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praisal before the same or new commissioners in its discretion." It does not appear in the order appealed from that it was not made in the exercise of the discretion thus confided to the Supreme Court, and we cannot look at the opinion to see upon what ground the new appraisal was ordered. In re Kings Co. Elevated Railway Co., 82 N. Y. 95. Besides this is a special proceeding, and appeals to this court are allowed only from final orders in such proceedings, and this order is not final. Code, § 190; In re Moore, 67 N. Y. 555; In re Horsfalls, 77 id. 514; Roe v. Boyle, 81 id. 305. The order does not become final, because the appraisal to be made by the new commissioners may, under section 18, be final and conclusive. It is nevertheless not a final order, and if the result should be that the company will not be able to bring to this court for review the question of law upon which, it appears from the opinion of the General Term. the new appraisal was ordered, it will be the fault of the law and not of this court. If however upon the new appraisal the commissioners should proceed upon a fundamentally erroneous view of the law, and one that does either party injustice, the ingenuity of counsel may possibly discover some mode for correcting the error, and if necessary, for procuring a review of the question in this court. In re P. P. & C. I. R. Co., 85 N. Y. 489, 496. Matter of New York & Harlem R. Co. Opinion by Earl, J. [Decided Jan. 20, 1885.]

UNITED STATES SUPREME COURT ABSTRACT.

REMOVAL OF CAUSE-ACTION AGAINST ADMINISTRATOR-CITIZENSHIP. A proceeding in a State court against an administrator, to obtain payment of a debt due by the decedent in his life-time, is removable into a court of the United States when the creditor and the administrator are citizens of different States, notwithstanding the State statute may enact that such claims can only be established in a Probate Court of the State, or by appeal from that court to some other State court. All debts to be paid out of the assets of a deceased man's estate shall be established in the court to which the law of the domicile has confided the general administration of these assets. And the courts of the United States will pay respect to this principle in the execution of the process enforcing their judgments out of these assets, so far as the demands of justice require. But neither the principle of convenience nor the statutes of a State can deprive them of jurisdiction to hear and determine a controversy between citizens of different States when such a controversy is distinctly presented, because the judgment may affect the administration or distribution in another forum of the assets of the decedent's estate. The controverted question of debt or no debt is one which, if the representative of the decedent is a citizen of a State different from that of the other party, the party properly situated has a right, given by the Constitution of the United States, to have tried originally or by removal in a court of the United States, which cannot be defeated by State statutes enacted for the more convenient settlement of estates of decedents. These views have been expressed by this court in many cases where they were proper grounds for the decisions made. The latest of them, in which the others are reviewed with care, is that of Ellis v. Davis, 109 U. S. 485, in which the opinion was delivered by Mr. Justice Matthews. Among the cases there cited with approval is that of Gaines v. Fuentes, 92 U. S. 10. This court said: "The Constitution imposes no limitation upon the class of cases involving controversies between citizens of different States to which the judicial power

of the United States may be extended, and Congress may therefore lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the Federal judiciary." "And if by the law obtaining in the State, customary or statutory, they can be maintained in a State court, whatever designation that court may bear, we think they may be maintained by original process in a Federal court, where the parties on one side are citizens of the State of Louisiana, and on the other citizens of other States." This court reversed the judgment of the Louisiana courts, and held that the application for the removal should have been granted, and ordered the case to be remanded to the parish District Court, with directions to make the transfer. The cases of Payne v. Hook, 7 Wall. 425, and Hyde v. Stone, 20 How. 170, are to the same effect. In the latter case the court said, with much force and propriety, that it "had repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different States cannot be impaired by the laws of the States which prescribe modes of redress in their courts, or which regulate the distribution of their judicial powers." The case of Boom Co. v. Patterson, 98 U. S. 403, is also in point. That was a special proceeding to condemn property under laws of the State of Minnesota in the exercise of the right of eminent domain, which commencing before special commissioners to assess damages, was by appeal brought into a court of general jurisdiction, and from there removed, rightfully as this court held, into the Circuit Court of the United States. The case before us was one removable into the court of the United States. Hess v. Reynolds. Opinion by Miller, J. [Decided Jan. 5, 1885.]

PRACTICE-WISCONSIN-CUSTODY OF RECORD-WRIT OF ERROR-TO WHAT COURT DIRECTED-STATUTE OF

LIMITATIONS-RECORD.-As by the practice of Wisconsin the record itself is remitted by the State Supreme Court to the inferior court from whose judgment appeal was taken, a writ of error from the Supreme Court of the United States should, in a proper case, be brought to such inferior court, though the judgment of the latter was the judgment which the State Supreme Court directed it to enter. It is the record of the judicial decision or order of the court found in the record-book of the court's proceedings which constitutes the evidence of the judgment, and from the date of its entry in that book the statute of limitations begins to run. This is a writ of error to the Circuit Court of Wisconsin for the county of La Crosse, and a motion is made to dismiss it. The first ground of the motion is that the writ should have been directed to the Supreme Court of the State, and cannot be rightfully directed to the Circuit Court of the county. It appears that the defendant in error here was plaintiff in the Circuit Court of La Crosse county, and brought its action against Polleys and others for relief in regard to their obstructing the navigation of Black river and its branches. The Circuit Court denied the relief and dismissed the bill. On appeal the Supreme Court of the State reversed this judgment and delivered an opinion that plaintiff was entitled to relief in the premises; and it made an order remanding the case to the Circuit Court, with directions "to enter judgment in accordance with the opinion of this (that) court. It appears by the cases cited to us, and by the course of proceedings in such cases in the Wisconsin courts, that the record itself is remitted to the inferior court, and does not, nor does a copy of it, remain in the Supreme Court. Though the judgment in the Circuit Court was the judgment which the Supreme Court ordered it to enter, and was in effect the judgment of the Supreme Court, it is the only final

to bearer, are commercial securities, possessing the same qualities and incidents that belong to what are strictly promissory notes, negotiable by the law-merchant. There is no reason why such bonds, issued under the authority of law, and made payable to a named person, or order, should not, after being indorsed in blank, be treated by the courts as having like qualities and incidents. That they are so regarded by the commercial world cannot be doubted. Manfg. Co. v. Bradley, 105 U. S. 180. But it is contended that the word "negotiable," in the Iowa statute, is qualified by that clause, in the same enactment, which provides that bonds issued under it shall be "payable at the pleasure of the district at any time before due." These words were not incorporated into the bond. But if the holder took subject to that provision, as we think he did, it is clear that this option of the district to discharge the debt, in advance of its maturity, did not affect the complete negotiability of the bonds; for by their terms, they were payable at a time which must certainly arrive. The holder could not exact payment before the day fixed in the bonds. The debtor incurred no legal liability for non-payment until that day passed. The authorities bearing upon this question are cited in Byles Bills (Sharswood's ed.), ch. 7; 1 Daniel Neg. Inst., § 43 et seq.; Chit. Bills, 525 et seq. In School-district v. Stone, 106 U. S. 183, it was held in reference to similar bonds issued by another independent school district in the same county, that their recitals were not sufficiently comprehensive to cut off a defense resting upon the ground that the bonds there in suit were in excess of the amount limited by the State Constitution, and consequently invalid. Applying that decision to the pres ent case, counsel for the district insists, that as these bonds may be open to such a defense as was made in School-district v. Stone, they cannot be deemed negotiable by the law-merchant; in other words, that the negotiability of the instrument ceases whenever the maker is permitted, as against a bona fide holder for value, to establish a defense based upon equities be tween the original parties. But such is not the test prescribed by the statute defining the jurisdiction of the Circuit Courts of the United States. If a promissory note is expressed in words of negotiability, the right of the holder of the legal title to invoke the jur isdiction of the proper Circuit Court of the United States is not affected by the citizenship of any prior

judgment in the case, and the record of it can be found nowhere else but in the Circuit Court of La Crosse county. To that court therefore according to many decisions of this court, the writ of error was properly directed to bring the record here for review. Gelston v. Hoyt, 3 Wheat. 246; Atherton v. Fowler, 91 U. S. 146. It is insisted that the writ of error was not brought within time. Section 1008 of the Revised Statutes declares that "no judgment, decree, or order of a Circuit or District Court, in any civil action at law, or in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the writ of error is brought or the appeal taken within two years after the entry of such judgment, decree, or order." This rule is applicable to writs of error to the State courts in like manner as to Circuit Courts. Scarborough v. Pargoud, 108 U. S. 567. In the case of Brooks v. Norris, 11 How. 204, construing the same language in the judiciary act of 1789, it is said, "that the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the Appellate Court, and the period of limitation prescribed by the act of Congress must be calculated accordingly." This language is repeated in Mussina v. Cavazos, 6 Wall. 355, and in Scarborough v. Pargoud, supra. Though the writ of error in this case seems to have been issued by the clerk of the Circuit Court of the United States on the 10th day of May, 1884, and is marked by him for some reason as filed on that day, it is marked by the clerk of the court to which it is directed, namely, the Circuit Court of La Crosse county, as filed on the 29th day of that month. It is not disputed that this is the day it was filed in his office. This must be held to be the day on which the writ of error was brought. The judgment which we are asked to review by this writ was entered in the Circuit Court of La Crosse county, May 24, 1882. It is signed by the judge on that day, and is expressly dated as of that day, and it is marked filed on that day over the signature of the clerk of that court. This is the judgment, the entry of the judgment, and on that day the plaintiff in error had a right to his writ, and on that day the two years began to run within which his right existed. It seems that the courts of Wisconsin, either by statute or by customary law, keep a book called a judgment docket. In this book are entered, in columns, the names of plaintiffs who recovered judgment, and the defend-holder, or by the circumstance that the party sued asants against whom they are recovered. In another column is entered the amount of the principal judgment and the costs and the date of the judgment itself. This record is kept for the convenience of parties who seek information as to liens on real estate or for other purposes. This docket however is made up necessarily after the main judgment is settled and entered in the order-book, or record of the court's proceedings, and it may be many days before, this abstract of the judgment is made in the judgment docket, according to the convenience of the clerk. It is the record of the judicial decision or order of the court found in the record-book of the court's proceedings which constitutes the evidence of the judgment, and from the date of its entry in that book the statute of limitations begins to run. It follows that the writ of error in this case was brought five days after the two years allowed by law had expired; and it must be dismissed. Polleys v. Black River Imp. Co. Opinion by Miller, J. [Decided Jan. 12, 1885.]

MUNICIPAL BONDS-NEGOTIABLE-IOWA STATUTECONSTITUTIONAL LAW-SUBJECT EMBRACED IN TITLE. -The decisions of this court are numerous to the effect that municipal bonds, in the customary form, payable

serts, or is able to make out, a valid defense to the ac-
tion. The Constitution of Iowa provides that "every
act shall embrace but one subject, and matters prop-
erly connected therewith, which subject shall be ex-
pressed in the title. But if any subject shall be em-
braced in an act which shall not be expressed in the
title, such act shall be void only as to so much thereof
as shall not be expressed in the title." The title of the
statute under which those bonds were issued is, “An
act to authorize independent school-districts to bor-
row money and issue bonds therefor for the purpose
of erecting and completing school-houses, legalizing
bonds heretofore issued, and making school-orders
draw six per cent interest in certain cases." The act
contains six sections; the fourth providing that "all
school-orders shall draw six per cent interest after
having been presented to the treasurer of the district
and not paid for want of funds, which fact shall be in-
dorsed upon the order by the treasurer."
As there
are two kinds of school-districts in Iowa, "district
township" and "independent district." the latter
carved out of the former, it is contended that the title
to the act in question embraces two subjects; one re-
lating to matters in which independent school-districts
alone are concerned, and the other to matters in which
the township district and independent districts are

observation in the witness, other than it has enabled him to form a belief or judgment thereon. Rog. Exp. Test., §§ 61, 62; Lawson Exp. Ev. 476; 1 Whart. Law of Ev., § 451. In order to avoid a contract of marriage on the ground of mental unsoundness, the party al

concerned. That whether school-orders, which may be issued for many purposes by districts of either kind, should bear interest or not is wholly foreign to the borrowing of money to build school-houses in independent districts. Iowa Code, 1873, ch. 9, tit. 12. We are not referred to any adjudication by the Su-leged to be insane or non compos mentis must be incapreme Court of Iowa which sustains the point here made. On the contrary the principles announced in State v. County Judge, 2 Iowa, 280, show that the act before us is not liable to the objection that its title embraces more than one subject. The object of the constitutional provision, that court said, was "to prevent the union in the same act of incongruous matter, and of objects having no connection, no relation," and "to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another; " but that "it cannot be held with reason that each thought or step toward the accomplishment of an end or object should be embodied in a separate act; " that "the unity of object is to be looked for in the ultimate end, and not in the details or steps leading to the end;" and that "so long as they are of the same nature, and come legitimately under one general denomination or object," the act is constitutional. The doctrines of that case have been approved by the same court in subsequent decisions, and they are decisive against the point here raised. Morford v. Unger, 8 Iowa, 82; Davis v. Woolnough, 9 id. 104; McAunich v. Mississippi & M. R. Co., 20 id. 342; Farmers' Ins. Co. v. Highsmith, 44 id. 334. The general subject to which this special act relates is the system of common schools. That system is maintained through the instrumentality of district schools of different kinds. Provisions in respect of those instrumentalities-those referring to the erection and completion of school-houses in independent school-districts with money raised upon negotiable bonds, and others, to the rate of interest which all school-orders shall bear-relate to the same general object, and are only steps toward its accomplishment. See also Montclair v. Ramsdell, 107 U. S. 153, where this subject was considered. Independent School Dist. v. Hall. Opinion by Harlan, J. [Decided Jan. 19, 1885.]

pable of understanding the nature of the contract itdisease or otherwise, will not be, when unaccompanied self. Mere imbecility or weakness of mind, caused by by circumstances showing it has been taken advantage of, a sufficient ground for avoiding such a contract. If the powers of the mind of the person alleged to be non compos mentis have been so far affected by disease or knowing the effect of the act he is about to perform, the decay of his faculties as to render him incapable of and of intelligently consenting to the marriage ceretract. On the other hand, even if his understanding mony, then there is an incapacity on his part to conbe weak, still if the capacity of his mind remains to form correct conclusions, the contract of marriage will see things at the time in their true relations, and to be valid in the absence of fraud or imposition. Baughman v. Baughman. Opinion by Horton, C. J. REPLEVIN-DAMAGES-ATTORNEY'S FEES

KANSAS SUPREME COURT ABSTRACT.*

MARRIAGE-DECLARATIONS TO PROVE - SANITYOPINION OF NON-PROFESSIONALS-WHEN AVOIDED FOR MENTAL UNSOUNDNESS.-Where a marriage contract is claimed to be void upon the ground that the man was so afflicted with paralysis at the marriage ceremony that he could not comprehend what was passing at the time, it is competent for the woman seeking to sustain the contract to offer in evidence the written and oral declarations of the man made prior and repeated up to within a short time of the ceremony, showing that the relations of the parties were affectionate; that the man had stated that he could not live happily without her; that he intended she should have his property, as she helped to make it; that they had corresponded several months, and that the contract of marriage between them had already been made. Non-professional witnesses, having sufficient opportunity of observing a person alleged to be insane, or non compos mentis, may give their opinions as to his sanity or mental condition as the result of their personal observation, after first stating the facts which they observed. This is now the recognized rule in all the States except Massachusetts, Maine, New Hampshire and Texas. While such opinions are admissible, yet no general rule can be laid down as to what shall be a sufficient opportunity of

*Appearing in 32 Kansas Reports.

EMPLARY

-NO EXCHATTEL

DAMAGES AGAINST SHERIFF MORTGAGE-VOID-HINDER AND DELAY.-In an action to recover the possession of personal property the attorney's fees for the prosecution of the case, when the plaintiff is not entitled to recover as actual damages elements of malice, gross negligence or oppression do not mingle in the controversy. In an action against a sheriff to recover the possession of personal property wrongfully seized by the officer under an execution in his hands, the sheriff, if not guilty of fraud, malice, gross negligence or oppression in the execution of the process, is not liable in vindictive or exemplary damages. A sheriff in seizing goods under a writ of execution is responsible in damages if he takes the goods of the wrong person; and if acting under color of process he is guilty of fraud, malice, gross negligence or oppression in the execution of the process, he may be held liable in exemplary damages. Wiley v. Keokuk, 6 Kans. 94; Nightingale v. Scannell, 18 Cal. 315; Cable v. Dakin, 20 Wend. 172. But where a sheriff wrongfully seizes property upon an execution in his hands, and there is no malice, gross negligence, oppression or improper motive on his part in the seizure, he is not liable in exemplary or vindictive damages. Wiley v. Keokuk, supra; Phelps v. Owens, 12 Cal. 22; Dorsey v. Manlove, 14 id. 553; Nightingale v. Scannell, supra; Bell v. Campbell, 17 Kans. 212, and cases cited. The case of Tyler v. Safford, 31 Kans. 608, to which we are referred, is not in point, because that was an action brought upon an attachment undertaking, and the measure of damages in such a case is different from one of this character. Where a chattel mortgage or written assignment of personal property is executed in part to indemnify the mortgagees or assignees against a possible liability on a redelivery bond, and another and important object of the instrument is to delay, hinder and defraud the creditors of the mortgagors or

assignors, and, such intention is participated in by all

the parties thereto, such instrument is fraudulent in

toto, and cannot be supported to any extent as against
ton, C. J.
such creditors. Winstead v. Hulme. Opinion by Hor-

INTOXICATING LIQUOR, UNLAWFULLY FURNISHED.— A physician having no permit therefor cannot under the statute lawfully furnish intoxicating liquor as a medicine to a patient who is actually sick, and charge and receive pay for the same. The method and the means of regulating the sale of intoxicating liquors for the excepted purposes mentioned in the Constitution must be referred to the wisdom and discretion of the

Legislature. The various provisions of the enacted statute all tend to show that the Legislature had no intention to permit physicians, druggists or any other person to sell intoxicated liquors for the excepted purposes "without first having procured a druggists' permit therefor from the Probate judge." Ita lex scripta- so the law is written. We cannot make the law, nor by judicial construction change or modify its terms so as to legalize sales which are expressly prohibited. Woods v. State, 36 Ark. 36; Wright v. People, 101 Ill. 126; State v. Hall, 39 Me. 107; State v. Brown, 31 id. 523; Commonwealth v. Sloane, 58 Mass. 52. Counsel refer to the statutes of several States forbidding the sale of intoxicating liquors, which contain no exceptive provisions, and cite decisions from those States to the effect that the Legislatures of those States must be presumed to have left the necessity of saving life and curing the sick to operate as an implied exception to the general terms of the statutes. Thomason v. State, 50 Ind. 449; State v. Mitchell, 28 Mo. 563; State v. Larimour, 19 id. 391; State v. Wray, 72 N. C. 253. Some of these cases are in conflict with the previous decisions of this court. While the old dramshop act regulating the sale of intoxicating liquors was in force, this court decided that druggists had no right to sell intoxicating liquors, even for medical purposes, without license. City of Salina v. Seitz, 16 Kans. 143. But the decisions cited by the defendant fare not applicable to the present case, because there is embodied in the statute of this State a specific provision made for the sale of intoxicating liquors for medical purposes, and the statute is bristling all over with provisions tending to show that it was in the mind of the Legislature, at the time the statute was adopted to forbid physicians and all other persons from selling or bartering intoxicating liquors for medical purposes, without first having procured a permit. It is very true that the evil sought to be remedied by the statute is the use of intoxicating liquors as a beverage, and that this purpose interprets the law. IntoxicatingLiquor cases, 25 Kaus. 751. But the idea of prohibition as embraced in the statute is the absolute destruction of the use, as a beverage, of intoxicating liquors. To accomplish this, the Legislature has seen fit to throw severe restrictions around the anministering of liquors even as a medicine. It has attempted thereby to prevent the excepted sales from becoming the ways and means of rendering the statute abortive. Whether the Legislature has acted wisely, it is not for us to say, For the law, the Legislature and not the courts is responsible. It is ciearly indiscreet to prosecute transactions like the one charged in the complaint; but the defendant had no right to administer liquor as a medicine contrary to the provisions of the statute. State v. Fleming. Opinion by Horton, C. J.

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SALE-STOPPAGE IN TRANSIT.-The right of stoppage in transitu may be asserted by the vendor of the goods at any time before their delivery to the vendee by the carrier. But if the goods are by the vendee sold to a third party in good faith for value, and they are by the carrier delivered to the vendee, who delivers them to his vendee, the lien of the consignor is lost, and he cannot retake the goods in the possession of such vendee of his vendee. Hutch. Car., § 409; Story Sales, §§ 318, 319; Newhall v. Vargas, 13 Me. 93; Fraschieris v. Henriques, 6 Abb. Pr. (N. S.) 251. United States, etc., Pump Co. v. Oliver. Opinion by Reese, J. [See 35 Am. Rep. 17.]

[Decided Nov. 18, 1884.]

TAXATION-NOTICE TO OWNER-ENJOINING COLLECTION. There is no doubt that notice of some kind must be given to a property owner and an opportunity given him to he heard before an assessment upon his property becomes finally and irrevocably fixed. County of Santa Clara v. Southern Pac. R. Co., 18 Fed. Rep. 385; Same v. Same, 13 id. 722; Thomas v. Gain, 35 Mich. 155; Butler v. Supervisors, 26 id. 22; Paul v. Detroit, 32 id. 108; Philadelphia v. Miller, 49 Penn. St. 440; Patten v. Green, 13 Cal. 325; Gatch v.Des Moines, 18 N. W. Rep. 310. And that the notice should be provided for in the statute or ordinance authorizing the improvement, there is no doubt. The object of notice however is to enable the property owner to protect his rights by the proper proceedings. If he appear in the case the object of notice has been accomplished, nor will he be heard afterward to complain on that ground. But even where there is neither notice nor appearance, but the circumstances were such that he must have known the facts, if there was authority to impose the tax, a party cannot, after the improvement is made, enjoin the collection of the tax assessed to pay for the same; in other words, retain the benefit derived from the improvement without doing equity by tendering the amount for which the property would be justly liable. La Fayette v. Fowler, 34 Ind. 140; Sleeper v. Bullen, 6 Kan. 300; Evansville v. Pfisterer, 34 Ind. 36; Weber v. San Francisco, 1 Cal. 455; Kellogg v. Ely, 15 Ohio St. 64; Tash v. Adams, 10 Cush, 252; Motz v. Detroit, 18 Mich. 495; Warren v. Grand Haven, 30 id. 24; Peoria v. Kidder, 26 Ill. 351. Barker v. Omaha. Opinion by Maxwell, J. [Decided Aug. 26, 1884.]

USURY-QUESTION OF INTENT-PLEADING.-To constitute an usurious transaction there must be a loan, and there must be an intent to take usurious interest.

Pomeroy v. Ainsworth, 22 Barb. 118; Reed v. Coale, 4 Ind. 283; 2 Pars. Bills & Notes, 405. Both parties must concur in this intent-the borrower to give and the lender to accept usurious interest. State Bank v. Coquillard, 6 Ind. 232; Evans v. Negley, 13 Serg. & R. 218; Leavitt v. De Launy, 4 N. Y. 364; Agricultural Bank v. Bissell, 12 Pick, 586; Bank v. Waggener, 9 Pet. 378; Lloyd v. Scott, 4 id. 205. The intent which is essential is not intent to violate the statute, but to take more than the rate fixed by law. Abb. Tr. Ev. 793; Fiedler v. Darrin, 50 N. Y. 437. The intent may be deduced from the facts proved, as by the reservation of interest in excess of the legal limit (Abb. Tr. Ev. 793); but the proof cannot make a stronger defense than the answer in the case. It is therefore essential in pleading usury to state with whom the usurious agreement was made, its nature, and the amount of usurious interest agreed upon or received. Manning v. Tyler, 21 N. Y. 567; Maxw. Pl. & Pr. (3d ed.) 105. New England, etc., Co. v. Sanford. Opinion by Maxwell, J.

[Decided Nov. 18, 1884.]

OHIO SUPREME COURT COMMISSION AR-
STRACT.
JANUARY TERM, 1884.

CONSENT

MARRIAGE WIFE SEPARATE ESTATE THAT HUSBAND MAY USE.-If a wife, when asked to permit her husband to apply a specified part of her separate estate in payment of his debt, delivers said property to him, and he, with her knowledge and without objection by her, transfers it to his creditor for said purpose, she thereby makes her express assent that her husband may dispose of said property for his

*To appear in 41 Ohio State Reports.

own use and benefit. It is not necessary that the assent of the wife shall be established by evidence proving words spoken or written by her. If it be clearly proved that the wife was called to act upon a definite proposal that she should consent to her husband's reduction to possession of a specific article, or part of her separate property, for his own use and benefit, and that she did act affirmatively upon that proposal, the assent is express within the obvious meaning of this statute. Pollock's Principles of Contract, 28, and cases cited; 1 Story Cont.,§ 14, Alexauder v. Vane, 1 M. & W. 511. Franc v. Nirdlenger. Opinion by Granger, C. J.

NEGOTIABLE INSTRUMENT-MATERIAL ALTERATION -SURETY-CONTRIBUTION.—(1) The rule is elementary, that a material and intentional alteration of a written instrument will avoid it, when the alteration is made by or with the privity of one claiming a benefit under the instrument, and after the instrument has been delivered and taken effect. Fullerton v. Sturges, 4 Ohio St. 529 and cases cited. In German Bank v. Dunn, 62 Mo. 79, after a note was completed, in the absence and without the authority or knowledge of the maker, the name of the payee was by the holder erased, and his own name substituted. In the case of Stoddard v. Penniman, 108 Mass. 366, the action was to charge the defendant as an original promisor upon a promissory note. It appeared that the note was made payable to the maker's order; that while it was in this condition, and before the maker indorsed it, the defendant put his name on the back of it for the maker's accommodation; and that in negotiating it to the plaintiff, the maker altered its face so as to make it payable to the plaintiff's order, without the defendant's knowledge or consent. It was held that this was a material alteration, and avoided the defendant's liability. See also Cumberland Bank v. Hall, 1 Halst. 215; Dolbier v. Norton, 17 Me. 307. (2) It is the general rule that if several persons become co-sureties, by the same instrument, and one surety pay the demand, or more than his own proportion of it in reference to the number of his co-sureties, and thereby relieve the latter from liability, he may recover against each .co-surety his aliquot share or proportion of the debt, or of the sum paid by him beyond his own proportion, upon an implied promise to contribute. The note under consideration having been altered without the knowledge or consent of Philip Bauer, he was discharged from its payment. But notwithstanding his discharge, he paid the note sua sponte, and having done so, he could have no claim for contribution upon the other joint and several makers who were his co-sureties. To establish a claim for contribution, the payment must have been made by him under a legal and fixed obligation. Pitt v. Purssord, 8 M. & W. 538; Davies v. Humphreys, 6 id. 153; 2 Parsons' N. & B. 253. In the emphatic language of the court in Russell v. Failor, 1 Ohio St. 327; "Upon no principle of justice or sound reason, can a surety, by voluntarily paying money on a void note, impose au obligation upon a co-surety for contribution." Davis v. Bauer. Opinion by Dickman, J.

MUNICIPAL CORPORATION NEGLIGENCE-PUBLIC BUILDING-EXCAVATION FOR.-A city is not liable for an injury resulting from the unsafe or dangerous condition of lands adjacent to a street where the place of danger is so far from the street that no injury can result to persons in the ordinary and proper use of the street. The owner of land is not liable for injury resulting from the unsafe or dangerous condition of his premises, to persons who go upon them without invitation express or implied. The fact that a pavement was continuous from a sidewalk on a street over the adjacent lands to the place of danger, was not of itself an implied invitation to a person on the sidewalk to

go upon the adjacent lands. The liability of the city for the injury sustained by the plaintiff is contended for upon the principle of the cases of Hargreaves v. Deacon, 25 Mich. 5; Young v. Harvey, 16 Ind. 314; Mullen v. St. John, 57 N. Y. 567; Beck v. Carter, 68 id. 283, and many others, that a municipal corporation is liable for injuries resulting from obstructions, excavations, pitfalls or other dangerous condition of premises outside of the street, but so near to it as to cause injury to persons in the proper and lawful use of the street, and upon the principle also of the cases of Bennett v. Railroad Co., 102 U. S. 577; Sweeny v. Old Colony Railroad, 10 Allen, 368; Larue v. Farren Hotel Co., 116 Mass. 67, that the owner of land is liable to persons who go upon it, by invitation express or implied, for injury arising from the unsafe or dangerous condition of the premises. The plaintiff was walking along the sidewalk immediately before the accident occurred. The place where he fell into the excavation was about thirty feet from the sidewalk or street proper. The north end of the excavation did not come within thirty feet of the street. A person therefore in the ordinary use of the sidewalk would seem to have been out of all possible danger of falling into the excavation. If the excavation had been so near the street that a person had fallen into it while passing on the sidewalk and in the ordinary use of it, a liability for resulting injury would follow. This excavation was so far from the street that it could have caused no injury, except when the person passing along the sidewalk turned out of his way, as the plaintiff clearly did in this case, and went to it. Protection against pitfalls, excavations, or other dangerous condition of grounds is extended to those only who are there by invitation express or implied. If business is carried on upon the lot, or any curiosity kept there, open to the public, or any inducement or allurement held out to the public beyond a mere permission to go there, the duty to keep the premises safe arises; but if a lot is left unfenced a person who goes upon it by bare permission because there is no obstruction to keep him off, goes at his own risk. Railway Co. v. Bingham, 29 Ohio St. 364; Beck v. Carter, 68 N. Y. 283. Kelley v. City of Columbus. Opinion by McCauley, J.

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-ALTERATION-DOES NOT RELEASE WHEN CONSENTED TO-BONA FIDE HOLDER.

(1) The material alteration of a promissory note avoids the note as to the maker not consenting thereto, even in the hands of a bone fide holder. Bauk v. Hall, 1 Halst. N. J. L. 215; Stoddard v. Penniman, 108 Mass. 366; Draper v. Wood, 112 id. 315; 17 Am. Rep. 92, 106; 2 Dan. Neg. Inst., §§ 1387-1390. (2) If a promissory note be altered by substituting another payee for the original payee with the knowledge and consent of one of the makers, but without the knowledge or consent of the other maker, such material alteration releases from all liability the maker not consenting. Lanier v. McCabe, 2 Fla. 32; Prince v. Crawford, 50 Miss. 344; Crossthwait v. Ross, 1 Humph. (Tenn.) 23; Smith v. Sloane, 37 Wis. 285; 19 Am. Rep. 757; Deardorf v. Thatcher, 78 Mo. 128; 1 Dan. Neg. Inst., §§ 355-358. (3) Where a note given for a threshing machine jointly owned by H. and L. was executed in the individual names of H. and L., and H. and L. are in partnership in the operation of the machine-dividing the profits and losses equally-and while such relation exists the payee in the note is altered by substituting the name of O. for the original payee, and the alteration is made with the knowledge and consent of H., but without the knowledge or consent of L., held, as H. and L. are not in a trading or commercial partnership, H. had no authority to make the material alteration in the note

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