that the appellant was born in Steubenville, Ohio, and was brought up there in the family of the intestate's sister, in which also the intestate resided at the time of the appellant's birth and for several years thereafter. The appellant tendered the "declaration of Mary Northrop (the intestate's sister) relative to the birth and parentage of John A. Northrop," the appellant. What the specific declarations were, the bill of exception fails to disclose. It is sufficiently general to include declarations that the appellant was the lawful son of the declarant, which was claimed by the appellee. The admissibility of such a declaration would not be successfully challenged under any known rule of evidence. For the practice in such cases seems to be that some evidence of the requisite relationship (though the exact degree may not be essential perhaps, Vowles v. Young, 13 Ves. 140) dehors the declarations must be shown before they can be admitted. Fuller v. Randall, 2 Moore & P. 24; Plant v. Taylor, 7 Hurl. & Nor. 237; Gee v. Ward, 7 E. & B. 514. And this evidence is primarily addressed to the presiding justice, who, before admitting the declarations, must be satisfied that a prima facie case of the requisite relationship has been made out. Jenkins v. Davis, 10 Q. B. 313, 322; Hitchins v. Eardley, L. R. 2 P. & D. 248. And the facts shown, the birth, place of birth, the bringing up and the name of the appellant, are ample prima facie evidence of relationship to warrant the admission of the declaration mentioned. 4 Camp. 416; Viall v. Smith, 6 R. I. 417. Still there is some apparent discrepancy in the practice. Blackburn v. Crawford, 3 Wall. 175; Jewell v. Jewell, 1 How. 219, 231; Alexander v. Chamberlain, 1 Thomp. & Cook (N. Y. Sup. Ct.), 600.

But the appellant could not be aggrieved by the exclusion of a declaration which would disprove his claim and his exception, for such an exclusion could not therefore be sustained.

Yet, considering the appellant's claim together with the facts and admissions disclosed in the bill of exception, we can have no doubt that the declarations tendered and excluded had a direct bearing upon the issue, and that the question intended to be raised by the parties, is: Whether, in determining who are the rightful distributees of an intestate estate, the declarations of the intestate's sister (since deceased), in whose family he was not only born and brought up, but in which also the intestate herself lived when the appellant was born and for several years thereafter, are admissible for the purpose of showing that he was the natural son of the intestate, who had not then been married.

All of the authorities seem to concur in holding that while her declarations would be competent to show the appellant to be her own illegitimate son, born before her marriage, yet under a rule founded, as Lord Mansfield said, "in decency, morality and policy," her declarations would not be allowed to prove her own son illegitimate if born in wedlock. Goodright v. Moss, Cowp. 591; 1

Greenl. Ev. §§ 253, 344; Haddock v. B. & M. Railroad, 3 Allen, 300; Abington v. Duxbury, 105 Mass. 287. Can her declarations be admitted to show the illegitimacy of her unmarried sister's son born and brought up in her own family? This involves no bastardizing of her own issue.

Formerly the declarations of servants, physicians and intimate friends have been admitted at nisi prius in the English courts. But in Johnson v. Lawson, 2 Bing. 86, the court unanimously rejected the declarations of a deceased housekeeper. Best, C. J., remarked that the admission of evidence in such cases must be subject to some limits; limiting declarants to relatives connected by blood or marriage afforded a certain and intelligible rule; and if that were passed, an almost endless inquiry as to the degree of intimacy between the family and the declarant might be involved. Since that decision, all modern authorities excluded eclarations coming from neighbors, in timate acquaintances, etc., of the family as being mere hearsay evidence. Vowles v. Young, 13 Ves. 147; Whitelocke v. Baker, 13 Ves. 514; Jackson v. Browner, 18 Johns, 37, 39. It has, therefore, become a universally recognized exception to the general rule excluding hearsay, based on various sound considerations, that as to certain facts of family history, usually denominated pedigree, comprising inter alia, birth, death and marriage, together with their respective dates, and, in a qualified sense, legitimacy and illegitmacy, declarations are admissible: (1) When it appears by evidence dehors the declarations that the declarant was lawfully related by blood or marriage to the person or family whose history the facts concern; (2) That the declarant was dead when the declarations were tendered; and (3) That they were made ante litem motam. 1 Greenl. Ev., §§ 103, et seq. and notes; 1 Whart. Ev., §§ 201: et seq. and notes; 1 Taylor Ev., §§ 571, et seq. and notes; Best, Prin. Ev. (Am. ed.), § 498 and notes.

Lord Ch. Eldon said such declarations "are admissible upon the principle that they are the natural effusions of a party who speaks upon an occasion when his mind stands in an even position without any temptation to exceed or fall short of the truth, * * * that they must be from persons having such connection with the party to whom they relate, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth and cannot be mistaken."

Lord Ch. Erskine declared that the "law resorts to hearsay evidence of relations upon the principle of interest in the person from whom the descent is to be made out." Vowles v. Young, supra. This view was adopted by Prof. Greenleaf. 1 Greenl. Ev., § 103. And Mr. Taylor sums up the authorities by declaring such declarations admis sible coming from such sources, as relatives "may be supposed to have the greatest interest in seeking, the best opportunities for obtaining, and

the least reason for falsifying information on the subject." 1 Taylor, Ev. § 571. Do not the qualifications of Mrs. Northrup come fully up to these requisitions?

In Goodright v. Moss, Cowp. 571, the declarations of parents were held admissible, after their decease, to prove that their son was born before their marriage and was therefore illegitimate; and this case is not questioned on this point in Berkley, Peerage, case 4, Camp. 401.

In Vowles v. Young, supra, a new trial was granted because the declarations of a husband that his wife was illegitimate, were rejected.

In Haddock v. B. & Maine Railroad, supra, a mother's declarations were admitted to prove the illegitimacy of her daughter by showing that the mother was never married.

So, where the question was whether the plaintiff's mother was the legitimate child of the ancestor, whose land was in dispute, and the record showed the latter's marriage at a certain date, the ancestor's declaration-that "unless he made a will, Louisa (plaintiff's mother) could get nothing," was held competent to go to the jury on the question of her illegitimacy. Viall v. Smith, 6 R. I. 417. See also Barnum v. Barnum, 42 Md. 251, 304.

It would seem, therefore, that the declarations of the intestate would be admissible to show that the appellant was her illegitimate son; and if the mother's declaration would be, why would not be those of the mothers's sister, in whose famliy the child was born and brought up, and in which the mother lived at the time and for years after?

It is urged that there are some English authorities which somewhat tend otherwise.

In Bamford v. Barton, 2 Moo. and R. 28, where one K, died seized of land, leaving none but illegitimate children, to whom he willed for life, his property with remainder to his own lawful heirs, who brought ejectment claiming the devisees for life to be dead; and to prove it, offered the declarations of one of them, who had since died, to prove the decease of the other, Patterson, J., at nisi prius, held the declarations inadmissible on the ground that the declarant was not, in point of law. a member of the family of his reputed father." We also entertain the same opinion, and for the same reason.

In Crispin v. Doglioni, 2 S. & Tr. 44, decided in the probate court in England, in 1863, the plaintiff claimed to be the natural son of the intestate. To prove it, he tendered the declarations of a deceased brother of the intestate. Sir C. Creswell, after remarking there was no case in point, held the declarations inadmissible, saying: "The admissibility of hearsay evidence is exceptional, and ought not to be carried further than the decisions in the books, for it is a departure from the first rule of evidence. I can well understand that when a matter is likely to be discussed and well known in a family, a member of the family may be allowed to give evidence of it; but in this case

the plaintiff, according to his own account, is fullius nullius, by our law. The question is whether a declaration of one brother may be admitted as to another brother having had intercourse with a woman, and having had a child by her; I think it ought to be excluded." We cannot perceive any objection to this ruling. No one can pretend that it comes within the exception admitting hearsay, for the putative father has no relationship with his bastard son, and hence the case is not applicable to the case at bar. Moreover, the case is especially sound in England, and it might there be considered as applicable to a case having the same facts as in the case at bar. For by the common law, in order to "render odious illicit commerce between the sexes and to stamp disgrace on the fruits of it, notwithstanding the punishmeut usually fell upon the innocent, it was thought wise to prohibit the offspring from tracing their birth to a source which is deemed criminal by law." Cooley v. Dewey, 4 Pick. 95. Hence bastards were said by the common law to be the "children of nobody," and could not transmit by descent except to their own offspring. 1 Black. Com. 459; 2 Kent's Com. (12th ed.) 212-13; Hughes v. Decker, 38 Maine, 152, 160. And such was the law in this State until 1838, when the legislature, as have the legislatures of several other States, ameliorated the rights of illegitimate children. "This relaxation in the laws in so many States," says Ch. Kent, "of the severity of the common law, rests upon the principle that the relation of parent and child, which exists in this unhappy case, in all its native and binding force, ought to produce the ordinary consequence of consanguinity." 2 Kent's Com. (12th ed.) 214. By the statutes of this State, "an illegitimate child is the heir of his mother," and "his estate descends to his mother when he dies intestate without issue." R. S., c. 75, §§ 3 & 4.

We are of the opinion, therefore, that inasmuch as the relationship of sister existed between the intestate and the declarant, and, by force of the statute, that of mother and son between the intestate and the appellant, the declarations came literally within the exception and are consequently admissible; and that the jury should be allowed to pass upon their weight, if they find they were ever made, in connection with the other testimony in the case.

Exceptions sustained.

PETERS, C. J., WALTON, DANFORTH, SYMONDS and EMERY, JJ., concurred.

1. ATTORNEY-Disbarment for Conviction of Felony Appealed from and Undetermined.-The Supreme court cannot disbar an attorney, under § 288 of the code of civil procedure, upon receipt of a certified copy of the record of a justice of the peace convicting him of embezzlement, if it appear that an appeal had been taken from the judgment of conviction, which was undetermined at the time the application to disbar was made. People v. Treadwell, S. C. Cal. Feb. 2, 1885; 5 W.C. Rep. 354 2. BOUNDARIES-Close to the Edge of a Mill Pond -The following boundaries were given in a deed: "thence easterly on said line to Wilson pond; thence northerly by the shore of said pond to Hiram Norris' land." Held, that the land conveyed extended to low-water mark. Stevens v. King, Kennebec, May 29, 1884; 76 Me. 197. 3. CONSTITUTIONAL LAW Statute Prescribing Qualifications for Medical Practitioners.-A territorial statute prescribing certain qualifications for all persons proposing to practice medicine and surgery in the territory, and excluding all persons not having such qualifications except those who were engaged in practice at the time of the passage of the act, is neither an ex post facto law, nora bill of attainder, nor is it in conflict with the fourteenth amendment of the United States Constitution. Fox v. Territory, S. C. Wy. T., Sept. 17, 1884; 5 W. C. Rep. 339.

4. CONTRACT- Damages to Personal Property— Rights of Special and General Owners to.-A mower company, the owner of a lot of mowing machines, consigned and forwarded them to D, by virtue of a contract under which D was to pay the freight on them and sell them for a specified commission, and account to the company for them at a specified price. Held: 1. This contract did not change the title in the machines. 2. D had such special property in the machines as to enable him to maintain an action against a carrier for a wrongful act to the property, in which he would recover, not only his own damages, but such as accrued to the company as general owners. 3. While D might assign his own interest in the judgment to be recovered in such action, he could not assign that which belonged to the general owner. 4. The neglect or refusal of the company to commence and prosecute the action for such damage, is not a waiver of their claim, and they are not estopped from asserting it. 5. A sale of the property after the damage had accrued would not transfer the claim for damages. 6. There can be no division between the company and D, of the damages to be recovered in D's action, until the same have been assessed. 7. The refusal of the company to prosecute the action, makes it equitable that the expenses of that litigation should first be deducted from the judgment recovered, and other expenses,

5.

if any, for which D would have a lien, and the balance divided according to their several interests. Boston etc. R. Co. v. Warrior Mower Co., et al. Penobscot, June 4, 1884; 76 Me. 257.

Public Policy-Contract to Bring Ficti tious Suit.-A contract between a mortgagor and mortgagee, for the purpose of bringing a fictitious suit to foreclose the mortgage, so as to cut off the right of an apparent senior mortgagee, by which it is agreed that the mortgagee shall secure a judgment and purchase the mortgaged property at execution sale, and hold the same in trust for the mortgagor, is a fraud on the court, and consequently contrary to public policy and void. If the mortgagee procures the property in pursuance of such fraudulent agreement, and afterwards refuses to execute the trust, a court of equity will not compel him so to do. Connolly v. Cunningham, et al, S. C. Wy. T., Sept. 24, 1884; 5 W. C. Rep. 343.

6. CONVERSION.-Counterclaim Claim to Evaporation-the Counterclaim in an Action for Conversion of Petroleum.-1. Where the owner of a quantity of petroleum delivered it for storage to a company formed for the purpose of transporting and storing such oil, and it was agreed by the owner and the company that certain allowances should be made for evaporation and certain charges be paid for storage, in an action by the owner against the company for an alleged conversion of the oil to its use, the allowance agreed upon for evaporation and the amount due for storage were proper subjects of counter-claim by the company. 2. The conversion of the oil made the company liable for its value, subject to all allowances and charges agreed upon in the receipts of storage; and the owner could not defeat the right of the company to make such allowances and charges a counter-claim by bringing his action as one for trover at common law. Cow Run Tank Co. v. Lehmer, S. C. Ohio, Dec. 2, 1884; 13 Weekly L. Bul. 145.

7. CORPORATE STOCK-Pledge by Apparent Owner -Rights of Innocent Pledgee.-The owner of stock who voluntarily delivers the endorsed certificates to a third person, allows him to assume the apparent ownership, and cannot recover the same from a pledgee of the latter. Arnold v. Johnson, S. C. Cal., Feb. 3, 1885; 5 W. C. Rep. 356.

8. CRIMINAL Procedure-Objection that List of Witnesses before Grand Jury was not Returned into Court.-An objection that the foreman of the grand jury did not return into court a list of witnesses sworn before the jury in finding an indictment, comes too late if first taken after verdict; and, whenever taken, the objection is not fatal, the statutory provision requiring a list to be returned being directory merely, and not mandatory, and the court having the power to supply the omission in other ways. State v. Wilkinson, Sagadahoe, July 16, 1884: 76 Me. 317.

opinion upon it, or that he has used an illustration unfavorable to his client, the objection should be made before the jury retire, and cannot avail when made for the first time afterwards. Ibid.

11. EJECTMENT-Prior Judgment when a Bar to Subsequent Action.-In an action by the city and county of San Francisco, to obtain possession of certain land, the title to which is claimed under an alleged dedication, a judgment in a former action between the same parties in favor of the defendant, and a finding that no such dedication was made, is a bar. People v. Halliday, et al., S. C. Cal., Feb. 7, 1885; 5 W. C. Rep. 359.

12. EQUITY.-Reformation of Contract.-In an action to reform a contract and for relief thereunder, after the same is reformed the court may specifically enforce the same when that may be done, or may give adequate compensation for its non-performance. Columbus, etc. R. Co. v. Steinfeld, S. C. Ohio, Dec. 9, 1884; 13 Weekly L. Bul. 147.

13.

Evidence in Such Actions.-On trial of an action to reform a written substituted contract for fraud or mistake, and to enforce the same when reformed, or if the same could not be reformed, then to rescind the written contract, there may be given in evidence the original writing made by the same parties upon the subject matter in dispute, and also the subsequent acts done or procured to be done by the party charged with the fraud and which tend to prove the fraud or mistake. Ibid. 14.. Placing Defendant in Statu Quo.-3. On such a trial the court may find that the written contract in dispute does not contain the true agreement of the parties, but if the party complaining neither pays back nor offers to return the money received by him under the contract, it is error to order the contract to be set aside and held for naught. Ibid.

15. EVIDENCE.-Resolution of Board of Directors— -Admission as to Salary of Officer.-A resolution of the board of directors of a corporation stating that the salary of its president for the preceding year was fixed at a certain amount per month, is an admission that the salary was so fixed for the preceding year, but is no evidence of a contract for a salary prior to that time. Smith v. Woodville Con. S. M. Co., S. C. Cal., Feb. 2, 1885; 5 W. C. Rep. 355.

16. FOREIGN DIVORCE.-Status of American Divorce in Canada.-The parties were married in New York in 1871 without ante-nuptial contract, both being at the time domiciled in that city. By the laws of the State of New York no community of property was created by such marriage, the wife retaining her private fortune free from marital control, like a feme sole. Shortly after the marriage the appellant entrusted respondent with the whole of her private fortune consisting of personalty to 'the amount of over $200,000, and respondent administered this until 1876. The consorts lived in New York until 1872, when they removed to Monitreal, where the respondent has ever since resided and carried on business, but appellant left him shortly after to take up her residence alternately in Paris and New York. In 1880, when respondent was still in Montreal, the appellant, then in New York, instituted proceedings against him for divorce before the Supreme Court of New York on the ground of his adultery. The action was served on respondent personally at Montreal, and he appeared in the suit but did not contest, and appel

lant obtained a decree of divorce absolute in her favor in December, 1880. In 1881, appellant taking the quality of a divorced woman, and without obtaining judicial authorization, instituted an action against the respondent in the Superior Court in Montreal for an account of his administration of her property. The respondent pleaded that the alleged divorce was null and void for want of jurisdiction of the Supreme Court of New York, that the appellant was in consequence still his wife, and that she should have obtained the authorization of the court to institute the present action. Held: (reversing the decision of the Court of Queen's Bench and restoring the judgment of the Superior Court-Strong, J., diss.) 1. That the Supreme Court of New York has jurisdiction to pronounce the divorce, and that the divorce was entitled to recognition in the courts of the Province of Quebec. 2. That the Supreme Court of New York having under the statute law of New York jurisdiction over the subject matter in the suit for divorce, the appearance of the defendant (now respondent) in the suit absolutely and without protesting against the jurisdiction, estopped him from invoking the want of jurisdiction of said court in the present action. 3. That the plaintiff (now appellant) had at the date of the institution of the action for divorce a sufficient residence in New York to entitle her to sue there. (The American doctrine of allowing wife to establish a separate forensic domicile in divorce cases quoted and approved.) 4. (Per Fournier and Gwynne, JJ.) That even if the divorce in question were not entitled to recognition in the courts of Quebec, the action to account could still be maintained under article 14 C. C. P. Stevens v. Fisk, S. C. Canada, Jan. 12, 1885, 8 Leg. News, 42.

17. MASTER AND SERVANT.- Servant of Railroad Killed on Hand Carby Belated Passenger Train.— A section boss on a railroad and his crew took a hand car togo from Reed's mill to a switch, about onehalf mile east, where they would go from the main track upon a second track on their way to work. A passenger train, which should have passed that point one hour and a half before, was behind time. It overtook and run into the hand-car, killing one of the section-men. The foreman did not know and had no reason to believe that the train had not passed and did not send to or go to the telegraph office, which was one mile distant, to ascertain about the passenger train. The deceased did not know of the whereabouts of the belated train, although he had the same opportunity of knowing as the foreman. There was no carelessness in the running of the train. Held, that the railroad company could not be required to respond in damages to the representatives of the deceased, as he voluntarily and without protest mounted and rode upon the hand-car. P. C. & St. L. R. Co. v. Leech, S. C. Ohio, Dec. 2, 1884, 13 Weekly L. Bul. 153.

18. MINING CLAIM.-Lode Departing from Vertical Lines-Right to Follow.-The patentee of a mining claim cannot follow his lode into an adjoining patented claim, where in its onward course or strike, it departs from the vertical side lines into such latter claim. If he does so he is a mere intruder without color of right or title; and in an action of ejectment by the owner of such latter claim, under a tax deed from the original patentee, he cannot dispute the validity of such tax title. Lebanon Mining Co. v. Rogers, S. C. Cal., Dec. 19, 1884; 5 W. C. Rep. 310.

19. - Adverse Possession of Mining Claim.One claiming title to a patented mining claim by adverse possession, under section 2,186, et seq. of the general statutes, must prove not only his claim and color of title, but also the bona fides thereof. Ibid.

20.

Subsequent Location-Defects in Prior Location.-A subsequent locator of a mining claim cannot object that all the steps necessary to a valid prior location were not performed at the time of its location, provided they are afterwards performed before his rights attached. This rule is applied when objections are made that claims were not sufficiently marked upon the ground at the time of the. location, and in cases of failures to file location certificates within three months after the discovery of the claims. McGinnis v. Egbert, S. C. Cal., Dec. 19, 1884; 5 W. C. Rep. 315.

22.

Failure to do Necessary Work-Resumption of Work before Re-location.-If work is resumed on a mining claim, after it has become open to re-location, but before re-location is actually made, the rights of the original locators stand as they would if there had been no failure. Ibid.

23. Act of Congress Extending Time for Doing Annual Labor Construed.-The Act of Congress of January 22, 1880, fixing the first day of January as the commencement of the annual period for the performance of work on all unpatented mining claims then existing, took effect from the date of its passage, and extended the period for doing such work, if the same would otherwise have elapsed during the year 1880, until the end of such year. Ibid.

24.

25.

26.

Contest - Abandonmen― Evidence in Rebuttal.-In a contest concerning the right to a mining claim, when the original locator has established a prima facie case, the other cannot rebut the same by evidence that at a prior date a third person had relocated the claim as abandoned property.-Ibid.

Declaration of Vendor not admissible after Transfer of Interest.-Declarations of the original locator of a mining claim, made after he has parted with his interest, are not admissible to impeach the validity of his location.-Ibid.

Change in Boundaries - Certificates of Location. Where the boundaries of a mining claim, as originally located, are changed after the recording of the original location certificate, so as to leave the discovery shaft outside, the validity of the location cannot be sustained by reason of an additional location certificate, which neither purports to be, nor is sufficient to support, a relocation involving such a change of boundaries.-Ibid. 27. Contest-Verdict, what must state.-In a proceeding to try the right of possession to a mining claim, under the Act of Congress of May 10, 1872, as amended by the Act of March 3, 1881, a verdict for the defendant, in possession, should

state whether the same was returned because the defendant had established his title to the lode, or because the plaintiffs had failed to establish their title.-Ibid.

28. MORTGAGE-Mortgagee Cannot Maintain Trespass.-A mortgagee of real estate, although claiming under a deed absolute on its face, has a mere lien on the mortgaged premises, and cannot maintain an action to recover damages for a trespass thereto. Pueblo etc. R. Co. v. Berhoar, S. C. Cal., Dec. 19, 1884; 5 W. C. Rep. 324.

29. MUNICIPAL CORPORATION-Liability for Injury through defective Sidewalk.-The city of Olympia, under its charter and the statutes of the Territory, is liable in an action by a private person for an injury caused by the neglect of the city to repair a defect in one of its sidewalks. Hutchinson v. City of Olympia, S. C. Wy. T., Sept. 24, 1884; 5 W. C. Rep. 349.

30. NEGLIGENCE.-Railroad Crossing-Presumption that Traveller Stopped, Looked and Listened.— While the rule of law requires a traveller on the highway on approaching its intersection with a railroad to stop, look, and listen for approaching trains, yet in the absence of evidence the presumption is that the traveller did his duty in that respect. Schum v. Pa. R. Co., S. C. Pa., Oct. 6, 1884; 19 Rep. 184.

31. SALES OF PERSONAL PROPERTY-Conditional Delivery-Refusal of Payment.-When payment of the purchase money and the delivery of the goods are expressly or impliedly agreed to be simultaneous and the payment is omitted or refused by the purchaser upon getting possession of the goods, the vendor may reclaim them, the delivery being merely conditional. To constitute a conditional delivery, it is not necessary that the vendor should declare the conditions in express terms at the time of delivery. It is sufficient if it can be inferred from the acts of the parties and the circumstances of the case that it was intended to be conditional. Fishback v. Van Dusen, S. C. Minn., Jan. 21, 1885; 22 N. W. Rep. 444.

32.

33.

34.

35.

Cash Sale.-Upon a sale for cash, payment and delivery are concurrent and mutually dependent acts, and neither party is bound to perform without contemporaneous performance by the other. Ibid.

Waiver of Conditions.-But a delivery on a sale for cash is not necessarily a conditional one, for the vendor may waive the conditions and make the sale absolute by an unconditional delivery. -Ibid.

36.

Waiver a Question of Fact.-Whether there has been such a waiver is a question of fact, viz.: Has the vendor voluntarily and unconditionally delivered the goods without intending to claim the benefit of the condition that the purchase money must be paid before the goods pass to the vendee.-Ibid.

Evidence-Unconditional Delivery.-Evidence in this case considered, and held sufficient to sustain the finding that the delivery was unconditional.-Ibid.

Pledge-Mortgage- Executed Contract. -To constitute an executed contract of either sale, pledge, or mortgage of goods, some specific property must be appropriated to the contract. Until