The cause may be remitted to the Common Pleas for a new trial.

NOTES OF RECENT DECISIONS.

determine, as by a rule of law, which are usual and which not, will involve the courts in discussions where the personal experience of judges must have more influence than legal principles. In every such case the question of usage should be regarded as one of fact and not of law.

Sometimes it has been intimated that a distinction might be based upon whether the warranty by the agent were set up by a plaintiff to maintain a suit against the principal, or by a defendant to resist the principal's suit for the price, and that the attempt of the principal to collect the price, after he has learned of the warranty, is a ratification of it. On the idea that the authority does not cover the warranty, and that the purchaser is chargeable with knowledge of the authority, it is not plain how he can withstand the vendor's claim on a contract made, by alleging a contract which he knew was not made. But if there be anything at all in the distinction, it must be confined to those cases where, when the principal obtains, knowledge of his agent's unauthorized warranty the sale is in fieri, or can be declared void and the parties restored to their original position. What the principal does in pursuance of a bargain which he has authorized his agent to make, without knowledge that his agent has entered into an unwarranted contract, is not a ratification of such contract. Combs v. Scott, 12 Allen, 493; Smith v. Tracy, 36 N. Y. 79; Titus v. Phillips, 3 C. E. Green, 541; Gulick v. Grover, 4 Vroom. 463. And if, when he acquires knowledge, he can not, in justice to himself, disavow the whole of his agent's contracts, he is entitled to stand upon what he authorized, and repudiate the rest; the purchasers who dealt with a special agent without noting the bounds of his power, must suffer rather than the innocent principal. Bryant v. Moore, 26 Me. 84.

These views are not at all in conflict with the class of cases which hold that the principal is responsible for the fraud or deceit of his agent, committed in the course of his employment for his employer's benefit. Jeffrey v. Bigelow, 13 Wend. 518; Sandford v. Handy, 23 Wend. 260; Barwick v. Eng. Joint Stock Bank, L. R. 2 Ex. 259; Mackay v. Com. Bank of N. Brunswick, L. R. 5 P. C. 391. Those cases are well founded upon the principle that, as every man is bound to be honest in his dealings with others, so is he bound to employ honest agents, whether they be general or special, and if in transacting his business, and within the range of their authority, they be dishonest, the consequences are legally chargeable to the employer, and not to a stranger.

Hern v. Nichols, 1 Salk. 289.

In the present suit I think that the unauthorized warranty, inferred from the honest statement of the agent that the horse was all right, not communicated to the vendor or his representatives until after the horse was delivered to and had died in the possession of the vendee, formed no defense to the claim for the price, and that the appellee's prayer for instructions to the jury was justified by the facts and the law, and should have been granted. Its refusal was error, for which the julgrii at should be reversed, with costs.

CONSTITUTIONAL LAW-DISCRIMINATION IN STATE PROCEDURE AGAINST NON-RESIDENTS. – The code of Nebraska provides that an attachment may be issued against a non-resident of the State without the undertaking which is required in the case of a resident. Held, that the provision is not in conflict with the requirement of the Federal Constitution ($ 2, art, 4), that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.-Marsh v. Steele. Supreme Court of Nebraska. Opinion by MAXWELL, C. J. 20 Alb. L. J. 290.

CONFLICT OF LAWS PROMISSORY NOTES GoyERNED BY THE LAW OF PLACE WHERE MADE AND PAYABLE.-A promissory note made by defendant as accommodation maker in New York and payable in that State, was discounted for the payee in Massachusetts at a rate lawful there but usurious in New York. Held, that the contract was governed by the law of New York, and the note was invalid for usury. Jewell v. Wright, 30 N. Y. 259, approved; Bowen v. Bradley, 9 Abb. Pr. (N. S.) 393, disapproved.-Dickinson v. Edwards. New York Court of Appeals. Opinion by FOLGER, J. 20 Alb. L. J. 310.

EXECUTION SEAT IN THE BOARD OF BROKERS. NOT SUBJECT TO.-By the constitution of the Philadelphia Stock Exchange, it was provided that membership might be sold, with the consent of the exchange, and the balance of the proceeds, after satisfying the owner's debts to members, was to be paid to the owner. Heid, that such meinbership in the exchange is not property subject to execution in any form, but that it is a mere personal privilege or license to buy and sell at the meeting of the board, It can not be levied on and sold under a fi. fa. or attachment execution.- Pancoast v. Goven. Supreme Court of Pennsylvania. Opinion Per CURIAM. 7W. N. 457.

SALES – CONCURRENCE OF DELIVERY AND PAYMENT.- Plaintiff sold defendant certain tobacco in three lots at three different prices, to be delivered on plaintiff's premises, but to be taken to the railroad depot by plaintiff free of charge. Plaintiff, assisted by defendant, packed two lots of the tobacco, and defendant went away, after directing plaintiff to pack the other lot. The tobacco so packed was forwarded to defendant and duly received, and defendant paid part of the purchase-money. Plaintiff packed the third lot as directed and made it ready for delivery on his premises, and requested payment, which defendant refused, insisting that the tobacco was to be delivered at the depot, and paid for there. Plaintiff, in the exercise of reasonable diligence, afterwards sold the third lot for its full value, but for less than defendant had agreed to pay for it. Held, that as plaintiff was required only to be ready to deliver the tobacco at the time and place agreed on, and as he had done that, and as defendant had neither paid nor offered to pay, defendant had broken the contract; that the contract was entire; that plaintiff had a right to re-sell the tobacco, and might recover of defendant the difference between the most that he could get on re-sale and the agreed price, and in addition, the unpaid balance of the agreed price of what was delivered, and that as the cause was referred and the damages sought to be recovered such as might have been recovered on dec

a

which the parties had treated the claim that he did, and that as he ordered the second lot and had acknowledged his liability to pay for both lots, he was proper. ly made defendant in assumpsit to recover for both lots. 2. Goods ordered of a manufacturer for a particular purpose, are impliedly warranted fit for that purpose. But the manufacturer is not bound to furnish the best goods of the kind that are or can be made, but only such as are usually made and usedsuch as are reasonably fit for the purpose. Thus, where it appeared that gas-meters furnished by man. ufacturers on a general order worked as accurately and well and lasted as long as the meters of other reputable makers, but did not work as accurately and well, nor last as long as the meters of certain English, and perhaps certain other American, makers, it was held, that the meters were of the kind and quality required by the order.-Harris v. Waite. Supreme Court of Vermont. Opinion by ROYCE, J. Advance sheets of 51 Vt.

SOME RECENT FOREIGN DECISIONS.

laration such as the court might have allowed in amendment of a declaration in common counts in assumpsit, plaintiff might recover on such count. Phelps v. Hubbard. Supreme Court of Vermont, Opinion by Dunton, J. Advance sheets of 51 Vt.

LUNATIC ACCOMMODATION INDORSER — INQUISITION AFTER DATE OF INDORSEMENT BONA FIDE HOLDER.- An accommodation indorser of a promissory note, given in renewal of a note for a similar amount indorsed by him while of sound mind, who was found by inquisition to have been a lunatic at the time of indorsement of the renewal note, is liable to a bona fide holder who received the note before the inquisition and without notice of the indorser's lunacy. Lancaster County Bank v. Moore, 28 Sm. 407, and Moore v. Lancaster Nat. Bank, 2 W. N. 674, followed. -Snyder v. Laubach. Supreme Court of Pennsylvania. Opinion Per CURIAM. 7 W. N. 464.

FIRE INSURANCE-INCREASE OF RISK-SET-OFF IN DIMINUTION OF Risk.-1. Neglect or omission to mention, at the time of application for a policy of insurance, the existence of a carpenter shop in close proximity to the building insured, and the subsequent erection of a new building adjoining the house insured, without notice to the company, is such an increase of risk as will vitiate a policy of insurance containing the following conditions: “The insured hereby coyenants that the representations given in the application for this insurance is a warranty on the part of the insured, and contains a just, full, and true exposition of all the facts and circumstances in regard to condition, situation, value, and risk of the property;' and further, that “if, after insurance, the risk shall be increased by any means whatsoever

* and the assured shall neglect to notify the company of said increased risk, such insurance shall be void.” 2. Setoff in diminution of risk by removal of a building warranted in the application for insurance not to be on the premises on which the insured dwelling stood, is inadmissible against the defense of increase of risk, in violation of the covenants of the policy, by the erection of a new building on an adjoining lot of which the insurance company had no notice.- Pottsville Mut. Ins. Co. v. Horan. Supreme Court of Pennsylvania. Opinion by TRUNKEY, J. 7W. N. 461.

SALES-IMPLIED WARRANTY OF THE FITNESS OF Goods FOR PURPOSE FOR WHICH THEY ARE BOUGHT.-1. Defendant was the sole stockholder and officer of an incorporated gas company. Plaintiffs, who were makers of gas-meters, shipped and billed to said company a lot of meters, which defendant received and used. Several months afterward defendant wrote plaintiffs that he had taken out three of the meters, and that they refused to pass gas. Plaintiffs replied that they could not account for it, unless the valves were stuck by impurities or other cause, but that if defendant would send the meters back they would repair and return them at their own expense, if they were in fault. Defendant thereupon, by personal letter, ordered of plaintiffs another lot of meters, and wrote them that they could draw on him for the amount of the first bill. The plaintiffs in like manner shipped and billed the meters so ordered to said company, and they were received and used by defendant. A long correspondence ensued in regard to the meters and payment therefor, wherein defendant wrote. “I will remit for your bill very soon,” and again, that he proposed to settle the account, and would have done so before, but could not fix in bis mind what he ought to do; that he thought he was entitled to some allowance for the imperfect working of meters. Held, that although it did not appear that defendant ordered the first lot, it was to be presuined from the way in

PERSONAL INJURIES ACTION MAINTAINABLE WITHOUT PROOF OF PERMANENT INJURY. – 1. In an action for damages for personal injuries, when the defendant on the pleadings admits negligence, in order to entitle the plaintiff to recover it is not necessary that he should prove that he sustained substantial injury. 2. If a railway company contract to carry A from B to C upon their line of railway, and before the train in which A is traveling reaches C, an accident happens to the train, by reason of the railway company's negligence, and if in consequence A is thrown out of the carriage in which he was traveling, he is entitled to recover damages against the company, whether he sustained any permanent injury or not.-Phil. pot v, Cork, c. R. Co. Irish High Court, Ex. Div. Ir. L. T. Rep. 155.

EASEMENT -LIGHT-- AGREEMENT-VENDOR AND PURCHASER CONSTRUCTIVE NOTICE. – The mere fact of a purchaser of a plot of land seeing a window in an adjoining tenement facing such land is not sufficient to give him constructive notice of an agreement between his vendor and the owner of the tenement that such window should have an indefeasi. ble right to the access of light, the purchase having been completed without any actual notice of such agreement. Decision of Hall, V. C., reversed. Dicta of Lord Chelmsford, in Miles v. Tobin, 16 W. R. 465, disapproved. — Allen v. Seckham. English High Court, Chy. Div., 28 W.R. 26.

RECEIVER-APPLICATION FOR PAYMENT OUT OF MONEYS RECEIVED BY HIM BY A JUDGMENT-CREDITOR NOT A PARTY TO THE ACTION.-Where a judg. ment-creditor of a railway company applied for an order for payment of the sums due under the judgment out of moneys in the hands of a receiver, the receiver having been appointed in a debenture-holder's action against the company, to which action the judgmentcreditor was not a party: held, that the judgment. creditor, not being a party to the action had no locus standi to apply for payment out of the moneys in the receiver's hands. Neate v. Pink, 3 Macn. & G. 476, considered.- Brocklebank v. East London R. Co. English High Court, Chy. Div. 28 W. R. 30.

MARINE INSURANCE---PARTIAL Loss-COST OF REPAIR – SALVAGE - SUING AND LABORING CLAUSE.1. The doctrine that a policy of marine insurance is a contract of indemnity is subject to some qualifications. 2. A ship which was insured for £1,200, and valued at

£2,600, was damaged by perils of the sea, and the owner became liable to the payment of £519 for salvage. The owner elected to repair the ship, which thus became more valuable than it was at the date of the insurance. Held (affirming the judgment of the court of appeal, reported 26 W. R. 780, L. R. 3 Q. B. D. 558), that the owner was entitled to recover the cost of repair, less the usual reduction of one-third new for old, up to the amount insured, even though he would have recovered less in the event of a total loss; but (reversing the judgment of the Court of Appeal, and restoring the judgment of the Queen's Bench Division, reported in 26 W. R. 42, L. R. 2 Q. B. D. 501), that no portion of the salvage expenses were recoverable under the suing and laboring clause contained in the policy. Kidston v. Einpire Marine Insurance Co., 15 W. R. 769, L. R. 2 C. P. 357. distinguished.-Atchison v. Loher. English House of Lords, 28 W. R. 1.

MARRIED WOMAN'S CHOSE IN ACTION - PUCTION INTO POSSESSION GIFT BY HUSBA TO WIFE.-The executors of a will, under which a married woman was entitled to a legacy, paid the legacy by a check for the amount, drawn to the order of the husband and wife. They went to the husband's bankers with the check, duly indorsed, and the wife handed it to the manager, and instructed him, in the husband's presence and with his assent, to open an account in her own sole name, and to place part of the proceeds of the check to the credit of such account, and the remainder to the husband's current account. These instructions were carried into effect, and the wife drew checks on the account from time to time in her own name, in several instances in favor of the husband, who never interfered with the account. The bankers invested a part of the sum in the purchase of certain bonds, and they sent her a memorandum by which they stated that they held the bonds as her property. The wife afterwards declined to accede to a request by her husband to charge her moneys and securities with the payment of the overdrawn balance of his account with the bankers, and the husband went into liquidation. Held, that the husband had not reduced the legacy into possession. Semble, that if it had been held that the husband had reduced the legacy into possession, it would have been held that there had been a valid gift of the amount by the husband to the wife.- Parker v. Lechmere. English High Court, Chy. Div., 28 W. R. 48.

and approved by the clerk, and the recognizanco entered of record.” Section 3298 is as follows: “Every recognizance taken as above provided, shall have the effect of a judgment confessed from the date thereof, against the property of the sureties.” Where a stay bond was approved and filed by the clerk, but was not copied into the records of the court: Held, that it was not “entered of record”' as contemplated by the above provisions, and did not constitute a lien upon the lands of the surety as against subsequent incumbrancers in good faith and without notice. Opinion by BECK, C. J.-Waldron v. Dickerson.

RECEIVER—JUDGMENT AGAINST, NOT A LIEN UPON PROPERTY AFTER SALE.-During the pendency of foreclosure proceedings against a railroad, the property was placed in the hands of a receiver, and while under his management the plaintiff, an employee, received injuries for which he recovered a judgment against the receiver. Before the rendition of the judgment, however, and while plaintiff's action was pending, the road was sold under the foreclosure decree and the receiver made his final settlement and was discharged. In an action to enforce plaintiff's judgment against the road: Held, that while the receiver might properly have paid it if rendered before his discharge, no lien could attach to the property while in the custody of the court, and the purchaser took the same free from any claim against the receiver. B. C. R. & N. R. Co. v. Verry, 48 Iowa, 458, 7 Cent. L. J. 65. Opinion by ROTHROCK, J.-White v. Keokuk, etc. R. Co.

NATIONAL BANKS WHEN USURIOUS INTEREST IS RESERVED- JURISDICTION OF STATE COURTS.Where a national bank loans money upon a usurious contract, such penalties and only such can be enforced as are provided in the national banking act. Farmer's & Mechanic's Nat. Bank v. Dearing, 1 Otto, 29. This being the law, and conceding it to be true in a certain sense that the penal statutes of any sovereignty can be enforced only by the courts which belong to that sovereigety, yet where a borrower of money from a national bank at a rate of interest which is usurious is sued by the bank in a State court to recover such interest, he may maintain the plea of usury in the same court. The plaintiff's statement that it is entitled to recover certain interest is not true, and it would be strange if, in an action to enforce a claim which is not valid. the defendant could not be allowed to resist the claim. It is a civil right to make such resistance, and the defendant must be allowed the right in whatever forum the claim is asserted, even though its enforcement would operate in some sense as a penalty upon the plaintiff, Hade v. McVay, 31 Ohio, 231; Ordway, v. Cent. Nat. Bank, 47 Md. 217; Betz v. Columbia Nat. Bank of Pa., 87 Pa. St. Opinion by ADAMS, J.-Nat. Bank of Winterset v. Eyre.

SUPREME COURT OF KANSAS.

July Term, 1879.

[Filed Nov. 15, 1879.]

REMOVAL OF CAUSE TO FEDERAL COURT CAN ONLY BE MADE WHERE THERE IS A CONTROVERSY. -Under the act of March 3, 1875, providing for removals from State to Federal courts in suits of a civil nature in which there shall be a controversy between citizens of different States," an order for a removal can not be made upon the application of a defendant who has neither answered nor demurred to the petition of plaintiff. The statute contemplates a controversy in a suit and not a suit to which there is no defense. Opinion by ROTHROCK, J.-Stanbrough 0. Griffin.

STAY OF EXECUTION When not ENTERED OF RECORD-LIEN.--Section 3295 of the code provides that “the surety for stay of execution may be taken

SCHOOL Tax.-1. Section 4 of ch. 149 of the Laws of 1879, p. 270, works by implication a repeal of all prior enactments providing for the levy of a one mill tax for the State annual school fund. Said section is not invalid by reason of conflict with sec. 16 of art. 2 of the State Constitution. Judgment for defendant. Opinion by BREWER, J. All the justices concurring. - State v. Ewing.

PRACTICE- MOTION FOR A NEW TRIAL. Where an action has been tried in a justice's court by a jury,