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judge submitted to the jury, remarking at the same Parol evidence is admissible to show what the cirtime that by the furnishing the labels with the liquors cumstances were attending the contract and to show the defendants acquired the right to use the copyright the receipt and acceptance in whole or in part of the to that extent, without which or some equivalent per- goods purchased. Tompkinson v. Spraight, 17 C. B. mission or license, they would have had no such law- 704; Kershaw v. Ogden, 3 Hurlst. & Colt. 721. ful authority.

Due acceptance and receipt of a substantial part of Pursuant to these suggestions the jury were directed the goods will be as operative as an acceptance and to ascertain whether the liquors were worth more to receipt of the whole, and the acceptance may either the defendants on account of the labels, and whether precede the reception of the article or may accompany the labels were included in the contract, and they were their reception. 2 Whart. Ev., $ 875. instructed that if they found affirmatively in respect Differences of opinion have existed upon some of to both of these inquiries then the receipt and accept- these matters, but all the authorities or nearly all conance of the labels as alleged took the case out of the cur that the question is for the jury, to be determined statute of frauds, because then there was a receipt and by the circumstances of the particular case. 2 Whart. acceptance by the defendants of a portion of the Ev. 875. things purchased.

Viewed in the light of these suggestions it is clear Appropriate instruction was also given to the jury that the question whether the evidence showed that in respect to the subsequent letter sent by the defend- the case was taken out of the statute of frauds by the ants to the plaintiffs, and the jury were told by the acceptance and receipt by the defendants of a part of presiding judge that if they found, under the instruc- what was purchased by them, in connection with the tions given, that the defendants received and accepted letter of the defendants, exhibited in the record, was a part of the things purchased, then the contract was fairly submitted to the jury, and that their finding in made valid as a New York contract, and that their the premises is final and conclusive. verdict should be in favor of the plaintiffs. Currie v. Attempt was also made by the plaintiffs to support Anderson, 2 Ell. & Ell. 598. That if the contract was the judgment upon the ground that the defendants not made valid by the acceptance and receipt of the were estopped to set up the statute of frauds as a delabels, nor by the letter exhibited in the record, then it fense, in view of the fact that they had received the was a Michigan contract, and their verdict should be liquors and sold the same for their own benefit, but it for the defendants. Meredith v. Meigh, 2 El. & Bl. ; Cas- is not necessary to examine that proposition in view tle v. Snowden, 6 Hurlst. & Norm. 835; Law Rep., 1 C. of the conclusion that the case is taken out of the P. 5.

operation of the statute by the other evidence and the Controlling authorities already referred to show that finding of the jury. Nor is it necessary to give any the question whether the goods or any part of the consideration to the proposition that the act of the same were received and accepted by the purchaser is State of Michigan to prevent the manufacture and one for the jury, to which list of citations many more sale of spirituous and intoxicating liquors as a beverage may be given of equal weight and directness. Just

is repealed, for the same reason, and also for the addiexception cannot be taken to the form in which the tional reason that the repealing clause saves "all acquestion was submitted to the jury, and the record tions pending and all causes of action which had acshows that the verdict was for the plaintiffs, and that crued at the time" the repealing act took effect. Sess. the jury found, in response to the fifth question, that Acts, 1875, p. 279. the label added to the value of the liquors, and that Having come to the conclusion that the case is taken they formed part or parcel of the price. Jackson y. out of the statute of frauds, it is not deemed necesLowe, 7 Moore, 2:27.

sary to give the other assignments of error a separate Where goods are purchased in several parcels, to be examination. Suffice it to say that the court is of the paid for at a future day, the whole, within the mean- opinion that there is no error in the record. ing of the statute of frauds, constitutes but one con

Judgment affirmed. tract, and the delivery of part to the purchaser is sufficient to take the case out of the operation of the LIABILITY OF LAND-OWNER FOR IMPROPER statute of frauds. Mills v. Hunt, 20 Wend. 431.

USE OF LAND. Apply the finding of the jury in this case to the conceded facts and it shows that the defendants were in

ENGLISH COURT OF APPEAL, MARCH 1, 1878. the situation of a purchaser who goes to a store and HURDMAN V. NORTH-EASTERN RAILWAY COMPANY, buys different articles at separate prices for each arti

38 L. T. Rep. (N. S.) 339. cle, under an agreement for a credit as in this case,

A man who places an artificial mound upon his property accepting a part, but leaving the bulk to be forwarded and thereby causes rain-water, percolating naturally, to by public conveyance. Frequent cases of the kind come on to the property of his neighbor, is liable to the

latter in respect of damage so caused. occur, and it is well-settled law that the delivery of a A statement of claim alleged that defendants, being owners part of the articles so purchased, without any objec

of property adjoining the plaintiff's, placed a quantity

of soil and rubbish upon and against their wall, and tion at the time as to the delivery, is sufficient to take thereby raised the surface of defendants' land above the case out of the statute of frauds as to the whole

the level upon which plaintiff's house was built ; that

the rain which fell upon the said soil, etc., percolated amount of the goods. Mills v. Hunt, 20 Wend. 431. through the said wall into the plaintiff's house, and The delivery in such a case, in order that it may

caused damage. In the alternative it was alleged that

the defendants negligently and improperly placed the have that effect, must be made in pursuance of the soil, etc., upon their land, and negligently and impropcontract, the question whether it was so made or not erly built the wall, so that the rain water percolated

through the wall and injured plaintiff's house. Ou debeing one for the jury, but if they find that question

murrer, it was held (affirming the decision below), that in the affirmative, then it follows that the case is taken

the statement of claim stated a good cause of action. out of the statute of frauds. Van Woert v. Railroad, 67 N. Y. 541.

judgment for the plaintiff on a demurrer.

, giving

Statement of claim: 1. At the time of and before mitting this statement to be true, liable to the plainthe commencement of the damage hereinafter men- tiff? and we are of opinion that they are. The heap tioned, the plaintiff was and he still is possessed of a or mound on the defendants' land must, in our opinhouse known as No. 16 Lodge terrace, Sunderland. | ion, be considered as an artificial work. Every occu2. The defendants then were and still are possessed of a pier of land is entitled to the reasonable enjoyment certain close of land adjoining the said house of the thereof. This is a natural right of property, and it is plaintiff. 3. The defendants placed and deposited in well established that an occupier of land may protect and upon the said close of the defendants, and upon himself by action against any one who allows any filth and against a wall of the defendants which adjoins or other noxious thing produced by him on his own and abuts against the house of the plaintiff, large land to interfere with this enjoyment. We are furquantities of soil, clay, limestone, and other refuse, ther of opinion that, subject to a qualification to close to and adjoining the said house of the plaintiff, be hereafter mentioned, if any one by an artificial and thereby raised the surface of the defendants' land erection on his own land causes water, even though above the level of the land upon which the plaintitf's arising from natural rainfall only, to pass into his house was built. 4. The rain which fell upon the said peighbor's land, and thus substantially to interfere soil, clay, limestone, and other refuse, so placed as with his enjoyment, he will be liable to an action at aforesaid, oozed and percolated through the said wall the suit of him who is so injured, and this view agrees of the defendants into the said house of the plaintiff, with the opinion expressed by the Master of the and the plaintiff's house thereby became wet, damp, Rolls in the late case of Broder v. Saillard, L. Rep., 2 unwholesome and unhealthy, and less commodious for Ch. Div. 700: “If there were no authority on the habitation. 5. By reason of the said acts of the de- question I should have felt no difficulty about it, befendants the walls of the said house of the plaintiff be- cause I take it that the law is this, that a man is enticame and were very much injured, and the paper and tled to the comfortable enjoyment of his dwellingplaster upon the said walls have been destroyed. 6. house. If his neighbor makes such a noise as to inIn the alternative the plaintiff alleged that the de- terfere with the ordinary use and enjoyment of his fendants so negligently and improperly placed and de- dwelling-house, so as to cause serious annoyance and posited the said soil, clay, limestone, and refuse, upon disturbance, the occupier of the dwelling-house is enuthe defendants' said land, that the rain water falling titled to be protected from it. It is no answer to say thereon oozed and percolated through and into the that the defendant is only making a reasonable use of plaintiff's house, whereby the plaintiff's house was his property, because there are many trades and many damaged as before mentioned.

occupations which are not only reasonable, but necesThe defendants put in a statement of defense, deal. sary to be followed, and which still cannot be allowed ing with the allegations in the amended statement of to be followed in the proximity of dwelling-houses, claim. They also demurred to the whole claim, on the so as to interfere with the comfort of their inhabitground "that the acts, matters and things alleged to ants. I suppose a blacksmith's trade is as necessary have been done by the defendants do not give rise to as most trades in this kingdom; or I might take inany right of action on the part of the plaintiff.” The stances of many noisy and offensive trades, some of plaintiff joined issue.

which are absolutely necessary, and some of which, On the argument of the demurrer Manisty, J., gave no doubt, may not only be reasonably followed, but judgment for the plaintiff and against the demurrer. to which it is absolutely and indispensably necesThe defendants appealed.

sary for the welfare of mankind that some houses and Herschell, Q. C., and Gainsford Bruce, for the de- some pieces of laud should be devoted; therefore I fendants, cited Wilson v. Wadden, 35 L. T. Rep. (N. S.) think that is not the test. If a stable is built, as this 639; L. Rep., 2 Sc. App.95; Fletcher v. Rylands, 19 L. stable is, not as stables usually are, at some distance T. Rep. (N. S.) 220; L. Rep., 3 H. L. 330; Baird v.

from the dwelling-houses, but next to the wall of the Williamson, 15 C. B. (N. S.) 376; Smith v. Kenrick, 7 C.

plaintiff's dwelling-house, in such a position that the B. 564; Crompton v. Lea, 31 L. T. Rep. (N. S.) 469; L. noise would actually prevent the neighbors sleeping, Rep., 19 Eq. 115; 44 L. J. 69, Ch.; Smith v. Fletcher, 31

and would frighten them out of their sleep, and would L. T. Rep. (N. S.) 190; L. Rep., 9 Ex. 64; Nicholls v. prevent their ordinary and comfortable enjoyment Marsland, 35 L. T. Rep. (N. S.) 725; L. Rep., 10 Ex. of their dwelling-house, all I can say is, that it is not 225; and 2 Ex. Div. 1.

a proper place to keep horses in, although the horses Waddy, Q. C., and J. Edge, for the plaintiff.

may be ordinarily quiet." I hare limited this stateCOTTON, L. J. In this case plaintiff has brought an ment of liability to liability for allowing things in action for injury alleged to have been caused to his themselves offensive to pass into a neighbor's prophouse, which abuts on a wall of the defendants, by erty, or for causing by artificial means things in themcertain acts done by the defendants on their own selves inoffeusive to pass into a neighbor's property to land. The question is raised on demurrer to the state- the prejudice of his enjoyment thereof, because there ment of claim, and the question, therefore, is whether are many things which when done on a man's own that alleges a good cause of action. For the purposes land (as building so as to interfere with the prospect, of our decision we must assume that the plaintiff has or so as to obstruct lights ancient) are not actionsustained substantial damage, and we must construe able eveu though they interfere with a neighbor's the statement as alleging that the surface of the de- enjoyment of his property. But it is urged that this fendants' land has been raised by earth and rubbish is at variauce with the decision that if, in consequence placed thereon, and that the consequence of this is

of a mine owner on the rise working out his minerals, that rain water falling on the defendants' land has water comes by natural gravitation into the mines of made its way through the defendants' wall into the the owner on the deep, the latter mine owner cannot house of the plaintiff, and has caused the injury com

maintain any action for the loss which he thereby susplained of. The question is, are the defendants, ad- tained. But excavating and raising the minerals is considered the natural use of mineral land, and these in actual possession of part of the tract, is deemed to decisions are referable to this principle, that the owner be in possession of the entire tract described in his of land holds his right to the enjoyment thereof, sub- deed, up to the division line, there being no actual adject to such annoyance as is the consequence of what verse possession against bim. Smith v. McKay (Com.). is called the natural user by his neighbor of his land, and that when an interference with this enjoyment

DAMAGES. by something in the nature of nuisance (as distin- In case of trespass: cutting of timber: innocent purguished from an interruption or disturbance of an chaser not liable for impaired value by cutting.–Timber easement or right of property in ancient lights, or the was cut from land of B. by trespassers, who by their support for the surface to which every owner of prop- labor converted it into cord wood and railroad ties, erty is entitled) is the cause of complaint, no action thus increasing its value three-fold. It was then sold can be maintained if this is the result of the natural to an innocent purchaser, who was sued by B. for the user by a neighbor of his land. That this is the prin- value of the wood and ties. Whatever might be the ciple of these cases appears from the case of Wilson v. rule of damages, as against the wrong-doers, as against Waddell, L. Rep., 2 App. 99, and from what is said by innocent purchasers B. cannot recover the value of the the Lord Chancellor in Rylands v. Fletcher, L. Rep., timber as enhanced by the labor of the wrong-doers, 3 H. L. 328. Moreover, the casos referred to have laid after it was severed from the realty, Lake Shore & down that a mine owner is exempt from liability for Mich. So. Railway Co. v. Hutchins (Com.). water which, in consequence of his works, flows by

FRAUD. gravitation into an adjoining mine, only if his works are carried on with skill and in the usual manner, and

Purchase of goods on credit by one without means : in the present case it is stated that the defendants

when fraudulent and when not 80.-A contract for the have conducted this operation negligently and im

purchase of goods on credit, made with intent on the properly. The decisions, therefore, as regards the

part of the purchaser not to pay for them, is fraudurights of adjoining mine owners do not enable the

lent; and if the purchaser has no reasonable expectadefendants to discharge themselves from liability

tion of being able to pay, it is equivalent to an intenIt was also argued that a land-owner, who, by opera

tion not to pay. But where the purchaser intends to tions on his own laud, drains the water percolating

pay and has reasonable expectations of being able to underground in the property of his neighbor, is uot

do so, the contract is not fraudulent, although the purliable to an action by the man whose land is thus de

chaser knows himself to be insolvent and does not prived of its natural moisture, and this, it was ar

disclose it to the vendor, who is ignorant of the fact. gued, was inconsistent with a judgment for the plain

Talcott v. Henderson (Court). tiff on a statement alleging as a cause of action an

PARTNERSHIP. alteration in the percolation of water. It is sufficient to say that no one can maintain an action unless there

1. Liability of retiring partner.-A retiring partner is some injury to something to which the law recog

remains liable for all the existing debts of the firm, to nizes his title, and the law does not recognize any title

the same extent as if he had not retired. An agreein a land-owner to water percolating through his prop

ment between him and the remaining partners, or erty underground, and in no definite channel. We

with the new firm that succeeds, that they will assume are of opinion that the maxim,“ Sic utere tuo ut

and pay all such debts, while valid as between the alienum non lædas," applies to and governs the pres

partners, has no effect upon the creditors of the old ent case, and that, as the plaintiff by his statement of

firm, unless they become parties thereto. Rawson v. claim alleges that the defendants have by artificial

Taylor (Com.). erections on their land caused water to flow into the

2. That firm has assets to pay debts does not relieve replaintiff's house in a manner in which it would not,

tiring partner.-R. held the promissory note of the but for such erections, have done, the defendants are

firm of T. G. & Co. After it was given, some memanswerable for the injury caused thereby to the plain

bers of the firm retired, leaving assets sufficient to tiff.

pay all debts, and taking the obligation of the succeeding new firm, to pay all debts and save the retiring

partners harmless. Held, that unless R., by some valid RECENT AMERICAN DECISIONS.

contract, express or implied, had made himself a party

to this new arrangement, or had so acted as to be SUPREME COURT OF OHIO. SUPREME COURT COM- estopped, his rights on the note against all the memMISSION OF OHIO.*

bers of the old firm remained unchanged; that while,

as between the partners themselves, the relation of ADVERSE POSSESSION.

principal and surety existed, yet, as to the payee of the Line fence permitted to be off from line: effect of.

note, all were principals and joint debtors, although Where, by the title deeds of adjoining proprietors of

notice of such obligation was brought home to him.

Ib. land, the dividing line is left open to be established by a survey or measurement, and is thereafter fixed and

3. When creditor may release security without impairmarked by mutual agreement between them, and they ing rights.-Where the payee of such note has received occupy to such established line for a period sufficient

from the new firm a chattel mortgage of the partnerto create title under the statute of limitations, such

ship property, sufficient, if applied, to satisfy the debt, proprietors will be held to the line so established, al

he may, with the assent of the retiring partners, release though it may not be the true line. Under such agree

the mortgage, and return the property or its avails to ment, one of the parties, holding under a decd, aud

the new firm, without impairing his rights against all

the joint obligors on the note, even though he had such * To appear in 30 and 31 Ohio St, Reports. From E. De- notice of the subsequent contract between the partwitt, Esq., State Reporter.

ners. Ib.

RAILROAD. 1. Fencing: where fence division one, company and land-owner under equal duty to keep.-Where a fence constructed by an individual land-owner serves as a partition fence between a railroad track and the inclosed fields of such individual owner, but not so divided that each owner is charged with maintaining in repair a distinct portion thereof, the railroad company and individual land-owner are, each, under equal obligations to keep and maintain the entire fence in repair until so divided. Dayton & Mich. R. R. Co. v. Miami County Infirmary (Com.).

2. When land-ouner guilty of contributory negligence. -If the land-owner, kuowing the partition fence to be out of repair, turns his stock into a field inclosed by such defective fence, and, by reason of its insufficiency, his stock goes upon the railroad track and is killed by a passing train, run without negligence, such land-owner is chargeable with contributory negligence, aud cannot recover for the loss. Ib.

sideration therefor may be recovered. Sup. Ct., Michigan. Sanford v. Huxford, 17 Nat. Bankr. Reg. 385.

DISCHARGE. Covenant of warranty barred by.-Defendant sold to plaintiff certain premises by warranty deed, and at the same time gave him a writing by which he agreed to pay off a certain mortage which was a lien upon the premises. Defendant was afterward adjudicated bankrupt and received his discharge. Subsequently the mortgage was foreclosed and the premises sold. In an action for breach of warranty, held, that plaintiff should have proved his claim in the bankruptcy proceedings under section 5068 as a contingent debt, and that not having done so, his claim is barred by the discharge. Sup. Ct., Iowa. Parker v. Bradford, 17 Nat. Bankr. Reg. 485.

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Privilege: anonymous letter : bona fide answer to inquiries. The defendant, manager of a bank, having been applied to for information respecting the plaintiff, who had had business transactions with the bank in which the applicant was interested, gave to the applicant an anonymous letter, which he had received a year previously, and which contained libelous charges against the plaintiff. Held, that the communication was privileged. Com. Pl. Div., Feb. 20, 1878. Robshaw v. Smith, 38 L. T. Rep. (N. S.) 423.

MORTGAGE. When mortgagor cannot create charge in his own favor.– A mortgagor having an equity of redemption, or an ultimate interest in a fund by the performance of some condition without which he cannot get at it, does not by that condition create a charge in his own favor as against his mortgagee. Ch. Div., Jan. 24, 1878. Saunders v. Dunman, 38 L. T. Rep. (N. S.) 416.

TRADE-MARK. Bottles indelibly marked with distinctive design: user by rival tradesman for sale of his own production: injunction.-When one trader sells an unpatented production of his own in bottles or casks indelibly marked with his known design, the court will restrain a rival trader from selling a similar production in the same bottles or casks, although the rival trader puts a label of his own thereon. Ch. Div., April 10, 1878. Rose v. Loftus, 38 L. T. Rep. (N. S.) 435.

FRAUDULENT SALE. Knowledge in vendee must be shown to set aside.-In an action to recover from a vendee goods sold on the eve of bankruptcy, the assignee must establish not only that the bankrupts intended to dispose of their property in fraud of the act, but that defendant knew such to be their intention and guiltily combined and colluded with them to carry it into effect. U. S. Dist. Ct., Califoruia. Dickinson v. Adams, 17 Nat. Bankr. Reg. 380.

NATIONAL BANK. 1. Trial of matters affecting, should be in Federal, not State courts.-Where a question arises involving the right of national banks to make loans of a particular character upon mortgage, the assignee should be permitted to litigate such question in the Federal courts, and should not be sent into the State courts to try it on the distribution of surplus moneys in a foreclosure suit, or in a suit brought by the party holding the alleged invalid mortgage. U. S. Dist. Ct., S. D. New York. In re Duryea, 17 Nat. Bankr. Reg. 495.

2. When injunction restraining foreclosure of mortgage will not be set aside contrary to interest of credilors.-The Bowery Saviugs Bank held a first mortgage on property of the bankrupt which was not contested by the assignee. It commenced foreclosure proceedings which were restrained by injunction of the bankrupt court. On motion to be allowed to proceed with the foreclosure to the entry of judgment, held, that there was no reason for allowing it to do so, as its rights would be fully secured on the distribution of the proceeds of the sale whenever the property should be sold under the direction of the court. The fact that a recovery of the amount of a mortgage in the bankrupt court would be burdened with greater expenses than if the mortgagee were allowed to go on and foreclose will not control the action of the court, where it is obviously for the interest of the creditors that the estate should be administered in the bankrupt court. Ib.

3. Good reason should be shown for sale by assignee at auction.-The assignee must, in the present state of the real estate market, show a good reason for an immediate sale before he will be allowed to sell the property at public auction. Ib.



CONTRACT. To procure adjudication against firm of one making it valid.-An agreement by a member of a firm to consent, and to procure the consent of his partners to an adjudication against the firm, is valid, and the con

Change in firm: construction of agreement: title to property.— The firm of J. & S. was dissolved by mutual consent, and the firm property divided, each partner agreeing to pay the debts contracted in respect of the

property received by him. S. sold an interest in the and willfully” omitting to do what is required of portion received by him to M., with whom he formed them. Ib.

EIGHT HOUR LAW. the new firm of S. & M., which incurred debts and became bankrupt. Before the adjudication, the prop- Federal statute does not apply to employee of contractor erty of the latter firm was attached by a creditor of with government: privity of contract.- By a contract the firm of J. & S. Held, that the property attached between 0. and the United States, O. agreed to furwas property of the new firm; that the assignee was nish the United States, from certain quarries, granite entitled to possession of it for the purpose of satisfying to be delivered at Washington, D. C., to be paid for at the creditors of that firm, and that only the balance specified prices, and to furnish the labor, tools and mawhich migbt be due to S. after payment of the firm terials necessary to cut, dress and box the granite at debts and adjustment of accounts between the part- the quarries in such manuer as should be directed, ners, would be subject to the attachment. U.S. Dist. the United States agreeing to pay the full cost of said Ct., California. Crane v. Morrison, 17 Nat. Bankr. labor, tools and materials, etc., and fifteen per cent Reg. 393.

addition. A time of delivery was specified, and 0. PETITION.

was to forfeit in case of default $100 per day for each Estimate of number of creditors for: those less than day thereafter until delivery. Appellee was employed $250 counted: amendment. - Where the petitioning by O. on the work done under this contract and was creditors who hold debts exceeding two hundred and paid at the rate of ten hours per day. Held, that fifty dollars do not represent one-third of all the prova- there was no privity between appellee and the United ble debts, every two hundred and fifty dollar creditor States, and he did not work for it and could not, on a sinks into a common unit in the mass of creditors, and claim that he should be paid at the rate of eight hours counts but one with the rest. Where the name of a per day, maintain an action for additional compeusacreditor is stated in the petition, asserting a claiin by tion from the United States. Judgment of Court of a proper averment, but omitting the amount, the claim Claims reversed. United States, appellant, v. Driscoll. may be amended by adding the amount, if done in Opinion by Swayne, J. good faith. U. S. Dist. Ct., W. D. Pennsylvania. In

MARITIME LAW. re Blair, 17 Nat. Baukr. Reg. 492.

1. Bottomry hond: may be given upon cargo.-The PREFERENCE.

master of a bark, loaded with sugar, and which had Creditor not active in proceedings may prove debt: to

become disabled in a foreign port, in order to procure what cases act applies.— After a recovery against a funds for necessary repairs, executed a bottomry bond preferred creditor by the assignee the creditor may upon the bark, cargo and freight. The cargo was inprove his debt, if he has not actively assisted in the sured by the D. Company. On the voyage home the fraud. The provision of section 12 of the statute of bark was wrecked, but a part of the cargo saved. The 1874 (Rev. Stats., & 5021) in relation to proof of debt by D. Company paid the insurance, and the owners of the preferred creditors, applies to cases begun prior to cargo assigned to the company all their interest in the December 1, 1873, as well as to those begun since that cargo. Iu an action by the company against the agent time. U. S. Dist. Ct., Massachusetts. In re Bluck; of the bond holder to recover the proceeds of the Ex parte Skilton, 17 Nat. Bankr. Reg. 399.

cargo which had been taken possession of and sold by him, held, that the master had power to hypothecate

the cargo, as well as the ship and freight, to enable UNITED STATES SUPREME COURT ABSTRACT, him to prosecute his voyage, and the agent was entiOCTOBER TERM, 1877.

tled to retain the proceeds of the cargo and apply them

toward the bond. Judgment of United States CirCRIMINAL LAW.

cuit Court, Massachusetts, affirmed. Delaware Mutual 1. Intent: what knowingly and willfully implies.-Do- Safety Insurance Co., plaintiff in error, .v. Gossler. ing or omitting to do a thing “knowingly and will

Opinion by Clifford, J. fully” implies not only a knowledge of the thing, but

2. Discharge of loan by utter loss of vessel: what cona determination with a bad intent to do it or omit do

stitutes utter loss.-The bottomry bond contained a ing it. Judgment of United States Circuit Court,

provision discharging the borrowers from liability in Massachusetts, reversed. Felton, plaintiff in error, v.

case of the “utter loss" of the vessel by the perils of United States. Opinion by Field, J.

the sea. The vessel was cast ashore, and after being 2. Presumption of knowledge from business: distilling surveyed and found incapable of being repaired, was spirits.-Parties engaged in distilling spirits are pre

broken up and the pieces sold. Held, not an utter sumed to be acquainted with the utensils and ma

loss" within the meaning of the provision. Ib. cbivery used in their business, and with their character and capacities. But the law does not attach cul

NATIONAL CURRENCY ACT. pability and impose punishment where there is no in- Construction of: liberal forfeitures not favored.--The tention to evade its provisions, and the usual means to National Currency Act should be liberally construed comply with them are adopted. Ib.

to effeot the ends for which it was passed, but a for3. What law requires.-All that the law requires of feiture under its provisions should not be declared them to avoid its penalties is to use in good faith the unless the facts upon which it rests are clearly estabordinary means — by the employment of skilled arti- lished. In case of a claim of forfeiture against a bank sans and competent inspectors – to secure utensils and for taking unlawful interest upon the discount of bills machinery which will accomplish the end desired. If, of exchange payable at another place, it should appear then, defects should exist, and the end sought be not affirmatively that the bank knowingly received or attained, or defects in the utensils or machinery not reserved an amount in excess of the statutory rate of then open to observation should subsequently be discov- interest and the current exchange for sight drafts. ered, the parties are not chargeable with “knowingly Accordingly, where it was not shown what the rate of

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