87. PRACTICE-Misconduct of Counsel.-It is no cause for reversal that defendant's counsel, after argument begun, prepared interrogatories, and, without submitting them to plaintiff's counsel, gave them to the court, who submitted them to the jury, as it was not neces essary to submit them to opposing counsel, and the time of presenting them was within the discretion of the court.- Sherfey v. Evansville, etc. Co., Ind., 23 N. E. Rep. 273.

88. QUIETING TITLE.-Where one of several heirs takes exclusive possession of the ancestor's land, claiming the same under a deed from such ancestor, which the disseised heirs allege was never delivered, the latter cannot sue in equity to have the deed set aside as a cloud on their title, their proper remedy being ejectment.-Lundy v. Lundy, Ill., 23 N. E. Rep. 337.

89. RAILROAD COMPANY-Negligence.- Where plaint. iff's evidence tends to show that the gripman saw de ceased crossing the track when at such distance that he could have avoided collision by using promptly the appliances at his command for checking the train, the case is properly submitted to the jury.-Pope v. Kansas City Cable Co., Mo., 12 S. W. Rep. 891.

90. RAILROAD COMPANIES-Fires.-Where, through the negligence of a railroad company, sparks and cinders, alive with fire, escape from its engine, and set fire to a house, the company is liable for loss of life, as well as of property destroyed by such fire, without contributory negligence on the part of the party injured. Bojnowski v. Detroit, etc. Co., Mich., 44 N. W. Rep. 335.

91. RAILROAD COMPANY-Stock Killing.-Code N. C. § 2326, providing that the killing, etc., of cattle "by the engines or cars running upon any railroad shall be prima facie evidence of negligence on the part of the company," applies where the cattle are yoked to a cart, and in charge of a driver, as well as where they are running at large.-Randall v. Richmond & D. R. Co., N. C., 10 S. E. Rep. 691.

92. SLANDER-Chastity.-A woman who has had illicit intercourse with a man, but has since repented and become virtuous, is an "innocent woman" within Code N. C. § 1113, which provides that any person who shall attempt, in a wanton and malicious manner, to destroy the reputation of an innocent woman, by words amounting to a charge of incontinency, shall be guilty of a misdemeanor.-State v. Grigg, N. C., 10 S. E. Rep. 684. 93. TAXATION- Exemption. It is only an incorporated religious society which is entitled to the benefits conferred by Act N. Y. 1852, ch. 282, § 1, providing that the exemption from taxation of a school house or building for public worship shall not apply to any such building in the city of New York, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society.—Church of St. Monica v. Mayor, N. Y., 23 N. E. Rep. 294.

Where complainants

94. TRADE MARK-Injunction. have built up a business as agents for the sale of canned salmon, and in such business have been in the habit of using a printed label placed on the cans, giving their firm name and a statement that they were the sole agents for such brand of canned salmon, injunction will lie to restrain the false and fraudulent use by defendants of that part of a label which represents that complainants are the sole agents for defendants' salmon, whether defendants' salmon be of an equal or inferior quality to those sold by complainants.- Coleman v. Flavel, U. S. C. C. (Oreg.), 40 Fcd. Rep. 854.

95. TELEGRAPH COMPANIES-Delay.-A telegraph company is not relieved from liability for damages resulting from delay in the transmission and delivery of a message calling a sister to her dying brother by the fact that at the time it contracted to deliver the messuge it was not informed of the relation of the parties by its contents, or otherwise.- Western Union Tel. Co. v. Adams, Tex., 12 S. W. Rep. 857.

96. TROVER-Evidence. - In trover for the value of a stock of goods wrongfully seized by an officer, a witness who has been engaged in the same line of busi

98. TRUSTS

--

Powers of Trustee.-A deed conveyed land to trustees, "and to the survivor of them, and to the heirs and assigns of such survivor," with power to "execute such leases, conveyances, contracts and agreements" regarding the land as the beneficiary might request, and provided that in case the benefi. ciary died before the grantor the land should descend to and vest in her surviving children, and in case the grantor died first the trust should cease: Held, that the trustees could not convey the fee, even with the beneficiary's consent, their estate being only for the joint lives of the beneficiary and the grantor.- Walton v. Follansbee, Ill., 23 N. E. Rep. 333.

99. USURY.-To charge one with usury he must know of and be a party to the intent to violate the law against usury.-Jackson v. Travis, Minn., 44 N. W. Rep. 316.

100. VENDOR AND VENDEE. A mistake as to the quantity of land having been made, and the price in the deed fixed accordingly, the fact that within six months after taking the deed, and repeatedly thereafter, the vendee promised to pay a specific sum for the excess, will sustain a finding that the excess had not been adjusted and paid for at a less price.—McCrocklin v. Lloyd, Ky., 12 S. W. Rep. 935.

101. VENDOR AND VENDEE Covenants.- A mutual covenant by the owner of a lot with the adjoining owners, that 12 feet in front of each of their lots shall not be built upon, but shall be left open for court yards, constitutes an incumbrance on the lot, and, if it impairs its value, it will excuse specific performance of a contract for the purchase of the lot, which was to be conveyed free and clear of all incumbrances.- Wetmore v. Bruce, N. Y., 23 N. E. Rep. 303.

102. VICIOUS ANIMALS-Torts.- An instruction that if the jury find that defendants' horse was vicious, and that their servant knew or by reasonable diligence could have known it, "then leading the horse so close to plaintiff's colt that he kicked the colt would constitute such negligence on the part of the servant as would make the defendants liable," is erroneous, as withdrawing from the jury the question, what constitutes negligence.-Campbell v. Trimble, Tex., 12 S. W. Rep. 863.

103. CONVERSION.-A mere permission in a will for the executors to sell certain land, "If they see fit to do so” and to divide the proceeds among testator's heirs, is not an equitable conversion.—Milis v. Harris, N. Car., 10 S. E. Rep. 704.

104. WILLS-Sale to Pay Debts.-The will of testator provided that all his property should go to his four daughters as long as they lived or remained unmarried to be held jointly as an undivided estate. If any married, the remaining unmarried daughters might give them such portion of the estate as they saw fit, not exceeding one-seventh of the whole, which should be charged to their share in the final division, which should take place on the death or marriage of them all. Upon the death or marriage of them all, the estate should be divided among all of testator's children: Held that, as the surviving daughter took her share by inheritance, it was liable to sale at her death for her debts.-Mourning v. Missouri, etc. Co., Mo., 12 S. W. Rep.

884.

105. WILLS-Construction.-The doctrine of cy pres is not applied to the construction of wills in Wisconsin.In re Fuller's Will, Wis., 44 N. W. Rep. 304.

ST. LOUIS, MARCH 28, 1890.

It is said that a movement is on foot, in the direction of converting trusts into the ordinary corporate form. The reasons for the change are the adverse legislation, both State and national, against trusts and the public sentiment in opposition to them; the insecurity felt by holders of trust certificates and the indisposition to invest in them by reason of such legislation and public sentiment; the probability that capital stock in a corporation possessed of the assets of a trust and having a recognized standing under the law would command a higher market value than the present trust certificates and the satisfaction and advantage to stockholders of having clearly defined legal rights and safeguards accorded to them by the law governing corporations. It has long been a source of surprise to us that a change, seemingly so easy to make, and so beneficial to the owners of trusts, should not have been attempted, and it will be interesting to watch the progress of the movement.

SOME time ago, we commented upon the recent Missouri legislation against trusts and pointed out that its constitutionality was a matter of considerable doubt. In the first case brought into the courts to enforce the provisions of the law, the substantial charac ter of our doubt has been shown. In the case alluded to, suit was brought to have the charter of the defendant company declared forfeited because it had failed to comply with the request made by the Secretary of State to file an affidavit setting forth that it was not a member of any trust or combination, whose object was to do away with competition or increase the prices of commodities. The judge of the circuit court at St. Louis, before whom the case was argued, held that the provision authorizing the Secretary of State to declare the charter of a corporation revoked for failure to comply with this provision of the law was clearly unVOL. 30-No. 13.

a demurrer

interposed by the company to the information filed on the part of the State. The decision does not touch upon the legality of trusts, as has been heralded abroad, but simply declared the statute unconstitutional, in so far as it conferred authority on an executive officer of the State to assume judicial functions in derogation of the constitution, which provides that no person charged with the exercise of legislative, executive or judicial power shall exercise any power not belonging to his department. The question was raised by the court but not determined because not necessary, whether that part of the act, which requires an oath as to whether or not the corporation had done any of the things prohibited, is unconstitutional, as being in violation of those provisions of the State and federal constitutions which declare that no person shall be compelled to testify against himself in a criminal cause. There certainly seems good ground for such a

contention.

We have found the report of the proceedings at the recent meeting of the Illinois State Bar Association very entertaining reading. The addresses delivered were, in point of practical value, far above the average of addresses of that kind. That of E. Callahan, Esq., president of the association, was brim full of solid good sense, and touched upon questions which are of everyday interest to the practitioner. We trust that his suggestions as to a repeal of the statute which, in terms, allows juries to be judges of the law as well as of the facts, will be heeded. The address of Sigmund Zeisler on the "Unanimity of Juries" contains an exhaustive history of the jury system in all countries, as well as a plausible and forcible plea in behalf of the abrogation of the unanimous feature of that system. Of Mr. McNulta's admirable address on the "Interstate Commerce Law," we have made mention heretofore. It contains the practical workings of that law stated by one who has studied it both practically and theoretically. The address of Mr. E. M. Prince on "Legal Education" was an earnest plea in behalf of thoroughness in legal education, and a covert advertisement of the Bloomington Law School, of

which he is a distinguished professor. Letters were read from ex-judges of the supreme court in behalf of the consolidation of the Illinois Supreme Court at one place. Considering the apparently unanimous feeling, among members of the bar of that State, in favor of such a movement, it is difficult to understand why the legislators are so slow to act.

NOTES OF RECENT DECISIONS.

A QUESTION of considerable importance in the law of partnership came before the Supreme Court of Appeals of Virginia, in Patton v. Leftwich, 10 S. E. Rep. 686, where it was held that surviving partners of an insolvent firm dissolved by death of one partner may make a valid general assignment of partnership assets for the benefit of firm creditors, with preferences. Fauntleroy, J., says:

The question submitted is one of very great importance, affecting large interests and rights in the commercial world; and yet it has never, it is believed, been presented before this court in this definite form. But the Supreme Court of the United States has adjudicated the precise question and the exact point at issue here. Fitzpatrick v. Flannagan, 106 U. S. 654, 655, 1 Sup. Ct. Rep. 369; Emerson v. Senter, 118 U.S. 3,6 Sup. Ct. Rep. 981. In this last-mentioned case the Supreme Court of the United States says: "As, with the concurrence of all the partners, the joint property could have been sold or assigned for the benefit of preferred creditors of the firm, the surviving partner, there being no statute forbidding it, could make the same disposition of it. The right to do so grows out of his duty, from his relations to the property, to administer the affairs of the firm so as to close up its business without unreasonable delay; and his authority to make such a preference, the local law not forbidding it, cannot, upon principle, be less than that which an individual debtor has in the case of his own creditors." And the language of the syllabus of the case is: "A sole surviving partner of an insolvent firm, who is himself insolvent, may make a general assignment of all the firm's assets for the benefit of all joint creditors, with preferences to some of them; and such assignment is not invalidated by the fact that the assignor fraudulently withheld from the schedules certain partnership property for their own benefit, without the knowledge of the assignee or of the beneficiaries of the trust." See Egberts v. Wood, 3 Paige, 517, re-reported in 24 Amer. Dec. 236, and note; Hutchinson v. Smith, 7 Paige, 26; Wilson v. Soper, 13 B. Mon. 411, re-reported 56 Amer. Dec. 573, and note; Loeschigk v. Hatfield, 51 N. Y. 660; Cushman v. Addison, 52 N. Y. 628; Williams v. Whedon, 109 N. Y. 333, 16 N. E. Rep. 365, (decided in 1888;) French v. Lovejoy, 12 N. H. 458; Shields v. Fuller, 65 Amer. Dec., note, 295-303; Barry v. Briggs, 22 Mich. 201. In the very recent case of Williams v. Whedon, supra, the New York court of appeals reviews many prior

cases, and refers to Emerson v. Senter as conclusive. In the case of French v. Lovejoy, supra, the court of appeals of New Hampshire says, (page 461:) "The property of the partnership might be lawfully appropriated to the payment of the partnership debts; and F. Lovejoy, as surviving partner, had the right to prefer A Lovejoy, a creditor of the firm, in that manner." In Barry v. Briggs, supra, Chief Justice Campbell, speaking for the Michigan court, says: A sole surviving partner has the entire legal title to all the partnership assets. He has a right, acting honestly, and with reasonable discretion and diligence, to dispose of them as he pleases; to settle all debts against the concern; to make any compromise he may deem necessary; and to turn the assets into an available and distributable form. 2 Bates, Partn. § 732, says: "As the surviving partner has the entire title and sole control of the property, and represents the power of all the former partners, and as they all could have assigned the property for the benefit of creditors, so the surviving partner has, at least in case of insolvency, in order to wind up, the same power, and can transfer the property to an assignee for the benefit, not of his separate creditors, but of the partnership creditors. And as he [the surviving partner] can pay some creditors in full, to the prejudice of others, so it has been held that, if the local law does not forbid, in case of other assignments for creditors, he can assign with preferences." And for this last proposition the author cites, among others, the case of Emerson v. Senter. The cases of Fitzpatrick v. Flannagan, 106 U. S. 648, 1 Sup. Ct. Rep. 369, and Case v. Beauregard, 99 U. S. 119, are cited in the recent case decided by this court of Robinson v. Allen, 8 S. E. Rep. 835. See the case of Beste v. Burger, 17 N. E. Rep. 734. Even real estate bought with partnership funds, the title of which is taken in the name of the deceased partner, is so completely in the control of the surviving partner that where he assigned to a trustee, and the trustee sold, the purchaser of this equitable title can in equity compel the heirs of the deceased partner to convey the legal title to him. Shanks v. Klein, 104 U. S. 18.

The cases referred to in the brief of counsel for appellant, Salsbury v. Ellison, 7 Colo. 167, 303, 2 Pac. Rep. 906, and 3 Pac. Rep. 485, and Anderson v. Norton, 15 Lea, 14, are rested on the ground that the surviving partner is a trustee for the benefit of the firm creditors, and is governed by the rules applying to ordinary trustees, and that as, in the case of ordinary trustees, "equality is equity," the surviving partners, being trustees, cannot give any preference among the creditors. But surviving partners are not trustees, in the ordinary sense, though they are loosely so called by some judges and law-writers. Lord Chancellor Westbury in Knox v. Gye, L. R. 5 H. L. 656 and 675, cited in 2 Pom. Eq. Jur. p. 618, note 2, says that the trust of a surviving partner is limited by the extent of his obligation, and that it is most important to mark this again and again, for there is not a more fruitful source of error in law than the inaccuracy of language. The application to a man who is, improperly and by metaphor only, called a "trustee," of all the consequences which would follow if he were a trustee by express declaration,-in other words, a complete trustee, holding the property exclusively for the benefit of the cestui que trust,―well illustrates the remark of Lord Macclesfield, that "nothing in law is so apt to mislead as metaphor." But, conceding that a surviving partner is a trustee in a general sense, what is the extent of his trust? Certainly, not beyond his obligation: First, to collect all the assets of the firm; second, to apply them to the firm debts; thir

to distribute the surplus, if any, among the surviving partners and the representatives of those who are dead. This is the full extent and duty of his trust, such as it is. In paying the debts of the firm there is no limitation or restriction on his power to pay one social creditor, or to secure one, in preference to another, if he act honestly. In this regard he has the same right and power that any other debtor has. The representative of the deceased partner is not injured by a preference given to one firm creditor over another; and it is quite immaterial to him, the assets of the firm being insufficient to pay all the social creditors, whether they be applied ratably to all the debts, or be applied to some to the exclusion of others. The burden upon the estate of the decedent is precisely the same in either event. The creditor has no other equity than the partners have inter se; and the whole extent of a partner's equity is that the partnership assets shall be applied to the payment of partnership debts, to the exclusion of the separate debts of the several partners; but this right or equity does not extend or operate to the prevention of giving preference among partnership creditors. The case of Offutt v. Scott, 47 Ala. 104, cited in the petition for appeal, is not in conflict with this principle; nor is the Virginia ease of Lindsey v. Corkery, 29 Grat. 650.

A QUESTION of negligence and of damages caused by the discharge of fire-works, was before the Supreme Court of Missouri in Dowell v. Guthrie, 12 S. W. Rep. 900. There it was held that the discharge of fire works from a veranda in front of the second story of a building in the center of a public square, from troughs so arranged that the fire works would pass over the assembled people, who were there for the purpose of witnessing the display, is not of itself an unlawful act, in the absence of a statute or ordinance making it so. One who seeks to recover for personal injuries, unintentionally inflicted by defendants while engaged in a lawful business, has the burden of proving negligence throughout the trial. In an ac tion for personal injuries caused by the alleged negligent discharge of fire-works, evidence that the fireworks were highly dangerous, that they were discharged by defendants, and that plaintiff was injured thereby, raises a presumption of negligence. Black, J., says:

The first question presented is whether the display of these fire works was of itself an unlawful act. In Conklin v. Thompson, 29 Barb. 218, a boy on the 4th of July exploaded a fire-cracker under the plaintiff's horse, while he was traveling upon the streets in a city, whereby the horse was frightened and died. The act, it is said was wrongful and the party committing it assumed the responsibility of all the bad consequences which ersued. In Jenne v. Sutton, 43 N. J. Law, 257, the plaintiff was hurt by the explosion of a bomb fired in the street of a city to signal the meeting of a political club; and it was said that the

use of the street for such a purpose was illegal, and per se constituted a public nuisance, and that all persons concerned in doing the act, or who caused it to be done, were liable for all damages proximately resulting therefrom. Judge Cooley, in his treatise on Torts, citing these and other authorities, lays down the law in these words: "When one makes use of loaded weapons, he is responsible only as he might be for any negligent handling of dangerous machinery; that is to say, for a care proportionate to the danger of injury from it. The firing of guns for sport or exercise is not unlawful, if suitable place is chosen for the purpose; but in the streets of a city, or in any place where many persons are congregated, it might be negligence in itself." Cooley, Torts, (2d Ed.) 705. The discharge of fire-works at suitable places, when not prohibited by statute or municipal regulations, cannot be said to be unlawful; but the circumstances may be such as to make the act of discharging an explosive culpable negligence. In this case these facts are clear and undisputed: The fire-works were not displayed in the streets, but from the court-house, in the center of the public square. The defendants so arranged the troughs that the rockets would pass over the assembled people. The persons assembled, the plaintiff included, were there for the very purpose of witnessing this display. Under these circumstances it cannot be said that shooting off the fire-works was in and of itself an unlawful or wrongful act. The case is quite unlike those which have been cited from 29 Barb. and 43 N. J. Law.

The plaintiff's eighth refused instruction, in substance, states that if plaintiff was struck with a skyrocket fired off by the explosion of rockets, darts, and candles in the control of the defendants, then it devolves upon the defendants, to show how such explosion occurred; that it occurred through no act of theirs; and that no precaution on their part would have prevented it; and, unless the defendants do so show, the verdict must be for the plaintiff. In support of this instruction we are cited to Morgan v. Cox, 22 Mo. 373, and Conway v. Reed, 66 Mo. 350. The first was a suit for negligent shooting of the plaintiff's slave, and the only question in the case was as to the fact of negligence. The court after disposing of the case on that ground, which affirmed the judgment, goes on to say that the facts of the case would have supported an action of trespass vi et armis; and that in all such cases, when the injury is proved to be inflicted by the defendant, the case is made out, and the defendant must show that the injury done was inevitable. The other case was one for an alleged unlawful and wrongful shooting of the plaintiff, and it was then said: "This action, as far as appears from the petition, is for an intentional trespass, and when the injury is proved to have been inflicted by defendant, and nothing more, the case is made out, and the defendant must prove that he was not chargeable with negligence as an exoneration." There are cases where the evidence which show an injury inflicted by the defendant is sufficient of itself to make out a case entitling the plantiff to go to the jury; but it cannot be said the burden of proof is on the defendant in all cases of trespass vi et armis, when the injury is shown to have been inflicted by the defendant. Speaking of a battery, Greenleaf says: "And here, also, the plaintiff must come with evidence to show, either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable." 2 Greenl. Ev. § 85. This statement of the law is approved in Paxton v. Boyer, 67

Ill. 132, and in Brown v. Kendall, 6 Cush. 292. The case last cited was an action of trespass for an assault and battery. The defendant, with a stick, attempted to separate two dogs that were fighting, and in raising the stick over his shoulder he accidently hit the plaintiff in the eye, inflicting a severe injury. Shaw, C. J., speaking for the court, said: "If the act of hitting the plaintiff was unintentional on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it." Where the injury is unintentional, and is inflicted in the doing of a lawful act, there can be no recovery, either in trespass or trespass on the case, except by showing negligence on the part of the defendant; and the burden of proof, in either form of action, in such a case, is upon the plaintiff.

THE effect of false representations by the buyer of goods to induce the seller to part with them on credit, was considered by the Supreme Court of Iowa, in Reid v. Cowduroy, 44 N. W. Rep. 351. There it was held that where the buyer of goods makes a representation as to his financial condition which he knows to be false, to induce the seller to part with the goods on credit, and the seller does so on the faith of such representation, the transaction is fraudulent, and the seller may rescind the sale and recover back the goods; and in an action to recover goods so fraudulently obtained, an instruction which throws upon the seller the further burden of showing that the buyer made such false representations with intent to defraud the seller, by not paying for the goods, is erroneous. Robinson, J., says:

The seventh paragraph of the charge to the jury is as follows: "Where the buyer of goods, at the time or before the purchase, for the purpose of inducing the seller to part with his goods on credit, makes a material representation to the seller as to his financial condition, which representation is in fact false, and known by the buyer to be false when made, and which the seller relies upon in making the sale, and it is also shown that the buyer at the time intended by the representations to defraud the seller, by not paying for the goods, such transaction would be fraudulent on the part of the buyer, and the seller could rescind the contract, and recover back the goods." The same rule was substantially given in other portions of the charge, so framed as to meet the facts of the case. Appellants complain of the charge on the ground that, to recover, they were required to show, not only that the buyer made false and fraudulent representations as to his solvency, upon which the plaintiffs relied, but also that he did not intend to pay for the goods when he ordered them. The insolvency of the buyer when the goods were ordered does not seem to be seriously questioned. There can be no doubt that the burden imposed by the charge of the court is as claimed by appellants, and we are required to determine whether

a correct rule of law was announced. As a general rule, fraud in the sale of personal property entitles the party injured thereby to rescind the contract of sale (Story, Sales, §§¡379, 420, 445a; 1 Benj. Sales, § 636). It is contended by appellees that the charge is supported by the opinion in Houghtaling v. Hills, 59 Iowa, 287; 13 N. W. Rep. 305. In that case the petition alleged that the buyer was hopelessly insolvent when he purchased the goods, and unable to pay for them; that he knew that fact; that he knew the sellers did not know it, and that they would not have made the sale had they been aware of it. But it was not alleged that the sellers were misled or deceived by any act or representation of the buyer. The question really involved in the case was whether the failure of the buyer to disclose his real financial condition was a fraud upon the seller; and the effect of the opinion is to hold that it was not, and that, inasmuch as the petition did not show that the goods were purchased with the specific intent not to pay for them, it did not state a cause of action. It did not decide that false and fraudulent representations as to solvency made on the part of the buyer, and relied upon by the seller, would not be sufficient ground to authorize the rescinding of the sale. Mere silence, where the person is under no obligation to speak, is not a legal fraud. 1 Benj. Sales, § 640; Story, Sales, § 174. The cases of Talcott v. Henderson, 31 Ohio St., 162; Nichols v. Pinner, 18 N. Y., 297, and Garbutt v. Bank 22 Wis. 390, are in point. But where goods are sold there is a promise expressed or implied on the part of the buyer to pay for them; and the seller has a right to rely upon the presumption that the buyer intends to perform his obligations, by making payment. Therefore, if the latter entertains a secret intent to not make payment that Intent, and his failure to disclose it, constitute such a fraud as will entitle the seller to rescind the sale. Factory v. Lendrum, 57 Iowa, 581, 10 N. W. Rep. 900; Lindauer v. Hay, 61 Iowa, 665, 17 N. W. Rep. 98; Nichols v. Michael, 23 N. Y. 266;. Hennequin v. Naylor, 24 N. Y. 140; Dow v. Sanborn, 3 Allen, 182; Belding v. Frankland, 8 Lea, 67; see also Lee v. Simmons, 65 Wis. 526, 27 N. W. Rep. 174; Donaldson v. Farwell, 93 U. S. 631. The supposed solvency of the purchaser is usually a material inducement to the sale of goods; and where it is, and the purchaser makes false and fraudulent representations in regard to it, upon which the vendor, not knowing the truth, relies in effecting the sale, it may be rescinded by the vendor as fraudulent. The charge of the court under consideration was erroneous in requiring plaintiffs to prove two material facts, when proof of one was sufficient to enable them to recover.

THE right of abstract companies to examine the public records and make copies of them, for the purpose of making up their own private abstracts, to enable them to search titles and issue abstracts thereof, came before the Supreme Court of Michigan, in Burton v. Tuite, 44 N. W. Rep. 282. It was there held that under a statute declaring that the custodians of municipal records should furnish proper and reasonable facilities for the inspection and examination of the records and files in their respective offices to all persons having occasion to exam