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teenth volume are from eleven States, and include seventeen volumes as follows: 6 Conn., 3 and 4 T. B. Mon. (Ky.), 4 and 5 Mart. N. S. (La.), 4 Greenlf. (Me.), 7 H. & J. (Md.), 4 and 5 Pick. (Mass.), 6 Cow. (N. Y.), 14, 15 and 16 Serg. & Rawle (Pa.), 1 and 2 McCord Ch. (S. C.), 2 Aiken (Vt.) and 5 Rand. (Va.) Chronologically they extend from 1825 to 1828.

We have space to note but a few of the many interesting adjudications which this volume contains. In Gladwin v. Lewis, 6 Conn. 49, a statute of Connecticut required that on Thanksgiving day "all persons shall abstain from every kind of servile labor and vain recreation, works of necessity and mercy excepted," and it was held that the service of civil process upon that day was void. It was admitted that such an act would be unlawful on the Sabbath under the statute which prohibited "secular business" on that day; but it was contended that there was a distinction between the two expressions, between "secular business" and "servile labor;" that the service of a writ might be called "secular business," but not "servile labor." But Brainard, J., said: "There is indeed a difference in expression, but, I think, not in principle. The service of a writ is labor and generally servile; a sheriff may race his horse after a fugitive debtor, and find the exercise servile enough, and I think common sense would say it was servile enough." In Waite v. Merrill, 4 Greenlf. 102, Mellen, C. J., gives a long review of the history and principles of the society of Shakers, preliminary to holding that a member is bound by his covenant with the society whereby on becoming a member he stipulates never to make any claim for his services. Leigh v. Everhert, 4 T. B. Mon. 379, shows us a curious legislative provision in Kentucky-the act of 1807, which enacted that "reports and books containing adjudged cases in the Kingdom of Great Britain, which decisions have taken place since July 4, 1776, shall not be read nor considered as authority in any of the courts of this Commonwealth." In Johnson v. Ellison, 4 T. B. Mon. 526, it was ruled that junior is no part of the name of a man. It is neither the name of baptism nor the name of his family. It is an addition to distinguish between two or more persons bearing the same name." In State v. Knapp, 6 Conn. the habit of the judges of half a century ago to ornament their opinions with quotations from the Latin and Greek poets, and to borrow their metaphors from the classics, is illustrated. The court held that they had no jurisdiction over a prosecution for the obstruction of a highway, that not being either a felony or a high crime and misdemeanor. "By statute" said Peters, J., "the Supreme Court has cognizance of all offenses, whereof any part of the punishment is death, confinement in Newgate, or incapacity to hold office, and also of high crimes and misdemeanors. If the offense in question be cognizable by the Superior Court, it must be nearly allied and equal in guilt to the crimes so punishable, such as murder, arson, rape, burglary, robbery, forgery, perjury, and many other atrocious crimes and felo

nies not to be mentioned among Christians. To which of these horrid crimes are the acts in question nearly allied or equal? Surely they are not, in the language of Lord Coke; animo felleo perpetrata. Co. Lit. 391, a. Is it possible that a wise legislature, or a learned, humane and independent judge, would doom a fellow citizen to the gallows or the cells of Newgate for erecting a pig-pen or planting a tobacco patch in the highway, and without impeding the public travel? As well might Hercules be called upon by the indolent wagoner to give him a lift, as the Superior Court to abate nuisances and remove encroachments from the highways. Nec deus intersit nisi dignus vindice nodus. Hor. de Art. Poet. a." In Anderson v. Com., 5 Rand. 627, the Court of Appeals of Virginia decided that adultery, fornication and the like were not indictable at common law, adding: "It is too late now to assume jurisdiction over a new class of cases under the idea of their being contra bonos mores. We must consider the practice of the English courts, from which we derive the principle, as having settled in the course of many centuries the true limits and proper subjects of this principle. If we are to disregard these landmarks and take up any case which may arise under this principle as res integra, then might it be extended to cases which none has yet thought of as penal. A case of slander may display as much baseness and malignity of purpose, as much falsehood in its perpetration, as ruinous effects in its consequences and as pernicious an example in its dissemination, as this case of seduction. And yet none would think of prosecuting it criminally. It is true that if something peculiar in our situation had given rise to a class of cases contra bonos mores as in regard to our slaves, which could not have existed in England, we might be justified in applying the rule in the absence of all precedent. But in relation to seduction no such supposition can be made, as we know from the books of reports that many such cases have occurred there." A contract to rent a house for a purpose forbidden by a city ordinance is illegal and can not be enforced. Milne v. Davidson, 5 Mart. 409. Lands given by the government to a husband or wife during coverture, are the separate estate of the spouse to whom they are given. Roquier v. Roquier, 5 Mart. 98. The record of the conviction upon an indictment for adultery is evidence in a subsequent suit for divorce brought against the defendant by his wife, both of the marriage and of the adultery. Anderson v. Anderson, 4 Greenlf. 100. The mother of a bastard can not inherit his estate. Cooley v. Dewey, 4 Pick. 93. Books of original entry of a tailor are admissible, though the charges are made after the work is cut and delivered to a journeyman, but before it is completed. Kaughley v. Brewer, 16 S. & R. 133.

In the seventeenth volume, fourteen volumes are re-reported, embracing the following reports: 5 & 6 T. B. Mon. (Ky.), 6 Mart. (La.), 5 Greenif. (Me.), 1 Bland, Ch. (Md.), 6 Pick. (Mass.), 7 N. H., 4 Halst. (N. Y.), 7 Cow. (N. Y.), 1 Dev. (N. C.), 3 Ohio, 17 Serg. & Rawle (Pa.), 4 McCord

(S. C.), and 1 Mart. & Yerg. (Tenn.). They extend from 1825 to 1829. In both volumes Mr. Freeman's notes are as usual learned and valuable.

Among the many cases of interest in this volume we note the following: If a subscribing witness to an instrument deny his signature, it may be proved by other testimony. Patterson v. Tucker, 4 Halst. 322. An indictment for stealing a "parcel" of oats is sufficiently certain. State v. Brown, 1 Dev. 137. A combination by two to cheat another by making him drunk and defrauding him at cards is an indictable conspiracy. State v. Younger, 1 Dev. 357. A conviction, judgment, and execution upon one indictment for a felony, not capital, is a bar to all other indictments for felonies not capital committed previous to such conviction. Crenshaw v. State, 1 Mart. & Yerg. 122. An opinion previously formed by a referee upon a case submitted to him is no objection to the report, if it appear that his mind was open to conviction. Graves v. Fisher, 5 Greenlf. 69. A woman may be appointed as an executive trustee of the court, where it will promote the interests of all concerned, as where a committee is selected to take charge of a female lunatic or a lunatic husband. "There are many civil offices which, according to the common law, a woman is incompetent to fill, such as those of judges, justices, etc. King v. Stubbs, 2 T. R. 395. But from the general language of our Constitution-for there is no express provision upon the subject-it appears that women are virtually excluded from all the various offices of our government, legislative, judicial and executive. From which it would seem to follow that females could not constitutionally be employed, even as the mere ministerial agents of any one of the three departments, or be commissioned to perform any executive duty required by any one of the courts of justice. In cases of lunacy, if the lunatic be a female, it is generally deemed most proper to appoint a female committee. And so in other cases of that class, it has been sometimes held that the comfort of the unfortunate person would be best promoted by having his person placed under the care of a female committee, as by appointing the wife to be the committee of her husband." Gibson's Case, 1 Bland. Ch. 113. A city by law prohibiting a person without a license from carrying offal and house dirt through any of the streets, is not in restraint of trade and is valid. Re Vandine, 6 Pick. 187. The right of an individual to a penalty incurred under a statute, is a "civil cause" within the meaning of the New Hampshire Constitution, and can not be taken away by a repeal of the statute. Dow v. Norris, 4 N. H. 16. Bank bills may be attached and sold under execution. Spencer v. Blaisdell, 4 N. H. 198. In Sabin v. Harkness. 4 N. H. 415, the law of Gravestones is stated by Richardson, J.: "It seems that by the rules of the common law those who have erected gravestones may maintain an action for any injury done to them during their lifetime. But after their decease the action in such a case belongs to the heirs of him

to whose honor and memory the stones were erected: Co. Lit. 18, 6; Frances v. Ley, Cro. Jac. 366; Corven's Case, 12 Co. 105; Spooner v. Brewster, 3 Bing. 136; Pym v. Gorwyn, Moore, 878; Spooner v. Brewster, 2 C. & P. 34. These rules seem to us to be founded on sound reason and good sense. Gravestones are erected to perpetuate the memory of departed friends and to mark the spot where their ashes repose. Those who erect them must in general have and feel an interest in their preservation. And this is an interest which the law wisely protects. For no one is so likely to vindicate injuries done to these memorials as those who erected them. But when they who erected the stones are gone, as the heirs of those to whose memory they may have been erected must then have the deepest interest in their preservation, the law wisely leaves it to those heirs to vindicate the wrong. In these monuments neither executors nor administrators have any interest. They are fixed to the freehold and belong to the heirs. Nor do they cease to be their property when severed from the freehold. When a man's property which is fixed to the freehold is severed, it does not thereby cease to be his property." In Stackpole v. Hennen, 6 Mart. 481, the rule as to the exemption of counsel from liability for words spoken at the trial is admirably stated by Porter, J.: "It is difficult to draw the line in such a manner as that on one side will be found the rights of parties to have everything pertinent in defense of their cause told, motives arraigned, conduct scrutinized, and that freedom of discussion which is so necessary to the discovery of truth; and on the other side that protection from calumny and unfounded invective which honest men have a right to expect while standing before a court of justice as witnesses or parties. The best rule is, we think, to protect counsel for every thing they say which is pertinent to the case, whether they are instructed or not. The last part of this rule 's obviously just. The great latitnde which the law allows in discussion, has for its object the discovery of truth in the matters at issue, and that object can never be promoted by invective foreign to the subject under examination. The first part of the rule we think equally sustainable on principles of utility. The protection accorded by it does not place suitors and witnesses at the mercy of their adversaries and counsel. It only fixes the responsibility on the client instead of the advocate. Counsel are bound to believe the information communicated to them by those whose interests they advocate. Parties have a right to present their case through their agents to the tribunal that tries it in such manner as to them may seem meet; and it would be a great impediment to the free and efficient administration of justice, if the attorney was obliged to make every statement the cause might require on his own responsibilify. It is no doubt desirable that investigations in courts should be conducted with all the circumspection and delicacy which charaeterize the intercourse of social life. But this in too many instances would be inconsistent with the rigorous obligations imposed on those who

administer justice. A great deal of litigation is produced by the knavery of men, hence, the necessity of free and bold examination; vice frequently requires to be stripped of the mantle in which hypocrisy and cunning envelop it, and laid open to the animadversion of justice and the indignation of mankind. But these important objects could not be accomplished, if the ministers whom the law authorizes parties to employ were not protected in the discharge of their duty."

In these days when it is popularly supposed that a man's will may be set aside for almost any eccentricity which he can be shown to have possessed in his life, and which popular supposition is supported by many verdicts and by not a few courts, the case of Lee v. Lee, 4 McCord, is interesting as showing how differently things were managed in the year 1827. It is safe to say that such a will as that of Mason Lee, made and executed by such an individual, would not, in the year 1880, be permitted to stand. Here is the will: An estate worth $50,000 was left to the States of Tennessee and South Carolina, his heir at law, and his two illegitimate sons being disinherited. No part of his estate, the will especially enjoined, should be "in any wise inherited by any of my relatives while wood grows or water runs." His executors, one of whom was described as "one of the first-rate Baptist preachers," were empowered to defend the will "so long as there is money left to fee the best lawyer in Charleston." Here is the testator: A man who believed in witches; who believed that an influence could be exerted on his body and mind from a distance; that some of his relations were in his teeth, and in order to dislodge them he had fourteen drawn. He made his own clothes; his pants were like petticoats, his coat was a blanket with a hole cut in it. He kept his hair cut close to prevent the witches getting hold of it. He had fifteen swords of great size, one of which he carried constantly. He slept in the day time, and kept awake at night. He believed he had the devil nailed up in his fireplace. His house was a hovel adjoining a pig-sty. He was easily alarmed; the ticking of a clock frightened him. He cut off the tails of his cattle, giving as a reason that they made themselves poor fighting flies, and if their tails were off they would get fat; he also cut off the ears of all his horses and mules. A reason which he gave for not providing for one of his sons was that he was his twin brother. The will of this extraordinary person being contested on the ground of insanity, was sustained by a jury, and on appeal by the Supreme Court.

GUARANTY - WHEN CONDITIONAL — AC

TION.

KING V. BATTERSON.

Supreme Court of Rhode Island, July, 1880. Action on a guaranty as follows: "H. R. H., Esq.: If Mr. J. G. H. contracts with you for lime and plaster to be

used in fire-proofing and plastering City Hall and Court House buildings in Providence, promising to pay your bills from moneys received by him for work done on said buildings, I will guarantee the faithful performance of such contract with you. Yours truly, J. G. B." Held, that this offer of guaranty was conditional; that B. was entitled to notice that the condition was accepted, and that without distinct notice of such acceptance it did not take effect.

2. The lime and plaster were in fact furnished, not by H., but by the plaintiff K. Held, that K. could not hold B., on his guaranty offered to H., nor could he maintain his action on the ground that H. was his agent.

Plaintiff's petition for a new trial.

B. N. & S. S. Lapham, for plaintiffs; Charles Bradley, for defendant.

POTTER, J., delivered the opinion of the court: This action is for goods sold and delivered to Jas. G. Haley upon the guaranty of the defendant. of which the following is a copy:

"Hartford, Conn., 23d May, 1876. "H. R. HORTON, Esq., 78 So. Water Street, Providence, R. I.

"DEAR SIR: If Mr. J. G. Haley contracts with you for lime and plaster, to be used in fire-proofing and plastering City Hall and Court House buildings in Providence, promising to pay your bills from moneys received by him for work done on said buildings, I will guarantee the faithful performance of such contract with you. "Yours truly,

"J. G. BATTERSON.” And which was written in reply to a letter, of which the following is a copy:

"Providence, R. I., May 23, 1876. "J. G. BATTERSON, Esq.,

"DEAR SIR: Mr. James G. Haley called on me yesterday, asking for estimate on stock for City Hall and Court House buildings. He referred me to you, and said you would guarantee the payment of all stock delivered him in these jobs. Please inform me if this is so by return mail. "Yours truly, etc.,

"H. R. HORTON."

The goods were furnished, not by Horton, to whom the guaranty was given, but by the plaintiff. Two points may be considered in this case. First, was notice of acceptance necessary? The instrument or writing relied on is not an absolute undertaking to pay for certain goods if the buyer does not. It is an offer made to the seller to be bound if the purchaser will comply with a certain condition. We think that being an offer, the defendant was entitled to notice at any rate that the condition had been complied with, on which condition he was to become liable.

It is not an absolute promise to pay for such advances as a person may make to another, where the only condition, if it can be called a condition, is that the guarantee shall furnish the goods; but there is another condition, that a certain promise was to be made by the purchaser to pay out of certain funds, and the guarantor had a right to know that this promise was made in a manner to be available to him. See cases cited in Brandt ou Suretyship, secs. 159, 161-3.

There must always be an acceptance, but this

may be express or implied. And if the guaranty be by letter for a future operation, especially of uncertain amount, then there should be distinct notice of acceptance. The guarantor should have an opportunity to know his liability and provide for it. And unless the transaction is such that it of itself gives him all the knowledge he needs at a proper time," then he should have distinct notice. 2 Parsons on Contracts, *14. And the relations of the parties, nearness of residence, are often mentioned as circumstances to be considered. And see 1 Chitty on Contracts, 11th ed. 742, note; Whitney v. Groot, 24 Wend. 82, 84; 2 Amer. Lead. Cas. 75.

Second. The guaranty was addressed to Horton, and the plaintiffs, not Horton, furnished the goods, and sue for them.

Now, ordinarily, a guaranty is not negotiable. It may, indeed, be made so, if such appears to be the intention of the guarantor. It may not be addressed to any particular person. It may be an offer addressed to all the world, as in the case of a reward offered. But if addressed to a particular person, as in this case, we think it can not be transferred so as to enable another to sue pon it in his own name. There may be good reasons why the guarantor should be willing to deal with one person and not with another; and there may be equities, or other dealings, between the guarantor and the guarantee which the former may desire to provide for, and has a right to provide for. Brandt on Suretyship, secs. 96, 97; Taylor v. Wetmore, 10 Ohio, 490; Bleeker v. Hyde, 3 McLean, 279.

Can the plaintiffs maintain the suit on the ground that they were the real party in interest, and that Horton made the contract as their agent? We think not. In 2 Smith's Lead. Cas. *373, are cited many cases where it has been held that on a contract made with one person, if he was agent for another, the real principal may sue or be sued on it, "unless its terms, or the circumstances under which it is made, indicate an intention to bind, or entitle one to the exclusion of the other." It has been held that this does not extend to negotiable paper, so as to charge an unnamed principal. 2 Smith's Lead. Cas. *375.

The reasoning of the Supreme Court of New York in Walsh v. Bailie, 10 Johns. 180, applies to this part of the case as well as to the question of negotiability. The defendant had written to the plaintiffs in Albany that he would be responsible, to a certain amount, for goods to be supplied to one Sherman, in Western New York, on the best terms. The plaintiffs employed a person living nearer Sherman to supply the goods. The court held the defendant not liable. The person employed might not have the capital or means to sell on good terms. The defendant might have been willing to be answerable to the plaintiffs, having confidence in them. He made no contract to be answerable to anybody else. It was enough that he had not.

Nearly all the cases where an undisclosed principal has been held entitled to sue are cases of ordinary contracts. When a contract is for the

purchase of goods, and the quality and quantity of the goods and the price are defined, no injury might result; and in such cases it might be within the contemplation of the parties that the work, e. g., repairing wagons, should be, or from the known situation of the party must be, done by sub-contract. See British Wagon Co. v. Lea, 28 W. R. 349; L. R. 5 Q. B. Div. 149. But when the contract is such as to imply peculiar confidence in the honesty, pecuniary ability, knowledge or skill of the person to whom a guaranty is addressed, there is good reason for holding it to be strictly personal, unless its language implies the contrary.

As to the assignability of a contract where special confidence is reposed, see Burial Board of St. Margaret, Rochester, v. Thompson, L. R. 6 C. P. 445, 457; Robson v. Drummond, 2 B. & Ad. 303; British Wagon Co. v. Lea, L. R. 5 Q. B. Div. 149; Humble v. Hunter, 12 Q. B. (N. S.) 310; Boulton v. Jones, 2 H. & N. 564, 566.

And as to the weight of authority on this question of suit by an undisclosed principal, see 1 Parsons on Contracts, 6th ed. *55, note x; Fenly v. Stewart, 5 Sandf. 101, 107, where the New York court, referring to the dictum of Parke, B., in Higgins v. Senior, 8 M. & W. 834, 844, that parol evidence, to charge an unnamed principal, does not contradict the written instrument, says: "Now, it requires very nice powers of discrimination, we think, to perceive how the introduction of a new party into the contract is not a contradiction of the written instrument, as well as the striking out of a party already in."

Petition dismissed.

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Appeal from Hardin District Court.

It is averred in the petition that the defendant is the owner of a two-story building in Eldora, Hardin county, which is used as a court-house, and in the upper story of which the sessions of the district and circuit courts are held; that on the fifteenth day of October, 1878, the plaintiff was in attendance as a witness upon a night session of the district court in said building; that the said building was accessible only by a narrow and unguarded stairway, which at night was extremely dangerous and unsafe to pass down, unless lighted by a lamp or other artificial light, as the defendant well knew; that when said evening or night session of said court adjourned plaintiff

started to go down said stairway, using all possible care and diligence, but owing to the unskilful and negligent manner in which said stairway was constructed, and owing to the gross negligence of the defendant in not lighting and properly guarding said stairway, the plaintiff, without fault or negligence on his part, fell from the top of said stairway to the floor below, by reason of which he was severely injured, and for which he asks judgment against the defendant for $10,000. There was a demurrer to the petition, which was sustained. Plaintiff appeals.

William V. Allen, for appellant. Huff & Reed, and Porter & Moir, for appellee.

ROTHROCK, J., delivered the opinion of the

court:

We are required to determine in this case whether a county is liable in damages to a person injured by reason of the negligent construction of a court-house, and because of negligence in not lighting an unguarded and dangerous stairway leading to a court room. If, in the discussion of the question, regard is to be had to adjudicated cases, it must be held that no such liability exists. See 2 Dillon Mun. Corp. § 762; Cooley's Const. Lim. 246; 2 Addison on Torts, 1298. A large number of authorities are cited by the learned authors; and in Addison on Torts it is said: "A plainly marked distinction is made, and should be observed, between municipal corporations proper, as incorporated villages, towns and cities, and those other organizations, such as townships, counties, school districts, and the like, which are established without any express charter or act of incorporation, and clothed with but limited pow

ers.

These latter political divisions are called quasi corporations, and the general rule of law is now well settled, that no action can be maintained against corporations of this class by a private person for their neglect of public duty, unless such right of action is expressly given by statute."

That municipal corporations proper are liable to an action for damages in such cases is settled beyond all question. The question has generally arisen in actions for injuries caused by unsafe and defective streets, sidewalks and bridges upon public thoroughfares; and as is said in Soper v. Henry County, 26 Iowa, 264, there may be found decisions in almost all, if not in every State of the Union, to the effect that such actions may be maintained. In the same case it is said: "On the other hand the decisions are almost (though not wholly) uniform to the effect that counties and other quasi corporations are not liable to private actions for the neglect of their officers in respect to highways, unless the statute has, in so many words, created the liability, specially giving the action to the party injured."

The authorities cited in support of the proposition are, in the main, the same as those cited by the learned text writers above quoted. We need but refer to a few of them, which closely resemble the case at bar. In Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109, it was held that a county was not liable for an injury suffered by the plaintiff, who, when in attendance upon court

as a witness, was precipitated into the cellar of the court-house in consequence of the negligent omission of the agents or officers of the county to guard or light a dangerous opening leading into the cellar. In Bigelow v. Randolph, 14 Gray, 541, it was held that a town in Massachusetts, which had assumed the duties of a school district, was not liable for an injury sustained by a scholar attending the public school, from a dangerous excavation in the school-house yard, owing to the negligence of the town officers. In Eastman v. Meredith, 36 N. H. 284, it was held that a town was not liable for an injury to a person received by the giving way of the floor of a town-house at an annual town meeting, the building having been negligently and defectively constructed by those who built it for the town. The ground upon which it is held that quasi corporations, such as counties, towns, school districts, and the like, are not liable for damages in actions of this character, is that they are involuntary, territorial, and political divisions of the State, created for governmental purposes. aud that they give no assent to their creation, whereas municipal corporations proper are either specially chartered or voluntarily organized under general acts of the legislature.

This court, years ago, held that a county was liable for an injury to a person caused by a defective county bridge. Wilson V. Jefferson County, 13 Iowa, 181. That case had been followed in a number of other cases down to the present time, although exhaustive arguments have been made insisting that it should be overruled as against not only the weight, but the whole current of authority. As often as the question has been made, the rule has been adhered to without deviation. In Huston v. Iowa County, 43 Iowa, 456, it is said: "We have no inclination now to review, either for the purpose of fortifying or overturning a case (referring to Wilson v. Jefferson County) which has for so long a time, in so many instances and in so deliberate a manner, been sanctioned and followed."

It is insisted by counsel for appellant that the defendant must be held liable in the case at bar, because such liability rests upon the same ground and is controlled by the same principles as the cases involving liability for injuries caused by defective bridges. It must be admitted that a distinction in principle between one injury resulting from a defective county bridge, and one caused by a defective and improperly constructed courthouse, is not very plain nor easily demonstrated. But as the line of decisions in this State as to the liability for defective bridges stands almost if not quite alone, as we have seen, we have no disposition to carry the doctrine further than is necessary to sustain the decisions of the court, which have stood so long that it may truthfully be said they have the implied sanction of the lawmaking power and the people of the State. Krause v. Davis County, 44 Iowa, 141.

There is a recognized distinction, however, which we will proceed briefly to examine. An examination, of the cases where it is held that quasi corporations are not liable in actions of this

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