said that was not the natural consequence of the railway company's breach of contract. Why was the damage there too remote? Take the case of lodgings. Suppose the landlord turned his lodger out on a cold night in her nightgown; would it not be such a natural consequence as to make him liable if she were to catch cold? If he used the least force, and she died, he would certainly be charged with manslaughter. If Esher were known to be a good station, and there had been accommodation at the station which the plaintiffs might have availed themselves of, it would have been their own fault if they had not done so; but there was no such accommodation at the station, they walked, and the wife caught cold. The judges, as a matter of fact and opinion, decided that this was so unnatural a consequence of the railway company's breach of contract that the question could not even be left to the jury. I confess I cannot bring my mind to the same conclusion. Here however there is a difference. People do walk home at night and not catch cold; it is not nearly so inevitable a consequence as that horses should catch cold if turned out as these were. There is a difference between turning horses out at night after a hot journey and leaving people to walk home at night. Still Hobbs v. London and S. W. R. Co. is so near the line that in any other case, unless the circumstances were exactly the same, I should distinguish it. I am therefore of opinion that the appeal ought to be allowed, and in so deciding we are not overruling Fry, J., except in mere form, for he only yielded to the decision of the Queen's Bench in Hobbs v. London and S. W. R. Co., and his own opinion was that the plaintiff was entitled to these damages.

COTTON, L. J. I am also of opinion that the plaintiff is entitled to recover. The jury have found that the cold which the plaintiff's horses caught was the result of their being turned out of the stable. It is said in Hobbs v. London and S. W. R. Co. that it is almost impossible to lay down a definite line as to remoteness of damage. Blackburn, J., says "it is something like having to draw a line between night and day; there is a great duration of twilight when it is neither night nor day." The rule has been stated to be that the injury must be one that may fairly have been contemplated as the possible result of a breach of the contract. I cannot agree to that statement, for the parties to the contract do not contemplate a breach of it. I should rather say the question would be, is it a natural or probable result of the breach? It was said in Hobbs v. London and S. W. R. Co. that catching cold was an accident. In my opinion it cannot be called an accident in the sense to which I have referred. The question is, was this the probable result, without accident, of the defendant's breach of his contract? It seems to me that when the defendant broke his contract and turned the horses out it ought to have been in his contemplation that they might catch cold. It has been said that this result was attributable mainly to the horses standing without their clothing; but if that is so the servant of the defendant helped to turn them out, and for this the defendant would be responsible. I think the plaintiff's conduct was reasonable, as regards the defendant, in leaving the horses where they were, and not walking them about. I think therefore that this was the probable result of the defendant's breach of contract, for which he is answerable, as well as for the other damage which the plaintiff has suffered. The other Lords Justices have distinguished this case from Hobbs v. London and S. W. R. Co., and therefore I will not minutely examine that decision; but it must not be taken that I agree with it. Perhaps, as a decision of fact, it may have been right, but I cannot say that the injury was not the probable consequence merely because other people might not catch cold if placed in the same position. The injury

need not be a necessary consequence of the breach of contract.

Appeal allowed; judgment for the plaintiff for 75l. damages.

RIGHT OF WAY UPON CONVEYANCE OF ONE OF TWO ADJOINING CLOSES.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, JUNE 21, 1881

BARKSHIRE V. GRUBB, 45 L. T. Rep. (N. S.) 383. Where the owner of two adjoining closes of land grants one of them "together with all ways now used" therewith, and there is an existing path in actual use leading through the close retained to the other, a right of way over the path will pass to the grantee, though the path did not exist prior to the unity of possession.

N 1863 Mrs. Grubb, who was the equitable tenant for life of certain freehold property near Maidenhead, died, and her four children, William Grubb, Elizabeth Barkshire (then Elizateth Martin), Thomas Grubb, and Mary Andrews became equally entitled in equity to the property.

A verbal agreement was come to between them that Mary Andrews should receive the sum of 50%., Thomas Grubb a part of the freehold property, and the other part, consisting of a double cottage and two gardens, one belonging to each part of the cottage, should be divided between William Grubb and Elizabeth Martin, the former taking the cottage and garden nearest the road, and the latter that further from the road.

On the 5th November, 1863, a deed was executed for

the purpose of carrying this agreement into effect. The premises assigned to Thomas Grubb were conveyed to him, but the double cottage and gardens attached, instead of being conveyed as to the respective shares for the benefit of William Grubb and Elizabeth Martin, respectively, were conveyed as to one undivided moiety to the use of William Grubb, and as to the other, to the use of a trustee for Elizabeth Martin. From that time William Grubb occupied one cottage and garden, and Elizabeth Martin and her husband, Thomas Martin, occupied the other down to the death of the latter in 1869. Mrs. Martin continued to live there, and in 1874 married James Barkshire.

At the time of the agreement in 1863 the only mode of access from the road to the cottage of Elizabeth Martin was a gravel path across the land of William Grubb, and as he afterward blocked this path up and refused to allow her to use it, she commenced this action. The defendants were William Grubb, James Barkshire, the plaintiff's husband, and her trustee, William Malyn. She claimed to have the property partitioned, and to have the deed of the 5th November, 1863, rectified, in order to carry out the previous agree

ment.

From the evidence it appeared that the gravel path over William Grubb's garden had existed previously to the family arrangement in 1863, for the division of the property; that except by this path the plaintiff had no other access from the road, her part of the property being shut off from it by the property of the defendant William Grubb, and contiguous on all other sides to property of strangers; that the path was used for some time as the only way to the plaintiff's premises, but the defendant having asserted a right to close it, the plaintiff, after a time, for the sake of peace, bought a right of way over another person's property.

FRY, J., stated the facts, and said: The question is, in such an executory agreement, and with such facts as I have stated in respect of the road leading up to the cottage to be taken by the plaintiff, how ought the conveyance to be framed? Ought it or ought it not to

contain a conveyance of a right of way over the gravel path? In my opinion it clearly ought to be taken with such a grant. In the first place the contract is executory, and in construing it the court will have regard to the existing facts affecting the land at the time of the contract; it could not exclude from consideration the fact of the gravel path being the way actually used up to the house. Further, I must observe that I find there was, according to the evidence, at that time no other path leading to the house, and it was in fact the only access there, and there could not well be any other path, because on all sides the land was surrounded either by the garden of the other part of the cottage or the land of strangers; it did not abut on any highway. Therefore I should say the right of way ought to be granted. But I will carry the investigation further. I will suppose that the agreement was that the conveyance should contain the usual general words, and it remained to be inquired whether those general words would pass the right of way. I think among the general words would be "all ways now used with the premises," and if those words had been inserted the simple inquiry would have been, was that a way then used? If so, the way passed; if not, it did not. As a matter of fact, I have already found that it was used. The authorities on the subject go back to an early time. In Comyn's Digest, under the head

Chemin," (5th ed. by Hammond), p. 58, I find this passage: "If a man seized of Blackacre and Whiteacre, use a way through Whiteacre to Blackacre, and afterward grants Blackacre with all ways, etc., this way through Whiteacre shall pass to the grantee." The same rule prevailed in the case of Kooystra v. Lucas, in the year 1822. There Holroyd, J., said this (5 B. & Ald. 834): 66 'By the lease certain premises delineated in the plan in the margin thereof, comprising a part of Sprang's dairy, were demised to the plaintiff, together with all ways thereto belonging or appertaining or therewith, or with any part thereof used or enjoyed. The way in question was a way used and enjoyed with a part of the demised premises. It therefore passed to the plaintiff by the very words of the lease." Those authorities seem to me clear were it not for two latter ones, which I venture to think unfortunately introduced a doubt into the law. The two cases of Thomson v. Waterlow, 18 L. T. Rep. (N. S.) 545, and Langley v. Hammond, id. 855, give countenance to the proposition that "where a way has existed of right over property B. to property A., and the properties come into the same possession, a grant of or with all ways now or heretofore used will pass the right of way; but where after unity of possession only the way has been used, such general words will not pass it." I ask myself upon what principle such a distinction can exist. Is not the right within the very words of the description? But any doubt arising from those cases appears to be displaced by the two subsequent cases of Kay v. Oxley, 33 L. T. Rep. 164; L. R., 10 Q. B. 360, and Watts v. Kelson, 24 L. T. Rep. (N. S.) 200; L. R., 6 Ch. App. 166, which appear to revive the earlier law. In Kay v. Oxley, Lord Blackburn said (L. R., 10 Q. B. 367): "It cannot make any difference in law, whether the right of way was only de facto used and enjoyed, or whether it was originally created before the unity of possession, and then ceased to exist as a matter of right, so that in the one case it would be created as a right de novo, in the other merely revived." And in Watts v. Kelson, an earlier authority in point of date, the judges in the Court of Appeal seem to have taken exactly the same view. The judges in the course of argument asked whether it would make any difference that the easement existed before the unity of possession. Mellish, L. J., said (L. R., 6 Ch. App. 172): “I am not satisfied that if a man construct a paved road over one of his fields to his house, solely with a view to the convenient occupation of the house, a right to

use that road would not pass if he sold the house separately from the field;" and when he came to deliver his considered judgment he referred to Langley v. Hammond in this way (24 L. T. Rep. [N. S.] 211; L. R., 6 Ch. App. 174): "We may also observe that in Langley v. Hammond, Bramwell, B., expressed an opinion in which we concur, that even in the case of a right of way, if there was a formed road made over the alleged servient tenement, to and for the apparent use of the dominant tenement, a right of way over such road might pass by a conveyance of the dominant tenement with the ordinary general words." I adopt that view. I think that where there are two closes one adjoining the other, and that on one a constructed way exists which is in fact used for the purpose of the other, and that the second close is granted with all ways now used, a right of way passes. And I have no doubt that on the true construction of this agreement the right of way ought to pass.

NEW YORK COURT OF APPEALS ABSTRACT.

--

ASSIGNMENT-OF ACCOUNT HOW MADE-WHAT IS NOT SUFFICIENT. In an action by an assignee for creditors, to recover the value of accounts due the assignor, alleged to have been assigned to defendant and collected by him to the amount of $600 after the assignment for creditors was made, the formal assignment of such accounts was found to have been made after the assignment for creditors. But before that took place assignor called at defendant's store and left word there in the absence of defendant that he had assigned some accounts to him. It did not appear that the defendant accepted or assented to the assignment, or knew what accounts were attempted to be assigned until after the general assignment. Held, that there was not enough to establish an assignment before the one made for creditors. It is not entirely clear how much must be done to make an effectual assignment of an account. Ford v. Stuart, 19 Johns. 342; Doremus v. Williams, 4 Hun, 458; Archer v. O'Brien, 7 id. 146; Gould v. Ellory, 39 Barb. 163; Rupp v. Blanchard, 34 id. 627; Hooker v. Eagle Bank, 30 N. Y. 83; Risley v. Phoenix Bank, 83 id. 318; Crocker v. Whitney, 10 Mass. 316; Dunn v. Suell, 15 id. 481. But the better opinion seems to be that an account may be sold like any other chattel, and that any agreement that will pass the title to a chattel will pass the title to an account. There must be a valid assignment or sale based upon a sufficient consideration, and if more than $50 worth is sold the statute of frauds must be complied with. In the case at bar the minds of the parties did not meet, and there was no delivery or payment. Judgment affirmed. Truax v. Slater. Opinion by Earl, J.

[Decided Oct. 25, 1881.]

CONSIDERATION · -FOR INDORSEMENT. An oral contract was made between the plaintiff bank and one Wooster, its debtor, to carry the indebtedness of Wooster for one year, which contract was to be performed on his part by his giving short paper, indorsed by two other persons, of whom defendant was not one, which paper the bank was to renew from time to time as it became due. During the year a note indorsed by defendant was given in renewal of some of the paper given under this contract, which had become due. Held, that there was a sufficient consideration for defendant's indorsement. The bank could have sued the prior paper when due, and proof of the agreement to carry the debt and that new notes had been tendered in renewal would not have been admissible to control the legal effect of the promise contained in the notes to pay at a fixed time. The bank might have been lia

ble for a breach of the contract, but at most it would have constituted a counter-claim only to the extent of the injury sustained by its breach. Judgment affirmed. National Bank of Gloversville v. Place. Opinion by Andrews, J.

[Decided Oct. 25, 1881.]

CONVERSION

REFUSAL.

AND

WHAT CONSTITUTES DEMAND In an action for the conversion of lumber by defendant who held it as the bailee of one Peter, it was claimed that there was no evidence of a demand by plaintiff for or refusal by defendant to give up possession of the lumber. The evidence given by defendant as a witness was to the effect that plaintiff, who was a stranger to him, called at the yard where the lumber was, and looked at the lumber and said it belonged to him. "I told him Mr. Peter had taken it under charge and that it belonged to him, and he left it in my charge. I told him he could take it away only with an order from Mr. Peter." Defendant also testified that R., plaintiff's attorney, before the commencement of the action, called upon him in his client's behalf. R. asked defendant if he owned the lumber, and he replied no. R. then asked defendant if he was willing plaintiff should go and take the lumber, and defendant told R. that he could not deliver it without an order from Mr. Peter. Defendant also testified that he refused to give consent to have the lumber taken away without an order from Mr. Peter. Held, that there was sufficient evidence of a demand and refusal to sustain a finding of a jury that a demand and refusal took place. There was a positive refusal within the doctrine of Rogers v. Weir, 34 N. Y. 463. It was there said that the servant as bailee may in good faith ask for time to inquire and opportunity to ascertain the facts, but must stand neutral and not assert title in himself or another. Defendant asserted title in Peter, and maintained possession under it, refusing to deliver it except under Peter's order. There was here no technical or formal demand. But a demand need not be in any particular form. It is sufficient if the owner assert his title and in some manner his desire to reclaim his property. It need not be gruff or peremptory, and may even take the form of a question. If one says "This property is mine; will you allow me to take it away?" and the answer is a refusal, it might justify the jury in finding a sufficient demand. Judgment affirmed. Tuttle v. Hazard. Opinion by Finch, J.

[Decided Oct. 25, 1881.]

EXECUTION TEREST, DIRECTION MUST BE GIVEN. At common law a judgment has no interest. By 2 R. S. 364, § 9 (enacted in 1830), it was made lawful to direct upon execution upon a judgment upon a contract the collection of interest on the amount recovered. By laws 1844, ch. 324, it was declared that every judgment should bear interest, but a direction indorsed on the execution was necessary to secure a collection of the same. By the law in force when the plaintiff in this action issued an execution (Code Civ. Proc., § 368), an executor must specify in the body thereof the sum recovered or directed to be paid, and the sum actually due when it is issued," and " may specify a day from which interest upon the sum due is to be computed' in which case the sheriff must collect interest accordingly until the sum is paid." Plaintiff's execution contained no such direction. Held, that it was properly satisfied when the amount of the judgment was collected according to the mandate, and further that plaintiff could not trouble the sheriff with a further execution for the interest. People v. Onondaga Com. Pleas, 3 Wend. 331. Order affirmed. Todd v. Botchford. Opinion by Danforth, J. [Decided Oct. 28, 1881.

-TO AUTHORIZE COLLECTION OF IN

INSURANCE

-

FIRE POLICY - CONDITION AGAINST OTHER INSURANCE PRIOR POLICY WITH CONDITION

AVOIDING IT BROKEN.- - Plaintiff procured a policy in the G. company, insuring his house against fire. By a condition in the policy, if the insured premises should become vacant or the risk should be increased, etc., without the consent of the insurer indorsed on the policy, it would be void. During the term of the policy the house became vacant and the risk was increased by plaintiff placing a steam engine and boiler in an adjoining building, but the G. company did not know of the vacancy or increased risks and did not cancel the policy or consent to the violation of the condition. Thereafter and during the term of the policy he procured further insurance on the house in the defendant company, by a policy containing a condition that "if the assured shall have any other insurance on the property hereby insured, not indorsed hereon or consented to by this company or its authorized agent, in writing, this policy shall be void." There was no indorsement or consent for other insurance by the defendant company or its agent. Held, that the policy in defendant company could be avoided by defendant for a breach of the condition, and the breach of the condition in the policy of the G. company did not prevent the condition in the policy of defendant from operating. The policy of the G. company was valid when issued but was avoidable by that company for a breach of condition subsequent. But that company had not elected to avoid it and it was competent for it to waive the breach and the breach did not ipso facto avoid the policy. That policy was in force when defendant issued its policy, and the latter policy was avoidable for a breach of the condition as to other insurance. Judgment reversed. Landders

v. Watertown Fire Insurance Co. Opinion by Andrews, J.

[Decided Oct. 18, 1881.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

CARRIER -AGENT WILL NOT BIND BY FRAUDULENT BILL OF LADING WHEN CUSTOM WILL NOT ALTER CONTRACT. — The freight agent of a railroad company, by the procurement of a cotton buyer, signed a bill of lading for thirty-two bales of cotton which were not on hand, and were never delivered to the railroad company or any agent for it. The plaintiffs paid a draft for the price of the cotton on the faith of the bill of lading attached to it and indorsed to them, and never having received the cotton, sued the railroad company for its non-delivery. Held, that the carrier was not estopped to show that no cotton was in fact delivered for transportation; that the agent had no authority, real or apparent, to sign a receipt or bill of lading until actual delivery of the cotton, and the company was not liable. Neither a general nor local custom to use bills of lading as collateral security for drafts drawn against the merchandise can alter the rules of law governing the contract of the parties. This use of bills of lading is one in which the carrier has no interest, and he cannot be charged with an extraordinary liability dehors the contract for which he receives no compensation or indemnity, merely to assure other parties against loss by the fraudulent dealings of those who so use them. It is not in the interest of commerce to impose this liability upon the common carriers of the country. Authorities referred to: The Delaware, 14 Wall. 579; Hoffman v. Bank, 12 id. 181; Meyerstein v. Barber, L. R., 2 C. P. 38, and 4 H. L. 317; Shaw v. Railroad Co., 101 U. S. 557; Lowell Bank v. Winchester, 8 Allen, 109; The Reeside, 2 Appearing in 9 Federal Reporter.

Sumn. 567, 569; Turney v. Wilson, 7 Yerg. 340; 6 So. Law Rev. (N. S.) 845; The Delaware, 14 Wall. 603; Blakemore v. Heyman, 6 Fed. Rep. 581; Schooner Freeman v. Buckingham, 18 How. 182; Vandewater v. Mills, 19 id. 90; The Lady Franklin, 8 Wall. 325; The Keokuk, 9 id. 517, 519; Buckley v. Naumkeag Co., 24 How. 386, 392; S. C., 1 Cliff. 322, 328; The Loon, 7 Blatchf. 244; The Grant, 1 Biss. 193; The May Flower, 3 Ware, 300; The Edwin, 1 Sprague, 477; The Leonidas, 1 Olc. 12; The Marengo, 6 McLean, 487; McCready v. Holmes, 6 Am. Law Reg. (O. S.) 229; The Brown, 1 Biss. 76; The Wellington, id. 279, 280; The Tuskar, 1 Sprague, 71; Sutton v. Kettle, id. 309; Blag v. Ins. Co., 3 Wash. 5; Dixon v. Railroad Co., 4 Biss. 137, and note at page 147; Bradstreet v. Heran, 2 Blatchf. 116; Relyea v. Rolling Mill Go., 42 Conn. 579; Tiedman v. Knox, 53 Md. 612, 615; Fellows v. Powell, 16 La. Ann. 316; Adams v. Trent, 19 id. 262; Hunt v. Miss. Cent. R., 29 id. 446; La. Nat. Bank v. Lavielle, 52 Mo. 380; Dean v. King, 22 Ohio St. 118; Sears v. Wingate, 3 Alen, 103. U. Circ. Ct., W. D. Tennessee, Oct. 24, 1881. Robinson v. Memphis & Charleston Railroad Co. Opinion by Hammond, D. J.

MARITIME LAW-AVERAGE CONTRIBUTION.-Where a vessel in the course of her voyage becomes stranded upon the bank of a river or harbor, and the circumstances are such as to show there is no danger to be apprehended from her lying there, the expense of getting her off is not the subject of a general average contribution. Columbian Ins. Co. v. Ashby, 13 Pet. 33; 2 Arnold on Ins. 883; Barnard v. Adams. 10 How. 303; The Ann Elizabeth, 19 id. 162; The Hornet, 17 id. 100; The Star of Hope, 9 Wall. 203. In Lowndes' Gen. Av. 4 it is said" that after the cargo is in safety, the benefit it may derive from being carried in the ship to its place of destination is not a ground for making it contribute toward the cost of repairing the ship, nor placing the ship in shape where she can be repaired;" citing Powell v. Gudgeon, 5 M. & S. 431, and Sarquy v. Kobson, 4 Bing. 131; Duncan v. Benson, 1 Exch. 537; 3 id. 644; Job v. Langton, 6 E. & B. 779. U. S. Dist. Ct., E. D. Illinois, July 1, 1881. The Alcona. Opinion by Brown, D. J.

CITIZENSHIP

REMOVAL OF CAUSE RAILROAD COMPANY FORMED BY CONSOLIDATION OF COMPANIES

IN THREE STATES. — A railroad company formed by the consolidation of three companies, chartered respectively by three different States, cannot, when sued in the courts of one of those States by a citizen thereof, remove the case into the Federal courts under the act of March 3, 1875, upon the ground that the charters obtained from the other two States gives it a foreign citizenship. The P., W. & D. Railroad Co. was chartered by the State of Pennsylvania. Subsequently, by concurrent legislation of the States of Pennsylvania, Maryland and Delaware it was consolidated with two other companies chartered respectively by the latter two States, the consolidated road retaining the name of the P., W. & B. Railroad Co. Suit was brought by a citizen of Pennsylvania, in the courts of that State, against the P., W. & B. Railroad Co., which thereupon removed the case to the Federal court on the ground of foreign citizenship. Held, that the Federal court had no jurisdiction, and that the suit should be remanded. U. S. Circ. Ct., E. D. Pennsylvania, May 1, 1881. Johnson v. Philadelphia, Wilmington & Baltimore Railroad Co.

SUPERVISORS OF ELECTION RULE FOR DESIGNATING POLITICAL PARTY, - The rule, in case a question arises in respect to what political organization should be recognized by the court in appointing supervisors of election under the Federal Revised Statutes (§§ 2012, 2026), is that the organization which was recognized by the last State convention of the party is entitled to be

considered as its representative organization; subject however to modification by a change of circumstances. Held, therefore, that in the light of events that have occurred since the last State convention of the democratic party, the organization known as "The New York County Democracy" will be regarded as now representing the democratic party in the city and county of New York. U. S. Circ. Ct., S. D. New York, Oct. 5, 1881. In Re Appointment of Supervisors of Election. Opinion by Blatchford, C. J.

MAINE SUPREME JUDICIAL COURT

ABSTRACT.

JUNE, 1881.*

ATTORNEY AND CLIENT — RIGHT TO CHARGE RETAINERS-USAGE.-The proper scope and application of the right to charge retainers is to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services for and receiving pay from the other. There is no such general usage or custom among lawyers in this State, to charge retainers in all contested cases in which they are employed, as to justify an instruction to the jury as a matter of law, that in contested cases and for reasonable amounts such fees were a legal charge in each case in which he was engaged. And such an instruction, in an action by an attorney at law for services and disbursements in behalf of a client, is erroneous, when the account sued embraces, besides the charges of retainers in each contested case, other charges covering all the services actually performed, and disbursements made in behalf of his client. Bodfish v. Fox, 23 Me. 90; Codman v. Armstrong, 28 id. 91; Leach v. Perkins, 17 id. 462. Cases referred to by counsel and distinguished by court: Aldrich v. Brown, 103 Mass. 527; Perry v. Lord, 111 id. 504; Pierce v. Parker, 121 id. 403; Eggleston v. Boardman (Mich., 1877), 5 Rep. 724. McLellan v. Hayford. Opinion by Barrows, J.

BROKER

- NOT BOUND TO GIVE ADVICE — EVIDENCE.

WHEN RIGHT TO COMPENSATION ARISES - (1) A broker is entitled to compensation when he has found for his employer one who makes a written contract for the purchase or sale of the property to be bought or sold. So far as relates to compensation, a binding agreement to sell is a sale within the contemplation of the parties. Rice v. Mayo, 107 Mass. 550. Whether the contract is verbal or written, the bringing the parties together entitles the broker to his compensation. Barnard v. Monnot, 3 Keyes, 203; Higgins v. Moore, 34 id. 417. It is no answer to the broker's claim, after he has found his employer a vendor, who makes a written contract for the sale of the property, that he could not make a perfect title, and therefore was unable to carry out his contract. Knapp v. Wallace, 41 N. Y. 477. Nor does a refusal to perform constitute a defense. Love v. Miller, 53 Ind. 294; Cooke v. Fiske, 12 Gray, 491. So, though a principal who has been brought by the broker into communication with the party with whom he is dealing, revokes his authority, and takes the negotiation in his own hands. Stillman v. Mitchell, 2 Robertson, 523; Green v. Ballard, 108 E. C. L. 681. The contract is that of the parties. The brokers are not parties to it. Their right to compensation attaches on its completion. It matters not whether it was absolute or conditional; whether modified, changed or rescinded by the parties. (2) It is no part of the broker's duty to direct or advise as to the terms of the contract between the parties, or explain the meaning of the words used by them. (3) Conversations between buyer and seller before and after the

*To appear in 72 Maine Reports.

making of the contract, are not admissible to affect the broker's right to compensation.

CONFLICT OF LAW STATUTE NO EXTRA-TERRITO

RIAL FORCE — PRESUMPTION AS TO FOREIGN LAW.A statute of Maine declares that the holder of a railroad ticket shall have the right to stop over at any of the stations along the line of the road, and that his ticket shall be good for a passage for six years from the time it is first used. Held to apply only to transportation within the territorial limits of this State. The statute has no force beyond the limits of the State, and consequently does not apply to a ticket from Portland to Montreal, while the ticket is being used beyond the limits of the State. Hall v. DeCuir, 95 U. S. 485. While such a ticket is being used in New Hampshire; Vermont or Canada, the rights of the passenger will be governed and controlled by the laws of those places and not by the laws of Maine, but in the absence of proof to the contrary, the law of those places will be presumed to be the same as the common law of Maine, and not the same as the statute above cited. It is a well settled rule, founded on reason and authority, that the lex fori, or in other words the laws of the country to whose courts a party appeals for redress, furnish in all cases, prima facie, the rule of decision; and if either party wants the benefit of a different rule or law (as for instance, the lex domicilii, lex loci contractus, or lex loci rei sita), he must aver and prove it; the courts of a country are presumed to be acquainted with their own laws, but those of other countries are to be averred and proved, like other facts of which courts do not take judicial notice." Monroe v. Dauglass, 5 N. Y. 447. A party who relies upon a right, or an exemption, by foreign law, is bound to bring such law properly before the court, and to establish it in proof; otherwise the court (not being entitled to notice such law without judicial proof), must proceed according to the law of England." Lloyd v. Guibert, L. R., 1 Q. B. 115-129. It is often said that in the absence of proof to the contrary the court will presume the foreign law to be the same as the domestic law. But the above is the better way of stating the rule. The result is the same. Carpenter v. Grand Trunk Railway Co. Opinion by Walton, J.

MISSOURI SUPREME COURT ABSTRACT*

ASSIGNMENT - -SPLITTING DEBT.-A creditor cannot, without the consent of his debtor, make a valid assignment of part of his claim. Citing Burnett v. Crandall, 63 Mo. 410. Beardslee v. Morgner. Opinion by Sherwood, C. J.

ESTOPPEL EXECUTION.

- DELIVERY BOND FOR GOODS TAKEN IN

- The obligors in a delivery bond, which recites a levy of execution, are estopped in an action on the bond from pleading that there was no levy. Jewett v. Torry, 11 Mass. 219; Lyman v. Lyman, id. 317; Price v. Kennedy, 16 La. Ann. 78; Inman v. Strattan, 4 Bush, 447; McMillan v. Dana, 18 Cal. 347; Roebuck v. Thornton, 19 Ga. 151; Mead v. Figh, 4 Ala. 279; Drake on Attachment, § 339. Hundley v. Filbert. Opinion by Heury, J.

MALICIOUS PROSECUTION DEFENSE. It is no defeuse to an action for malicious prosecution to show that the affidavit made by the prosecutor was insufficient in law to authorize the arrest and prosecution which followed. 2 Greenlf. Ev., § 449; Pippet v. Hearn, 5 Barn. & Ald. 635; Savil v. Roberts, 1 Salk. 14; Chambers v. Robinson, 1 Strange, 691; Morris v. Scott, 21 Wend. 281; Stone v. Stevens. 12 Conn. 219; Shaul v. Brown, 28 Iowa, 37; S. C., 4 Am. Rep. 151; Stancliff v.

*To appear in 73 Missouri Reports.

Palmeter, 18 Ind. 324; Hays v. Younglove, 7 B. Monr. 745. Stocking v. Howard. Opinion by Henry, J.

VENDOR'S LIEN- - ENFORCEMENT AFTER DEATH OF VENDEE - ON LAND SOLD IN PARTITION. - (1) The fact that the holder of a note given for the purchase-money of land has procured its allowance against the estate of the vendee, deceased, will be no obstacle to the enforcement of a vendor's lien against the land itself in the hands of the devisee. (2) Land sold by the sheriff under a decree in partition, is subject to a vendor's lien in favor of a partitioner who has received as his share of the estate a note given for deferred payments of purchase-money. Edmondson v. Phillips. Opinion by Sherwood, C. J.

VERMONT SUPREME COURT ABSTRACT. FEBRUARY TERM, 1881.*

DEED ATION. A deed contained a specific description of the land conveyed, and also this clause: "Said J. C. Roberts reserving lots sold, Nos. 1, 2, 3, * * * 32, 33." Lots 32 and 33 had not been sold. Held, that the two lots did not pass to the grantee; that the clause is to be construed as an exception, and not a reservation; that the rule falsa demonstratio non nocet applies; that an excepting clause in a deed is in effect a re-grant. 3 Washb.on Real Prop. 370; Sprague v. Snow, 4 Pick. 54; Cutler v. Tufts, 3 id. 272; Hull v. Foster, 7 Vt. 100; Worthington v. Hylyer, 4 Mass. 196. The general clause "lots sold" in the deed determines its construction, and would convey only lots coming within such description, that is, those which he had previously conveyed, and these would pass, though omitted in the enumeration. Bott v. Burnell, 11 Mass. 163; Cutler v. Tufts, 3 Pick. 272; Dodge v. Nichols, 5 Allen, 548; Drew v. Drew, 28 N. H. 501; Harvey v. Mitchell, 31 id. 575. It is a fundamental rule that deeds shall be construed in a way to effectuate the intent of the parties. If upon the whole instrument the estate intended to be conveyed can be ascertained with convenient certainty, a further inconsistent or untrue description of it will be disregarded. Many illustrations of the rule are found in reported cases. Thus a deed of all A.'s interest in lot No. 7, which was conveyed to A. by B., when in fact A.'s title came from C. instead of B., was held to convey A.'s interest in lot 7. Hathaway v. Juneau, 15 Wis. 264. The evident intent of the deed was to convey A.'s interest in lot No. 7. The origin of A.'s title was mere matter of description of the interest intended to be conveyed, and hence was disregarded. In Smith v. Strong, 14 Pick. 128, the deed described certain pieces of land by numbers in the Boston purchase," among which were the lots in question, Nos. 15 and 43. These lots in fact were not in the "Boston purchase," but north of it; nevertheless they were held to have passed, on the ground that the specific designation of the lots by number controlled the general description as to their location. In Doe v. Rouse, 5 C. B. 422, the testator devised certain property to his "dear wife Caroline." His lawful wife Mary was living at his death; but he had gone through the ceremony of marriage with another woman named Caroline, who was living with him at his decease. The words "dear wife" were false as applied to Caroline, and were in strictness only applicable to Mary. The court held that Caroline took the estate devised, as she was specially named as devisee; and the words "dear wife" would be treated as false demonstration. In all cases the inquiry is, Is there a grant of a specific thing? if so, the addition of an untrue circumstance attending it shall not defeat

-DESCRIPTION IN EXCEPTION AND RESERV

* Appearing in 53 Vermont Reports.