taking and holding the property under writs, adopt and ratify his act done in their behalf, and become, in contemplation of the law, joint wrong doers with him, and liable as such. Davis v. Newkirk, 5 Denio, 92; Herring v. Hoppock, 15 N. Y. 409; Freeman, Exus., § 273; Knight v. Nelson, 117 Mass. 458; Screws v. Watson, 48 Ala. 628; Lewis v. Johns, 34 Cal. 629; Lovejoy v. Murray, 3 Wall. 1. The indemnitors thus become subject to a double liability, but upon different and distinct legal grounds, and to different parties. They are answerable to the owner of the property for the wrongful levy upon and retention of his property. This liability, arising ex delicto, is enforceable by an action by the owner against them alone or jointly with the officer. Again they are responsible to the officer upon their contract of indemnity for any recovery which might be awarded against him on account of the levy. This liability, arising ex contractu, is enforceable after the sheriff should have been indemnified by an action prosecuted by him upon the contract or undertaking of indemnity. (2) The general rule that neither contribution nor indemnity may be had by one wrong-doer against another for the consequences of the wrongful act, is subject to this among other exceptions, viz.: When one is employed or directed by another to do an act in his behalf which is not manifestly wrong, and which the former does not know, or is not presumed to have known to be wrong, the law implies a promise of indemnity by the principal for such damages as flow directly from the execution of the agency. The employer impliedly assumes the responsibility. 1 Chit. Cont. 748; Adamson v. Jarvis, 4 Bing. 66; Moore v. Appleton, 26 Ala. 633. The principle is applicable to the case of the sheriff, who in good faith follows the direction of the plaintiff in a writ of attachment or execution in levying upon property. Gower v. Emery, 18 Me. 79; Nelson v. Cook, 17 Ill. 443; Sanders v. Hamilton, 3 Dana, 550; Humphrys v. Pratt, 2 Dow & Clark, 288; Freeman, Exns., § 275; and see Stoyel v. Cady, 4 Day, 222, 226. Fisher v. Getman. Opinion by Dickinson, J. [Decided March 24, 1883.]

RHODE ISLAND SUPREME COURT

ABSTRACT.*

PAYMENT APPLICATION OF PARTNERSHIP.-A. doing business alone and indebted to B. on book account entered into partnership with C., and became the managing partner of the firm. B. was notified of the partnership, supplied the firm with goods, entered A.'s indebtedness on the statements of the firm's account, and received from A. at different times checks of the firm which were applied to A.'s indebtedness. No intentional concealment and no fraud appeared in the transaction. In assumpsit by B. against the firm. Held, that B. was not entitled to apply the firm checks to A.'s debt. Held, further, that the firm could not recover in set-off the excess of the firm's checks over the firm's purchases. Held, further, that the firm was entitled to the benefit of the misapplied fund in payment of B.'s claim against the firm. The technical rule which prevents a co-partnership from suing at law to recover funds misapplied by a partner should not be applied to defenses further than is clearly required. Jones v. Yates, 4 M. & R. 613; 9 B. & C. 532; Wallace v. Kelsall, 7 M. & W. 264; Gordon v. Ellis, 7 M. & G. 607; Greeley v. Wyeth, 10 N. H. 15; Homer v. Wood, 11 Cush. 63; Tay v. Ladd, 15 Gray, 296; Farley v. Lovell, 103 Mass. 387. Cornells v. Stanhope. Opinion by Durfee, C. J.

[Decided Feb. 10, 1883.]

To appear in 14 Rhode Island Reports.

SHERIFF-LIABILITY FOR ESCAPE-WHEN DEBTOR NOT LIABLE TO.-A sheriff who suffers an arrested debtor to escape is liable in his official character and not as bail. Hence if compelled to pay the debt in consequence of his default; he has no remedy against the debtor. In Brown v. Lord, Kirby, 209, it was held that a sheriff is liable for an escape but not as bail; nor is he to be sued as such, but in his official character; the reason being doubtless, that a plaintiff is not to be compelled to rely merely on the personal responsibility of the sheriff, but is entitled to the security offered by the bond given by him for the faithful performance of his duties as sheriff. In Dresser v Fifield, 12 R. I. 24, this court held that to constitute a person who indorses a writ under Gen. Stat. R. I., ch. 196, 8, bail, he must write his christian and surname in full. In Adams v. Hedgpeth, 5 Jones, 327, the instrument returned as a bail bond had been signed and sealed by the defendant, but his name did not appear in the body of the bond, nor was it stated in the condition that he was bail for the principal obligor. It was held that the defendant was not thereby constituted bail; and in Adams v. Jones, 1 Winst. 199, 200, it was held that the taking of such a bond was not to be regarded as taking bail. An officer who allows a person under lawful arrest to go at large, without taking bail, suffers an escape of such person. Sewell's Law of Sheriff, *440. Having been obliged to pay money in consequence, he cannot maintain an action to recover it, wherein he must allege his own breach of duty. Eyles v. Faikney, Peake's Nisi Prius, 144, note (a); Pitcher v. Bailey, 8 East, 171. And see also Cordron v. Lord Masserene, Peake's Nisi Prius, 143, in which the same rule is recognized. Carpenter v. Fifield. Opinion by Matteson, J. [Decided Jan. 27, 1883.]

WAY-OBSTRUCTION OF.-A. filed a bill in equity against B. to prevent his obstructing a strip of land between their estates and houses which originally belonged one-half to the estate of each, but which had become a public way by fifty year's use. A. charged that the only access to his back door and yard was through the way over this strip of land. On demurrer to the bill. Held, that the bill sufficiently charged special damage to the complainant. Clark v. Peckham, 10 R. I. 35, 38; Williams v. Tripp, 11 id. 447. See also Stetson v. Faxon, 19 Pick. 147. Gorton v. Tiffi ney. Opinion by Carpenter, J. [Decided Feb. 3, 1883.]

RECENT ENGLISH DECISIONS.

AGENCY - PRIVILEGED STATEMENT OF AGENT TO PRINCIPAL NOT ADMISSIBLE AGAINST PRINCIPAL.-A statement made by an agent to his principal cannot be used against the latter by a third party; nor where the agent is the common agent of a body of persons, such as the chairman of a company, can a statement by him to the members of the body, e. g., at a statutory meeting. be used against the body by one of its own members, e. g., a shareholder. A. applied to have his name removed from the list of members of a company on the ground that he had been induced to take shares by false representations contained in a prospectus. At the hearing of the application he sought to use, in support of his contention as to the falsity of the prospectus, a statement made by the chairman of the company (after the issue of the prospectus) in course of explaining the company's affairs at a statutory meeting. Held, that he could not be allowed to do so. Meux's Executors' case, 2 De G. M. & G. 522, distin

NEGOTIABLE INSTRUMENT--ILLEGAL CONSIDERATION

- LEAVING BLANKS — ALTERING FIGURES. — (1) Evidence that one maker of a note told the other, an accommodation maker, that he wanted the latter to sign the note to prevent the payees from making him trouble for embezzlement in the use of funds, is insufficient to justify a fiuding that the payees received the note upon a corrupt and criminal agreement not to prosecute for such embezzlement. (2) One who signs an instrument for the payment of money only, (whether negotiable or not), leaving the amount blank, and intrusts it to another with authority to fill the blank with an agreed sum, will, as to third persons having no knowledge of the limitations of such authority, be bound by the act of the person to whom the instrument was intrusted, although he fills the blank with a larger sum than that agreed. So held where A., as accommodation maker with B., signed a note upon the upper left hand corner of which were the figures $45, but the amount of which was left blank with the understanding that B. should fill the blank so as to make it a note for $45, and before delivering the note to the payees, and without their knowledge, B. filled the blank with the words " four hundred and fifty dollars," and annexed a cipher to the figures $45. The figures in the corner of such note were no part thereof, and an unauthorized change in them did not vitiate the note. See Snyder v. Van Dorn, 46 Wis. 602; Walker v. Evert, 29 Wis. 194, 199; Bank v. Spence, 9 Ala. 800; Frazier v. Gaines, 58 Tenn. 92; Johnson v. Blasdale, 1 S. & M. (Miss.) 17. The rule almost universally adopted, is clearly stated in the case of Bank v. Neal, 22 How. 107, as follows: "When a party to a negotiable instrument intrusts it to the custody of another with blanks not filled up, whether it be for the purpose to accommodate the person to whom it was intrusted or to be used for his own benefit, such negotiable instrument carries on its face an implied authority to fill up the blanks and perfect the instrument; and as between such party and innocent third parties, the person to whom it was intrusted must be deemed the agent of the party who committed such instrument to his custody; or in other words, it is the act of the principal and he is bound by it." See also 2 Pars. Notes, 546; Poorman v. Mills, 39 Cal. 345, 356; Schryver v. Hawkes, 22 Ohio St. 308; Smith v. Smith, 1 R. I. 399; Reilly v. Dickens, 19 Ill. 29; Gerrard v. Lewis, 27 A. L. J. 130; 47 Law T. Rep. (N. S.) 408. Wisconsin Sup. Ct., March 13, 1883. Johnston Harvester Co. v. McLean. Opinion by Taylor, J.

NEGOTIABLE INSTRUMENT-NOTE SIGNED BY ONE AS AGENT-MARRIED WOMAN-ADMISSION BY FAILURE TO DENY EVIDENCE. (1) Where one sigus a note with his own name, and nothing appears on its face to show that he is acting for another, he will be held personally liable. So too where one signs for another for whom he has no legal authority to act, as where he adds to his own name the word administrator, executor, guardian or agent, the obligation is held to be a personal one. But where one signs a note, "J. A. Robson, agent for wife," it is evidence that the intent was to bind the wife for her benefit, and in an action upon the note against her a failure on her part to deny, held to be an implied admission of his authority to make the note. (2) Where the principal is distinctly indicated on the face of the paper, such principal and not the agent will be the party liable. The rule however is that this must appear in some way, the particular form being immaterial. Of course the liability will always depend on the right of the agent to bind the principal. (3) Where it appeared from the face of the paper that Robson was only an agent, and also for whom he was agent, parol evidence was admissible to

show who the wife was, for it is no attack on the writing to do this by additional testimony. Georgia Supreme Court, March 17, 1883. Rawlings v. Robson. Opinion by Crawford, J.

CRIMINAL LAW.

MALICIOUS MISCHIEF - ALIBI- EVIDENCE. — Upon the trial of a prosecution for malicious mischief the court charged that "if the evidence, irrespective of the alibi, convinced the minds of the jury beyond a reasonable doubt of the commission of the offense, and of the identity of the person who committed it, and if they believed from the evidence that the defendant was guilty under the law as given them in charge, then the evidence of the alibi must be so strong as to convince their minds beyond a reasonable doubt of the truth of the alibi. That to acquit on the ground of alibi, the evidence on that point should have the same certainty as is required to convict on the part of the State; it should outweigh the evidence of the State, and show that the commission of the offense by the defendant at the time it was alleged to have been committed, if committed at all, was an impossibility. Held error. Georgia Supreme Court, Feb. 20, 1883. Taudlis v. State of Georgia. Opinion by Hall, J.

PENSION-ILLEGAL FEES BY AGENT-PRACTICE-REPEAL.-(1) Where sections 5485, and 4785, U. S. R. S., in relation to excessive fees by pension agent must be construed together in order to constitute the offense charged in the indictment, and section 4785 has been repealed before the commission of the offense alleged, by a subsequent amendment thereto, it is wholly inadmissible, in dealing with the criminal provisions of section 5485, to extend them by construction to the future acts of Congress, when, by the express words of the section, its provisions are confined to the then existing pension law, of which the amended section was a part. (2) Where the verdict in a criminal case is general, if any one count in the indictment is good, the judgment cannot be arrested. U. S. Dist. Ct., Iowa Jan. 7, 1883. United States v. Jenson. Opinion by Love, J. (15 Fed. Rep. 138).

NOTES.

An English newspaper contains an advertisement of a scheme to do without lawyers, and thus as the advertiser phrases it, "save many a bright sovereign." This should be of interest to the Czar.

The American Law Review for May and June contains the following leading articles: Practice in Cases of Foreign Extradition, by Seymour D. Thompson; Fraudulent Mortgages of Merchandise, by James O. Pierce; Pilotage; State Legislation thereon, by H. G. Ward; Trial by Jury, by Matthew P. Deady; Actions on Judgments, by W. P. Wade; Implied Warranty 01 Fitness of a Chattel, by Charles A. Bucknam.

high or low, was there ever one spark of jealousy at the unrivalled success which he so speedily attained, both on his circuit and in Westminster Hall. He knows we were all proud of him. He knows that with an unaminity remarkable even in this generous profession, bench and bar have met to-night with enthusiastic cordiality to do him honor. I am told by a learned friend of mine, older than myself, and who knows everything, that forty years ago some similar honor was intended for though, as it happened, it could not be actually received by Story. Forty years have elapsed, and we pay such an honor to one more distinguished than Story, but whom we think of here as an English barrister and an Englishman." Mr. Benjamin is unquestionably a very distinguished" man, pro tempore, and has made a great deal of money at the bar, but as Yankees, we "rather guess " that Story will outlive him. Mr. Benjamin must depend upon his single book for future fame, and if editors keep on accumulating notes to it, his share in the work will soon become as problematical as the old jack knife with the new blades and handle. The Attorney General said, among other things: "We had been taught by the same teachers, Coke and Blackstone; Kent and Story had been, or at least ought to have been our common guides."

The sixth annual meeting of the American Bar Association will be held at Saratoga Springs, on Wednesday, Thursday and Friday, August 22, 23, and 24, 1883. The exercises will be as follows: Wednesday morning - The president's address, by Alexander R. Lawton, of Georgia; nomination and election of members; election of the general council; reports of the secretary and treasurer; report of the executive committee. Wednesday evening A paper by Robert G. Street, of Texas, on How far Considerations of Public Policy may enter into Judicial Decision;" a paper by Simon Sterne, of New York, on "Slipshod and Corrupt Legislation, and the Remedy." Thursday morning - The annual address, by John W. Stevenson, of Kentucky; reports of standing committees; Reports of special committees. Thursday evening - A paper by Simeon E. Baldwin, of Connecticut on "Preliminary Examinations in Criminal Proceedings; " a paper by John M. Shirley, of New Hampshire, on "The future of our Profession." Friday morning Nomination of officers; miscellaneous business;

election of officers.

Our State Library will be removed to temporary quarters in the new Capitol during the months of August and September next. This will necessitate the closing of the Library to the public from August fifth till October first.

The Association for the Reform and Codification of the Law of Nations will meet at Milan on the 11th to the 14th September, next. The following subjects are recommended by the executive council for discussion. I. Public international law; arbitra

tion, progress of, for the settlement of international disputes; consular jurisdiction, its defects and their remedy; contraband of war, its proper limitation; relations between christian and non-christian people. II. Private international law; bills of exchange; copyright, security of; foreign judgments; marriage law, conflicts of; negotiable securities. III. Maritime law; affreightment and bills of lading; a common form of bill of lading; collisions at sea; joint-stock companies; ownership of ships by. Reports will be presented by the committees of the association upon several of these subjects. Papers and communications are invited upon any of the specified or other like subjects. Communications should be addressed to the Hon. General Secretary, Dr. Charles Stubbs, 33 Chancery Lane, London. It is requested that all papers and suggestions be sent in if possible before September 1, 1883.

The case of People v. Carney, 29 Hun, 47, should Tests in Evidence. This was a bastardy proceeding, be added to the list of cases involving Practical in which the mother, a witness, was required to

eyes is."

"look at the child and tell what the color of its This was held error. The court said: "Common observation reminds us that in families of children different colors of hair and eyes are common, and it would be dangerous doctrine to permit a child's paternity to be questioned or proved by comparing the color of its hair or eyes with that of the alleged parent." Nimium ne crede colori should be the motto here.

ideas of what the law can do. The New York Evening Post has some singular In commenting on the late strike of the telegraph operators it suggests the adoption of a law making such strikes penal. It puts this on the ground of the serious inconvenience and interruption to trade which such strikes must occasion. It cites as a parallel case the statute of Massachusetts making it penal for locomotive engineers to strike during a trip. But the cases are by no means parallel. The latter case clearly involves a danger to human life which the community have always a right to guard against. In the present case there is no such danger. An exactly parallel case would be a strike of freight handlers, such as occurred not very long ago. The Post, we should suppose, would hardly advocate making such a strike as that a penal offense. Such a law as the Post suggests would be an intolerable interference with the liberty of the citizen, and would become Mr. Jay Gould much more than an enlightened newspaper like the Post. The Massachusetts statute, we believe, does not forbid strikes except to the interruption of a trip. This shows that the test is the avoidance of danger to human life, and not mere interruption to business. For the latter wrong there is a private and pecuniary remedy in the case of the carrier, and so in the case of the telegraph com panies if they fail to transmit messages which they have accepted.