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signee and another person united in a bond to the company, conditioned that the former should pay to it all moneys which should become due under or arise from the written agreement, and waiving notice of non-payment. Held, that the liability of the surety arose on the bond, and that of the consignee on the bond or the written agreement, and that the statute of limitations in regard to written instruments governed the case. Dixon v. Holdroyd, 7 El. & B. 903. Streeper v. Victor Sewing Machine Co. Opinion by Blatchford, J.

[Decided Jan. 5, 1885.]

INSURANCE-FIRE-CHANGE OF INTEREST-ADMISSION OF PARTNER.-A fire policy, covering merchandise belonging to a firm, provided that it should be void if the property "be sold or transferred, or any change takes place in title or possession (except by succession by reason of the death of the insured), whether by legal process, or judicial decree, or voluntary transfer or conveyance." Subsequently, and before loss, the firm owning this property in certain pro portions made an agreement in writing with A., by which they agreed to receive him into their busines upon the following terms and condition: Said company is to become incorporated. A. is to pay into the firm for its use $5,000 forthwith, and $5,000 in two years, with interest semi-annually until paid. The name of the new company shall be determined hereafter. The property of the existing firm shall be put into the corporation to be formed as aforesaid, adding to it the $10,000 to be paid by A. The interest and shares of the several parties in the new company shall be in proportion to the amount so contributed by each to the capital stock. When a charter shall be procured as aforesaid, half of A.'s stock shall be held by said company till said second sum of $5,000, with interest, shall be paid. No change in the name or character of the existing firm shall be made until said corporation shall be formed. Held, that A. did not become a partner, or acquire any interest in the property of the partnership, before it was made a corporation. Drennen v. London Assur. Corp. Opinion by Harlan, J.

[Decided Jan. 5, 1885.]

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MONEY

PLEADING ILLEGALLY EXACTED NEW YORK CODE-ANSWER-EVIDENCE.—(1) In an action of indebitatus assumpsit, to recover money alleged to have been illegally exacted, a declaration which avers the fact of indebtedness, and a promise in consideration thereof, is sufficient on general demurrer, unless it appears that the alleged indebtedness was impossible in law. (2) To such a declaration, treated as a complaint according to the New York Code, an answer was filed, setting up as a defense an act of Congress to legalize the collection of head-moneys already paid, approved June 19, 1878. The Circuit Court refused to hear evidence in support of the plaintiff's case, and gave judgment on the pleadings in favor of the defendant. Held, that this was error, because it did not appear from the record that the money sued for was within the description of the act of Congress. Liverpool, New York, etc., Steamship Co. 7. Commissioners of Emigration. Opinion by Matthews, J. [Decided Jan. 5, 1885.]

PUBLIC LANDS-ACT OF CONGRESS-MILITARY RESERVATION-DISPOSSESSION OF OCCUPANT-PROOF NECESSARY-EVIDENCE-SCOPE AND EFFCT OF A PATENT.

(1) A party who contests the title of another to land held under an act of Congress, in which an exception was reserved saving from its operation land occupied by the United States for military purposes, must establish the exception, when his right to the premises depends upon its existence. (2) If by a legislative dec

laration, a specific tract of land is confirmed to any one, his title is not strengthened by a subsequent patent from the government. Such a patent would be au instrument of quiet and security to the patentee, bat it would not add to the validity and completeness of the title confirmed by the act of Congress. Langdeau v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U. S. 78; Tripp v. Spring, 5 Sawy. 209, 216. If there was any difference in the grade of the two conveyances of the government, that by a direct legislative act, and that by officers acting under provisions of the statute, it would seem that there should be greater weight and dignity attached to the legislative grant as proceeding more immediately from the source of title than the patent. No impeachment can be had of the motives of the Legislature, whereas the motives of officers employed to supervise the alienation of public lands may sometimes be questioned, as in proceedings to set aside their action. Still if the law be complied with, the title passes as completely in the one case as in the other. Montgomery v. Bevans,1 Sawy. 677. Whitney v. Morrow. Opinion by Field, J. [Decided Jan.5, 1885.1]

SHIP AND SHIPPING CHARTER-PARTY- STIPULATION AS TO SAILING.-A stipulation in the charterparty of a steamer, that she is "now sailed, or about to sail from Renizaf with cargo for Philadelphia," is a stipulation that she has her cargo on board and is ready to sail. It is a substantive part of the contract, and not a mere representation, and is not an independent agreement, serving only as a foundation for an action for compensation in damages. A breach of it by one party justifies a repudiation of the contract by the other party, if it has not been partially executed in his favor. The case falls within the class of which Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch. 416; Oliver v. Fielden, 4 id. 135; Gorrissen v. Perrin, 2 C. B. (N. S.) 681; Croockewit v. Fletcher, 1 Hurl. & N. 893; Seeger v. Duthie, 8 C. B. (N. S.) 45; Behn v. Burness, 3 Best & S. 751; Corkling v. Massey, L. R., 8 C. P. 395; and Lowber v. Bangs, 2 Wall. 728, are examples; and not within the class illustrated by Tarrabochia v. Hickie, 1 Hurl. & N. 183; Dimech v. Corlett, 12 Moore P. C. 199; and Clipsham v. Vertue, 5 Q. B. 265. It is apparent, from the averments in the pleadings of the charterers, of facts which are established by the findings, that time and the situation of the vessel were material and essential parts of the contract. Construing the contract by the aid of and in the light of the circumstances existing at the time it was made, averred in the pleadings and found as facts, we have no difficulty in holding the stipulation in question to be a warranty. See Abb. Shipp. (11th ed.) by Shee, 227, 228. But the instrument must be construed with reference to the intention of the parties when it was made, irrespective of any events afterward occurring; and we place our decision on the ground that the stipulation was originally intended to be, and by its terms imports a condition precedent. The Whickham. Opinion by Blatchford, J.

[Decided Jan. 5, 1885.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CARRIER-OBLIGATIONS TO PASSENGER-INJURY BY FELLOW PASSENGER-DUTY OF EMPLOYEES.-A common carrier of passengers for hire is bound to see that no harm comes to a passenger from a fellow passenger, whose conduct and condition clearly show that he is a dangerous person and likely to injure his fellow pas*Appearing in 22 Federal Reporter.

sengers. Where the conduct of a passenger is such as to clearly show that he is dangerous, it becomes the duty of the employees of the company in charge of the train to keep him in close custody and disarm him, or remove him from the train. By the common law, and especially by the statutes of this State, ample powers in these respects are conferred upon conductors and other railroad employees. Vinton v. Middlesex R. Co., 11 Allen, 304; Railroad Co. v. Anthony, 43 Ind. 183; Railroad Co. v. Van Houten, 48 id. 90; Railroad Co. v. Vandyne, 57 id. 576; Railroad Co. v. Griffiu, 68 Ill. 506; Ind. Rev. Stat., 1881, §§ 1702, 2091, 3922-3924. These powers, whether conferred by statute or deduced from the principles of law, are given for the safety of those who travel by railroad, and any failure in a proper case to exercise them, contributing to the injury of a passenger, is a breach of the carrier's contract, for which damages may be allowed. This conclusion is strongly supported by decisions made in analogous cases, cited in argument of which see the following: Railroad Co. v. Hinds, 53 Penn. St. 512; S.C., 7 Am. Law Reg. (N. S.) 14; Railroad Co. v. Pillow, 76 Penn. St. 510; S. C., 18 Am. Rep. 424; Flint v. Transportation Co., 34 Conn. 554; S. C., Blatch f. 158; Railroad Co. v. Burke, 53 Miss. 200; S. C., 24 Am. Rep. 689; Britton v. Railroad Co., 88 N. C., 536; S. C., 43 Am. Rep. 749; Railroad Co. v. Flexman, 103 Ill. 546; Stewart v. Railroad Co., 90 N. Y. 588; S. C., 43 Am. Rep. 185. Cir. Ct., Dist. Ind., Dec. 1884. King v. Ohio, etc., R. Co. Opinion by Woods, J.

STATUTE OF LIMITATIONS-PROPER INQUIRY UNDER PLEA OF.-The inquiry under a plea of the statute of limitations is always properly limited to a few simple topics; as (1) when did the cause of action arise? Manifestly in a case like this, when the bond or coupon fell due and was not paid, though it is claimed by the plaintiffs that it did not arise so long as the plaintiffs were prevented by the action of the defendant's officers from getting service on the mayor. By the same contention, if the maker of a note should conceal bimself for a week after his note fell due, so that summons could not be served upon him, the cause of action would not arise until he should come out from his hiding place so that service could be had. Nobody is capable of maintaining such a proposition. (2) How long a period has elapsed from the time the cause of action arose to the time when suit was commenced? By limiting the inquiry to these simple questions which was no doubt the intention of the Legislature, the application and operation of the statute is made certain and uniform, and its effect salutary. See the following cases: Dupleix v. De Roven, 2 Vern. 540; Hall v. Wybourn, 2 Salk. 420; Beckford v. Wade, 17 Ves. 87; Hunter v. Gibbons, 1 Hurl. & N. 459; Brown v. Howard, 4 Moore, 508; Imp. Gaslight & Coke Co. v. London Gaslight Co., 18 Jur. 497; S. C., 2 C. L. Rep. 1230; McIver v. Ragan, 2 Wheat. 25; Bank of the State of Alabama v. Dalton, 9 How. 522; Bowman v. Wathen, 1 id. 189; Kendall v. U. S., 107 U. S. 123: Wood v. Carpenter, 101 id. 135; National Bank v. Carpenter, id. 567; Andreae v. Redfield, 98 id. 225; Leffingwell v. Warren, 2 Black, 599; Gaines v. Miller, 111 U. S. 395; Fisher v. Harnden, 1 Paine, C. C. 61; U. S. v. Maillard, 4 Ben. 459; U. S. v. Muhlenbrink, 1 Woods, 569; Cocke v. McGinnis, Mart. & Y. 361; York v. Bright, 4 Humph. (Tenn.) 312; Miles v. Berry, 1 Hill (S. C.), 296; Howell v. Hair, 15 Ala. 194; Arrowsmith v. Durell, 21 La. Ann. 295; Yale v. Randle, 23 id. 579; Somerset Co. v. Veghte, 44 N. J. L. 509; Coleman v. Willi, 46 Mo. 236; Callis v. Waddy, 2 Munf. 511; Conner v. Goodman, 104 Ill. 365; State Bank v. Morris, 13 Ark. 291; Fee v. Fee, 10 Ohio, 469; Favorite v. Booher's Adm'r, 17 Ohio St. 548; Smith v. Bishop, 9 Vt. 110; Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202; Troup v.

Ex'rs of Smith, 20 Johns. 33; Leonard v. Pitney, 5 Wend. 30; Demarest v. Wynkoop, 3 Johns. Ch. 129; Sacia v. De Graaf, 1 Cow. 356; Bucklin v. Ford, 5 Barb. 393; Woodbury v. Shackleford, 19 Wis. 55; Lindsay v. Fay, 28 id. 177; Eucking v. Simmons, id. 272. Cir. Ct. W. D. Wis., Aug., 1884. Amy v. City of Watertown. Opinion by Bunn, J.

CHATTEL MORTGAGE-MORTGAGOR IN POSSESSION WITH POWER TO SELL-QUESTION OF FRAUD ONE OF FACT.-Provisions in a chattel mortgage that the mortgagor shall continue in possession of the property and dispose of it in the ordinary course of his business, keeping the stock replenished as nearly as might be, and that the mortgage shall cover subsequently-acquired property, and secure present and future indebtedness for goods bought of the mortgagee on credit, do not render the mortgage executed to a creditor in Michigan void on its face as to other creditors of the mortgagee. Gay v. Bidwell, 7 Mich. 519; Wingler v. Sibley, 35 id. 231; Fry v. Russell, id. 229. The rule in this State is that the question of fraud is one to be determined from all the facts and circumstances bearing upon the good faith of the transaction. Robinson v. Elliott was decided under the statute of Indiana, where the point had not been passed upon by the State court, so that the Supreme Court of the United States say it was at liberty to consider the question for itself as to what the Legislature intended. Argall v. Seymour, 4 McCrary, 56, asserts the rule laid down in Robinson v. Elliott, but the case is not disposed of under the doctrine of that case, I think. Mr. Judge Lowell, in Brett. v. Carter, 2 Low. 458, in a well considered case, expresses different views. But independently of these cases, we think the Supreme Court of the United States would promptly hold, in a case arising under a chattel mortgage executed in this State, that the rule of interpretation, as held by the Supreme Court of Michigan, must control as a rule of property. Robinson v. Elliott, 22 Wall. 513; Argall v. Seymour, 4 McCrary, 56, distinguished. Cir. Ct. W. D. Mich., Nov., 1884. Morse v. Riblet. Opinion by Withey, J.

MONEY HAD AND RECEIVED-BREACH OF CONTRACT. -In May, 1883, the Mexican National Construction Company sought subscriptions to a loan of $2,000,000 to aid in constructing the Mexican National Railway, and plaintiff subscribed $20,000 upon the terms of a contract, whereby the construction company agreed to deposit in trust securities of the nominal value of $20,000,000 as collateral for the repayment of the $2,000,000 loan on or before September 15, 1884. October 1, 1883, plaintiff paid the installments of his subscription as called by the company, and received receipts therefor, which, under the contract, were not trausferable without consent of the company, but could be exchanged for formal certificates of interest in the loan, authenticated by the trustee. Before pay. ment of the last installment the company transferred to the trustee the securities by indenture, prescribing the powers and duties of the trustee, and providing that he should execute, as requested by the company, certificates of interest entitling the registered holders to an interest in the securities, or the proceeds of the sale thereof, bearing the same proportion to the whole as the amount of each certificate bore to the $2,000,000; but that he should not sell the securities to satisfy the loan unless the holders of certificates representing 25 per cent of the whole amount requested, and that the holders of a majority in interest might waive default in payment of the loan,or extend the time of payment, or suspend or postpone the sale of the collaterals at their discretion. Plaintiff had no knowledge of the terms of this indenture, aud demanded a certificate, as provided in the contract, and on a refusal to deliver

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the same brought suit for money had and received. Held (1), that the deposit of the collaterals under the terms of the trust indenture was a breach of the subscription contract; (2) that inasmuch as the defendant had put it out of its power to perform an executory contract with the plaintiff, the latter had the right to treat the contract as terminated; (3) that the plaintiff could at his election sue upon the agreement and recover damages for a breach, or treat it as rescinded and recover back the money he had advanced. The defendant could maintain a suit against each subscriber upon his failure to pay the amount of the subscription; and it must follow that each subscriber has a corresponding right of action against the defendant for any breach of the contract on its part toward him. Similar contracts have been frequently adjudged to confer a several liability and a several right of action on the part of each subscriber. Thomp. Liab. Stockh., § 114; Whittlesey v. Frantz, 74 N. Y. 456. It is a familiar rule that when one party to an executory contract puts it out of his power to perform it, the other may regard it as terminated, and has an immediate right of action to recover whatever damages he has sustained. Ford v. Tiley, 6 Barn. & C. 325; Bowdell v. Parsons, 10 East, 359; Heard v. Bowers, 23 Pick. 455-460; Shaw v. Republic Life Ins. Co., 69 N. Y. 293; U. S. v. Behan, 110 U. S. 339; Lovell v. St. Louis Mut. Life Ins. Co., 111 id. 264. The plaintiff was under no obligation to tender his receipts. They were merely vouchers. They were to be exchanged for formal certificates, but when the defendant had put it beyond its power to deliver the proper certificates, the plaintiff was not bound to tender them. No demand of the certificates was necessary after defendant had incapacitated itself from giving them. Where money is advanced upon au executory contract, which the contracting party fails to perform, it is in the election of the other party either to sue upon the agreement and recover damages for a breach, or to treat the contract as rescinded, and recover back his money as paid upon a consideration which has failed. Hill v. Rewee, 11 Metc. 271; Brown v. Harris, 2 Gray, 359; Wheeler v. Board, 12 Johns. 363; Lyon v. Annable, 4 Conn. 350; Appleton v. Chase, 19 Me. 74; Shepherd v. Hampton, 3 Wheat. 200; Smethurst v. Woolston; 5 Watts & S. 106. If there had been a part performance of the contract by which the plaintiff received some benefit, and the defendant could not be restored to the previous situation, the plaintiff's only remedy would have been for breach of the agreement, and his damages would be measured by his loss. Hunt v. Silk, 5 East, 449; Foss v. Richardson, 15 Gray, 306; Nash v. Lull, 102 Mass. 60. He has received nothing however under the contract, and the law implies a promise on the part of the defendant to pay back what it has received. Cir. Ct., S. D. N. Y., Dec., 1884. Reusens v. Mex. Nat. Const. Co. Opinion by Wallace, J.

MINNESOTA SUPREME COURT ABSTRACT.

NEGLIGENCE-HAND ON BASE OF OPEN WINDOW OF CAR-QUESTION FOR JURY.-A street railway company as a carrier of passengers is bound to exercise the highest care in the management of its cars in approaching and passing structures and obstacles in the street situated unreasonably close to the track. The position which a passenger in a street car may reasonably be allowed to assume, when taking or occupying a seat is subject to uo arbitrary rule. He is to exercise a degree of care commensurate with the danger to which he may be exposed, and such as men of common prudence would exercise in a like situation, having regard to all the circumstances, aud considering the probability that the

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carrier will exercise due care; but the degree of care to be exercised in any particular case is usually a question of fact for the jury. Where a passenger in a street car, while in the act of taking his seat, rested his hand on aud partially over the base of an open window, and the same was immediately struck and injured by an upright sewer plank standing in close proximity to the passing car, held, that the question of contributory negligence on his part was for the jury. A passenger is to be allowed a reasonable measure of liberty in the position assumed by him in taking or occupying his seat. He is expected to exercise care commensurate with the danger to which he may be exposed; but the decree of care to be exercised on a particular occasion is generally a question of fact for the jury. Stackus v. Railroad Co., 79 N. Y. 467. Thus whether the act of standing on the platform of a street car, or of getting on or off such car while in motion, is negligence, is held usually to be for the jury under the circumstances of each case. Whart. Neg. 365, 370; Meesel v. Railroad Co., 8 Allen, 234; Eppendorf v. Railroad Co., 69 N. Y. 195 Shear. & R. Neg., § 282. So in Brophy v. Germantown R. Co., Penn. Sup. Ct., 1883, it was held not negligence per se for a passenger to rest his arm on a window sill, 'which is substantially the top of the back of the seat," whence by a jolt of the car his arm was thrown out of the window and injured; the court saying: "In the absence of collision with an external object his arm was in no danger of injury. He was under no legal obligation to assume or anticipate that the company would run another car against the one in which he was sitting.' But if instead of resting his arm on the window-sill, he had taken hold of it as did the plaintiff, his hand extending, say, less than an inch beyond the car, the same suggestion might be made (notwithstanding the additional fact) in considering the question of negligence. Whart. Neg., § 362; Hutch. Carr., § 659; Thomp. Carr. 258; Fordham v. Railroad Co., L. R., 3 C. P. 372; Ang. Carr. (5th ed.) 514, note; Seigel v. Eisen, 41 Cal. 109; Miller v. St. Louis R. Co., 5 Mo. App. 471; Spencer v. Railroad Co., 17 Wis. 487. That is to say, whether the position or conduct of the passenger in such cases is reasonably prudent considering the circumstances, and the probability that the carrier will exercise due care, is not necessarily a question for the court (though in clear cases it of course would be), but may be and ordinarily is for the jury. It must also be considered that in order to the successful operation of cars there must be a reasonable space on each side between them, and any structures or obstacles in the street to accommodate their movements, caused by irregularities or impediments on the track, and that as respects danger from collision with such structures it is ordinarily easily averted in the case of street cars, which run at a moderate rate of speed, and are readily controlled. Lyuam v. Union R. Co., 114 Mass. 88; Thomp. Carr. 258, 446. The question of the passenger's negligent conduct must be largely affected by the circumstances of each case, including any indications of danger from obstructions or interruptions, from whatever cause, which might influence the conduct of a prudent person. But in Todd v. Railroad Co., 3 Allen, 18; 7 id. 207, it was unqualifiedly ruled that voluntarily suffering an arm, or any part of it, by a passenger to extend beyond the external surface of a car was negligence per se. And in Pittsburg R. Co. v. McClurg, 56 Peun. St. 294, it is assumed by the court that such conduct by a passenger is wholly unauthorized and presumptively negligent. These cases growing out of accidents arising upon steam railways have been followed by the courts of several other States. The same rule was also applied in Lauderbach v. People's R. Co., Penn. Sup. Ct., 1884-a street car case.

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The hand of a passenger holding on to the window of a car was caught by a colliding car on a narrow street, where the cars necessarily grazed in passing. No reference is there made to any supposed distinction between the case of street and steam railroad cars. The court assume that the protruding hand or arm is in an unlawful place if in any degree outside of the car by the voluntary act of the party, thus cutting off discussion as to whether, in the absence of any regulations on the subject, such conduct in a passenger would be condemned as careless by men of ordinary prudence. The opposite doctrine is maintained as to street cars in Miller v. Railroad Co., supra; Seigel v. Eisen, supra. We do not undertake to speak as to the application of the rule to other than street railways, but confining ourselves closely to the facts of this case as presumptively found in plaintiff's favor by the jury, we are of the opinion that the case was properly submitted to them. Dahlberg v. Minneapolis, etc., R. Co. Opinion by Vandenburgh, J. [See 29 Alb. L. J. 222, 444.

-ED.

[Decided Nov. 12, 1884.]

PRINCIPAL AND AGENT-CONTRACT TO SELL LANDCOMPENSATION-RATIFICATION OF CONTRACT. - The plaintiffs seek to recover a stipulated compensation for their services as agents for the defendant in selling real property of the latter. At the trial, upon the plaintiff's case being closed, the court dismissed the action. The appeal is from an order refusing a new trial. It appeared upon the trial that the defendant, by a written memorandum, authorized the plaintiffs to sell for him a certain tract of land upon terms as to price and manner of payment particularly set forth; and promised upon the sale of the property to pay plaintiffs a stated commission. The evidence went to show that after this authorization the plaintiffs agreed with certain parties (Avery and Walters) for the sale of the property to them, upon terms materially different from those prescribed by the defendant; and that the plaintiffs, as agents, executed with the purchasers a writing embodying a statement of the contract of sale and a specific agreement on the part of Avery and Walters to purchase the property on the terms stated therein. In the body of this instrument the plaintiffs are recited to have made the sale as "authorized agents," and to their signature are added the words, "Agents of L. N. Stevens." The plaintiffs having proved the execution of this contract, and having offered evidence going to show that the defendant had ratified it, offered the contract in evidence. This was rejected. We think the court erred. There was abundant evidence to entitle the plaintiffs to go to the jury upon the question of ratification, going to show that the defendant, after he had been advised as to the terms of the contract which had been made by his agents in his behalf, acquiesced in and confirmed their acts. Since the agents might have been orally authorized to make the sale (Brown v. Eaton, 21 Minn. 409; Dickerman v. Ashton, id. 538) their unauthorized acts done in defendant's behalf might be ratified in any manner expressing his assent thereto. It was not necessary that the ratification be in writing. Brown v. Eaton, 21 Minn. 409, 410. Ratification of the unauthorized sale would relate back to the acts of the agent and be equivalent to prior authority. Stewart v. Mather, 32 Wis. 344; Nesbitt v. Helser, 49 Mo. 383. This contract, if ratified by the defendant so as to cure the variance from the prescribed terms of sale, would have been prima facie proof of the plaintiff's right to recover. It bound the purchasers to take the property upon the terms stated, and this constituted a sale of the property within the meaning of the agreement between the plaintiffs and the defendant. Goss v. Broom, 31 Minn. 484; Rice v. Mayo, 107 Mass, 550. The con

tract bears upon its face the character of a contract between the plaintiffs' principal, executed through them as agents, and the purchasers. In an action upon the contract parol evidence would be admissible if any proof was necessary to disclose the defendant as the principal in whose behalf the contract was made. Rowell v. Olson, 20 N. W. Rep. 227, and cases cited. Having bound the parties by an authorized contract, any inability or refusal of the principal to consummate the contract which he had authorized should not affect the agents' rights to compensation. Mooney v. Elder, 56 N. Y. 238; Delaplaine v. Turnley, 44 Wis. 31; Phelan v. Gardner, 43 Cal. 306; Nesbitt v. Helser, 49 Mo. 383. Goss v. Stevens. Opinion by Dickinson, J. [Decided Nov. 29, 1884.]

VENDOR AND VENDEE—FRAUDULENT REPRESENTATIONS AS TO VALUE.-An action will lie for fraudulent representations made by the vendor of land as to its value and situation, the land being at a distance from the place of sale, the vendee being ignorant as to the value and situation, and being purposely and by a fraudulent device induced to purchase, relying upon the truthfulness of such representations. Under ordinary circumstances an assertion by an owner of property offered for sale as to its value, although false, does not charge the vendor with legal responsibility, for the reason that it will rarely occur that a party to a contract of sale has been induced without culpable negligence on his own part to enter into it in reliance upon the expressed opinion of the adverse party as to the value of the property. Misrepresentatious, in order to constitute actionable fraud, must be as to material facts of a nature to affect the conduct of others, aud generally a mere statement of an opinion is not enough. But where one having, or assuming to have, knowledge of the value of property, negotiates for the sale of it with one who is known to be ignorant of it, and without equal means of knowledge with the other party, and who is purposely induced by that other party to rely upon his fraudulent representations as to its value, an action will lie for the deceit. 2 Pom. Eq. Jur., 878; Wilder v. De Cou, 18 Minn. 470, 474 (Gil. 421); Haygarth v. Wearing, L. R., 12 Eq. Cas. 320; Simar v. Canaday, 53 N.Y. 298, 306; Chrysler v. Canaday, 90 id. 272; Cruess v. Fessler, 39 Cal. 336; Kost v. Bender, 25 Mich. 515; Picard v. McCormick, 11 id. 68. And especially is there liability, where by some trick or artifice the vendee has been induced to trust in such representations. Burr v. Willson, 22 Minn. 206; Chrysler v. Canaday, supra; Van Epps v. Harrison, 5 Hill, 63. The facts as determined by the verdict bring this case within the rule of liability. The circumstances warranted the jury in believing that the bring. ing in of this stranger was a fraudulent trick to deceive the plaintiff by means of apparently disinterested statements regarding the value of the land from one who was in reality an agent of the defendants, and that the representations of the defendants themselves were fraudulent. It is just that they should respond in damages. A further ground of liability is the misrepresentation as to the situation of the lot. Porter v. Fletcher, 25 Minn. 493; Perkins v. Partridge, 30 N. J. Eq. 82; Van Epps v. Harrisou, supra. Griffin v. Farrier. Opinion by Dickinson, J. [Ante, -287.] [Decided Nov. 29, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

MUNICIPAL CORPORATION-STREETS AND ALLEYSEJECTMENT.-A city cannot maintain ejectment to recover a public alley or street. Its interest therein is a mere easement, and it is not entitled to the possession of the premises within the meaning of the statute. In

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Kimball v. Kenosha, 4 Wis. 321, it was settled that in this State a grantee of a 'lot bounded by a street in a village or city, laid out, platted, and recorded in conformity with the statute, takes to the center of the street on which the lot abuts, subject to the public easement. The fee of the street is in the abutting owner, and the interest of the public therein, which the city or village holds in trust for it, is not a fee, but a mere easement. Goodall v. Milwaukee, 5 Wis. 32; Milwaukee v. Milwaukee & B. R. Co., 7 id. 85; Ford v. Chicago & N. W. R. Co., 14 id. 609. In Gardiner v. Tisdale, 2 id. 153, and again in Weisbrod v. Chicago & N. W. R. Co., 21 id. 602, it was held that the owner of the fee of a street might maintain ejectment against a permanent incumbrancer or occupier, inconsistent with or repuguant to the purpose of the public easement. The above rules have never been shaken, and are firmly imbedded in the jurisprudence of this State. These rules are decisive of this action, for no one will contend that an action of ejectment will lie to recover a mere right of way. Such an easement is incorporeal in its nature (Washb. Ease. 3), and ejectment lies only to recover things corporeal, which may be the subjects of seisin, entry, and possession. There can be no seisin of an incorporeal hereditament, and it cannot be the subject of entry or possession. It "lieth in grant, and not in livery." Sedg. & W. Tr. Title Land, §§ 95-98, 146, and cases cited. The plaintiff has an ample remedy under its charter. It may summarily remove obstructions to its streets, and doubtless has other remedies, but it cannot maintain ejectment. Racine v. Crotsenberg. Opinion by Lyou, J. [Decided Nov. 25, 1884.]

ASSAULT AND BATTERY WEALTH OF DEFENDANT

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EVIDENCE REPUTED INSTRUCTION AS POSITIVE AND NEGATIVE TESTIMONY.-In an action for assault and battery, where punitory damages are recoverable, the financial condition of the defendant may be shown by evidence of his reputed wealth. Stanwood v. Whitmore, 63 Me. 209; Kniffen v. McConnell, 30 N. Y. 285; White v. Murtland, 71 Ill. 250-261; 1 Suth. Dam. 744, 745. See also Johnson v. Smith, 64 Me. 553. An instruction that "positive testimony of a small number of witnesses that they saw or heard a given thing occur will outweigh the negative testimony of a greater number of witnesses that they did not see or hear it, provided the witnesses are equally credible; but in connection with this instruction should be considered the relative means or opportunity of the several witnesses to see or hear the occurrence, and it should be carefully kept in mind that it only applies when the witnesses are equally credible," held to have been proper where several witnesses testified that they saw the defendant spit upon the plaintiff, and several witnesses testified either that they did not see him spit upon her, or that he did not spit upon her. The evidence of the defendant's witnesses was essentially negative in its character, and the rule laid down by this court in the case of Ralph v. Railway Co., 32 Wis. 177-181, is clearly applicable. Justice Lyon in that case says: "The testimony of Todd is affirmative. He swears positively to the fact that he delivered the rope in the freight-room of the depot by direction of Miss Brown. There is but little room in this testimony for failure of memory. He either did so or he has probably committed perjury. The testimony of Miss Brown, although somewhat positive in form, is negative in fact. It means but little more thau that she has no recollection of the transaction to which Todd testified." So in the case at bar, the witnesses of the defendant who state that the defendaut did not spit upon the plaintiff reason very little more than those who testified they did not see him spit upon her. This case does not come within

the rule of Bierbach v. Goodyear Rubber Co., 54 Wis. 208-213. In that case the instruction which was held erroneous was this: "Of course if the witnesses are equally credible, and they so present themselves to the mind of the jury, then the greater number of witnesses on one side or the other would be entitled to the greater weight." In this case there was no question of positive and negative testimony, as in the present case. In that case Justice Lyon says of the instruction: "It makes no distinction between the relative weight of positive and negative testimony, a distinction well established in the law (3 Greenl. Ev., § 375; Ralph v. Railway Co., 32 Wis. 177), and it takes no account of the possible fact that some of the witnesses may have had better facilities for knowing the facts than others, or remembered them more distinctly. In the instruction excepted to in this case, both these considerations are presented to the jury. We do not consider the instruction in conflict with the rule stated in the cases of Urbanek v. Railway Co., 47 Wis. 59; Eilert v. Railroad Co., 48 id. 606. Draper v. Baker. Opinion by Taylor, J. [Decided Nov. 25, 1884.]

NUISANCE-KEEPING STOCK YARD-R. S., §§ 3180, 3181-ACTION AT LAW - DAMAGE — CONTINUING.-No party is liable to another as and for a nuisauce simply because he keeps a stock-yard, if it is kept in such a place and in such a manner as not to contaminate the atmosphere to such an extent as to substantially interfere with the comfort or enjoyment of others, nor impair the use of their property In other words, the comfort, enjoyment, or use-must be materially affected or impaired. Pennoyer v. Allen, 56 Wis. 511; S. C., 14 N. W. Rep. 609. The same view is supported by several cases not there cited. Sturges v. Bridgman, 32 Moak Eng. Rep. 837; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Appeal of Penn. L. Co., 96 Penn. St. 116; Fish v. Dodge, 47 Am. Dec. 254. It is conceded that the action was brought under sectious 3180 and 3181, Revised Statutes. Such action, by a private person, to recover damages for and to abate the nuisance is necessarily an action at law. In so far as these sections authorized judgment of abatement in such action at law by a private party, this court has frequently held that they had the effect to abrogate the remedy in equity to abate such private nuisance. Remington v. Foster, 42 Wis. 608; Cohn v. Wausau Boom Co., 47 id. 314; S. C., 2 N. W. Rep. 546; Peunoyer v. Allen, 51 Wis. 360; S. C., S N. W. Rep. 268; Lohmiller v. Indian Ford W. P. Co., 51 Wis. 688; Denner v. Railway Co., 57 id. 221; S. C., 15 N. W. Rep. 158. Such abatement under those sections was, in the absence of the requisite certificate of the court, a legal consequence of the plaintiff's recovery in the action at law, and could be had only when the plaintiff prevailed. "Evidently to obviate that difficulty, the statute was amended by chapter 190, Laws 1882. That amendment restores equitable jurisdiction in the particular cases therein named. To bring the cases within such jurisdiction the essential facts should be affirmatively alleged in the complaint. Here it is enough to say that the complaint fails to state facts sufficient to bring the case within any of the provisions for equitable relief in that amendment." Denner v. Railway Co., 57 Wis. 221. It follows that this action must be treated as one at law and not in equity. In such action at law the plaintiff could only recover for such damages as accrued before the commencement of the action. Such damages as might accrue after the commencement of the action, and before the verdict, could only be recovered in an action subsequently brought. Cobb v. Smith, 38 Wis. 22. This is on the ground that every continuance of a nuisance is,

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