sell his patent, the other courts holding it to be a "marked discrimination against the traffic in patents, which can not fail seriously to prejudice the rights of patentees and their assignees." Hollida v. Hunt, supra.

The act, under penalty of heavy fine and imprisonment, requires every taker or buyer of such a note to insert on its face the words "given for a patent right." With these words in, the note is then subject, by this act, to all defenses that might exist between the original parties. This seems practically to deny the right of the patentee to sell his patent for a negotiable note. Every United States patent is, in law, such strong presumptive evidence of the value and novelty of the article patented, that, to overcome it, the proofs to the contrary must not merely preponderate. They must remove every reasonable doubt. Corning v. Burden, 15 How. 252; Seymour v. Osborne, 11 Wall. 516; Hawes v. Antisdel 80. G. 685, and cases there cited; Herring v. Nelson, 120. G. 756. So that notice that a note was given for a patent right, so far from being a warning, is ordinarily a guarantee as to the validity of the consideration. 5 Cent. L. J. 69; Sackett v. Kellar, 22 Ohio St. 554; Cranson v. Smith supra, and Miller v. Finley, 26 Mich. 249.

To make of the words "given for a patent "" a warning, as this act does, is to deprive the patentee of the advantage of a most valuable characteristic of his patent-that quality which makes it prima facie evidence of his title, and of the value of the invention. For this act obliges every purchaser of a patent-right note to assume that the patent is worthless, or, at least, to act upon such an assumption if he would himself be saved harmless.

Who would buy a note with the prescribed words on its face, if he had to encounter all the defenses that might exist between the original parties; if, before buying, he had to go to the trouble, expense and delay of inquiring what the patent was-whether the invention was new, or would work successfully, (inquiries which, in many if not most cases, would involve much outlay of time and money), and whether the original transaction was honest or not, and whether the promissor had a set-off against the original promisee?

But the court in Haskell v. Jones think that this can only affect invalid or worthless patents, not good patents. How so? The fact that the patent is good can only appear after investigation, and it is this very necessity of investigation that constitutes the objection, the impediment to selling. And more than that, though the patent be ever so valuable, the buyer of the note must still inquire whether there was fraud in the original sale; and if there was, the validity of the patent can not help matters. So, if there be a set-off. And again, this act denounces a penalty against all who omit the required words from the note. Therefore, though the patent be found good, the sale fair, and accounts all square between the patentee and the buyer of the patent, yet the fact that the property sold was a patent, (not a worthless patent, but a patent, good, bad, or indifferent), is sufficient to render the owner liable to fine and imprisonment.

To be sure, timely notice of any particular defence will render the purchaser liable to that defence, no matter what kind of property is involved. But does that imply the right of the state to say arbitrarily that the mere fact that the consideration in whole or in part was a patent right shall be notice that the property was worthless, or the owner a swindler, etc.? With reference to all other species of property, the usual statement of the consideration on the face of the note is not notice in law. 1 Daniels on Neg. Inst., § 797. And in Pennsylvania, where this act prevails, though the circumstances attending the sale of a note (for any other species of consideration) are so gravely suspicious as to make it gross negligence in one not to make inquiry, he is, nevertheless, not bound in law to make

such inquiry. Phelan v. Moss, 67 Penn. St. 59. Surely there is a difference made here of some kind, and it does not seem to us to be in favor of patent right property. But if the prescribed words are omitted in spite of this act, the court decides that the negotiability of the note is nowise affected. We do not understand this fact to be urged in favor of of the act itself. To argue the harmlessness of a law from the benefits that would follow its violation would be an unusual process of logic. For while the purchaser is saved harmless, provided the patentee commits a crime, what is to become of the patentee? and it is his rights, only, we are discussing now. Fine and imprisonment. Now to be fined and imprisoned for selling your property just as other folks may lawfully sell theirs-may not this be said to interfere with one's right to "sell or assign?" It must be so-whether the patent be good or not. For this act says to the patentee who wishes to sell for a promissory note: "Whether your patent be good or bad, you omit the prescribed words at your peril;" and to the purchaser of such a note: "If you take a note with these words in it, you do so at your peril, no matter whether the patent be good or bad."

DAYTON, O.

WM. RITCHIE.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1877.

TAXATION BY MUNICIPALITY OF ITS OWN BONDS. -Under the provisions of its charter, authorizing it to impose taxes upon property within its limits, the city of Charleston, S. C., by ordinance imposed a tax of two per cent. upon all property therein, and directed that the tax assessed upon the city stock, which represented the indebtedness of the city, should be deducted by the city treasurer out of the interest thereon. Held (reversing the decision of the court below, 22 Am. Rep. 14), that the ordinance as to such city stock was void, as in conflict with the provisions of the federal constitution forbidding state legislation impairing the obligation of a contract. Citing Brown v. Maryland, 12 Wheat. 419; Woodruff v. Parham, 8 Wall. 122; 15 id. 295. "In opposition to the conclusion we have reached, we are referred to Champaign County Bank v. Smith, 7 Ohio State, 42, and People v. Home Ins. Co., 29 Cal. 533, in which it is said the power of a state to tax its own bonds was sustained. We do not, however, regard those cases as in conflict with the opinion we now hold; and if they were they would not control our judgment when we are called upon to determine the meaning and extent of the federal constitution. In the former it appeared that the tax collected was in virtue of an assessment of state bonds belonging to the bank, but deposited with the auditor of state as security for the circulating notes of the company. The tax thus assessed having been carried into the duplicate, the collector seized and appropriated the bank notes and money of the bank, and suit was brought to recover the amount so taken. In sustaining a demurrer to the petition, the court held, it is true, that a state has power to tax its own bonds equally with other property, and that the exercise of such a power involves no violation of a contract. But it was not held that the state could collect the tax by withholding from the creditor any part of what the state had assumed to pay. The tax was laid, not upon the debt, but upon the creditor, and it was collected, not out of what the state owed, but out of the general property of the bank. Neither by the assessment nor in the collection was there any interference with the contract. In The People v. The Home Insurance Company, the question was whether bonds of the state-of

California, belonging to a New York insurance com pany, but deposited and kept in the state, were assessable for taxation there. It was ruled that they were. This case, no more than the former, meets the question we have before us. It certainly does not hold that a state or a city, by virtue of its taxing power, can convert its undertaking to pay a debt bearing six per cent. interest into one bearing only four. These are the only cases cited to us as directly sustaining the judgment we have now in view. How far short of sustaining it they are must be apparent. And we known of none that are more in point. It seems incredible that there can be any, for as was said in State Tax v. Pennsylvania, 15 Wall. 320, 'the law which requires the treasurer of the company (indebted) to retain five per cent. of the interest due to the non-resident bondholder is not * a legitimate exercise

of the taxing power. It is a law which interferes between the company and the bondholder, and under a pretense of levying a tax commands the company to withhold a portion of the stipulated interest and pay it over to the state. It is a law which thus impairs the obligation of the contract between the parties. The obligation of a contract depends upon its terms and the means which the law in existence at the time affords for its enforcement. A law which alters the terms of a contract by imposing new conditions, or dispensing with those expressed, is a law which impairs its obligation, for such a law * relieves the

parties from the moral duty of performing the original stipulations of the contract, and it prevents their legal enforcement.' What was thus said, it is true, was in a case where the question was whether a tax thus imposed upon a non-resident holder of bonds issued by a company chartered by the state was warranted by the constitution. But so far as it speaks of what constitutes impairing contract obligations it is applicable in its fullest extent to all legislation affecting contracts, no matter who may be the parties. We do not care now to enter upon the consideration of the question whether a state can tax a debt due by one of its citizens or municipalities to a non-resident creditor, nor whether it has any jurisdiction over such a creditor or over the credit he owns. Such a discussion is not necessary, and it may be doubtful whether the question is presented to us by this record. It is enough for the present case that we hold, as we do, that no municipality of a state can, by its own ordinances, under the guise of taxation, relieve itself from performing to the letter all that it has expressly promised to its creditors. -Murray v. City Council of Charleston. In error to the Supreme Court of North Carolina. Opinion by Mr. Justice STRONG. Judgment Reversed.

NOTES OF RECENT DECISIONS.

ATTORNEY AND CLIENT-CONTRACT FOR A SPECIFIC SUM FOR SERVICES-CLAIM TO CHANCELLOR'S ALLOWANCE.-Freeman v. Shreve. Supreme Court of Pennsylvania, 5 W. N. 244. Opinion by SHARSWOOD, C. J.-Where, in a contract between an attorney and his client, the attorney has accepted a special retainer to do all that is requisite in settling an estate for a fixed sum, the client is entitled to credit for whatever the attorney may receive under an order by a chancellor, in another state, granting a certain sum as solicitor's costs.

creditor agreed to receive a house at a fixed valuation in payment of a debt, but the debtor subsequently refused to convey the same: Held, that an action may be maintained against the debtor upon the original debt, and the plaintiff is entitled to recover the full amount of the original debt, and not simply the value of the house, which had depreciated.

PARTNERSHIP JOINT DEBTORS RELEASE OF ONE-EFFECT UPON RIGHT OF ACTION AGAINST THE OTHER-CONFLICT OF LAWS. Greenwald v. Kaster. Supreme Court of Pennsylvania, 5 W. N. 140. Opinion by TRUNKEY, J.-1. The rule of common law that the release of one copartner releases all, is inapplicable to cases where the clear intention of the releasors is to limit the effect of the release to one partner. 2. Where judgment is recovered in Pennsylvania against one partner alone for a firm debt contracted in that state, and subsequently a release of the other partner is executed in another state, the effect of such release upon the judgment is to be governed by the laws of Pennsylvania, and not by the laws of the state in which the release was executed. 3. A judgment was recovered in Pennsylvania by G against K upon a debt contracted in that state by the firm of K & E. Subsequently G executed in Indiana a release to E expressly reserving all rights against K. The common law rule that the release of one partner operates as a release of all was in force in Indiana Upon a feigned issue to determine the amount due upon the judgment against K: Held, that the effect of the release was to be determined by the laws of Pennsylvania, and that it therefore discharged K from liability only to the extent of one-half of the debt.

RAILROAD COMPANY CATTLE ON TRACK-DUTY OF COMPANY.-Witherell v. M. & S. P. R. R. Supreme Court of Minnesota, 2 N. W. Rep. 240. Opinion by BERRY, J. If domestic animals are on the track of a railroad by the fault of the owner, such owner takes all reasonable risks of injury to them from passing trains, and while the railroad company is not bound to presume that such animals will be on the track, they are not authorized to injure them willfully or carelessly, but are bound to use reasonable care to avoid injuring them. By the exercise of reasonable care, is meant the making of the same effort to avoid injuring an animal as a prudent man owning both train and cattle would make with proper regard for both. The foregoing rules laid down in Locke v. First Division St. P. & P. Railroad Company, 15 Minn. 350, approved with a comment and explanation to the effect that, considering that the owner of the cattle is at fault in suffering his cattle to go upon the track, and that the railroad company is engaged in the exercise of a lawful right, and in the discharge of a public or quasi, public act, and considering further the relative value and importance of a train and of the lives and limbs of the persons upon it as compared with the value of domestic animals, a proper regard for both train and cattle would make the duty to avoid injury to the train and those upon it primary and paramount to the duty of avoiding injury to the cattle.

SOME RECENT FOREIGN DECISIONS.

CHARTER-PARTY-CLASSIFICATION OF SHIP-WARRANTY.-French v. Newgass. English Court of Appeals, 26 W. R. 480. If a ship be described in a charter-party as being classed in a particular way, the description is not a warranty that she will continue to be so classed, or that she is rightly so classed.

VENDOR AND PURCHASER-SALE OF LAND-DEFICIENT ACREAGE-WARRANTY-ACTION FOR DAMAGES.-Clarke v. Roberts. Supreme Court of New Zealand, 3 N. Z. Jurist, pt. 4. An action at law for

damages does not lie against a vendor under an agreement to sell and convey a certain number of acres of land, more or less, where the number of acres delivered falls short of the number specified in the agreement. The purchaser can not take what the vendor has to give, and sue him at law for damages in respect of the deficiency. The proper remedy in such a case is in equity, by a suit for specific performance of the agreement, claiming compensation for the deficient acreage.

ILLEGAL ASSOCIATION-WINDING-UP ORDER-LIABILITY OF PAST MEMBER - Re ACQUIESCENCE. Queen Average Association. English High Court of Justice, Ch. Div. 26 W. R. 432. 1. A past member of an illegal marine insurance association held liable, by reason of acquiescence, to contribute toward the costs of a winding-up under an order of the court made and acted upon before the illegality was discovered, notwithstanding that, by reason of the policies issued by the association being void, he could not enforce payment of a sum claimed by him in respect of the loss of a ship. 2. Submission to treat a call as a set-off held equivalent, for the purpose of acquiescence in being placed on a list of contributors, to actual payment. 3. A person improperly placed on a list of contributories, who has submitted to a call in respect of costs of a winding-up under the order of the court, and has allowed his name to remain on the list for seven years, can not then come to the court to have it removed. In re Arthur Average Association, 23 W. R. 939, L. R. 10 Ch. 542, followed; In re London Marine Insurance Association, 17 W. R. 784, L. R. 8 Eq. 176, distinguished.

PRINCIPAL AND AGENT-FAILURE TO DELIVER SHARES OF STOCK - MEASURE OF, DAMAGES.-1. A principal who sells through an auctioneer or agent, is bound to all the obligations of a vendor, whether he is disclosed to the vendee at the time or not. 2. The measure of damages for failure to deliver shares of stock according to the terms of the contract of sale, is the highest market value of stock at any time between the sale and the commencement of the suit. Affirmed. Opinion by LEWIS, P. J.-Ashbrook v. Mechanics' Sav. Inst.

MECHANICS' LIEN-SUB-CONTRACTOR.-Where the sub-contractor accepts from the contractor a note which includes, not only the amount due for work upon the building upon which the sub-contractor claims a lien, but also sums due on other accounts, such a confusion of the lien demand with other matters, is a waiver of the lien. The owner of the building will not be subject by the courts to the burden of inquiry into the state of accounts between contractor and sub-contractor, and where the identity of the lien demand is lost, the specific remedy against the property given by the statute to mechanics, can not be enforced. Affirmed. Opinion by HAYDEN, J.-Schulenberg v. Robison. ATTORNEY AND CLIENT-BONA FIDE ASSIGNMENT. -Where an attorney made a contract to attend to certain definite, specific and urgent business arising out of criminal charges then pending, or which the prisoner anticipated would be brought against him in the city where he was confined, and also in another town, and the attorney, as a retainer for his services, took from the prisoner an assignment of certain valuable property of the prisoner, then in the hands of a third

person, and there was no evidence of any secret trust, collusion, or knowledge on the part of the attorney, of any claim against the prisoner or the property, and it did not appear that the property was an unreasonable compensation for the services rendered by the attorney: Held, that the assignment was good as against a subsequent attaching creditor of the prisoner. An attorney may always demand and receive a reasonable compensation before rendering services, and the payment will be valid, even in the case of an insolvent person contemplating bankruptcy. Affirmed. Opinion by BAKEWELL, J.-Reed v. Mellor.

PROCEEDINGS TO SET ASIDE CONVEYANCE-PARTIES-INSURANCE PREMIUMS-RIGHT OF CREDITORS. -1. The administrator is not a proper party to a proceeding to set aside a voluntary conveyance of his intestate. Such a bill should be filed by the creditors. It becomes a specific lien as soon as filed, and the creditor who first flles his bill has a priority. 2. Where a policy of insurance upon his own life was effected, for the benefit of his wife, and payable to her, by one solvent at the time, and who continued to pay the premiums for many years, still remaining solvent, if the insured person subsequently becomes insolvent, and continues to pay the premiums with money that ought to be applied to the payment of his debts: Held, in an action by the creditors after the death of the insured, to obtain the proceeds of the policy, that the creditors are entitled to receive from the proceeds, the premium paid by the deceased after he became insolvent with interest, and that the remainder goes to the beneficiary named in the policy. The subsequent insolvency of the husband does not make the policy the property of his creditors. 3. Under the law, the hus. band, though insolvent, may withdraw from his creditors, annually, $300, for the purpose of effecting and keeping up an insurance on his life for the benefit of his wife. 4. In determining whether a gift is in fraud of creditors, the question is, whether the donor was, in fact, solvent, and therefore able to make a gift; not whether he knew himself to be insolvent, and had an actual intention to defraud. Affirmed. Opinion by BAKEWELL, J.-Pullis v. Robinson.

CLERK OF COURT-RESPONSIBILITY FOR APPROVAL OF STAY-BOND.-Where the surety in a stay-bond makes the property affidavit provided in the statute, the approval of the bond by the clerk does not follow as a matter of course, but is required in addition thereto; such approval is a ministerial and not a judicial act, requiring merely the ascertainment of a fact, namely, the pecuniary responsibility of the surety offered, and in the performance of this duty the clerk is responsible for a failure to exercise reasonable care. Opinion by ADAMS, J.-Hubbard v. Switzer et al.

INJUNCTION-TRESPASS-LANE BETWEEN ADJOINING FARMS.-In an action to enjoin the defendant from erecting a fence across a lane which had been maintained by common consent, between the farms of plaintiff and defendant for several years, partly upon the land of each; Held, that the action of defendant in building a fence upon that portion of the land owned by plaintiff would be a trespass, and that an injunction restraining him from so doing was properly granted. Opinion by SEEVERS, J.-Grant v. Crow.

HIGHWAY-MISTAKE AS TO LOCATION-RIGHT OF ADJOINING LAND-OWNER.-Where a highway was established upon a section line, but by mistake the road as fenced and traveled by the public for many years, was upon one side of the established line: Held, that the title of the owner of the land upon which the road as traveled was situated, was not divested by such adverse use, but that upon the true line being ascertained he had the right to remove his fence to the line of the highway as located. Opinion by ADAMS, J.-State v. Schilb.

FRAUDULENT REPRESENTATIONS-WHEN ACTIONABLE-WHAT CONSTITUTES INSOLVENCY.-1. Fraudulent representations as to the solvency of another, to be actionable, must have been made with a knowledge of their untruth, or the party making them must have assumed, or intended to convey the impression that he had knowledge of their truth; such an action can not be supported by evidence that the defendant had no reasonable grounds for believing his statements to be true at the time they were made. 2. Insolvency is the inability to pay just debts; a debtor may be solvent, and yet have no property subject to execution. Opinion by DAY, J. McKown v. Furgason.

ACCOUNT-EFFECT OF OFFER TO CONFESS JUDGMENT.-In an action on account, where the plaintiff set out the account between himself and the defendant, consisting of both debits and credits, the defendant offered to confess judgment for an amount which the plaintiff refused to accept. On the trial defendant set up, by way of counter-claim, further items of account against the plaintiff, a part of which were allowed, reducing the verdict for the plaintiff below the amount for which the defendant offered to confess judgment. Held, that all costs accruing after the offer to confess judgment was made, should be taxed to the plaintiff; that such offer had reference, not to the account set out in the petition of plaintiff alone, but in legal effect was for a general balance in favor of plaintiff on all matters of account between the parties, and its acceptance would have barred an action upon the counter-claim. Opinion by DAY, J.-Manning v. Irish.

DESTROYED PROMISSORY NOTE-PLEADING-ANSWER.-1. An action may be sustained on a destroyed promissory note, and where a copy of the note is given with or made part of the petition, the destruction of the note need not be averred in the petition. 2. In an action on a promissory note, where the petition is in the form prescribed in section 122 of the code, whether the plaintiff be an original party to the note or not, the intrinsic facts, which show his right or title to the note, need not be expressly averred. The allegation of title is implied, by force of the statute, in the statement that there is due to him a specific amount on the note which he claims. 3. An answer to such petition, which merely states that when the action was brought the note was not in existence, can not be regarded as a denial of the allegations of the petition, nor as containing any defense to the action. Opinion by DAY, J.-Sargent v. Steub. & Ind. R. R.

REMOVAL OF CAUSES-PRACTICE.-1. The several rulings in the case of The Baltimore & Ohio Railroad Company v. Cary (28 O. St., 208) are re-affirmed. 2. Where, in an action pending in a state court, the pe

tition of the defendant for the transfer of the case to a circuit court of the United States is improperly overruled, such defendant is not bound, in order to preserve his right of removal, to disregard the overruling of his application, and proceed to perfect the transfer of the case; but may, without abandoning such right, remain in the state court, and prevent, if possible, the prejudicial effect of its erroneous ruling, by all the means authorized by the laws of the state. Judgment of district court and of common pleas reversed, and cause remanded to the court of common pleas for transfer to the proper Circuit Court of the United States. Opinion by SCOTT, J.; Johnson, C. J. and Ashburn, J., dissenting.-Erie R. R. Co. v. Stringer.

CRIMINAL LAW-INTENT.-1. Where one does an act apparently in violation of a criminal statute, but, in fact, under circumstances that tend to show a want of guilty intention, the excusing circumstances may be given in evidence on the trial, to show his good faith in the transaction where that is a material element, or that he was ignorant of the facts that would make his acts criminal. 2. A person indicted for selling intoxicating liquors in violation of the provisions of sec. 1 of the act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio, may, on the trial, show that at the time he bought the article alleged in the indictment to be intoxicating liquor, it was represented to him to be free from alcoholic properties-that he bought it with the understanding and believing that it was not intoxicating liquor, and sold it with such understanding and belief. Judgment reversed. Opinion by ASHBURN, J.; Scott, J., dissenting.-Farrell v. State.

CORPORATION-FORFEITURE OF FRANCHISE.-1. A corporation may forfeit its charter through neglect or abuse of its franchises; but a forfeiture is not allowed, except under express limitations of the charter, unless a plain abuse or neglect of power, by which the corporation fails to fulfill the design of its creation, is shown. 2. Where charter for a college was granted, and the object of the corporation, as evinced by leg. islative acts in regard to the institution, was to create 66 an institution of learning," in which there should be "a professorship of agriculture," but the general course of instruction was to be controlled by the trustees: Held, that so long as the trustees maintain under the charter an institution of learning, with a professor of agriculture and other competent instructors for a preparatory and liberal elective course of classical, scientific and agricultural education, and the general design of the Institution is being faithfully accomplished by them to the best of their ability, the franchise to be a corporation will not be regarded as forfeited to the State, merely because of a partial decay of the agricultural department, caused by students refusing to take that special course of instruction. Judgment for defendant. Opinion by DAY, J.-State v. Ohio College.

sible. The cases where the declarations of one in possession of land are permitted to be proved, in a suit to which one who subsequently succeeds to his right is a party, are considered in Cook v. Knowles, Jan. Term, 1878, 6 Cent. L. J., p. 176; in general, such declarations can only be received in disparagement, not in support of the party's title. Mere possession of chattels by an agent can not empower him to admit away the title of his principal. 2. There was also some evidence that the agent spoke of the machine as "bis machine" in the presence of plaintiff and of defendant, without contradiction from the former. Held, that the doctrine of estoppel does not apply. The agent's remark was nothing more than a casual one, such as an agent in posession of property might naturally make without purposing to assert title in himself. The owner was not bound to put defendant on his guard, for the latter was not dealing with the property, or proposing to do so. Grayden v. Church, 7 Mich. 36; Vinton v. Peck, 14 Mich. 287; Truesdail v. Ward, 24 Mich. 117; Traun v. Keifer, 31 Ala. 136; Bragg v. Boston, etc. R. R. Co., 9 Allen, 54; McDermott v. Barnum, 16 Mo. 114. Opinion by COOLEY, J.-Michigan Panelling Machine & Mnfg. Co. v. Parsell.

INSURANCE-DELIVERY OF POLICY BEFORE PREMIUM PAID FALSE STATEMENT OF OWNERSHIPINSURABLE INTEREST AND DOCTRINE OF WAIVER. -Held, 1, that where an insurance agent though unauthorized to give credit, delivers a policy before premium paid, it is too late for the insurers, after he has accounted to them for the premium, to object to the insurance on the score of the credit. 2. That where, under a policy requiring the insured to state whether any other person had an interest in the insured property, and conditioned to be void for concealment, the insured, who, as to one article, had only an equitable claim to the extent of half its value, procured insurance upon it for a sum exceeding his interest, and without disclosing the interest of the vendor, who by contract of sale was to retain the legal ownership, his failure to state the facts was fatal to this portion of the insurance. Kibbie v. Hamilton F. Ins. Co., 11 Gray, 163; Clay F. & M. Ins. Co. v. Huron S. & L. Co., 31 Mich. 346. 3. That where a policy covers certain articles which prove to belong not to the insured but to his wife, there can be no recovery on a showing that the real facts were disclosed to the agent. The insured must have an insurable interest, so that there is no room for waiver. Peoria F. & M. Ins. Co. v. Hall, 12 Mich. 202. Opinion by COOLEY, J.-Agricultural Ins. Co. v. Montague.

INJURY FROM RAILROAD ACCIDENT-SPEED OF TRAINS-DEFECTS IN TRACK-STATEMENTS OF PAIN -PASSENGER CARRIERS' LIABILITY-WANT OF CARE IN MANUFACTURERS OF CARS.-Plaintiff sued for personal injuries caused by a passenger car, being thrown from the track by the breaking of a defective axle, and upset. Held, 1. That an increase over the ordinary speed of trains is not necessarily evidence of danger or of negligence. Before the case should be allowed to go to the jury on such a point, the testimony should at least show approximately what the real rate was, and that it was faster than safety warranted. The liability of common observers to be deceived as to the rate of speed of heavy trains, renders it necessary to guard against vague testimony. Opinions on relative speed, without some standard of rapidity, are of no value by themselves, and opinions of persons riding in the cars should be excluded,unless the witnesses first show sucq extended observation and experience as to qualify them for forming reliable opinions. 2. That no defects in the track are admissible in evidence to show negligence contributing to the accident, except those existing where, and at the time when, the track was injured or displaced. 3. That while statements of pain and its

locality are exceptions to the rule excluding hearsay evidence, yet they are admissible only when they are the natural and ordinary expressions of suffering, made under circumstances free from suspicion. Such is not the case where the physician testifying is not called in to give medical treatment, but to aid in making up medical testimony. Stockton v. Williams, Walk., ch. 120: 1 Doug. (Mich.) 546, (citing the Berkley Peerage case, 4 Campb. 401); Richards v. Bassett, 10 B. & C. 657; Doe d. Tilman v. Tarver, 10 R. & M. 141; Monkton v. Adj. Gen., 2 Russ. & Myl. 160; Whitlocke v. Baker, 13 Ves. 514. 4. That whether the condition of a road is such as to warrant fast travel, is not a question which usually belongs to ordinary witnesses. The road, if in such a condition as would be regarded as safe by railroad men of usual intelligence and experience, could not be complained of for any possible deficiencies which would not be regarded by competent persons as existing. 5. That an instruction that no diligence or care in the railroad company could exempt them from want of care in the manufacturers of the cars and axles, is erroneous. Carriers of freight are liable not for negligence, but on their undertaking to insure safe carriage and delivery. Passenger carriers are liable only for actua negligence of themselves or their servants. The manufacturers are not supposed by law to be the agents of the railroad companies; and if the latter in buying, make such inspection as is reasonable and practicable, and discover no defects, they do all that is incumbent upon them. They are not held to a warranty of their carriages. M. C. R. R. v. Coleman, 28 Mich. 440; G. R. & I. R. R. v. Judson, 34 Mich. 506; Ft. Wayne, J. & S. R. R. v. Gildersleeve, 33 Mich. 133; M. C. R. R. v. Dolan, 32 Mich. 510; Richardson v. Great Eastern Railway Co. L. R. 1 C. P. Div., (Court of Appeals). Judgment for plaintiff reversed, and new trial granted. Opinion by CAMPBELL, C. J.-Grand Rapids and Indiana R. R. Co. v. Huntley.

DEED OF ASSIGNMENT-DELIVERY BY PLACING IN POST-OFFICE.-S, a resident of this state, and a creditor of W, who resided in the state of Missouri, prepared and sent to W for execution, a deed of assignment to himself, in trust, of all the debtor's property, real and personal, situate in this state, "for the bencfit of all his creditors under the insolvent laws of Ohio," which deed W duly executed and placed in a post-office in the state of Missouri and addressed to S in the state of Ohio, who received the same by due course of mail, and immediately entered upon the execution of the trust. Held, that the assignment was complete and effectual to pass title to the assignee from the time the deed was placed in the post-office, as against subsequent attaching creditors. Judgment affirmed. Opinion by MCILVAINE, J.-Johnson v. Sharp.

REQUISITION FOR FUGITIVE FROM ANOTHER STATE -HABEAS CORPUS.-1. If the governor of one state make a requisition on the governor of another state for the surrender of a fugitive from justice, and the case is shown to be within the provisions of the Constitution of the United States and the act of Congress on the subject, no discretion is vested in the latter governor, but it is his imperative duty to issue his warrant of extradition. 2. If a warrant for the surrender of a fugitive from justice is obtained in a case in which