contract as alleged is void, and the proof in no mauner aids the pleading or verdict rendered.

It is alleged that the grandfather was advanced in years, too feeble to ride, and unable to write, and that the appellee (his grandson) undertook to write his letters to the young lady and deliver them, and the young lady says those letters had reference to a matrimonial alliance with the old gentleman.

The principal witness for the appellee states, that in a conversation with the old man, the latter said, he had agreed to give the grandson the note, if he could assist him in marrying; that Hunt was to do his writing, etc., and was complying with his agreement.

The same statement is made by other witnesses, who speak of conversations with this old man in which he spoke of his matrimonial prospects, and of the appellee as the instrument through which success was to be accomplished.

He said to a lady witness, that George was complying with his contract like a Turk.

The defense made, as well as the testimony in support of it, shows clearly (if any contract was made) a marriage brokerage agreement, the young man undertaking to bring about the marriage in consideration of the surrender of the note for five thousand dollars.

The interference by one, upon an agreement to receive a moneyed or valuable consideration to induce or bring about a marriage between others has always been held void. Such contracts, if carried out, result in unhappy marital relations, and have been discountenanced by the law.

The elementary authorities, as well as the reported cases, all sustain this view of such a contract.

We have seldom seen a more flimsy defense than has been made in this case. The declarations of an old, feeble, and diseased man, with reference to a contemplated marriage, are made the sole foundation for defeating the recovery.

The appellee promised to pay the note, time and again, after the death of his grandfather, and there can be no doubt, from the proof in the record, that the statements made by the intestate were mere expressions of an intention to give without any consideration whatever. He died in possession of the note, and it passed into the hands of the administrator..

The court below should have sustained the demurrer to the answer as amended, and failing to do that should have instructed the jury to find for the plaintiffs.

Smith on Contracts, 221; Cole v. Gibson, 1 Ves. 503; Fonblanque Equity, 212.

The judgment below is reversed and the cause remanded, with directions to award a new trial, and to sustain the demurrer to the defense made, and for further proceedings consistent with this opinion.

UNITED STATES SUPREME COURT ABSTRACT.

BANKRUPTCY-SEIZURE OF GOODS BY MARSHALTRESPASS IN STATE COURT-JURISDICTION OF FEDERAL COURT-ACTION IN STATE COURT NOT ENJOINED.— A marshal of the United States, who under a provisional warrant in bankruptcy, has after receiving a bond of indemnity under General Order No. 13, in bankruptcy, seized goods as the property of the debtor, and been sued for damages for such seizure, in an action of trespass in a State court, by a third person, who claimed that the goods were his property at the time of the seizure, cannot maintain a suit in equity in a Circuit Court of the United States, for an injunction to restrain the further prosecution of the action of trespass, the parties to the suit in equity being citizens of the same State. Such marshal having delivered the

goods seized to the assignee in bankruptcy appointed, after an adjudication of bankruptcy, in the proceeding in which the provisional warrant was issued, and the assignee having sold the goods, under the order of the court in bankruptcy, without giving to the plaintiff in the action of trespass any notice, under section 5063 of the Revised Statutes, of the application for the order of sale or of the sale, and such plaintiff not having brought any action against the assignee to recover the goods, or applied to the bankruptcy court for the proceeds of sale, and the assignee not being sued in the action of trespass, he cannot bring a suit in equity in a Circuit Court of the United States, joining the marshal as plaintiff, against the plaintiff in the action of trespass, to have the title to the goods determined. on the allegation that they were transferred to such plaintiff in fraud of the bankruptcy act, and for an injunction restraining the prosecution of that action. Ex parte Schwab, 98 U. S. 240. Buck v. Colbath, 3 Wall. 334; Sharp v. Doyle, 102 U. S. 686. Leroux v. Hudson. Opinion by Blatchford, J. [Decided Dec. 10, 1883.]

LIMITATION-UNDER CODE OF TENNESSEE-SUIT BROUGHT WITHIN TIME BUT DISMISSED FOR WANT OF JURISDICTION EXTENDS TIME.-The Code of Tennessee provides thus: "No person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, etc., but within seven years after the right of action has accrued. ' It also provides thus: "If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, etc., the plaintiff may commence a new action within one year after, etc." Plaintiffs commenced an action December 31, 1873, in the Federal Circuit Court in Tennessee to recover land withheld by defendants. The case continued in court until February 24, 1877, when the court sustained defendant's demurrer to the declaration, and dismissed the cause on the ground that it had no jurisdiction, October 20, 1877, more than seven years after the right of action had accrued. Plaintiffs brought this suit for the same cause of action. Held, that the case was not barred by the statute of limitation, and plaintiffs had not been guilty of laches defeating their right of action. It is well settled that the judgment of a court dismissing a suit for want of jurisdiction does not conclude the plaintiff's right of action. In Walden v. Bodley, 14 Pet. 156, it was said by this court: "A decree dismissing a bill generally may be set up in bar of a second bill having the same object in view, but when the bill has been dismissed on the ground that the court had no jurisdiction, which shows that the merits were not heard, the dismissal is not a bar to the second suit." So in the case Hughes v. United States, 4 Wall. 232, this court declared: "In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit." See also Greenl. Ev., § 529,530. That the plaintiffs were not guilty of such negligence as to exclude them from the benefit of the provisions of the Code, see Cole v. Mayor of Nashville, 5 Cold. (Tenn.) 939; Memphis & Charleston R. Co. v. Pillow, 9 Heisk. (Tenn.) 248; Weathersby v. Weathersby, 31 Miss. 662; Woods v. Houghton, 1 Gray, 586; Coffin v. Cuttle, 16 Pick. 386; Givens v. Robbins, 11 Ala. 156; Skillington v. Allison, 2 Hawks (N. C.)

347; Lansdale v. Cox, 8 J. J. Mar. 394; Phelp v. Wood, 9 Vt. 404; Spear v. Newell, 13 id. 288; Matthews v. Phillips. 2 Salk.; Kinsey v. Hayward, 1 Ld. Ray. 434. Smith v. McNeal. Opinion by Woods, J.

[Decided Dec. 3, 1883.]

MINING OCCUPANCY OF CLAIM UNDER Act of ConGRESS-EXPENDITURE ON CLAIMS HELD IN COMMON.

The provisions of the act of Congress of 1872 (7 Stats., chap. 152, § 5), in relations to mining claims, and their location are, that on each claim subsequently located, until a patent for it is issued, there shall be annually expended for labor or improvements $100, and on claims previously located an annual expenditure of $10 for each one hundred feet in length along the vein; and that when such claims are held in common, the expenditure may be upon any one of them. And that upon a failure to comply with these conditions the claim shall be opened for re-location in the same mauner as if no location of the same had ever been made, provided the original locators, their assigns, or representatives, have not resumed work upon it after failure and before re-location. Held, that where work or expenditure on one of several claims held in common is allowed, in place of the required expenditure on the elaims separately, the work or expenditure must be for the purpose of developing all the claims. It does not mean that all the expenditure upon one claimwhich has no reference to the development of the others-will answer. As was said in Smelting v. Kent, 104 U. S. 655, labor and improvements, within the meaning of the statute, are deemed to have been had on a mining claim, whether it consists of one location or several when the labor is performed, or the improvements are made for its development, that is to facilitate the extraction of the metals it may contain, though in fact such labor and improvements may be on ground which originally constituted only one of the locations, as in sinking a shaft, or be at a distance from the claim itself, as where the labor is performed for the turning of a stream or the introduction of water, or where the improvement consists of the construction of a flume to carry off the debris or waste material." The law does not apply to cases where several claims are held in common, and all the expenditures made are for the development of one of them without reference to the development of the others. In other words, the law permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required may be made, or the labor be performed upon any one of them. Jackson v. Roby. Opinion by Field, J. [Decided Dec. 3, 1883.]

PUBLIC LANDS-TOWN SITE ON OCCUPANCY OF POLYGAMOUS WIFE WITH HUSBAND NOT NOTICE OF WIFE'S CLAIM WHEN HUSBAND HAS TITLE -DEED NOT WITNESSED-SPECIAL STATUTE CONTROLLING GENERAL LAW-DEED FROM CITY.—(1) Plaintiff, who was the polygamous wife of T., lived with him on premises in Utah, to which under the act of Congress of 1867, as occupants, they had a right to a conveyance from the corporate authorities of the town where the same where situated. T. took from the corporate authorities of the town a conveyance of the premises. Due notice was given by publication under the statutes, but the plaintiff asserted no claim. After the conveyance to T. he conveyed the premises to defendants for a valuable consideration, they having no knowledge or notice of any claim by plaintiff thereto. Thereafter plaintiff brought this action for an undivided half of the premises, claiming that there was an agreement between her and T. giving her such a right. Held, that she was not entitled to maintain her action against defendants, they not being bound by a secret agreement between her and T., and her joint occu.

pancy with T. not being constructive notice of her rights. Nothing is clearer than that a purchaser for a valuable consideration, without notice of a prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, according to the well-known maxim that when equities are equal the law shall prevail. Williams v. Jackson, 107 U. S. 478; Willoughby v. Willoughby, 1 T. R. 763; Charlton v. Low, 3 P. Wms. 328; Ex parte Knott, 11 Wis. 609; Tildesley v. Lodge, 3 Sm. & Giff. 543; Stine v. Goff, 1 Ball & B. 436; Bowen v. Evans, 1 Jones & La. T. 264; Vattier v. Hind, 7 Pet. 252. Constructive notice is defined to be in its nature no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted. Plumb v. Fluitt, 2 Anst. 438; Kennedy v. Green, 3 My. & K. 719. Where possession is relied on as giving constructive notice it must be open and unambiguous, and not liable to be misunderstood or misconstrued. Ely v. Wilcox, 20 Wis. 53; Patten v. Moore, 32 N. H. 384; Billington v. Walsh, 5 Bin. 132. It must be sufficiently distinct and unequivocal so as to put the purchaser on his guard. Butler v. Stevens, 26 Me. 484; Wright v. Wood, 11 Harris, 130; Boyce v. Williams, 48 Ill. 371. As said in Mehan v. Williams, 12 Wright, 258, what makes inquiry a duty is such a visible state of things as is inconsistent with a perfect right in him who proposes to sell. See also Holmes v. Stout, 3 Green. Ch. 492; McMechan v. Griffing, 3 Pick. 149; Hancock v. Powell, 9 Ala. 409. (2) The general act of the territorial Legislature provided that a deed to convey title should have witnesses, but a special act providing for the conveyance to occupants by the mayor of a corporation of lauds included in a town site, merely directed that "deeds of conveyance for the same shall be executed by the mayor of the city or town under the seal of the corporation." Held, that according to the well settled rule, that general and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together with the specific qualifying and supplying exceptions to the general rule, this provision for the execution of a particular class of deeds was not controlled by the law of the territory requiring deeds generally to be execu ted with two witnesses. Pease v. Whitney, 5 Mass. 380; Nichols v. Bertram, 3 Pick. 342; State v. Perrysburg, 14 Ohio St. 472; London, etc., R. Co. v. Wandsworth Board of Works, L. R., 8 C. P. 185; Bishop Written Laws, § 112. Townsend v. Little. Opinion by Woods,

J.

[Decided Dec. 10, 1883.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

ILLEGAL CONSIDERATION-BROKER WITHOUT LICENSE SELLING CANNOT RECOVER COMMISSION.-A real estate broker who had not taken out a license cannot recover commissions for a sale of real estate even though there is a special contract to pay him for negotiating the sale in question. Holt v. Green, 23 P."F. S. M. 198. Morris Run Coal Co. v. Barclay Coal Co., 18 id. 174; Kilborn v. Field, 28 id. 194; Thorne v. Insurance Co., 30 id. 15; Ham v. Smith, 6 Nor. 63. In Craig v. State of Missouri, 4 Pet. 410 an action of assumpsit on a promissory note, the court found that the defendants did assume as the plaintiff had declared, and that the consideration for the note and the assumpsit was for loan-office certificates loaned by the State of Missouri at her loan office in Chariton. Under this finding by the court below it was held in the Supreme Court, that under the plea of non-as

sumpsit the defendants were at liberty to question the validity of the consideration which was the foundation of the contract, and the constitutionality of the law in which it originated. In Armstrong v. Toller, 11 Wheat. 258, it is held that where a contract grows immediately out of, and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. So if the contract be in part only connected with the illegal consideration, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it." Where however the promise or undertaking, on which suit is brought, is not connected with the illegal contract, the rule is different. As in the case put by Lord Mansfield in Faikney v. Reynous, 4 Burr. 2069, if one person pay the debt of another at his request, an action may be sustained to recover the money, although the original contract was unlawful, and though the person who paid the money knew that it was paid in discharge of a debt not recoverable at law. Johnson v. Heilings. Opinion by Gordon, J. [Decided May 25, 1883.]

MECHANICS' LIEN-ATTACHES TO EQUITABLE ESTATE -LANDS HELD UNDER PAROL AGREEMNT FOR SALE, WHEN EJECTMENT LIES.—(1) Where improvements are made upon land by one in possessionj under a parol contract of purchase the purchaser has an equitable estate to which a mechanics' lien will attach. Although

the earlier decisions do not harmonize with each

other, yet it is now undoubtedly held that all parol contracts for the sale of lands are not invalidated by the statute of frauds. Where possession has been taken in pursuance of the contract, and there has been such part performance that the purchaser cannot reasonably be compensated in damages, the case is taken out of the statute. Possession and payment of purchase-money only are not sufficient, for the vendee may be compensated in damages; but when to possession is added permanent improvements of considerable value, which cannot be thus reasonably compensated, the rule is held otherwise. This constitutes such a part performance as to take the case out of the statute. McGibbeny v. Burmaster, 3 P. F. Smith, 332; Whack v. Sorber, 2 Whart. 387. When a party has induced another on the faith of his promise, though verbal, to expend his cash or labor for which he can only be remunerated by the enjoyment of the thing so promised, equity will compel the promisor to give such deed or writing as will secure the promisee's perfect enjoyment of the thing promised. McKillip v. McIlhenny, 4 Watts, 322. (2) In Pennsylvania ejectment is substituted for a bill in equity. Peebles v. Reading, 8 S. & R. 484. When brought to enforce specific performance of a purchase, it is subject to all the considerations that would affect a bill for that purpose in the contemplation of a chancellor. Brawdy v. Brawdy, 7 Barr, 158. It will lie to enforce execution of articles of agreement on the part of the vendee who has never been in possession. Tyson v. Passmore, 2 Barr, 122. When the plaintiff relies on an equitable title, tender of the money due must generally precede the action, yet the rule has its exceptions. It does not apply when the vendor, before payment, has put the vendee into possession under the contract and induced him to

PARTNERSHIP— PARTNER'S POWER TO SELL FIR PROPERTY, AND LIMIT OF.-Where a partnership is no strictly a trading one, and where the business i which the firm is engaged renders it indispensable fo the ownership of the partnership property to be con tinued in the firm until a dissolution of the firm, o other arrangements are made, one partner has n power to sell and dispose of all the joint property his copartner. Where the member of a partnership without the consent and in the temporary absence o not strictly a trading one, without authority so to do undertakes to sell without the consent of his copart ner, and in his temporary absence, all of the join property of the partnership, such sale is not valid against his copartner, but is binding upon the partne making the sale, and thereby the partner selling dis poses of all his interest in the joint property of the partnership. Sloan v. Moore, 37 Penn. St. 217; Kim ball v. Insurance Co., 8 Bosw. 495; Kirby v. Ingersoll Harr. Ch. (Mich.) 172; North v. Mudge, 13 Iowa, 496Christy v. Sherman, 10 id. 535; Rhodes v. Amsick, 35 Md. 345; Tapley v. Butterfield, 1 Metc. 515; Arnold v. Stevenson, 2 Nev. 234; Sutlive v. Jones, 61 Ga. 676 Blaker v. Sands. Opinion by Horton, C. J.

TRIAL-RIGHT TO BE HEARD BY COUNSEL-RESTRICTION OF RIGHT.-When a controverted question of fact is to be submitted to a jury for its determination. either party has an absolute right to be heard by his counsel in argument thereon to the jury; and while the court may impose reasonable restrictions as to the time to be occupied by the argument, that is the limit of its power. Garrison v. Wilcoxson, 11 Ga. 154; Peo10 Metc. 263; Commonwealth v. Austin, 7 Gray, 51; ple v. Keenan, 13 Cal. 581; Commonwealth v. Porter, Wilkins v. Anderson, 11 Peun. St. 399; Dobbins v. Oswalt, 20 Ark. 619; Tobin v. Jenkins, 29 id. 151; Brooks v. Perry, 23 id. 32; Bertrand v. Taylor, 32 id. 470; Cory v. Silcox, 5 Ind. 370; State v. Page, 21 Mo. 257; Freligh v. Ames, 31 id. 253; Trice v. Railroad Co., 35 id. 416; Bierson v. Mahoney, 6 Baxter (Tenn.), 304; Coldwell v. Brower, 75 Ill. 516; Slate Co. v. Meyer, 8 Daly, 61; Millerd v. Thorne, 56 N. Y. 402. Douglass v.

Hill. Opinion by Brewer, J.

Appearing in 29 Kansas Reports.

ILLINOIS SUPREME COURT ABSTRACT.

MAY 10, 1883.*

ATTORNEY-EVIDENCE OF VALUE OF SERVICES.-In an action by an attorney to recover for professional services for the defendant, such services resulting in a favorable compromise of litigation, opinions of other attorneys may be received as to the value of the services rendered; but opinions as to the benefits of the compromise to the defendant in his business in the future are not admissible. While the amount involved in the litigation may not improperly be considered in fixing the value of the services of an attorney in the case which led to a settlement of the matters in dispute, and the securing of certain rights and privileges to his client, yet it is not admissible to go into an inquiry concerning prospective benefits which may accrue in the future to the client from such settlement. In proving the value of legal services of an attorney in the defense of a suit, and attending to other matters, leading to a favorable settlement of the litigation, it is not proper to present to the view of the jury the settlements made with other persons by those settling with the client, either by direct evidence or by the form of a hypothetical question to witnesses. It is not proper to show that the settlement with the client was much more favorable than with other parties. Such comparisons should not be permitted. See Egleston v. Boardman, 37 Mich. 18; Robbins v. Harvey, 5 Conn. 341. Haish v. Payson. Opinion by Sheldon, J. Two judges discent.

GIFT-DELIVERY OF BONDS WITH RIGHT TO RECLAIM SAME IS NOT-LIMITATION.-(1) Where a party delivers bonds to another under a written acknowledgment, from which it is evident the party making the delivery intends to retain his right to call for them if circumstances should make that course desirable, the transaction cannot be regarded as an absolute gift, even though he never expected to call for them. In such case it matters not what may have been his motives for such action. (2) If bonds are delivered by one person to another under a written contract to return the same "whenever called for," no duty to return the bonds or their proceeds will arise until an actual demand for the same is made, and no right of action will accrue to the lender until after such demand is made, and the Statute of Limitations will not commence to run until the cause of action accrues. Selleck v. Selleck. Opinion by Dickey, J.

NEGLIGENCE-MUNICIPAL CORPORATION NOT LIABLE FOR NEGLIGENCE OF FIREMAN.-A master is liable for injury to others caused by negligence of his servant while in the performance of acts within the line of his duty. But cities are not liable for the negligent acts of the officers or men employed in their fire departments while in the discharge of their duty, thus creating an exception in this class of cases to the general rule of respondeat superior. This exemption from liability is placed upon the ground that the service is performed by the corporation in obedience to an act of the Legislature, and is one in which the corporation has no particular interest, and from which it claims no special benefit in its corporate capacity, and because the members of the fire department, although appointed and paid by the city, are not the agents and servants of the city for whose conduct it is liable, but act rather as officers of the city charged with a public service, and because sound public policy forbids any liability in such a case. Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87; Maximilian V. Mayor, 62 N. Y. 160; Smith v. Rochester, 76 id. 513; Jewett v. New Haven, 38 Conn. 368; Ogg v. Lansing, 35 Iowa, 495; Field v. Des Moines, 39 id. 575; Heller v. *To appear in 107 Illinois Reports.

Mayor, 53 Mo. 159; Howard v. San Francisco, 51 Cal. 52. Wilcox v. City of Chicago. Opinion by Walker, J.

VERMONT SUPREME COURT ABSTRACT. JANUARY TERM, 1883.*

CHATTEL MORTGAGE OF GROWING CROP-VALIDITY OF AGAINST CREDITORS-SUFFICIENCY OF DESCRIPTION. (1) The owner of land may make a valid chattel mortgage of a growing crop that he has planted, which is superior to the lien acquired by another creditor's subsequent attachment. The mortgagor of a farm, in possession, and after condition broken, may make a valid chattel mortgage of the growing grass thereon, which is superior to the lien acquired by another creditor's subsequent attachment. In the language of Hobart, C. J.: "Land is the mother and the root of all fruits. Therefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant." Grantham v. Hawley, Hob. 132; Evans v. Roberts, 5 Barn. & Cress. 836. Although the cases are not uniform, there is abundant authority holding or recognizing the distinction to the effect that crops like corn, wheat, rye, potatoes, etc., called fructus industriales, are considered as the representatives of the labor and expense bestowed upon them, and regarded as chattels while still growing; and as such go to the executor instead of the beir, and may be seized on execution as chattels, and may be sold or bargained by parol; while growing grass and trees and fruit on trees, called fructus naturales, are in contemplation of law, a part of the soil of which they are the natural growth, and descend with it to the heir, and until severed cannot be seized on execution, and under the statute of frauds cannot be sold or conveyed by parol. Jones v. Flint, 10 Ad. & E. 753; Dunne v. Furguson, 1 Hayes, 541; Whipple v. Foote, 2 Johns. 422; Stewart v. Doughty, 9 id. 112; Austin v. Sawyer, 9 Cow. 39; Cutler v. Pope, 13 Me. 377; Bryant v. Crosby, 40 id. 21; Ross v. Welch, 11 Gray, 235; Kingsley v. Holbrook, 45 N. H. 313, Howe v. Batchelder, 49 id. 204, 208; Marshall v. Ferguson, 23 Cal. 65; Davis v. McFarlane, 37 id. 634; Bernal v. Hovious, 17 id. 541; Graff v. Fitch, 58 Ill. 377; Bull v. Griswold, 19 id. 631; Carson v. Browder, 2 Lea, 701; Buck v. Pickwell, 27 Vt. 157; Bellows v. Wells, 36 id. 600. But if the owner of the fee of the land by a conveyance in writing sells these natural products of the earth, which grow spontaneously and without cultivation, to be taken from the land, or sells the land reserving them to be cut and removed by himself, the law regards this as equivalent to an actual severance. If an absolute sale operates a severance in contemplation of law, then a chattel mortgage executed after condition is broken must have the same effect. (2)The description in the mortgage was: "also all the grass and oats and corn now growing on two hundred and thirty acres of said farm," the farm being properly described; held, prima facie sufficient. Kimball v. Sattley. Opinion by Veazie, J. CONSIDERATION-FORBEARANCE TO OPPOSE PROBATE OF WILL WILL SUPPORT CONTRACT TO - The

PAY.

plaintiff was heir at law of the defendant's testator, but received nothing under the will. The defendant was executor, and his wife and daughter legatees. The plaintiff claimed that he had determined to contest the will on the ground that it had been obtained by undue influence, that he had given notice of his intention to the Probate Court, that he had employed counsel, and had been advised by him to make opposition; that this was known to the defendant; that the defendant promised to pay the plaintiff $5,000 if he would desist in such opposition; that the plaintiff in consideration *To appear in 55 Vermont Reports.

of such promise, did forbear; and that the will was approved without delay. Held, in an action to recover the five thousand dollars, the plaintiff was neither bound to allege, nor prove that undue influence had been used to procure the making of the will. But the consideration was sufficient if he was able to show that he honestly thought he had good and reasonable ground for making the claim that the will, so far as it related to him, was the production of undue influence, and for that reason he honestly and in good faith intended to oppose its establishment. A doubtful right compromised to be a good consideration for a promise, must upon reasonable grounds be honestly entertained. There must be a yielding of something by each party. Bellows v. Sowles. Opinion by Ross, J.

PUR

CONDITIONAL SALE OF CATTLE- TITLE OF CHASER FROM CONDITIONAL VENDEE.-The plaintiff sold a herd of cattle conditionally, taking a note therefore for $837.50, and a lien by which they were to remain his until the note was "fully paid." The vendee without the knowledge of the plaintiff, sold a part of the cattle to the defendants, who paid him, and he paid the plaintiff, the plaintiff endorsing it on the note. In an action of trover, the note remaining unpaid, held, that the defendants were liable; and that the money paid by them could not be allowed in mitigation of damages. The lien was recorded; the title was in the plaintiff till the whole debt was paid; the defendants were charged with notice of these facts; and their good faith cannot help them. Evidence was not admissible in mitigation of damages to show that the identical bank bills paid for the cattle were sent to the plaintiff, he being ignorant of the sale. Thrall v. Lathrop, 30 Vt. 307; Coles v. Clark, 3 Cush. 399. The case is distinguishable from Plevin v. Henshall, 25 E. C. L. 21 (10 Bing. 24.) Morgan v. Kidder. Opinion by Veazie, J.

WISCONSIN SUPREME COURT ABSTRACT. OCTOBER, 1883.

NEGLIGENCE-INJURY TO TRAVELLER ON HIGHWAYTRAVEL MUST BE ON PROPER PART OF HIGHWAY.-It is the duty of the traveller on the highway to remain in the travelled track, or that part of the highway which, to a reasonable width, has been graded or prepared for that purpose. Hence if without necessity, or for his own pleasure or convenience he voluntarily deviates from the travelled track, which is in good condition, and in so doing meets with an accident from some cause outside of the travelled track, the town will not be responsible for any damage or injury which he may thus sustain. Sykes v. Pawlet, 43 Vt. 446; Matthews v. Baraboo, 39 Wis. 674; Cremer v. Portland, 36 id. 92. Cartwright v. Town of Belmont. Opinion by Lyon, J.

NEGLIGENCE-OF RAILROAD COMPANY SETTING FIRE -EVIDENCE AS TO-LEAVING COMBUSTIBLE MATERIAL ON GROUND.-(1) In an action against a railroad company for setting fire by locomotive sparks where it is shown, either by positive or circumstantial evidence, that some locomotive of the company caused the fire, without the identification of any particular one, such evidence might have weight in showing the negligence of the company. There may be cases which have gone further than this in the admission of such evidence, but they do not appear to be authority in reason. Ross v. Boston, etc., R. Co., 6 Allen, 87, it was held competent to show that the engine in question emitted burning sparks a fortnight previous to the fire in question, and that other similarly constructed engines had emitted sparks which set fires. Where there is no proof of what particular engine set the fire, and the

In

circumstantial evidence is such that there is a strong probability that some engine on the road did set the fire, then it may be proper to show the engines on that road generally emitted sparks, or that some one or more of them did so at other times and places. Sheldon v. Hudson River R. Co., 14 N. Y. 221; Field v. New York, etc. R. Co., 32 id. 339; St. Joseph, etc., R. Co. v. Chase, 11 Kan. 47; Huyett v. Philadelphia, etc., R. Co., 23 Penn. St. 373; 1 Thomp. Neg. notes, 160. Testimony showing that some of the company's locomotives had previously or subsequently scattered fire is not admissible unless it is also shown that the locomotive which caused the fire was one of them, or was similar in construction, state of repair, or management. Boyce v. Cheshire R. Co., 42 N. H. 97; Phelps v. Conant, 30 Vt. 277; Malton v. Nesbit, 1 Car. & P. 70; Hubbard v. Railroad Co., 39 Me. 506; Standish v. Washburn, 21 Pick. 237; Collins v. Dorchester, 6 Cush. 396; Robinson v. Railroad Co., 7 Gray, 92; Jordan v. Osgood, 109 Mass. 457; Smith v. Railroad Co., 37 Mo. 287; Railroad Co. v. Doak, 52 Penn. St. 379. In Pennsylvania R. Co. v. Stranahau, 79 id. 405, the court said: "This was not a case where a certain engine had thrown out the sparks which set fire to the plaintiff's barn, but it was where the engine was unknown. Yet the cause of the fire was clearly traced to the railroad track, and left the belief that some one of the engines of the defendants had emitted the coals which set the barn on fire. Hence it was necessary to permit the party to show that the emitting of coals and sparks in unusual quantities was frequent, and was permitted to be done by a number of engines." (2) It is a question of fact whether in any particular place it was negligence to so leave material on or near the track on the grounds of the company, liable to be iguited by the sparks emitted by engines. It is not per se, or as a question of law, negligence, but a question of fact to be determined by the jury in any given case. Pierce Railw. 434; Sear. & R. Neg. 404; Ohio & M. R. Co. v. Shanefelt, 47 Ill. 497; 1 Redf. Railw. 477, and notes; Smith v. Lind & S. W. R. Co., L. R., 5 C. Pl. 98; Karsen v. Milwaukee & St. P. R. Co., 29 Minn. 12; Toledo, etc., R. Co. v. Wand, 48 Ind. 476; Pittsburgh, C. & St. L. R. Co. v. Nelson, 51 id. 150; Kansas P. R. Co. v. Butts, 7 Kans, 308. Gibbons v. Wisconsin Valley Railroad Co. Opinion by Osborn, J.

SALE OF CHATTELS OF SPECIFIED QUALITY-MUST BE SEPARATED FROM OTHERS BY VENDOR TO MAKE DELIVERY.-In a contract for the sale of lumber of a specified quality, held that it was the duty of vendor to separate and set apart the lumber from inferior lumber of different dimensions so as to be capable of identification, and until this should be done, there would not be a sufficient offer to deliver to put the vendee in default for refusing to accept and carry it away. To constitute a delivery of chattels sold, the articles must be set apart so that possession can be taken by the purchaser, without any further act on the part of the seller, except in the case of such articles as wine, oil or grain of common quality, and as are incapable of identification. Kimberly v. Patchin, 19 N. Y. 333; Ward v. Shaw, 7 Wend. 404; Downer v. Thompson, 2 Hill, 137; 2 Pars. Cont. 160; 2 Kent, Comm. 496; Veazy v. Harmony, 7 Greenl. 91; Isherwood v. Whitmore, 11 Mees. & W. 345; Avery v. Stewart, 2 Conn. 69. Hoffman v. King. Opinion by Orton, J.

TOWN-BOUNDARIES BY PRESCRIPTION-IRREGULAR ACTION OF COUNTY BOARD ACQUIESCED IN.-Where the proceedings of a county board in attaching territory to a town were irregular to such a degree as would justify a court in holding them void in an action in which they might have been drawn in question, com