JUDGMENT OF JUSTICE OF PEACE-INSUFFICIENCY OF EVIDENCE.-. A judgment rendered by a justice of the peace cannot be upheld by mere intendment; there must be some legitimate evidence tending in some degree to establish every fact essential to the cause of action. Evidence held insufficient to establish employment of real estate broker, and that he was the procuring cause of the sale. Chappell v. Truscott. Opinion by Beckwith, J.

JUSTICE'S JUDGMENT EXCESSIVE COSTS. If a judgment rendered by a justice court violates the statute, which provides that "the whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, shall not, in any case, exceed five dollars" (3 R. S. 247, § 117), the whole is vitiated. Kunz v. Echhert. Opinion by James M. Smith, J.

-WHEN NOT FRAUDU

MORTGAGE OF MERCHANDISE LENT. - Where there was no express agreement or stipulation, verbal or written, that the mortgagor should remain in possession of the merchandise mortgaged and sell it in the usual course of business, but the mortgagor did continue in possession of the merchandise and sold part of it in the usual course of trade at retail, with the knowledge of the mortgagee, and though there was no proof that any part of the proceeds had been applied on the mortgage, held, that the mortgage was not, as a matter of law, fraudulent as against the creditors of the mortgagor, and a nonsuit of the mortgagee was error. Hastings v. Parke. Opinion by Beckwith, J.

SALES FRAUDULENT AGAINST CREDITORS.- After trial, but before judgment rendered against him, a man executed and delivered to his wife a bill of sale of furniture in the house occupied by them, but without any actual and continued change of possession of the goods. In replevin by the wife against a constable who levied upon the goods under the judgment aforesaid, held, that the plaintiff was bound to establish affirmatively that the sale was made in good faith and without any intention to defraud creditors. Randall v. Parker, 3 Sandf. 69; Jones v. O'Brien, 36 N. Y. Sup. Ct. 58. Marvin v. Smith. Opinion by Beckwith, J.

USURY-MORTGAGE-PAROL EVIDENCE- ESTOPPEL BY GUARANTY OF MORTGAGE. A conveyed lands to B, and received in return a bond and mortgage, which he sold and assigned to plaintiff, with a guaranty of their payment, and shortly thereafter B re-conveyed the lands to A. In an action to foreclose the mortgage, held, (1) that evidence was admissible to show that the deed, bond and mortgage were given without any consideration, and were made for the sole purpose of obtaining a loan of money from the plaintiff at a usurious rate of interest, by the sale of the bond, etc., to him, and that the same was known to him when he purchased and took the assignment of them. Parol evidence is admissible to show that an instrument is void, or that it never had any legal existence or binding force, either by reason of fraud, or for want of due execution and delivery, or for the illegality of the subject-matter; or that it was made for the furtherance of objects forbidden by law; whether it be by statute, or by an express rule of the common law, or by the general policy of the law. (2) That the mortgagee (A) was not estopped by reason of his guaranty from showing these facts. Where the assignee of a mortgage sets up an estoppel against the mortgagee, based on the warranty or assurance of the validity of the security by the mortgagor, the latter may show that the assignee could not have believed or acted upon such assurance or warranty, because he well knew the mortgage was void. Fellows v. Wallace. Opinion by James M. Smith, J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

ATTORNEY -HAS NO POWER TO COMPROMISE CLIENT'S CLAIM.-An attorney at law in Pennsylvania has, as such, no authority to compromise his client's claim. In Stokely v. Robinson, 10 Cal. 315, it was held that an attorney, by virtue of his professional relation, has no power to compromise his client's case without the client's authority or sanction; and this doctrine is supported by the cases of Huston v. Mitchell, 14 S. & R. 307, and Stackhouse v. O'Hara's Ex'rs, 2 Harris, 88. In the latter case it was said, per Coulter, J.: An attorney at law in Pennsylvania has very extensive power in relation to conducting a suit, but after judgment this plenary power, in a great measure, ceases, excepting as to his power of receiving the amount of the judgment and giving a receipt for it." Housenick v. Miller. Opinion by Gordon, J. [Decided March 22, 1880.]

CONTRACT-NON-PERFORMANCE CAUSED BY ACT OF GOD NO BREACH.-C. agreed with J., who owned a hotel, to supply spring water to the hotel through pipes that were laid from a spring that was the only regular source of supply since the hotel was built. J. leased the hotel, agreeing with the lessee that the hotel should "be supplied with spring water during said term in the manner the same is now supplied under that certain agreement' between C. and J. Held, that a failure of the water supply, caused by the drying up of the spring, was not a breach of the contract. Ward v. Vance. Opinion by Trunkey, J. [Decided March 22, 1880.]

ILLEGAL CONSIDERATION-PROOF OF. - The proof of a mere threat of prosecution for a felony, inducing the execution of an instrument, is not sufficient to establish the invalidity of the instrument as having been given for an illegal consideration, there being no proof of the felony or of an agreement not to prosecute. Swope v. Jefferson Fire Insurance Co. Opinion by Sterrett, J.

[Decided May 3, 1880.]

NEGLIGENCE-RAILROAD ENGINE SPARKS SETTING FIRE THAT FIRE OCCURS NOT EVIDENCE OF NEGLI

GENCE. In an action against a railroad company for fire caused by sparks from its engine, it was claimed that its spark arresters were defective and its engines carelessly managed, but no evidence of that fact or that the company was negligent was given, except that it was shown that the dry grass and stubble along the company's track were ignited. Held, not sufficient to establish negligence, and a submission of the question to the jury was improper. The company in operating its road had a right to use steam engines; and no person, natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a proper regard for the rights of others. The company was bound, however, to use spark arresters of the most approved kind, keep them in good order, and exercise reasonable care and vigilance in running its engines. The bare fact that dry grass and stubble on the line of the road were ignited was not of itself evidence of negligence in either of these particulars. It is impossible so to construct or equip an engine that no sparks will be emitted. The most that can be done is to prevent the escape of large sparks or coals. The most approved spark arresters necessarily permit the escape of small sparks, and if these come in contact with dry and combustible material on a windy day, the result is very frequently a fire, more or less extensive according to the kind and quantity of material at hand for it to feed upon. The burning of dry grass and other combustible material along the line of the road, without more, was neither negligence nor evidence from

which a jury would be justified in finding negligence. The principle involved in this case was recognized and applied in Jennings v. Railroad Co., recently decided in the Western District. Upon a state of facts differing in no essential particular from those of the present case, the jury was instructed to render a verdict for defendant; and in affirming the judgment, it is said: ,'To hold that the fact of the fire having taken place was prima facie evidence that the spark arrester was defective, and therefore that the case ought to be submitted to the jury, would be practically to hold railroad companies liable for all fires; it is a notorious fact that no spark arrester has yet been invented to prevent all sparks, and a little spark may kindle as large a conflagration as a large one. It depends on the dryness or humidity of the atmosphere, whether a spark will go out before reaching the ground, and whether what it reaches is in a condition to be easily ignited." Reading & Columbia Railroad Co. v. Latshaw. Opinion by Sterrett, J.

[Decided March 15, 1880.]

ILLINOIS SUPREME COURT ABSTRACT. MAY, 1880.*

ATTORNEY -INVESTING IN CLAIM AGAINST CLIENT. It is not to be tolerated that an attorney shall advise or encourage a client in investing in a bad title, and himself afterward buy up the better title and assert it as against his former client. Such a practice would open a door to endless wrongs and villanies, and bring great and just reproach upon the profession. "If an attorney employed by the party should designedly conceal from his client a material fact or principle of law, by which he should gain an interest not intended by the client, it will be held a positive fraud, and he will be treated as a mere trustee for the benefit of his client and his representatives; and in a case of this sort it will not be permitted to the attorney to set up his ignorance of law or his negligence as a defense or an excuse. It has been justly remarked that it would be too dangerous to the interests of mankind to allow those who are bound to advise, and who ought to be able to give good and sound advice, to take advantage of their own professional ignorance, to the prejudice of others. Attorneys must, from the nature of the relation, be bound to give all the information which they ought to give, and not be permitted to plead ignorance of what they ought to know." Gibbons v. Hoag. Opinion by Scholfield, J.

CONSTITUTIONAL LAW EMINENT DOMAIN-TAKING PRIVATE PROPERTY FOR PUBLIC USE-ASSESSMENT FOR SIDEWALK NOT.-The constitutional limitation that private property shall not be taken for public use without just compensation, to be ascertained by jury when not made by the State, has reference only to the exercise of the power of eminent domain, and not to special taxation of contiguous property for the building of a sidewalk or other public improvement by cities, towns and villages. Warren v. Henley, 31 Iowa, 31. It is quite clear that the levying such local assessments (for the building of sewers and sidewalks) is not taking private property for public use under the right of eminent domain, but is the exercise of the right of taxation, inherent in every sovereign State. Per Redfield, J., in Allen v. Drew, 44 Vt. 175. The courts seem to be very generally agreed, that the authority to require the property specially benefited to bear the expense of local improvement is a branch of the taxing power, or included within it. 2 Dill. on Mun. Corp., § 596. The compensation, under this provision, is to be ascertained by a jury. As remarked

Appearing in 94 and 95 Illinois Reports.

in People v. Mayor, 4 N. Y. 419: "This is an appropriate mode when lands or goods are taken, because their value is uncertain, but not when money is taken, because its valuo is already fixed." Whether or not a special tax on contiguous property in a city or town for a local improvement, as a sidewalk fronting the same, exceeds the actual benefit to the lots taxed, is not material. It may be supposed to be based on a presumed equivalent, and where the corporate authorities determine the frontage to be the proper measure of probable benefits, this cannot be disputed or disproved. White v. People of Illinois ex rel. City of Bloomington. Opinion by Sheldon, J.; Walker, C. J., aud Scholfield, J., dissented.

NEGLIGENCE- LANDING OF PASSENGERS-CARRIER OF PASSENGERS-STEAMBOAT.- Where a steamboat is landing at a wharf for the purpose of enabling passengers to go ashore, it is the duty of the proper officers of the boat to provide means for the safe transit of those who wish to leave the boat-and the fact that a stage plank placed for the use of passengers in landing, fell while a passenger, in the exercise of due care, was walking over it, is prima facie evidence of negligence on the part of the officers of the boat in the performance of that duty, and in an action by the passenger to recover for an injury caused by the falling of the plank, the burden is upon the defendant to show the falling of the plank was not the result of negligence on the part of the officers of the boat. This position is sustained in Pittsburg, Cin. & St. L. R. Co. v. Thompson, 56 III. 138, and in Railroad Co. v. Pollard, 22 Wall. 342, and in Stokes v. Saltonstall, 13 Pet. 181. In the last named case it is held that the upsetting of a stage coach, by which a passenger is injured, is prima facie evidence of negligence on the part of the driver, and casts upon the proprietor the burden of showing the driver was in every respect qualified, and acted with reasonable skill and the utmost caution. Although it may appear that the end of the boat was moved around by the wind, and that this caused the falling of the stage plank, yet it not being shown that the boat was fastened to the wharf in any way, or that it could not have been fastened so as to have prevented it from being moved by the wind, there would not appear to have been due care on the part of the officers of the boat to discharge it from liability. Eagle Packet Co. v. Defries. Opinion by Dickey, J.

IOWA SUPREME COURT ABSTRACT. JUNE, 1880.

EVIDENCE-INTEREST OF WITNESS-MAY NOT BE SHOWN BY ADMISSIONS. - Under a statute declaring that a person interested in the event of a suit should not be excluded as witness, but allowing the fact of his interest to be shown for the purpose of affecting the credibility of his testimony, held, that statements made to others by the witness that he was interested could not be shown. The rules relating to the admissibility of evidence showing the interest of a witness are the same at common law and under the statute. A difference arises only as to the effect of the interest, and consequently as to the time when it may be shown. At common law the court passes upon the evidence, and if the interest be established, excludes the testimony; under the statute the evidence goes to the jury, and is considered upon the question of the credibility of the witness. The difference above referred to does not extend to the manner of showing the interest of the witness. Decisions of the courts made at common law must therefore determine the question under consideration. It has been often held that testimony for the purpose of establishing declarations of a witness, to the effect that he is interested in the event

Co., on the same risk, have, or intend paying the claim as made. When they pay, this Co. will probably not delay longer. If, however, you prefer litigation with this Co., we shall contest the claim as above." The insured afterward sued the company, and offered this letter in evidence to show waiver of further preliminary proof of loss under the afore-recited condition of the policy. Held, (1) that this letter was no waiver, but meant that the company still adhered to and would persist in its refusal to pay the claim, because it was excessive in amount, and that the terms and conditions of the policy would be relied on as a protection against what was regarded as an exaggerated demand. (2) That the object of the condition in the policy was to put means in the power of the insurer to scrutinize the claims of the insured and to protect itself against fraud. The provision was such as the parties were competent to make, and having made it a part of their contract, the courts have no dispensing power over it. The insured was not only bound to produce and exhibit to the company or its agent, upon being required so to do, the bills of purchase if within his power or control, but if they were destroyed, he was bound to produce duplicates thereof, if it were possible for him so to do. Compliance with this condition, if required by the company, was indispensable to the insured's right of action. Maryland Court of Appeals. Farmers' Fire Insurance Co. of York, Penn., v. Mispelhorn. Opinion by Alvey, J. (To appear in 50 Maryland Reports.)

NEW BOOKS AND NEW EDITIONS.

XIV NEVADA REPORTS.

Reports of Cases determined in the Supreme Court of the State of Nevada, during 1879 and 1880. Reported by Chas. F. Bickell, clerk of Supreme Court, and Hon. Thomas P. Hawley, Associate Justice. Volume XIV. San Francisco: A. L. Bancroft & Co., 1880. Pp. 500. HIS volume contains among others the following THIS striking cases: Blaisdell v. Stephens, p. 17. — In an action of trespass against two or more acting independently, and producing a result injurious to the plaintiff, one cannot be held for the acts of the others. State v. Clifford, p. 72.- If one finds lost property, and knows the owner, or there are marks on the property by which he can ascertain the owner, and he converts the property to his own use, intending at the time of finding so to convert it, he is guilty of larceny, but not so if that intention is not formed until afterward. State v. Ah Chuey, p. 79. --On a question of personal identity, a witness testified that the defendant had certain tattoo marks on his person. The court compelled the defendant, against his objection, to exhibit his person to the jury. Held, no error. Gaston v. Drake, p. 175. - An agreement before an election to share the salary and fees of an office, in consideration of the plaintiff's using his influence to elect the defendant to such office, is void. State v. Hallock, p. 202. - An act to establish and maintain a State asylum for the poor and maimed of the State is unconstitutional. State v. Nevada, p. 439.-It is no defense to an indictment for escape, that the jail was unhealthful and filthy.

CORRESPONDENCE.

ACTION FOR TRESPASS ON LAND IN ANOTHER STATE. To the Editor of the Albany Law Journal:

and has been abrogated by the new Code, permit me to make the following observations:

1. It seems to me that Mr. Murray states the reason of the rule somewhat plainly himself when he says at p. 50: "If both parties should set up an apparently good title and it should become necessary to determine their validity the action should perhaps be dismissed, because it seems the courts of one State or country cannot settle the title to lands in another." But better still is the language of Hare & Wallace in their notes on Smith's Leading Cases (7th Am. ed.) p. 1063: "A court of justice should obviously be slow to entertain. a question depending upon the local law of a foreign country and which it can only resolve at second hand by the testimony of experts. A judgment in trespass may be as conclusive of the right to real estate as a judgment in a writ of entry or ejectment, and should therefore only be pronounced by a tribunal which can take judicial cognizance of the statutes, principles and usages constituting the lex loci rei site which must ultimately prevail where immovable property is concerned. If a foreign court could adjudge such questions it might mulct the defendant in damages for an act which was subsequently ascertained to be a legitimate exercise of the authority implied in ownership." The rule is as old as the law and has the sanction of the most learned jurists in this country and in England, including Chief Justice Marshall and Lord Mansfield, and has been affirmed in nearly every State in the Union, as Mr. Murray's article shows. There would seem therefore to be some reason in not allowing even a personal judgment for damages in such cases when by the law of the place the matters proved might not constitute a trespass, or the plaintiff be entitled to sue if it were, and every reason for remitting the parties to that jurisdiction where the local statutes, laws and customs can be intelligently and with certainty administered. Although in some few cases it may be a hardship, no rule of law can prevastly more. vent that. The contrary rule would be productive of

2. Respecting the claim that the rule has been abrogated by the new Code.

1. In the article alluded to, the cases of the American Union Telegraph Co. v. Middleton and De Courcy v. Stewart, are noticed. One was a decision by the New York Court of Appeals rendered March 19, 1880, in a case begun in December, 1879 (and which came thus quickly before the court on appeal from an order of arrest), and the other by the General Term of the Supreme Court, First Department, rendered April 7, 1880. As the sections 982 and 984 of the new Code quoted to sustain the above position have been in force since September 1, 1877, these decisions must be accepted as settling the law under the new Code the

other way.

2. Neither of the expositors of the Code, Mr. Bliss or Mr. Throop, has taken the view that these sections of the Code extended the jurisdiction of our courts to cases of this character. Indeed, I have a letter from Mr. Throop in which he distinctly assures me that such was not the intent. Equitable actions to compel specific performance of contracts relating to land in foreign jurisdictions, to compel conveyances of lands so situated, etc., have been entertained for some time, and the last sentence of section 982, which is new and is the foundation of your correspondents claim, relates to such actions and provides for their place of trial. It is to be read as if the words, "of which the court has jurisdiction," were interpolated; as regulating the practice, not as extending the jurisdiction.

3. Section 982 reads as follows: "Each of the follow

subject of the action or some part thereof is situated; an action of ejectment; for the partition of real property; for dower; to foreclose a mortgage upon real