control of an editorial column, reserving no supervision, he was practically authorized by them to write and publish therein any article he thought proper. The very purpose of his employment was to collect information and write articles for publication. If they imposed such duties upon him, and gave him such powers, limited only by his discretion, they are liable for injuries resulting from an act of his, clearly incident to the performance of his duties, in the scope of his employment. He stood in their place. If the libel was written under the authority of his employment, and in furtherance of their business, they are responsible whether the wrong resulted from his mere negligence, or from a wanton and reckless purpose to accomplish the business in an unlawful manner. Howe v. Newmarch, 12 Allen, 49; Ramsden v. Boston & Albany R. Co., 104 Mass. 117; Hawes v. Knowles, 114 id. 518. Or from his willfulness. Wood Mast. and Serv. 576, 583. If Palmer were still living he might be sued jointly with them for this libel, or he and they might be sued separately. Odgers Libel and Slander, 157, 294. Every one in any way connected in the publication of a libel is equally responsible for all the damages which flow from that publication, id. 328.

It is true it has been held that express malice in an employee who has written a libel, cannot be invoked to swell the damages against the employer, if he was ignorant of the publication and not negligent. Detroit Post Co. v. McArthur, 16 Mich. 447; Scripps v. Reilly, 38 id. 10; Robertson v. Wylde, 2 Moo. & Roby, 101. It was however held in Goddard v. Grand Trunk R. Co., 57 Me 202, that whenever exemplary damages would be recoverable, if the act had been done by the master himself, they are equally recoverable when the act is done by his servant. So in Wood Mast. and Serv., § 33, it is said: "In many instances it has been held not only that the master is liable for the wanton and malicious acts of his servant in the execution of the authority given him by the master, but also that in all such cases the wantonness and malice may be shown to enhance the damages," citing Hawes v. Knowles, supra. This conclusion flows logically from the ground on which the liability of the master rests. If he so authorized the act that he commits it through the agency of another, he cannot claim exemption from any of the legal consequences flowing from the act.

If this rule of law is applicable to any employer, we are unable to see why it shall not apply to the proprietor of a newspaper, who employs others to write for its columns. The proprietors do not always reside in the city in which the paper is published. They may be in foreign countries much of their time; they direct as to the general course to be pursued, but do not restrict the writers as to the specific means by which the desired end shall be reached. If the proprietors are asked to give the name of the author of any article, and they refuse to do so, a person aggrieved, as a general rule, has no means of ascertaining the name of the writer. If they are not held responsible for what they cause to be written and published, every person connected therewith may escape those punitive damages which the law frequently imposes. As was said in Barr v. Moore, 6 Norris, 385. "The liberty of the press should at all times be justly guarded and protected; but so should the reputation of an individual, against calumny. The right of each is too valuable to be encroached on by the other."

The defendants are charged with having composed, as well as having published the libellous article. It follows that evidence was admissible to prove, for the purpose of swelling the damages, the careless, reckless, or wanton conduct of the employee in writing the article, in execution of authority given him by the de fendants. Under their plea of not guilty the defendants may prove in mitigation of damages the facts and

circumstances which induced the writer to erroneously make the charge, provided such facts and circumstances do not tend to prove the truth of the charge made.

It follows from reasons already given, the learned judge erred in charging, substantially, as matter of law, that if the defendants had no personal knowledge of the article before it was published, and afterward in good faith did what was reasonable to make amends and reparation, it was not a case for punitive damages. If the facts were found as stated they were for the jury to consider in mitigation of damages; but they should not be considered alone, as controlling such damages; they should be considered in connection with all the other evidence submitted to the jury justly tending to enhance the damages.

We discover no error in the third and fourth assignments to correct. The language of the article did not expressly charge any fraudulent or corrupt conduct or motives. In the declaration the plaintiff put his construction on the meaning of the language used; the learned judge charged, if the jury found the meaning to be as there averred, it was libellous.

The plaintiff has no just cause of complaint with this answer; besides the jury found the language to be libellous. There is no merit in the fifth assign

ment.

Judgment reversed, and a venire facias de novo awarded.

CONTRACTS OF INFANTS.

NEW HAMPSHIRE SUPREME COURT.

BARTLETT V. BAILEY.*

A person seeking to avoid his contract on the ground of infancy, must account for what he has received under it by restoring or paying the value of whatever remains in specie within his control, and allowing for the benefit derived from whatever cannot be restored in specie. SSUMPSIT, to recover the price of milk sold and delivered to the defendant, who was a minor engaged in the milk business. The milk purchased of the plaintiff was sold by the defendant to his customers. The defendant pleaded infancy.

Andrews, for plaintiff.

Osgood, for defendant.

CLARK, J. In Heath v. Stevens, 48 N.H. 251,252, Perley, C. J., said: "It is now extremely well settled, that if an infant would rescind his voidable contract, and recover back what he has paid under it, or compensation for what he has done under it, he must first restore the thing that he received under the contract, if it remains in specie, and within his control; or if not, must account for the value of it. But if what he has received has been consumed, or for any other cause cannot be returned in specie, he may recover for what he paid or did under the contract by deducting what he received, or the value of it, from the amount that he paid, or from the value of the services which he

rendered." The principle thus declared to be firmly established is this, that a person seeking to avoid his contract on the ground of infancy must account for what he has received under it by restoring or paying the value of whatever remains in specie within his control, and allowing for the benefit derived from whatever cannot be restored in specie. This doctrine has been repeatedly recognized in actions brought to recover what has been paid, or compensation for what has been done, under contracts made by infants. No reason exists why it is not equally applicable to cases where infancy is set up as a defense. Whether an in*To appear in 59 New Hampshire Reports,

fant is plaintiff or defendant in an action cannot affect his legal rights as to his contracts. In either case, the law affords him ample protection by making the benefit received by him the measure of his legal liability. This rule was declared, and the reasons sustaining it fully stated, in the recent case of Hall v. Butterfield, 59 N. H. 354. Upon the authority of that case, the plaintiff is entitled to recover of the defendant the value of the benefit derived by him from the purchase of the milk of the plaintiff. Case discharged.

MEANING OF WORD "HEIRS” IN WILL.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, NOV. 2, 1883.

KEAY V. BOULTON.

A testator gave all his real and personal property to his children" or their heirs." Held, that the word "heirs" should be construed to mean the real representatives as regarded the real estate, and the next of kin according to the statutes of distribution as regarded the personal estate.

ACTION for the construction of the will of John

Keay, deceased, and for consequent relief. The will contained the following provisions;

"I give, devise, and bequeath unto my wife Elizabeth Keay all the property of which I may die possessed, real or personal, upon trust to use and enjoy all such parts thereof as shall yield income during the term of her natural life, and after the decease of my said wife I request that the whole of my property be as equally divided as possible among all my children by my said wife, or such of them as may be then surviving, or their heirs. I also constitute, appoint, and ordain my said wife sole executrix to this my last will and testament."

The testator died in 1866, and his widow Elizabeth Keay died on the 26th of June, 1882.

The testator had six children by his wife, five of whom attained the age of twenty-one years. The other child died in the testator's lifetime.

The testator's heir at law and customary heir was his eldest son, John Keay.

Two of the testator's daughters had married in his lifetime, and both of them had predeceased the testator's widow. Neither of those daughters had made any settlement or testamentary disposition of her property. Each of them left a family of children.

The testator, at the time of his death, was possessed of certain freehold and copyhold property, and was entitled to certain moneys payable by railway companies for lands taken under compulsory powers. He had, in addition, certain chattels and other personal property.

The questions which now came before the court for decision were, whether the "heirs," whatever the meaning of that expression, of the daughters who had died in their mother's lifetime, were entitled to share in the property with the three children of the testator who had survived their mother; and whether the word "heirs" must be construed strictly, or whether it designated the personal representatives as far as concerned the personal property.

PIERSON, J. (After reading the will and stating the facts.) The first contention was, that the three children of the testator who survived the widow take the whole of the property equally between them. I have already decided that that is not the true construction of the gift, but the gift is to be read as if the words had been "among all my children or such of them as may be then surviving, and the heirs of such of them as may be then dead," and upon further consideration I see no reason to alter that decision. The next question is, what is the meaning of the word "heirs,'

"the

gift including both real and personal property? Is the word "heirs" used in the sense of persona designatæ, indicating the persons who would have been the heirs at law of the real estate if the deceased children had died intestate; or is it to be read in a qualified sense, so as to give the real estate to those persons who would in the event of the intestacy of the deceased children have taken their estate, and the personal estate to their next of kin according to the statute of distributions? I think this case is to be decided by authority, and by authority only. No doubt the word "heir " has a technical meaning, namely, the heir at law of real estate, and if there is nothing in the will to show a contrary intention, the heir at law must take property as persona designata. The question therefore is, whether according to the authorities, the word "heir" is in such a case as the present to be restricted to its technical meaning, or whether the cases do not decide that the word is to be read in a double meaning, that is to say, as the heir at law of real estate in relation to real estate, and as the persons who may be in a popular sense, called the "heirs" of personalty in relation to the personal estate. There are many cases on the subject, and the first to which I will refer is Vaux v. Henderson, 1 J. & W. 388. There a legacy of 2004, was given to A., and failing him, by decease before me, to his heirs." "A. died before the testator, and Sir W. Grant, M. R., held that the legacy belonged to the next of kin of A. living at the time of the testator's death. In other words, he held that the word "heirs " was to be construed as meaning the next of kin or heirs of personalty. The next case to which I will refer is Doody v. Higgins, 9 Ha. App. xxxii, and that case, to my mind, is one of considerable importance, because it was decided by Turner, V. C., one of the judges who afterward, in the Court of Appeal, decided King v. Cleveland, 33 L. T. Rep. (O.S.) 340,in which the words "legal personal representatives" in a bequest of personalty were construed as meaning "next of kin." In Doody v. Higgins, the will, of John Adams, after directing the sale of the whole of his estates not before disposed of, and the calling in of his securities, "to pay the following legacies," and specifying certain pecuniary legacies, was as follows: "The residue of my estates I estimate at about 6,0001, which be it more or less it is my desire that it be divided equally share and share alike amongst all the following persons, or their heirs, for ever," and the will then named the persons. The vice-chancellor said: "The first ques tion is, who were the persons intended by the testator to take under the disposition of the residue to the following persons or their heirs.' I have looked into the cases which were cited in the argument, and into many other cases upon this point; and I think that the words or heirs' must be construed as words of substitution, and that the word 'heirs' must be construed 'heirs' according to the nature of the property, that is next of kin, the property being given as money to the persons intended to take." That case came afterwards, before Wood, V. C. (2 K. & J. 729), upon a question as to the form of the order, and the vicechancellor, in his judgment, referred to Mounsey v. Blamire, 4 Russ. 384, and quoted from what was said by Sir John Leach, M. R., in that case: "Where the word 'heir is used to denote succession, there it may be well understood to mean such person or persons as would legally succeed to the property according to its nature and quality (that, in the case of personal property, would of course include a widow), "as in Vaux v. Henderson, which has been principally relied upon in the argument; and in the familiar case of a gift of personal property to a man and his heirs." Wood, V. C., continued (2 K. & J. 736): He then goes on to say that where, on the other hand, the word is used not to denote succession, but to describe a legatee,

and there is no context to explain it otherwise, then the court will not depart from the strict sense of the word "heir"— a remark which does not apply to the present case, the decision of Turner, L. J., in this case having determined that in the will before me the word "heirs" is not used to describe a legatee, and is not to be taken in its strict sense. The decision in Mounsey v. Blamire, 4 Russ. 384, is inapplicable to the present case, but it is clear from what I have read that Sir John Leach's view was, that in a case like the present, the parties entitled would be "such persons as would legally succeed to personal property," claiming ab intestato. So in Gittings v. M'Dermott, 2 M. & K. 60, where there was a residuary bequest to each of the testator's sisters Mary and Sarah; and upon their deaths respectively to their "heirs," Mary and Sarah having died during the testator's life, Sir John Leach, M. R., was of the opinion that the residuary gift did not lapse upon their death, but that it went to those who would have taken it by succession had the person to whom the life interest was given survived the testator. 2 Myl. & K. 73. They again would be the widow and other persons entitled under the statutes of distribution, and Lord Brougham expressed himself to the like effect in the same case when it came before him on appeal; speaking of "the heir of the personalty" (id. 76), as the person entitled; and again in a subsequent page he adds this: "It may be further observed that giving to A., and on his death to his heirs, refers to two things which must take place without any such provision- the death of A., and his heirs taking after him, that is the property going to those to whom the law gives it; so that it is only saying, let those take it who may be entitled to take." Id. 81. And so again in Withy v. Mangles, 10 Cl. & F. 253, Lord Cottenham, C., speaks of "heirship according to the nature of the property." He says: "A testator may indeed so express himself as to intimate an intention that the rule of the statute should prevail, as in Stamp v. Cooke. So in Lowndes v. Stone, 4 Ves. 649, a gift of the residue of the estate and effects to next of kin or heir at law' was held to include nephews with an uncle, the words implying heirship according to the nature of the property." I read this passage as showing that not only the judges whose opinion he cites, but Wood, V. C., himself, was of opinion that you might, without any great impropriety, speak of "the heirs" of personal estate as well as of "the heirs" of real estate. There is a case of White v. Briggs, 2 Ph. 583, in which the word "family" was used, which is no doubt a word of large and flexible meaning. There the testator gave to his wife all his property for her life, both real and personal property, and be directed that at her death his nephew was "to be considered heir to all my property not otherwise disposed of;" and the testator further directed that "whatever portion of my property may hereafter be possessed by him, shall be secured by my executor for the benefit of his family." The will contained these further gifts: "After the decease of my wife, my real property I leave to my nephew before mentioned, his heirs and family, **** my nephew will further have the benefit of my personal property variously situated, and his heirs and family after him;" and Lord Cottenham having determined that in one part of the will the word "family" meant the "heir at law" as regarded real estate, held that in another part of the will the same word meant the " next of kin" in relation to personal estate. I think he would have had no difficulty in holding, that in a gift of both real and personal estate, the word "heir" might have one meaning as to the real estate, and another meaning as to the personal estate- that it might mean the heir at law in relation to the real estate, and the next of kin in relation to the personal estate. I next come to

De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524, and I think it has no bearing on the present case, and cannot govern it. Lord St. Leonards came to the conclusion-and no one could have come to any other conclusionthat the person who was to take the real estate should also take the personal estate, and that when the testator had shown an intention that the real estate and the personal estate should go together there was no rule of law that they must be separated. I now come to Smith v. Butcher, 10 Ch. Div. 113, and Wingfield v. Wingfield, 39 L. T. Rep. (N. S.) 227. To my mind Wingfield v. Wingfield is hardly distinguishable from the present case, and there Hall, V. C., came to the conclusion that the word "heirs" in the will then before him had two meanings, namely, heir at law as to real estate, and next of kin as to personal estate. Smith v. Butcher, which was decided by Sir George Jessel, M. R., is supposed in a great measure to decide the present case. There the will was this: a bequest "to the children of A. during their lives, and on the decease of either of them, his or her share of the principal to go to his or her lawful heirs." The learned judge there held that the word "heir," or the word "heirs," had a technical meaning, and that there was nothing in the will to show that the technical meaning was not the true meaning of the testator. I do not think that that case does decide the case before me, but assuming that the decision was perfectly correct, I think it is still open to me to decide as I think I ought to decide, the present case in a different way. In Smith v. Butcher there was a gift to tenants for life, with remainder over to their lawful "heirs." It may well be that in such a case you ought to read the word "heir" in its strictest sense, and to say that the heir takes as persona designata. But in the present case the gift is in the first instance to the testator's wife for her life, and after her death to be equally divided among all his children by her, or such of them as might be then surviving, or their heirs. The heirs are not to take by way of remainder, but in a certain sense by way of substitution. It is an independent gift to them; they take in the place and instead of the children who have died before the tenant for life. I think that enables me to give to the word "heirs" a different meaning from that which the master of the rolls gave to it in Smith v. Butcher. I think it shows an intention on the part of the testator that the heirs " are to take in exactly the same way as if the deceased children had died intestate; that is to say, the heir at law is to take the real estate, and the "heirs" of personalty, that is the next of kin, are to take the personal estate. I think that is the right conclusion in the present case, and I do so decide. I disclaim any intention of guessing as to the testator's meaning, and I decide the case entirely upon the authorities by which I believe it is governed.

department, and water was being thrown under direction of the mayor upon buildings in the vicinity. The plaintiff's evidence tended to show that he was travelling with a horse and wagon on Warren street, in the exercise of due care, and when within a short distance from the hydrant, the man handling the nozzle of the hose raised it in such way that the water in its descent fell suddenly in front of and partly upon his horse, whereby the horse was frightened, and wheeled quickly around, throwing the plaintiff out, and causing the injury complained of. The street was otherwise safe and sufficient. The defendauts moved for a nonsuit, which was denied, and the defendants excepted.

The defendants requested the court to instruct the jury that the hydrant, and hose and pipe connected with it, constituted no obstruction of the highway; that the water thrown by them, falling in the highway, frightening the horse and doing damage, was not a statutory obstruction; that the obstruction meant by the statute is one caused by inert, not moving matter; that the careless use of a hydrant, hose, and pipe does not constitute a statutory obstruction of a highway.

George and Mugridge, for plaintiff.
Sanborn & Clark, for defendant.

DOE, C. J. The cause of action stated in the declaration is damage happening to the plaintiff, a traveller in a highway, by reason of a defect of the highway, which rendered it unsuitable for the travel thereon.

wich, id. 225; Smith v. Rochester, 76 N. Y. 506; Howard v. San Francisco, 51 Cal. 52; Greenwood v. Louisville, 13 Bush, 226; Hayes v. Oshkosh, 33 Wis. 314; Fisher v. Boston, 104 Mass. 87; Neuert v. Boston, 120 id. 338; Cushing v. Bedford, 125 id. 526; Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, id. 172; Barney v. Lowell, 98 Mass. 570; Hil V. Boston, 122 id. 344: Maxmilian v. Mayor of New York, 62 N. Y. 160: Elliott v. Philadelphia, 75 Penn. St. 347; Pollock v. Louisville, 13 Bush, 221; 2 Dillon Mun. Corp., § 976; Cooley Torts, 621. With these authorities, Aldrich v. Tripp, 11 R. I. 141, is not in conflict. The decision in that case was put on the ground that the injury complained of resulted from the careless management of a hydrant by the water commissioners, and not by the fire department. Verdict set aside.

SUPPORT OF BASTARD CHILD BORN AFTER MOTHER'S MARRIAGE.

IOWA SUPREME COURT, DECEMBER 10, 1883.

STATE OF IOWA V. SHOEMAKER.

G. married a woman known by him at the time to be with child begotten by S. The child was afterward born. Held, that G. by his act adopted the child and was liable for its support, and that S. was not liable under a bastardy proceeding. The case is distinguished from those involving questions of inheritance.

ening the plaintiff's horse in violation of the plaintiff's common-law right, and the defendants' common-law duty, but a violation of the statutory, highway right of a traveller, by a non-performance of the defendants' statutory duty of keeping the highway "in good repair, suitable for the travel thereon." Gen. Laws, ch. 74, § 1; ch. 75, § 1. The wrong which the plaintiff's evidence tended to prove was a movement of the hose in the hands of a fireman, throwing a stream of water suddenly in front of and upon the plaintiff's horse. A stream of water, flowing in a street from a hydrant or other source, may in time become a defect of the street. But the act of frightening a traveller's horse by coasting in the street, or the act of sliding against a traveller, or driving a locomotive against his carriage, is not a defect of the street, within the meaning of the highway law. Ray v. Manchester, 46 N. H. 59; Shepherd v. Chelsea, 4 Allen, 113; Vinal v. Dorchester, 7 Gray, 421. In this case, if the act of the fireman was the act of the city, evidence that the act of the city frightened the plaintiff's horse would not sustain the declaration for uon-performance of highway duty. If the defendants were liable, as a master for the negligent act of a servant in running against the plaintiff on the sidewalk, the declaration should be for the collision and not for a defective highway. The motion for a nonsuit should have been granted. Hand v. Brookline, 126 Mass. 324; Barber v. Roxbury, 11 Allen, 318; Hardy v. Keene, 52 N. H. 370.

Upon a declaration for the act of frightening the plaintiff's horse, another question would arise. The plaintiff's evidence tended to show that the accident was caused by using the water for a purpose of the fire department, the purpose of testing the power of the hydrant to protect its neighborhood against fire. The experiment was the proper work of the fire department, like the trial of a steam fire engine, hose cart, or other fire-extinguishing apparatus. Such an experiment might not be judiciously postponed till the neighborhood was on fire. And the authorities agree that a town is not liable for damage done by the fire department. Hafford v. New Bedford, 16 Gray, 297; Jewett v. New Haven, 38 Conn. 368; Torbush v. Nor

to support illegitimate child. The facts appear in the opinion. The State appealed.

H. B. Hendershott, Samuel Jones, and Smith MePherson, attorney-general, for State.

Stiles & Beaman, for defendant.

BECK, J. The undisputed facts, as disclosed by the evidence for the State, established the following facts: (1) The child was begotten by the defendant, and was born on the 13th day of August, 1882; (2) prior to its birth, on the 1st day of June, 1882, the mother, the prosecutrix, married another man, named Getz; (3) at and before the marriage Getz was informed by the prosecutrix that she was enceinte. Her condition was apparent from her appearance. Upon these facts the District Court held that plaintiff could not recover, and directed the jury to return a verdict for defend

ant.

2. Under chapter 56, title 25, of the code, a father may be charged with the maintenance of his illegitimate child. The proceeding thereunder is entitled as an action in the name of the State against the alleged father, and may be prosecuted upon the complaint of the mother. It is a civil action of a summary nature (Holmes v. State, 2 G. Greene, 501; Black Hawk Co. v. Cotter, 32 Iowa, 125) and is intended to secure the maintenance of the bastard, to the end that in no event shall the public become chargeable therewith. Of course, if one stands in the relation to the child which will cause the law to esteem him liable as its father for its support, being in loco parentis, the proceeding cannot be prosecuted against another who is in fact the natural father. The one whose relations are such that he stands in loco parentis, the law esteems the father, and will not, for various reasons, inquire by whom the child was begotten.

One who marries a woman known by him to be enceinte is regarded by the law as adopting into his family the child at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nurture and maintenance. The law would forbid a thing so unnatural. The child receiving its support from the mother, must of necessity

become one of her family, which is equally the family of the husband. The child then is received into the family of the husband, who stands as to it in loco parentis. This being the law, it entered into the marriage contract between the mother and the husband. When this relation is established the law raises a conclusive presumption that the husband is the father of his wife's illegitimate child. We must not be understood to hold that this rule prevails in cases involving questions of heirship and inheritance. In these cases the rights of others besides the husband and bastard arise. In this case the rights and liabilities of the husband and child are alone involved; they rest upon the relations which impose upon the husband the duty of maintaining the child. Our conclusion is supported by public policy, and considerations which make for the peace and well-being of families. A husband who, in the manner we have indicated, has put himself in loco parentis of a bastard child of his wife, ought not to be permitted to disturb the family relation and bring scandal upon his wife and her child by establishing its bastardy after he has condoned the wife's offense by taking her in marriage.

3. The conclusion we reach in this case is supported by State v. Romaine, 58 Iowa, 46, and cases therein cited.

4. Many of the cases cited by defendant's counselWright v. Hicks, 15 Ga. 160; Cross v. Cross, 3 Paige, Ch. 139; Goodright v. Saul, 4 Tenn. 356; Lomex v. Holmden, 2 Strange, 940; Hall v. Com., Hardin (Ky.), 486; State v. Pettaway, 3 Hawks, 623; Com. v. Wentz, 1 Ashm. 269; King v. Inhab. of Kea, 11 East, 132; King v. Inhab. of Maidstone, 12 id. 550; State v. Broadway, 69 N. C. 411; Stegall v. Stegull's Admr., 2 Brock. C. C. 256-involve questions of heirship or inheritance, and in this respect, differ from the case before us. The distinctions between those cases and this, based upon this ground, are obvious. We have above pointed them out. Other cases cited by counsel are also distinguished by these facts from this case.

It is our conclusion that the judgment of the District Court ought to be affirmed.

Judgment affirmed.

WISCONSIN SUPREME COURT ABSTRACT. ASSAULT -SPECTATOR NOT LIABLE FOR DAMAGES FOR.-A mere spectator is not liable for damages for an assault and battery. The general rule is, that all concerned in an assault and battery are principals, and that one who incites another to commit such an offense is guilty and may be prosecuted as principal, although he did not otherwise participate in the wrongful act. In Brown v. Perkins, 1 Allen, 89, Bigelow, C. J., states the rule upon this subject as follows: "Any person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks, or signs, or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor, and liable as principal; and proof that a person is present at the commission of a trespass, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same." 3 Greenl. Ev., § 41; Whart. Crim. Law, § 616; Sikes v. Johnson, 16 Mass. 389; Frantz v. Lenhart, 56 Penn. St. 365. But as the learned judge in Brown v. Perkins remarks, it is to be borne in mind that mere presence at the commission of a trespass or wrongful act does dot render a person liable as a participator therein. If he is only a spectator, innocent of any unlawful attempt, and does not act to countenance or approve those who are actors, he is not

to be held liable on the ground that he happened to be a looker-on and did not use active endeavors to prevent the commission of the unlawful acts. State v. Maloy, 44 Iowa, 104; State v. Jones, 83 N. C. 605; Lamb v. People, 96 Ill. 43. But any encouragement or aid given the principal actor, any concert of action in the execution of the unlawful design, will amount to a guilty participation in the trespass. Hilmes v. Stroebel. Opinion by Cole, C. J. [Decided Dec. 11, 1883.]

PARTNERSHIP-LIMITATION OF AUTHORITY OF PARTNER AS TO GUARANTY.-An instrument signed by a member of a manufacturing firm read thus: "Allyn A. Avery, Esq.--Dear Sir: If you rent your house to Mr. I. J. Hibbard, I will be responsible for the rent of the same as long as said Hibbard remains in our employ. Respectfully, J. S. Rowell & Co." Held, that the instrument did not bind the firm, because it did not in terms do so, and because if the partner had sought to bind his firm to this guaranty the partnership would not be bound thereby, as the giving of it was not necessary fer the carrying on the business of the firm in the ordinary way. 1 Coll. Partn. 666. It was no part of the ordinary business of such a firm to guarantee rents, even for their employees. The contract of guaranty must be within the scope of the partnership business. Baylies Guar. 49; Pars. Partn., § 216; Hope v. Cust, 1 East, 53; Crawford v. Stirling, 4 id. 209; Brettel v. Williams, 4 Exch. 623. This limitation of the power of one partner to bind the firm to the ordinary partnership business has been frequently recognized by this court. Freeman v. Carpenter, 17 Wis. 126. Avery v. Rowell. Opinion by Orton, J.

[Decided Dec. 11, 1883.]

REPLEVIN-WILL NOT LIE TO RECOVER PROPERTY SEIZED FOR TAXES.-Under the statutes relating to taxation, it has frequently been held that replevin will not lie to recover property held by an officer under a tax-warrant regular upon its face, issued by the proper authorities against the plaintiff in replevin. Troy, etc., R. Co. v. Kane, 72 N. Y. 614, affirming S. C., 9 Hun, 506; Hudler v. Golden, 36 N. Y. 446; Cheg aray v. Jenkins, 5 id. 376; O'Reilley v. Good, 42 Barb. 521; People v. Albany, 7 Wend. 485; Stiles v Griffith, 3 Yeates, 82; Bilbo v. Henderson, 21 Iowa, 56; Grindrod v. Lauzon, 47 Mich. 584; Pott v. Aldwine, 7 Watts, 173; Niagara Elev. Co. v. McNamara, 2 Hun, 416. Some courts have gone so far as to hold that the action will not lie against the officer even in favor of the true owner of the property, although it was seized by the officer on a tax-warrant against another. Vacht v. Reed, 70 Ill. 491. But the better opinion seems to be that the statute prohibiting such action should be limited to cases where the property seized is that of the person, or one in privity with the person, against whom the tax was assessed. Travers v. Inslee, 19 Mich. 98; Daniels v. Nelson, 41 Vt. 161; Stockwell v. Veitch, 15 Abb. Pr. 412; Trask v. Maguire, 2 Dill. 182. And it has been held that the statute does not apply where there is no jurisdiction to levy the tax. McCoy v. Anderson, 47 Mich. 502; Le Roy v. East Saginaw R. Co., 18 id. 234; Buell v. Ball, 20 Iowa, 282. Power v. Kindschi. Opinion by Cassoday, J. [Decided Nov. 20, 1883.]