cident or negligence, and in such cases the principle is now undisputed. It is only necessary to refer to authorities in which this or a similar condition has been held valid. In Wolf v. Western U. Tel. Co., 62 Penn. St. 83, the message was an ordinary day message, sent under a contract, providing for its being repeated and at full rates, and the condition for notice of the claim for damages was to be sixty days from the sending. The condition was held valid within the maxim conventio vincit legem, and reasonable as to time. In Young v. Western U. Tel. Co., 65 N. Y. 163, the contract was the same as in the above case, and the condition was held valid and reasonable. There is much stronger reason in favor of the validity of such a condition in telegraph contracts, and the reasonableness of the time, than of the validity of such a condition and of the reasonableness of this limitation of time in contracts of insurance and transportation, and it is found in the nature and peculiar character of the business of telegraphing, and particularly in the night-time, where the same care, accuracy, and promptness are neither contracted for nor expected as in the day-time. A similar condition in insurance and freight contracts has been upheld by numerous decisions in this court and elsewhere, and would not now be questioned in such cases. In Trask v. State Ins. Co., 29. Penn. St. 198, where immediate or reasonable notice was to be given, notice of eleven days was held unreasonable. In Lewis v. Great Western R. Co., 5 Hurl. & N. 867, the condition was "that no claim for damages, etc., should be allowed unless made within three days from delivery; nor for loss, unless made within seven days of the time the goods should have been delivered;" and it was held that the time was just and reasonable. It is insisted by the learned counsel of the appellant, in his brief, that the question of the unreasonableness of this condition should have been submitted to the jury and not decided by the court as a question of law. What is a reasonable time in which au act is to be performed, when the contract is silent as to the time, may be a question of fact for the jury; but whether the time fixed by the contract in which an act is to be performed is reasonable as affecting the validity of the contract itself, is clearly a question of law. It would be as proper to submit to a jury the question whether a contract was valid within the statute of frauds, or void on grounds of public policy, or void per se, on any other ground, or for being illegal, as the question whether the contract is void in itself because unreasonable or impossible. It may be said further, in respect to the consideration and reasonableness of this condition, in the language of the opinion in Wolf v. Telegraph Co., supra: "But clearly it is not unreasonable that a telegraph company should require notice of claims for its defaults within a reasonable time, before being held to answer for the alleged default. From the nature of its business this may be essential to its protection against unfounded claims." "Another reason*** is found in the multitude of messages transmitted, requiring a speedy knowledge of claims to enable the company to keep an account of its transactions, before by reason of their great number, they cease to be within their recollection and control." It may be added that this was a night message, and of one-half rates, because of its not requiring repetition, and on account of its liability to mistake, error, or delay, and of the common uncertainty and greater labor of nightwork. A verdict for the price of the message was tendered by the defendant's counsel, and not refused by the plaintiff's counsel, and the court ordered a verdict for that amount. The judgment of the County Court is affirmed. UNITED STATES SUPREME COURT AB- 66 CRIMINAL LAW-PERJURY UNDER UNITED STATES STATUTE-STATUTORY CONSTRUCTION.- Section 5392, U. S.R. S., provides thus. "Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished, etc." The defendant, who was clerk of the Circuit and District Courts for the Southern District of Ohio, was indicted for perjury in swearing before the District judge to his emolument returns and an account for services reudered for the United States. Held, that the instru ment set forth was a written declaration and certificate under the statute, and that if defendant did not believe the same to be true when he swore to it, be was guilty of perjury. The court say: We do not think the words declaration and certificate, as used in the section of the Revised Statutes on which this indictment is founded, are used as terms of art, or in any technical sense, but are used in the ordinary and popular sense to signify any statement of material matters of fact sworn to and subscribed by the party charged. Indeed the word declaration, as a word of art in the law, is generally used to signify the plea by which a plaintiff in a suit at law sets out his cause of action, as the word complaint is in the same sense the technical name of a bill in chancery. The fact that in many acts of Congress cited by counsel that body has used the word to signify a statement in writing, whether sworn to or not, as the foundation in many cases of official action, or as preliminary to the assertion of rights by the party who makes the declaration, is far from proving that the use of the word in the act concerning perjury is limited to these cases. The inference is strong the other way, for the word is used in the cases cited in regard to so many and such di verse transactions, that it can, in view of them all, have no other meaning than what is attached to it in ordinary use. And in all these instances it is equival ent to a statement of facts material to the matter in hand. The paper or statement of the emolument account, the falsity of which is the foundation of the charge, is set out, and if in the charging clause of the indictment it is described by a word equally applicable to other instruments, no harm can come to defendant since he is precisely informed as to the identi cal writing which is alleged to be false, and which he swore to be true. Nor can he be misled in any way, because what he says in that writing is, in the correct use of language, his sworn declaration on that subject. But the perjury in all such cases consists in the oath by which the party indicted swears to the truth of some matter, and his oath may be said to be the false statement of the statute. Or in other sense, it may be said that the written statement and the oath of the party that it is true, all constitute the declaration or certificate of the statute, for the falsity of which he is chargeable with perjury and liable to punishment. The previously prepared writing, his oath to its truth, or the whole taken together, is in our opinion a declaration of the party within the meaning of the stat ute, and may be so well described in the indictment." United States v. Ambrose. Opinion by Miller, J. [Decided April 23, 1883.] PATENT-ROLLER PROCESS FOR FLOUR PATENT INVALID. The patent for improvement in processes of manufacturing middlings flour, issued to Downton, April 20, 1875, held invalid as having been described in a German book published in 1871. By section 24 of the act of 1870 it was provided that any person who had invented any new and useful art, machine, manufacture, or composition of matter not known or used by others in this country, "and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof," might obtain a patent therefor. In construing the words "described in any printed publication in this or any foreign country," as they were used in reference to the same subject in section 7 of the act of 1836 (5 Stat. 117), this court in Seymour v. Osborn, 11 Wall. 516, said: "Patented inventions cannot be superseded by the mere introduction of a foreign publication of the kind, unless the description and drawings contain and exhibit a substantial representation of the patented improvement in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, and practice the invention as they would be enabled to do if the information was derived from a prior patent." So in Cohen v. United States Corset Co., 93 U. S. 366, the court said: "It must be admitted that unless the earlier printed and published description does hibit the later patented invention in such a full and intelligible manner as to enable persons skilled in the art to which the invention is related to comprehend it without assistance from the patent or to make it or repeat the process claimed, it is insufficient to invalidate the patent." Downton v. Yaeger Milling Co. Opinion by Woods, J. [Decided May 7, 1883.] ex REMOVAL OF CAUSE-UNDER "LOCAL PREJUDICE" ACT.-Under the local prejudice act there can be no removal unless all the necessary parties on one side of the suit are citizens of different States from those on the other. Vannevar v. Bryant, 21 Wall. 41. It is not enough that there be a separable controversy between parties having the necessary citizenship, nor that the principal controversy is between citizens of different States. If there are necessary parties on one side of the suit, citizens of the same State with those on the other, the Circuit Court cannot take jurisdiction. Myers v. Swann. Opinion by Waite, C. J. [Decided April 23, 1883.] UNITED STATES CIRCUIT COURT ABSTRACT.* CONSTITUTIONAL LAW-A MUNICIPALITY CANNOT TAX ITS OWN OBLIGATIONS.-In the absence of any provisions of the statute which had entered into and formed part of the contract, giving the right to impose a tax, bonds or other obligations of a city, which belong to non-residents, cannot be taxed without impairing the force of the obligation itself. In Railroad Co. V. Pennsylvania, 15 Wall. 300; Murray v. City of Charleston, 96 U. S. 432, and Hartman v. Greenhow, 102 id. 672, the Supreme Court of the United States have settled, among other propositions of law, the two following, which apply to these cases: (1) That the exercise of the power of taxation by municipal corporations is such an act of legislation that if it impairs the obligation of a contract it is within the prohibition of article 1, § 10, that no State shall pass a law impairing the obligation of a contract. (2) That obligations to pay money on the part of States or cities, while they may be property, are not so localized as to be property within a State or city, when held by persons residing outside thereof. U. S. Circ. Ct., E. D. Louisiana, *Appearing in 16 Federal Reporter. April, 1883. De Bignier v. City of New Orleans. Opinion by Billings, J. EQUITY-WHEN BILL TO RECOVER MONEYS WITHHELD WILL NOT LIE.-A bill in equity alleged that defendants withheld money deposited with them by plaintiffs and that defendants "have used said moneys for their own purposes and have profited thereby." There was no prayer for discovery. Held, that the bill was demurrable for want of equity. Upon the facts alleged, the complainants have a plain, adequate, and complete remedy at law. There are expressions of opinion in some of the more recent English cases to the effect that a principal may always resort to equity to compel an accounting by his agent; but in all the cases where the bill was sustained, the accounts were complicated and a discovery was essential. Mackenzie v. Johnston, 4 Mad. 373; Phillips v. Phillips, 9 Hare, 471; Shepard v. Brown, 9 Jur. (N. S.), 195; Hemings v. Pugh, id. 1124; Makepiece v. Rogers, 11 id. 314. The cases are not authority for relaxing the rule that a bill in general will not lie unless some special ground is laid; as the inability to get proof, unless by discovery, Dinwiddie v. Bailey, 6 Ves. 136; Moses v. Lewis, 12 Price, 388, or where independently of discovery, intricate and perplexing accounts exist which cannot be conveniently investigated at law. Story, Eq. Jur., § 462. U. S. Circ. Ct., S. D., New York, April 10, 1883. Miller v. Kent Opinion by Wallace, J. JURISDICTION OF FEDERAL COURT PARTNER ACQUIRING INTEREST OF CO-PARTNER NOT ASSIGNEE. A purchaser at an execution sale of the interest of one partner in the partnership assets, if such purchaser be a non-resident of the State, may maintain a bill in equity against the remaining partner for a division of such assets and an accounting, notwithstanding the fact that the partner, whose interest is so purchased, could not himself have filed such bill, for want of the requisite citizenship. Such suit is not "founded upon contract in favor of an assignee," within the meaning of the first action of the act of 1875. U. S. Circ. Ct., E. D. Michigan, December 26, 1882. McNichol v. Phelts. Opinion by Brown, J. JURISDICTION -CASES UNDER LAWS OF UNITED STATES-MARSHAL AND DEPUTY.-Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege or claim or protection or defense of the party, in whole or in part, by whom they are asserted. A part of the plaintiff's case is to make the United States marshal liable for the acts of his deputy. If the marshal is liable, such liability arises under the laws of the United States, and must be tested by such laws. U. S. Circ. Ct., N. D. Texas, Jan., 1883. Ellis v. Norton. Opinion by Pardie, J. REMOVAL OF CAUSE-ORDER OF STATE COURT WHEN NOT NECESSARY.-In a suit pending in a State court of Texas between parties who were all citizens of that State, certain citizens of other States holding liens, which entitled them under the laws of Texas, to intervene, applied for leave to intervene and litigate their rights, which was refused by the State court. The next day, without leave, they filed their petition asserting their claims, and contesting the lien and all leged priority of the plaintiffs in the suit, and then removed the suit to this court. On a motion to remand, held, that an order of the State court was not necessary in order to make them parties to the suit, and it was properly removed. U. S. Circ. Ct., N. D. Texas, December, 1882. Snow v. Texas Trunk Railroad Co. Opinion by Pardie, J. INSURANCE LAW. FIRE POLICY-MORTGAGE-CONSTRUCTION OF CONDITION AGAINST THE COMPANY.-A fire policy which was collateral to a mortgage contained this condition in reference to insured property. In all such cases, upon any loss, the company shall have the option of paying to the insured, either such proportion of the sum insured as the damage by fire to the premises mortgaged or charged shall bear to their value immediately before the fire, but not exceeding such value. The mortgage covered the insured building and a lot upon which it was situated. Held, that the clause "the premises mortgaged or charged," embraced only the premises mortgaged which were insured. If there be doubt, in view of the general tenor of an instrument of writing, whether the words used therein are to be taken in an enlarged or restricted sense, all other things being equal, that construction should be taken which is most beneficial to the promisee. This rule of construction is especially applicable to the construction of policies of insurance; the provisions and conditions of which are, as admitted in the argument, prepared by the assurers themselves, and their advisers, persons thoroughly conversant with the principles and practice of insurance, with the utmost deliberation, "every word being weighed, and every contingency debated," and thus prepared are executed and delivered to the assured, who ordinarily have no part in their preparation. Therefore in Western Ins. Co. v. Cropper, 8 Casey, 351, it is held, "that if an exception in a policy be capable of two interpretations, equally reasonable, that must be adopted which is most favorable to the assured, for the language is that of the assurer." This principle is approved and recognized in Commonwealth Ius. Co. v. Berger et al., 6 Wright, 292; Insurance Co. v. O'Malley, 1 Norris, 400. To the same effect is Hoffman v. Etna Ins. Co., 32 N. Y. 405, where it was held that no rule in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares, that in all cases it must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to the indemnity, which in making the insurance it was his object to secure. When the words are without violence susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted. Another rule of construction equally well known, is that the words of an agreement are to be applied to the subject matter, about which the parties are contracting at the time. The matter in hand is always presumed to be in the minds and thoughts of the speaker, though his words seem to admit of a larger sense, and therefore the generality of words used shall be restrained by the particular occasion. Words should not be taken in their broadest import when they are equally appropriate in a sense limited to the object the parties had in view. "All words," says Lord Bacon, "whether they be in deeds or in statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person." Bacon Law Max. Reg. 10. Indemnity is the real object and purpose of all insurance; that is what the assured bargains for, and what the assurer intends to provide. Says PhillipsPhillips Insur., § 124: "The predominant intention of the parties in a contract of insurance is indemnity, and this is to be kept in view and favored in putting a construction upon a policy." In May on Insurance, § 174, the author says: "It was early held, with special reference to contracts of marine insurance, that the strictum jus or apex juris is not to be laid hold on, but they are to be construed largely for the benefit of trade and for the insured." Tierney v. Ethrington, 1 Burr. 341; a rule which, under different forms of expression, has obtained with reference to all kinds of insurance to the present day. Having indemnity for its object, the contract is to be construed liberally to that end, and it is presumedly the intention of the insurer that the insured shall understand, that in case of loss, he is to be protected to the full extent which any fair interpretation will give. Dow v. Hope Ins. Co., I Hall (N. Y.), 174; Riggin v. Patapsco Ins. Co., 7 Harr. & J. 279. The spirit of the rule is, that when two interpretations, equally fair, may be given, that which gives the greater indemnity shall prevail. Pennsylvania Supreme Court, Feb. 26, 1883. Teutonia Fire Insurance Co. v. Mund. Opinion by Clark, J. FIRE POLICY-FALSE REPRESENTATION OTHER INSURANCE ESTOPPEL.-The plaintiff, applicant for insurance, made an approximate estimate, from memory, of amounts of insurance then existing on the property, to the defendant company's agent, who reported a definite sum to the company; the agent had authority to act upon verbal statements, and a policy was issued. Held, that the representation was not false, and that plaintiff is not responsible for the error of the agent in his report to the company. The agent's ac tual knowledge of the additional insurance in this case, is in law the knowledge of the principal, and a waiver of the requirement prohibiting other insurance without the written consent of the company. Collins v. Insurance Co., 79 N. C. 279; Argall v. Insurance Co., 84 id. 355. In Insurance Co. v. Wilson, 13 Wall. 222, an applicant for life insurance and his wife, in answer to an inquiry as to the age and cause of death of the mother of the applicant, said that they neither of them knew at what age nor from what disease the mother died. An aged woman present professed to know, and being questioned by the agent stated that she, the deceased, was forty years of age and died from fever. This answer was entered in response to the inquiries by the agent, the applicant and his wife, neither of them affirming the statement, nor assenting thereto, and the application containing this answer was afterward signed by him. It was in proof that the mother died much earlier in life and from consumption, and the company sought to avoid the contract of insurance for this false information upon which the policy issued. The court said: "It is clear that for the insurer to insist that the policy is void be. cause it contains this statement, would be an act of bad faith and of the grossest injustice and dishonesty. And the reason for this is, that the representation was not the statement of the plaintiff, and that the defendant knew it was not when he made the contract, and that it was made by the defendant who procured the plaintiff's signature thereto." The court further said, in speaking of the attempt to make their own soliciting agents the agents for many purposes of the assured: "But to apply this doctrine in its full force to the system of selling policies through agents, which we have described, would be a snare and a delusion, leading as it has done in numerous instances to the grossest frauds, of which the insurance companies receive the benefits, and the parties supposing themselves insured are the victims. The powers of the agent are prima facie co-extensive with the business intrusted to his care, and will not be narrowed by the limitations not communicated to the person with whom he deals. Au insurance company, establishing a local agency, must be held responsible to the parties with whom they transact business, for the acts and declarations of the agent within the scope of his business, as if they proceeded from the principal." North Carolina Supreme Court, Feb. Term, 1883. Hornthal v. Western Insurance Co. Opinion by Smith, C. J.(88 N. C. 71.) The Albany Law Journal. THE ALBANY, SEPTEMBER 29, 1883. CURRENT TOPICS. THE world is always prepared for something new and queer from any member of the Beecher family. The minor members of the family occasionally challenge public attention by utterances which savor of "crankiness." Here now is the Rev. Thomas K., we have not heard any thing from him in a good while who seems rather disposed to apologize for suicide, if not to defend it. He has recently said in defense of these singular views: Restating our teachings (for we certainly stand to them) we affirm (1) that with ripening civilization suicides multiply; (2) the oldest Christian church, and largest, denounces suicide as a mortal sin; but (3) there are to-day and always have been chivalrous suicides; foremost among these stands one who said, 'Therefore doth my father love me because I lay down my life, that I might take it again. No man taketh it from me, but I lay it down of myself. I have power to lay it down." On this the Troy Times remarks: "Coming from a clergyman professedly believing in and teaching the principles of Christianity, this statement must shock the sensibilities of a great many persons, accustomed as is the public to Beecher eccentricities. It amounts to a declaration that the being held by the Christian world to be the Saviour of mankind committed suicide, an assertion which is tantamount to overturning one of the most vital of fundamental Christian doctrines, that of the atonement. It would be unfair, of course, to attribute any such purpose or desire to Mr. Beecher, yet he is or ought to be too good a logician not to perceive the inevitable drift of such declarations. There is however one omission in the quotation from scripture made by Mr. Beecher which, if supplied, as it should be to give full effect to the text, destroys its force so far as the point sought to be made by Mr. Beecher is concerned. The Saviour's words, referring to his life, as given by John, whom Mr. Beecher partly quotes, were: 'I have power to lay it down, and I have power to take it again. There are all the differences in the world between the meaning of the text as given by Mr. Beecher and that of the words as they actually appear. The first would denote the intention of voluntarily sacrificing one's life just as the ordinary suicide does; the other indicates omnipotence subjecting itself to suffering and death in behalf of humanity, not a final and complete abdication of infinite power." As suicide is recognized as a crime in law, the subject comes within our jurisdiction. The best that can be said for it is that in certain circumstances it may be regarded with sorrowful allowance, as when resorted to as a refuge from long and excruciating suffering of body or mind, for example, among lawyers, in the case of the saintly Romilly, who was driven to self-destruction by despair at the death of his VOL. 28 No. 13. wife. But the time when it was regarded as a heroic act, as in the history of Rome, for instance, has long since passed. Mr. Lecky, in the "History of European Morals," reviews and discusses this subject, and when Mr. Lecky is done with any subject there is nothing more to be said about it. The Troy Times very acutely exposes the fallacy of Mr. Beecher's argument founded on the words of our Saviour, which is a most fantastic example of one's "wresting the scripture to his own destruction." There is nothing to be said for a man who calls Christ a suicide. Such teachings are most dangerous and abominable. The world is always full of people trembling on the verge of suicide, and requiring but some such encouragement to topple them over it. Hearty words of cheer and courage and patience and sympathy are what they need and what they should receive from the Christian pulpit. It is unfortunate that there are so many bad advisers of mankind in the pulpit, and we think the worst we ever heard of is the Rev. Thomas K. Beecher as an apologist for suicide. The amount of original and exclusive information that our English contemporaries manage to acquire about our legal institutions is remarkable. For example, the London Telegraph announces that there are nine Federal Circuits in this State. The same newspaper says: "If Lord Coleridge pursues his investigations as to the American judicial system in every State which he honors by his presence, he may ultimately arrive at the conclusion that the modern Americans are blessed with, perhaps, a little too much law and by far too many lawyers." It may be that we have too much law, but we are sure that there are not too many lawyers in this State. It should be remembered that in this single State there is more litigation than in the whole island of Great Britain. There is no time when there are not more than 10,000 causes pending for trial in the Supreme Court; something like 2,000 in the Appellate branch of that court; and some 500 in the ultimate Court of Appeals. This is exclusive of all the other courts. It takes a good many lawyers to care for all this mass of litigation, and most of the 10.000 lawyers of this State have enough to do. Five millions of people, the third city in the world, another which is the third in this country, and still another which is rapidly striding toward a place among the second-rates, with an enormous agricultural, commercial and manufacturing business, necessarily furnish a great deal of employment to our profession. There is one Englishman who will soon know more about the people and the institutions and the resources of our country than any other who has ever lived, and that is Lord Coleridge, and we do not believe that he will say, when he finishes his tour of inspection, that we have too much law. It has been said that imitation is the sincerest flattery. If that is so, some of our contemporaries must think a great deal of us. There is the Texas Law Review, for example, which has exactly copied defendant said that if time were to be counted, his wife had occupied the seat the winter before. This was the entire conversation which passed between the parties at that time. The defendant, further states, he did not see the plaintiff again till the morning of the difficulty, when approaching the breakfast table he saw the plaintiff in the seat. He said to the plaintiff: 'I see you have my wife's seat again. Will you please move to the next seat and give her seat to her?' He looked up to me in a threatening manner and said, 'No.' I saw there was going to be a difficulty, and I concluded at once I had better strike the first blow, and I seized a Worcestershire sauce bottle and struck him over the head with it. He immediately arose from his seat, and seizing a plate with both his hands, lifted it in the act to strike me. I seized a chair, and raised it, when parties interferred, and that ended the matter." * * * The bottle was broken by the blow, and the plaintiff was led bleeding from the dining-room." The jury thought the defendant ought to pay about $1,000 for his foresight, for saucing" a gentleman, and for this novel resource for getting out of a "difficulty." The court thought that a fair award, observing: "The plaintiff looked at him in a threatening manner, as he supposed. He saw there was going to be a difficulty, and concluded he would strike first. This is his sole excuse. He asked no explanation, he gave none. He had no sort of claim to the seat, as he ought to have known. He was utterly in the wrong in every particular. Carried away by his angry passions, he made a wanton and unprovoked attack on the plaintiff, forcing him to submit to the humiliation of receiving in public a gross insult and indignity, or having an affray which might have endangered the lives or the safety of the guests of the hotel." We are glad that these Virginia gentlemen did not have a duel about the misunderstanding. The law generally applauds diligence and reproves the slothful. "Take time by the forelock," is a common injunction; and the law says, "Vigilantibus et non dormientibus succurrent leges," or "subvenient jura." But there is such a thing as being too anticipatory. In a recent case a defendant tried to excuse a murder because the other party had put his hand behind him, and he thinking the motion was made to draw a pistol, "got the drop" on the behindhand gentleman. In a recent action of assault and battery, Borland v. Barrett, 76 Va. 128, the same danger is illustrated: "It appears that the defendant and his wife, in the year 1878, were boarders at the Atlantic Hotel, in the city of Norfolk. In the summer of that year they went to the mountains, and did not return until the fall season. Upon leaving the hotel the defendant did not reserve the seats usually occupied by himself and wife at one of the tables in the dining-room, and according to the rules of the hotel, these seats were free to be assigned to any other persons. In July, 1878, the plaintiff became a boarder at the hotel, and the seat which had been formerly occupied by the wife of the defendant was assigned to the plaintiff, and was occupied by him without interruption and without person, if question during the summer and fall months. Upon not a person itself, for the reporter's head-note his return to the hotel however the defendant states, "that it may be an assault if one strikes a claimed the seat, and demanded through the head-horse attached to a wagon in which another person is waiter in the dining-room it should be vacated in behalf of his wife. The plaintiff, it seems, was not informed of the previous occupation of the seat by the defendant's wife or of any of the circumstances connected with it, and when asked by the headwaiter if he would change, declined to do so. The defendant, according to his own statement, was not aware that the seat had during his absence been assigned to the plaintiff. When therefore he saw the latter occupying the seat at the table, he took him to be some transient guest who had just arrived by one of the trains, and he requested the plaintiff to take the next seat and give his wife her seat. The plaintiff replied that it was his seat; that he had had it since July, and he preferred to retain it. The v. NOTES OF CASES. IN Car that a house is a part of a man's Downing, 55 Vt. 259, it is apparently a sitting." Royce, C. J., said: "Admitting that the jury might so find, did the striking of the plaintiff's horse constitute an assault upon the plaintiff? It is not necessary to constitute an assault that any actual violence be done to the person. If the party threatened the assault have the ability, means, and apparent intention, to carry his threat into execution, it may in law constitute an assault. The disposition, accompanied with a present ability to use violence, has been held to amount to an assault. Where violence is used it is not indispensably necessary that it should be to the person. It was decided in Hopper v Reeve, 7 Taunt. 698, that the upsetting of a chair or carriage in which a person was sitting was an assault; in Martin v. Shoppe, 3 |