erty, and the clause in the contract can, therefore, operate in many cases where negligence cannot be imputed. In Massachusetts, in Smith v. Railroad Co., 12 Allen, 531, the court say: "The common-law liability of a carrier for the delivery of live animals is the same as that for the delivery of merchandise. Upon undertaking their transportation he assumes the obligation to deliver them safely against all contingencies, except such as would excuse the non-delivery of other property.' The qualification above referred to excusing the carrier from liability for loss occasioned by the nature and character of the property is recognized. This qualification or exception, as before stated, is applicable to all property, and does not affect the common-law liabilities to any greater extent than in respect to other property, except that the instances may be more numerous where the carrier will be excused. In Angell on Carriers, § 214, it is said: "Such a case would seem to be analogous to the case of loss of merchandise owing to some inherent defect which caused the destruction of it while in transit." As well might carriers be exempted from commonlaw liabilities for loss of inanimate property as for animals, if immunity from loss from inherent defects, or from the nature and character of the property, will produce that result. The only authority seeming to favor the position of the respondent is the Cragin Case, 51 N. Y. 61. The loss of the hogs in that case was caused by heat, and the negligence attributed was in not cooling them off with water. We do not think, under the peculiar stipulation and the character of the property in that case, that it is in conflict with the views before expressed. The judgment of the General Term must be reversed and that of the County Court affirmed. All concur. Andrews, J., taking no part. Folger and Miller, JJ., absent. ACCOMMODATION INDORSEMENT BY BANK. SUPREME COURT OF THE UNITED STATES. - OCTOBER TERM, 1877. WEST ST. LOUIS SAVINGS BANK, appellant, v. PARMELEE AND SHAWNEE COUNTY BANK. The cashier of a bank is not presumed to have power, by reason of his official position, to bind the bank as an accommodation indorser of his own promissory note, and actual authority to make such indorsement must be shown before a recovery can be had thereon. APPEAL from the Circuit Court of the United States for the District of Kansas. The defendant, Parmelee, made his individual note, payable to the order of the plaintiff, and indorsed it "G. F. Parmelee, Cashier." The consideration of the note was a loan to Parmelee by plaintiff. The directors of the Shawnee County Bank, of which Parmelee was cashier, did not know of the indorsement. The case is reported below, 3 Dillon, 403. Mr. Chief Justice WAITE delivered the opinion of the court. The testimony in this case satisfies us beyond all doubt that the liability of the Shawnee County Bank, if any liability exists, is that of an accommodation indorser or surety for Parmelee, its cashier, and that this was known to the St. Louis Bank when it made the discount. The note itself bears upon its face the most unmistakable evidence of this fact. It is made payable directly to the St. Louis Bauk, and the Shaw nee Bank appears only as an indorser in blank of a promissory note before indorsement by the payee and while the note is in the hands of the maker. Such an indorsement by a bank is, to say the least, unusual, and sufficient to put a discounting bank upon inquiry as to the authority for making it. But we are not left in this case to inquiry or presumption. Both the correspondence and the testimony of the cashier of the St Louis Bank show conclusively that this was the understanding of the parties. Parmelee in transmitting the note for discount wrote for himself, and not as cashier. He spoke of his own note and authorized a draft upon himself personally for the interest. He pledged his own stock for the payment of the note. Wernse, the St. Louis cashier, says the negotiations opened with an application by Parmelee for a loan to enable him to pay for his stock in the Shawnee Bank, upon the pledge of the stock as collateral. There is not a single circumstance tending in any manner to prove that the transaction was looked upon as a rediscount for the Shawnee Bank, except the entries in the books of the St. Louis Bank, and these are far from sufficient to overcome the positive testimony as to what the agreement actually was. This being the case, the question is directly presented as to the liability of the Shawnee County Bank upon such an indorsement. It is certain from the testimony that no indorsement of the kind was ever expressly authorized by the bank. None of the officers, except Parmelee, and Hayward, the vice-president, ever knew that it had been made until long after the last discount had been obtained. The books of the Shawnee Bank contained no evidence of such a transaction, and the accounts of the St. Louis Bank, as rendered, gave no indication of the actual character of the paper discounted. Ordinarily the cashier, being the ostensible executive officer of a bank, is presumed to have, in the absence of positive restrictions, all the power necessary for such an officer in the transaction of the legitimate business of banking. Thus, he is generally understood to have authority to indorse the commercial paper of his bank and bind the bank by the indorsement. So, too, in the absence of restrictions, if he has procured a bona fide rediscount of the paper of the bank, his acts will be binding, because of his implied power to transact such business. But certainly he is not presumed to have power, by reason of his official position, to bind his bank as an accommodation indorser of his own promissory note. Such a transaction would not be within the scope of his general powers, and one who accepts an indorsement of that character, if a contest arises, must prove actual authority before he can recover. There are no presumptions in favor of such a delegation of power. The very form of the paper itself carries notice to a purchaser of a possible want of power to make the indorsement, and is sufficient to put him on his guard. If he fails to avail himself of the notice and obtain the information which is thus' suggested to him, it is his own fault, and as against an innocent party he must bear the loss. The decree of the Circuit Court is affirmed. THE ALBANY LAW JOURNAL. INTRODUCTION TO A TREATISE ON THE FORMERLY CONTEMPLATED BY HON. FRANCIS THE municipal law of this country, like that of Rome and of England, is divided into two great branches, civil and criminal. Municipal law strictly denotes the particular customs of one single municipium or freetown, but may with propriety be applied to any one State or nation, which is governed by the same laws and customs. "Jus civile est quod quisque sibi populus constituit." It is a rule of civil contract prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong. 1 Bl. Com. 43, 44. The primary and principal objects of the law are Rights and Wrongs. The former are either those which concern and are annexed to the persons of men, and are called jura personarum, or rights of persons; or such as may be by man acquired over external objects, or things unconnected with his person, which are styled jura rerum, or the right of things. Wrongs are divisible into private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misde meanors. Right has been described as annexed to the person, justly entitling him to possess a moral quality some particular privilege, or to perform some particular act. Grot., Lib. 1, cap. 1, § 4. sense it is used, when we say that a man has a right In this to his estate, or a right to defend himself; and this right is conceived to be some quality which belongs to him, or is inherent in his person. Now, in this definition, Grotius, instead of describing the quality itself, has only described the effect of it; instead of informing us what it is, and wherein it consists, he only tells us what it does, that it makes a man's actions or his possessions just. However, we may easily discover what this quality is, if we will but ask ourselves what it is which makes our actions and our possessions just? The answer is, that they are just, where they are consistent with law; and consequently, right itself, in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits prescribed by law. Rutherforth's Inst., B. 1, chap. 2, § 3; Kent's Com., Lect. 24. Rights, when applied to persons, are distributed into absolute and relative; the former, which are sometimes called natural, are such as appertain and belong to men, considered as individuals or single persons, and would do so, even if there existed no civil government in the world. Thus the right of providing for self-preservation is a right natural to man. They are often denominated adventitious, acquired, or artificial rights, and are incident to men as members of society, and connected to each other by various ties and relations. Thus property, or the rights which a person has to his goods, either movable or immovable, sovereignty, or the right to command, and many others which arise from some previous bargain or contract, either express or tacit, are adventitious ones. Rights are alienable or inalienable, or which may not be lawfully renounced. is alienable; and so, indeed, are all rights which the The right to property law does not forbid us to part with; those only are inalienable which we cannot part with consistently with the law, because restrained and limited by it. The right of personal security, the right of personal liberty, and the right to acquire and enjoy frequently declared to be natural, inherent and property, have been, in this country, considered and inalienable. Rights are also said to be perfect or imperfect. civil society, comes into the place of private force, The former may be asserted by force, or what, in by course of law; as the right to life and property; for if they be assailed, the party making the attack may be repelled by violence, or compel the author of the injury to make restitution or satisfaction by law. But when we cannot use forcible methods in order to secure the enjoyment of rights, they are of the imperfect sort. Thus children have a right to affection from their parents, and the latter, to duty and reverence from their children; yet, if these rights be on either side withheld, there is no comPhilosophy, Book 1, chap. 10; Burlemaque's Prin. pulsion by which they can be enforced. Paley's of Nat. & Polit. Law, Part 1, chap. 7; Rutherforth's Inst., B. 1, chap. 2. Rights: First, Natural rights, which appertain to Mr. Justice Tucker makes a fourfold division of every man, as a moral agent, independent of any social institutions or laws, whatsoever; to which all men, without distinction, so long as they remain in a state of nature, are absolutely entitled. The right rights, which appertain to every individual in a of self-preservation, is a natural right. Second, Social state of society, without regard to the form or right of holding lands by deed, instead of actual nature of the government in which he resides. The possession, the only title which the law of nature gives, is a social right, being the creature of the taken in a strict and confined sense, as contra-disartificial institutions of society. Third, Civil rights, tinguished from natural and social rights, are such as appertain to a man as a citizen or subject, of this or that particular State or country; in his private and individual capacity as a free agent, and member of the politic; and contra-distinguished from such as might body politic or State, in respect to the State or body be due to him as a magistrate, legislator, judge, or other public character, agent or functionary. The right of electing, and being elected to any public office or trust, may be considered as among the most contra-distinguished from the three former, are such important of these rights. Fourth, Political rights, as as appertain to a man or body of men, as magistrates, legislators, judges, or other public agents. the prerogatives of a King of Great Britain are his political rights; and the powers vested in the President of the United States; in the senate; and in the executive, legislative and judiciary departments, and officers of the several States, constitute their 1, note of Mr. Just. Tucker. political rights respectively. Bl. Com., B. 1, chap. Thus previously described may be, it will be sufficient for Mr. Justice Tucker. The effectual security and non jure fit, generali verbo injuria dicitur. Vinnii ad enjoyment of them depend upon the existence of Inst., Lib. 4, title 4, § 1. By injury, the Roman law civil liberty; and that consists in being protected meant offense against the person (1 Browne's Civil and governed by laws made, or assented to, by the Law, 401), and when used in a specific sense, it inrepresentatives of the people, and conducive to the cluded the idea of contumely, and might be comgeneral welfare. Kent's Com., Lect. 24. The end mitted by deed, as assault and battery, or by word of the institution, maintenance and administration or writing defamatory and libelous. Ib. 403-404. of government, is to secure the existence of the Injuria, in a general sense, denotes every unjust act, body politic, to protect it; and to furnish the indi- but when specially used, it is the same with conviduals who compose it, with the power of enjoying tumelia. Generaliter injuria dicimur omne, quod non in safety and tranquillity, their natural rights and jure fit; specialiter, alias contumelia quæ a contemnendo the blessings of life. Preamble to the Constitution dicta est, quam Græci vßpiv appellant; alias culpa, of Massachusetts. The principal view of human quam Graeci αδικιαν (εγκλημα according to laws is to explain, protect, and enforce such rights | Vinnii), dicunt, sicut in Lege Aquilia damnum injuria as are absolute, which in themselves are few and datum accipitur; alias iniquitas et injustitia, quam simple, and then, such as are relative, which, aris- Greci ανομίαν και αδικιαν vocant; cum enim ing from a variety of connections, are more numerous prætor vel judex non jure contra quem pronunciat, inand more complicated. The absolute rights of each juriam accepisse dicitur. Inst. 4, 4, 1. Injuries by deed individual, as recognized by writers upon the law, were distinguished into such as were atrocious, and as incorporated into many of the State constitutions, such as were not. Atrocious injuries were so deemed are the right of personal security, the right of per- from the degree of violence, as the wound, mayhem, sonal liberty, and the right of private property, so or assault, was more or less desperate, from the locus that the wrongs or injuries affecting them must in quo, as if done in the forum, or in the presence consequently be of a corresponding nature. of the court, or in respect to the former, as if committed on a senator, a magistrate, or a patron. It was necessary to point out these circumstances in the libel, and also to state that no reconciliation or remission has subsequently taken place, which would put an end to all penal actions, though not to those of mere reparation. Inst. 4, 15. 9. By the civil law of Spain, injury is the same as dishonor (deshonora), which is done or said to another wrongfully (a luerto), and in contempt of him. It recognizes two kinds of injury, one by word (de palibra), and the other by deed (de hecho). In the first, libels are included. Institutes of the Civil Law of Spain, by Doctors D. Ignatius Jordan de asso 7 Del Rio, and D. Miguel de Manuel Y. Rodriguez; translated by Lewis F. C. Johnson, Esq., edition of 1825. The law of nature prohibits us from inflicting injury; so that, if that law be violated, a right to reparation attaches to the person injured; that being the only method of redressing or of making amends for an act which cannot be undone. The same law which protects an individual from injury, by requiring others not to hurt him, gives him a demand upon them when they have done him any wrong, to undo it again, or confers upon him a right to demand redress in the form of damages. Rutherforth's Inst., B. 1, chap. 17. Every act of commission or neglect repugnant to the duties required of all men, either from their common nature, or particular calling, creates an obligation to repair the loss or injury that has been sustained. Er tali culpa obligatio naturaliter oritur, si damnum datum est, nempe ut id Damage, damnum, by special signification, is the resarciatur. Grotius, Lib. 2, cap. 17, § 1. In the recompense which is given for a wrong inflicted, series of absolute duties, or such as oblige all men but it has a more comprehensive meaning, which is antecedently to any human institution, this holds very carefully illustrated by foreign jurists. By the the noblest place, that no man hurt another, and that Roman law, damage meant an offense against propin case hurt or damage done by him, he fail not to erty or estate, whether it consisted of lands, goods, make reparation. Inter officia absoluta, seu quorum- or any other property; yet it has a more extensive libet, erga quoslibet, primum locum obtinet ne quis signification, and includes an express loss, detrialterum lædat; from which this consequence is ment or prejudice; so that he who by negligence, deduced, that they who cause damage, whether it or imprudence, or by the act, negligence, or imbe by contracting some engagement, or failing in prudence of those for whom he is responsible, inthe performance of it, are obliged to repair the dam-flicts damage on another, is obliged to make comage which they have done; si cui sit ab altero lasio pensation to the injured party. illata, dumnunce datum ullo modo, qui ipsi recte potest imputari, id, quantum fieri potest, ab eodem esse surciendum. Puffendorf, de officio hominis, Lib. 1, cap. 6, § 3 and 4. So, also, Domat; c'est une suite naturelle de toutes les espèces d'engagemens particuliers, et de l'engagement de ne faire tort à personne, que ceux qui causent quelque dammage, soit pour avoir contrevenu à quelque engagement, ou pour y avoir manqué, sout obligés de réparer le tort qu'ils ont fait. Domat, Liv. 3, Titre 5. Damage, in its general sense, is synonymous with injury, and means a wrong for which indemnity is to be made; but as they each have a specific and technical meaning, they require an examination as to their scientific sense. Injury, injuria, is an act done contrary to the rule of justice, which rule is Jus, in its primary signification. Jus, in its first and primitive sense, is Justicia Regula, or id quod lex præcipit. Taylor's Civil Laws, 41 and 49. Quicquid Nec The derivation of the word damnum is this: Damnum, forte a demendo dictum. Ita Varro, de Lingua Lat. Lib. 4, page 41. Damnum a demptione, cum minus re factum, quam quanti constat, alii magis probant derivari a Græco danavn, ut sid dapnum, deinde damnum, ut vлvos, sopnus, somnus. absurde deducas a Græco, daμvo, quod est, Biazo, aut ex nuia, damia damnum, ut regia, regnum. Grotius' Lib. 2, cap. 17, § 2, in note. La première de ces etymologies, est celle que donnent les jurisconsultes comme on l'a remarqué: damnum et damnatio, ab ademptione et quasi deminatione patrimonii, dicta sunt. Ibid, Traduction par Barbeyrac, Lib. 2, cap. 17, § 2, in note. Damnum generaliter significat omnem detractionem rei aliena, sive illa lucri causa fiat, sive nullius lucri gratia et sive salvis rebus, sive peremptes aut corruptes. Nam damnum ab ademptione et quasi deminatione patrimonii dictum est. Again, damnum generaliter significat omnem de THE ALBANY LAW JOURNAL. minationem rei alienæ. Vinnii, Lib. 4, title 3, and in note. Damnum est damnatio ab ademptione et quasi diminutione patrimonii dicitur. Lex. Jurid, art. Damnum. Damnum, aliquid invitis Calvin's vere demit. Et datur vero damnum in rebus, puta in vita et fortunis nostris. Fortuna vero cetera bona omnia ac res complectuntur, quæ sunt in patrimonia, vel sperantur, ut hæreditas, fructus. Gundlingius, Jus naturos a gentium, cap. 8, §§ 2, 6 and 15. Puffendorf gives the following comprehensive definition of the word: Damnum, etsi proprie ad rerum læsionem pertinere videatur; a nobis tamen ita laxe accipietur ut omnem læsionem, complectatur, quos etiam ad corpus, formam, pudicitiamque hominis spectat, adeoque nobis id notat omnem læsionem, corruptionem, diminutionem, aut sublationem quod nostrum jam est, aut interceptionem ejus, quod ejus, ex jure perfecto debebamus habere; sive id datum sit a natura, sive accedente facto humano aut lege attributum; sive denique, omissionem aut denegationem alicujus prestationis, quam nobis alter ex obligatione perfecta exhibere tenebatur. Lib. 3, cap. 1, § 3. Again: est et hoc circa æstimaPuffendorf's tionem damni observandum, quod sub illam veniat non modo ipsa res nostra, aut nobis debita, quæ læditur, perditur, aut intercipitur; sed etiam fructus, qui ex ipsa re proveniunt, sive jam sint percepti (quamquam hi jam per se æstimari possint tanquam peculiares res), sive adhuc sperentur, si modo dominus eos percepturus fuerat; deductis tamen impensis, quæ ad fructuum perceptionem fuerant necessariæ; ne cum aliena jactura locupletiores fiamus. Estimatio autem fructuum speratorum intenditur vel remittitur, prout hi longius aut proprius a fine incerti proventus remoti fuerint. Sic minoris erit æstimanda messis in herba perdita, quam quæ jam maturis flavescit aristis. Quin et civilium, quos vocant, fructuum habenda erit ratio (v. g.). Qui alterius aedes incenderit, non solum eas instaurare tenetur, sed et reparare pensiones, quæ ex illis interea poterant percipi. Puffendorf's Lib. 3, ch. 1, § 3. According to the theory of Grotius, the rights due to us arise from three sources: contract, injury and law; to every act of commission or neglect, repugnant to the duties required from all men, either from their common nature, or particular calling, he applies the name of crime or misdemeanor. Such offenses create an obligation to repair the loss or injury which has been sustained, and he intends by loss a diminution of that which any person possesses, whether it be a right denied to him from the law of nature, or from the addition of human authority, that is from the law of property, contract, or civil law. Damnum, forte a demendo dictum; est to εlator, cum quis minus habet suo, sive illua suum ipsi competit ex mera natura, sive accidente facto humano, puta dominio, aut pacto, sive ex lege. Grotius de jure Belh ac Pacis Lib. 2, chap. 17, §§ 2 and 3. Damnum, in its proper and general signification: dicitur a demendo, cum diminutione res deterior fit. Pelford's Case, 10 Rep. 115. It has in law two significations, the one properly and generally, the other relatively; properly, as in cases wherein damages are founded upon the statutes where costs are included, and taken as damages; relatively, when the plaintiff declares for the wrong done to him to the damage of a specific sum; in such case the damages are assessed by reason of the previous trespass, and do not extend to the costs, which are future, and of another nature. So that damages and costs, damna pro injuria illata, and expensa litis, are two distinct things. Ibid. 117. In a certain sense, costs are damages to the plaintiff, for by them res sue diminimply costs, they fall under nomen generale of damuitur; hence it is sometimes stated that as damages ages, and in contemplation of law are included therein. Bac. Abr, Tit. Damages; Phillips v. Bacon, 9 East, 298; Jenkin's Cent. 336; Davenant v. Rafter, 3 Salk. 214. In this sense they include interest. Holdipp v. Otway, 2 Saund. 107; Blackmore v. Fleming, 7 Term, 447; Philip v. 304. Damages and costs, however, are essentially Bacon, 9 East, 298 and different matters; the former being in the nature of incurred in legally obtaining reparation. indemnity for a wrong, and the latter the expenses costages, are derived from consteo, and that from constare; for these costages must constare to the court to be legal costs and expenses. may be remembered here, that the common law gave 2 Co. Inst. 288. It gave them only where damages were recoverable at costs in no case, and that the Statute of Gloucester common law. Kneas v. The Schuylkill Bank, 4 Wash. C. C. R. 106. ** Costs, Tous kinds, according to the distinction commonly obDomat reduces all sorts of indemnification to two served by continental jurists, interest and damages, and interest. Toutes les sortes de dédommagemens simplement intérêt, et l'autre, qu'on appelle damse reduisent à deux espèces; l'une qu'on appelle ment, et le desintéressement dont un debiteur mages et intérêts. L'intérêt est le dédommagecreancier, pour le dommage quil peut lui causer, d'une somme d'argent peut être tenu envers son faute de payer la somme qu'il doit. * les autres dédommagemens, de quelque nature que Domat, Lib. 3, title 5. By damage and interest, is soit le dommage, s'appellent dommages et intérêts. understood the loss which any one has sustained, and the profit which he might have made. Quantu:n mea interfecit; id est quantum mihi debet, quantum que lucrari potuit. Pothier on Obligations, by Evans, part 1, c. 1, art. 3; Institutes of the Law of Holland, by Van Der Linden, translated by J. Henry, Esq., London, 1828, page 198. térêts sont l'indemnité ou dédommagement qui est Les dommages, inlaquelle on a causé le préjudice; ils s'appliquent dû par suite de cette responsabilité à la personne à non seulement à la perte qu'elle aurait soufferte, faire, mais encore à la privation du gain qu'elle aurait pu Carré-Procédure Civile, Tom. 2, p. 497; 1st seul, signifie l'indemnité due pour un prejudice déja Part Liv. 5, Titre 2. Le mot dommage, employé souffert, et let mot intérêt, celle de la perte d'un gain dont on est privé l'une et l'autre indemnité. Quanp. 499, in note. tum nobis abest, quantumque lucrari potest. Ibid. Les dommages et intérêts consistent dans l'indemnité de la perte qu'on a soufferte, et du gain qu'on jurisconsulte, Paul; Quantum mea interfuit, id est, a mangué de faire; c'est la définition qu'en donne le quantum mihi abest, quantumque lucrari potui. Leg. 13, f.f. rem. nat. hab; Touillier, Droit Civil Francais, Dommage intérêts; c'est l'indemnité de la perte Paris ed., 1842, Tome 6, Liv. 3, tit. 3, cap. 3, § 3. q'une partie a faite, et du gain qu'elle a manqué de nuisible, independent de toute convention, ou d'une faire. Le prejudice éprouvé résulte, ou d'un fait exécution d'une convention. Dalloz's Dictionaire de Jurisprudence; Finley v. Bredlove, 1 Martin, 110. UNITED STATES SUPREME COURT ABSTRACT. FIRE INSURANCE. Insurable interest: government tax: transfer of ownership. The firm of T. & Co. owned certain whisky and were also liable as sureties for the tax due upon the whisky which was payable by D. The G. Insurance Co. insured T. & Co. against loss upon whisky owned by them, etc., "including government tax thereon for which they may be liable." There was a provision in the policy making it void "if the property be sold or transferred, or any change take place in title or possession, whether by voluntary transfer or otherwise." The firm of T. & Co. were, without notice to the insurance company, changed, one partner withdrawing and a new one coming in, after which the whisky was destroyed. Held, that the liability of the original firm of T. & Co. for the tax was an insurable interest and that it was not affected by the change in partners, and the company could not avoid liability for the loss under the provision making the policy void in case of a change of ownership. Firemen's Ins. Co. v. Powell, 13 B. Monr. 321; Gordon v. Mass. Ins. Co., 2 Pick. 249; Roderback v. Germania Ins. Co., 62 N. Y. 53. Judgment of United States Circuit Court, Kentucky, affirmed. Germania Fire Ins. Co., plaintiff in error, v. Thompson. Opinion by Miller, J. INDIAN COUNTRY. 1. What territory is not.—All the country described by the first section of the act of June 30, 1834 (4 U. S. Stat. 729), as Indian country, remains Indian country so long as the Indians retain their title to the soil, and ceases to be Indian country whenever they lose that title in the absence of any different provision by treaty or by act of Congress. American Fur Co. v. United States, 2 Pet. 358; United States v. Forty-three Gallons Whisky, 3 Otto, 188. Judgment of Supreme Court of Dakota affirmed. Bates, plaintiff in error, v. Clark. Opinion by Miller, J. 2. Seizure of property by military officer on territory not Indian country.-Whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves in time of peace than civilians for wrongs committed under orders emanating from a source which is itself without authority in the premises. Hence a military officer seizing liquors supposed to be in Indian country when they are not, is liable to an action as a trespasser. Ib. 3. Rule of damages.-The difference between the value of the goods so seized, at the place where they were taken and the place where they were returned to the owners, is the proper measure of damages. Ib. NEGOTIABLE INSTRUMENT. | man v. Simonds, 20 How. 365; Collins v. Gilbert, 4 Otto, 754; Noxon v. De Wolf, 10 Gray, 346; Mayer v. Badger, 34 N. Y. 249. Accordingly held, that an agreement made at the time of the making or indorsement of a negotiable instrument was not admissible in an action upon such instrument by a bona fide purchaser for value before maturity. Judgment of Supreme Court of Dis. trict of Columbia affirmed. Brown, plaintiff in error, v. Spofford. Opinion by Clifford, J. 2. Prior knowledge necessary to impeach title of bona fide holder.-In such an action the settled commercial rule is, that nothing less than prior knowledge of such facts and circumstances as impeach the title is available as a defense unless it be shown that the instrument was fraudulent in its inception. To impeach the title of a holder for value, it must first be shown that he had knowledge of the circumstances at the time the transfer was made. Goodman v. Simonds, 20 How. 366; Collins v. Gilbert, 4 Otto, 758. Ib. 3. Unperformed agreements no defense.-Agreements unperformed cannot be pleaded in accord and satisfaction. United States v. Clark, Hemp. 317; Early v. Rogers, 16 How. 608; Clark v. Brown, 22 Wall. 273. Ib. PRACTICE. 1. Jurisdiction of Supreme Court: when judgment will be affirmed.-The Supreme Court has no jurisdiction to revise the action of an inferior court upon the question of granting or refusing a new trial, and the final judgment of such court cannot be examined through its rulings upon that question. If, when the final judgment is brought here for review by writ of error, no other documents are presented for consideration than such as were before the inferior court upon the application of a new trial, this court cannot look into them, and if error is not otherwise disclosed by the record, the judgment will be affirmed. Judgment of Supreme Court of Utah affirmed. Kerr, plaintiff in error, v. Clampitt. Opinion by Field, J. 2. What Supreme Court will not examine: errors not appearing on the record.-This court must have before it a bill of exceptions, or what is equivalent to such bill, upon which the final judgment of the court below was reviewed, or it will not examine into any alleged errors except such as are otherwise apparent on the face of the record. Sparrow v. Strong, 4 Wall. 584; Casgrove v. Howland, 24 Cal. 457; Carpenter v. Williamson, 25 id. 154. Ib. SPECIFIC PERFORMANCE. 1. Certainty in contract essential in action for enforcement.-A contract for the conveyance of lands, which a court of equity will specifically enforce, must be certain in its terms, and the certainty required has reference both to the description of the property and the estate to be conveyed. Accordingly, where the property could not be identified, specific performance was denied. Decree of U. S. Circ. Ct., W. D., Virginia, affirmed. Preston, Jr., appellant, v. Preston. Opinion by Field, J. 1. Presumption of ownership from possession: bona fide holder without notice not affected by agreements between maker and indorser and former holder.-Promissory notes payable to order may be transferred by indorsement, or when indorsed in blank or made payable to bearer they are transferable by mere delivery, and the possession of such an instrument indorsed in blank or made payable to bearer is prima facie evidence that the holder is the proper owner and lawful possessor of the same; and nothing short of fraud, not even gross negligence, if unattended with mala fides, is sufficient to overcome the effect of that evidence or to invalidate the title of the holder, supported by that 3. What constitutes laches.-The delay of a party in evidence. Goodman v. Harvey, 4 Ad. & E. 70; Good-taking proceedings to enforce such a contract for a 2. Waiver by party seeking enforcement.-Where one having such a contract permitted the other party to execute a deed of trust of the lands to a trustee to secure certain indebtedness, with a power to sell them if necessary for the payment of such indebtedness, held, that he had waived his right to the conveyance, or, at least, had subordinated it to the interest of the trustee and the purchaser under him. Ib. |