Freeman v. Freeman, 43 N. Y. 34, is cited as supporting the charge. Assuming, without deciding, that that case is applicable, there is no evidence here that any such improvements were made, and it was erroneous to submit that question to the jury. The defendaut testified that after his purchase he made improvements to the amount of about $100, but these were made before the conveyance to Phineas. After that time, as he testified on his first examination, he made no improvements, but kept the fences up. Being recalled, he testified that after the conveyance to Phineas he put up a board fence and set out six pear trees and some raspberry bushes, and cleaned up a piece of the land and kept the buildings good, but to use his own expression, he had not done "a terrible sight of it."

These are not such permanent improvements as would bring the case within Freeman v. Freeman if it were applicable. Hutchins v. Hutchins. Opinion by Rapallo, J.

[Decided Jan. 20, 1885.]

MAINE SUPREME JUDICIAL COURT ABSTRACT.*

TRESPASS-AB INITIO-FAILURE TO LEAVE ENOUGH HAY TO KEEP STOCK.-When an officer in the attachment and removal of hay does not leave the requisite amount to keep the stock which the defendant owns, exempt from attachment, at the time of the attachment, he thereby becomes a trespasser as to so much as is taken beyond what is authorized by law, but not ab initio as to all the hay taken. The authorities upon this point, both English and American, are that it is only for the excess that the officer would be liable. The distinction running through the more modern cases-not at variance with those of earlier date-is marked, that there may be an abuse of authority by an officer which will affect his acts, and render him liable as a trespasser, only in relation to a portion of the property, especially when the same is capable of division, and where, in reference to that property, the aots done in excess may be distinguished from those done in pursuance of authority. Wheeler v. Raymond, 130 Mass. 247; Cone v. Forest, 126 id. 101. Where the act done is wrongful, but is so merely as to a part of the goods, no wrong being done as to the residue, the wrong-doer is a trespasser as to that part of the goods only in respect of which the wrongful act was done. As in the case of Dodd v. Monger, 6 Mod. ern, 215, where several barrels of beer were distrained for rent, and the distrainer drew beer out of one of them, Lord Holt held that it rendered him a trespasser ab initio only as to that single barrel. In Harvey v. Pocock, 11 M. & W. 744, it was decided that where a landlord distrained for rent, with other things, goods not distrainable, the distrainer was a trespasser only as to the goods which were not distrainable. Lord Abinger, C. B., alluding to Dod v. Monger, 6 Mod. 215, and to the early case of Six Carpenters, 8 Coke, 146, says: "The case in 6 Modern is undoubtedly a very strong authority for the defendants. The Six Carpenters' case leaves it an open question how far the party becomes a trespasser ab initio as to the whole distress by an excess as to part. It is very reasonable that he should not, but that his liability should be limited according to the doctrine laid down by Lord Holt." The same views are held by the present chief justice of this court in Seekins v Goodale, 61 Me. 404, wherein he says: "We think a fair construction of the rule established in the Six Carperters' case makes the defendant liable as a trespasser ab *Appearing in 76 Maine Reports.

initio only for the sale of so much of the goods as were sold in excess, and not for those sold in pursuance of authority." The same doctrine is stated in 1 Smith Lead. Cas. *219, as follows: "But if there be a seizure of several chattels, some of which are subsequently abused, and the rest not, the seizure is, or becomes, illegal only as to the part which it was unlawful to seize or which was subsequently abused, and the seizure of the rest continues legal." Wentworth v. Sawyer. Opinion by Foster, J.

WILL-DEVISE-LIFE-ESTATE.- A testator devised real estate to his widow to hold "during her life for her maintenance, but not to sell the same, the said real estate to go to John Mehan at her death, if any remain." Held (1), that the widow took a life estate by express words of limitation, without any power of disposal annexed. Leighton v. Leighton, 58 Me. 69, 70: Warren v. Webb, 68 id. 135, 136; Paine v. Barnes, 100 Mass. 471; Taggart v. Murray, 53 N. Y. 236. (2) That the words "if any remains" are by implication in opposition to the language of the testator, in the same clause by which the widow is expressly prohibited from making sale of the real estate, apparently inconsistent with every other expression in the will, and therefore cannot be held to imply a right of disposal. It will be noticed that in many of the cases where such words as "if any remains," "if any shall remain unexpended," and other similar expressions, are held to imply the right of disposal, the testator had, either expressly or impliedly, authorized the disposal of his estate by the use of other language, and with which these expressions were only in harmony in conveying the intent of the testator. Ramsdell v. Ramsdell, 21 Me. 288; Harris v. Knapp, 21 Pick. 416; Leighton v. Leighton, 58 Me. 69; Scott v. Perkins, 28 id. 35; Burleigh v. Clough, 52 N. H. 267. And our court, in referring to the case of Harris v. Knapp, supra, says: "The court gave great force and effect to the phrase, 'whatever shall remain at her death,' deducing from it the conclusive implication that the devisee had the right to dispose of the property. The use of the word disposal' in the will however undoubtedly contributed to the conclusion arrived at by the court." Warren v. Webb, supra. From a careful examination of the provisions of this will we are satisfied that it was the intention of the testator that his widow should take a life estate, with no power of conveying the fee: that the words "if any remains," taken in the connectiou in which they are found, must yield to the more positive and unequivocal declaration of the testator, but not to sell the same," and which is in harmony with the other provisions of the will. Birmingham v. Leson. Opinion by Foster, J.

·

- RELATIONSHIP.

JUDGE DISQUALIFICATION A judge of probate appointed an administrator with the will annexed upon the estate of a testatrix, whose deceased husband was the judge's uncle. Held, that the judge was legally competent to make the appointment, the relationship between him and the testatrix not rendering the appointment void. At the older commou law personal interest formed the only ground for challenging a judge. Bou. Law Dic. Incompetency.' It was not objectionable for a judge to sit in a cause to which a relative was a party. The public sense has become finer in that respect than formerly. According to Chancellor Walworth's statement, Chancellor Kent sat in a cause where his brother-in-law was personally interested, and in another case where his own brother was the complainant. In re Leefe, 2 Barb. Ch. 39. He presided probably because there was no other court that had jurisdiction of the cases. The historical phase of judicial disqualification is learnedly presented by Folger, J., in the case of In re David R.

Ryers, 72 N. Y. 1; S. C., 28 Am. Rep. 88. The true test is whether the relative has an interest as a party to the cause or proceeding before the judge, or stands in the condition of a party. In Aldrich, appellant, infra, it is said: "There is not the same reason that the remote or contingent interest of a relative or connection should exclude the judge from acting. It is only when the relative is a party or has a direct or apparent interest in the matter to be passed upon by the judge, that the condition arises that works a disqualification." As said by Rapallo, J., in the case of In re Dodge & Stev. Manuf. Co., 77 N. Y. 101; S. C., 33 Am. Rep. 579: "Judgments and proceedings of courts against corporations would stand upon a very precarious foundation in these days if they could be overturned on discovery that some judge who took part in them was related by blood or marriage to some stockholder of the corporation." It would be difficult for a judge to know when he could safely sit in cases where large corporations are parties. Even where the judge is disqualified to act from his own personal interest, it must be something more than a merely possible and theoretical interest. It must be an actual interest, however small, direct or indirect. He can do merely formal acts when a relative is interested as a party. Cooley Con. Lim., § 413. The pecuniary interest of the judge's relatives was not whether A. or B. be appointed, but merely what a suitable person should bę. Chancellor Walworth decided that it was not incompetent for a vice-chancellor to appoint his son upon ȧ committee of lunacy, it being merely a ministerial service to be performed under the direction of the court. In re Hopper, 5 Paige Ch. 489. See Nettleton v. Nettleton, 17 Conn. 542; Hall v. Thayer, 105 Mass. 219; Matter of Aldrich, 110 id. 189, distinguished. Russell v. Belcher. Opinion by Peters, C. J. [See 33 Am. Rep. 346; 29 Eng. Rep. 330; 91 N. Y. 284.-ED.] JUDGMENT-NONSUIT NO BAR TO SECOND SUIT.-A judgment of nonsuit is not a bar to a subsequent action for the same cause. This view is in full accord with the cases adjudged by courts that proceed according to the course of the common law. Morgan v. Bliss, 2 Mass. 111. In Knox v. Waldoborough,5 Greenl.185, it appeared that the parties in a former suit for the same cause of action signed an agreed statement of facts, and stipulated that if the facts did not warrant the action the plaintiff should become nonsuit, and the court held that a judgment of nonsuit entered according to the stipulation was no bar to the action. In that case the judgment of nonsuit was held to be no bar, because the facts touching the rights of the parties had not been adjudged by any tribunal. The court in the original suit simply determined the law applicable to the facts agreed. So in the action wherein a judgment of nonsuit was rendered is claimed to bar this suit, the undisputed facts were held insufficient in law to support the action, but were not adjudged, that is, decided in the defendant's favor. So too a nonsuit upon an agreed statement of facts was held to be no bar to a subsequent suit. Homer v. Brown, 16 How. 354. It has been said that a "uonsuit is but like blowing out a candle, which a man at his own pleasure lights again." March Arbitraments, 215; Clapp v. Thomas, 5 Allen, 158; Bridge v. Sumner, 1 Pick. 371; Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121; Audubon, Ex. v. Excelsior Ins. Co., 27 N. Y. 216; Eaton v. George, 40 N. H. 258; Derby v. Jacques, 1 Clifford, 425; Jay v. Carthage, 48 Me. 353. Pendergrass v. York Manufacturing Co. Opinion by Haskell, J.

LICENSE TO REMOVE TIMBER-ASSIGNMENT-CHATTEL MORTGAGE-FILING.-(1)A written permit to cut and remove timber from land running to two permittees may be wholly assigned by one of them, if he is

authorized to act, and does act for both, although he sigus the assigument by his own individual name, and the assignment does not itself disclose that he is acting for or upon the authority of the other permittee. The authority of the one to act for both may be shown by oral evidence. The law in many cases admits evidence to show the real and actual capacity in which persons have set their names to written contracts. Had the words "for self and Colbath" been added to Foss' name the assignment would have been complete. They may be supplied by oral proof. Higgins v. Senior, 8 M. & W. 834; Huntington v. Knox, 7 Cush. 371. It is competent to show that contracting parties were agents of other persons, so as to give the benefit of the contract to or charge its liabilities upon the unnamed principal. An undisclosed principal may be shown to be the real party in a transaction in which the agent is the only ostensible person. 1 Whart. Con., § 202, and numerous cases in note. Lerned v. Johns, 9 Allen, 419; Lamson v. Russell, 112 Mass. 387; Cushing v. Rice, 46 Me. 303; Coleman v. Bank, 53 N. Y. 393; Hutton v. Bulloch, L. R., 9 Q. B. 572. We think the present case falls within the circle of the doctrine marked out by the authorities. (2) An assignment in a mortgage form of a permit to cut and remove timber need not be recorded as a chattel mortgage, so far as outtings are concerned which are made after the assignment; aliter, as to cuttings made before the assigument. (3) The same rule applies where the permit extends to hemlock trees that have been already cut down and left, with the bark peeled therefrom promiscuously upon the land. (4) The statutory requirement that chattel mortgages shall be recorded applies to equitable as well as to legal mortgages. Such was no doubt the idea of the court in Shaw v. Wilshire, 65 Me. 485. Barrows, J., there says: "We see no reason to discriminate between au equitable mortgage and one in which the condition is more fully expressed." If equitable mortgages are not to have the privilege of a registration, we do not see how such mortgages can be very available or even valid, unless a delivery is taken and kept. It may be said that a mortgage in the form of absolute sale gives no indication of the nature of the condition annexed. But many legal mortgages do not upon their face fully disclose the facts. The very fact however that an instrument in the form of absolute sale is recorded, is a notice that some condition is annexed. What the condition is may be ascertained under the statutory modes provided for the purpose. A sale and a separate written defeasance given back constitute even a legal mortgage. But in such case the vendee has no means of requiring the separate defeasance to be recorded. We make no distinction of the kind, set up by the plaintiff, in the matter of the registration of deeds of real estate when regarded as equitable mortgages. Putnam v. White. Opinion by Peters, C. J.

TENDER-MUST BE KEPT GOOD.—(1) A tender of the amount due from the purchaser of land to his vendor, who is not in a position to make a clear title, according to his bond, by reason of au incumbrance placed by him on the premises sold, to be availing to stop the accruing of interest after such tender, must be kept good. To have that effect the tender must ke kept in money, at all times ready to be paid, and subject to the order of the creditor at any time when he shall comply with his contract so as to be authorized to receive it. (2) The money tendered must at all times be kept in readiness for the creditor, and not be used by *To appear in 109 Illinois Reports.

the debtor, and when pleaded at law it must be brought into court for the creditor. It may be the precise pieces of money need not be kept separate, but the amount must be kept at all times subject to be received by the creditor when he calls for it. Thayer v. Meeker, 86 Ill. 470; Crain v. McGoon, id. 431; Stow v. Russell, 36 id. 18; Knox v. Light, 12 id. 86. These cases distinctly announce the rule that the money tendered must at all times be kept in readiness for the creditor, and not used by the debtor, and when pleaded at law, it must be brought into court for the creditor. It is in this way only that the debtor can escape the payment of interest and costs. We have only to turn to any book of precedents to find that a plea of tender must aver a readiness, at all times after it is made, to pay the money, and he must bring in into court. If he uses the money, of course he is not at all times ready to pay it. In the case of Gyles v. Hall, 2 P. Wms. 378, where a tender was relied on to stop interest, it was said by the lord chancellor: "But in this case it ought to appear that the mortgagor, from that time, always kept the money ready, whereas the contrary thereof being proved, the mortgagor was not ready to pay it, therefore the interest must run on.” This is the rule both at law and in equity, and it is supported by the principles of justice. Mathison v. Wilson, 87 Ill. 51; Carr v. Miner, 92 id. 604; Ventres v. Cobb, 105 id. 33. Aulger v. Clay. Opinion by Walker, J.

WITNESS

ING

REPUTATION -PRACTICE ON IMPEACHATTORNEY AND CLIENT DEALINGS BETWEEN. The proper mode of inquiring into the general reputation of a person who has given testimony in a cause, for truthfulness, is to ask the impeaching witness whether he knows such person's general reputation among his neighbors for truth and veracity, and what that reputation is. In the English courts the course is further to inquire whether from such knowledge the impeaching witness would believe that persou under oath. 1 Greenl. Ev., § 461. While this court has adopted the English rule as correct, it has never held, and such is not the law, that it is compulsory that the opinion of the witness shall be asked or stated. Frye v. Bank of Illinois, 11 Ill. 367; Eason v. Chapman, 21 id. 34; Massey v. Bank, 104 id. 327; see also People v. Tyler, 35 Cal. 553. (2) The general practice in the Circuit Courts of this State has been, to leave it optional with the party calling the impeaching wit. ness, to ask the opinion of the witness, or not as he may think proper; and this practice is correct, and in harmony with the current of authority upon the question. Dealings between attorney and client will be scrutinized closely, in order to guard against wrong being committed, owing to the confidential relations existing between them, and the supposed personal influence of an attorney over his client; but there is no rule of law which absolutely prohibits a sale merely on account of the existence of the relation of attorney and client. Hess v. Voss, 52 Ill. 472. A sale of property from a client to an attorney will be sustained, where the transaction is open, honest and fair, and no undue influence is used. See Alwood v. Mansfield, 59 Ill. 496. Laclede Bank v. Keeler. Opinion by Craig, J.

NUISANCE-EVIDENCE-QUESTION OF DAMAGE.-On the trial of an action on the case, brought by the owner of a brewery, against the defendant, the owner of a starch factory, located near the brewery, to recover damages for polluting the waters of a stream that ran through a part of the plaintiff's premises, by the flow of slops into the same, and for befouling the air with unhealthy and unsavory odors, arising from the using and operating the starch factory, the court allowed the plaintiff to be asked, when testifying as a

witness, the difference in the sales of his beer before and after the construction of the starch factory. Held, that the question was properly allowed, the other proof showing that the flow of the slops from the sewer affected the atmosphere at the brewery, and the plaintiff's theory being that the atmosphere so polluted affected the beer, and rendered it unsalable. Such theory was however not conclusive, but was open to proof that other causes, and what affected the sales of the beer. Cunningham v. Stein. Opinion by Scholfield, J.

WHAT AWARD MUST

ARBITRATION AND AWARD SHOW.- -Where several distinct matters, not consisting of mere money demands, are submitted to arbitration, the arbitrators must consider, and by their award finally settle and dispose of all such matters in difference, and this must appear from the award itself or it will be void. Tucker v. Page, 69 Ill. 179; Buntain v. Curtis, 27 id. 374. But when the controversy relates to cross money demands, whether in suit or not, or where in any case the circumstances are such that the arbitrators will be warranted in requiring the party, who upon the whole appears to be in default, to pay to the other a sum of money in gross, it is not necessary, nor is it the better practice for the award to show upon its face how the result was reached, or in other words, how each item of their respective demands was disposed of. In such case the awarding of a gross sum of money will be presumed to be a full adjustment of all matters of difference embraced in the submission. Weed v. Ellis, 3 Caines, 253; Baspole's case, 8 Co. 97 b; Watmough v. Holgate, 2 Vent. 221; Patton v. Baird, 7 Ired. (N. C.) Eq. 255; Blossom v. Van Amringe, 63 N. C. 65. Stearns v. Cope. Opinion by Mulkey, J.

CONSTITUTIONAL LAW-POLICE POWER-REGULATING AND RESTRAINING TRADE.-The State, through the General Assembly, has supreme legislative power, except so far as it is limited by its Constitution, or such as has been delegated to the general government, or its exercise has been limited by the Federal Constitution. The police power of the State, when exercised by the Legislature in the passage of laws for the protection of life, liberty, and property, or laws for the general welfare, has no limitations or restrictions, except such as are found in the Constitution. The fact that a law regulates trade or any business, or in some degree operates as a restraint on the same, does not render it obnoxious to any constitutional provision. The Legislature, for the safety, security, and welfare of society, may control the acts of the governed even as to the time and manner of performing labor, and in the manner in which persons shall use their property to prevent injury to others. Where a law is found on the statute books, the presumption is that it conforms to the Constitution. This presumption arises from the fact that each member of both houses who pass the law, and the chief executive who has approved it, are under the same obligation to support the Constitution as are the courts. Having performed all acts necessary to the adoption of the law, we must presume they acted in view of the Constitution and all of its limitations. For these reasons the courts never interfere to declare a law unconstitutional in case of doubt. To authorize such action by the court, it must be clear the law violates some provision of the organic law. When therefore a law is challenged as unconstitutional, we must be able to turn to the provision of the instrument which prohibits the Legisla ture from its enactment, and the repugnancy must clearly appear. These doctrines and constitutional principles are distinctly announced by this court in the cases of Field v. People, 2 Scam. 79; People v. Salomon, 51 Ill. 49; People v. Marshall, 1 Gilm. 672; Lane

v. Doe, 3 Scam. 238; Bruce v. Schuyler, 4 Gilm. 221; Mason v. Wait, 4 Scam. 127, and People v. Reynolds, 5 Gilm. 1, and coincide with the decisions of almost if not all courts. The act of June 18, 1883, requiring the operators of butter and cheese factories on the co-operative plan to give bonds, etc., is not in contravention of section 6, article 2, of the Bill of Rights, which declares that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall be inviolate." Such act is but a proper exercise of the police power of the State for the protection of persons intrusting their property to the manufacturer from fraud and wrong. A number of cases arising under city ordinances have been referred to by counsel as conclusive that this law is unconstitutional. In none of the cases referred to had the General Assembly, in express terms, granted to the municipality the powers that were exercised. Such was the case in City of Clinton v. Phillips, 58 III. 102. There the city authorized the sale of the liquor, but made it penal to fail to make a statement, at designated times, of sales, their purposes, the time, and the persons to whom sold. The case of Toledo, Wabash & Western R. Co. v. City of Jacksonville, 67 Ill. 39, was a city ordinance requiring the useless act of the railroad company keeping a flagman at a crossing where there was no danger to persous. They are unlike this case. In none of the cases referred to was the law intended to protect the public from wrong and fraud, but the charters of those cities only conferred the power to adopt reasonable ordinances, and it was held they were not such, and were held inoperative for that reason. Nor had the Legislature required that such ordinances should be adopted. The corporate bodies in those cases were only empowered to pass reasonable ordinances, and they were in those cases held to be unreasonable, and therefore void. Hawthorn v. People. Opinion by Walker, J.

CONTRACT--MENTAL CAPACITY-BURDEN OF PROOF —EVIDENCE OF IMPROPER RELATIONS NUMBER OF WITNESSES.-(1) Although the mind of an individual may be, to some extent, impaired by age or disease, still if he be capable of transacting his ordinary business, if he understand the nature of the business in which he is engaged, and the effect of what he is doing, and can exercise his will with reference thereto, his acts will be valid. Meeker v. Meeker, 75 Ill. 266; Trish v. Newell, 62 id. 196; Pickerell v. Morss, 97 id. 220; Lindsey v. Lindsey, 50 id. 79. (2) On bill to set aside a conveyance of real estate made by his ward, on the ground of insanity of the grantor and undue influence of the grantee over him, the burden is upon the complainant to prove one or both of these allegations of his bill by a preponderance of evidence. Lilly v. Waggoner, 27 Ill. 395; Willemin v. Dunn, 93 id. 511. (3) The fact that a man is not the husband of a woman with whom he is on intimate terms and transacts business, but by some were supposed to be man and wife, is not sufficient evidence of illicit or adulterous intercourse between them, or of improper relations. (4) Mere numbers of witnesses alone, testifying to a state of facts, or as to the mental capacity of another to make a rational contract, will not control, where the less number are more intelligent, more reliable, or in any material respect superior as witnesses to the others. English v. Porter. Opinion by Scholfield, J. ADVANCEMENT-PRESUMPTIONS AS TO.-The general rule is, that a purchase of land by a parent in the name of a child, or of a husband in the name of the wife, is presumed to be an advancement and not a trust. Perry on Trusts, § 147, says: "Whether a purchase in

the name of a wife or child is an advancement or not is a question of pure intention, though presumed in

the first instance to be a provision and settlement; therefore any antecedent or contemporaneous acts or facts may be received, either to rebut or support the presumption; aud any acts or facts so immediately after the purchase as to be fairly considered a part of the transaction may be received for the same purpose." In Taylor v. Taylor, 4 Gilm. 303, where a parent purchased lands in the names of his two sons, and the question arose whether the purchase was an advancement, or whether they held in trust, it was held that "the presumption of law is, where a father purchases land in the name of his children, unaccompanied by any extraordinary circumstances, that it was intended as an advancement; but the presumption may be rebutted by circumstances." In Cartwright v. Wise, 14 Ill. 417, where a parent with his own money entered a tract of land in the name of his son, who was an idiot, this court took stronger grounds in sustaining the conveyance as an advancement than was done in the case last cited. In deciding the case it was said: "The question arises whether a father who purchases land with his own money, and takes the title to his idiot son, can file a bill for a resulting trust, and claim that he did not intend it for the benefit of his son, but for his own use. We are prepared to say that such a bill cannot be sustained. It must be held to be an advancement in favor of the child. The policy of the law requires that such an advancement thus made to such a party should be held to be irrevocable by the father." Maxwell v. Maxwell. Opinion by Craig, J.

RAILROAD FENCING TRACKS-KILLING STOCK.-A statute of the State of Indiana gave the owner of stock killed on a railway a right of action against the company, without regard to the question whether such injury was the result of willful misconduct or negli gence, or the result of unavoidable accident. It was however provided the act should not apply to any railroad securely fenced in, and such fence properly maintained by such company. Although this statute is general, and contains no exception, it was held in L. and Ind. R. Co. v. Shriner, 6 Ind. 141, the Legislature did not intend to authorize railroad companies to inclose streets in a town against the use of the public, and that a literal construction of the statute would lead to an absurdity. In that case the animal was killed within the corporate limits of the town of Lafayette, at a place where the railroad track crossed one of the streets of the town, and it was ruled it would not have been lawful to erect a fence at that point, and that the want of such fence was not the cause of such accident. In the case of Ind. and Cin. R. Co. v. Kinney, 8 Ind. 402, it was held under the same statute cited in L. and Ind. R. Co. v. Shriner, a railroad company would not be liable for stock killed or injured at a place on their road where a fence ought not to be erected, unless the injury was negligently or willfully done, and that an open space in front of a mill standing within fifty feet of the track is such a place. In the case of Ind. and Cin. R. Co. v. Parker, 29 Ind. 471,it was held, as in the other cases cited, the statute did not apply to injuries done at a point where it would be illegal or improper for the railroad company to maintain fences, such as road and street crossings, but that it was not every place within the corporate limits of a town or city that is within the exception. The exception allowed would be as to places where it would be improper to fence the track, whether within or without the corporate limits of cities or villages. In construing their own statute on the same subject, and which is not unlike the Indiana statute, in F. and P. M. R. Co. v. Lull, 28 Mich. 510, the court thought the rule established by the case last cited was a satisfactory one, that it expressed the limits of the exceptions

arising under the statute accurately, and a track within the corporate limits of a city or town, at a point where no reason arising from public necessity existed for keeping it open, was as much within the statute as a track elsewhere. It seems the courts of Missouri and Iowa have followed closely the rule established by the cases ut supra, in construing similar statutes on the same subject. Lloyd v. Pacific R. Co., 49 Mo. 199; Davis v. B. and M. R. Co., 26 Iowa, 549; Cleaveland v. C. and N. W. R. Co., 35 id. 220. It is seen it is held by these courts, that notwithstanding the statute makes railroad corporations liable for injuries done to stock unless their tracks are inclosed with suitable fences, yet they are not bound to fence their tracks at places where it would be improper to do so on account of the great public inconvenience it would occasion, and hence are not liable because of the omission, unless guilty of negligence or willful misconduct in regard to the accident that caused the injury. The reason for the rule adopted in such cases is well stated in People v. Davenport, 91 N. Y. 574, where it is said, a "principle of construction of universal authority is that which requires the court to limit and restrict the operation of a statute, when its language, if applied in its literal sense, would lead to au absurdity or manifest injustice." The same rule of construction had been previously adopted by this court in Perry County v. Jefferson County, 94 Ill. 218. On the other hand the law is equally well settled that where no reason arising from public necessity exists for keeping it open at any given point, whether within or without the corporate limits of a city or village, all railroad corporations must conform to the statute, and fence their tracks, or answer for damages that may result from the omission of that duty. C., M. & St. P. R. Co. v. Dumser. Opinion by Scott, J.

IOWA SUPREME COURT ABSTRACT.

SALE-WARRANTY OF QUALITY· SEVERABLE CONTRACT-RIGHT TO RESCIND.-D. offered to sell W. & Co. 10 car-loads of barley like a sample sent him, for 70 cents per bushel. W. telegraphed and wrote D. that they would take 10 car-loads like the sample named, and D. answered that he would "turn out the 10 cars as fast as possible." One car-load was delivered, and D. drew for the price thereof; but as it did not come up to the sample in quality, W. & Co. refused to pay the draft, but retained the barley, and informed D. that they had given him credit for the value of the barley, which was five cents less than the agreed price, and would retain the amount until the other nine car-loads were delivered; but that D. might draw on them against future shipments. D. insisted upon payment for the load delivered, and refused to send more barley until payment was made, but offered to deliver the balance if payment was made. No more barley was delivered, and D. sued for the price of the one car-load. Held, (1) that there was an express warranty that the barley to be delivered should be equal to the sample, for the breach of which W. & Co. were entitled to damages; and (2) that the contract was severable, and the failure to pay for the carload delivered was not a rescission thereof, and did not entitle D. to rescind it, and that W. & Co. were entitled to damages for D.'s failure to deliver the remaining car-loads. Defendants having been induced to enter into the contract, and the delivery of the carload in question having been made, plaintiffs must be held to have warranted that the grain corresponded in quality with the sample. If there had been no warranty of the property, defendants, if they elected to keep it, would have been bound to pay the contract price. This is the well-settled rule in such cases. See

Reed v. Randall, 29 N. Y. 358; Gaylord v. Allen, 53 id. 515; Dounce v. Dow, 64 id. 411; Gilson v. Bingham, 43 Vt. 410; Allison v. Vaughn, 40 Iowa. 421. But it is equally well settled in this State that where there has been a warranty of the quality of the goods, and a failure of such warranty, the vendee may retain the property and sue on the warranty. Aultman v. Theirer, 34 Iowa, 272; Rogers v. Hanson, 35 id. 283; McCormick v. Dunville, 36 id. 645; King v. Towsley, 19 N. W. Rep. 859. The rule established by the de. cided weight of authority, both in England and this country, is that rescission of a divisible contract will not be allowed for a breach thereof, unless such breach goes to the whole of the consideration. Freeth v. Burr, L. R., 9 C. P. 208; Mersey Steel & Iron Works v. Naylor, L. R., 9 Q. B. Div. 648; Simpson v. Crippin, L. R., 8 Q. B. 14; Newton v. Winchester, 16 Gray, 208; Winchester v. Newton, 2 Allen, 492; Sawyer v. Railway Co., 22 Wis. 403; Burge v. Cedar Rapids & M. R. Co., 32 Iowa, 101; Hayden v. Reynolds, 54 id. 157; S. C., 6 N. W. Rep. 180. See also the collection of authorities in the note to Norrington v. Wright, 21 Am. Law Reg. 395. Neyer v. Wheeler. Opinion by Reed, J.

[Decided Dec. 11, 1884.]

SLANDER-CHARGE OF CRIME JUSTIFICATION PROOF BEYOND A REASONABLE DOUBT.-In an action of slauder for charging plaintiff with the commission of a crime, when the defendant justifies he need not establish beyond a reasonable doubt that the plaintiff committed the crime in manner and form as pleaded. The court instructed the jury that the defendant must established beyond a reasonable doubt that the plaintiff did commit the crime of larceny in manner and form as the defendant had pleaded. This instruction is in accord with Bradley v. Kennedy, 2 G. Greene, 231; Forshee v. Abrams, 2 Iowa, 571; Fountain v. West, 23 id. 9; Ellis v. Lindley, 38 id. 461. Logically these cases were much shaken by Welch v. Jugenheimer, 56 Iowa, 11. It is logically impossible to say that one rule should obtain when an action is brought to recover damages caused by the commission of the crime of arson, and another in an action brought to recover damages for slander charging such crime, and when the defendant pleads justification. If an action had been brought to recover the value of the wood alleged to have been stolen in this case, the plaintiff in the action would be entitled to recover if he established the fact that the wood had been stolen by a preponderance of the evidence. Logically the same rule must apply when the same party asserts and relies ou the same facts in any other civil action where the right of recovery or defense is asserted. Bradley v. Kennedy, 2 G. Greene, 231; Forshee v. Abrams, 2 Iowa, 571; Fountain v. West, 23 id. 9; and Ellis v. Lindley, 38 id. 461, overruled. Riley v. Norton. Opinion by Seevers, J. [48 Am. Rep. 673; 7 Abb. N. C. 357. -ED.]

[Decided Dec. 9, 1884.]

SALE-WARRANTY - ELECTION OF VENDEE TO RESCIND-DAMAGES.-The vendee of personal property which has been sold with warranty as to its quality, on the failure of the warranty has the election to rescind the contract by returning the property and recovering back the money received by the vendor, or to retain the property and sue for the damages sustained in consequence of the failure. Aultman v. Theirer, 34 Iowa, 272; Rogers v. Hanson, 35 id. 283; McCormick v. Dunville, 36 id. 645. Defendant elected to pursue the lat

ter course. He retained the property, and at the time of the trial had it in his possession. His answer then was in the nature of a counter-claim for the damages which he sustained in consequence of the failure of the warranty. His claim, it is true, was against the ven