of their own statute, 8 and 9 Vict. 109, upon this subject. Jarvis, C. J., left the question to the jury to say, "whether either party meant to purchase or sell the shares in question," telling them, if they did not, the contract was, in his opinion, a gambling transaction and void. On a motion afterward for a new trial, the opinion of the chief justice was sustained, Justice Cresswell, among other of the judges, saying: "As to the evidence, I think it abundantly warranted the jury in coming to the conclusion that there was no real contract of sale, but that the whole thing was to be settled by the payment of differences. It clearly was a gambling transaction within the meaning of the statute."

Now, the only real difference between this case and the one in hand is this, that in the case cited there was something to submit to a jury, whilst in the one now under consideration there was nothing so to submit; the plaintiff himself, by his own testimony, having stamped the transaction with the brand of illegality.

Of the remaining exceptions it is unnecessary for us to speak, since what has already been said effectually disposes of this case. Judgment reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL-ORDER INVOLVING SUBSTANTIAL RIGHT ORDER GRANTING OPEN COMMISSION IS. This court has frequently decided that an appeal from an order involving a substantial right lies to the General Term, although in some degree dependent upon the discretion of the court which grants or refuses the motion, and that the refusal of the General Term to entertain such appeal and pass upon its merits is an error of law, reviewable in this court. Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 216. In the present case the General Term dismissed an appeal from an order allowing an open commission for the oral examination of two named witnesses, and such unnamed witnesses as might be produced within a specified time, to issue to a commissioner in Texas. The dismissal was on the ground that the order granting the commission did not involve a substantial right. Held, error. The grauting of such a commission does involve a substantial right. Anonymous, 59 N. Y. 315. Overruling Wallace v. American Thread Co., 2 T. & C. 574; Treadwell v. Pomeroy, id. 470. And an appeal lies to this court from the order of the General Term in the case at bar. Order of General Term reversed and case remitted to General Term to be heard on its merits. Jemison v. Citizens' Savings Bank of Jefferson. Opinion by Finch, J.

[Decided June 23, 1881.]

ARREST ALLOWABLE IN ACTION UPON FOREIGN JUDGMENT. -Section 552 of the Code of Civil Procedure declares that "the recovery of a judgment in a court not of the State, for the same cause of action, or when the action is founded on fraud or deceit, for the price or value of the property obtained thereby, does not affect the right of the plaintiff to arrest the defendant as prescribed in this title." In the case at bar plaintiff commenced in the Tennessee State court an action against defendant for the value of securities placed in his hands for sale, and converted by him to his own use. Upon the petition of defendant the cause was removed into the United States Circuit Court, in which court plaintiff obtained a judgment. Held, that plaintiff could bring action upon the judgment in the courts of this State, and that an order of arrest might issue in such action against defendant. A majority of the court are of the opinion that the action should be on the judgment and not upon an independent cause of action. Order affirmed. Baxter v. Drake. Opinion by Miller, J.

[Decided June 14, 1881.]

PRACTICE -WHEN CONSTITUTIONAL QUESTION CANNOT BE RAISED UPON APPEALABLE ORDER. In a proceeding to acquire title to lands in the city of New York for the opening of certain streets, under Laws 1874, chapter 604, upon application of commissioners of the department of public parks, commissioners of estimate were appointed by an order of the court, under Laws 1813, chapter 86, by which the proceeding was regulated. By the latter act it is provided that in such proceedings "the report of the commissioners, when confirmed, shall be final and conclusive." The application was on due notice and was not opposed, but upon a motion to the court to confirm the report of the commissioners of estimate, the New York corporation counsel appeared and objected to confirmation on the ground that the act of 1874, etc., was unconstitutional. The report was confirmed, the corporation counsel appealed to the General Term, which affirmed the order of confirmation, from which lastnamed decision he appealed to this court. No appeal was taken from the order appointing commissioners of estimate. Held, that the question of the constitutionality of the statute objected to could not be examined upon the orders of confirmation, and an appeal to review such orders would not lie to this court. Appeal dismissed. In re Department of Public Parks. Opinion by Earl, J.

[Decided June 14, 1881.]

SPECIAL PROCEEDING - EMINENT DOMAIN-ORDER OF DISCONTINUANCE OF PROCEEDINGS TO ACQUIRE LAND DISCRETIONARY, AND MAY BE MADE SUBJECT TO PAYMENT OF EXPENSES. The W. Water-works Company instituted a proceeding under Laws 1873, chap. 737, and Laws 1876, chap. 415, to acquire land for the purposes of the company. After commissioners were appointed, a hearing had by them, and an award had been made for damages, before their report bad been presented to the court for confirmation, the company moved for leave to discontinue. Such leave was granted upon condition that the company should pay to the owner for his expenses, charges and counsel fees $375 and $50 for referee's fees. This order was reversed by the General Term, on the ground that the court had no power to order as a condition for the discontinuance payment of more than the taxable costs and disbursements under Laws 1854, chap. 273, § 3, which provides that "In special proceedings and appeals therefrom costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions." Held, that the decision of the General Term was erroneous. The costs provided for in the act of 1854 are those to be allowed in the discretion of the court upon the termination of a special proceeding. The company could discontinue this proceeding only by leave of the court in which it was pending. In re Washington Park, 56 N. Y. 144; Carleton v. Darcy, 75 id. 375. The court could grant the leave or absolutely refuse it in its discretion, and it could determine upon what terms it would grant a discontinuance. The court in which an action is pending may impose terms beyond taxable costs as a condition of the discontinuance of the action. In case the moving party cannot or will not comply with the condition the result is simply a denial of his motion, a result which the court could have produced by an absolute denial. Order of General Term reversed and that of Special Term affirmed. In re Waverly Water-works Co. Opinion by Earl, J. [Decided June 14, 1881.]

which he had procured for them with their money. Held, that these securities could not be assessed to him for taxation in Ithaca under the provisions of 1 R. S. 387, § 5, as amended by Laws 1851, chap. 176, that every person shall be assessed in the town where he resides for all personal estate owned by him, including all such personal estate in his possession or under his control as agent, trustee," etc., but such securities were assessable only to the sisters in Rochester. The reasonable limitation of the statute referred to is to property owned by a non-resident, situate in this State, but in the hands of some one having a special interest in or control over it, or to property in the hands of one occupying a peculiar relation to it as trustee, executor or administrator, although the real party in interest as legatee, devisee, cestui que trust, or other like character, resides in the State. Hoyt v. Commissioners of Taxes, 23 N. Y. 224. The object of this kind of legislation is to reach all property in this State, and is effected when the resident is assessed at his home, the beneficial owner in the person of his trustee and the non-resident through his agent. The cases Williams v. Supervisors, etc.. 78 N. Y. 561; People v. Trustees of Ogdensburgh, 48 id. 397; Catlin v. Hull, 21 Vt. 152. People v. Gardner, 51 Barb. 352, distinguished. Order of General Term reversed and that of county court affirmed. In re Boardman v. Supervisors of Tompkins County. Opinion by Danforth, J. [Decided May 31, 1881.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

CORPORATION-DOMICILE OF JOINT-STOCK COMPANY SUABLE IN NAME OF PRESIDENT.- A New York jointstock company possessing the right, by the law under which it was organized, to sue and be sued in the name of its president or treasurer, is a citizen of the State of New York in the same sense that corporations are citizens of the States under whose laws they are organized; and such joint-stock company may, by the comity of States, sue and be sued in the name of such officer in the Federal courts as a citizen of New York, even though shareholders of such joint-stock company are citizens of the same State as the adverse party to the suit. In determining what such joint-stock companies are, regard is to be had to their essential attributes rather than to any mere name by which they may be known. If the essential franchises of a corporation are conferred upon a joint-stock company, it is none the less a corporation because the statute calls it something else, or even designates it as an "unincorporated association." U. S. Circ. Ct., Indiana, May 3, 1881. Fargo v. Louisville, New Albany & Chicago Railway Co. Opinion by Gresham, D. J.

JURISDICTION -OF STATE COURT AS TO NATIONAL BANKS FOR PURPOSES OF TAXATION INJUNCTION.

-

A National bank may be compelled to disclose the names of its depositors, and the amount of their deposits, under the compulsory process of a State court, in order to ascertain whether any money deposited therein, subject to taxation within the county, has not been duly returned for that purpose by the owners. Federal court cannot, in such case, stay the proceedings in the State court by writ of injunction. U. S. Circ. Ct., N. D. Ohio, April, 1881. First National Bank of Youngstown v. Hughes. Opinion by Baxter, C. J.

A

PATENT-REISSUE- - DECISION OF COMMISSIONER AS TO NECESSITY VARYING CLAIMS UPON. - The decision of the commissioner of patents as to the mere necessity of a reissue is conclusive. A mistake as to the necessity of such reissue does not constitute an excess * Appearing in 6 Federal Reporter.

of jurisdiction. Upon such reissue the claims may be varied in order to express the real invention. See Allen v. Blunt, 3 Story, 742; Stimpson v. Westchester R. Co., 4 How.380; O'Reilly v. Morse, 15 id. 62; Batten v. Taggert, 2 Wall, Jr., 101; S. C., 17 How. 74; Bennett v. Fowler, 8 Wall. 445; Goodyear Cases, 2 Wall, Jr., 283; 2 Cliff. 351; 9 Wall. 798; Seymour v. Osborne, 11 id. 516; Roberts v. Ryer, 91 U. S. 150; Marsh v. Seymour, 97 id. 348; remarks of Bradley, J., in Powder Co. v. Powder Works, 98 U. S. 136, and of the same learned judge in Carlton v. Bokee, 17 Wall. 463, where he intimates that a reissue may be good as to those claims which agree with the invention, and void as to others which exceed it. Cochrane v. Deener, 94 U. S. 780; Conover v. Roach, 4 Fish. 12; Stevens v. Pritchard, 10 Off. Gaz. 505; Herring v. Nelson, 14 Blatchf. 293; Johnson v. Flushing R. Co., 15 id. 192; Aniline Co. v. Higgins, id. 290; Pearl v. Ocean Mills, 11 Off. Gaz. 2. None of these cases, unless it be Batten v. Taggert, 17 How. 74- which is perhaps inconsistent with Leggett v. Avery, 101 U. S. 256- has been overruled; and many similar cases could be cited. U. S. Circ. Ct., Mass., Jan. 22, 1881. Smith v. Merriam. Opinion by Lowell, C. J.

REMOVAL OF CAUSE FIXED BY COUNTER-CLAIM.-The claim of the plaintiff and not the counter-claim of the defendant should fix the amount in dispute, in determining the right to remove a cause from the State court under the act of March 3, 1875. Clarkson v. Manson (U. S. Circ. Ct., S. D. N. Y.), 4 Fed. Rep. 257, contra. U. S. Circ. Ct., E. D. Missouri, March, 1881. Falls Wire Manufacturing Co. v. Broderick. Opinion by Treat, D. J.

AMOUNT TO AUTHORIZE NOT

But

SURETYSHIP — EXTENSION OF TIME OF PAYMENT — CONSIDERATION-USURIOUS AGREEMENT. - The payment of a certain sum of money for the extension of time upon a note, though regarded as a payment of usurious interest, constitutes a valuable consideration under the statute of Michigan, and the agreement to extend will operate to discharge a surety on the note, if made without his consent. The courts are nearly uniform in their judgments that a promise to pay usurious interest will not uphold an agreement to forbear, because the promise cannot be enforced, though it was held otherwise in Wheat v. Kendall, 6 N. H. 504. when the usurious sum has been paid, learned judges differ whether there is a consideration to uphold the agreement or not. In New York and Vermont the statute declares contracts tainted with usury to be void; and if usury has been paid, it can be recovered back, with a penalty against the taker. In the former State it was held by two judges, without dissent from the other two, that payment of usury does not afford a consideration. Vilas v. Jones, 1 N. Y. 274. In Vermont, on the other hand, a united court has repeatedly held the other way. Turrill v. Boynton, 23 Vt. 142; Burgess v. Dewey, 33 id. 618. In South Carolina and Missouri such contracts are not void by statute, and in both it has been held that usury paid will not uphold an agreement to forbear. Cornwall v. Holly, 5 Richardson (S. C.), 47; Bank v. Harrison, 57 Mo. 503. In Wisconsin it was decided, in Meiswinkle v. Jung, 30 Wis. 361, that usurious interest paid was not a sufficient consideration; but in a recent case the earlier decision has been overruled. Hamilton v. Prouty, 7 N. W. Rep. 659. In Kentucky, Indiana, Illinois and Ohio, the statute, like that of Michigan, does not make the contract void, and the decisions are uniform that usurious interest paid is a valuable consideration and upholds the agreement to forbear. Kunningham v. Bradford, 1 B. Monroe, 325; 8 id. 382; Cross v. Wood, 30 Ind. 378; Wittmer v. Ellison, 72 T11. 301; McComb v. Kittridge, 14 Ohio, 348. See 1 Pars. on Notes and Bills (2d ed.), 240. U. S. Circ. Ct., W. D. Mich., Jan. 15, 1881. Vary v. Norton. Opinion by Withey, D. J.

IOWA SUPREME COURT ABSTRACT.

MARRIED WOMAN - PROPERTY NOT LIABLE FOR DEBTS OF INSOLVENT HUSBAND EMPLOYED BY HER.

Under the statutes of Iowa, which permit a married woman to carry on business on her own account, she may take a valid lease of a farm, and the products are not necessarily liable to be seized upon execution for the payment of her husband's debts. But under some circumstances they might be liable. Any device whose object was to enable a married woman to accumulate property in her name through the labor of her insolvent husband would be looked upon with suspicion, and the circumstances might be such as to evince an unmistakable attempt to defraud his creditors. But the mere fact that an insolvent man performs labor upon a farm owned or hired by his wife would not necessarily evince such attempt. Webster v. Hildreth, 33 Vt. 457; Gage v. Dauchy, 34 N. Y. 293; McIntyre v. Knowlton, 6 Allen, 566; Dean v. Bailey, 50 Ill. 484; George v. Ransom, 15 Cal. 322; Patterson v. Spearman, 37 Iowa, 26. It is not only a man's right, but his duty, to provide himself with food and clothing, and if he is a married man to provide his wife with food and clothing. It is for this reason that the law allows certain exemptions. Nor would the case be different if the labor was performed by minor sons. Royer. Opinion by Adams, C. J.

[Decided April 19, 1881.]

Carn v.

NEGLIGENCE- -REMOTE CAUSE- SETTING FIRE BY ENGINE SPARKS. — In an action against a railroad company to recover for the loss of plaintiff's elevator, alleged to have been burned by sparks from defendant's locomotive, it appeared that the fire was first communicated to an elevator which was about twenty feet from defendant's track and from this elevator communicated to plaintiff's elevator, about seventy feet distant from it. The court instructed the jury that the damages claimed in the action were not remote, and recovery might be had therefor. Held, that this instruction was correct, and in accord with the weight of authority. M. & St. P. R. Co. v. Kellogg, 94 U. S. 469; T., P. & W. Ry. Co. v. Pindar, 53 Ill. 447; Ins. Co. v. Tweed, 7 Wall. 44; Fent v. T., P. & W. R. Co., 59 Ill. 349; Kellogg v. C. & N. W. R. Co., 26 Wis. 224; A., T. & S. F. R. Co. v. Stanford, 12 Kans. 354; Ingersoll v. S. & P. R. Co., 8 Allen, 438; Perley v. East. R. Co., 98 Mass. 414; D., L. & W. Ry. Co. v. Salmon, 39 N. J. Law, 299; Clemens v. R. Co., 53 Mo. 366; Poeppers v. M. K. & T. Ry. Co., 67 id. 715. Sinall v. Chicago, Rock Island & Pacific Railway Co. Opinon by Rothrock, J. [Decided April 5, 1881.]

MARYLAND COURT OF APPEALS ABSTRACT.*

ADMINISTRATOR-PAYMENT TO FOREIGN OF FOREIGN CREDITOR VALID AGAINST DOMESTIC ADMINISTRATOR.

-A voluntary payment by a debtor in this State to the executor or administrator of his creditor appointed in another State in which the creditor had his domicile at the time of his death, is valid, and a good discharge of the debt, where such payment has been made before any administration has been granted in Maryland, and such payment is a bar to the claim of the domestic administrator afterward appointed; nor does the validity of such payment depend in any manner upon the fact of the non-existence of debts against the deceased in this State. This question has never been distinctly decided in this court, but it has arisen in several of the other States, and in the Supreme Court of the United States, and the general current of the decisions has

* Appearing in 52 and 53 Maryland Reports.

held that such voluntary payment is valid, and a good discharge of the debt. This opinion was expressed by Chancellor Kent in Williams v. Storrs, 6 Johns. Ch. 353, 357, and Doolittle v. Lewis, 7 id. 46, 48. It was so decided by the Supreme Court of Massachusetts in Rand v. Hubbard, 4 Metc. 255, and Hutchins v. State Bank, 12 id. 421; and in New York in Parsons v. Lyman, 20 N. Y. 112, where the subject is fully considered in an elaborate opinion by Denio, J. By the Supreme Court of the United States it has been recognized as well established. Mackey v. Coxe, 18 How. 104, and Wilkins v. Ellett, 9 Wall. 740. In the case last cited the identical question arose. The court referred to the doubts expressed by Story in Conflict of Laws, sections 514, 515, and say, "with the exception of the case in Tennessee (Young v. O'Neal, 3 Sneed, 55), none have been referred to, nor have our own researches found any maintaining the invalidity of the payment." Citizens' National Bank of Baltimore v. Sharp. Opinion by Bartol, C. J.

RIPARIAN OWNER-RIGHT OF ACTION BY, FOR OBSTRUCTION OF STREAM- NUISANCE. — The mayor and city council of Baltimore, in the exercise of a statutory authority to improve the Patapsco river, deposited mud, sediment and other material dredged from the bottom of the basin, on the flats in the river opposite the property of G. on that river within four miles from the city, and thereby materially obstructed access by water, as formerly used and enjoyed, to G.'s property. In an action brought by G. against the city, held, that these obstructions constituted a public nuisance and that G. could maintain a private civil action for special and particular damage suffered by him by reason of this nuisance, beyond that suffered by the public generally, on offering proof tending to show such to be the case, and a statute providing penalties for making such obstruction would not affect the common-law remedy of G. by such civil action. The public have a right, at common law, to navigate over every part of a common navigable river. 3 Kent Com. 427. They have a right to all the conveniences which the former state of the river afforded, and they cannot be deprived of this benefit by the exercise of any discretionary power on the part of the city, or its officials or agents, as to the uses to be made of certain parts of the bed of the river, even for the improvement of other parts. Rex v. Grosvenor, 2 Stark. 511; Rex v. Ward, 4 Ad. & Ell. 384. The riparian owner can have no claim simply for the obstruction of navigation, which constitutes the public nuisance; nor can he have claim for any injury sustained in common with the rest of the public. But by the obstructions in the immediate front of his property, preventing access thereto as formerly, he suffers an injury that no other member of the public can suffer. It is the peculiar and direct relation of the deposits complained of to the property and rights of the owner that gives rise to the special and particular damage; and no other person than the owner of this particular property can be affected in like manner from these particular deposits. This was the ground upon which the actions were supported in the cases of Iveson v. Moore, 1 Ld. Raym. 486, and Wilkes v. Hungerford Market Co., 2 New Cas. 281. See, also, Houck v. Wachter, 34 Md. 272; Rose v. Groves, 5 M. & G. 613; Rose v. Miles, 4 M. & S. 101: Cook v. Corporation of Bath, L. R., 6 Eq. Cas. 177: Atty.-Gen. v. Earl of Lansdale, L. R., 7 Eq. Cas. 390. Garritee v. Mayor of Baltimore. Opinion by Alvey, J.

que trust demands in equity an account from the trustee, and there is an express, subsisting, and recognized trust, neither the period of limitatious prescribed by statute, nor length of time, is a bar to relief. 32 Md. 239; Lewin on Trusts, 612; Hovenden v. Lord Anuesley, 2 Sch. & Lef. 633; Needles v. Martin, 33 Md. 619. If however there is merely an implied or constructive trust, arising by operation of law, courts of equity will, as a general rule, follow and obey the law by applying the statutory limitation of time. McDowell v. Goldsmith, 6 Md. 337; 2 Md. Ch. Dec. 391; 32 Md. 240; 2 Perry on Trusts, § 865. Mere doubt as to the right, or difficulty in the way of its assertion will not affect the running of the statute; apart from the disabilities expressed in the statute itself, there must, in order to prevent its operation, be some insuperable barrier, or some certain and well defined exception clearly established by judicial authority. See Green v. Johnson, 3 G. & J. 394. (2) Entries in a family Bible or Testament are admissible in evidence even without proof that they have been made by a parent or a relative. But such entries are not in all cases conclusive of the facts stated; their weight as evidence is subject to be weakened or strengthened by all the proof in reference to them. Who made the entries, when they were made, and whether the book has been so kept as to be accessible at all times, to all the members of the family, are all matters to be considered in determining the probative force of such entries. Taylor's Ev. 585; Hubback's Ev. Suc. 672; Jones v. Jones, 45 Md. 144. (3) Entries in the baptismal register of a church made by the clergyman in the regular discharge of his clerical duties, are admissible in evidence, after his death, though there is no law requiring such records to be kept. Ordinarily such entries are admissible only for the purpose of proving the fact and date of baptism, and not of other matters therein stated, such as the date of the birth of the child. See Kennedy v. Dodge, 10 Allen, 161; Blackburn v. Crawford, 3 Wall. 175; Reynolds v. Manning, 15 Md. 510; Romer v. Jaecksch, 39 id. 585. Weaver v. Leiman. Opinion by Miller, J.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
FEBRUARY 1881.

DEAD BODY- RIGHT OF CONTROL OF SEPULTURE. Neither the husband nor the next of kin have strictly speaking, any right of property in a dead body; but controversies between them as to the place of its burial are in this country, where there are no ecclesiastical courts, within the jurisdiction of a court of equity. Meagher v. Driscoll, 99 Mass. 281; Pierce v. Swan Point Cemetery, 10 R. I. 327. When a body has once been buried, no one has the right to remove it, without the consent of the owner of the grave, or leave of the proper ecclesiastical, municipal or judicial authority. Regina v. Sharpe, Dear. & B. 160; Wynkoop v. Wynkoop, 42 Penn. St. 293. But where it appears that a husband has allowed the body of his wife to be buried in the cemetery lot of another, but not with the intention that it should be her final resting place, the court will, even against the wishes of the lot-owner, upon his petition, permit him to remove the body to Weld v. Walker. Opinion another place of burial. by Gray, C. J.

chantable meat.

The burden of proof on that issue rested upon the plaintiff. Evidence of the sale and delivery to the defendants of beef of the quantities alleged might make a prima facie case; but it would not change the burden of proof. Caverly v. McOwen, 123 Mass. 574; Funcheon v. Harvey, 119 id. 469; Powers v. Russell, 13 Pick. 69; Central Bridge v. Butler, 2 Gray, 130. Zoller v. Morse. Opinion by Gray, C. J. NEGLIGENCE

-

WHEN

RESPONDEAT SUPERIOR OWNER LIABLE FOR NEGLIGENCE OF CONTRACTOR.—

Defendant having occasion to construct a sewer from the cellar of its building to the common sewer, employed a contractor to do the work. In constructing this sewer it was necessary to cut through a plank barrier which had been constructed beneath the surface of the street to prevent the tide flowing into cellars in that locality. The contractor so negligently performed this part of his work that the tide-water came through the opening made by him and flowed into the cellar of a building owned by plaintiff, adjoining that of defendant. Held, that defendant was liable for the injury done by the tide-water to plaintiff's premises. The owner of a building, who has used due care in the employment of an independent contractor, is not responsible to third persons for the negligence of the latter occurring in his own work in the performance of the contract, such as the handling of tools or materials or providing temporary safeguards while doing the work. Hilliard v. Richardson, 3 Gray, 349; Connors v. Hennessey, 112 Mass. 96. As to such matters, pertaining to the mode in which he does the work, he is not the servant of the owner. But where the thing contracted to be done from its nature creates a nuisance, or when, being improperly done, it creates a nuisance and causes mischief to a third person, the employer is liable for it. Gorham v. Gross, 125 Mass. 232, and cases cited. In the case at bar, the defendant had a right to make an opening through the barrier for the purpose of laying a drain, but it was its duty to close it securely so that the cellars should be protected from the tide. Having employed an independent contractor, it is not responsible for his negligent acts while doing the work, because in respect to such acts he is not its servant; but if the work, after it was done, created a nuisance and caused injury to the plaintiff, it is responsible. Sturges v. Society of Theological Education. Opinion by Morton, J.

SURETYSHIP--CONSTRUCTION OF CONTRACT.-A note was made by a corporation, payable to the order of P., its treasurer, and was indorsed by P. On the back of the note was a guaranty signed by defendants and reading thus: "We hereby guarantee the payment of the within note, waiving demand, notice and protest." Held, that the guaranty would not be construed as made to P., but as given to secure the party who first accepted it as a valid contract and advanced money to the maker of the note upon its credit. See McLaren v. Watson, 26 Wend. 425; Northumberland Bank v. Eyer, 58 Penn. St. 97. Baldwin v. Dow. Opinion by Colt, J.

charged with, the instructions of his principal to perform those acts or to make those declarations; that they form a part of the business he is employed to transact -as, where an agent is employed to settle with laborers, his admission that a sum is due to one of them is evidence against his principal that such is the fact. 2 Stark. Ev. 57. Such an admission results fairly from the exigencies of the business the agent is employed to transact, and is clearly a part of it, and to every intent, the act of the principal himself." Batchelder v. Emery, 20 N. H. 165; Glidden v. Unity, 33 id. 571; Morse v. Conn. R. R. Co., 6 Gray, 450; Story on Agency, § 138. Lyman v. Boston & Maine Railroad Co. Opinion by Foster, J.

-

REFORMATION OF DEED.

EQUITABLE ACTION When reformation is sought of a deed, which, through fraud or mistake, conveys less land than was orally bought and paid for, the case does not stand as if there were no deed; and the error may be corrected without proof of such part performance as is necessary for a decree of specific performanco compelling a conveyance of the whole land when no part of it has been conveyed. 1 Story's Eq., §§ 152-161; Adams' Eq. 169, 171; 3 Gr. Ev., §§ 360, 363; Bloomer v. Spittle, Fisher 's An. Dig. (1872) 131; Tilton v. Tilton, 9 N. H. 385; Purcell v. Miner, 4 Wall. 513; Prescott v. Hawkins, 12 N. H. 19; 16 id. 122; Way v. Cutting, 17 id. 450; Bellows v. Stone, 14 id. 175; Smith v. Greeley, id. 378; Craig v. Kittredge, 23 id. 231; Busby v. Littlefield, 31 id. 193; 33 id. 76; Webster v. Webster, id. 18; Doe v. Doe, 37 id. 268; Herbert v. Odlin, 40 id. 267; Brown v. Glines, 42 id. 160; Kennard v. George, 44 id. 440; Leach v. Noyes, 45 id. 361; Peterson v. Grover, 20 Me. 363; Farley v. Bryant, 32 id. 475, Tucker v. Madden, 44 id. 206; Adams v. Stevens, 49 id. 362; Burr v. Hutchinson, 61 id. 514; Beardsley v. Knight, 10 Vt. 185; Griswold v. Smith, id. 452; Goodell v. Field, 15 id. 448; Blodgett v. Hobart, 18 id. 414; Brown v. Lamphear, 35 id. 252; Shattuck v. Gay, 45 id. 87; Allen v. Brown, 6 R. I. 386; Holabird v. Burr, 17 Coun. 556; Wooden v. Haviland, 18 id. 101; Sted well v. Anderson, 21 id. 139; Knapp v. White, 23 id. 529; Blakeman v. Blakeman, 39 id. 320; Gillespie v. Moon, 2 Johns. Ch. 585; Wiswall v. Hall, 3 Paige's Ch. 313; Johnson v. Taber, 10 N. Y. 319; DePeyster v. Hasbrouck, 11 id. 582; Rider v. Powell, 28 id. 310; Welles v. Yates, 44 id. 525; Bush v. Hicks, 60 id. 298; Ginschio v. Ley, 1 Phila. 389; Bartle v. Vosburg, 3 Gr. Cas. (Penn.) 277; Wyche v. Greene, 16 Ga. 49; Durant v. Bacot, 13 N. J. Eq. 201; Weller v. Rolason, 17 id. 13; Ehleringer v. Moriarty, 10 Iowa, 78; Barber v. Lyon, 15 id. 37; Canedy v. Marcy, 13 Gray, 373; Metcalf v. Putnam, 9 Allen, 97. Hitchins v. Pettingill. Opinion by Foster, J.

EVIDENCE

OF FRAUDULENT SALE TAX LISTS PUBLIC RECORDS. (1) Evidence that after a sale the property sold was taxed to the vendor, with his knowledge and without objection, is admissible to show that the sale was fraudulent. When the inquiry is whether a sale was made in good faith or not, the whole conduct of the party whose acts are assailed, before and after, as well as at the time the contract was made, may be inquired into. Reels v. Knight, 8 Mar. (La.) N. S. 267. "The word 'relevant' means that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other." Step. Dig. of Evid. (May's Amer. ed.) 36; Darling v. Westmoreland, 52 N. H. 401. When the issue is fraud, great latitude is allowed in the proof of circumstances. Blake v. White, 13 N. H. 207. (2) An inventory of property made by municipal assessors of taxes for purposes of taxation is a public record, the contents of which may be proved by a duly verified

copy. Forsaith v. Clark, 21 N. H. 409; 1 Gr. Ev., § 91. Lamprey v. Donacour. Opinion by Foster, J.

HUSBAND AND WIFE- CONTRACTS FOUNDED ON AGREEMENT FOR DIVORCE INVALID. An agreement between husband and wife, having for its object a dissolution of the marriage contract, is contrary to sound public policy; and a note and mortgage, executed in pursuance of such an agreement, are illegal and void. Sayles v. Sayles, 21 N. H. 312; Weeks v. Hill, 38 id. 199. Cross v. Cross. Opinion by Clark, J. MORTGAGE ASSUMPTION OF, NOT AFFECTED WHEN NO WORDS TO THAT EFFECT IN DEED. Where land is conveyed in terms subject to a mortgage, the grantee does not undertake to become bound, by the mere acceptance of the deed, to pay the mortgage debt. Strong v. Converse, 8 Allen, 557; Drury v. Tremont Improvement Co., 13 Allen, 168; Fiske v. Tolman, 124 Mass. 254. But if a grantee take a deed containing a stipulation that the land is subject to a mortgage, which the grantee assumes or agrees to pay, a duty is imposed on him by the acceptance; and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie. Pike v. Brown, 7 Cush. 133; Braman v. Dowse, 12 id. 227; Jewett v. Draper, 6 Allen, 434; Trotter v. Hughes, 12 N. Y. 74; Belmont v. Coman, 22 id. 438. The cases above cited are not in conflict with Hancock v. Carlton, 6 Gray, 39, and Taylor v. Preston, 79 Penn. St. 436, being marked by the important and essential distinction, that in the two latter cases, but not in the former, the grantee's obligation to pay an existing incumbrance was plainly expressed and assumed as a part of the consideration. Woodbury v. Swan. Opiuion by Foster, J.

FINANCIAL LAW.

NATIONAL BANK - REMEDY OF STOCKHOLDERS AGAINST DIRECTORS FOR LOSS JURISDICTION. - The stockholders of an insolvent National bank, the funds of which have been misappropriated by its cashier, such misappropriation being resultant from the negligence of the directors, can, in case the bank or its receiver refuse to bring such an action, bring an action against the directors to recover the loss suffered, and the bank or receiver be made a defendant. In such action the Federal courts would not have exclusive jurisdiction. The fact that the suit relates to the affairs of a National bank does not deprive the State courts of jurisdiction. Bank of Bethel v. Pahquioque Bank, 14 Wall. 383; Cooke v. State Bank, 52 N. Y. 96; Brinckerhoff v. Bostwick, 23 Hun, 237. New York Supreme Court, Special Term (1st dept.), April 18, 1881. Nelson v. Burrows. Opinion by Van Vorst, J.

EFFECT OF

NEGOTIABLE INSTRUMENT-PAYMENT STRANGER TAKING UP NOTE. - If one not a party to nor liable upon a note takes it up with his own money, the transaction will be deemed a purchase, and not a payment, if such was the intention of the parties; and this is the rule, whatever may have been the mode adopted of accomplishing the result. In this case one H., who had assumed to pay certain notes secured by a deed of trust on real estate, in order to prevent a foreclosure, procured a bank to take up the notes. The arrangement was that the bank should take the note of one B. with the real estate notes as collateral security. B. accordingly executed his note and sent it to the bank. The holder of the real estate notes also sent them to the bank accompanied by a draft on H. for the amount due upon them. The bank paid the amount, and took the notes. Held, that the transaction amounted to a purchase and not to a payment. Citing Harbeck v. Vanderbilt, 20 N. Y. 398; White v. Knapp, 8 Paige, 175; Missouri Supreme Court. Swope