He then adverts to the decision in Thompson v. Stanhope, as following the same doctrine, and declares that he could not abandon a jurisdiction which his predecessors had exercised, by refusing to forbid a publication in a case to which the principle they had laid down directly applied. He then says: Such is my opinion, and it is not shaken by the case of Perceval v. Phipps' and siguificantly adds: I think it will be extremely difficult to say where the distinction is to be found between private letters of one nature and private letters of another nature.'"'

Such also was the view of Story; for he says (sections 947, 948, Eq. Jur.), speaking of private letters on business, or on family concerns, or on matters of personal friendship: "It would be a sad reproach to English and American jurisprudence, if courts of equity could not interpose in such cases, and if the rights of property of the writer should be deemed to exist only when the letters were literary compositions. If the mere sending of letters to third persons is not to be deemed, in cases of literary composition, an utter abandonment of the right of property therein by the sender, a fortiori, the act of sending them cannot be presumed to be an abandonment thereof, in cases where the very nature of the letters imports, as matter of business, or friendship, or advice, or family or personal confidence, the implied or necessary intention and duty of privacy and secrecy. Fortunately for public as well as for private peace and morals, the learned doubts on this subject have been overruled, and it is now held that there is no distinction between private letters of one nature and private letters of another;" citing Gee v. Pritchard.

In Folsom v. Marsh, supra, a case decided in the Circuit Court of the United States for the First Circuit, Justice Story held that an author of letters or papers of whatever kind, whether they be letters of business or private letters, or literary compositions, has a property therein, unless he has unequivocally dedicated them to the public, or to some private person; and no person has any right to publish them without his consent, unless such publication be required to establish a personal right or claim, or to vindicate character. "The general property," he says, "and general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the correspondence remains in the writer and his representatives; * ** a fortiori, third persons, standing in no privity with either party, are not entitled to publish them to subserve their own private purposes of interest, or curiosity, or passion. If the case of Perceval v. Phipps, 2 Ves. & B. 21-28, before the then vice-chancellor (Sir Thomas Plumer), contains a different doctrine, all I can say is that I do not accede to its authority; and I fall back upon the more intelligible and reasonable doctrine of Lord Hardwicke in Pope v. Curl, 2 Atk. 342, and Lord Apsley in the case of Thompson v. Stanhope, 2 Amb. 737, and of Lord Keeper Henley Eden in the case of Duke of Queensberry v. Shebbeare, 2 Eden, 329, which Lord Eldon has not scrupled to hold to be binding authorities upon the point in Gee v. Pritchard. 2 Swanst. 403."

If this be the law, where the right of publication is in question, assuredly it is not less so in a case where third persons, having obtained possession of private letters, are seeking to make them the subject of sale and purchase, without the consent of the writers. Nor do I think the court should hesitate to apply the principle here, although the writers are not themselves interposing for equitable relief, since, if the property right is yet retained by the writers, no lawful sale of the letters can be made. In Eyre v. Higbee, 22 How. Pr. 198 decided by Judges Gould, Mullin and Ingra

ham, all concurring it was adjudged that letters in regard to matters of business or friendship, although they pass to an executor or administrator, are not assets in their hands, and cannot be made the subject of sale or assignment by them. This judgment of the court was made expressly to rest upon the principle that "the property which the receiver of letters acquires in them is not such a property as the holder must have in order to make them assets." Motion for a new trial overruled.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

BOND CONDITIONAL SURETIES.-In an action against a county trensurer and his sureties upon his official bond for a default, it appeared that the sureties had executed the bond and placed it in the hands of third parties, upon an agreement with the principal that it should not be delivered until other sureties should sign and qualify to a certain amount; that after this the principal persuaded the persons holding the bond to deliver it to him, and he presented it to the county supervisors, by whom it was accepted without knowledge of any condition in its execution. Held, that the sureties were liable thereon. It is conceded by the appellants that if they had delivered the bond to the principal with the same understanding, his delivery would be a good delivery, and the appellants would be precluded from setting up the fact that the bond was signed with conditions, unless they could show that the supervisors had knowledge of the conditions, or were put upon inquiry in respect to them. The law indeed is well settled, at least in this State, that in such case the sureties would be deemed to have clothed the principal with apparent power to deliver the bond. Carroll Co. v. Ruggles, 69 Iowa, 275. But it is said that the case is different where the sureties took the precaution to put the bond into the hands of a third person. To this however we have to say that it appears to us that Johnson and Dunlavey were the agents solely of the sureties, and if the bond was delivered in violation of the conditions upon which the sureties signed it, it was the fault of their own agents. The sureties selected untrustworthy persons, and the loss should not fall upon the county, who had had nothing to do with these persons. If the supervisors had received the bond from Johnson and Dunlavey, it may be that they would have been charged with the duty of discovering what their powers were. But they received the bond from the very person who might be expected to deliver it, and who had the apparent power to deliver it. If we should sustain the appellants in their defense, no such bond could be safely accepted by a board of supervisors, though presented by the principal, until they had brought all the sureties before them, and ascertained from them upon what conditions, if any, they had signed the bond, and if upon any, whether they had been performed. The appellants especially relied upon Smith v. Bank, 32 Vt. 341. In that case a bond and mortgage had been deposited with one Rolfe, to be delivered when certain conditions were performed. A delivery having been made without the performance of the conditions, it was held that the delivery was not valid. But the court in that case regarded the deposit with Rolfe of such a character that the instruments became escrows. Besides it appears that when the instruments were delivered it was known they came from Rolfe's hands, who was a special agent; and it was held, that that fact being understood by the parties, the party to whom the delivery was made should have iuquired in regard to the extent of his powers. The bond sued

DELIVERY LIABILITY OF

on is not, in our opinion, to be deemed an escrow, in the proper sense of the term. It was deposited with a third person, by the obligors alone, and not by any agreement between them and the obligee. Nor did the plaintiff have any knowledge of the special agents, Johnson and Dunlavey, and there was nothing, so far as we can see, to put the board upon inquiry in respect to the obligation of the sureties. The correct rule seems to be expressed in State v. Peck, 53 Me. 284. The court said: "A bond perfect upon its face, apparently duly executed by all whose names appear therein, purporting to be signed, sealed and delivered by the several obligors, and actually delivered by the principal without stipulation, reservation, or condition, cannot be avoided by the sureties upon the ground that they signed it upon the condition that it should not be delivered unless it should be executed by other persons, who did not execute it, when it appears that the obligee had no notice of such condition, and nothing to put him upon inquiry as to the manner of its execution, and also that he has been induced upon the faith of such bond to act to his own prejudice." See also in this connection Dair v. U. S., 16 Wall. 2; Deardorf v. Foresman, 24 Ind. 481; Nash v. Fugate, 24 Grat. 208; Chicago v. Gage, 95 Ill. 593. Iowa Sup. Ct., Oct. 26, 1887. Taylor Co. v. King. Opinion by Adams, C. J.

CARRIERS OF GOODS-LIABILITY OF WAREHOUSEMAN-ALLOWING EGGS TO FREEZE.-The defendant placed eggs received by freight in its warehouse on December 11. While there the temperature from December 17 to December 22 was from zero to seven degrees above. Eggs would freeze in this warehouse with the thermometer at eight degrees above zero. The eggs were frozen when examined after the 22d. Held, that the defendant was liable for damages. It was the duty of the defendant company, when it received these eggs at Fort Gratiot, to safely deliver them at Buffalo. The company performed its duty as far as the carriage was concerned, and there is no fault found with it in that respect. But instead of keeping these eggs in the refrigerator car, as it did the others in the full car, until the same were called for by the consignee, and before its agents had taken any steps to notify him, or knew whether or not he was to be found in the city, its agents unloaded these eggs and placed them in a warehouse, where they were liable to be frozen on any day they remained there. It is to be expected, as a natural result, that the temperature may drop to eight degrees above zero, and lower, at any time in the month of December in the latitude of Buffalo. I think the court below was right in his charge given. The defendant was certainly liable, as a warehouseman, the moment it removed the eggs from the car, and was bound to exercise common and ordinary prudence in the storing of them. It was certainly bound to take the same care of the property that an ordinarily prudent man would exercise over his own goods. I hardly think that if these 4,900 dozen of eggs had belonged to the railroad company, its agents would have taken them out of this refrigerator car ahd placed them in this warehouse. Nor did the delay of Carter in calling for them avoid the defendant's liability. By removing the eggs from the car without notice to the consignee, and without knowing whether or not he was a resident of Buffalo, the defendant became a bailee of the consignee, and was liable if he did not exercise ordinary care in keeping the property safe and secure. If the eggs had been left in the car, and frozen there, the delay of Carter in calling for them would have been of some moment. But it seems that he took the eggs in the other car without demur or complaint, as he probably would these had they been left as ship

ped. Mich. Sup. Ct., Oct. 27, 1887. Burroughs v. Grand Trunk Ry. Co. Opinion by Morse, J.; Sherwood, J., concurs; Campbell, C. J., and Champlin, J., dissenting.

OF PASSENGERS-DUTY TO GIVE PASSENGER

REASONABLE TIME TO FIND TICKET.—When a person having bought and put in his pocket a proper railroad ticket, takes a seat on the proper train, on the conductor's demand for his ticket, searches for and fails to find it, but informs the conductor that he has one, and asks the conductor to wait for him to find it, the conductor is bound to wait a reasonable time for him to produce his ticket; and the question, what is a reasonable time, is one of fact for the jury. Tex. Sup. Ct., Oct. 18, 1887. International & G. N. R. Co. v. Wilkes. Opinion by Willie, C. J.

CRIMINAL LAW-MAYHEM-INTENT PRESUMED.-In a prosecution for maiming, under section 177, Penal Code, the injury must be willfully inflicted, "with the intent to injure, disfigure, or disable;" but the "intent" is to be presumed from the act of maiming, unless the contrary appears. The defendant's principal contention is that the intent to disfigure, disable, etc., being made a necessary ingredient of the offense, should be distinctly and independently shown or made to appear, and that evidence of the infliction of the injury is not by itself sufficient. In this however he is in error. The Legislature were not content to leave the courts to apply the ordinary rule in respect to legal presumptions in such cases, but have especially declared and emphasized it in the statute. It is a transcript of the recent New York statute on the same subject. The law as it previously stood in that State required proof of premeditation. Tully v. People, 67 N. Y. 18. The purpose to change the rule is clear. It will be observed that the words "premeditation," maliciously," or "malice aforethought" are omitted. The object of the statute was to throw additional safeguards around the person of the citizen, and to suppress brutal or barbarous modes of assault and personal injuries. In the majority of cases, maiming is not done upon premeditation and in cool blood, but in sudden rencounters. The offense of maiming may therefore under this statute be committed in the heat of passion, or in sudden combat. But while the statute is thus clear and specific as to presumptive evidence of the intent therein defined, it is equally clear as to the necessity of the existence of such intent. The maiming must be with the intent to maim, or more accurately, the injury must be purposely (not accidentally) inflicted, "with the intent to commit a felony, or to injure, disfigure, or disable;" and this is a question for the jury. The offense may be committed in attempting, or while intending to commit a felony, as robbery, murder, etc., or with the intent to disfigure or disable, or to inflict serious bodily injuries to the person, or any member or organ of the body. It is obvious that the term "intent to injure," in the connection used, is intended to refer to personal injuries of the same general class, or to such as might reasonably be expected to be dangerous, or result in serious bodily harm, and not to slight injuries or assaults, from which such results are not naturally or reasonably to be expected. The intent then referred to in the statute may be the purpose and disposition at the time to do, without lawful authority or necessity that which the statute forbids, and it may be presumed from the infliction of the injury. Such presumption is of course disputable. The circumstances attending the alleged wrong. ful act may so explain it as to leave its criminal character in doubt or rebut it altogether; and the defendant may show that it was done under the pressure of necessity while lawfully defending himself, or that it

have based the rule that the tenant cannot re-enter and remove his fixtures after surrender of the possession under his lease, is that such surrender is presumed to be intended either as a gift of the fixtures to the landlord, or if not a gift, a waiver to any right to re-enter and remove them. It becomes therefore to some extent at least, a question as to the intention of the parties; and when the evidence clearly shows that there was no intention on the part of the tenant to relinquish his unquestioned right to the fixtures, aud there is also evidence showing that the landlord understood such intention, and acquiesced therein by promising him that he might remove them after the surrender, the right is not lost. See Torrey v. Burnett, 38 N. J. L. 457, and Keogh v. Daniell, 12 Wis. 164-172. In the case of Torrey v. Burnett, supra, the court, speaking of the insufficiency of a mere declaration of the tenant that he does not waive his right to remove his fixures after he makes an actual surrender

of the premises, say: "But while this seems clear, I think it is equally so that this legal presumption of a gift may be repelled by proof of the assent of the landlord to the retention by the tenant of his right of removal. In my opinion if the landlord should say to the tenant that he should have a certain time within which to remove his fixtures, such a license would be valid, and would prevent for the time being the incorporation of the fixtures into the land. Such stipulations as these are common in leases, and in that form have been frequently enforced by judicial action." It was held in this case that when the landlord had agreed, before the tenant had finally yielded up the possession of the premises, that he would endeavor to effect a sale of the fixtures for the benefit of the tenant, the right of the tenant to the fixtures remained in him after the surrender, and was subject to attachment by a creditor of the tenant. In this case the fixture was a steam-engine. This case was commented upon by this court in Josslyn v. McCabe, 46 Wis. 591, and while the late chief justice questioned whether a mere promise of the landlord before the actual surrender of the possession of the tenant, to assist in selling the fixtures amounted to an agreement by which the title to fixtures should remain in the tenant after the surrender, yet in the commencement of the opinion he expressly states that if a tenant reserves by agreement with the landlord the right to remove the fixtures, the tenant does not lose his right to them by surrender of his possession of the premises with the fixtures thereon. The rule which is applied to the cases of actual surrender of the possession to the landlord applies with much greater force when it is sought to divest the right of the tenant to his trade fixtures, because he takes a new lease from his landlord, extending the time of his tenancy. In that case there is no actual transfer of the possession of the fixtures to the landlord. The tenant at all times retains the actual possession and control, and in such case, we think, there ought to be something more than the mere taking of a new lease extending the term to divest the tenant of his right. If he accepts a lease which in express terms recognizes the right of the landlord to the fixtures, and he agrees to pay rent for their use thereafter, and keep them in repair, and surrender their possession at the end of the new term, a strong case would be made out in favor of a surrender of the fixtures to the landlord by the acceptance of such new lease, and it would require very clear evidence that, not withstanding the acceptance of such new lease, there was an agreement that the title to the fixtures should remain in the tenant. If it should be admitted that the general words of description in the new lease would under ordinary circumstances be a lease of the fixtures as well as of the land and buildings, still the lease only raises a presumption that it was intended to cover the fix

tures, and it is open to proof whether it was in fact intended to cover such fixtures, or whether they were intended by both parties to be excepted therefrom. Kerr v. Kingsbury, 39 Mich. 150. Wis. Sup. Ct., Oct. 11, 1887. Second Nat. Bank of Beloit v. O. E. Merrill Co. Opinion by Taylor, J.

MISTAKE OF LAW-RELEASE AND DISCHARGEEVIDENCE TO CONTRADICT. In an action against a town, to recover damages for injuries caused by a defect in a highway. the defendant's counsel introduced a writing, sigued by the plaintiff, acknowledging the receipt of a certain sum, “in full of all demands for damages sustained" by reason of the defect in the highway complained of. The plaintiff did not attempt to show that the release was procured by fraud, or that he had attempted to rescind the agreement by restoring the money he had received. Held, that the plaintiff would not be permitted to show that he signed the writing under a mistake as to its legal effect' and that it was orally agreed at the time between him and the defendant's agent, that the release should apply only to the damages to the property of the plaintiff, and not to his personal injuries. Mass. Sup. Jud. Ct., Oct. 21, 1887. Squires v. Inhabitants of Town of Amherst. Opinion by Field, J.

MUNICIPAL CORPORATIONS-DEFECTIVE SEWERSACTION FOR DAMAGES-PLEADING.— In an action by a private person against a municipal corporation, a declaration which alleges that defendant rebuilt the outlet of Franklin street sewer where it enters the Riopelle street sewer, upon a new and different grade from that at which the original outlet was built, and that in so doing, the defendant carelessly, negligently. wrongfully and unskilfully raised the grade above the grade of the Franklin street sewer, by means whereof the water and sewerage from the public sewer in Franklin street and Riopelle street were flooded upon plaintiff's premises, to his damage, etc., sets up a cause of action, and states facts which entitle him to relief. The argument in support of the demurrer proceeds upon two principles: First, that a municipal corporation is not liable for an injury resulting from the exercise of its legislative powers; and second that a municipal corporation is not liable, at the suit of a private individual, for damages arising from the insufficiency or defective construction of its public sewers, when such damage results directly to the party injured from his use and occupation of the same for his private advantage and convenience. That the first proposition, broadly stated, is not universally true, is shown by the case of Ashley v. Port Huron, 35 Mich. 296, and cases cited in the opinion. The distinction is that, where the plan adopted by the municipality must necessarily cause an injury to private property equivalent to some appropriation of the enjoyment thereof to which the owner is entitled, then the municipality is liable; but where the fault found is with the wisdom of the measure, or its sufficiency or adaptability to carry out or accomplish the purpose intended, and where its construction according to the plan adopted invades no private rights, then the municipality is not liable. Detroit v. Beckman, 34 Mich. 125; Ashley v. Port Huron, 35 id. 296. For such an act of misfeasance the defendant should be held liable, unless the second point taken by his counsel should prevail. Counsel for defendant insists that the case of Dermont v. Detroit, 4 Mich. 435, supports the second position assumed by him. It was held in that case that the defendants were not liable, at the suit of a private individual, for damages arising from the insufficiency or defective construction of its public sewers, when such damages resulted directly to the party injured from his use and occupation of the same for his private advantage and convenience. It was

tiff's damage happened directly in consequence of the defendant's want of prudence or skill in the construction of its sewers, instead of by reason of his private drain being connected with the sewer, the case would have merited a very different consideration. It was also suggested, that had the injury occurred in consequence of the imprudent and unskilful construction of the Congress sewer with the Woodward avenue sewer, a very different question from the pres ent would have been presented. The case made by the declaration in this case rests upon the careless and wrongful action of defendant in raising the grade at which the Franklin street sewer enters and connects with the Riopelle street sewer. It complains of a ministerial act negligently and wrongfully done, and not of an act involving legislative or discretionary power. The acts complained of are analogous to those in the case of Ashley v. Port Huron, 35 Mich. 296, and if upon the trial the facts developed show that the act complained of was committed by the defendant in the execution of a ministerial duty, or in the exercise of a wrongful act, by which plaintiffs' premises were flooded by the water in the sewer being set back and discharged upon their premises through a sewer connection which they had a right to make and maintain, the principles enunciated in the Ashley case will control this. The questions pertaining to the defendant's duty and liability in this respect should be determined upon the facts as established upon the trial. It is too early in the case to anticipate what those may be. We merely express our opinion at this time that the declaration discloses a cause of action. Mich. Sup. Ct., Oct. 20, 1887. Defer v. Cily of Detroit. Opinion by Champlin, J.

POWER TO FORBID PEDDLING MEAT NOT CONFERRED UNDER POWER TO REGULATE MARKETS.-The provision of Code Iowa, § 456, that "cities shall have power ✶ ✶✶ to establish and regulate markets," does not empower a city council to make an ordinance forbidding the peddling of meats; and an information charging defendant with having violated an ordinance declaring the peddling of meats to be a misdemeanor is bad on demurrer. The power given by statute is to establish and regulate markets. The city cannot go beyond the power thus given. Now an ordinance which is designed merely to prevent peddling meats does not appear to us to be an ordinance to establish and regulate markets. It seems to be an ordinance designed to favor private butcher shops in the city, if there are any. But it does not establish such shops. It may be that the inhabitants of Burlington have no means of buying meat except from street peddlers. We do not think the city council can interfere with such occupation until it has established a meat market; and not then, unless it may be as a regulation of the market. To sustain the plaintiff, we should be obliged to hold that the design of the statute was to give the power to regulate the mode of selling meat in the absence of specific markets, but in our opinion, we should not be justified in so doing. Iowa Sup. Ct., Oct. 26, 1887. City of Burlington v. Dankwardt. Opinion by Adams, C. J. STATUTE OF LIMITATIONS NEGOTIABLE INSTRUMENTS-ACTION AGAINST INDORSER.- As against the indorser of a note after maturity the statute of limitations begins to run from the date of the indorsement, and not from the maturity of the note. As between the indorser and the indorsee this was a new contract, founded upon a valuable consideration, by which the indorser became liable (Code, § 2780) "to pay the money, if the parties to the instrument primarily liable thereon failed to pay according to the terms thereof; and hence, if there are several indorsers, each is liable to subsequent ones in the order of their in

greater than that of a surety. The latter becomes bound simply for the accommodation of his principal, and receives no consideration for the favor he bestows. He is bound only to the same extent as his principal, and whatever defense the principal succeeds in making inures to the benefit of the surety, whose undertaking is identical with that of the principal. By signing the paper he enters into no new or different contract to the payee from that into which his principal has entered. Their obligation is generally contemporaneous, and is joint, or it may be both joint and several. But with an indorser it is different; be usually receives a consideration for his promise. If the note he indorsed is for any cause invalid, he is nevertheless bound; as for instance, if it is without consideration, or is founded upon a gaming or usurious consideration, or was forged, he would be liable on his indorsement, notwithstauding the principal might on that account be released from its payment; or if when he indorsed this paper it had been barred by the statute of limitations, and no action could have been maintained on it against the maker, he would neverthelss have been bound, by his contract to pay the money it was made to secure, according to its terms and stipulations. The party in this instance might have entitled himself to the defense set up if at the time of entering into the engagement he had stipulated that the suit should be instituted against the maker before the bar of the statute attached; or he might have limited his liability by express stipulation in his indorsement (Code, § 2777), or he might have paid the note and controlled it, so as to enable him to bring and prosecute the suit in his own name; or if the paper indorsed had had three months to run before the statute bar attached, he might have protected himself by notifying the indorsee to sue the principal. Code, 2156. In this case however there was not sufficient time to have made the notice available. The authority derived from text writers, and the few cases we have been able to find, or to which our attention has been called, sustain this view of the question. Wood Lim. Act., § 134, Brian v. Banks, 38 Ga. 300. Ga. Sup. Ct., May 9, 1887. Graham v. Roberson. Opinion by Hall, J.

TRADE-MARK-CONTRACT FOR ROYALTIES-BREACH. By the terms of a written contract between the plaintiff and the defendant, in which it was stated that it was for the mutual interest of both parties thereto that the defendant should have the sale of certain mineral water, known as "Clysmic Water," taken from plaintiff's spring of the same name, for the purpose of increasing the sale thereof, it was agreed, that in consideration of the payment of a certain royalty, the defendant should have, for a long term of years, the exclusive sale of such waters in the United States and foreign countries. Held, that during the life of the contract, the defendant had no right to sell other mineral waters, under the same name, in competition with the waters of plaintiff's spring, notwithstanding the fact that he had himself given the name to the waters before plaintiff acquired title to the spring. There are trade-marks to which the characteristic of personal proprietorship attaches, because they assert to the public that some particular persou has given his special skill to the production or selection of the articles they cover. Leather Cloth Co. v. American L. C. Co., 11 H. L. Cas. 544; Hoxie v. Chancy, 143 Mass. 593; Holt v. Menendez, 23 Fed. Rep. 869. There is another class of trade-marks, which assert for the articles they designate some particular place of orgin. In such case the trade-mark is inseparable from the place. It passes as an incident with the sale of the place. Congress Spring Co. v. High Rock Congress Spring Co., 45 N. Y. 302; In re Swezey, 62 How. Pr. 219; Manu