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universally expected and provided that sewerage and drainage shall be regulated by some municipal standard. There cannot be towns without changing the face of the land materially. And where the same rule has been applied to towns as to the country, it has, in some cases at least, been done expressly, because in the circumstances of the record the particular land in question had remained under rural conditions. If, as seems to be true, some decisions ignore the distinction, they depart from the old rule, and cannot be maintained as harmonious with the general line of authority, unless on special facts which do not justify their broad dicta.

The Massachusetts cases lay down so broadly the right of the lower proprietor to cut off the water flowing down on him that whatever distinction may be found in their facts the court evidently meant to disregard them. The Wisconsin cases perhaps go about as far, and the Indiana rule is stated in similar terms. It can hardly be said that there is any fixed New York rule which would apply to such a case as the present.

In the case of Barkley v. Wilcox, 86 N. Y. 140; S. C., 40 Am. Rep. 519, where the interference with the water was by building and banking up a house near a street, the facts did not call for any very general discussion, and the court, while expressing a preference for the views of the Massachusetts courts over the rule in Pennsylvania and other States to the contrary, saw the necessity of caution in adopting those views too universally, and left the door open to deal with cases like this on their own footing.

In Bowlsby v. Speer, 2 Vroom (N. J.) 351, the facts and the decision were like those in Barkley v. Wilcox, but can hardly be said to disturb the earlier case of Earl v. De Hart, 1 Beasl. 280, where the civil-law principle was treated as in some cases furnishing a proper rule for town property which was not so situated as to require a different treatment.

Mr. Washburn in his treatise on Easements, 355, indicates that the Massachusetts rule is not sustained by the weight of American authority, and that the rule known as the civil-law rule has been more generally accepted. He cites most of the authorities brought to our attention on the argument, and they unquestionably sustain the existence of duties between the respective land-owners to do no harm to each other against the natural servitude. Much of the discussion found in the cases referred to turns, not on the right of the upper owner to have egress for his water, but upon the right of the lower owner to have the water come down. In the present case Boyd does not seem to desire this supply. But it is quite supposable that if this pond were not entirely on his premises it might be of some importance to the neighboring land that it should not be diminished or destroyed.

It is not necessary on this record to determine how far defendants could themselves have shut off the supply, because it is evidently not for their interest to do 80. But there is no lack of cases which hold that rights may exist in a flow of water which is not a natural living stream. And while here, as in other cases, the rights of parties must depend somewhat on the circumstances and surroundings, the general principle underlying all the cases is that the upper and lower owners must respect any valuable rights which accrue to either from the position of their lands. The narrow definition of water-courses as natural living streams, which appears in a few cases in the United States, is not an ancient or universal definition. On the contrary, water running in a natural or artificial bed is very frequently, if not generally, so regarded. But names are of small importance, inasmuch as the only consideration that need be looked at is the character and surroundings of the flowage. The following

authorities recognize valuable rights in water, and some of them are spoken of expressly as water-courses which are entirely distinct from natural living streams: Woolr. Wat. 3, 146, 147: Wright v. Williams. 1 Mees. & W. 77; Rawstron v. Taylor, 33 Law & Eq 428: Broadbent v. Ramsbotham, 11 Exch. 602; 34 Law & Eq. 553; Beeston v. Weate, id. 133; Ivimey v.Stocker, L. R., 1 Ch. App. 396; Watts v. Kelson, L. R., 6 Ch. App. 166; Nuttall v. Bracewell, L. R., 2 Exch. 1; Holker v. Poritt, L. R., 8 Exch. 107; Taylor v. Corp. of St. Helen's, 6 Ch. Div. 264; Magor v. Chadwick, 11 Ad. & E. 571; Chadwick v. Marsden, L. R., 2 Exch. 285.

Upon such questions as are raised on this record there is, except in the Massachusetts doctrine and the cases which have followed it, very little conflict of opinion. Whatever may be the rights of adjoining proprietors as to the use and diversion of water, there is no right in any one, by raising artificial obstructions, to flood his neighbors' lands by stopping the escape of water that cannot escape otherwise. Some cases have intimated that there might be larger rights of obstruction where the particular drainage was not necessary. But actual mischief done as a natural and necessary consequence of such erections is almost universally treated as an actionable nuisance. Lawrence v. G. N. R. Co., 16 Q. B. 643; Rylands v. Fletcher, L. R.. 3 H. L. 330; Tootle v. Clifton, 22 Ohio St. 247; S. C., 10 Am. Rep. 732; Wood Nuis., § 386; Hurdman v. N. E. R. Co., 3 C. P. Div. 168; Whalley v. Lancashire & Y. Ry. Co., Eng. Ct. App., March, 1884. summarized in 30 Alb. L. J. 3; Broder v. Saillard, 2 Ch. Div. 692: Gillham v. Madison Co. Ry. Co., 49 Ill. 484; Gormley v. Sanford, 52 id. 158; Ogburn v. Connor, 46 Cal. 346: S. C., 13 Am. Rep. 213; Butler v. Peck, 16 Ohio St. 334; Nevins v. City of Peoria, 41 Ill. 502; Livingston v. Mc. Donald, 21 Iowa, 160; Hooper v. Wilkinson, 15 La. Ann. 497; McCormick v. Kansas City R., 70 Mo. 359, S. C.. 35 Am. Rep. 431; Shane v. Kansas City Ry., 71 Mo. 237; S. C., 36 Am. Rep. 480.

As previously suggested, the rights of upper and lower owners are not treated by the common-law authorities as peculiar to either common or civil law, but as natural incidents to the land, which are and must be analogous, as governed by universal jurisprudence, except where specially modified. The English courts have never hesitated to cite the civilians on such questions, and they have decided cases arising out of England without attempting to inquire into any local law as the basis of decision. Thus in the East Indian case of Rameshur Pershad Narain Singh v. Koonj Behari Pattuk, 4 App. Cas. 121, the rights of the parties were dealt with just as if they had arisen in England, although the uses of tanks and reservoirs in India must in all probability have grown into very ancient customs. In Smith v. Kenrick, 7 C. B. 515, the Digest was cited as authority.

In Dickinson v. Grand Junction Canal Co., 9 Law & Eq. 513, and in Embrey v. Owen, 4 Eng. Rep. 466, it is stated that these various rights are not to be regarded as based on any presumption of grants, but as incident to property jure naturæ.

Bracton is cited in Wood Nuis., § 386, as coinciding with the civil-law rule. While he has been regarded as drawing too much from the Roman law in some other matters, no one has doubted that he laid down the common law correctly on this. Britton lays it down very clearly that no one can drown his neighbor's land by erections on his own soil. "Appurtenances," fol. 140. The civil-law rule was recognized and adopted in the customary as well as in the written law, in parts of France, and in Canada and Scotland; and the Roman law in all these regions was modified by local usage, and in many things repudiated. In Basuage's Commentary on the Customs of Normandy it is not

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treated as a civil-law rule, but as a law of nature. 2 title, through the instrumentality of merely oral evi Bas. 565.

estate.

In Frechette v. La Compagnie Manufacturiere de St. Hyacinthe, L. R., 9 App. Cas. 170, the Lower Canada Code is quoted, which seems to be a substantial if not a literal transcript of section 640 of the French Civil Code, and regulates the rights of both classes of owners, forbidding the lower owner from hindering the es cape of water by dikes, and forbidding the upper owner from aggravating the flow to the injury of the lower In discussing this clause, a learned writer on the law of property, Charles Comte, speaks of the term "servitude," which strictly denotes a diminution of rights, as an unfortunate and improper phrase to apply to these reciprocal duties. "It is simply a means of preventing usurpation, and of securing to each that which belongs to him." While Erskine, in his "Principles of the Law of Scotland," uses the term "servitude" as including the rights in question, he speaks of them as natural, as contradistinguished from legal servitudes. Book 2, tit. 9. Domat refers to them in the same way, dividing servitudes into those which are natural, and those which do not rest on natural right. Book 1, tit. 12, § 5. And this is further illustrated by his collection of excerpts from the Roman law. 4 Dom. 423

There seems to be no reason for attempting to draw distinctions between the civil and the common law on this subject. The authorities recognize the principles as in no sense conventional, or derived from any school of jurisprudence, but as resting on the immunity of one man's property from injury by another in violation of natural justice, and in disregard of the rerelative conditions arising from its position. Each may do in using his own what is consistent with the fair interest of the other.

The escape of water in the present case is natural and is necessary, and there was no right to prevent it by such a dam as defendants broke through. The charge given was at least as liberal as plaintiff had a right to ask. The judgment should be affirmed.

Champlin and Sherwood, JJ., concurred.
Cooley, C. J., did not sit.

[See 30 N. Y. 519; 13 S. C. 97.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

TRUST-RESULTING-TAKING DEED IN WIFE'S NAME -EVIDENCE MUST BE CLEAR.-When property is paid for by the husband and title taken in the wife's name, the law presumes that a gift was intended. The presumption of gift, it is true, is but a presumption of fact, which determines the burden of proof; yet as the effect of the rebutting evidence may be to fasten a trust upon a legal title, it must for that reason conform to the measure stated; every element essential to the existence or creation of a resulting trust in any given case must be clearly shown. This rule grows out of the policy pursued under the statute of frauds, and its enforcement is essential to the secure enjoy. ment of real property. We cannot distinguish between the measure of proof required to rebut the ordinary presumptions arising from the face of the deed to Elizabeth Hill, and the presumption of gift, arising from the relation of the parties, when the purpose is to set up a resulting trust against the legal title. Resulting trusts, although reserved out of the statute of frauds, are in conflict with the sound principles upon which that statute is based (Stronpflee v. Roberts, 6 Harris, 298); and when one voluntarily places his rights to real property in such a plight that he can only establish them by an attack upon the written legal

dence, he cannot complain, if he is held to that uniform measure of proof, which will secure adequate protection against the effects of fraud and perjury, and especially so if he choose as the custodian of the title his wife or child to whom he occupies a relation of especial duty and obligation, and in whose favor presumptions of peculiar force m ust necessarily arise. In Roberts' Appeal, 4 Norris, 87, which was affirmed upon the opinion of the court below, Thayer, J., in speaking of trusts which arise from the payment of purchase-money, said: "Th., presumption of such a resulting trust is always rebutted where, to use the language of the books, 'the purchase may be fairly deemed to be made for another from motives of natural love and affection.' Thus a purchase in the name of a wife or a child, is uniformly held by the unaided force of the relationship alone to rebut the presumption, unless there be clear evidence to show the donee was intended to be a mere trustee." In a long line of cases it has been held that to establish a resulting trust the evidence must be clear, explicit and unequiv. ocal; the rule is so well established that a citation of the authorities in extensio seems unnecessary. We may refer however to McGinity v. McGinity, 13 P. F. S. 38; Nixon's Appeal, id. 279; Lingenfelter v. Richey, 12 id. 123; Kistler's Appeal, 23 id. 393; Fricke v. Magee, 10 Week. Notes, 50; Buchanan v. Streeper, 11 id. 434. Whether therefore a trust is deducible in any given case from the nature of the transaction as a matter of actual intent, is susceptible of oral proof; but he who alleges the trust takes the burden of establishing it, and all the essential requisites of that trust must be shown by clear, explicit and unequivocal proof. Earnest's Appeal. Opinion by Clark, J. [Decided May 26, 1884.]

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HIGHWAY-OBSTRUCTION ON TURNPIKE-QUESTION FOR JURY-EVIDENCE-PHOTOGRAPHS.-(1) The owners of land bordering upon the bed of a turnpike have a right to pass to and from the land on to the road, and to construct proper bridges or causeways for that purpose. (2) Where a bridge or causeway across the gutter at the side of the road was alleged by the turnpike company to constitute an obstruction to the drainage of the road, it was proper in an action brought by the turnpike company against the land owner to submit the question to the jury whether there was sufficient space left under the bridge or causeway for the water to flow, in view of all the circumstances of the case. (3) Photographic views of the locality are admissible in evidence in such a case, and the fact that they did not exhibit every part of the ground is not cause for their exclusion. Chestnut Hill, etc., Turnpike Co. v. Piper. Opinion per Curiam.

[Decided Jan. 21, 1884.]

MARRIAGE WIFE'S SEPARATE ESTATE-HUSBAND'S CREDITORS. (1) The act of 1848 provides in very clear terms that " property of whatever kind or nature, which shall accrue to a married woman during covert ure," shall be "owned and enjoyed by her as her own separate property," and "shall not be subject to levy and execution for the debts and liabilities of her hus band." It is her "property" only however that the Legislature intended to protect; her earnings, her ef

forts and her credit are her husband's since the act of 1848 as before. What she may be said to acquire as the result of her skill and industry, or on her merely personal credit, accrues to the husband, and as to creditors is to be taken as his. Raybold v. Ray bold, 8 Harris, 311; Bucher v. Ream, 18 P. F. S. 421. Goods purchased by a married woman, on her own credit, are not her separate property (Robinson v. Wallace, 3 Wr. 133); her credit is nothing in the eyes of the law; when she does contract, the law esteems her the agent of her husband. Heugh v. Jones, 8 Casey, 432; Hallowell v. Horter, 11 id. 375. A married woman must have a separate estate to protect her purchase upon credit; an estate available and proportionate to the credit it supports. The purchase must in fact be made, not upon her credit, but upon the credit of her separate estate, upon her ability to pay out of her own funds. Gault v. Saffin, 8 Wr. 307. The ownership of the corpus of an estate, real or personal, gives title to its incomes and profits. The title to lands gives title to its products, no matter whose labor may have been expended in the production. Rush v. Vought, 5 P. F. S. 442; Musser v. Gardner, 16 id. 247. But a married woman cannot acquire title to land upon the credit of its after production. Nor to any property or business upon its prospective profits. The production and profits are in general the results of the labor of the husband and wife, or their children, and whilst creditors have no claim on the husband's labor or that of his family as such, yet when that labor acquires title to property they may have a claim upon the property thus acquired. Where the estate is hers, the production is hers; the labor expended in realizing incomes cannot affect the title to either. (2) Where a wife claims property as against her husband's creditors she must show affirmatively by clear and full proof that she paid for it with her own separate funds. Keeny v. Good, 9 Harris, 355; Gamber v. Gamber, 6 id. 366. She must make it clearly appear that the means of acquisition were her own, independently of her husband. Auble Adm'rs v. Mason, 11 Casey, 262. Leinbach v. Templin. Opinion by Clark, J. (See 14 Week. Notes, 134.)

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Where the rights are continuing, or redress can be had only through a multiplicity of suits, or where the wrongful acts may become the foundation of an adverse right, equity will interfere to restrain the invasion of such rights. It is unnecessary that rights set up in the bill should be established at law where the bill is demurred to; the demurrer admits the rights. A., the owner of land, averring that he had a right by grant to have the water from a certain creek ruu at certain times to his land through races on the land of B., filed a bill in equity praying for an injunction to restrain B. from obstructing the flow of water through said races. On demurrer to the bill, held, that a court of equity would take jurisdiction. The case of Scheetz's Appeal, 11 Casey, 88, is in point. In this case there was a bill praying for an injunction to prevent the defendant from interfering with the plaintiff's right to enter upon, clean and clear from obstructions a stream called Sandy Run, flowing through the land of the defendant, to the use of which the plaintiff had a prescriptive right for the purpose of driving the machinery of his grist mill. The bill was sustained and the injunction granted. In the opinion of this court, delivered by Mr. Justice Thompson, it was said that in a case like this damages at law would be wholly inadequate to the vindication of such a right, and that successive suits for successive interferences, instead of redressing the wrong, would in the end be worse than the wrong itself. The learned justice also

calls attention to the fact that equity will interfere to prevent acts of trespass and nuisance, where redress cau be had only through a multiplicity of suits, or where the wrongful acts may become the foundation of an adverse right, such as the diversion of water. On similar principles, equity will interfere to compel the restoration of a violated right, as the closing of windows and other openings left in a party wall. Vollmer's Appeal, 11 P.F. S.118, and Milne's Appeal,11 W. Notes,330. It is true, as was said in Rhea v. Forsyth,1 Wr. 503, a court of equity will not ordinarily interfere to prevent the disturbance of an alleged easement when the right of the complainant is doubtful or seriously disputed, until he has established his claim by an action at law. But even in such case the court may retain the bill until the plaintiff has had time to settle such right in a court of common law; and if in the meantime it appears to be necessary, the defendant may be enjoined from meddling with the easement; in other words, the chancellor may keep things in statu quo until he is in a position to make a final decree. Bitting's Appeal. Opinion by Gordon, J.

KANSAS SUPREME COURT ABSTRACT.*

DEED-BLANK GRANTEE TITLE TO GROWING CROPS. -Where C. in good faith purchases land from S., and afterward S. delivers to C. a deed of conveyance for the land completely executed by V., who was in fact the owner of the land, and C. in good faith accepts the deed, having no notice that the deed had been originally executed to a blank grantee, and having no notice of any agreement between S. and V. which might limit the effect of the deed, and S. is not the agent of either C. or V., but acts for himself, and no question is at any time raised with regard to the validity of the deed as a conveyance of the land, and V. delivers the possession of the land to C. without questioning C.'s title thereto or to any thing thereon, but afterward V. claims that he is entitled to the crops growing on the land by virtue of a parol agreement with S., held, that the deed will not only convey to C. the land, but it will also convey to him all the crops growing thereon, although it may be that V. when he executed the deed believed that he was executing the same to S., and although in fact he executed the deed to a blank grantee, and that S. afterward filled up the blank by inserting the name of C., and although there may have been a parol agreement between V. and S. that the crops growing on the land should continue to be the property of V. Under the circumstances, we think the deed conveyed and transferred all that such a deed would ordinarily convey and transfer. Ayres v. Probasco, 14 Kans. 175; Tucker v. Allen, 16 id. 312; Mc Neil v. Jordan, 28 id. 7; Ort v. Fowler, 31 id. 478. And where a deed is executed for real estate, and no reser. vation of growing crops is contained in the deed, the growing crops will become the property of the grantee mentioned in the deed. Tiedman on Real Prop., §§ 2, 799, and cases there cited; Smith v. Hague, 25 Kans. 246; Babcock v. Dieter, 30 id. 172. Chapman v. Veach. Opinion by Valentine, J. (As to execution of deed in blank, see 56 How. Pr. 38; 14 Am. Rep. 435, note.ED.)

REPLEVIN-WIFE OF ABSCONDING HUSBAND CANNOT MAINTAIN.-Where the husband had a written lease of one hundred and sixty acres of land, most of which he had sowed in fall wheat, and in November, after the wheat had been sowed, he handed his father the lease and said to him, "this lease is yours; I got it for your special benefit;" and soon thereafter the husband abandoned his family, consisting of a wife

*Appearing in 32 Kansas Reports.

1

and two children, and left the country, going to a dis- because it attempts to change the terms of the contant State; and the father, the next summer, when the tract; and the State Legislature can no more change wheat was ripe, cut and stacked the same, and while the place of payment of negotiable paper than it can he was threshing it an action of replevin was com- alter any other of the provisions of the contract. menced by the wife of the absent husband to recover Bronson v. Kinzie, 1 How. (U. S.) 311; Bank v. Mcpossession of the wheat; and thereafter and before Veigh, 20 Gratt. 457. If the Legislature of Kansas can the trial, the husband made a written assignment of make the bonds of Leavenworth county payable at the the lease, dating it as of the time he handed to his fiscal agency of the State in New York, when the father, held, that the wife of the absconding hus-bonds upon their face are payable at a particular bank band has no title to the wheat raised upon the leased in New York city, it has the authority to make them land, and is not entitled to maintain an action in her payable at any bank in Leavenworth city. This it own name to recover possession of any part of it. cannot do, because such a change would deprive the Spurgeon v. Spurgeon. Opinion by Horton, C. J. holders of the bonds of the legal rights contracted when they purchased the same. The changing of the place of payment of negotiable paper already deliv ered, by an act of the Legislature, is a very different thing from the State passing a law merely changing the remedy upon a contract, which is held not to be liable to any constitutional objection. Bronson v. Kinzie, supra. Dillingham v. Hook. Opinion by Hor ton, C. J.

LIBEL AND SLANDER-PLEADING-DENIAL AND JUSTIFICATION.-In an action for slander the defendant may set up the defenses: First, that he did not use the language imputed to him; and second, that such language is true. The two defenses are not inconsistent with each other, and both may be true. Townshend Sland. and Lib., §§ 353, 361. Cole v. Woodson. Opinion by Horton, C. J. (See 2 Am. Rep. 68; 29 Eng. Rep. 313.-ED.)

PAYMENT-CHECK-WHEN NOT.-A check on a bank is not prima facie evidence of the payment of the original debt; and clearly a check drawn in favor of the debtor's agent is not prima facie evidence of the payment of the debt to the creditor, even if the creditor assents that the check shall be so drawn. In order that a check on a bank shall be payment of the original debt, it must be agreed by the parties that it shall be such payment and be taken by the creditor as payment. Edwards Bills and Notes, § 277; Kermeyer v. Newby, 14 Kans. 164; McCoy v. Hazlett, id. 430; Shepard v. Allen, 16 id. 182, 184, bottom of page; Medberry v. Soper, 17 id. 369, 375. Mullins v. Brown. Opinion by Valentine, J. (See 57 N. Y. 641.)

CONSTITUTIONAL LAW

IMPAIRING CONTRACT COUNTY BONDS-CHANGING PLACE OF PAYMENT.-Where the ponds of a county of the State of Kansas are payable upon their face at a particular bank in the city of New York, and such bonds were executed and delivered prior to the passage of the act entitled, “an act to provide for the establishment of a fiscal agency for the State of Kansas in the city of New York, and prescribing the duties of officers in relation thereto," approved March 6, 1874, said act cannot change the place of payment of the bonds of the county; and its provisions requiring the treasurer of the county by which the bonds were executed to remit to the fiscal agency of the State-being a place different from that where the bonds are payable-sufficient moneys for the payment of the bonds at the agency, is unconstitutional and void; the place of payment is a part of the contract, and a law which changes the terms of a contract impairs the same. By the contract the parties have fixed the rights and obligations, and this is regarded by the Constitution. A note or bond payable at a specified place is essentially different from one which is payable generally. Lowe v. Bliss, 24 Ill. 168; Chitty on Bills, 566; Childs v. Laflin, 55 Ill. 159. If a county gives its negotiable bonds to pay certain moneys on or before a specified day at a bank named in the bonds, the place of payment is a part of the contract, and a law which changes the terms of the contract, or releases a part of its obligation, impairs the contract. If the act of 1874 is to be construed as requiring payment of the court-house bonds of Leavenworth county executed before the taking effect of that act, at the fiscal agency of the State in New York, the same being a place different from that stated in the bonds, the act must be held unconstitutional and void, as any law that arbitrarily changes the place of payment of negotiable paper after its execution cannot be upheld,

LIMITATION-ACKNOWLEDGMENT

SURETY GIVING NEW NOTE NOT.-On October 1, 1875, one G., as surety, signed a promissory note of the amount of $1,822.50, payable one day after date to the order of the bank. On April 17, 1876, G., the said surety, executed his own note to the bank for the full amount of the note upon which he was surety, and thereon the bank wrote across the face of the first note, "Received of G., surety, $1,949.04 in full payment," and the cashier sigued his name thereto. This was upon an arrangement and understanding between the surety and the bank that the note of October 1, 1875, should be turned over to the surety solely for the purpose of enabling him to collect from the principal, or from property which it was supposed could be reached as the principal's, the amount of the note or as much thereof as he could; that the surety was to commence suit against the principal for that purpose, turn the amount collected over to the bank to be credited on the note, and assign to it the judgment, if any, obtained against the principal, and be entitled to receive from the bank the new note, and that said new note be taken and held by the bank solely as security that the surety would faithfully perform his part of the agreement. Held, that said new note of the date of April 17, 1876, was not an acknowledgment of an existing liability on the part of the surety for the first note dated October 1, 1875, and was not a promise to pay that note. Barnes v. Gragg, 28 Kans. 51, 59; Hanson v. Towle, 19 id. 273; Elder v. Dyer, 26 id. 604. Doggett v. Bell. Opinion by Horton, C. J.

CARRIER - RESTRICTED LIABILITY -NEGLIGENCEONUS ON PARTY ALLEGING.-A railroad company received merchandise to be transported to a point beyond its own line of railroad, over its own and other lines of railroad connecting with it, and gave to the shippers its receipt stating that the merchandise was shipped "at owner's risk." Held, that this receipt is a special contract limiting the liability of the carrier, and that such connecting lines of railroad are entitled to the benefits of the exemption from liability specified in it, and that neither of the companies owning such connecting lines is liable for damages to the merchan dise transported, unless it is shown that such damages arose from the negligence of the company sought to be charged. Whitworth v. Erie R. Co., 87 N. Y. 414: Kansas, etc., R. Co. v. Simpson, 30 Kans. 645. It is well settled that when the liability of the common carrier is limited by a special contract, the carrier is only liable for losses and damages caused by his own negligence, and the burden of proving the negligence is on the party who alleges it. Steamboat Emily Carney, 5 Kans. 645; Mo. Pac. R. Co. v. Haley, 25 id.

36; Shearman and Redfield Neg., § 12; Whitworth v. Erie R. Co., 87 N. Y. 413. Kiff v. Atcheson, etc., R. Co. Opinion by Hurd, J.

OHIO SUPREME COURT COMMISSION ABSTRACT.

JANUARY TERM, 1884.*

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PARTNERSHIP-SALE OF GOOD WILL-INJUNCTION.(1) M., a member of a firm at Kalamazoo, and doing business under the name of Kalamazoo Wagon Company, composed of himself, H., L., and L.'s wife, for an adequate consideration purchased of his partners all of their interest" in the property, assets, money, good-will and all other property, of every name and nature, in and to the firm of Kalamazoo Wagon Company," and continued the business under the old name. L. and other parties organized a corporation under the name of Kalamazoo Buggy Company, located their place of business in the immediate vicin

WILL-DYING WITHOUT ISSUE.-H., in her will, vised, gave and bequeathed to C. B. and D. B., her grandchildren, one-sixth of her residuary estate. She then provided, that in case of the death of both grandchildren, without issue, the property coming to them should be given to the other grandchildren of the testatrix. It appeared from all the words of the will that the contingency contemplated by the testatrix was one to occur prior to the distribution of her estate. Held, that if C. B. and D. B. survived the testatrix, their title to said share became absolute, and on their sub-sembling the circulars in use by him, and thus intersequent deaths, without issue, passed to their legal heirs. Baker v. McGrew. Opinion by Nash, J.

CORPORATION-ADMISSION BY PLEADING-ESTOPPEL

AGENT CANNOT PURCHASE - DAMAGES - FRAUD OF

PARTNER BINDS FIRM.—(1) It is a well-settled rule, that parties are bound by their written admissions made in the progress of a cause as a substitute for proof of any material fact, and cannot repudiate them at pleas ure. The admission of the existence of a corporation by pleading and setting forth the fact comes within the rule, and is binding as between parties to the suit, aud in the same suit in which such admission is made. Carradine v. Carradine, 33 Miss. 698; Elwood v. Lannon's Lessee, 27 Md. 200. The dealings of Harper & Co. with the Peckham Iron Company in its corporate name were of such a nature as not to permit a plea by them of nul tiel corporation. In full recognition of the plaintiff as a body corporate, they got possession of the one hundred and eighty tons of iron in question. The transaction they turned largely to their own pecuniary profit and advantage; and in subsequent dealing with the plaintiff, in reference to a purchase of stock in its corporation, they fully recognized its corporate existence and capacity. Under such circumstances, we think that Harper & Co. are estopped to deny the legal existence of the plaintiff as a corporation. Bigelow on Estop. 464; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343; Farmers and Merchants' Ins. Co. v. Needles, 52 Mo. 17; City of St. Louis v. Shields, 62 id. 247. (2) It is a fundamental rule, that an agent employed to sell cannot be a purchaser, unless he is known to his principal to be such; nor is the rule inapplicable or relaxed when the employment is to sell at a fixed price. Ruckman v. Bergholz, 37 N. J. L. 437. The law will not suffer one to earn a profit, or expose him to the temptation of a dereliction of his duty, by allowing him to act at the same time in the double capacity of agent and purchaser. Church v. Marine Ins. Co., 1 Mas. 341. As said by Chancellor Walworth in Van Epps v. Van Epps, 9 Paige, 241, "it is a rule which applies universally to all who come within its principle. (3) Where an agent, by false and fraudulent representations to his principal, obtains possession of his principal's goods and converts them to his own use, exemplary damages may be allowed; and in such a case the jury in estimating the damages may include the plaintiff's reasonable counsel fees as an item of compensation. Roberts v. Mason, 10 Ohio St. 277; Finney v. Smith, 31 id. 534, 535. (4) Fraudulent representations by one partner, in the course of the partnership business and transactions, will bind

the firm and create a liability co-extensive therewith.

*To appear in 41 Ohio St. Reports.

ity of M., and sent out circulars soliciting business, re

Beal

fered with and injured his business and trade. Held, that under the contract of sale M. was entitled to the good will of the business purchased; that L. was guilty of a breach of the contract; and that he and the other members of the corporation should be perpetually enjoined from using the name of Kalamazoo Buggy Company, or the circulars resembling those used by M. in the transaction of their business. v. Chase, 31 Mich. 490. (2) The decree of the Circuit Court, in addition to enjoining defendants from use of the name of Kalamazoo Buggy Company, and the use of the circulars resembling M.'s circulars, enjoined defendants from receiving mail from the post-office addressed to the Kalamazoo Buggy Company, with a provision requiring M. to deliver to defendants any mail received by him and intended for defendants, or either of them. Held, that this part of the decree was erroneous, and could not be sustained. Myers v. Kalamazoo Buggy Co. Opinion by Cooley, C. J. [Decided Sept. 23, 1884.]

MARRIAGE -SEPARATION -DESERTION -EXTREME CRUELTY.-Separation is not necessarily desertion. The latter may not arise until long after the former has occurred. Reed v. Reed, Wright, 224; Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch. 47; Clement v. Mattison, 3 Rich. 93; Fellows v. Fellows, 31 Me. 342. And when separation and desertion occur at the same time, the guilty party is not always the one who leaves the matrimonial home. St. John v. St. John, Wright, 211; id. 147; 2 Dane Abr. 308; Bish. Mar. & Div., § 514. Desertion under the statute is the willful abandonment of one party by the other without cause, and against the will of the party abandoned, for the period of two years. If the husband's conduct is so cruel toward his wife that she cannot live and cohabit with him with safety to her health or without peril to her life, or if she has good reason to believe she cannot, and for such reason she leaves him and abandons his home,she does not thereby commit the crime of desertion. In such case she does not leave her husband or her home in consequence of any willfulness on her part, but is compelled by the cruelty of her husband and against her will so to do. The desertion in such case is upon his part. and not upon hers. He as completely commits the crime of desertion when, by his cruel conversation and conduct, he compels her for safety to leave him and his home, as when be willfully and without cause leaves and abandons her. In all such cases the husband is guilty of the crime or misconduct he charges against the wife, and of course cannot have a decree. 2 How. St., § 6232. We have examined the

testimony in this case with care, and find very many

of the averments contained in the answer sustained by the proofs, particularly those relating to the crue,

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