ing commenced by such owner, a contractor under such owner can not elect to consider the building completed at the time of the transfer of title and file and foreclose his lien accordingly. Reversed. Opinion by BREWER, J. All the justices concurring.-Perry . Conroy.

SUPREME COURT OF INDIANA.

November, 1879.

CO-ADMINISTRATOR-LIABILITY ON BONDS JOINT IN FORM-CO-SURETYSHIP.-Action by appellant, as administratrix, against her co-administrator, Wyant, and their joint securities, upon an administrator's boxd, the condition of which was as follows: "The condition of the above obligation is that if the above bound Benjamin Wyant and Maria Wyant shall faithfully discharge the duties of this trust as administrator of the estate of Jacob Wyant, deceased, according to law, the above obligation is to void,' etc. The question presented in the case is whether Maria Wyant could maintain an action on the bond, in which she was a principal obligor, against her co-obligors therein, after Benjamin Wyant had resigned his trust, to recover damages for a breach committed by him alone of the condition of the bond. Held, that the evident meaning of the statute is that where two or more persons are appointed administrators of a decedent's estate, each of said persons shall execute a separate bond for the faithful discharge of his duties, and that the bond in suit must thereupon be construed as the separate bond of each. This being the case, Maria Wyant is not a surety on the separate bond of Benjamin Wyant, and is neither a proper nor a necessary party defendant to a suit on his separate bond to recover damages for breaches committed by him alone. After Benjamin's resignation it became the duty of Maria, as the remaining administrator of the estate, to complete the administration thereof, and in the discharge of this duty she was expressly authorized to maintain this action on the separate bond of said Benjamin against him and his sureties therein. Braxton v. State, 25 Ind. 82; Prichard v. State, 34 Ind. 137; Moore v. State. 40 Ind. 558, overruled, so far as they conflict with this decision. Judgment reversed. -State v. Wyant.

JUSTICE OF THE PEACE— JUDGMENTS - EXECUTIONS WHEN VOIDABLE. - Proceedings and judgments before justices of the peace are not required to have that formality which would be expected in higher courts. A judgment by a justice showing that the defendant appeared and confessed judgment for the amount stated is good as between the parties, and is only void as to creditors of the judgment defendant, for want of affidavits that the defendant justly owed the debt. The provision requiring that before an execution shall issue upon a judgment taken before a justice, a transcript of which has been filed with the clerk of the circuit court, the plaintiff shall file his affidavit that the judgment is impaired in whole or in part, is for the benefit of the defendant, and an execution issued without such affidavit is voidable but not void. A purchaser under it acquires a good title, even if he had notice of its voidable character. The defendant may, if he moves in time, have the execution set aside for the want of the affidavit; but if he neglects to do so, proceedings under it will be as valid as if the affidavit had been filed. Freeman on Executions, sec. 29. Afirmed.-Marity v. Eastridge.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

October, 1879.

MORTGAGE-FIXTURES.-Where the defendant delivered to S, the owner of a machine shop, an Exeter sectional boiler to be used on trial at said machine shop which boiler, by agreement was to remain the personal property of the defendant till paid for; was placed in said building by S for the purpose of furnishing the motive power for the machinery; was firmly attached to the land; was in connection with the steam engine, shafting and machinery adapted to said machine shop and essential to the enjoyment and use of the building for the purpose for which it was intended, and S, not having paid for said boiler, subsequently made a mortgage to the plaintiff of said building and the real estate, including said boiler in express terms, the plaintiff having no notice of the defendant's claim until after the delivery of said mortgage deed, and said mortgage was foreclosed for breach of condition, it was held, that said boiler became a part of the realty and passed to the plaintiff by its mortgage. McLaughlin v. Nash, 14 Allen, 136; Pierce v. George, 108 Mass. 76; McConnell v. Blood, 123 Mass. 47. Opinion by MORTON, J.-Southbridge Sav. Bank v. Exeter Machine Works.

JUSTICE OF THE PEACE—

FOREIGN JUDGMENT JURISDICTION. - A judgment of a justice of the peace of another State is conclusive if it is duly proved and if the justice has jurisdiction to render it. But nothing can be presumed in favor of the jurisdiction of courts or magistrates having only a special or limited jurisdiction. The record should show that the judgment was within the limits of their jurisdiction. Hendrick v. Whittemore, 105 Mass. 23, Wells v. Stevens, 2 Gray, 115; Sayle, v, Briggs, 4 Metc. 421; Nye v. Kellam, 18 Vt. 544; Wright v. Fletcher, 12 Vt. 431. 2. Where, therefore, it appeared that by the statutes of Vermont "a justice is authorized to accept and record a confession of any debt to a creditor made by the debtor personally, either with or without antecedent process, as the parties shall agree and render judgment on such confession," and the record of a justice, put in evidence, showed that the defendant appeared personally before the justice without antecedent process and acknowledged the debt to be due to the plaintiff, but it did not show that he agreed that such acknowledgment should be taken as a confession of judgment or that judgment should be rendered thereon without antecedent process-in a suit upon such judgment in the superior court here, it was rightly held, that the justice of the peace had no jurisdietion, and judgment was properly ordered for the defendant. Opinion by MORTON, J.-Henry v. Estis.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, October, 1879.]

DAMAGES NEGLIGENCE OVERFLOWING WATER -FREEZING.-This was an action against the Chicago & Northwestern R. Co. to recover damages for causing and permitting water to flow and escape from a water tank of the defendant upon premises of the plaintiff. The plaintiff recovered below. It seems that plaintiff owned land in the vicinity of the water tank of defendant upon which he kept a stock of lumber; that during the winter of 1875 the water was

permitted to escape in large quantities from the tank, through the overflow pipes. The water ran upon the land of plaintiff and froze there. The suit respects the damages resulting from this formation of ice to lumber and material, SHELDON, J.: That considerable damage resulted to appellee from the freezing upon his premises of water which flowed thereon from the water tank of the company is established by the proof. It appears, too, that the damage was sustained in consequence of the freezing and the detention thereby of the water; that but for that the water would have flowed down and off the premises without injury. It is claimed that the damage was not the proximate result of the defendants act of turning the water upon the land, but of the freezing of the water which was the act of God. But to claim exemption from liablility for the consequences of such an act of nature it must be such as could not have been foreseen and prevented by the exercise of any care and prudence. Nugent v. Smith, 3 Cent. L. J. 611; L. R. 1 C. P. D. 423; Panton v. Norton, 18 Ill. 496. Appellant must be held to have known that the water would freeze upon appellee's land at the time it was turned on it, it being a fact occurring in the course of nature, and be chargeable with the consequences resulting from the known action of frost in freezing water in combination with appellants own act. The injury was one which might reasonably and naturally have been expected to result." Judgment reversed.— Hoag v. Chicago, etc. R. Co.

NOTE GUARANTY BY THIRD PARTY LIABILITY ASSUMED BY GUARANTOR. This was an action brought before a justice of the peace against defendant as indorser and guarantor of a promissory note, which resulted in a judgment for plaintiff. On appeal to the circuit court, the verdict and judgment were in favor of the plaintiff. To reverse this, the defendant appeals to this court. The facts are substantially that these parties had dealings together, the result of which was that appellant was found in debt to appellee in the sum of five thousand dollars, and for which he gave appellee his note. This note was afterwards taken up and another note given, upon the back of which appellant wrote his name. When suit was brought upon the note this writing above appellant's name was placed upon it by appellant's attorney: "For value received, I hereby assign the within note to Paul L. Saulter, and guarantee the payment thereof." SCOTT, J., says: "The question is what did appellant intend when he put his name on the note? Was it his intention to guarantee the payment of the note, or only to transfer the title, he himself being liable as assignor only. * The question

for the jury was, did appellee indorse this note for the sole purpose of transferring the title, or with a guarantee of ultimate payment of the note by himself? If the latter, the guarantor becomes liable if the money is not paid according to the terms of the guaranty. Affirmed. SHELDON, J., dissenting, says: "The conclusion reached here may perhaps be justified, on the ground that as parol evidence was entered into without objection by both sides to show what was the liability assumed, the question as to the incompetency of such evidence might be considered as having been waived. But I wish to express my dissent from any inference which may be drawn from the opinion, that parol evidence is admissible to show what liability was intended to be assumed by the indorsement in blank of the payee of a promissory note. Whenever the payee of a promissory note indorses it in blank, there is a certain and well known legal import attached thereto that it is a contract of indorsement and not one of guaranty or other kind. In such case, the

liability intended to be assumed appears from the writing itself, and can be barred by parol no more than could have been the contract which the law imports had it been written out in words. This, I had understood as having been settled by the more recent decisions of this court, especially by Mason v. Burton, 54 Ill. 349; Beattie v. Browne, 64 Ill. 360; Jones v. Albee, 7 Ill. 34; Skelton v. Dustin, decided at the January term, 1878, 8 Cent. L. J. 176. Such are the decisions elsewhere. Dale v. Gear, 38 Conn. 15; Woodward v. Foster, 18 Gratt. 200: Charlis v. Dennis, 42 Wis. 56; Coon v. Pruden, 24 Minn.100; Rodney v. Wilson, 67 Mo. 100. It is a different case where one not a party to a note writes his name on the back of it. There, under our decisions, it may be shown by parol what was the liability intended to be assumed. There is in that case no such certain and well known contract implied by the law as there is where the payee indorses it in blank. The distinction is pointed out in the case in 18 Gratt. The doctrine which would permit the legal import of the indorsement in blank of the payee of a note to be varied by parol evidence and so be made liable to be thus converted into a contract of guaranty or other kind, I should regard as dangerous and pernicious in effect upon commercial paper, as not sound in principal and as opposed to all the better authority." CRAIG, C. J., and DICKEY, J., concur.Worden v. Salter.

BOOK NOTICES.

CASES DECIDED IN THE SUPREME COURT OF MICHIGAN at the January and April Terms, 1879. HENRY A. CHANEY, State Reporter. Vol. 40. Lansing: W. S. George & Co. 1879.

REPORTS OF CASES ARGUED AND DETERMINED in the Supreme Court of the State of Wisconsin, with tables of the cases and principal matters. Ó. M. CONOVER, Official Reporter. Vol. 46. Chicago: Callaghan & Co. 1879.

CASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES. October Term, 1878. Reported by WILLIAM T. OTTO. Vol. 8. Boston: Little, Brown & Co. 1879.

The fortieth volume of the Michigan reports is unusually large, containing, with the index and table of cases, nearly 850 pages, and an unusual number of interesting and important cases will be found within its covers. Many of these have already appeared in these columns, but the following decisions we have, we believe, not yet noted: Damages for failure to perform a contract to procure the discharge of a mortgage can not be claimed, if it does not appear that the mortgage was foreclosed or the claimant damnified. Rose v. Jackson, p. 31. A resolution of appointment is not a contract and may be withdrawn or altered before acceptance. Kalamazoo Manf. Co. v. Macalister, p. 84. A note written by plaintiff's attorney before suit, and expressing the opinion that defendant is not liable, is not admissible in evidence for the defense. Farmers Mutual Insurance Co. v. Bowen, p. 147. A deposition is not inadmissible merely for being transmitted in a gummed envelope, if it has not been tampered with. Van Sickle v. Gibson, p 170. A deposition does not need a separate jurat, if the commissioner who took it certifies that the deponent was duly sworn. Id. An unsigned affidavit for a transcript of execution is valid if properly sworn to. Merrick v. Mayhue, p. 196. The measure of damages

for putting up a steam boiler with such defects as to make it worth less than the contract price, is the difference between its value in its defective condition and its value if completed in compliance with the contract. White v. Brockway, p. 209. In an action involving the settlement of accounts, figuring done by one of the parties when they were trying to settle is admissible as res gesta. Bennett v. Smith, p. 210. A leading question points out the desired answer and does not merely call for an affirmative or negative. McKeown v. Harvey. Unpublished manuscripts are not leviable property. So held of a set of abstract books. Dart v. Woodhouse, p. 399. It is "extreme cruelty to a wife for her husband openly to consort with and express his preference for loose females. McClung v. McClung, p. 493.

The forty-sixth Wisconsin reports contains about 750 pages, and fewer cases than the volume just examined, the opinions being generally of greater length. We observe no decisions of general interest which we have not heretofore referred to. The eighth volume of Otto's United States Supreme Court Reports, has less than 700 pages.

Having examined these three volumes together with some care, we have come to the conclusion that in so far as the work of the reporters and publishers is concerned the honors are by no means evenly divided. Mr. Chaney's syllabi and index are much better than those of the other two. The Wisconsin reporter gives too much space to his statement of facts preceding the opinions and to briefs of counsel. On the other hand Mr. Otto pays very small attention to the former; this we believe has been a subject of complaint ever since the appearance of his first volume. As regards the mechanical execution-the paper, the press work and binding the 98th U. S. takes the first place, with the 40th Wisconsin and the 46th Michigan, a very poor second and third.

justly sued out. A failed in such suit. B now sues on said bond and seeks to recover, actual aad vindictive damages of A, D and E. Can B recover vindictive damages in suit on bond? Can he recover such damages of D and E as sureties? If so, what is the measure of such damages the penalty of the bond, or as in other cases. K. & C.

49. THE FOLLOWING NOTE is executed: "$100. Leavenworth, Kas., Jan. 1, 1879. Six months after date I promise to pay to the order of John Doe, one hundred dollars for value received. This note is not negotiable. (Signed) Richard Roe." A printed form is used, but the date, amount, time of maturity, payer and words This note is not negotiable," and the signature are all written in. The note is indorsed without recourse to an innocent purchaser before due. The question is, whether the note is negotiable, or is it subject, in the hands of the innocent holder, to all defenses existing between payer and payee. of your subscribers refer me to authorities?

ANSWERS.

No. 43.

[9 Cent. L. J. 439.]

Can any

S.

"An execution issued by a justice of the peace, and not returnable according to law, is not merely erronous, but is void." Stevens v. Chouteau, 11 Mo. 382; 5 Wend. 276; 9 Wend. 388; 16 Vt. 393. The execution being absolutely void it would seem that the constable incurred no liability by his failure to execute the writ. Linneus, Mo. N. & B.

NOTES.

47.-A CONTRACTS WITH B to sell him his farm. He wants $25 bonus money down. B is unwilling to pay the money to A, but will deposit it with C, to be paid to A when A shall have performed a particular part of the contract, which is to be done in a reasonable time. A, unwilling that the money be deposited with C, selects D, and urges that the money be left with him. B finally agrees and leaves the $25 with D, to be paid as above. Within a reasonable time A performs the part of the contract specified, but D has absconded with the money. Is D A's agent or B's bailee or both? Can A recover the money from B?

H. J. C.

48.-A SUED B AND ATTACHED HIS property, giving bond with D and E as sureties, conditioned that A would pay B all damages sustained from the levy of the attachment, if the same were illegally and un

The President has sent to the Senate the nomination of Hon. George W. McCrary to the circuit judgship vacated by Judge Dillon. The selection has just been approved by a large meeting of the bar at Mr. McCrary's home, and is indorsed by the press of both parties in the State. Samuel Reber, one of the foremost and best known members of the bar of this city, died suddenly at Cincinnati on the 1st inst. The deceased lawyer was born in Ohio in 1813, and began the practice of the law in St. Louis in 1840. He was for some time a judge of the Court of Common Pleas and Circuit Court of this city, which latter position he resigned before the close of his term. Among other positions to which his legal knowledge called him were those of city counselor and professor of equity in the Washington University Law School. His health had been failing for some time.The death is announced in England of Edward William Cox, Sergeant at Law, in his 70th year. He was called to the bar in 1843, and in 1857 became recorder of an English town. But he was more distinguished as a journalist than as a lawyer. Sergeant Cox was the proprietor of The Law Times, and of The Field and Queen newspapers. The Law Times was under his editorial supervision. He was also the author of "The Advocate," published in 1852, and other popular works relating to legal subjects.The President's message calls the attention of Congress to the arrears in the business of the Supreme Court of the United States, and on the circuits. The remedy suggested is the appointment of additional circuit judges, and the creation of an intermediate court of errors and appeals.

ST. LOUIS, DECEMBER 12, 1879.

CURRENT TOPICS.

The extent of the right of police officers to arrest without a warrant was considered by the Supreme Court of Michigan, in the recent case of Quinn v. Heisel. The court doubted whether a municipal ordinance could justify arrest without process where common law principles do not, but held that arrests may be made without a warrant for breaches of the peace committed in the presence of the officer, but not on information or suspicion for past offenses; and that arrests without process, to prevent threatened breaches of the peace, were only lawful where the threat was accompanied with an overt act. The court said: "There are many loose general statements in the books as to the right of officers to make arrests without warrant. That they have a right to arrest for breaches of the peace committed in their presence is conceded by all. It is equally clear that they can not arrest for a past offense, not a felony, upon information or suspicion thereof, although expressions may be found which would seem to assume such power. How far or when they may interfere by an arrest to prevent a threatened breach of the peace is not equally clear. are of opinion that a threat or other indication of a breach of the peace will not justify an officer in making an arrest, unless the facts are such as would warrant the officer in believing an arrest necessary to prevent an immediate execution thereof, as where a threat is made coupled with some overt act in attempted execution thereof. In such cases

the officer need not wait until the offense is

actually committed. To justify such arrest the party must have gone so far in the commission of an offense that proceedings might thereafter be instituted against him therefor, and this without reference to any past similar offense of which the person may have been guilty before the arrival of the officer. The object of permitting an arrest under such circumstances is to prevent a breach of the peace, where the facts show danger of its beVol. 9-No. 24.

subject, Regina v. Mabel, 9 C. & P. 474; Timothy v. Simpson, 1 C. M. & R. 757; Grant v. Moser, 5 M. & G. 123; Baynes v. Brewster, 2 A. & E. (N. S.) 384; Wheeler v. Whiting, 9 C. & P. 262; Howell v. Jackson, 6 C. & P. 723; Knot v. Gay, 1 Root. 66; State v. Brown, 5 Harr. 597; McCullough v. Com. 67 Pa. St. 32; Russell v. Shuster, 8 W. & S. 307; Com. v. Carey, 12 Cush. 252.

The Supreme Court of the United States in the case of Cowell v. Colorado Springs Company, decided at the present term, sustained a condition in a deed of land that intoxicating liquors should never be manufactured, sold or otherwise disposed of as a beverage in any place of public resort on the premises. It was expressly declared in the deed that on breach of this condition by the grantee or his assigns the deed should become null and void, and the title to the premises should revert to the grantor. The defendant having gone into possession of the premises under the deed, opened a billiard saloon in a building therein, which became a place of public resort where he sold intoxicating liquors. It was held by the court that upon such breach the grantor could bring ejectment without a previous entry or demand for possession. Mr. Justice FIELD, said: "The validity of the condition is assailed by the defendant as repugnant to the estate conveyed. His contention is, that as the granting words of the deed purport to transfer the land, and the entire interest of the company therein, he took the property in absolute ownership, with liberty to use it in any lawful manner which he might choose. With such use the condition is inconsistent, and he, therefore, insists that it is repugnant to the estate granted. But the answer is that the owner of property has a right to dispose of it with a limited restriction on its use, however much the restriction may affect the value or the nature of the estate. Repugnant conditions are those which tend to the utter subversion of the estate, such as prohibit entirely the alienation or use of the property. Conditions which prohibit its alienation to particular persons, or for a limited period, or its subjection to particular uses, are not subver

sive of the estate; they do not destroy or limit its alienable or inheritable character. Sheppard's Touchstone, 129, 131. The reports are full of cases where conditions imposing restrictions upon the uses to which property conveyed in fee may be subjected have been upheld. In this way slaughter - houses, soap-factories, distilleries, livery-stables, tanneries, and machineshops have, in a multitude of instances, been excluded from particular localities, which thus freed from unpleasant sights, noxious vapors or disturbing noises, have become desirable as places for residences of families. To hold that conditions for their exclusion from premises conveyed are inoperative, would defeat numerous arrangements in our large cities for the health and comfort of whole neighborhoods. The condition in the deed of the plaintiff against the manufacture or the sale of intoxicating liquors as a beverage, at any place of public resort on the premises, was not subversive of the estate conveyed. It left the estate alienable and inheritable, and free to be subjected to other uses. It was not unlawful nor against public policy, but on the contrary it was imposed in the interest of public health and morality." For cases in which similar conditions have been sustained, see Plumb v. Tubbs, 41 N. Y. 442; Doe v. Keeling, 1 M. & S. 95; Gray v. Blanchard, 8 Pick. 282; 14 Kas. 61.

In ex parte Langley, decided by the English Court of Appeal on the 12th ult., the question was raised whether notice by telegram of an injunction, granted by the Court of Bankruptcy to restrain a sale, was sufficient to render persons who after receiving the notice committed a breach of the injunction, liable to be committed for a contempt of court. The chief judge had made an order for the committal of a sheriff's officer and an auctioneer, the latter having sold the goods of an execution debtor, who had filed a liquidation petition, after a telegram had been shown to him, purporting to be sent by some London solicitors, and addressed to the sheriff's officer in possession, which stated that an injunction restraining the sale (which was taking place in the country) had been granted by the London Court of Bankruptcy. The sheriff's

officer was not present when the telegram was received, he having gone away on other business, but he had left a deputy in possession. Upon receipt of the telegram the deputy telegraphed to the officer for instructions, telling him that a telegram had been received to stop the sale, but saying nothing about an order of the Court of Bankruptcy. The officer replied by telegram, that if the debtor had filed a petition or the debt was paid, the sale was to be stopped, otherwise it was to proceed. The sale was then continued. It appeared from the evidence that there had been some previous attempts by the debtor to stop the sale, and that he had promised to come and pay the execution debt, and the auctioneer swore positively that he believed the telegram to the sheriff's officer was a mere ruse of the debtor, and had no suspicion that any proceeding had been taken in the Court of Bankruptcy, or that any order had been made by it. The Court of Appeal held that there was no ground for the application as against the sheriff's officer, he having had no actual notice of the injunction. He could not be held in such a way responsible for the act of his subordinate. And as to the auctioneer, the court said that though no doubt there were circumstances of suspicion against him, they could not, after his positive affidavit, order him to be committed, the evidence showing that that which had taken place might not unreasonably have led him to form the conclusion which he swore that he did form. The court ordered that the sheriff's officer should have his costs in both courts, but that the auctioneer should bear his own costs. JAMES, L. J., was very far from saying that sufficient notice of an injunction could not in any circumstance be given by telegram, and THESIGER, L. J., said that he did not dissent from the proposition laid down by the chief judge in in re Bryant 25 W. R. 230, L. R. 4 Ch. D. 98, that under certain circumstances a notice of an injunction given by telegram might be sufficient to render a person who disregarded it liable to be committed for contempt. But, in each case, the question would be whether the notice given was such that it could be reasonably inferred that the person who received it had had actual notice of the injunction. And the onus of proof must be on those who asserted