agreed with the chief justice, the latter observing that, "If the proposition that a person suffering under an insane delusion cannot be a witness were maintained to the fullest extent, every man subject to the most innocent, unreal fancy would be excluded. Martin Luther believed that he had a personal conflict with the devil. Dr. Johnson was persuaded he heard his mother speak to him after death. In every case the judge must determine according to the circumstances and extent of the delusion. Unless judgment and discrimination be applied to each particular case there may be the most disastrous consequences." This case is also found in 2 Denison and Pearce's Crown Cases, 254, where Lord Campbell is reported to have said that the rule contended for would have excluded the testimony of Socrates, for he had one spirit always prompting him. The doctrine of this decision has not been overruled, that we are aware of, and it entirely disposes of the question raised here.

On the trial, a member of the metropolitan police, who saw the deceased fall on the sidewalk and went to his assistance, was asked, after testifying to the accident, whether while he was on his beat, other accideuts had happened at that place. The court allowed the question against the objection of the city's counsel, for the purpose of showing the condition of the street, and the liability of other persons to fall there. The witness answered that he had seen persons stumble over there. He remembered sending home in a hack a woman who had fallen there, and had seen as many as five persons fall there.

The admission of this testimony is now urged as error, the point of the objection being that it tended to introduce collateral issues and thus mislead the jury from the matter directly in controversy. Were such the case the objection would be tenable, but no dispute was made as to these accidents, no question was raised as to the extent of the injuries received, no point was made upon them, no recovery was sought by reason of them, nor any increase of damages. They were proved simply as circumstances, which with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous characterat least it is some evidence to that effect. Persons are not wont to seek such places, and do not willingly fall into them. Here the character of the place was one of the subjects of inquiry to which the attention of the defendant was called by the nature of the action and the pleadings, and he should have been prepared to show its real character in the face of any proof bearing on that subject.

Those accidents also tended to show that the dangerous character of the locality was a matter likely to be brought to the attention of the city authorities.

In Quinlan v. City of Utica, 11 Hun, 217, which was before the Supreme Court of New York, in an action to recover damages for injuries sustained by the plaintiff through the neglect of the city to repair its sidewalk, he was allowed to show that while it was out of repair other persons had slipped and fallen on the walk where he was injured. It was objected that the testimony presented new issues which the defendant could not be prepared to meet, but the court said: In one sense every item of testimony material to the maiu issue introduces a new issue; that is to say, it calls for a reply. In no other sense did the testimony in question make a new issue. Its only importance was that it bore upon the main issue, and all legitimate testimony bearing upon that issue the defendant was required to be prepared for." This case was affirmed by the Court of Appeals of New York, all the

judges concurring, except one, who was absent. 74 N. Y. 603.

In an action against the city of Chicago, to recover damages resulting from the death of a person who in the night stepped off an approach to a bridge while it was swinging around to enable a vessel to pass, and was drowned-it being alleged that the accident happened by reason of the neglect of the city to supply sufficient lights to enable persons to avoid such dangers-the Supreme Court of Illinois held that it was competent for the plaintiff to prove that another person had under the same circumstances met with a similar accident. City of Chicago v. Powers, 42 Ill. 168. To the objection that the evidence was inadmis sible, the court said: "The action was based upon the negligence of the city in failing to keep the bridge properly lighted. If another person had met with a similar fate at the same place and from a like cause, it would tend to show a knowledge on the part of the city that there was inattention on the part of their agents having charge of the bridge, and that they had failed to provide proper means for the protection of persous crossing on the bridge. As it tended to prove this fact it was admissible; and if the appellants had desired to guard against its improper application by the jury, they should have asked an instruction limiting it to its legitimate purpose."

Other cases to the same general purport might be cited. See Augusta v. Hafers, 61 Ga. 48; House v. Metcalf, 27 Conn. 630; Calkins v. Hartford, 33 id. 57; Darling v. Westmoreland, 52 N. H. 401; Hill v. Portland and Rochester R. Co., 55 Me. 439; Kent v. Lincoln, 32 Vt. 591; City v. Delphi v. Lowery, 74 Ind. 520. The above however are sufficient to sustain the action of the court below in admitting the testimony to which objection was taken.

Judgment affirmed.

UNITED STATES SUPREME COURT

ABSTRACT.

OF FERRY LICENSE

CONSTITUTIONAL LAW CONSTRUCTION OF GRANT FERRY BETWEEN STATES - IMPAIRING CONTRACT MUNICIPAL ORDINANCEREGULATION OF COMMERCE TONNAGE TAX.-(1) The Legislature of Illinois in 1819 passed an act to authorize one Wiggins to establish a ferry across the Missis sippi. The act declared that such ferry should be subject to the same taxes as were then or might thereafter be imposed on other ferries within the State, and under the same regulations and forfeitures. In 1853 the Legislature named granted a charter to the Wiggins Ferry Company, which authorized said company to use and enjoy the ferry franchise granted to Wiggins, and to use and enjoy all the rights, privileges, and emoluments granted to Wiggins to the rights of whom the ferry company succeeded by a purchase. Only one landing of the ferry was in Illinois. Subsequently the State granted a charter to the city of East St. Louis within the corporate limits of which such ferry landing was situated which authorized the city to regulate tax and license ferry boats. Such city by ordinance thereafter required keepers of ferries plying between the city and the opposite bank of the river to pay $50 annual license for each boat. Held, that the charter of the company could not be so construed as to exempt it from any taxation which the State might itself see fit to impose or authorize to be imposed by the city of East St.Louis, and that the ordinance mentioned was constitutional and valid. It is a rule of interpretation that every grant from the sovereign authority is, in

[Decided March 12, 1883.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

ASSIGNABILITY OF

INSURANCE

Good WILL AGENCY.-The good-will of an established business is a common subject of contract, although it is nothing but the chance of being able to keep the business which has been established, yet the rights of a purchaser of such good-will will be enforced in equity and recognized at law as effectual between the parties to the contract. Phyfe v. Wardell, 5 Paige, 268; Armour v. Alexander, 10 id. 571; Hathaway v. Bennet, 10 N. Y. 108. Where the general agents of an insurance company, by their representations, induced complainant to invest money in the purchase of the good-will of a special insurance agency; if without right he was deprived of an opportunity of transferring his interest to another, he is entitled to compensation to the extent of his loss. The general agents of a foreign insurance company in a State other than the State of its creation, having authority to solicit applications for insurance and collect the premiums therefor, and authorized to appoint local agents and pay them reasonable commissions, and obligated to bear all the expenses of the business within their territory, cannot bind the company by their conduct or representations respecting the purchaser of the good-will of a local agency. A contract which would create the relation of vendor and purchaser between an insurance company and a third party, and as such outside the ordinary and customary contracts, which are within the implied authority of the general agents of the company is not binding on the company. U. S. Ciro. Ct., N. D., N. Y., April, 1883. Barber v. Connecticut Mutual Life Ins. Co. Opinion by Wallace, C.J.

LIBEL EVIDENCE AS TO TRUTH OF CHARGE-DAMAGES-MENTAL SUFFERING-AGENCY-NEW TRIAL.—(1)

tion should be awarded, and this even when the injury is not malicious, but merely negligent. Blake v. Midland R. Co., 10 Eng. Law & Eq. 437; Seger v. Town of Barkhamshall, 22 Conn. 296, 298; Canning v. Williamstown, 1 Cush. 451; Ransom v. New York, etc., R. Co., 15 N. Y. 415. (3) There is nothing in the law of damages, or of principal and agent, to justify the assumption that the principal is not liable in exemplary damages for the acts of his agent. Au employer is responsible for the willful as well as the negligent acts of his servants, when they are performed in the course of the servant's employment. Actions of libel, so far as they involve questions of exemplary damages, and the law of principal and agent, are controlled by the same rules as are other actions of tort. The right of a plaintiff to recover exemplary damages exists wherever a tortious injury has been inflicted recklessly or wantonly, and it is not limited to cases where the injury resulted from the personal malice or recklessness of the defendant. It follows that the owner of a newspaper is responsible for all the acts of omission and commission of those he employs to edit it and manage its affairs, as he would be if personally managing the same. Beach v. Railroad Co., 1 Dill. 569; Arms v Milwaukee, etc., R. Co., 91 U. S. 489; Philadelphia, etc., R. Co. v. Quigley, 21 How. 202. (4) The court will not grant a new trial in actions for libel on the ground of excessive damages, "unless the amount is so flagrantly atrocious and extravagant as to show that the jury must have been actuated by passion, partiality, prejudice, or corruption." U.S.Circ. Ct., S. D. New York, Feb. 21, 1883. Malloy v. Bennett Opinion by Wallace, C. J.

PATENT-AFFIDAVIT FOR REISSUE.-Where the affi davit, upon an application for the reissue of a patent alleged simply that the patent sought to be reissued was not "fully valid and available," held, that that language is not the equivalent of the statutory requirement that the original must be " 'inoperative or invalid by reason of a defective or insufficient specification," and that a reissue predicated on such an affidavit is invalid. See Whitely v. Swayne, 4 Fisher, 117; Giant Powder Co. v. Cal. Vigoret Powder Co., 18 O. G. 1339; Twain v. Ladd, 19 id.; Miller v. Bridgeport Brass Co., 21 id. 201; and James v. Campbell, id. 341. U. S. Circ. Ct., S. D., Ohio, March 5, 1883. Poage v. McGowan. Opinion by Baxter, C. J.

PLEADING-ISSUE OF CITIZENSHIP-ABATEMENTCOMMON LAW AND CODE.-Under the old system of pleadings the issue of citizenship could only be presented by plea in abatement. 2 Abb. U. S. Pr. 55; De Wolf v. Rabaud, 1 Pet. 478; Jones v. League, 18 How. 76; Sheppard v. Graves, 14 id. 505; Livingston v. Story, 11 Pet. 351; Erwin v. Lowry, 7 How. 172; Green v, Custard, 23 id. 485; De Sobry v. Nicholson, 3 Wall. 420. Under the New York Code, pleas in abatement are abolished, and the question can now be raised by a special denial in the same answer in which the defendant pleads to the merits, but not by general denial. The adoption of the Code wrought a complete revolution in pleading; the old landmarks were swept away, and a new system inaugurated. Separate pleas in abatement are now unknown; they must be pleaded and tried like other defenses. Gardner v. Clark, 21 N. Y. 399; Sweet v. Tuttle, 14 id. 468. But now, as

and affirmatively stated in the answer. If not so stated the objection is waived. Proof of such defenses cannot be given under a general denial. Abe v. Clark, 31 Barb. 238; Dillaye v. Parks, id. 132; Serantom v. F. & M. Bank, 24 N. Y. 424; Tremper v. Conklin, 44 Barb. 456; Hosley v. Black, 28 N. Y. 438; Merritt v. Walsh, 32 id. 685; Zabriskie v. Smith, 13 id. 322; Brennan v. New York, 62 id. 365; Chaffer v. Morss, 67

Barb. 252.

See also as bearing on this question, the statute which provides that "in an action by or against a corporation, the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is verified, and contains an affirmative allegation that the plaintiff or defendant, as the case may be, is not a corporation." Code of Civ. Proc., § 1776; and also Bank of Genesee v. Patchen Bank, 13 N. Y. 309; Phoenix Bank v. Donuell (1 Hand), 40 N. Y. 410; Fulton Ins. Co. v. Baldwin, 37 N. Y. 648. U.S. Circ. Ct., N. D., New York, April, 1883. Draper v. Town of Springport. Opinion by Coxe, J.

MAINE SUPREME JUDICIAL COURT

ABSTRACT.

FEBRUARY, 1883.

MORTGAGE-DISCHARGE OF, BY FRAUD OR MISTAKE, EQUITY WILL CANCEL.-The law is well settled that where the discharge of a mortgage is the result of fraud or mistake, a court of equity will decree its cancellation when it can be done without interfering with or infringing upon the just rights of parties interested. "The principle," observes Bennett, J., in Bullard v. Leach, 27 Vt. 495, "which it seems may be abstracted from the cases, is that when money due upon a mortgage, is paid, it may operate to cancel the mortgage or in the nature of an assignment of it, placing the person who pays the money in the shoes of the mortgagee, as may best subserve the purposes of justice and the just and true interest of the parties. The purpose however must be innocent and injurious to no one." Bruce v. Bonney, 12 Gray, 107. The question has been fully discussed in Cobb v. Dyer, 69 Me. 494, and it was then held that where the discharge of a mortgage was through accident, mistake, or fraud, the court would afford relief by cancelling the discharge and giving effect to the mortgage. In Wilson v. Kimball, 27 N. H. 300, where A., the purchaser of land, paid a subsisting mortgage upon the same, and it was duly discharged both upon the mortgage and the record, and B., the assignee of another but subsequent mortgage, brought a suit against A. to recover the premises, held, that the mortgage paid by A. might be treated as assigned to him and not discharged; and that under it he could successfully defend against B. until B. should pay him. It was decided in Bell v. Woodward, 34 N. H. 91, that where there are two mortgages on land, and a purchaser of the equity of the first mortgage takes an assigument, that mortgage is not extinguished, but will be upheld as a subsisting security in the hands of the assignee against the second mortgage. Although the mortgage is in fact paid, yet equity will require it to subsist until every party who owes a duty under the mortgage shall have discharged it. Wheeler v. Willard, 44 Vt. 640. And this is so, though there has been a receipt of the debt and a cancellation of the mortgage. Robinson v. Leavitt, 7 N. H. 95. The court will see that a party is protected who has given up his note and taken in payment a worthless check. Grimes v. Kimball, 3 Allen, 518. The payment of a debt by one having an interest to protect, may operate as an assignment even though the mortgage be formally discharged. Rigney v. Lovejoy, 13 N. H. 252. Kinsley v. Davis. Opinion by Appleton, C. J.

MUNICIPAL CORPORATION-DISINTERESTED PERSONS -RESIDENTS OF TOWN.-Persons residing and having taxable estates in a town, which in its corporate capacity is a stockholder in a railroad company, are not incompetent from interest, to act as appraisers in the levy of an execution against such company. In Boston v. Tilleston, 11 Mass. 468, it was held that an in* To appear in 74 Maine Reports.

habitant of Boston was not a competent person to be an appraiser of land upon an execution in favor of Boston. There the appraiser was in some sense a party to the execution. In State v. Stuart, 23 Me, 111, it was held that by the common law, inhabitants of a town were competent witnesses to sustain a liquor prosecution, where the penalty to be recovered would go to the town. That case is directly relied upon as an authority, and its doctrine affirmed in State v. Woodard, 34 Me. 293. In State v. Intoxicating Liquors, 54 id. 564, the objection, that a police judge was interested for the same cause, was overruled. Fletcher v. Somerset Railroad Company. Opinion by Peters, J.

[Decided Feb. 21, 1883.]

PENALTY-IN BOND-WHEN NOT LIQUIDATED DAMAGES-DISTINCTION BETWEEN TWO.-When a bond is given in the sum of five hundred dollars, to be paid on the failure to make a drain for a certain purpose and in a specified time, the sum is to be regarded as a penalty and not liquidated damages. A sum of money in gross to be paid for the non-performance of a contract is as a general rule to be considered as a penalty, and not liquidated damages. Henry v. Davis, 123 Mass. 345; Taylor v. Sandiford, 7 Whart. 13. The tendency of the decisions is to regard a sum stated to be payable in case of the non-fulfillment of a contract as a penalty rather than liquidated damages, because in such case the damages will be only the loss sustained. Such is the equity of the matter. Indeed the court will frequently regard a sum specified as liquidated damages to be a penalty, as Ex parte Coffer, 4 L. R., Ch. Div. 724, when as in a building contract, the sum of one thousand pounds was stipulated to be paid in case the contract be not in all things performed, as and for liquidated damages." But the court held this sum to be in the nature of a penalty, and that the actual damage only was recoverable. When it is doubtful on the face of the instrument whether the sum mentioned was intended to be stipulated damages or a penalty to cover actual damages, the courts hold it to be the latter. In the cases cited, it is either expressly stated that a certain sum is to be decreed as liquidated damages, or such is the unavoidable inference from the language of the bond. In Bagley v. Peddie, 16 N. Y. 469, the bond declared the obligors to be bound "in the sum of three thousand dollars as liquidated damages and not by way of penalty or otherwise." In Pearson v. Williams, administrators, 26 Wend. 630, the covenant was to build two brick houses, in default of erecting such houses to pay on demand four thousand dollars." The contract was in the alternative--to do or to pay, and the sum definitely set forth to be paid in case of not doing. In Lynde v. Thompson, 2 Allen, 456, by the terms of the covenant either party failing to comply with the terms of the agreement, "the party so failing shall forfeit to the other party the sum of three hundred dollars which shall be paid in full." In Leary v. Laflin, 101 Mass. 335, the bond was in express terms for the payment of one thousand dollars as liquidated damages." In Holbrook v. Tobey, 66 Me, 410, the defendant bound himself in the sum of five hundred dollars not to keep a public house for five years, and the sum specified was held to be liquidated damages, from the utter impossibility of fixing the damages actually sustained. This principle, while applicable to a certain class of cases, can hardly de deemed as applying to one like the present. Indeed where the damages are uncertain and wholly incapable of estimation, the penal sum may be regarded as liquidated damages. Williams v. Daken, 22 Wend. 201. Smith v. Wedgwood. Opinion by Appleton, C. J.