The plain tendency of these cases however is to apply the rule of preponderance of proof in all issues in civil cases.

A finding for the government against the citizen may be followed by deprivation of life or liberty, and hence the propriety of the rule that no such finding should be made without the strong and clear proof required by the rule, beyond a reasonable doubt. But in a controversy between man and man, affecting nothing but a claim, or a defense to damages, and involving nothing but pecuniary or property interests, the reason of the rule wholly fails, and the parties should be on an equality as to the quantum of proof required to establish any material fact. The tendency of modern decisions in other States is to the view we have here taken. Kane v. Hibernia Ins Co., 10 Vroom, 697; Welsh v. Jugenheimer, 56 Iowa, 11; Behrens v. Ins. Co., 58 id. 26; Blazer v. Ins. Co., 37 Wis. 31; Thayer v. Bogle, 30 Me. 475; Elliott v. Van Buren, 33 Mich. 51; Gordon v. Parmelee, 15 Gray, 416; Folsom v. Brown, 25 N. H. 114; Bradis v. Bliss, 35 Vt. 326; Prather v. Mich. Mut. Life Ins. Co., 7 Rep. 293.

The view we have taken of the question presented in the charge of the court, in the Common Pleas, requires a reversal of the judgment of that court, and we therefore take no notice of the error assigned, that the court erred in overruling a motion for a new trial on the ground that the verdict was not supported by sufficient evidence. Judgment reversed.

UNITED STATES SUPREME COURT ABSTRACT.

JANUARY 7, 1884.

APPEAL-JURISDICTION DEPENDENT ON AMOUNT.The judgment in this case is for $7,275.16, but it appears affirmatively on the face of the record that of this amount $2,669.03 was not disputed below. Held, that this court has no jurisdiction. Gray v. Blanchard, 97 U. S. 564; Tintsman v. National Bank, 100 id. 6; and Hilton v. Dickinson, 108 id. Jenness v. Citizens' National Bank of Rome. Opinion by Waite, C. J.

BANK-AUTHORITY OF CASHIER TO REPRESENTPRESUMPTION FROM COURSE OF BUSINESS.-A banking corporation, whose charter does not otherwise provide, may be represented by its cashier in transactions outside of his ordinary duties, without his authority to do so being in writing, or appearing in the records of the proceedings of the directors. His authority may be by parol and collected from circumstances or implied from the conduct or acquiescence of the directors. It may be inferred from the general manner in which, for a period sufficiently long to establish a settled course of business, he has been suffered by the directors, without interference or inquiry, to conduct the affairs of the bank. When during a series of years, or in numerous business transactions, he has been permitted in his official capacity, and without objection, to pursue a particular course of conduct, it may be presumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the corporation, that he has acted in conformity with instructions received from those who have the right to control its operations. That which directors ought, by proper diligence, to have known as to the general course of the bank's business, they may be presumed to have known in any contest between the corporation and those who are justified by the circumstances in dealing with it upon the basis of that course of business. Martin v. Webb. Opinion by Harlan, J.

PRACTICE-EXCEPTION MUST BE TAKEN AT TRIALThe rule is well established and of long standing that an exception to be of any avail must be taken at the trial. It may be reduced to form and signed afterward, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise. Phelps v. Mayer, 15 How. 160; United States v. Breitling, 20 id. 254; French v. Edwards, 13 Wall. 516; Stanton v. Embrey, 93 U. S. 555; Hunnicutt v. Peyton, 102 id. 354. United States v. Carey. Opinion by Waite, C. J.

PROBATE LAW-DEBTS ASSETS AT DECEDENT'S DOMICIL DEBTS DUE FROM UNITED STATES-MANDAMUS--UNITED STATES TREASURER.—(1) The general rule of law is well settled, that for the purpose of founding administration all simple contract debts are assets at the domicil of the debtor; and that the locality of such a debt for this purpose is not affected by a bill of exchange or promissory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it, and therefore the debt is assets where the debtor lives, without regard to the place where the instrument is found or payable. Yeomans v. Bradshaw, Carth. 373; S. C., Comb. 392; Holt, 42; 3 Salk. 70, 164; Abinger, C. B. in Attorney-General v. Bouwens, 4 M. & W. 171, 191; S. C., 1 Horn & Hurlstone, 319, 324; Parke, B., in Mondel v. Steel, 1 Dowl. (N. S.) 155, 157; Slocum v. Sanford, 2 Coun. 533; Chapman v. Fish, 6 Hill, 554; Owen v. Miller, 10 Ohio State, 136; Piuney v. McGregory, 102 Mass. 186. An administrator is of course obliged to demand payment at the place where the bill or note is payable; and he may find difficulty, unless it is payable to bearer, in suing upon it in a place in which he has not taken out administration. But payment to the administrator appointed in the State in which the intestate had his domicil at the time of his death, whether made within or without that State, is good against any administrator appointed elsewhere. Wilkins v. Ellett, 9 Wall. 740. (2) Debts due from the United States are not local assets at the seat of government only. As was said in Vaughan v. Northup, 15 Pet. 1, 6, and repeated in Mackey v. Coxe, 18 How. 100, 105: "The debts due from the government of the United States have no locality at the seat of government. The United States, in their sovereign capacity, have no particular place of domicil, but possess, in contemplation of law, an ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicil. On the contrary, the administrator of a creditor of the government, duly appointed in the State where he was domiciled at the time of his death, has full authority to receive payment and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it." In Vaughan v. Northup, an administrator, appointed in Kentucky, of an inhabitant of that State, who died there intestate and childless, received a sum of money from the treasury of the United States, for military services rendered by the intestate during the Revolutionary War; and a bill in equity, filed against him in the District of Columbia by the next of kin, for their distributive shares of the money, was dismissed for want of jurisdiction, because an administrator, appointed in and deriving his authority from one State, was not liable to be sued elsewhere, in his official character, for assets lawfully received by him under and in virtue of his original letters of administration. (3) The treasurer of the United States cannot be compelled by writ of mandamus to pay to an administrator appointed in the District of Columbia, of an inhabitant of one of the States of the Union, the amount of a draft payable to the in

testate at the treasury out of an appropriation made by Congress, and held by such administrator. Wyman v. United States. Opinion by Gray, J.

UNITED STATES CIRCUIT COURT ABSTRACT. *

CHINESE- CONSTRUCTION OF STATUTE-LAW APPLIES TO RACE. A Chinese laborer, born on the island of Hong Kong after its cession to Great Britain, is within the provisions of the act of Congress of May 6, 1882, restricting the immigration of Chinese laborers to the United States. The purpose of the act was to exclude laborers coming from China subject to the stipulations of the treaty of 1880 with that country, and to exclude laborers of the Chinese race coming from any other part of the world. U. S. Circuit Court, California. September 24, 1883. Matter of Ah Lung. Opinion by Field, J.

CONSTITUTIONAL LAW-STATE INTERFERENCE WITH SEA-GOING VESSELS. The State board of railroad commissioners has no power to regulate or interfere

with the transportation of persons or merchandise, by a steamship company, between ports within the State, if they be in transit to or from other States, or when in navigating the ocean the vessel goes beyond a marine league from the shore. This power has been conferred upon Congress, and is exclusive. U. S. Circuit Court, California. September 17, 1883. Pacific Coast Steamship Co. v. Railroad Commissioners of California. Opinion by Field, J.

REMOVAL OF CAUSE-PRACTICE - GARNISHMENT OF JUDGMENT.-In cases removed from a State court the Circuit Court will not review orders made prior to the removal, if the State court acted within its jurisdiction. It will take the case precisely as it finds it, accepting all prior decrees and orders as adjudications in the cause. Hence, where the judgment of a Federal court had been garnished and the State court had made an order upholding the proceeding, the Circuit Court declined to review the propriety of this order. It seems however that the court whose judgment was thus garnished might properly disregard the writ. Duncan v. Gegan, 101 U. S. 810; French v. Hay, 22 Wall. 231; Brooks v. Farwell, 4 Fed. Rep. 166; Werthein v. Continental Railway & Trust Co., 11 id. 689; Milligan v. Lalance, etc., Co., 17 id. 465; Smith v. Schwed, 11, Rep. 730. U. S. Circuit Court, E. D. Michigan. October 15, 1883. Loomis v. Harrington. Opinion by Brown, J.

REMOVAL OF CAUSE-EMINENT DOMAIN PROCEEDINGS.-A judicial proceeding to appropriate private property to the use of a railway corporation is subject to the usual incidents of a civil action or suit, including the liability to removal into the Circuit Court. U. S. Circuit Court, Oregon. November 16, 1883. Northern Pacific Terminal Co. v. Lowenberg. Opinion by Deady, J.

KANSAS SUPREME COURT ABSTRACT. JANUARY TERM, 1883.+

ATTORNEY -WHEN APPEARANCE BY, NOT BINDING ON CLIENT-ESTOPPEL.-The appearance in an action by an attorney at law for a defendant whom he professes to represent is presumed to be authorized until the contrary is shown, and it devolves upon the defendant impeaching this authority to show by positive proof that such appearance is invalid; and while all *Appearing in 18 Federal Reporter. +Appearing in 30 Kansas Reports.

the presumptions are in favor of a finding of the trial court that the appearance of the attorney at law is binding upon the defendant, yet if the uncontradicted evidence establishes that the attorney appeared for the defendant without his knowledge or authority, express or implied, and that the defendant never ratified the act of the attorney, and promptly disavowed it, such finding is without support. Butcher v. Bank, 2 Kans. 70; Railway Co. v. Streeter, 8 id. 133; Foreman v. Carter, 9 id. 674; Hanson v. Wolcott, 19 id. 207; Mastin v. Gray, id. 458; Shelton v. Tiffin, 47 U. S. 163; Critchfield v. Porter, 3 Ohio, 518; Harshey v. Blackmarr, 20 Iowa, 61: Lawrence v. Jarvis, 32 Ill. 304; Arnott v. Webb, 1 Dill. 362; Price v. Ward, 1 Dutch. 225; Penny wit v. Foote, 27 Ohio St. 600; Dobbin v. Dupree, 39 Ga. 391; Wiley v. Pratt, 23 Ind. 628. See also Wetherby v. Wetherby, 20 Wis. 526; Ferguson v. Crawford, 70 N. Y. 253; Clark v. Little, 41 Iowa, 497. Reynolds v. Fleming. Opinion by Horton, C. J.

EVIDENCE-CONTRADICTION OF INSTRUMENT BY PAROL-BAILMENT-ESTOPPEL AS TO TITLE. —(1) While a written instrument which contains simply an acknowledgment of payment or delivery is only prima facie evidence of the fact, and may be contradicted by oral testimony, yet when in addition to such acknowledgment it contains an agreement to do any thing in respect to the property delivered, then as to this latter matter it stands on the basis of any other written contract, and cannot be contradicted or varied by parol testimony. (2) The general rule is, that a bailee re ceiving goods from his bailor cannot set up title in himself at the time of the bailmeut, for the purpose of defeating a recovery by the bailor. Vosburgh v. Huntington, 15 Abb. Pr. 254; Simpson v. Wren, 50 Ill. 222; Kelly v. Patchell, 5 West Va. 585. Thompson v. Williams. Opinion by Brewer, J.

INJUNCTION-LIABILITY ON UNDERTAKING WHEN SUIT DISCONTINUED.-Where a plaintiff, on commencing a suit and obtaining a temporary injunction, gives an undertaking to secure to the party injured the damages he may sustain if it be finally decided that the injunction ought not to have been granted, and subsequently appears in court and dismisses the action, without prejudice to a future action, and the court enters judgment dismissing the action, such judgment is equivalent to a final decision by the court that the plaintiff was not entitled to the temporary order of injunction, and after the judgment an action lies upon the injunction undertaking. Carpenter v. Wright, 4 Bosw. 655; Cunningham v. White, 45 How. Pr. 486; Dowling v. Polack, 18 Cal. 625; Loomis v. Brown, 16 Bark. 325; Sherman v. Central Mills, 11 How. Pr. 269; Coates v. Coates, 1 Duer, 644. See also Marbourg v. Smith, 11 Kas. 554; Fox v. Hudson, 20 id. 247. Mitchell v. Sullivan. Opinion by Horton, C. J.

PROBATE LAW-ADMINISTRATOR CANNOT COMPROMISE CLAIM WITHOUT CONSENT OF COURT. An administrator has no power to compromise any claim, debt or demand belonging to the estate in his hands to be administered, and accruing in the life-time of the deceased, so as to bind the estate, without the consent of the Probate Court. Fox v. Van Norman, 11 Kas. 214; Reitzell v. Miller, 25 Ill. 68; Clark v. Hogel, 54 id. 227; Stagg v. Lennefiser, 50 Mo. 341; Cape Girardeau County v. Harbison, 58 id. 90; Parham v. Stith, 56 Miss. 465. Etna Life Insurance Co. v. Swayze. Opinion by Horton, C. J.

MORTGAGE-PRIORITY AS BETWEEN RECORDED AND UNRECORDED-BURDEN OF PROOF.-One who seeks to have priority given to an unrecorded over a later and recorded mortgage, has the burden of proof, and must affirmatively show actual notice. A purchaser of a re

corded mortgage, whether given to secure a negotiable or non-negotiable note, who purchases without actual notice of a prior unrecorded mortgage, obtains priority over such unrecorded mortgage; and this, notwithstanding the party from whom he purchased the second mortgage had notice of the prior mortgage. The fact that an unrecorded mortgage is for the purchasemoney, gives it no priority over a later recorded mortgage. Mott v. Clark, 9 Penn. St. 399, § 262; Choteau v. Jones, 11 Ill. 300; Lightner v. Mooney, 10 Watts, 407. Jackson v. Reid. Opinion by Brewer, J.

MICHIGAN SUPREME COURT ABSTRACT.

DEED-OF REAL ESTATE CANNOT BE RESCINDED for PARTIAL FAILURE OF CONSIDERATION.-When there is a conveyance of land with a warranty, and there is a mistake which does not go to the entire consideration of the purchase, the purchaser is not at liberty to rescind because of it. Buckles v. Northern Bank, 63 Ill. 278; Templeton v. Jackson, 13 Mo. 78. Therefore an action to rescind is not maintainable. The general rule is that the actiou of assumpsit will not lie to try the title to land. Hogsett v. Ellis, 17 Mich. 351; Codman v. Jenkins, 14 Mass. 93; Boston v. Binney, 11 Pick. 1; Baker v. Howell, 6 Serg. & R. 481; King v. Mason, 42 Ill. 225; Marshall v. Hopkins, 15 East. 309; Newsome v. Graham, 10 Barn. & C. 234. If the supposed conveyance had been altogether void by reason of there having been no such land (D'Utricht v. Melcher, Dall. 428), or because the instrument itself was a mere nullity (Tollenson v. Gunderson, 1 Wis. 113), or because the deed was given to carry into effect an execution sale which was void (Putnam v. Westcott, 19 Johns. 73), or if the trade had been brought about by fraud, and the vendee had rescinded it on that ground, as he lawfully might (Early v. Garrett, 9 Barn. & C. 928; Vining v. Leeman, 45 Ill. 246; Warren v. Tyler, 81 id. 15; Masson v. Bovet, 1 Denio, 69), the right to reclaim the money in this form of action might be admitted. Leal v. Terbush. Opinion by Cooley, J. [Decided Dec. 20, 1883.]

PARTNERSHIP-PARTNER OR ASSIGNEE CANNOT SUE FIRM ON FIRM NOTE.-Where there is a note given by the firm to one of its members, the payee cannot bring suit at law. He cannot sue himself (Chitty Cont. 239; Colly. Partn. 642; 2 Lindl. Partn. 1030; Eastman v. Wright, 6 Pick. 320; Burley v. Harris, 8 N. H. 235; Griffith v. Chew, 8 Serg. & R. 30; Portland Bank v. Hyde, 2 Fairf. 196; Mainwaring v. Newman, 2 Bos. & P. 124; 6 Taunt. 597; Hammond v. Teague, 6 Bing. 197); neither can his assignee bring suit. Learned v. Ayres, 41 Mich. 677. Davis v. Merrill. Opinion by Sherwood, J. [Decided Oct. 17, 1883.]

REPLEVIN WHEN NECESSARY.-When the original taking of personal property is felonious, no matter in whose hands the property may be subsequently found, the owner is entitled to his writ of replevin without demand, because no person can acquire a rightful possession through a felonious taking. Trudo v. Anderson, 10 Mich. 357; Ballou v. O'Brien, 20 id. 304; Seaver v. Dingly, 4 Greenl. 306; Wells Repl., § 347; Barrett v. Warren, 3 Hill, 348; Ayres v. Hewitt, 19 Me. 281. And the same is true when the original taking is a trespass, so long as the trespass remains unsatisfied and the owner is not in some way estopped from asserting the wrong. Jackson v. Dean, 1 Doug. 519; Baker v. Fales, 16 Mass. 46; Wells Repl., § 54; Riley v. Boston Water-power Co., 11 Cush. 11; Galvin v. Bacon, 11 Me. 28. A different rule prevails when the taking, though wrongful, arises out of contract relations with the rightful owner, and is claimed to be in pursuance thereof. In all such

ALLOWABLE WHEN DEMAND

cases,

before any wrong can be imputed to the party in possession in good faith, and before he can be subjected to the expenses of a suit, he must be requested to give up the property and refuse so to do. Campbell V. Quackenbush, 33 Mich. 288; Morris v. Danielson, 3 Hill, 168. A demand and refusal are circumstances only tending to show a wrongful detention. Hill v. Covell, 1 N. Y. 522; Buckland v. Barton, 2 H. Bl. 136; Baldwin v. Cole, 6 Mod. 212; McCombie v. Davies, 6 East, 538; Hoare v. Parker, 2 T. R. 376. But unless the plaintiff is entitled to have his demand complied with at the time it was made, it can lay no foundation for the action or change the character of the defendant's possession. Kelsey v. Griswold, 6 Barb. 436. Adams v. Wood. Opinion by Sherwood, J. [Decided Oct. 10, 1883.]

CARRIER-SALE OF GOODS TO SWINDLER TO BE SENT BY-CARRIER DELIVERING TO SWINDLER NOT LIABLE -A swindler representing himself to be Edward Pope, a reputable merchant at Dayton, Ohio, purchased goods from plaintiffs in Boston, on credit, to be shipped to Dayton to Edward Pope. The goods were shipped as directed by plaintiffs who believed the swindler to be the one he represented himself to be by the defendant carrier, and was delivered by it at Dayton to the swindler. Held, that the carrier was not liable to plaintiffs for the goods. The fact that the seller was induced to sell by fraud of the buyer makes the sale voidable, but not void. He could not have supposed he was selling to any other person; his intention was to sell to the person present and identified by sight and hearing; it does not defeat the sale because the buyer assumed a false name or practiced any other deceit to induce the vendor to sell. Cundy v. Lindsay, L. R., 3 App. Cas. 459. The sale was voidable by the plaintiffs, but the defendant had no duty to inquire into its validity. The person who bought them, and who called himself Edward Pope, owned the goods, and upon their arrival in Dayton, had the right to demand them of the carrier. In delivering them to him, the carrier was guilty of no fault or negligence. It delivered them to the person who bought and owned them, who went by the name of Edward Pope and thus answered the direction upon the packages, and who was the person to whom the plaintiffs sent them. Dunbar v. Boston & Providence R. Co., 110 Mass. 26. Edmunds v. Merchants' Despatch Transportation Co Opinion by Morton, C. J.

FIRE INSURANCE-CHANGE OF TITLE TO LAND ON WHICH INJURED BUILDINGS STAND-DAMAGES WHEN BUILDINGS BURNED WERE TO BE REMOVED.-Plaintiff company had held a policy with defendant insurance company upon buildings owned by it situated upon land to which it had also title. It sold the land but retained the ownership of the building with the right to remove the same before a specified time. It then procured a policy with defendant upon the buildings, making no misrepresentations nor concealing any thing as to the title, but not disclosing the title to the land. Before the time for removing the buildings expired they were burned. Held, that the policy was valid. The defendant saw fit to issue this policy without any specific inquiries of the plaintiff as to the title to the land and without any representations by the plaintiff on this point. It was its own carelessness, and it cannot avoid the policy without proving intentional misrepresentation or concealment on the plaintiff's part. An innocent failure to communicate facts

about which the plaintiff was not asked will not have this effect. Commonwealth v. Hide & Leather Ins. Co., 112 Mass. 136; Fowle v. Springfield Ins. Co., 122 id. 191; Welsh v. Philadelphia Ins. Co., 127 id. 383. Held also, that the measure of damages that plaintiff was entitled to recover was the actual intrinsic cash value of the property destroyed, and such a sum as it would have cost at the time of the fire to have replaced and restored the property to the condition in which it was before, without regard to the fact that it was to be re moved at the time specified. It is not in adjusting a loss that the true rule of indemnity is to ascertain what the actual loss to the plaintiff is, or in other words, to what extent he has suffered by the fire. It often happens that the insured may gain an advantage by the fire, by reason of some collateral contracts or relations with other parties. King v. State Ins. Co., 7 Cush. 1; Suffolk Ins. Co. v. Boyden, 9 Allen, 123; Foster v. Equitable Ins. Co., 2 Gray, 216. So the market value of the property burned is not always a fair rule of adjustment. Washington Mills and Emery Co v. Weymouth & Braintree Mutual Fire Insurance Co. Opinion by Morton, C. J.

LANDLORD AND TENANT LANDLORD NOT LIABLE TO TENANT FOR PERSONAL INJURY FROM DEFECT IN PREMISES LEASED. A landlord held not liable for personal injuries to a tenant caused by 3 defective stairway in the rented house. There is no warranty implied in the letting of an unfurnished house or tenement that it is reasonably fit for use. Dutton v. Gerrish, 9 Cush. 89; Foster v. Peyser, id. 292. Buildings are let in all sorts of condition, and the law is unusually strict in exempting the landlord from liability for injuries arising from defects when there is no warranty and no actual deceit. Tenants often make slight changes in the premises for their own convenienience, the effect of which the landlord cannot, without examination, know. If a succeeding tenant is permited to examine the premises, the rule of caveat emptor applies. Bowe v. Hunking. Opinion by Field, J.

NEGLIGENCE-REMOVAL OF SOIL BY LAND OWNER LETTING IN SEA TO NEIGHBOR'S LAND.-A land owner took away gravel from his own land near the sea whereby the sea was let in to his neighbor's land and undermined it. Held, that he was liable to his neighbor for the injury thus done. A person has no right to carry away the gravel or other material of his land if the consequence would be to turn a watercourse or let in the sea so as to inundate or injure the land of his neighbor. Commonwealth v. Alger, 7 Cush. 86. The defendant by his excavations for his own purposes brought the sea upon his land where it would not have been but for the excavations, and as a consequence it has escaped and acted upon the plaintiff's land so as to cause damages, and for these he must be held responsible. Fletcher v. Rylands, L. R., 1 Ex. 265, 279; L. R., 3 H. L. Cas. 330, 339; Wilson v. New Bedford, 108 Mass. 261. While the sea is regarded as a common enemy, and it is a rule that each man may defend himself against its encroachments as best he can, even if thereby it washes against his neighbor's land, the rule has no application to the case at bar. The defendant was not protecting himself against the common enemy; he voluntarily introduced the enemy upon his land and allowed it to escape from there to the plaintiff's injury. A claim that no action can be maintained against defendant at the suit of an individual, but that the remedy is by indictment, held not tenable. Whatever rights the Commonwealth may have in tide waters or the sea shore, it has never attempted, by any legislative acts, to do more than protect navigation by preserving the integrity of the harbor; and if the defendant is liable to indictment, the

BOUNDARY-UPON CHANNEL OF RIVER.-When the channel of a river is named as the boundary between two towns, the line is the thread of the channel. When the line runs "to the road thence by the road," the grant is the center of the road, even though the measurement of distances would extend only to the side of the road. Oxton v. Groves, 68 Me. 371. A grant of land bounded on a highway carries the fee in the highway to the center, unless the terms of the couveyance unequivocally exclude such construction. Low v. Tibbetts, 72 Me. 92. Nothing short of an express intention to exclude the soil of the highway will have such effect. Salter v. Jonas, 10 Vroom, 469; Paul v. Carver, 26 Penn. 223. In case of fresh-water streams, when such stream is the boundary, the deed passes the fee to its center. The words "to the stream, thence up or down the river," in a deed pass a title to the thread of the stream. Rice v. Monroe, 36 Me. 309. The general rule is, that when the river is the boundary the grantee takes usque filum aquæ, unless the river be expressly excluded from the grant by the terms of the deed. Luce v. Carley, 24 Wend. 451. When the river is a boundary, the thread of the stream is the dividing line. When the channel is the boundary, the thread of the channel constitutes the boundary. Cold Spring Iron Works v. Tolland, 4 Cush. 492. Inhabitants of Warren v. Inhabitants of Thomastown. Opinion by Appleton, C. J.

[Decided July 5, 1883.]

MORTGAGE INTEREST AND ASSIGNMENT.-When a mortgage has been assigned and the assignee enters into possession, he cannot claim that interest should be added to the mortgage debt, and that sum constitute a new principal upon which interest is to be cast. Lewis v. Small. Opinion by Appleton, C. J. [Decided June 27, 1883.]

PRESCRIPTION-TO FLOW WATER-WHAT ESSENTIAL TO ACQUIRE.-In order to acquire by prescription a right to flow lands without the payment of damages therefor the land must have been flowed for some portion of each year for twenty consecutive years, doing damage to it to some appreciable extent. It was held in Tinkham v. Arnold, 3 Me. 120, that an original grant cannot be presumed from lapse of time, and prescriptive rights cannot be acquired in the manner set

forth. In Hathorn v. Stinson, 10 Me. 224, 239, the court queries, but does not decide, whether the flow ing of lands for the support of mills for long periods may not under some circumstances afford presumptive evidence, if not of grant, at least of license, so as to bar the claim for damages; but when the same case was again before the court, 12 Me. 183, it was held that such license cannot be presumed unless some injury to the land was caused by the flowing. In Seidensparger v. Spear, 17 Me. 123, 128, the decision in Tinkham v. Arnold seems to have been followed, the court holding that there was no presumptive evidence of a grant "when by law such grant was not necessary and when the conduct of all concerned was explainable on legal ground without such presumption." But at this time, in Massachusetts, the opinion in Williams v. Nelson, 23 Pick. 141, was delivered, opposed to that in Tink*Appearing in 75 Maine Reports.

ham v. Arnold, and holding that the exercise by a mill owner of the right to maintain a dam and flow the lands of others for twenty years without damages paid or claimed was evidence of the right to flow without paying damages and would bar the claim for them. In Nelson v. Butterfield, 21 Me. 220, 227, all these cases were elaborately reviewed, and in some degree reconciled by adopting precisely the rule given. It has been repeatedly affirmed. Wood v. Kelley, 30 Me. 47; Underwood v. North Wayne Scythe Co., 41 id. 291; Mansur v. Blake, 62 id. 38. City of Augusta v. Moulton. Opinion by Symonds, J. [Decided June 27, 1883.]

CONFLICT OF LAW-GUARDIAN'S BOND AND VALIDITY OF-COLLATERAL SECURITY-SATISFACTION OF

BOND.--(1) A bond given in a Probate Court of this State, in conformity with a law of another State, by a guardian in this State of a ward resident here, in order to obtain possession of property of his ward located in the other State, is a valid bond, and an action may be maintained on it for property received in virtue of it. The requirement of such a bond by the law of the other State, and obtaining the money under it, constituted a good and valuable consideration to support the undertaking, and an action for its breach. Merrick v. Trustees of Bank, 8 Gill (Md.), 61; Hammond v. Henssey, 51 N. H. 40; Cook v. Bradley, 7 Conn. 57; Gathwright v. Callaway Co., 10 Mo. 663; Barnes v. Webster, 16 id. 258; Henoch v. Chaney, 61 id. 129. Such a bond as this, given for a lawful purpose, even though not in form is obligatory. United States v. Bradley, 10 Pet. 343. The validity of such a bond is not affected by the fact that it contains a condition not required by the law of this State. Rings v. Gibbs, 26 Wend. 510; Triplet v. Gray, 7 Yerg. 17; Nunn'v. Goodlett, 5 Eng. 89; Pratt v. Wright, 13 Gratt. (Va.) 175; Flint v. Young, 70 Mo. 221. Such a bond is not essentially collateral or auxiliary to the ordinary guardian's bond; the ward may resort to either, certainly to the former when the makers of the latter are insolvent so that resort thereto would be unavailing. Haskell v. Farrar, 56 Mo. 497; State ex rel. Riggs v. Colman, 73 id. 684; State ex rel. v. Steele, 21 Ind. 207; Wood v. Williams, 61 Mo. 63; State v. Drury, 36 id. 281. (2) A condition in such a bond to "account for " the money received in the other State is not satisfied by the guardian charging himself therewith in his settlement, nor by any thing short of payment. State ex rel. Riggs v. Colman, 73 Mo. 684. State of Missouri v. Williams. Opinion by Philips, Comr.

INFANT-NOT LIABLE FOR SERVICES RENDERED.-All the adult heirs at law to a tract of land affected by a will, united in employing attorneys to prosecute a suit to set the will aside, agreeing that in case of success, as compensation for their services, the attorneys should receive one-half of the land. Through the ex

ertions of the attorneys the will was set aside. Held, that a minor heir, although benefitted by the result equally with the others, was not bound either at law or in equity to contribute to the payment of the fee. Bickwell v. Bickwell, 111 Mass. 265; Tupper v. Caldwell, 12 Met. 559; Winsor v. Savage, 9 id. 346. Dillon v. Bowles. Opinion by Ray, J.

MORTGAGE-POWER OF SALE IN DEED OF TRUST NOT REVOKED BY DEATH-SHERIFF AS TRUSTEE OR GRAN

TEE-RECITAL.-A deed of trust given to secure a note provided, among other things. (1) that in case of the absence, death, etc., of the trustee, the sheriff of the

*To appear in 77 Missouri Reports.

county should execute the power of sale conferred upon the trustee. (2) That any statement by "the said trustee" in the deed to be executed by him in pursuance of a sale, as to the non-payment of the note, the advertisement, sale, etc., should be prima facie evidence of the fact. Held (1), that the death of the grantor did not revoke the power of the sheriff to sell. (2) That when the contingency arose in which the sheriff was authorized to act, he became pro hac vice the trustee, and such recitals in a deed executed by him were to be received as prima facie evidence. Citing Gaines v. Allen, 58 Mo. 537; Beatie v. Butler, 21 id. 313; McKnight v. Wimer, 38 id. 133; distinguishing Hunt v. Rousmanier, 8 Wheat. 178. White v. Stephens. Opinion by Hough, C. J.

DAMAGES RECOVERABLE UPON BREACH OF WARRANTY. -The general rule is that for a breach of covenant of seisin and warranty, the measure of damages is the purchase-money with interest. But where the convenantee has had possession and use of the premises he can recover no interest for any period prior to his eviction without proof that he has responded to his evictor for mesne profits, and then only for such period as he shall have so responded, which under our statute of ejectment (R. S. 1879, § 2252), can in no case be longer than five years. Sedgw. on Dam. 176, 347; McGary v. Hastings, 39 Cal. 360; S. C., 2 Am. Rep. 456; Frazier v. Supervisors, 73 Ill. 282; Collins v. Thayer, id. 138; Spring v. Chase, 22 Mo. 510; Lawless v. Collier, 19 id. 485; Rich v. Johnson, 2 Pin. (Wis.) 88; Hartford, etc., Co. v. Miller, 41 Conn. 130; Dickson v. Desire, 23 Mo. 167; Flint v. Steadman, 36 Vt. 211. Hutchins v. Roundtree. Opinion by Philips, Comr.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

ARBITRATION - WITHDRAWAL OF ARBITRATOR.Under a submission authorizing an award by a majority, it is no ground for setting aside an award that one of the arbitrators withdrew after the hearing was concluded, and refused to join in the award. Plummer v. Sanders, 55 N. H. 23; Carpenter v. Wood, 1 Met. 409; Maynard v. Frederick, 7 Cush. 247; Cumberland v. North Yarmouth, 4 Greenl. 459. Dodge v. Brennan. Opinion by Clark, J.

EVIDENCE-IN ACTION FOR FRAUD-OTHER SIMILAR TRANSACTIONS.-As tending to impeach a conveyance on the ground of fraud, it is competent to show that in other transactions about the same time the grantee aided and advised the grantors in preventing their creditors from availing themselves of their legal remedies. Whittier u. Varney, 10 N. H. 291; Lee v. Lamprey, 43 id. 13: Pomeroy v. Bailey, id. 118, 125. Adams v. Kenney. Opiniou by Clark, J.

EMBLEMENTS WHAT ARE NOT GRASS ATTACHMENT. (1) Things which proceed annually of themselves, without the labor of man, though improved by it, are not emblements. (2) Standing grass is not

open to attachment on mesne process or execution. 3 Kent. Com. 401; 4 id. 73; Green v. Armstrong, 1 Den. 550; Cudworth v. Scott, 41 N. H. 456; Penhallow v. Dwight, 7 Mass. 34; Miller v. Baker, 1 Met. 27. Rogers v. Elliott. Opinion by Stanley, J.

PRACTICE-IN EQUITY-DISMISSAL OF BILL AFTER HEARING MERITS-TRUST-FOREIGN ATTACHMENT

ESTOPPEL.—(1) Where, in a bill in equity, there has been a hearing on the merits, and a decree dismissing it, such decree will not ordinarily be without prejudice. Hollister v. Barkley, 11 N. H. 501, 508; King v. Chase, *To appear in 59 New Hampshire Reports.