it undertook to determine, was whether under the circumstances of the case any damages at all ought to be recovered. Its decision was that none ought to be recovered; or in effect, that the bond ought not to be prosecuted. In view of what has already been said, we think that the court have power to decide this question." Decree of U. S. Circ. Ct., Minnesota affirmed. Russell v. Farley. Opinion by Bradley, J. [Decided April 3, 1882.]

NEW JERSEY COURT OF ERRORS AND AP-
PEALS ABSTRACT.
NOVEMBER TERM, 1881.*

-

ADVERSE POSSESSION INCORPOREAL HEREDITAMENT MAY BE ACQUIRED BY - HOW PRESUMPTION OVERCOME TO INTERRUPT USER ACTUAL DISTURB

ANCE NECESSARY.-In analogy with the statute of limitations, which applies only to corporeal hereditaments, the enjoyment of an incorporeal hereditament, adverse, exclusive and uninterrupted for twenty years, affords a conclusive presumption of a grant to be applied as a presumptio juris et de jure. The owner of the servient tenement cannot overcome the presumption of a grant arising from an uninterrupted user of twenty years by proof that no grant was in fact made. He may rebut the presumption by contradicting or explaining the facts upon which it rests, but he cannot overcome it by proof in denial of a grant. The owner of the servient tenement may show that the right claimed is one that could not be granted away, or that the owner of the servient tenement was legally incapable of making, or the owner of the dominant tenement incapable of receiving such a grant. He may explain the user or enjoyment by showing that it was under permission asked and granted, or that it was secret and without means of knowledge on his part, or that the user was such as to be neither physically capable of prevention, nor actionable. But if there can be neither legal incompetency, nor physical incapacity, and the user be open and notorious, and be such as to be actionable or capable of prevention, the servient owner can only defeat the acquisition of the right on the ground that the user was contentious, or the continuity of the enjoyment was interrupted during the period of prescription. Mere denials of the right, complaints, remonstrances or prohibitions of user, unaccompanied by any act, which in law would amount to a disturbance, and be actionable as such, will not prevent the acquisition of a right by prescription. See Angus v. Dalton, L. R., 4 Q. B. D. 162; Campbell v. Smith, 3 Halst. 143; Shreve v. Voorhees, 2 Gr. Ch. 32; Shield v. Arndt, 3 id. ch. 247; Carlisle v. Cooper, 4 C. E. Green, 259; Wood v. Hurd, 5 Vroom, 87; Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Elwell v. Birmingham Canal Co., 3 H. of L. 812; Staffordshire Canal Co. v. Birmingham Canal Co., L. R., 1 H. of L. 254; Thorpe v. Corwin, Spenc. 312; Chasemore v. Richards, 7 H. of L. Cas. 349; Webb v. Bird, 13 C. B. (N. ¡S.) 841; S. C., 10 C. B. (N. S.) 268; Sturges v. Bridgman, 11 Ch. Div. 852; Olney v. Gardner, 4 M. &. W. 495; Powell v. Bagg, 8 Gray, 441; Chicago & N. W. R. Co. v. Hoag, 90 Ill. 340; Stillman v. White R. M. Co., 3 Woodb. & M. 551; Sargent v. Ballard, 9 Pick. 254; Arnold v. Stevens, 24 id. 112; Monmouthshire Canal Co. v. Harford, 1 C. M. & R., 614; Livett v. Wilson, 3 Biug. 115; Nichols v. Aylor, 7 Leigh, 565; Bright v. Walker, 1 C. M. & R. 211; Eaton v. Swansea Water W. Co., 17 Q. B. 267; Tickle v. Brown, 4 A. & E. 369; Goddard Eas. M., 172; Cross v. Lewis, 2 B. & C. 689; Dalton v. Angus, L. R., 6 Ap. Cas. 740. Lehigh Valley Railroad Co. v. McFarlan, opinion by Depue, J.

* Appearing in 14 Vroom's (43 N. J. Law) Reports.

AGENCY-SEALED INSTRUMENT EXECUTED BY AGENT. Where a private agent does not attempt, in a sealed instrument, to bind his principal, and in terms inposes the obligation on himself, the rule is that he incurs by such act a personal liability, although he describes himself as agent.

The obligatory clause of a bond bound the defendants, trustees, etc., of a church, their successors and assigns, to pay to the plaintiff a certain sum, to which payment the obligors bound themselves, and each of them, their heirs, executors and administrators, jointly and severally, the condition being that said obligors, "trustees as aforesaid, their successors and assigus," should pay, etc. Held, that this was the personal bond of the individuals named, and not of the corporation. Dayton v. Warne. Opinion by Beasley, C. J.

WISCONSIN SUPREME COURT ABSTRACT.* DECEMBER, 1881.

LIMITATIONS-DEATH OF PLAINTIFF DOES NOT STOP STATUTE RUNNING.- By the Wisconsin statute two years are limited for an appeal from a judgment; commenced when the judgment is entered of record and perfected by the insertion therein of the costs taxed. Held, that where the two years thus limited have commenced to run, the subsequent death of the judgment plaintiff and the non-appointment of any presonal representative until after the two years have expired will not entitle the judgment defendants to appeal after such appointment is made, either under general principles of law or under any statutory provision. It was held by the court of King's Bench, as early as 1746, that "if the plaintiff be in England at the time the cause of action accrues, the time of limitation begins to run, so that if he or (if he dies abroad) his executor or administrator do not sue within six years, they are barred by the statute." Smith v. Hill, 1 Wilson, 134. In Doe v. Jones, 4 Durnf. & East, 300, it was held, by the same court, that "when once the five years allowed begin, the time continues to run, notwithstanding any subsequent disability." In that case Lord Kenyon, C. J., seemed to be surprised that any one ever doubted the rule as stated. See Stowell v. Zauch, 1 Plowden, 353; Freake v. Crausfeldt, 3 M. & C. 499; Rhodes v. Sunthurst, 4 M. & W. 42; S. C. affirmed by the Queen's Bench, 6 M. & W. 351. In the last case cited the intervening disability was death, and Lord Denman, C. J., indorsed the observation of Lord Kenyon, and repudiated the "argument that no laches can be imputed to the plaintiff for not suing during that portion of time during which there was no person whom he could sue, and therefore that period of time ought to be excluded from calculation by an equitable extension of the terms of the act." Page 355. His reason for rejecting that argument is that the act did not have "for its object the remedying of some inconvenience under which plaintiffs suffered," but that "it was passed for the benefit of defendants to exempt them from being called to account in respect to transactions long gone by," and hence he refused to adopt a construction by which "the time of limitation might be indefinitely prolonged." To the same effect are Penny v. Brice, 114 E. C. L. R. 392; Daniel v. Day, 51 Ala. 431; Pipkin v. Hewitt, 17 id. 291; M'Collough v. Speed, 3 McCord, 455; Bugg v. Summer, 1 McMullan, 333; Baker v. Baker, 13 B. Monr. 406; Hull v. Deatly, 7 Bush, 687; Young v. Mackall, 4 Md. 362; Stewart v. Spedden, 5 id. 434; Brown v. Merrick, 16 Ark. 612; Baker v. Brown, 18 Ill. 91; Dakoy v. Dorrah, 14 N. J. L. 288; Conant v. Hitt, 12 Vt. 285; Hapgood v. Southgate, 21 id. 584; Sanford v. Sauford, 62 N. Y.

553; Tynan v. Walker, 35 Cal. 634; Byrd v. Byrd, 28 Miss. 144; Hagman v. Keally, 3 Cranch, 325. In several of these adjudications a distinction is made between cases where the cause of action accrued prior to the death, and cases where it did not. In the former class of cases it is held that as the statute commenced running before the death, it is not interrupted by the death unless excepted by the provision of the statute itself. In the latter class of cases it is held that as the cause of action did not accrue prior to the death, it cannot in law be regarded as having accrued after the death until parties are in being capable of suing and being sued. It is true the cases cited arose under general statutes of limitation, but the reasons given are equally applicable to the two years' limitation in question. Sambs v. Stein. Opinion by Cassoday, J.

NEGLIGENCE-IN

RUNNING RAILROAD TRAINSPERSONS WALKING TRACK WHERE FORBIDDEN BY STATUTE EVIDENCE OF LICENSE-RULE WHEN CHILD

OF TENDER YEARS INJURED.-(1) It is well settled that a railroad company must provide for a careful lookout in the direction that the train is moving, in places where people and especially where children are liable to be upon the track. If they do not, and a person has been injured, then the company may in the absence of contributory negligence be held liable. Butler v. Railway Co., 28 Wis. 487; Ewen v. Railway Co., 38 id. 613; Farley v. Railway Co., 9 N. W. Rep. 230; Frick v. Railway Co., 5 Mo. App. 435: Cheney v. Railway Co., 16 Hun, 415. (2) Although the statute makes it unlawful for a person not connected with or employed upon a railroad to walk along the track thereof, “except when the same shall be laid along public roads or streets," yet where in an action against a railway company for injury from negligence, the question is whether a person injured while walking upon a railroad track, was guilty of a want of ordinary care, it is error to reject evidence showing that many persons, men, women and children had, for years before the accident in question, been in the habit of passing daily and hourly up and down in the same pathway on which the injured person was passing-since such testimony would tend to show a license, or to repel the inference of a want of ordinary care, and also to show a lack of such care on defendant's part as the facts required. Under a similar statute in Missouri it has quite recently been held that "though it is unlawful for one not connected with a railroad to walk upon its tracks, and it is presumed that every one will obey the law, yet this will not relieve the railroad corporation from the duty of keeping a careful lookout while running its trains upon the streets of a city." Frick v. Railway Co., 5 Mo. App. 425. See also Daley v. Railway Co., 26 Conn. 591. (3) Ordinary care is such care as would ordinarily be exercised by persons of the age and in the situation of the person so ght to be charged with negligence; and the fact that the person injured was a child of tender years is to be considered in determining the question of contributory negligence. See Johnson v. Railway Co., 49 Wis. 529. It has frequently been held that a child of tender years is not to be held to the same rule of care and diligence in avoiding the consequences of the negligent or unlawful acts of others, that is required of persons of full age and capacity. Pennsylvania R. Co. v. Kelly, 31 Penn. St. 372; Rauch v. Lloyd, 31 id. 358; Glassey v. Railway Co., 57 id. 172; Pittsburgh R. Co. v. Coldwell, 74 id. 421; East Saginaw Ry. v. Bohn, 27 Mich. 503; Bellefontaine R. Co. v. Snyder, 18 Ohio St. 399; Robinson v. Cane, 22 Vt. 213; Railroad Co. v. Stout, 17 Wall. 657; Boland v. Railway Co., 36 Mo. 484; Chicago R. Co. v. Gregory, 58 Ill. 226; McMillan v. Railway Co., 46 Iowa, 231. In Lynch v. Nurdin, 1 Q. B. 29, the plaintiff was but seven years of age, and at the time of the injury was committing a trespass by

getting upon the defendant's cart hitched to his horse, and which had been negligently left by him in the street unattended. and Lord Denman, C. J., said: “Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation, and this would evidently be very small indeed in so young a child. But this case presents more than the want of care; we find in it the positive misconduct of the plaintiff —an active instrument toward the effect." He then reviews the authorities and concludes that "for these reasons we think that nothing appears in the case which can prevent the action from being maintained. It was properly left to the jury, with whose opinion we fully concur." Townley v. Chicago, Milwaukee & St. Paul Railway Co. Opinion by Cassoday, J.

SLANDER-CHARGING PERSON WITH CRIMINAL OFFENSE ACTIONABLE PER SE CHARGING WATERING

MILK.-(1) The Wisconsin statute makes it an offense punishable with fine and imprisonment in the county jail, to knowingly furnish watered milk to any factory to be manufactured into butter. Held, that words charging a person with such an offense are for that reason actionable per se. Mayer v. Schleichter, 29 Wis. 646; Ranger v. Goodrich, 17 id. 78; Tetber v. Dautermann, 26 id. 518; Gibson v. Gibson, 43 id. 23. (2) The words "A.'s milk is watered, and the watering of his milk by him when brought to the factory is a loss to me," etc., charge A. with knowingly watering his milk. The rule as to the construction of the language used in cases of this kind was properly stated by this court in Montgomery v. Deeley, 3 Wis. 709, viz. "The words complained of are to be taken in the sense which is most obvious and natural, and in which those to whom they were spoken were most apt to understand them." Geary v. Bennett. Opinion by Taylor, J.

CONFLICT OF LAW RIGHT TO SUE GIVEN BY LAW OF ONE STATE FOR ACT DONE IN ANOTHER—(1) An act of the Legislature of Georgia gave to a South Carolina railroad company the right to cross the Savannah river and run its road into Georgia, on condition that suit might be brought against it in Georgia on "all claims" upon it. Held, that this authorized suit in the courts of Georgia to recover damages for a personal injury done by said company in South Carolina, and to a citizen of South Carolina. Whilst doubtless the right to sue this company in this State was acquired by Georgia for the benefit of her own people, nevertheless when she acquired the right for her own citizens the Constitution of the United States gave it to citizens of all other States of the Union. (2) By the spirit of the decisions of this court (43 Ga. 461; 49 id. 106; 52 id. 565; 59 id. 426; 61 id. 132, and that of the United States Supreme Court, 103 U. S. S. C. 110), a cause of action for personal injury, growing out of a South Carolina statute may be enforced in this State against the South Carolina railroad company, under the act of the Legislature above referred to. South Carolina Railroad Co. v. Nix. Opinion by Jackson, C. J. [Decided March 28, 1882.]

CONTRACT-IN RESPECT TO BIDDING AT SHERIFF'S SALE WHAT NOT ILLEGAL RESCISSION.- Contract, by which one is bound to repress and discourage bidders at a sale by the sheriff of his property, in order that it may be bid in by the other party to the contract, it being agreed that the first party is to receive a certain sum for thus restraining bidders and for not protecting the property from sale himself, is not without sufficient consideration; and a refusal to comply with said contract by the second party thereto, after

REMOVAL OF CAUSE - RULE OF DECISION-PROCEEDING IN PROBATE COURT.-This court will adhere to its rulings heretofore made, until the Supreme Court of the United States shall decide adversely thereto, and will review the decisions of the judges of the Superior Courts of this State on petitions for the removal of causes to the United States Courts, as on other questions of jurisdiction. 59 Ga. 17; 60 id. 423. Under the act of Congress of 1875, the removal of a case from a State court to the courts of the United States must be applied for "before or at the term at which such cause could be first tried and before the trial thereof." This cause having arisen in the court of ordinary on a citation of a guardian for a final settlement of his accounts, could not be removed to the Circuit Court of the United States after it had been heard and determined in the court of ordinary and had been carried by appeal to the Superior Court. The petition came too late. In such a case as this the powers of a court of ordinary are as complete as those of any other court in the State. Final judgment and execution could have been had in the court of ordinary, and as complete a trial on the merits was had therein as could have been had in any court. "We think that such a case as this could have been removed from the court of ordinary to the Circuit Court of the United States by petition made at the proper time." See Dillon on Rem. p. 53, note 1; 18 How. 137; 2 Otto, 10; Stafford v. Hightower. Opinion by Jackson, C. J. [Decided March 2, 1882.]

SURETYSHIP -RELEASE OF SURETY BY NOVATION OF CONTRACT OR COMPROMISE- NOTICE. - A surety may plead a discharge from liability for causes not affecting the liability of his principal, such as novation of contract, increase of risk, etc., but it is not a privilege available to the principal to set up defenses peculiar to his sureties. Such a defense would not inure to his benefit. If sureties, on default of their principal, compromise with the creditor for a sum less than the amount in default, and their principal ratifies the compromise, then such sureties can hold their principal for the amount of such compromise, and in settlement thereof may transfer to the creditor property which they hold for their indemnity. Actual notice of matters outside of the deed and records under which a purchaser claims title, must be brought home to such purchaser in order to defeat his claim. Simmons v. Goodrich. Opinion by Speer, J. [Decided March 28, 1882.]

IOWA SUPREME COURT ABSTRACT.
DECEMBER, 1881.

MALICIOUS PROSECUTION —WHAT REQUIRED TO ESTABLISH PLAINTIFF'S CASE.-In cases of malicious prosecution, according to the weight of authority the rule appears to us to be, that if the defendant can satisfy the jury that the plaintiff, notwithstanding his acquittal, was in fact guilty of the crime with which he was charged, no recovery can be had. Bacon v. Town, 4 Cush. 239; Adams v. Sisler, 3 Blackf. 241; Whitehurst v. Ward, 12 Ala. 264; Bell v. Pearcey, 5 Ired. 82; Johnson v. Chambers, 10 Ired. 287; Parkhurst v. Mastellar. Opinion by Adams, C. J.

MUNICIPAL CORPORATION - UNREASONABLE ORDINANCE VOID - ORDINANCE AS TO RUNNING RAILWAY

TRAINS. A municipal ordinance which restricted the running of railroad trains within its limits to four miles an hour, held unreasonable and void when applied to a railroad which ran three miles after entering the city limits, through farm lauds feuced on both sides, before it reached the settled part of the city, and two miles further before it reached the city depot. In 1 Dillon Mun. Corp., § 319, it is said: "In this country the courts have often affirmed the general incidental power of municipal corporations to make ordinances, but have always declared that ordinances passed in virtue of the implied power must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State." That courts may declare void an ordinance passed by a city in virtue of its implied powers is fully sustained by the following authorities: Hayes v. City of Appleton, 24 Wis. 542; Austin v. Murray, 16 Pick. 121; Dunham v. Trustees of Rochester, 5 Cow. 462; T., W. & W. Ry. Co. v. Jacksonville, 67 Ill. 37; Ex parle Frank, 52 Cal. 606; Kip v. Patterson, 2 Dutcher, 298; Com'rs v. Gas Co., 12 Penn. St. 318; Waters v. Such, 3 Ark. 110; Mayor v. Winfield, 8 Humph. 707; Chasson v. Milwaukee, 30 Wis. 316; Clinton v. Phillips, 58 III. 102; Tugman v. Chicago, 78 id. 405. Whether a by-law or ordinance be reasonable is a question for the court. Commonwealth v. Worcester, 3 Pick. 471; State v. Overton, 4 Zab. (N. J.) 435. Under the ordinance in question it would take three-quarters of an hour, after entering the corporate limits, to pass over three miles of railroad, through agricultural lands fenced on both sides, and reach the inhabited portion of the city; and it would take over one hour and a quarter to reach the terminus of the railroad. One of the objects of railroads is to secure quick transportation for freight and passengers. The ordinance in question not only places an unreasonable restriction upon the railways themselves, but it unreasonably and unnecessarily impedes the whole traveling public. The ordinance operates as a restraint upon commerce, and ought not to be sustained. Meyers v. Chicago, Rock Island and Pacific Railroad Co. Opinion by Day, J.

REPLEVIN BY VENDOR OF GOODS SOLD INSOLVENT FIRM - DEMAND - ATTACHMENT OF GOODS BY CREDITOR OF VENDEE - WHAT AUTHORIZES VENDOR TO

RESCIND SALE-INTENTION NOT TO PAY.- (1) Plaintiff sold and delivered goods to a firm which were to their knowledge insolvent, but plaintiff did not know of the insolvency. The goods were attached in behalf of the creditors of the firm, and plaintiff claiming to rescind the contract of sale replevied the goods from the attaching officer. Held, that a demand was not necessary before instituting 'the replevin suit, nor was notice of rescission of the contract of sale; and the levy of the attachment did not deprive plaintiff of the right to rescind the contract. It has been held by this court that a demand is required only when it is necessary to terminate defendant's right of possession, or confer such right on plaintiff; and that when both parties claim title and the right of possession incident thereto, no demand need be made. Smith v. MacLean, 24 Iowa, 322; Jones v. Clark, 37 id. 586; Redding v. Page, 52 id. 406; Thurston v. Blanchard, 22 Pick. 18; Ayres v. Hewitt, 19 Me. 281. As an attaching creditor parts with no consideration and does not change his position as to his claim to his prejudice, he stands in the shoes of the vendee. It cannot be questioned that the right of rescission, as between the vendor and vendee, inheres in the contract and attaches to the property. The innocent purchaser for value occupies a different position, and his rights are therefore different. These views and conclusions find support in the following authorities: Drake, Attachm., § 246; Bigelow, Fraud,

311; Wells, Replevin, 184, § 324; Buffington v. Gerrish, 15 Wis. 156; Bussing v. Rice, 2 Cush. 48; Wiggin v. Day, 2 Gray, 97; Field v. Stearns, 42 Vt. 106; Fitzsimmous v. Joslin, 21 id. 139; Poor v. Woodburn, 25 id. 234; Jordan v. Parker, 56 Me. 557; Ayers v. Hewitt, 19 id. 281; Bradley v. Obear, 10 N. H. 477; Farley v. Lincoln, 51 id. 577; Thompson v. Rose, 16 Conu. 71; Barnard v. Campbell, 58 N. Y. 73; Devoe v. Brandt, 53 id. 463; Root v. French, 13 Wend. 570; Hitchcock v. Covell, 20 id. 167; Gasquet v. Johuson, 2 La. 515, 523; Galbraith v. Davis, 4 La. Ann. 95; Bristol v. Wilsmore, 1 B. & C. 514; Load v. Green, 15 M. & W. 216; Johnson v. Peck, 1 id. 336. These cases all agree in holding that the creditors of a vendee who by fraud induced the sale, cannot hold the property under proceedings to enforce their debts against the vendor. There is not however entire harmony in the reasoning of the different cases, or the grounds upon which the several decisions are based. (2) An intention on the part of the vendee not to pay for goods bought by him, which he conceals from the vendor, is a fraud which authorizes the vendor to rescind the sale. This rule prevails in Massachusetts. Wiggin v. Day, 9 Gray, 97; Dow v. Sanborn, 3 Allen, 181; Kline v. Baker, 99 Mass. 253; Rowley v. Bigelow, 12 Pick. 309. It is the law in New York. Hennequin v. Taylor, 24 N. Y. 139; Ash v. Putnam, 1 Hill, 302; Bigelow v. Heaton, 6 id. 44; Byrd v. Hall, 2 Keyes, 647; Johnson v. Monell, id. 655; Hall v. Naylor, 18 N. Y. 588; King v. Phillips, 8 Bosw. 603. The doctrine is recognized in Connecticut, Maryland, Missouri and Vermont. Thompson v. Rose, 16 Conn. 71 (81); Powell v. Bradley, 9 Gill & J. 220 (278); Bidoult v. Wales, 20 Mo. 546; Fox v. Webster, 46 id. 181; Redington v. Roberts, 25 Vt. 686 (694). It has the support of the following English cases: Bristol v. Wilsmore, 1 B. & C. 514; Ferguson v. Carrington, 9 id. 59; Kirby v. Wilson, Ry. & M. 178; Notile v. Adams, 7 Taunt. 59. It is also announced in Parker v. Byrnes, 1 Lowell, 539, and in Briggs v. Barry, 2 Curt. 259 (262). The rule is also followed in New Hampshire. See Stewart v. Emerson, 52 N. H. 301. Some cases conflict with the rule. Smith v. Smith, 21 Penn. St. 367; Backentors v. Spercher, 31 id. 324. Oswego Starch Factory v. Lendrum. Opinion by Beck, J.

MAINE SUPREME JUDICIAL COURT AB

STRACT.*

DEED-WHEN FIXED BOUNDARIES NOT ENLARGED BY MONUMENTS.- Where a grant of land is made with fixed and definite metes and bounds capable of being ascertained on the face of the earth, it cannot be enlarged so as to include adjoining land by the mere addition of the words "together with the buildings thereon standing," although such adjoining land is covered by corners of the buildings referred to. See Crosby v. Parker, 4 Mass. 114; Ward v. Bartholomew, 6 Pick. 415. Carville v. Hutchins. Opinion by Barrows, J.

[Decided March 2, 1882.]

ESTOPPEL-OBLIGORS OF GUARDIAN'S BOND MAY NOT DISPUTE VALIDITY OF APPOINTMENT.-The obligors who have voluntarily entered into a bond given by a guardian upon receiving license to sell real estate, are estopped by the recitals in the bond, which admit a due appointment of the guardian and full authority to sell and convey the real estate of the ward. Cutler v. Dickinson, 8 Pick. 387. The obligors on a bond are estopped to deny the facts therein stated. Cordis v. Sager, 14 Me. 475. In White v. Weatherbee, 126 Mass. 451, it was held after a decree of distribution of an intestate estate in the probate court, ordering A., the administrator, to pay a certain sum to B., as adminis

* To appear in 73 Maine Reports.

trator of C., that the surety of A.'s bond, in an action against him for the benefit of B., for such neglect could not show that B. was not duly appointed administrator of C. Such decree," observes Morton, J., "is conclusive upon the sureties, and they cannot impeach it collaterally." Williamson v. Woodman. Opinion by Appleton, C. J.

[Decided Jan. 13, 1882.]

INFANT - RESCISSION MAJORITY — RESCISSION BY AGENT.—If minors having in their possession the consideration received by them upon the sale and delivery of their goods and chattels desire to return the same to the party contracting with them and rescind the contract, they may do so during their minority as well as within a reasonable time after they come of age; and upon the refusal of the other party to accept the consideration returned and to restore the property, they may maintain trover, prosecuting their suit by prochein ami for the property withheld from them. The rescission of a minor's contract in this manner through the intervention of an agent employed by him for that purpose is not manifestly nor necessarily prejudicial to the minor and is therefore not to be classed nor regarded as void; and his appointment of an agent for such purpose is at the worst only voidable; and the opposite party when thus notified of the rescission, if he refuses to accept the consideration returned and to restore the property can no longer shield himself under the contract. Even if the failure of the infant to present himself personally to make the rescission were to be regarded as a valid objection, still if the other party, without questioning the authority of the agent to act in the premises at the time of the tender and demand, simply refuses to restore the property and accept the tender, he may be regarded as waiving the objection. The disability of infancy is a personal privilege which the infant and his legal representatives only are entitled to assert. Roof v. Stafford, 7 Cow. 179, and a dictum in Boody v. McKenney, 23 Me. 525, disapproved. The former case was reversed on appeal. Stafford v. Roof, 9 Cow. 626. where it was held that although a minor could not avoid a conveyance of land until he became of age he might avoid a sale of chattels. The power is expressly recognized in Shipman v. Horton, 17 Conn. 183; Carr v. Clough, 26 N. H. 280, 293. And this is the principle upon which alone the numerous class of cases proceed in which the minor after he has worked for a man has been allowed to repudiate his contract to labor for a fixed period of time at a certain rate of wages, and to recover by suit through the intervention of a next friend what his work was fully worth without regard to his stipulations. For illustration, see Judkins v. Walker, 17 Me. 38; Derocher v. Continental Mills, 58 id. 217; Boynton v. Clay, id. 236; Vehue v. Pinkham, 60 id. 142. Towle v. Dresser. Opinion by Barrows, J. [Decided March 9, 1882.]

OF CONTRACT BY BEFORE

STATUTE OF FRAUDS - EQUITY WILL ENFORCE ORAL CONTRACT FOR SALE OF LAND PARTLY PERFORMED.

The general rule has long been settled that a part performance by the purchaser, of an oral contract for the sale and purchase of land, may take the contract out of the operation of the statute of frauds, and authorize a court of general equity powers, in the exercise of a sound discretion, to decree specific performance of the contract on the part of the vendor. 2 Story's Eq. Jur., § 259 et seq; 1 Sugd. Vend. (8th Am. ed.), ch. 18, §7; 4 Kent's Com. 451; Browne, Frauds, § 452. This is said to be upon the ground that one party shall not interpose the statute of frauds to defraud the other party, it appearing that it would be a fraud upon the latter who has acted in good faith relying that the former would do the same, if the contract is not completed. See also, Wilton v. Harwood, 23 Me. 131;

PARTNERSHIP · -LIABILITY FOR MONEY BORROWED BY PARTNER - FIRM PROMISSORY NOTES.- (1) A general partner of a firm engaged in manufacturing and selling soap, may borrow money for the benefit of the firm and pledge its credit therefor, unless restrained by the articles of copartnership, of which the lender has notice. (2) A partnership is liable to the holder of a promissory note made by one member of a trading firm in its name, if the holder has no actual knowledge, suspicion or cause of suspicion, of any fraud upon the partnership in the making of the note. (3) It is a general principle relating to trading partnerships, that each partner is the lawful agent of the partnership in all matters within the apparent scope of the business, and a firm formed for the purpose of manufacturing and selling soap are bound by the declarations of a partner during the partnership, whether oral or in writing, made in procuring loans for the carrying on of the business of the firm, and also in respect to transactions within the apparent scope of the partnership business. (4) If money is borrowed by a member of a firm engaged in manufacturing and selling soap, for the use of the firm, without the actual knowledge of the other partner, yet if the money is necessary for the business of the firm, and the same is actually put with the funds of the firm, and used by the firm in the usual course of business, the partnership is liable therefor. (5) If money is borrowed by one member of such a firm for the use of the firm, and notes executed therefor in the name of the firm without the knowledge of the other partner, but such other partner afterward learns of the transaction and makes no objection thereto, and suffers the money so borrowed to be used in the business of the firm, the partnership is liable to the holders of the promissory notes so executed in the firm name. (6) Where money is borrowed by the partner of such a firm in the name of the firm, and a note executed therefor, such note is prima facie the obligation of the partnership, and if the other partner seeks to avoid its payment, the burden of proof lies upon him to show that the note was given in a matter not relating to the partnership business, and that also with the knowledge of the holder of the note. (7) Where a third person becomes surety upon the notes of such a firm at the instance of one of the copartners, he has a right to presume that the money obtained upon the notes is for the use of the firm, unless there is something to create a suspicion in his mind that the money is not borrowed for the firm, and that the borrower is committing a fraud upon his copartner. And where the surety, after default by the firm, pays the money thus borrowed upon the notes of the firm, if the other partner seeks to avoid the payment, the burden of proof lies upon him to show, not only that the money was not applied to the use of the firm, but also that the surety on the notes had reason to believe it was not intended to be so applied at the time the money was so borrowed and his signature obtained upon the notes. Kansas Sup. Ct., January, 1882. Deitz v. Regnier. Opinion by Horton, C. J., 27 Kans.

CRIMINAL LAW.

RECEIVING STOLEN GOODS RECEIVER ACTING UNDER AUTHORITY OF OWNER OF GOODS.-In order to convict under the Illinois statute for receiving and aiding

in concealing stolen goods for gain, or to prevent the owner from recovering the same, etc., it is essential, first, to show that the property alleged to have been received or concealed was in fact stolen; secondly, that the accused received the goods knowing them to have been stolen, guilty knowledge being an essential ingredient of the crime; and lastly, that the accused, for his own gain, or to prevent the owner from recovering the same, bought, received, or aided in concealing the stolen goods. Where the owner authorizes or licenses another to receive stolen goods, and such other person receives the goods from the thief knowing them to have been stolen, with a felonious intent, be will be guilty of a felony in receiving the property, notwithstanding the license. Where a defendant, on behalf of the owner, receives stolen goods from the thief, for the honest purpose of restoring them to the owner without fee or reward, or the expectation of any pecuniary compensation, and in fact immediately after obtaining their possession restores all he receives to the owner, and is not acting in concert or connection with the party stealing to make a profit out of tho transaction, he will not be guilty, under the statute. Illinois Sup. Ct. Nov. 10, 1881. Aldrich v. People of Illinois. Opinion by Craig, C. J. (101 III. 16.)

NEW YORK COURT OF APPEALS DECISIONS.

THE following decisions were handed down, Tuesday,

ron.

May 30, 1882.

Judgment affirmed with costs-Briggs v. Central National Bank of the City of New York; Sage v. The City of Brooklyn; Biddlecomb v. Newton; Platz v. City of Cohoes; Coe v. Raymond; De Bevoise v. The Providence and Stonington Steamboat Company; Day v. The N. Y. Central R. R. Co.; The Rocky Mountain National Bank v. Bliss; Bates v. The Fourth National Bank of Brockport; Groth v. Washburn; The Rector, etc., of the Church of the Redemption v. The Rector, etc., of Grace Church; Bradner v. Strong; Morehouse v. The Agricultural Insurance Company; Steen v. The Niagara Fire Insurance Company; Powell v. Wald-Judgment affirmed - The People v. The N. Y., New Haven and Hartford R. R. Co.-Judgment reversed, new trial granted, with costs to abide event Wager v. Wager; Lent v. Howard; Ellsworth v. The Etna Insurance Company; Auerbach v. The New York Central and Hudson River Railroad Company; Morgan's Sons v. Foxall; Harris v. Perry.—Judgment affirmed, with costs to the parties out of the estate-Robert v. Corning.-Judgment reversed and new trial granted, costs to abide the event, and the appeal from order dismissed with costs-Schultz v. The Third Avenue Railroad Company.-Judgments of General and Special Terms reversed, and the defendant to have judgment dismissing the complaint and adjudging that the bond and mortgage described therein are the property of the defendant, and that the plaintiff pay to him his costs of this actionRobbins v. Robbins.-Judgment modified by reducing comm.ssion allowed to $2,268.72, five per cent on the money actually received, and as thus modified affirmed, without costs in this court to either party — In re assignment of Hulbert to Van Sinderen.—Judgment modified by declaration that it shall not effect the claim of the assignee or holder of bond and mortgage under the assignment, and as thus modified affirmed, without costs to either party in this courtChapin v. Thompson.-Order of General Term reversed and judgment of Special Term affirmed, with costs Hardy v. Draper.-Appeal dismissed-Michel v. Laird.