the plaintiff in writing a letter to a third person, relating to defendant's transactions with bim - referring to the letter and its contents, the defendant said the plaintiff was a "liar," "a confidence man,' ""no better than a thief," "a thief," that the plaintiff "had sued him," and he had offered to pay more than I (the plaintiff) would ever get "the substance of what Fawsett said in regard to the letter was, that I (the plaintiff) had charged him therein with making false accounts."

All the witnesses corroborate this view. The circumstances show that the terms of reproach used were mere abuse, the outpouring of passion; "liar," "thief," "confidence man," were uttered in quick succession, in reference to the contents of the letter. explaining to all who heard them the sense in which they were used.

"In an action of slander for words, some of which if spoken and understood in their ordinary sense, would certainly be actionable, the jury may consider whether taking the whole conversation together, the particular words are so qualified by the other parts of the conversation, as to show that they were not intended to convey the idea which their primary and ordinary meaning would give." Shipley v. Todhunter, 7 C. & P. 680; 3 Stephens' N. P. 2575.

Measured by the standard of these authorities, we think there was evidence offered by the defendant, tending to show that the words used by him were not intended to impute to the plaintiff a felony or other infamous crime, and the third and fourth prayers of the defendant, instructing the jury if they found they were not so intended, the plaintiff was not entitled to recover, should have been granted.

The defendant's first prayer, announcing the same principle, allowed the plaintiff nominal damages, and being inconsistent in that respect with the third and fourth, was properly rejected.

The plaintiff's prayer prescribing the measure of damages is not obnoxious to the objection urged by the appellant, that it assumed the appellee had a right to recover on the third count. On the contrary, it is put hypothetically, viz.: "If the jury shall find for the plaintiff, upon any count in the declaration."

The third and fourth prayers of the appellant being improperly rejected, the judgment below will be reversed and a new trial awarded.

Judgment reversed and new trial awarded.

OBJECTS IN STREETS CALCULATED ΤΟ

FRIGHTEN HORSES.-DEAD ANIMALS.

PENNSYLVANIA SUPREME COURT, OCTOBER 20, 1879.

FRITSCH V. CITY OF ALLEGHENY.

A dead horse was permitted to lie in the streets of a city for upward of twenty-three hours during the month of August, emitting an offensive odor, after which time plaintiff's horse took fright at it and caused injury. Held, in an action for such injury against the city, that the dead horse was an object calculated to frighten horses, and the question of the negligence of the city in permitting it to remain in the streets for the time it did was for the jury.

A

A municipal corporation is bound to keep the streets, roads and bridges over which it has jurisdiction, in repair. Dean v. New Milford Township, 5 W. & S. 545; McLaughlin v. City of Corry, 27 P. F. Smith, 109. road or street may be put out of repair by the deposit of obstructions thereon, which impede and hinder travel, or make it dangerous; or by partial destruction of the road-bed itself, producing the like effect. To repair means to replace, to restore, to sound or good condition after injury or partial destruction. Therefore, to repair a road or street, to restore it to its former condition and give it the essential properties of a suitable public highway, requires the removal of all obstacles cast upon it which impede its free passage. Pittsburg & Birmingham Passenger Ry. Co. v. Pittsburg, 30 P. F. Smith, 72.

An action will lie against the municipality to recover damages for an injury sustained by reason of the negligence of its officials to keep its roads and streets in proper repair. Dean v. New Milford Township, supra; Allentown v. Kramer, 23 P. F. Smith, 406; Township of Newlin v. Davis, 27 id. 317. What is and what is not negligence in a particular case is generally a question for the jury and not for the court. If there be no doubt as to the acts committed, yet if there be substantial doubts as to the reasonable and natural inferences to be drawn from those acts, they should be submitted to the jury. McKee v. Bidwell, 24 id. 218; Cressey v. Hestonville Passenger Railway Company, 25 id. 83.

an

In the present case the obstruction complained of was not on a country road, in a rural district, but on avenue in a city which in population ranks third in this Commonwealth. The subject-matter of the obstruction was an undoubted nuisance. A horse fell and died in this public avenue, about nine o'clock on the morning of the 12th of August. The body was suffered to lie there through all this midsummer day. One of the witnesses testifies "there was such a bad smell" that at about nine o'clock in the evening she sent to the mayor's office to notify him. At eight or nine o'clock the next morning the carcass remained there, and the injury complained of occurred. That it was well calculated to frighten a horse being driven along the avenue does not appear to be questioned. The same witness, who testified as to the offensive odor, says: "Many men went back again; couldn't pass; all the horses got frightened there." The main ground of the defense is that the carcass had not remained there for such an unreasonable time as to create a presumption of negligence on the part of the city in not removing it, especially if not notified.

It may be conceded that a dead animal might lie in a public street for so short a time that it would be the duty of the court to say, as a matter of law, the municipality was guilty of no implied negligence in not removing it. We do not, however, think the facts proven here present such a case.

Negligence is the absence of proper care. caution and diligence; of such care, caution and diligence as under the circumstances reasonable and ordinary prudence would require to be exercised. It may consist as well in not doing the thing which ought to be done, as in doing that which ought not to be done, where in either case it has caused loss and damage to another. Turnpike Company v. Rutter, 4 S. & R. 6: Erie City v. Schwingle, 10 Harris, 384; McCully v. Clarke, 4 Wright, 399. Hence in this case one question to be determined is whether the municipality, acting through its officials, failed to exercise such reasonable care and diligence in not ascertaining the existence of the nuisance and in not removing it prior to the injury sustained by the plaintiff. The evidence indicates this nuisance to have been lying in the immediate vicinity of several dwelling-houses. If this be so it will be a fact for the

jury to consider, as well as the extent of travel on the avenue. If it be one on which there is but little travel, and not compactly built upon, no such prompt duty to discover it would be imposed on the public officials as if it were in the heart of the city. Dense population and continuous travel on a street call for more care and watchfulness on the part of the authorities than over streets not thus populated and used.

This action, however, does not rest on the fact that the carcass emitted an offensive odor, although that may be a circumstance to consider as bearing on the question of negligence in not removing it; but it rests on the alleged fact that it was negligently suffered to remain an unreasonable time, thereby causing fright to the horse of the plaintiffs and the injury and damage resulting therefrom.

The evidence discloses an active effort by one living near the nuisance to notify several officials on the afternoon and evening of the first day, but it appears to have been difficult to find any one to heed the complaint. The plaintiff was guilty of no negligence in not giving notice, for she had no knowledge of the nuisance until the moment at which she sustained the injury. It is true the declaration does not aver notice to the defendant, which prudence may have dictated should have been done, and which may still be done by amendment; yet it does expressly charge negligence.

The evidence was sufficient to have been submitted to the jury under proper instructions, and the learned judge erred in not taking off the judgment of nonsuit.

Judgment reversed and a procedendo awarded.

NEW YORK COURT OF APPEALS ABSTRACT.

COMPROMISE SUFFICIENT CONSIDERATION FOR

PROMISSORY NOTE THAT CLAIM SETTLED COULD HAVE BEEN DEFENDED, NO GROUND FOR OPENING.The executrix of A. compromised a suit in the Superior Court and proceedings in the Surrogate's Court, brought by her against C., and received in settlement therefor the promissory notes of W. At the time of the settlement she surrendered all the accounts and vouchers of the testator in her possession and agreed to protect C. against any further claim on the part of the estate of the testator. In an action on the notes, held, that the compromise was a sufficient consideration therefor and that the fact that a defense existed to the claim which was compromised could not be shown. In such a case where facts out of which a defense arises are known to the party making the claim and fraudulently concealed from and unknown to the other party at the time of the compromise such facts may be shown, but in the absence of any such fraud, evidence of the mere fact that a defense existed is not admissible. Stewart v. Ahrenfeldt, 4 Denio, 189; Russell v. Cook, 3 Hill, 504. Judgment affirmed. Feeter v. Weber, appellant. Opinion by Rapallo, J. [Decided Oct 7, 1879.]

INSURANCE-LIFE POLICY-DELIVERY OF POLICY IN FAVOR OF WIFE NOT ESSENTIAL-INSURABLE INTEREST

-ASSIGNMENT BY WIFE WHEN INVALID.-A policy of life insurance was issued to assure the life of B. " until the sixth day of September, in the year 1882, or until his decease in case of his death before that time." In the latter event the insurance company promised to pay to H., his wife, if living, otherwise to A., daughter of the assured. Held, (1) that the wife had a direct interest in the policy and an actual delivery was not essential to confer that interest upon her. The husband's possession was her possession, and the general rule that where there is a gift there must be an actual delivery has no application. The policy itself shows the intention sufficiently. It is well settled that when

a husband takes a security or obtains a policy of insurance in which the sum named therein is payable to himself and his wife and she survives him, the action survives to her, and the form of the security implies a design by the husband to benefit the wife. Sanford v. Sanford, 45 N. Y. 726. (2) The wife has an insurable interest, and the promise to pay her in the policy is supported by a sufficient consideration. (3) The wife's interest in the policy could, independent of the statutes relating to insurance upon lives for the benefit of married women, be transferred only by an assignment duly executed by her; and an assignment without any consideration, without her knowledge of its purpose or import, and without an intention on her part to divest herself of interest in the policy, executed under undue influence by her husband amounting to compulsion, held not to affect the interest of the wife. Judgment affirmed. Fowler, appellant, v. Butterfly. Opinion by Miller, J. [Decided Sept. 16, 1879.] MORTGAGE ONE IN POSSESSION OF MORTGAGED PREMISES NOT LIABLE TO MORTGAGEE FOR RENTSPRACTICE-FAILURE TO ANSWER COMPLAINT, EFFECT OF. The grantee of mortgaged premises took the same subject to the mortgage and the taxes due for the year 1875, but he did not assume to pay the mortgage or the taxes. In an action for the foreclosure of the mortgage the complaint alleged that the grantee "entered into possession thereof and ever since has collected the rents and profits of said premises, amounting to $2,500." The prayer for relief contained a request that an account be taken of the rents collected by the grantee, and if the proceeds of the sale were insufficient to pay the taxes and amount due, that the grantee be held liable for the deficiency to the extent of the rents collected, etc. This complaint was served on the grantee but he did not appear. Held, (1) that the grantee not having assumed to pay either the mortgage or the taxes did not become liable for either simply because he collected the rents. The mere possession of lands, receiving the profits thereof, never makes any one not personally taxed liable for the taxes of such lands, and the mere possession of lands mortgaged never makes the possessor who receives the profits liable to pay or keep down the interest on the mortgage. The mortgagee can only be entitled to the rents of the mortgaged premises by commencing suit for the foreclosure of his mortgage and procuring the appointment of a receiver, and then he will be confined to the rents and profits accruing during the pendency of the suit. A mortgagee has a mere lien upon the land mortgaged as security. He is not entitled to the possession of the land and can call no one to account for its use. (2) By not answering the complaint the grantee did not admit that the plaintiff was entitled to the relief demanded against him, but simply that plaintiff was entitled to such relief as the facts properly alleged entitle him to have. Order affirmed. Argall, appellant, v. Pitts. Opinion by Earl, J. [Decided Sept. 17, 1879.]

ASSUMPTION OF, DOES NOT INURE TO BENEFIT OF GRANTOR-REMEDY OF GRANTOR FOR BREACH OF COVENANT DESCENDS TO HIM. - A., the owner of real estate which he had mortgaged for $4.000, sold an undivided one-half part thereof to D. for the sum of $6,000, D. agreeing to pay A. as follows: $3,000 at the delivery of the deed and to assume three-fourths of the mortgage, which payment and assumption was named in the deed. The mortgage not being paid was foreclosed and the premises sold. In an action by the administrator of A. to recover damages for the failure of D. to perform his agreement, held, that D. by his agreement became liable to the holder of the mortgage for so much as he had assumed to pay, but this was not a liability to his grantor. The $3,000 in cash

and the promise to pay $3,000 on the mortgage was the full consideration for the conveyance, and there was no longer an indebtedness on that account. Upon that promise the mortgagee could sue and recover in his own name. Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 id. 253. But D. owed A nothing and was not liable to an action by A. as upon a promise to pay the consideration money. Upon the delivery and acceptance of the deed, however, D., as to threefourths of the mortgage, became the principal debtor, and A., the surety, and if A. paid the amount assumed he would be entitled to subrogation to the rights of the mortgagee and might maintain an action for a deficiency against D. But A. having died intestate before foreclosure, the land descended to his heirs, who were alone injured by the failure of D. to perform his agreement, and the administrator of A. could not sue therefor. Judgment reversed, etc., unless plaintiff will stipulate to reduce the judgment so as to include only another item which was embraced in the action. Ayres, adm'x, v. Dixon, appellant. Opinion by Danforth, J.

[Decided Sept. 30, 1879.]

MICHIGAN SUPREME COURT ABSTRACT.

OCTOBER 8, 1879.

PARTNERSHIP-NEW AND OLD FIRM - ASSUMPTION OF DEBTS-NOVATION.-A firm of bankers transferred their business to an entirely new firm which assumed their debts. Plaintiff, who was a depositor with the old firm, dealt with the new one knowing of the change, received payments of interest, etc. Held, that the agreement between the new firm and the old did not of itself discharge the old firm; neither did plaintiff's delay, believing the new firm were to pay it, discharge the old. This is not the case of a partnership where some partners retire, and others assume the debts and continue and obtain extensions by a new contract, as in Smith v. Sheldon, 35 Mich. 42. Here the new firm were strangers to the old, and could not become debtors to Knox without his acceptance of the subrogation. Hogsett v. Ellis, 17 Mich. 351; Brown v. Hazen, 11 id. 219; Meister v. Birney, 24 id. 435; Lewis v. Westover, 29 id. 14; Turner v. McCarty, 22 id. 265; Halsted v. Francis, 31 id. 113; Pratt v. Bates, 40 id. 37; Botsford v. Kleinhans, 29 id. 332. Knox v. Hayes. Opinion by Campbell, J.

PUBLIC OFFICER-DELEGATION OF OFFICIAL AUTHORITY BY, NOT ALLOWABLE.-Under a statute allowing boards of supervisors to grant authority for the construction of bridges across navigable streams, upon a petition setting forth with particularity the purpose, location, height and description of a proposed bridge, and giving them power to grant or refuse a petition and to prescribe what description of a bridge might be erected, held, that upon a petition which was defective in not specifying the location of the proposed bridge nor the location or number of swings therein, a board of supervisors could not delegate to those applying for the bridge the power to determine the number and location of the swings. The bridge company might have one interest in respect to it, and the general public and individuals of the general public other interests, and between them it was contemplated in conferring the trust that the board of supervisors should decide upon the judgment of its members. It is familiar law that no such trust can be delegated by the person or body on whom it is conferred, but that very person or body, and no other, must execute it. Clark v. Washington, 12 Wheat. 54; Thompson v. Schermerhorn, 6 N. Y. 92; Davis v. Reed, 65 id. 566; Supervisor v. Brush, 77 Ill. 59; Thompson v. Booneville, 61 Mo. 282; State v. Fiske, 9 R. I. 94;

State v. Paterson, 34 N. J. 168; Hydes v. Joyes, 4 Bush, 464; Oakland v. Carpentier, 13 Cal. 540; Whyte v. Nashville, 2 Swan, 364. Maxwell v. Bay City Bridge Co. Opinion by Cooley J.

WISCONSIN SUPREME COURT ABSTRACT. OCTOBER 14, 1879.

"

DEED-CONSTRUCTION-LANDS EXCEPTED NOT DESCRIBED.-B. conveyed lands to F. by deed, describing it as follows: Lots 3 and 4 and the north half of the north-west quarter of section No. 5, in township 48, north of range 4, west, excepting the thirty-two acres mortgaged to Schuyler Goff, adjoining the town line, and also seven acres which I reserve for myself, and to be taken on the east side of said described land, leaving the amount of acres now deeded in this deed about thirty-four, more or less." Held, that the exception of thirty-two acres adjoining the town line, mortgaged to Schuyler Goff, must, in the absence of that mortgage, bo presumed to be a parcel of land extending the whole length of the north side of the quarter section (which is the only town line abutting it), of sufficient uniform width to include thirty-two acres; and the exception of seven acres to be taken on the east side of the fractional quarter section is an exception of a parcel of land extending along the whole east side of the quarter section, of sufficient uniform width to include seven acres. Dolan v. Trelevan, 31 Wis. 147; Jenkins v. Sharpf, 27 id. 472; 3 Wash. on Real Property (4th ed.), 406. Johnson v. Ashland Lumber Co. Opinion by Lyon, J.

RIPARIAN RIGHTS-GRANT BY STATE OF EXCLUSIVE RIGHT TO CONTRACT BOOMS ON STREAM.-A statute granted to a boom company the exclusive right of constructing booms necessary for holding, storing and assorting logs for a certain distance up and down the Wisconsin river. Held, that it is settled in this State that a riparian owner on navigable water may construct in front of his land, in shoal water, proper wharves, piers, and booms, in aid of navigation, at his peril of obstructing it far enough to reach actually navigable water. This is properly a riparian right, resting on title to the bank, and not upon title to the soil under water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license by the public; is subordinate to the public use, and may be regulated or prohibited by law. Diedrich v. Railway Co., 42 Wis. 248; Stevens Point Boom Company v. Reilly, 44 id. 295; S. C., 46 id. 237. "This private right of the riparian owner is subordinate to the public use of a navigable river, and is always exercised at peril of obstructing navigation. This subjection of the private right to the public use may some times impair the private right or defeat it altogether. But the public right must always prevail over the private exercise of the private right." S. P. Boom Co. v. Reilly, 46 Wis. 237. As against the riparian owners, within the limit specified in the statute, the State has only resumed its own. Otherwise, the title, possession and use of the respondent's land remain intact. If the public action lessen its value it is literally damnum absque injuria. Alexander v. Milwaukee, 16 Wis. 247. Held, also, that the boom company was a quasi public corporation (Attorney-General v. Railroad Cos., 35 Wis. 425), an agent of the State for the improvement of the river (Wis. R. I. Co. v. Manson, supra), and its franchises granted for a public use. In this State, navigable water includes all water capable of actual navigation, (Diedrich v. Railway Co., supra), and the capacity of floating logs to market is sufficient to make water navigable within the rule. Olson v. Merrill, 42 Wis. 203. Whether and how far navigable for other purposes, the capacity for floating logs to market appears to be the chief navigable value of the Wisconsin river, as

the legislation relating to it and numerous cases in this court abundantly show. Whatever equally aids this use of the river by all having occasion for it, is of public purpose (Wisconsin R. I. Co. v. Manson, 43 Wis. 255); and the utility, indeed the necessity, of booms at convenient points for receiving, assorting, and distributing logs, such as the appellant is authorized to construct, is so universal on such rivers that it is judicially recognized as entering into the law governing their use. Pound v. Turck, 95 U. S. 459. See, also, Delaplaine v. Railway Co., 42 Wis. 214; S. P. Boom Co. v. Reilly, supra; G. R. Booming Co. v. Jarvis, 30 Mich. 308; Perry v. Wilson, 7 Mass. 393; Lawler v. Boom Co., 56 Me. 443. Cohn v. Wason Boom Co. Opinion by Ryan, C. J.

PARTNERSHIP DISSOLUTION WITHOUT NOTICE REPUTATION OF CONTINUANCE OF FIRM SECRET PARTNER. -Augustus and George Covert carried on business under the name of "A. Covert." The partnership was dissolved in March, 1874, George Covert retiring, but no public notice of the dissolution was given, and Augustus Covert continued the same business under the same name. Plaintiff, who had never had dealing with the firm while it existed, sold in December, 1876, goods to Augustus Covert on the credit of the firm, supposing that the firm still existed. In an action against both members of the firm for the price of such goods, held, that the rejection of evidence on the part of plaintiff that at the time the sale was made Augustus represented to plaintiff that the firm still existed; that the general reputation in the neighborhood where the firm had carried on business was that the partnership still continued; that upon inquiry this reputation was brought to plaintiff's knowledge; and that without a belief in the continuance of the partnership he would not have given credit for the goods, was erroneous. 2 Greenl. Ev., § 483; Bernard v. Torrance, 5 Gill & Johns. 383-405; Carlton & Manning v. Ludlow Woolen Mill, 27 Vt. 496, 498. While general reputation is not admissible to prove the fact of partnership, nor as corroborative of other evidence to prove such fact, where a partnership in fact has been established and become known to the public, and one of the partners retires, giving no notice of his so doing, general reputation in the community where the business of the firm was transacted, and where the retiring partner resides, that the partnership still continues, can be given in evidence by one who thereafter gives credit to the firm upon the strength of such reputation in order to charge such retiring partner. If a retiring partner would free himself from contracts thereafter made in the name of and on the credit of the firm, it is his duty, at the very least, to do nothing and permit nothing to be done which shall tend to prove that he still continues a member thereof. In this case, although the name of George Covert did not appear in the firm name, which was, in fact, the individual name of his brother, and he might, therefore, be considered in one sense, a secret or dormant partner, and therefore, only liable for debts contracted while he was in fact a partner, yet it having become a matter of public notoriety, during the existence of his partnership with his brother, that he was a partner in the business carried on in the name of "A. Covert," he no longer remained a secret or dormant partner, but became chargeable in the same manner as though his name had appeared in the firm name, and in order to relieve himself from responsibility as such partner, after his connection therewith had become public, he was bound by the same rules which are applicable to public partnership. U.S. Bank v. Binney, 5 Mason, 176-185; 2 Bell's Cases, book 7, ch. 2, p. 533; Powles v. Page, 3 C. B. 16; Evans v. Drummond, 4 Esp. 89; Carter v. Whalley, 1 Barn. & Adol. 11. Benjamin v. Covert. Opinion by Taylor, J.

IOWA SUPREME COURT ABSTRACT. MARRIAGE VOID ONE CONFERS NO RIGHTS AND NEED NOT BE JUDICIALLY DECLARED SO.- Plaintiff married in due form one Eaton, who had at the time a wife living. Subsequently she married the intestate Drummond, Eaton being still alive. Held, under a statute declaring that "marriages between persons who have a husband or wife living are void," that the marriage of the plaintiff with Eaton was void, and neither of them acquired any rights thereby, and the plaintiff lost no right. Being void it was the same as though no marriage had ever taken place. The marriage with Drummond was valid, and plaintiff was entitled to a share in the property of Drummond as widow. Carpenter v. Smith, 24 Iowa, 200; 2 Bouvier's Law Dict. 246 Held, also, that the first marriage need not be judicially annulled before civil rights could be acquired or civil remedies demanded by reason of a subsequent legal marriage." The fact that the Code contains provisions for annulling marriages of this character, and judicially determining the status of the parties, cannot be regarded as changing the rule which has always obtained that a void marriage is no marriage. Drummond v. Irish. Opinion by Rothrock, J.

MUNICIPAL CORPORATION NOT LIABLE FOR WRONGful acts of POLICE.-The police regulations of a city are not made and enforced in the interest of a city in its corporate capacity, but in the interest of the public. A city is not liable, therefore, for the acts of its officers in attempting to enforce such regulations. The question involved in this case arose in Buttrick v. City of Lowell, 1 Allen, 172. Bigelow, C. J., said: "Police officers can in no sense be regarded as the agents or servants of a city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the Legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts;" following Hafford v. City of New Bedford, 16 Grey, 297. The same doctrine was held in Town of Odell v. Shroeder, 58 Ill. 353. See, also, as tending to support it, Ogg v. City of Lansing, 35 Iowa, 495; Prather v. City of Lexington, 13 B. Monr. 559; Elliott v. City of Philadelphia, 75 Penn. St. 347. And a city cannot become liable by ratification. A city has no power to authorize a police officer to commit an unlawful act, and what it cannot do directly it cannot do indirectly by ratification. Calwell v. City of Boone. Opinion by Adams, J.

STATUTE OF LIMITATIONS-NEW PROMISE - SAME CAUSE OF ACTION REVIVED.- The statute of limitations of Iowa provides that "causes of action founded on contract are revived by an admission that the debt is still unpaid." In answer to a letter written by plaintiffs to defendant, requesting the payment of an overdue note, he wrote this: "I am sorry I cannot pay you now. I had expected to pay you this fall, but owing to the scarcity of money I cannot. It is a long, weary time I have been paying those debts, and I am not through yet. I hope to live to pay you, and hope to do so next spring. But I have provided that, in case I die before you are paid, my wife will pay you out of an insurance on my life." Held, that this constituted an admission that the debt was unpaid and that the statute began to run anew. In such cases a new cause of action does not arise, by reason of the admission, but the bar from the old is removed. The statute begins to run anew, but it runs, of course, upon the cause of action, and not upon the admission, which merely operated to revive the cause of action. The time it would run would depend upon the nature of the cause of action. If, as in this case, it is founded upon a promissory note, the statute would run ten years from the time the

cause of action was revived. Carshore v. Huyck, 6 Barb. 586; Baxter v. Penniman, 8 Mass. 133; Penley v. Waterhouse, 3 Iowa, 442; Ayers v. Bane, 39 id. 519; Frisbie v. Seaman, 48 id. Bayliss v. Street. Opinion by Rothrock, J.

FINANCIAL LAW.

CONFLICT OF LAW-LEX LOCI CONTRACTUS-USURY. A promissory note was dated in Missouri and signed there by one of the makers; no place of payment was specified. It was executed in consequence of previous Begotiations had in Iowa between the principal makers and the son of the payee respecting a loan of money by the payee. After it was executed by one maker the son visited the other makers in Iowa, who signed the note and delivered it to the sou, who paid the money loaned therefor. Held, that the note was an Iowa contract and governed by the laws of that State as to usury. The lex loci contractus depends not upon the place where the note or bill is made, drawn or dated, but upon the place where it is delivered from drawer to drawee, from promisor to payee, from indorser to indorsee. It has been frequently stated that a note is nothing until it is delivered, and that indorsement is not merely writing, but transferring from the hand of the one party to that of the other. 2 Parsous on Notes and Bills, 327. The rule that the law of the place where a bill is made, if no place is designated in the bill for payment, determines its constructive obligation and place of payment applies only when the making of a note includes its delivery, but not otherwise. The dating of the note at a place in Missouri did not designate that place as the place of payment. In Cook v. Moffat, 5 How. 295, notes drawn and dated at Baltimore, but delivered in New York, in payment of goods purchased there, were held to be payable in, and governed by the laws of New York. In that case Grier, J., said: "Although the notes purport to have been made in Baltimore, they were delivered in New York, in payment of goods purchased there, and, of course, payable there and governed by the laws of that place." Iowa Sup. Ct., Oct. 9, 1879. Hart v. Wills. Opinion by Day, J.

JUDGMENT NOTE - POWERS GIVEN IN, TRANSFERABLE BY DELIVERY.-A power of attorney, attached to a sealed note payable to bearer, authorizing the waiving of process and the confession of judgment in favor of the holder of the note, may be executed in favor of an equitable owner and holder to whom the note may be transferred by delivery but without indorsement thereon. Ohio Sup. Ct., Oct. 28, 1879. Clements v. Hull. Opinion by McIlvaine, J.

PLEDGE-RIGHTS OF HOLDER OF COLLATERAL-COMPROMISE CONSIDERATION DAMAGES.- (1) While a party holding goods or personal chattels in pledge may sell them to pay the debts after maturity, a pledgee of commercial paper in the absence of a special contract has no right to sell such securities, but must collect them, aud after paying his own debts, he must account to the pledgor for the balance. (2) Where two notes amounting to three thousand dollars were held as collateral, to secure about $1,300, and the holder of the notes surrendered said notes to the maker and also gave up to him seventeen other notes of $127 each, for merely the amount due from the pledgor, such a transaction cannot be called a sale, but is a compromise. Appellee transferred to appellant a number of notes as collateral security, and gave a written contract authorizing appellant to sell the same at public or private sale. The appellate court found the facts to be, that appellant made reasonable efforts to sell the collaterals, and failed to find a purchaser, and that said sale and transfer to the maker of the notes was so made without any collusion or actual fraud, and for the best price that

could be obtained for them, so far as is shown by the evidence. Held, that these facts did not warrant a compromise with the maker of the notes held as collateral. (3) One note given to a person is a good consideration for the making of a note by him to the maker of the note he has received. (4) In a suit for making such a compromise, the amount due on the note so compromised is prima facie the measure of damages. Illinois Sup. Ct., Oct. 2, 1879. Union Trust Co. v. Rigdon.

SURETYSHIP-SURETY NOT DISCHARGED BY SETTLEMENT IN FRAUD OF BANKRUPT LAW.--The holder of a promissory note accepted in good faith from one of the principal makers thereof, who, to the knowledge of the holder, was insolvent at the time, a conveyance of a parcel of land in payment of the note. Subsequently, and within four months from the time of the conveyance, the holder of the note, on demand therefor, surrendered the property conveyed to an assignee in bankruptcy of the grantor. Held, that such conveyance did not operate as payment of the note, nor to discharge a surety thereon. Ohio Sup. Ct., Oct. 7, 1879. Harner v. Batdorf. Opinion by Boynton, J.

CRIMINAL LAW.

FORGERY- —FORGING RECEPT - PLEADING.-Where, in an indictment for uttering a forged receipt, the instrument set out is not prima facie a receipt, such extrinsic facts must be averred as are necessary to show that the instrument would, if genuine, have the operation and effect of a receipt. An averment that the instrument set out was a receipt does not have the effect to change its prima facie character. Nor will the character of the instrument be changed by an averment that by the rules of the bank where the instrument was used, it was upon its face a receipt. It should be shown how or in what way, the instrument, if genuine, would under the rules of the bank have the operation and effect of a receipt. Ohio Sup. Ct., Oct. 28, 1879. Henry v. Slate. Opinion by White, J.

TRIAL CHARGING FACTS TO JURY.- In a trial for assault with intent to kill upon one Bump with a pistol, the question before the jury was, whether the defendant had assaulted Bump with the pistol, or whether it was accidentally discharged during the struggle for its possession. The trial court instructed the jury as follows: "The use of a deadly weapon is prima facie evidence of malice, because a man must be taken to intend the necessary and usual consequences of his act, and to shoot another indicates a purpose to take life; and if the jury believe from the evidence, beyond a reasonable doubt, that at the time defendant shot Bump he was in no imminent danger of suffering death or bodily harm at the hands of Bump, and had no reason to believe that he was in such danger, they must find him guilty as charged." Held, that the instruction was erroneous, in that it assumed as a matter of fact that the defendant intentionally shot Bump, which was the very matter in issue before the jury. People v. Levison, 16 Cal. 98; People v. Ah Fung, id. 137; People v. Williams, 17 id. 147; People v. Strong, 30 id. 151; People v. Dick, 32 id. 213; People v. Cotta, 49 id. 166. California Sup. Ct., Sept. 13, 1879. People v. Buster. Opinion per Curiam.

TRIAL

FURNISHING SPIRITS TO JURY.-To make the objection that spirituous liquors have been furnished a jury invalidate a verdict under the Texas statute, it must be shown that during the trial, or after retiring, the juror or jurors may have become so intoxicated as to render it probable that his or their verdict was influenced thereby. Subdivision 7 of art. 3137, P. D.; March v. State, 44 Tex. 65; Jack v. State, 26 id. 1; Webb v. State, 5 Tex. Ct. App. 596. The bet