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This extraordinary piece of news has not been officially proclaimed as yet, but it seems to be true all the same, and the Pall Mall, being convinced of its truth, says:

"The surprise at Mr. Thesiger's appointment but little exceeded the astonishment at the appointment being made from the bar at all. Scarcely any one had doubted that Lord Justice Amphlett's successor would be one or other of the judges of the High Court; and unless the new Lord Justice were to be chosenwhich, perhaps, he should have beeu- from the Chancery Division, it was Mr. Justice Lush who was generally supposed to possess the highest claim to promotion. But there are several others who could be named as fitting successors to Lord Justice Amphlett, and whose appointment would fully have satisfied professional and public opinion. If, however, the Lord Chancellor intended to go further afield, if he intended to dispense with judicial experience and proved judicial capacity, it was at least expected that he would make an appointment which he could justify by the traditions reserving certain judicial prizes for important political service or distinguished forensic success. But these expectations have been altogether disappointed in the selection of a nominee who is neither fitted for the post by judicial experience, by reputed learning, or even by length of years; while he can put forward no compensating claim whatever on the ground of political service or professional distinction. A Queen's Counsel whose silk gown is four years old, and its wearer only thirty-nine, and who has never in any way distinguished himself above his fellows, has been passed over the heads of twenty judges into one of the most important judicial offices in the State. Such an appointment appears inexplicable."

I need not add any thing to the Pall Mall's brief summary of Mr. Thesiger's qualifications. He has not yet earned a place in Vapereau or "Men of the Time," and his appointment is received with almost universal disapproval. Of course the unfriendly critics of the government have numerous explanations to offer, all more or less discreditable. Here is one from a correspondent of a provincial newspaper:

"I am afraid that this is an instance of the tyranny of personal considerations in politics. When Mr. Disraeli first became Prime Minister, he found the amiable and graceful but feeble Lord Chelmsford in the seat of the Chancellor, where Lord Derby had placed one of his earliest friends. Mr. Disraeli did not believe in Lord Chelmsford, and he quietly shelved him in favor of Sir Hugh Cairns, Mr. Disraeli's 'able henchman.' From that day to this there has been coldness between the Thesigers and the Prime Minister and the Lord Chancellor. Lord Chelmsford held that he was shabbily treated, and never forgave the affront. It is to make compensation for the injury done ten years ago that young Thesiger' has been put over the heads of experienced judges in 1877. Lord Chelmsford will forgive in the honor done to his son the dishonor done to that son's father, and Lord Beaconsfield, leading Lord Cairns by the hand, will seek for that affection in the breast of an estranged friend which has of late been withheld."

The "Ridsdale case," one of those numerous contests between the "High Church" and "Low Church" factions of the Establishment, was recently decided in favor of the State, as pursuer of the ritualistic defendant, by the judicial committee of the Privy Council. Soon afterward a statement was published by a "Rev. Mr. Ellis," that the Lord Chief Baron of the Exchequer thought the Ridsdale judgment was "an iniquitous one; that it was not a judgment based on law, but on policy." Mr. Ellis added that the Lord Chief Baron had sanctioned his publication: "As Sir Fitzroy Kelly was one of ten judges before whom the Ridsdale case was heard, and in whose names the judgment was given, the terms of the announcement took every one by surprise. It was believed, indeed, that the Lord Chief Baron, together with Sir R. Philli

more and Sir R. Amphlett, did not agree with the majority; but iniquitous' in his mouth sounded strange. A correspondence between the Lord Chief Baron and Lord Cairns has, not unnaturally, arisen out of this statement, which has hitherto circulated without contradiction. The Lord Chief Baron denies that he used the word 'iniquitous;' but he owns that he may have hazarded an opinion that there was much of policy rather than of law in the judgment,' and he admits that he authorized Mr. Ellis to state as publicly as he thought fit that the Lord Chief Baron disseuted from the majority. The Lord Chancellor's answer is in effect that the permission to Mr. Ellis was a serious departure from the well-understood obligation of a Privy Councillor, who must be aware of the ordinance which says that when the business is carried according to the most voices, no publication is afterward to be made by any man how the particular voices and opinions went;' and that when a Privy Councillor has declared his dissent from the judgment of the majority, it has always been with the permission of the whole committee." - which permission was distinctly refused in this case.

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The Lord Chief Baron replied to this, questioning the applicability to ecclesiastical proceedings of the order cited, and declaring that, but for the view taken by Lord Cairns, he should have held, without doubt, that it was in nowise binding or operative upon such proceedings. The entire correspondence was published in the Times of Monday last, and is generally regarded as a grave scandal; all the more, that the Lord Chief Baron, unconvinced and obstinate, persists in feeling aggrieved that his colleagues in the judicial committee refused to graut his request to allow him to publish his dissent, and when he published it in spite of them invoked against him this "relic of the Star Chamber."

Three of the Penge convicts have been sent to penal servitude for life, while the fourth, Alice Rhodes, has been pardoned. The four were found guilty of the murder of Mrs. Staunton by starvation. In the opinion of the medical men who signed the memorial to the Home Secretary, the cause of death was not starvation, but natural disease; and it was generally assumed that a respite was granted on their representations. But as the three Stauntons have received the heaviest punishment short of death, it must now be assumed that the Home Secretary believes they were actually guilty of causing the death of Mrs. Staunton. It results that the perpetrators of what Mr. Justice Hawkins designated as a "hideous and barbarous crime," have been saved from the gallows by the clamor raised in their behalf by the conviction, perhaps, that Sir Henry Hawkins' opinions were too strong for a just judge.

As a direct consequence of this case, a bill is to be presented to Parliament, by Sir J. Eardly Wilmot, for the establishmentof a High Court of Criminal Appeal. The bill, as drafted, provides that the court shall consist of the Lords Chief Justices of the Queen's Bench and Common Pleas, three senior judges, and the Home Secretary, five to be a quorum. The court shall be entitled to take up any case on which there has been a capital conviction on an appeal from the person condemned, and counsel will be heard both for the prosecution and for the prisoner, the expenses of the appeal to be borne by the Crown. The judgment of this court must be affirmed by a majority of two-thirds, the execution of the sentence to be stayed until the determination of the court is known.

MORTGAGES UPON PROPERTY TO BE AC

IN

QUIRED.

N the case of Putnam et al., appellants, v. Bill, just decided by the Supreme Court of the United States, the effect of a mortgage by a railroad corporation which in terms covers "all the following present and in future to be acquired property," as to subsequentlyacquired property was considered. The court, after passing upon certain questions of practice and deciding (1) that the appearance of counsel specially for a railroad corporation, and moving to dismiss the petition of an individual creditor for the appointment of a receiver of its property, do not preclude him from subsequently appearing for the trustee of the bondholders in proceedings to foreclose mortgages of the company; (2) that upon a supplemental bill in Chancery no process of subpoena need issue unless new parties are brought in, a rule upon parties already served to answer the supplemental bill being sufficient; and (3) that where a corporation is insolvent and has no funds at the place where its bonds are payable, demand of payment at such place need not be made before suit brought to foreclose its mortgages, executed to secure the bonds, thus argue and hold as to the principal question, Mr. Justice Field delivering the opinion.

The objection that the decree covers property not embraced or intended to be embraced by the mortgages is equally untenable. The terms of the mortgages are as broad and comprehensive as could be used. They embrace all existing property of the company except such surplus lands as were not required for the roadway, depots and stations, and other uses of the road, and all its future property, both such as might be purchased with the proceeds of the bonds issued and such as might be acquired by other means. The language used is, "all the following, present and in future to be acquired property of the parties of the first part" pertaining to the road, "that is to say, their road made and to be made, including the right of way and land occupied thereby, together with the superstructure and tracks thereon, and all rails and other materials used therein or procured therefor, inclusive of the iron rails purchased or to be purchased or paid for with the above-described bonds, or the money obtained therefor, and the machinery purchased with the same; bridges, viaducts, culverts, fences, depot-grounds and buildings thereon, engines, tenders, cars, tools, materials, machinery, and all other personal property, right thereto or interest therein pertaining as aforesaid, together with the tolls, rents or income to be had or levied therefrom, and all franchises, rights and privileges of the said parties of the first part of, in, to, or concerning the same;" with a proviso that the surplus lands mentioned might be sold.

The reference made in this description to the property which might be afterward purchased with the bonds issued, does not operate as a limitation of the lien of the mortgage to such future acquired property, but only to remove any doubt that might otherwise possibly arise whether the property thus purchased would also go to increase the security offered. We do not deem it of any moment whether the rolling stock and machinery in use by the company at the date of the decree were acquired with the proceeds of the bonds or with the subsequent earnings of the company. mortgage of a railroad company which covers, in the terms of the two mortgages in suit, its engines, cars

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and machinery, carries not only those in existence at the date of the mortgage, but such as take their place, or are subsequently added to them by the company and exist at the time of the foreclosure. This kind of property is necessarily undergoing constant wear and consequent destruction, and the mortgages in suit, so far as that property is concerned, would have been of little value if their lien did not extend to such as took its place or was added to it by the company. Pennock v. Coe, 23 How. 117; Philadelphia, Wilmington and Baltimore R. R. Co. v. Woelpper, 64 Penn. St. 366; Phillips v. Winslow, 18 B. Monr. 431.

EVIDENCE IN ELECTION CASES.

SUPREME COURT OF KANSAS, OCTOBER 26, 1877.

HUDSON V. SOLOMON.

1. As between the ballots cast at an election and a canvass of those ballots by the election officers, the former are the primary, the controlling evidence.

2. In order to continue the ballots as controlling evidence it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with.

ORI

RIGINAL proceedings in quo warranto. Everest & Waggener, for plaintiff. John Doniphan, and Smith & Solomon, for defendant.

BREWER, J., delivered the opinion of the court.

The question in this case is as to the number of votes received by the two gentlemen, parties to this action, respectively, in the second ward of the city of Atchison, at the last city election for the office of city attorney. The canvass, as made by the judges and clerks of election on the night of the election, gave Mr. Hudson 120 and Mr. Solomon 100 votes. This, in conjunction with the votes in the other wards, elected Mr. Solomon by 20 majority. A recount of the ballots, made in the presence and under the direction of the justices of this court, gave Mr. Hudson 143 and Mr. Solomon 100 votes. In addition there was found one ballot, probably intended for Mr. Hudson, but which, owing to the manner in which different parts of it were pinned together, was not counted by us as cast for either.. This would elect Mr. Hudson.

The question, then, is which should obtain, the canvass of the election officers, or the result as shown by the ballots themselves? It is a primary rule of elections that the ballots constitute the best, the primary, evidence of the intentions and choice of the voters. State ex rel. v. Judge, etc., 13 Ala. 805; People ex rel. v. Holden, 28 Cal. 123; McCrary on Elections, §§ 291, 439; Cooley's Const. Lim. 625. In the case from California the court uses this language: "Intrinsically considered it must be conceded that the ballots themselves are more reliable, and therefore better evidence, than a mere summary for them. Into the latter errors may find their way, but with the former this cannot happen. The relation between the two is at least analogous to that of primary and secondary evidence." A canvass is but a count of the ballots, a convenient and expeditious method of determining the choice of the people as disclosed by the ballots, and therefore but secondary evidence. The necessities of

the case make it prima facie evidence, but unless expressly so declared by statute it is never conclusive. State ex rel. v. Marston, 6 Kan. 524; Russell v. State, 11 id. 308. As between, therefore, the ballots themselves and a canvass of the ballots, the ballots are controlling. This is of course upon the supposition that we have before us the very ballots that were cast by the voters.

And this presents the difficult question in this case. For as under the manner of our elections there is nothing upon the face of a ballot to identify it as cast by any particular voter, or even as actually used at any election; nothing to distinguish one ballot from another of those cast by the members of the same party, as no file or other mark is made in the canvass or otherwise, after the election, upon any ballot by which its actual use at such election may thereafter be established, and as at any election there is always a large surplus 'of unused ballots, it is evident that if opportunity were offered ballots might be withdrawn from the box and others substituted with but little chance of detection. Thus in the case before us, if there was but a single officer to elect, and but a single name on the ballot, how easily could one having access to the box throw in twenty-three or four additional ballots and thus bring about the very difference that appears before us now. And who could thereafter tell which were actually voted and which subsequently thrown in? The ballot, then, upon its face containing no marks of identification, we must look aliunde for evidence of the identity of those offered and counted before us with those actually cast at the election. And this evidence we find in the testimony as to the manner in which the ballots have been preserved, a comparison of the canvass made as to all the officers voted for at that election with the result as shown by the ballots, and certain other circumstantial evidence.

And first as to the preservation of the ballots. It appears that at the night of the election, as the ballots were called off, they were strung on a thread as prescribed by the statute. Gen. Stat., p. 408, § 20. That this was done publicly by the judges, in presence of several spectators; that after the canvass thus publicly made had been completed, the ballots as strung together were sealed up in an envelope, duly marked and directed to the city clerk, with the poll books deposited in the ballot box; this box had two covers, one an inside sliding cover, fastened by a screw, and the other an outside lifting cover, fastened by a padlock. Both covers were fastened, and the box and key were intrusted to Mr. N. A. Maher, one of the judges of election, to be by him delivered to the city clerk.

It appears that after the canvass, which was finished late in the evening, he carried the box with him to the office of The Champion, where were gathered quite a number of persons to hear the election news. After tarrying there a while, he went home, taking the box with him. He kept the box in his house until the afternoon of the next day, when he carried it to the office of the city clerk and delivered it to him. While Mr. Maher had it in his house, it was deposited in his sleeping room and the key carried in his pocket. Mr. Barker, who was city clerk at the time, retained it in his office and custody for six days, when he was succeeded in office by the present incumbent, Mr. White, by whom it has since been kept, part of the time in his office and part of the time in the vaults of a bank.

Four days after Mr. White received it, he placed some tape around the box and sealed it at the corners, and the seals were unbroken when brought into our pres

ence.

It thus appears that from the time of the canvass to that of our examination, the ballots were in the custody of three persons, each of whom testifies that they were not handled by any one while in his custody. It appears, also, that the box in which were these ballots was itself unlocked and opened but four times, and then only for the purpose of taking out the poll books. Now, unless we impute to some one of these three parties intentional wrong in opening or permitting to be opened the box, and changing or permitting to be changed the ballots, and in willful false swearing upon this trial, and there is not the least foundation for such an imputation, it would seem that there could be little doubt that the identical ballots cast at that election have been preserved, and preserved unaltered, and were those examined by us.

But it is said that there were opportunities for reaching and opening this box and changing the ballots; that this might have been done at The Champion office, at the house of Mr. Maher, or in the city clerk's office, prior to the sealing of the box by Mr. White. It is true there is a possibility of such a thing, but is there any probability of it? Take The Champion office first, and see what must be assumed. This was the same night and immediately after the canvass. It must be assumed that some one had a motive. This implies knowledge of the result of the canvass in the four wards, and of the number of ballots that must be changed. It must be assumed, also, that the party having motive had knowledge of the presence of the judge of the second ward election, with the box and ballots, in The Champion office, and had possession of a key fitting the lock of the box; that he could take the box off from the desk of Col. Martin, upon which it was placed by Mr. Maher, in the presence of Mr. Maher and of a large number of parties eager about election matters; that he could take the box out of the room, unlock it, make the changes, and return it to its proper place upon the desk, and all this without detection or exposure. This is so near the impossible as to be of little moment.

Perhaps the improbability may not be so striking as to the other places named, but the opportunity afforded was so slight, that it seems almost like trifling with language to speak of it as an opportunity.

But beyond the direct testimony as to the manner of keeping the box and ballots, there is indirect evidence of value, as to the identity of the ballots. The testimony shows that they were strung on a thread and then placed in a sealed envelope; they were so found by us. It also shows that the straight Republican tickets were counted first, then the straight Democratic, and then the scratched; and so we found the ballots arranged on the thread. Again, there were several offices to be filled at that election, and each ballot had the names of candidates for respective offices. So we had a count made of the votes cast for all, so as to compare the result with the canvass. We found the proper number of ballots in the box, so that if any had been put in an equal number had been taken out. For mayor the canvass gave Mr. Downs 232; our count 230. For police judge the canvass gave A. Spalding 164 and G. Scoville 79 votes; our count the For marshal the canvass gave Tofte 130 and Dobson 111 votes; our count Tofte 129 and Dobson 109

same.

For treasurer of board of education the canvass gave A. H. Lamphere 235, and our count 236 votes. For member of board of education the canvass gave A. F. Martin 240, and our count 235 votes. For city treasurer the canvass gave Wm. Bowman 142 votes, J. M. Lindley 82; our count Bowman 163 and Lindley 82. So that except as to Bowman for treasurer and Hudson for city attorney, the canvass and our count substantially agreed. If any change, therefore, had been made in the ballots as to the plaintiff it must have been made as not to increase the total number of ballots, as to preserve to Mr. Solomon the same number of votes, to add 23 votes to Mr. Hudson, and leave unchanged the votes for all the other offices except one of the candidates for city treasurer. The difficulty of accomplishing this can only be fully appreciated by one who sits down with 240 ballots, nearly half of which are scratched, and attempts to make the changes.

But again, it will be perceived that the only substantial difference between the canvass and our count is in the votes cast for plaintiff and for Mr. Bowman. Now the testimony taken by deposition long before our count shows that at the time of the canvass there was some discrepancy between the two clerks in tallying the votes for these officers, and that it was claimed that Mr. Tibbals, one of the clerks, had tallied too many votes for these gentlemen, and an attempt was made to correct his tally sheets. An examination of the tally sheet kept by Mr. Tibbals showed that he tallied 155 votes for Mr. Hudson and 157 for Mr. Bowman, but the tallies made by the other clerk, Mr. O'Keefe, were accepted as correct, and Mr. Tibbals' sheet corrected accordingly. It is not pretended that the correction was made by a recount of the votes, but simply that the tallies were fixed up to the satisfaction of the judges. Over the tallies as they appear on the sheet of Mr. O'Keefe, for these two gentlemen, appears a series of dots, corroborating the testimony that at the time of the canvass there was some trouble about the tallies for these officers. All this testimony taken together forces the conviction on our minds that the ballots have not been changed or tampered with. It is true there is testimony tending in the other direction, the strongest, perhaps, being that of a disinterested party who was present at the night of the canvass and kept a tally of the votes for three of the offices, including that of city attorney, as called off by the judges, and testifies that his tally corresponds with the result as shown by Mr. O'Keefe's sheet and as returned by the canvassing officers. But it is not to be presumed that an outsider, having no interest in the matter, would be as careful as the sworn officers, and the fact is established by the testimony, and patent from the tally sheets, that there was a discrepancy between the two clerks as to these two offices, and it is undisputed that the discrepancy was attempted to be corrected without a recount. Other testimony of the judges and clerks that they made an honest canvass, while it is good and satisfactory evidence of the honesty of their intentions, does not preclude the possibility of a mistake; a mistake which their own tally sheets show was made by one or other of their clerks, and which the count made by us shows resulted to the prejudice of the plaintiff's rights.

Some days after the trial had been completed and the case submitted to us for decision, an application was made by defendant to reopen the trial for the ad

mission of further testimony. The application was based upon these facts: The poll books show the cast ing of 245 votes. It appears that one ballot was rejected. Our count gave to the two candidates 243 votes. Now the defendant files affidavits to the effect that several ballots were cast upon which there was no name for city attorney. Such testimony might be very important. If, for instance, it could be clearly established that five ballots were cast with the name of no one thereon for the office of city attorney, the inference would seem irresistible that the ballots before us were not the same as those canvassed, or at least untampered with. After reflection, and with some hesitation, we feel constrained to overrule the application. It was not claimed as a right, but was an appeal to the discretion of the court, and was refused principally for these reasons. The pleadings distinctly gave notice to this question. It concluded that 100 votes were cast for Mr. Solomon and alleged that 148 votes were cast for Mr. Hudson. So that it would plainly tend to defeat the plaintiff's case to show that there were several ballots upon which was the name of neither candidate, and reference was made to this fact in the testimony. Now there is nothing in the affidavit to show any good reason why this testimony was not introduced upon the trial. Some of the gentlemen whose affidavits were filed were witnesses already sworn and examined. The defendant is too good a lawyer not to have seen the value of such testimony. The manner in which he has conducted this case shows that he thoroughly understands the strong points in his favor, and that he has prepared his defense with care and industry. Again, to open the case for new testimony would naturally work delay, and already half the term of office has expired. Further delay should only be granted upon the clearest showing. And again, the testimony offered is of a character which, conceding the utmost good faith and entire honesty of the affidavits, our knowledge of elections and the manner of conducting them satisfies us is very liable to be weakened, if not entirely overthrown, upon cross-examination.

We have given to this case more attention than perhaps the importance of the office justifies. The contest is about a city office of small salary, short term, and not the highest importance. It is a contest which we think ought to have been commenced and terminated in the District Court. But having been brought in this court, it has given us an occasion for examination of some matters of importance in reference to elections and enables us to lay down these as cardinal rules covering elections and election contests:

First. As between the ballots cast at an election and a canvass of these ballots by the election officers, the former are the primary, the controlling evidence.

Second. In order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody, they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with.

Judgment will be entered in favor of the plaintiff for the possession of the office and $473, the amount of salary and fees admitted to have been received by the defendant as city attorney.

All the justices concurring.

COURT OF APPEALS ABSTRACT.

APPEAL.

Appealable order: order opening default.—A judgment of foreclosure was taken by default. The judgment with the subsequent proceedings were set aside, and the defendant was allowed to put in an answer. Held, that the order opening the default and giving permission to defend was discretionary with the court below, and was not appealable to this court. Appeal dismissed. Alling v. Fahey. Opinion per Curiam. [Decided Sept. 25, 1877.]

ARREST.

1. Disposition of goods to prevent replevin: what necessary to authorize arrest.-To authorize an order of arrest under the provisions of section 179 of the old Code, there must be a concealment, removal or disposal of the property, or some part thereof, with intent either to defeat the process of the court or to deprive the plaintiff of the benefit thereof. An intent to put the property beyond the reach of the owner by selling it to a bona fide purchaser, or by so changing its form that it cannot be identified, or by any other act, will authorize the order, although the fraudulent actor may not contemplate an action at law to recover the specific property. Accordingly, where property is fraudulently purchased, and the fraudulent purchaser sells it with intent to put it beyond the reach of the owner, the intent "to deprive the owner of the benefit thereof," contemplated by the statute, is established. Judgment below modified. Barnett v. Selling. Opinion by Allen, J.

2. Paid check not subject of replevin.-A check which has been paid, held not a subject of replevin. Ib.

[Decided Sept. 25, 1877.]

BANKRUPTCY.

Composition: inadvertent understatement of debt by bankrupt: effect of.-An inadvertent understatement of the amount due a creditor in composition proceedings in bankruptcy, under section 17 of the bankrupt act of 1874, held not to invalidate the proceedings or the effect of the composition as to the creditor whose debt is understated. Judgment below affirmed. Beebe v. Pyle. Opinion by Earl, J. [Decided Oct. 2, 1877.]

CONTRACT.

Construction of: sale of newspaper: goodwill. - The owner of a newspaper made an agreement for the sale thereof to a firm, describing the property as follows: "The Watertown Re-Union establishment, including the presses, machinery, type of all description, newspaper and jobbing material, tools, implements, etc., appertaining to the said printing business, excepting real estate, and the accounts, notes and demands due said party of the first part." The contract then declared that the parties of the second part were "to have full ownership when the condition and stipulations of this agreement are fully performed," and provided that until that time, the vendees were to take possession, as "tenants or bailees," and so hold the property until the conditions were fulfilled, and that the owner might take possession in case of any default, etc. Held, (1) a conditional sale, and the title would not vest in the firm until the performance by them of the conditions and stipulations of the agreement; (2) that the goodwill and subscription list of the newspaper were em

braced in the agreement to sell, and were affected by the condition; and (3) that the vendor, on failure to perform, was entitled to the property, including the goodwill and the subscription list, as against the general creditors of the firm. Judgment below affirmed. Boon v. Moss; Flower v. O'Brien. Opinion by Church, C. J.

[Decided Sept. 18, 1877.]

CONTRIBUTORY NEGLIGENCE.

Explosion of gas: going with lighted candle into closed room.-Plaintiff, the occupant of a building into which the pipes of a gas company came, being aware that there was a leak in the pipes, and that gas escaped, went into the cellar of the building which had not been opened for five days, with a lighted candle. An explosion of gas followed, injuring plaintiff's property. Held, that the finding of a referee, in an action for such injury against the gas company, that plaintiff was guilty of contributory negligence and ought not to recover, should be sustained. (Holden v. Liverpool Gas Co., 3 C. B. 1; Lannen v. Albany Gas L. Co., 44 N. Y. 459.) Order of General Term reversed, and judgment on report of referee affirmed. Lanigan v. N. Y. Gas L. Co. Opinion by Allen, J. [Decided Oct. 2, 1877.]

EVIDENCE.

To sustain credit. In explanation of certain receipts introduced in evidence, plaintiff stated that they were given to defendant at defendant's request, in order that he might use them in a settlement with his partner, one King. The defendant testified in reply that he had no partner. Held, that it was competent in response to this to prove that King claimed to be defendant's partner, and had brought suit for an accounting. Judgment below affirmed. Heckler v. Leighton. Opinion by Allen, J. [Decided Sept. 18, 1877.]

HIGHWAY.

Town bridges: adjoining towns: when one town not liable to contribute for highway bridge built by another.— Under the provisions of Laws 1841, chap. 225, as amended by Laws 1857, chap. 383, requiring adjoining towns, separated by a stream, to contribute jointly to the maintenance of bridges across the stream upon public highways, and giving a town which erects the bridge a right of action for contribution against the other, held, that to entitle the town erecting the bridge to maintain the action the bridge erected must connect with a highway in the adjoining town that is open and passable. Accordingly, where a bridge did not connect with a passable highway in the defaulting town, but ended in a morass, and there was no road within two hundred feet of the bridge, and that was inaccessible to travelers on account of the morass, held, that the last-mentioned town was not liable to contribute, and the fact that a highway had been laid out over the morass to connect with the bridge, it never having been opened or worked, would not make it liable. (Marble v. Whitney, 28 N. Y. 297, distinguished; also, the decision in this case by the Commission of Appeals on a former appeal, 65 N. Y. 322.) Judgment below affirmed. Beckwith v. Whalen. Opinion by Church, C. J.

[Decided Sept. 18, 1877.]

TRADE-MARK.

What constitutes: bull's head upon mustard labels: colorable likeness: use by others upon other articles.

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