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adjoining ground. This rule however is not artificial, and of positive institution, but is founded on the presumption, in absence of proof, that the highway was originally granted by the adjoining proprietors over their land in equal proportion. This is not a presumptio juris et de jure, but a reasonable presumption, based on probability. Where it appears however that the highway was laid wholly over the land of one person the presumption is annulled, and to hold by inference against fact that the fee of one person should be extended beyond his laud, and of the other restrained to narrower limits, because he had been paid for a right of passage over a part of his soil, would be a most inequitable fiction, in opposition to the established maxim that in fictione juris semper existit æquitas." So in Dunham v. Williams, 37 N. Y. 251, 252, it was stated that a deed bounded on a highway prima facie carries the title of the grantee to the center of the road on the assumption that the grantor owns it; but where it appears that it was in fact owned by another, the terms of the deed are satisfied by a title extending to the roadside. And it was accordingly held that where land covered by the road bed belonged to the government, and not to the adjacent owners, as in the case of the ancient road from Flatbush to Brooklyn, a deed bounding land upon such a highway carried title only to the roadside. In Taylor v. Armstrong, 24 Ark. 102, 107, the converse of the proposition held in Dunham v. Williams was maintained, viz: that if a highway be laid out wholly upon a person's land, running along the margin of the track, and he afterward conveys the land, his grantee takes the fee in the whole of the soil of the highway. Healey v. Babbitt. July 5, 1884. Opinion by Mallesou, J.

CONVERSION-EVIDENCE-RECEIVING IN GOOD FAITH -WHEN AGENT LIABLE.-Ordinarily, when one person has the chattel of another it is his duty to deliver it to the owner or his agent on demand, and if he refuses to do so his refusal is evidence of a conversion. It is however only prima facie evidence, aud may be explained. Magee v. Scott, 9 Cush. 148; Robinson v. Burleigh, 5 N. H. 225; Dietus v. Fuss, 8 Md. 148; Green v. Dunn, 3 Camp. 215; Solomons v. Dawes, 1 Esp. 83. Thus it is no conversion for the bailee of a chattel, who has received it in good faith from some person other than the owner, to refuse to deliver it to the owner making demand for it, until he has had time to satisfy himself in regard to the ownership. Carroll v. Mix, 51 Barb. (S. C.) 212; Lee v. Bayes, 18 C. B. 599, 607; Sheridan v. New Quay Co., 4 C. B. (N. S.) | 618; Coles v. Wright, 4 Taunt. 198. In the case of a servant who has received the chattel from his master, it has been held that he ought not to give it up without first consulting his master in regard to it. Mires v. Solebay, 2 Mod. 242, 245; Alexander v. Southey, 5 B. & A. 247; Berry v. Vantries, 12 Serg. & R. 89. But if after having had an opportunity to confer with his master, he relies on his master's title, and absolutely refuses to comply with the demand, he will be liable for a conversion. Lee v. Robinson, 25 L. J. (C. P.) 249; 18 C. B. 599; 1 Ad. on Torts, 475; Greenway v. Fisher, 1 Car. & P. 190; Stephens v. Elwall, 4 M. & S. 259; Perkins v. Smith, 1 Wils. 328; Gage v. Whittier, 17 N. H. 312. The mere fact that he refuses for the benefit of his principal will not protect him. Kimball v. Billings, 55 Me. 147. Singer Manuf. Co. v. King. June 2, 1884. Opinion by Durfee, C. J.

KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1884.

NEGLIGENCE-PERMITTING DRY GRASS TO ACCUMULATE QUESTION FOR JURY.-While it may be conceded *Appearing in 31 Kansas Reports.

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that permitting dry grass and stubble to accumulate on its right of way is not negligence per se (Railroad Co. v. Butts, 7 Kans. 314), yet the accumulation may be to such an extent, at such a season of the year, and in such proximity to the track, that a jury would be justified in holding the company guilty of negligence. In the case of Kesee v. Railroad Co., 30 Iowa, 78, the court laid down this rule: "To allow the dry grass, weeds, and other combustible matter, the natural accumulations of the soil, to remain on the right of way, is not negligence per se; but there may be such peculiar or unusual circumstances in a given case as to amount to negligence in fact; and when such circumstances exist, they are proper to be submitted to a jury for the purpose of establishing the fact of negligence." We think it is generally true that when the evidence shows an accumulation of dry grass and stubble, it is a question of fact for the jury whether the accumulation is such and under such circumstances as to impute negligence. Here by the statement, not only was the natural growth of grass on the right of way standing in places in rank stools, but further, in a dry ditch was an accumulation of tumble-weeds and other like matter. This was in the fall of the year, at a very dry time; and whether the accumulation at such time and under such circumstances was sufficient to charge negligence upon the company is a question which the jury should have been permitted to pass upon. Kellogg v. Railroad Co., 26 Wis. 235; Flynn v. Railroad Co., 40 Cal. 14; Railroad Co. v. Shanefelt, 47 Ill. 497; Railroad Co. v. Nunn, 51 id. 78; Barron v. Eldridge, 100 Mass. 455; Webb v. Railroad Co., 49 N. Y. 420; Snyder v. Railroad Co., 11 W. Va. 14; 38 Am. Dec. 6, and cases cited. White v. Missouri Pac. R. Co. Opinion by Brewer, J.

LIMITATION-NOTE SCHEDULED IN ASSIGNMENTPARTIAL PAYMENT.-Where the maker of a note thereafter made an assignment for the benefit of creditors, and in such assignment scheduled this note and directed his assignee to convert the assigned property into money and pay his debts, and in pursuance thereof the assignee took possession and converted said property into money, and applied the same in part payment of the assignor's debts, this note among the number, held, that the payment, being one made in pursuance of express directions from the assignor for his benefit and out of the proceeds of his property, is such a payment as under section 24 of the Code avoids the bar of the statute of limitations; and this notwithstanding the proceedings under the assignment are controlled by the provisions of a general statute concerning assignments for the benefit of credi tors. Here, statutes of limitation are held to be statutes of repose. Taylor v. Miles, 5 Kans. 499; Elder v. Dyer, 26 id. 604. Partial payments made by one debtor will not suspend the running of the statute in favor of other debtors on the same obligation. Steel v. Souder, 20 Kans. 39. But here the party sought to be charged is the one for whom and out of whose property the payment was made. It was made in pursuance of an express direction. So upon the maxim qui facit per alium, facit per se, it would seem that this payment was within the very letter of said section 24. Letson v. Kenyon. Opinion by Brewer, J.

BANK-OFFICERS SELLING SAFE-WHEN BANK NOT BOUND BY.-Neither the president nor cashier of a bank organized under the laws of the State has the power, virtute officii, to sell the safe of the bank for a debt of the bank. This court in the case of National Bank v. Drake, 29 Kans. 325, said: "The directors constitute the governing body of the bank, the bank itself being an incorporeal entity, without power to see or know. The directory constitutes the visible representative, the thinking, knowing head of the

bauk." Morse on Banks and Banking, 107, thus states the rule. "The general control and government of all the affairs and transactions of the bank rest with the board of directors. For such purposes the board constitutes the corporation, and uniform usage imposes upon them the general superintendence and active management of the corporate concerns." The cashier is the executive of the financial department of the bank, and whatever is to be done, either to receive or pass away the funds of the bank for banking purposes, is done by him or under his direction; he therefore directs and represents the bank in the reception and emission of money for banking objects. United States v. Bank, 21 How. 356; Merchants' Bank v. State Bank, 10 Wall. 604; Com. Bank v. Norton, 1 Hill, 501. But neither the president nor the cashier can impose by his own action, on the bank, any liability not already imposed by law or usage; nor can they bind the bank, in the absence of authority from the directors, by any agreements or contracts outside of the range of their duties. Bank v. Dunn, 6 Pet. 51. The mere fact that they had conducted the business of the bank gave them no authority to make the sale. As these officers had no power to execute the bill of sale, and as it is not claimed that the directors ever ratified their act, the plaintiff below was not the owner of the safe at the commencement of her action. Bank v. Dunn, 6 Pet., supra; Bank of Metropolis v. Jones, 8 Pet. 16, 17; Adriance v. Roome, 52 Barb. 399; Walworth County Bank v. Farmers' Loan & Trust Co., 14 Wis. 325; Chicago & N. W. Railroad v. James, 22 id. 194; Blood v. Marcuse, 38 Cal. 590; Angell & Ames on Corp., § 298, pp. 322, 323. Asher v. Sutton. Opinion by Horton, C. J.

IOWA SUPREME COURT ABSTRACT.

STATUTE OF LIMITATIONS-ABSENCE FROM STATENON-RESIDENT.- Where a person leaves a State in which he resides, under the employment of the general government, with the intention of returning as soon as his employment terminates, but retains no property or business interests in the State, he is a nonresident within the meaning of the statute, although his wife remains in the State for a portion of the time; and the statute of limitations will not run in his favor against an action on a promissory note during his absence. This view is sustained by the previous holdings of this court. Penley v. Waterhouse, 1 Iowa, 498; Savage v. Scott, 45 id. 133. And to the same effect is Hackett v. Kendall, 23 Vt. 275. And in Sleeper v. Paige, 15 Gray, 349, and Ware v. Gowen, 111 Mass. 526, it is held by the Supreme Court of Massachusetts, in facts similar to those in the present case, that the parties were non-residents of the State within the meaning of the statute of limitations of that State, which is identical in its provisions with our statute. Hedges v. Jones. Opinion by Reed, J.

[Decided June 4, 1884.]

MUNICIPAL CORPORATION-ADMITTING DEBT, LIABLE UNDER CONTRACT.—When a city admits the existence of a debt, and issues certificates of assessment to the end that the plaintiff could be paid out of a particular fund created by the city, it must be assumed it guarantees, or by implication contracts, that such fund exists, or that it has taken and has the power to take the steps necessary to create such fund. Now wher it turns out that there was no such fund, and that the power to create it did not exist, it seems to us that the city should not, and cannot, escape all liability under the contract, and it has been so held. Kearney v. City of Covington, 1 Metc. (Ky.) 339; Sleeper v. Bullen, 6 Kans. 300; Maher v. City of Chicago, 38 Ill. 266.

See also 1 Dill. Mun. Corp. (3d ed.), §§ 480, 481, 482, and authorities cited in notes. There is a class of cases which hold in substance that when the powers of a municipal corporation are defined in the charter or a statute, persons contracting with the corporation are bound to know the extent and character of such powers, and therefore deal with the corporate authorities at their peril. Craycraft v. Selvage, 10 Bush (Ky.), 696; Zottman v. San Francisco, 20 Cal. 96; Swift v. Williamsburg, 24 Barb. 427. Conceding the correctness of these cases, we do not think they have any application to the case at bar; for if the plaintiff had looked at the statute he would have ascertained that the city had the power to grade its streets and pay therefor out of the general fund, and that it did not have the power to make an assessment on the abutting owner, and we think he had the right to conclude that the city would and was bound, as no assessment could be lawfully made to pay him out of the general fund. Becroft v. City of Council Bluffs. Opinion by Seevers, J.

[Decided June 6, 1884.]

NEGLIGENCE-RAILROAD—TRAVELLING ON ANOTHER'S PASS-FRAUD-COMPANY NOT LIABLE.-A person who travels on a railroad train on the ticket of another contrary to the rule of the company printed on the ticket, and without the consent of the company's agents, perpetrates a fraud, and in case of his receiving injuries during the trip the law of common carriers cannot be invoked to make the company responsible. The doctrine was very clearly expressed in T., W. & W. R. Co. v. Beggs, 85 Ill. 80. In that case the court said: "Was defendant a passenger on that train in the true sense of that term? He was travelling on a free pass issued to one James Short, and not transferable, and passed himself as the person named in the pass. By his fraud he was riding on the car. Under such circumstances the company could only be held liable for gross negligence which would amount to willful injury.” In Thomp. Carr. Pass., p. 43, § 3, the author goes even further. After stating the rule that the relation of carrier and passenger does not exist where one fraudulently obtains a free ride, it says: "This doctrine extends further, and includes the case of one who knowingly induces the conductor of a train to violate the regulations of the company, and disregard his obligations of fidelity to his employer.' In U. P. Ry. Co. v. Nichols, 8 Kans. 505, the defendant in error imposed himself upon the company as an express messenger, and obtained the consent of the conductor to carry him without fare. It was held that he did not become entitled to the rights of a passenger. The court, after quoting Shearman & Redfield's definition of a passenger, which is in these words: "A passenger is one who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter, other than in the service of the carrier as such," - proceeds to say: "The consent obtained from the conductor was the consent that an express messenger might ride without paying his fare. Such consent did not apply to the plaintiff" (the defendant in error). See also the following cases: T., W. & W. R. Co. v. Brooks, 81 Ill. 292; M. & C. R. Co. v. Chastine, 54 Miss. 503; Creed v. Pa. R. Co., 86 Penn. St. 139; Relf v. Rapp, 3 Watts & S. 21; Hayes v. Wells, Fargo & Co., 23 Cal. 185. The plaintiff cites and relies upon Bissell v. Railroad Cos., 22 N. Y. 308; Washburn v. Nashville, etc., R. Co., 3 Head, 638; Jacobus v. St. Paul, etc., R. Co., 20 Minn. 125 (Gil. 110); Pa. R. Co. v. Books, 57 Penn. St. 346; Wilton v. Middlesex R. Co., 107 Mass. 108; Flint, etc., R. Co. v. Weir, 37 Mich. 111; Dunn v. Grand Trunk Ry. Co., 58 Me. 192; Edgerton v. N. Y., etc., R. Co., 39 N. Y. 227; Gregory v. Burlington, etc., R. Co., 10 Neb. 250; S. C., 4 N. W. Rep. 1025; Great Northern R.

Co. v. Harrison, 10 Exch. 376. But none of these cases hold that the extraordinary care described in the instruction given is due to a person'not a passenger, and none of them hold that the relation of passenger can be insisted upon where the company shows affirmativelp as a defense that the company's consent was obtained by fraud. May v. Chicago, R. I. & Pac. R. Co. Opinion by Adams, J.

[Decided June 7, 1884.]

MICHIGAN SUPREME COURT ABSTRACT.

AGENCY TURES.-The general agent and and manager of a mining company is presumably empowered to sell its personal property. The sale on execution of personal property belonging to a third person amounts to a conversion, whether the officer making sale removes it or not. Ordinary movable office furniture and ordinary vehicles are not fixtures, and the question whether personal property in use about a mine can be so regarded, is a question of the intent with which it was attached to the freehold. Personal property that can be removed from the land cannot be part of the realty, when the owner does not also own the land. This was decided in Adams v. Lee, 31 Mich. 440; and Robertson v. Corsett, 39 id. 777. Scudder v. Anderson. Opinion by Campbell, J. [Decided June 11, 1884.]

IMPLIED POWERS -CONVERSION FIX

MANDAMUS-COUNTY TREASURER-INSPECTION OF LIQUOR BOND.-The papers presented in this case show a most extraordinary proceeding on the part of the county treasurer. A member of the board of review of Ann Arbor, who had been for the two previous years a supervisor in Washtenaw county, on application to that officer for permission to inspect a liquor bond, is denied the privilege on the ground that the treasurer regards it as unnecessary for the purpose stated by the petitioner. It is not pretended that such purpose is an unlawful one, or that the request was not respectfully made. The county treasurer holds a public office, and the statute requires the liquor bonds to be filed therein and to be kept by the treasurer. They thereby become public records, and as such may be examined and copies taken thereof by any citizen. There are many and very good reasons why the citizens may and should have this right: (1) As a citizen to hold the board, whose duty it is to approve the bond, to public accountability for accepting insufficient bonds; (2) to prosecute sureties criminally when they have falsely sworn to responsibility; (3) to see if there is sufficient security for any citizen, widow, child, or parent who may have a right of action for violations of the license law (which frequently occurs) against the liquor-seller and his sureties, and to see that they are not forged; (4) as assessor or other tax officer, who may desire to compel parties who may have property, according to their oaths given on justification, to pay their share of the taxes; and for many other purposes which readily occur to any one who has given any attention to the subject. It is no answer to say that the time has gone by for performing the official act by the person desiring the information sought, or that the purpose intended, in the judgment of the respondent, is not a commendable or proper one, so long as it is not criminal, when the inspection is desired. The law does not vest in the treasurer any such discretionary power to deprive the citizen of a substantial right given by the statute, one in which he may have large pecuniary interests, and of which he may be deprived if the action of the treasurer in this case can be sustained, and the most beneficial object of the act under which the bond is given defeated. City boards and

other officers, whose duty it is to approve of these bonds, are held to a great extent to responsibility in taking proper security in this class of cases by a just public opinion, from which they cannot be permitted to shield themselves in the course pursued by this respondent. The real purpose of the statute is that perfectly safe bonds shall be taken for the protection of all parties, and this purpose must not be defeated by proceedings of the sort complained of in this case. We are all of the opinion that the action taken by the treasurer in this case can find no support in law or right, and should not be sustained. If authority were needed upon the construction of the statute as we have given it, it will be found in Ferry v. Williams, 41 N. J. Law, 332; 19 Am. Law Reg. (N. S.) 154, which we fully approve. The request of the petitioner was a reasonable one, and it was the duty of the officer to comply with it when made. The writ of mandamus must be granted as prayed, with costs against the respondent. Brown v. Washtenaw County Treasurer. Opinion by Sherwood, J.

[Decided June 11, 1884.]

NEGLIGENCE-MUST BE PROVED-INFERRED FROM CIRCUMSTANCES - SPARK-ARRESTER CONTRIBUTORY

NEGLIGENCE.-The party counting upon negligence must adduce affirmative proof of it. Lake Shore, etc., R.Co.v.Miller,25 Mich. 274; Macomber v.Nichols,34 id. 212; Grand Rapids, etc., R. Co. v. Judson, id. 507; Brown v. Street R. Co., 49 id. 153. But negligence, like any other fact, may be inferred from the circumstances, and the case may be such, that though there be no positive proof that defendant has been guilty of any neglect of duty, the inference of negligence would be irresistible. Such a case is seen in Higgins v. Dewey, 107 Mass. 494, a case of fire set for the burning of brush on agricultural lands. See also Kearney v. London, etc., R. Co., L. R., 6 Q. B. 759; Field v. N. Y. Cent. R. Co., 32 N. Y. 339. Now what are the facts in this case? The defendants constructed, in connection with their mill, a burner, whereby they might be enabled to consume and get rid of the waste and refuse stuff of their business. The burner, as we understand it, was not a necessity to their business, but it was constructed as a means of saving something in the cost of removing sawdust, slabs, etc. It was what may be described as a tall and very large chimney, and the draught through it, when a fire was burning, was very strong and powerful. Only a very perfect spark-arrester could prevent a stream of large cinders pouring out of it when the draft was open. The evidence was strong that fires were frequently started by cinders which came from it; that such an occurrence might reasonably be looked for whenever a strong wind was blowing. The sparks, so called, which ignited the plaintiff's building, could not have been mere sparks. A spark could scarcely have retained sufficient vitality and substance, after being carried that distance, to communicate fire to a building. It was in proof that the spark-catcher was bent in at the top, as a consequence of the heat; and though there was no direct evidence that any wires were broken, or the openings in it increased, the very manner in which the sparks poured out of it, and started fires at a distance, would suggest, if it did not fully justify, an inference that in some way it was defective, and such an inference might have been fully warranted if the plaintiff had shown, as she offered to do, and as she should have been permitted to do, that after a change was made in the spark-catcher immediately following the fire, the dangerous emissions of sparks through it ceased altogether. But the evidence the plaintiff gave was precisely such as in Lehigh Valley R. Co. v. McKeen, 90 Penn. St. 122, was held to require the court to submit the case to the jury. But it is said on behalf of

the defendants that the plaintiff was guilty of contributory negligence, and for that reason, if for no other, the verdict should be permitted to stand. The contributory negligence suggested is that the plaintiff erected her buildings within a hundred yards or so of defendants' mill, after this dangerous burner had been put up, and did not cover them with metallic roofs. It is not suggested that the buildings were exceptionally combustible, or that the roofs were of different material to that made use of by the plaintiff's neighbors; but it is said, that in view of the danger to which she was exposed from the burner, she should have incurred the extra expense of a metallic roof for protection, and was negligent in not doing so. This strikes us as a most extraordinary proposition. The defendants, not because it is a necessity to their business, but as a means of saving expense in getting rid of the refuse, erect this dangerous burner, and having done so, it is argued that by this contrivance of money-saving to themselves they have imposed a burden upon all the property in the neighborhood, and subjected all lot-owners to the necessity of incurring extra expense in any future erections which they may make in the vicinity. To state the argument boldly, it seems to be that by erecting a neighborhood nuisance to save cost to themselves, the defendants have imposed upon everybody in the neighborhood an obligation of expense for protection against it, so that no one can be permitted to complain of the nuisance who declines to incur this expense. We are aware of no principle of law which will justify this species of ecouomy at the expense of others. In Beauchamp v. Saginaw Mining Co., 50 Mich. 163, it was suggested that the defendant could not afford to take certain precautions in the management of its business, which seemed necessary for the protection of the public; but the court was of opinion, that if the business at the particular place could not be profitably carried on, and the rights of third parties at the same time respected

and protected, then it must either be carried on at a loss or abandoned. And this, we still think, is perfectly reasonable. Alpern v. Churchill. Opinion by Cooley, C. J.

[Decided June 4, 1880.]

VERMONT SUPREME COURT ABSTRACT.*

QUO WARRANTO-DISCRETION OF COURT— SCHOOL COMMITTEE. It is now settled law that the granting or withholding leave to file an information, at the instance of a private relator, to test the right to an office or franchise, rests in the sound discretion of the court to which the application is made, even though there be a substantial defect in the title by which the office or frauchise is held. State v. Fisher, 28 Vt. 714; State v. Smith, 48 id. 266; High Ex. Rem., §§ 605, 628, and the cases there cited. And this on the ground that he was eligible to the office and competent; that he had hired teachers in good faith, and made provision for a school; that it was an annual office without emoluments; and that the best interests of the district required that he should be allowed to continue through his term. The grounds upon which courts have exercised discretion by denying the petition have been the same as those established by the evidence in this case. In the exercise of the discretion reposed in the court, and independent of the question of the alleged defect in Mead's title, which is sharply controverted by the defendant, and by no means clearly established by the relator, we think every consideration demands a dismissal of the complaint. State v. Mead. Opinion by Veazey, J.

*To appear in 56 Vermont Reports.

CHATTEL MORTGAGE-NOT GIVEN TO SECURE DEBTINVALID.-To constitute a valid chattel mortgage, if given to secure a debt, it must be one due from the mortgagor to the mortgagee; if a liability, it must be a liability incurred by the mortgagee for the mortgagor; or any other agreement, it must be one between the parties to the mortgage; the oath must conform to the purpose of the mortgage, verifying the truth, validity, and justice of the debt; and the debt or obligation be specifically described and with substantial truth; thus the affidavit in the mortgage alleging that the debt secured was "due and owing," etc., was wholly false. But the plaintiff insisted that he had an equitable right to the property, claiming that prior to the execution of the mortgage he had agreed to loan the mortgagor $1,500, to be secured on the printing press in question; that at the time the mortgage was given he had advanced about $200, and that it was understood this was secured by the mortgage; that he, the plaintiff, entered into an arrangement with one T. to pay such portion of the $1,500, as he himself should be unable to furnish, and so the note and mortgage were executed to T., and placed in the hands of a third party, to become the property of T. when the money was paid; that T. never paid any thing; that the mortgagor fraudulently misrepresented the value of the press; that in a short time it was attached and sold by the defendant, an officer, on an execution in favor of an attaching creditor against the mortgagor; that the plaintiff never advanced any thing more on the note; that the holder of the note and mortgage, by direction of the mortgagor, delivered them up to the plaintiff, though there was no transfer made by T. Held, that the chattel mortgage was invalid, and that an action of trover would not lie. Tarbell v. Jones. Opinion by Veazey, J.

SURETY-CONTRIBUTION-STATUTE OF LIMITATIONS. -The plaintiff and defendant were co-sureties on a

promissory note. All the parties to the note, the payee, the principal, aud sureties were residents of this State. After the statute of limitations became a bar here, the plaintiff voluntarily and without the knowledge of the defendant, but with no fraudulent intent, went to New Hampshire, where there was no defense to the note, and there was sued by the payee. judgment rendered against him, and he was compelled to pay. Held in an action for contribution, that the payment was compulsory, and not voluntary, and that the defendant was liable. The legal right of sureties as against each other is not governed by the lex loci contractus; neither is there any implied obligation that they shall reside or remain in any particular locality. The right to contribution among co-sureties is not founded on the contract of suretyship, but is based on an equity arising from the relation of the co-sureties. The right of action for contribution accrues when one has paid more than his proportion of their liability. It is an equity which arises when the relation of co-sureties is entered into, and upon which a cause of action accrues, when one has paid more than his proportion of the debt for which they were bound. Burge Sur384; Theo. Pr. & S. § 158; Camp v. Bostwick, 20 Ohio St. 337; Peaslee v. Breed, 10 N. H. 489; Boardman v. Paige, 11 id. 431; Sibley v. McAllaster, 8 id. 389. Aldrich v. Aldrich. Opinion by Royce, C. J.

NEGLIGENCE-INJURY ON HIGHWAY - PROXIMATE CAUSE-KNOWLEDGE OF DANGER.-Knowledge of existing danger is not per se negligence; but it is a fact to be weighed by the triers as bearing upon the question of negligence. Clarke v. Holmes, 7 H. & N. 937; Senior v. Ward, 1 E. & E. 385; Nave v. Flack, 90 Ind. 205; S. C., 46 Am. Rep. 205. Thus in an action to recover for injuries received on the highway, it appeared that from a certain point there were two highways of

about equal length leading to the place where the plaintiff wished to go; that one was very near the railroad, and the other more remote; that the plaintiff being acquainted with both roads, and knowing that he was liable to meet a train of cars about that time, took the one nearest to the railroad, but he did not know of its insufficiency; that his horse became frightened at an approaching train, and that he was injured by reason of want of repair of the highway. Held, that the plaintiff had a right to presume that the highway was sufficient, and that his knowledge did not reach the proximate cause of the injury, and so did not contribute to it. Templeton v. Montpelier. Opinion by Royce, C. J.

RECENT ENGLISH DECISIONS.

PARTNERSHIP-JOINT LIABILITY—JUDGMENT-MERGER-PROOF AGAINST ESTATE OF ONE PARTNER.-The firm of D. having been employed by the executors of B. to sell certain crops, etc., paid over a part of the proceeds, but were adjudicated bankrupt on the petition of the executors of B. in 1880 upon a judgment for the balance. The executors of B. proved as creditors of the joint estate. Subsequently H. S. D., one of the partners in the bankrupt firm, became entitled to a legacy and to other moneys, and the executors of B. attempted to withdraw the proof against the joint estate and prove against the separate estate of H. S. D. The trustee rejected the proof on the ground that the creditors were bound by their election, and his decision was reversed by the County Court judge. On an appeal from his decision, held, that the ground upon which the trustee had rejected the proof was wrong, but that in order to entitle them to prove against the separate estate of H. S. D., the respondents must prove that they had a separate cause of action against him. Held, also, upon air argument that the separate cause of action was merged in the joint judgment, that it was not so merged. Q. B. Div., March 31, 1884. Matter of Davison. Opinion by Cave, J. (50 L. T. Rep. [N. S.] 635.)

WILL-CONSTRUCTION--GIFT OF RENTS--LIFE ESTATE. -A testator bequeathed leaseholds to a trustee upon trust to give yearly equal portions of the rents to the two brothers and three sisters of the testator; that was to say, each to receive one-fifth part of the net proceeds of rent, and he directed that on the decease of any or all of his brothers and sisters, "the same should go to their children." Held, that the brothers and sisters of the testator took life interests only. In Scawin v. Watson, 10 Beav. 200, affirmed by Lord Cottenham, C., 9th of July, 1847, the last case referred to upon this subject, there were words of absolute gift of the 1,000l.; but the master of the rolls considered the whole direction to amount to a gift of the 1,000l. for the benefit of the daughter, to pay her the interest for life, with remainder to her children; and upon appeal I concurred in this opinion, and affirmed his lordship's order. I have therefore to consider here whether upon the construction of this will this was intended to be an absolute gift of one-fifth share in these houses to each of the testator's brothers and sisters; or whether it is a gift over, in case they had children, then to those children; or whether under the terms of this will this is only a gift for life to each of the brothers and sisters, with a gift over to the others of them in case any of them had no children. I am of opinion that the latter is the right construction. I can see nothing whatever here in the shape of an absolute gift of these two houses. The houses are given, in the first stance, not to the legatees but to the executors, to hold on the trusts following. I think there is nothing ou the face of this will authorizing me to say that

there is any thing else than an absolute gift to the legatees in the first instance, followed by a modification of the mode of enjoyment. Under those circumstances I am of opinion that the brothers and sisters take under the gift in the will merely an estate for life. I do not intend to decide any thing as to the interests of the children, as they are not before me. The case has been argued on behalf of two members of the family, who at all events had it as their interest that I should give a contrary decision to the one I have given. All I decide is, that under the gift in the will the brothers and sisters take a life estate only. Ch. Div., April 3. Matter of Houghton. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 529.)

WILL-SPECIFIC LEGACY-ADEMPTION.-A testatrix by her will directed her trustees to stand possessed of 1,500l. now invested in the Bombay, Baroda, aud Central India Railway Company, upon trust, in case her brother, who had not been heard of for some years, should present himself to the trustees within a period of five years, to pay him the income during his life, and after the period of five years, or the death of her brother, whichever event should first happen, the testatrix bequeathed 500l., "being part of the said Bombay, etc., stock," to the treasurer of the Asylum for Destitute Sailors, in the neighborhood of the East India Docks. The testatrix was not possessed of any Bombay, etc., stock, at the time of her death, and her brother had never been heard of since the date of the will. Held, that the legacy to the asylum was specific, and the gift failed. Ch. Div., March 27, 1884. McClelan v. Clark. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 616.)

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-NOTE UNDER SEAL, NOT. -Au instrument in the form of a negotiable promissory note, but with the device "[Seal]" after and opposite the signature of the maker, is, though there be no reference to a seal in the body of the instrument, a sealed instrument, and not a negotiable promissory note. Undoubtedly where there is a scroll or device upon an instrument there must be something upon the instrument to show that the scroll or device was intended for and used as a seal. The scroll or device does not necessarily, as does a common-law seal, establish its own character. Such words in the testimonium clause as "witness my hand and seal" or "sealed with my seal," would establish that the scroll or device was used as a seal. No such reference in the body of the instrument was necessary in the case of a common-law seal. 2 Coke, 5a; 3 Bac. Abr. 163. Nor is there any reason to require it in the case of the statutory substitute, if the instrument anywhere shows clearly that the device was used as and intended for a seal. It would be difficult to conceive how the party could express that the device was intended for a seal more clearly than by the word "seal," placed within and made a part of it. Sup. Ct. Minn., May 31, 1884. Brown v. Jordhal. Opinion by Gilfillan, C. J. (19 N. W. Rep.)

NEGOTIABLE INSTRUMENT-TITLE OF PURCHASER AFTER MATURITY—SUBJECT TO EQUITIES.-The title of the owner of personal property or things movable cannot be divested except by his consent or by operation of law. To this rule there are exceptions arising out of the character of the property, among which are bank notes, checks payable to bearer which pass by delivery and circulated as money, and drafts, bills and in-negotiable promissory notes transferred before maturity. But if transferred after maturity for value and in due course of business, such drafts and promissory notes in the hands of the holder are subject to the

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