State, although referred to in later statutes of the State as an existing law, and assumed to be such in earlier cases in the State court, in which its validity was not, and by the settled practice of that court could not be controverted. (4) The printed journals of either house of a Legislature, published in obedience to law are competent evidence of its proceedings. Judgment of the U. S. Circ. Ct., N. D. Illinois, affirmed. Amoskeag National Bank v. Town of Ottawa. Opinion by Gray, J.

[Decided May 8, 1882.]

CONSTITUTIONAL LAW — LOCAL WHARFAGE CHARGES NOT TAX ON TONNAGE NOR REGULATION OF COMMERCE. -The town of C., situate upon the Kentucky shore of the Ohio river, under the authority of the Kentucky Legislature constructed wharves within its limits, and established by ordinance regulations as to the places of landing of vessels, wharfage charges determined by the tonnage of the boats landing and the time of occupancy, and fixed a penalty for violating the regulations. Held, that the regulations were not invalid as in violation of the constitutional provisions in relation to tonnage taxes and regulations of commerce. If the trustees of the town had a right to compensation for the use of the improved landing or wharf which they had made, it is no objection to the ordinance fixing the amount of this compensation that it was measured by the size of the vessel, and that this size was ascertained by the tonnage of each vessel. It is idle, after

ness of a machine) is evidence of invention, and may be the subject of a patent. Webster's improvement in looms for weaving pile fabrics, which consisted in such a new combination of known devices as to give to a loom the capacity of weaving fifty yards of carpet a day, when before it could only weave forty,-held to be patentable, and his patent for the same, dated August 27, 1872, sustained. (3) Of two original inventors, the first will be entitled to a patent unless the other puts the invention into public use more than two years before the application for a patent. (4) An invention relating to machinery may be exhibited as well in a drawing as in a model, so as to lay the foundation of a claim to priority, if sufficiently plain to enable those skilled in the art to understand it. (5) Though the defence of prior invention ought to be set out in the answer, yet if the omission to set it out is not objected to at the proper time in the court below, it cannot be objected to in this court. Roemer v. Simon, 95 U. S. 220. Decree of U. S. Circ. Ct. S. D., New York, reversed. Webster Loom Co. v. Higgins. Opinion by Bradley, J. [Decided May 8, 1882.]

PUNCTUATION MORTSTATUTES AUTHORIZING REDEMPTION DO NOT RAILROADS - CHATTEL MORTGAGE. — (1) Where a comma after word in a statute, if any force was attached to it, would give the section containing it a broader scope than it would otherwise have, held, that that circumstance should not have a controlling influPunctuation is no part of the statute. Lord

ence.

Cannon v. New Orleans, 20 Wall. 597; Packet Co. v. St. Louis, 100 U. S. 428; Same v. Keokuk, 95 id. 80; Guy v. Baltimore, 100 id. 442. Still less ground exists for holding that the penalties imposed for a refusal to obey the rules for places of landing are taxes on tonnage. Nor is there any room to question the right of a city or town situated on navigable waters to build and own a wharf suitable for vessels to land at, and to exact a reasonable compensation for the facilities thus afforded to vessels by the use of such wharves, and that this is no infringement of the constitutional provisions concerning tonnage taxes and the regulation of commerce. A regulation as to the landing of vessels belongs to that class of rules which, like pilotage and some others, can be most wisely exercised by local authorities, and in regard to which no general rules, applicable alike to all ports and landing places, can be properly made. If a regulation of commerce at all, it comes within that class in which the States may prescribe rules until Congress assumes to do so. Cooley v. Board of Wardens, 12 How. 237; Gilman v. Philadelphia, 3 Wall. 727; Crandall v. Nevada, 6 id. 42; Pound v. Turck, 95 U. S. 462. Decree of U. S. Circ. Ct., Kentucky, affirmed. Cincinnati & Pomeroy Packet Co. v. Trustees of Catlettsburg. Opinion by Miller, J.

OF INVENTION

PRIORITY BETWEEN CLAIMANTS —

PLEADING.—(1) A specification in letters-patent is sufficiently clear and descriptive, when expressed in terms intelligible to a person skilled in the art to which the invention belongs. Evidence is admissible to show the meaning of terms used in a patent, as well as the state of the art, for the purpose of enabling the court or jury to understand it. If an improvement of a well-known appendage to a machine is fully described in a specification, it is not necessary to show the ordinary modes of attaching the appendage to the machine; the patent is to be read as if the machine and its appendage were present, or in the mind of the reader, and he, a person skilled in the art. (2) A new combination of known devices, producing a new and useful result (as that of greatly increasing the effective

in construing acts of Parliament or deeds should read them with such stops as will give effect to the whole. Sedgw. Constr. Stat. (2d ed.) 223, note a; Bouv. Law. Dic. 347, 402. The general rule is well illustrated in Barrington's Statutes (4th ed.) 438, note x; Price v. Price, 10 Ohio St. 316; Cushing v. Worrick, 9 Gray, 385; Gyger's Estate, 65 Penn. St. 311; and Hamilton v. Str. R. B. Hamilton, 16 Ohio St. (N. S.) 432. In the last case it was said: "But for the punctuation, as it stands, there could be little doubt but that this was the meaning of the legislature. Courts will however, in the construction of statutes, for the purpose of arriving at the real meaning and intention of the law makers, disregard the punctuation, or repunctuate, if need be, to render the true meaning of the statute." (2) Statutory provisions giving the right to redeem, as well lands or tenements sold under execution, as mortgaged lands sold under decrees of courts of equity, have no application to the real estate of a railroad corporation, which with its franchises and personal property is mortgaged, as an entirety, to secure the payment of money borrowed for railroad purposes. Mortgaged real estate, to which is attached the right of redemption, is such and such only as could at law be levied upon and sold on execution. The right does not extend to real estate of a public corporation, mortgaged with its franchise to acquire, hold, and use property for public purposes, and whose chief value depends upon its being so used and appropriated. The difference between real estate, so acquired, held, and used, and real estate which may at law be sold under execution, is well illustrated in Gue v. Tide Water Canal Co., 24 How. 262. In that case it appeared that an execution was levied upon a house and lot, sundry canal locks, a wharf-boat, and several lots, the property of the canal company, chartered under the laws of Maryland for the construction of a canal from Havre de Grace, in that State, to the Pennsylvania line. The property so levied upon was admitted to be necessary to the uses and working of the canal, which was a public improvement, and a great thoroughfare of trade. It was of little value apart from the franchise to take tolls, and if sold separately under execution, the franchise to take tolls, said Taney, C. J., speaking for

the court, would not have passed to the purchaser. It was consequently ruled that the real estate there in controversy could not be seized and sold under fieri facias, and consistently with the rights of stockholders and creditors, could not be sold separately from the franchise from which was derived its chief value. (3) Statutory provisions in regard to chattel mortgages, held, not to embrace mortgages by a railroad corporation, in connection with its real estate and franchises, of its personal property used and appropriated for railroad purposes. Decrees of U. S. Circ. Ct., S. D. Illinois, affirmed. Hammock v. Farmers' Loan & Trust Co. Opinion by Harlan, J.

[Decided May 24, 1882.]

UNITED STATES CIRCUIT COURT

ABSTRACT.*

BOUNDARIES STATE MAY BE BOUND BY.- (1) Non-navigable streams are usually narrow, and the lines of riparian owners can readily be extended into them at right angles without confusion or injustice. But practical difficulties arise in applying the rule to lakes and ponds having no current, and being more or less circular. Mere proprietorship of the surrounding lands will not in all cases give ownership to the beds of natural non-navigable lakes and ponds. As to them the application or non-application of the rule depends largely upon the facts in the given case. The rule is that while a general grant of land on a river or stream non-uavigable extends the line of the grantee to the middle or thread of the current, a grant on a natural pond or lake extends only to the water's edge. See Wheeler v. Spinola, 54 N. Y. 377; Canal Com`rs v. People, 5 Wend. 423; Dillingham v. Smith, 30 Me. 370; Mansur v. Blake, 62 id. 38; Paine v. Woods, 108 Mass. 160; State v. Gilmauton, 9 N. H. 461; Mariner v. Schulte, 13 Wis. 775; Delaplaine v. Chic. & N. W. R. Co., 42 id. 214; Boorman v. Sunuuchs, 42 id. 233; Seaman v. Smith, 24 Ill. 521; Austin v. Rutland R. Co., 45 Vt. 215. (2) Resolute good faith should characterize the conduct of States in their dealings with individuals, and there is no reason, in morals or in law, that will exempt them from the doctrine of estoppel. Commonwealth v. Andre, 3 Pick. 224; Commonwealth v. Pejepscut Proprietors, 10 Mass. 155; People v. Soc. for Prop. of Gosp., 2 Paine, 545; State v. Bailey, 19 Ind. 452; People v. Maynard, 15 Mich. 463; Cahn v. Barnes, 5 Fed. Rep. 326. U. S. Circ. Ct., Indiana, April 8, 1882. State of Indiana v. Milk. Opinion by Graham, C. J.

-ALONG PONDS OR LAKES ESTOPPEL.

CONTRACTDAMAGES.-(1) In contracts for services, for marriages, for deliveries of merchandise, if the principal, before the time for performance arrives, renounces the contract, an immediate action will lie. Accordingly where defendants contracted to deliver a quantity of ice at 50 cents per ton during the season, "while the river is open," and in consequence of the price of ice during the season rising to five dollars per ton, they unqualifiedly refused to ship the ice that season, it was held that an action may be maintained, though brought before the close of the season. Hochster v. De Latour, 2 Ell. & Bl. 678; Frost v. Knight, L. R., 7 Ex. 111; Roper v. Johnson, L. R., 8 C. P. 167; Crabtree v. Messersmith, 19 Iowa, 179; Holloway v. Griffith, 32 id. 409; Fox v. Kitton, 19 Ill. 519; Burtis v. Thompson, 42 N. Y. 246; Howard v. Daley, 61 id. 362. (2) In such action

WHEN ACTION LIES FOR BREACH OF

the measure of damages is the value of the ice, to be estimated at what plaintiffs lost. Ex parte Llansamlet Tin Plate Co., L. R., 16 Eq. 155; Brown v. Muller, L. R., 7 Ex. 319. U. S. Circ. Ct., Maine, September term, 1881. Dingley v. Oler. Opinion by Lowell, C. J.

*Appearing in 11 Federal Reporter.

REMOVAL OF CAUSE - CONSTRUCTION OF ACT OF 1875 FRACTION OF DAY.-(1) Under the act of March 3, 1875, the first clause of the section providing for the removal of causes into the Circuit Court, requires all the plaintiffs or all the defendants to have the right to remove the cause, but by the second clause any one interested, either plaintiff or defendant, may petition if the controversy can be fully determined as to him. The first clause refers to an ordinary action at common-law, where there is only one party on each side, and the second refers to suits where there may be distinct controversies between different sets of plaintiffs and defendants. See removal cases 100 U. S. 457; Ruck. man v. Palisade Land Co., 1 Fed. Rep. 367; Burke v. Flood, id. 541; Smith v. McKay, 4 id. 353; Bybee v. Hawkett, 5 id. 1. (2) The matter in dispute must at

the time of filing the petition exceed $500, and if by amendment in the State court, the amount has been reduced to less than that sum, the cause cannot be removed. (3) The ancient maxim that the law knows no fractions of a day is now known chiefly by its exceptions. When private rights depend upon it, courts will inquire into the hour at which an act was done, or a decree entered, or an attachment laid, or any title accrued. National Bank v. Burkhardt, 100 U. S. 686; Wydown's case, 14 Ves. Jr. 80; Re Wynne, Chase, 227; Westbrook Co. v. Grant, 60 Me. 88: Re London & Devon B. Co., L. R., 12 Eq. 190: Re Pettit, L. R., 1 Ch. D. 478. The crown in England has a prerogative

to be conclusively presumed the first to have acquired a right on a given day. Reg. v. Edwards, 9 Ex. 32. And there is some doubt whether the hour at which a statute became law can be proved, though the court thinks it may. See Richardson's case, 2 Story, 571; Kennedy v. Palmer, 6 Gray, 316; Lapeyre v. United States, 17 Wall. 191. U. S. Circ. Ct., Maine, March 25, 1882. Maine v. Gilman. Opinion by Lowell, C. J.

CARRIER-RAILROAD - EJECTION OF PASSENGER FOR REFUSAL TO PAY ADVANCED PRICE ON TRAIN REFUSAL TO CARRY ON SAME TRAIN FOR FARE.- (1) The table of prices for fare on a railroad authorized the ticket-seller at D. to make a discount of fifteen cents for passengers who purchased tickets to L., the advertised fare being 65 cents. Plaintiff, who desired to take passage from D. to L., went to the ticket-office after the time for the departure of the train as advertised had expired, but there was sufficient time to purchase if the ticket-seller had been in the office, but he had only remained there up to the advertised time. Plaintiff then took passage without a ticket, and refusing to pay more than the price asked at the ticket-office, was ejected from the train by the conductor, who demanded the full fare. Held, that the ejection was justifiable. It has been held in a few cases that the offer to carry passengers at a less rate if tickets were purchased, was in the nature of a proposal like other proposals to enter into a contract dependent for its acceptance upon the compliance with its condition; that it might be withdrawn at any time; that closing the office for the sale of tickets was such withdrawal; and that the offer carried with it no obligation

on the part of the company to open an office or to keep such office open for any length of time, it being merely an offer to make the deduction if the ticket should be procured. Crocker v. New London R. Co., 24 Conn. 249; Bordeaux v. Erie R. Co., 8 Hun, 579. In a much larger number of cases, and with much better reason, it has been held that where the railroad undertakes to conduct its business by means of tickets, whether it requires, as it may, the possession of a ticket as a prerequisite to entering its cars or whether it offers a deduction from the regular or advertised rate to one who shall procure a ticket in advance, it is a part of its duty to afford a reasonable opportunity to obtain its tickets. St. Louis & Alton R. Co., v. South, 43 Ill. 176; Jeffersonville R. Co., v. Rogers, 38 Ind. 116; Indianapolis R. Co. v. Rinard, 46 id. 293; DuLaurans v. St. Paul R. Co., 15 Minn. 49. Adopting on this part of the case the rule most favorable to the plaintiff, he was afforded a fair and reasonable opportunity to obtain a ticket. The delay of the train did not enlarge his rights, nor would it entitle him to insist that at the station whence he was to start the office of the ticket-seller should not be closed until its arrival. The plaintiff having no right to insist on being carried for the price of a ticket, and declining to pay the regular fare, was properly excluded from the train. (2) The exclusion from the train took place at W., a station intermediate D. and L. While the train was stopping plaintiff undertook to purchase a ticket from W. to L. for the purpose of continuing his journey on the same train, and tendered the ticket-seller at W. money therefor which was accepted by the ticket-seller, but he on learning the circumstances refused to sell the ticket, and tendered back the money which plaintiff refused to accept, and the train left W. without plaintiff. Held, that the refusal to sell the ticket was justifiable. While the journey which he had commenced and for which he had contracted to pay continued, he could not at his pleasure break it into two separate transactions. That which he sought to make had been included in his original contract, and the railroad company was not obliged to readmit him to the same train from which his exclusion had been proper, so long at least as he persisted in his violation of the contract he had originally made. Stone v. Chicago & Northw. R. Co., 47 Iowa, 82; O'Brien v. New York Cent., etc., R. Co., 80 N. Y. 236. Swan v. Manchester & Lawrence R. Co., Opinion by Devens, J.

TITLE- PLEDGE LEFT IN POSSESSION of pledgor. - Defendant loaned C. money and indorsed his note. At that time C. gave to defendant a bill of certain carriages, receipted, which also stated that it was "for security for end. notes and cash." At the time this writing was given defendant went with C. to the stable where the carriages were, and thereupon C. poir.ed out the carriages to defendant and stated that he divered them to defendant, who left them in C.'s po. session, with the agreement that C. might use and let the same in his business. The carriages remained in C.'s possession up to the time of his death, soon after which, and prior to the appointment of an administrator, the defendant took possession of the carriages. In an action by the administrator for the value of the carriages, held that the case was not to be distinguished from Walker v. Staples, 5 Allen, 34. When the defendant, after the formal delivery to him, returned the property to the hands of the pledgor, permitted him to use and let it in his business, and allowed it thus to remain in the possession of the plaintiff's intestate up to the time of his death, he had abandoned the rights which he had acquired. Kimball v. Hildreth, 8 Allen, 167. He could not regain them by taking possession of the property after the decease of the plaintiff's intestate, but stood in the same position as his other creditors. Thompson v. Dolliver. Opinion by Devens, J.

WITNESS COURT DECIDES QUALIFICATION OF EXPERT. Whether a witness who is called as an expert has the requisite qualifications and knowledge to enable him to testify is a preliminary question for the court. The decision of this question is conclusive unless it appears upon the evidence to have been erroneous, or to have been founded upon some error in law. Nunes v. Perry, 113 Mass. 276; Commonwealth v. Sturtivant, 117 id. 122. Perkins v. Stickney. Opinion by Endicott,

J

PENNSYLVANIA SUPREME COURT ABSTRACT.

LIMITATIONS -WHEN STATUTE BEGINS ON DUE BILL ON DEMAND.- The statute of limitations begins to run upon a due bill payable on demand at its date. It is a well-recognized rule of law that the statute begins to run on a promissory note, whether negotiable or not, whenever a cause of action accrues thereon; that is, from the time the holder has a right to demand the thing claimed. Bucklin v. Ford, 5 Barb. 393; 2 Parson Not. and B., 641. The words 66 on demand "

in a note do not make the demand a condition precedent to a right of action, but import the debt is due and demandable immediately, or at least that the commencement of a suit therefor is a sufficient demand; Byles Bills, 342; Taylor's Ad'mrs v. Witman's Adm'rs, 3 Grant, 138; Milne's Appeal, 29 Pittsb. L. J. 397. A promise in writing to pay a note "at any time within six years from this date," was held a promise to pay on demand, and the statute ran from its date. Young v. Weston, 39 Me. 492. The rule applicable in case of a promise to return specific property or securities on demand, as in Finkbone's Appeal, 5 Norr. 368, and of a deposit in bank, as in Girard Bank v. Bank of Penn Township, 3 Wright, 82, does not apply to a due bill. Andress' Appeal. Opinion by Mercur, J [Decided March 21, 1882.]

MUNICIPAL CORPORATION NOT LIABLE FOR INJURY CAUSED BY MERE SLIPPERINESS OF ICE IN STREET. - A municipal corporation is not liable for an injuryto a person falling on ice in the street where the fall was due to the mere slipperiness of the ice, no hill or ridge having been suffered to accumulate. A mere unevenness of the surface, there being nothing in the surroundings to attract the notice of the authorities, will not be sufficient to impose liability. As was said in McLaughCity of Corry, 27 P. F. Smith, 113. "A municipality cannot prevent the general slipperness of its streets caused by the snow and ice during the winter, but it can prevent such accumulations thereof in the shape of ridges and hills as render their passage dangerous. Burrough of Mauch Chunk v. Kline. Opinion by Sharswood, J.

lin v.

[Decided March 20, 1882.]

NEGLIGENCE - ONE CROSSING RAILWAY BY PUBLICLY USED PATH NOT TRESPASSER. - A person crossing a railway track by a common and well-known foot path used by the public is not a trespasser, and tho railroad company is not relieved from liability for a negligent injury to him, on the ground that being a trespasser he was therefore guilty of contributory negligence. The court say that such a foot-path "must certainly have been well-known to the employes and officers of this company, and if, without let or hindrance, the use of it was permitted to persons desiring to cross and recross the roadway, we cannot see how one thus using it could be treated as a trespasser. Certainly, if a private person had so permitted his land to be used, an action to trespass by him against one passing over it, without previous notice or prohibition, would meet with little favor. But we cannot, in this respect, clothe corporations with powers superior to

PATENT LIABILITY OF LICENSEE OF INVALID FOR ROYALTIES. The licensee of a patent while it is apparently valid, and he is enjoying the benefit of its supposed validity, is bound to pay the stipulated royalty, and cannot set up as a defense the actual invalidity of the patent; but when, in addition to the invalidity of the patent, by reason of a prior outstanding patent for the same invention, it is shown that the owner of the prior patent is asserting his exclusive rights thereunder by supplying the market with the patented article, forbidding all interference on the part of others, and the licensee under the invalid patent is deprived of the enjoyment of the monopoly for which he contracted, and in consideration of which he agreed to pay the royalty, he may defend on the ground of the actual failure of the consideration; Marston v. Swett, 82 N. Y. 527. That was a suit by a patentee against his licensee to recover royalty, in which the defense was failure of consideration; and the court say, "the substantial consideration to uphold these royalties was the transfer to defendants of a monopoly, the right to an exclusive use, and we see at once that the evidence offered tended to show the total failure of that consideration. It is impossible not to see that if the plaintiff's theory should prevail, these defendants might be liable at one and the same time to pay royalties to the plaintiff, who had no patent, and to Goodfellow, who had. The injustice of such a result makes us slow to believe that any rule of law requires us to sustain it." Angier v. Eaton. Opinion by Sterrett, J.

[Decided Jan. 2, 1882.]

SUBROGATION -LIEN OF CREDITOR ON TWO FUNDS WHERE OTHER CREDITORS. -The equitable principle that when a creditor has a lien on two funds in the hands of the same debtor, and another creditor has a lien only on one of the funds, the former may be compelled to levy his debt out of the fund to which the latter cannot resort; or what is tantamount thereto, if the former takes his money out of the fund, on which alone the latter has a lien, he may to that extent be subrogated to the rights of the former as against the other fund, does not apply except in cases where both funds are in the hands of the common debtor of both creditors. Ex parte Kendall, 17 Ves. 520; Ebenhardt's Appeal, 8 W. & S. 327; Lloyd v. Galbraith, 8 Casey, 108. Conser's Appeal. Opinion by Sterrett, J.

[Decided Oct. 3, 1881.]

WISCONSIN SUPREME COURT ABSTRACT.* FEBRUARY 7, 1882.

BAILMENT -TRUE OWNER CAN ENFORCE TITLE AGAINST BAILEE OR CONSIGNOR.-The true owner of personal property may enforce his right to it as against the consignor or consignee or carrier, or other bailor or bailee, whenever he sees fit to do so, before its delivery to the bailee as directed by the bailor. A package of money belonging to W. alone was sent by express directed to W. & C., and upon W.'s demanding it as *To appear in 54 Wisconsin Reports.

sole owner, without any assignment by C. of his apparent interest to W., or written order by C. to deliver to W., or offer of any receipt or acquittance from both, the express company refused to deliver it to W., claiming that the money had been subjected to process of garnishment in its hands. Held, that apart from the question of garnishment, W. may recover the full amount of such moneys. See upon this subject Ogle v. Atkinson, 5 Taunt. 759; Sheridan v. New Quay Co. 4 C. B., N. S. 617; Hardman v. Willcock, 9 Bing. 382; Cheesman v. Exall, 6 Exch. 341; Wilson v. Anderton, 1 B. & Ad. 450; Dixon v. Yates, 5 id. 340; Taylor v. Plumer, 3 M. & S. 362; Patterson v. Robinson, 5 id. 105; Bidde v. Band, 34 Law J. Q. B. 137; Thorne v. Tilbury, 3 H. & N. 534; Blivin v. Hudson River R. Co., 35 Barb. 188; Bates v. Stanton, 1 Duer, 79; Rogers v. Weir, 34 N. Y. 463; Western Transportation Co. v. Barber, 56 id. 544; Floyd v. Bovard, 6 W. & S. 75; King v. Richards, 6 Whart. 418; Lawrence v. Berry, 19 Ala. 130; Rosenfield v. Express Co., 1 Woods. 131; The Idaho, 93 U. S. 575; American Express Co. v. Greenhalgh, 80 Ill. 68. Wells v. American Express Co., Opinion by Orton, J.

FRAUDULENT CONVEYANCE- EXCHANGE OF LANDS BY HUSBAND AND WIFE - PRESUMPTION. In this case which was an action to have declared fraudulent a deed from a husband to a wife as in fraud of creditors. The judgment below was in favor of plaintiffs. It appeared that the wife conveyed her own land in Iowa (which was the homestead) to the defendant husband by a valid deed, and took from him in exchange the deed in question, which was of Wisconsin land of less value. There was no evidence that she knew of her husband's insolvency or indebtedness. Held, that the judgment below would be reversed for want of proof of fraud on her part. It has frequently been held by this court that a deed based upon an adequate consideration, directly from the husband to the wife, is good in equity. Putuam v. Bicknell, 18 Wis. 351; Hannon v. Oxley, 23 id. 519; Beard v. Dedolph, 29 id. 136; Fenelon v. Hogoboom, 31 id. 172; Carpenter v. Tatro, 36 id. 297; Dayton v. Walsh, 47 id. 118; Horton v. Bell, 10 N. W. Rep. 599. There would seem to be no good reason why contracts, when bona fide made for such conveyance, based upon a valuable and adequate consideration, should not be specifically enforced in equity. Livingston v. Livingston, 2 Johns. Ch. 537; Wolfe v. Insurance Co., 39 N. Y. 49; Hunt v. Dupuy, 11 B. Monr. 285. The burden of proving, as a matter of fact, that the conveyance was made with the intent to defraud creditors, was upon the plaintiff. Hyde v. Chapman, 33 Wis. 392; Barkow v. Sanger, 47 id. 500. In the cases cited this court held that such transactions should be subjected to close scrutiny, but it is unwilling to hold that they are presumptively fraudulent from the mere relation of the parties. In order to avoid a sale as being in fraud of creditors both parties must be connected with the fraudulent design. Sterling v. Ripley. 3 Pinney, 135; Hopkins v. Langton, 30 Wis. 379. same rule prevails in the courts of Iowa. Fifield v. Gaston, 12 Iowa, 218; Steele v, Ward, 25 id. 535; Preston v. Turner, 36 id. 671; Drummond v. Couse, 39 id. 442; Kellogg v. Aherin, 48 id. 299. The rule seems to be universal. Leach v. Francis, 41 Vt. 670; Ewing v. Runkle, 20 Ill. 488; Violett v. Violett, 2 Dana, 326; Foster v. Hall, 12 Pick. 89; Bryne v. Becker, 42 Mo 264; Bancroft v. Blizzard, 13 Ohio, 30; Splawn v. Martin, 17 Ark. 146; Governor v. Campbell, 17 Ala. 566; Ruhl v. Phillipps, 48 N. Y. 125; Jaeger v. Kelley, 52 id. 274. It is thus established that before a conveyance made by a grantor with the intent to defraud his creditors will be set aside as against the grantee, it must be made to appear that such grantee participated in or had knowledge of such intent. There would be no equity in setting asido

The

the deed from the husband to the wife, as the one from her to him of the Iowa land was valid, even if they both intended to defraud the husband's creditors. Jones v. Lake, 2 Wis. 210; Eaton v. White, 2 id. 292: Railway V. Seeger, 4 id. 268; Fargo v. Todd, 6 id. 106; Schettler v. Brunette, 7 id. 197; Reynolds v. Vilas, 8 id. 471; Janvrin v. Maxwell, 23 id. 51; Clemens v. Clemens, 28 id. 637; Dietrich v. Koch, 35 id. 618; Gunderman v. Gunnison, 39 Mich. 317. Mehlhop v. Pettibone. Opinion by Cassoday, J.

MASTER AND SERVANT -INJURY TO SERVANT BY DEFECTIVE APPLIANCES - KNOWLedge of sERVANT.

- In an action against a railway company for injuries to an employee, where the whole evidence shows beyond dispute that the sole cause of the injuries was the use of one bolt of insufficient length in fastening a slat of the ladder of a freight car, together with the somewhat decayed condition of the wood at the place of such bolt. and that there was no external indication of these defects, and the person injured had been frequently in charge of the same car, and in the habit of using the same ladder, there was no error in directing a nonsuit. One railroad company receiving a loaded car from another, and running it upon its own road is not bound to repeat the tests which are proper to be used in the original construction of such a car, but may assume that all parts of the car which appear to be in good condition are so in fact. See Wedgwood v. Railway Co., 41 Wis. 478; Smith v. Railway Co., 42 id. 520; Morrison v. Railway Co., 44 id. 405; Steffen v. Railway Co., 46 id. 265; Railway Co. v. Hightower, 92 Ill. 139; Railway Co. v. Toy, 91 id. 474; DeGraff v. Railway Co. 76 N. Y. 125; Warner v. Railway Co., 39 id. 468; Baldwin v. Railway Co., 50 Iowa, 680; Davis v. Railway Co., 20 Mich. 105; Railway Co. v. Gildersleeve, 33 id. 133; Railway Co. v. Barber, 5 Ohio St. 541. It has frequently been held that an employee who has knowledge of defects in machinery about which he is employed, or who might know them by the exercise of reasonable care, cannot maintain an action for injuries resulting therefrom, if he continues in the employment without objection." Way v. Railway Co., 40 Iowa, 341; Kray v. Railway Co., 32 id. 357; McGlynn v. Brodie, 31 Cal. 376; Devitt v. Pacific Railway Co., 50 Mo. 302; Dillon v. Railway Co., 3 Dill. C. C. R. 320; Sullivan v. Ind. Mfg. Co., 113 Mass. 396; Railway Co. v. Black, 88 Ill. 112. In Hayden v. Railway Co., 29 Conn. 548, it was held that an employee cannot recover for an injury suffered in the course of his employment from a defect in the machinery used by his employer, unless the employer knew or ought to have known of the defect, and the employee did not know of it or had not equal means of knowledge." The fairness of such a rule cannot well be questioned, as it places both parties upon an equality; and it is not materially different from the rule frequently recognized by this court. Dorsey v. Railway Co., 42 Wis. 583; Flanagan v. Railway Co., 45 id. 98; S. C., 50 id. 462. Ballou v. Chicago & Northwestern Railway Co. Opinion by Cassoday, J.

CRIMINAL LAW.

EVIDENCE-TESTIMONY OF DECEASED WITNESS. The evidence of a deceased witness on the commitment trial is admissible on the subsequent trial before the jury for the offense. It is a continuous prosecution for the same offense and the parties identical. Such evidence could be proved by parol, although it may have been held that what the magistrate took down in writing would have been better evidence of what the witness swore, since it was not shown that the evidence was taken down in writing in this case. Georgia Sup. Court, March 7, 1882. Robinson v. State of Georgia. Opinion by Jackson, C. J.

EVIDENCE WHEN TESTIMONY TAKEN AT FORMER TRIAL INADMISSIBLE.- Where a witness who testified at the preliminary examination of the defendant upon the same charge is living, but has gone out of and beyond the jurisdiction of the court, evidence of what he said on the former trial is inadmissible in a criminal prosecution. In United States v. Wood, 3 Wash. C. C. 440, it was held that what a witness (since dead) swore at a previous trial of the same indictment might be proved, provided the persons undertaking to repeat the testimony could do it as it was given, and not repeat the substance of it. So held in Summons v. State, 5 Ohio St. 325. And in United States v. Macomb, 5 McLean, 286, where the defendant was arrested for robbing the mail, and a witness who testified in the preliminary examination died before the trial on the indictment, it was held that proof of his testimony on the preliminary trial was admissible. This is when the witness was dead. In cases where the witness was living, but had gone without the jurisdiction the decisions have been very uniform that the testimony is not admissible. In Finn v. Commonwealth, 5 Rand. 701, it is said that proof of what a witness said upon a former trial is inadmissible in a criminal prosecution, especially where he has only removed out of the State. The same was held in New York in the case of People v. Newman, 5 Hill, 295. So also in Brogy v. Commonwealth, 10 Gratt. 722; in Bergen v. People, 17 Ill. 426; in State v. Houser, 28 Mo. 233. U. S. Circ. Ct., New Hampshire, March, 1881. United States v. Angell, 11 Fed. Rep. 34.

PLEADING -WHEN CONTRADICTION IS NOT MATERIAL VIOLATION OF SUNDAY LAW. An indictment under a statute of Maryland forbidding the sale of spirituous liquor on Sunday charged the traverse, with unlawfully selling a quantity of spirituous liquor, not less than a pint, to a particular person named, on the 4th day of July, 1879, "the same day in the year aforesaid being the Sabbath day, commonly called Sunday." It was objected by the traverser that the indictment was fatally defective because of the averment, that the 4th day of July of the year 1879, on which the sale of the liquor was alleged to have beer made was Sunday, whereas in fact, as the court was judicially bound to know, the 4th day of July of that year was Friday. Held that the gist of the offense being the sale of the forbidden article on Sunday, the day of the week, rather than the day of the month, was the material averment in respect to time; and the indictment charging the offense to have been committed on Sunday, though the day of the month it named did not fall on Sunday, was sufficient. Where the offense consists in doing a thing on Sunday, the indictment will be good if it charge the unlawful act to have been done on Sunday, though the day of the month given in it falls on some other day of the week. See McGowan v. Commonwealth, 2 Met. (Ky.) 3; State v. Drake, 64 N. C. 589; Commonwealth v. Harrison, 11 Gray, 308. Maryland Ct. of Appeals, June 30, 1881. Hoover v. State of Maryland. Opinion by Alvey, J., 56 Md. 584.

RECENT ENGLISH DECISIONS. CRIMINAL LAW FORMER ACQUITTAL WHEN PRISONER HAS NOT BEEN IN PERIL. In one indict