CAUSE OF ACTION NOT IN JURISDICTION OF COURTWASTE ON LAND SITUATED WITHOUT STATE-JURISDICTION.—(1) Plaintiff, in his complaint, alleged that defendant agreed to convey to him mortgage uotes to enable him to secure title to a plantation in Louisiana which defendant had sold to a debtor of plaintiff; that plaintiff relying upon the agreement paid money and took possession of the plantation and made permanent improvements thereon; that defendant violated the agreement whereby defendant sustained damage to the extent of $10,000 for which judgment was demanded. Defendant, among other defenses, set up as a counterclaim that plaintiff had while in possession destroyed and wasted the said plantation, for which defendant demanded judgment of $6,000. This counterclaim was demurred to on the ground that the court had not jurisdiction, the lands being without the State. Held, that the answer must be construed with the complaint, and it sufficiently appeared upon the face of the counterclaim, taken with the complaint, that the lands upon which waste was alleged to be committed were without the State. (2) A counter-claim for damages sustained by waste committed on land situated without the State is not allowable. It is a general rule of law that actions for injuries to such property must be brought in the forum rei site, and this rule has been uniformly sanctioned and upheld in this State. Story Confl. Law, § 554; Watts v. Kinney, 23 Wend. 485; S. C., 6 Hill, 82; American Un. Tel. Co. v. Middleton, 80 N. Y. 408; De Courcy v. Stewart, 20 Hun, 561. This rule has not been changed by Code Civ. Pro., § 98. That section was not intended to define the jurisdiction of the Supreme Court, but simply to determine the place of trial of actions of which it had jurisdiction. Unless a counter-claim can be set up as a cause of action it cannot be set up as a counter-claim. Code Civ. Pro., § 501. It must be a cause of action upon which defendant might sue plaintiff at the place where the action is commenced. If the court has no jurisdiction of an action on the counter-claim it has none of this counter-claim. Judgment reversed. Cragin v. Lovell. Opinion by Earl, J. [Decided Feb. 28, 1882.] (3) EVIDENCE-BOOKS OF ACCOUNT-ORIGINAL ENTRIES -ENTRIES ON SLATE TRANSFERRED TO LEDGER-BOOK KEEPER COMPETENT TO PROVE BOOK ACCOUNT.—(1) It was proved that horse-shoeing work done by respondent for testator was first entered at the time upon a slate generally kept by the respondent, occasionally by his foreman. The entries were then transferred by respondent's book-keeper to a day-book about every day and then to a ledger from the day-book; no prices for the work were entered until the charges were carried into the ledger, and then the respondent fixed the prices and they were entered accordingly. The respondent directed the men and superintended the work, doing some part of it himself. There was evidence showing that one of the book-keepers saw some work done and made some entries on the slate. The account showed a credit for moneys paid by testator. Held, that the ledger was a book of original entries and admissible as such. (2) Under the rule that a party who offers his account-book in evidence shall prove by those who have dealt and settled with him that he keeps fair and honest accounts (Vosburgh v. Thayer, 12 Johns. 461), held, that a book-keeper in his employ who has an account with him is a competent witness. The rule is a general one and no reason exists why it should be restricted in its operation so as to exclude any one who deals with the party. The statement that the correctness of books cannot be proved by an employee of the party, in Hartman v. Catlin, 1 E. D. Smith, 729, dissented from. (3) The authorities are numerous which hold that books containing entries made by those whose duty it was to make them in the usual course of business are competent evidence when other requisites are sufficiently established. Bank of Monroe v. Culver, 2 Hill, 531; Merrell v. Ithaca & O. R. Co., 16 Wend. 586; Krom v. Levy, 3 T. & C. 704. The ledger of the respondent was clearly admissible within the rule as to the admission of books of account in evidence. That the entries were transferred from a slate does not affect the testimony. Sickles v. Mather, 20 Wend. 72; Faxon v. Hollis, 13 Mass. 427. Judgment affirmed. McGoldrick v. Traphagen. Opinion by Miller, J., Andrews, C. J., Earl and Danforth, JJ., concur, Finch and Tracy, JJ., dissent, Rapallo, absent. [Decided March 14, 1882.] NEGLIGENCE-MASTER AND SERVANT-CO-SERVANT— DUTY OF MASTER AS TO SAFE MACHINERY. - Plaintiffs intestate was an employee in the repair shop of the defendant railroad company, and as such was intrusted with setting the safety valve of a locomotive which had been repaired at 133 pounds pressure, the highest pressure allowed by defendant upon its locomotives in use. The rules of defendant in reference to locomotives sent to this shop for repair were comprehensive, and required a full examination of such locomotives by the boiler makers and machinists employed in the shop to discover defects, and required the repair or report of such defects, and the boiler makers and machinists were competent for the business intrusted to them. In this case by the negligence of the boiler makers defects in the boiler were not discovered, and through such defects the boiler exploded, killing intestate. The work done by intestate was the last to be done on the locomotive before it was put upon the road. He was unaware of the defects causing the explosion. Held, that the defendant was not liable for the death of intestate, he being a co-servant of the boiler makers. To the general rule that the master is not liable to a servant for injury from the negligence of a co-servant, there are two exceptions: where the negligent servant was unfit and incompetent and the accident resulted from his unfitness or incompetency. Laning v. New York Cent. R. Co., 49 N. Y. 521. And second, where the accident resulted from unsafe machinery and appliances furnished by the master. Flike v. Bost. & Alb. R. Co., 53 N. Y. 550; Fuller v. Jewett, 80 id. 46. These exceptions are subject to the qualification that the duty imposed upon the master to employ competent servants and furnish fit and safe machinery is not absolute but relative. The master does not guarantee either the competency of the co-servants or the safety of the machinery. He undertakes to use due and reasonable care in both respects and that there shall be no negligence on his part or on the part of any person intrusted by him to employ servants or procure machinery. Here the master employed competent servants, and the case is not within the principle that holds the master responsible for unsafe machinery, the locomotive not having been placed on the road for use, which would be an assurance to an employee that it was fit and safe. It was defective and placed in the repair shop to make it fit for use. Fuller v. Jewell, 80 N. Y. 40, distinguished. Judgment affirmed. Murphy v. Boston & Albany Railroad Co. Opinion by Andrews, C. J. [Decided Feb. 28, 1882.] WILL-CONSTRUCTION OF TRUST NOT IMPLIED FROM DOUBTFUL WORDS AFTER ABSOLUTE GIFT. Testator being about to take a long journey, made his will containing this devise: "I do therefore make this my last will and testament, giving and bequeathing to my wife Caroline all my property, real and personal, of whatever name and nature it may be, in that I am now possessed, or is owned by me, or that I may have or be possessed of at the time of my death, etc., and do appoint my wife Caroline my true and lawful attorney, and sole executor of this my last will, to take charge of my property after my death, and retain or dispose of the same, for the benefit of herself and children above-named.” Held, that by the last clause of the above devise defendant did not impose a trust upon the estate given his wife for the benefit of herself and children. The discretionary power given to the widow to retain or dispose of the property for the benefit of herself and children was not intended to limit or cut down the prior absolute gift. The words are but a mere expression of the testator's wish that the widow should make such use or disposition of the property devised as would in her judgment best provide for herself and her children. It is settled that when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be restricted or cut down to any less estate, by subsequent or ambiguous words inferential in their intent. See Lamb v. Evans, L. R., 10 Eq. 267; Mackett v. Mackett, L. R., 14 Eq. 49; Howarth v. Dowell, 6 Jurist (N. S.), 1360; Parsons v. Bert, 1 T. & C. 211; Webb v. Wood, 2 Sim. Ch. (N. S.) 267; Hutchinson v. Tennant, L. R., 8 Ch. D. 540; Wilson v. Major, 11 Ves. 203; Fox v. Fox, 27 Beav. 301; Gilbert v. Chapin, 19 Conn. 342; Bardswell v. Bardswell, 9 Sim. (Ch. 319. Judgment reversed. Clark v. Leupp. Opinion 1 by Tracy, J. [[Decided Feb. 28, 1882.] UNITED STATES SUPREME COURT ABSTRACT. MARCH, 1882. (CONFLICT OF LAW CONSTRUCTION BY FEDERAL COURTS OF STATE STATUTES-PRACTICE - ERRONEOUS JUDGMENT ON DEMURRER.- (1) The construction given by the Supreme Court of a State to a statute of limitations of the State will be followed by this court in a case decided the other way in the Circuit Court before the decision of the State court. Tioga R. Co. v. Blossburg and Corning R. Co., 20 Wall. 137; Kibbe v. Ditto, 93 U. S. 674; Fairfield v. Gallatin County, 10 id. 47. (2) The erroneous sustaining of a demurrer to a replication to one of several defenses in the answer requires the reversal of a final judgment for the defendant, which is not clearly shown by the record to have proceeded upon other grounds. Dury v. Cray, 5 Wall. 795; Knox County Bank v. Lloyd, 18 Ohio St. 353. Judgment of U. S. Circ. Ct., S. D. Ohio, reversed. Moores v. Citizens' National Bank of Piqua. Opinion by Gray, J. CONSTITUTIONAL LAW STATE LAW IMPAIRING CONTRACT. By the laws of Ohio the board of public works was authorized to sell or lease, for hydraulic purposes, the surplus water in the canals of the State not required for the purposes of navigation. But it was expressly provided that no power should be leased or sold except such as should accrue from surplus water "after supplying the full quantity necessary for the purposes of navigation." The laws also required that every lease or grant of power should contain a reservation of the right to resume the privilege, in whole or in part, whenever it might be deemed necessary for the purposes of navigation. In case of resumption, the rents reserved were to be remitted or correspondingly reduced. In accordance with the statutes a lease of surplus waters from a portion of a State canal was made and plaintiff became the owner of the lease. Thereafter the State abandoned that part of the canal and granted the same to a city for a street. Held, that such abandonment was not a violation of the obligation of a contract and that plaintiff was not entitled to compensation therefor. The use of the water for hydraulic purposes is but an incident to the principal object for which the canal was built, to wit, navigation. The large expenditures of the State were not to create water-power, but to furnish a navigable highway for the transportation of persons and property. The authority of the board of public works to contract in respect to power was expressly confined to such water as remained after the wants of navigation had been supplied, and it never could have been intended in this way to impose on the State an obligation to keep up the canal, no matter what the cost, for the sole purpose of meeting the requirements of its water leases. There was certainly no duty resting on the State to maintain the canal for navigation any longer than the public necessities seemed to require. When it was no longer needed, it might be abandoned; and if abandoned, the water might be withdrawn altogether. Provision was made for resuming the water and stopping the supply, if the canal was kept up for navigation, but no such provision was necessary in respect to the abandonment of the whole work, because the right to abandon followed necessarily from the right to build. If the water was resumed while navigation was maintained, no matter how injuriously it affected lessees, all that could be asked of the State was to forego the further collection of rents, or refund a reasonable proportion of such as had been paid in advance. The entire abandonment of the canal could not create any different liability. Every lessee of power took his lease and put up his improvements with full notice of the reserved right of the State to discontinue its canal and stop his supply of water. This is in accordance with repeated decis-ions and seems fully sustained on principle and author-ity. Hubbard v. City of Toledo, 21 Ohio St. 379; Little Miami Elevator Co. v. City of Cincinnati, 30 id. 629; Trustees W. & E. Canal v. Brett, 25 Ind. 410; Fishbach v. Woodruff, 51 id. 102: Commonwealth v. Pennsylvania R. Co., 51 Penn. St. 351. Judgment of Ohio Supreme Court affirmed. Fox v. City of Cincinnati, Opinion by Waite, C. J. INSURANCE-LIFE POLICY-CONDITION AS TO PLACE OF RESIDENCE FORFEITURE-WAIVER OF FORFEIT URE. A life insurance policy provided for a forfeiture in case the insured should, during a specified season of the year, reside or travel south of 32° north latitude without the consent of the company previously given in writing. The insured without such consent during such season went south of the said latitude. The local agent of the company informed a relative of the insured that on account of the violation of the condition in the policy the same was forfeited; that a southern permit would cost twenty dollars and advised him to pay it for the insured. The relative paid the twenty dollars for which the agent gave a receipt and sent the money to the State agents of the company, who acknowledged the receipt. The local agent knew the price for a permit and had never applied for one without getting it. He had no authority to issue policies, but after the policies were issued he turned them over to the parties on the payment of the premium. At the time the twenty dollars was paid by the relative the insured was dead, but this was unknown to the relative or to those interested in the policy or to the agent. The permit was never issued. On becoming aware of the death of the insured the local agent took twenty dollars of the company's money and tendered it back to the relative, but it was refused. It did not appear that either the local agent or the State agents had direct authority to waive a forfeiture. In an action on the policy, held, that it was avoided by the forfeiture and the company was not liable thereon. Even if the agents had authority to waive a forfeiture, and had waived the forfeiture, or the company itself had waived it, the waiver would not, under the circumstances of this case, be binding on the company. A waiver of a stipulation in an agreement must, to be effectual, not only be made intentionally but with knowledge of the circumstances. This is the rule when there is a direct and precise agreement to waive the stipulation. A fortiori is this the rule when there is no agreement, either verbal or in writing, to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party. Thus, where a written agreement exists and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for a written agreement, he must clearly show not merely his own understanding but that the other party had the same understanding. Darnley v. Lord Chat. & R. Co., L. R., 2 H. L. 43. The same rule applies to the ratification by the principal of the unauthorized acts of his agent. "It is perfectly well settled that a ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal, must have been made with a full knowledge of all material facts, and that ignorance, mistake or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of the agent." Combs v. Scott, 12 Allen, 496. And it has been declared by this court that "no doctrine is better settled, both upon principle and authority, than this: that the ratification of an act of an agent previously unauthorized must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded on mistake or fraud." Owings v. Hale, Bet. 607; see also, Diehl v. Insurance Co., 58 Penn. St. 452; Beviu v. Conn. Mut. Life Ins. Co., 23 Conn. 244; Viall v. Genesee Mut. Ins. Co., 19 Barb. 440. Judgment of U. S. Circ. Ct., S. D., Illinois, affirmed. Bennecke v. Connecticut Mutual Life Insurance Co. Opinion by Woods, J. UNITED STATES CIRCUIT AND DISTRICT endors a of the goods. U. S. Dist. Ct., S. D., New York, Nov. 13, 188'.. The Ferreri. Opinion by Elenedict, D. J. covenant and any e payment,. r a mortgage ce, whether in: a debt secured MORTGAGE STATUTORY CONSTRUC TION-NEW YORK STATUTE AS TO IMPLICATION OF COVENANT TO PAY.A provision of the New York statutes (1 R. S.. 738, $139), which declares that no mortgage shall be construed as implying a covenant for the payment of the money, and that if there be no express covenant for such payment in the mortgage, and no bond or of her separate instrument to secure payment, the remedy of the mortgage shall be confined to the land, construed not to mean that in the absence of an express in the mortgage for the payment of the debt bond or other separate instrument to secur a personal action cannot be maintained fo debt when proved by competent eviden writing or parol; but that an action for by mortgage cannot be sustained me rely by the production of the mortgage, when it contains no express covenant to pay the debt. The stat ate appears to havo been designed to remove doubts of construction, and to declare the law, rather than tr , restrict rights; and this seems to be the view take n of it by Chancellor Kent. 4 Kert Com. 145, notes in 3d and 5th ed. There had been cas es in which it har A been held that the condition in a nortgage, if the mortgagor shall pay, etc., implied a covenant that th, debt existed, and that the would pay, making the mortgage deed not of the mortgage but proof of the debt also, it contained no express promise or covenant e debt. King v. King, 3 P. Wms. 358. And ster v. Mayer, 1 Bro. Ch. Cas. 454, at 464, Lord lor Thurlow had said: "A man mortgages his without covenant, yet because the money was ved the mortgagee becomes a simple contract credit or, and in that case the mortgage is a collateral ity, and if there is a bond or a covenant, then there is a collateral security of a higher species, but no hig Jer by means of the mortgage merely." See also, Co nway v. Alexander, 7 Cranch, 218; Russell v. Southar d, 12 How. 139; Hone v. Fisher, 2 Barb. Ch. 559. J. S. Circ. Ct., E. D., New York, Jan. 11, 1882. Demond v. Crary. Opinion by Wheeler, D. J. BILL OF LADING SHIPPER ENTITLED TO.- W goods, that had been sold to be paid for on deli here were shipped in the name of the vendors, a sh very, receipt given to them, and a bill of lading subsecently ipping given to the vendee, who then absconded, he id, that upon the refusal of the master to give the v bill of lading, they could recover against theessel the value of the goods without a demand; and that as the vessel was in navigable waters, the tort was in its character, for which an action could maritime in the District Court. Ellershaw v. Magni ao, 6 Exch. be brought 570, note, shows that a shipper of goods shipping for a buyer can nevertheless get a bill of ladi self. Turner v. Trustees of Liverpool Dock, 6 1 Exch. ng for him543, shows that goods may be put on the buyer' 3 ship with nothing said at the time, and ne vertheless the seller may get the bill of lading delivered to him. also, Falk v. Fletcher, 18 C. B. (N. S.) 403; Kreeft v. Thompson, L. R., 10 Exch. 282. The last-then tioned case is direct authority for holding, in a case like this, that the master of this vessel could not rightfi illy refuse to sign the bill of lading when the libella nts demanded. There is still another aspect in w nich to view this case. By the maritime law, when gods are laden on board a vessel, the master is deemed tract with the goods. The Hyperion's Cargo 94. That contract inures to the benefit of t *Appearing in 9 Federal Reporter,. See to con .2 Low. le owner mortgagor to pay th borrow secur PATENT INFRINGEMENT-DEFAULT.- In a suit for the infringement of a patent, a plea which sets up the single defense of non-infringement will be stricken out on motion. Rhode Isla ad v. Massachusetts, 14 Pet. 210; Bailey v. Le Roy, 2 Edw. Ch. 514; Black v. Black, Cir. Ct., S. D., New York, Oct. 5, 1881. Sharp v. 15 Ga. 445; Milligan v. M illedge, 3 Cranch, 220. U. S. Reissner. Opinion by Blatchford, C. J. PRACTICE-DEFENSÉ — ANOTHER SUIT PENDING. When the two suits are not brought upon the same facts, mor for the same relief, the pendency of a suit in a State court cannot be successfully pleaded to the further prosecution of a like suit between the samo parties, or their representatives, in a Federal court in the same district. Doubts have been entertained by this court and some others as to whether the pendency of a suit in a State or Federal court in the same district might not be successfully pleaded to the further prosecution of a like suit in the other court, and this court inclined to the opinion that it could be. Mercantile Trust Co. v. Lamoille Valley R. Co., 18 Blatchf. 324; Andrews v. Smith, 5 Fed. Rep. 833. But it now seems to be well settled that it cannot be. Gordon v. Gilfoil, 99 U. S. 168; Latham v. Chafee, 7 Fed. Rep. 520. If this were not so it has always been held, that in order to have the mere pendency of one suit defeat another, the suits must be between the same parties, or their representatives, upon the same facts, and for the same relief. Watson v. Jones, 13 Wall. 669. A bill in equity was brought by certain stockholders in the Vermont & Canada Railroad Company, among others, against the Central Vermont Railroad Company, in possession, to recover the possession of that road for the Vermont & Canada Railroad Company. The Central Vermont Railroad Company pleaded that it was in possession as a receiver of a State court, and set forth the proceedings upon which its possession took place. Held, that such rights must stand for trial according to the usual course. In Hagar v. Lucas, 10 Pet. 400, where the title of a sheriff to property seized by him and receipted was upheld against a marshal of the United States, who seized it subsequently, the trial was upon the merits of these respective rights. So in Brown v. Clarke, 4 How. 4, and in Pulliam v. Osborne, 17 How. 471. And in Taylor v. Carryl, 20 How. 583, where the question was as to the right of a State seizure, as against proceedings in admiralty, the trial was not upon any plea denying the right to interfere, but was upon the title acquired through the proceedings. In Freeman v. Howe, 24 How. 450, the right of a mortgagee to personal property taken by the marshal, on process against the mortgagor, was tried on replevin in chief. So similar rights were tried in an action of trespass in Buck v. Colbath, 3 Wall. 334. And in Wiswall v. Sampson, 14 How. 52, the right acquired by the levy of a marshal upon property in possession of a receiver was tried upon ejectment on the merits. U.S. Circ. Ct., Vermont, October term, 1881. Dwight v. Central Vermont Railroad Co. Opinion by Wheeler, D. J. WEST VIRGINIA SUPREME COURT OF AP- CT CARRIER -LIABILITY OF CARRIER OF GOODS-, OF GOD FREEZING WEATHER REASONABLE TIMI A common carrier at common law is liable for the leg or damage to goods received for transportation, fro whatever cause arising, except the act of God, th public enemy or the conduct of the owner of the goods unless that loss or damage arises from the nature and inherent character of the property carried, provided he has used foresight, diligence and care to avoid such damage and loss. When a common carrier undertakes to carry goods, the law implies a contract that they shall be carried and delivered at the place of destination safely and within a reasonable time. Freezing weather, causing loss of goods, cannot be deemed the act of God, and does not come within the definitions given to that term. But if the goods transported are frozen, it comes within the exceptions to that principle, and exempts the carrier from liability, provided he has been guilty of no previous negligence and misconduct by which that loss or damage may have been occasioned. That previous misconduct or negligence which makes the carrier liable in such case, must be immediately or proximately connected with the loss. What is "reasonable time" within which goods are to be delivered, cannot be defined by any general rule, but must depend upon the circumstances of each particular case. The mode of conveyance, the distance, the nature of the goods, the season of the year, the character of the weather, and the ordinary facilities of transportation are matters properly entering into the consideration of what is reasonable time. In this case B., in Parkersburg, delivered potatoes at the B. & O. R. R. Co.'s depot to be conveyed to McG. in Grafton, on the 13th day of February, 1866, to be shipped on the 14th. There was a daily train between those points. The weather was mild and so continued on the 14th. The potatoes did not reach Grafton until the 16th, and arrived so frozen as to be worthless, the weather on the 15th and 16th having become cold. Held, under the circumstances of this case the company was liable for the injury done. McGraw v. Baltimore & Ohio Railroad Co. Opinion by Patton, J. [Decided Oct. 22, 1881.] EMINENT DOMAIN-FOREIGN CORPORATION CANNOT EXERCISE IN FEDERAL COURTS-REMOVAL of cause. A foreign corporation cannot, in the courts of the State for the use of such corporation, and if the FedeUnited States, condemn the land of the citizen of a ral courts have not original jurisdiction for such purposes, a proceeding of that kind instituted in a State court cannot be removed to the Federal courts, because the Federal courts can under no circumstances have jurisdiction of such a case. Baltimore & Ohio Railroad Co. v. Pittsburg, Wheeling & Kentucky Railroad Co. [Decided May 7, 1881.] Opinion by Johnson, J. EVIDENCE- PRIVILEGED CONTRACT BETWEEN ATattorney who is examined as a witness for his client -(1) An may be properly asked what his fee is, to show his interest in the suit and to go to his credibility. If on being asked such question he declines to answer, but states that his agreement with his client is in writing, the court may either compel him to answer or award a writ of subpoena duces tecum requiring him to produce it. M. makes a contract with his attorney to pay him fifty dollars retainer, and in addition thereto onehalf of the amount recovered, the attorney not to be liable for any costs. This agreement may be properly read to the jury to show the interest of the witness in the suit and to go to his credibility as a witness. (2) Such a paper does not come under the rule of professional communications or confidence. Moats v. Rymer. Opinion by Patton, J. [Decided Nov. 19, 1881.] SALE OF PERSONAL PROPERTY · SENDING GOODS NOT ORDERED, - Where one merchant sends goods to another and at the same time sends invoices of such merchant to whom they are sent, whether he ordered goods, and the goods and invoices are received by the the goods or not, in law he will be regarded as purclaser unless within a reasonable time he returns the gods or notifies the sender that he will not accept then. What is a reasonable time is a question of fact or he jury to determine under the circumstances of chant though not ordered by him, he will in law be the cse. Where goods have been received by a merregard as the purchaser if he exercises acts of ownership ver them or treats them in a way inconsistent with a cognition of another's ownership. Permitting a thd person to take and use the goods, though he proculs a part of them from such person and retarns then to the vendor, will make him liable as pur[Decided No. 26, 1881.1 chaser. Boholomae v. Paull. Opinion by Patton, J. H. MISSOURI SIPREME COURT ABSTRACT.* CONSIDERATIO FAILURE PATENT FIGHT. An instrument was drawn in the folOF ASSIGNMENT OF lowing form: "We hereby sell, assign, transfer and set over uito S. & I. all our right, title and interest in and to a certain invention known as the Askin Rotary Smoothing 'ron, in the following territory, viz.: *** to be eld and enjoyed by the said S. & * * to the full end of the term of patent for which said oed is granted." Held, that this was an assignment the right to vend the invention within the prescribe territory, and was not a mere release or quit-claimf the assigaor's interest; that it implied that a patent ad been issued in due form, and if such were not the fit, then there was a failure of consideration entitling e assignees to recover the money paid. Curtis on Pates, § 184; 6 Cent. L. J. 53; Strong v. *Typpear in 73 Missouri Reports. Barnes, 11 Vt. 221. Shepherd v. Jenkins. Opinion by Norton, J. CONTRACT- ILLEGAL CONTRACT.-The State courts will not enforce an executory contract in violation of the bankrupt law. Claflin v. Torlina, 56 Mo. 369; Austin v. Markham, 44 Ga. 161; Blaisdel v. Fowle, 120 Mass. 447. Louthan v. Stillwell. Opinion by Henry, J. EVIDENCE -DECLARATIONS OF AGENT AS EVIDENCE AGAINST PRINCIPAL.- Declarations of an agent in relation to a matter within the scope of his agency are admissible against the principal only when made at the time of the occurrence to which they relate; and the rule goes no further though the agent occupy the position of vice-principal. In an action brought by a railroad laborer against the company to recover damages for injuries alleged to have been sustained through the incompetence of a section foreman, by way of showing the company's knowledge that the foreman was incompetent, plaintiff offered to prove that some days after the occurrence of the injury defendant's roadmaster had said he was incompetent. Held, that the evidence was inadmissible. Betham v. Benson, Gow. 48; Haven v. Brown, 7 Me. 425; Rogers v. McCune, 19 Mo. 557; Virginia & Tenn. R. Co. v. Sayers, 26 Gratt. 328; S. C., 15 Am. L. Reg. (N. S.) 297; Greenl. Ev. (Redfield's ed.), §§ 113, 114; Story on Agency, $$ 134, 137; Griffin v. Mont. R. R. Co., 26 Ga. 111; Robinson v. Railroad Co., 7 Gray, 92; Moore v. Meacham, 10 N. Y. 207; Veary v. B. C. R. & M. A. Co., 47 Iowa, 549; Huntingdon, etc., R. Co. v. Decker, 82 Penn. St. 123; Chapman v. Erie R Co., 55 N. Y. 583. McDermott v. Hannibal & St. Joseph Railroad Co. Opinion by Henry, J. EXECUTION SALE-NOTICE BY HAND-BILLS. - The execution law of Missouri requires the sheriff to give notice of sales under execution "by advertisement in some newspapers printed in the county, if there be one regularly published," and if not, then by hand-bills posted in public places. The defendant in an execution, being the sole proprietor, editor and publisher of the only newspaper in the county where the execution had been levied, refused to permit the publication in his paper of the notice of sale thereunder, though tendered the usual and legal fees therefor. Held, that under these circumstances notice by hand-bills was sufficient, and that a sale upon such notice passed the legal title. Allen v. Sales, 56 Mo. 36; Curd v. Lackland, 49 Mo. 451. Walton v. Harris. Opinion by Norton, J. NOTICE -OF SALE UNDER DEED OF TRUST. Where a deed of trust requires thirty days' notice of sale to be given by publication in a daily payer, thirty days must intervene between the first publication and the day of sale; but while it is customary and prudent, it is not essential that the notice appear in every issue of the paper. The omission to make continuous publications will authorize the setting aside the sale only where it is of such a character or is attended by such circumstances as to mislead the public and work injury to the party whose property is sold. White v. Malcolm, 15 Mo. 543; Johnson v. Dorsey, 7 Gill. 286; Leffler v. Armstrang, 4 Iowa, 482; Stine v. Wilkson, 10 Mo. 96. German Bank v. Stumpf. Opinion by Hough, J. A pur VENDOR'S LIEN-FRAUD-SUBROGATION. chaser at administrator's sale, by falsely representing that he had become the owner of an allowance that had been made against the estate of the intestate in favor of one S., induced the administrator to give him credit for the amount of said allowance as part payment of the purchase-money, and the administrator thereupon executed a deed, and afterward made final settlement of the estate. He was afterward compelled to pay the allowance to S. out of his own pocket. Held, that he was entitled to be subrogated to the rights of the estate, and to have a vendor's lien enforced in his favor against the land in the hands of one who had, in the meantime, received a voluntary conveyance from the purchaser at the sale, though without knowledge of the fraud practiced on plaintiff. Thomas v. Bridges. Opinion by Sherwood, C. J. RECENT ENGLISH DECISIONS. COVENANT-TO BUILD ON LEASED LAND-SPECIFIC PERFORMANCE. A plot of land was conveyed subject to a rent-charge, the grautee, for himself, his heirs, executors and administrators, covenanting with the grantor, his heirs and assigns, that he, the grantee, his heirs or assigns, "will erect within two years from the date of these presents, and at all times thereafter keep in good and tenantable repair and condition, and from time to time when necessary will rebuild upon the said plot of land, such good and substantial messuages or other buildings as shall be of the annual letting value of at least double the amount of rent-charge limited in respect of such plot." Plaintiff, assignee of the grantor, sued defendants, who were mortgagees in possession to an assignee of the grantee, for breaches of the above covenant, claiming damages, and that defendants be restrained from further breaches of the said covenant, and be compelled specifically to perform the same on the ground that they became assignees with notice of the said covenant. Held, that the covenant did not run with the rent so as to make defendants liable at common law, and that it was not a covenant which could be enforced in equity against assignees with notice. Cases referred to Milnes v. Branch, 5 M. & S. 411; Tulk v. Moxhey, 2 Phillips, 774; Cox v. Bishop, 8 DeG., M. & G. 815; Cooke v. Chilcott, L. R., 3 Ch. Div. 374; Daniel v. Stepney, L. R., 9 Ex. 185; Aspden v. Seddon, L. R., 1 Exch. Div. 496; Randall v. Rigby, 4 M. & W. 130; Keppel v. Bailey, 2 My. & K. 517; Spencer's case, 1 Sm. L. Cas. 68, and notes; Wilson v. Hart, L. R., 1 Ch. 463. Ct. of Appeal, Dec. 3, 1881. Haywood v. Brunswick Permanent Benefit Building Society. Opinions by Brett, Cotton and Lindley, L.JJ., 45 L. T. Rep. (N. S.) 701. DEED CONSTRUCTION OF GENERAL WORDS. General words in a conveyance are to be construed in the same manner as other words, according to their meaning, and not as conveying easements only. By the parcels in a conveyance, a freehold house and the yards, etc., therewith, occupied or enjoyed, and delineated, and colored on a plan annexed to the deed were granted to a purchaser. Among the general words was the word "yards." On the plan a yard, which had always been enjoyed with the house, was not colored. Held, that the deed passed the fee simple in the yard to the purchaser. Ch. Div., Nov. 21, 1881. Willis v. Watney. Opinion by Fry, J., 45 L. T. Rep. (N. S.) 739. INSURANCE-FIRE POLICY-STATUTE AS TO CONDITIONS IN POLICY. - - An act of the Legislature of Ontario enacted that certain statutory conditions should be printed on and form part of every policy of fire insurance in force in the province, and that if it was desired to make any variation in the statutory conditions, such variations should be printed on the policy "in conspicuous type and in ink of a different color." In a case in which conditions other than the statutory conditions were indorsed on a policy, but were not shown to be variations from its statutory conditions in the manner prescribed by the statute, held (reversing the judgment of the court below), that the effect of this non-compliance with the statute was not to reduce the contract to a bare contract of insurance with. out any conditions, but to make it subject to the |