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v. Homestead Bank & Life Ins. Co., Pittsburg Legal Journal, February 11, 1874. (See present issue of Law Times.)

7. INSURABLE INTEREST. TRUSTEE OR AGENT. - A trustee or agent having no personal pecuniary interest in the property has an insurable interest sufficient to effect an insurance thereon. ́Am. Cen. Ins. Co. v. MeLanathan, Ins. Law Journal, December, 1873.

8. MATERIAL FACTS.-TRIVIAL FACTS CANNOT BE MADE MATERIAL. — Held, that neither party can, without the consent of the other, lift an unimportant and trivial thing into a material and essential fact, nor, when the contract has been executed by the other party, and it is called upon to perform its obligations, can it say that this trivial matter was essential, and that it did not exist as represented. If a party would make anything material other than what the law says is, it must be made known to the opposite party prior to the contract. Washington Life Ins. Co. v. Haney, Ib. See BANKRUPTCY, 2; HUSBAND AND WIFE, 2; STATE LAW.

INTEREST.

See PLEADING AND PRACTICE, 2.

JUDGMENT.

TRANSCRIPT WHICH SHOWS ONLY APPEARANCE BY ATTORNEY. — If suit be brought in one state upon the transcript of the record of a judg ment rendered by a court of record in another state, which transcript shows that the defendant was not served with process, but recites that he appeared by attorney only, the judgment debtor may, under the rule of law as settled by the supreme court of the United States, aver and prove that such attorney had no authority so to appear; and, if proven, such judgment will be void. The rule is otherwise, when suit is brought here upon a judgment rendered in Ohio. Marks v. Fordyce, Am. Law Record, January, 1874.

See PARTNERSHIP;

PLEADING AND PRACTICE, 2; VENDOR AND

DIRECTION BY COURT.

VENDEE.

JURY.

To warrant an unqualified direction to the jury in favor of one party or the other, the evidence must either be undisputed, or the preponderance so decided that a verdict against it would be set aside and a new trial granted. Commonwealth v. Magee, Legal Chronicle, February 7, 1874.

LACHES.

See CERTIORARI.

LANDLORD AND TENANT.

TENANT IN POSSESSION. - PROOF BY TO DISPUTE LANDLORD'S TITLE. In order that a defendant in an action of unlawful detainer avail may himself of the rule that a tenant who did not enter under the lease, but was in possession at the time it was made, is not estopped from disputing

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his landlord's title, he must prove paramount title in himself. It is not enough to dispute the title by averment. The production of a lease which is valid as a contract makes out a prima facie case for the landlord. Peralta v. Ginochio, Pac. Law Reporter, January 27, 1873.

LEX LOCI.

OPERATION OF STATE LAW. SIMILAR STATUTES IN ADJOINING STATES. ACTION AGAINST CITIZEN OF ONE STATE FOR VIOLATION OF LAW OF ANOTHER STATE BY AGENT. Aldrich & Co., oil merchants at Cincinnati, Ohio, upon a written order of Mary Van Camp, a druggist doing business at Metamora, Indiana, and a stranger to A. & Co., forwarded one barrel of gasoline to B., at Metamora, with instructions to deliver it to Van C., if she was responsible. The gasoline was delivered and placed in the cellar of Mrs. Van C., where, in consequence of the barrel leaking, an explosion occurred, causing the death of four persons, among them that of C. M. Van Camp, the plaintiff's intestate. By a statute of Indiana, a copy of the Ohio statute, it was unlawful to sell gasoline in that State, for illuminating purposes, before the same was inspected and branded "approved." The gasoline had not been caused to be inspected by B., at Metamora, before delivery to Mrs. Van C., and there was no evidence that A. & Co. knew for what purpose she bought it, or that they gave any instructions to B. to deliver it without inspection, or that they knew or had cause to believe that he would do so. All that A. & Co. did in the matter was done in Cincinnati. By the Code of Indiana, as by statute in Ohio, an action is given to the personal representative of the deceased who comes to his death by the wrongful act, neglect, or default of another. The plaintiff, the duly appointed administratrix of the deceased C. M. Van Camp, under the laws of Indiana, brought her action in the superior court of Cincinnati against A. & Co., for causing the death of her intestate by their wrongful act and neglect in delivering the gasoline to Mrs. Mary Van Camp, by their agent B., at Metamora, before the same was inspected. Held, that the law of Indiana was not violated by defendants; that there being no evidence of B.'s agency to violate the same, the presumptions against his authority to do so must prevail. Story on Agency, sec. 197; Owens v. Hall, 9 Peters, 607; Wassem v. Underhill, 2 N. H. 505, &c.

Held, also, that even if defendants did violate the law of Indiana, the plaintiff had no remedy in the courts of Ohio. Woodward v. Mich. & Ind. R. R. Co. 10 Ohio St. 121; Richardson v. N. Y. C. R. R. Co. 98 Mass. 85; Hunt v. Townall, 9 Vermont, 411, &c.

YAPLE, J., dissenting, cited: Sedgwick on Stat. 362; Westlake's Priv. International Law, sec. 158, 276, &c.; Am. Law Record, February, 1874.

LIBEL.

1. RIDICULE. -A publication which tends to reflect shame upon a person, and to hold him up to the people as an object of ridicule, is libellous. Lick v. Owen, Pac. Law Reporter, January 20, 1874.

2. PRESUMPTIONS AS TO MALICE. - If a publication be libellous and not privileged, the law implies that it was malicious.

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This is not a presumption which may be wholly overcome by proof, but is a legal conclusion, which cannot be rebutted. Ib.

3. PROOF OF MITIGATING CIRCUMSTANCES AS AFFECTING MALICE. Though the absence of actual malice cannot be shown as a bar, the defendant may plead and prove any mitigating circumstances to reduce the amount of the damages. Ib.

See DAMAGES, 2.

LICENSE.

See INJUNCTION.

LIMITATIONS.

The point

SUSPENSION OF STATUTE OF, DURING THE REBELLION. was made that the lien was lost by lapse of time; that the judgment was recovered more than three years before the filing of the bill. The judgment was recovered in March, 1861. The present suit was brought in March, 1868. Held, that from this period of seven years there should be excluded the time when civil war was flagrant in Arkansas, to wit, from April, 1861, to April, 1866, and that there remained but two years in which the statute of limitations was in force against the judgment. Kauffman v. Kauffman, Chicago Legal News, January 31, 1874.

LOCAL OPTION LAW.

OF PENNSYLVANIA CONSTRUED. Under the local option acts of March 27th, 1872, and March 6th, 1873, all officers are prohibited from issuing licenses to sell liquor, in counties that have voted against license, and this prohibition includes the county treasurer.

The right to distil liquor does not carry with it the right to sell it in such counties. Commonwealth v. Muller, Legal Gazette, February 13, 1874.

"PRIZE CANDY

LOTTERY.

BUSINESS. A "

prize candy" business is a lottery, and as such illegal. Commonwealth v. The Sheriff, Legal Gazette, February 13, 1874; Legal Intel., February, 13, 1874.

MARRIED WOMAN.

ILLINOIS ACT OF 1861, RELATING TO SEPARATE PROPERTY, AND OF 1869, RELATING TO EARNINGS, CONSTRUED. MAY BE A PARTNER IN BUSINESS AND SUED AT LAW. The defendant below was a married woman residing with her husband, and with his consent carrying on the business of a retail grocery store in her own name, in conjunction with one Chase, who was a silent partner. The husband had no interest in the business, but was acting as clerk for the firm. The account for the collection of which suit was brought, was for goods purchased by appellant in her own name, to be used in her business. No plea in abatement for the nonjoinder of Chase was filed. The court, after discussing the act of 1861 and of 1869, giving to a married woman her own earnings, and the decisions of the court construing the same, say, in this case the goods were

DIGEST OF CASES.

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Vol. I.] purchased by the appellant, to be used in her business as proprietress of a retail grocery store. There is no pretence that they were purchased by the husband, or for his use, or under such circumstances that the law will infer his liability. They became appellant's sole and separate property, and either she must be held to pay for them, or it must be held that while married women have the right to contract and acquire property, they shall nevertheless be exempt from complying with their contracts made for that purpose. Haight v. McVeagh, Chicago Legal News, January 31, 1874.

2. CHANGE IN LAW.-DUTY OF COURT. The legislative department has seen fit to make a radical change in the common law relating to the property rights of married women, and it is the duty of the court to enforce the law as they have made it. Ib.

3. CONSTRUCTION OF LAW AS TO EARNINGS AND PROPERTY. -That it is not to be supposed that it was within the contemplation of the legislature, in conferring upon married women the right to receive, use, and possess their own earnings, and to sue for the same in their own names, that it was to be limited to such only as should result from manual labor; or that in conferring upon them the right to have their separate property under their sole and separate control, and to hold, own, possess, and enjoy the same as though they were sole and unmarried, they were to be restricted in its use or disposition. That the right to control is indispensable to the acquisition of earnings, and to the unrestricted possession, control, and enjoyment of property. 16.

4. RIGHT TO EARN MONEY IN TRADE. The court perceives no reason why a married woman invested with these rights may not at least, with the consent of her husband, earn money in trade as well as at the washtub or with the sewing-machine; why she may not as well be the proprietress of a grocery store as of a farm; contract debts for goods to be used in trade as for animals and farming implements or lands or farm labor. Ib. 5. EFFECT OF REMOVING COMMON LAW RESTRICTIONS. That in removing the common law restrictions upon her right to acquire and to control her property, the legislature have left her to determine, at all events when her husband shall not object, from the dictates of her own judgment, in what lawful pursuit she will engage, and whether it shall be prosecuted alone or in conjunction with others. Ib.

6. SEPARATE ESTATE. LIFE INTEREST IN, WITH GENERAL POWER OF APPOINTMENT BY DEED OR WILL. "GENERAL ENGAGEMENT," LIABILITY UNDER, IF SEPARATE ESTATE. A settlement on a marriage under which property is settled to the wife for life, with remainder as she should, notwithstanding her coverture, by deed or will appoint, with remainder to her executors and administrators, without restraint on anticipation.

Held, to vest in equity the entire corpus in the wife for all purposes as fully as a similar gift to a man would vest it in him. The judgment of Turner, L. J., in Johnson v. Gallagher (3 De G., F. & J. 513; 4 L. T. Rep. N. S. 77), followed and approved.

Shattock v. Shattock (L. Rep. 2 Eq. 182; 14 L. T. Rep. N. S. 452) dissented from.

The proposition that a married woman's separate estate is not liable to her "general engagements" is accurate, if it is meant merely to say that goods sold to a married woman in the ordinary course of domestic life, and

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contracts made by her in respect of property not her separate estate, do not necessarily impose a liability to be satisfied out of her separate estate. London, &c. Bank v. Lempriere, Am. Law Record, January, 1874.

See HUSBAND AND WIFE; WILL, 1.

MASTER AND SERVANT.

WHERE A BOY ENGAGED TO ACT AS A HELPER in a machine shop was required to ascend a ladder, among rapidly moving machinery, for the purpose of adjusting a belt, and lost his arm in consequence, it was held that his employer was liable for the injury. U. P. R. R. Co. v. Fort, Chicago Legal News, January 31, 1874.

MINISTERIAL OFFICER.

DUTY TO OBSERVE DIRECTION OF SUPERIOR. - A ministerial officer, such as a clerk, cannot be made liable for doing that which has been approved by a superior whose orders he is compelled to obey, in the absence of an allegation of some fraudulent or corrupt act on the part of both. Kinnison v. Carpenter, Pac. Law Reporter, January 27, 1874.

NEGLIGENCE.

TO BE DETERMINED BY THE JURY. There is no absolute rule as to what constitutes negligence. It is dependent upon the particular circumstances of the case. Where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved. Crissey v. H. M. & F. Passenger R. Co., Legal Gazette, February 6, 1874.

NEW TRIAL.

FAILURE TO PROVE SERVICES. Where, in an action for the value of services, the plaintiff had an opportunity at the trial to prove the services and their value, but declined to do so: Held, that to give him an opportunity to make such proof was not sufficient ground for a new trial. Grif fith v. Moss, Pac. Law Reporter, February 3, 1874.

PARTNERSHIP.

1. POWER OF RESIDENT PARTNER TO BIND NON-RESIDENT PARTNER BY APPOINTMENT OF ATTORNEY FOR THE FIRM. APPEARANCE BY ATTORNEY. Where partners reside in different states, but one or more of them reside in the state where the firm business is carried on, and manage and control such business, and a suit be brought in a court of record, in the state where the firm is located, against all the partners jointly, as individuals, to enforce a liability against them arising out of a partnership transaction, and the non-resident partner, or partners, are not personally served with process, and do not appear in person to defend such suit, but such resident partners employ an attorney to defend the cause, and such attorney does appear, and file a pleading, and defend for all: Held,