S. Circ. Ct., W. D. Missouri, dismissed. Smith. Opinion by Waite, C. J. [Decided Nov. 27, 1882.]

FRAUDULENT

Schwed v.

CONVEYANCE-WHEN VOLUNTARY

SETTLEMENT ON WIFE NOT.-W., who was somewhat indebted, made a voluntary settlement on his wife of real property. At that time he had property which creditors could reach, exceeding in value, all his existing indebtedness by several thousand dollars. He was engaged in active business, with fair prospects, good credit, and of an unsullied reputation. All of his indebtedness existing at the time of the settlement upon the wife, was subsequently, and without unreasonable delay, fully discharged by him. The conveyance to the wife was recorded immediately after its execution. Held, not sufficient to establish fraud as to the subsequent creditors of the husband authorizing the avoiding of the deed. See Pepper v. Carter, 11 Mo. 543; Payne v, Stanton, 59 id. 159. Decree of U. S. Circ. Ct., E. D. Missouri, reversed. Wallace v. Penfield. Opinion by Harlan, J.

[Decided Nov. 27, 1882.]

MARITIME LAW-COLLISION — STEAMER AND CANAL

BOAT.- An ocean steamer starting from a crowded slip,

the motion of her propeller caused a canal boat to break her fastenings and swing around against the propeller whereby she was sunk. Held, that the steamer was in fault for not having a lookout at her stern, by whom the peril of the canal boat could have been seen in time to stop the propeller and prevent the collision. If towage is necessary to extricate a large steamer from a crowded slip or harbor without injury to other vessels, it should be employed. Although powerful machines like those of steamers and locomotives may produce incidental inconveniences for which there is no remedy, yet they should be so managed and operated as to do the least possible injury consistent with their substantial usefulness. Those in charge of the caual boat in this case, having done all

that reasonable prudence required of them, by properly fastening their boat, were held free from blame. Decree of U. S. Circ. Ct., S. D. New York, affirmed. Steamship Nevada v. Quick. Opinion by Bradley, J. [Decided Nov. 27, 1882.]

MUNICIPAL BONDS-NON-FULFILMENT OF CONDITIONS BY DONEE PURCHASER WITH NOTICE.- A city having authority to incur indebtedness to aid in the development of water power near it authorized by ordinance the issue of its negotiable bonds to C. for the purpose of erecting a dam across a river. The ordinance provided as a condition precedent that C. should enter into an obligation that he would without unnecessary or unreasonable delay cause a good substantial and sufficient dam to be constructed across a river named. for the purpose of bringing into use all the available water power of that river at the place

with sufficient head, etc., to make such power available, and that he should bind himself in case the work was not constructed as required to return the bonds and to save the city harmless from liability on their aacount. The bonds of the city were accordingly delivered to C., who transferred them to a company which undertook to construct the dam, but only partially completed its work, so that some water power was furnished; but the dam was shortly afterward carried away and never reconstructed. Held, that the city was not liable upon the bonds notwithstanding recitals therein to a purchaser for value after maturity who had purchased from a purchaser for value before maturity, both purchasers having knowledge of all the facts attending the issue of the bonds. Judgment of U. S. Circ. Ct., N. D. Illinois, reversed. City of Ot tawa v. Carey. Opinion by Harlan, J. [Decided October 30, 1882. ]

TAXATION STATUTORY CONSTRUCTION- TAX SALE -FORMALITIES IN DEED-SHERIFF LIABILITY OF AS TO PROPERTY SEIZED PRACTICE.-(1) A statute of Wisconsin provides that "no action shall be commenced by the former owner or owners of any lands, or by any person claiming under him or them, to recover possession of land which has been sold and conveyed by deed for non-payment of taxes, or to avoid such deed, unless such action shall be commenced within three years next after the recording of such deed." Held, that under this statute land is to be rega ded as having been sold for non-payment of taxes, although the sum to raise which it was sold included five cents for a United States revenue stamp, to be put, and which was put, on the certificate issued to the purchaser on the sale. (2) A deed on a tax sale in Wisconsin recited that "S. A. Coleman, assignee of Oconto county," had deposited certificates of sale showing that five parcels, each of which sold for so much, were sold "to the said Oconto county, and by its treasurer assigned to S. A. Coleman," for so much "in the whole," the total being the sum of the five several sums. The statute of Wisconsin prescribed a form of deed, and provided that it should be "substantially" in that or other equivalent form," showing that the land was sold for a sum named "in the whole." Held, that the deed followed the form substantially. (3) A sheriff having possession of property under a writ of attachment is not bound by a judgment in a reple vin suit to which he was not a party, and in which he was not served with process, and did under sheriff, as an individual, was a party to the renot appear, and which he did not defend, although his plevin suit. (4) Although there was no general verdict of a jury in this case, and no special verdict in any form known to the common law, and no waiver in writing of a jury trial, and no such finding of the court below upon the facts as is provided for by section 649 United States Revised Statutes, this court, on a written stipulation filed in this court by the parties, agreeing upon the facts, reviewed the case on a writ of error, and reversed a judgment below for the defendant, and directed a judgment for the plaintiff in an action of trover. Judgment of U. S. Circ. Ct., E. D. Wisconsin, reversed. Geekie v. Kirby Carpenter Co. Opinion by Blatchford, J. [Decided December 6, 1882.]

WISCONSIN SUPREME COURT ABSTARCT. OCTOBER 31, 1882.

AGENCY-AGENT ΤΟ BUY HAS NO PRESUMED AUTHORITY TO OBTAIN CREDIT.- An agent to buy wheat or other grain must, in order to bind his princi

pal, who furnishes in advance the funds to make the purchases, buy for cash, unless he has express power to buy upon credit, or unless the custom of the trade is to buy upon credit; and in the absence of express authority, or proof of the custom of the trade to buy on credit, such agent cannot bind his principal, by a purchase upon credit of a person who is ignorant of his real authority as between himself and his principal. Paley, Ag. 161, 162; Jacques v. Todd, 3 Wend. 83; Schimmelpennick v. Bayard, 1 Pet. 264; Story, Ag., §§ 225, 226; Berry v. Barnes, 23 Ark. 411; Stoddard v. McIlvain, 7 Rich. (S. C.) 525; Whart. Ag., § 186; Adams v. Boers, 24 Iowa, 96; Tabor v. Cameron, 8 Metc. 456; Temple v. Pomeroy, 4 Lay. 128; Bank v. Bugbee, 1 Abb. App. Cas. 86. Kamarowski v. Krumdick, Opinion by Taylor, J.

CHATTEL MORTGAGE - LIABILITY OF SECOND MORTGAGOR SELLING PROPERTY. A second mortgagee of a chattel who takes the same from the possession of the

mortgagor and sells it and receives the full consideration of the sale, without regard to the rights of the senior mortgagee, is liable to the latter in an action for the conversion of the chattel. See Smith v. Koust, 50 Wis. 360; Phillips v. Cook, 24 Wend. 388: Waddell v. Cook, 2 Hill, 47; Melville v. Brown, 15 Mass. 82; Cotton v. Watkins, supra; Cotton v. Marsh, 3 Wis. 221; Bates v. Wilbur, 10 id. 415; Flanders v. Thomas, 12 id. 410; and Welch v. Sackett, 12 id. 243. Lowe v. Wing. Opinion by Orton, J.

CORPORATION- POWER OF COURT OF EQUITY TO DISSOLVE.- (1) Independent of the statute and at common law, a court of equity had no power to dissolve a corporation, and sell and divide its property, at the suit of an individual stockholder, in his own behalf and in his own name. Society v. Morris Canal Co., 1 N. J. Eq. 157; Attorney General v. Stevens, id. 369; President, Managers, etc., v. Trenton City Bridge Co., 13 N. J. Ch. 157; State v. Merchants' Ins. & T. Co., 8 Humph. 235 Hodges v. New England Screw Co. 3 R. I. 9; Bayless v. Onre, 1 Freeman (Miss.), 161; Commonwealth v. Union Ins. Co., 5 Mass. 232; Folger v. Columbian Ins. Co., 99 id. 274. (2) There is no statute in this State authorizing one of several stockholders to maintain a bill in equity in his own name, or in the name of the State, without leave being first granted therefor by this court, to dissolve a corporation, and convert its property into money, and then divide the same among a portion of the stockholders; and in the absence of such a statute, such a suit cannot be maintained. See Slee v. Bloom, 5 Johns. Ch. 366; Verplank v. Mercantile Ins. Co., Edw. Ch. 84; Doyle v. Peerless P. Co., 44 Barb. 239; Gilman v. Green Point Sugar Co., 61 id. 9; Penniman v. Briggs, 1 Hopk. 303; Bradt v. Benedict, 17 N. Y. 99; Denike v. New York, etc., Co., 80 id. 605; King v. Ogden, 10 B. & C. 230; The Wallamet, 5 Sawy. 44; Ward v. Sea Island Co., 7 Paige, 298; Mickles v. Rochester Bank, 11 id. 118. Strong v. McCogg. Opinion by Cassoday, J.

STATUTE OF FRAUDS- PROMISE TO PAY DEBT OF ANOTHER-CONTRACTOR AND MERCHANT GIVING CREDIT TO SUBCONTRACTOR.-Contractors to build a railroad agreed with merchants to pay orders and time checks issued by a subcontractor to his employees. Upon the faith of this agreement, and giving credit exclusively to the contractors, the merchants accepted and received such orders and time checks in exchange for goods. Held, that the promise of the contractors was not within the statute of frauds. Doyle v. White, 26 Me. 341; Walker v. Penniman, 8 Gray, 233; Billingsley v. Dempivoolf, 11 Ind. 414; Hanford v. Higgins, 1 Bosw. 441; Williams v. Corbit, 28 Ill. 262; Chase v. Day, 17 Johus. 114; Brown v. George, 17 N. H. 128; Hall v. Wood, 3 Pin. 308; Birchard v. Booth, 4 Wis. 119; Thayer v. Gallup, 13 id. 411; Champion v. Doty, 31 id. 190; Vogel v. Melens, id. 306. West v. O'Hara. Opinion by Orton, J.

ΤΟ WAIVE RIGHT OF

WAIVER-AGREEMENT APPEAL.- An agreement between the parties, upon the payment of a judgment, to settle all litigation in the matter, and waive all right of appeal, would probably be enforced; but such agreement should be clearly established and not made out by way of inference. See Dyett v. Pendleton, 8 Cow. 325; People v. Stephens, 52 N. N. 306; Cook v. Palmer, 19 Abb. Pr. 372; Thornton v. Woolen Mills, 41 Wis. 265. Sloane v. Anderson. Opinion by Cole, C. J.

WATER-COURSE- RIPARIAN RIGHTS ON ARTIFICIAL STREAM.- Plaintiff sued for damages resulting from obstructions in a navigable river by defendants, whereby plaintiff was prevented from floating logs down such river, and defendants set up as a counterclaim that said river being tortuous they had cut a

canal from one bend to another therein, and so facilitated and cheapened the floating of logs down such river, and for the use of such canal and men employed by defendants, plaintiffs were indebted to them in a certain sum. Held, that as to the use of the canal the defendants must be held to have dedicated it to the public, and that they could not charge plaintiff therefor; and as to the charges for the men, they did not arige out of the transactions set up in the complaint, and such a counter-claim could not be sustained. In Lawson v. Mowry, 52 Wis. 235, it was assumed that owners of lots abutting upon the canal had the same riparian rights as they would if their lots abutted to the river. Such was held to be the law in Townsend v. McDonald, 12 N. Y. 276. Whether such is the law iu all cases or not, it would seem that an artificial watercourse may be made under such circumstances as to confer all such rights as a riparian owner would have had in the case of a natural stream. Sutcliffe v. Booth, 9 Jurist, N. S. 1037; Wood v. Wand, 3 Exch. 148. Weatherby v. Micklejohn. Opinion by Cassoday, J.

NEW JERSEY SUPREME COURT ABSTRACT. JUNE TERM, 1882.*

CONTRACT FOR BUILDING ON LAND - ABROGATION -ACCEPTANCE. A contract for building on land may be abrogated or abandoned, either by the express agreement of the parties or by the implication arising from conduct inconsistent with its being still in force. But mere deviations and changes of plan will not imply abrogation or abandonment when the contract expressly provides that such deviations and changes may be made. When a contract for building on land has not been so performed as to justify a recovery thereon, a recovery in assumpsit on the common counts, for the work and materials used in the erection, will only be permitted when the owner has actually accepted the building. Such acceptance may be express or implied from circumstances; mere occupation of the building does not necessarily imply such acceptance. Authorities referred to Ellis v. Hamlen, 3 Taunt. 53; Monroe v. Butt, 8 El. & Bl. 738; Smith v. Brady, 17 N. Y. 173; Glacius v. Black, 50 id. 145; 2 Addison Contr., §§ 864, 865; Cutler v. Close, 5 C. & P. 337; Dallman v. King, 4 Bing. N. C. 105; Stadhard v. Lee, 3 B. & S. 364; Hayward v. Leonard, 7 Pick. 180; Smith v. First Cong. Ch., 8 id. 178; Snow v. Ware, 13 Metc. 42; Atkins v. Barnstable, 97 Mass. 428; Fitzgerald v. Allen, 128 id. 232; Dermott v. Jones, 2 Wall. 1; School Trustees v. Bennett, Dutch. 513; Haslack v. Mayers, 2 id. 284; Corwin v. Wallace, 17 Iowa, 374. Bozarth v. Dudley. Opinion by Magie, J.

LIMITATION

ACTION ARISING FROM STATUTE.

The statutory limitation of six years for the bringing of a suit is not applicable when the entire cause of action arises out of a statute. See Cork & Bandon R. Co. v. Goode, 13 C. B. 826; Bullard v. Bell, 1 Mason, 243; Talory v. Johnson, Cro. Car, 513; Jones v. Pope, 1 Saund. 36; Van Hook v. Whitlock, 3 Paige, 409; Shepherd v. Hills, 11 Ex. 55; Jordan v. Robinson, 15 Me. 167; Richards v. Bickley, 13 Serg. & R. 395; Lane v. Morris, 10 Ga. 162. Cowenhoven v. Freeholders of Middlesex. Opinion by Beasley, C. J.

MAXIM-IGNORANTIA LEGIS NEMINEM EXCUSAT.The maxim ignorantia legis neminem excusat is not universally applicable, but only when damages have been inflicted or crimes committed. In Queen V. Mayor of Tewkesbury, L. R., 3 Q. B. 629, it is said: The maxim is ignorantia legis neminem excusat, but there is no maxim which says that for all intents and *To appear in 15 Vroom's (44 N. J. Law )Reports.

purposes a person must be taken to know the legal consequences of his acts;" and in Spread v. Morgan, 11 H. L. Cas. 588, 602, Lord Westbury, C., referring to the equitable doctrine of election, remarked that although it it is true as a general proposition, that knowledge of the law must be imputed to every person, it would be too much to impute knowledge of this rule of equity." In the case at bar B., a tenant, owing rent, agreed for a sufficient consideration to pay it to A. provided he should not be compelled to pay it to the assignee in bankruptcy of his landlord, to whom such rent was really due, but B. was in doubt as to his legal right. Held, such contract was legal and enforceable, and the defense that it was opposed to the spirit and policy of the bankrupt laws was not available. Brock v. Weiss. Opinion by Beasley, C. J.

NEGLIGENCE-FIRE SET BY LOCOMOTIVE EVIDENCE-PRESUMPTION- DEGREE OF CARE REQUIRED. -(1) Evidence that the principal instructed the agent to be careful is not relevant to the inquiry whether the agent was in fact negligent. (2) Evidence showing that a fire might have been caused by a spark from a locomotive, and tending to disprove the presence of any other cause, will warrant a conclusion that a spark did escape. (3) By the New Jersey statute proof that a fire originated in a spark from an engine is prima facie evidence of negligence in those controlling the engine. In some cases it has been held that on general principles, the escape of fire from an engine raises a presumption of negligence against its operators. Illinois Cent. R. Co. v. Mills, 42 Ill. 407; Clemens v. Han. & St. Jos. R. Co., 53 Mo. 366; Ellis v. P. & R. R. Co., 2 Ired. L. 138; Spaulding v. Chic. & N. W. R. Co., 30 Wis. 110. (4) A railroad company is bound to employ the most approved safeguards against the escape of fire from locomotives. Wiley v. West Jersey Railroad Co. Opinion by Dixon, J.

NEGLIGENCE -FIRE KINDLED ON ONE'S OWN LAND - RULE AS ΤΟ LIABILITY — EVIDENCE.-(1) In an action for the recovery of damages resulting from a fire kindled upon the property of the defendants, it is necessary that the plaintiff should show that the fire was unlawfully kindled, or negligently kindled or guarded. Whatever the earlier impression may have been regarding the responsibility of a person who kindled a fire upon his premises for all resulting damages to his neihhbors' property, the rule as early as the decision in Tuberville v. Stamp, 1 Salk. 13, has been considered settled, that without a negligent kindling or guarding of a fire, no liability could be fixed upon a person from whose premises it spread and destroyed the property of another. Vaughan v. Menlove, 3 Bing. N. C. 468; Filliter v. Phippard, 11 A. & E., N. S. 346; Clark v. Foot, 8 Johns. 421; Tourtellot v Rosebrook, 11 Metc. 460. (2) Where the servants of a railroad company left in a house where the oil used by the company was kept, a stove red-hot or so adjusted that it would speedily become red-hot, around which was scattered inflammable waste, and upon which was a can of oil, the jury were warranted in finding that the conduct of the defendant's servants was negligent. (3) It was not erroneous to overrule an offer by the de

fendants to prove what instructions were given by

them to their servants relative to the care of the stove

and the contents of the oil-house, inasmuch as the ground of plaintiff's case was the negligence of the servants. Read v. Pennsylvania Railroad Co. Opinion by Reed, J.

quired to use the utmost care and skill, which prudent men are accustomed to use under like circumstances, and no more. Therefore it was error to instruct the jury that the defendant, a street railway company.

was bound, as far as human foresight and care would enable it, to carry the plaintiff with safety." This instruction prescribed the utmost care and largest foresight of the most skillful human being. Louisville City Railway Co. v. Weams. Opinion by Hargis, C. J. [Decided October 5, 1882.]

CONSTITUTIONAL

LAW- IMPAIRING

CONTRACT DECREASING OFFICIAL SALARY.-The acceptance of a public office by a citizen who has been elected thereto by the people is not a contract between him and them or the State, which so insures to him the fees and compensation fixed by law for his official services that they cannot be diminished during his incumbency. Consequently the Legislature, in the absence of a constitutional provision forbidding it, may diminish the compensation of officials already elected. See Warner People, Hill, 81. Commonwealth of Kentucky v. Bailey. Opinion by Hargis, C. J. [Decided Nov. 23, 1882.] EASEMENT

v.

-

PARTY WALL- ADJOINING HOUSES PURCHASED SEVERALLY FROM COMMON OWNER-IN

JUNCTION.- (1) Purchasers of adjoining houses from a common owner are presumed to contract with reference to the condition of the property at the time of the sale, and when the house of one purchaser is supported by a wall upon the lot of the other, the right of the former to the use of the wall for the support of his house is an easement, with the enjoyment of which the owner of the lot upon which the wall stands has no right to interfere by tearing away the wall or so altering it as to injure his neighbor's house. Lampman v. Meeks, 31 N. Y. 99. (2) A court of equity will interfere by injunction to prevent an injury which is irreparable or which will result in permanent ruin to property, and the consequence of the tearing away or alteration of the wall in this case, being the destruction of the building which it supports, the injury is none the less irreparable, because the owner of the injured building may erect a wall of her own. Hahn v. Thornberry, 7 Bush, 99. Henry v. Koch. Opinion by Pryor, J. [Decided October 3, 1882.]

MARYLAND COURT OF APPEALS ABSTRACT.*

AGENCY

REMUNERATION DEPENDENT ON SUCCESSFUL RESULT RIGHT OF PRINCIPAL ΤΟ REVOKE

AGENCY.- Plaintiff was employed by defendant to endeavor to compromise a claim under an agreement by which he was to receive $50,000 if he brought about a compromise. His efforts to effect a compromise proved unsuccessful, after which defendant brought suit on the claim and recovered judgment therein. After this judgment was obtained a settlement was made between defendant and the party indebted to it. Held, that defendant was not liable to plaintiff for the sum stipulated to be paid for effecting a compromise. principal is always revocable at the will of the princiAs a general rule, au agent's authority to act for his pal; and may be terminated at any time by its withdrawal, unless it be coupled with an interest, or has tion moving from him to the principal. To render an been conferred on the agent for a valuable consideraagent's authority, though coupled with an interest irrevocable, the interest must be an interest in the thing itself on which the authority is to be exercised, and not an interest in that which is to be produced by the exercise of the authority. To entitle an agent to

* Appearing in 58 Maryland Reports.

his commission, he must be the procuring cause of the consummation of the transaction, whatever it may be; and this is a matter of proof. See Hunt v. Rousmanier, 8 Wheat. 174; Simpson v. Lamb, 84 E. C. L. 603; Blackstone v. Buttermore, 53 Penn. St. 266; Hartley's Appeal, id. 212; Creager v. Link, 7 Md. 259; Keyes v. Johnson, 68 Penn. St. 42; Keener v. Harrod, 2 Md. 71; Earp v. Cummins, 54 Peun. St. 396; United States v. McDaniels, 7 Pet. 1; Moreau v. Dumagene, 20 La. Ann. 230; Campanari v. Woodburn, 15 C. B. 99; Pritchett v. Badger, 87 Eng. C. L. 295; Tombs v. Alexander, 101 Mass. 256; Walker v. Tyrrel, id. 257. Attrill v. Patterson. Opinion by Irving, J. [Decided March 27, 1882.]

AGREEMENT

MASTER AND SERVANT-NEGLIGENCE BETWEEN RAILROAD COMPANIES DOES NOT MAKE EMPLOYEES OF DIFFERENT COMPANIES CO-SERVANTS. -Whatever effect an agreement between the several companies owning connecting lines of railroad may have upon the parties thereto, it cannot have any upon strangers to it, nor alter or change the relations of either of them toward third parties, nor have the effect of making those who were employed and paid wages by either of the contracting parties, the co-employees of the agents and workmen of the other parties, or make the others liable either severally or jointly for any loss or damage caused by the neglect of any one of them, even were the agreement silent in this respect. Where an injury to the employee of one of said companies occurs on the road of another of said companies, and is caused by the imperfect condition of said road, the principle that every employee assumes the risk of the negligence of his co-employee is not applicable to him. Philadelphia, Wilmington & Baltimore Railroad Co. v. State to use of Bitzer. Opinion by Grason, J.

[Decided July 11, 1882.]

TRUSTEE

PERSONAL LIABILITY OF, ON COVENANT. As a general rule, it is quite well settled that one will be held personally liable on a covenant made by him as trustee. The additional word "trustee" in such cases is construed merely as a word of description, showing the capacity in which the covenantor acted. It is equally clear on the other hand, that although one may covenant as trustee, he may limit and qualify the character in which he is to be held answerable; and where it plainly appears from the face of the instrument, that he did not mean to biud himself personally, courts will construe the covenant according to the plainly expressed intention of the parties; and this too in cases where the covenantor had no right to bind himself in a fiduciary character. Sumner v. Williams, 8 Mass. 162; Duvall v. Craig. 2 Wheat. 56; Coe v. Talcott, 5 Day, 92; Godley v. Taylor, 3 Dev. 178; Aven v. Beckom, 11 Ga. 1; Graves v. Mattingly 6 Bushr. 361; Thayer v. Wendell, 1 Gall. 37; Day v. Brown, 2 Ohio, 345; Manifee v. Morrison, 1 Dana, 208; Nicholas v. Jones, 3 A. K. Marsh. 385. Glenn v. Allison. Opinion by Robinson, J. [Decided July 12, 1882.]

OHIO SUPREME COURT ABSTRACT. JANUARY TERM 1882.*

CONFLICT OF LAW ANOTHER STATE. In a suit in chaucery pending in a Kentucky court, wherein the trustees of an insolvent railroad corporation sought to enforce their rights under certain mortgages of the road and its equipment, the conditions of which had been broken, an application was made for the appointment of a receiver to take charge of and operate the road. Pending this application, certain rolling stock covered by the mortgages was temporarily in Ohio, and while here was seized in attachment by an unsecured Kentucky creditor. The entire property was insufficient to pay the debts secured by the mortgages, or to earn income to pay the interest. The order of the court appointing the receiver, made subsequent to the seizure in attachment, order him to take possession of all the property, including that seized, and authorized him to sue in his own name as such receiver, whenever necessary to

RIGHT OF RECEIVER TO SUE IN

perform his duties. Held, that the mortgages covered the rolling stock, though temporarily in this State, and the receiver might, under the comity between States, by an action brought in this State in his own name, assert his right to the possession thereof, where such right is not in conflict with the rights of our own citizens, nor against the policy of our laws. See Fuller v. Steiglitz, 27 Ohio St. 355; Bank of Augusta v. Earle, 13 Pet. 591; Shortwell v. Jewitt, 9 Ohio, 180; Oliver v. Townes, 14 Martin (La.) 93; Guillauder v. Howell, 35 N.Y. 657; Horlock v. Smith, 2 L. J. N. S. 157; Davis v. Gray, 16 Wall. 216; Wray v. Jamison, 10 Humph. 186; Baker v. Cooper, 57 Me. 388; Hurd v. Elizabeth, 41 N. J. L. I.; Pond v. Cooke, 6 Rep. (Conn.) 516; Hunt v. Columbia Ins. Co., 55 Maine, 297, 298; Ex parte Norwood, 3 Bissell, 504; Gray v. Davis, 1 Wood, 420, affirmed in Davis v. Gray, 16 Wall. 203; Runk v. St. John, 29 Barb. 585; Barclay v. Quicksilver Min. Co., 6 Lans. 25; Willets v. Waite, 25 N. Y. 577; Pugh v. Hurt, 52 How. Pr. 22; Graydon v. Church, 7 Mich. 36; Booth v. Clark, 17 How. 334; Rhode Island Bk. v. Danforth, 14 Gray. 123. Merchants National Bank of Louisville v. McLeod. Opinion by Johnson, J.

CONSTITUTIONAL LAW-STATUTE RELEASING SURETY OF COUNTY TREASURER,-A special act, taking effect on the day of its passage, required the board of education of a city to release the sureties of a county treasurer from liability for school funds of the board, which came to the hands of the treasurer for disbursement, but the release was not to be made until the question whether the sureties should be released was determined in favor of the released by a majority of all the votes cast in such city at the then next April election. Held, that the act is not in conflict with the Constitution; and the fact that judgment had been rendered against the sureties for the amount of such funds, will make no difference. Board of Education v. McLandsborough, 36 Ohio St. 227, and see State v. Hoffman, 35 Ohio St. 435; Nelson v. Milford, 7 Pick. 18; State v. Hammonton, 38 N. J. L. 430. State v. Board of Education of Wooster. Opinion by the court.

MUNICIPAL CORPORATION -LIABILITY FOR NEGLICENCE.- A municipal corporation in making a street along a hillside, so excavated the ground in the street as to cause the land above to slide and injure the lot of the plaintiff. Held (1), that the fact that the plaintiff's lot did not abut immediately on the street did not exempt the corporation from liability. Its liability did not depend upon the ownership of the injured property, but upon the extent of the injury of which its removal of the lateral support of the hill was the efficient

* To appear in 38 Ohio State Reports.

cause. (2) That the liability extends to damages to buildings as well as to the land in its natural state, where the owner is not chargeable with negligence in making such improvemeuts, and such damages result from want of due skill and care in making the street. Rhodes v. City of Cleveland, 10 Ohio, 160; McComb v. Akron, 15 Ohio, 479; Akron v. McComb, 18 id. 220; Crawford v. Delaware, 7 Ohio St. 459; see also Pumpelly v. Green Bay Co., 13 Wall. 166; Eaton v. Railroad Co., 51 N. H. 504; Gilmore v. Driscoll, 122 Mass. 199; City of Cincinnati v. Penny, 21 Ohio St. 499; City of Quincy v. Jones, 76 Ill. 232. Keating v. City of Cincinnati. Opinion by White, J.

OFFICER-SALARY OF WHILE SUSPENDED FROM DUTY.-A police officer, suspended from office, by the mayor of a city, under the authority granted by the statute, is not entitled to wages during the period of such suspension, notwithstanding the council afterward declared the cause of suspension insufficient. See Smith v. Mayor of New York, 37 N. Y.; Auditor v. Benoist, 20 Mich. 176; Shannon v. Portsmouth, 58 N. H. 183; Attorney-Gen. v. Davis, 44 Mo. 131; Westberg v. City of Kausas, 64 Mo. 493. City of Steubenville v. Culp. Opinion by Longworth, J.

SURETYSHIP-OFFICIAL BOND-CONSTRUCTION OF. -An official bond conditioned for the faithful discharge of the duties of an office "according to law" embraces duties required by laws in force during the term of the officer, whether enacted before or after the execution of the bond. King v. Nichols, 16 Ohio St. 80, approved. Dawson v. State of Ohio. Opinion by the court.

CORRESPONDENCE.

CARRYING CONCEALED WEAPONS AT THE SOUTH. Editor of the Albany Law Journal:

Because I regard the ALBANY LAW JOURNAL as the most valuable paper of its kind in this country, I have regretted to observe, since the death of your predecessor, a disposition upon occasions, to indulge in direct and indirect strokes at the South as the South. This I do not like. I read the LAW JOURNAL for its legal news and opinions, not for its political news, for I can get politics of the same flavor in the N. Y. Times and Tribune.

In an article before me (Dec. 30), commenting upon the pardon of Cox by Gov. Stephens of Georgia, you not only condemu it, as you have a perfect right to do, but you not very relevantly introduce The Nation and express surprise in concurrence with it, that any one should dare say "it not the habit of Southern people to go armed." Now let me ask you, what is your actual knowledge on the subject? That a great many low and disorderly persons of the South do carry arms is as unquestionably true as if the same thing was said of the same classes in New York or Albany. But the charges of The Nation on this point have been directed against the better class - the gentlemen of the South, and I take it, that is the class to which you refer. Now I venture to say for I am a Southerner whose largest acquaintance is at the North-that it is almost as unusual for gentlemen of the South to go armed as for those of the North; further, that the editors and journalists in the North who make these charges have not visited the South and do not know of what they speak; further still, that you cannot find a gentleman of the North, who does visit the South, who will say that his friends and acquaintances there are in the habit of carrying arms beyond exceptional cases to be found likewise at the North. I will take the proof from the North, for it does not seem worth while, in

the present temper of certain Northern journalists, for a Southern man to assert that the habit of going armed does not prevail among his people.

I remember last summer at Mt. Desert, when the Green Mountain robbery created a sensation and a desire to shoot somebody, a demand for pistols developed their scarcity. There were Southern men there from New Orleans to Baltimore and I believe not one of them had a pistol. Some were found principally among ladies of the North, and one New York girl had two. I mention this as no reflection upon her, for she did not intend to assassinate any one. But suppose she had been a Southern man, it is not improbable that the editor of The Nation, who was there at the time, would have suspected him of the robbery.

Now this is all aside from the frequent homicides at the South, for if one man wants to kill another he can easily get a weapon to do it, either North or South. That these homicides are deplorable and are a disgrace to the States in which they occur is true, and they should be condemned by the press until a better state of public sentiment is aroused to put a stop to them. The fact that at the North crimes of a low, revolting and beastly character, such as are rarely heard of at the South, are constantly being committed, is no answer to the charge that Southern people hold life too lightly. Any Southerner who is familiar with the North might easily collect a series of criminal cases full of damning facts, which would furnish food of the "tu quoque kind sufficient to keep the Southern press going for a year. But this would be a poor defense- a counter irritant but not a remedy.

The point I make is this: These sweeping charges against the South produce anger, not conviction and do more harm than good. Conceding that they are made from friendly motives and not for political and sectional purposes (which would generally be conceding too much), they defeat any good object. Excessive zeal takes the color of defamation, and the people who ought to profit by them are made indignant by general charges, which contain as much falsehood as truth,and are written in a tone of offensive superiority.

Jan. 13, 1883.

РОТОМАС.

[See CURRENT TOPICS.- ED. ALB. LAW. JOUR.]

ILLEGAL SALE OF INTOXICATING LIQUORS — A QUERY.

Editor of the Albany Law Journal:

QUERY. Is it a misdemeanor to sell strong and spirituous liquors in quantities less than five gallons, without a license?

It is not a misdemeanor by statute; the excise law does not make it such. In Behan v. People, 17 N. Y. 516, it was held to be indictable by implication and as a violation of a statute. But this case is certainly limited by the construction put upon a violation of sec. 18 of the excise law in People v. Hislop, 77 N. Y. 331. Taking the two cases together it seems clear that it is not a misdemeanor by virtue of the excise statutes, but if at all at common law, as an offense under the old statutes.

Section 725, of the Penal Code provides: "Nothing in this Code affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force. 3. All acts for the punishment of intoxication or the suppression of intemperance or regulating the sale or disposition of intoxicating or spirituous liquors. Section 2 provides: "No act or omission begun after the beginning of the day on which this Code takes effect as a law, shall be deemed criminal or punishable, except as prescribed or authorized by this Code, or by some statute of this State not repealed by it." Section 155 provides: "Where the