to what has been said. But it has seemed to me throughout that the case is reducible simply to this, You go and place my goods in a place where you have no authority to put them and they are destroyed, therefore you must pay for them. I do not think the question of contract makes any difference. Whether this was a conversion or not I do not express an opinion, as it is not necessary; and with regard to Hadley v. Baxendale, it appears to me that it is not a case in point. Cases of that kind are not applicable where the contracting party has dealt with the goods contrary to authority, but where he has failed to do what he has agreed to do. As I have said, it is simply a case of the defendant having taken the plaintiff's goods to a place where he had no right to take them, therefore he must pay for their loss, and I think judgment must be entered for the plaintiff.

Judgment for plaintiff.

IRREGULAR INDORSEMENT - GUARANTY.

NEW JERSEY SUPREME COURT, FEBRUARY TERM, 1881.

HAYDEN V. WELDON.*

To hold a third party who irregularly indorses a promissory note as joint maker, he must have participated in the creation of the note or shared in the consideration for which it was given. Indorsing the note before the payee, imports only the contract of second indorser. Where the undertaking of a third party is to further secure the payment of a debt already created between the regular parties to the note, it is a collateral contract, within the statute of frauds, requiring a writing to prove, and a consideration to support it. Such an indorsement is not in itself authority to the holder of the note to write over it a contract of guaranty.

A guaranty is not negotiable, nor does it become so by being indorsed upon negotiable paper, the payment of which it is designed to secure.

N case. On rule to show cause.

IN

The suit was against the defendants, Weldon and Potter, on a promissory note made by Weldon, payable

to A. I. Farrand or order, six months after date. After the execution and delivery of the note to the payee, Potter, at the request of the maker, put his name on the back of the note. This indorsement was before the name of the payee was written upon the note. It was made without consideration, and the name or credit of Potter was in no way involved in the making of the note.

The payee subsequently, and before maturity, indorsed the note to the plaintiffs for value.

The declaration was against Weldon as maker, and against Potter as joint maker, as guarantor and as indorser.

The other facts sufficiently appear in the opinion of the court.

For the rule, J. H. Stone and Leslie Lupton.

Contra, J. N. Voorhees and John Schomp. KNAPP, J. The only question raised in this case, requiring consideration, is whether the defendant, Potter, is liable on the note upon which his name appears. It received his indorsement before that of the payee was put upon it; and as such an indorsement in itself indicates nothing of the character of the liability intended by the parties, resort must be had to extrinsic evidence to discover what were his relations to the transaction, and with what purpose he put his name upon the paper. The circumstances may show a party to such irregular indorsement to be either a surety or joint maker, or guarantor, or he may be held as a second indorser. Chaddock v. Vanness, 6 Vroom, 517. The declaration contains counts against him as joint *To appear in 14 Vroom's (43 N. J. Law) Reports.

maker, guarantor and as an indorser, and his liability in one or other of these aspects must appear to support the verdict against him. The note was drawn by Weldon, payable at six months, to the order of Farrand, and was delivered to the payee with no agreement or understanding between them or with Potter, that the latter was to be in any manner a party to the note, or that any security was to be furnished by Weldon on the note. Between Weldon and Farrand, then, a debt was thus created, the debtor, the sum of the indebtedness, and the time of credit ascertained and established by the delivery of an instrument perfect and complete in its terms. Some days after its delivery to the payee Potter was requested by the maker to indorse the note; the note was produced by the payee and Potter wrote his name on the back of it. It is evident, from this state of facts, that he is not to be considered a joint maker, for in the creation of the original debt he did not participate, nor was he in any manner allied to the consideration on which the note was grounded. The note was not given or received upon any understanding or expectation that his suretyship in any form, or that any additional security should be had upon the note to strengthen the maker's undertaking. Neither property nor rights were parted with by the payee on the credit of Potter's name.

In order to charge him in that capacity, his credit should have been so involved in the original transaction that the contract under which the payee parted with his property or rights was not, in the contemplation of the parties, complete without the name of Potter as surety. Moies v. Bird, 11 Mass. 436; Tenney v. Prince, 4 Pick. 387; Mecorney v. Stanley, 8 Cush. 85; Chaddock v. Vanness, supra.

When the note came to the plaintiffs with the indorsement of the payee and Potter, the signature of the latter imported the contract of second indorser, and he might have been charged with that liability. But it is not contended that in this suit he can be held as indorser, for it appears that notice requisite to charge him in that capacity was not given.

Is he chargeable as a guarantor? When the note was produced at the trial that form of contract was found written over his signature; but it was not there when the indorsement was made, nor was it written there by his direction or with his knowledge. The plaintiffs insist that such was the character of the defendants' engagement, and signing the note in blank authorized them to write over the blank a guaranty.

It was said in Chaddock v. Vanness, that when a third party puts his name on the back of a promissory note as a surety or guarantor for its payment, in pursuance of an original agreement entered into before or at the time of giving the note, in consideration of which the payee agrees to accept it, the payee may write over such signature a guaranty or promise to pay, which shall be a sufficient memorandum within the statute of frauds.

But the case here is not analogous to those original undertakings of a third party in the creation of the debt, where, although he may be called a guarantor, his liability, in legal effect, differs in nothing from that of a co-maker. In such cases the statute of frauds is inapplicable. In this case, where the contract creating the debt was fully consummated, the alleged promise of defendant to pay or further secure the debt was a collateral engagement, within the statute, required a writing to prove it, and a new consideration to support it. Fell on Guar. and Sur. App. 483.

And where, as here, the alleged promise is clearly one to pay the debt of another, and therefore necessarily in writing, I do not see how a mere signature in blank can be considered such writing. It has in its relations to the original debt no such fixed significance that the law will from it imply a specific duty or liability; and is the holder to determine for himself, out

of the variety of forms that such a contract is capable of, which one the person signing shall assume? I think the blank indorsement gave no implied authority to write over it any form of guaranty. And such I understand to be the view expressed by Chief Justice Hornblower in Crozer v. Chambers, Speuc. 256.

Treating the superscription however as properly made, it is clear that on the evidence he cannot be held in that character. As has already been said, to support such promise there must have been a valid consideration. The defendant's engagement was entirely gratuitous. Not a feature of the original debt was changed in consequence of it; the payee yielded nothing of his rights; and neither the maker nor the guarantor gained any thing in either position or pocket. There resulted no benefit to the party promising, or to him for whom the promise was made; no prejudice, damage, suspension of right or possibility of loss to the guarantee. It wanted the essential of a consideration to render it better than a naked promise. Between the original parties the verdict could not find support in the evidence.

But the plaintiffs are bona fide indorsees of the note for valuable consideration, before dishonor. Does this put them on any better footing in the case? It is clear that if the defendant did not assume the legal character of joint maker of the note, that is, an original surety or promisor through his contract, no subsequent negotiation of the note could force him into that attitude. Regarding him as a guarantor of negotiable paper, there is nothing in the law which preIcludes him from setting up want of consideration for such promise.

Against this view it is urged that a guaranty, when indorsed upon negetiable paper, becomes so incorporated with it as to partake of its negotiable character, and to be transferable by the indorsement or delivery of the bill or note, that it passes by the same title, and has, incident to it, the same protection against defenses in the hands of a bona fide holder that attaches to commercial paper. But this is not a correct view of the nature and attributes of the contract. By the weight of judiciary authority it is regarded as a mere personal engagement, limited to and ending with the person to whom it is addressed or by whom it is first accepted; and that unlike bills of exchange and promissory notes, it is not excepted out of the ordinary rule governing the transfer of choses in action. I refer to a few of the decided cases supporting this rule.

In the case of Lamouriex v. Hewitt, 5 Wend. 307, the defendant wrote and signed on a negotiable note the following contract: "I warrant the collection of the within note for value received." The note was transferred to the plaintiff, who held it when it fell due; the court rules that the action on the guaranty could not be maintained in the name of the plaintiff, that it was a special contract with the payee, and any action upon it must be in his name. In Ellis v. Brown, 6 Barb. 282, where the action was by an indorsee of a promissory note against an irregular indorser as a guarantor as well as joint maker, the court uses this language: "It is obvious that the action cannot be maintained against the defendant as a guarantor of the note. A person who guarantees a note is in no sense a party to the note. A guaranty is a special contract and must be specially declared on. It is only where the person called the guarantor has been held by the court to be, in legal intendment, the maker of the note, that a different rule has prevailed. If the indorsement were to be regarded as a guaranty, such guaranty was made to the payee, and the action should have been brought in his name and not in that of the indorsee." In McLaren v. Watson's Ex'rs, 26 Wend. 425, it was held that a general guaranty of a promissory note made on a separate paper and given to the payee, the note and guaranty indorsed and transferred

together to the plaintiff, did not authorize suit on the guaranty in the name of the plaintiff. The cases of Ketchell v. Burns, 24 Wend. 456, and Leggett v. Raymond, 6 Hill, 639, are sometimes cited as authorities in favor of the negotiability of such a contract, but I think they fail to support the position. In the first of these cases the defendant indorsed on a promissory note the following: "For and in consideration of $31 received of B. F. S., I hereby guarantee payment and collection of the within note to him or bearer." This note, with the indorsement upon it, was delivered by S. to the plaintiff, and he was allowed to recover; the court placing it upon the ground that its effect was that of a new note for the payment of the money upon full consideration, and as it was made payable to Spencer or bearer, it was negotiable. But in this case the ruling in Lamourieux v. Hewitt was mentioned with approval. The other case was that of a general guaranty written on the back of a note and signed by the payee, and this signature to the guaranty was the only indorsement of the note to the plaintiff. The real question in that case was whether the signature of the payee to the guaranty constituted as well an indorsement of the paper. It was ruled that it was a sufficient transfer of the note, and the defendant was held as an indorser.

So far as the court expressed an opinion on the subject of the negotiability of the guaranty it was emphatically against it. The same question was fully considered and a review of the cases had in Miller v. Gaston, 2 Hill, 188, the result being against the negotiability of such a contract.

In Massachusetts the same is found to be the law. It was so decided in True v. Fuller, 21 Pick. 140. The suit was upon a guaranty indorsed upon a promissory note as follows: "I guarantee the payment of the semi-annual interest of this note as well as the principal." This was signed by the defendant, and the note was transferred by the payee to the plaintiff. In the opinion of the court, which was delivered by Chief Justice Shaw, the plaintiff was held not entitled to recover, "because the guaranty in question was not made to him or whilst he was the holder of the note, that it was not negotiable in itself and was not made so by being written upon and intended to secure a negotiable instrument;" and he further remarks, "it is no more a negotiable promise than if it had been written on a separate writing referring to the note and guaranteeing it to the then holder.". To the same effect are Tuttle v. Bartholomew, 12 Metc. 452; Belcher V. Smith, 7 Cush. 482. The same is held in Pennsylvania. McDoal v. Yeomans, 8 Watts, 361.

Other cases of like import may be found in notes to 2 Pars. on Notes and Bills, 133. That author declares the weight of authority to be decidedly opposed to the negotiability of a guaranty whether indorsed upon the note or existing separately from it, and his own view is expressed as being entirely in concurrence with that legal result. See, also, cases in Fell on Guar. 298, etc.

Where the irregular indorsement grows out of a participation by the indorser in the original transaction, such as in legal contemplation would hold him as a joint maker, as where his credit is given as security for the maker on the faith of which the payee of the note accepts it- in other words, where his relation to the transaction is such that he may be considered as a party to the note-his liability passes to subsequent legal holders, with the rights that attach to commercial paper; but where his contract is strictly that of guaranty, that is, collateral to the original undertaking, it is not negotiable, possesses none of the attributes of negotiable paper, and is liable to all defenses that other non-negotiable choses in action are subject to. 'in

It is plain then, I think, that under the evidence

this case there was no view in which the defendant Potter could be held, and the rule to show cause as to Potter should be made absolute. As to the other defendant, I see no reason why the verdict may not stand against him.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

MARCH, 1881.

AGENCY -PRINCIPAL NOT BOUND BY INSOLVENT DISCHARGE OF DEBTOR DEALING WITH AGENT AS

PRINCIPAL - CONFLICT OF LAWS. — A., the agent of plaintiff, a resident of Pennsylvania, sold goods in Massachusetts to defendant, a resident there, who supposed A. to be the principal. Afterward defendant, who had not paid for the goods, was discharged from liability for his debts under the insolvent law of Massachusetts. Plaintiff did not consent to the discharge or take part in the proceedings therefor. In an action by plaintiff to recover the price of the goods, held, that the discharge could not be set up by defendant. The contract being in fact made by the plaintiff's agent in his behalf, he had the right to sue thereon. Of that right he cannot be deprived by the insolvent law of Massachusetts without his consent. He does not give such consent by the making of a contract in this Commonwealth, either by himself or through an agent, even if the contract is to be performed here. The fact that the certificate of discharge obtained by the defendant under that law might have been pleaded in bar of an action brought by the agent cannot make it available in this action brought by the principal, who is not a citizen of the Commonwealth and is not bound by that law. Baldwin v. Hale, 1 Wall. 223; Baldwin v. Bank of Newbury, id. 234; Kelley v. Drury, 9 Allen, 27; Ilsley v. Merriam, 7 Cush. 242; Fessenden v. Willey, 2 Allen, 67. Guernsey v. Wood. Opinion by Gray, C. J.

A provision

DEED RESTRICTIONS IN-PARTIES.in a deed applied to different lots on several streets forbade the erection of buildings upon the lands conveyed within eight feet of the street, and also prohibited the use of the buildings to be erected for certain specified purposes, or "for any nauseous or offensive trade whatever. Held, that though unlimited in time the provision was a valid restriction which equity will enforce at the suit of any party entitled to the benefit of it. Whitney v. Union Railway, 11 Gray, 359; Sanborn v. Rice, 129 Mass. 387. The deed, by applying the restrictions to many distinct lots of land on different streets, supplies the evidence of a general scheme for the improvement and benefit of all the lands included in a large tract, which a grantee of any part of the land may enforce against his neighbor. Parker v. Nightingale, 6 Allen, 341; Linzee v. Mixer, 101 Mass. 512; Sharp v. Ropes, 110 id. 381; Jeffries v. Jeffries, 117 id. 184. Tobey v. Morse. Opinion by Gray, C. J.

MALICIOUS PROSECUTION WHAT NECESSARY TO SUSTAIN ACTION - SAVINGS BANK MAY BE SUED FOR.

-(1) Although in order to maintain an action for malicious prosecution both malice and want of probable cause must be found, yet proof of want of probable cause will warrant the jury in inferring malice. Mitchell v. Jenkins, 5 B. & Ad. 588; Stewart v. Sonneborn, 98 U. S. 187; Ripley v. McBarron, 125 Mass. 272. (2) By the great weight of modern authority a corporation may be liable even when a fraudulent or malicious intent in fact is necessary to be proved, the fraud or malice of its authorized agents being imputable to the corporation; as in actions for fraudulent representations, for libel, or for malicious prosecution. This rule applies to a savings bank, although it is conducted

from motives of kindness and charity, and not for purposes of gain. This circumstance does not affect the legal status of the corporation. Its powers and duties are defined by its charter, and the rights and the duties are legal rights and duties to be enforced by the ordinary rules of law. There is no relation of trustee and cestui que trust between bank and depositor any more than in any other case of debtor and creditor. In all the essential features of their organization savings banks, like all other corporations, are creatures of the law for more convenient transaction of business to be done by them. They are capable of corporate action, and like all other corporations are liable for such action. Reed v. Home Savings Bank. Opinion by Lord, J.

LIE FOR EXCESSIVE ASSESSMENT.

TAXATION -IF VALID IN PART, ACTION DOES NOT The cases are uniform to the effect that if a man is rightfully taxed for any, however little, personal property, he cannot have a remedy by action against the town for any excess of valuation, whether such excess is caused by an over valuation of property liable to taxation, or by including in the assessment property for which he is not taxable; but his exclusive remedy is by an application for abatement. And the same rule applies to a tax on real estate considered as a separate class. Howe v. Boston, 7 Cush. 273; Lincoln v. Worcester, 8 id. 55; Middlesex Railroad v. Charlestown, 8 Allen, 330; Salmond v. Hanover, 13 id. 119. Hicks v. Inhabitants of Westport. Opinion by Morton, J.

RHODE ISLAND SUPREME COURT ABSTRACT.*

ACTION OF ASSUMPSIT WILL NOT LIE FOR FALSE REPRESENTATION WHEN FRUITS OF CONTRACT RE

TAINED. A. made a written agreement with B. & C. by which B. and C. were each to receive $5,000 as reimbursement" for money paid by them respectively into a firm business, and $3,500 for claims to profits, and a bond of indemnity, and were to make over to A. the business and property of the firm. This agreement was carried out. Subsequently A. brought assumpsit against B., alleging a deficit of $174 in the $5,000 of B.'s share in the firm capital. In the same action A. sought to recover $800 from B. because in stating the firm's liability B. omitted an outstanding note of this amount. Held, that having affirmed the agreement and not having revoked it for fraud, A. could not maintain assumpsit for this claim, which in fact rested on B.'s tort. To maintain assumpsit for such a claim, A. must show that at once on discovering the tort he repudiated the agreement and restored or offered to restore B. to his original position. It is only after the contract is annulled and the fruits of it restored that the law implies a promise to pay back the consideration. Pearsoll v. Chapin, 44 Penn. St. 9; Campbell v. Fleming, 1 A. & E. 40; Norton v. Young, 3 Me. 30; Sanborn v. Osgood, 16 N. H. 112; Weeks v. Robie, 42 id. 316; Wheaton v. Baker, 14 Barb. 594; Cook v. Gilman, 34 N. H. 556. The claim here can only be regarded as a claim for damages for torts for which assumpsit will not lie. Fuller v. Atwood. Opinion by Durfee, C. J.

[Decided Jan. 7, 1881.]

CONTRACT -CONSTRUCTION OF FORFEITURE OF PAY ON LEAVING SERVICE. - An operative in the mill of manufacturing company had agreed in writing to give "two weeks' notice of his desire to quit the service of said company at any time, or in default of said two weeks' notice to forfeit two weeks' pay." Held, that the agreement did not apply to a temporary absence; that in case of a temporary absence without leave the

* To appear in 13 Rhode Island Reports.

operative might properly be discharged, but that there would be no forfeiture, under the agreement, of wages then earned. Heber v. United States Manufacturing Company. Opinion by Durfee, C. J. [Decided May 7, 1881.]

-CONFLICT

OF

CORPORATION-MAY EXERCISE IN ANOTHER STATE ONLY POWERS GIVEN BY CHARTER LAW. - A foreign corporation doing business in Rhode Island has only such powers as have been conferred upon it by its charter or by the laws of the State to which it owes its existence. It gains no additional powers by doing business here, because this State does not give it any, but only allows it, as a matter of comity, to exercise such as it has. Consequently, an assignment for creditors made in Rhode Island would have no validity under the laws of this State when made by a New York corporation, the laws of that State prohibiting such an assignment by a corporation. Pierce v. Crompton. Opinion per Curiam.

[Decided July 9, 1881.]

PARTNERSHIP — INTEREST OF PARTNER SEIZABLE ON PROCESS AGAINST HIM LEVY ON FIRM PROP

ERTY.-The interest of a copartner in the partnership property may in Rhode Island be attached by an individual creditor of such copartner. In such a case the sheriff may seize a chattel and deliver it to the purchaser of the interest attached, who becomes a tenant in common of such chattel with the other partners, but subject to the partnership debts and equities. In Phillips v. Cook, 24 Wend. 389, Cowen, J., held that the sheriff might seize the whole of the particular article and sell the interest of the debtor in it, and deliver it to the purchaser, who then became a tenant in common with the other partner and took subject to a settlement of partnership accounts and to the equitable claims of the creditors of the firm, and this we think is in accordance with the other decisions on the subject. See, also, opinion of Nelson, C. J., in Birdseye v. Ray, 4 Hill (N. Y.), 158, 161, and as to the disposal of the purchase-money and the remedy of the other partner see Doner v. Stauffer, 1 Penn. 198. Although, if the officer sells the whole, it will be as to the cotenant a conversion. Ladd v. Hill, 4 Vt. 164; White v. Morton, 22 id. 15; Bradley v. Arnold, 16 id. 382; Walker v. Fitts, 24 Pick. 191; Waddell v. Cook, 2 Hill (N. Y.), 47; Drake on Attach., § 248. Randall v. Johnson. Opinion by Potter, J. [Decided June 24, 1881.]

VERMONT SUPREME COURT ABSTRACT.*

ADVERSE USER-OF WAY. - Merely using a way, open to and occupied by the public, for the purpose of getting water for cattle and the family, has no tendency to prove that the use is adverse, but has a tendency to prove that it is permissive. Such occupancy or use, with the public, raises the presumption that it is not adverse; which the defendant must meet and evercome by evidence. The use must not only be open, notorious and continuous, but under a claim of right, brought to the attention of the plaintiff. Plimpton v. Converse, 44 Vt. 158, and 42 id. 712, followed and approved. O'Neil v. Blodgett. Opinion by Barrett, J.

dowager, it is not extinguished on the death of the widow; and passes to a grantee or purchaser. Harwood v. Benton, 32 Vt. 733; Gale & W. on Easm., ch. 5; Washb. on Easm. 74. A right by implication sometimes arises in a case of a partition between heirs, when it would not arise in a case of a conveyance of one part of a heritage. In Brakely v. Sharp, 2 Stockt. 206, the intestate owned two farms at his death, with a house on each; and had constructed an aqueduct from a spring upon one of them to both these houses. Upon his death the farm upon which was the spring, was set to the widow and one heir, and the other farm to the other heir. The question arose as to the effect of this partition upon the right which the owner of the second farm had to those in connection with his house, in the benefit of this aqueduct. The chancellor held that if the ancestor, while owning both farms, had conveyed to a stranger the one which was set to the widow, he would have lost all benefit of the aqueduct as an easement, if he had not expressly reserved it in his deed; but the widow and heir did not stand in the light of purchasers from the ancestor. All the heirs came in priority of assignment. with equal rights; and no preference arose from mere Jenkins' Centurus, Ca. 37;

James v. Plant, 4 Ad. & E. 749; Buswell v. Hobson, 12 Gratt. 322; Kilgour v. Ashcom, 5 Harr. & J. 82; Turringham's case, 4 Rep. 36; Seymour v. Lewis, 13 N. J. Eq. 439; Elliott v. Sallee, 14 Ohio St. 10. This is a case where the owner had created and impressed a peculiar quality to the different parts of his estate, so that one portion became visibly dependent upon another for the means of access thereto. In Howard v. Benton, supra, it was said: "This condition of the estate was obvious, and had been continuous, and was of a character showing that it was designed to continue thereafter as it was in fact done." Therefore when

the partition took place it was a partition of the estate as it then was, and carried by implication the same right of access to each part over the other as had theretofore been plainly and obviously enjoyed, so far as was reasonably necessary for the enjoyment of each part. Janes v. Jenkins, 34 Md. 1; Lampman v. Milks, 21 N. Y. 505; Durel v. Baisblane, 1 La. Ann. 407; Thompson v. Miner, 30 Iowa, 386; Morrison v. Marquardt, 24 Iowa, 35; Leonard v. Leonard, 7 Allen, 277; Pearson v. Spencor, 1 B. & Smith, 580; S. C., 3 id. 761; Phillips v. Phillips, 48 Penn. St. 178. Although it may have been held that there is no distinction in legal effect between what has been called an implied grant and an implied reservation, such a distinction has been recognized in many well-considered cases. See Suffleld v. Brown, 9 L. T. Rep. (N. S.) 627; Wheeldon v. Barrows, L. R., 12 Ch. D. 31. So far as it is a question of necessity, reasonable not strict necessity is the test; but such right is determined not on the ground of necessity alone, but by the acts of the parties and in the light of circumstances. See Nichols v. Lee, 24 Pick. 102; Collins v. Prentice, 15 Conn. 39. Goodale v. Godfrey. Opinion by Veazey, J.

MINNESOTA SUPREME COURT ABSTRACT.

LIBEL -PRIVILEGED COMMUNICATION NEWSPAPER ARTICLE CHARGING IRREGULARITY IN PUBLIC OFFICIAL ACCOUNTS. Plaintiff was treasurer of the city of M. and as such custodian of its moneys, and was a candidate for re-election. The defendants were residents and tax payers of the city and published a newspaper therein. During the candidacy of plaintiff they published in their newspaper an article which was claimed by plaintiff to be a charge against him of embezzlement of the city funds, but by defendants alleged to be only for the purpose of calling attention to a discrepancy in plaintiff's official accounts, tending to show that plaintiff had failed to charge himself with

certain moneys received by him, with a view of obtaining an inquiry as to the cause of the discrepancy; that they did this without malice or any intent to injure or defame plaintiff or to charge him with embezzlement, but did it as a duty as publishers. Held, that the publication was privileged. The rule is that a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice which the law draws from defamatory words is rebutted, and the onus of proving actual malice is cast upon the person claiming to have been defamed. Toogood v. Sparing, 1 C. M. & R. 193; 2 Add. on Torts, § 1091; Harrison v. Bush, 5 E. & B. 344; Moak's Underhill on Torts, 146; Quinn v. Scott, 22 Minn. 456. That the subject-matter of the communication is one of public interest in the community of which the parties to the communication are members, is sufficient as respects interest to confer the privilege. Purcell v. Souler, 26 P. D. 215; Palmer v. Concord, 48 N. H. 211; Cooley on Torts, 217. The subject-matter of the communication in the case at bar was one of public interest in the city of Mankato, where the publication was made, and one in which the defendants had an interest as residents and tax payers of the city. It was therefore a privileged communication within the rule mentioned, if made in good faith. Marks v. Baker. Opinion by Berry, J. [Decided July 25, 1881.]

PAYMENT -APPLICATION WHERE NO DIRECTION GIVEN. An account for sales of lumber was continued between plaintiffs as creditors and B., or firms in which he was interested, as debtors, payments being made from time to time without any direction as to the application thereof. During this time B. made a voluntary investment in land in favor of his wife, which might be invalid as to existing creditors but was not as to subsequent. B, became insolvent and plaintiffs obtained judgment against him for a balance of account. Held, that the payments on the account would be applied to the earlier items of indebtedness and not to the later, so as to give plaintiffs the standing of existing creditors when the voluntary investment was made, and thus render the same void as to them. It is true that where the parties have not made any specific application of payments courts will make it according to the justice and equity of the case; but in doing so they are governed by certain general and established rules, and are not at liberty to adopt their own notions of what may be just and equitable in each particular case. Miller v. Miller, 10 Shep. 22; Bobe v. Stickney, 36 Ala. 482. And one of these rules is: "In case of payments, where no appropriation is made by either party, and there is but one continuous account of several items, the payments will be applied on the account according to the priority of time; that is, the first item on the debit side is discharged or reduced by the first item on the credit side." This rule was settled in the leading case of Devaynes v. Noble, 1 Mer. 584, commonly known as Clayton's case. This was a case of a bank account, where all sums paid in formed one blended fund, the different items of which had no longer any distinct existence. The court said: "In such case there is no room for any other appropriation

than that which arises from the order in which the receipts and payments take place and are carried into the account. Presumably it is the sum first paid in that is first drawn out. It is the first item on the debit side of the account that is discharged or reduced by the first item on the credit side. The appropriation is made by the very act of settling the two items against each other. Upon that principle all accounts current are settled, and particularly cash accounts. Where

there has been a continuation of dealings, in what way can it be ascertained whether the specific balance due on a given day has or has not been discharged, but by examining whether payments to the amount of that balance appear by the account to have been made? You are not to take the account backwards and strike the balance at the head instead of the foot of it." In Bodenham v. Pierchas, 2 B. & Ald. 39, a court of law followed the rule in the Clayton case. In Field v. Carr, 5 Bing. 13, it was said that the rule had received the sanction of every court in Westminster Hall. The same rule was followed in Pemberton v. Oakes, 4 Russ. 154, and has been extensively adopted by the courts of this country, both directly and by way of analogy. When frequent settlements of accounts with debit and credit, are made between the parties, and balance carried forward to new accounts, and no appropriation has been expressly made by the parties (precisely this case), the law will appropriate the credits to the extinguishment of the oldest charges. McKinzie v. Nevins, 9 Shep. 138. This rule will be applied without reference to the fact that one item is better secured than another; whereas, in this case, the different items have been blended together in one common account, and have no longer any separate existence, and the general balance only is considered due. Harrison v. Johnson, 27 Ala. 445; Truscott v. King, 6 N. Y. 147. See, also, Compton v. Pratt, 105 Mass. 255; Hall v. Robbins, 22 Mich. 475; Miller v. Miller, 10 Shep. 22; Cushing v. Wyman, 44 Me. 121; U. S. v. Kirkpatrick, 9 Wheat. 720. The only exception or modification of this rule is that being founded on the presumed intention of the parties it will not be applied where the evidence clearly shows a different intention, as in Dulles v. De Forest, 19 Conn. 190. Cases where the older items were barred by the statute of limitations, as in Livermore v. Rand, 6 Fost. 85, or are illegal, as in Solomon v. Dreschler, 4 Minn. 278, are apparently, but not really, exceptions to the rule. For a fuller citation of authorities on this subject see Munger on Payments, 102 et seq.; also notes on the Clayton case; I Tudor's Lead. Cas. 1; 1 Am. Lead. Cas. 334. Hersey v. Bennett. Opinion by Mitchell, J. [Decided June 25, 1881.]

RECENT ENGLISH DECISIONS.

CRIMINAL EVIDENCE CONFESSIONS PROCURED BY INDUCEMENTS HELD OUT BY POLICE OFFICER. - Previously to being given in charge the prisoner was taken into a room where the prosecutor and an inspector of police were. The prosecutor then said to the prisoner, He (meaning the police inspector) tells me you are making housebreaking implements; if that is so you had better tell the truth, it may be better for you." The prisoner then made admissions which contributed materially to his conviction upon an indictment for larceny. Held, upon the authority of decided cases, that these admissions were inadmissible after the inducement held out in the words " it may be better for you." [Note. The cases referred to sustaining this decision were these: Regina v. Baldrey, 2 Den. C. C. 450; Reg. v. Garner, 1 id. 329; Rex v. Kingston, 4 Car. & P. 387; Rex v. Walkley, 6 id. 175; Rex v. Thomas, 6 id. 353; Rex v. Sheppard, 7 id. 579; Reg. v. Jervis, L. R., 1 C. C. R. 97; Reg. v. Bate, 11 Cox C. C. 686; Reg. v. Doherty, 13 id. 23; Reg. v. Zeigert, 10 id. 555; Reg. v. Reeve, L. R., 1 C. C. R. 362.] Crown Cas. Res., May 21, 1881. Regina v. Fennell. Opinion by Lord Coleridge, C. J. 44 L. T. Rep. (N. S.) 687.