coun

which we have no further need, but take the opportunity to observe that, in case of any future business proposals between us, we must request you to conform to our rules and principles which require banker's credit in this try," etc. The defendants do not return the letter of credit because it is not a banker's acceptance, but because the offer was withdrawn; and the inference I draw from that letter is that, if the offer had not been withdrawn the defendants would not have returned the letter of credit, although in future transactions they might have been more particular. In the face of this refusal it was useless for the plaintiffs to send a banker's acceptance, and although when they found their first letter of credit returned they sent another which was declined, still the defendants never receded from their first position, or expressed any readiness to ship the goods on receiving a banker's acceptance; and it is plain to my mind that they were not prepared to do so. On the other hand, I am satisfied that if the defendants had taken this ground the plaintiffs would have sent banker's acceptances in exchange for shipping documents; and I infer as a fact that the plaintiffs always were ready and willing to perform the contract on their part, although they did not in fact tender proper banker's acceptances.

It was contended that by pressing the defendants to perform their contract, the plaintiffs treated it as still subsisting, and could not treat the defendants as having broken it; and a passage in Mr. Benjamin's Book on Sales. p. 454, was referred to in support of this contention; but when the plaintiffs found the defendants were inflexible and would not perform the contract at all, they had in my opinion a right to treat it as at an end, and to bring an action for its breach. The passage in Mr. Benjamin's book is as follows: "But a mere assertion that the party will be unable or will refuse to perform his contract, is not sufficient; it must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for if he afterwards continue o urge or demand compliance with the contract, it is plain that he does not understand it to be at an end. The authorities will be found collected and considered in the notes to Cutter v. Powell, 2 Smith's Leading Cases, 1." It would indeed be strange if the plaintiffs by trying to persuade the defendants to perform their contract were to lose their right to sue for its non-performance when their patience was exhausted. The authorities referred to by Mr. Benjamin, viz., Avery v. Boden, 5 E. & B. 714, and others of that class, show that as the plaintiffs did not, when the defendants first refused to perform the contract, treat that refusal as a breach, the plaintiffs can not now treat the contract as broken at the time of such refusal. But I have found no authority to show that a continued refusal by the defendants to perform the contract can not be treated by the plaintiffs as a breach of it by the defendants. On the contrary Ripley v. McClure, 4 Exch. 345, and Cort v. Ambergate Railway Company, 17 Q. B. 127, show

that the continued refusal by the defendants operated as a continued waiver of a tender of banker's acceptances and enable the plaintiffs to sustain this action. In the present instance it is not necessary to determine exactly when the contract can be treated by the plaintiffs as broken by the defendants. It is sufficient to say that, whilst the plaintiffs were always ready and willing to perform the contract on their part, the defendants wrongfully and persistently refused to perform the contract on their part; and before action there was a breach by the defendants not waived by the plaintiffs.

For the reasons above stated, I give judgment for the plaintiffs for £375. and costs.

ABSTRACTS OF RECENT DECISIONS.

ENGLISH, IRISH AND CANADIAN CASES.

STOPPAGE IN TRANSITU-DURATION OF TRANSITEQUITY OF SUB-VENDEE.-In a case where a vendee of goods has sold to a sub-vendee, so long as the transit originally contemplated between the original vendor and vendee continues, the original unpaid vendor's right of stoppage in transitu remains, subject to the sub-vendee's equity to have the goods on paying for them.- Ex parte Golding. English Court of Appeal. 42 L. T. (N. S.) 270.

RAILROAD NEGLIGENCE TICKET ISSUED BY ANOTHER COMPANY-ACCIDENT AT OTHER COMPANY'S STATION-DUTY TO PROVIDE SAFE MEANS OF ALIGHTING.-Plaintiff took a return ticket at Richmond station on the S company's line, over which defendants had running powers. On his return journey plaintiff traveled in defendants' train, managed by defendants' servants. In alighting at Richmond station he was injured owing to the carriage, which was built to suit the stations on defendants' own line, being too high above the platform: Held (affirming the judgment of the Common Pleas Division), that defendants were bound to provide reasonably safe means of alighting, and that there was evidence to justify a verdict for plaintiff.-Foulkes v. Metropolitan District R. Co. English Court of Appeal. 42 L. T. (N. S.) 345.

LIBEL-NATURAL MEANING OF WORDS-INNUENDO EVIDENCE IN SUPPORT OF INNUENDO-PRIVILEGE-MALICE.-1. The defendants published a circular referring to the plaintiffs in the following terms: "Messrs. H. & Son hereby give notice that they will not receive in payment checks drawn on any of the branches of the C Bank." The plaintiffs sued the defendants for libel, alleging by way of innuendo, that the defendants meant thereby that the plaintiffs were not to be relied upon to meet checks drawn upon them, and were not to be trusted. Held, on motion for judgment, that the words used were capable of the meaning alleged in the innuendo. 2. Semble, the test is not so much what is in the mind of the person sending such a circular, but what is the result which it is likely to produce in the minds of those into whose hands it comes.- -Capital etc. Bank v. Henty. English High Court, C. P. Div. 42 L. T. (N. S.) 314.

WILL-REVOCATION-TEARING-WITNESS-PRESERVATION OF PAPER TORN OFF.-1. No particular mode of tearing or excision can of itself establish an

intention to revoke a will; but the testator's acts must be considered in conjunction with all the surrounding circumstances, in order to determine whether the act done was done animo revocandi. 2. A duly executed will was found among the papers of the deceased. The signature of one of the attesting witnesses had been torn off, but the piece of paper containing the signature was folded up with the will, with a smaller piece cut from it. In other respects the will was entire. The court held that the will had not been torn animo revocandi, and admitted it to probate. In re Wheeler. English High Court, Pr. Div. 28 W. R. 476.

UNITED STATES SUPREME COURT.

October Term, 1879.

MUNICIPAL CORPORATION-OFFICERS EXCEEDING THEIR POWERS INJUNCTION AT SUIT OF TAX PAYERS.-A municipal board having passed a resolution to purchase certain property from C as a site for, a court house, and to issue bonds for its payment, received from C a deed and delivered to him the bonds in pursuance thereof. No provision was made by the board for the payment of the bonds beyond the general declaration that they should be paid out of the amount appropriated and limited for the next fiscal year. By the law then in force the fiscal year commenced on the first day of December of each year, and the expenditures of the board were restricted to the amount raised by tax for that year, unless by the spread of an epidemic or a contagious disease a greater expenditure should be required; and the amount to be raised was to be determined at a meeting of the board to be held prior to July 15th of each year. Some of the resident tax-payers were dissatisfied with this issue of bonds without making definite provision for their payment by taxation, and accordingly obtained from the Supreme Court of the State a writ of certiorari to review the proceedings of the board. The court adjudged the proceedings invalid, and set the same aside. Subsequently the bonds not having been returned or the land reconveyed, C brought an action in the United States Circuit Court to enforce their payment. In a suit by certain tax-payers of the county to enjoin that action: Held, that an injunction was proper. Held, further, that of the right of resident tax-payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question. Crompton v. Zabriskie. Appeal from the Circuit Court of the United States for the District of New Jersey. Opinion by Mr. Justice FIELD. Decree affirmed.

DECREE FOR DEFAULT IN PAYMENT OF COUPONS --DEBT NOT A SUBJECT OF SET-OFF.-The United States having in 1871 obtained a decree in an equity suit against the N & C railroad, it was agreed between them and so provided in the decree that the bonds should be issued, on default in payment of any of whose coupons the United States should have a right to execute the decree by selling the road. Default having been made this was asked. Thereupon the appellant, the N & C railroad, asked that a debt which the United States owed it for transportation since the date of the decree might be applied to the payment and cancellation of the coupons in default and on file. The United States refused to make the application because of an alleged defense they had to the claim of the company. Held, that the court be

low properly declined to entertain the petition. The claim of the company does not arise out of the decree. There is no connection between the demand of the United States on the one side and that of the railroad on the other. The United States asks for no new decree, but execution because of default in the payment of an old one. Upon their application the only question is whether there has been default for the requisite time in the payment of the coupons filed. The dispute between the parties could not, even before final decree be made the subject of a cross-bill, because it does not grow out of the original suit. A cross-bill can not be used to bring in new and distinct matters. Rubber Co. v. Goodyear, 9 Wall. 809; Cross v. De Valle, 1 Wall. 14. Neither can the petition be treated as an original and independent suit, for the United States can not be sued on contracts except in the court of claims, If the United States had sued the railroad company on the coupons other questions might have arisen, but they do not do so.-Nashville & Chattanooga R. Co. v. United States. Appeal from the Circuit Court of the United States for the Middle District of Tennessee. Opinion by Mr. Chief Justice WAITE. Decree affirmed.

SUPREME COURT OF INDIANA.

May, 1880.

BANK CHECK-NOTICE OF DISHONOR.-Where one draws his check on a bank, having funds in the bank at the time, but withdraws the funds before the check is presented for payment, he is not entitled to notice of dishonor, for he could in no way be injured by the want of notice, his own act having caused the dishonor. Neither is he entitled to notice of the dishonor if he had no funds in the bank when he drew the check. Judgment reversed. Opinion by SCOTT, J.-Fletcher v. Pierson.

DECEDENTS' ESTATE-SALE BY ADMINISTRATOR TO HIMSELF. If an administrator, by order of court, sells the lands of the deceased, as such administrator, to himself, as an individual, either directly or indirectly through a third person, he can not hold the title thereto against the heirs of the deceased if they took proper steps to avoid it. The question is not one of fraud in fact; such a sale is itself a fraud in law, or constructive fraud, which the law will not uphold, whatever may have been the motive in making it. The principle is founded on the doctrine of trusts, that a trustee can not sell the property he holds in trust to himself as an individual and profit thereby as against the cestui que trust. Judgment affirmed. Opinion by BIDDLE, J.-Morgan v. Wattles.

EXEMPTION UNDER ASSIGNMENT LAW.- The act of 1859 providing for voluntary assignment exempted to the debtor just the amount that was exempted from sale under execution, $300. The act of 1879 increases the exemption under execution sales to $600, and in accordance with the spirit and purpose of the act it should be held to equally enlarge by implication, the amount to be reserved to the debtor making an assignment under the act of 1859. This construction, however, can prevail only in cases and to the extent to which the act of 1879 is applicablethat is, to debts contracted after the taking effect thereof. Where there are prior and subsequent debts a just and practical application of the law should be made. Judgment reversed. Opinion by WORDEN, J.-O'Neal v. Becker.

SUPREME COURT OF TENNESSEE.

April Term, 1880.

DEVISAVIT VEL NON JURISDICTION IN CHANCERY.-The chancery court has no jurisdiction to try an issue or to order an issue of devisavit vel non. The jurisdiction to try the validity of a will is vested solely in the circuit court. Opinion by FOLKES, J.-Harrison v. Ginon.

ADEMPTION OF LEGACY BY SUBSEQUENT GIFT.A legacy of $5000 by will and subsequent gift of a valuable lot: Held, that on the face of the two transactions no presumption of ademption arose. Both gifts being in writing, the court does not decide whether parol proof could be introduced to show the purpose of satisfaction on the part of the testator; but conceding that it might be done such proof must be clear and satisfactory; and evidence of loose conversations, in which testator spoke of the gifts and a purpose to alter his will, or said that he was not able to give the legacy after the gift of the lot, is not such satisfactory evidence. Opinion by FREEMAN, J. - Evans v. Beaumont.

CONTRACTOR AND SUB-CONTRACTOR EQUITIES UNDER FORFEITURE RETAINED PERCENTAGE.Under a contract between a contractor for the grading of a railroad and a sub-contractor, of a part of the same work, which stipulated for the retaining by the contractor of a certain percentage of the monthly estimates as collateral security for the execution of the contract, and provided, in the event the sub-contractor failed to keep a sufficient force at work to complete it in time, that the contractor might put a force on said work at his expense, or declare a forfeiture, and re-let or do the work, and hold the subcontractor liable for any damage or injury by reason of his failure, and the sub-contractor left the work, and the contractor declared a forfeiture, but neither re-let nor did any further work, and by agreement with the railway company abandoned the work after receiving full pay for what had been done, it was held that the percentage retained belonged to the subcontractor and was recoverable accordingly. Opinion by COOPER, J.-Winters v. Fleece.

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MASTER'S REPORT OF SALE SPEAKING EXCEPTIONS- MODIFICATION OF ORDER LIEN CLAIMANTS.-1. Exceptions to a master's report of sale are inadmissible, which require the court to go behind or modify the decree under which the sale was made, or to look outside of the record on which it is based. 2. A decretal order will not be modified at a subsequent term by this court, upon grounds which might and should have been urged when the order was made; nor at all after it has been executed, unless in a very extraordinary case. 3. Mere inadequacy of price is no ground for setting aside a judicial sale. 4. It is no ground for interfering with a judicial sale, that the creditor in whose favor the sale is ordered, insists upon a prior title to the property, under which he claims, duly recorded and mentioned in the pleadings of the cause. Opinion by COOPER, J.-Myers v. James.

DECEEE UPON DEMURRER WHEN CONCLUSIVE SUPPLEMENTAL BILL-CERTIFICATE OF PRIVY EXAMINATION.-1. A decree upon a demurrer, if upon the merits, is as conclusive as though the facts set forth in the bill were admitted by the parties, or established by evidence, and is conclusive of everything necessarily determined thereby. But if the court merely decides that the complainant has not stated facts sufficient to constitute a cause of action, or that

the bill is liable to a specific objection, such decision does not extend to any issue not before the court on the hearing of the demurrer. 2. Where, therefore, a bill to foreclose a mortgage of husband and wife on the wife's realty, making the mortgage an exhibit, was demurred to on the ground that the certificate of acknowledgment to the mortgage exhibited did not state that the clerk was "personally acquainted with the bargainers," or that the wife was "privately examined," and the demurrer was sustained as to the wife, after which the omissions in the certificate were corrected by the clerk, and an amended and supplemental bill was filed by leave of the court, upon the mortgage with the corrected certificate, setting out the proceedings under the previous bill, it was held that a demurrer to the latter bill was properly overruled. 3. The correction of the certificate of privy examination of a married woman, under the Code. sec. 2082, may be made by the officer who took the examination after he goes out of office, and the oath to the truth of the correction need only be made in open court without being entered on the minutes. Opinion by COOPER, J.--Grotenkemper v. Carver.

TRUSTEE AND CESTUI QUE TRUST -VOID EXERCISE OF POWER OF DIRECTION BY MINOR.-1. A deed in trust coveying real estate for the benefit of a female infant, to be held by the trustee during her natural life, provided that she might, by request, in writing to the trustee, have a sale made of the property for reinvestment, such writing to be acknowledged by her in form similar to the acknowlment of deeds. Held, that such a written request made and said to have been acknowledged by the cestui que trust when she was less than ten years of age, was void and might be repudiated by her, and that she might recover the property from an innocent purchaser. 2. An infant may exercise a naked power unaccompanied with any interest and not requiring the exercise of any discretion. But the exercise of power in the case stated required the exercise of discretion; and it would be a mere farce to charge a child of scarcely ten years of age with such exercise. Opinion by DEADERICK, C, J.-Hill v. Clark.

--

TAXES ON PROPERTY IN LITIGATION WHEN PAID OUT OF RENTS.-In case of a bill filed to remove cloud from title, the defendant in possession failed to pay taxes, and complainant paid them until a receiver was appointed on petition of complainant. The bill was ultimately dismissed on hearing. Held, that complainant was entitled to be reimbursed the taxes paid by him. pending the litigation, out of rents in the hands of the receiver, on the principie that it was the duty of the court to have applied the funds to the payment of taxes, and that it would have done so had not complainant paid them. Opinion by FREEMAN, J.-Wicks v. Sears.

SUPREME COURT OF WISCONSIN.

May, 1880.

PROMISSORY NOTE GUARANTY STATUTE OF FRAUDS. A written guaranty upon a negotiable promissory note, though referring to the note, and made at the same time with it, and constituting a ground of the credit given to the maker, is void by the statute of frauds, if it fails to express the consideration. Taylor v. Pratt. 3 Wis. 674, adhered to on the principle of stare decisis; and Houghton v. Ely, 26 Id. 181, distinguished. Affirmed. Opinion by COLE, J.-Parry v. Spikes.

SURETY-DUTY OF ONE TO WHOM PARTY MAKES INQUIRIES.-. If one who contemplates becoming surety to another for a third person applies to the person to whom the security is to be given for information as to the nature, extent and risk of the obligation, or the circumstance, condition or character of such third person, while the person so applied to may refuse to give such information, yet if he undertakes to give it he is bound to disclose every material fact within his knowledge affecting the proposed liability; and if he conceals any fact unknown to the proposed surety, which, if known, would have deterred him from becoming surety (where the latter has not the present means of ascertaining the fact, or where, though he has such means, artifice is used to mislead him or throw him off his guard), this is a fraud which will relieve the surety from his obligation. And this is especially so where the surety becomes such at the request of the person to whom the security is given. 2. An omission by the court of a correct qualification of a general principle of law stated in the charge, is not error, where such qualification is rendered inapplicable by facts shown by the undisputed evidence. Affirmed. Opinion by LYON, J.-Remington Sewing Machine Co. v. Kezertee.

FIRE INSURANCE— AGENT-STIPULATION-PRACTICE.-1. In an action upon a fire insurance policy, the answer was, that the policy contained a condition avoiding it, in case the interest of the assured in the property were other than the sole and unconditional ownership for his own benefit, if that fact were not represented to the insurer and expressed in the written part of the policy; that the property was held in trust by plaintiff for others, and he did not disclose the fact to defendant when he applied for insurance; and (as a separate defense) that he did not, in his proofs of loss, disclose such trust or the names of the persons beneficially interested as the terms of the policy required him to do before he could recover thereon: Held, that this was essentially a plea in bar, and not merely one in abatement, and there was no error in refusing to try first the question whether plaintiff had failed to make due proofs of loss. 2. Where the agent who issued the policy was previously informed of the circumstances under which plaintiff held title to the property, negotiated the contract of insurance with some of the persons beneficially interested (and not with the plaintiff, in whose name the policy was taken), was furnished with full information which would have enabled him, by inquiry, to learn the name of each beneficiary, and wrote the policy without specifying the trust, this was a waiver of the stipulation avoiding the policy unless such trust were written therein. 3. Under the practice in this State, plaintiff could make proof of the waiver, in his action on the policy, without first proceeding to have it reformed. 4. The policy provides that, "when personal property is damaged," the assured shall arrange "the various articles according to their kind, separating the damaged from the undamaged," and shall furnish the company an inventory "naming the quantity, quality and cost of each article." The property insured was one organ, and was wholly destroyed; and the assured, in his proofs of loss, stated the name of the article, its value just before the fire, and the amount of the loss (the sums named as such value and as the amount of loss being the same); and he refused to furnish on demand any further "schedule" under that provision, on the ground that in case of a total loss of a single article insured, no other "schedule" was required. Held, that the jury were warranted in finding a compliance with said provision of the policy. 5. The practice of granting a nonsuit upon the opening statement of the case by counsel for plaintiff, does not

prevail in this State. Fisher v. Fisher, 5 Wis. 472. Affirmed. Opinion by LYON, J.-Smith v. Commonwealth Ins. Co.

NEGLIGENCE-RAILROADS-CONTRIBUTORY NEGLIGENCE-CATTLE GUARDS.-1. About half-past nine o'clock on a dark, rainy and snowy night, plaintiff went to defendant's depot at a village, for the purpose of taking the caboose car at the rear end of defendant's freight train, for his place of residence. The train stopped with the caboose car several rods north of the depot platform, and two car-lengths north of a cattle-guard, which was constructed across both tracks of the road and between them, and was partly uncovered. Plaintiff asked the night-watchman whether he would have to walk that far back to get on the caboose, and was answered affirmatively; and while on his way to the caboose met the conductor with a lantern accompanying lady passengers from the caboose: nothing was said to him by the conductor; and before plaintiff reached the caboose, he fell into the open cattle guard, and was injured. He had been in the habit of taking this train with the caboose standing north of the platform, but had never taken it with the caboose standing north of the cattle guard; and he had never noticed the situation and condition of the cattle guard, nor did he know before the accident that the caboose stood north of it. Held, that these facts warranted the jury in finding that defendant was guilty of negligence, and plaintiff free from contributory negligence. 2. The question whether the cattle guard was properly situated and constructed, is immaterial in such a case, defendant being chargeable with negligence on the facts stated, independently of that question. 3. In an action for injuries from negligence, where proper instructions have been given, and there is a general verdict for the plaintiff, the jury must be presumed to have passed upon both the question of defendant's negligence, and that of plaintiff's contributory negligence. 4. There was no error in refusing to charge that plaintiff, if informed that the train would not be hauled up to the platform to allow him to get on, had no right to take another way of getting on, and put himself in peril," and that if he did so and was hurt, he could not recover. 5. The court gave the above instruction modified by adding, "if you find that he put himself in such peril." Held, that this must be understood as meaning, "if you find that he knowingly put himself in such peril;" and in this there was no error against defendant. 6. In a civil action, the evidence is not required to be such as establishes beyond a doubt the facts relied upon for a recovery. Opinion by ORTON, J.-Hartwig v. Chicago etc. R. Co.

QUERIES AND ANSWERS.

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

QUERIES.

43. A forecloses mortgage against B and does not make C, a subsequent judgment creditor, a party. A's judgment was for $3,000. He bid in the property for $2,000. The year for redemption expires, and A takes deed under which he now occupies the premises. C, five years having expired, issues execution on his judgment, bids in the property and brings bill to redeem. How much must he pay A? Is it the amount of his bid with interest, etc., or must he pay the full amount of the lien as first taken? Was the balance of A's judgment merged in his deed? A.

CURRENT TOPICS.

The Cole disbarment case at Des Moines, Iowa, last week, came to a sudden and unexpected termination. The case being called before Mr. Justice Miller and Judge McCrary, the respondent's counsel asked to withdraw the original answer and to substitute a new one. The new a swer was then filed and read, and was in these words:

United States Circuit Court, District of Iowa. Ex parte Cole.

"Now comes C. C. Cole, respondent herein, and withdrawing the answer heretofore filed to the original charges, answers now to said charges that he admits the writing of the said several matters charged in the first and second parts of said information, but says they were written in the zeal and anxiety of an attorney for his client.

That respondent does not believe and never did the truth of the charges made by his client against the integrity of this court or of either of its judges. Nor does he believe the truth of any charges in any of said letters in said information referred to, or in any publications over the signature of this respondent in the Daily Register in November and December, 1878, impeaching the integrity of said court or any of its judges. Respondent admits that he did sign on the

day of 1877, in good faith, and without coercion, the card in vindication of the court.

"Respondent admits the wrong he himself has done the court and the judges thereof in his said letters and in the publications in newspapers aforesaid and in pamphlets; and this respondent withdraws and retracts unqualifiedly every statement in the said letters and publications made by this respondent which reflected upon the integrity of the court or either of its judges, and hereby expresses his sincere regret that said letters or publications were ever written or made.

"And this respondent hereby declares his belief in the integrity and purity of purpose of the said court and each of its judges in all their rulings and judicial actions in the said suit against the Central Railway of Iowa, and he makes this acknowledgment as an act of justice to said judges, and desires the same to be placed upon record as a complete vindication in respect to all matters and charges reflecting upon them in said letters and publications made by this respond

sance.

public street can be regarded in law as in itself a nuiIn City of Allegheny v.♦Zimmerman, 10 Pitts. L. J. 168, a liberty pole erected in a public street by a number of citizens was blown down in a gale, and a boy injured. The Supreme Court, two judges dissenting, ruled that the erection could not be held to be a nuisance per se. The court, in rendering judgment, gave a somewhat interesting historical description of the liberty pole. "Their erection appears to have been almost ceval with the birth of our nation. As the name imports, they were erected to symbolize our liberties, and as a mode of proclaiming that we had thrown off all allegiance to the government of Great Britain. At first they appear to have been used as expressive of concurrence in the principles embodied in the Declaration of Independence. As time passed on they began to be erected by each political party of the country to express its greater devotion to the rights of the people. As the object of their erection was patriotic, and with a view of inciting a spirit calculated to advance the public welfare, they were placed on highways and public squares. The people so desired it. The municipal authorities assented to it. It is a custom sanctioned by a hundred years, and interwoven with the traditions, memories and conceded rights of a free people. Unless forbidden by the authorities it has been considered the exercise of a lawful license incident to citizenship. Hence in this case no permission was asked of the authori. ties for leave to erect the pole, and no objection was made by them. The travel on the street where it stood was merely local. It did not Occupy the street to such an extent or in such a manner that any person complained of its interfering with the public travel. To all appearances the pole was strong and sound. No doubt existed as to its strength. In the view taken by the court below it mattered not if all these facts were proved; and further that it was well secured; that no person had reason to apprehend any danger in its remaining there and that it yielded only to the severe gale, yet having broken, the city was liable for the injury sustained by the defendant in error. If it has been a uniform custom for the people to erect such poles in the streets of the city from its earliest history, under the implied assent of the municipal authorities, and if this one was so carefully erected, having due regard to the material of which it was formed, and the manner in which it was secured, that a careful and prudent person would have apprchended no danger therefrom, we think it was not a nuisance per se. It is therefore a question for the jury whether it was erected in such a place and manner, and maintained for so long a time, under all the circumstances, as to have created reasonable apprehension of danger."

CORRESPONDENCE.

DEGREES OF MURDER-STATE V. CURTIS.

To the Editor of the Central Law Journal:

The note to State v. Curtis, published in the CENTRAL LAW JOURNAL of May 7, 1880, is well calculated to mislead, and inaugurate an erroneous practice in like cases hereafter. The writer seems to have misconceived the practical bearings of the case entirely, as well as the position of the court in other cases; and if his views of the proper meaning of the case are to prevail with the profession and the trial courts, it is plainly evident that the Supreme Court will not stand by them, and much confusion will follow.

The idea seems to have gained currency that the