No one but the defendant in an execution can question a sale of his land under the same for an irregularity. If he fails to have the same set aside, and acquiesces in the sale, no one acquiring a title from or through him can question the validity of the sale, especially in a collateral proceeding: Id.

LIMITATIONS, Statute of.

Malicious Prosecution—Termination of Prosecution.-In cases of malicious prosecution on the criminal side of the court, the right of action does not accrue until the proscution terminates; and so, by analogy, the rule should be the same in malicious prosecutions on the civil side of the court, in respect to the time when the right of action accrues and the statute begins to run, except in cases of seizure of personalty under execution, where the litigation is protracted by a claim interposed by the person whose property is seized. In that case the right of action would accrue whenever the personalty was seized, and the statute would then begin to run, and four years after that time would bar the action : Printup v. Smith, 71 or 72 Ga.

MALICIOUS PROSECUTION. See Limitation, Statute of

False Arrest Warrant Issued by Inferior Court.—An action for false arrest does not lie against an officer for serving a precept issued by an inferior magistrate, if the magistrate has jurisdiction of the offence alleged, and the precept upon its face discloses that he has jurisdiction of the person of the offender: Elsemore v. Longfellow, 76 Me.

The process discloses jurisdiction of the person against whom it runs, if a proper cause is indicated, though it may be ever so irregularly and imperfectly expressed. Amendable irregularities do not vitiate. To render the officer liable the precept must be absolutely void: Id.

MASTER AND SERVANT.

Injury to Servant-Negligence of Fellow-Servant-Master and Mate of Vessel.-The owners of a vessel are not liable for an injury to the mate resulting from the negligence of the master, the latter being a fellow-servant of the mate engaged in a common employment: Thompson v. Herman, 47 Wis., distinguished: Mathews v. Case, 61 Wis.

Negligence-Who is Fellow-servant.-A crew of men were engaged under a foreman or superintendent in repairing a dam for a log-driving company, incorporated by the laws of the state, when one of the laborers was injured by the carelessness of another who acted under the direction and immediate observation of the foreman in doing the particular act complained of: Held, That the foreman and laborers were fellow-servants within the rule exculpating the company from liability: Doughty v. Penobscot Log Driving Co., 76 Me.

Negligence-Fellow-servant.-One who contracts with a mining company to break down rock and ore for a certain distance to disclose the vein, at a stipulated price per foot, the company to furnish steam drill and keep the drift clear of rock, as the contractor broke it down, is to be regarded as a contractor with and not a servant of the company. He is not a fellow-servant with the superintendent of the company under whose direction his work is performed: Mayhew v. Sullivan Mining Co., 76 Me.

MECHANICS' LIEN. See United States Courts.

MORTGAGE. See Bills and Notes; Notice.

NEGLIGENCE. See Action; Master and Servant; Telegraph; Trial. Railroad Crossings-Accidents-Contributory Negligence--Damages -Jury. It is settled in this state that in actions against railroad companies for injuries to persons, whether in form civil or criminal, the burden is upon the party prosecuting to show that the person injured or killed, did not by his want of ordinary care contribute to produce the accident: State v. Maine Central R. Co., 76 Me.

One in the full possession of his faculties, who undertakes to cross a railroad track at the very moment a train of cars is passing, or when a train is so near that he is not only liable to be, but is in fact struck by it, is prima facie guilty of negligence; and. in the absence of a satisfactory excuse, his negligence must be regarded as established: Id.

In a prosecution, by indictment, against a railroad company for negligently causing the death of a person at a crossing, the amount of the forfeiture between the minimum and maximum sums fixed by the statute, should be assessed by the jury: Id.

Railroad-Failure to Stop and Listen at Crossing-Evidence— Proof of Usage of Company at other Crossings.-A person approaching a railway crossing with a team and having reason to suppose that a regular passenger train has recently passed from one direction, is not guilty of negligence if he fails to look constantly in that direction, especially when it would be impossible to see or hear an approaching train because of an embankment or other obstruction to sight and sound: Bowen v. C., M. & St. P. R. Co., 61 Wis.

An instruction that it was the duty of a person approaching a railway crossing to have looked up the track if by so doing he could have ascertained the approach of a train at a sufficient distance to have avoided it, is held proper. The question what was such sufficient distance was for the jury: Id.

The question being whether the bell was rung and the whistle blown as a locomotive approached a highway crossing, evidence that those things were not done at a similar crossing three miles distant was admissible: Id.

NOTICE.

Mortgage-Record-Unrecorded Deed. When the record of a mortgage is defective it is not notice of such mortgage. Thus, a mortgage for the security of two thousand dollars was recorded as one for two hundred dollars. Held, that the record was no notice of the two thousaud dollar mortgage: Hill v. McNichol, 76 Me.

When a purchaser of real estate, without notice of a prior unrecorded deed, for a valuable consideration conveys to one who had notice thereof, the title of the latter is not impaired by the notice: Id.

OFFICER.

Assumpsit-School Agent-Compensation for Official Duties.-A school agent's mere election and performance of official duties, raise no implied promise on the part of the town to pay him for such services: Talbot v. Inhabitants of East Machias, 76 Me.

In the absence of any implied contract or statutory provision entitling him to pay for official duties rendered, a school agent can maintain no artion therefor against his town: Id.

PARENT AND CHILD.

Domicile of Child of a Widow who Re-marries.—Although a widow by marrying again, acquires the domicile of her second husband, she does not, by taking the children of her first husband to live with her there, make the domicile which she derives from her second husband their domicile; but they retain the domicile which they had, before her second marriage, acquired from her or from their father: Lamar v. Micon, S. C. U. S., Oct. Term 1884.

PARTNERSHIP.

Liability for Acts of Partner after Dissolution—Attorneys.—Where a note and mortgage have been intrusted to a firm of attorneys for collection, the mere dissolution of the firm will not release one partner from responsibility to the client for money subsequently collected by the other partner to whom that business was, by the terms of the dissolution, transferred. Such release could be brought about only by the express contract of the parties or by a contract fairly implied from the circumstances and transaction after the dissolution. Instructions in such a case giving too much importance to the mere fact of dissolution are held to have been misleading: Waldech v. Brand, 61 Wis.

PATENT.

Re-issue for the Purpose of Enlarging the Claim-Time of Applica tion for. A patent cannot be lawfully re-issued for the mere purpose of enlarging the claim, uuless there has been a clear mistake inadver tently committed in the wording of the claim, and the application for re-issue is made within a reasonably short time. Whether there has been such an inadvertent mistake is, in general, a matter of fact for the commissioner to decide; but whether the application is made in reasonable time is matter of law, which the court may determine by comparing the re-issued patent with the original, and, if necessary, with the records. in the patent-office, when presented by the record: Maher v. Harwood, S. C. U. S., Oct. Term 1884.

The principles announced in the case of Miller v. Brass & Co., 104 U. S. 350, in reference to re-issuing patents for the purpose of enlarging the claims, reiterated and explained: Id.

No invariable rule can be laid down as to what is a reasonable time within which the patentee must seek for the correction of a claim which he considers too narrow. It is for the court to judge in each case, and it will exercise proper liberality towards the patentee. But as the law charges him with notice of what his patent contains, he will be held to reasonable diligence. By analogy to the rule as to effect of public use before an application for a patent, a delay of more than two years would in general, require special circumstances for its excuse: Id.

As, in the present case, there was a delay of nearly four years, and the original patent was plain, simple, and free from obscurity, it was held that the delay in seeking a correction by re-issue was unreasonable, and that the commissioner had, therefore, no authority to grant it; and the

patent was held invalid so far as the claims were broader than those in the original patent: Id.

RAILROAD. See Common Carrier; Negligence.

RECEIVER. See Corporation.

SET-OFF.

Physician's Account-Negligence.-Where suit was brought on a physician's account for services and medicine, it might be pleaded that he did not do his work skilfully, or a plea of recoupment might be filed, springing out of the contract; but a plea of set-off, based on a tort in giving defendant too large a dose of medicine, which injured him to the amount of two hundred dollars, was not proper as matter of defence; nor does it matter whether the defendant was insolvent or not: Mc Leroy v. Sewell, 71 or 72 Ga.

SURETY. See Guaranty.

TELEGRAPH.

Negligence-Cipher Dispatch-Delay in Delivery-Damages—Evidende. Where a telegraphic message was sent by cable, and suit was brought for damages resulting from a failure to deliver it, after its receipt. at its point of destination, within a reasonable time, the copy message written by the telegraph operator at the point of destination and eventually delivered was admissible in evidence, without producing the original message written out at the point of transmission, there being no claim that the message delivered differed from that sent: West. Un. Tel. Co. v. Fatman, 71 or 72 Ga.

Where a ship broker, whose office was near that of a telegraph company, had sent other messages by cable through such company, and a cipher message from a company in Liverpool was sent to him, there was enough to put the telegraph company on notice that it was a matter of important commercial business, and required reasonable and ordinary dispatch in delivery; and the party injured by a failure to use such dispatch would not be limited to recovering nominal damages: Id.

Telegraph companies and common carriers are not identical as regards notice, or notice of value of the dispatch: Id.

If a telegraph company receives a cipher dispatch, and undertakes to carry it and deliver it to the person to whom directed, in consideration of money paid to them, it is their duty to make such delivery within a reasonable time: Id.

If a message sent by cable was received at the office of the telegraph company at the point of destination at 10.24 A. M., and was not delivered until 11.55 A. M., the office of the person to whom it was directed being within five minutes' walk from that of the company, and, in the meantime, loss occurred by reason of this failure to deliver, there was enough to warrant the jury in finding that the delay was unreasonable: ld.

Where, by reason of the failure on the part of a telegraph company to deliver a message directed to a ship broker, he lost a contract by which he would have made certain commissions, had the message been promptly delivered, a recovery of the amount of such commissions was not too remote or speculative a measure of damages: Id.

TRIAL.

Injuries to Person—Examination by Physician at Trial.--In an action for personal injuries the court may, in a proper case, at the trial direct the plaintiff to submit to a personal examination by physicians on behalf of the defendant: White v. Milwaukee City R. R. Co., 61 Wis. TRUST AND TRUSTEE See Action.

Execution of Power of Appointment-Necessity of Deed by Trustee.— S., the wife of B., joined with him in a deed to H. of land of B., in trust, for the use of S. during her life, and at any time, to convey it to such person as S. might request or direct in writing, with the written consent of B. Afterwards B. made a deed of the land to W., in which H. did not join, and in which B. was the only grantor, and S. was not described as a party, but which was signed by S. and bore her seal, and was acknowledged by her in the proper manner. Held, that the latter deed did not convey the legal title to the land, and was not made in execution of the power reserved to S.: Batchelor v. Brereton, S. C. U. S., Oct. T. 1884. UNITED STATES.

Effect of Seizure of Buildings by United States Marshal upon Right to proceed under Mechanics' Lien in State Court.-A building was commenced June 25th 1872, from which time the mechanics' liens dated, although the first of them was filed and action to enforce it commenced February 21st 1873. On January 24th 1873, the buildings were seized for a forfeiture under the internal revenue laws of the United States; process of attachment was issued to the marshal February 5th 1873, and after condemnation and forfeiture he sold the premises in May 1883. The sheriff of the county also sold the premises in September 1873, under judgments on the mechanics' liens obtained in June 1873. Held, that the sheriff's sale was nugatory and void, because based upon proceedings instituted while the res was in the exclusive custody and control of the United States Court: Heidritter v. Elizabeth Oil-Cloth Co., S. C. U. S., Oct. Term, 1884.

Semble, that the mechanics' lien creditors might. without prejudice to the jurisdiction of the United States Court, have commenced their actions, so far as that was a step required by the state law, for the mere purpose of fixing and preserving their rights to a lien; provided, always, they did not prosecute their actions to a sale and disposition of the property, which, by relation, would have the effect of avoiding the jurisdiction of the United States Court under its seizure: Id.

UNITED STATES COURTS.

Jurisdiction Suit by a National Bank in the Name of its President. -Practice. The bill in this case was filed by H. B. "in his capacity of president of the New Orleans National Bank," against a citizen of Louisiana, and the defendant, on appeal, assigned as error, the want of the proper citizenship to give the United States Circuit Court jurisdiction. Upon an inspection of the whole record it appeared that the suit was treated by both parties and by the circuit court as the suit of the bank and not of Baldwin. Held, that the defendant will not be allowed on final hearing, in order to defeat the jurisdiction, to assert, for the first time, that Baldwin, and not the bank, was the complainant: Fortier v. New Orleans Nat. Bank, S. C. U. S., Oct. Term, 1884.