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Freeman v. Freeman, 43 N. Y. 31, is cited as support initio only for the sale of so much of the goods as were ing the charge. Assuming, without deciding, that sold in excess, and not for those sold in pursuance of that case is applicable, there is no evidence here that authority.” The same doctrine is stated in 1 Smith any such improvements were made, and it was errone Lead. Cas. *219, as follows: “But if there be a seizure ous to submit that question to the jury. The defend of several chattels, some of which are subsequently ant testified that after his purchase he made improve abused, and the rest not, the seizure is, or becomes, ilments to the amount of about $100, but these were legal only as to the part which it was unlawful to seizo made before the conveyance to Phineas. After that or which was subsequently abused, and the seizure of time, as he testified on his first exainination, he made the rest continues legal.” Wentworth V. Sawyer. 10 improvements, but kept the fences up. Being ro Opinion by Foster, J. called, he testified that after the conveyance to Phin

WILL-DEVISE-LIFE-ESTATE.- A testator devised eas he put up a board fonce and set out six pear trees and some raspberry bushes, and cleaned up a piece of

real estate to his widow to hold “during her life for the land and kept the buildings good, but to use his

her maintenance, but not to sell the same, the said own expression, he had not done “a terrible sight of

real estate to go to John Mehan at her death, if any reit." These are not such permanent improvements as

main.Heli (1), that the widow took a life estate by would bring the case within Freeman v. Freeman if it

express words of limitation, without any power of diswere applicable. Ilutchins v. Hlutchins. Opinion by

posal annexed. Leighton v. Leighton, 58 Me. 69, 70; Rapallo, J.

Warren v. Webb, 68 id. 135, 136; Paino V. Barnes, 100 [Decided Jan. 20, 1885.]

Mass. 471; Taggart v. Murray, 53 N. Y. 236. (22) That the words “if any remains are by implication in opposition to the language of the testator, in the same

clause by which the widow is expressly prohibited MAINE SUPREME JUDICIAL COURT 1B

from making sale of the real estate, apparently inconSTRACT.*

sistent with every other expression in the will, and

therefore cannot be held to imply a right of disposal. TRESPASS-AB INITIO—FAILURE TO LEAVE ENOUGH It will be noticed that in many of the cases where such HAY TO KEEP STOCK.-When an ollicer in the attach words as “if any remains," “if any shall remain unment and removal of hay does not leave the requisito expendel," and other similar expressions, are held to amount to keep the stock which the defendant owns, imply the right of disposal, the testator had, either oxexempt from attachment, at the time of the attach pressly or impliedly, authorized the disposal of his ment, he thereby becomes a trespasser as to so much estato by the use of other language, and with wbich as is taken beyond what is authorized by law, but these expressions were only in harmony in conveying not ab initio as to all the hay taken. The authorities tho intent of tho testator. Ramsdell v. Ramsdell, 21 upon this point, both English and American, are that Me. 288; Harris v. Knapp, 21 Pick. 416; Leighton v. it is only for the excess that the oflicer would be liable. Loighton, 58 Me. 69; Scott v. Perkins, 28 id. 35; BurThe distinction rumuing through the more modern leigh v. ('lough, 52 N. II. 207. And our court, in recases-not at variance with thoso of earlier dato-is ferring to the case of Ilarris v. Knapp, suprli, says: marked, that there may be an abuse of authority by “The court gave great force and effect to the plırase, an officer which will affect his acts, and render him * whatever shall remain at her (leath,' deducing from liable as a trespasser, only in relation to a portion of it the conclusive implication that the derisee had the the property, especially when tho samo is capable of right to dispose of the property. The use of the word division, and where, in reference to that property, the 'disposal' in the will however undoubtedly contribuacts done in excess may be distinguished from those ted to the conclusion arrived at by the court.” Wardone in pursuanco of authority. Wheeler v. Ray ren v. Webb, supru. Froni a careful examination of mond, 130 Mass. 217; Cono v. Forest, 126 id. 101. the provisions of this will wo are satisfied that it was Where the act done is wrongful, but is so merely as to the intention of the testator that his widow should a part of the goods, no wrong being done as to the take a life estate, with no power of conveying the fee; residuo, the wrong-voer is a trespasser as to that part that the words “if any remains,'' taken in the connecof the goods only in respect of which the wrongful act tion in which they are found, must yield to the moro was dono. As in the case of Dodd v. Honger, 6 Mod. positivo and unequivocal declaration of tbe testator, eru, 215, whore several barrels of beer were distrained “but not to sell the same," and which is in harmony for rent, and the distrainer drew beer out of one of with the other provisions of the will. Birminghum v. them, Lord IIolt held that it rondered him a trespasser Leson. Opinion by Foster, J. ab initio only as to that single barrel. In Harvey v. Pocock, 11 M. & W.741, it was decided that where a



RELATIONSHIP. landlord distrained for rent, with other things, goods judge of probate appointed an administrator with the not distrainable, the distrainer was a trespasser

will amexed upon the estate of a testatrix, whose deonly as to the goods which wero not distraina

ceased husband was the judge's imcle. Heid, that the ble. Lord Abinger, (. B., alluding to Dod

judge was legally competent to make the appointment, v. Monger, 6 Mod. 215, and to tho early case of Six

the relationship between him and the testatrix not Carpenters, 8 ("oke, 146, says: “Tho caso in 6 Modern

rendering the appointment void. At the older comis undoubtedly a very strong authority for the defend

inon law personal interest formed the only ground for ants. The Six ('arpenters' case leaves it an open ques

challenging a judge. Bou, Law Dic. Incompotion how far the party becomes a trespasser ab initio

tency.'' It was not objectionable for a judge to sit in as to the whole distress by an excess as to part. It is

a cause to which a relative was a party. The public very reasonable that he should not, but that his liabil

sense has become finer in that respect than formerly. ity should be limited according to the doctrine laial

According to Chancellor Walworth's statement, (handown by Lord Iloll.." The same views are held by the

cellor kent sat in a cause where his brother-in-law was present chief justice of this court in Seeking v Good

personally interested, and in another case where his ale, 61 Mo. 404, wherein he says: We think a fair con

own brother was the complainant. In re Leefe, ? struotion of the rule established in the Six Carperters'

Barb. ('h. 39. Io presided probably because there was case makes the defendant liable as a trespasser ab

no other court that had jurisdiction of the cases. The

historical phase of judicial disqualiticativu is learnedly *Appearing in 76. Maine Reports.

presented by Folger, J., in the case of In re David R.

Ryers, 72 N. Y. 1; S. C., 28 Am. Rep. 88. The true authorized to act, and does act for both, although he test is whether the relative has an interest as a party sigus the assignment by his own individual name, and to the cause or proceeding before the judge, or stands the assignment does not itself disclose that he is acting in the condition of a party. In Aldrich, appellant, for or upon the authority of the other permittee. The infra, it is said: “There is not the same reason that authority of the one to act for both may be shown by the remote or contingent interest of a relative or con oral evidence. The law in many cases admits evidence nection should exclude the judge from acting. It is to show the real and actual capacity in which persons only when the relative is a party or has a direct or ap have set their names to written contracts. Had the parent interest in the matter to be passed upon by the words“ for self and Colbath” been added to Foss' judge, that the condition arises that works a disqual name the assignment would have been complete. They ification." As said by Rapallo, J., in the case of in may be supplied by oral proof. Higgins v. Senior, 8 re Dodge & Stev. Manuf. Co., 77 N. Y. 101; S. C., 33 M. & W. 834; Huntington v. Kuox, 7 Cush. 371. It is Am. Rep. 579: “Judgments and proceedings of courts competent to show that contracting parties were against corporations would stand upon a very preca agents of other persons, so as to give the benefit of the rious foundation in these days if they could be over contract to or charge its liabilities upon the unnamed turned on discovery that some judge who took part in principal. An undisclosed principal may be shown to them was related by blood or marriage to some stock be the real party in a transaction in which the agent is holder of the corporation.” It would be difficult for the only ostensible person. 1 Whart. Con., $ 202, and a judge to know when he could safely sit in cases numerous cases in note. Lerned v. Johns, 9 Allen, where large corporations are parties. Even where the 419; Lamson v.Russell, 112 Mass. 387; Cushing v. Rice, judge is disqualified to act from his own personal in 46 Me. 303; Coleman v. Bank, 53 N. Y. 393; Hutton v. terest, it must be something more than a merely possi- | Bulloch, L. R., 9 Q. B. 572. We think the present case ble and theoretical interest. It must be an actual in falls within the circle of the doctrine marked out by terest, however small, direct or indirect. He can do the authorities. (2) An assignment in a mortgage merely formal acts when a relative is interested as a form of a permit to cut and remove timber need not party. Cooley Con. Lim., § 413. The pecuniary in be recorded as a chattel mortgage, so far as cuttings terest of the judge's relatives was not whether A. or B. are concerned which are made after the assignment; be appointed, but merely what a suitable person should aliter, as to cuttings made before the assigument. (3) be. Chancellor Walworth decided that it was not in The same rule applies where the permit extends to competent for a vice-chancellor to appoint his son upon hemlock trees that have beeu already cut down and a committee of lunacy, it being merely a ministerial left, with the bark peeled therefrom promiscuously service to be performed under the direction of the upon the land. (4) The statutory requirement that court. In re Hopper, 5 Paige (h. 489. Seo Nettleton chattel mortgages shall be recorded applies to equitav. Nettleton, 17 ('onn. 542; IIall v. Thayer, 105 Mass. ble as well as to legal mortgages. Such was no doubt 219; Matter of Aldrich, 110 id. 189, distinguished. the idea of the court in Shaw v. Wilshire, 65 Me. 485. Russell v. Belcher. ()pinion by Peters, (. J. [See 3:3 Barrows, J., there says: “We see no reason to disAm. Rep. 316; 29 Eng. Rep. 330; 91 N. Y. 281.-E1).] criminate between an equitable mortgage aud one in

which the condition is more fully expressed.” If JUDGMENT-NONSUIT NO. BAR TO SECOND) sưIT.-A judgment of nonsuit is not a bar to a subsequent ac

equitable mortgages are not to have the privilege of a tion for the same causo. This view is in full accordi

registration, we do not see how such mortgages can with the cases a ljudged by courts that proceed accord

be very available or even valid, unless a delivery is ing to the course of the common law. Morgan v. Bliss,

taken and kept. It may be said that a mortgage in 2 Mass. 111. In Knox v.Waldoborough,5 Greenl.185, it

the form of absoluto sale gives uo indication of the na

ture of the condition annexed. But many legal mortappeared that the parties in a former suit for the same cause of action signed an agreed statement of

gages do not upon their face fully disclose the facts. facts, and stipulated that if the facts did not warrant

The very fact however that an instrumeut in the form

of absoluto sale is recordod, is a notice that some conthe action the plaintiff should becomo nonsuit, and the

dition is annexed. What the condition is may be ascourt held that a judgment of nonsuit entered according to the stipulation was no bar to the action. In

certained under the statutory modes provided for the that case the judgment of nonsuit was held to be no

purpose. A sale and a separate written defeasance given

back constitute oven a legal mortgage. But in such bar, because the facts touching the rights of tho parties had not been adjudged by any tribmal. The court in

caso the vendee has no means of requiring the separate

defeasanco to be recorded. We make no distinction the original suit simply determined the law applicablo to the facts agreed. So in the action wherein a julg

of the kind, set up by the plaintiff, in the matter of ment of nonsuit was rendered is claimed to bar this

the registration of deeds of real estate when regarded Buit, tho undisputed facts were held insufficient in

as equitable mortgages. Putnam v. White. Opinion law to support the action, but were not adjudged, that

by Peters, C. J is, decided in the defendant's favor. So too a nonsuit upon an agreed statement of facts was held to bo no

ILLINOIS SUPRENE COURT ABSTRACT* bar to a subsequent suit. Ilomer v. Brown, 16 low. 351. It has been said that a “uonsuit is but like blowing out a candlo, which a man at his own pleasure

TENDER—MUST BE KEPT GOOD.—(1) A tender of the lights again. March Arbitraments, 215; ("lapp v.

amount due from tho purchasor of land to his vendor, Thomas, 5 Allen, 158; Bridge v. Sumner, 1 Pick, 371;

who is not in a position to make a clear title, accordManhattan Life Ins. (o. v. Broughton, 109 V. S. 1:21;

ing to his bond, by reason of an incumbrance placed Audubon, Ex. v. Excelsior Ins. Co., 27 N. Y. 216;

by him on the premises sold, to be availing to stop the Eaton v. George, 40 N. II. 258; Derby v. Jacques,

accruing of interest after such tender, must be kept 1 Clifford, 423; Jay v. ('arthage, 18 Me. 353. Pender

good. To have that effect the tender must ke kept in grass v. l'ork Manufacturing Co. ()pinion by llas

money, at all times ready to be paid, and subject to

the order of the creditor at any time when he shall kell, J.

comply with his contract so as to be authorized to reLICENSE—TO REMOVE TLMBER-ASSIGNMENT--CHAT

ceive it. (2) The money tendered must at all times be TEL MORTGAGE-FILING.—1 A written permit to cut

kept in readiness for the creditor, and not be used by and remove timber from land running to two permittees may be wholly assigned by one of them, if he is

*To appear in 109 Illinois Reports.

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the debtor, and when pleaded at law it must be witness, the difference in the sales of his beer before brought into court for the creditor. It may be the and after the construction of the starch factory. Held, precise pieces of money need not be kept separate, but that the question was properly allowed, the other the amount must be kept at all times subject to be re proof showing that the flow of the slops from the ceived by the creditor when he calls for it. Thayer sewer affected the atmosphere at the brewery, and the v. Meeker, 86 111. 470; Crain v. McGioon, id. 4:31 ; Stow plaintiff's theory being that the atmosphere so polluv. Russell, 30 id. 18; Knox v. Light, 12 id. 86. These ted affected tho beer, and rendered it unsalable. Such cases distinctly announce the rule that the money ten- theory was however not conclusivo, but was open to dered must at all times be kept in readiness for the proof that other causes, and what affected the sales creditor, and not used by the debtor, and when pleaded of the beer. Cunningham v. Stein. Opinion by Scholat law, it must be brought into court for the creditor. field, J. It is in this way only that the debtor can escape tho

ARBITRATION AND AWART) – WHAT AWARD MUST payment of interest and costs. We have only to turn

SHOW.- Where several distinct matters, not consist. to any book of precedents to find that a plea of tendering of mere money demands, are submitted to arbimust aver a readiness, at all times after it is made, to

tration, the arbitrators must consider, and by their pay the money, and ho must bring in into court. Il award finally settle and dispose of all such matters in he uses tho money, of course he is not at all times differenco, and this must appear from the award itself ready to pay it. In the caso of (yles v. Hall, 2 P.

or it will be void. Tucker v. Page, 69 Ill. 179; BunWms. 378, where a tender was relied on to stop inter

tain r. (urtis, 27 id. 374. But when the controversy ost, it was said by the lord chancellor: “But in this

relates to cross money demands, whether in suit or case it ought to appear that the mortgagor, from that

not, or where in any case the circumstances are such time, always kept the money ready, whereas the con

that the arbitrators will be warranted in requiring the trary thereof being prored, the mortgagor was not

party, who upon the wholo appears to be in default, ready to pay it, therefore the interest must run on.

to pay to the other a sum of money in gross, it is not This is the rule both at law and in equity, and it is

necessary, nor is it tho better practice for the award supported by the principles of justice. Mathison v.

to show upon its faco how the result was reached, Wilson, 87 Ill. 51; ('arr v. Miner, 92 id. 604; Ventres v.

or in other words, how each item of their respective Cobb, 105 id. 33. Aulger v. Clay. Opinion by demands was disposed of. In such case the awarding Walker, J.

of a gross suni of money will be presumed to be a full WITNESS

- REPUTATION PRACTICE ON IMPEACHI adjustment of all matters of differenco embraced in ING ATTORNEY ANI) CLIENT 1) EALINGS the submission. Weed v. Ellis, 3 ('aines, 253; Baspolo's TWEEN. The proper mode of inquiring into the gen case, 8 ('o. 97 by; Watmough v. Holgate, ? l'ent. 221; eral reputation of a person who has given testimony in Patton v. Baird, 7 Ired. (N. (.) Eą. 257; Blossom v. a causo, for truthfulness, is to ask the impeaching with Van Amringe, 63 N. ('. 65. Stearns v. Cope. Opinion ness whether ho knows such person's general reputa by Mulkey, J. tion among his neiglibors for truth and veracity, and

("ONSTITUTIONAL LAW-POLICE POWER-REGULATwhat that reputation is. In the English courts the

ING AND RESTRAINING TRADE.—The State, through the course is further to inquire whether from such knowl- General Assembly, has suprenio legislative power, exedge the impeaching witness would believe that per

cept so far as it is limited by its Constitution, or auch son under oath. 1 Greenl. Ev., $ 461. While this court

ns has been delegated to the general government, or has adopted the English rulo as correct, it has never

its exercise has been limited by the Federal ('onstituheld, and such is not the law, that it is compulsory that

tion. The police power of the State, when exercised the opinion of the witness shall be asked or stated. by the Legislature in the passage of laws for the proFryer. Bank of Illinois, 11 Ill. 367; Eason 1. (hap-tection of life, liberty, and property, or laws for the man, 21 id. 34; Massey r. Bank, 104 id. 328; see also general welfare, has no limitations or restrictions, exPeople v. Tyler, 33 ('al. 55.3. (2) The general practice cept such as are found in the Constitution. The fact in the ('ircuit ('ourts of this State has been, to leave it

that a law regulates trade or any business, or in some optional with the pariy calling the impeaching wit.

degree operates as a restraint on the same, does not ness, to ask the opinion of the witness, or not as he

render it obnoxious to any constitutional provision. may think proper; and this practice is correct, and in

The Legislature, for the safety, security, and welfaro harmony with the current of authority upon the ques of society, may control the acts of the governed even tion. Dealings between attorney and client will be

as to the time and manner of performing labor, and scrutinized closely, in order to guard against wrong

in the manner in which persons shall use their propbeing committeil, owing to the confidential relations erty to prevent injury to others. Whero a law is existing between them, and the supposed personal in

found on the statute books, the presumption is that it fluence of an attornes over his client; but there is no

conforms to the Constitution. This presumption rule of law which absolutely prohibits a sale merely arises from the fact that each member of both houses on account of the existence of the relation of attorney

who pass the law, and the chief executive who has apand client. Jless r. Voss, 52 111. 172. A sale of prop- proved it, are under the same obligation to support tho erty from a client to an attorney will be sustained, lionstitution as are the courts. Having performed all where the transaction is open, honest and fair, and no

acts necessary to the adoption of the law, we must undue influence is used. See Alwood v. Mansfield, 59

presume they acted in view of the Constitution and Ill. 496. Luclede Bunk v. kerler, Opinion

by all of its limitatious. For these reasons the courts Craig, J.

nerer interfere to declaro a law unconstitutional in NUISANCE-EVIDEXCE-QUESTION OF DAMAGE.-On case of doubt. To authorizo such action by the court, the trial of an action on the case, brought by the it must be clear the law violates some provision of the owner of a brewery, against the defendant, the owner organic law. When therefore a law is challenged as of a starch factory, located near the brewery, to re unconstitutional, we must be able to turn to the procorer damages for polluting the waters of a stream rision of the instrument which prohibits the Legislathat ran through a part of the plaintiff's premises, by ture from its enactment, and the repugnanes must the flow of slops into the same, and for befouling the clearly appear. These doctrines and constitutional air with unhealthy and unsavory odors, arising from principles are distinctly announced by this court in the using and operating the starch factory, the court the cases of Field v. People, scam. 79; People v. Saloallowed the plaintiff to be asked, when testifying as a mon, 51 III. 19; People v. Marshall, 1 Gilm. 677?; Lane


v. Doe, 3 Scam. 238; Bruce v. Schuyler, 4 Gilm. 221; Mason v. Wait, 4 Scam. 127, and People v. Reynolds, 6 Gilm. 1, and coincide with the decisions of almost if not all courts. The act of June 18, 1883, requiring the operators of butter and cheese factories on the co-operativo plan to give bonds, etc., is not in contravention of section 6, article 2, of the Bill of Rights, which declares that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall be inviolate.” Such act is but a proper exercise of the police power of the State for the protection of persons intrusting their property to the manufacturer from fraud aud wrong. A number of cases arising under city ordinances have been referred to by counsel as conclusive that this law is unconstitutional. In none of the casos referred to had the General Assembly, in express terms, granted to the municipality the powers that were exercised. Such was the case in City of Clinton v. Phillips, 58 111. 102. There the city authorized the sale of the liquor, but made it penal to fail to make a statement, at designated times, of sales, their purposes, the time, and the persons to whom sold. The case of Toledo, Wabash & Western R. Co. v. City of Jacksonville, 67 Ill. 39, was a city ordinance requiring the useless act of the railroad company keeping a flagman at a crossing where there was no danger to persous. They are unlike this case. In none of the cases referred to was the law intended to protect the public from wrong and fraud, but the charters of those cities only conferred the power to adopt reasonable ordinances, and it was held they were not such, and were held inoperative for that reason. Nor bad the Legislature required that such ordinances should be adopted. The corporate bodies in those cases were only empowered to pass reasonable ordinances, and they were in those cases held to be unreasonable, and therefore void. Hawthorn v. People. Opinion by Walker, J.

CONTRACT--MENTAL CAPACITY-BURDEN OF PROOF -EVIDENCE OF IMPROPER RELATIONS NUMBER OF WITNESSES.---(1) Although the mind of an individual may be, to some extent, impaired by age or disease, still if he be capable of transacting his ordinary business, if he understand the nature of the business in which he is engaged, and the effect of what he is doing, and can exercise his will with reference thereto, his acts will be valid. Meeker v. Meeker, 775 Ill. 266; Trish v. Newell, 62 id. 196; Pickerell v. Morss, 97 id. 220; Lindsey v. Lindsey, 50 id. 79. (2) On bill to set aside a conveyance of real estate made by his ward, on the ground of insanity of tho grantor and undue influence of the granteo over him, the burden is upon the complainant to prove one or both of these allegations of his bill by a preponderance of evidence. Lilly v. Waggoner, 27 111. 395; Willemin v. Dunn, 93 id. 511. (3) The fact that a man is not the husband of a woman with whom he is on intimate terms and transacts business, but by somo were supposed to be man and wife, is not sufficient evidence of illicit or adulterous intercourse between them, or of impropor relations. (1) Mere numbers of witnesses alone, testifying to a stato of facts, or as to the mental capacity of another to make a rational contract, will not control, whero the less number are more intelligent, more reliable, or in any material respect superior as witnesses to the others. English v. Porter. Opinion by Scholfield, J.

ADVANCEMENT-PRESUMPTIONS AS T0.-The general rule is, that a purchase of land by a parent in the name of a child, or of a husband in the name of the wife, is presumed to be an advancement and not a trust. Perry on Trusts, $ 117, says: “Whether a purchase in the name of a wife or child is an advancement or not is a question of pure intention, though presumed in

the first instance to be a provision and settlement; therefore any antecedent or contemporaneous acts or facts may be received, either to rebut or support the presumption; and any acts or facts so immediately after the purchase as to be fairly considered a part of the transaction may be received for the same pur

In Taylor v. Taylor, 4 Gilm. 303, where a parent purchased lands in the names of his two sons, and the question arose whether the purchase was an advancement, or whether they held in trust, it was held that “the presumption of law is, where a father purchases land in the name of his children, unaccompanied by any extraordinary circumstances, that it was intended as au advancement; but the presumption may be rebutted by circumstances.' In Cartwright v. Wise, 14 I11. 417, where a parent with his own money entered a tract of land in the name of his sou, who was an idiot, this court took stronger grounds in sugtaining the conveyance as an advancement than was done in the case last cited. In deciding the case it was said: “The question arises whether a father who purchases land with his own money, and takes the title to his idiot son, can file a bill for a resulting trust, and claim that he did not intend it for the benefit of his son, but for his own use. We are prepared to say that such a bill cannot be sustained. It must be held to be an advancement in favor of the child. The policy of the law requires that such an advancemeut thus made to such a party should be held to be irrevocable by the father.” Maxwell v. Maxwell. Opinion by Craig, J.

RAILROAD-FENCING TRACKS-KILLING STOCK.-A statute of the State of Indiana gave the owner of stock killed on a railway a right of action against the company, without regard to the question whether such injury was the result of willful misconduct or negligence, or the result of unavoidable accident. It was however provided the act should not apply to any railroad securely fenced in, and such fence properly maintaiued by such company. Although this statute is general, and contains no exception, it was held in L. and Ind. R. Co. v. Shriner, 6 Ind. 141, the Legislature did not intend to authorize railroad companies to inclose streets in a town against the use of the public, and that a literal construction of the statute would lead to an absurdity. In that case the auimal was killed within the corporate limits of the town of Lafayette, at a place where the railroad track crossed one of the streets of the town, and it was ruled it would not have been lawful to erect a fence at that point, and that the want of such fence was not the cause of such accident. In the case of Ind. and Cin. R. Co. V. Kinney, 8 Ind. 402, it was held under the same statute cited in L. and Ind. R. ('0. v. Sbriner, a railroad company would not be liable for stock killed or injured at a place on their road where a fence ought not to be erected, unless the injury was negligently or willfully done, and that an open space in front of a mill standing within fifty feet of the track is such a place. In the case of Iud. and ('in. R. Co. v. Parker,29 Iud. 471, it was held, as in the other cases cited, the statute did not apply to injuries done at a point where it would be illegal or improper for the railroad company to maintain fences, such as road and street crossings, but that it was not every place within the corporate limits of a town or city that is within the exception. The exception allowed would be as to places where it would be improper to fonco the track, whether within or without the corporate limits of cities or villages. Iu Coustruing their own statute on the same subject, and which is not unlike the Indiana statute, in F. and P. M. R. Co. v. Lull, 28 Mich. 510, the court thought the rule established by the case last cited was a satisfactory one, that it expressed the limits of the exceptious

arising under the statute accurately, and a track within the corporate limits of a city or town, at a point where no reason arising from public necessity existed for keeping it open, was as much within the statute as a track elsewhere It seems the courts of Missouri and Iowa have followed closely the rule established by the cases ut supra, iu construing similar statutes on the same subject. Lloyd v. Pacific R. Co., 49 Mo. 199; Davis v. B. and M. R. Co., 26 Iowa, 549; Cleavelaud v. C. and N. W. R. Co., 35 id. 220. It is seen it is held by these courts, that notwithstanding the statute makes railroad corporations liable for injuries done to stock unless their tracks are inclosed with suitable fences, yet they are not bound to fence their tracks at places where it would be improper to do so on account of the great public inconvenience it would occasion, and hence are not liable because of the omission, unless guilty of negligence or willful misconduct iu regard to the accident that caused tho injury. The reason for the rule adopted in such cases is well stated in People v. Davenport, 91 N. Y. 574, where it is said, a “principle of construction of universal authority is that which requires the court to limit and restrict the operation of a statute, when its language, if applied in its literal sense, would lead au absurdity or manifest injustice.” The same rule of construction had been previously adopted by this court in Perry County v. Jefferson County, 94 Ill. 218. On the other hand the law is equally well settled that where no reason arising from public necessity exists for keeping it open at any given point, whether within or without the corporate limits of a city or village, all railroad corporations must conform to the statute, and fence their tracks, or answer for damages that may result from the omission of that duty. C., 41. & St. P, R. Co. v. Dumser. Opinion by Scott, J.

Reed v. Randall, 29 N. Y. 358; Gaylord v. Allen, 53 id. 515; Dounce v. Low, 64 id. 411; Gilson v. Bingham, 43 Vt. 410; Allison v. Vaughn, 40 Iowa. 421. But it is equally well settled in this State that where there has been a warranty of the quality of the goods, and a failure of such warranty, the vendeo may retain the property and sue on the warranty. Aultman v. Theirer, 34 Iowa, 272; Rogers v. Hanson, 35 id. 283; McCormick v. Dunville, 36 id. 615; King v. Towsley, 19 N. W. Rep. 859. The rule established by the de. cided weight of authority, both in England and this country, is that rescission of a divisible contract will not be allowed for a breach thereof, unloss such breach goes to the whole of the consideration. Freeth v. Burr, L. R., 9 C. P. 208; Mersey Steel & Iron Works v. Naylor, L. R., 9 Q. B. Div. 618; Simpson v. Crippin, L. R., 8 Q. B. 14; Newton v. Winc er, 16 Gray, 208; Winchester v. Newton, 2 Allen, 492; Sawyer v. Railway Co., 22 Wis. 103; Burge v. Cedar Rapids & M. R. Co., 32 Iowa, 101; Ilayden v. Reynolds, 54 id. 157; S. C., 6 N. W. Rep. 180. See also the collection of authorities in the note to Norrington v. Wright, 21 Am. Law Reg. 395. Neyer v. Wheeler. Opiniou by Reed, J. [Decided Dec. 11, 1884.]

SLANDER- CHARGE OF CRIME JUSTIFICATION PROOF BEYOND) A REASONABLE DOUBT.-In an action of slander for charging plaintiff with the commission of a crime, when the defendant justifies be need not establish beyond a reasonable doubt that the plaintiff committed the crime in manner and form as pleaded. The court instructed the jury that the defendant must established beyond a reasonable doubt that the plaintiff did commit the crime of larceny in manner and form as the defendant had pleaded. This instruction is in accord with Bradley v. Kennedy, 2 G. Greene, 231; Forshee V. Abrams, 2 Iowa, 571; Fountain v. West, 23 id. 9; Ellis v. Lindley, 38 id. 461. Logically these cases were much shaken by Welch v. Jugenheimer, 56 Iowa, 11. It is logically impossible to say that one rule should obtain when an action is brought to recover damages caused by the cominission of the crime of arson, and another in an action brought to recover damages for slander charging such crime, and when the defendant pleads justification. If an actiou had been brought to recover the value of the wood alleged to have been stolen in this case, the plaintiff in tho action would be entitled to recover if he established the fact that the wood had beou stolen by a preponderance of the evidence. Logically the same rule must apply when the same party asserts and relies on the same facts in any other civil action where the right of recorery or defense is asserted. Bradley v. Kennedy, 2 G. Greene, 231; Forsheo v. Abrams, 2 Iowa, 571; Fountain v. West, 23 id. 9; and Ellis v. Lindley, 38 id. 461, overruled. Riley v. Norton. ()pinion by Seovers, J. (18 Am. Rep. 673; 7 Abb. N. C. 357. -ED.] [Decided Dec. 9, 1884.]

SALE-WARRANTY ELECTION OF TENDEE TO RESCIND—DAMAGES.—The vendee of personal property which has been sold with warranty as to its quality, on the failure of the warranty has the election to rescind the contract by returning the property and recorering back the money received by the rendor, or to retain the property and sue for tho daniages sustained in consequence of the failure. Hultman v. Theirer, 31 Iowa, 272; Rogers v. Ilanson, 33 id. 283; Vcl'ormick r. Dunville, 36 id. 615. Defendant elected to pursue the latter course. le retained the property, and at the time of the trial had it in his possession. His answer then was in the nature of a counter-claim for the damages which he sustained in consequence of the failure of the warranty. IIis claim, it is true, was against the reu


SALE-WARRANTY OF QUALITY — SEVERABLE CONTRACT—RIGHT TO RESCINI).-1), offered to sell W. & Co. 10 car-loads of barley like a sample sent him, for 70 cents per bushel. W. telegraphed and wrote D. that they would take 10 car-loads like the sample named, and 1). answered that he would “turn out the 10 cars as fast as possible.” One car-load was delivored, and D. drew for the price thereof; but as it did not como up to the sample in quality, W. & Co. refused to pay the draft, but retained the barley, and informed D. that they had given him credit for the value of the barley, which was fivo cents less than the agreed price, and would retain tho amount until the other nine car-loads woro delivered; but that I). might draw on them against future shipments. 1). insisted upon payment for the load dolivered, and refused to send more barley until payment was made, but offered to deliver the balance if payment was made. No more barley was delivered, and I). sued for the price of the one car-load. Held, (1) that thero was an express warranty that the barley to be delivered should be equal to the sample, for the breach of which W. & Co, were ontitled to damages; and (2) that the contract was severable, and the failure to pay for the carload delivered was not a rescission thereof, and did mot entitle D. to rescind it, and that W. & Co. were entitled to damages for D.'s failure to deliver the remaining car-loads. Defendants having been induced to enter into the contract, and the delivery of the carload in question having been made, plaintiffs must be held to hare warranted that the grain corresponded in quality with the sample. If there had been no warranty of the property, defendants, if they elected to keep it, would have been bound to pay the contract price. This is the well-settled rulo in such cases. See

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