ance, which under the statute was void, and there- damages by lightning. "Franklin Lightning-Rod Works, 723 Seventh street, St. Louis, Mo. [Large engraving.] 'Having, through our agent, B. P. Parmer, erected in good order their improved Franklin lightning-rod on the following described buildings, viz.: One farm barn belonging to J. C. Haven, and situated on the south-west quarter of the north-west quarter of section 35, town 81, range 36, county of Audubon, and State of Iowa, this fifteenth day of August, 1876, an existing statute; the Legislature repealed such statute, and subsequently this repealer was itself repealed; the question was, whether the culprit could be punished under the original act so revived. The decision was in favor of this exercise of the legislative "Policy of protection, security, and indemnity against power, and the criminal was accordingly punished under the act so resuscitated. In that case, as in the present one, there was a period during which the crime could not have been punished under any law, and there seems to be nothing more than a phantastical distinction to be drawn between the revival of a right to prosecute, when such right has been suspended by the revocation of the statute in which it is inherent, and when such effect has been the result of lapse of time under a statute of limitations. In either event, in my judgment, the right to prosecute may be thus restored. In addition to the foregoing considerations, it is to be remembered that the finding of an uncertainty with respect to the subject under consideration, is to resolve the question involved against the defendant. The power of the Legislature cannot be circumscribed except upon sure grounds. Such is the familiar rule of construction. Neither should it escape observation, that to extend the constitutional clause in question so as to embrace the present case, would be to extend it indefinitely; the prohibition would have nothing like settled boundaries; the entire matter would be thrown into confusion. And if it be said that the legislative power exercised in this case is liable to be much abused to the oppression of the citizen, the answer is that this is an imperfection necessarily inherent in all delegations of the law-making prerogative. Touching the second point raised in the brief of the counsel of the defendant, that the act of limitation had the operation of a pardon of the crimes antecedently committed by the defendant, I think it sufficient to say, that nothing is perceived in this statute which will sustain such a construction. The design of the law is to protect the innocent, and not to absolve the guilty. The bar against prosecution established by it can be taken advantage of by both of such classes of persons, and consequently there is no induction to be derived from the purpose to be accomplished, of an intent to condone an offense. Such a force has never heretofore been supposed to be lodged in such laws. I have not been able to see any plausibility in this contention. I conclude with the remark that all the authorities cited in the brief of the defendants' counsel have been carefully examined, and that it is not conceived that any of them are in opposition to the views above expressed. My conclusion is, that the ruling of the trial judge was correct. Van Syckel, J., concurred; Dixon, J., dissented. GUARANTY BY LIGHTNING-ROD DEALER IOWA SUPREME COURT, DECEMBER 7, 1880. surance. ACTION commenced before a justice of the peace out a promissory note. Upon an appeal to the Circuit Court the plaintiffs obtained judgment. Bell, Nichols & Stotts, for appellant. H. W. Hanna, for appellees. SEEVERS, J. The defendant pleaded the note sued on was executed in consideration of a policy of insur "We hereby guaranty that the said rods will protect said buildings or building from all damages by lightning for the term of five years, commencing at noon (12 o'clock) of above date; and said Cole Bro. & Hart hereby agree to make good unto the said J. C. Haven, his, her, or their heirs, assigns, or administrators, all such immediate loss or damage as may occur by lightning communicated directly to said building, and not by or through any intermediate or contiguous building, to an amount not to exceed $500. The said loss or damage by lightning is to be estimated by the cash value of the property at the time the same shall occur, and to be paid within 90 days after notice and clear proof thereof is made to Cole Bro. & Hart, by the above J. C. Haven, that said damages were caused by lightning, and that said rods were in good repair at the time of the accident." The amount in controversy being less than $100, the trial judge has certified but a single question upon which it is desirable to have the opinion of the Supreme Court. It is as follows: "The note in suit being given for lightning-rods erected by plaintiff for defendant on his barn, and the written contract of guaranty, indemnity or insurance (whichever it may be called), which is set up in defendant's answer, having been executed by plaintiffs to defendant as a part of the samo transaction or contract on the sale of the rods, does the said contract of guaranty, indemnity, or insurance constitute such an illegal consideration as will defeat the recovery on the note, it being shown in evidence that the plaintiff had never complied with the laws of the State of Iowa in relation to insurance companies?" Other questions have been discussed by counsel for the appellant, but we can only consider the one certified. Whether what is claimed to be a policy of insurance is such in fact, was somewhat considered, but not determined, in Cook v. Weirman, 51 Iowa, 561. We think the contract is one of guaranty and not insurance. If one is employed to watch a building he may agree, in consideration of such employment, that he will pay therefor if it burns down through his negligence. In fact the agreement to pay might be absolute and unconditional. This would not be a contract of insurance but a guaranty. So one may sell goods and agree that the purchaser will receive certain-named benefits or advantages. Such a contract would be a guaranty or warranty and not a contract of insurance. The plaintiff "guaranteed" the lightning-rods would protect the building from all damage by lightning, and if they failed in so doing the plaintiff would pay a certain specified amount. Such a contract could be lawfully made, and the note is not without consideration. Affirmed. NEW YORK COURT OF APPEALS ABSTRACT. INSURANCE-FIRE POLICY-EVIDENCE AS TO VALUESTIPULATION AS TO USE OF BUILDING VACANCYNOTICE OF NON-OCCUPANCY.-(1) In an action to recover for the loss of plaintiff's dwelling-house which was insured by defendant, it was shown that the house was insured for $7,000 and a barn for $2,000, the defend ant promising in the policy to pay assured all such loss or damage not exceeding $9,000 as shall happen by fire to the property, to be estimated according to the actual cash value of the property at the time the fire shall happen." By another section of the policy it was provided that the cash value of the property should in "no case exceed what would be the cost to the assured at the time of the fire of replacing the same." The complaint claimed the $7,000 as due: the answer set up that the dwelling-house was worth only $3,000. Upon the trial the testimony of a carpenter and builder, an architect, a real estate agent, who had appraised buildings, etc., all of whom knew the house, was offered to show what it would cost to build such a house in the location at the time of the fire. Held, that the testimony was admissible. (2) In the application for insurance there was, among other questions in regard to the building, this: "For what purpose used? state fully." The answer was, "Dwelling." The house was at that time vacant. Held, not a misrepresentation. The answer was descriptive not of present occupation or actual use, but of the class or character of the building. (3) The answer set up that plaintiff at the time of the fire used the first story of the building as a depository of straw for which no premium was paid for the additional risk, but no breach of warranty was set up as to occupation of the house. Held, that the cases of Alexander v. Germania Ins. Co., 66 N. Y. 464, and Ashworth v. Builders Ins. Co., 112 Mass. 422, did not apply. but that the case was within Browning v. Home Ins. Co., 71 N. Y. 508; Cumberland Valley Ins. Co. v. Douglass, 58 Penn. St. 419, where it is held that calling the premises a dwelling-house is a description of the subject, not a stipulation, and is no engagement that they are occupied. (4) In this case at the time of the insurance, defendant was informed that the premises were unoccupied, and with that knowledge accepted the premium and issued the policies. Held, that the defendant could not be permitted to say that it never assumed the risk. Van Schoick v. Niagara Ins. Co., 68 N. Y. 434; Cone v. Niagara Ins. Co., 3 T. & C. 33; S. C., 60 N. Y. 619. The stipulation requiring notice of non-occupancy and indorsement under such circumstances is waived. There is no inconsistency between this result and the cases Chase v. Hamilton Ins. Co., 20 N. Y. 52; Alexander v. Germania Ins. Co., 66 id. 464; Walsh v. Hartford Ins. Co., 73 id. 5. Judgment affirmed. Woodruff v. Imperial Fire Insurance Co., appellant. Opinion by Danforth, J. [Decided Dec. 7, 1880.] MUNICIPAL CORPORATION - LIABLE FOR MONEY, TAKEN BY IT UNDER INVALID ASSESSMENT AND APPLIED TO PAY BONDS ISSUED TO ANTICIPATE SUCH ASSESSMENT.-In an action against the town of New Lots, for money had and received by defendant to the use of plaintiff, the complaint alleged that there was a sum of money belonging to plaintiff in the official custody of the county clerk of Kings county. This money was the surplus arising upon the foreclosure of a mortgage upon certain lands in the town of New Lots, devised to the plaintiff, which mortgage was laid upon such lands by plaintiff's devisor, and foreclosed after his death. An assessment had been in form laid upon these lands to pay for a local improvement, by which they were supposed to be benefited, under Laws 1869, chapter 217, section 4, and 1870, chapter 619, section 3, which acts were declared unconstitutional and void, and the assessment of no validity or effect. Stuart v. Palmer, 74 N. Y. 183. The board of supervisors of Kings county, believing the acts valid, levied a tax upon the premises to pay the assessment, and issued a warrant for its collection to the collector of New Lots. He levied upon and took the money from the custody of the clerk and paid it to the county treasurer of Kings, to the credit of the town of New Lots, on account of the assessment. In the progress of the improvements named, and under authority of the acts mentioned, bonds of the town of New Lots were issued to pay for the improvements, in anticipation of the collection of the assessments, which were alleged to be valid obligations against the town, and the money paid to the county treasurer was applied to the payment of these bonds. It was not averred how or by whom the money was thus applied. It was also alleged that the town of New Lots had wrongfully taken and received, without the knowledge or consent of plaintiff, the money mentioned, the property of plaintiff, and neglected to pay the same to plaintiff. Held, that a demurrer to the complaint, on the ground that it did not show a cause of action against defendant, could not be sustained. The invalidity of this assessment was so clear that a suit in equity to vacate it as a cloud upon the title could not be maintained. The cases where there must first be a vacating of the assessment to recover back the money paid on it (Peyser v. Mayor, 70 N. Y. 497; in re Lima, 77 id. 170; Wilkes v. Mayor of N. Y., 79 id. 621), are those where the invalidity is latent and does not appear upon the proof that must be made to sustain proceedings under such assessments. Marsh v. City of Brooklyn, 59 N. Y. 280. The fact that the town was an enforced agent in the matter of issuing the bonds and paying the assessment would not relieve it from liability. Marsh v. Little Valley, 64 N. Y. 112. The Legislature had power to direct the improvement and put the burden of providing for it upon the town (People v. Flagg. 46 N. Y. 401), and a contract made under lawful power is not avoided by the illegality of provisions in the same act for the levying of an assessment. Moore v. Mayor of N. Y., 73 N. Y. 238. The averment that the town took and received the money and applied it to its own use, taken with the other averments, constituted an allegation that the town received the money, and with it made payment of its bonds, which were town charges, and for which it was liable, and thus a liability on the part of the town arose. See City of Rochester v. Town of Rush, Ct. App., March, 1880; Hathaway v. Cinciunatus, 62 N. Y. 434; Gould v. Oneonta, 71 id. 298; Supervisors of Dutchess v. Sisson, 24 Wend. 387; People v. Hawkins, 46 N. Y. 9. Judgment reversed. Horn, appellant, v. Town of New Lots. Opinion by Folger, C. J. [Decided Dec. 1, 1880.] It PARTNERSHIP-LAWS 1833, CHAPTER 281, FORBIDDING FICTITIOUS PARTNERSHIPS-ACTION-SUCCESSIVE ON DIFFERENT ITEMS OF ACCOUNT.-(1) The statute (Laws 1833, chap. 281) providing that "no person shall transact business in the name of a partner not interested in his firm, and when the designation ‘and company' or '& Co.' is used, it shall represent an actual partner or partners," is not violated when the words "& Co." represent the wife of the person whose name appears as the head of the firm. The provision in question is highly penal and will not be extended. was intended to prevent the use of the name of a person not interested in a firm and thus inducing a false credit to which it was not entitled. Wood v. Erie R. Co., 72 N. Y. 196, 198. It does not appy to and is not intended to include the use of a real name of an actual partner even though such partner was under a disability at the time. The use, therefore, of the name of a feme covert, an infant, or person of unsound mind as one of the firm, when there was no intention to impose upon the public by obtaining undue credit, cannot be regarded as a violation of either the letter or the spirit of the statute. (2) Goods sold at various times were sold upon each occasion upon a credit of four months. Held, that each sale was separate and distinct, and a cause of action accrued when the time of credit expired and as the several amounts became due. The different sales did not constitute one entire and indivisible demand, and the plaintiff could bring separate action, for each separate sale or for all of them together as he saw fit. The different demands were like several promissory notes or several distinct trespasses, and in the nature of separate and distinct transactions for each of which a separate action might be brought. Secor v. Sturgis, 16 N. Y. 548; Staples v. Goodrich, 21 Barb. 317. The rendering of an account containing all the items would not change the nature of the transaction. Judgment affirmed. Zimmerman et al. v Erhard et al., appellants. Opinion by Miller, J. [Decided Dec. 1, 1880.] UNITED STATES SUPREME COURT ABSTRACT. CONSTITUTIONAL LAW-COURT OF CLAIMS — - TRIAL WITHOUT JURY. - The provision in the Court of Claims Act of March 3, 1863, authorizing that court, without the intervention of a jury, to hear and determine claims against the government, and also any set-off, counter-claim, claim for damages, or other demand asserted by the government against the claimant, does not violate the seventh amendment of the National Constitution. Suits against the government in the Court of Claims, whether reference be had to the claimant's demand, or to the defense, or to any set-off, or counter-claim which the government may assert, are not controlled by the seventh amendment. They are not suits at common law within its true meaning. The government cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. Congress, by the act in question, informs the claimant that if he avails himself of the privilege of suing the government in the special court organized for that purpose, he may be met with a set-off, counter-claim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judgment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the government to the exercise of the privilege. Judgment of Court of Claims affirmed. McElrath, appellant, v. United States. Opinion by Harlan, J. [Decided Dec. 13, 1880.] PLEADING-- WHAT BILL TO SET ASIDE JUDGMENT OR PATENT MUST SHOW-A bill in chancery to set aside a judgment or decree of a court of competent jurisdiction on the ground of fraud, must set out distinctly the particulars of the fraud, the names of the parties who were engaged in it, and the manner in which the court or the party injured was misled or imposed on. So, also, a bill to set aside or annul a patent of the United States for public lands, or to correct such a patent on account of fraud or mistake, must show, by like averments, the particulars of the fraud and the character of the mistake and how it occurred. Marquez v. Frisbie, 101 U. S. 476. Decree of United States Circuit Court, California, affirmed. United States, appellant, v. Atherton. Opinion by Miller, J. PROPERTY UNDER STATUTE. (1) The State has the right, by legislation, to protect fish in rivers and streams not navigable. Shoemaker v. State, Spenc. 153. Parker, C. J., in Commonwealth v. Chapin, 5 Pick. 199, says: "The common-law right of several fishery in the owners of lands bordering on rivers not navigable, is subject to a reasonable qualification, in order to protect the rights of others, who, in virtue of owning the soil, have the same right, but might lose all advantage from it if their neighbors below them, on a stream or river, might, with impunity, wholly impede the passage of fish into the lakes or ponds, where they, by instinct, prepare for the multiplication of the species. The restriction is founded upon that universal principle of every just code of laws, "Sic utere tuo, ut alienum non ladas." Shaw, C. J., says: "It seems to be well settled that the obstruction of the passage of the annual migratory fish through the waters and streams of the Commonwealth is not an indictable offense at common law; but the right to have these fish pass up rivers and streams, to the head waters thereof, is a public right, and subject to regulation by the Legislature." Commonwealth v. Essex Co., 13 Gray, 247; Holyoke Co. v. Lyman, 15 Wall. 500. (2) A fish warden for a county, appointed by the governor, under a State statute giving him authority, has the right to enter on lands and destroy a fish-basket, constructed in violation of the statute, and the materials of which it is composed, so that it may not be again used; and such materials may be forfeited to the State. The question whether the destruction of private property for public purposes is a taking for public use, within the meaning of the constitutional prohibition of such taking without compensation, has been elaborately discussed in American Print Works v. Lawrence, 1 Zab. 248; Hale v. Lawrence, id. 714; S. C., 3 id. 590, in cases where buildings were destroyed by public officers, to prevent the spread of a conflagration. In Wynebruner v. People, 13 N. Y. 378, in reference to intoxicating liquors, and in Phelps v. Racey, 50 id. 292, as to game birds, of kinds specified. As a deduction from that case it may be said, that after a statute has declared an invasion of a public right to be a nuisance, which may be abated by the destruction of the object used to effect it, the person who, with actual or constructive notice of the law, sets up such nuisance, cannot sue the officer whose duty it has been made, by statute, to execute its provisions. Weller v. Snover. Opinion by Scudder, J. REMOVAL OF CAUSE-EFFECT ON JURISDICTION OF STATE COURT-CONFLICT OF LAW - REMEDY FOR IMPERFECT PROCEEDINGS FOR REMOVAL. - (1) The jurisdiction of a State court over a cause is not, ipso facto, suspended by the filing of a petition and bond for the removal of the cause into the Federal court. In cases arising under the act of Congress, the question of jurisdiction rests upon this principle, if the case be one of which the Federal court has jurisdiction, under the act of Congress, upon compliance with its provisions for the removing the cause, the jurisdiction of the State court is, ipso facto, determined; but if the cause be one of which the Federal court has not jurisdiction, under the act of Congress, or the proceedings to remove it are not in compliance with tho act, the State court retains its jurisdiction, notwithstanding a petition and bond be filed for that purpose. Insurance Co. v. Pechner, 95 U. S. 183; Yuld v. Vose, 99 id.539; Mahone v. M. & L. R. R. Co., 111 Mass, 74. (2) Whether a particular cause has been removed from the State to the Federal court, by the proceedings to effect its removal, may be decided by either court; but in case of a conflict of decision, the decision of tho Federal court will prevail, and if it be ultimately decided that the Federal court had obtained jurisdiction over the cause, the proceedings in the State court, subsequent to the filing of the petition of appeal, if they be not considered void, as being coram non judice, will at least be reversed as erroneous Dill. on Remov. Caus. 75; Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Illius v. N. Y. & N. H. R. R. Co., 13 id. 597; Holden v. Putnam Co. Ins. Co., 46 id. 1; Whiton v. Chicago, etc., R. R. Co., 25 Wis. 424; Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 14 How. 23; Insurance Co. v. Dunn, 19 Wall. 214; Insurance Co. v. Morse, 20 id. 445; Amory v. Amory, 95 U. S. 186. (3) If the proceedings on the part of a defendant to remove the cause into the Federal court are so imperfect as not, in fact, to effect a removal of the cause, the suit in the State court is not stayed. pending the decision of the Federal court as to the removal of the cause. If the defendant desires to protect himself from the consequences of proceedings in the State court, pending a decision by the Federal court of the question of the removal of the cause, if in fact the decision on that subject be adverse to him, he should obtain a stay of proceedings either by certiorari or by an order of the State court to that effect. See Com. Dig., "Certiorari," G; Bac. Abr., Certiorari," G: Kingsland v. Gould, 1 Halst. 161; McWilliams v. King, 3 Vroom, 21-24. National Union Bank of Dover v. Dodge. Opinion by Depue, J. 66 SALE VENDOR AFTER DELIVERY.-Delivery of possession under a conditional contract of sale, which stipulates that the goods shall remain the property of the vendor until the contract price be paid, will not pass title to the vendee until the condition be performed. A vendor who delivers the possession of a chattel under an executory contract of sale, on condition that the property shall not pass until payment of the contract price, may forfeit his property by conduct which the law regards as fraudulent. But where the case presents no other features than that the vendor has entered into a contract of sale on credit, and has delivered the goods to the vendee, upon an agreement that they shall remain the property of the vendor until payment of the purchase-money be made, the transaction is not fraudulent per se, and the property in the goods will remain in the vendor until payment be made, without being subject to execution at the suit of creditors of the vendee, and the title of the vendor will be preferred to that of purchasers from the vendee. Shep. Touch. 118; Benj. on Sales, 222; 2 Kent's Com. 496; Smith v. Lynes, 1 Seld. 41; Carleton v. Sumner, 4 Pick. 516; Smith v. Dennie, 6 id. 262; Farlow v. Ellis, 15 Gray, 229; D'Wolf v. Babbett, 4 Mason, 289; Copland v. Bosquet, 4 Wash. C. C. 588; The Oriole, 1 Sprague, 31; Pars. on Cont. 537; Ballard v. Burgett, 40 N. Y. 314; Runyon v. Groshon, 1 Beas. 86; Broadway Bank v. McElrath, 2 id. 24; Miller v. Pancoast, 5 Dutcher, 250; Herring v. Hoppock, 15 N. Y. 409; Marston v. Baldwin, 17 Mass. 606; Blanchard v. Child, 7 Gray, 155; Porter v. Pettengill, 12 N H. 299; McFarland v. Farmer, 42 id. 386; Gaylor v. Dyer, 5 Cranch's C. C. 461; Strong v. Taylor, 2 Hill, 326, Forbes v. Marsh, 15 Conn. 384. With regard to a purchaser from a vendee in possession under a contract of sale, a distinction is observed between the vendor's right to rescind the sale for fraud and his right to resume possession where goods have been delivered under a conditional contract of sale. Where the sale is upon credit, but is absolute in terms, and the vendor intends to transfer property as well as pos session, the property passes to the vendee, by the contract of sale, leaving in the vendor only a right of rescission for fraud. He may, in that case, re-possess himself of the property, notwithstanding a levy upon it, under an execution against the vendee. Williamson v. N. J. S. R. Co., 2 Stew. 311. The title passing to the vendee, by the contract, and being vested in him until the sale be disaffirmed, an innocent purchaser for - SALE OR RETURN - WHEN TITLE REMAINS IN value may, before disaffirmance of the sale, acquire an indefeasible title, though the sale be voidable as between the original parties. White v. Garden, 10 C. B. 919; Stevenson v. Newnham, 13 id. 285; Mowrey v. Walsh, 8 Cow. 238; Root v. French, 13 Wend. 570; Hoffman v. Noble, 6 Metc. 68. But where the vendee is in possession under a conditional contract of sale, he has no property to convey to a purchaser, and the vendor's title never having been divested, he may reclaim the property if the condition be not performed, even as against a purchaser for value in good faith. Ballard v. Burgett, 40 N. Y. 315; Dresser Manuf. Co. v. Waterston, 3 Metc. 9; Coggill v. Hartford and New Haven R. Co., 3 Gray, 545; Sargent v. Metcalf, 5 id. 306; Burbank v. Crooker, 7 id. 158; Deshon v. Bigelow, 8 id. 159; Hirschorn v. Canney, 98 Mass. 149; Zuchtman v. Roberts, 109 id. 53; Benner v. Puffer, 114 id. 376; D'Wolf v. Babbett, 4 Mason, 289; Copland v. Bosquet, 4 Wash. C. C. 508; Tibbetts v. Towle, 12 Me. 341; Haven v. Emery, 33 N. H. 66; Kimball v. Jackman, 42 id. 242. See, also, Chamberlain v. Smith, 44 Penn. St. 431; Rose v. Story, 1 id. 190; Marsh v. Mathiot, 14 S. & R. 214; Haak v. Linderman, 64 Peun. St. 499. Cole v. Berry. Opinion by Depue, J. KANSAS SUPREME COURT ABSTRACT. DECEMBER, 1880.* -- NEGLIGENCE TRAINS. Where a railroad company is not guilty of negligence in failing to protect its track from swine in a township where they are not permitted to run at large, and it appears from an agreed statement of facts that & hog was killed by the negligence of the railroad company in such township; and it further appears that the negligence of the owner in permitting the animal to run at large in violation of section 46, chapter 105, Comp. Laws of 1879, contributed directly to the injury, heid, the negligence of the defendant was offset by the negligence of the plaintiff, and the owner of the animal could not recover for his loss. Kansas City, Fort Scott & Gulf Railroad Co. v. MeHenry. Opinion by Horton, J. ANIMALS KILLED BY RAILROAD STATUTE OF LIMITATIONS PROMISE TO CREDIT OVERPAYMENT - Plaintiff, in 1874, was an accommodation indorser upon a note belonging to defendant. The maker was insolvent. Suit was brought. Plaintiff interposed no answer. Upon request of defendant, plaintiff, pending the suit, paid several hundred dollars upon defendant's promise to credit it on the claim and take judgment for the balance only. Notwithstanding this, defendant took judgment for the face of the paper, of which fact plaintiff soon had knowledge. Calling defendant's attention thereto, he promised to correct the error and allow the payment on the final settlement of the judgment. Several payments were made from time to time, and this promise frequently repeated, but no correction was ever made. Defendant was the attorney of a company of which plaintiff was president. They occupied the same office and had intimate personal and business relations, in the latter of which defendant was plaintiff's confidential adviser. After over four years had passed, defendant refused to credit the judgment with this prior payment and demanded the full amount due upon its face. Held, in an action brought by plaintiff to compel the credit of this amount and restrain the collection of the judgment therefor, that the statute of limitations was a bar to any relief. Sweet v. Hentig. Opinion by Brewer, J. * To appear in 24 Kansas Reports. BURGLARY CRIMINAL LAW. EVIDENCE ALMANAC AMOUNT OF LIGHT AFTER SUNSET DOES NOT AFFECT CRIME (1) Upon a trial for burglary the State was allowed to introduce an almanac for the purpose of showing when the sun set on the day on which the crime was committed. IIeld to be no error. The matter was one of which the court would have taken judicial notice, and the almanac was received, not strictly as evidence, but to refresh the memory of the court and jury. (2) It will not avail a prisoner on a charge of burglary that there was light enough from the moon, street lights, and lights of buildings, aided by newly-fallen snow, to enable one person to discern the features of another. There must have been daylight enough left for the purpose. Connecticut Sup. Ct. of Errors, June term, 1879. State of Connecticut v. Morris. Opinion by Carpenter, J. (To appear in 47 Conn. Rep.) CONSPIRACY CONSPIRATOR NOT LIABLE UNLESS PRESENT AT OR ABETTING ACT, NATURALLY INCIDENT TO AGREED CRIME. - Defendant was a conspirator with others in the commission of a burglary, in which goods were stolen. In pursuance of the agreement between the conspirators, the goods stolen were taken in an express wagon in front of a pawn shop, into which they were being removed, when a person came up to the wagon and was shot by some one near the wagon. It was alleged that defendant was not present at or near at the time of the homicide, and had neither aided, abetted, advised or encouraged its perpetration, nor had, before its commission, advised the persons in charge of the stolen goods to oppose and resist all persons who should attempt to seize the same or interrupt them in secreting or disposing of them. Held, that a conviction in that case could not be sustained. Where the accused is present and commits a crime with his own hands, or aids and abets another in its commission, he may in either case be considered as expressly assenting thereto. So where he has entered into a conspiracy with others to commit a felony or other crime, under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the doing of whatever would reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go. For if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is expressly assented to, and the enterprise is not of such a character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability. When, therefore, one enters into an agreement with others to do an unlawful act, he impliedly assents to the use of such means by his co-conspirators as aro necessary, ordinary or usual in the accomplishment of an act of that character. But beyond this his implied liability cannot be extended. So, if the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence which may result in the taking of life unlawfully, every party to such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design, whether he is present or not. But where the unlawful act agreed to be done is not of a dangerous or homicidal character and its accomplishment does not necessarily or partially require the use of force or violence which may result in the taking of life unlawfully, no such criminal liability will attach merely from the fact of having been a party to such an agreement. 1 Bish. Crim. L. (6th ed.), § 614; Hawkkins' P. C., book 2, ch. 29, §§ 19, 20, 21; Foster, 369, 370; Regina v. Franz, 2 F. & F. 580; Regina v. Horsey, 3 id. 287; Regina v. Lusk, id. 443; Roscoe's Crim. L. 673-655; Regina v. Tyler, 8 C. & P. 616; Regina v. Turner, 4 F. & F. 339; Rex v. Hawkins, 3 C. & P. 392; Watts v. The State, 5 W. Va. 532; Rex v. Howell, 9 C. & P. 437. Illinois Sup. Ct., Sept., 1880. Lamb v. People of Illinois. Opinion by Mulkay, J. "' of RAPE-CONSENT, EVEN THOUGH EXTORTED, RENDERS COHABITATION NOT RAPE.-Consent by the woman destroys the essential ingredient of the crime of rape. In a prosecution for rape the court instructed the jury as follows: First. The element of force forms a material ingredient of the offense of rape, by which the resistance of the woman violated is overcome, or her consent induced by threats of personal violence, duress or frand; for unless the consent of the woman to the unlawful intercourse is freely and voluntarily given, the offense of rape is complete. Second. If the circumstances show that the consent was obtained by the use of force, and the woman's will was overcome by fear of personal injury, then the crime is rape. Third. If the woman ultimately consented to the intercourse, such consent not being freely or voluntarily given, but being obtained through fear, threats, duress or fraud, or partly by fear and partly by force, then the offense is rape. Held, that such instructions, so far as they related to consent, were calculated to mislead the jury. Where there is physical ability to resist, and freedom of the will to protest or dissent, to say that the act may be rape when committed "with the consent the woman, is as erroneous as to say that it need not be committed "against her will." The terms "without her consent," in the Massachusetts statute, are held to apply to a case where the defendant knows. that the woman is insensible and incapable of consenting. Com. v. Burke, 105 Mass. 376. When the mind is subjugated, as well as the body, so that the power of volition and the mental capacity to either consent or dissent is gone, then the act may be said to be "against the will," and so also it may be said to be "without consent." But when the mind is left free to exercise the will, and to consent or dissent, then by consent responsibility for the act is incurred. Where there is no such mental capacity the quality of the act is indifferent - there can be no consent or dissent, and consequently no responsibility. The physical power may be overcome, and the utmost resistance be unavailing; yet the mind may remain free to approve or disapprove, consent or dissent. The expression of consent may be compelled or coerced by threatened violence, and yet there is no consent of the mind. In this class of cases the authorities seem to be uniform that the act must be committed against the will of the woman, and without her consent, not technically, but actually and in fact, or it will not be rape. "Any consent of the woman, however reluctant, is fatal to a conviction. The passive policy will not do. There must bo no consent. There must be the utmost reluctance and resistance." State v. Burgdorf, 53 Mo. 63. "It must appear that she showed the utmost reluctance, and used the utmost resistance." Dan Moran v. People, 25 Mich. 356. "It is a vital question whether the woman ceased resistance because it was useless or dangerous, or because she ultimately consented." In the latter case it is not rape. Rex v. Hallett, 9 C. & P. 748; Wright v. State, 4 Humph.. 194; 2 Whart. ou Crim L., § 1142. Acquiescence obtained by mistake, imposition, or artificial stupefaction is the only acquiescence allowable. If not thus obtained it is fatal. Whart. on Crim. L., § 1144. "There should be no doubt of the real absence of assent." People v. Bunson, 6 Cal. 221. "There is a difference between consent and submission. Every con |