ognized in the United States, except in the early cases: Bailey v. Mayor, 3 Hill, 531; Delmonico v. Mayor, 1 Sandf. 222; Lloyd v. Mayor, 1 Seld. 369; Stone v. Codman, 15 Pick. 297; Lowell v. B. & L. R. Co., 23 Pick. 24; Wiswall v. Brinson, 10 Ired. (N. C.) 554; Hinde v. Wabash Nav. Co., 15 Ill. 72; Chicago v. McCarty, 20 Ill. 385; but was speedily overruled, as shown by the authorities in this opinion. In addition to those there cited may be added Carter v. Berlin Mills Co. (1878), 8 Cent. L. J. 492; Wright v. Holbrook, 52 N. H. 120; Cuff v. R. R. Co., 6 Vroom (N. J.), 17; Prairie Co. v. Doig, 70 Ill. 52; Slater v. Mersereau, 64 N. Y. 138; Schular v. R. R. Co., 38 Barb. 653; Harrison v. Collins (Pa.), 35 Leg. Int. 202; Gwathney v. R. R. Co., 12 Ohio St. 92; City of Erie v. Calkins (Pa.),35 Leg. Int. 179; Dillon Mun. Corp., §§ 792,793; Wood, Master & Serv., § 314. The learned opinion makes the liability to rest upon the power conferred by the statute of the State of Indiana upon municipal corporations to keep the streets in safe condition for travel, etc. The obligation imposed seems to be no greater than that of the common law, nor greater than the powers conferred by the States; yet in the Pennsylvania, Illinois, Missouri, Ohio and the later New York cases, the doctrine of respondeat superior was held to apply in favor of cities. In the last case in Pennsylvania, City of Erie v. Calkins, supra, it was directly held that no action would lie against the corporation for injuries arising out of the negligence of the employees of a contractor; and in all the cases the correlative duty of the city to keep her streets in safe condition, etc., is as fully recognized as in the case at bar. All the decisions, except this one, recognize the exigency that may arise in public improvements, or emergencies of an exclusive temporary occupancy in the street which ex necessitate rei render the way unsafe and inconvenient (Western College v. Cleveland, 12 Ohio St. 375; Prather v. Lexington, 12 B. Mon. 589; Vanderpool v. Hudson, 28 Barb. 186; Haight v. Keokuk, 4 Iowa, 199; Wood v. Mears, 12 Ind. 515), and that the private right must yield to the public necessity. The doctrine of the above case goes beyond the authorities of other courts, and nearly, if not quite, makes the city the insurer of the lives of individuals against defects in her streets.

ABSTRACTS OF RECENT DECISIONS.

NOTES OF RECENT DECISIONS.

STREET RAILROAD COMPANY-RIGHT TO REMOVE SNOW FROM TRACK-LIABILITY FOR DAMAGES.-1. On the 6th January, 1877, there was a heavy fall of snow, and the defendant company, in clearing its track running along the bed of G street and across H street, threw the snow into a mass at the intersection of those streets. Near by on H street, was the house of the plaintiff. On the night of the day mentioned, it rained very hard, and the plaintiff's house was flooded with water. He thereupon brought suit against the Railway Company, alleging that in removing the snow from its track and throwing it into the street, it had obstructed the natural flow of water, whereby the

ff's house was injured. This was denied by the defendant. The verdict and judgment being for the defendant, the plaintiff appealed. Held: 1st. That the defendant had a right to remove the snow from its track, and in clearing its track and in throwing the snow on the bed of the street adjoining thereto, the

defendant did not use the bed of the street in an nnusual or unreasonable manner. 2nd. That it had no right to throw the snow in the gutter and thereby obstruct the natural flow of water from the street, because in so doing it would have been guilty of negligence; nor had it a right to bank up the snow on G street, so as necessarily to obstruct the natural flow of water. On the contrary, it was obliged to exercise ordinary care and prudence, not only in removing the snow from its track but also in throwing it on the street. 2. The true test of exemption from liability in actions for injury to another's property resulting from the exercise of rights incident to the dominion and ownership of property, is, whether in the act complained of, the owner has used his property in a reasonable, usual and proper manner, taking care to avoid unnecessary injury to others.-Short v. Baltimore City Passenger R. Co. Court of Appeals of Maryland. Opinion by ROBINSON, J. Judgment reversed.

FALSE PRETENSES-EVIDENCE-INTENT-PROOF OF OTHER ACTS OF LIKE CHARACTER.-Upon the prosecution of T for obtaining goods from M & Co. upon false pretenses, evidence that the accused, in the same city and at or about the same time, purchased goods from other parties, B & O, upon the same false pretenses, is admissible to show the intent of the accused in making the representations to M & Co., but not as proof that the accused had committed other offenses not charged in the indictment. And this, though the statute has made the obtaining goods on false pretenses larceny. Whenever the intent or guilty knowledge of a party charged with crime is a material ingredient in the issue of the case, other acts and declarations of a similar character tending to establish such intent or knowledge are proper evidence to be admitted, provided they are not too remotely connected with the offense charged; and what are the limits as to the time and circumstances is for the court, in its discretion, to determine.-Trogden v. Com. Supreme Court of Appeals of Virginia. Opinion by STAPLES, J. Affirmed.

LIABILITY OF WAREHOUSEMAN-SAFE KEEPING OF GOODS READY FOR DELIVERY-NEGLIGENCEEVIDENCE AS TO CUSTOM.-1. On 9th September, 1876, the appellee shipped from Boston to Baltimore, by one of the appellant's steamers, sundry boxes of books and other property, under a bill of lading containing a clause that freight must be removed from the wharf at the place of discharge, during business hours on the day of its discharge; or it was liable to be stored at the risk and expense of the owner; all merchandise at owner's risk while on the wharf. The steamer arrived at Baltimore on the 12th of September, and the goods were that day unladen and put on the appellant's wharf in the place set apart for Boston freight; and a notice was mailed to the appellee stating that the goods were ready for delivery and must be removed within twelve hours, or they would be stored at the appellee's risk and expense. The appellee did not receive this notice and did not call for his goods till the 18th of September, when he found the books were damaged by water. This injury was occasioned by water flooding the wharf during a storm of rain and southeast wind, of unusual violence, which had occurred on the previous day, Sunday, The wharf was well covered, and in other respects, save its proximity to the water, was a secure place for the storage of goods, and watchmen were employed, one by day and one by night, to protect the shed and its contents. It was shown that this was the first time the part of the wharf where these goods were stored had been submerged, though another part of the wharf had been submerged once before, during a period of about

twenty years; that the premonitions of a violent rainstorm and rise of the water before eight in the morning were observed, and that it began to rain very heavily about noon, the water rising steadily all day, and that about two in the afternoon, the water came with a rush on the wharf and the watchman then did all he could to remove the goods up higher, but was compelled by the rise of the water to desist, as there were no stevedores about, and no assistance to be had. In an action by the appellee to recover for the injury done his books: Held, that the appellant had not exercised such reasonable care as the law requires of a warehouseman in the storage and safe-keeping of the goods in question, and that reasonable care means such care as a prudent man would give to the keeping of his own goods of like kind and under like circumstances. 2. Evidence that it was the custom of the appellant to store goods of its employers on the wharf, was properly excluded from the consideration of the jury, as such a custom was not sufficient to discharge the appellant from its liability to the appellee.- Merchants, etc. Trans. Co. v. Story. Court of Appeals of Maryland. Opinion by MILLER, J. Judgment affirmed.

MASTER AND SERVANT-MASTER LIABLE FOR INJURY TO SERVANT FROM DEFECTIVE MACHINERY THOUGH NEGLIGENCE OF CO-SERVANT CONTRIBUTES.-An engine in defendant's railroad was out of order in many particulars, of which fact defendant's managing officers had notice. Among these defects the throttle valve leaked, and the thread upon the screw which served to hold the reverse bar in place and thus controlled the motion of the engine was so worn as to be useless. As a natural and necessary consequence of the defects last mentioned the steam escaped from the boilers into the cylinders when the engine was put in motion, causing an injury to plaintiff, who was in the employ of defendant. The engine was furnished with cylinder cocks, which if defendant's engineer had opened them would have allowed the steam to escape, and prevented the accident, but the engineer neglected to open them. Held, that defendant was liable for plaintiff's injury and was not relieved because the negligence of plaintiff's co-servant, the engineer, contributed to such injury. As between plaintiff and defendant it was the duty of the latter to furnish for use in the prosecution of its business good and suitable machinery and keep it in repair. Wright v. New York Cent. R. Co., 25 N. Y. 562; Laning v. Same, 49 Id. 521; Flike v. Boston, etc. R. Co., 53 Id. 549; Corcoran v. Holbrook, 59 Id. 519. It was also the duty of defendant to furnish for the management of such machinery careful and trustworthy servants, and if these conditions were fulfilled, the plaintiff, though injured by the negligence of his fellow-servant, could maintain no action against their common principal. Coon v. Syracuse, etc. R. Co., 5 N. Y. 492. But neither upon principle nor authority can it be held. that the negligence of a servant in using imperfect machinery excuses the principal from liability to a co-servant for an injury which could not have happened had the machinery been suitable for the use to which it was applied.-Cone v. Delaware, etc. R. Co. New York Court of Appeals. Opinion by DANFORTH, J. Judgment affirmed.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

July, 1880.

DIVORCE PRIOR DIVORCE PROCURED IN ANOTHER STATE BY LIBELEE WITH LIBELANT'S

CONCURRENCE-AGREEMENT.-In a libel for divorce for the cause of adultery brought by the wife, it appeared that the parties were married in this State and lived here as husband and wife for over six years, till March 20, 1877; that on said date she left her husband's house, and filed a libel for divorce in this court against him, to which he appeared, and which, after hearing, was dismissed in May, 1877; that the husband in the following May went to Maine, and soon after filed a libel for divorce in the Supreme Judicial Court of that State; that service of said libel was made upon her, and that she employed counsel here, who, by her direction, employed counsel in Maine to appear, and who did appear for her in said suit, and took part in the proceedings as her counsel; that after said service she, through the intervention of friends,consented to withdraw opposition to said suit in Maine, and upon receipt of a sum of money agreed to and did release dower, homestead or other interest in his lands and all clalms for alimony, support or maintenance, and all other claims whatever; that at the time of such negotiations and receipt she supposed said court in Maine had jurisdiction of the subject-matter of the divorce and of the parties, and that such belief was not caused by the fraud of the libelee; that a decree of divorce was granted upon said libel; that on March 18, 1878, the libellee married again in Maine. according to the laws of that State, and a few days after the arties came to this State, and have lived here together openly as husband and wife. Held, that the fact that the wife not only appeared in the suit brought by the husband, but that she afterwards executed a release, reciting the divorce therein obtained by him, and for a pecuniary consideration discharged all her claims upon him or his estate, was a conclusive answer to this libel. Having done this, she can not treat his subsequent marriage and cohabitation with another woman as a violation of his marital obligations to herself. The defense is allowed, not upon the ground of a strict estoppel, but because her own conduct amounts to a connivance at, or acquiescence in, his subsequent marriage. Kingman v. Kingman, 2 McCarter, 146; Palmer v. Palmer, 1 Sw. & Tr. 551; Boulting v. Boulting, 3 Sw. & Tr. 329; Giffs v. Giffs, 3 Sw. & Tr. 116, 11 II. L. C. 1; Pierce v. Pierce, 3 Pick. 299; Lyster v. Lyster, 111 Mass. 327, See, also, Smith v. Smith, 13 Gray, 209. Opinion by GRAY, C. J.-Loud v. Loud.

INDICTMENT-LARCENY IN A BUILDING -- FACTS NECESSARY TO BE PROVED.-1. In an indictment under Gen. Stats.ch. 161, § 15, for larceny in a building, it is not enough to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief. It is necessary to show also that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building. 2. Where, therefore, the property stolen consisted of watches, and the alleged owner testified that they were a part of his stock in trade, usually kept by him in the building, and that he was in charge of the property when the defendant came in and asked to look at some watches; that he handed the watches to the defendant; that he was not sure whether the defendant held the watches in his hand or whether they were lying on the show-case; and that they were stolen while he turned partially round to place something on the shelf behind him, it was held, that a conviction could not be sustained. If the watches were upon the show-case when stolen, it would be at least doubtful whether they must not under the circumstances be considered as rather in the possession of the owner than under the protection of the building. If by the act of the owner they were in the hands of the defendant,

they certainly derived no protection from the building. As the evidence left it wholly uncertain whether they were on the show-case or in the defendant's own hands, it did not warrant a conviction of larceny in a building. R. v. Campbell, 2 Leach, 4th ed. 564; R. v. Castledine, 2 East, P. C. 645; R. v. Watson, 2 East, P. C. 680; s. c., 2 Leach, 640; R. v. Hamilton, 8 C. & P. 49, 50, note; Com. v. Smith, 111 Mass. 429. Opinion by AMES, J.-Com. v. Lester.

TRESPASS-DISSEISIN OF OWNER- AGENT.-In an action of trespass qu. cl., the court, sitting without a jury, found that a title to a part of the locus was in one Louisa Putnam according to the deeds of the parties, and that at the time of the conveyance to said Louisa Putnam, the plaintiff was in possession of that part of the locus, her grantor, one Morse, having some years before placed the fence between his lot and the plaintiff's in such a position as to leave a strip about six feet wide, really belonging to the Morse lot, on the plaintiff's side of the fence. This was done by said Morse under the mistaken belief of himself and the plaintiff that said fence was on the true line, and thereafter the plaintiff occupied up to said fence, claiming title under her deed. Said Louisa Putnam, through her husband as her agent, employed the defendant to move said fence on to the true line for the purpose of taking possession of the land owned by her and the defendant moved said fence on to the true line, although the plaintiff on the ground forbade him to do it. This act was part of the trespass complainen of. Held, that the plaintiff was entitled to recover. At the time of the alleged trespass said Louisa Putnam was disseised, and until she had recovered possession by entry, aud so made the deed to her effectual to pass a good title, she was a stranger without right of entry against the plaintfff; and the entry of her agent, against the plaintiff's wishes, was a trespass for which the defendant is liable, although such entry was made without a breach of the peace. Ward v. Lindsay, 6 Met. 407, 413. It was a tortious entry, although the effect of it, followed by abandonment of possession by the disseisor, was to give to said Louisa Putnam a good title to the land, and a possession which, once acquired, was good against a mere disseisor. Opinion by COLT, J.--Rawson v. Ward. [With the foregoing action was tried a writ of entry brought by the same plaintiff against said Louisa Putnam to recover the strip of land above described. The presiding judge was asked to rule that if said Louisa Putnam's grantors were disseised when their deed to her was made, she, claiming under them, could not by an entry made against the remonstrance of the defendant, acquire a title which would defeat this action. Held, that this ruling was properly refused. By the form of her action the demandant now admits that the tenant is in possession of the land demanded claiming title; and as between the two the latter shows the better title to the same by deed.]

S

cribed by the by-laws existing at the time of his application for relief. 2. A became a member of an incorporated beneficial society, one of the by-laws of which fixed a certain sum to be paid to sick members. Subsequently in due form a by-law was adopted providing that no benefits should be paid until the balance in the hands of the treasurer should amount to $800. A afterward fell sick, and after his sickness made ap. plication for sick benefits, but not in accordance with the regulations prescribed by the by-laws; at the time of his application the balance in the treasurer's hands did not amount to the required sum; his application was refused, and he brought suit against the society: Held, that he was not entitled to recover. Reversed. Opinion by GORDON, J.-St. Patrick's Ben. Soc. v. Mc Vey. 8 W. N. 537.

CONTRACTS-EVIDENCE-PAY-ROLL-WHEN AND HOW ADMISSIBLE IN ACTIONS BY SUBCONTRACTORS AGAINST THEIR EMPLOYERS.-- In an action by a subcontractor against his employer for expenditures alleged to have been authorized over the contract price, the plaintiff testified as to various sums paid by him for labor and for store bills. He offered in evidence the pay-roll which contained these items, which document was admitted under exception: Held, that though not competent as a book of original entries in the present action, and although res inter alios acta, not charging the defendant, it was admissible in corroboration of the plaintiff's testimony. Reversed. Opinion by PAXSON, J. - Donahue v. Conner.

MINES AND MINING --EASEMENT OF SUPPORT CONVEYANCE OF MINERALS.-1. Coal in place is land; ejectment will lie. therefore, and it may be conveyed by deed separate and distinct from the right to the surface over it. 2. While the law, where the surface and the coal under it are held by different owners, implies an obligation on the part of the lower owner so to mine as to keep up the surface, yet this obligation may be done away with by contract or by the terms of the grant of the surface. 3. Where A sold land reserving to himself all the coal" therein and the right to mine the same by any subterranean process, but without the right to enter upon the surface, and in the contract of sale provided that he should be exempt from any liability for any injury resultiug to the surface from the mining: Held, sufficient to exempt A and his assigns of the coal from liability for damages resulting from the caving in of the surface from mining. Reversed. Opinion by MERCUR, J.-Scranton v.

Phillips.

SUPREME COURT OF MISSISSIPPI.

April Term, 1880.

DEED DELIVERY-WILL.-W died in 1878 leaving a large estate and also a will by which he disposed of only a portion of his property. After his death a box which he had kept in his bank was opened, and in it were found several deeds disposing by gift of his lands to some of his grandchildren. Said deeds bore date, some in 1874, and the others in 1875, were duly acknowledged but not recorded. Folded in each of said deeds was a separate piece of paper containing these words: "I hereby direct that this deed be handed to my grandchildren therein named, as I have made a deposit of it for safe keeping and to avoid destruction, for their sake and benefit," and was signed by said W. Held, that there had been no delivery of the deeds, and that they could not be upheld. Nor were the papers valid as wills, not being properly at

tested. Reversed, Opinion by CAMPBELL, J.-Davis v. Williams.

CARRYING CONCEALED WEAPONS-CONSTRUCTION OF STATUTE.-The words "being threatened" in the statute concerning the carrying of concealed weapons are used in the sense of being so circumstanced as to be made to apprehend an attack, against which one might lawfully defend himself by the use of a deadly weapon. The term 'threatened" does not mean that a mere denunciation of evil will license the person denounced to carry concealed weapons. The person excepted from the prohibition of the statute is one so menaced as to have good reason to believe that he is in danger of attack from which he may properly defend himself by the character of weapon he carries concealed. That one has been threatened by another with bodily harm, does not in itself license the person threatened to carry a weapon wholly or partly concealed. To justify it, he must, in the opinion of the jury, have good and sufficient reason to apprehend an attack, and must be carrying the weapon charged as a precaution against it, at a time or place or under circumstances in which he could not have sufficient reason to apprehend an attack, of all which the jury trying the case is to determine, as a question of fact. Reversed. Opinion by CAMPBELL, J.- Tipler v. State.

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COMMON CARRIER-LIABILITY FOR CARRYING BEYOND DESTINATION CUSTOM NOTICE. The plaintiff, with two young daughters, embarked at Vicksburg on the defendant's steamboat for Palmyra Landing, upon the assurance that she would be landed there. Being without a male escort, she placed herself under the care of the clerk of the boat. She was landed at two o'clock in the morning, at Point Pleasant Landing, a mile distant from Palmyra, and was forced to spend the night with her children in an open warehouse, almost without fire, and to procure transportation next morning to her proper destination. The night was dark and cold. She was induced to disembark at Point Pleasant, by one H and one O, who told her that she had arrived at her destination. H was a personal friend of the officers of the boat, traveling free, and in return for the favor assisted the clerk in various ways, especially in the matter of escorting ladies on and off the boat. He was supposed by the plaintiff to be one of the clerks. O was a passenger, and an acquaintance of the plaintiff, and the clerk, on retiring for the night, requested him to see her safely on shore when her landing was reached. Both H and O supposed, when they conducted her ashore, that she was disembarking at Palmyra, and this mistake grew out of the fact that the boat had ru≈ past that place without stopping and with the intention on the part of her officers of returning to it after making the landing at Point Pleasant. Held, that the defendant was liable in damages. It was proved that the custom of the boat was to notify passengers of their arrival at their place of destination, a custom that would seem indispensable at night, and plaintiff had therefore a right to expect such notification. Defendant in error is bound not only for the acts of his clerk, but for the acts of those to whom, in this matter, the clerk had deputed the performance of the duties entrusted to himself. The case stands exactly as if the clerk had, in person, misdirected and led plaintiff off the boat. Reversed. Opinion by CHALMERS, J.Carson v. Leathers.

SUPREME COURT OF MISSOURI.

June 14, 1880.

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PUBLIC SCHOOLS - POWER OF BOARD TO EXPEL PUPILS.-Rule 11 of the Jefferson City School Board reads as follows: Any pupil absent six half-days in four consecutive weeks without satisfactory excuse, shall be suspended from school." The statute provides (Rev. Stat., § 7045), that the board shall have the power to make all needful rules and regulations, for the organization, grading and government of the school in their district." This rule was enforced against plaintiff's son, and he seeks by mandamus to compel the school board to admit his son to the school. The circuit court sustained a demurrer to the return of the school board setting up this rule. Held, that the rule in question is clearly within the power conferred upon the board by the legislature, and is a reasonable and proper one. The legislature has extended this power to these boards, and it is only in case of an improper exercise of the power that the judiciary will interfere. Dritt v. Snodgrass, 66 Mo. 286. Reversed and remanded. Opinion by NAPTON, J.-King v. Jefferson City School Board.

CRIMINAL LAW-LIBEL-REPEAL OF LAW CREATING OFFENSE-CONSTRUCTION OF STATUTE.-Defendant was indicted, tried and convicted for a libel, committed prior to the present statutes. At that time libel was a common law offense, and punishable only as such. It was first defined and punished as a statutory crime by the present statutes, which took effect November 1, 1879. Rev. Stats. §§ 1591, 1592, 1644. Held, that sections 1591, 1592 and 1644, supra, repealed the common law on the subject; that sections 1675 and 3151, creating certain savings from the repealing provisions of the statute, apply only to of fenses created by statute, and that there are no such savings as to common law offenses. Hence, no judgment of conviction could be pronounced against defendant for a libel at common law. Comm. v. Marshall, 11 Pick. 350; 21 Pick. 373; 10 Pick. 37; 13 Allen, 581; U. S. v. Tynon, 11 Wall. 89; State v. Slaughter, Supreme Court of Mo., MS., October Term, 1879. Reversed. Opinion by HENRY, J.-State v. Boogher.

CRIMINAL LAW-FORGERY OF CERTIFICATE OF RECORD OF DEED-EVIDENCE-EXPERT TESTIMONY -MISCONDUCT OF JURY.-1. Defendant was indicted, under Rev. Stat. sec. 1379, for forging the certificate of the recorder of Bates County, on a deed of trust executed by one Buchanan for defendant's benefit. The execution of the deed of trust, and the notes secured by it, as well as the circumstances under which they were made, were proven; and it also appeared that defendant negotiated the notes and deed of trust with one Hale, at which time the certificate of record was upon the deed the same as at the trial. The certificate did not state the year in which the deed was deposited for record, as required by Rev. Stat. sec. 3818. The recorder testified that the certificate was a forgery, and that the instrument was never recorded. A witness testified that he saw defendant indorse his name across the back of the notes. Qualified experts testified that the same man who wrote the name across the notes forged the certificate. The deed of trust and notes were offered in evidence. On this testimony, the court denied an instruction, asked by defendant, in the nature of a demurrer to the evidence: Held, proper. The forgery of the certificate was proven, and so was the fact that defendant indorsed his name on the notes. Having indorsed the notes for value, he

was estopped from denying the genuineness of his signatures. These signatures furnished a basis for comparison of his handwriting with that in the certificate, and the experts properly used them for that purpose. 1 Greenlf. on Ev. sec. 580; State v. Scott, 45 Mo. 302; State v. Clinton, 67 Mo. 380. The deed of trust was necessarily introduced to show that the forgery was upon an instrument entitled to be recorded; and the notes and indorsements were properly admitted for the purposes of comparison, and to show that the forgery was committed with "intent to defraud," as well as to corroborate the testimony of witnesses. It is not material that the certificate was defective in omitting the year. It is sufficient to constitute the forgery, that it purported to have been made by an officer authorized to make such certificate." The principle announced in State v. Eades, 68 Mo. 150, is applicable. 2. The instructions properly presented the law to the jury. The jury were permitted to take the instructions and the documentary evidence to the jury room: Held, not improper. Hanger v. Imboden, 12 Mo. 85. 3. One Ramsey, who was not an expert, and did not profess to be, was permitted, against the objection of defendant, to give his opinion based upon a comparison of the handwriting involved: Held, error, for which the judgment should be reversed. Reversed and remanded. Opinion by SHERWOOD, C. J.—State v. Tompkins.

SURETY ACTION FOR MONEY PAID AS DEFENSES-WEIGHT OF EVIDENCE.-1. This was an action by plaintiff to recover money paid as surety for defendant on a joint note executed to the First National Bank of Carthage. The name of the payee was left blank. Plaintiff paid it after maturity in that condition. The amount of principal and interest so paid was $311.66, which is the amount sued for. These facts are not disputed. Held, that the fact that the name of the payee was left blank, and that the note was paid by the surety in that condition, was neither a moral nor technical defense to this action. The suit was not upon the note; and had it been, the blank might have been filled by any bona fide holder. Story on Bills, § 54. 2. A second defense was, that defendant had given plaintiff a bill of sale on some corn, worth $140, which plaintiff took in consideration of paying off the note. This was denied, and the question was simply one of fact. Held, not subject to review in this court. Affirmed. Opinion by NAPTON, J.-Schooler v. Tilden.

QUERIES AND ANSWERS.

[*** The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

26. Is a judgment by default, not authorized or warranted by any of the allegations in the complaint or proof void or only voidable? For illustration: A makes his mortgage to B for $1,000, and dies leaving heirs, C, D and E. B brings a suit to foreclose against C, D and E. He is only entitled to a judgment in rem-asks no more. C, D and E are defaulted, and in addition to the ordi nary decree of foreclosure a judgment in personam is entered up against them. Is the personal judgment void? Peru, Ind.

S.

27. A being largely indebted to B, C and D, without any consideration conveys his real estate to E, for the pur. pose of placing it beyond the reach of any judgments his creditors may recover against him. After such convey. ance B, C and D severally recover judgments against A, of different dates; D, who recovered the last judgment, brought suit to set aside the conveyance. When set aside, what is the order of the liens, and is there any priority of the judgment-creditors? Peru, Ind.

S.

28. A testator gave to A 3-5 of his estate; to B 3-5 of the balance; and to C the remaining 2-5. B is indebted to the estate $1,500. The estate, exclusive of the $1,500, amounts to $3,500. B, in consideration of his liability to the estate, quit claims to A & C. B is worthless. What are the respective shares of A and C in the balance of the estate in dollars and cents?. E. H. K. Dayton, O.

29. A conveyed in fee, by deed, to B. A then mortgaged, with covenants of warranty, same property, by mistake, to C. B then conveyed in fee, by deed, to A. Then A mortgaged, with covenants of warranty, to D. All the conveyances being duly recorded. D had no actual notice of the mortgage from A to C, and was in possession of no facts which, upon inquiry, would lead to the discovery thereof. A is now wholly insolvent. Would the title after acquired by A from B, enure to C's benefit by way of estoppel? and, C being charged with record notice of the condition of the title when he took his mortgage, would he not be a purchaser with notice? and, in such case, would not the mortgage lien of D be a superior lien to that of C, D being an innocent purchaser? J. H. H.

* *

30. The New York statute provides: "That when any estate or property shall be willed to a child or descendant of the testator, and the devisee or leg. atee shall die during the lifetime of the testator, leaving a child or descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised * shall vest in the surviving child or descendant * * * as if such legatee or devisee had survived the testator and had died intestate." 3 Rev. Stat. N. Y. 146, Sec. 47, 5th ed. The English statute is similar, down to the word "lapse." It then says, "But it shall take effect as if the death of such person (legatee) had happened immediately after the death of the testator." Stat. 1 Vict. ch. 26, Sec. 33. The statutes of the States are nearly all in substance (as to the question presented) like the New York statute, supra, providing for the "vesting" of the gift in the child, etc. Quære: 1. Does such child or descendant, upon the death of the legatee before the death of the testator, upon the death of such testator, take the legacy, discharged of debts of the legatee to the testator, or reduced by such indebtedness? 2. Would such legacy pass by the will of the legatee of all his property? 3. Would such legacy constitute a part of the estate of the legatee to be administered by his representatives? D. L. A. Sherburne, N. Y.

ANSWERS.

15. [11 Cent. L. J. 78.] The statutory abolition of estates tail, also avoids all remainders which might at common law have been limited thereon, otherwise the object of the statute would be defeated. The whole goes to the donee of the estate tail under the statute. PAUL T. KREZ.

Sheboygan, Wis.

22. [II Cent. L. J. 138.] B has the prior lien on the mortgaged premises. After the redemption, B's lien for the balance due remained as if no sale had been made on his decree of foreclosure. Teal v. Hinchman (Supreme Court of Indiana, not yet reported), 34 Ind. 57. Indianapolis, Ind. A. B.

[Another correspondent cites Goddard v. Renner, 57 Ind. 532 and Cauthorn v. Indianapolis etc. R. Co., 58 Ind. 14. as in point.-ED CENT. L. J.},