objection that a way of necessity must mean something more than what I have stated, because where the grant is of the inclosed piece, the grantee is entitled to use the land for all purposes, and should therefore be entitled to a right of way commensurate with his right of enjoyment. But there, again, the grantee has not taken from the grantor any express grant of a right of way, and all he can be entitled to ask is a right to enable him to enjoy the property granted to him in the condition it was when granted to him. It does not appear to me that the grant of the property gives any greater right. But even if it did, the principle applicable to the grantee is not quite the same as the principle applicable to the grautor, and it might be that the grantee obtains a larger way of necessity - though I do not think he does-than the grantor does under the implied re-grant. I am afraid that I am laying down the law for the first time-- that I am for the first time declaring the law; but it is a matter of necessity from which I cannot escape. The demurrer must therefore be overruled with costs.

INTERLINEATIONS IN WILL.

ENGLISH HIGH COURT OF JUSTICE, PROBATE, DIVORCE AND ADMIRALTY DIVISION, FEB. 10, 1880.

IN THE GOODS OF BLEWITT.

Where two interlineations were introduced into a will after execution and attestation, but the testatrix duly initialled the same in the margin opposite them, and the witnesses also subscribed their initials in attestation of such signature (by initialling) of the testatrix, held, that the interlineations were duly executed, and were entitled to probate as part of the will.

SAR

ARAH BLEWITT, late of Chelsham road, Clapham, in the county of Surrey, widow, died on the 27th Dec. 1879, having duly made her last will and testament on the previous day (26th Dec., 1879), in the words and figures following:

"I, Sarah Blewitt, of Chelsham road, Clapham, in the county of Surrey, widow, do hereby revoke all wills and other testamentary documents heretofore made by me, and do declare this to be my last will and testament. 'I give and bequeath unto Amelia Cooke the sum of 501. and all my wearing apparel.' I give, devise and bequeath all the residue of' my estate, both real and personal, etc., unto John James Grocott, of, etc., and Thomas Henry Edward Cooke, of, etc., their' heirs, executors and administrators respectively, upon trust, etc. And I appoint the said John James Grocott and the said Thomas Henry Edward Cooke' my sole executor. In witness whereof, etc."

The will was duly executed by the testatrix in accordance with the provisions of the statute, the attesting witnesses being a Mr. Nickinson, the solicitor who prepared it, and a Mr. Rigby Allport.

The deceased had scarcely executed the will, and the second subscribing witness was in the very act of attesting her signature, when she expressed a desire to appoint Mr. Cooke co-executor and co-trustee with Mr. Grocott, and to give to Miss Cooke a legacy of 50l. and all her wearing apparel. As there was some danger of the deceased expiring before another will could be executed, Mr. Nickinson thought it best to carry out her intentions by interlining them in the will, and after the interlineations (which are marked above by inverted commas) had been made, the testatrix placed her initials opposite them, and the witnesses subscribed their initials underneath hers in attestation of her signature.

Bayford and Stevens moved the court to decree probate of the will with the interlineations to the executors. They amounted to a re-execution of the will.

The following cases were quoted in the course of the arguments and the judgment: In the Goods of Hind, 16 Jur. 1161; In the Goods of Christian, 2 Rob. 110; Baker v. Dening, 8 Ad. & E. 94; Hindmarch v. Chorlton, 4 L. T. Rep. (N. S.) 125; 1 S. & T. 433; 28 L. J. 132, P. & M.; In the Goods of Martin, 1 Rob. 712.

The President (Sir James Hannen) delivered the following judgment: Two interlineations were introduced into the will after execution and attestation, but the testatrix signed with her initials in the margin against these interlineations, and the witnesses subscribed their initials in attestation of this signature of the testatrix. The Wills Act, section 21, enacts that no interlineation or other alteration made in any will after the execution thereof shall be valid unless such alteration shall be executed in like mauner as is required in the execution of the will; but the will with such alterations shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin. The only question then is, whether the signature and subscription only is sufficient. A mark is sufficient, though the testator can write. Baker v. Dening. Initials, if intended to represent the name, must be equally good. The language of the lord chancellor in Hindmarch v. Chorlton, seems equally applicable to the testator's signature as to the witnesses' subscription: "I will lay down this as my notion of the law, that to make a valid subscription of a witness, there must either be the name or some mark which is intended to represent the name." And Lord Chelmsford says: "The subscription must mean such a signature as is descriptive of the witness either by a mark or by initials or by writing the name in full." In Christian's case the initials of the witnesses were held sufficient, although if merely placed to attest the alteration they will not serve as an attestation to the will itself. In the Goods of Martin. I am therefore of opinion that the interlineations against which the initials of the testatrix and the witnesses are placed should be admitted to proof.

Bayford. As part of the instrument?
The President. As part of the instrument.

NEW YORK COURT OF APPEALS ABSTRACT.

ASSIGNMENT FOR CREDITORS GOVERNS ACTION OF ASSIGNEE-PREFERENCES-TAXES.-L., in 1876, gave his bond and a mortgage on certain property to U. to secure a certain debt due U. The mortgage contained a provision authorizing foreclosure in case the taxes on the mortgaged property should not be paid. The taxes for 1877, 1878 and 1879 not being paid, U. commenced foreclosure procedings and had a receiver appointed pendente lite, and through him secured possession of the said property. In 1879 L. made an assignment of his property for the benefit of creditors to D. in trust to pay certain preferred debts named, but the assignment contained no provision giving any preference to taxes or directing their payment at all, except as embraced in the general unpreferred debts of the assignor. U., upon a petition showing that the mortgaged property was an insufficient security for his debt and the other facts, asked for an order that the assignee should pay and discharge the taxes in arrears. Held, that such order should be refused. The assignee derives all his power from the assignment, which is both the guide and measure of his duty. Beyond that or outside of its terms he is powerless and without authority. The control of the court over his action is limited in the same way and can only be exercised to compel his performance of the stipulated and defined trust and protect the rights which flow from it. He distributes the proceeds of the estate placed in his

care according to the dictation and under the sole guidance of the assignment, and the statutory provisions merely regulate and guard the exercise of an authority derived from the will of the assignor. The courts therefore cannot direct the assignee to pay a debt of the assignor or give it preference in violation of the terms of the assignment and the rights of creditors under it. Nicholson v. Leavitt, 6 N. Y. 519. The case is not like that of a distribution of a bankrupt's or of a decedent's estate. Even if the State has a right to claim preference in the payment of taxes, an individual cannot interfere in its behalf and claim it. Order affirmed. Matter of Assignment of Lewis. Opinion by Finch, J.

[Decided June 15, 1880.]

MALICIOUS PROSECUTION GROUND OF PROSECU

TION WHAT MUST BE SHOWN FAILURE OF PROSE

CUTION. In an action by T. against K. and others for malicious prosecution, it appeared that the prosecution complained of was set on foot by the defendants and rested upon an affidavit drawn by one of the defendants and verified by K., the other, wherein a larceny of deeds was charged to have been committed by T. from X., but the facts and the circumstances of the case were set forth and showed that T. having persuaded K. to let him have possession of deeds from him to her, of real estate (belonging to her, but the title to which was held by him in trust), for the purpose of examination and correction, refused to return them to her but kept them by violence, and afterward conveyed the real estate to another. It also appeared that at the time, the deeds were not recorded. Held, that if the statement of surrounding circumstances in the affidavit were true, the action for malicious prosecution could not be sustained, even though the districtattorney afterward dismissed the indictment against T. after K. had been heard, as not sustained by the evidence. The affiant was responsible for the statements in her affidavit but not for any legal conclusion therefrom of a police magistrate or a district-attorney, or a grand jury. In order to compel a defendant in an action for malicious prosecution to go into a defense, the plaintiff must show, first, the want of a reasonable and probable cause for the complaint in the proceeding against plaintiff (Williams v. Taylor, 6 Bing. 183), and second, that it was instituted by malice. As to the first ground, the plaintiff is bound to give in evidence facts sufficient to satisfy a reasonable mind that his accuser had no ground for the proceeding but a desire to injure him, and whether he had done so was for the court to determine as matter of law, assuming the evidence was true. Stewart v. Sonneborn, 98 U. S. 189; Halles v. Marks, 7 H. & N. 56; Masten v. Deyo, 2 Wend. 421; Besson v. Southard, 10 N. Y. 236; Sutton v. Johnstone, 1 Term R. 269; Turner v. Ambler, 10 A. & E. 252. Judgment reversed and new trial ordered. Thaule v. Krekeler. Opinion by Danforth, J. [Decided June 18, 1880.]

PRACTICE APPEAL TO COURT OF APPEALS-ORDER DISCHARGING ARREST OPINION OF COURT BELOW CANNOT CONTROL ORDER.In this case defendants were arrested under the provisions of the Code for fraud in contracting the debt for which suit was brought, and after judgment they were again arrested under the act to abolish imprisonment for debt, upon the same grounds. The judge discharged them on the ground that they were not liable to be arrested twice for the same cause. His decision was affirmed at General Term. The order of discharge stated that it was made "upon due consideration of the proofs in the matter, and the affidavits on which the warrant was granted." In the order of affirmance at General Term, no ground was stated. Held, that this court could not say from the orders that they were not made upon the merits, and that the proofs in the case failed to satisfy

the courts below that a case was made out for a commitment, nisi, etc., of defendants. In such a case this court may not, when an order of arrest or commitment has been denied, review the order. And the fact that the opinions below do not so state will not alter the rule. This court may not look into the opinions below to find matter differing from that in the order, unless the language of the order is ambiguous and needs aid for an understanding upon which it went. Ferher v. Gould, 22 Alb. L. J. 55. Appeal dismissed. In re Nebenzahl et al. Opinion by the court. [Decided June 15, 1880.]

SUPERIOR COURT OF BUFFALO.

GENERAL TERM ABSTRACT.

ATTORNEY'S LIEN-SETTLEMENT.-If an attorney has omitted to protect himself by a notice forbidding a settlement without him, and the parties compromise the action before judgment, of which he has notice, he then proceeds in the suit for his costs, at the peril of establishing conclusively that the adverse party had the design, when making the settlement, of defeating his demand for the costs. If he fail in satisfying the court of this, his proceedings, subsequent to notice, will be set aside. McDowell v. Second Ave. R. Co., 4 Bosw. 670; Sullivan v. O'Keefe, 53 How. 426; Crotty v. MacKenzie, 52 id. 54. He must make out a clear case of collusion to justify him in proceeding in the suit after notice of settlement. And it must be shown affirmatively that the settlement was made with the purpose of depriving the attorney of his claim. Carpenter v. Sixth Ave. R. Co., 1 Am. L. Reg. (N. S.) 410. Indigence of plaintiff, known to defendant, is not sufficient to establish collusion, or to requiro the latter to take notice of the lien or claim of the attorney. Suspicious circumstances are insufficient to show collusion. The attorney may protect himself by giving notice of his claim. But he does not acquire a vested interest in or a lien upon the plaintiff's cause of action, by stipulating beforehand for a share of the recovery. Coughlin v. N. Y. C. R. Co., 71 N. Y. 448. The attorney has not, even after judgment, a lien, properly speaking, but only a claim or right to ask for the intervention of the court for his protection, when, having obtained judgment for his client, he finds there is a probability of the client's depriving him of his costs. Mercer v. Graves, L. R., 7 Q. B. 499. The question is, not whether plaintiff has acted with a fraudulent intent, but whether defendant has acted fraudulently with respect to plaintiff's attorney. Where the attorney has noticed the cause for trial, after notice of settlement, a motion to strike it from the calendar is proper. (The settlement was made before amendinent to section 66 of the Code, by Laws of 1879.) Lang v. Buffalo Seamen's Union. Opinion by Beckwith, J. BAILMENT-CONVERSION.-Though a man cannot be made a bailee against his will, yet where a customer unintentionally leaves an article in a shop, and the shop-keeper takes charge of it, he becomes a bailee of the article. A demand of the property and a refusal or neglect to re-deliver it is prima facie evidence of a conversion, and it is incumbent on the defendant to justify or excuse the refusal. Osgoodby v. Liemberner. Opinion by James M. Smith. J.

DAMAGES UPON EVICTION OF TENANT. - In an action by a tenant against his landlord to recover damages for breach of contract in evicting him from the premises, he is not entitled to recover the value of goods left thereon. The eviction did not deprive him of them. After demand and refusal, he could maintain an action for their conversion, or replevin. But an action sounding in tort cannot be joined with one upon contract. Stenbeck v. Latta. Opinion by James M. Smith, J.

JUDGMENT OF JUSTICE OF PEACE-INSUFFICIENCY OF EVIDENCE. - A judgment rendered by a justice of the peace cannot be upheld by mere intendment; there must be some legitimate evidence tending in some degree to establish every fact essential to the cause of action. Evidence held insufficient to establish employment of real estate broker, and that he was the procuring cause of the sale. Chappell v. Truscott. Opinion by Beckwith, J.

JUSTICE'S JUDGMENT EXCESSIVE COSTS. If a judgment rendered by a justice court violates the statute, which provides that "the whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, shall not, in any case, exceed five dollars" (3 R. S. 247, § 117), the whole is vitiated. Kunz v. Echhert. Opinion by James M. Smith, J.

MORTGAGE OF MERCHANDISE - WHEN NOT FRAUDULENT. Where there was no express agreement or stipulation, verbal or written, that the mortgagor should remain in possession of the merchandise mortgaged and sell it in the usual course of business, but the mortgagor did continue in possession of the merchandise and sold part of it in the usual course of trade at retail, with the knowledge of the mortgagee, and though there was no proof that any part of the proceeds had been applied on the mortgage, held, that the mortgage was not, as a matter of law, fraudulent as against the creditors of the mortgagor, and a nonsuit of the mortgagee was error. Hastings v. Parke. Opinion by Beckwith, J.

SALES FRAUDULENT AGAINST CREDITORS. - After trial, but before judgment rendered against him, a man executed and delivered to his wife a bill of sale of furniture in the house occupied by them, but without any actual and continued change of possession of the goods. In replevin by the wife against a constable who levied upon the goods under the judgment aforesaid, held, that the plaintiff was bound to establish affirmatively that the sale was made in good faith and without any intention to defraud creditors. Randall v. Parker, 3 Sandf. 69; Jones v. O'Brien, 36 N. Y. Sup. Ct. 58. Marvin v. Smith. Opinion by Beckwith, J.

USURY-MORTGAGE — PAROL EVIDENCE- ESTOPPEL BY GUARANTY OF MORTGAGE. A conveyed lands to B, and received in return a bond and mortgage, which he sold and assigned to plaintiff, with a guaranty of their payment, and shortly thereafter B re-conveyed the lands to A. In an action to foreclose the mortgage, held, (1) that evidence was admissible to show that the deed, bond and mortgage were given without any consideration, and were made for the sole purpose of obtaining a loan of money from the plaintiff at a usurious rate of interest, by the sale of the bond, etc., to him, and that the same was known to him when he purchased and took the assignment of them. Parol evidence is admissible to show that an instrument is void, or that it never had any legal existence or binding force, either by reason of fraud, or for want of due execution and delivery, or for the illegality of the subject-matter; or that it was made for the furtherance of objects forbidden by law; whether it be by statute, or by an express rule of the common law, or by the general policy of the law. (2) That the mortgagee (A) was not estopped by reason of his guaranty from showing these facts. Where the assignee of a mortgage sets up an estoppel against the mortgagee, based on the warranty or assurance of the validity of the security by the mortgagor, the latter may show that the assignee could not have believed or acted upon such assurance or warranty, because he well knew the mortgage was void. Fellows v. Wallace. Opinion by James M. Smith, J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

ATTORNEY-HAS NO POWER TO COMPROMISE CLIENT'S CLAIM. An attorney at law in Pennsylvania has, as such, no authority to compromise his client's claim. In Stokely v. Robinson, 10 Cal. 315, it was held that an attorney, by virtue of his professional relation, has no power to compromise his client's case without the client's authority or sanction; and this doctrine is supported by the cases of Huston v. Mitchell, 14 S. & R. 307, and Stackhouse v. O'Hara's Ex'rs, 2 Harris, 88. In the latter case it was said, per Coulter, J.: An attorney at law in Pennsylvania has very extensive power in relation to conducting a suit, but after judgment this plenary power, in a great measure, ceases, excepting as to his power of receiving the amount of the judgment and giving a receipt for it." Housenick v. Miller. Opinion by Gordon, J. [Decided March 22, 1880.]

CONTRACT-NON-PERFORMANCE CAUSED BY ACT OF GOD NO BREACH.-C. agreed with J., who owned a hotel, to supply spring water to the hotel through pipes that were laid from a spring that was the only regular source of supply since the hotel was built. J. leased the hotel, agreeing with the lessee that the hotel should be supplied with spring water during said term in the manner the same is now supplied under that certain agreement" between C. and J. Held, that a failure of the water supply, caused by the drying up of the spring, was not a breach of the contract. Ward v. Vance. Opinion by Trunkey, J. [Decided March 22, 1880.]

ILLEGAL CONSIDERATION-PROOF OF. - The proof of a mere threat of prosecution for a felony, inducing the execution of an instrument, is not sufficient to establish the invalidity of the instrument as having been given for an illegal consideration, there being no proof of the felony or of an agreement not to prosecute. Swope v. Jefferson Fire Insurance Co. Opinion by Sterrett, J.

[Decided May 3, 1880.]

NEGLIGENCE-RAILROAD ENGINE SPARKS SETTING FIRE THAT FIRE OCCURS NOT EVIDENCE OF NEGLI

GENCE. - In an action against a railroad company for fire caused by sparks from its engine, it was claimed that its spark arresters were defective and its engines carelessly managed, but no evidence of that fact or that the company was negligent was given, except that it was shown that the dry grass and stubble along the company's track were ignited. Held, not sufficient to establish negligence, and a submission of the question to the jury was improper. The company in operating its road had a right to use steam engines; and no person, natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a proper regard for the rights of others. The company was bound, however, to use spark arresters of the most approved kind, keep them in good order, and exercise reasonable care and vigilance in running its engines. The bare fact that dry grass and stubble on the line of the road were ignited was not of itself evidence of negligence in either of these particulars. It is impossible so to construct or equip an engine that no sparks will be emitted. The most that can be done is to prevent the escape of large sparks or coals. The most approved spark arresters necessarily permit the escape of small sparks, and if these come in contact with dry and combustible material on a windy day, the result is very frequently a fire, more or less extensive according to the kind and quantity of material at hand for it to feed upon. The burning of dry grass and other combustible material along the line of the road, without more, was neither negligence nor evidence from

which a jury would be justified in finding negligence. The principle involved in this case was recognized and applied in Jennings v. Railroad Co., recently decided in the Western District. Upon a state of facts differing in no essential particular from those of the present case, the jury was instructed to render a verdict for defendant; and in affirming the judgment, it is said: ,'To hold that the fact of the fire having taken place was prima facie evidence that the spark arrester was defective, and therefore that the case ought to be submitted to the jury, would be practically to hold railroad companies liable for all fires; it is a notorious fact that no spark arrester has yet been invented to prevent all sparks, and a little spark may kindle as large a conflagration as a large one. It depends on the dryness or humidity of the atmosphere, whether a spark will go out before reaching the ground, and whether what it reaches is in a condition to be easily ignited." Reading & Columbia Railroad Co. v. Latshaw. Opinion by Sterrett, J.

[Decided March 15, 1880.]

ILLINOIS SUPREME COURT ABSTRACT. MAY, 1880.*

ATTORNEY-INVESTING IN CLAIM AGAINST CLIENT. It is not to be tolerated that an attorney shall advise or encourago a client in investing in a bad title, and himself afterward buy up the better title and assert it as against his former client. Such a practice would open a door to endless wrongs and villanies, and bring great and just reproach upon the profession. "If an attorney employed by the party should designedly conceal from his client a material fact or principle of law, by which he should gain an interest not intended by the client, it will be held a positive fraud, and he will be treated as a mere trustee for the benefit of his client and his representatives; and in a case of this sort it will not be permitted to the attorney to set up his ignorance of law or his negligence as a defense or an excuse. It has been justly remarked that it would be too dangerous to the interests of mankind to allow those who are bound to advise, and who ought to be able to give good and sound advice, to take advantage of their own professional ignorance, to the prejudice of others. Attorneys must, from the nature of the relation, be bound to give all the information which they ought to give, and not be permitted to plead ignorance of what they ought to know." Gibbons v. Hoag. Opinion by Scholfield, J.

CONSTITUTIONAL LAW-EMINENT DOMAIN-TAKING PRIVATE PROPERTY FOR PUBLIC USE ASSESSMENT FOR SIDEWALK NOT.-The constitutional limitation that private property shall not be taken for public use without just compensation, to be ascertained by jury when not made by the State, has reference only to the exercise of the power of eminent domain, and not to special taxation of contiguous property for the building of a sidewalk or other public improvement by cities, towns and villages. Warren v. Henley, 31 Iowa, 31. It is quite clear that the levying such local assessments (for the building of sewers and sidewalks) is not taking private property for public use under the right of eminent domain, but is the exercise of the right of taxation, inherent in every sovereign State. Per Redfield, J., in Allen v. Drew, 44 Vt. 175. The courts seem to be very generally agreed, that the authority to require the property specially benefited to bear the expense of local improvement is a branch of the taxing power, or included within it. 2 Dill. on Mun. Corp., § 596. The compensation, under this provision, is to be ascertained by a jury. As remarked

* Appearing in 91 and 95 Illinois Reports.

in People v. Mayor, 4 N. Y. 419: "This is an appropriate mode when lands or goods are taken, because their value is uncertain, but not when money is taken, because its value is already fixed." Whether or not a special tax on contiguous property in a city or town for a local improvement, as a sidewalk frouting the same, exceeds the actual benefit to the lots taxed, is not material. It may be supposed to be based on a presumed equivalent, and where the corporate authorities determine the frontage to be the proper measure of probable benefits, this cannot be disputed or disproved. White v. People of Illinois ex rel. City of Bloomington. Opinion by Sheldon, J.; Walker, C. J., and Scholfield, J., dissented.

NEGLIGENCE- LANDING OF PASSENGERS-CARRIER OF PASSENGERS-STEAMBOAT.- Where a steamboat is landing at a wharf for the purpose of enabling passengers to go ashore, it is the duty of the proper officers of the boat to provide means for the safe transit of those who wish to leave the boat-and the fact that a stage plank placed for the use of passengers in landing, fell while a passenger, in the exercise of due care, was walking over it, is prima facie evidence of negligence on the part of the officers of the boat in the performance of that duty, and in an action by the passenger to recover for an injury caused by the falling of the plauk, the burden is upon the defendant to show the falling of the plank was not the result of negligence on the part of the officers of the boat. This position is sustained in Pittsburg, Cin. & St. L. R. Co. v. Thompson, 56 Ill. 138, and in Railroad Co. v. Pollard, 22 Wall. 342, and in Stokes v. Saltonstall, 13 Pet. 181. In the last named case it is held that the upsetting of a stage coach, by which a passenger is injured, is prima facie evidence of negligence on the part of the driver, and casts upon the proprietor the burden of showing the driver was in every respect qualified, and acted with reasonable skill and the utmost caution. Although it may appear that the end of the boat was moved around by the wind, and that this caused the falling of the stage plank, yet it not being shown that the boat was fastened to the wharf in any way, or that it could not have been fastened so as to have prevented it from being moved by the wind, there would not appear to have been due care on the part of the officers of the boat to discharge it from liability. Eagle Packet Co. v. Defries. Opinion by Dickey, J.

IOWA SUPREME COURT ABSTRACT. JUNE, 1880.

EVIDENCE-INTEREST OF WITNESS-MAY NOT BE SHOWN BY ADMISSIONS. — Under a statute declaring that a person interested in the event of a suit should not be excluded as witness, but allowing the fact of his interest to be shown for the purpose of affecting the credibility of his testimony, held, that statements made to others by the witness that he was interested could not be shown. The rules relating to the admissibility of evidence showing the interest of a witness are the same at common law and under the statute. A difference arises only as to the effect of the interest, and consequently as to the time when it may be shown. At common law the court passes upon the evidence, and if the interest be established, excludes the testimony; under the statute the evidence goes to the jury, and is considered upon the question of the credibility of the witness. The difference above referred to does not extend to the manner of showing the interest of the witness. Decisions of the courts made at common law must therefore determine the question under consideration. It has been often held that testimony for the purpose of establishing declarations of a witness, to the effect that he is interested in the event