Reidenhauer, 6 S. & R. 531; Riddlesberger v. Mentzer, 7 Watts, 141; Keller v. Michael, 2 Yeates, 300; Eberle v. Fisher, 13 Penn. St. 526; Helfrich v. Obermyer, above cited; Worcester v. Clark, 2 Graut, 84.

In Worcester v. Clark, just cited, it was held that the sale of a bankrupt's real estate by his assignee under the Bankrupt Act of 19th August, 1841, ch. 9, did not divest the widow's right of dower. It is true that the decision was put upon the ground that the right of dower was saved by the proviso, inserted in the second section of that act, that "nothing in this act contained shall be construed to annul, destroy or impair any lawful rights of married women, which may be vested by the laws of the States respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act; " and that the judge delivering the opinion said, that were it not for that proviso, he should have no difficulty in holding that a sale in pursuance of a decree in bankruptcy, would, like a sheriff's sale by virtue of either a judgment or a mortgage, bar dower. But the decision is significant as evidence that by the law of Pennsylvania a right of dower is "a lawful right, valid by the law of the State," and as treating the question whether it was divested by proceedings in bankruptcy as depending upon the true construction of the Bankrupt Act. Upon this question of construction, we are not bound by the opinion of the State court, and have no hesitation in disapproving the dictum, and in holding that the proviso relied on was not in the nature of an exception to or restriction upon the operative words of the act, but was a mere declaration, inserted for greater caution, of the construction which the act must have received without any such proviso, and that the omission of the proviso in the recent Bankrupt Act does not enlarge the effect of the assignment or of the sale in bankruptcy, so as to include lawful rights which belong not to the bankrupt but to his wife.

The result is, that so far as this case depends upon the construction of the Bankrupt Act of the United States, this court is of opinion that there is nothing in that act, or in the proceedings under it, to bar the wife's right of dower in lands of which her husband was seized during the coverture; and that so far as it depends upon the law of Pennsylvania, the decision of the Supreme Court of that State in this case, reported in 87 Penn. St. 513, is in accord with all the previous adjudications of that court, and is strong if not conclusive evidence against the plaintiff in error.

It may be added that this decision is in conformity with one made twelve years ago by Judge Cadwalader in the District Court of the United States for the Eastern District of Pennsylvania. In re Angier, 10 Amer. Law Reg. (N. S.) 190; S. C., 4 Bankr. Reg. 619 Judgment affirmed.

JUSTIFICATION IN SLANDER-QUANTUM OF EVIDENCE.

OHIO SUPREME COURT COMMISSION.

BELL V. MCGINNESS.

In an action of slander for words imputing a crime, the defendant having justified is not bound to prove the truth of the charge beyond a reasonable doubt. MCCAULEY, J. The original action in the Common Pleas was for slander. The slanderous words alleged in the petition were: "He stole the horse without a doubt. There is so much evidence against him that it will convict him."

The defendant, as a defense, alleged the truth of the

defamatory words, and on the trial offered evidence tending to prove his defense.

Upon the trial the court charged the jury that to maintain this defense it must be proved beyond a reasonable doubt.

This instruction to the jury is assigned for error.

The cases in Ohio, bearing upon the correctness of this instruction are, Lexington Ins. Co. v. Paner, 16 Ohio, 324; Struder v. Mullane, 17 Ohio St. 624; Jones v. Greaves, 26 id. 2; Lyon v. Fleahmann, 34 id. 151; and Shaul v. Norman, id. 157.

The defamatory words alleged in the petition amount to a charge of felony.

Only one of the cases above referred to, 16 Ohio, 324, sustains the charge given in the Common Pleas. The other cases, while the rule of preponderance of evidence was held applicable in each of them, were all for misdemeanors or for fraudulent acts not amounting to criminal offenses.

The plain tendency of these cases however is to apply the rule of preponderance of proof in all issues in civil cases.

A finding for the government against the citizen may be followed by deprivation of life or liberty, and hence the propriety of the rule that no such finding should be made without the strong and clear proof required by the rule beyond a reasonable doubt. But in a controversy between man and man, affecting nothing but a claim or a defense to damages and involving nothing but pecuniary or property interests, the reason of the rule wholly fails and the parties should be on an equality as to the quantum of proof required to establish any material fact.

The tendency of modern decisions in other States is to the view we have here taken: Kane v. Hibernia Ins. Co., 10 Vroom, 697; Welsh v. Jugenheimer, 56 Iowa, 11; Behrens v. Ins. Co., 58 id. 26; Blazer v. Ins. Co.. 37 Wis. 31; Thayer v. Boyle, 30 Me. 475; Elliott v. Van Buren, 33 Mich. 51; Gordon v. Parmelee, 15 Gray, 416; Folsom v. Brown, 25 N. H. 114; Bradish v. Bliss, 35 Vt. 326; Prather v. Mich. Mut. Life Ins. Co., 7 Reporter, 293.

The view we have taken of the question presented in the charge of the court, in the Common Pleas, requires a reversal of the judgment of that court, and we therefore take no notice of the error assigned, that the court erred overruling a motion for a new trial, on the ground that the verdict was not supported by sufficient evidence.

CONFLICT OF LAW-STATE DECISION WHEN NOT FOLLOWED-MUNICIPAL BONDS-CONSOLIDATION OF RAILROAD COMPANIES.—(1) The rule re-affirmed that the rule of law of a State as announced by its highest courts at the time railroad bonds were issued will be held to govern in favor of innocent holders notwithstanding later decisions of such court announce a different rule. County of Callaway v. Foster, 93 U. S. 567; County of Scotland v. Thomas, 94 id. 682; County of Henry v. Nicholay, 95 id. 619; County of Schuyler v. Thomas, 98 id. 169; County of Cass v. Gillett, 100 id. 585; Louisiana City v. Taylor, 105 id. 454; County of Ralls v. Douglass, id. 728. (2) Where two railroad companies are consolidated under a law authorizing it, the consolidated company acquires the franchises and privileges of the two companies. Tomlinson v. Branch, 15 Wall. 460; Branch v. City of Charleston, 92 U. S. 677. County of Green v. Conness. Opinion by Bradley, J.

or

PATENT-VOID FOR WANT OF NOVELTY.-An invention which consists merely in packing articles in small bundles for the convenience of retail dealers which are united into a larger package, held invalid for want of novelty. Patent 152500 to King for improvements in baled plastering hair held void. In deciding whether the patent covers an article, the making of which requires invention, the court is not required to shut its eyes to matters of common knowledge things in common use. Brown v. Piper, 91 U. S. 43; Terhune v. Phillips, 99 id. 592; Ah Kow v. Nunan, 5 Saw. 552. The subdivision and packing of articles of commerce into small parcels for convenience of handling and retail sale, and the packing of these small parcels into boxes or sacks, or tying them together in bundles for convenience of storage and transportation, is as common and well known as any fact connected with trade. See also Hotchkiss v. Greenwood, 11 How. 237; Phillips v. Page, 24 id. 169; Brown v. Piper, 91 U. S. 37; Terhune v. Phillips, 99 id. 592; Atlantic Works v. Brady, 107 id. 192; Slawson v. Grand Street, etc., Railroad Co., id. 649. The patent of complainant cannot be sustained by the authority of Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, where the court said: "The invention is a product or manufacture made in a defined manner. It is not a product alone, separate from the process by which it is created." In that case the invention was the product of a new process applied to old materials. In this case it is the product of an old process applied to old materials. King v. Trostel. Opinion by Woods, J.

PRACTICE-ADVANCE ON CALENDAR.-Upon a motion to advance, held that the fact that the questions involved may be of public importance, does not necessarily entitle the parties to a hearing in preference to others. Practically, every case advanced postpones another that has been on the docket three years awaiting its turn in the regular call. Under these circumstances the court will not take up a case out of its order except for imperative reasons. Poindexter v. Greenhow. Opinion by Waite, C. J.

VERMONT SUPREME COURT ABSTRACT. OCTOBER TERM, 1882.*

EXEMPTION-OF FORAGE NOT DEPENDENT ON OWNING ANIMALS.-The exemption of forage is an independent claim or right not conditioned upon the debtor's having the exempt animals to consume such forage; hence when the plaintiff owned only an exempt cow and horse, and the defendant, a sheriff, barely left him hay enough to keep them through the *Appearing in 55 Vermont Reports.

winter, and sold a quantity of hay needed to keep all the stock exempted by statute, such sheriff is liable in trespass. Kimball v. Woodruff. Opinion by Powers, J.

FRAUD-RULE WHEN ONE OF TWO INNOCENT PERSONS MUST SUFFER BY WRONG OF THIRD.-The oratrix owned real estate convered by mortgage, with a decree of foreclosure pending. She and her husband deeded it to two of the defendants, with an agreement with the husband alone, that they were to pay the decree, and when the property was sold the proceeds were to be applied to pay the amount of the decree, to pay for the care and management of the property, and an indebtedness due from the husband to one of the defendants. The wife did not know what contract had been made with the defendants except as she was informed by her husband, who procured the deed to be executed and delivered it. She intrusted him with her title deed, and understood that whatever arrangement was to be made with the defendants in relation to the property was to be made by him. Held, that the proceeds of the real estate should be applied in accordance with the husband's contract; that the rule applies that where one of two innocent parties must suffer by the fraud of a third, he who has reposed a trust in the fraudulent agent ought to bear the loss. Spaulding v. Drew. Opinion by Royce, C. J.

NEGLIGENCE DEDICATION.-The defendant railroad is liable for injuries sustained by the plaintiff while travelling on a highway, which injuries were caused by its leaving obstructions on the margin of the highway, though it had never been surveyed, but had been used by the travelling public more than twenty years. A highway by dedication may have a margin. Brownell v. Troy & Boston Railroad Company. Opinion by Royce C. J.

-RAILROAD CROSSING HIGHWAY BY

WILL-DEFINITION OF LEGACY-TRUST IN EXECUTOR TO ACT IN DISCRETION-POWER OF COURT.-(1) Although the term legacy is properly applied to personal property only, yet sometimes, by force of the context, it has been held to apply to realty as well; as in Hope v. Taylor, 1 Burr. 268, and Hardacre v. Nash, 5 T. R. 716. In Hughes v. Pritchard, L. R., 6 Ch. D. 24, the words, "residuary legatees," were held to designate the persons to take realty not specifically devised. (2) A testator directed as follows: "I do give to my son Delos said legacies in trust as follows: That the same be kept by the said Delos, until in the judgment of Delos, the said Jerome shall prove himself worthy of receiving the same, and then and not till then to deliver the same to the said Jerome. It is further my will that if my said son Delos shall not at any time judge it best to deliver said property to my said son, Jerome, that the same shall be and remain the property of my said son Delos, and his heirs forever." A bill having been brought by the beneficiary to compel a surrender of the trust estate, held it is an express trust for the benefit of the orator, on condi tion that he proves himself worthy to have it executed in his favor, of which worthiness the trustee is made the judge. But he is not the sole arbiter. His motives may be inquired into. The trustee cannot exercise his discretion and judgment from fraudulent, selfish, or other improper motives; nor can he refuse to exercise them from such motives; but he must act bona fide, with a simple view to carry out the intention of the testator; and the court will control his judgment and discretion to the extent of compelling an honest exercise thereof. Bashwood v. Bulkeley, 10 Ves. 230; Peyton v. Bury, 2 P. Wms. 626; Bax v. Whitbread, 16 Ves. 15. A person having a power must exercise it bona fide for the end designed. Aleyn v. Bel

chier, 1 Eden. 132. In the exercise of powers, trustees should act with purity of motives, and with a single view to carry out the exact purpose of the power and the intention of the testator. Perry Trusts, § 511 a. But the court will not deprive a trustee of the honest exercise of the discretion that the testator has vested in him. Sharon v. Simons, 30 Vt. 458; Mason v. Jones, 3 Edw. Ch. 524; Ireland v. Ireland, 84 N. Y. 321. Bacon v. Bacon. Opinion by Rowell, J.

KANSAS SUPREME COURT ABSTRACT. JANUARY TERM, 1883.*

CONTRACT-OF SALE-PARTY DISABLING HIMSELF FROM PERFORMING NOT RELIEVED.-A party who purchased property at a stipulated price, agreeing to pay such price upon a certain condition, and thereafter by his own act and of his own volition disables himself from complying with the condition, does not thereby relieve himself from liability for such purchasemoney, but on the contrary becomes instantly and absolutely liable therefor. A party to a contract who prevents the performance of any condition can neither claim benefit nor escape liability from the failure of such condition. Dill v. Pope. Opinion by Brewer, J.

GARNISHMENT — OF

INDIVIDUAL PROPERTY FOR FIRM DEBT-RIGHTS BETWEEN CREDITOR OF FIRM AND INDIVIDUAL.-Where a partnership and all the members thereof are insolvent, and a firm creditor garnishes the debtor of one of the members of the firm, which debtor holds a fund belonging to such member, and subsequently a creditor of such member garnishes the same debtor, but neither creditor obtains the possession of such fund, held, that as between the creditor of the firm and the creditor of such member, the creditor of the firm has the prior right to such fund. The rule is well settled, where other things are equal, that the property of a partnership firm must be first applied to the payment of the partnership debts, and the property of an individual member of the firm must be first applied to the payment of the debts of such individual member. Switzer v. Smith, 35 Iowa, 269; Rodgers v. Meranda, 7 Ohio, St. 179; Glass Co. v. Ludlum, 8 Kas. 41, 50; Northern Bank of Kentucky v. Keizer, 5 Am. Law Reg. 75; Davis v. Howell, 33 N. J. Eq. 72; Toombs v. Hill, 28 Ga. 371; Kuhne v. Law and Sniffer v. Sass, 14 Rich. (S. C. L.) 20; M'Culloh v. Dashiell, 1 Har. & G. 96; McCormick's Appeal, 55 Penn. St. 252. But this rule is often held not to apply as against the partnership creditors, where the partnership, or both the partnership and all the members thereof, are insolvent; and the rule never applies as against the partnership creditors where they have obtained a prior lien upon the property of one of the individual members. Allen V. Wells, 22 Pick. 450; Stevens v. Perry, 113 Mass. 380; Gillaspy v. Peck, 46 Iowa, 461; Cumming's Appeal, 25 Penn. St. 268; Meech v. Allen, 17 N. Y. 300; Cleghorn v. Ins. Bank, 9 Ga. 319; Baker v. Wimpee, 19 id. 87; Dunham v. Hannah, 18 Ind. 270; Wisham v. Lippincott, 9 N. J. Eq. 353; Howell v. Teel, 29 id. 490; Emanuel v. Bird, 19 Ala. 596; Barnwell v. Perry, 19 Vt. 292. Fullam v. Abrahams. Opinion by Valentine, J. NUISANCE-LEGITIMATE USE OF ONE'S OWN LAND NOT, THOUGH ANNOYING NEIGHBORS. - A. was the owner of a homestead occupied by himself and family, the dwelling being within thirteen feet of a tract of vacant land belonging to B. B. commenced erecting a house upon his ground close to the line. Thereupon A. filed his petition, alleging that B. out of spite, and *Appearing in 29 Kansas Reports.

because A. had refused to sell him his homestead at a grossly inadequate price, was going to erect small tenement houses close to the line and fill them with worth

less negroes. After issue joined the case went to trial, and from plaintiff's testimony it appeared that defendant had erected within four feet of the line a small tenement house of two rooms, without cellar or foundation walls, and in such conditiou that it could easily be moved; that the house was painted and looked neat, and was occupied by a colored preacher and his family who were well behaved, and that such a house would rent at five or six dollars a month. It also appeared that defendant threatened to punish plaintiff for refusing to sell his homestead at the price he had offered, and said that he would build small tenement houses in close proximity to such homestead and then plaintiff would be glad to get a much less sum than he had offered. A demurrer to the evidence was sustained, and judgment entered for the defendant. Held, that the court did not err; that although the defendant was acting from spite, yet the buildings which he was erecting were legitimate and profitable improvements of his property, were used for legitimate purposes, and could not be adjudged nuisances, no matter how disagreeable and annoying they might be to plaintiff. Falloon v. Schilling. Opinion by Brewer, J.

PARTNERSHIP-PRESUMPTION AS TO NOTE IN FIRM NAME.-Where a partnership is organized for the purpose of buying, selling and dealing in drugs, medicines, etc., and the managing partner borrows money and gives a note therefor in the partnership name, it will be presumed that the note was executed for a partnership purpose and in the course of partnership dealings, and the burden of proof will rest upon him who asserts the contrary; and in the absence of proof to the contrary, it will also be presumed that the entire transaction was in good faith. Davis v. Cook, 14 Nev. 277; Teft v. Stewart, 31 Mich. 373, 377; Deitz v. Regnier, 27 Kas. 94, 104, et seq.; Gregg v. Fisher, 3 Brad. 261; 1 Parsons Notes, 128; Whitaker v. Brown, 16 Wend. 511; Gansevoort v. Williams, 14 id. 138; Carrier v. Cameron, 31 Mich. 377. Lindh v. Crowley. Opinion by Valentine, J.

TEXAS SUPREME COURT ABSTRACT.

CORPORATION-MUST DECREE IN PLACE OF CREATION. A private corporation whose character has been granted by one State cannot hold meetings or pass notes, or have any legal existence in another State. It must decree in the place of its creation and cannot migrate to another sovereignty. Bank of Augusta v. Earle, 13 Penn. St. 519; Miller v. Ewer, 27 Me. 509; Aspinwall 7. O. & M. R. Co., 20 Ind. 497. This prohibition as to the performance of acts outside of the State where chartered refers to acts of a strictly corporate character such as must be discharged by the corporators themselves, such as the original organization, the election of directors, etc. The better opinion is that the mere transaction of such business as is usually done by the directors, or other agents of the body may be done as well without the State as within it. Bellows v. Todd, 39 Iowa, 259; Arms v. Conant 36 Vt. 745; Gal. R. Co. v. Cowdrey, 11Wall. 476. Franck, Texas Land Co. v. Laigh. Opinion by Willie, C. J. [Decided April 27, 1883.]

NEGLIGENCE - THAT PROPERTY DESTROYED BY NEGLIGENT FIRE, IS INSURED, NOT DEFENSE TO ACTION FOR LOSS. That cotton destroyed by fire caused by defendant's negligence was fully insured cannot be set up as a defense to an action by the owner for the loss.

The policy of insurance is collateral to the remedy against the defendant, and was procured solely by the plaintiff at his expense, and to the procurement of which the defendant was in no way contributory. *** It cannot be said that the plaintiff took out the policy in the interest or behalf of the defendant; nor is there any legal principle which seems to require that it be ultimately appropriated to the defendant's use and benefit. Weber v. Morris and Essex R. Co., 35 N.J. L. 413; Clark v. Wilson, 103 Mass. 221; Hayward v. Cain, 105 id. 213; Propeller Monticello v. Mollison, 17 How. 155; Dunham v. Insurance Co., 1 Low. 253; Mason v. Sainsburg, 3 Doug. 61; Clark v. Inhabitants, 2 Barn. & Cress. 254; Merrick v. Brainard, 38 Barb. 589. Texas & Pacific Railroad Co. v. Levi. Opinion by Stayton, J.

[Decided June 29, 1883.]

SUBSCRIPTION-WHEN CONTRACT ENFORCEABLE.Where a person subscribes toward establishing a school to be located in such county as should contribute a specified sum, and the specified sum is contributed in a county, the one subscribing is bound and the contract enforceable against him. Among the cases which held such contracts binding are the following: Hopkins v. Upshur, 20 Texas, 93; Doyle v. Glasscock, 24 id. 201; Rose v. Railroad Co., 31 id. 58; Comstock v. Howe, 15 Mich. 242; Watkins v. Eanes, 9 Cush. 539. Williams v. Rogan. Opinion by Stayton,

J.

[Decided May 18, 1883.]

MARYLAND COURT OF APPEALS ABSTRACT. APRIL TERM, 1883.*

DIVORCE -SUIT FOR ABATES ON DEATH-WIFE'S RIGHT TO SUPPORT.—(1) A divorce suit being a personal action, the death of either party before decree abates the divorce proceedings; and this effect extends to whatever is identified with those proceedings. Where pending a suit by the wife for a divorce a mensa et thoro, the husband dies before a final decree, the court cannot, after the death of the husband, require his executor to become a party to the suit, to auswer the demand of the wife for an additional allowance for counsel fees for services rendered in the cause during the life-time of the husband, nor pass an order requiring such executor to pay the same. (2) A wife has the right, independently of the actual merits of the case, to require her husband, when she is living apart from him, and without means of her own, to defray the expenses of prosecuting her suit for a divorce, the court exercising its sound discretion as to when and to what extent such allowance shall be granted. Authorities referred to: Wilson v. Ford, L. R., 3 Ex. 68; Shafer v. Shafer, 30 Mich. 164; Dow v. Eyster, 79 Ill. 254; Pearson v. Darrington, 32 Ala. 254. McCurley v. McCurley. Opinion by Ritchie, J.

LIBEL-CHARGE AGAINST PUBLIC OFFICER-NEWSPAPER RIGHTS.-An article charging plaintiff, who was a senator, with being under the control of a corrupt ring, with proving false to his party, and with being influenced as to his vote by a contract for public work, held libellous, per se. Any publication which tends to injure one's reputation, and expose him to hatred or contempt, if made without lawful excuse, is libellous. The liberty of the press guaranteed by the Constitution is a right belonging to every one, whether proprietor of a newspaper or not, to publish whatever he pleases without the license, interference, or control of the government, being responsible alone * Appearing in 60 Maryland Reports.

for the abuse of the privilege. In every free country a citizen has the right, within lawful and proper limits, to discuss, and censure boldly, and fearlessly the official conduct of a public man; but there is a broad distinction between fair and legitimate discussion of the conduct of a public man, and the imputation of corrupt motives by which that conduct may be supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base aud corrupt motives, he must do so at his peril, and must either prove the truth of what he says, or answer in damages to the party injured. The fact that one is the proprietor of a newspaper entitles him to no privilege in this respect not possessed by the community in general. The law recognizes no duty imposed on him, arising from his relations to the public, to defame and libel the character of any one; and if he does, it is no answer to say he did it in good faith and without malice, honestly believing it to be true. Negley v. Farrow. Opinion by Robinson, J.

WILL-POWER TO SELL DOES NOT INCLUDE POWER TO MORTGAGE BENEFICIARIES JOINING IN MORT

GAGE EQUITABLE RELIEF.-(1) A will creating a trust contained the following clause: "My said trustee shall have power to invest, and change the investment of said moiety, and for that purpose to sell, convey and dispose thereof, or any part thereof, as often as he may think proper." Held, that this power did not au thorize the trustee to mortgage the property to secure the repayment of a loan. (2) Held also, that it was competent for the cestuis que trust, on arriving at age, to confirm and make valid a mortgage executed by the trustee, to secure a loan, but to make such confirmatory mortgage binding on them, it must appear that they acted advisedly, with their eyes open, with information in regard to every material circumstance surrounding the transaction, with knowledge that the mortgage by the trustee was not made in pursuance of the power conferred by the will, and was not therefore binding on them, and that the money borrowed was expended by him for his own personal use, and not for the benefit of the trust estate. That the confirmatory mortgage executed by the cestuis que trust could not be supported as a contract made in consideration of forbearance to sue on the mortgage debt. If a cestui que trust, through mistake of his legal rights aud of the facts, assumes an obligation in respect of the estate, which he would not have assumed but for such mistake, equity will relieve. Authorities cited: Callisher v. Bischoffsheim, L. R., 5 Q. B. 450; Cook v. Wright, 1 B. & S. 566; Wilby v. Elgee, L. R., 10 C. P. 500; Ockford v. Barelli, 20 W. R. 116; Hawes v. Venables, L. R., 7 Exch. 239; McCarthy v. Delaix, 2 R. M. 615; Broughton v. Hutt, 3 De G. and J. 501; Ramsden v. Hylton, 2 Ves. Jr. 304. Wilson v. Maryland Life Insurance Co. Opinion by Robinson, J.

--

46

WILL DEFINITION - "NEAR RELATIVES" THOSE WHO WOULD TAKE UNDER STATUTE OF DISTRIBUTION. A testator devised all his lands to his son, and in the event of his son's death, "leaving no child of the lawful issue of his body at the time of his death," declared it to be his will and desire that his wife, S. W., should have his said lands or real estate so devised to his said son, with a special request that at her death she give the said lands to be equally divided between her near relatives and mine." The son having died without issue, and the wife of the testator having subsequently died without making disposition of the property by deed or will, it was held that by the terms of the devise to his wife a trust was created in the testator's lands for the benefit of the near relatives of his wife and himself. That no legal uncertainty attached to the term "near relatives" as used by the testator,

they being those who would take under the Statute of Distribution. That the heirs-at-law or next of kin of the testator were entitled to one undivided half of the land devised, and the heirs-at-law or next of kin of the testator's widow were entitled to the other unundivided half. Authorities referred to, Pennock's Case, 20 Penn. St. 272; Reed's Administrator v. Reed, 30 Ind. 313; Harrison v. Harrison's Adm'x, 2 Grat. 1, and Warner v. Bates, 98 Mass. 274; Tolson v. Tolson, 10 G. & J. 159; Chase v. Plummer, 17 Md. 165; Williams v. Worthington, 49 id. 572. The capacity of those to take under a devise or legacy who are described as "relations" has been too long upheld by settled construction for legal uncertainty to attach to the term "near relatives," used by the testator of the will before us; and in determining who, under this nomen collectivum" are entitled, and in what proportions, recourse, as a general rule, is had to the Statutes of Distribution, 2 Jarm. Wills (5th Am. ed.), 661; 2 Wms. Ex. (5th Am. ed.), 1003; 2 Redfield Wills (3d ed.), 85. In Whithorne v. Harris, 2 Ves. Sr. 527, the bequest was to all and every person and persons who are "near relations to me.' In Doe v. Over, 1 Taunt. 263, the testator gave his freehold estates to his wife, to be equally divided at her decease amongst the "relations on his side." In the first case the legatees, in the second the devisees, took under the Statute of Distribution. See also Harding v. Glyn, 1 Atk. 469; Cruwys v. Colman, 9 Ves. 319; Tiffin v. Longman, 15 Beav. 275. Handley v. Wrightsom. Opinion by Ritchie, J.

་་

PENNSYLVANIA SUPREME COURT

ABSTRACT.

EVIDENCE + BOOK ENTRY-ONE BUNCHING ACCOUNT NOT ADMISSIBLE.-A book entry reading as follows: "B. CORR. DR. July 13, 1880, To repairing brick machine, $1,932.76.". Held, not admissible in evidence. The general rule is well established that books of original entries, properly proved, are evidence of work and labor performed, and of goods sold and delivered. Yet to this general rule several exceptions have been recognized. Among them, that the invoice book of an agent is not evidence of the sale and delivery of goods. Cooper v. Morrel, 4 Yeates, 341. Nor of goods to be delivered at a future day, Rheem v. Snodgrass, 2 Grant, 379. Nor of work done in an action for part performance under a special contract, Alexander v. Hoffman, 5 W. & S. 382; Eshleman v. Harnish, 26 P. F. Smith, 97; nor of the sale of a horse not in the course of the parties' business, Shoemaker v. Ellis, 1 Jones, 310. Books of original entry were formerly received in evidence from necessity. Where the transaction from its nature admits of more satisfactory proof they should not be received. Id. Now since the parties are competent witnesses in their own behalf, great care should be taken that there be no enlargement of the rule. There is a limit as to the maximum sum for which a book may be received in evidence. Much more depends on the nature and character of the subject-matter of the item, and on the evidence outside of the book, which naturally exists to prove the item. In Leighton v. Manson, 14 Me. 208, the book of original entries was held incompetent to prove an account of two charges for beef, bearing date the same day, one for 355 pounds, the other for 360 pounds. The exclusion appears to have been sustained by reason of the articles having been of such bulk and weight that they were not delivered without assistance, and therefore better evidence than the book was attainable. In Thomas v. Dyott, 1 Nott & McCord. 186, it was declared that this species of evidence ought not to be allowed

where it is in the power of the party to produce other evidence. Hence, in Pelzer v. Cranston, 2 McCord, 328, it was held that a school-master's books, though regularly kept, were not evidence to prove his account, as he must have had many witnesses at command, and the evidence of his books was therefore not necessary. The rejection of the book to prove the sale of the horse, in Shoemaker v. Ellis, supra, appears to have been ruled chiefly on the ground that from the nature of the transaction, there must have existed other and better evidence of the sale. The charges must be reasonably specific and particular. This is the more necessary, inasmuch as when received the books are prima facie evidence both of the item charged and the price or value carried out. Ducoigu v. Schreppel, 1 Yeates, 347; Baumgardner v. Burnham, 12 Norris, 88. A general charge for work and labor of a mechanic, without any specification but that of time, cannot be supported by evidence of an entry on the book. Therefore a brick layer's charge of "190 days' work" was rejected, Lynch Adm'rs v. Petrie, 1 Nott & McCord, 130. So a charge "$13 for medicine and attendance on one of the general's daughters in curing the whooping cough," was rejected as too indefinite. Hughes v. Hampton, 2 Const. Rep. 745. An item in' an account of "seven gold watches, $308," was held insufficient, Bustin v. Rogers, 11 Cush. 346. Corr v. Sellers. Opinion by Mercur, C. J. [Decided Oct. 2, 1882.]

MUNICIPAL CORPORATION

COUNTER-CLAIM

BOROUGH CANNOT PURCHASE. A borough has no right to purchase claim against its creditor so as to set it off against such creditor. Early's Appeal. Opinion by Gordon, J.

[Decided May 21, 1883.]

MARRIAGE-DEED FROM HUSBAND TO WIFE.-Equity will sustain a deed from a husband directly to a wife. It is true, a deed from a husband directly to his wife is a nullity at common law. Under modern legislalation and the application of equitable principles, a wide departure has been made from the common law in respect to the ability of a wife to acquire and hold property. Her right of acquisition and power of control are not restricted to property obtained from one not her husband. When not in fraud of creditors of the husband, a conveyance from him directly to his wife may be sustained on equitable principles. Coates v. Gerlach, 8 Wright, 43; Townsend v. Maynard, 9 id. 198; Pennsylvania Salt Manuf. Co. v. Nell, 4 P. F. Smith, 9; Rose v. Latshaw, 9 Norris, 238. A husband may not only convey directly to his wife for a valuable consideration, but he may also convey to her as a gift when not prejudicial to his creditors. Thompson v. Allen. Opinion by Mercur, C. J. [Decided March 26, 1883.]

NEW JERSEY COURT OF CHANCERY ABSTRACT.

MAY TERM, 1883.*

AGENCY - LIABILITY OF PRINCIPAL FOR CONTRACT OF AGENT-CONTRACT UNDER SEAL. - A principal is bound by the acts of his agent within the authority expressly given, and also for such acts as it is necessary for the agent to do to accomplish the object of his appointment. Where a contract is made by an agent, without disclosing his principal, and the other contracting party afterward discovers the principal, he may waive his right to look to the agent, and resort to the principal. And in such a case, parol evidence is admissible to show who the principal was, even when *Appearing in 10 Stewart's (37 N. J. Eq.) Reports.