ings for emolument or profit as a private owner might. Oliver v. Worcester, 102 Mass. 489; S. C., 3 Am. Rep. 485; Hill v. Boston, 122 Mass. 344; S. C., 23 Am. Rep. 332. In the present case this element of liability is wanting. The town received no compensation or profit from the use of the hall on this occasion. The case therefore is not within the reason of the rule relied upon, which creates a liability of the town. The fact that the town had before this occasionally let the town house for public meetings and entertainments is immaterial. Such occasional lettings would not create a permanent and continuing liability. The liability, if any, attaches because the town deals with and uses the public building for the purposes of profit, as a private enterprise, and it continues only so long as it thus uses it." These decisions are in harmony with the current of authority which denies the commonlaw liability of a municipal corporation for such accidents in cases falling short of nuisance, The Hill case was that of a child injured by an unsafe stairway in a public school-house.

sell the goods, and account for the proceeds less the freight. The defendant sold the goods and converted the proceeds. Held, not larceny, but false pretenses.

Luddington v. Bell, p. 138. A creditor of a dissolved partnership accepted the note of one of the partners for a portion of his demand, in discharge of the maker from liability for the partnership debt; held, an effectual release.

Kilmer v. Smith, p. 226.-Defendant A. contracted to convey to defendant B. certain premises subject to certain mortgages. B. assigned the contract to plaintiff. Without the consent or knowledge of B. or the plaintiff, A. inserted in the deed a clause binding plaintiff to assume the payment of the mortgages. The plaintiff, supposing the deed conformed to the agreement, accepted it and put it on record. Held, that plaintiff could maintain an action to reform the deed by striking out that clause.

Hay v. Star Fire Insurance Co., p. 235. In an action to reform a policy of insurance, after loss, held, (1) an agreement to renew a policy of insurance is presumed to imply that no change is to be made in its terms. (2) Such action is not "for the recovery of any claim by virtue of this policy," within the meaning of a provision that "no action for the recovery of any claim by virtue of this policy shall be sustainable" unless commenced within twelve months after the loss. (3) The limitation com

Dunham v. Bower, p. 76.- An action by the owner of goods against a carrier for damages for failure to transport such goods, is barred by a previous judgment in favor of the carrier against the owner for the freight of such goods.

Ring v. City of Cohoes, p. 83. The plaintiff was driving a blind horse and a wagon on one of defendant's streets; the horse becoming frightened, ran away, and was turned by a heap of ashes, negligently suffered in the street, into the gutter, where the wagon struck against the nozzle of a city hydrant projecting four inches over the gutter, and was overturned, and the plaintiff was injured. Held, (1) that the running away of the horse would not prevent a recovery; (2) that in the absence of evidence that the hydrant was improperly placed, negligence could not be presumed from its position and construction; (3) that in the absence of a finding that the accident was caused by the heap of ashes no recovery could be based on the negligence in suffering it to accumulate in the street.

Matter of Dodge and Stevenson Manufacturing Co., p. 101. — A judge is not disqualified from sitting in a cause to which a corporation is a party, by his kinship to a stockholder of the corporation.

Zink v. People, p. 114. -Defendant, by false representations and with a design to cheat the complainant out of goods, induced him to ship goods to him, with the indicia of ownership, on the agreement that the defendant was to advance the freight,

able, and not when the loss occurred.

First National Bank of Meadville v. Fourth National Bank of the City of New York, p. 320. — On the 22d of March, 1866, the National Bank of Crawford county, Pennsylvania, made and delivered to plaintiff a sight draft upon Culver, Penn & Co., of New York city. The plaintiff indorsed it and sent it by mail to defendant, its corresponding bank in that city, for collection and credit. Defendant received it on the morning of March 26, presented it on the same day, received the drawee's check upon the Third National Bank of New York, and delivered up the draft. The check was not presented for payment until the next day, and that through the clearing house. The drawees failed on the latter day, and the bank refused to pay the check. The defendant on the same day returned it and received back the draft, formally demanded payment of the draft, protested it for non-payment, and the next day mailed notice thereof to plaintiff and the drawer. The drawee's account was largely overdrawn on the 26th, but the bank had been in the habit of allowing such overdrafts for a month, the drawees making their account good on the next day, and the bank paid all their checks drawn that day, and some drawn later than the one in question, and continued to do so down to the failure on the next day. In an action of damages for negligence against defendant, a recovery was allowed for the amount of the draft with interest. Held, (1) that defendant was negligent and liable for the consequent damages; (2) that the facts did not justify the finding that the draft would not have been paid

if duly presented; (3) but that the measure of damages was the actual loss, and evidence was admissible to reduce it to a nominal sum. Comer v. Cunningham, p. 391. Williams bought of plaintiffs, at Savannah, Georgia, 118 bales of cotton, giving therefor his checks on Bryan & Hunter, of the same place, having previously put the latter in funds by his draft on defendants to their order, and otherwise. Plaintiff delivered sixty bales to Williams, and it was shipped by Williams to defendants, at New York, the bill of lading being in his name and having attached thereto the draft indorsed by B. & H. Defendants paid the draft on presentation, the amount being more than the price of the sixty bales, and the transaction being according to their custom with Williams, and received the cotton without knowledge of any claim on it. One of the checks on B. & H., being post-dated, was dishonored, and plaintiffs brought replevin for fortyfive bales, part of the sixty, relying on a statute of Georgia which provides that "cotton, rice, and other products sold by planters and commission merchants on cash sale shall not be considered as the property of the buyer, or the ownership given up until the same shall be fully paid for, although it may have been delivered into the possession of the buyer." Held, that the action could not be maintained; that assuming that the statute was part of the contract, it simply made the delivery conditional, affected nothing but the delivery, and could not affect the rights of a bona fide purchaser in this State; and the sale being absolute and unconditional, title passed to defendants.

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National Trust Co. v. Gleason, p. 400. In an action against several, including a married woman, for money had and received by one by means of a forgery to which all were parties, it is necessary to a recovery against all, to show that all were interested in the money received; mere complicity in the forgery will not charge any in such an action; and the married woman could not be rendered liable without showing a contract by her in her separate business, or for the benefit of her separate estate, or for which she had charged her separate estate. The conviction of one of felony in another State does not disqualify him as a witness in this.

Hennequin v. Clews, p. 427. A discharge in bankruptcy bars an action for the conversion of securities pledged to the defendant as collateral to a loan, the cause of action not being a debt created by fraud, nor while acting in a fiduciary capacity, within the meaning of the bankrupt act.

Butler v. Butler, p. 472. -- Plaintiff agreed to furnish and erect on defendant's premises a gas generator "all ready to make gas," the defendant agreeing to pay freight, furnish tank and house, and pay $1,500 for the machine, "$500 when the works are on the ground," and the balance in two subsequent specified installments. The plaintiff shipped the materials, which the defendant received and paid the freight on, but the defendant refused to permit him to erect the machine. Held, that the contract was entire and indivisible, and an action for the contract price was not maintainable.

Prentice v. Knickerbocker Life Insurance Co., p. 483.- A policy of life insurance, assigned to plaintiff, provided that the defendant should be notified forthwith of the death of the insured, and that the owner should, as soon as possible thereafter, deliver to the defendant a particular account of the cause, time, place, and circumstances, and that unless such proofs were presented within twelve months from the time the death occurred the policy should be forfeited. After the assignment the plaintiff paid the premiums by his checks. About July 1, 1872, the plaintiff, being about to go to Europe, paid in advance the premium due August 10. It was then agreed between him and the general agent that if the insured should die before the premium became due, the company's agents would know of it before the plaintiff could, and that the premium should be returned, and that "there was no trouble at all in regard to that whole thing." The plaintiff returned in October, 1872. The insured died July 27, 1873, but his death was not known to either party until July, 1875. The plaintiff paid the premiums for 1873 and 1874, having received notice from the company of the time when they were to fall due, and receiving renewal receipts. In June or July, 1875, plaintiff learned of the death, notified the company, received blanks for proofs of death, and delivered the proofs to them July 9. The proof stated the death in July, 1873. The company retained the proofs until October next without objection, and then took the ground that the policy was forfeited by the omission to serve the proofs within twelve months of the death. The policy was payable in three months after proof of death. The company retained the premiums paid after the death, and never offered to return them until after the action. Held, that the forfeiture was waived.

Steinbach v. Relief Fire Insurance Co., p. 498. The defendant, a New York corporation, insured the plaintiff at Baltimore, Maryland, against fire, on "his stock of fancy goods, toys, and other articles in his line of business, contained in his store occupied by him as a general jobber and importer." The policy contained a condition against storing or keeping hazardous, extra hazardous, or specially hazardous articles in the second class of hazards annexed to the policy, and that during the time of such storing or keeping the policy should be of no effect. "Fire-crackers in packages" were classed as hazardous No. 2 in the second class, and fireworks were classed as specially hazardous. There was a written permission "to keep fire-crackers on sale," but no express permission to keep fireworks. The plaintiff kept fireworks and a fire originated from them. The plaintiff sued to recover for the loss in a Baltimore court, the cause was removed to the United States court, and on the trial the court held that the policy prohibited keeping fireworks, and rejected proof to show that they constituted an article in the line of business of a "German jobber and importer," and gave judgment for defendant. This was affirmed by the United States Supreme Court. Before that action the plaintiff had sued the Lafayette Fire Insurance Company in the New

York Supreme Court on a similar policy on the same stock and had recovered, and on appeal the evidence rejected in the United States court was held competent, and the appellate court refused to be bound by the rule laid down in the United States Supreme Court. Plaintiff then brought this action to reform the policy by inserting permission to keep fireworks, on the ground that it was omitted by mistake, and to recover on the policy so reformed. Held, that the judgment of the United States Supreme Court is a bar to this action.

attendance and necessary to enable him to prescribe, a physician, who had ceased to attend a certain patient, but continued to know and see him, may testify as to his state of health when he ceased to attend him, and afterward, and whether, in his opinion, excluding knowledge and information obtained while treating him, and judging from his appearance, he was and continued in good health. see, contra, Grattan v. Metropolitan Life Ins. Co., 21 Alb. L. J. 288.

But

The volume contains the proceedings of the court upon the death of Chief Judge Church.

and a special election shall be held to fill the vacancy. An alderman was elected representative to Congress, and accepted the office. Held, that his office as alderman immediately became vacant; no judicial proceeding was necessary to determine his title; and it was the duty of the defendant to order a special election to fill the vacancy.

McDonald v. Mallory, p. 546. — Under a statute of New York, giving a right of action for wrongfully or negligently causing the death of any person, an action may be maintained for negligently causing the death of a citizen of New York on the high seas, on a vessel hailing from and registered in a New York port, and employed by the owners at the time in their own business.

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Dickinson v. Edwards, 573. p. Where a resident of this State makes a note here, dated, payable, and intended to be discounted here, and specifying no rate of interest, and the note is first negotiated in another State, at a rate of interest lawful there but unlawful here, it is invalid for usury.

The following are of important local application: Underwood v. Sutcliffe, p. 58. — A receiver in supplementary proceedings cannot maintain an action to have the judgment under which he was appointed declared a lien upon lands conveyed by the judgment debtor in fraud of his creditors.

Brown v. Clark, p. 369. The statutory revocation of an unmarried woman's will by her subsequent marriage is not abrogated by the married women's enabling acts.

First National Bank v. Tamajo, p. 476. — An oral agreement between parties to an action on trial before a referee, entered by the stenographer in his minutes, but not signed, and fixing no rate of compensation, but leaving it to the referee to fix the rate, is not an agreement in writing within section 313 of the old Code of Procedure.

Matter of Garvey, p. 523. —A sidewalk is within the purview of a statute providing that when a street has once been paved and the expense assessed to the adjoining owners, it shall not be thereafter paved at their expense, unless a majority of such owners petition for it.

Edington v. Etna Life Ins. Co., p. 564. — Under a statute prohibiting a physician from disclosing any information acquired in the course of professional

DRINKS, DRINKERS AND DRINKING.

more. Drinking is the order of the day. Our bodies require to be constantly moistened internally, else with the thermometer among the nineties, quickly would the human form divine become little heaps of dust and ashes. If we cannot drink just now let us think about it. Longfellow says, "He who drinks beer, thinks beer; and he who drinks wine, thinks wine." Let us for a few minutes foudly imagine the converse of this to be true, and while we think of beer, cider, wine and ale, let us drink in fancy.

In dealing with this subject let us take the division

suggested by Lindley Murray's definition of a noun, and speak of "person, place and thing."

Then, firstly, as to the " person.' A "common drunkard" is not a regular tippler, but one who is frequently drunk. Proof that one was drunk six times on six different days in three months, when there was no evidence of his state on the other days, does not entitle him to the presumption that he was sober on the other days. Com. v. McNamee, 112 Mass. 285. The rule of law is that things are presumed to continue in statu quo.

An habitual drunkard " is one who has the habit of indulging in intoxicating drink so firmly fixed that he becomes drunk whenever the temptation is presented by his being near where liquor is sold. Magahay v. Magahay, 35 Mich. 210.

The phrase "addicted to the excessive use of intoxicating liquors' means not the occasional excessive use, but the habitual excessive use. Moury v. Home Ins. Co., 1 Big. Life and Acc. Ins. Co. Cas. 698.

A court being called upon to define in an insurance case, what was meant by saying that "a man had always been sober and temperate," very wisely concluded that such a thing could not be said of one who although usually sober and temperate in his habits yet occasionally indulges in drunken debauches which sometimes end in delirium tremens. Mutual Benefit Life Ins. Co. v. Hotterhoff, 2 Cin. Sup. Ct.

To say that a man is "intemperate" does not necessarily imply that he is in the habit of getting drunk. Mullinex v. People, 76 Ill. 211. We fancy, however, the courts would not hold the converse of this.

A "saloon-keeper" is one who retails segars, liquors, et hoc genus omne. Cahill v. Campbell, 105 Mass. 60. In England, one who on Sunday walked to a spa two and a half miles away from his home for the purpose of drinking the mineral water for the benefit of his health, and then took some ale at an hotel (to keep the water down, we suppose), was held by the Court of Common Pleas to be a "traveller." Pepler v. Richardson, L. R., 4 C. P. 168.

England is a small country; one cannot travel far in any direction there without getting his feet damp, like Kanute and his friends. We presume this is why what would here be called "taking a stroll" is there dignified by the name of travelling."

In considering the question of selling liquor to a "minor," the court held that the fact that a youth wore a beard and said that he was 21 was no proof that he was an adult. Gelty v. State, 41 Ind. 162.

The Bench doubtless believed that although every American boy may become President, still every one is not a George Washington; but that, as Mark Twain "Some Americans will lie." As to beards, nature occasionally "bursts out with a chin-tuft" before her turn, or where she should not.

says,

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Now as to place." Judges do not exactly knowat least when on the Bench-what a "saloon" is. They say that it does not necessarily import a place to sell liquors; that it may mean a place for the sale of general refreshments, Kelson v. Mayor of Ann Arbor, 26 Mich. 325; or that it may mean a room for the reception of company, or for an exhibition of works of art, etc. State v. Mansker, 36 Tex. 364. This latter idea shows how high-toned Texan judges are, and that they have travelled in foreign parts. Neither an inclosed park of four acres in extent, nor an uninclosed and uncovered platform, erected for the votaries of the Terpsichorean art and where lager beer is sold, can rightly be considered a "saloon," or a "house," or "building," within the meaning of the Connecticut statute forbidding Sunday selling of intoxicating liquors, etc. State v. Barr, 39 Conn. 41.

We opine that the Texan court would have held both this park and platform a "saloon," as there would certainly be "room for the reception of company," and if the dancing was good and the dresses of any Worth these would be an exhibition of works of art.

A "cellar" may be referred to as "the above-mentioned house." Com. v. Intoxicating Liquors, 105 Mass. 181. In England it was held that a covenant not to use a house as a "beer house" was not broken by the sale under a license of beer by retail to be consumed off the premises. L. & N. W. Railway v. Garnett, L. R., 9 Ex. 26. One Schofield had a license to sell beer "not to be drunk on the premises," the bartender handed a mug of beer through an open window in Schofield's house to a thirsty soul, who paid for it and immediately drank it standing on the Queen's highway, but as close as possible to the window; the Court of Queen's Bench considered that this was not a case of selling beer "to be consumed on the premises." Deal v. Schofield, L. R., 3 Q. B. 8.

As to the "thing" itself. The phrase "spirituous liquors" does not include "fermented liquors." State v. Adams, 51 N. H. 568.*

Cider is not a "vinous liquor." Feldman v. Morrison, 1 Ill. App. 469. This seems reasonable enough in view of the decision that "vinous liquors" mean liquors made from the juice of the grape. Adler v. State, 55 Ala. 16.

A "dram" in common parlance, in Texas, means something that has alcohol in it-something that can intoxicate; at least so say the judges. Lacy v. State, 32 Tex. 227.

Some years ago in Indiana they were very virtuous, and the court decided that the mere opinion of a witness that common "brewer's beer" was intoxicating was not sufficient to prove that it was so, unless the testimony of the witness was founded on a personal knowledge of its effects, or of its ingredients or mode of manufacture; and the court could not take judicial notice that it was intoxicating. Glaso v. State, 43 Ind. 483.

But alas for the good old days and the childlike innocency of judges and jurymen! Now both courts and juries in that State will take notice of the fact that "whisky" is an intoxicating drink without any proof. Eagen v. State, 53 Ind. 162.

But ale and strong beer are "strong and spirituous liqNevin v. Ladue, 3 Den. 437, one of the most entertaining cases in the books.-ED. Alb. L. J.

uors.

In Massachusetts a jury was held warranted in finding "ale" to be intoxicating, merely on the testimony of a witness who saw and smelled, but did not taste it. Haines v. Hanrahan, 105 Mass. 480. Perhaps these twelve men, good and true, had had a view themselves.

In Maine one may be indicted and convicted for selling for tippling purposes "cider and wine," although made from fruit grown in the State, if the jury find that they are intoxicating. State v. Page, 66 Me. 418.

How much and how long would it take the jury to find this out? Would they be allowed to take specimens with them into their withdrawing-room, as they do documents, to examine? Or would the judge look upon cider and native wine as Mr. Justice Creswell did upon water? A counsel once objected to a jury having water while considering their verdict. "Why not, Mr. why not?" queried the judge, "water is neither meat' nor 'fire,' and no sane man can say it is 'drink;' let the jury have as much as they want." *

The "Sabbath night" includes as well the time between midnight on Saturday and daylight on Sunday, as the time between dark on Sunday and midnight. Kroer v. People, 78 Ill. 294.

In England "habitual drunkenness" is not cruelty in the eye of the law (N. B.-'Tis strange that justice should be blind and law a Polyphemus), so to entitle a wife to divorce. L. R., 1 P. & M. 46.

As to the mode of selling, Richards, C. J., thought that selling a "bottle of brandy" for $1.25 was selling by retail (Reg. v. Durham, 35 U. C. R. 508); and in another case Haggerty, C. J., said that he would assume that a sale of a "bottle of gin" at sixty cents was a sale by retail. Reg. v. Strachan, 20 C. P. 184. While in Illinois the court held that proof that intoxicating liquors were retailed "by the drink" warranted a finding that the sale was in "no larger quantity than a quart" (as restricted in the Ill. Rev. Stat., 1845). Lappington v. Carter, 67 Ill. 482. See, also, United States v. Jackson, 1 Hugh, 531. The judges of this court clearly never heard of the Duke of Tenterbelly. Bishop Hall tells us that this famous nobleman, when returning thanks for his election, took up his large goblet of twelve quarts, exclaiming should he be false to their laws, "Let never this goodly formed goblet of wine go jovially through me," and then, says the historian, "he set it to his mouth, stole it off every drop, save a little remainder, which he was by custom to set upon his thumb's nail and lick it off as he did."

Now that we have finished we fear that the foregoing will not prove as satisfying as the descriptions of Hawthorne's old Inspector, and that not only is the reader and the writer, but also the thing written is "dry." R. V. ROGERS, JR.

ACTION BY INHABITANT OF CITY AGAINST CONTRACTOR WITH CITY FOR BREACH OF CONTRACT.

IOWA SUPREME COURT, JUNE 15, 1880.

DAVIS V. CLINTON WATER-WORKS COMPANY.

A water-works company made a contract with a city to furnish water to be used in such city for the extinguishment of fires, etc. Held, that an inhabitant of the city had no right of action against the water-works company for loss from a failure by it to fulfill the contract, whereby his property was destroyed by fire.

ACTION to recover the value of buildings destroye

by fire. Sufficient facts appear in the opinion. *The oath of the officer in charge of the jury, down this way, says water excepted."-[ED. Alb. L. J.

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