moneys to prove the conditions of such sale and the amount bid. The affidavits are but prima facie evidence of the facts stated, and may be controverted.

CALIFORNIA.

(Supreme Court.)

JEFFERS, ADMINISTRATOR v. COOK ET AL. Sept. 21, 1881.

Mortgage-Foreclosure-Parties.-A decree of foreclosure of a mortgage does not affect purchasers from the mortgagor, who are not made parties to the action, such purchasers having acquired their rights prior to the commencement of the foreclosure suit.

Supplemental complaint-Statute of limitations.-Persons in whose favor the statute of limitations has run cannot, by supplemental complaint filed in an action commenced against their grantor within time, be deprived of the benefit of the plea of such statute. Grantees of a mortgagor have the right, independent of their grantor, to plead the statute of limitations.

Supplemental complaint is a new action as to new parties. -A supplemental complaint is a continuance of the original action as to the original defendant, but is the commencement of a new action as to parties brought in by the supplemental complaint.

Extinguishment of mortgage by time.-The lien of a mortgage is extinguished by the lapse of the period of limitation provided for bringing suit to foreclose it.

Lis pendens (Per McKinstry, J.)-The grantee, after foreclosure brought, of a party whose deed from the mortgagor had been recorded prior to the commencement of foreclosure proceedings, is not affected by the filing of a lis pendens, such person (grantor) not having been made a party to the foreclosure suit.

UNITED STATES COURTS.

(Southern District of Ohio-Eastern Division.)

The December term of the District and Circuit Courts opened on Tuesday morning of this week, with Judges Baxter and Swing present.

The Grand Jury was empannelled and entered upon active duty.

Judge Baxter at once proceeded to call the Equity Docket, which contained nineteen cases. A large number were continued.

Judge Swing called the Circuit Court Docket, and empannelled & jury in the case of The Minneapolis & St. Louis Railway Company v. The Columbus Rolling Mill Company. The amount involved is $32,000. Messrs. Olds & Critchfield represent the plaintiff; Messrs. Harrison, Olds & Marsh the defence. Case still on.

The Courts opened in the new rooms, corner State and Fourth streets. There was no little comment on the question of the stinted quarters into which the United States officers were crowded to transact business. The Judges did not hesitate to convey in plain and emphatic language that it was a humiliating sight to see the Government quarters so far beneath what they should be. About the only virtue apparent was an air of cleanliness, owing to everything being new. The location is out of the way, on a side street so to speak, over a corner grocery, and cramped in every way.

William C. Howard, Clerk; Channing Richards, Esq., District Attorney; Marshal Joseph C. Ullery, with other officers of the Court in Cin

No. 181. John Weaver v. William E. Carnahan. Error to the District Court of Butler County. LONGWORTH, J.

1. Where plaintiff sues to recover the value of services rendered, and defendant admits the rendition of the services, but denies the value to be as great as claimed, and avers that it does not exceed a certain specified amount, it is error to render a judgment in plaintiff's favor for such amount, and continue the cause for trial, to determine the further value of such services,

2. Where defendant, in such case, denies the rendition of the services and further alleges that, even if they had been rendered, they would have been worth a specified sum and no more, and the court thereupon, without trial had, erroneously renders judgment against him for such amount; the judgment, if acquiesced in by defendant, is final and a bar to further proceedings.

3. Section 376 of the Code, as amended March 13th, 1872, (69 O. L. 44), appplies only to cases where a part of the cause or causes of action is admitted and part denied. (Moore v, Woodside et al, 26 O. S. 537, distinguished.) Judgment reversed.

171. T. P. Handy et al. v. Etna Insurance Company. Error to the District Court of Cuyahoga County. MCILVAINE, J. Held:

1. A policy of marine insurance, which contained a stipulation that in case of loss or misfortune the insurer would contribute ratably to expenses incurred by the assured or their agents in and about the recovery of the insured cargo, was issued by a corporation of the State of Connecticut, also doing business in the State of Ohio. The cargo was sunk in waters of the State of Michigan, and labor was expended in efforts to recover it. Held, That the breach of such stipulation on the part of the insurer constitutes a cause of action against the company,

cognizable by the courts of this State.

2. After the filing of a petition on such cause of action and the issuing of a summons, which was returned served on the defendant by delivering a true and attested copy on an agent of the defendant, the defendant filed a motion to dismiss the action "for the reason that this court has no jurisdiction of the case, it appearing from the petition on file that said defendant is a foreign insurance company, and that no part of the alleged cause of action arose in this State." Held, That the filing of such motion was a voluntary appearance in the action and a waiver of any defect in the service of the summons.

Judgment reversed and cause remanded to the district court for further hearing on the petition in error.

172. George Russell adm'r of W. H. H. Turner v. Charles T. Sunbury, adm'r of John M. Anderson. Error to the District Court of Ashtabula County.

JOHNSON, J. Held:

The right to an action for wrongfully causing death, under "An Act requiring compensation for causing death by wrongful act, neglect or default," passed March 25, 1851, (2 S. & C. 1139), abates by the death of the wrong

doer.

Judgments of the district court and court of common pleas reversed and action dismissed at plaintiff's cost. 174. Andrew Nesbit v. George Worts et al. Error to the District Court of Lucas County. WHITE, J. Held:

1 Where an indemnity mortgage is conditioned to

save the mortgagee harmless, and to pay the note on which the mortgagee is surety, the protection of the mortgage extends to a liability incurred by the mortgagee jointly with the mortgagor for money borrowed to pay the first note, and with which such note was paid. 2. The affidavit on an indemnity mortgage, under Section of the Act relating to chattel mortgages as amended May 7, 1869, (66 O. L. 345), must show that the mortgage was taken in good faith, to make it valid against creditors. A statement that the claim on which the mortgagee is surety is just and unpaid, is not sufficient.

Judgment of the district court reversed and that of the common pleas modified.

173. John D. Williams v. Charlotte Englebrecht and others. Error to the District Court of Scioto County, OKEY, C. J.

In an action by the mortgagee against the mortgagor, under the statute (Civil Code, 558, Rev. Stats. 25781), to recover possession of the lands mortgaged, the fact that such mortgage was given to compound a felony is not available as a defense.

Judgment reversed.

187. Manasseh Glick, administrator of Jacob W. Alspach v. Samuel Crist. Errror to the District Court of Fairfield County.

BY THE COURT:

A payment by a principal debtor which will take a case out of the statute of limitations as to him, will have the same effect as to his surety, who is present for the purpose of seeing that the payment is made and credited, and makes no statement that any limitation shall be placed on the effect of such act.

Judgment of the district court reversed and judgment of the court of common pleas affirmed.

169. Alonzo Simmerson, Adm'r, v. Emeretta Tennery. Error to the District Court of Sandusky County.

BY THE COURT.

140. Thomas McGuire v. John and James McGuire et al. Error to the District Court of Summit County. Judgment affirmed. There will be no further report.

165. Diantha Richards et al. v. Simon Kidman et al. Error to the District Court of Sandusky County. Judgment of the district court reversed for error in reversing the judgment of the court of common pleas for refusing to grant a trial by jury, the case being one in which the parties were not, as of right, entitled to a trial by jury; and cause remanded to the district court for hearing as to the other grounds relied on for reversing the judgment of the court of common pleas.

168. The Baldwin Quarry Co. v. Robert J. Clements. Error to the District Court of Cuyahoga County. Passed for want of index to printed record, and for proper references in briefs of counsel to the pages of the printed record.

177. Jacob A. Long v. Wm. H. Palmer. Error to the District Court of Jackson County. Judgment affirmed, following the case of Nesbit v. Worts et al., this day decided.

178. Neil Macneale v. George W. Fackler. Error to the Superior Court of Cincinnati: Dismissed for want of preparation.

179. Hiram Cooper v. Pierson B. Holden et al. Error to the District Court of Hancock County. Judgment reversed on the ground that the case was appealable, and cause remanded to the district court for further proceedings. There will be no further report.

180. George C. Butts v. Charles K. Leonard et al. Error to the District Court of Washington County. Dismissed for want of preparation.

182. George W. Moore v. Charles McKhann. Error to the District Court of Darke County. Judgment affirmed. There will be no fɩ rther report.

191. Pittsburgh, Cincinnati & St. Louis Railway Co. v.

Daniel Haskell. Error to the Common Pleas Court of Madison County. Passed for want of proof of service of plaintiff's brief, on defendant in error.

196. S. Wyllys Pomeroy v. Buckeye Salt Co. Error to the District Court of Meigs County. Passed for proof of service of plaintiff's brief.

198. Henry T. Brown v. Charles E. M. Jennings. Error to the District Court of Athens County. Dismissed for want of preparation.

199. John Newcomer, Administrator, &c., v. Robert Malony. Error to the District Court of Richland County. Dismissed for want of preparation.

200. Edward W. Nye v. John Newton. Error to the District Court of Washington County. Dismissed for want of preparation.

230. City of Steubenville v. Jacob G. Culp. Error to the District Court of Jefferson County. Motion for leave to print petition in error granted.

Cases on the docket have been called up to and including No. 275.

MOTION DOCKET.

No. 208. Mary McClow et al. v. Ç. Stump et al. Motion to dispense with printed record in cause No. 1079 on the General Docket. Motion granted.

209. J. H. Devereux et al. v. Hugh J. Jewett et al. Motion to modify order in No. 1210 on the General Docket. Motion overruled.

210. Andrew S. Core, Assignee, &c., v. West Va. Oil and Oil Land Co. Motion to take cause No. 1096, on the General Docket out of its order. Motion overruled.

211. Andrew S. Core v. West Va. Oil and Oil Land Co. Motion to take cause No. 1110, on the General Docket, out of its order. Motion overruled.

212. English, Miller & Co. v. First National Bank of Athens. Motion to reinstate cause No. 155, on the General Docket. Motion granted.

213. Wm. B. Millikin, Administrator, v. P. J. B. Welliver, Administrator, &c. Motion to reinstate No. 153, on the General Docket. Motion granted at costs of plaintiff in error.

214. Enoch D. Cracraft et al. v. Joseph Smith et al. Motion to reinstate cause No. 154, on the General Docket. Motion granted at costs of plaintiffs in error.

215. Ex parte Larney. Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati. Motion overruled. There will be no further report.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Dec. 6, 1881.]

No. 1229. Margaret E. Hill v. Benjamin C. Hill. Error to the District Court of Richland County. Dirlam & Leyman for plaintiff; Pritchard & Wolfe and Thomas McBride for defendant.

1230. Leander J. M. Baker v. Thomas F. McGrew, adm'r et al. Error to the District Court of Clark County. Keifer, White & Rabbitts for plaintiff; J. F. McGrew, George Arthur, S. A. Bowerman and Summers for defendants.

1231. Mary A. Neil v. Wm. A. Neil. Error to the District Court of Franklin County. C. N. Olds and George L. Converse for plaintiff; Harrison, Olds & Marsh for defendants.

1232. Isaac E. Dresbach et al. assignees, &c. v. David H. Stern et al. Appeal-Reserved in the District Court of Pickaway County. Festus Walters for plaintiffs; Page & Abernethy for defendants.

1233. Isaac E. Dresbach et al. assignees, &c. v. Wilson Dresbach et al. Error to the District Court of Pickaway County. Festus Walters for plaintiffs; Page & Abernethy for defendants.

1234. F. J. L. Blandy v. John L. Taylor et al. Error to the District Court of Muskingum County. M. M. Granger and Trainor for plaintiff; V. J. Taylor and others for defendants.

The Washington Law Reporter is one of our most highly esteemed exchanges. The Editors are gentlemen, and well informed; and moreover have a frank and pleasant manner of discussion that makes disagreement with them profitable and not unpleasant. Therefore when the Reporter takes the OHIO LAW JOURNAL to task for citing authorities showing Mr. Justice Cox to be without warrant of law in discharging the Star Route Thieves, we can only regret that the Reporter otherwise so good is within the pernicious atmosphere and influence of the Wicked City.

The zeal displayed by the Reporter in defending Judge Cox is worthy of a better cause; and its announcement that all the Washington bar is in arms against us if we assail the integrity or ability of Judge Cox, does not seem to disturb us to any great extent. We simply repeat that Judge Cox decided contrary to law as we have shown and can more clearly show, and we don't care a fig, whether it is placed upon the ground of ignorance, or dishonesty of purpose. We charge neither. That is something outside our province.

The argument used so laboriously by the Reporter is successful in showing that the crime of conspiracy involves great moral turpitude; and that it is infamous in the sight of honest men; and that it entails punishment by imprisonment at labor in the penitentiary; but that it renders the Star Route thieves obnoxious to Washington society, (we mean high-toned political society) or that it disqualifies persons convicted of conspiracy, to become witnesses, the argument does not show. This is well known to the bench and bar at Washington, and the long drawn argument of counsel for the thieves, and of Judge Cox and the Washington Reporter can do no more than to pull wool over the eyes of those who are not lawyers. But these willing defenders of Brady & Co. should bear in mind that no offence is infamous to the extent of disqualification (as juror or witness), unless so declared by statute; that conspiracy in the District of Columbia is not "infamous" by statute; and that a conviction for conspiracy does not disqualify as a witness.

Please apply as a test the latter contingency. Let us imagine that Belknap or Babcock or Brady or any other gentleman of that crowd had been convicted of conspiracy, and at a subsequent time-say now, on the Guiteau Trial, the party who had been thus convicted and had served a term of retirement at labor, were offered as a witness, having seen the assassin fire the fatal shot; would Justice Cox hold that such conviction and degradation disqualified the offered witness from testifying? Now Brother Jackson you have the floor.

THE Supreme Court will adjourn sine die, to-morrow. The next term will begin on the first Tuesday in January, being two weeks from next Tuesday. There will be no change in the court, Judge Longworth will enter upon his regular term for which he was recently elected.

ADMITTED TO PRACTICE.

Below we give the names of the members of a class which was examined last week by the Supreme Court Committee, and by the court admitted to practice law in this State. The examiners were Judge F. W. Wood, O. W. Aldrich, T. A. Powell and Ivor Hughes. Miss Edith Sams, whose name we put at the head of the list is, we believe the fourth lady lawyer admitted to prac tice in this state. She was a student of Miss Florence Cronise, who has been in the practice of the law for several years, at Tiffin, where she is now enjoying a handsome and lucrative practice. Miss Sams stood among the highest in her class in point of percentage. Edith Sams, Tiffin.

F. W. Braddock, Wooster.
Louis F. Coleman, Lebanon.
W. W. Epps, Greenville.
W. F. Harn, Wooster.
James H. Leonard, Elyria.
Wm. F Nutt Jr., Sandusky.
Dudley Phillips, Manchester.
John P. Stein, Sandusky.
H. T. Shepherd, Quaker City.
A. A. Stearns, Cleveland.
Jerome C. Trask, Austinburg.
A. C. Voorhes, Coshocton.
James T. Close, Nevada.
Thos. S. Brown, Bellefontaine.
John A. Connelly, Mansfield.
Charles A. Craighead, Dayton.
James H. Duvall, Cincinnati.
John G. Dunn Jr., Columbus.
Wakene A. Gates, Toledo.
George A. Hay, Coshocton.
John W. Leahy, Tiffin.
E. W. Porter, Marysville.
John Reese, Bellefontaine.

GENERAL HENRY B. BANNING.

The death of General Banning occurred at Cincinnati Saturday evening last, and was very unexpected, although he had not been feeling well for some time no alarm was felt thereat. His many friends throughout the land will hear of his death with heartfelt sadness. There is scarcely a man in Ohio to-day better known 'than was General Banning. Personally, he was very popular, and through that popularity and well known ability, was recognized as an eminently successful public man. Early in 1861, he entered the army and served until the close of the war. By gallant service he earned the grade of Brevet Major General. After the war he was elected a member of the Ohio Legislature from the County of Knox-his native county,-and served two terms as a member of the House. He then removed to Cincinnati, where he took an active part in politics, and was three times elected to Congress. During the last few years he has been engaged in the active practice of law, being at the head of the well known firm of Banning & Davidson. He was forty-seven years old at his death. EXAMINING COMMITTEE FOR 1882.

THE Supreme Court has appointed the following named gentlemen, the Committe to examine applicants for admission to the Bar, during the year 1882:

Milton L. Clark, of Chillicothe, Chairman; M. A. Daugherty, E. L. Taylor, A. W. Krumm, O. W. Aldrich, H. J. Booth, R. Č. Huffman, all of Columbus; T. Q. Ashburn, of Batavia; S. V. Horton, of Pomeroy; G. H. Wald, J. B. Brannon, of Cincinnati'; W. C. McFarland, of Cleveland; W. M. Koons, of Mt. Vernon; J. K. Mower, of Springfield, and George Metcalf, of Elyria,

SUPREME COURT OF OHIO.

SAMUEL A. VAN FOSSEN

V.

THE STATE.

November 8, 1881.

A decree of divorce under a statute of another State authorizing a divorce between husband and wife, neither of whom is domiciled therein, is of no force or effect in this State where the parties were domiciled.

Error to the Court of Common Pleas of Muskingum County.

BOYNTON, C. J.

The plaintiff in error was tried and convicted of bigamy in the Court of Common Pleas of Muskingum County, at the May term of the present year, and sentenced to the penitentiary. The State gave evidence at the trial, tending to show that in March, 1850, the accused was married to Lydia J. Fowler, who was still living, and that on the 18th day of January, 1881, at said county, he intermarried with one Louisa Williams. The defendant offered in evidence what purported to be a record of a decree of divorce granted by the County Court of Larimer County, Colorado, by which it appeared that, in an action apparently brought by said Lydia J., she was divorced from the defendant at the December term of said county court in 1880, for some marital offence alleged and found to have been committed within that State. He also offered in evidence a copy of the general laws of Colorado, by which a year's residence was required by the party applying for a divorce, unless the marital offence was committed within the State, of while one or both of the parties

resided therein.

In reply to this evidence the State offered testimony tending to show that at the time said decree of divorce was granted, as well as at the time the action therefor was commenced, and for many years before, the defendant and his wife Lydia J. were both residents of and domiciled in Ohio; and that neither of them had ever acquired a domicile in Colorado. Whereupon the court charged the jury, that if they found that neither the husband nor wife was domiciled in Colorado, when the action for divorce was instituted or prosecuted, but that both were then domiciled in Ohio, the decree of the Colorado court was void, or inoperative beyond the limits of that State. The question to be decided arises upon an exception to this in

struction.

We think the instruction was correct. The courts of one state have no jurisdiction over any marital offence, or of divorce, wherever arising, unless one of the parties has an actual bona fide domicile within the State. 2 Bishop on Mar. & Div., § 144; Cox v. Cox, 19 Ohio S. 502. Nor does it alter the case that the alleged marital offense was committed within the state where the divorce is sought, or that the parties submit to its jurisdiction. What is wanting in such case is jurisdiction over the subject matter.

Marriage is a status, exclusively regulated and controlled by the laws of the state where the relation exists. Cheever v. Wilson, 9 Wall. 108. It is upon this status that the decree of the court operates. If the courts of one state can dissolve the marriage relation of parties, both of whom are domiciled in another, for an act or offence committed while the parties were temporarily within the former state, they could as well be clothed with jurisdiction to divorce parties for an act or offence, wherever committed, provided the defendant could be found and summoned within their jurisdiction. The doctrine is, however, well settled, and is founded upon the most obvious considerations of public policy, that the law of the place of the actual domicil, where both parties dwell within the same jurisdiction, governs not only as to the causes or grounds of divorce, but as to the tribunals in which the action therefor may be prosecuted. Story on Confl. Laws, § 230 a; Strader v. Graham, 10 How. 82, 93.

It is true that courts may be authorized to take jurisdiction where either of the parties is domiciled within the state; and that a wife may acquire a domicile different from that of her husband whenever it is necessary or proper that she should have such separate domicile, and away from the domicile of marriage, or the place or state where the marital offense was committed. Cheever v. Wilson, supra; Bishop on Mar. & Div., § 128, a.

But it is held by numerous cases, and may be regarded as settled law, that a decree of divorce granted by another state in which neither of the parties was domiciled, is, beyond the limits of such state, a nullity. Sewell v. Sewell, 122 Mass. 156; Hoffman v. Hoffman, 46 N. Y. 30; Hood v. The State, 56 Ind. 263; People v. Dowell, 25 Mich. 247; Litowich v. Litowich, 19 Kans.

451.

It is, however, said in argument, that the clause of the Constitution of the United States requiring full faith and credit to be "given in each state to the public acts, records, and judicial proceedings of every other state," saves the Colorado decree from impeachment, and requires full force and effect to be given to it. This result quite likely would follow, if the Colorado court had acquired jurisdiction of both the parties and the subject matter of the action. But where jurisdiction is not acquired a fact always open to inquiry, although the record recite the facts necessary to give the same-the judgment is void, and the provision of the Constitution has no effect upon it. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light & Coke Co., 19 Wall. 58; Price v. Ward, 25 N. J. (Law) 222; Kerr v. Kerr, 41 N. Y. 272; Carleton v. Bickford, 13 Gray 591; Folger v. Columbian Ins. Co., 99 Mass. 267, 273.

The jurisdiction of the court granting the decree was therefore open to inquiry, and the jury having found neither party to the decree to have been domiciled in the state where the same was

Judgment affirmed.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

GEORGE W. HAMET

v.

ORLANDO T. LETCHER.

November 22, 1881.

H., the owner of chattels, relying on the representations of R. that he was the agent of L., agreed to sell the same to L. on credit, and H., in the belief that R. was such agent, delivered the chattels to him, when in fact he was not such agent, nor had he authority to purchase for L., as he well knew: Held, That the property in the chattels did not pass from H., and that L., who bought the chattels of R. and converted them to his own use, without knowledge of the fraud, was liable to H. for their value; and the fact that R., at the time the chattels were delivered to him, paid H. part of the price agreed on, will make no difference, except as to the amount of recovery against L.

Error to the District Court of Williams County. In 1874, O. T. Letcher & Co. were engaged at Bryan, Williams county, in buying and shipping hogs. George W. Hamet, a farmer residing in that county, had a lot of hogs for sale. On October 16th of that year, Jacob J. Rohner, representing himself to be the agent of O. T. Letcher & Co., bought the hogs of Hamet for $173.25, which was a fair price for the same, paying to him on the purchase $55. Hamet knew Letcher & Co. to be responsible, and would not have let Rohner have the hogs on his own account. He believed Rohner's representation that he was such agent, and relied on the representation. In fact, Rohner was not the agent, of Letcher & Co., nor had he any authority to purchase hogs on their account. Rohner, receiving the hogs under such circumstances from Hamet, drove them to Bryan, where he sold them as his own hogs to Ŏ. T. Letcher & Co., who were ignorant of the fraud by which they were obtained. Believing that Rohner was the owner, the firm received the hogs, paying him full value for the same. Shortly thereafter Hamet demanded of the firm payment for the hogs, but payment was refused, and thereupon he brought suit against the firm, in the Court of Common Pleas of Williams County, to recover the value of the property. In that court it was held that, on the facts above stated, Hamet was not entitled to recover; the district court affirmed the judgment, and Hamet, on leave, filed in this court a petition in error to reverse the judgment.

Pratt & Bentley and Sheldon & Boothman for plaintiff in error.

J. Pillars and S. E. Blakeslee for defendants in

error.

OKEY, C. J.

A remark made in Cundy v. Lindsay, 3 App. Cas. 459, is quite applicable here. There it was said, " you have in this case to discharge a duty which is always a disagreeable one for any court,

both of whom are perfectly innocent, upon which of the two the consequences of a fraud practiced upon both of them must fall." But our duty in this case, as in all others, is simply to declare the law. The only question here is whether, in view of the facts set forth in the statement of the case, the property in the hogs passed from Hamet. If it did, the judgments in the courts below are right; if it did not, they are wrong. In the decision of cases of this sort, difficult questions are sometimes presented; but the principles upon which they should be determined are firmly established.

If Rohner had offered to buy the hogs for himself, and Hamet had agreed to sell them to him, and had made delivery thereof in pursuance of such sale, the property in the hogs would have passed to Rohner, although the sale had been induced solely. by fraudulent representations made by Rohner. That would have been a de facto contract; and while it might have been avoided by Hamet, by reason of the fraud, while the property remained in the possession of Rohner, yet Rohner having sold the hogs, before the contract was thus avoided, to Letcher & Co., who had no knowledge of the fraud, the latter would have acquired a perfect title. Rowley v. Bigelow, 12 Pick. 307; Hoffman v. Noble, 6 Met. 68; Schæffer v. Macqueen, 1 Disney 453; Attenborough v. Dock Co., 3 C. P. D. 450; Babcock v. Lawson, 4 Q. B. D. 394, affirmed, 5 Q. B. 284. In a case where this principle was enforced (Moyce v. Newington, 4 Q. B. D. 32), Cockburn, C. J. said: "The reasoning on which this conclusion is based may not appear altogether consistent with principle, but, agreeing in the result, we should prefer to adopt the view of the American courts, as stated in the case of Root v. French (13 Wend. 570), a case decided in the supreme court of judicature of the state of New York, according to which the preference, thus given to the right of the innocent purchaser, is treated as an exception to the general law, and is rested on the principle of equity that where one of two innocent parties must suffer from the fraud of a third, the loss should fall on him who enabled such third party to commit the fraud."

But this was not a sale to Rohner in his own right. He made no proposition to buy in any other way than as agent. Hamet did not agree to sell to any other than Letcher & Co., who never agreed to buy of him, and he was induced to sell solely by reason of Rohner's representation that he was such agent, which representation was wholly false, as Rohner well knew. This, therefore, was not a contract voidable merely, but an agreement wholly void; and, under the circumstances, the property in the hogs never passed from Hamet. Hence, applying the maxim, that no one can transfer a greater right or better title than he himself possesses (Roland v. Gundy, 5 Ohio 202), it necessarily follows that Letcher & Co. are liable as for a conversion. Moody v. Blake, 117 Mass. 23; Barker v. Dinsmore, 72 Pa. St. 427; Saltus v. Everett, 20 Wend.