agency of the county to expend this fund. The State may change such agencies at pleasure for the expenditure of any fund, or the disposition of any property, which has been derived from the State, or obtained by the exercise of the ordinary powers of government. Butler v. Pennsylvania, 10 How. 402; United States v. Hartwell, 6 Wall. 385; Newton v. Com'rs, 100 U. S. 548; Warner v. People, 2 Denio, 272; People v. Green, 58 N. Y. 295; Perkins v. Corbin, 45 Ala. 103; People v. Lippencott, 67 Ill. 333; Augusta v. Sweeney, 44 Ga. 463; Co. Com'rs v. Jones, 18 Minn. 199 (Gil. 182); State v. Van Baumbach, 12 Wis. 310; State v. Kalb, 50 id. 178.

8th. If the position of the learned counsel of the respondent is tenable, that this fund cannot be transferred to the town, then the right of the county to it has never attached, for by the sovereign will of the Legislature this fund has been taken away from the towns, cities, and villages to which it formerly belonged, and conferred upon the counties by the same right.

We will close this opinion by the citation of authorities deemed pertinent to the question.

1st. The sale of intoxicating liquors is under the control of the Legislature in every respect (1 Dill. Mun. Corp. 362), and the power to license it may be transferred from one municipal body to another, in the discretion of the Legislature; and it follows that the license moneys may be so transferred. Perdue v. Ellis, 18 Ga. 586; Trustees v. Keeting, 4 Denio, 341; and other cases cited in note 2 to Dill., supra.

2d. Municipal corporations have no private powers or rights as against the State. They may have lawfully entered into contracts with third persons, which contracts will be protected by the Constitution, but beyond that they hold their power from the State, and they can be taken away by the State at pleasure. I Dill. Mun. Corp. 90.

3d. The Legislature can legalize what they could have originally authorized. Single v. Supervisors, 38 Wis. 363; Knapp v. Grant, 27 id. 147; Kimball v. Town of Rosendale, 42 id. 412. There can be no doubt but that the Legislature might have originally authorized the use of this fund by the village for general purposes, and if so, then the use of the fund in this way by the village may be legalized.

4th. There is no constitutional inhibition against the passage of retrospective laws as such. The only question in such case is whether the Legislature intended those to have a retroactive effect, and if so, such effect is given to them by the courts. The objection in respect to such laws is not because they are retroactive, but whether they disturb vested rights or impair the obligation of contracts which were acquired or assumed under them and dependent upon them. In such cases they are invalid, not because retroactive, but on other constitutional grounds. Hasbrouck v. Milwaukee, 13 Wis. 37; Cooley Const. Lim. 230; People v. Morris, 13 Wend. 325; Baltimore & S. R. Co. v. Nesbit, 10 How. (U. S.) 395; Morris v. Crocker, 13 id. 429; Watson v. Mercer, 8 Pet. 88; Ex parte McCardle, 7 Wall. 506; Butler v. Palmer, 1 Hill, 324; Foster v. Essex Bank, 16 Mass. 245; Grover v. Weissenburg School-district, 57 Penn. St. 432.

5th. There is direct authority for such legislation. In State ex rel. v. St. Louis Co. Ct., 34 Mo. 546, it was held that moneys acquired by a county from the taxation of its citizens is not the private property of the county, and an act directing the county to appropriate part of such funds to pay a portion of the police expenses of a city within its limits is not the application thereof to improper purposes, and that such an act is not objectionable for being retroactive or retrospective in its operation. "It takes away no vested right, nor does it impair the obligation of a contract." In County of Richland v. County of Lawrence, 12 Ill. 1, it

was held that money, by an act appropriated to one public purpose, is subject to legislative control, and may be diverted at the will of the Legislature, and that public or municipal corporations, in respect to public powers and duties granted them or required, are subject at all times to the control of the Legisla ture. This was so held in respect to a fund raised by taxation for public improvements in the county, which was afterward devoted to general county purposes. In Regents, etc., v. Williams, 9 Gill & J. 365, it was held that an act making an appropriation of public moneys for sanitary purposes, having in view the public health and the lives of the citizens, confers no vested right on the public corporation in such fuud, and may be revoked at the pleasure of the Legislature. In Supervisors of Walworth Co. v. Village of Whitewater, 17 Wis. 193, it was held by this court that the county could not recover the moneys received by the village for licenses for the sale of intoxicating liquors, which under the charter of the village was given to it, notwithstanding the county had adopted the county system of supporting the poor. This provision of the charter took effect in 1858, and the general law giving all such such moneys to such counties for the support of the poor was passed in 1855. It made no difference in the principle that the charter allowed the city to only retain all exceeding 10 per cent of such moneys. It was for that exceeding the 10 per cent that the suit was brought. The case was precisely parallel to this, and it was held that the county could not recover. It is true this constitutional question was not raised, and probably because there was nothing in it. The case of State ex rel. v. Hoefltuger, 31 Wis. 257, is analogous to this case in every respect of principle, including this constitutional question as well. Under the law, as it then stood, the proceeds of the sale of the swamp and overflowed lands were to be paid by the State to the county treasurers, aud by them to the town treasurers, to be used by them for the drainage of the swamp and overflowed lands within the same. By a subsequent act all of this fund in the hands of the town treasurers of certain two towns, and all that might accumulate in the next succeeding three years, were set apart to be used for the building of a bridge across the Wisconsin river, within one of said towns, and for that purpose they were placed within the control of certain bridge commissioners appointed by the act. It did not appear that any contracts had been entered into anticipating the bridge fund. The town treasurer became relator for a mandamus to compel the county treasurer to pay over said moneys which had accumulated in his hands, and which it was claimed belonged to said town for such drainage purposes, on the ground that the act diverting it for the purpose of building said bridges was unconstitutional and void, as violating a vested right. The Circuit Court so held, and granted the peremptory writ. On appeal to this court it was held that such judgment was erroneous, and that such moneys constituted a public fund within the full control of the Legislature. Before the suit was commenced an act had been passed repealing the bridge act, but it had not taken effect before the disposition of the case in the Circuit Court; but it had taken effect before the disposition thereof in this court, and therefore to save another action the judgment of the Circuit Court was affirmed. Chief Justice Dixon uses the following apt language in the opinion in that case, in respect to legislative control over such public funds: "No principle is better settled than that whatever is given by statute may be taken away by statute. * *Sup

*

posing it to have been competent for the Legislature to pass the act (the bridge act), of which we entertain no doubt, the money was that of the State by its Legislature to give, and by the same sovereign power to

Many other authorities might be cited to the same effect, but this opinion is much longer than it should be already in respect to a question of however great importance, yet concerning which there can be but little doubt when the nature of such public funds is considered. The very proposition that a municipal corporation, created and existing for public purposes only, can hold its public property or funds independent of the Legislature, or as a vested right, unless private contracts depend upon them, is a contradiction in itself.

This court has been greatly aided in the investigation of this question by the very able briefs of the counsel on both sides, and especially by the brief of the learned counsel of the appellant, which reflects great credit upon his ability, learning, and research.

The judgment of the Circuit Court is reversed, and the cause remanded, with direction to dismiss the suit.

[That a license is not a contract, see 34 N. Y. 657. -ED.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

REAL ESTATE-CONDITIONS NOT FAVORED-WORDS

CONSTRUED AS COVENANT.-A. covenanted with B., C., and D., by an instrument under seal, that he would, when they required, convey to them a certain piece of land in fee simple in trust for the sole use of a company thereafter to be formed for supplying a certain borough with water, said ground to be for a reservoir of a certain size specified. B., C., and D. covenanted that A. should, upon erecting a hydrant at his own expense, have a supply of water from the reservoir for his use. The water company was formed, and B., C., and D. released all their rights under the above agreement to said company, which thereupon constructed a reservoir of the size specified on the premises. Several years after A. constructed a hydrant, and drew water from the reservoir for his own use for a few years. He then discontinued the use of said hydrant, and subsequently died. Fifty years after the date of the original agreement, and twenty-five years after the discontinuance of the use of the hydrant, the water company abandoned the premises, filled up the reservoir, and conveyed the land to a religious corporation for church purposes. In ejectment against the church by purchasers from the heirs of A., Held, that the agreement between A. and B., C. and D., did not constitute a base fee determinable on the cessation of the use of the premises for a reservoir, but that it passed a fee. The agreement to furnish a supply of water to A. was a covenant merely, which they could not be called on to fulfill unless A. constructed a hydrant. A. and his heirs having failed to construct and maintain a hydrant for a quarter of a century, the defendant was entitled to judgment. Whenever words can be construed either as a condition, reservation, or a covenant, the tendency of the courts is to construe them as one of the latter, rather than as the former. Hoyt v. Kimball, 49 N. H. 3:26; Wheeler v. Dascomb, 3 Cush. 285; Paschall v. Passmore, 3 Harris, 295; McKnight v. Krutz, 1 P. F. Smith, 232. Words relied on as creating a condition must not only be such as of themselves would create a condition, but must be so connected with the grant as to qualify or restrain it. Laberee v. Carleton, 53 Me. 211. It was said by Mr. Chief Justice Bigelow in Packard v. Ames, 16 Gray, 327, "we know of no authority by which a grant declared to be for a special purpose, without other words, can be held to be a condition. On the contrary, it has

conditional estate unless coupled with a clause for the payment of money or the doing of some act by the grantee, on which the grant is clearly made to depend." To make the estate conditional, the words must clearly show such intent. Cook v. Trimble, 9 Watts, 15. First Methodist v. Old Columbia. Opinion by Mercur, C. J.

[Decided Oct. 1, 1883.]

MARRIAGE-POST-NUPTIAL AGREEMENT-SETTLING DIFFERENCES-CONSIDERATION.-The settlement and compromise of doubtful and disputed rights has always been held to be a sufficient consideration to support a contract whether executed under seal or otherwise. Rice v. Bixler, 1 Watts & Serg. 445; Chamberlain v. McClurg, 8 id. 31; Paxson v. Hewson, 8 Week. Notes, 197. And the law looks with equal favor upon agreements, the object of which is to promote domestic peace and harmony, where they are free from fraud or the suspicion of improper influence. And family compromises, especially if they are made in good faith and with full disclosure, are favored in equity, and may be sustained by the court, albeit perhaps resting upon grounds which would not have been satisfactory if the transaction had occurred between strangers. Bispham's Equity, 192. The same principle is distinctly recognized by many of our own cases, among which may be mentioned, Share v. Anderson, 7 S. & R. 62; Barton v. Wells, 5 Whart. 225; Smith v. Warden, 7 Harris, 430; Worrall's Accounts, 5 W. & S. 111; Ackla v. Ackla, 6 Barr. 232; Fulton v. Moore, 1 Casey, 476; Walworth v. Abel, 2 P. F. S. 370. It is said however that in the present case the differences were purely domestic, that no property rights were involved and that it was the duty of the wife to return to her husband. This is assuming the whole case, and it is assuming it against all its probabilities. The "differences which caused the separation are not specified in the preamble of the agreement, but there is much upon the face of that instrument to show that rights of property were the foundation of the whole trouble. 2. If a husband's conduct is such that his wife is legally justified in leaving him, she has the right to remain absent, and her agreement to return is a sufficient consideration to support a post-nuptial contract entered into by her with him. Burkholder' Appeal. Opinion by Paxson, J.

[Decided Feb, 4, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

-

ACKNOWLEDGMENT DEFECTIVE, HOW CURED.There is in this certificate an absence of the clause, "to me known to be the person who executed the foregoing instrument. In Smith v. Garden, 28 Wis. 685, it was properly held by this court that an acknowledgment made in said district, leaving out these words, was no such acknowledgment as entitled the deed to record in the territory of Wisconsin by the laws thereof. The last clause of the requirement of the law in that case is significant as to proof of the identity of the grantor. The evident purpose of any such legal requirement is that the identity of the grantor as the person who executed the deed and the person who makes the acknowledgment, shall be authenticated or proved as a fact to the extent possible by the certificate of the officer. If then the certificate is sufficient of such identity, it is substantially in the form required by the statute. Under the strict statute of 1847 of the State of Illinois, which requires the person who executed the instrument to be known to the acknowledging officer, and that he should so certify, and

to his identity, it has been held that reference may be had to the deed and its attestation to help out any such defect in the certificate. Carpenter v. Dexter, 8 Wall. 513. This authority has been approved, as said by the learned counsel of the appellant, in Logan v. Williams, 76 Ill. 175; Nelson v. Graff, 44 Mich. 433; S. C., 6 N. W. Rep. 872; Wells v. Atkinson, 24 Minn. 161; Kelley v. Rosenstock, 45 Md. 389; and in Chase v. Whiting, 30 Wis. 544; in which last case the omission of the year of November 1st was helped out or supplied by reference to the date of the deed, on the authority of Carpenter v. Dexter, supra, and Brooks v. Chaplin, 3 Vt. 281. In Carpenter v. Dexter, stress was laid upon the fact that the acknowledging officer was an attesting witness to the execution of the deed. In Jackson v. Gumaer, 2 Cow. 552, and in Thurman v. Cameron, 24 Wend. 87, under the statute of New York, requiring such words to be used in the certificate, and where it was stated therein only that the grantor "was known" to the officer without the addition of the words "to be the person who executed the instrument," the certificate was held sufficient. But these cases may have been disapproved in Smith v. Garden, supra. From the authorities therefore as well as reason, the deed and its attestation may be resorted to, if necessary, to show, together with the certificate, that the officer knew that the person who makes the acknowledgment is the person who executed the deed, and has substantially so certified. Hiles v. La Flesch. Opinion by Orton, J. [Decided Jan. 29, 1884.]

NOT FILED IN

ASSIGNMENT-VOID - INVENTORY TIME. The statute provides that "within ten days after the execution of the assignment the assignor shall make and file in the office of said clerk a correct inventory of his assets and a list of his creditors, *** and a failure to make aud file such inventory and list shall render such assignment void, but no mistake therein shall invalidate such assignment or affect the right of any creditor." The construction which should be given to this section has been considered by the court in two cases: Farwell v. Gundry, 52 Wis. 268; S. C., 9 N. W. Rep. 11; and Steinlein v. Halstead, 52 Wis. 289; S. C., 8 N. W. Rep. 881. Both cases hold that the statute is imperative; that a correct inventory of the assets and list of creditors must be made and filed within the ten days, otherwise the title of the assignee, under the assignment, will be divested, unless it appear that the want of correctness in the inventory or list arose through a mistake or fact or law made by the assignor. The cases cited by the learned counsel for the appellant from Minnesota, Kingman v. Barton, 24 Minn. 295; Swart v. Thomas, 26 id. 141; S. C., 1 N. W. Rep. 830, have but little bearing upon the construction of our statute. By the statute of that State, although there is a provision requiring the assignee to make and file an inventory, etc., within ten days after the assignment, there is no declaration that the failure to do so shall render the assignment void. See Gen. St. Minn. 1878, ch. 41, § 24. A conclusion directly contrary to the decisions in Minnesota was arrived at by the Court of Appeals of the State of New York upon a statute in all respects like the statute of Minnesota. Julian v. Rathbone, 39 N. Y. 369; Brennan v. Wilson, 71 id. 502. See chapter 348, Laws N. Y. 1860. Under our statute there is no room for construction, as it expressly declares the failure to make and file a correct inventory shall render the assignment void. Haben v. Harshand. Opinion by Taylor, J. [As to N. Y. Stat., see Laws 1877, ch. 466. as amended Laws 1878, ch. 318.-ED.]

[Decided Jan. 29, 1884.]

CONTRACT-FUTURE DELIVERY-WHEN VALID BONA FIDE OF ONE PARTY-BREACH-DAMAGES.-It seems to be settled that where a contract for future delivery is

valid in its inception, and not tainted with any gambling intent, the mere fact that at the time for its fulfillment, instead of delivering and receiving the article according to the terms of the contract, one of the parties makes default, and thereupon the parties settle on the basis of actual differences in the contract price and the market value at the time of the breach, does not render the contract void as a gambling contract. Brua's Appeal, 55 Peun. St. 294; Smith v. Bouvier, 70 id. 325; Fareirs,v. Gabell, 89 id. 89; Clarke v. Foss, 7 Biss. 540; Gilbert v. Gaugar, 8 id. 214; Williar v. Irwin, 11 id. 57; Sawyer v. Taggart, 14 Bush, 727. The mere fact that delivery was to be made at such time as the seller might elect for the price stipulated, did not make the contract invalid upon its face. It has been repeatedly held that where the only option the seller has is as to the precise time of delivery, and the legal effect of the agreement is that the delivery must be made within a limited period, the contract is not thereby rendered illegal. Pixley v. Boynton, 79 Ill. 353; Logan v. Musick, 81 id. 415; Bigelow v. Benedict, 70 N. Y. 204; 26 Am. Rep. 523; Story v. Saloman,71 N.Y. 420; Harris v. Tumbridge,83 id.99; 38 Am. Rep. 398. Nor does the mere fact that the contract authorized the seller to exact margins as security make the contract illegal within the authorities, if it was otherwise valid. Hatch v. Douglas, 48 Conn. 116; 40 Am. Rep, 154; Corbett v. Underwood, 83 III. 324; Union National Bank v. Carr, 15 Fed. Rep. 438. But although the contract in question did expressly stipulate for actual performance, and did not expressly make such differences the exclusive subject or object of the contract, still it does not necessarily follow that the contract was not for a fictitious transaction, but was made with a bona fide intention on the part of the seller to deliver the article and receive the price, and on the part of the buyer to receive the article and pay the price. We are not aware of any adjudicated case going to the extent of holding that such mere secret intention of one party to the contract, not communicated to the other party, is sufficient to invalidate such contract. In Barnard v. Backhaus, 52 Wis. 597, it was clearly and satisfactorily proven, that in respect to some of the transactions none of the parties intended an actual sale and purchase of the wheat. As indicated by this court in Lowry v. Dillman, 18 N. W. Rep. 4, it is only "where neither party intends to deliver or accept," that the contract is illegal. To the same effect are Murry v. Ocheltree, 59 Iowa, 435; S. C., 13 N. W. Rep. 411; Clarke v.Foss, supra; Williar v. Irwin, supra; Sawyer v. Taggart,supra; Williams v. Carr. 80 N.C. 294; Williams v. Tiedemann, 6 Mo. App. 269; Rountree v. Smith, 2 Sup. Ct. Rep. 630; Grizewood v. Blane, 73 Eng. C. L. 541. In Murry v. Ocheltree, supra, it was held that although the defendant intended simply to gamble on the fluctuations of the markets, yet since the evidence showed affirmatively that the transaction on the part of the plaintiffs was a bona fide sale of grain to be actually delivered at a future time, they were entitled to recover. Wall v. Schneider. Opinion by Cassoday, J.

[Decided Jan. 29, 1884.]

EMINENT DOMAIN-AWARD-APPEAL NEED NOT BE JOINT IF RAILROAD APPEAL ALL PARTIES IN COURT.

In this case the railroad company moved to dismiss the plaintiff's appeal from the award on the ground, among others, of a failure of others to join in the appeal. Held, that there is no duty imposed upon a person who is made a party to such proceeding by the railroad company to see to it that other parties claiming an interest in the premises are made parties thereto. That duty is cast by the statutes upon the company. Section 1849, Rev. St. 1878, clearly provides that one or more of several parties to an award

may appeal from such award without joining all the parties thereto. The words "any party may appeal," followed afterward by the words "the appeal shall be considered an action pending in court, subject, etc.,

* and shall be entered by the clerk upon the records of the court by setting down the owner or owners of the land for which such award was made, and who are parties to the appeal as plaintiffs, and the railroad corporation as defendant," are conclusive upon this question. It is very clear to us that if the statute had intended to require all the land-owners to make a joint appeal, the words "and who are parties to the appeal" would not have been inserted in the statute. Wooster v. Railroad Co., 57 Wis. 311; S. C., 15 N. W. Rep. 401; Watson v. Railroad Co., 57 Wis. 347; S. C., 15 N. W. Rep. 468. Those who do not choose to appeal must be deemed to have elected to take such share of the money awarded by the commissioners for the whole of the property taken as their interest in the land entitles them to; and upon the trial of the action upon the separate appeal of one party he can only recover damages for such an interest or estate in the lands taken as he can establish in himself on such appeal. In this case the railroad company has also appealed from the whole award, and all the parties to the original proceeding were therefore in court; and if the company wanted their presence upon the trial of the one appellant's case, an order should have been obtained to try both appeals together. Washburn v. Milwaukee. Opinion by Taylor, J.

[Decided Jan. 29, 1884.]

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

VERDICT-RULING OF COURT AS TO OPENING AND CLOSING-VENUE CHANGED-IMPARTIAL TRIAL-REMARKS OF COUNSEL.-(1) A verdict will not ordinarily be set aside on exception to the ruling of the court giving the right to open and close to either party unless it appear that injustice has been done. Boardman v. Woodman, 47 N. H. 120, 143; Hardy v. Merrill, 56 id. 227, 244; Schoff v. Laithe, 58 id. 503; Day v. Woodworth, 13 How. 363, 369. (2) When the venue has been changed for the purpose of securing a fair trial, that purpose cannot be defeated by irrelevant statements and arguments of counsel addressed to the jury in relation to the change of venue calculated to withdraw their attention from the true issue, to excite in their minds a prejudice against the defendant which was not based on the evidence, and if they had the slightest weight on the mind of a single juror the defendant did not have that fair and impartial trial which was his right, and which it is the duty of courts to give. The verdict was not a true verdict according to the law and the evidence given to the jury. Tucker v. Henniker, 41 N. H. 317; State v. Foley, 45 id. 466; State v. Smith, 75 N. C. 306; Coble v. Coble, 79 id. 589; Ferguson v. State, 49 Ind. 33; Hennies 7. Vogel, 66 Ill. 401; Rolfe v. Rumford, 66 Me. 564. It is neither the duty nor the right of counsel to appeal to prejudices, just or unjust, against his adversary, outside the case he has to try. The fullest freedom of speech within the limits of the evidence should be accorded to counsel; but it is license, not freedom of speech, to travel outside the record, basing his argument on statements not supported by evidence, and appealing to prejudices which find no warrant in the case. Brown v. Swineford, 44 Wis. 282. Hilliard v. Beattie. Opinion by Stanley, J. [Decided Dec., 1879.]

* Appearing in 59 New Hampshire Reports,

ESTOPPEL-ASSIGNEE OF MORTGAGE-PAYMENTMERGER-CREDITOR OF PURCHASER.-The assignee of a mortgage having purchased the mortgaged premises and assumed the payment of the mortgage debt, afterward representing the mortgage as valid and subsisting and transferring it as such to a purchaser in good faith without notice of any defect, is estopped as against such purchaser from showing or insisting upon the fact of the payment of the mortgage debt, or claiming that the mortgage title has merged in the fee. Jones on Mort., § 947; International Bank v. Bowen, 80 Ill. 541; Powell v. Smith, 30 Mich. 451. (2) Such estoppel extends to a levying creditor of such purchaser of the mortgaged premises, claiming to hold the same under a levy made subsequent to the transfer of the mortgage. Parker v. Crittenden, 37 Conn. 148. In Benson v. Tilton, 58 N. H. 137, and Bowman v. Manter, 33 id. 530, there was no concealment of facts and no estoppel. Graves v. Rogers. Opinion by Clark, J. [Decided Dec., 1879.]

DECEDENT'S ESTATE-SETTLING WITHOUT ADMINISTRATION-WHEN BOUND.-All the persons interested in a decedent's estate, fairly settling it without administration, are bound by their settlement. Hibbard v. Kent, 15 N. H. 516; Clarke v. Clay, 31 id. 393; George v. Johnson, 45 id. 456; Mercer v. Pike, 58 id. 286. Woodman v. Rowe. Opinion by Doe, C. J. [Decided Dec., 1879.]

WATER-COURSE-RIGHT TO TAKE FROM ONE SOURCE EXCLUDES EVERY OTHER.-The deed from the defendant to the plaintiff describes the water-right conveyed. Its language, construed in the light of surrounding circumstances, shows that the parties understood a right was granted to take water from the fish pond only. The water running from the reservoir to the Warden place at the time of the conveyance must have been drawn from the reasonable supply reserved for the Stone house. The express mention of the right to take water from one source excludes by implication the right to take water from any other. Hare v. Horton, 5 B. & Ad. 715; Coolidge v. Hager, 43 Vt. 9. The plaintiff acquired by his deed no other water-right than that expressly described. The deed to Ricker was competent to show the state of the defendant's title at the time of his grant to the plaintiff as evidence on the question of the construction of the grant. Warden v. Balch. Opinion by Bingham, J. [Decided Dec., 1879.]

LIMITATION-PART PAYMENT-NEW PROMISE.-Part payment of a note on Sunday and an indorsement of it on the same day are not evidence of a new promise to remove the bar of the statute of limitations. Clapp v. Hale, 112 Mass. 368. Whitcher v. McConnell. Opinion by Allen, J.

NEVADA SUPREME COURT ABSTRACT.

MARRIAGE-DIVORCE- 46 EXTREME CRUELTY "-HUSBAND COMPLAINANT.-In actions for divorce on the ground of extreme cruelty, the element of danger to life, limb or health must exist to constitute legal cruelty; but actual or threatened physical violence is not necessary to produce this effect; it may be accomplished by any continued course of insults and humiliations-health and even life may be destroyed thereby. The statute contemplates cases where a husband may be complainant as well as a wife, because he may possibly be the weaker party, and because if not he may be tempted to use violence in self-defense. Richards v. Richards, 37 Penn. St. 228; Evans v. Evans, 1 Hagg. Cons. 35; Butler v. Butler, 1 Pars. Sel. Cas. 344; Forth

[Decided July 11, 1883.]

SALE-DECLARATION OF VENDOR AFTER, INADMISSIBLE.-The declarations of a vendor made after a sale by him and after he has parted with the possession to the vendee, cannot, for the purpose of impeaching the bona fides of the transaction, be received in evidence, and a verdict obtained upon such material illegal testimony cannot stand. A party cannot question the truth of his own allegations and attempt in the appellate court to show that a sale which he alleges was made at a certain date was really made at a different time. Hirschfield v. Williamson. Opinion" by Leonard, J. (30 Kaus. 353; 49 N. Y. 661.-ED.) [Decided July 25, 1883.]

ΤΟ

RECENT ENGLISH DECISIONS.

AGENCY-FACTOR'S LIEN-RESTRICTED AUTHORITY. Where agents were intrusted with the possession of goods for the purpose of sale, and acted under special instructions from their principal to sell the goods at a particular price, and to sell in their principal's name, the court held that they did not thereby lose their character of factors or the right of lien attaching thereto. Matter of Dixon, L. R., 4 Ch. Div. 103, 137. Ct. of App., Nov. 7, 1883. Stevens v. Miller. Opinion by Cotton and Lindley, JJ. (50 L. T. Rep. [N. S.] 36.) EASEMENT-WATER SUPPLIED BY PIPES-ENTERING REPAIR-INJUNCTION — COSTS.- Plaintiff's estate was entitled to a supply of water from a distant spring by means of pipes passing under the intervening land of the defendant. Held, that the plaintiff's right, carrying with it the right to enter upon the defendant's land for the purpose of cleansing or repairing the pipes, the defendant might be restrained from so building over the line of pipes as to render the plaintiff's access thereto materially more inconvenient and costly. Plaintiff brought his action for injunction without first making application to the defendant. Held, that plaintiff was not thereby disentitled to his costs of action. Ch. Div., Nov. 1883. Goodhart v. Hyett. Opinion by North, J. (50 L. T. Rep. [N. S.] 95.) AUCTION-FIRST SALE ABORTIVE-ON SECOND MAY ADD COSTS OF FIRST.-At a sale by auction by a mortgagee the property was knocked down to P., who gave his check for the deposit and falsely signed the memorandum as purchasing as agent for E. P. was not called upon by the auctioneer for any references as to his alleged agency. P.'s check was returned, he having no assets. The mortgagee brought an action for foreclosure or sale, and claimed to add to his security the costs of the abortive sale. Held, that there had been no negligence on the part of the plaintiff or the auctioneer either in accepting P.'s check or in not requiring any reference, and that the plaintiff was entitled to add the costs of the abortive sale to his security. Ch. Div., Nov. 24, 1883. Farrer v. Lacy. Opinion by North, J. (50 L. T. Rep. [N S.] 121.)

CRIMINAL LAW.

ALIBI-ONUS-BURGLARY- POSSESSION NOT ESSENTIAL TO CONVICTION-WHERE WILL NOT INTERFERE WITH VERDICT-IMPROPER REMARKS OF COUNSEL.-(1) It is well settled that the onus of proving an alibi in a criminal case devolves upon the accused, and it must

avail, where the evidence otherwise makes out a clear case against him. This defense cannot be made out in a case where the evidence to show the same is, in many important particulars, conflicting or uureliable. (2) Where a burglary has been committed, and money and other property taken, it is not indispensable to the conviction of one accused of the crime to trace the fruits of the crime to his possession. Convictions of this kind are frequently sustained without such evidence, especially when the criminating evidence is strong. (3) Unless this court is able to see that the jury, in finding a defendant guilty of the crime charged, have clearly erred in their couclusions of fact, it will not feel authorized to interfere with the verdict. (4) Where the evidence of the guilt of one convicted of crime is strong and satisfactory, the judg ment will not be reversed for mere improper remarks of counsel for the people tending to prejudice the jury against the accused. Ill. Sup. Ct. Garrity v. People. Opinion by Mulkey, J. (107 III. 162.)

INDICTMENT-RAPE-WHEN ALLEGATIONS INSUFFI

CENT. The indictment charged that the accused, for the purpose and with the intent of having carnal knowledge, "unlawfully and forcibly detained her," but did not aver anywhere that the detention was against her will. Held insufficient, it should have been alleged, that the detention was against her will, for she may have apparently opposed while she really inclined to favor the detention. Kentucky Ct. of App. Wilder v. Commonwealth. Opinion by Hargis, C. J. (4 Ky. L. R. & J. 635.)

VERDICT-COURT DIRECTED ACQUITTAL· -DISCRETION-ACCOMPLICE UNCORROBORATED.—Where there is no evidence against the accused, except the uncorroborated testimony of an accomplice, it is discretionary with the trial court whether to direct an acquittal or not. Ingalls v. State, 48 Wis. 647; 4 N. W. Rep. 785, Mack v. State, 48 Wis. 286; 4 N. W. Rep. 449; Mercer v. Wright, 3 Wis. 645. Wis. Sup. Ct. Black v. State. Opinion by Cassoday, J. (18 N. W. Rep.)

EVIDENCE-BURDEN OF PROOF-WHETHER TENANT OR NOT.-Whether a husband, carrying on a farm owned by his wife and held by her to her own use, occupying with her the dwelling-house thereon, taking the crops annually, and having the general management of the premises, is tenant, or servant, of his wife, is a question of fact, and on that question there is no presumption of law changing the burden of proof from the State to the defendant. If the contrary rule is laid down in Albin v. Lord, 39 N. H. 196, 205, it cannot be sustained. Bickford v. Daue, 58 N. H. 135; Noyes v. Hemphill, id. 536; State v. Hodge, 50 id. 510; Savings-Bank v. Getchell, ante, 59 id. 281. State v. Hayes. Opiniou by Bingham, J. (59 N. H. 450.)

INSURANCE LAW.

LIFE-POLICY FOR THE BENEFIT OF CREDITOR-PRESUMPTION OF DEATH-EVIDENCE TO OVERCOME.—Absence of a person alone does not raise a presumption of his death; but such absence, in connection with surrounding circumstances,such as the failure by his family and friends to learn of his whereabouts, his character and business relations, together with the fact that he was last known to be seen near the place where a murder is supposed to have been committed, and the reputation in his family and with his friends that he is dead, creates a very strong presumption of death, the