flour on board, and transport the same to New Orleans. Defendants were notified that the steamer would stop at the place designated for the delivery of the flour on Sunday. The court held that they were under no obligation to deliver the flour upon that day, although there was danger at that time of navigation being closed by ice, so that the steamer might be unable to complete her voyage. This, it must be admitted, is an extreme case. In the case of the bark Tangier (Richardson v. Goddard, 23 How. 28), a distinction was drawn between a general fast day appointed by the governor of the State and Sunday, and it was held that there was neither a law of the State forbidding the transaction of business on that day, nor a general usage ingrafted into the commercial and maritime law fordidding the unlading of vessels. See also Powhattan Steamboat Co. v. Appomattox R. Co., 24 How. 247. In neither of these cases was it intimated that the Sunday laws were inapplicable to maritime transactions.

Neither is this case affected by the fact that a portion of each voyage was to be performed within Canadian waters, and that the law of Canada upon the subject of Sunday observance is not proven. Both the inception and completion of performance were to take place in this State, and the mere circumstance, that in the course of their trips the steamers must pass beyond the boundaries of the State, does not free the contract from its taint of illegality.

A new trial must be denied.

REDUCTION OF SALARY OF PUBLIC OFFICER. NEW HAMPSHIRE SUPREME COURT.

A

MARDEN V. CITY OF PORTSMOUTH.*

At

An election to and acceptance of a public office, at a fixed salary, does not create a contract so that the salary cannot be changed during the term of such election. City councils have the power to change the salary of any officer elected by them, or by the mayor and aldermen. CTION for official salary. The plaintiff was elected city marshal of Portsmouth, October 2, 1874. that time the city marshal received an annual salary of $800, and his fees as a witness in the police court in all cases where the city was a party or interested. Octo ber 9, 1874, an ordinance of the city fixed the salary at $700, and required all fees and costs allowed him in the police court, including his costs as a witness in criminal cases and in any other case in which the city might be a party or interested, to be paid to the city. The plaintiff held the office until October 28, 1875, when he was re-elected, and continued to hold the office until August 4, 1876. The question was reserved whether he was entitled to recover at the rate of compensation fixed when he was elected and accepted, or at the rate fixed by the ordinance of October 9, 1874.

Frink, for plaintiff.

Foster, for defendant.

STANLEY, J. The city councils were by law vested with all the powers of towns-Gen. St., ch. 44, § 1; and among these powers was that of fixing the compensation of police officers. Gen. St., ch. 44, § 2; ch. 235, § 6. The plaintiff was city marshal, and by virtue of his office, a police officer. Gen. St., ch. 43, § 7. This being the case, he was only entitled to recover such compensation as was fixed by the city councils. The acceptance of the office was under the implied condition that the city councils might change the salary at any time. There is nothing in the statute which conflicts

*To appear in 59 New Hampshire Reports.

with this idea; on the contrary, the fact that there is a special provision "that the salary of the mayor shall not be increased or diminished from the time of any election until the close of the term; " Gen. St., ch. 41, § 11, according to the maxim "that the express mention of one thing implies the exclusion of another," is evidence of the understanding of the Legislature that the election to office and its acceptance does not preclude the proper authority from changing the compensation attached to any office, in the absence of any provision of the Constitution or the statutes to the contrary.

The plaintiff contends that his election and acceptance, at a fixed salary, created a contract, which could not be changed without his consent. Whether this position is correct we need not decide; but it might be urged in answer to it that the plaintiff's election and acceptance lack the element of mutuality necessary to make a valid contract. He could not have been compelled to serve, and no action could have been maintained against him if he had refused to serve or had resigued at any time. Contracts relate to property and property rights. An office is neither. It cannot be purchased, or sold, or incumbered, within the ordinary meaning of those terms. The office of city marshal was a public office, created for the preservation of the public peace, and not to subserve private ends. By virtue of his office he was a conservator of the peace. Gen. St., ch. 43, § 7. Offices are not incorporeal hereditaments, nor have they the quality of grants. They are rather agencies for the accomplish ment of particular objects. They are created for the benefit of the public, and not for the benefit of the incumbent. Their tenure is fixed with a view to the public convenience, and not to confer the emoluments during their term on the office-holder. The prospective salary and emoluments are not property in any sense. They more nearly resemble daily wages unearned, and which may never be earned because the incumbent may die, resign, be removed, or superseded, and his place filled by another; or the office may be abolished. If the election or appointment to and acceptance of an office constitute a contract which cannot be modified or annulled, then it is beyond the power of the Legislature to repeal or modify any statute creating an office, which shall be effectual during the incumbency of the person then in it. It is enough to say that this view has not been adopted by the Legislature, and is not in accordance with the law.

It may not be easy to distinguish this case in principle from that where a person pays the fee and obtains a license to carry on a particular business for a specified time. In such cases it is held that there is nothing in the nature of a contract conferring a vested right such as is protected by the Constitution of the United States, and that such license is revoked and annulled by the repeal of the statute before the expiration of the time limited in the license. State v. Holmes, 38 N. H. 225; Baxter v. Pennsylvania, 10 How. 416; Calder v. Kurby, 5 Gray, 597; and if the office may be abolished and the right to receive any compensation thus be revoked and annulled, it may be difficult to explain upon what principle it is that the amount of compensation cannot be changed. Smith v. Mayor, 37 N. Y. 518; Conner v. Mayor, 5 id. 285, 295; People v Garey, 6 Cow. 642; Warner v. People, 2 Denio, 272, 292; S. C., 7 Hill, 81; Wilcox v. Rodman, 46 Mo. 322; State v. Douglas, 26 Wis. 428; Commissioners v. Jones, 18 Minn. 199; Trustees v. Woodward, 4 Wheat. 518, 626.

In Rindge v. Lamb, 58 N. H. 278, it was held that a selectman was not entitled to more compensation than be agreed with the town to take. The questions, whether if the town had voted to pay the selectmen a

particular sum they could have rescinded that voted and voted a less sum, or whether if they had voted not to pay them any thing for their services they could have recovered any thing (Dill. Mun. Corp., $$ 168, 169, 170; Farnsworth v. Melrose, 122 Mass. 268; Sikes v. Hatfield, 13 Gray, 347; Sawyer v. Pawners' Bank, 6 Allen, 207, 209; Bonden v. Brookline, 8 Vt. 284), were not raised or considered.

Our conclusion is, that the plaintiff is entitled to pay at the rate of $800 per year from his election, October 2, 1874, to the passage of the ordinance of October 9, 1874, and his witness fees in suits or prosecutions where the city were a party or interested during that time, and after that at the rate of $700 per year in full for salary and witness fees.

OHIO SUPREME COURT

ABSTRACT.

Case discharged.

COMMISSION

JANUARY TERM, 1883.*

CIVIL DAMAGE LAW-ACTION AGAINST LIQUOR SELLERS JOINTLY.-In an action by a wife, under the seventh section of the act of May 1, 1854, to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, against two persons for injury to her means of support resulting from the habitual intoxication of her husband, caused by intoxicating liquors sold and furnished him by the defendants, and where, from the facts found, it appears that the defendants each sold intoxicating liquors to the husband, and that they were in no way connected in business, and that neither of them was in any way interested in the sales made by the other; but that the husband of the plaintiff, during the time in which the sales were made, was habitually intoxicated, and that the sales were made by both defendants with knowledge of this fact, and the sales thus made contributed to keep up said habit. Held, that the defendants are jointly liable. Rantz v. Barnes. Opinion by Mc Canley, J.

NEGLIGENCE-WALKING ON RAILROAD TRACK-CONTRIBUTORY.-Where a locomotive with cars attached is standing on a railroad track near a railrood station or other place where cars are frequently moved forward or backward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, be moved toward him, and walks upon the track away from the train without keeping watch of its movements, when there was nothing to hinder him from seeing the movements of the train in time to avoid danger, and when he could have gone in the same direction without walking on the track, is guilty of such negligence as will prevent his recovery for an injury caused by the carelessness or unskillfulness of the employees of the railroad, not amounting to willfulness on their part. A person so walking upon a railroad track is not free from negligence which will prevent his recovery for an injury so caused, if he omits to keep watch of the movements of the train, relying upon a rule or custom of the employees of the railroad, to give a signal for the moving of the train. The expectation that such signal would be given does not relieve a person in such situation from constant watchfulness for his safety. Baltimore & Ohio Railroad Co. v. Depew. Opinion by McCauley, J.

SURETYSHIP-FOR ONE PARTNER IS NOT FOR FIRM.D. and others executed a penal bond conditioned that they would pay to the obligee any sum or sums, which D. may owe to or thereafter become indebted to the obligee, upon bond, bill, note, draft, check, account or *To appear in 40 Ohio State Reports.

otherwise; and would indemnify the obligee and save him harmless "from all loss, damage and expense, by reason of said or any indebtedness incurred by D." Subsequently a promissory note was made and delivered to the obligee for value by a firm of which D. was a member, and for its use, and which was at its inception indorsed by D. in his individual name. Held the note is not within the condition of the bond, and the action is not maintainable. Donley v. Liberty Improvement Bank. Opinion by Martin, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

ATTORNEY-CONTRACTS FOR SERVICE OF.-Contracts for attorney's services stand on the same ground and are governed by the same rules as other similar contracts for services. Whether the employment of an attorney to prosecute a petition for divorce was an entire contract, is a question of fact to be determined upon evidence. Dodge v. Janvrin. Opinion by Stanley, J.

CARRIER EVIDENCE OF NEGLIGENCE-IMPEACHING WITNESS. (1) In an action against a common carrier of passengers, for damages occasioned by his negligence, his conduct subsequent to the time of the plaintiff's injuries may be proved, if it tends to show an admission of negligence. (2) If a witness does not remember, or denies, saying that which is imputed to him, evidence may be given that he did say it, provided it is relevant to the matter in issue. Crowley v. Page, 7 C. & P. 789; Nute v. Nute, 41 N. H. 60; Sanderson v. Nashua, 44 id. 492. Marison v. Toule. Opinion by Smith, J.

DIVORCE ALIMONY TO WIFE WHEN SHE IS UNSUCCESSFUL. Upon any decree of divorce, the court may order the husband to pay the wife such sum of money as may be deemed just, even when a divorce is decreed against her, and she is not entitled to a divorce against him. Gen. St., chap. 163, § 12; Sheafe v. Sheafe, 24 N. H. 564; Sheafe v. Laighton, 36 id. 240; 2 Bish. Mar. & Div., § 378. Janvrin v. Janvrin. Opinion by Bingham, J.

MORTGAGE - GRANTEE SUBJECT TO DOES NOT ASSUME. Where land is conveyed in terms subject to a mortgage, the grantee assumes no personal liability for its payment by the mere acceptance of the deed. The insertion of such a clause qualifies the covenants of warranty on the part of the grantor and is notice merely to the grantee that he is buying only the equity of redemption. Trotter v. Hughes, 12 N. Y. 74; Belmont v. Coman, 22 id. 438; Binsse v. Paige, 1 Keyes, 87; Stevenson v. Black, Saxton (N. J.) 338: Klapworth v. Dressler, 2 Beas. Ch. (N. J.) 62; Post v. Bank, 28 Conn. 420; Johnson v. Monell, 13 Iowa, 300; Kearney v. Tanner, 17 Serg. & R. 94; Fiske v. Tolman, 124 Mass. 224; Woodbury v. Swan, 58 N. H. 380; 1 Jones Mort., §§ 735-9. The law has been held otherwise in England. Waring v. Ward, 7 Ves. 333. Lawrence v. Toule. Opinion by Smith, J.

SEDUCTION-DAMAGES-MENTAL SUFFERING.-In an action by a father for the seduction of his daughter, the plaintiff under a count setting up generally loss of the daughter's service, may recover compensation for his mental suffering caused by defendant's act. Lunt v. Phelbrick. Opinion by Doe, C. J.

TOWN-LIABLE FOR OBSTRUCTION TO HIGHWAY CREATED BY RAILROAD COMPANY.-If a railroad company, acting under their charter, create an obstruction in a highway by which a traveler sustains dam*To appear in 59 New Hampshire Reports.

age, the town is answerable as if the same acts had been done by an individual. Willey v. Portsmouth, 35 N. H. 313; Elliot v. Concord, 27 id. 204; State v. Dover, 46 id. 452; Bacon v. Boston, 3 Cush. 179; Eyler v. Co. Com'rs., 49 Md. 257; Watson v. Tripp, 11 R. I. 98. Sides v. Portsmouth. Opinion by Bingham, J.

NEW JERSEY SUPREME COURT ABSTRACT. JUNE TERM, 1883.*

CONTRACT-BUILDING CONTRACT-ARCHITECT'S CERTIFICATE--WAIVER.--Suit will not lie on a building contract for money payable upon an architect's certificate without the production of such certificate or evidence that its production has been waived. Waiver may be express or proved by acts and conduct of the party entitled to demand it. Less evidence of waiver is requisite when it clearly appears that the contract has been fully performed. Add. on Cont. 666; Scott v. Liverpool Corp., 25 L. J. Ch. 236; Mayor, etc., v. Ackers, 16 L. J. Ex. 6; Moffatt v. Dickson, 13 C. B. 543; Dobson v. Hudson, 1 C. B. (N. S.) 652. Byrne v. Sisters of Charity of St. Elizabeth. Opinion by Knapp, J. DEATH-PRESUMPTION OF, FROM ABSENCE--IDENTITY OF ONE CLAIMED TO BE ALIVE.-A person who absents himself from this State for seven successive years is presumed to be dead, and the party asserting that he is living must prove it. After the presumption of death arises, the burthen of proof is on the party denying the death to show that the person is alive and to overcome the presumption by proof. There should be something more than similarity of name to overcome the presumption of death raised by the statute. The identity of the person should be proved. Hoyt v. Newbold. Opinion by Parker, J.

MUNICIPAL CORPORATION DISCRIMINATION IN WATER CHARGES BY, FORBIDDEN.-The board of public works cannot, under the charter of Jersey city, charge certain water consumers with expensive meters put in by them to regulate the supply and rent to be paid, without the consent of the persons charged; nor impose the penalty of cutting off the water for non-payment of the price of the meter. The proviso in section 87 of the charter that their rules, regulations and by-laws shall not be inconsistent with the Constitution and laws of the State of New Jersey, or of the United States, forbids the making of unwarranted discriminations in particular cases, and arbitrary charges, with the penalty of forfeiture of the right to use the water. Dayton v. Quigley, 2 Stew. Eq. 77; Parker v. City of Boston, 1 Allen, 361; Young v. City of Boston, 104 Mass. 95; Kip v. Paterson, 2 Dutch. 298; 1 Dill. on Mun. Corp., §§ 319, 320, 321, 322. State of New Jersey v. Mayor of New Jersey. Opinion by Scudder, J.

NEGLIGENCE -FIRE SET BY ENGINE-SPARK-ARRESTER. If a railroad company use upon its engine a spark-arrester of an approved pattern in general use, and which upon a careful inspection by a skilled mechanic, appeared to be in good condition, such company shall not be responsible for damage done by fire occasioned by sparks escaping through such spark-arrester. Hoff v. West Jersey Railroad Co. Opinion by Deasley, C. J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

CONTRACT-TO OUST COURT OF JURISDICTION OF A CONTROVERSY INVALID.-Parties cannot by private agreement in advance of a controversy oust the court *To appear in 16 Vroom's (45 N. J. Law) Reports.

of jurisdiction. It is true that a matter in, controversy, or a pending civil suit, may be finally submitted to arbitration or to the decision of a single judge, or by omitting to exercise their rights, the parties may waive them, as they choose, but they cannot by an agreement in advance, when no matter of dispute or controversy has yet arisen, forfeit their rights to a proper adjudication in the appropriate tribunal established by law, when a proper case may be presented. In the case of Insurance Co. v. Morse, 20 Wall. 445, this point was very fully discussed, and it was there held, that as the Constitution of the United States secures to citizens of another State than that in which suit is brought, an absolute right to remove their cases into Federal courts, upon compliance with the terms of the judiciary act, neither a statute or the State nor an agreement of the litigant parties made in advance under it, justified a denial of the constitutional right. In support of this view we may refer also to the cases of Nate v. Hamilton Ins. Co., 6 Gray, 174; Hobbs v. Manhattan Ins. Co., 56 Me. 421; Scott v. Avery, 5 H. of L. Cas. 811, and Story Eq. Jur., § 670. It is true also that parties may impose as condition precedent to application to the courts, that they shall first have settled the amount to be received by an agreed mode of liquidation or adjustment, and this in many cases provides a much more appropriate tribunal for the purpose than a jury. Monongahela Navigation Co. v. Fenton, 4 W. & S. 205; Lauman v. Young, 7 Casey, 306; Mentz v. Amenia Fire Ins. Co., 79 Penn. St. 480. The principle involved in these cases does not close the access of the parties to the courts of law, as the award of the arbiter is only enforceable there. Appeal of Rea. Opinion by Clark, J. [Decided Nov. 12, 1883.]

MINERALS

PETROLEUM NOT

A

DEFINITION MINERAL-DEED.-A deed excepted from the grant "all timber suitable for sawing, also all minerals.” Held, not to except petroleum. It is true that petroleum is a mineral. But salt and other waters impreguated or combined with mineral substances are minerals; so are rocks, clays and sands; any thing due from mines and quarries; in fine, all inorganic substances are classed under the general name of minerals. Bouv. L. Dic.; Wor. Dic.; Dan's Geology; Grey's Botany. If the reservation embraces all these things, it is as extensive as the grant, and therefore void. If then any thing at all is to be retained for the vendor, by some means the meaning of the word "minerals" must be limited. The rule by which this may be done is well stated by Gibson, C. J., in the case of the Schuylkill Navigation Co. v. Moore, 2 Whart. 477, as follows: "The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for," continues the learned chief justice, "it may be safely assumed that such was the aspect in which the parties themselves viewed it." So Kennedy, J., adopting this same rule in the case of Gibson v. Tyson, 5 Watts, 34, when construing an exception in a deed "of all mineral or magnesia of any kind," says that by the bulk of mankind nothing is considered as a mineral except such things as be of a metallic nature, such as gold, silver, copper, lead, etc., and that in looking at the deed before him, under the general understanding, he would have hesitated about classing chromate of iron as a mineral, except that from the parol testimony it appeared the parties themselves regarded it as a metallic ore of some kind. Oil is regarded even by science and law as a mineral only because of its inorganic character, or as in Stoughton's Appeal, 7 Norr. 198, because of its forming part of of the freehold from which it is taken. Certainly in popular estimation, petroleum is not regarded as a mineral substance any

more than is animal or vegetable oil, and it can indeed only be so classified in the most general or scientific sense. Dunham v. Kirkpatrick. Opinion by Gordon, J.

[Decided Oct. 2, 1882.]

MARYLAND COURT OF APPEALS ABSTRACT.

JUNE, 20 1883.*

OF

PENALTY -TURNPIKE CHARTER - IGNORANCE LAW-ILLEGAL TOLL.-(1) Ignorance of the law will not excuse the offender, and consequently evidence of such ignorance is inadmissible. (2) If the stockholders of a turnpike company accept a charter, coupled with the condition and privilege to increase the tolls, provided they complied with certain pre-requisites, and at a certain time the company has no right to increase the tolls without first complying with such pre-requisites, and at the time designated. Grumbine v. State of Maryland. Opinion by Stone, J.

PARENT AND CHILD-MOTHERS RIGHT TO RECOVER FOR NEGLIGENT INJURY TO SON-DAMAGES-HIGHWAY -CONTRIBUTORY NEGLIGENCE. (1) A mother sued the county commissioners of Hartford county to recover for injury done to her minor son, alleged to have been caused by the negligence of the defendants in not keeping a publie road in repair, over which the son was riding at the time he was injured. The father had died before the injury occurred. Held, that the mother, the father being dead, was entitled to recover for the services of her minor son, provided he was at the time of the injury actually living with and supported by her. That if the son were thus living with and supported by his mother, she was clearly entitled to recover for the care and labor of nursing him, and the expense and cost of medicines and medical attendance to which she was subjected on account of his injury, and which she procured for him. That the plaintiff was not entitled to recover for the pain and suffering of her son, nor for her own anxiety and suffering on his account. (2) The care and caution required of one travelling on a public road is simply such as persons of common prudence ordinarily exercise. Commissioners of Hartford County V. Hamilton. Opinion by Miller, J.

STATUTE OF FRAUDS-AGREEMENT NOT TO BE PERFORMED WITHIN YEAR.-The defendant on the 8th of March, 1880, while negotiating for the purchase of a mill, found the plaintiff in charge of the same, and said to him: "If I buy this mill from M. P., I will employ you to take charge of it for a year, and will pay you $1000 a year." The plaintiff accepted the offer, and was afterward notified by the defendant that he had made the purchase. The plaintiff, on the day he was so notified, entered the service of the defendant, and was soon afterward discharged. In an action by him for a breach of the contract, it was held, that conceding there was a perfect contract entered into by the parties on the 8th day of March, 1880, the remedy upon it was not barred by the Statute of Frauds as being for services not to be completed within a year. When there is a possibility that the services may be performed within a year. the remedy for a breach of the contract is not barred by the statute. In Fenton v. Emblers, 3 Burrows, 1281, it is said: "The Statute of Frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it; nor any case that depends upon contingency." This construction of the statute has received *To appear in 60 Maryland Reports.

an unqualified recognition in this State. In the case of Ellicott v. Peterson's Ex'rs, 4 Md. 488, it is said: "These principles have been recognized by innumerable decisions both in England and in this country. And in pursuance of the principles which they sustain, especially that of the case of Peter v. Compton, Skinner, 353, it has been held both in England and in these States, the statute will not apply where the contract can by any possibility be fulfilled or completed in the space of a year, although the parties may have intended its operations should extend through a much longer period." Cole v. Singerly. Opinion by Yellot, J.

VERMONT SUPREME COURT ABSTRACT. MAY TERM, 1883.*

ous.

HIGHWAY-LIABILITY OF TOWN FOR DEFECT CAUSING INJURY-DEFECT NEED NOT BE IN WAY.-In order to render a town liable for injury to a traveler on the highway from a defect, it is not necessary that the defect be in the way, if it is in such close proximity as to render travelling along the way dangerous. In Hayden v. Attlebore, 7 Gray, 338, the injury arose from being precipitated into a cellar that was either within the limits of the way or in such close proximity thereto as to render travelling along the way dangerThe defect complained of was the want of a railing. The court said that the want of a railing necessary to the safety of travellers was a defect in the way itself, for which the town was liable. In Coggswell v. Lexington, 4 Cush. 307, the injury was occasioned by a post outside the way as located. The court not deciding whether the town had the right as against the owner of the land on which the post stood to enter and remove it, said "it clearly had the right, and it was its duty, if it could not lawfully remove the post, to place such a fence or other barrier between it and the road as would have rendered the road safe." The law of Massachusetts on this subject is tersely stated by Gray, C. J., in the recent case of Puffer v. Orange, 122 Mass. 389. "A town is bound to erect barriers or railings, where a dangerous place is in such close proximity to the highway as to make travelling on the highway unsafe. But it is not bound to do so, to prevent travellers from straying from the highway, although there is a dangerous place at some distance from the highway which they may reach by so straying." In Warner v. Holyoke, 112 Mass. 362, the court says: "The law has nowhere undertaken to define at what distance in feet and inches a dangerous place must be from the highway in order to cease to be in close proximity to it. It must necessarily be a practicable question, to be decided by the good sense and experience of the jury." It seems to us that this is the only practical rule that can be adopted; and that as a general rule, it is for the jury to say, in the concrete case, whether the place is sufliciently near the highway to render travelling upon it unsafe unless guarded against, and that, as said in Adams v. Natick, 13 Allen, 432, this "must be determined by the character of the place or object between which and the travelled road it is claimed that the barrier should be interposed." As said by Hoar, J., in Alger v. Lowell, 3 Allen, 405: "The true test is not whether the dangerous place is outside of the way, or whether some small strip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveller, using ordinary care in passing along the the street, being thrown or falling into the dangerous place that a railing is requisite to make the way itself safe and convenient." Drew v. Town of Sutton. Opinion by Rowell, J.

*Appearing in 55 Vermont Reports.

LIBEL AMBIGUOUS CHARGE EVIDENCE OTHER STATEMENTS TO SHOW ANIMUS.—(1) In an action for a libel, where the language used is ambiguous or ironical, the plaintiff's acquaintances may state their understanding as to whom the libellous charge refers, and what it imputes. As Abbott, C. J., in Bourke v. Warren, 2 C. & P. 307, says: "It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant." The doctrine that in such cases the witness may state his understanding of the language used is recognized in 2 Greenl. Ev., § 417; Leonard v. Allen, 11 Cush. 241; Stacy v. Port. Pub. Co., 68 Me. 279; Smith v. Miles, 15 Vt. 245; Odgers Libel and Slander, 539. (2) The defendant, after suit was brought, published another article referring to the plaintiff by name. It was admissible to show the animus, the intention, in publishing the first article. Also what one of the defendants said, a few days after the first publication, manifesting a hostile feeling toward the plaintiff, was admissible. "Any words written or spoken of the plaintiff before or after those sued on, or even after the commencement of the action, are admissible to show the animus of the defendant." Odgers, 271. "The second paragraph was admissible to show what the intention of the defendant was in publishing the first." Bosanquet, J., in Barwell v. Adkins, 1 Man. & Gra. 807. Knapp v. Fuller. Opinion by Powers, J.

SALE-CONDITIONAL SALE OF CHATTEL-FORFEITURE-DEMAND-WAIVER. By the conditional sale if the vendee failed to pay the note according to its tenor, he forfeited what he had paid, and the vendor could take the wagon. There was a failure to fully pay; but the vendor allowed the wagon to remain with the vendee; and he accepted payments after the last installment was due. Without making a demand he brought suit to recover the balance of the note, attaching the wagon and holding it by virtue of the attachment until the trial commenced, when he entered a non-suit, and claimed to hold it under the written contract. Held if a demand were necessary the bringing of the suit was sufficient. By making the attachment the defendant did not waive his right to the wagon under the conditional sale; nor was he estopped from asserting his right. Nor did he waive the causes of forfeiture arising from default of payment by accepting payments after the note was due. Hutchings Munger, 41 N. Y. 155; Manufacturing Co. v. Teetzlaff, 13 Rep. 511; Taylor v. Finley, 48 Vt. 78. Matthews v. Lucia. Opinion by Rowell, J.

MINNESOTA SUPREME COURT ABSTRACT.

CARRIER-CONTRACT LIMITING LIABILITY DOES NOT EXCUSE NEGLIGENCE. A contract contained in a shipping bill given by a railroad company, and agreed to by the shipper relieving the company from liability for loss in transporting horses. Held not to relieve the company from liability for loss through its own negligence. A railroad company which undertakes to transport live-stock for hire for such persons as choose to employ it, assumes the relation of a common carrier, and becomes chargeable with the duties and obli. gations which are incident to that relation. Kimball v. Rutland & B. R. Co., 26 Vt. 247; Rixford v. Smith, 52 N. H. 355; Clarke v. Rochester & S. R. Co., 14 N. Y. 570; Evans v. Fitchburg R. Co., 111 Mass. 142; St. Louis & S. E. R. Co. v. Dorman, 72 Ill. 504; Powell v. Pennsylvania R. Co., 32 Penn. St. 414; Great Western R. Co. v. Hawkins, 18 Mich. 427, 433. The law has been determined in this State, and in most of the United States, as well as in the Federal Supreme

Court, to be that a common carrier of goods cannot by contract relieve himself from liability for his own negligence. Christenson v. American Express Co., 15 Minn. 270; Shriver v. Sioux City & St. P. R. Co., 24 id. 506; Railroad Co. v Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Ex. Co., 93 U. S. 174. Nor is there any reason why a different rule should prevail in respect to the transportation of live-stock, or of property under the care of the owner. The rule itself rests upon considerations of public policy, and upon the fact that to allow the carrier to absolve himself from the duty of exercising care and fidelity is inconsistent with the very nature of his undertaking. Moulton v. St. Paul, Minneapolis & Manitoba R. Co. Opinion by Dickinson, J. [Decided Aug. 2, 1883.]

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Friday, February 8, 1884.

Judgment reversed, new trial granted, costs to abide event. The appeal from the order denying the motion to vacate the order of arrest dismissed, with costs against the appellant, Edwin L. Hayes-Agnes Y. Humphrey, respondent, v. Mary E. Hayes and another, appellants. Judgment affirmed, with costs against the appellant-In re Estate of John C. Zabrt.—Judgment affirmed with costs-Henry C. Simms, respondent, v. George Vogt and another, appellants; Michael Hynes, respondent.v. Thomas E. Patterson and another, appellants; Louis De V. Wilder, appellant, v. Lafay ette Ranney and another, respondents; George W. Mead, respondent, v. Mary C. Jenkins and others, appellants; George Godfrey, administrator, etc., respondent, v. Ogden P. Pell, appellant.-Judgment of General Term reversed; that of Special Term affirmed with costs-Susan M. Murray and another, executors, respondents, v. Phebe Marshall, appellant.-Judgment of General Term reversed; that of Special Term modified according to opinion, costs of both parties to be paid out of the estate of testator-Jeanie De F. K.. Barbour, an infant, appellant, v. Robert W. De Forest and another, executors, respondents.-Judgment reversed, new trial granted, costs to abide the event-John J. Townsend, respondent, v. New York Life Insurance and Trust Co., appellant.- -Judgment affirmed with costs to the respondent, and appellants to be paid out of the estate-Walter P. Tillman, in his own right and as executor, v. Eliza Augusta Davis, and the executors of William N. Davis, appellants, and Isaac E. Bird, impleaded, etc., respondent.-Judg ment affirmed with costs to the respondent, payable out of the fund--Ann Reese, respondent, v. William Smythe, superintendent, etc., appellant.- Order affirmed with costs-In re Application of the New York, West Shore & Buffalo R. Co., to acquire lands, respondent, of Johanna Par and others, appellants.-Appeal dismissed with costs-Bolton Hall and others, appellants, v. United States Reflector Co., respondent.The cases argued were: Appeal from judgment of affirmance by General Term of a conviction of misdemeanor and sentence to pay a fine of $25. Argued by William F. Kintzing for appellant; John Vincent, assistant district-attorney for respondent-People, respondent, v. John M. Myres, appellant.Appeal from judgment of General Term, first department, affirming judgment rendered upon the verdict of a jury. Argued by A. J. Vanderpoel for appellants; S. P. Nash for respondents-John L. Sutherland and another, executors, respondents, v. Lauren C. Woodruff, appellant.Appeal from judgment of General Term, reversing the order and decree of the Surrogate's Court of Chautauqua county. Submitted — Nancy Watts and others, respondents, v. James Ronald, executor, etc., appellant.— -Appeal from judgment of affirmance by General Term of the decree of the Surrogate's Court of Queens county in admitting a codicil of the last will and testament of Margaret Woolley to probate-Benjamin Woolley, execulor, appellant, v. Sarah E. Woolley and Minor Onderdonk, respondents. The court took a recess to Feb. 25.