ALVEY, J. The plaintiff in this case sues as indorsee of what is alleged to be a negotiable promissory note made by the defendant, and the question is whether the instrument sued on is, in legal contemplation, a negotiable instrument or not. The question was raised in the court below by a demurrer to the declaration; and the declaration avers that the defendant, on the 29th of September, 1880, by his promissory note, payable two months after date, promised to pay David C. Avery, or order, $93; payable at the Easton National Bank of Maryland; and if not paid when due, promised and agreed to pay all costs and charges for collecting the same, with interest; and that the said Avery indorsed the said note to the plaintiff, and the same was duly presented when due for payment, and was dishonored, etc. The court below ruled the demurrer good, and entered judgment for the defendant, from which the plaintiff appealed.

A promissory note may, in brief, be defined to be a written promise, not under seal, to pay a certain sum of money unconditionally. At common law such note was not transferable, and by the decision of the courts it was not allowed to acquire, by custom among merchants, the quality of negotiability. Buller v. Cripps, 6 Mod. 29; Clerk v. Martin, 2 Ld. Raym. 757. But by the Stat. 3 and 4 Anne, ch. 9, it was provided “that all notes in writing that shall be made and signed by any person, etc., whereby such person, etc., shall promise to pay to any other person, his, her, or their order, or unto bearer, any sum of money mentioned in such note, shall be taken and construed to be, by virtue thereof, due and payable to any such person, etc., to whom the same is made payable; and also every such note payable to any person, etc., his, her, or their order, shall be assignable or indorsable over, in the same manner as inland bills of exchange are or may be, according to the custom of merchants." The statute further provides that actions may be maintained on such notes by the payees, or the indorsees thereof, "in like manner as in cases of inland bills of exchange." By the statute therefore such promissory notes are made commercial instruments, and when they are made payable to order or to bearer, they are indorsable and transferable as commercial paper, and are placed upon the same footing of inland bills of exchange. Bowie v. Duvall, 1 G. & J. 175.

It is true, no particular form of words is essential to constitute a valid promissory note or bill of exchange. But there are certain essential elements that every valid promissory note must contain, and the principal among these is a promise to pay a certain sum of money unconditionally. If the note be wanting in this respect, while it may be a valid specific agreement, and assignable under the provisions of the Code, it cannot be treated as a valid, negotiable promissory note to be passed by indorsement. It is of great importance to the use and office of such commercial negotiable instruments as bills and notes, that they should be kept free of all conditions and singular and unusual stipulations, such as we find on the face of the note in question, whereby their negotiability might be seriously clogged or impeded. It would appear to be the requirement of the statute, as well as of the long established custom of merchants, that the note to be negotiable, should be certain and unconditional, and not be trammelled by conditions or contingencies of any kind. In the note declared on in this case, the stipulation for the payment of all costs and charges incurred in the collection of the note, introduces an element of uncertainty quite inconsistent with the degree of certainty required as to the sum to be paid. The costs and charges of collection could never, with accuracy, be known until the collection had been made complete; and hence by coupling the certain sum

mentioned in the note with that which is uncertain, and treating the note as an entire contract, it is for an unascertained sum, and therefore uncertain on its face as to the amount promised to be paid. This as we have seen, is not allowable in notes intended to be negotiable.

Notes of similar import to that declared on in this case have been under consideration in several of the State courts of the country; but it would appear that the decided preponderance of authority is against holding such notes to be negotiable.

In Woods v. North, 84 Penn. St. 407, the note sued on contained a promise to pay to the order of the payee a certain sum of money, "and five per cent collection fee, if not paid when due;" and in that case, it was held that the note was not negotiable, and that the indorser thereon was not liable. That was greatly more certain as to the sum to be paid than the promise in this case; for there the rate of percentage for collection was fixed. The same doctrine is, in express terms, affirmed, in the recent case of Johnson v. Speer, 92 Penn. St. 227.

In the case of First National Bank of New Windsor v. Bynum, 84 N. C. 24, the same principle was maintained, and the case of Woods v. North, 84 Penn. St. 407, applied and affirmed. And in the case of the First National Bank of Trenton v. Gaz, 60 Mo. 33, where the note, in addition to a sum certain promised to be paid, contained a stipulation to pay ten per cent as attorney's fee, if the note was not paid at maturity and was placed in the hands of an attorney for collection, it was held that such note was not a negotiable instrument. See also Morgan v. Edwards, 53 Wis. 599, and Mahoney v. Fitzpatrick, 133 Mass. 151. We might refer to several other cases holding the same proposition, but we deem it unnecessary.

In some few States different views have prevailed, and notes of similar import and character to that declared on in this case have been held to be negotiable, notwithstanding the stipulation to pay all costs and charges of collection; as in the cases of Stoneman v. Pyle, 35 Ind. 103; Wyant v. Pottorf, 87 id. 512; Sperry v. Horr, 32 Iowa, 184, and Seaton v. Scoville, 18 Kans. 433. We cannot however adopt the reasoning of those

cases.

In two or three States the stipulation in the note for the payment of costs and expenses of collection, on default of payment, has been treated as a stipulated penalty, and as such has been declared void; as in the cases of Bullock v. Taylor, 39 Mich. 137, and Witherspoon v. Musselman, 14 Bush, 214. But to declare such stipulation void, in order to maintain the negotiable character of the note, is certainly a strong thing for the court to do, unless it clearly contravened some established principle of law. Parties have the right to make their contracts in what form they please, provided they consist with the law of the land; and it is the duty of the courts so to construe them, if possible, as to maintain them in their integrity and entirety. While the instrument under consideration may not be a valid negotiable promissory note, it does not, by any means, follow that it is not a valid contract of another description.

In the case of Smith v. Nightingale, 2 Stark. N. P. 375, by the instrument declared on the party promised to pay a sum certain, "and also all other sums that should be found to be due;" and it was held that the instrument could not be declared on as a promissory note, even for the sum certain; and Lord Ellenborough said: "The instrument is too indefinite to be considered as a promissory note, for it contains a promise to pay interest for a sum not specified, and not otherwise ascertained than by reference to the defendant's books; and since the whole constitutes one entire promise, it cannot be divided into parts." Byles

on Bills, 70. And to the same effect is the case of Ayrez v. Fearnsides, 4 M. & W. 168. Here all the terms of the instrument have been treated as an entire promise, and so declared on by the plaintiff, suing as indorses of the note.

The judgment of the court below must be affirmed; but as the plaintiff may desire to amend, and to declare on the special agreement as assignee thereof, we shall remand the cause to that end. Judgment affirmed.

UNITED STATES SUPREME COURT ABSTRACT.

JANUARY 7, 1884.

ATTORNEY-AGREEMENT WITH, AS TO COMPENSATION-CAPTURE BY CRUISER ALABAMA. —An agreement made a fortnight before the treaty of Washington of 1871, and by which the owners of a ship and cargo taken by the armed rebel cruiser, the Florida, employed a person, whether an attorney at law or not, to use his best efforts to collect their "claim arising out of the capture," and authorized him to employ such attorneys as he might think fit to prosecute it, and promised to pay him "a compensation equal to twenty-five per cent of whatever sum shall be collected on the said claim," applies to a sum awarded to them by the court of commissioners of Alabama claims, established by the act of June 23, 1874, chap. 459; and is not affected by section 18 of that act, providing that that court should allow, out of the amount awarded ou any claim, reasonable compensation to the counsellor and attorney for the claimant, and issue a warrant therefor, and that all other liens or assignments, either absolute or conditional, for past or future services about any claim, made or to be made before judgment in that court, should be void. Comegys v. Vasse, 1 Pet. 193; Phelps v. McDonald, 99 U. S. 298; Leonard v. Nye, 125 Mass. 455. Bachman v. Lawson. Opinion by Gray, J.

FEDERAL QUESTION-WHETHER ACTS OF CORPORATION ARE ULTRA VIRES, NOT.-A suit to obtain an injunction against a corporation to restrain the performance of an act on the ground that it is not within its charter powers brought in a State court presents no Federal question that can be reviewed in the Federal Supreme Court. "Certainly," as was said in Brown v. Colorado, 106 U. S. 97, "if the judgment of the courts of the States are to be reviewed here on such," that is to say, Federal, "questions, it should only be when it appears unmistakably that the court either knew or ought to have known, that such a question was involved in the decision to be made." Susquehanna Boom Co. v. West Branch Boom Co. Opinion by Waite, C. J.

REMOVAL OF CAUSE-SUIT TO SET ASIDE WILLRESIDENCE.—A suit to set aside a will brought by a daughter, where the will bequeathed to executors a specified sum in trust, cannot be removed to the Federal court where the daughter and executors are citizens of the same State as plaintiff, and are defendants in the suit though the beneficiaries under the will are citizens of another State. That a suit cannot be removed under the third sub-division of section 639, of the act of 1875, unless all the parties on one side of the controversy are citizens of different States from those on the other was settled in the cases of Sewing Machine Companies, 18 Wall. 587, and Vannevar v. Bryant, 21 id. 43, and the executors were necessary parties. American Bible Societyv. Price. Opinion by Waite, C. J.

RIPARIAN RIGHTS-CONVEYANCE OF STREET ALONG WATER SIDE TO UNITED STATES.-A conveyance of a street "for the use of the United States forever," held to vest an absolute unconditional fee simple in the United States, and where the street ran along the water side, such a conveyance would vest in the United States the rights of a riparian proprietor. A riparian proprietor, in the language of Miller, J., in Yates v. Milwaukee, 10 Wall. 497-504, is one "whose land is bounded by a navigable stream;" and among the rights he is entitled to as such, are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the public, whatever those may be." Webber v. Harbor Commissioners, 18 Wall. 57. In Massachusetts, where it is held that by virtue of the ordinance of 1647, if the lands be described as bounded by the sea, the grantee will hold the lands to low-water mark, So that he does not hold more than one hundred rods below high-water mark. Storer v. Freeman, 6 Mass. 435; Commonwealth v. Charlestown, 1 Pick. 180; yet it is also held, that where an ancient location or grant by the proprietors of a township bounded the land granted by a way, which way adjoined the seashore, the ordinance did not pass the flats on the other side of the way to the grantee. Codman v. Winslow, 10 Mass. 146. And in Maine it was decided that a grantee, bounded by high-water mark, is not a riparian proprietor nor within the ordinance. Lapish v. Bangor, 8 Greenl. 85. In New Jersey it is spoken of as "the right of an owner of lands upon tide waters to maintain his adjacency to it and to profit by this advan tage." Stevenson v. Paterson, etc., R. Co., 34 N. J. Law, 532-556, and as a right "in the riparian owner to preserve and improve the connection of his property with the navigable water." Keyport case, 3 C. E. Green, 516. The riparian right "is the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except upon his own terms." Rowan's Exrs. v. Portland, 8 B. Monr. 232. It is "a form of enjoyment of the land and of the river in connection with the land." Lyon v. Fishmonger's Co., L. R., 1 App. Cas. 662, 672. "It seems to us clear," said Pollock, C. B., in Stockport Water Works Co. v. Potter, 3 Hurl & Colt. 300-326, "that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away a portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights." No inference in such a case arises against the riparian right of the grantee because the land has been granted for a street. On the contrary, as was said in Barney v. Keokuk, 94 U. S. 324-340, a street bordering on the river, as this did, according to the plan of the town adopted by the decree of partition, must be regarded as intended to be used for the purposes of access to the river and the usual accomodations of navigation in such a connection;" that is as appears by the decision in that case, to be used by the public for such purposes, as well as a highway, in contradistinction to the exclusive right of one claiming riparian rights as owner of the soil. Godfrey v. City of Alton, 12 Ill. 29. "If the city," said this court in New Orleans v. United States, 10 Pet. 663-717, "can claim the original dedication to the river it has all the rights and privileges of a riparian proprietor." And it is immaterial that the ground laid out as a street was not in a condition to be used as a street, or that much labor was required to place it in that situation, or that in fact it had not been used as such for a long period of time. Barclay v. Howell's Lessee, 6

ADMIRALTY-ACTION BY ADMINISTRATOR FOR NEGLIGENCE NOT COGNIZABLE IN. -A State statute which gives to the administrator of one who has been killed by an accident a right of action for damages for the benefit of "husband, wife, parent, and child" of the deceased, against the person or corporation responsible for the accident, thereby creates a right which, though the killing be a marine tort, is not maritime, and a libel in rem brought by the administrator against a ship for the damages cannot be maintained. A statute which gives a right of action in personam does not thereby give a right of action in rem in a similar case in admiralty. The States of this Union cannot create maritime rights, or rights of action in admiralty; nor can they endow with a maritime right one who is not entitled to that right by the law maritime. U. S. Dist. Ct., E. D. Virginia, January, 1884. The Manhassett. Opinion by Hughes, J.

PARTNERSHIP-USE OF NAME OF ONE NOT PARTNER. -A partnership which is suffered by any one to use his name as a part of the firm style and title, though it may acquire by such license an exclusive right to the use of the name so long as the partnership continues intact, cannot, upon its dissolution, confer the same privilege upon its successor. Acquiescence by any person in the wrongful use of his name will not estop him from asserting his rights in equity, unless he has notice during such acquiescence of the facts rendering the use of his name wrongful. U. S. Cir. Ct., Indiana, Dec. 29, 1883. Horton Manufacturing Co. v. Horton Manufacturing Co. Opinion by Woods, J.

REMOVAL OF CAUSE-SUIT INSTITUTED BY STATE.A suit instituted by a State in one of its own courts against a citizen of another State is not removable on the ground of a diversity of citizenship of the parties. Such a suit is not a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment or Revised Statute, section 641, and removal on that ground. U. S. Cir. Ct., M.D. Alabama, July, 1883. State of Alabama v. Wolffe. Opinion by Bruce, J.

TELEGRAPH-NOTICE LIMITING LIABILITY AS TO MESSAGE. The printed conditions on the half-rate message blanks of the Western Union Telegraph Company are reasonable and valid, to the extent of protecting the company from damages for any error or mistake occurring in the transmission of a half-rate message, unless it is shown affirmatively that such error or mistake was the result of gross negligence or fraud; and mere proof of the fact that there is a mistake of a word or a figure in the message as delivered is not in itself sufficient evidence of negligence or fraud to render the company liable beyond the amount stipulated for in the contract of the parties. Western Union Tel. Co. v Neill, 57 Tex. 283; S. C., 13 Cent. Law J. 475; Aikin v. Western Union Tel. Co., 5 S. C. 358; Pinckney v. Western Union Tel. Co., Sup. Ct. S. C. MS. Op. Nov. Term, 1882; Ellis v. Amer. Tel. Co., 13 Allen, 226; Grinnell v. Western Union Tel. Co., 113 Mass. 299; Schwartz v. Atlantic & Pacific Tel. Co., 18 *Appearing in 18 Federal Reporter.

Hun, 157; Becker v. Western Union Tel. Co., 11 Neb. 87; S. C., 23 Alb. Law J. 277; Sweatland v. Ill. & M. Tel. Co., 27 Iowa, 455; White v. Western Union Tel Co., 14 Fed. Rep. 710. U. S. Cir. Ct., E. D. Arkansas, Oct., 1883. Jones v. Western Union Telegraph Co. Opinion by Caldwell, J.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
SEPTEMBER, 1883.

CORPORATION-MAY RECOVER FROM ONE PROCURING TRANSFER OF SHARES ON FORGED CERTIFICATE—

BROKER.-A. owned five shares of stock in the plaintiff railroad company. Defendants purchased the shares from a broker who was in possession of the certificate, and a forged signature to a power of attorney parporting to authorize their transfer. On the faith of this power of attorney plaintiff transferred the shares to defendants and issued to them a certificate. Subsequently plaintiff transferred the shares to a purchaser from defendants at their request, and issued to the purchaser a new certificate. Plaintiff was afterward compelled to procure for A. five shares of stock and to pay her accrued dividends. Held, that plaintiff was entitled to recover of defendant the value of the stock and dividends. A. never parted with her property in the shares, and therefore the plaintiff was obliged to procure shares for her and also pay her the dividends Pratt v. Taunton Copper Co., 123 Mass. 110. It is settled that the corporation has no remedy against the person who purchased of the defendants, because as to him the corporation is estopped to deny its certificate issued to the defendants and transferred to the purchaser. Machinists' National Bank v. Field, 126 Mass. 345. It is familiar law that in a sale of chattels a warranty of title is implied unless the circumstances are such as to give rise to a contrary presumption. Shattuck v. Green, 104 Mass. 42. The possession and offer to sell a chattel is held equivalent to an affirmation that the seller has title to it. This is founded upon the reason that men naturally understand that a seller who offers a chattel for sale owns it. The same rule has been extended to the case of a sale of a promissory note. The seller impliedly warrants that the previous signatures are genuine. Cabot Bank v. Merten, 4 Gray, 156; Merriam v. Walcott, 3 Allen, 258. So it has been held that if one, honestly believing himself to be authorized, acts as agent for another and procures money or goods upon the credit of his supposed principal, and it turns out that he is not authorized, he is liable for the value of the money or goods. Jefts v. York, 10 Cush. 392. In numerous other cases the remedy is said to be an action on the case for falsely assuming to be an agent. Bartlett v. Tucker, 104 Mass 336; May v. Western Union Tel. Co., 112 id. 90. See also Simm v. Anglo American Tube Co., L. R., 5 Q. B. D. 188; Hambleton v. Central Ohio R. Co., 44 Md. 551; Brown v. Howard Ins. Co., 42 id. 384. Boston & Albany Railroad Co. v. Richardson. Opinion by Morton, C. J.

DEFINITION-" HEIRS AT LAW"-TRUST.-A deed in trust of personal property directed the trustees to pay over the income during life to beneficiaries named and upon their death to divide between H. and others. The deed directed that the share of H., if he was then deceased, go "to his heirs at law." The trustees were authorized to invest the fund in real estate as well as personal property. Held, that the words "heirs at law were to be taken in their literal sense. It is true that Sweet v. Dutton, 109 Mass. 589, can only be reconciled with this construction by laying hold of

minute differences which might lead to the conclusion that in that case the settlor meant simply that if she failed to make a will the law should take its course. Viewed as authority however, Sweet v. Dutton, it should be noticed, relied largely on Mace v. Cushman, 43 Me. 250, which had been overruled in the State where it was decided. Lord v. Bourne, 63 Me. 368, stands almost, if not entirely, alone (see Richardson v. Martin, 55 N. H. 45, 47), and is hardly to be reconciled with the generally accepted rules upon the subject. See also Clark v. Cord is, 4 Allen, 466. Merrill v. Preston. Opinion by Holmes, J.

MASTER AND SERVANT-INEXPERIENCED WORKMAN USING CIRCULAR SAW-DUTY OF MASTER.--Where a master employed an inexperienced workman to use a circular saw, and the workman was injured, a verdict against the master for the injury was upheld on the ground that there was no guard upon the machine, and that it was the master's duty to notify the servant of the danger of using such machine, and his direction to a foreman to give the required notice not complied with was not enough. The duty resting upon the master is not merely one of reasonable care and dili gence to give a proper notice; but that he is responsible in case the servant suffers through a want of receiving a proper notice of the risks to which he is exposed. It is more reasonable to hold, that where the danger is known to the master and unknown to the servant, the master should be held to see to it that the servant, when put upon work which exposes him to the danger, should be informed of it. Where the servant is as well acquainted as the master with the dangerous nature of the machinery or instrument used, or of the service in which he is engaged, he cannot recover. But where the master employs a servant in the use of machinery which he knows, but the servant does not know, to be attended with peculiar danger, he must be held responsible for an injury which occurs in consequence of his failure to see to it that a proper notice is given. Coombs v. New Bedford Cordage Co., 102 Mass. 583; Sullivan v. India Manufacturing Co., 113 id. 399. Wheeler v. Wason Manufacturing Co. Opinion by C. Allen, J.

NEGLIGENCE-INJURY TO TRAVELLER AT RAILROAD CROSSING OF PRIVATE WAY USED BY PUBLIC-CHILD FIVE YEARS OLD.-In an action for injury from being run into by a train upon defendant's railway, it appeared that the plaintiff was a boy less than five years of age, and was accompanied by his brother, who was

nearly nine years of age. The place where the injury

occurred was not a public highway, but was a way open for the public to use; and the plaintiff was lawfully there. Held, that it was for the jury to say whether the parents of plaintiff were negligent in allowing him to be there attended as he was (Mulligan v. Curtis, 100 Mass. 512; Ihl v. Forty-Second St. R. Co., 47 N. Y. 317), whether the brother in whose case plaintiff was exercised due care, and whether plaintiff who was walking backward at the time, did so or exercised the care ordinarily shown by children of their ages. Gaynor v. Old Colony R. Co., 100 Mass. 208; Smith v. Westfield National Bank, 99 id. 605; Mayo v. Boston & Maine R. Co., 104 id. 137; Lane v. Atlantic Works, 111 id. 136; Treat v. Boston & Lowell R. Co.,

131 id. 371; Fleck v. Union R. Co., 134 id. 90. O'Conner v. Boston & Lowell Railroad Co. Opinion by W. Allen, J

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

AGENCY NOTICE OF LIMIT OF AUTHORITY OF — TOWN LIQUOR AGENT.-In an action against a town to *To appear in 59 New Hampshire Reports.

recover the price of liquors sold to an agent of the town for the sale of spirituous liquor, the record required by law to be made of the rules and regulations prescribed for the observance of such agent is competent evidence upon the question of the authority of the agent to purchase liquors on the credit of the town; and a person selling liquor to such agent is charged with notice of any limitation of the agent's authority shown by such record. Story on Agency, 252-260; 1 Wait Actions and Defenses, 233; Thacher v. Pray, 113 Mass. 291; Thorndike v. Godfrey, 3 Greenl. 429; Smith v. Kidd, 68 N. Y. 130; Busby v. Ins. Co., 40 Md. 572. Sprague v. Cornish. Opinion by Clark, J.

BANKRUPTCY-CONFLICT OF LAW.-The validity of a discharge under the United States Bankrupt Act of 1867 (U. S. Rev. Stat., § 5120), cannot be contested in a State court. Corey v. Ripley, 57 Me. 69; Ocean Nat. Bank v. Olcott, 46 N. Y. 12; Way v. Howe, 108 Mass. 502; Hunt v. Taylor, id. 508; Burpee v. Sparhawk, id. 111; Smith v. Ramsey, 27 Ohio, 339. Marshall v. Sumner. Opinion by Foster, J.

LIBEL-NEWSPAPER LIABLE FOR, THOUGH PUBLISHED AS NEWS.-The business of publishing a newspaper, is not of itself a lawful occasion for making in such paper, a false charge of crime. Professional publishers of news are not exempt, as a privileged class, from the consequences of damage done by their false news. Their communications are not privileged merely because made in a public journal. They have the same right to give information that others have, and no more. Smart v. Blanchard, 42 N. H. 137, 151: Palmer v. Concord, 48 id. 211, 216; Sheckell v. Jackson, 10 Cush. 25. Barnes v. Campbell. Opinion by Smith, J. PROBATE LAW-PROBATE OF WILL NOT IMPEACHACOLLATERALLY.-The validity of a will, duly proved and allowed in the Probate Court, cannot by a collateral proceeding be attacked on the ground that its execution was fraudulently proved. Gordon v. Gordon, 55 N. H. 399: Lyme v. Allen, 51 id. 242; Railroad v. Railroad, 57 id. 200; Poplin v. Hawke, 8 id. 124. Spofford v. Smith. Opinion by Bingham, J. SUNDAY-COMPENSATION FOR LABOR ON NOT RECOVERABLE.-An action cannot be maintained to recover compensation for labor and services, not of necessity or mercy, performed on Saturday, Sunday and Monday, under an entire contract made in contemplation of part performance on Sunday. Williams v.

BLE

Hastings. Opinion by Clark, J.

NEW JERSEY COURT OF ERRORS AND SU-
PREME COURT.
JUNE TERM, 1883.*

CORPORATION-LIABILITY OF SUBSCRIBER FOR STOCK OF RAILROAD.-Proof that certain of the promoters of a railroad scheme guaranteed that the route would pass near to a certain tract of land, accompanied with proof of a deviation from such line, will not be sufficient to discharge a subscriber who had subscribed in reliance on such statement, there being no evidence tending to show any fraudulent intent. Braddock v. Philadelphia, Marltoa & Medford Railroad Co. Opinion by Beasley, C. J. (Errors.)

PUBLIC OFFICE-POWER OF COUNTY BOARD AS TO.An outgoing board of chosen freeholders cannot fill an office that will not become vacant during the term of their own official life. Where it appears that an intrusion has been consciously wrongful, a part of the judgment will be a fine or a punishment. State of New

*To appear in 16 Vroom's (45 N. J. Law) Reports.

Jersey v. Mehan. Opinion by Beasley, C. J. (Supreme.)

SURETYSHIP-BANK OFFICER'S BOND-DISCHARGECOVENANT-JOINT OBLIGORS.—(1) A surety upon the bond of a cashier of a bank is not discharged by the mere fact that the cashier was, at the time the bond was given, a defaulter. Nor will the neglect of the bank to ascertain that fact discharge him. The books of the bank, and the statements of the bank sent to the comptroller of the currency under the National Banking Law, are not admissible in evidence to prove the negligence of the bank officers, nor as tending to establish the fact of knowledge on the part of the bank of the existence of the defalcation. Tapley v. Martin, 116 Mass. 275; Wayne v. Commonwealth National Bank, 52 Penn. St. 343; Brandt on Suretyship, § 367. (2) A covenant given to one of several obligors, which provides that if suit should be brought against him the instrument should become a good bar thereto, and operate as an absolute release and acquittance of the bond as to him, and which declared that it was not intended thereby to release or discharge the other sureties, is a covenant not to sue, and not a release. Dean v. Newhall, 8 T. R. 168; Thompson v. Lack, 3 M., G. & S. 540; Crane v. Alling, 3 Green, 423. Bowen v. Mount Holly National Bank. Opinion by Runyon, C. (Errors.)

MINNESOTA SUPREME COURT ABSTRACT.

EVIDENCE--PAROL EXPLAINING INTENTION OF SEALED

INSTRUMENT

DAMAGES IN ACTION FOR DECEIT.

(1) The general principle is that parol evidence is admissible to show that notwithstanding the delivery of an instrument not under seal, the intention of the parties was that it should not become operative as a contract except upon the happening of a future contingent event. Pym v. Campbell, 6 El. & Bl. 370, and Wallis v. Littell, 11 C. B. (N. S.) 369; Westeman v. Krumweide, 15 N. W. Rep. 255. (2) In an action for damages where the defendant had falsely assumed authority to sell and convey property,held that the measure of damages was the difference in value between what plaintiffs would have got if the assumed authority had existed, and what they did get. If the assumed authority had in fact existed, plaintiffs would have got the right to acquire title upon payment of the price, whereas in the absence of the authority, they got no right to the property at all. Their loss was the difference between the value of the price which they agreed to pay, and the market value of the property at the time when the agreement was made. The rule entitling plaintiffs to the loss of bargain, when authority to sell has been falsely assumed, is supported by Spedding v. Nevell, L. R., 4 C. P. 212; Taylor v. Bradley, 39 N. Y. 129. Skaarass v. Finnegan. Opinion by Berry, J.

[Decided July 17, 1883.]

MASTER AND SERVANT-LIABILITY OF MASTER FOR INJURY FROM DEFECTIVE MACHINERY-KNOWLEDGE OF SERVANT.-If a servant before he enters a service, knows or afterward discovers that the instrumentalities furnished for his use are defective, and understands, or by exercise of ordinary observation ought to understand the risks to which he is thereby exposed, and if notwithstanding such knowledge, he, without objection, and without any promise on the part of the employer that such defects will be remedied, enters or continues in such service, he cannot recover for injuries resulting therefrom, but will be deemed to have assumed all the risks of the employment thus known. But it is now well settled that if a servant who has knowledge of defects in the instru

mentalities furnished for his use gives notice thereof to his employer, who thereupon promises that they shall be remedied, the servant may recover for an injury caused thereby, at least where the master requested him to continue in the service, and the injury occurred within the time at which the defects were promised to be remedied, and where the instrumentality, although defective, was not so imminently and immediately dangerous that a man of ordinary prudence would have refused longer to use it. Under such circumstances his subsequent use of the defective instrument would not necessarily, or as a matter of law, make the servant guilty of contributory negligence, but it would be a question for the jury, whether in continuing its use after he knew of the defect, he was in the exercise of ordinary care. Clarke v. Holmes, 7 Hurl. & N. 948; Hough v. Railway Co., 100 U. S. 213; Patterson v. Railroad Co., 76 Peun. St. 389; Laning v. Railroad Co., 49 N. Y. 531; Snow v. Railroad Co., 8 Allen, 441; Holmes v. Worthington, 2 Foster & F. 533. See also Ford v. Railroad Co., 110 Mass. 240; Greenleaf v. Railroad Co., 29 Iowa, 14; Kroy v. Railroad Co., 32 id. 357. Greene v. Minneapolis & St. Louis Railway Co. Opinion by Mitchell, J. [Decided Nov. 24, 1883.]

RECENT ENGLISH DECISIONS.

RESERVATION OF MINERALS IN LEASE

CUSTOM FLINTS NOT MINERALS.-The appellant let to the respondent a farm in a chalk district, reserving by the agreement "all mines and minerals." In the course of husbandry the tenant turned up flint stones by the plough, which he collected off the land and sold. Evidence was given that it was necessary that the stones should be removed from the land in the course of good husbandry, and the tenant alleged a local custom that they might be sold by the tenants. The landlord applied for an injunction to restrain him. Held (affirming the judgment of the court below), that assuming the custom to be proved, it was not unreasonable, and that the reservation in the lease was not sufficient to exclude it. House of Lords, June 15, 1883. Tucker v. Linger. Opinions by Lords O'Heagan, Blackburn, and Fitzgerald. (49 L. T. Rep. [N. S.] 373.)

SPECIFIC PERFORMANCE - MISREPRESENTATION DEFEATING-LEASE.-The plaintiffs advertised for sale by auction a hotel, stated in the particulars to be held by a "most desirable tenant." The defendants sent their secretary down to inspect the property and report thereon. The secretary reported very unfavorably, stating that the tenant could scareely pay the rent (4001), rates, and taxes. The defendants however relying on the statements in the particulars, authorized the secretary to attend the sale and to bid up to 5,000. The property was bought in at the sale, and the secretary purchased it by private contract for 4,700. It appeared subsequently that the quarter's rent previous to the sale had not been paid; the previous quarter had been paid by installments, and six weeks after the sale the tenant filed his pétition. It appeared however that the hotel business was as good during the last year as previously, and that the month of the tenant's failure was the best he had had. The plaintiffs brought an action for specific performance, relying (in answer to the defense and counter-claim for rescission on the ground of misrepresentation) on the fact that the defendants had made their own inquiries. Held, that the statement that the property was held by a "most desirable tenant" could not be treated as "simplex commendatio," and that the defendants, having relied thereon, were entitled to rescission of the contract, on the authority of Redgrave v. Hurd, 45 L. T.