section five of "an act regulating the mode of administering assignments for the benefit of creditors." [58 Ohio L., 105]. Held: This was a judicial sale.

2. Where the assignees afterwards brought an action against the purchasers to foreclose the mortgage given to secure a portion of the purchase money, it is not a good defense to show that the assignees and purchasers were mistaken as to the number of acres in the tract of land so sold.

Decree for plaintiffs.

868. William Edwards et al v. The Bedford Chair Company et al. Error to the District Court of Cuyahoga county.

GRANGER, C. J.

[See contents for case reported in full.]

326. David D. Dungan v. William C. Safford. Error to the District Court of Pike County.

BY THE COURT:

The S., J. & P. R. R. Co., a corporation doing business, but actually insolvent, on August 21, 1878, in payment of a debt due to D., assigned to him an instrument reading thus:

"I hereby agree to pay to W. C. Safford, his heirs, executors, administrators or assigns, five hundred dollars, upon the completion of the Springfield, Jackson & Pomeroy Railroad, from Springfield, in Clark county, O., to Jackson, in Jackson county, Ohio, and the cars are actually running on said road between said two designated points, provided that the said Safford shall subscribe one thousand dollars of stock to said road, to be paid upon the completion of said road, and when the cars are actually running thereon between Springfield and Jackson, as above stated. G. W. A. CLOUGH.

"Dated June 24, 1875."

"I hereby accept the above offer to which G. W. A. Clough has affixed his signature, and I here subscribe twenty shares of stock of fifty dollras each to said Springfield, Jackson & Pomeroy Railroad, to be paid when said Clough has fulfilled his obligation in the above contract. WM. C. SAFFORD." The road was completed, and the cars running on July 20, 1878. On February 14, 1879, D. sued S., averring, in addition to these facts, that S. had refused to sue C. for the $500, and that a reasonable time had elapsed, but did not avef that the money could have been collected by suit.

After his demurrer to the petition was overruled, S., by answer, claimed to set off scrip owned by him like this:

"The Springfield, Jackson & Pomeroy R. R. Co., (Narrow Guage), "Will pay the bearer on demand, at the offices of the sub-treasurers of said company, in Springfield, South Charleston, South Solon, Jeffersonville, Washington, Greenfield, Bainbridge, Waverly or Jackson, "ONE DOLLAR

"On their subscription to the capital stock of said company.

"WAVERLY, O., Sept. 1, 1876.

No. 837. "JAS. EMMITT, President.

"GEO. A. BARNES, Secretary."

When notified of the transfer, S. owned $250 in scrip, and afterwards bought more.

Held: 1. The assignment was valid.

2. S. was not bound to sue for the $500 unless itwas collectible. Would he be then bound to sue? Quaere.

3. S. had a right to set off the $250 of scrip; but if his liability on his subscription bad matured, he could not set off against D. scrip bought after notice of the assignment.

Judgment affirmed.

101. Hildebrant v. Polk. Error to the District Court of Clinton County. Judgment affirmed. No report.

160. Alonzo McGill, executor, &c., v. Williamson. Error to the District Court of Hamilton County. Judgment affirmed. No report. 297. Simonis v. The Insurance Company of North America. Error to the District Court of Seneca County. The bill of exceptions shows a state of facts "proven" that made the entire policy void and entitled the company to a judgment.

Judgment of the district court affirmed. No report.

303. Dresbach et al. v. Dresbach et al. Appeal. Reserved in the District Court of Pickaway County. Decree for plaintiff. No report. 327. Dungan v. Ware. Error to the District Court of Pike County. Judgment affirmed. No report.

328. Munson v. Prichard. Error to the District Court of Licking County.

Judgment affirmed. No report.

333. Fassett v. Rike. Error to the District Court of Lucas County. Dismissed for want of preparation.

338. Bills et al. v. Bills. Error to the District Court of Huron County. Dismissed for want of preparation.

345. Pfau v. Cincinnati Ice Co.

Error to the District Court of Hamilton

County. Dismissed for want of preparation.

346. Pfau v. Andrew. Error to the District Court of Hamilton County. Dismissed for want of preparation.

347. Pfau v. Adam. Error to the District Court of Hamilton County. Dismissed for want of preparation.

350. Carpenter v. Patchel, executor, &c. Error to the District Court of Clermont County. Dismissed for want of preparation.

DIGEST OF CASES.

Accord and Satisfaction-Claim for Personal Injury-Payment Made.Where one having a claim for damages for a personal injury, unliquidated in amount, and, knowing all the facts, demands and receives from the wrong-doer a sum of money, on account of the injury, there being no agreement that the sum is in satisfaction in whole or in part of the cause of the action, it is presumptively an accord and satisfaction for the injury. Hinkle v. R. R. Co. Minn. Sup. Ct. 17 Rep. 468.

Bond- Penalty in — Liquidated Damages - Declarations of Parties.Whether the amount stated in a conditional bond or contract is to be taken as a penalty or a liquidation of damages arising from a breach of the condition, is determined by the intention of the parties drawn from the words of the whole contract, examined in the light of its subjectmatter and its surroundings. The relation must be considered which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against, and the ease or difficulty of measuring a breach of damages. The concurrent declarations of the parties are inadmissible except to show mistake or fraud. Bigony v. Tyson, 25 P. F. Smith, explained. Gillis v. Hall, 7 Philadelphia, 422, approved. March v. Allabough. Sup. Ct. Pa. Phila. Intell., April 11, '84.

City not Liable for Negligent Act by Fireman.-A declaration for damages caused by a defective highway is not sustained by proof of a negligent act of a fireman in the highway frightening a traveler's horse. Edgerly v. Concord. N. H. Sup. Ct. 29 Alb. L. Jour. 291.

Common Carrier-Liability for Goods Destroyed by Fire on Wharf.— Goods were delivered to the defendant, a steamboat company, for transportation. The bills of lading did not designate any particular vessel. The goods were burned on the wharf by a fire not occurring through any neglect of the defendant. Held, that, even though the goods were negligently delayed by the defendant, the delay was not the proximate cause of the loss. Scott v. Baltimore, etc., R. Co.; Odell v. Same: Purcell v. Same. U. S. C. C., D. Md., Jan. 15, 1884. 19 Fed. Rep., 56.

Evidence-Sufficient to Prove Any One Material Ground of Recovery.-In an action to recover damages for an injury on the ground of negligence, where the declaration alleges the grounds of negligence to be in respect to defendant's fence, and that such fence was "improperly, unskillfully and negligently built or constructed in a dangerous and close proximity to" defendant's railroad, etc., it is not necessary to a recovery to prove that the fence was "improperly, unskillfully and negligently so built, etc. It is sufficient to prove any one of the faults charged. The North Chicago Rolling Müll Co. v. Mary Morrissey. Adm'x. Sup. Ct. Ill., March 26, 1884.

Jurisdiction of U. 8. Circuit Courts-U. S. Supreme Court to Determine sua sponte-Consuls of Foreign Countries-Alienage.-1. In cases coming from the circuit courts, this court will determine from its own inspection of the record, whether they are of the class excluded by statute from the cognizance of those courts; this, although the question of jurisdiction is not raised by the parties. 2. The constitutional grant of original jurisdiction to this court of all cases affecting consuls, does not prevent congress from conferring original jurisdiction, in such cases, also, upon subordinate courts of the Union. 3. The jurisdiction of the circuit courts of the United States, of suits by citizens against aliens, is not defeated by the fact that the defendant is the consul of a foreign government. 4 The alienage of a defendant is not to be presumed, from the mere fact that he is the consul, in this country, of a foreign government. Bors v. Preston. U. S. Sup. Ct., Apr. 19, 1884. Ch. Legal News.

Landlord and Tenant-False Representation of Landlord-Escape of Sewer Gas.-Where a landlord knew that a house was not in good order and represented that it was, then the question whether he knew that a cause existed which rendered the house unfit for occupation-such as sewer gas or other noisome stench (as shown by the evidence in an action for rent) was for the jury to determine, not for the court; and if the landlord did know that such cause existed, it was a wrongful act on his part to rent the house without notice of its condition; and if tae tenant, after discovering and experiencing the injurious effects of the stench in the house, was compelled to quit it, the landlord cannot take advantage of his own wrong by enforcing the contract for the payment of rent. Jackson v. Odell. Gen. Term. N. Y. Com. Pleas; 25 N. Y. Daily Reg. 661. Cases cited are 10 C. B. 591; 6 M. & W. 371; 10 N. Y. 37.

Master and Servant-Newspaper Proprietor-Libel—Damages—Mc ice or Recklessness of Employe.-The liability of the owner of a newspaper for the acts of an agent to whose discretion he has committed the paper or a department of it, and over whom he does not exercise supervision, is broader than the ordinary liability of a master for the acts of a servant, and evidence tending to show malicc, recklessness, or carelessnes in the composition or publication of a libel by such agent may be gives by the plaintiff in an action based on such libel against the owner of the paper to enhance the damages recoverable therein., Where under such circumstances a libel has been published it is error to charge the jury that if the owner of the paper had no personal knowledge of the libel before it was published, and afterwards in good faith did what was reasonable to make amends and reparation, punitive damages could not be recovered against him; evidence of such facts may be given in mitigation of damages, but cannot be permitted to control the damages. Bruce v. Reed. Pa. Sup. Ct. 17 Rep. 347.

Necessaries Furnished Adult-Father Not Liable.-A father is not liable for necessaries furnished an adult child who lives at his house as a member of his family, the necessaries being furnished on the request of such child. Necessaries thus furnished are not part of the "family expenses," under section 2214, Code. ADAMS, J., dissenting. Blackley v. Laba. S. C. Ia. 18 N. W. Rep. 658, Court cite; 55 N. Y. 256; 4 Walts 247 ; 3 Pick. 207; 23 Ind. 190; Coxe (N. J.) 449.

Note Containing Promise to Pay Attorney's Fee not Negotiable.—A written promise to pay a specified sum of money two months after date, and if not paid when due, to pay all costs and charges for collecting the same, with interest, is not, in legal contemplation, a negotiable promissory note, forasmuch as the costs and charges of collection, part of the sum agreed to be paid, are uncertain and contingent. F. & M. Co. v. Newman. Md. Ct. App. 29 Alb. L. J. 213.

Practice-Waiver of Irregularity-Judgment before Answer.-A judgment rendered against a defendant before the expiration of the time for answering is irregular, but not void; and if the defendant takes no steps to correct the error, he is persumed to have waived it. White v. Crow. U. S. S. C., Jan. 21, 1884. 4 S. C. Rep. 71.

Partnership-How Proved-Common Report.-When the existence of a partnership has been once shown by independent testimony, proof of a general reputation, or common report of its existence, in the neighborhood in which the business is carried on, is competent to show a probable knowledge of the fact by the plaintiff; and for a like purpose the notoriety of a dissolution, or, perhaps, of the non-existence of a partnership, may be shown to charge a party with implied knowledge of the fact; the principle being, that a person would be likely to know any fact generally known in his neighborhood. But this principle cannot be extended so as to charge a person who resides in a distant city with implied knowledge or notice of a fact, because it is generally known in a remote local neighborhood. Humes v. O'Brian & Washington. Alabama Sup. Ct., Dec., 1883.

Replevin for Goods Purchased at Public Sale.-Although the terms of sale be that a note with security was to be given by the bidders for goods purchased if the amount exceeded ten dollars, a subsequent delivery without requiring a note to be given will pass the title, although there was no actual agreement to waive the giving of a note. Kennedy v, Burt. Phila. Intell., April 11, '84.

Removal to Federal Court-First Term.-A complaint in an action of forcible detainer was filed in the State Court during the April term, and on the fifth day of the term and on the next day the appearance of the defendant was entered by counsel and the service of process waived. Nothing more was done at that term. At the next term the defendant, before the trial, filed a petition to transfer the cause to the Federal Court and gave the necessary bond, but the court refused to transfer the cause. Held, that the defendant was not chargeable with negligence in not pleading to the complaint at the April term, there being no agreement to try the cause at that term, and that the court erred in refusing to grant the prayer of the petition. Flagg v. Walker. Sup. Ct. Ill., March 26, 1884.

Trust Survival of Liability for Breach of―Joinder of Defendants—Absence of Parties beyond the Jurisdiction of the Court-When Relief will be Granted-Joint Breach of Trust-Powers of Receiver Limited to the Jurisdiction where Appointed.-The personal representatives of a deceased trustee are liable to the extent of their assets for breaches of trust, committed in his life-time; and in case of a joint breach of trust the representatives of a deceased trustee may be joined with the survivors as defendants. Wher effectual relief can be given against the parties actually appearing, the courts of the United States will not dismiss a bill because of the absence of other parties whose appearance would be required if they were within the jurisdiction of the court. Such relief can be given against one of several trustees jointly implicated in a breach of trust, since their liability is several as well as joint. A receiver appointed in one jurisdiction to take charge of a fund cannot sue in another in his own name, though expressly authorized by the decree to maintain actions in his own nam Hazard, Com'r, v. Durant. U. S. C. C., Mass. 19 Fed. Rep. 471.