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taries on Partnership, though the opinion in the case is printed at length in a note, the text does not correspond to it, and the case is only referred to in support of other propositions. "How the nature of the transaction can put the creditor upon inquiry or show negligence upon his part, if he does not know, and has no means of knowing, that the property transferred to him by one partner is partnership property, is is difficult to understand."

Upon a careful examination of the cases referred to by Judge Story in Rogers v. Batchelor I cannot find even the slightest expression of an opinion that the title in the property or payment for property would not pass to the private creditor if he did not know it to belong to the partnership; but on the contrary, there are pointed suggestions and substantial grounds to maintain that it would.

In Greeley v. Wyeth, 10 N. H. 15, Chief Justice Parker held that one partner might appropriate to his own use goods received in consideration of property or services of the partnership, without subjecting the party from whom he received it to an action in favor of the partnership; that what disposition he made of the money or of specific articles which he received for work and labor or materials was a matter between him and his partner, and that the latter, by entering into partnership with him, trusted him thus far, and must look to the partnership account for remuneration."

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The precise point before the court in this instancethe payment of a bank check to the creditor-does not appear in the cases cited. The principle of payment to the creditor however must remain the same, though the circumstances be changed by a cash payment of the defendant's debt, which it has been said, creates additional presumptions in his favor. Every check is presumed to be given for value received. They are payable without grace, and are an absolute appropriation of so much money in the bank to the holder. Murray v. Judah, 6 Cow. 490. The claim of the misapplication of the bank account under this payment must therefore be brought home to the actual notice and knowledge of the defendant to entitle the plaintiffs to recover. The most recent writer on the law of limited partnerships -Bates, p. 167 (1886)-treating of the rights and powers of assignees in case of insolvency, holds that in many of the States the doctrine that he represents the debtors, and not the creditors, would be repudiated, for he is generally allowed to attack fraudulent conveyances. A payment of the private debt of one partner is however not a fraudulent conveyance, and the question would arise in such States, could the partners themselves bring such suit? The answer is to be found in the general law of partnership: First. If such use of the assets was the act of all the partners, they cannot undo it. It is a lawful conversion of joint into separate assets. Second. If the act is that of one partner alone, or less than all, it is a misapprehension as to those not consenting. And here the courts divide, some holding to the technical law, that as all the partner must be plaintiffs, the wrong-doer is one of those seeking to avoid his own act, which cannot be; others finding reason to get away from this technical rule, as that the defendant is the one who first offers to show the wrong-doing, and he will not be allowed to do this, and therefore the action lies. Again if the payment was in money of the firm, it may be lawfully taken by the separate creditor, for money has no ear-marks. And in Massachusetts it is said to be the law that in certain cases the creditor who received other property than money can retain it in a limited partnership transaction. See Locke v. Lewis, 124 Mass. 1."

From what we have gathered of expressed opinion and judicial decision as to the law of partnership applicable to this action, the plaintiff's right to recover

would seem to depend largely on the facts and circumstances tending to show the plaintiff's acquiescence in the appropriation of the bank check, and the defendant's knowledge that the drawer had neither right nor interest in the proceeds. It will not be doubted that the partner had authority to deliver the bank check. His agency and partnership were sufficient authority. The check was a cash payment for household goods incidental to livelihood, subsequent to partnership, and was not a pre-existing debt. It was of record debit to the firm, and credit to the bank, in the plaintiff's accounts with both, for a period of ten months prior to the dissolution of the business. For this period then, if there was no complaint by the copartners, it is to be presumed there was an acquiescence in the appropriation of the check. It is not alleged that during this period the firm and the managing partner were not in accord, and responsible in business accounts and transactions to each other.

The plaintiffs allege "that they entered into partnership with James Peabody for the purchase and shipment of grain only, at Fairmont and Geneva, and that defendant knew it." They further allege "that the said Peabody purchased of the defendant, who was a dealer, $400 worth of furniture for his own separate use and benefit, to be used in his own house, all of which the defendant knew." It is not however alleged, not is there any presumption for it, that the defendant knew that Peabody had not a lawful title and sufficient interest in his firm's bank account and deposit in the First National Bank of Fairmont when he received and indorsed the check thereon. It is not alleged that he had such means of knowledge of the limited partnership, and the state of accounts between the drawer of the check at Fairmont and the plaintiffs in a distant State as to charge him with the notice of the absence of authority. It is admitted that his interest as manager was that of a portion of the profits of the firm in the grain trade. The extent or limit of that interest it was not competent for the dealers of Fairmont or the public to resolve. Whether it was unimportant or considerable, it is not doubtful that dealers and the public might be inclined to accept to their disadvantage, unless there was evidence to the public of the rights and responsibilities of the individual partners in the firm. The statute book has supplied this authority. The 27th section, chap. 65, tit. "Partnership," of the Statute Laws (1885), provides that any association of persons under a firm, not incorporated, shall have recorded in the county clerk's office of the county wherein their place of business is located a certificate signed by each member of the association, showing the general nature of their business; a certified transcript of which shall be prima facie evidence in any court in this State of any of the facts therein set forth. No such evidence of legal notice to the public has been produced. None such is alleged to exist. Local dealers and the public cannot therefore be said to have had such notice as would oblige them in every transaction with the manager of the firm to be mindful of the caveat of the horse dealer for their own self-protection. But whether these legal presumptions incline the weight of authority to discharge the defendant's liability under the facts and circumstances presented need not further be consid ered. The direct issue submitted is that of the sufficiency of the cause of action as pleaded. We find that it is not alleged by the plaintiffs that their partner Peabody was insolvent during the partnership, or was without sufficient interest in the bank deposit, on account of the profits of the firm, to have paid the amount of the check, or that the same was paid from the plaintiff's sole deposit, without deduction or settlement, from the copartner's proportion of the profits at the dissolution of the firm, ten months subsequent

to the date of the check. Nor is it alleged that the bank paid it. It is therefore possible under the pleadings, if the plaintiffs maintain this action, that they have already been paid the amount of the check, and that they have not suffered on that account; that they still have a legal defense against its collection; and that they have preserved a separate chose in action against their copartner by not joining him in this; and that therefore to maintain the present action would be putting the defendant to greater disadvantage in his defense than can be justified toward an innocent vendor without notice, and not charged with collusion.

The judgment of the District Court is affirmed.
The other judges concur.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CARRIERS-INJURY OF INFANT PASSENGER BY JUMPING FROM TRAIN.-In an action against & railroad company for personal injuries it appeared that plaintiff was an infant ten years old; that the conductor took plaintiff's fare, and asked him where he was going, but failed to inform him that the train ran past the station for which he was bound, to a switch, and then backed into the station; that plaintiff did not know these facts; and on the train passing his station, he became alarmed and jumped off, sustaining the injuries complained of. Held, that defendant was guilty of negligence. It was the peculiar province of the jury to determine that question. Parish v. Eden, 62 Wis. 272; Langhoff v. Railway Co., 19 id. 515; Curry v. Railway Co., 43 id. 685; Leavitt v. Railway Co., 64 id. 228. As a general rule it is negligence for an adult person to jump from a train of cars in motion. But this is not an invariable rule. A passenger may be exonerated from blame by being suddenly put into a condition of nervous excitement and alarm by the fault of the company, and who jumps from a moving train, under a sudden impulse, to save himself from serious inconvenience. Whether a justification exists may depend upon the speed of the train and other circumstances, or upon whether he did what careful and experienced persons generally would be likely to do under similar circumstances. Whart. Neg., § 377; Robson v. Railway Co., L. R., 10 Q. B. Div. 271; Filer v. Railroad Co., 49 N. Y. 47; Johnson v. Railroad Co., 70 Penn. St. 365; Delamatyr v. Railroad Co., 24 Wis. 586; Shannon v. Railroad Co., 78 Me. 52. In view of this exception to the general principle, the plaintiff here, being of such tender age, and under such great fear and excitement, and with the apprehension that he would be carried away, and beyond his destination, if he did not get off at the platform, may well be exonerated from all blame. The age and infancy of the plaintiff must be considered in such a case, if even he is of such age as to be sui juris in respect to many other things. 2 Thomp. Neg. 1189. What might appear to be reasonable to a person of such tender age might be most unreasonable to an adult person of more discretion, and it was for the jury to take such difference into consideration in determining the question of contributory negligence of the plaintiff. Barry v. Railroad Co., 92 N. Y. 289; Byrne v. Railroad Co., 83 id. 620; Birge v. Gardner, 19 Conn. 507; Swoboda v. Ward, 40 Mich. 420; Lynch v. Smith, 104 Mass. 57; Plumley v. Birge, 124 id. 57; Meibus v. Dodge, 38 Wis. 300. But these considerations are self-evident, and appeal to the common reason and understanding. The plaintiff acted in the emergency as a boy of his age would be most likely to act. Wis. Sup. Ct., April 17, 1888. Hemmingway v. Chicago, M. & St. P. Ry. Co. Opinion by Orton, J.

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PASSENGER GOING INTO PULLMAN CAR TO WASH-LIABILITY FOR ASSAULT BY PORTER ON.-A railway company is liable for an assault by the porter of a Pullman palace car on a passenger who went into the car to wash. Citing Thorpe v. Railroad Co., 76 N. Y. 402; Pennsylvania Co. v. Roy, 102 U. S. 451; Railroad Co. v. Walworth, 38 Ohio St. 461. Believing that in a question of such vast importance on matters of litigation likely to arise in all parts of the American Union, this court should seek to place its rulings and jurisprudence in line and in harmony with those of the Supreme Court of the United States and of the courts of last resort of our sister States, wherever those decisions do not militate against the principles of our special and exceptional system of laws, we deem it our duty, without hesitation, to adopt the conclusions which so clearly flow from the highly respectable authorities to which we have just referred, and from which we have thought it proper and useful to make the foregoing copious quotations. Applied to this case, in which it appears that the Pullman car was attached to the defendant's train, under the same circumstances, rules and regulations, and for the same purposes, as shown in the cases hereinabove mentioned, the rule of law, thus sanctioned, leads to the legal conclusion, that for the purposes of this contention, the porter of the sleeping-car, by whom Williams was stricken down and injured, must be treated as being at the time a servant or employee of the defendant company, and as such intrusted with the duty of contributing, in the performance of his legitimate duties, to the safety and security of the passenger whom the railway company had undertaken to carry safely over its line. Hence it follows that the railway company must be held liable for injuries sustained by one of its passengers through the negligence or fault or other acts of the porter in question; and under wellestablished jurisprudence, it is equally clear and logical that such liability extends to and embraces injuries inflicted on the passenger by means of a willful and malicious assault by a railroad employee on the passenger. Case of Goddard, 57 Me. 202; Railroad Co. v. Vandiver, 42 Penn. St. 365; Railway Co. v. Hinds, 53 id. 512. Our own jurisprudence has sustained an action by a lady passenger against the owner of a vessel for insulting and abusive language used to her and about her by an employee of the common carrier. The principle is thus summarized in that opinion: "The master of a vessel is liable for the indecent and inhumane conduct of himself and of his crew, enacted by him toward a passenger." "Owners of vessels carrying passengers for money are subject to the same responsibility for a breach of duty by their officers to the passengers as they would be in regard to merchandise committed to their care." Keene v. Lizardi, 5 La. 431. We therefore conclude that the case is with plaintiff, unless it should appear that he was a trespasser on the Pullman car when the accident occurred resulting in his injuries. And this brings us to the consideration of the second question involved in the controversy. Under the result of our examination of the evidence as announced in our previous opinion, this question offers no difficulty in the present case. We said on that subject: "We do not lose sight of the fact that plaintiff was not a trespasser, but had a right to enter the car for the purpose of asking permission to wash his hands, or of trying to have the privilege, and that in addressing the porter he was dealing with him as a servant of the company." A second examination of the record has had the effect of confirming the correctness of that conclusion. The preponderance of the evidence on that point, although very conflicting, shows to our entire satisfaction that plaintiff did not ask permission of the porter to wash his hands, and that after an exchange of a few un

pleasant words, the porter struck him on the head with a blunt instrument while plaintiff was standing at the threshold of the door of the Pullman car. He was stunned by the blow, which felled him to the platform, whence he was picked up and brought to the forward car by one of his friends. His testimony as to the main features of the incident is corroborated by that of two other witnesses, although no witness saw the whole incident. Hence we conclude that the attack was unprovoked, unjustifiable and willful on the part of the porter, for whose conduct the defendant company must be held liable in damages. As the Pullman Car Company, the immediate and direct employer or master of the wrong-doer, has been shielded from responsibility by our previous decree, the case may be a hard one on the defendant; but under the authorities by which we have been guided the hardship appears inevitable. Our ruling in that case rested on a pivotal feature, and there existed no contractual relations between plaintiff and the company. Our conclusions find ample support in the decision of the case in 76 N. Y., hereinabove referred to, to which the railway company was made to respond for the ejectment of a passenger from the drawing room car in which he claimed the right of occupying a seat without paying therefor. La. Sup. Ct. Williams v. Pullman Palace Car Co. Opinion by Poché, J.

DUTY TO PROVIDE SEATS-RIGHT TO FARE.Plaintiff at M., desiring to go to W., entered one of defendant's regular passenger trains about to start for the latter place. Before he learned he could get no seat the train was going at a high rate of speed. He asked the conductor to provide him a seat, but the conductor refused. On his fare being demanded, plaintiff offered to pay if a seat were provided him, but refused to pay unless a seat were provided. Held, that plaintiff had a right so to refuse to pay the fare, and he did not thereby become a trespasser on the train. It is in general the duty of a railroad company to provide sufficient cars to carry all who have occasion to travel on its line of road. As the law does not require unreasonable things, a single instance, or occasional instances, of insufficiency of the amount of means of travel, caused by a rush of travel not reasonably to be expected by the company, would probably be excused; and the railroad company, like all other common carriers of passengers, must provide those whom it carries with the usual, reasonable accommodations for comfort in travelling, including seats. This is too well established to need citation of authorities. When this plaintiff, desiring to take passage to Wayzata, found one of defendant's regular passenger trains about to start for that place, he had a right to enter it, assuming that the defendant had done its duty in providing sufficient and suitable accommodations for all having occasion to become passengers on the train. The train started, and had reached a high rate of speed, before he learned that there was not sufficient seats. When he learned that he could get no seat, he had a right to elect either to accept such accommodations as were offered and pay the fare, or to refuse to pay the fare unless he could have the accommodations to which a passenger is entitled. If he elected the latter course, then (inasmuch as he was not entitled to the passage, even though no seat was provided him, without paying fare) it was his duty to leave the train on the first reasonable opportunity afforded him. He could not be expected to leave the train while in motion. A reasonable opportunity to leave it would have been the stopping it in a suitable and reasonable place. As he had a right to refuse to pay fare unless a seat was provided him, he did not become wrongfully on the train by so refusing. He could become a trespasser only by refusing to leave the

train on a reasonable opportunity being afforded. Such opportunity the defendant was bound to afford unless it chose to carry him without fare. It was the defendant's, not the plaintiff's, fault that a seat was not provided. The case differs from the Wyman case, 34 Minn. 210. For in that case the refusal to pay fare was wrongful; in this the refusal, unless a seat was provided him, was rightful. In that case the plaintiff, by the refusal, became a trespasser; in this he did not. This case is somewhat analogous to Maples v. Railroad Co., 38 Conn. 557, in which it was laid down that a railroad company, having a right to eject from its train one not a trespasser, must do so at some regular station on its road. That is a reasonable rule, and that the decision was in accordance with the general rule was recognized by this court in the Wyman case. See also Galleua v. Railroad Co., 13 Fed. Rep. 116. Minn. Sup. Ct., June 18, 1888. Hardenbergh v. St. Paul, M. & M. Ry. Co. Opinion by Gilfillan, C. J.

CRIMINAL LAW-ARSON-INCLOSED AND COVERED STRUCTURE-CRIB.-Under a statute defining arson as the willful buruing of any building, edifice or structure inclosed with walls, and covered, a person cannot be convicted of arson for burning the materials of a crib after having torn it down. We think it clear that when the building was torn down it ceased to be a "building" or "structure," because it had lost the arrangement of its parts-its form, make and construction. It had no longer the inclosure of walls, and it was no longer covered. It had lost all the essen. tial characteristics of a "house." The logs might still be called "house-logs," but they had ceased to be a "house." Tex. Sup. Ct., March 7, 1888. Mulligan v. State. Opinion by White, P. J.

RAPE CHILD UNDER TEN-CONSENT-INDICT

MENT.-On a trial for rape, an instruction that if the accused had unlawful carnal knowledge of the prosecutrix when she was under ten years of age, he is guilty whether she consented or not, is erroneous where the indictment charged that the act was committed " forcibly and against her will." N. C. Sup. Ct., March 26, 1888. State v. Johnson. Opinion by Smith, C. J.

EVIDENCE-OF FORMER ACCIDENTS.-In an action to recover for injuries received by driving off an unguarded embankment on the highway, evidence that other persons, both before and after the plaintiff's accident, drove off the same embankment, is legally admissible, although the jury had a view, and it was conceded that the condition of things throughout the entire period covered by the evidence had been the same as it was at the time of the view. The exclusion of such evidence however as a matter of discretion is not error. Evidence is any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion affirmative or disaffirmative of the existence of some other matter of fact. 1 Benth. Jud. Ev. 17. Such was obviously the tendency of the facts which were excluded, and besides the general admissibility of such testimony is so conclusively established in Darling v. Westmoreland, 52 N. H. 401, 403-406, that further discussion is unnecessary. It is suggested however that the ground of exclusion in the present case was the highway being undisputed, and having been made known to the jury by the view, further evidence on this point was unnecessary and irrelevant. If this were so, the view was conclusive, and the testimony of the plaintiff as to the highway should have been excluded. But the view was not conclusive. It was merely a physical fact which afforded the jury ground for speculation and opinion; but it is not to be assumed that their judgment so formed would not have been altered by the testimony of others vouching

their actual experience, unless it is to be assumed that opinions are superior to knowledge and conjecture to facts. It was merely evidence to be weighed in connection with the plaintiff's testimony; and if the jury might properly consider her testimony upon the question of the suitableness of the highway, there is not only no reason why they might not properly consider the testimony of others having knowledge on that point, there being in this State no rule of law which admits the one and excludes the other (Darling v. Westmoreland, supra), but there is an obvious reason why they should consider it, for the probative force arising from concurrent testimonies is the compound ratio of the probabilities taken singly. 1 Best Ev., § 33. And in this connection there is another reason, equally obvious, which is this: The only controverted questions as to the highway apparently were whether the plaintiff used due care, and whether its undisputed condition rendered it unsafe for the public travel; and as the care required of the plaintiff was the same as that required of other persons of ordinary prudence, the fact that such other persons were injured under similar circumstances was a fact bearing upon both questions alike, and as relevant upon both as the experience of the plaintiff herself. How much weight, if any, the excluded facts might have had with the jury, it is not the province of the court to determine; the sole legal consideration is that of their competency. As matter of law they are competent. What the plaintiff might prove by her own testimony she might prove by that of others having knowledge; but irrespective of this proposition, it was her right to prove her case by competent evidence from all sources, and to have it weighed by the jury in connection with the other evidence before them. The rule in this class of cases does not require the proofs to come from any given source, or to be of any given weight, it only requires that they be relevant to the issue. It makes no one kind of evidence conclusive, and being a rule of reason, it does not exclude all experimental knowledge of one person. Still less does it exclude the experimental knowledge of one person and admit that of another under like conditions. Darling v. Westmorelaud, supra. But while the evidence in question was competent as a matter of law, its exclusion as a matter of discretion would present no error (Nutter v. Railroad Co., 60 N. H. 483, 485; Watson v. Twombly, id. 491, 493), and a majority of the court being of the opinion (in which my brother Smith and myself do not concur) that the true construction of the reserved case shows the exclusion to have been upon this ground, the result is, exception overruled. N. H. Sup. Ct., March 16, 1888. Cook v. New Durham. Opinion by Blodgett, J.

MASTER AND SERVANT-DEFECTIVE APPLIANCESCONTRIBUTORY NEGLIGENCE.-In an action against an electric light company for negligently killing an employee, the evidence showed that deceased was sent to look for a break in the circuit while the current was on, and took with him a defective shunt-cord. He discovered the break, and in attempting to turn on the current he grasped the shunt-cord at its defective end, and at the same time put his other hand on the exposed end of the line wire, whereby the current passed and killed him. Had he grasped the line wire above the exposed end he would not have been injured. Held, that the evidence, failing to show negligence on the part of the defendant unmixed with the contributory negligence of deceased, was insufficient to support a verdict for plaintiff. Va. Ct. App., April 17, 1888. Piedmont Electric Illuminating Co. v. Patteson's Adm'x. Opinion by Fauntleroy, J.

MINES-POSSESSION UNDER CONTRACT TO MINEBREACH-REFUSAL OF POSSESSION. Where one is

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in possession of the mine and fixtures of another, under contract to mine a certain quantity of rock each year "until the mines are exhausted," he cannot retain possession under his contract, and refuse to deliver up the mine and fixtures, and discontinue work, after notice to that effect has been served upon him; but he may have an action for damages against the owner for breach of contract. There are two English decisions found in 5 Adol. & E. (N. S.) which are very similar to this, and which we think should control here. In the first case, Aspdin v. Austin, p. 671, plaintiff agreed to manufacture for defendant cement of a certain quality, with the materials, machinery and implements to be furnished by the defendant; the defendant engaging to pay four F. weekly during the two years following the date of the agreement, and five F. weekly during the next year following, and also to receive plaintiff into partnership at the expira tion of the three years. Each party bound himself in a penal sum to fulfill the agreement. Held, that the stipulations in the agreement did not raise an implied covenent that defendant should employ plaintiff in the business during three or two years, though defendant was bound by express words to pay plaintiff the stipulated wages during these periods respectively if plaintiff performed or was ready to perform, the condition precedent. In this case the plaintiff was discharged before the expiration of the period mentioned, and he brought action for damages on account of the discharge. In delivering the opinion of the court, Lord Denman, C. J., said: "The breach here assigned by the plaintiff assumes that the defendant, at however great loss to himself, was bound to continue his business for three years. But the defendant has not covenanted to do so. He has covenanted only to pay weekly sums for three years to the plaintiff, on condition of his performing what on his part he made a condition precedent, and the plaintiff will be entitled to recover those sums, whether he performs that or not, so long as he is ready and willing and offers to perform it, and is prevented only by the defendant from doing it." The other case, Dunn v. Sayles, p. 687, was to the same effect upon a similar contract. The court in these cases seem to have held that while the contract to pay the stipulated sums for the services to be rendered might be binding if the plaintiff was ready and willing to perform them, and was prevented improperly by the defendant, yet that defendant could not be required to continue the business against his will and to his great injury. In other words, that he had the right to dismiss his employee, and to discontinue his business, at the peril of being held responsible for failure to comply with his contract to pay so much weekly, etc. The breach of contract, if any, does not entitle the defendants to continue in possession of the property. Mr. Wood says: "When a servant is discharged, whether rightfully or not (Ross v. Pender, 1 Ct. Sess. Cas. [4th sess.] 352), he must leave peaceably, and surrender to the master all property belonging to him, including a house, if he occupies it as a servant; and if he fails to do so the master may forcibly eject him from the premises (Scougal v. Crawford, 2 Murray, 110; Bertie v. Beaumont, 16 East, 34), and the fact that the servant leaves quietly, without protesting against his discharge, cannot be construed as evidence of an acquiescence therein (Champion v. Hartshorne, 9 Conn. 564; McAlister v. Ogle, 1 Ir. Jur, [N. S.] 313), for it is his duty to leave peaceably, and he does no more than his duty by quietly departing." Wood Mast. & Serv. (2d ed.), § 144. S. C. Sup. Ct., April 3, 1888. Wando Phosphate Co. v. Gibbon. Opinion by Simpson, C. J.

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the natural streams within its limits, as public health may require, the selectmen, in the exercise of reasonable care, straighten and deepen the channel of a river running through the town, and the work is done under the direction of, and according to plans and specifications prepared by a competent city engineer, the intention being to make as ample provision for the flow of water as existed before, the town is not liable for injury to private property, during an extraordinary, but not unprecedented, freshet, although the injury was caused by the oversight or misjudgment of the engineer in allowing the earth excavated to be deposited, as required in the specifications, but not by the original plan, on the banks of the river, which prevented the natural overflow of its banks, and thus set back the water. Conn. Sup. Ct. Errors, Oct. 21, 1887. Diamond Match Co. v. Town of New Haven. Opinion by Park, C. J.

SALE MISREPRESENTATIONS BY PURCHASER AS TO MARKET PRICE RESCISSION.-A misrepresentation made by a purchaser to a seller as to the market price of an article of general commerce, to induce a sale more advantageous to the purchaser than he otherwise could have accomplished, and relied upon by the seller, will not avoid the contract of sale when there are no circumstances making it the special duty of the purchaser to communicate the knowledge he possesses of the state of the market, and none giving him peculiar means of ascertaining such market price. Graffenstein v. Epstein, 23 Kans. 443, cited and approved. Valentine, J., dissenting. Kans. Sup. Ct., March 10, 1888. Burns v. Mahannah. Opinion by Simpson, C.

STATUTE OF FRAUDS CONTRACT NOT TO BE PERFORMED WITHIN A YEAR TELEGRAMS.-Defendant sent a telegram to plaintiff saying: "Will you accept (employment) on two years' guaranty at $1,400?" Plaintiff answered by telegram saying that he accepted, and would be on hand to commence work January 10. Defendant sent a telegram in response saying: "I will accept you January 10th." Held, that the contract of hiring for two years was reduced to writing, and signed, so as to take it out of the statute of frauds. Trevor v. Wood, 36 N. Y. 307. Colo. Sup. Ct., Feb. 13, 1888. Little v. Dougherty. Opinion by Stallcup, C.

OF ENLARGEMENT

LIABILITY DIS

SURETY CHARGE OF SURETY.--Defendant became surety on a bond given to plaintiff by a bank clerk for the faithful and honest performance of all duties required of him, or trusts reposed in him, as long as he should continue in plaintiff's employ. The clerkship to which he was appointed was that of assistant bookkeeper. His position was changed several times, and finally he was made note teller and discount clerk, in which position large sums of money were collected and received by him daily, and his responsibility greatly enlarged. While in this last position he committed defalcations. In a suit on the bond to recover for such defalcation, held, that the clerk's duties had been materially changed, and the surety was thereby released. It is one of the well-established principles of law that the obligation of a surety is not to be extended beyond what the terms of the contract fairly import. A surety has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, such variation operates a release of the surety. In a case of a surety standing bound for the fidelity or capacity of a principal appointed to a particular office or employment, if the nature of the employment is so changed by the act of the employer that the risk of the surety is materially altered from what was contemplated by the parties at the time of entering into the bond, the surety has a right to say that his obligation does not extend to such

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altered state of things. This is a doctrine in regard to which the authorities all agree. Miller v. Stewart, 9 Wheat. 680; Pybus v. Gibb, 6 El. & Bl. 902; Bank v. Dickerson, 41 N. J. Law, 448; Mumford v. Railroad Co., 2 Lea, 393. And it is a principle of universal application, that in order to arrive at the intention of the parties, the contract itself must be read in the light of circumstances under which it was entered into. General or indefinite terms employed in the contract may be thus explained or restricted in their meaning and application; and the contract must be so construed as to give it such effect, and none other, as the parties intended at the time it was made. These principles are elementary; and applying them to the terms of the bond, when those terms are considered in reference to the facts of the case, there would seem to be no doubt of the correctness of the ruling of the court below. It is true the terms of the condition of the bond are very large and comprehensive, but they all have reference to the previous appointment as clerk. By the terms of the bond it was certainly competent to the board of directors, or to the president or cashier, to impose additional consistent duties upon Lisle to those then pertaining to the position of bookkeeper; but not to impose duties upon him that would entirely change the nature and grade of his position in the bank, and enhance his responsibility, and thereby essentially increase the risk to the surety on his bond. This could only be done by the assent of the surety, and it is not pretended that such assent was ever obtained. Md. Ct. App., March 14, 1888. First Nat. Bank of Baltimore v. Gerke. Opinion by Alvey, C. J. WAREHOUSEMAN -LIABILITY DESTRUCTION OF HOUSE BY FIRE.-Plaintiff's goods, while in defendant's warehouse, were destroyed by fire, which originated some distance away, and was blown toward the warehouse. The fire occurred on Sunday, which was not a day for the delivery of freight in the ordinary course of business. Held, that defendant having used all means in its power to prevent the fire from reaching the warehouse, was not liable for the destruction of plaintiff's goods, by reason of having refused to open the warehouse doors, and let plaintiff take his goods, when such opening would have exposed it to the danger of sparks entering at the door, and of plunder by a promiscuous crowd gathered at the fire. The defendant owed no less a duty to others than to the plaintiff; and its efforts, with all the forces at command, seem to have been directed to the preservation of all the goods in its custody. The plaintiff was present to look after his, but other owners were not there; and it was not an unreasonable apprehension that opening the house and giving an indiscriminate access to the goods therein deposited, would result in a much greater loss. There were moreover, as is proved, a large number of cars blocking up the way, 150 or more, and a large quantity of gunpowder in some of them; and the efforts of the men, under the direction of its officers, were mainly made to remove them, so that the flame, passing along them, might be arrested before reaching the warehouse; and this was well-nigh accomplished-only one or two left, which it was found impracticable to move in time, and through these the fire was communicated to the warehouse. According to the superintendent, if the cars could have been removed, the warehouse would not have been burned. It is unnecessary to repeat the testimony, as it is set out in full, but it tends to show energetic and well-directed efforts to save the large property of others in its hands, and its own, from the spreading and consuming element that was devouring houses all around, and we do not see any error in the charge of the court in regard to its responsibility. It must not be forgotten that one's judgment, under

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