Held, that orators, in the exercise of such prudence, etc., should have purchased another machine in the spring of 1872, when they learned that defendants would not be able to furnish them one; and that they were therefore entitled to recover only a sum equal to the cost of another machine as of that date, and the increased expense in channelling up to that time, with interest, subject to the right of the defendants to take back the old machine, or apply its value in reduction of the sum in damages so to be recovered. Miller v. Mariners' Church, 7 Greenl. 55; Thompson v. Shattuck, Metc. 615: Keyes v. West. Vt. Slate Co., 34 Vt. 81. Eureka Marble Co. v. Windsor Mfg. Co. Opinion by Dunton, J.

EXECUTION-TITLE BY SALE UNDER.- Where the proceedings of an officer on an execution are in substantial compliance with the law, and operate by their legal force, unaided by any consent of the judgment debtor, to transfer to the purchaser the title of the property sold thereunder, the sale, though somewha informal and defective, is a good sheriff's sale, and will protect the purchaser in his right to the property without a change of possession. The court remark that it is settled that if the sale is deprived of the essential requisites of an official sale, such an irregularity in the proceedings renders the officer liable to the judgment debtor as a trespasser ab initio. Evarts v. Burgess, 48 Vt. 205. It is equally well settled that the sale operated to transfer the title to the property from the judgment debtor to the plaintiff. Janes's Admr. v. Martin, 7 Vt. 92; Wood v. Doane, 20 id. 612; Hale v. Miller, 15 id. 211; Austin v. Soule, 36 id. 645. Ail the cases hold that a sale of personal property by an officer on a regular process in conformity with the provisions of the statute without fraud in fact conveys to the purchaser a good title without change of possession. This protection to the purchaser does not depend upon the officer's return to the process. Bates v. Carter, 5 Vt. 602; Hill v. Kendall, 25 id. 528. Such purchaser is not concluded by the facts stated in the officer's return, but may show the sale was made in a manner different from that stated in the return. Drake v. Mooney, 31 Vt. 617. This protection is lost if the title of the purchaser rests upon the consent of the judgment debtor, rather than the authority of the precept and the officer's proceedings thereon. Batchelder v. Carter, 2 Vt. 168; Kelly v. Hart, 14 id. 50. It is also lost if, by a secret agreement between the judgment debtor and the purchaser, the sale conveys a conditional or defeasible title. Webster v. Denison, 25 Vt. 493. Fitzpatrick v. Peabody. Opinion by Ross, J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

AUGUST AND SEPTEMBER, 1879.

CARRIER OF PASSENGERS — NOT LIABLE FOR MERCHANDISE TAKEN AS PERSONAL BAGGAGE EVIDENCE. -A peddler, who had taken passage over defendant's railroad at the place where the journey began, offered a bundle of merchandise to the baggage-master to be checked to the peddler's destination, and the same was checked without objection on the part of the baggage

man.

There was evidence to show that from the character of the bundle the baggage-man must have known that it was not personal baggage, and it also appeared that like bundles of other peddlers were taken over the railroad as baggage the same day. Held, that the ordinary contract made by a railroad corporation with a passenger, by the sale and purchase of a passenger ticket, is for the transportation of the passenger and of his reasonable personal baggage; and the corporation is liable as a common carrier for such personal baggage only, and not for merchandise, delivered by the passenger as baggage, without clear proof of an agreement to that effect. If merchandise, not disclosed, is included in the passenger's baggage, the corporation is not responsible for it as a common carrier. Collins v. Boston & Maine Railroad, 10 Cush. 506; Stimpson v. Connecticut River R. R., 98 Mass. 83. Such an agreement cannot be proved, or such a responsibility created, by mere evidence of a custom of passengers to take with them, and of railroad corporations to carry, similar packages as personal baggage; or by evidence that the package, delivered by the passenger as baggage, is of such form or appearance as to raise a doubt or suspicion or inference that it contains merchandise. Alling v. Boston & Albany Railroad, 126 Mass. 121. Held, also, that in the absence of proof of authority in the baggage-master to bind the company by an agreement to carry the merchandise as personal baggage, evidence tending to show that the baggage-master knew or supposed the bundles to contain merchandise, or that other passengers had similar bundles, would not warrant the jury in finding that the defendant agreed to transport the plaintiff's merchandise, or became liable therefor as a common carrier. Blumantle v. Fitchburg Railroad Co. Opinion by Gray, C. J.

NEGOTIABLE INSTRUMENT-WHAT IS NOT-MEMORANDUM ON MARGIN LIMITING NEGOTIABILITY. — A note read as fellows: "$3,000. Marlborough, July 31, 1868. Five years after date I promise to pay to the order of John F. Costello three thousand dollars, payable with interest at six per cent, value received. Thomas Corey." On the margin of the face of the note were written these words: "Given as collateral security with agreement." The note was in plaintiff's possession indorsed in blank by the payee. The defense was performance of agreement and that plaintiff did not own note. Held, that while it is doubtful whether by the general law merchant the note would be a negotiable one, it is not considered to be one in Massachusetts. In that State it is settled that any language put upon any portion of the face or back of a promissory note, which has relation to the subjectmatter of the note, by the maker of it before delivery, is a part of the contract; and that, if by such language, payment of the amount is not necessary to be made at all events, and of the full sum in lawful money, and at a time certain to arrive, and subject to no contingency, the note is not negotiable. Jones v. Fales, 4 Mass. 245; Heywood v. Perrin, 10 Pick. 228; Barnard v. Cushing, 4 Metc. 230; Osgood v. Pearsons, 4 Gray, 455; Haskell v. Lambert, 16 Gray, 593; Way v. Smith, 111 Mass. 523; Stults v. Silva, 119 id. 137. The words written upon the face of the note in suit, being incorporated in aud made part of the contract, indicate with clearness that there may be a contingency, to wit, the performance of the undertaking to which this is collateral, in which it would not be payable; and so it lacks that element of negotiability which requires that at all events a sum certain shall be payable at a time certain. Costello v. Crowell. Opinion by Lord, J.

MUNICIPAL CORPORATION - NEGLIGENCE - DEFECT IN HIGHWAY — NOTICE.—Under a rule of law that where a defect in a highway has not existed twentyfour hours, the city or town cannot be held liable for damages occasioned thereby unless some proper officer,

whose duty it is to attend to municipal affairs, has received seasonable notice of the same, or unless the facts presented lead to the inference that such officer knew, or with proper care might have known of its existence. Reed v. Northfield, 13 Pick 98; Harriman v. Boston, 114 Mass. 241; Monies v. Lynn, 119 id. 273. Held, that notice of a defect in a city street to a school-building janitor appointed and controlled by the school committee of the city, was not sufficient to make the city liable. A janitor is not an officer of the kind described. Foster v. City of Boston. Opinion by Endicott, J.

IOWA SUPREME COURT ABSTRACT.

SEPTEMBER AND OCTOBER, 1879.

CONTRACT-IMPLIED PROMISE-PAYMENT OF DEBT OF ANOTHER - TAXES ON LAND HELD BY LITIGATED

TITLE.-A company purchased unoccupied lands from one it believed to be the owner, and who had the apparent title, and for many years paid the taxes assessed on such lands in good faith, under a belief in its ownership. The true owner never paid or offered to pay any of such taxes. During such time the title to the lands was being litigated, and the question as to who held it was not conclusively determined until an adjudication of the United States Supreme Court was had. Held, that the owner of the lands was liable to the company for the amount of taxes paid. The court say that it is regarded as well settled that the general rule is that one person cannot make another his debtor by paying the debt of the latter without his request or assent; but it is believed to be equally well settled that a request or assent may be inferred, under some circumstances, as if "one person see another at work in his field, and do not forbid him, it is evidence of assent, and he will be holden to pay the value of the labor. Sometimes the jury may infer a previous request, even contrary to the fact, on the ground of a legal obligation alone." 2 Greenleaf's Ev., § 108. Where one pays the funeral expenses of the deceased wife of another, the latter being beyond the seas, a previous request will be inferred because of the legal obligation resting on the husband. Jenkins v. Tucker, 1 H. Blk. 90. Nicholl v. Allen, 3 Carrington & Payne, 36, was an action to recover for boarding the defendant's child. There was no evidence of a request or promise to pay, but the defendant had knowledge the child was boarding with the plaintiff, and it was said by Lord Tenterden, C. J., that "there is not only a moral but a legal obligation on the defendant to maintain his child. He knows where she is, and expresses no dissent and does not take her away. There is a legal obligation made out, if it is shown she is maintained in the plaintiff's house and he knows it, and it lies on the defendant to show that she is there against his consent, or that he has refused to maintain her any longer at his expense." Where one person is compelled to pay money which another is under a legal obligation to pay, the one so paying may recover of the person legally bound. In such a case a previous request will be inferred. Pownal v. Ferrand, 6 B. & C. 439; Exall v. Partridge, 8 T. R. 308; Bailey v. Bussing, 28 Coun. 455. If one person, in good faith, because of a statutory obligation resting on him, or because public policy so requires, pays money another is under a legal obligation to pay, a previous request, we think, might well be inferred if he had knowledge of the payment at the time it was made; or, if he did not have knowledge until afterward, and there was a series of payments made from time to time, an assent should be presumed. As the homestead company was not in fact the owner it was not, under ordinary circumstances, in a strict and technical sense bound or under obligations to pay the taxes. But under the peculiar circumstances of this case we think it was the duty of said company, and

public policy required it, to pay said taxes, and the true owner should not be permitted to say otherwise. This decision is not in conflict with Garrigan v. Knight, 47 Iowa, 525. Goodnow v. Moulton. Opinion by Seevers, J.

EXEMPTION-MUST BE CLAIMED BY DEBTOR.-The Iowa statute declares that the debtor " may hold exempt from execution" certain specified property. Held, that to entitle the judgment debtor to insist that property shall not be taken under execution because the law exempts it, he must claim the exemption at the time of the levy. If he acquiesces, makes no claim though present, neglects to assert his rights then, and voluntarily surrenders the property, he will be estopped from afterward asserting the exemption. In State v. Melogue, 9 Ind. 196, it is said " the exemption is a personal right, which the debtor may waive or claim at his election." The finding of the referee in Richards v. Haines, 30 Iowa, 574, was that "the property seized was delivered to the sheriff by Haines without making any claim that it was exempt from execution," and it was held that Haines could not afterward insist on such right. The debtor cannot stand by, see and know the levy is about to be made, and afterward claim the exemption. He must at the time, in some manner, indicate to the officer his purpose to claim the property as exempt. That the exemption is personal there can be no doubt; that it may be waived is equally clear. By making the levy the officer incurs responsibility, and expenses are incurred. This can be avoided if the claim is made before the levy. Angell v. Johnson. Opinion by Seevers, J.

EXECUTION-LEVY ON UNRIPE CROP.-A levy of an execution upon an unripe and growing crop is not valid as against subsequently acquired liens, if made so long before the officer can properly proceed to advertise and sell as to evince an intention on the part of the judgment creditor to hold the levy for a tim ́ merely as security, and especially if it is reasonably certain, at the time of the issuance of the writ, that it cannot be fully executed by the sale of the crop during the life of the writ, but that the judg ment debtor must be put to the expense of another writ. The court say that the purpose of making the levy thus early must have been solely to require a lien to be held for a time as security, or, to use the language of Chief Justice Gibson in Hickman v. Caldwell, 4 Rawle, 373, to keep other creditors at bay," which purpose, it was held in that case, was not legitimate. Wier v. Hale, 3 W. & S 285; Mentz v. Hamman, 5 Whart. 150; Howell v. Alkyn, 2 Rawle, 282. Burleigh v. Piper. Opinion by Adams, J.

MASTER AND SERVANT-ACT OF SERVANT NOT IN LINE OF DUTY.-R. was employed by defendauts to guard their brewery, for which purpose he was furnished with a pistol. Defendants' intestate had been creating a disturbance in the brewery but retreated therefrom. While so retreating he was shot by R. and killed. Held, that the act of R. was not in the line of his duty, and defendants were not liable for the death of the intestate. The court say that if R. had shot with the pistol from the brewery a person passing peaceably along the highway, the defendants clearly would not have been liable; and we think there is no essential difference between the case supposed and the one at bar. To protect the brewery did not require R. to shoot and kill a person who was retreating therefrom. The killing was not, therefore, done in the line of the duty R. was employed to perform. Golden v. Newbrand. Opinion by Seevers, J.

UNDUE INFLUENCE-MERE WEAKNESS OF MIND not GROUND FOR SETTING ASIDE CONTRACT.-Plaintiff and defendant were the sons and only heirs at law of C., who died intestate at the age of ninety-three years.

Six days previous to his death C. conveyed land valued at $5,000 to defendant, who gave back his note for $2,500. In an action after the death of C. to set aside this conveyance on the ground of want of mental capacity on the part of C. and of undue influence over him, it was claimed by defendant that the deed was intended as a gift of one-half of the land. There was no proof of undue influence in fact though it appeared that the opportunity for it existed. It appeared also that C. was weak in body and mind from old age, but not physically as weak as usual for persons of such advanced years. When making the conveyance he gave a valid and sensible reason therefor, and he understood the financial condition of his children. Witness testified to his possession of and to his want of mental capacity, but there was no act shown indicating a want of capacity. Held, that the conveyance should not be set aside. If the power to contract at all exists, mere weakness of mind, without fraud or undue influence, is not sufficient. Speers v. Sewell, 4 Bush, 239; Graham v. Castor, 55 Ind. 559; Thompson v. Kyner, 65 Penn. St. 368. Campbell v. Campbell. Opinion by Seevers, J.

CRIMINAL LAW.

CONSTITUTIONAL LAW-STATE HAS JURISDICTION AS TO CRIMES OF INDIANS ON INDIAN RESERVATIONS WITHIN IT.--The State of Wisconsin has authority to punish an act which is declared a crime by the laws of the State, if such act be committed within the limits of the Oneida Indian reservation in the State; and an Indian belonging to the Oneida tribe or nation, and living upon such reservation, can be punished by the laws of the State for any crime committed by him within the limits of such reservation. The court decide that since the passage of the act of Congress of June 30, 1834, upon the formation of any State out of the country designated in that act as the Indian country, and its admission into the Union on equal terms with the original States, the jurisdiction of the United States to punish for crimes committed upon the Indian reservations within such State would be lost, unless reserved by the act admitting such State into the Union. And the power to punish crimes after that, upon the reservations within the State, must be either vested in the State or remain with the tribes themselves. But the authorities abundantly show that the power to punish crimes committed by these tribal Iudians, whether committed within their reservations or in other places within the State, is vested in the State. The jurisdiction of the State, when not restricted by existing treaties made with the tribes, or by the act admitting the State into the Union, is supreme over the subject, and extends to all persons and places within the State. Worcester v. State of Georgia, 6 Pet. 515; United States v. Holliday, 3 Wall. 407; United States v. Bailey, 1 McLean, 234; United States v. Cisna, id. 254; United States v. Sa-coo-da-cot, 1 Abb. U. S. C. C. 377; Goodell v. Jackson, 20 Johns. 693; Murray v. Wooden, 17 Wend. 531; Peters' Case, 2 Johns. Cas. 844; Clay v. State, 4 Kans. 49; Hicks v. Ewhar-to-nah, 21 Ark. 106; People v. Antonio, 27 Cal. 404; United States v. Stahl, 1 Woolworth's C. C. 192; State v. Foreman, 8 Yerg. 256; United States v. Rogers, 4 How. 567; Caldwell v. State, 1 Stew. & P. 327; State v. Tassels, Dudley (Ga.), 229; State v. Ta-cha-na-tah, 64 N. C. 614. Wiconsin Sup. Ct., Sept. 23, 1879. State v. Doxtater. Opinion by Taylor, J.

EVIDENCE- CONFESSION OF CRIME UNCORROBORATED. INSUFFICIENT TO CONVICT.-The confessions of a party to an individual merely, uncorroborated by circumstances, and without proof aliunde that a crime has been committed, will not justify a conviction. It has been said, in the United States, the prisoner's confession, where the corpus delicti is not other

wise proved, has been held insufficient for his conviction. In this case the prisoner was indicted for the larceny of a horse. The confession of the prisoner was relied upon. The most to be derived from that was, that he took the horse and traded it off, and upon going to the person to whom he said he had traded the horse, it was found in that person's possession. One witness testified that the owner had the horse in his possession before the time he was said to have been taken. The witness saw the horse put in a stable the evening before the time in question - heard about the horse being taken next morning. Another witness testified that he saw the horse in the owner's possession not long before the time "he was said to have been stolen." Held, the proof did not sufficiently show that a larceny had been committe`, to justify a conviction. Illinois Sup. Ct., Oct. 2, 1879. May v. People.

RENDITION OF FUGITIVES-FALSE IMPRISONMENT.If a person be arrested as a fugitive from justice from another State by a private person without warrant, he must be carried without delay before the most convenient officer qualified to receive an affidavit and issue a warrant, and if he be detained beyond a reasonable time without being carried before such officer, the person arresting or detaining him commits the offense of false imprisonment. Georgia Sup. Ct., Sept. 23, 1879. Levina v. State. Opinion by Jackson, J.

TRIAL-SEPARATION OF JURY BEFORE VERDICT — MOMENTARY ABSENCE OF JUROR. After a case bad been submitted to the jury and they were on their way to their room for consultation, one of the jurymen separated from the others and went to his hotel to obtain some tobacco, but arrived at the jury-room as soon as the others and before their deliberations had commenced. Held, that in the absence of a showing of prejudice the separation was not such as to vitiate the verdict. Iowa Sup. Ct., Sept. 18, 1879. State v. Wart. Opinion by Adams, J.

RECENT ENGLISH DECISIONS.

BONDHOLDERS-RIGHTS OF THOSE LENDING TO FOREIGN GOVERNMENT-FAILURE OF PURPOSE OF LOANWHEN MAJORITY MAY NOT CONTROL MINORITY.— An action was brought by the holder of bonds issued by a foreign government in 1872, on behalf of himself and other bondholders (except a dissentient), suing for the return to the bondholders of a portion of the proceeds of the loan which was in the hands of trustees, on the ground that the purpose for which the money had been appropriated had become impracticable. The defendants were the trustees of the foreign government (who assented to the plaintiff's claim), the dissentient bondholder, and some companies who claimed an interest in the fund. Four-fifths of the bondholders had expressed their assent to the action, and had contributed to the costs of it, the remainder, with the exception of the one who was a defendant, had expressed neither assent nor dissent. The loan had been raised upon the footing of a prospectus, which stated that the principal object of the loan was to subsidise a specified company for the purpose of constructing a railway and certain other works. It was further stated that a contract had been entered into for the construction of the railway for C00,000l., and that the trustees for the bondholders I will retain out of the proceeds of the loan, as received, a sum equal to the contract price of the railway, and temporarily invest and apply the same from time to time in payment for the works as they proceed." The fund claimed by the action was the 600,000l. which had been placed in the hands of the trustees, together with accumulations of interest. Fry, J., who decided the case without hearing the evi

dence of the defendants, dismissed the action on the ground that the majority of the bondholders could not bind the minority, or deprive of their rights other persons who were interested in the undertaking, and also that the impracticability of constructing the railway had not been proved. Held, that the plaintiffs had made out a prima facie case, and that the defendants ought to have been required to adduce evidence against it. After hearing the defendants' evidence, held (reversing the decision of Fry, J), that it had been proved that the construction of the works was, in a business and commercial sense, impracticable, and that consequently the majority of the bondholders were entitled to the relief they claimed. The majority of the bondholders could not bind the minority, but the minority had no right to insist on having the common fund thrown away. The plaintiffs had lent their money for a common object, and when the common object could not be carried into effect they were entitled, as against any number of dissentients, to say that their money must be returned. Per Cotton, L. J. : The dissent of dissentient bondholders could not have a greater effect than the dissent of a partner to the dissolution of a partnership entered into for particular purposes of profit. In such a case the court, if satisfied that the purpose of the partnership could not be carried into effect with any reasonable prospect of profit, would dissolve the partnership. Ct. Appeal, June 30, 1879. Wilson v. Church. Opinions by James, L. J., and Cotton, L. J., 41 L. T. Rep. (N. S.) 50.

EXECUTOR-DEBT DUE FROM-COMPROMISE.-An executor cannot compromise a debt due from himself to the estate. Such a transaction will be treated as a breach of trust, without inquiring whether or not it is beneficial to the estate. Semble, that the same doctrine applies to a case in which several executors compromise a debt due from one of them. The court remark: The case of Cooke v. Collingridge, 1 Jac. 607, seems to be decisive upon the question that an executor cannot compromise a debt due from himself to the estate. In that case Lord Eldon said: "One of the most firmly established rules is that persons dealing as trustees and executors must put their own interests entirely out of the question, and this is so difficult in a transaction in which they are dealing with themselves that the court will not inquire whether it has been done or not, but at once say that such a transaction cannot stand." It is treated as a breach of trust without inquiring whether the transaction was beneficial or not. The case of Ex parte Lacey, 6 Ves. 625, is also in point. Privy Council, July 26, 1879. De Cordova v. De Cordova, 41 L. T. Rep. (N. S.) 43.

STATUTE OF LIMITATIONS-PARTNERSHIP DEBT PART PAYMENT BY ONE OF TWO COPARTNERS.-One of

THE

NEW BOOKS AND NEW EDITIONS.

40 MICHIGAN REPORTS.

Cases Decided in the Supreme Court of Michigan at the January and April Terms, 1879. Henry A. Chaney, State Reporter. Vol. 40. Lansing, 1879. Pp. xviii, 822. THE reports of this court are invariably characterized by promptness, interest, and thoroughness. We note the following cases: Van Deusen v. Newcomer, p. 90.-More notable for what it does not decide than for what it decides. The court were equally divided on the questions whether the superintendent of an insane asylum is liable for detaining a person whom in good faith he believes to be insane; and whether in doubtful cases an inquisition of lunacy is prerequisite to confinement in an insane asylum. See 19 A. L. J. 407. Cummer v. Butts, p. 322.-A contract stipulating that on sixty days' notice it might be cancelled by either party for “ good cause," held, that this term could not be reduced to legal certainty, and was ineffective, and that any revocation in good faith was sufficient. Tremper v. Brooks, p. 333.-A receiver cannot be sued or garuished without leave of the court. Herbage v. McEntee, p. 337.—An indorser before utterance is a joint maker. See ante, p. 243. Heyer v. Lee, p. 353. -A grantor is bound by the exact terms of his contract of sale in respect to quantity. City of Grand Rapids v. Blakeley, p. 367.-Assumpsit lies to recover back an unlawful tax exacted under color of existing process and paid under protest. Scribner v. Collar, p. 375.-An agent retained by different persons on commission to negotiate sales or exchanges of their property, brought about an exchange between two of them, neither knowing that he was acting for the other, and sued to recover compensation from both. Held, that it was against public policy to allow a recovery. Jacox v. Jacox, p. 473.- An equitable wardship arises where a son takes charge of his father's affairs in the belief that the latter is incompetent to manage them, and the latter passively submits, and a presumption arises against the justice of any bargain between them in respect to the father's property. Myer v. Hart, p. 517.-A provision in a mortgage or note for an attorney's fee is void. See ante, pp. 317, 318. Smith v. Long, p. 555.-The payee of a note drawn to order becomes an indorser by signing his name on the back of it, and is not chargeable otherwise unless he adds apt words to create a different relation, and until he indorses it no third person can become an indorser. Mizner v. Frazier, p. 592.—A jockey sued for trespass in running against and injuring a horse while racing; he had no interest in the horse except pay for taking care of him and what he could win in races for the season; held, that he was a bailee bound to uninterrupted personal care of the horse, and that the measure of damages was not the hire of its services, since he was not authorized to hire it, nor the uncertain winnings of races; but only the deprivation of his personal use of the horse in exercising it.

ADAMS' LIFE OF GALLATIN.

The Life of Albert Gallatin. By Henry Adams. Philadelphia: J. B. Lippincott & Company. Roy. 8vo., pp.

697.

This life of the greatest financier in the early history of our country, next to Hamilton, must have interest for the members of a profession like ours, which needs and is presumed to know something of every thing. The work has received high commendation from com

while we have not as yet so carefully read it as to warraut us in pronouncing a critical opinion upon its merits, we have sufficiently scanned it to be able confidently to say that it is a very important and interesting