action out of which the controversy arises. It is not enough that they refer to or narrate the transaction after it is past; they must be so connected in time and circumstances with the principal fact as to be a part of it. When declarations of an agent or of a party himself are so closely connected with the principal fact as to be a part of the res gesta, is often a very nice question to determine. There are on the point many decisions which appear difficult to reconcile with each other." This ruling is supported by the following cases: Where the action was for injury from a train of cars running over plaintiff's wagon and horses, driven by his servant, it was held the defendant might prove a conversation with the servant at the time of the accident and relative to it. — T. & W. Ry. Co. v. Goddard, 25 Ind. 185. In an action against a railroad company for damages, caused by delay in the carriage of cattle, the statements relating to the delay of the conductor, made while he had control of the train in which the cattle were, were held part of the res gesta. — Sisson v. C. & T. R. Co., 14 Mich. 489. In an action against a railroad company for wrongful expulsion from one of its trains, a conversation had immediately after the expulsion, and serving to illustrate its character, between plaintiff and the offending brakeman, was held part of the res gesta. Bass v. C. & N. W. Ry. Co., 42 Wis. 654; S. C., 24 Am. Rep. 427. The accident being the running of a railroad train against a peddler's wagon, and the destruction of his goods, the trial court admitted evidence of what was said at the time of the accident, by the engineer in charge of the train, as to negligence in running it. This was held no error by the Supreme Court, which said: "We cannot say that the declaration of the engineer was no part of the res gesta. It was made at the time of the accident, in view of the goods strewn along the road by the breaking up of the boxes, and seems to have grown directly out of and immediately after the happening of the fact. The negligence complained of being that of the engineer himself, we cannot say that his declarations made upon the spot at the time, and in view of the effects of his conduct, are not evidence against the company as a part of the very transaction itself." H. R. Co. v. Coyle, 55 Penn. St. 396. In Luby v. H. R. R. Co., 17 N. Y. 131, the plaintiff was run against and injured by a car drawn by horses. The car was stopped, and the driver arrested by a policeman. In the trial the policeman was allowed to testify that upon arresting the driver as he was getting off the car and out of the crowd surrounding it, he asked him why he did not stop the car, to which the driver replied the brake was out of order. This was held error. The court said: "The declaration was no part of the driver's act for which the defendants were sued. It was not made at the time of the act, so as to give it quality and character. The alleged wrong was complete, and the driver, when he made the statement, was only endeavoring to account for what he had done." The court in the principal case also observe: "It is evident that whether the declaration is directly connected with, and growing out of, the main fact does not depend

on the time which has elapsed between them, though it must always be an important element in the consideration of the question; a considerable time may elapse and yet the declaration be a part of the res gestœ. It may be made immediately upon the fact, and the circumstances be such as to exclude it. Each case must depend on its own peculiar circumstances, and be determined by the exercise of sound judicial discretion."

J.,

An interesting question of description of a legatee came up in Patching v. Barnett, Eng. Ch. Div., Sept. 11, 1880, 43 L. T. (N. S.) 50. A testator bequeathed a bust, after his wife's death, to "J., now Duke of B.," on condition that he caused it to be placed and remain in W. Abbey, and at the time of the delivery of it to him settle it so as to be held as an heirloom by the persons who under the limitations to which the abbey should then be subject should then be entitled to the possession thereof, with a gift over in case J. should neglect so to do for twelve months after request by the trustees. Duke of B., had died in 1839. F. was Duke of B. at the time of testator's will and death, and was owner in fee of W. Abbey. F. died during the life-time of the tenant for life, and consequently never received the bust. The present Duke of B. was willing to allow F.'s executors to place the bust in the abbey. Held, that the bust belonged to F.'s executors. Malins, V. C., said: "This testator had many articles of taste and vertu. Amongst other things he had an original bust of Oliver Cromwell, which was of very great value; at all events, he evidently attached very great value to it. Now he makes this bust a particular object of his will. First of all he gives it to his wife for her life, and then he says, and from and immediately after the decease or second marriage of my said wife, which shall first happen, I bequeath my said marble bust of Oliver Cromwell to the most noble John now Duke of Bedford, upon condition that he cause it to be placed and to remain in the library or some conspicuous place in Woburn Abbey,' and so forth. Now the first argument is, that this bequest fails altogether because John Duke of Bedford had died seventeen years before the will was made. It is gravely argued that the testator must have intended John Duke of Bedford who had for many years been dead, and who therefore could not take the bust or perform any of the conditions imposed by the testator with regard to it. It is said that I am to be guilty of the absurdity of thinking that the testator meant a dead man instead of a living man, when he said, 'I bequeath my said marble bust of Oliver Cromwell to the most noble John now Duke of Bedford.' The testator mistook the name; he thought that the then Duke of Bedford was John, whereas, in point of fact, he was Francis. There is no magic in a name; the testator did not know whether the duke's name was Thomas, John, William, or Francis; what he did mean was that the now Duke of Bedford,' that is, the living Duke of Bedford, should have this bust. There could have been only one Duke of Bedford at the time; it is a case in which

6

duction of any unmarried woman 'of previously chaste character." Held, that "character" referred to moral qualities and not to reputation, and evidence of reputation was not admissible upon the issue of character, but only to impeach or corroborate testimony regarding particular acts of unchastity. State v. Prizer, 49 Iowa, 531, p. 155.

DAMAGES. An abutting owner, who does not own the soil of the street, cannot recover for any injury to his freehold resulting from the presence of a steam railway in the street, but only for damages resulting from such misconduct in its management as amounts to a nuisance, as leaving cars standing an unreasonable time, unnecessary noises and dangerous speed. Grand Rapids & Indiana R. R. Co. v. Heisel, 38 Mich. 62, p. 306.

DEED. A purchaser of land is not affected with constructive notice of a prior unrecorded conveyance by the mere fact that he was one of the subscribing witnesses thereto. Vest v. Michie, 31 Gratt. 149, p. 722.

EVIDENCE. In an action on a policy of insurance on the life of one for the benefit of another, the declarations of the insured, before or after the insurance, are not competent evidence, unless part of the res gesta. Mobile Life Insurance Co. v. Morris, 3 Lea, 101, p. 631.

An instrument in this form: "Received of A. $500 due on demand," is open to parol explanation of its consideration, to show that it was intended as a mere receipt. De Lavallette v. Wendt, 75 N. Y. 579, p. 494.

In the case of a mother, aged sixty-nine years, her son-in-law, aged forty-five, and his two children, aged respectively ten and seven years, who all perish in the same shipwreck, there is no presumption of survivorship. Newell v. Nichols, 75 N. Y. 78, p. 424.

EXEMPTION. A partnership is not within the language or intendment of the exemption law, and hence none of the property of a partnership is exempt from seizure on execution. White v. Heffner, 30 La. Ann. 1280, p. 238.

Partnership property is not exempt from execution, before division and settlement of the partnership affairs. Spiro v. Paxton, 3 Lea, 75, p. 630.

GIFT.-S. deposited in a savings bank moneys belonging to her in trust for M. and K., who were her distant relatives. She retained the pass-books until her death, drawing out only one year's interest, and M. and K. were ignorant of the deposit. Held, that the transaction constituted an effectual trust for their benefit on the death of S. Martin v. Funk, 75 N. Y. 134, p. 446.

Whitcomb v.

Held, that he was entitled to recover. Joslyn, 51 Vt. 79, p. 678. INSURANCE. - Where, in a contract of insurance which covers a storehouse and the goods therein, it is stipulated that should the assured subsequently take out a policy in any other company the assurers should receive notice of it on pain of forfeiting their policy, a subsequent assurance of the house or the goods in another company, without notice to the assurers, will work the forfeiture of the contract with them, whether the subsequent contract was legally enforceable or not. Allen v. Merchants' Mutual Ins. Co., 30 La. Ann. 1386, p. 243.

A policy of fire insurance conditioned to be void for over-valuation is avoided by any substantial overvaluation, whether fraudulent or innocent. Boutelle v. Westchester Fire Ins. Co., 51 Vt. 4, p. 666.

INSANITY. A widow, in consequence of her lunacy, neglected to dissent from the provisions of her husband's will within the statutory time. Held, that she might afterward, in equity, claim her rights in the estate as if she had duly dissented. Wright v. West, 2 Lea, 78, p. 586.

JUDGMENT. A physician sued for services, in a justice's court; the defendant answered, but withdrew his answer, and the plaintiff got judgment without consent. Held, a bar to a subsequent action by the defendant against the physician, for malpractice in rendering those services. Blair v. Bartlett, 75 N. Y. 150, p. 445.

MARRIAGE. - A married woman, by the terms of a deed to her, assumed and agreed to pay a mortgage existing upon the conveyed premises. Held, that this made her personally liable for the mortgage debt, and that her grantee, in like manner assuming the mortgage, was likewise liable, and a judgment against him for deficiency on foreclosure was proper. Cashman v. Henry, 75 N. Y. 103, p. 437.

Equity will enforce a note executed by a husband to his wife, during coverture, in consideration of her moneys received or collected by him. McCampbell v. Mc Campbell, 2 Lea, 661, p. 623.

Under a statute which enables married women to acquire, hold and deal with property, and to sue and be sued in the same manner as if unmarried, and relieves all such property, except such as comes by gift from their husbands, from liability to the disposal of their husbands or for their debts, a married woman may maintain an action against her husband on a note given directly to her by him for a valuable consideration during coverture. May v. May, 9 Neb. 16, p. 399.

A divorce was granted in a suit brought in the name of an insane wife, in confinement in an asylum in another State. On a bill on her behalf to set aside the divorce, alleging that it was procured by the fraud of the husband, held, that, whether there was fraud, in fact or not, the law would presume fraud, and set aside such a divorce, no matter by whose advice it was obtained. Bradford v. Abend, 89 Ill. 78, p. 67.

MECHANICS' LIEN. Although land donated and devoted to public uses cannot be subjected to debts of the municipality, yet a public building thereon,

as a jail, is subject to a mechanics' lien in favor of one who built it for the municipality. McKnight v. Parish of Grant, 30 La. Ann. 361, p. 226. MUNICIPAL CORPORATION. - A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, cannot be regarded as exercising ordinary prudence, and cannot maintain an action against the city to recover for injuries sustained by falling upon the ice. Schaefler v. City of Sandusky, 33 Ohio St. 246, p. 533.

Alleys are not primarily designed as streets, but simply as a means of local convenience to a limited neighborhood, and a roof twelve or fifteen feet over and above an alley is not necessarily an obstruction. Beecher v. People, 38 Mich. 289, p. 316.

A municipal corporation granted permission, by ordinance, to a street railway company to lay a double track in its streets. The company proceeded to do so, and expended large sums of money in the work. Held, that the municipal corporation could not thereafter restrict the permission to a single track, it not appearing that the double track would cause any injury or inconvenience. City of Burlington v. Burlington Street Railway Co., 49 Iowa, 144, P. 145.

NATIONAL BANK. · A National bank organized as successor to a State bank may maintain an action to foreclose a mortgage of real estate executed to the State bank as security for a note, and assigned to it by the State bank on the formation of the National bank. Schofield v. State National Bank of Lincoln, 9 Neb. 316, p. 412.

A National bank has no power to deal or speculate in promissory notes or to acquire title thereto, except by discount. First National Bank of Rochester v. Pierson, 24 Minn. 140, p. 341.

Under the National Bank Act, in an action upon a note usuriously discounted by a National bank, the amount of the usury may be set off by an accommodation indorser, although the note does not carry interest on its face. National Bank of Auburn v. Lewis, 75 N. Y. 516, p. 484.

NEGLIGENCE. One who signs and delivers a contract, in form like a negotiable promissory note, but with a condition limiting his liability, so appended as to be capable of separation, leaving an apparently perfect note, is liable to an innocent indorser of such note who acquires the same for value and before maturity, after such separation has been made by the payee, without the maker's knowledge. Noll v. Smith, 64 Ind. 511, p. 131.

A boy, twelve years of age, was injured while playing on a railway turn-table, left unlocked and unguarded, in an open prairie, where persons frequently passed. Held, that the questions of negligence and contributory negligence were for the jury. Kansas Central Railway Co. V. Fitzsimmons, 22 Kans. 386, p. 203.

NEGOTIABLE INSTRUMENT. -A mere promise to pay a forged note, when such promise is given by the supposed maker of the note without any new consideration, and after the promisee has acquired

OFFICE AND OFFICER. -A county treasurer and his sureties are not liable for public moneys of which the principal was violently robbed without his fault. Cumberland v. Pennell, 69 Me. 351, p. 284.

PARENT AND CHILD. A father gave his son, ten years of age, to a man of good character and ample means, to keep him during minority. The father dying three years afterward, the mother brought habeas corpus for the child. Held, that she was entitled to his custody, although she was poor and dependent, and he preferred remaining with defendant. Moore v. Christian, 56 Miss. 408, p. 375.

PARTITION. — The court has no jurisdiction to order partition of lands, between heirs of a father, where the petition alleges that one heir is alive and that the mother is pregnant by the father. Gillespie v. Nabors, 59 Ala. 441, p. 20.

PARTY WALL. - One owner of a party wall, who adds to it for his own use, may maintain an action of contribution against the other owner who has used such additions, for one-half the value of the additions when made. Sanders v. Martin, 2 Lea, 213, p. 598. SALE. Where goods are sold for cash, and delivered, the vendor taking the vendee's check for the price, which on presentment four days thereafter is dishonored, the vendor may rescind the contract and reclaim the goods. Hodgson v. Barrett, 33 Ohio, 63, p. 527.

On a sale of goods by a manufacturer for a particular purpose, there is an implied warrant of fitness for that purpose; but the manufacturer is not bound to furnish the best that are or can be made, but only such as are usually made and used, and as are reasonably fit for the purpose. Harris v. Waite, 51 Vt. 481, p. 694.

Where goods are sold to one for the use and benefit of another, by whom they are received and used, the latter cannot be held therefor merely upon his acknowledgment of the correctness of the account and his oral promise to pay it. Hendricks v. Robinson, 56 Miss. 694, p. 382.

SLANDER AND LIBEL. -To charge a physician with "malpractice" in a particular case is not conclusively libellous in itself, if untrue, but it is for the jury to determine whether the word was used in a general and actionable sense. Rodgers v. Kline, 56 Miss. 808, p. 389.

To charge a candidate for a popular office with being uneducated, lazy, idle, and ignorant, is not libellous; nor is it libellous per se to charge him with being "a social leper" who should be "deodorized." But otherwise to charge him with being a professional gambler, bully, thief and whore-master. Sweeney v. Baker, 13 W. Va. 158, p. 757.