Norcross, 53 Me. 169; Lush v. Bellote, 22 Minu. 468; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; 1 Smith Lead. Cas. 412; Story Bailm., § 477; Jalie v. Cardinal, 35 Wis. 128; 2 Pars. Cont. 150, 152. And see Hall v. Pike, 100 Mass. 495. In the case at bar plaintiff was not, when he stopped with defendant, a resident of the place. For aught that appears he may have had a permanent home elsewhere, though he came in search of work. When he first stopped at defendant's house he left his valise in charge of the clerk, who a day or two afterward took it to plaintiff's room, assuring him it would be safe. After a few days he obtained work, but for what time does not appear. Nor does it appear that he engaged board for any definite time. The defendant testifies that the plaintiff applied for board upon the understanding that his son would pay for it, and that his son's consent to the arrangement was subsequently obtained by letter, but whether before or after defendant left does not ap pear. His testimony tends very strongly to prove that plaintiff was merely a boarder when he lost his goods, but upon all the evidence we do not find the case so clear as to warrant us in holding, contrary to the finding of the trial court, that he had ceased to be a guest while he was there, or that there was no question in the case for a jury. Minn. Sup. Ct., Feb. 11, 1887. Ross v. Mellin. Opinion by Vanderburgh, J.

LIBEL AND SLANDER EVIDENCE EXEMPLARY DAMAGES.-In an action for slander evidence of the pecuniary condition of the plaintiff for the purpose of increasing vindictive damages is inadmissible. In a certain class of cases, slander among them, where the offense is marked by malice, oppression, or gross and willful wrong, the jury may give damages, not simply to compensate the party injured, but vindictive damages to punish the wrong-doer, and to that end it may be competent to show the pecuniary condition of the defendant, as it was held in Adcock v. Marsh, 8 Ired. 360. If the purpose is to punish the defendant, it will at once occur to every intelligent mind that his pecuniary condition is a matter properly to be considered by the jury in determining the punishment. A verdict for a large sum rendered against a man of large wealth would be a less punishment than a verdict for a small sum against a poor man; but we are unable to see how the punishment of the defendant can be determined by the pecuniary condition of the plaintiff. The plaintiff is entitled to a verdict for all the actual damages sustained by him, without reference to the pecuniary condition of himself or the defendant; and if the conduct of the defendant has been such as to warrant vindictive damages, the jury may add to the actual damages by giving such additional sum, by way of punishment to the defendant, as they may deem just; and for the purpose of ascertaining this, there is good reason why they should know the pecuniary coudition of the defendant, but none why they should know or consider the pecuniary condition of the plaintiff, unless it can be made to appear that an equal amount of damages, if paid to one man, would be a greater or less punishment than if paid to another. There was a time when the slander of the great and rich was held to be a more aggravated offense, and meriting greater punishment, than the slander of the humble and the poor; but in this day and country there is no such thing as "scandalum magnatum" on the one side, nor is there, on the other, any law that discriminates in favor of or against the poor man simply because he is poor. In meting out punishment, whether in imposing fines and penalties on the criminal side of the docket, or giving punitive and exemplary damages for malicious wrongs to individuals in criminal actions, it is necessary to know the pecuniary circumstances of the defendant, because

a small fine or slight damages might be a heavier punishment to a man of small means than a heavy fine or damages would be to a man of wealth; but whether the fine or damages go to a poor man or to a rich man, the punishment is the same to the party who has it to pay. The question is discussed at great length in the note to the case of Rowe v. Moses, 67 Am. Dec. 560, cited by counsel for plaintiff. While the decisious are both ways, it seems pretty well settled, both by the weight of authority and by reason, that in proper cases for vindictive damages the pecuniary condition of the defendant may be given in evidence; but it is there said: "The pecuniary circumstances of the plaintiff are admitted in evidence much less often than those of the defendant." And the cases relied on are nearly, if not all, for injuries to the person; and it is said that the evidence is usually admitted, if at all, on the ground that the pecuniary circumstances of the plaintiff are directly involved in estimating the damages caused by the tortious act, the poverty of the plaintiff making the injury the greater;" as for instance, when by an assault and battery, or the gross negligence of the defendants, he has been so crippled and disabled as to be unable to work, and in such cases he may show the nature of his business, and the value of his personal services, the loss of which may be more disastrous to a poor man than to one of wealth; and these may properly come under the head of actual or special damages; and nearly all the cases cited by the counsel for the plaintiff, and which are referred to in Rowe v. Moses, supra, are of this class. In Ware v. Cartledge, 60 Am. Dec. 489, the pecuniary circumstances of the plaintiff were held to be inadmissible in an action for slander. In Clements v. Maloney, 55 Mo. 352, and Shute v. Barrett, 7 Pick. 82, referred to in a note to Rowe v. Moses, it was held differently. N. C. Sup. Ct., March 3, 1887. Reeves v. Winn. Opinion by Davis, J.

LIEN FOR LABOR-CLAIM NOT FILED-PURCHASER WITHOUT NOTICE.-A statutory lien for work and labor done in converting logs into shingles will not be enforced against a bona fide purchaser of the shingles without notice either actual or constructive, who has purchased before the filing of the claim for such lien. It is evident that the question in this case has been presented to this court for the first time, and it is not without difficulty. The language of section 3329, Rev. Stat., in respect to such a lien, is "which shall take precedence of all other claims or liens thereon." The natural interpretation of this language would seem to be, "all other existing claims or liens thereon." Jessup v. Stone, 13 Wis. 467. But however that may be, it is certainly not broad or specific enough to embrace the claim of a subsequent bona fide purchaser for value, in the usual course of trade, without notice. The language would have to be forced beyond its natural meaning to embrace such a case; and we do not think that the Legislature intended such a meaning, for it has omitted the use of language to express it as against the well-known policy of the law governing the transfer of personal property, for the protection of bona fide purchasers, in an open market for value, without notice of prior claims thereon. This cardinal principle is as well expressed by Mr. Justice Lyon in Andrew's Ex'rs v. Jenkins, 39 Wis. 176, as anywhere else: "It is too well settled to admit of argument or doubt that if the general owner of personal property, having possession thereof, sell and deliver to a person who has no notice, actual or constructive, that the property is incumbered, but who purchases it in good faith for value, such purchaser will hold the property discharged of any prior incumbrance. The defendant purchased the logs in controversy in the market, and paid for them the market

price, without notice, either actual or constructive, that Andrews had or claimed any lien upon or interest in them." The paramount importance and incalculable value of personal property in these modern times make its ready and easy transfer from hand to hand, and the protection of bona fide purchasers thereof, absolutely essential to our modern systems of trade and commerce. Secret trusts, liens and incumbrances, and unknown and concealed claims and interests, in and upon personal property, and especially that kind of personal property that enters so largely into the general commerce of a country, would, if enforced by law, work the greatest injustice, and be utterly destructive of the greatest financial interest that any country can have. As said in Webb v. Sharp, 13 Wall. 14, in respect to the claim of a subsequent purchaser without notice of the landlord's lien : “Goods sold in the ordinary course of trade undoubtedly become discharged from the lien. Otherwise business could not be safely carried on.' The same ruling in Fowler v. Rapley, 15 Wall. 328, and Beall v. White, 96 U. S. 386. Logs, timber, lumber, including boards, shingle and lath, constitute most valuable and important articles of our trade aud commerce, and are readily and necessarily and almost constantly being transferred and sold, in wholesale and retail, in open market, and carried and scattered over vast distances by land and water. This interest and trade are too vast and important to be clogged, impeded and incumbered by secret liens, following them into all the distant markets of the land, to be enforced in violation of such a cardinal principle to facilitate and protect the sale of personal property. The laborer, while he is working upon the logs, timber, or lumber, is protected by the notice inherent in this very act in connection with the article itself, equivalent to possession of it, as in common-law liens. After he has completed his labor upon it, he can at once file his claim, and his protection will continue. It is not necessary that he should delay his remedy until the article has been removed and gone into the markets of the country, and into the hands of many subsequent purchasers for value and in good faith, without any notice whatever of his claim. The proper meaning of the statute would seem to mean that the laborer has a statutory lien for the value of his labor upon the logs or lumber from the time of its commencement. But it is a lien that he must claim in the way provided for, or he will be held to have waived it. He has a lien no doubt against all the world having actual or constructive notice of it. This would be consistent with the language: "No debt or demand for such labor or services shall remain such lien unless a claim therefor in writing shall be made," etc. This language is the only argument that the lien so attaches from the time of the labor or service as against subsequent purchasers without notice. In all the cases, where the statute does not thus recognize the lien before filing the claim, the decisions are uniform, and it is admitted that such lien does not exist until the filing of the claim or petition. Kruse v. Thompson, 26 Minn. 424; Payne v. Wilson, 74 N. Y. 348. If this peculiar language of our statute can have force without violating the great principle and clear public policy of the law that protects bona fide purchasers in the usual course of trade for value, without notice of the lien, then such should be its construction. If one purchase, before the filing of the claim, with notice that a certain person has worked upon the article to produce it, and the time has not expired for the filing of his claim, it would seem proper that he should take notice of such a laborer's lien upon it. Or if he had been informed that a lien existed, or had such knowledge as to put him on inquiry of it, and be bound to

so inquire, he could scarcely be called a bona fide purchaser without notice. In this way the laborer can have ample protection of his lien, without any infraction of, or violent exception to the general law which protects subsequent bona fide purchasers without notice. Until the Legislature has seen fit to declare in explicit language that the laborer in such cases shall have a lien paramount to the claim of such purchasers, upon a full consideration of the gravity of such an innovation upon the general law of the land, made to facilitate and protect bona fide sales of personal property in the open market for value, and without notice of such a secret lien upon it, we think this should be the interpretation of the statute. The Supreme Court of Michigan, under precisely the same statute as ours in this respect, held in Boom Co. v. Sanborn, 36 Mich. 358, and subsequently in Haifley v. Haines, 37 id. 538, that such a lien, until the claim therefor had been filed, did not exist as against a subsequent purchaser of the logs in good faith and without notice. I should have done better to have quoted the reasons given in these cases for so holding than to have attempted originality, and may be permitted to quote briefly therefrom in addition to what has already been quite tediously expressed. The court said: "It is plain that justice and policy, as well as precedent, require a rigid construction of this statute, to hinder its operation, so far as may be, against valuable rights, and especially where a contrary view would imperil the rights and interests of innocent third parties." Wis. Sup. Ct., Feb. 1, 1887. Smith v. Shell Lake Lumber Co. Taylor, J., dissenting.

MUNICIPAL CORPORATION FIRE ORDINANCE BUILDING PERMIT.- A city ordinance framed under statute 1872, chapter 243, providing that no person shall erect, alter or rebuild, or essentially change any building or any part thereof, for any purpose other than a dwelling-house, without first obtaining in writing a permit from the board of aldermen," and that "the application for such permit shall specify the location and size of the building, the material of which it is to be constructed, and the use for which it is intended," is broader in its scope than the statute, and cannot be justified as a reasonable exercise of the authority conferred by the statute. The statute authorizes a city to pass such ordinances regulating the construction, materials and use of buildings as are reasonable and necessary "for the prevention of fire and preservation of life." The ordinances of Newton are much broarder in their scope, and reach much further in their purposes. The first section does not contain any regulations to guide the land-owner in the construction or alteration of a building upon his land; it broadly prohibits any erection or alteration of a building other than a dwelling-house in any part of the city, unless the land-owner first obtains a written permit from the board of aldermen. It does not merely forbid the erection of any building which is hazardous, or which exposes other property or persons to danger. It does not require the board of aldermen to adjudicate and determine that it is necessary to prohibit any proposed building for the purpose of securing the prevention of fire or the preservation of life. On the contrary, it gives them the power, by refusing a permit, to prevent the erection of any building except a dwelling-house for any reason which may be satisfactory to them. Under the ordinance they may refuse a permit because in their opinion it is desirable that certain parts of the city shall be used only for handsome dwelling-houses, and that all buildings for the purpose of trade should be excluded, though in no sense dangerous. Whatever may have been the intention of its framers, the ordinance is broader than the statute in its scope, and cannot be justified as a

reasonable exercise of the authority conferred by the statute. We are inclined to think that the second section is open to the same objections. It is too broad and loose in its provisions. Under it, if literally construed, a man could not heat his house, as this use would render it "liable to be destroyed by fire." If the object was to provide that buildings should not be used for any specially hazardous or dangerous purpose, the ordinance should say so. It should lay down some rules to guide the citizen in the use of his property, so that he may protect himself from exposure to a heavy penalty without any notice to him. Both sections are rather in the nature of general laws, than of regulations, as to the construction and use of buildings to guard against fire. But we need not consider the question of the validity of the second section, as this bill is to enjoin the defendants from erecting a building, and depends upon the validity of the first section. For the reasons we have stated, we are of opinion that the first section is invalid. It exceeds the powers couferred upon the city by the Legislature, and imposes unauthorized restrictions upon the right of the citizen to the use of his property. Mass. Sup. Jud. Ct., Feb. 24, 1887. Newton v. Belger. Opinion by Morton, C. J.

-FIRE ORDINANCE

CONSTITUTIONAL LAW.Section 40 of an ordinance of the city and county of San Francisco, entitled "An ordinance to define the fire limits of the city and county of San Francisco, and making regulations concerning the erection and use of buildings in said city and county," providing that "no wooden building within the fire limits shall be altered, changed, or repaired without permission in writing signed by a majority of the fire wardens, approved by a majority of the committee on fire department and the mayor," is not in contravention of the fourteenth amendment to the Federal constitution. It has become the settled law that a State, and under our system a municipality of the State,- in order to protect the property of all its citizens from the ravages of fire, may establish fire limits, and regulate or prevent the use of wooden buildings within such limits; and that although this may disturb the enjoyment of the rights of an individual, he is, in contemplation of law, compensated by sharing the general benefits derived from it. Tied. Lim. Police Powers, § 122e, and cases cited. There would therefore be no doubt as to the validity of the section of the ordinance under review if it were not for the provision that certain officers may grant permission to make repairs. It is clear however that a literal compliance with a regulation prohibiting the repairing of a wooden building might work, in some instances, useless hardships. The repair of a leaking roof or broken window would be necessary to the comfort and health of a family, without enhancing the danger which the framers of the ordinance sought to provide against; and repairs of a more extensive character might be made to particular houses, standing in particular localities, without increasing the fire risks. And it is equally clear that no general rule could be established beforehand that would meet the emergencies of individual cases. Therefore the power to give relief in particular instances is conferred on certain officers; and it is not to be presumed that they will exercise it wantonly, or for purposes of profit or oppression. Neither is the granting of permissions in particular instances to be considered as the taking away of any rights from those to whom such permissions are not given. The latter would be in no better position if such permissions were given to none, or if there was no power to give them at all. It is difficult to determine, in many cases, whether or not there has been an unwarranted delegation of powers by the legislative bodies of municipal governments. But powers similar in character to those conferred upon the officers named in the section of the ordinance

under discussion have been so often upheld that their validity seems to be established. Cases in point decided by this court are Ex parte Moynier, 65 Cal. 33; Ex parte Casinello, 62 id. 538; Ex parte Frazer, 54 id. 94, and in other States, Vanderbilt v. Adams, 7 Cow. 351. In re Nightingale, 11 Pick. 168; Whitten v. Mayor of Covington, 43 Ga. 421; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 id. 703; Yick Wo v. Hopkins, 118 id. 356, distinguished. Cal. Sup. Ct., March 7, 1887. Ex parte Fiske. Opinion by McFarland, J.

INJURY TO BUSINESS BY NEGLECTING TO REPAIR STREET.- The plaintiff is the proprietor of an inn at Chestnut Hill, fronting on the main road, on Germanton avenue, at which a large and prosperous business has been carried on for a long time. Germantown avenue was a turnpike road for many years, and while such was kept in reasonably good condition. The city took the road in 1874, and since that time until this suit was brought said street has been neglected by the city authorities to a degree that rendered travel upon it exceedingly inconvenient, if not dangerous. The plaintiff alleges, and the referee finds, that in consequence of the ill condition of the road, her business fell off to a considerable extent, and the profits of her inn were correspondingly diminished. The learned referee finds, that although the evidence establishes the duty of defendant to keep the street in repair, and that the defendant has neglected to perform that duty, and that consequential damages have been suffered by the plaintiff as the result of that negligence. She has no right to maintain this private action. This finding raises the pivotal question in the cause. It is one of very considerable public importance; being substantially whether a municipal corporation, charged with the duty of keeping the highways in repair, is liable to the owner or occupier of property fronting thereon for the loss to his business resulting from the neglect of such duty. The referee does not find that access was cut off from plaintiff's property, nor that the highway aforesaid was impassable. It was however in such bad condition that travel sought other ways when practicable. It was decided by this court in Com. v. City of Philadelphia, 11 Week. Notes Cas. 485, that the authorities of the said city, after taking possession of the turnpike road, were not bound to keep it up as a macadamized road; that it was required only to keep it in fit condition for ordinary travel, the same as other country roads. One who is injured by a public nuisance, either in his person or in his property, cannot have his remedy by action unless he can show a damage which is peculiar to himself, and different in kind and degree from and beyond that which is sustained by the general public. The injury was one common to all persons who travelled on the road, and who resided thereon. The annoyance and inconvenience to some may have been much greater than to others, but it was of the same kind, and differed only in degree. It is significant that no Pennsylvania case has been called to our attention, nor am I aware of any, in which a recovery has been sustained under similar circumstances. The authorities cited for plaintiff, though numerous, do not meet the case. A large number of them were instances in which a traveller had been injured as a consequence of a neglect to keep the highways in repair. No one doubts that a traveller so injured has his remedy against the defaulting municipality, for the obvious reason that he has sustained a special injury not common to others. The principle has been settled by hundreds of decisions in this State and elsewhere. Nor must we be misled by cases referring to business or trading corporations. They differ from municipal corporations in this, that the former are organized for private purposes and for gain, while municipal corporations are

organized solely for the general good of the people. When a duty is imposed upon a municipal corporation | for the benefit of the public, no consideration or benefit is received by such municipality, as in the case of a trading corporation; hence no implication arises of liability to the individual citizen for any injury which he has suffered in common with other citizens resulting from a neglect of such duty. To sustain a contrary doctrine would be disastrous to municipalities, and consequently to the general public. If we once throw open the door to a recovery in such cases, how are we to measure the extent to which a public highway may be out of repair to entitle owners of property abutting thereon to recover damages? Such questions would have to be referred to a jury, whose standard of duty would be as shifting as their verdicts would be uncertain and in many instances oppressive. Gold v. City of Philadelphia. Opinion by Paxson, J.

CORRESPONDENCE.

THE HOLIDAY ACT.

Editor of the Albany Law Journal:

Does not the half-holiday act, just signed by the

governor, practically establish four new rules in respect to the maturity and collection of mercantile paper, viz.:

1. Paper falling due on Saturday is payable before 12 o'clock on that day.

2. Paper falling due on any Sunday is payable on the preceding Saturday before 12 o'clock.

3. Paper falling due on any legal holiday except Saturday and Sunday is payable on the following secular day.

4. Paper falling due and payable on any Saturday need not be demanded or protested for non-payment, when the following Monday is a holiday, until the following Tuesday.

TARRYTOWN-ON-HUDSON, May 10, 1887.

FORECLOSURE BY ADVERTISEMENT.

Editor of the Albany Law Journal:

L. T. Y.

it done before." Judge Potter then said he would like to have some man of intelligence on the jury stand up and say that he actually thought such a "verdict" was right. The climax was capped when after a pause a tall, solemn looking juror arose and said. "I ain't got much intelligence and I knew it wasn't right but he (indicating the hapless foreman) said he was sure it was." The jurors then with one accord lifted up their voices and saddled the blame on the foreman, who was ordered to show cause why he should not be punished for contempt. He was subsequently excused on plea of ignorance after a caustic reprimand.

An interesting query is. What would have been the position of plaintiff in regard to a subsequent trial if the defendant had not consented to the discharge of the jury for failure to agree? See Seidenback v. Riley, 7 N. Y., S. R. 104.

Yours truly,

CANTON, N. Y., May 12, 1887.

COURT OF APPEALS DECISIONS.

S.

Judgment affirmed with costs-John McBride, respondent, v. Richard M. Hoe and others, appellants.

-Judgment affirmed with costs-Jullian Pollock, respondent, v. Gouverneur Morris, appellant.Judgment affirmed with costs-Geo. Cook, respondent, v. Sidney Poole, appellant; Louis Abrams, an infant, respondent, v. The Van Brunt street and Erie Railroad Company, appellant. Judgment affirmed with costs-James F. Mooney, respondent, v. Rt. Rev. John Laughlin, appellant.-Order affirmed with costs-In re petition of John L. Wadley.—Appeal dismissed with costs--Wm. Clark, Jr., respondent, v. George Clark, appellant.- -Appeal dismissed with costs-Charles F. Hinck and others, respondents, v. Adolph Dessar and others, appellants.Orders of Special and General Terms reversed with motion for a new taxation granted with costs of both courtsCharles H. Mead and others, respondents, v. Walter C. Tuckerman, appellant.-Order affirmed with costs -In re application of Lucius E. Chittenden, appellant, to compel payment, etc.-Order affirmed with costs

Yours truly,

J. B. LEAVITT. 111 BROADWAY, NEW YORK, May 13, 1887.

JURY'S AGREEMENT TO DISAGREE. Editor of the Albany Law Journal:

In the case of Wells v. Village of Hermon, tried at the St. Lawrence Circuit last week, the jury were sent out in the evening with permission to hand in a sealed verdict in case of agreement at a late hour. During the evening they informed the constable in charge that they had so agreed and were allowed to depart. At the opening of the court next day they filed in with solemn mien, the foreman holding a folded paper. Plaintiff's attorney was counting out their stipend and a hush of expectancy settled over the

room

as the verdict was handed up to Mr. Justice Potter. The horror depicted on his Honor's face on reading it may be imagined. It was as follows: 66 We as a body of jurors have agreed to disagree.” The jury came very near being fined for contempt, but the foreman assumed all responsibility and insisted that in his ripe experience as a juror he had 64 seen

General Term reversed and that of Special Term affirmed with costs-In re application of Mary E. Hynes, general guardian of Wm. R. Hynes, etc.Order affirmed with costs-Richard W. Hurbut, appellant, v. Margaret J. Comau, respondent.- - Appeal dismissed with costs-Jeremiah Eighmie, respondent, v. Edgar B. Taylor, administrator, appellant.-Judg ments and order in each affirmed with costs-George A. Wheeler, Wm. M. McFarland and People, ex rel. John Andrews, appellants, v. Theodore F. Jackson, registrar of arrears of Brooklyn, respondent. Three several cases.- -Order affirmed with costs-People ex rel. Benjamin Andrews, appellant, v. Aaron Brinckerhoff, comptroller of Brooklyn, respondent. affirmed with costs-Wm. Broistedt v. Henry Breslin.

-Order

-Order affirmed with costs-In re petition of Jacob Lorillard, respondent, v. Horace Bernard, an attorney, appellant.—Order of General Term and that of Special Term affirmed with co-ts in both courtsTheodore Brinckerhoff and others, appellants, v. Henry Bostwick and others, respondents.

Ordered, That the court take a recess from this date to Monday, the 6th day of June, 1887, at ten o'clock A. M., at the town hall in the village of Saratoga Springs, there to proceed with the call of the present calendar. Tuesdays, June 7 and 21, will be motion days.