lawyer could have been found who would take a contrary position. A receiver of a railroad is not the agent of the corporation, nor a partner with the corporation; but is a disinterested officer of a court of justice, and the employees whom he hires to operate the railroad are not employees of the corporation in any sense; and if they are injured under circumstances where, if they had been employed by the corporation, the corporation would have been liable, the receiver, and not the corporation, is responsible for the injury. There would be neither sense nor justice in making a corporation pay for injuries which were inflicted through the negligence of a person over whose action the corporation had no control whatever. A receiver of one court can not be sued in another court without the consent of the court whose officer he is; and the receivers of the railroad which our correspondent names can not be sued in the state courts of Georgia without the consent of the United States Circuit Court for the District of Georgia. If, however, such consent is obtained, the action in the state court would not be against the corporation, but against the receivers, and the judgment obtained, if any, would be marshaled and paid by the federal court, or paid by the receivers under the direction of the federal court. But the usual course in such cases is, for the federal court to require all persons holding collateral claims, such as the one in question, to bring suit in the federal court, and have their rights determined there, so that the matter may be speedily brought to a close. No receivership could ever be wound up, if an unlimited privilege of suing the receivers in the state courts were accorded. If the claim is like the one here in question, in the nature of an action at law, the federal court would, no doubt, accord a trial by jury; but, in order to promote the speedy and certain adjustment of claims of this kind, it has been the practice in some of the federal courts, where juries have not been demanded, to refer them all to a master in chancery, who, upon proper notice to the parties, hears the case, and makes up and transmits to the court a full report of the evidence, together with his conclusions both of law and fact thereon. The equity rules allow any person dissatisfied with this report thirty days in which to file exceptions to the same, in default of which the report stands confirmed by operation of law, and the party in whose favor it is made is entitled to have a decree entered at the next rule day. If exceptions are filed to the report, the case is reviewed by the court upon the evidence transmitted, and a decree is entered according the views which the court may entertain of the law and justice of the case. If the person named by our correspondent lost his life under such circumstances that, if the road had been at the time in the hands of the corporation, he being one of its employees, the corporation would have been liable, the court will, no doubt, apply the same rule of liability to the receivers (High on Receivers, sec. 395, and cases cited); but if the receivers have acted in good faith, they will not be answerable personally, nor upon their bonds, but the judgment will be satisfied out of the funds in their I hands as such receivers.

We have said, perhaps, as much as ought to be' said with reference to a case which may hereafter be litigated in the courts. Our justification is the great number of cases of this precise character which are every day arising. We may add another word of assurance to our correspondent. It is not true that the federal courts are in the habit of appointing receivers merely for the purpose of holding creditors at arm's length; nor are they in the habit of exercising this extraordinary power in such a manner as to work a denial or delay of justice. Unless we greatly mistake the character of the able and upright judge who appointed

the receivers in question, the unfortunate widow and children, to whom our correspondent alludes, will find in his court a speedy and certain road to justice.-ED. C. L. J.]

LIEN FOR RAILROAD SUPPLIES.

To the Editor of the Central Law Journal:

In the issue of your valuable paper just received, I note your editorial comments on this subject.

Permit me to say that it has been quite usual to insert in the order appointing a receiver for railroad property a clause permitting the payment by him of all claims for supplies furnished, or work performed "within ninety days" prior to the date of the order. I have knowledge of a large number of such orders, and in many cases they, in fact, permitted the payment of all unpaid bills; and in several other cases, after all bills contracted within the ninety days had been fully paid, a further order was obtained from the court permitting the payment of all others, though contracted prior to the ninety days.

In actual practice there exists great difference as to this class of payments. Many of the foreclosures being properly of that class denominated "amicable," and the floating debt being owned by the parties having the foreclosure in charge, either as plaintiffs, trustees, or as committeemen who are perfectly willing not to oppose payments, by the receiver, of debts due to themselves, or in which they are interested, such payments are audited and paid, "none of the parties in interest opposing," to quote your own words. I think you will find that a large amount of the claims against the Pacific and Missouri was of this class. And as regards the payments for supplies, it will be found that an equally pleasant rule is adopted. If the plaintiff,whether trustee or not, or committeeman, or receiver, or, combining all in one person-is friendly to the supply-man, his bills will be paid. I state this from my experience in these matters, but refrain from specifying examples at this time. As to laborers' wages, it has become quite usual to direct the payment of all ar rears, even in those states where the statutes do not provide for their payment.

You speak of its appearing to be a "settled rule" of the federal courts not to allow payments such as the above, "if the beneficiaries under the mortgage before the court object." Now, allow me to submit to your candid judgment, is not this a just rule?

In your editorial on page 636, of your last volume, you say: "It is easy to see, that the establishment of a rule giving priority to such claims, as matter of law, would seriously impair the security of railway mortgages." Will you now allow me to quote yourself against your views now expressed as to the propriety of allowing the rule of admiralty to railroads. Justice Bradley, when such a claim was made in behalf of Pulsiford, as reported in that phase of the Galveston v. Cowdrey case, which appears in 11 Wallace, says: "As to the other point, giving priority to the last creditor for aiding to conserve the thing, all that is necessary to say is, that the rule referred to never has been introduced into our laws except in maritime cases, which stand on a particular reason." The italics are my own, but I italicize those words in order to emphasize them. True, Justice Bradley does not say that the admiralty rule should not be introduced into our railway prac tice, and it may be that those who advocate its adop tion are simply taking an advanced stand in this matter; but allow me to submit, that if this is permitted with railroads, why not permit it also in the case of other mortgaged property? But you refer to the fact that railroads are a species of public property, and you say, they "must be continuously operated" pro bono publico. Now, in New Jersey there is a statute, di

recting the Chancellor to appoint a receiver to take charge of and operate any railroad, the owners of which have failed to operate it for ten days;" and all expenses incurred thereby, shall be a first lien on all the earnings thereof, prior to any other claim." Mark you, a lien on the "earnings," but not on the corpus-and "said receiver shall apply all unincumbered personal effects, and all moneys which may be transferred to him, * towards payment of wages at that time due to the employees " for not over two months; but other states have not a similar statute, and I submit that in the absence of statute a court is not the proper party to see to it that any railroad "must be continuously operated."

In your own state the bondholders, who became purchasers of the Chillicothe and Brunswick Railroad at foreclosure sale, deemed themselves sufficiently burdened when the State Board of Equalization levied upon that road about $4,500 for taxes for 1874, when the road was not operated because it could be operated only at a loss; and I fear it would have been very difficult to have persuaded those bondholders that, in the absence of statute to that effect, they were bound to continuously operate the road or make any repairs whatsoever upon it.

But, Mr. Editor, let us look at the subject as it relates to the relative rights of mortgagees and others. If default in interest payments occurs, the trustee may take possession, or a bondholder may ask the assistance of a court of equity. The claim that because no action is taken instanter is ground for maintaining that the mortgagee has yielded his rights, will not be sustained by facts. In the Chesapeake and Ohio case, no action was taken because the bondholders were overpersuaded by the company that, if only "let alone," interest payments would shortly be resumed, and interest also be paid on the deferred coupons. In your report of this case (Duncan v. Chesapeake and Ohio R. R. Co., 3 Cent. L. J. 579), I find no reference to this moving cause-moving to prevent action on the part of the bondholders, and for which non-action the court decided they must suffer. Other instances of a similar nature are numerous, resulting from the fact that bondholders are, as a rule, not anxious to become stockholders, but would prefer to forego prompt payment of interest, rather than begin foreclosure proceedings which would make them the legal owners of the property upon which they are more willing to be mortgage-lien holders, and so causing an involuntary change from bondholders to stockholders.

And if, as a mortgagee, the bondholder is bound to know that taxes, and, in certain states, other claims are prior to his claims, may not the question be asked: Is not the supply-man, or the laborer, bound to know that there is a mortgage on the property, and that he can claim payment for his goods or his labor only, subject to the prior liens created by statute and legal contract? The fact is, that the supply-man does not hesitate to add largely to his asking price, if he fears insolvency in his purchaser.

It does seem that, if both parties should rest their claims upon their exact rights, as given by statute and by contract, but few disputes could arise on this at present most troublesome question.

If the supply-man has pressed his goods upon a failing company, should he suffer no loss? But if, on the other hand, he has furnished supplies which were essentially necessary at the time, and from which continuous benefit may be derived, should he not be fully compensated? I believe that every one who furnishes material for a railroad which subsequently defaults should be compensated in proportion to the benefit the bondholders may receive from those supplies. In a case in which I am interested, it is proposed that the

bondholders shall pay for certain experiments from which they could receive no benefit whatsoever. I believe that the laborers should be paid in full, as a matter of justice; and this rule will prove the best one to follow, as a matter of policy.

I have for a long time been a student of the questions involved in the issue of receivers' certificates of indebtedness, both as to the power of the court to authorize their issue, and of the lien that may be given to secure them, and will probably shortly address you a communication upon that subject.

CHARLES W. HASSLER,

7 Wall St., New York.

NOTES OF RECENT DECISIONS.

BREACH OF PROMISE OF MARRIAGE-TIME-PROMISE BY MARRIED MAN. Stevenson v. Pettis. Philadelphia Court of Common Pleas; 34 Leg. Int. 176. Opinion by ELCOCK, J. 1. In the absence of a fixed time for the performance of a promise to marry, the law presumes it will be performed in a reasonable time. Citing Carver v. Smith, 15 M. & W., 189. 2. An action on the promise will lie against one who was married at the time of making it. This is a question of much interest, because it is argued that such a promise is impossible of performance, and is also void as against public policy. This doctrine received the sanction of such good authority as Chief Baron Pollock, in Millward v. Littlewood, 5 Exch. 773; but the majority of his court determined, under the case of Wild v. Harris, 7 C. B. 999, 18 L. I., C. P., p. 297, that the action could be sustained upon the promise of a married man. The authority for the doctrine originated under the case in Brooks' Abridgment, Tit. "Condition," fol. 152, p. 119, cited with approval in Fitz Nat. Brev., page 205, where a woman enfeoffed a man upon condition that he should marry her (he being a married man) within a reasonable time. The feoffee enfeoffed another person, and so through half a dozen persons. The man died, being then a married man, whereupon the original feoffress entered as for condition broken, and the court held that it was a lawful condition, for that the defendant's wife might have died within a reasonable time. Wilde, C. J., in the case of Wild v. Harris, citing this case, says: "The defendant can not be allowed to set up his own fraudulent concealment of his marriage in order to discharge himself from the responsibility attaching to his own promise, when the plaintiff has executed the consideration on her part by waiting a reasonable time unmarried, and being ready and willing to marry defendant, until she discovered that he was a married man." Baron Parke, in Millward v. Littlewood, said: "If she (the plaintiff) discovered on the day of the defendant's promise that he was a married man, I should nevertheless say that the consideration would be sufficient." This principle has been followed in Massachusetts, Tennessee and Illinois, in Kelly v. Reilly, 106 Mass. 339; Cooper v. Davenport, 1 Heisk. 368; Prescott v. Guyler, 32 Ill. 312. It is true a different ruling is found in New York, but there it is provided by the Revised Statutes that no second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person. There, however, an action for the fraud or deceit practiced in representing himself competent to marry will lie. Blauttacher v. Saal, 29 Barb. 22.

CONSOLIDATION OF RAILROAD CORPORATIONS— CONSTITUTIONAL LAW-POWER OF LEGISLATURE TO REPEAL CHARTER-TAXATION, ETC.--State of Maryland v. Northern Central R. R. Court of Ap

peals of Maryland. 4 Am. L. T. Rep. 230. To appear in 44 Md. Opinion by ROBINSON, J.: The Baltimore and Susquehanna Railroad Company was chartered by the Act of 1827, ch. 72, of Maryland, to construct a road from the City of Baltimore to the Susquehanna River. The charter was accepted, the company was organized, and the road constructed. The capital stock of the company was one million dollars, with power to increase it to two millions. By the 20th section of the act of incorporation, it was provided that the shares of the capital stock of the company should be deemed and considered personal estate, and should be exempt from the imposition of any tax or burden. By the Act of 1854, ch. 250, the stockholders of the Baltimore and Susquehanna Railroad Company were authorized to unite and consolidate their company or corporation with three other railroad companies, lying within the State of Pennsylvania, so as to form one corporation, to be called "The Northern Central Railway Company," on such terms and conditions, and conformably to such agreements and regulations, as the said several companies might respectively determine and adopt; subject however to the following among other conditions set forth in said act: That all laws made in reference to the Baltimore and Susquehanna Railroad Company, not repealed or modified by the legislature of Maryland, should be binding and operative upon the said consolidated company, so far as its property or operations might be within said state, and so far as said laws might be applicable to, and consistent with, the new organization of the said consolidated company; that the said consolidated company should have the power to establish its capital stock to an amount not exceeding eight millions of dollars; that the said company should possess all the corporate powers and privileges, and be subject to all the duties and obligations, not inconsistent with the act and its general intent, which were expressed in the charter granted to the Baltimore and Susquehanna Railroad Company and its supplements. In pursuance of this act, and corresponding acts of the legislature of Pennsylvania conferring authority on the three corporations of that state, articles of union and consolidation were executed, by which all the property, rights, privileges, and immunities belonging to the said several companies were transferred to, and became vested in, the body corporate formed by the consolidation. By section 47 of article 3 of the Constitution of 1850, the legislature could create no corporation by special act, except on condition that it should be subject to change, alteration, or repeal. The constitutions of 1864 and 1867, subsequently adopted, contained a similar provision. The Act of 1866, ch. 157, provided for the taxation of all property in the state, and repealed all laws exempting property from taxation. By the Act of 1870, ch. 362, it was provided "that all and every provision contained in the charter, or supplements thereto, of any railroad company incorporated by the laws of this state, or contained in any law heretofore passed by the legislature of this state, whereby the stock, or property, real or personal, of any railroad company

is exempted from taxation, be and the same is hereby repealed." The Act of 1872, ch. 234, provided "that a state tax of one half of one per centum be, and the same is hereby levied annually upon the gross receipts of all railroad companies worked by steam, incorporated by or under authority of the state, and doing business therein." In an action by the state to recover from the Northern Central Railway Company a tax of one half of one per cent., levied under the Act of 1872, ch. 234, on its gross receipts, for a part of the year 1872, and for the whole of 1873, from that part of its road lying within the State of Maryland, and which

formerly belonged to the Baltimore and Susquehanna Railroad Company, it was held: 1. That although the corporate rights and privileges formerly belonging to the Baltimore and Susquehanna Railroad Company were, by the express terms of the Act of 1854, ch. 250, vested in the consolidated company, and the provisions of the Act of 1827, ch. 72, incorporating the original company, were to that extent embodied in, and re-enacted by, the said Act of 1854, ch. 250, yet the rights and privileges thus conferred became new and special grants to the consolidated company, dating from the period when the said Act of 1854 went into operation. 2. The defendant was created a new corporation by virtue of the Act of 1854, and it was under that act alone that it derived all its franchises, rights, privileges, and immunities. 3. As the Constitution of 1850 was in force when the Act of 1854, under which the defendant was incorporated, went into effect, the legislature had the right to repeal or revoke the exemption from taxation claimed by the defendant under said act. 4. As the power to alter or repeal the charter of the defendant was reserved to the state, under the Constitution of 1850, as fully as if such reservation had been set forth in express terms in the act of incorporation, the right to exercise this power could not in any manner be affected by the adoption of the constitutions of 1864 and 1867. 5. The charter of the defendant must be construed as if the right to alter, amend, or repeal it had been reserved to the legislature, by the express language of the charter itself. 6. It was not within the power of the legislature, under the Constitution of the state, to grant to the defendant immunity from taxation, or any other corporate privilege, beyond the power of repeal or revocation by a subsequent legislature. 7. The provisions of the acts of 1866 (ch. 157), 1870 (ch. 362), and 1872 (ch. 234), were repugnant to and inconsistent with the exemption from taxation claimed by the defendant under the Act of 1854, and as these several acts could not stand together, the power must be considered as a repeal of the latter. It is unnecessary to review the many cases in which courts have considered how far, and under what circumstances, a subsequent general act will be held to operate as a repeal of a prior private act. As a general rule, it may be admitted that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous act, or unless there is a necessary inconsistency in the two acts. Where, however, the provisions of a general act are entirely inconsistent and irreconcilable with the provisions of a prior private act, the former must necessarily operate as a repeal of the latter, because it is impossible for the two acts to stand together. Great Central Gas Consumers' Co. v. Clarke, 103 E. C. L. 812, and 106 Ib. 837; Queen v. Champneys, 6 Com. Pleas, L. R. 393; Canal Company v. R. R. Company, 4 G. & J. 112; Mayor of Cumberland v. Magruder, 34 Md. 386. In such a case the intention of the legislature, that the latter act should repeal the former, appears by necessary implication. In re London & Eastern Banking Corporation, 4 Kay & J. 286; Thorpe v. Adams, 6 Com. Pleas, L. R. 123. 8. The tax imposed by the Act of 1872, ch. 234, upon the gross receipts of the defendant was a valid tax, and in nowise in conflict with article 15 of the Bill of Rights, which requires that all taxation laid on property should be uniform and equal.

THE Supreme Court of Illinois assembled for the June term, at Mt. Vernon, on Tuesday last, June 5th. The court selects every year at this term one of its members for Chief Justice, and as the custom is to make this selection in rotation, it will fall this year on Hon. John Scholfield. On the 7th, the examination of candidates for admission to the bar will be held.

RECENT LEGISLATION.

MISSOURI LEGISLATURE-SESSION OF 1877.

AN ACT to amend section 2 of chapter 164 of the General Statutes of the State of Missouri.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Section 2 of chapter 164 of the General Statutes of the State of Missouri is hereby amended to read as follows: Sec. 2. All railroad corporations that own or operate roads terminating opposite to any point in this state, and which have offices, or places of business in this state shall be sued in the same manner as railroad corporations chartered by this state. Approved April 17, 1877.

AN ACT to preserve the public peace by preventing the display of knives and other deadly weapons in the presence of one or more persons.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Whoever shall, in the presence of one or more persons, exhibit any kind of firearms, bowieknife, dirk, dagger, slung-shot, or other deadly weapon, in a rude, angry or threatening manner, not in the necessary defense of his person, family or property, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than ten nor more than five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.

Approved April 17th, 1877.

AN ACT to amend section 13 of chapter 115 of the General Statutes of 1865, and the act amendatory thereof entitled "Husband and Wife-Rights of Married Women," approved February 14th, 1868, and being section 13, chapter 94 of Wagner's Statutes.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Section 13 of chapter 115 of the General Statutes of 1865, and the act amendatory thereof, entitled "Husband and Wife-Rights of Married Woman," approved February 14th, 1868, and being section 13 of chapter 94 of Wagner's Statutes, be and the same is hereby amended so that said section shall read as follows: "Section 13. Any married woman of eighteen years of age and upwards, of sound mind, may devise her land tenements, or any descendable interest therein, or bequeath her personal property held in her own right, in possession or expectancy, by her last will and testament, executed according to the laws of this state; provided, that her devise of real estate shall not affect the estate of her husband therein by the courtesy."

Approved April 17th, 1877.

AN ACT to amend Chapter 201 of the General Statutes of Missouri, being article 3 of chapter 42 of Wagner's Missouri Statutes, entitled "Of Offenses against public and private property," by adding a new section thereto, to be known as section 69.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Chapter 201 of the General Statutes of Missouri, the same being article 3 of chapter 42 of Wagner's Missonri Statutes, is hereby amended by the addition of a new section thereto, to be known as section 69. Section 69. If any person shall knowingly, and with intent to deceive, furnish to any purchaser of stock a printed or written false pedigree of the same, whereby such purchaser shall be induced to buy said stock, the person so offending shall be deemed guilty of a misdemeanor, and on conviction thereof be pun

ished by a fine of not less than $25 nor more than $200, or by imprisonment in the county jail not less than three nor more than six months, or by both such fine and imprisonment.

SEC. 2. All acts or parts of acts, inconsistent with the provisions of this act, are hereby repealed. Approved April 14, 1877.

ILLINOIS LEGISLATURE-SESSION OF 1877. AN ACT to amend the law of real property.

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That when the reversion expectant on a lease, made either before or after the passing of this act, of any tenements, or hereditaments of any tenure, shall be surrendered or merged, the estate, which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent, and for the purpose of preserving such incidents to, and obligations on the same reversion, as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease. Approved April 13th, 1877.

AN ACT to amend section 6 of an act entitled "An Act to Revise the Laws in Relation to Marriages," approved February 27, 1874.

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That section 6 of an act entitled "An Act to Revise the Law in Relation to Marriages," be amended so as to read as follows:

SEC. 6. Persons intending to be joined in marriage shall, before their marriage, obtain a license from the County Clerk of the county where such marriage is to take place; anything in any general or special law of this state to the contrary notwithstanding.

SEC. 2. Whereas, there now exists in certain cities of this state, under their special charters, power in certain police courts therein, to issue marriage licenses, an emergency exists; therefore this act shall take effect and be in force from and after its passage. Approved May 11th, 1877.

AN ACT for the protection of passengers on railroads. SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the conductors of all railroad trains carrying passengers within this state shall be invested with police powers while on duty on their respective trains.

SEC. 2. When any passenger shall be guilty of disorderly conduct, or use of any obscene language, to the annoyance and vexation of passengers, or play any games of cards or chance for money or other valuable things, upon any railroad train, the conductor of such train is hereby authorized to stop his train at any place where such offense has been committed, and eject such passenger from the train, using only such force as may be necessary to accomplish such removal, and may command the assistance of the employees of the railroad company, or any of the passengers, to assist in such removal; but, before doing so, he shall tender to such passenger such proportion of the fare he has paid, as the distance he then is from the place to which he has paid his fare bears to the whole distance for which he has paid his fare.

SEC. 3. When any passenger shall be guilty of any crime or misdemeanor upon any passenger train, the conductor or employees of such train may arrest such passenger and take him before any justice of the peace in the county in which such crime or misdemeanor is

DOWER IN PARTNERSHIP ESTATE.- Property bought with partnership funds, and conveyed to partners, either by their iudividual names, or by the partnership name, is charged in their hands with a trust for the benefit of the creditors of the partnership, and is considered as part of the partnership stock, so far as is necessary for the payment of the debts of the partnership, and the widow of a partner is not endowed in such estate. Opinion by NORTON, J.-Willet v. Brown.

INDICTMENT-CERTAINTY IN PLEADING.-An indictment for murder, which charges that the deceased, by reason of the wounds inflicted, "did immediately languish, and languishing did die," is not a good indictment. It must state when the deceased died, and must allege the date "within a day and a year" from the date of the offense. Lester v. The State, 9 Mo. 666. Opinion by NORTON, J.- State v. Sides.

ACTION ON CONSTABLE'S BOND.-When a constable's return shows that he levied upon and sold goods on execution of the value of the plaintiff's judgment, prima facie, he and his securities are liable for the amount of the judgment (which is the measure of the damages), and plaintiff need not prove that the constable actually received the money. 50 Mo. 393; 57 Mo. 393. Opinion by NORTON, J.State to use of Kelly v. Cobb et al.

PRACTICE-NUNC PRO TUNC ENTRIES.-The power of courts to make entries nunc pro tunc extends only to orders which were actually made, of which some minute was preserved, but not to orders which never were made at all. Dunn v. Raley, 58 Mo. 134. Where, in a criminal case, the record shows that the jury retired to consider of their verdict, but fails to show any subsequent proceedings, the court can not take testimony to prove that the jury was discharged, being unable to agree, and make an entry of that fact at a subsequent term. The court holds that in such a case the jury was legally discharged by the expiration of the term, and such a discharge is no bar to a second trial for the same offense. Nothing except a verdict of acquittal is a bar to a second trial, and the law is clearly stated in the State Constitution, in the 23d section of the Bill of Rights. Opinion by NORTON, J.-State v. Jeffers.

CONTRACT PRICE.-Where plaintiffs and defendant made a contract for the sale and delivery of cattle at $22 50 per head, and there was a delay as to the delivery of 150 of them, and an allegation in the answer that, owing to such delay and the injury done the cattle, defendant refused to take them at the contract price, but did take them on a new contract at $15 per head; it was held, that the question whether there was a new contract at $15, and whether the 150 head were delivered under it, was a question of fact for the jury. Opinion by NORTON, J.-Wheeler v. Mabrey.

TRESPASS-TITLE.-An unrecorded mortgage is good against a judgment, if recorded before a sale under the judgment, and in an action of trespass brought before a justice of the peace and certified to the circuit court upon the defendant's plea of title to the locus in quo, the purchaser under the mortgage has a better title than the purchaser at the execution sale upon the judgment on and after the mortgage was made, but before it was recorded. Opinion by NORTON, J.-Shaw v. Padly.

PRINCIPAL AND AGENT-POWERS OF AGENTS.-An agent selling goods on commission has no power to settle a debt owing by himself with the goods of his principal, and substitute himself as the debtor of the principal in place of the purchaser of the goods; and the fact that the agent

GUARDIAN-CONVERSION OF TRUST FUNDS.-The taking of a note by a guardian payable to himself, for money be. longing to his ward, is at most but evidence tending to prove a conversion and does not amount in law to a conversion of the ward's estate, and an instruction of the court that such an act of the guardian amounted to a conversion was erroneous. There might be cases where it would be entirely harmless and proper to take such notes in the name of the guardian. Judgment reversed. Opinion by BIDDLE, J.-Richardson, Admr., etc., v. State ex rel. Crow.

DUTY OF JURY TO ANSWER INTERROGATORIES.-When interrogatories propounded to the jury are pertinent to the issues in the case, the jury are as much bound to answer them as they are to render a general verdict; and where such answers are indefinite and insufficient, it is the duty of the court to instruct the jury to answer them plainly and directly, unless they can not agree, and for such defects in the answers, the court should, on motion, grant a venire de novo. Judgment reversed. Opinion by BIDDLE, J.-Peters v. Lane et al.

RAILROADS-RIGHT TO ENFORCE REASONABLE REGULATIONS.-Railroad companies have the right to make reason. able rules and regulations for managing their trains, and passengers must comply with them. And where the rules of the company prohibited passengers from riding on freight trains without having first procured the prescribed order, ticket or pass, the conductor of the train had the right to eject a passenger from such train for failing to comply with the company's regulations in that respect. Judgment affirmed. Opinion by Biddle, J.-Falkner v. Ohio & Miss. R. R. Co.

EASEMENT BY PRESCRIPTION-Burden of PROOF.-To establish an easement in the lands of another by prescription, it must be shown to have been used for twenty years and to have been adverse, that is, under a claim of title with the knowledge and acquiescence of the owner of the land, and uninterrupted; and the burden of proving this is on the party claiming the easement. 2 Greenlf. Ev. Sec. 539; 9 Pick. 251. It will be presumed, unless the contrary is affirmatively shown, that the owner of the servient estate is free from disability. Ability is the rule and disability the exception, and he who alleges the exception must prove it. Judgment reversed. Opinion by NIBLACK, J.Palmer et al. v. Wright et al. •

FRAUDULENT REPRESENTATIONS-HARMLESS FRAUD.— Where suit is brought to rescind a contract for the sale of property on the ground of fraudulent representations made by the purchaser, it must be shown that the representations were such as were calculated to deceive a person of common prudence, that they were false and known to be so at the time by the party making them, that the person to whom they were made believed them to be true and relied upon them and was thereby induced to part with his property. A fraud by which no one is deceived is harmless in law. Judgment reversed. Opinion by BIDDLE, J.-Gregory v. Schornell.

TENANT FOR LIFE-REBUILDING PREMISES DESTROYED -WASTE.-A tenant for life is not bound to rebuild a barn which is destroyed by the act of God, and has no right to take timber from the estate to its injury, with which to rebuild, on the ground that the injury will be compensated by equal benefit. This would be to allow the tenant to