CONSTITUTIONAL LAW REGULATION OF COMMERCE BETWEEN STATES CARRIER MAY NOT EXCLUDE UNCHASTE FEMALE PASSENGER BEHAVING PROPERLY

FROM LADIES' CAR.—(1) A State statute which abrogates all common-law remedies for the wrongful exclusion of a passenger from the cars of a railroad company is unconstitutional, so far as it relates to railroads running between two or more States, it being a regulation of inter-State commerce that the State has no power to make. Hall v. De Cuir, 95 U. S. 485. A carrier of passengers may rightfully exclude a passenger whose conduct at the time is annoying, or whose reputation for misbehavior is so notoriously bad that it furnishes a reasonable ground to believe that the person will be offensive to other passengers; but the social penalties of exclusion of unchaste women from hotels, theaters and other public places cannot be imported into the law of common carriers; nor can the carrier classify his passengers according to their respective reputations for chasity, whether they be men or women. A female passenger travelling alone is entitled to ride in the ladies' car, notwithstanding an alleged want of chasity, if her behavior is lady-like and proper, and she cannot be compelled to accept a seat in another car offensive to her because of smoking and bad ventilation; and this whether she be white or colored. See Brown v. Memphis, etc., R. Co., 4 Fed. Rep. 37. U. S. Circ. Ct., W. D. Tennessee, October 30, 1880. Brown v. Memphis & Charleston Railroad Co. Opinion by Hammond, D. J.

PATENT EQUIVALENT CONTRIVANCE OF DIFFERENT FORM, INFRINGEMENT. - Where a person procures a patent for the building of a machine, which produces certain results which are novel and useful, by means of certain mechanical contrivances and appliances, any person who attempts to accomplish the same results by mere substitutions, which are equivalents of the means employed by the first patentee, is an infringer. Any application of known mechanical powers which will produce that result, although different in form from the means employed by the original patentee, is a mechanical substitute and equivalent of the same. Foster v. Moore, 1 Curt. 279; Curtis v. Baker, 4 Fish. Pat. Cas. 404; Morgan v. Seaward, Web. Pat. Cas. 170; Curtis Pat. (4th ed.), § 311. U. S. Circ. Ct., Delaware, January 29, 1881. Wilt v. Grier. Opinion by Bradford, D. J.

CORPORATION -OF ONE STATE ADOPTED BY ANOTHER STATE IS CORPORATION OF LATTER-CITIZENSHIP OF INCORPORATORS- JURISDICTION.-It is always a question of legislative intent whether the Legislature of a State has adopted as its own a corporation of another State, or merely licensed it to do business in the State. If, however, the effect of the legislation be to adopt the corporation, it becomes, for the purposes of jurisdiction, a corporation created by the State adopting it. Railroad Co. v. Harris, 12 Wall. 65; Railroad Co. v. Wheeler, 1 Black, 286; Railway Co. v. Whitton, 13 Wall. 270; Muller v. Dows, 94 U. S. 444; Ex parte Schollenberger, 96 id. 369; Railroad v. Appearing in 5 Federal Reporter.

Vance, id. 450; Williams v. Railroad Co., 3 Dill. 267; Wilson Co. v. Hunter, 11 Chi. L. N. 267. The incorporators of a Kentucky corporation are conclusively presumed to be citizens of that State. Held, therefore, that a suit commenced in the State court by a citizen of Kentucky against a corporation chartered as a single consolidated company by the several States, including Kentucky, through which it operates a railroad, cannot be removed to the Federal court, as a controversy between citizens of different States. Railroad Co. v. Letson, 2 How. 497; Marshall v. Railroad Co., 16 How. 314; Bank of Augusta v. Earle, 13 Pet. 519; Dodge v. Woolsey, 18 How. 331; Whitney v. Baltimore, 1 Hughes, 90 U. S. Circ. Ct., Kentucky, July, 1880. Uphoff v. Chicago, St. Louis and New Orleans Railroad Co. Opinion by Hammond, D. J.

CONNECTICUT SUPREME COURT OF ERRORS ABSTRACT.*

CORPORATION LIABILITY OF CORPORATOR CHANGE IN CORPORATE ORGANIZATION. -The directors of a Massachusetts manufacturing corporation, who were also its principal stockholders, decided to organize the company as a joint-stock corporation under the laws of Connecticut, and locate its office in this State, but to carry on its manufacturing business in the State of Massachusetts as before. The new corporation was organized, and the property of the old corporation transferred to it. Afterward the new corporation failed, and one of its creditors, claiming that the new company had not been legally organized, and that its members were liable as partners, brought suit against M., with the other members, as such partners. M. had been a stockholder in the old company, and knew that a reorganization under the laws of this State was being considered by the directors, but he had nothing to do with the measures taken for the purpose and did not sign the articles of association, his share of the stock being subscribed for by one of the directors simply as "attorney." Soon after the reorganization he was informed by the secretary of the fact, and that if he would send in his certificate of stock in the old company he would send him a certificate for the same amount in the new, which exchange was soon after made. M. did not keep himself informed with regard to the operations of the company, and had no knowledge of the particular debt on which the suit was brought. The organization of the new company had been made in entire good faith and with intent to make it a legal corporation, and M. supposed it to be so. The plaintiff had dealt with the company as a corporation and had not trusted the credit of M. in the matter. Held, that even if the new company had not become a legal corporation, M. had not made himself liable as a partner. Fay v. Noble, 7 Cush. 188; Trowbridge v. Scudder, 11 id. 83; Blanchard v. Kaull, 44 Cal. 440; Central City Savings Bk. v. Walker, 66 N. Y. 424; Haynes v. Brown, 36 N. H. 545. Stafford Bank v. Palmer. Opinion by Granger, J.

BANKRUPTCY - DEBT DUE FOR MONEYS BORROWED FROM PUBLIC SCHOOL Fund Not DISCHARGED. —The State, in holding and administering the school fund, is acting in its sovereign capacity. A discharge in bankruptcy of a person indebted to the school fund as a borrower does not affect the State as a creditor. It is a general rule in the interpretation of statutes limiting rights and interests, not to construe them to embrace the sovereign power or government, unless the same be expressly named therein, or intended by necessary implication. 1 Kent's Com. 460. See United States v. Herron, 20 Wall. 251. State of Connecticut v. Shelton. Opinion by Granger, J.

* Appearing in 47 Connecticut Reports.

LANDLORD AND TENANT FORFEITURE, WAIVER OF, BY DEMANDING RENTHEIR NOT LIABLE FOR COVENANT OF ANCESTOR. (1) A demand for rent accruing after a default, known to the lessor, which might work a forfeiture, is a waiver of the right to enter for the default. Under a lease for a term of years the rent was payable quarterly on the first days of April, July, October and January, and if not paid within thirty days after due the lessor was to have the right to enter and terminate the lease. The quarter's rent due April 1st was not paid, the lessee claiming the right to set off against it a larger sum paid for repairs. On the 26th of July the lessor demanded the rent due July 1st, offering to allow the lessee the April rent in full of the repairs; but the lessee refused to make this settlement, and the lessor thereupon refused to allow any thing for the repairs and declared that the lease was forfeited, and that he should take measures to eject the lessee. Held, that as the demand was for the July rent, as to which the thirty days had not expired, the lessor had waived his right to enter for the non-payment of the April rent. And to take advantage of the non-payment of the April rent the lessor was bound to demand it on the premises on the last of the thirty days allowed for its payment, and upon the lessee's neglect to pay, to enter for the default, or in some other positive manner assert the forfeiture. Pennant's Case, 3 Coke, 64; Doe v. Rees, 4 Bing. N. C. 384; Roe v. Harrison, 2 T. R. 425; Goodright v. Cordwent, 6 id. 219; Garnhart v. Finney, 40 Mo. 449; Gomber v. Hackett, 6 Wis. 323; Collins v. Canty, 6 Cush. 415; Bleecker v. Smith, 13 Wend. 530; Taylor's Landl. & T. (7th ed.), §§ 497, 498; Jackson v. Sheldon, 5 Cow. 448; Wilder v. Ewbank, 21 Wend. 587; Conway v. Starkweather, 1 Denio, 113; Smith v. Saratoga County Fire Ins. Co., 3 Hill, 508; Dendy v. Nicholl, 4 C. B. (N. S.) 376; Croft v. Lumley, 6 H. of L. Cas. 705; Clough v. North W. R. Co., L. R., 7 Exch. 26; Ward v. Day, 4 Best & Sm. 337; Green's Case, Cro. Eliz. 3; Doe v. Birch, 1 M. & W. 402; Bowman v. Foot, 29 Conn. 333. A provision in a lease for a forfeiture will be so construed as to prevent rather than aid the forfeiture, where the language admits of such a construction. (2) The lessee had covenanted for himself and his heirs to pay the rent during the term. died, and his son and heir entered into possession and for several months continued to pay the rent. Held, that this was not enough to make the heir liable upon the covenant of the ancestor. A lessor cannot maintain a suit against a sub-tenant upon the lessee's covenant to pay rent. Taylor's Landl. & T. (7th ed.), § 448; Holford v. Hatch, 1 Doug. 183; Quackenboss v. Clarke, 12 Wend. 555; Harvey v. McGrew, 44 Tex. 412. Camp v. Scott. Opinion by Loomis, J.

He

WILL -WITNESS TO, NEED NOT KNOW CONTENTS, OR IF PUBLICATION NOT REQUIRED BY STATUTE, THAT IT IS A WILL.-- Under the Connecticut statute, which requires a will to be "in writing, subscribed by the testator, and attested by three witnesses, all of them subscribing in his presence and in the presence of each other," it is not necessary that a witness to a will should know that it is a will. The object of his attestation is that he may be able to testify that the testator put his name upon the identical piece of paper upon which he puts his own. The English statute, at one time, required wills to be attested and subscribed in the presence of the devisor by three or four witnesses In Wyndham v. Chetwynd, 1 Burr. 421, Lord Mansfield said: "Suppose the witnesses honest, how little need they know? They do not know the contents; they need not be together; they need not see the testator sign; if he acknowledges his hand it is sufficient; they need not know that it is a will.' Bond v. Seawell, 3 Burr. 1775, he said: "It is not necessary that the testator should declare the instru

In

ment he executed to be his will." In Wright v. Wright, 7 ling. 457, it is held that "a will of lands subscribed by three witnesses in the presence and at the request of the testator is sufficiently attested although none of the witnesses saw the testator's signature, and only one of them knew what the paper was. To the same effect is White v. Trustees of British Museum, 6 Bing. 310. Perhaps the principle attained to its highest development in Trimmer v. Jackson, 4 Burn's Eccl. Law (3d ed.), 102, in which the attestation was held sufficient, although the devisor, not content with withholding the truth from the witnesses concerning the contents or nature of the instrument executed, intentionally misled them by stating it to be a deed. A similar statute has received the same interpretation in Massachusetts. Dewey v. Dewey, 1 Metc. 349; Hogan v. Grosvenor, 10 id. 54; Osborn v. Cook, 11 Cush. 532; Nickerson v. Buck, 12 id. 332; Tilden v. Tilden, 13 Gray, 110. And the same principle has been recognized in other States where the statutory requirement is attestation only, with no suggestion as to publication. Canada's Appeal. Opinion by Pardee, J.

MAINE SUPREME JUDICIAL COURT ABSTRACT.*

CONSTITUTIONAL LAW STATUTE GIVING PRISON OFFICER POWER TO EXTEND TIME OF PUNISHMENT VOID LIABILITY OF OFFICER FOR ACTS UNDER VOID

LAW.(1) Section 40 of chapter 140 of Revised Statutes of Maine, which provides that no convict shall be discharged from the State prison until he has remained the full term for which he was sentenced, excluding the time he may have been in solitary confinement for any violation of the rules and regulations of the prison, is in derogation of the constitutional provision that a man shall not be deprived of his liberty without due process of law, and is for that reason unconstitutional and void. The common law requires that the punishment of persons convicted of crime shall be definite and certain. Præmunire was an exception, as for that offense a convict could be imprisoned during the pleasure of the King. The sentence must inform the convict as to the kind and duration of his imprisonment. Washburn v. Belknap, 3 Conn. 502; Republic v. De Longchamps, 1 Dall. 120; Yates v. The People, 6 Johns. 337; Rex v. Hall, 3 Burr. 1637. If this statute is constitutional, then there can be no definite sentences awarded. The will of the warden would in effect control the maximum duration. It is plainly to be seen, that in this way, the warden could extend a punishment indefinitely. In Commonwealth v. Halloway, 42 Penn. St. 446, it was held that a law like this one was unconstitutional "as interfering with the judgments of the judiciary." See, also, State v. Gurney, 37 Me. 156; Lord v. State, id. 177; Jones v. Robbins, 8 Gray, 329; Portland v. Bangor, 65 Me. 120. (2) In an action by a convict against the warden of the prison for such over-detention, actual (but not punitive) damages are recoverable, notwithstanding the statute has never before been judicially declared to be unconstitutional. Gross v. Rice. Opinion by Peters, J. [Decided June 15, 1880.]

DEFINITION SCHOOL-HOUSE PUBLIC PLACE.Where the officer, in his return, states that a schoolhouse," on which he posted a notice of sale, is a public place, it is sufficient evidence of that fact. A shoemaker's shop was held to be a public place in Tidd v. Smith, 3 N. II. 179. So a school-house, mill and mechanic's shop may be properly regarded as public places, as was held in Russell v Dyer, 40 id. 173. Wilson v. Bucknam. Opinion by Appleton, C. J. [Decided Dec. 27, 1880.]

* To appear in 71 Maine Reports.

DURESS OF GOODS-REFUSAL TO PAY DEBT DUE ONE PECUNIARILY EMBARRASSED, NOT. - Defendants were indebted to plaintiff, but refused to pay unless plaintiff would accept less than the amount due, in full payment, defendants knowing that plaintiff was financially embarrassed and must have the money to save him from ruin. Plaintiff accepted the sum tendered as payment in full. Held, not a duress of goods invalidating the consent of plaintiff. Distinguishing Vyne v. Glenn, 41 Mich. 112. The leading case involving duress of goods is Astley v. Reynolds, 2 Strange, 515. The plaintiff had pledged goods for £20, and when he offered to redeem them, the pawnbroker refused to surrender them unless he was paid £10 for interest. The plaintiff submitted to the exaction, but was held entitled to recover back all that had been unlawfully demanded and taken. "This," say the court, "is a payment by compulsion; the plaintiff might have such an immediate want of his goods that an action of trover would not do his business; where the rule volenti non fit injuria is applied, it must be when the party had his freedom of exercising his will, which this man had not; we must take it he paid the money relying on his legal remedy to get it back again." The principle of this case was approved in Smith v. Bromley, Doug. 695, and also in Ashmore v. Wainwright, 2 Q. B. 837. The latter was a suit to recover back excessive charges paid to common carriers who refused, until payment was made, to deliver the goods for the carriage of which the charges were made. There has never been any doubt but recovery could be had under such circumstances. Harmony v. Bingham, 12 N. Y. 99. The case is like it of one having securities in his hands which he refuses to surrender until illegal commissions are paid. Scholey v. Mumford, 60 N. Y. 498. So if illegal tolls are demanded, for passing a raft of lumber, and the owner pays them to liberate his raft, he may recover back what he pays. Chase v. Dwinal, 7 Me. 134. Other cases in support of the same principle are Shaw v. Woodcock, 7 B. & C. 73; Nelson v. Suddarth, 1 H. & Munf. 350; White v. Heylman, 34 Penn. St. 142; Sasportas v. Jennings, 1 Bay, 470; Collins v Westbury, 2 id. 211; Crawford v. Cato, 22 Ga. 594. So one may recover back money which he pays to release his goods from an attachment which is sued out with knowledge on the part of the plaintiff that he has no cause of action. Chandler v. Sanger, 114 Mass. 364. See Spaids v. Barrett, 57 Ill. 289. Nor is the principle confined to payments made to recover goods; it applies equally well when money is extorted as a condition to the exercise by the party of any other legal right; for example when a corporation refuses to suffer a lawful transfer of stock till the exaction is submitted to (Bates v. Insurance Co., 3 Johns. Cas. 232); or a creditor withholds his certificate from a bankrupt. Smith v. Bromley, Doug. 695. And the mere threat to employ colorable legal authority to compel payment of an unfounded claim is such duress as will support an action to recover back what it paid under it. Beckwith v. Frisbie, 32 Vt. 559; Adams v. Reeves, 68 N. C. 134; Briggs v. Lewiston, 29 Me. 472; Grim v. School District, 57 Penn. St. 433; First Nat. Bank v. Watkins, 21 Mich. 483. But where the party threatens nothing which he has not a legal right to perform there is no duress. Skeate v. Beale, 11 Ad. & El. 983; Preston v. Boston, 12 Pick. 14. When therefore a judgment creditor threatens to levy his execution on the debtor's goods, and under fear of the levy the debtor executes and delivers a note for the amount, with sureties, the note cannot be avoided for duress. Wilcox v. Howland, 23 Pick. 167. See, also, Atlee v. Bachhouse, 3 M. & W. 633; Hall v. Schultz, 4 Johns. 240; Silliman v.

MORTGAGE - EVIDENCE REQUIRED TO SHOW APPARENT DEED MORTGAGE, -The natural and prima facie effect of a conveyance expressing no condition, and regularly executed in the presence of attesting witnesses and duly acknowledged as an absolute deed, ought not to be controlled and qualified by oral evidence, and brought down to the effect due to a mere security, on a slight showing. The great current of authority is distinct in holding that the party thus seeking to modify the operation of the instrument and prove himself entitled against the terms of his own deed to an equity of redemption, is not only bound to make out that the transaction was in truth and justice nothing more than the giving of security, but is required to do so by a force of evidence sufficient to command the unhesitating assent of every reasonable mind. Unless the testimony, say the Supreme Court of the United States, is entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. Howland v. Blake, 97 U. S. 624; Haines v. Thomson, 70 Penn. St. 434. And many cases use much stronger language. Bingham v. Thompson, 4 Nev. 224; Zuver v. Lyons, 40 Iowa, 510; Schade v. Bassinger, 3 Neb. 140; Stall v. City of Cincinnati, 16 Ohio St. 169; Haynes v. Swann, 6 Heisk. 560; Campbell v. Dearborn, 109 Mass. 130. Tilden v. Streeter. Opinion by Graves, J.

MARYLAND COURT OF APPEALS AB

STRACT.*

VOID

NOT

BUT

DEED CERTIFICATE OF ACKNOWLEDGMENT CONCLUSIVE BY ONE NON COMPOS- NOT VOIDABLE, AND EJECTMENT WILL NOT LIE TO SET ASIDE. -The certificate of acknowledgment is not conclusive of the fact that a deed was actually signed and sealed by the grantor; the execution of a deed consists of acts of the party making the deed and who is affected by it. Carrico v. Farmers & Merch. Nat. Bk., 33 Md. 245. A deed of bargain and sale of real estate for a valuable consideration, duly acknowledged and recorded, is voidable only, and not absolutely void, by reason of the fact that the grantor was non compos mentis at the time it was executed. Key v. Davis, 1 Md. 32; Chew v. Bank of Baltimore, 14 id. 299; Wait v. Maxwell, 5 Pick. 217; Jackson v. Gumaer, 2 Cow. 552; Breckenridge v. Ormsby, 1 J. J. Marsh. 236; Thompson v. Leach, Carth. 435. Such a deed may be avoided by the heirs-at-law of the grantor; but they cannot do this at law in an action of ejectment, where possession under it has been held for a long period, and permanent improvements have been made upon the land by a bona fide possessor; they must assail it by a direct proceeding in equity, where the equities of the parties can be properly adjusted. See Jones v. Jones, 4 Gill. 87; McLaughlin v. Barnum, 31 Md. 453. Evans v. Horan. Opinion by Miller, J.

DIVORCE EVIDENCE OF ADULTERY DELAY AND DEED OF SEPARATION NOT BAR AGREEMENT BY HUSBAND TO SUPPORT ENFORCEABLE AFTER DIVORCE.—(1) Direct proof of adultery, that is, evidence of eye-witnesses, is not required, for such is the nature of the offense, and the secret and clandestine manner in which it is committed, that such proof is in most cases unattainable; yet where it is sought to be inferred from circumstances, they must lead to the conclusion of guilt by fair and necessary inference. Loveden v. Loveden, 2 Hagg. Con. 24. (2) A husband discovered that his wife was guilty of adultery and refused to live with her as his wife any longer. A deed of separation

* Appearing in 52 Maryland Reports.

was made, in which he covenanted with her father to pay a specific sum for her support, the father agreeing to save him harmless from her debts. Three years and a half thereafter he filed a bill for divorce. Held, that neither the lapse of time, nor the deed of separation, nor both, constituted a bar to a divorce. Ferres v. Ferres, 1 Hag. Con. 130; D'Aquilar v. D'Aquilar, 1 Hag. Eccl. 773; Cood v. Cood, 1 Curteis Ec. 755; J. G. v. H. G., 33 Md. 401; Matthews v. Matthews, 1 Sw. & Tr. 161. (3) Held, further, that a decree of divorce a vincula matrimonii, in favor of the husband would not avoid the agreement in the deed of separation, to pay for the wife's support, but such agreement could be enforced against him. Elworthy v. Bird, 2 Sim. & St. 372; Seeling v. Crawley, 2 Vern. 286; Stevens v. Olive, 2 B. C. C. 90; Seagrave v. Seagrave, 13 Ves. 439; Charlesworth v. Holt, 29 L. T. Rep. (N. S.) 647. Kremelberg v. Kremelberg. Opinion by Robinson, J.

FALSE REPRESENTATION-WHAT NECESSARY TO SUSTAIN ACTION FOR.- - Whenever one person makes a false representation, knowing it to be false, with intent to induce another to enter into a contract, which, but for such representation, he would not have entered into, and he is thereby damnified, a case of fraud is made out, and an action will lie. The representation to be material must be in respect of an ascertainable fact, as distinguishable from a mere matter of opinion. A representation which merely amounts to a statement of opinion, judgment, or expectation, or is vague and indefinite in its nature and terms, or is merely a loose conjecture or exaggerated statement, is not sufficient to support an action. And for the reason that such indefinite representations ought to put the person to whom they are made upon the inquiry, and if he chooses to put faith in such statements, and abstained from inquiry, he has no reason to complain. Jennings v. Broughton, 5 De M. & G. 134; Higgins v. Samels, 2 John. & Hem. 464; Leyland v. Illingworth, 2 De F. & J. 248; Haycraft v. Crease, 2 East, 92; Drysdale v. Mace, 5 De M. & G. 107; Denton v. Macneal, L. R., 2 Eq. 352; Kisch v. Central R. Co. of Venezuela, 3 De J. & S. 122. Buschman v. Codd. Opinion by Robinson, J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

MARRIED WOMAN WILL BY, BEFORE MARRIAGE WHEN EQUITY WILL ENFORCE PROVISIONS OF. — A single woman intending to marry, on the day before her marriage made her will. Her intended husband had knowledge of her act and consented to and approved of it. About that time he made a verbal contract with her by which she was, after marriage, to have the power to "dispose of her fortune by will or otherwise," in any way she pleased. By the statute of Pennsylvania "a will executed by a single woman shall be deemed revoked by her subsequent marriage." This law was not known to her, and not adverted to by her counsel, called in by her to give his advice and prepare the instrument, and it was not intended by her that her marriage should have the effect of invalidating the will, and the intended husband knew that the purpose of the will was to carry out the agreement made between him and her. Held, that the husband would not be allowed, on her decease, to take advantage of the provisions of the statute, but that equity would interfere to carry out the intention of the parties to the antenuptial contract as contained in the provisions of the will. In such a case, to prevent injustice, two principles of equity are applied. One of these principles is, that whatever a chancellor on the facts of a case would have decreed to be done, the courts will consider as having been actually done. Another is, that whenever a person has the legal right to dispose of property, and meaus to do so, the form of the in

the obligation, pays a debt in whole or in part, in the absence of evidence to the contrary, he becomes by implication a purchaser of the debt to the extent of his payment. In Lithcap v. Wilt, 4 Phila. Rep. 64, it was held that "the essential difference between the purchase of a debt and the payment of it, depends upon the intention of the parties at the time; but the payment by a stranger to the obligation of the debt, or by one whose liability was secondary, is prima facie a purchase." In Wilson v. Murphy, 1 Phila. 106, the court say "there is no doubt that a mortgage may be kept alive even after payment in full, if such was the intention of the parties, and even though there be no actual assignment to a trustee, equity will consider that as one which was agreed to be done, and not suffer the trust to fail for want of a trustee." In McCall v. Senex, 9 S. & R. 304, Tilghman, C. J., says: "An assignment of the debt carries with it the benefit of the mortgage, although the mortgage be not specifically assigned. From the moment the debt is assigned the mortgagee becomes the trustee of the assignee." See, also, Wistar's Lessee v. Moulin, 2 Barr. 969. In Johnson v. Hart, 3 Johns. Cas. 329, Kent, J., said: "When the note, to secure which the mortgage was given, was negotiated, the interest in the mortgage, which was given for no other purpose than to secure that note, passed, of course. It required no writing, no assignment on the back of the mortgage." * * * "Whoever was owner of the debt was likewise owner of the security." In Rickert v. Madeira, 1 Rawle, 328, Rodgers, J., says: "Whatever will give the money secured by the mortgage will carry the mortgaged premises along with it. The forgiving the debt, although by parol, will draw the land after it as a consequence.' It has been many times decided that a mortgage may be transferred by parol, and that when given to secure notes payable to bearer, the holder is the equitable owner of the mortgage. Whoever pays the debt for the mortgagor is the equitable owner of the mortgage. See 1 Hilliard on Mort. 243, 253. Brice's Appeal. Opinion by Green, J.

[Decided Oct. 4, 1880.]

STATUTE OF FRAUDS-CONTRACT FOR SALE OF STANDING TIMBER — WHEN EQUITY WILL ENFORCE VERBAL AGREEMENTS AS TO LAND. - A contract for standing timber on a tract of land, to be taken off at the discretion of the purchaser as to time, is an interest in land, within the meaning of the statute of frauds, the transmission of which must be in writing. Patterson's Appeal, 11 P. F. Smith, 294. In that case Thompson, C. J., says, the announcement that the timber growing on a man's land might be held by a contract in parol while the soil itself can only be legally transmitted by a written instrument, would strike even the unprofessional mind with surprise. The rigid requirements of the statute have, however, been so far relaxed by courts of equity that effect is sometimes given to verbal agreements for an estate or interest in land; but it is only in cases where the contract, in all its essential parts, is established by clear and unequivocal proof, and where it has been so far executed that it would be unjust and inequitable to rescind it; and this is done in order that the statute itself may not become an instrument of fraud. Hazlett v. Hazlett, 6 Watts, 464; Woods v. Farmere, 10 id. 195; Moore v. Small, 7 Harris, 461; Hart v. Carroll, 4 Norris, 508. To take a case of parol sale out of the statute, the terms of the contract, the land which forms its subject-matter, the

nature and extent of the interest to be acquired therein, the consideration to be paid, etc., must all be fully and satisfactorily shown. Exclusive possession, taken and kept up in pursuance of the contract, is an indispensable ingredient in every case. Hence it is that there cannot be a valid parol sale of land by one tenant in common to his co-tenant in possession. Spencer and Newbold's Appeal, 30 P. F. Smith, 317. Bowers v. Bowers. Opinion by Sterrett, J. [Decided Nov. 1, 1880.]

RECENT ENGLISH DECISIONS.

DEFINITION MEANING OF BEER-HOUSE.- Where a word contained in a written instrument has an ordinary popular signification, evidence will not be admitted to show that it has a special technical signification, until the court is satisfied that the word was not used in the instrument in its ordinary, popular signification. The word "beer-house," according to the ordinary signification, is a house where beer is sold and consumed on the premises. Held, therefore, that a covenant not to use certain premises as "a public house, tavern, or beer-house," was not broken by selling on the premises, under a grocer's off license, beer to be consumed off the premises. See Bishop of St. Albans v. Battersby, 38 L. T. Rep. (N. S.) 685; London, etc., Land Co. v. Field, W. N. 1881, p. 11; London & N. W. R. Co. v. Garnett, 21 L. T. Rep. (N. S.) 352; Chanc. Div., Feb. 23, 1881. Holt & Co. v. Collyer. Opinion by Fry, J., 44 L. T. Rep. (N. S.) 214.

INTERNATIONAL LAW JURISDICTION OVER FOREIGN SOVEREIGN. - A foreign sovereign or State is exempted by international law, founded upon the comity of nations, from the jurisdiction of the tribunals of this country, and therefore an action is not maintainable in our courts against a foreign sovereign or estate. The only exceptions to this rule are: 1. Where a foreign sovereign or State has waived the privilege he possesses, and has come into the municipal courts of this country to obtain relief, in which case the defendant may assert any claim he has by way of cross-action or counterclaim to the original action in order that justice may be done. 2. Where there are moneys in the hands of third parties within the jurisdiction of the English courts, to which a claim is set up by a foreign sovereign, notice of an action against the third parties in relation to those moneys may be given to the foreign sovereign, that he may have an opportunity of putting forward his claim. Ct. of App., Nov. 17, 1880. Strousberg v. Republic of Costa Rica. Opinion by Jessel, M. R., James & Lush L. JJ., 44 L. T. Rep. (N. S.) 199.

SLANDER-PRIVILEGE. - To an action for slander the defendant stated in defense that the words were spoken upon his examination on oath before a select committee of the House of Commons, which had been appointed by the House to inquire and report upon certain circumstances connected with the plaintiff, power being given to the committee to send for persons, papers and records. Held, on demurrer, that this was a good answer to the action. Seaman v. Netherclift, L. R., 2 C. P. Div. 53; Dawkins v. Lord Rokeby, L. R., 7 H. L. 744. Q. B. Div., Feb. 25, 1881. Goffen v. Donnelly. Opinions by Field and Manisty, JJ., 44 L. T. Rep. (N. S.) 141.

STATUTE OF LIMITATIONS ACKNOWLEDGMENT TAKING DEBT OUT OF. —T. S. devised land to his wife for life, remainder to his two sons, T. and J.. as tenants in common in fee. The widow died in 1833. T. then entered into possession of the whole, and received all the rents and profits till 1864. From that time till 1877 he regularly paid one-half the rents to J. or his mortgagee. In 1877 T. died, his son, who succeeded him,

continued this payment till 1878, then refused to do so any longer. The devisee of J. and the mortgagee brought an action for partition. The defendant pleaded the statute of limitations as having acquired an indefeasible estate before 1864. Held, that the acknowledgment was sufficient to take the case out of the statute though made after twenty years' possession. Stansfield v. Hobson, 20 L. T. Rep. 106. Ch. Div., Feb. 12, 1881. Sanders v. Sanders. Opinion by Bacon, V. C., 44 L. T. Rep. (N. S.) 171.

THE VALUE OF THE HUMAN BODY AND BONES.

LE

[CONTINUED FROM PAGE 437.]

EGS have often been considered by juries and judges. We will submit to our readers the values at which these nether limbs have been held in England, New York, Massachusetts, and Canada-cases of men's legs, women's legs (we trust the printer will put these words in nonpareil type), and a baby's leg. Sharp boys and girls of the Lord Macaulay style can then readily find the probable value of their own legs by simple proportion. A New York court agreed with a jury in considering $12,000 not too much for Mr. Rockwell, who, through an injury, was confined to bed for six weeks (suffering great pain), and unable to attend to business for several months, and was left permanently lame, after having paid from $1,200 to $1,500 for doctor's fees and such extravagances. Rockwell v. Third Avenue Ry., 64 Barb. (N. Y.) 438. Apparently the value of lower limbs has gone up in the New York market, for some time since it was held that even $6,000 was not an excessive sum to give for a broken leg which got well (to be sure) in about eight months; but the defendants got a new trial, to enable them to persuade the jurymen that such was a fancy price. Clapp v. Hudson Ry., 19 Barb. 461. In Wyoming $10,000 was considered by the court to be an excessive compensation for a compound fracture of a leg. U. P. Ry. v. House, 1 Wy. Ter. 27. And even in Iowa, where $4,000 had been given for a broken leg, the court reduced the sum to $2,500. Lombard v. Ch., etc., Ry., 47 Iowa, 494.

In Ontario, some twenty-five years ago, a jury gave one Batchelor £6,178 118. 7d. for the loss of a leg (and a few other hurts); "that precious leg of Miss Kilmanseg that was the talk of 'Change-the Alley-the Bank and with men of scientific rank, made as much stir as a fossil shank of a lizard coeval with Adam," could not

have been much more valuable than the twelve jurors thought this. But the court said that it did not appear to them that the jury had exercised that sound and reasonable discretion, in awarding such heavy damages as the law requires of them. And so a new trial was granted; but only upon payment by the guilty party of £500 into court, which sum Batchelor was to be at liberty to take out, without prejudice to his claim for damages ultra at another trial. Their lordships were careful to say that they did not consider £500 sufficient to cover the damages sustained; in other words they deemed a leg worth more than $2,000. Batchelor v. B. & B. Ry., 5 C. P. 127. In 1873 a butcher, earning $50 a month, fell into a culvert made by the Great Western Railway in the highway, and broke his leg in two places. In consequence he was obliged to keep his bed

for four months and was hobbling about on crutches at the trial-six months after the accident. The leg was permanently shortened, and the doctor's bill proportionately long. The verdict was $2,000; and Richards, C. J., on an application for a new trial, said, "on the whole, we cannot say the damages, $2,000, are so excessive as to justify our setting aside the verdict on that ground;" and the judges did not set it aside on any ground. Fairbanks v. G. W. R., 35 U. C. R. 523.