eral government to the State of Michigan, by Act Sept. 28, 1850, (9 U. S. St. at Large, 519,) to enable the State "to reclaim the swamp and overflowed lands therein," pro vided that "the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of re claiming said lands by means of the levees and drains:" Held, that it was discretionary with the State to deter mine how far the proceeds should be so applied, and that a purchaser of such land could not avail himself of the statute to claim exemption from drain taxes. A. P. Cook v. Auditor General, Mich., 44 N. W. Rep. 420. 93. TENANTS IN COMMON. -A tenant in common who has been ousted of possession of the property by his co-tenant can recover his possession in trespass to try title.-St. Louis, etc. Ry. Co. v. Prather, Tex., 12 S. W. Rep. 969.

94. TENANTS IN COMMON-Boundaries.-A and B, being tenants in common of a section of land, agreed that A should have the south half, and B the north half. A deeded the southwest quarter, and by mistake located the upper boundary too far north. Her grantee deeded it to defendants without any reference to the northern boundary. B deeded the north half to plaintiff, calling for the proper southern boundary: Held, that plaintiff was not estopped from claiming the boundary line described in his deed.-Carley v. Parton, Tex., 12 S. W. Rep. 950.

95. TOWNSHIPS-Boundaries. A dispute as to which township a private land claim is in cannot be settled by mandamus to compel the supervisor of one township to place the claim on his assessment roll; the two other townships interested in the controversy not being im. pleaded, and it appearing that relator's only reason for instituting the proceedings is to get a bridge built, which cannot be done on account of the dispute as to which township one end of it would be in. People v. Lindow, Mich., 44 N. W. Rep. 414.

96. TRADE-MARK-Name.-A man may acqire the right of a trade-mark in his own name or the name of any person, but he cannot acquire the right of a trademark in the use of his own name or to the exclusion of the right of another person by the same name, and whose place of business is in the same place.-El Modelo Cigar, etc. Co. v. Gato, Fla., 7 South. Rep. 23.

97. TRIAL-Instructions.-An assignment of error because of unnecessary instructions, or that the instructions placed too prominently before the jury the law on any point, cannot be sustained when. there is considerable evidence to support the theory or fact on which they were based.-Murray v. White, Cal., 23 Pac. Rep. 35. 98. TRIAL-Removal of Judge.-The trial of a cause having been commenced, and a portion of the evidence taken when the sitting judge was placed by the ap pointment of his successor, a question was raised by the defendant as to his right to require a trial de novo: Held, that the reintroduction of the testimony that was adduced before the judge ex officio was all the defendant could require.—Brinkman v. Huyghe, La., 7 South. Rep. 76.

99. TRIAL-Jury.-After the jury had returned their verdict, and defendant had demanded a poll, one of the jurors arose, and attempted to address the judge, but the record did not show whether the the judge saw or heard him. The jury was ordered to be polled; and, when his name was called, the juror, in response to the question, "Was this your verdict and is this your ver. dict?" twice answered, "Yes." The judge then discharged the jury. During these remarks the juror twice interrupted the judge, expressing his desire to say something: Held, that the refusal of the judge to hear the juror was not a ground for a new trial.Hughes v. Detroit, etc. Ry. Co., Mich., 44 N. W. 397.

100. TRIAL-Verdict- Coercing Jury. Where a jury fails to agree, and the court, just before 12 o'clock on Saturday night tells them they must be kept together during the entire time from midnight till Monday morning, without discussing the verdict, and that they will be furnished their meals, but at their own expense, and

the jury then retire, and in a few minutes return with a verdict, a new trial should be granted.-Henderson v. Reynolds, Ga., 10 S. E. Rép. 734.

101. TRUSTS-Interest of Beneficiary.-Under a conveyance of lands in trust "for the only proper use and benefit of the" beneficiary, "for and during the term of his natural life," the trustee "to hold said lands for the benefit of" the beneficiary "only, and to account to him or his guardian for the rents or yearly issues," the beneficiary's interest is assignable.-Henson v. Wright, Tenn., 12 S. W. Rep. 1835.

102. TRUSTS · Expenditures by Trustee. Where a trustee has expended money in necessary repairs and improvements of the trust estate, and the outlay has been approved by the cestui que trust, he may hold the land on which the money was expended till the sum is repaid. Woodard v. Wright, Cal., 22 Pac. Rep. 1118.

103. TRUSTEE AND CESTUI que Trust-Fraud.-Where a beneficiary, in negotiating with her trustees for a settlement, renounces all confidence in them, and acts exclusively on the advice of her own personal friends and advisers, specially selected by her to make investigations, and counsel her, a contract of compromise entered into between her and the trustees, who during the investigation acted in good faith, and disclosed everything within their knowledge, will not be set aside on the ground that the trustees did not impart all the knowledge which they might have acquired by diligent and skillful search.-Colton v. Stanford, Cal., 23 Pac. Rep.

16.

104. TRUSTEES Burnt Records.-A deed conveying land in trust provided that the trustee might sell or improve the same, "provided there shall be no lien, incumbrance, or charge created thereby on said premises." The record of the deed was afterwards destroyed by fire: Held, that the operation of the record as notice was not thereby affected, and that the land could not be charged with a mechanic's lien by virtue of any contract made by the trustee.-Franklin Sav. Bank v. 1 aylor, Ill., 23 N. E. Bep. 397.

105. VENDOR AND VENDEE Subrogation.- W and M purchased land, each agreeing to pay one-half of the consideration. When the deed to them was delivered, M was unable to pay his share, and W paid the whole amount. Afterwards a note was made by M and indorsed by W to enable him to realize the amount paid, and W had the note discounted, and received the proceeds. It was renewed several times, and was partially paid from the rents of the property: Held, that as W was not a surety for M, and as a vendor's lien was not reserved, W was not entitled to be subrogated to the rights of a vendor to a lien upon M's interest in the land. Walsh v. McBride, Md., 19 Atl. Rep. 4.

106. WILL-Devise-Dower.-Under Rev. St. Ill. ch. 41, § 10, which provides that any devise of land or estate therein to a wife bars her right of dower, a will giving testator's widow one-third of the net income of his land bars her dower.-Stunz v. Stunz, Ill., 23 N. E. Rep. 407.

107. WILLS-Revocation.-A subsequent will, showing by its whole tenor that it was intended to contain all the testamentary dispositions of the deceased, revokes a prior will, in so far as it contains dispositions incompatible with those contained in the will last made. Succession of Bobb, La., 7 South. Rep. 60.

108. WILLS-Election by Legatee.-A testator devised a portion of his estate to defendant, his son, and directed him to convey certain land in Iowa to testator's widow for life, remainder to M. Defendant accepted the devise to him: Held, that assuming the land in Iowa belonged to him, he thereby elected to surrender all right to it, and to make the conveyance directed.Mc Querry v. Gilleland, Ky., 12 S. W. Rep. 1037.

109. WITNESS-Competency.-A child, seven and onehalf years of age, is a competent witness, where it ap pears, on her examination by the judge, that she has an intelligent comprehension of the belief that falsehood is not only morally wrong, but will be severely punished in the future.-McGuff v. State, Ala., 7 South. Rep. 35.

The Central Law Journal.

ST. LOUIS, APRIL 11, 1890.

The Senate Judiciary Committee has reported favorably on the bill, recommended by the American Bar Association, in the interest of the relief of the Supreme Court of the United States, the effect of which is to make the United States District Courts, courts of original jurisdiction, and the Circuit Courts, courts of appeal. It is expected that this will enable the supreme court to catch up with its docket which is now three years behind. Besides the relief which this will bring to the supreme court, it will undoubtedly prove beneficial to practitioners in the lower federal courts, the system of which is cumbersome and in many respects useless. A paper prepared by Walter B. Hill, Esq., and used as an argument before the Senate Judiciary Committee, gives data upon this subject, which is of interest, and shows in what respect the change in the federal court practice is needed. It appears therefrom that, as a matter of fact, one judge presides alone in nine-tenths of all cases in the lower federal courts, and that in nine-tenths of more than half of them he is

the final arbiter of the rights of the parties. One judge sits in the district court-room and has jurisdiction over certain cases, and, when he has finished the work in there, he walks into the next room and has jurisdiction which he has refused in the other room. In a case recently tried in the Missouri circuit, a clerk of the district court had the record made up at an expense of $500, and sent to himself as clerk of the circuit court. That case was tried by the judge of the district court, who thereafter sat alone as judge of the circuit court, passed on the objections to his own rulings, and the question of his own errors and all the other questions which he decided when the case was tried. It is to get rid of these useless proceedings, and to relieve the supreme court that the bill was introduced. Two-thirds of the cases which the supreme court has to hear are not federal cases, most of them being simply questions between citizens of different States. Under the bill as now proposed, these cases will all originate in the district court, be appealed to the circuit court, VOL 30-No. 15.

and there finally decided. Cases involving strictly federal questions will be appealable directly to the supreme court from the court of original jurisdiction. All other cases from these courts will go to the intermediate appellate court, and will there be finally heard, except in those instances where the harmony of federal jurisprudence or the importance of the question involved may require a final decision on appeal by the supreme court. The circuit courts will then consist of three judges, and instead of sitting in several different places in each State, they will sit in one place in each State once a year to decide cases appealed to them. From a study of the argument of Mr. Hill referred to, it is apparent that the change proposed will prove valuable.

The irony of fate was never more strikingly illustrated than in the decision by the Supreme Court of Mississippi, which practically sets free Mr. Slugger Sullivan and imprisons Mr. Slugger Kilrain. That court reversed the conviction of Sullivan on account of the defectiveness of the indictment in not averring that the fight was public, and that Kilrain The indictment did not fought Sullivan. charge that Sullivan and Kilrain fought against each other, but that Sullivan in pursuance of previons appointment to engage in a prizefight with Kilrain for a sum of money, did unlawfully engage in a prize-fight with Kilrain, and did enter a ring and beat, strike and bruise the said Kilrain. But it was regarded as fatal in failing to charge that while John slugged Jake, Jake did not hit back. All of which seems to show that the legal responsibility which a prize-fighter in Mississippi assumes attaches only when he fails to keep up his end of the fight.

The article of E. L. Russell, Esq., on the "Supreme Court and Interstate Commerce," which appears on page 302 of this issue, in reply to one on the same subject by Hon. Chas. A. Culberson, which appeared in the American Law Review, is in line with the discussion lately opened by the New York Evening Post, as to the propriety of an amendment to the federal constitution, clothing congress with jurisdiction over the whole subject of commerce, and abolishing the distinction between

State and interstate commerce.. The provision of the Constitution of the United States, which declares that congress shall have power to regulate commerce among the several States, has already received an application extending far beyond what the profession in the first half of this century ever contemplated. A few years' experience has confirmed the wisdom of conferring this power upon the federal government. But it has also shown, that under the changed conditions of the country the distinction which was so easy to make half a century ago between commerce within a State, and commerce between different States is rapidly becoming impracticable and justice to carriers, as well as a sound public policy now seems to indicate that the same power which regulates traffic of the railroads between different States must regulate to some extent, at least, competing traffic of all railroads within each State. The question is suggested

of the law

whether this enlargement must come from express amendment of the constitution, or whether it can develop itself in the line of judicial decisions. The whole distinction between State and interstate traffic is somewhat artificial and false. The attempt to regulate the one without the other is impossible of success in the long run, and our body of law, as it now stands, affords us no relief. It is certainly unquestionable that the grant of power to regulate commerce between States carries with it power to do whatever is necessary to effect that result with justice. The question then whether the regulation of any part of railroad traffic within a State has become necessary as an incident to the regulation of commerce between States will be a fair and no doubt unavoidable question for the judiciary whenever congress shall assume to exercise the power. Indeed, the dissenting opinions of Justices Bradley and Harlan in the very recent case of Louisville, N. O. & T. Ry. Co. v. State of Mississippi, before the Supreme Court of the United States, illustrates the tendency of the judicial mind in the direction indicated. The time is fast coming when this question must be considered and determined.

NOTES OF RECENT DECISIONS.

The effect of the omission of children from the provisions of a will, was considered by the Supreme Court of the United States in Coulam v. Doull, 10 S. C. Rep. 253. There it was held that under Act Utah (Comp. Laws, § 694), which provides that, "when any testator shall omit to provide in his or her will for any of his or her children,

unless it shall appear that such omission was intentional, such child shall have the same share in the estate of the testator as if he or she had died intestate," where children of a testator living at the time his will is executed are omitted therefrom, evidence aliunde the will is admissible to show that such omission was intentional. The act of Utah having been copied from a statute of California, which was itself taken from a statute of another State, the supreme court is not bound by the construction of the statute made by the courts of California. Chief Justice Fuller who delivered the opinion, after tracing the source of the statute under consideration to Massachusetts whose statute reads "unless it shall appear that such omission was intentional," says:

How appear? Evidently aliunde the will. If it must appear upon the face of the will that the omission was intentional, the words inserted in the statute were superfluous; for, if it' did so appear, the child could not take, notwithstanding the provision that in case of omission it should take, inasmuch as the latter provision was only inserted to give the omitted child a share, not against the intention of the testator, but because of the presumption of an oversight. Hence, in Wilson v. Fosket, 6 Metc. 400, the court held that, under the statute as amended, evidence dehors the will was admissible to establish that the omission was intentional; and such is the settled law of Massachusetts. Converse v. Wales, 4 Allen, 512; Buckley v. Gerard, 123 Mass. 8; Ramsdill v. Wentworth 101 Mass. 125. In the latter case the court said: "The operation of the statute is peculiar, but there is no violation under it of the rules of evidence. The only issue is whether provision was omitted in the will by design, and without mistake or accident. Parol evidence is admitted, although the result may change or modify the disposition of the testator's estate. The will is used to show that there is no legacy under it; and, however the issue may be established, there is no conflict with its terms."

In Bancroft v. Ives, 3 Gray, 367, the statute of Massachusetts was held to apply to children born after the making of the will, and before the death of their father. The argument was pressed that the language, "omit to provide in his will," necessarily meant, and should be confined to, children living at the time of making the will. This argument was regarded by Chief Justice Shaw as plausible, but not sound, because, as a man's will is ambulatory until his decease, the time to which the question of omission applied

was the time of the testator's death. If, therefore, he had then made no provision by his will, the case of the statute arose, for he had made a will, but left a child without having made any provision for such child.

By the Utah statute, however, specific provision is made for children born after the making of the will, and also for children in being, but omitted when the will is made. Children born after the making of the will, but before the decease, inherit, unless it appears from the will that the testator intended that they should not. And this applies to posthumous children. Mr. Jarman lays it down that marriage and the birth of a child, conjointly, revoked a man's will, whether of personal or real estate, these circumstances producing such a total change in the testator's situation as to lead to a presumption that he could not have intended a disposition of property previously made to continue unchanged. But this effect is not produced where there is provision made for both wife and children by the will itself (Kenebel v. Scrafton, 2 East, 530); or by a previous settlement providing for both (1 Jarm. Wills, *123, *125). Revocation, treated as matter of presumption merely, was thought, in Brady v. Cubitt, 1 Doug. 31, open to be rebutted by parol evidence, and this is guardedly conceded by Chancellor Kent in Brush v. Wilkins, 4 Johns Ch. 506, and by Mr. Greenleaf (2 Ev. § 684). But, as is stated in a note to that section, the doctrine that the presumption is not conclusive has been overruled, upon great consideration, in the cases of Marston v. Roe, 8 Adol. & E. 14, and Israell v. Rodon, 2 Moore, P. C. 51, in the former of which it was among other things, resolved, that "where an unmarried man, without children by a former marriage, devises all the property he has at the time of making his will, and leaves no provision for any child of a future marriage, the law annexes to such will the tacit condition that, if he afterwards marries, and has a child born of such marriage, the will shall be revoked;" and that "evidence not amounting to proof of republication, cannot be received in a court of law to show that the testator meant his will to stand good, notwithstanding the subsequent marriage and birth of issue; because these events operate as a revocation by force of a rule of law, and independent of the testator." The subject is regulated in this country by the statutes of the several States and territories, marriage alone working revocation under some, and both marriage and birth of issue being required under others; while subsequently born children, unprovided for, are allowed to take, unless a contrary intention appears. But the provision we are considering concerns the children in being when the will is made. As to the children born after death, or the making of the will, the reason why the intention to omit them should appear on the face of the will is obvious. It is the same as that upon which the doctrine of revocation rests,-the change in the testator's situation. But this reason loses its force, so far as children living when the will is made are concerned; and this explains the marked difference between the sections of the statute before us applicable to the two classes. The statute raises a presumption that the omission to provide for children or grand-children living when a will is made is the result of forgetfulness, infirmity, or misapprehension, and not of design; but this is a rebutable presumption, in view of the language employed, which negatives a taking contrary to an intentional omission, and at the same time leaves undefined the mode by which the affirmative purpose is to be established. Legal presumptions drawn by the courts, independently of or against the

words of an instrument, may be, in some instances, repelled by extrinsic evidence, and this statutory presumption of an unexpressed intention to provide may be rebutted in the same way. Under § 12, a pretermitted child is entitled to no share if it has had an equal proportion by way of advancement; but it is not contended that this fact must necessarily appear from the will when that is not required by statute. Yet proof of advancements and of intentional omission alike defeat the claimant. The rule as to patent and latent ambiguities, so far as analogous, sustains the same conclusion. Where a devise is, on the face of it, clear and intelligible, yet from external circumstances an ambiguity arises as to which of two or more things, or of two or more persons, the testator referred to, it being legally certain that he intended one or the other evidence of his declarations, of the instructions given for his will, and of other circumstances of like nature, is admissible to determine his intention.

The will in this case is entirely unambiguous. The testator's intention was that his wife should have the property. There being children at the time of the execution of the will, an ambiguity may be said to have been created, by operation of the statute, as to their having been intentionally omitted, which ambiguity evidence of the character named at once removed. Children so situated do not set up title under the will, but under the statute. The will is used to establish that they have no legacy or devise under it. Then the inquiry arises whether the testator intended to omit them. Evidence that he did, does not conflict with the tenor of the will. It simply proves that he meant what he said. Instead of tending to show the testator's real purpose to have been other than is apparent upon the face of the will, it confirms the purpose there indicated. The fact of the existence of children when a will is made is proven dehors the instrument; and since, under the statute, that evidence opens up a question as to the testator's intention, which, but for the statute, could not have arisen, and which by the statute is not required to be determined by the will, we cannot perceive why the disposal of it should be so limited.

An unusual question in the law of principal and agent was before the Supreme Court of Illinois in Baird v. Shipman, 23 N. E. Rep. 384. It was there held that an agent who has complete control of a house belonging to an absent principal, and who lets the house in a dangerous condition, promising at the time to repair it, is responsible to a third person injured by an accident caused by want of such repair. The court in affirming, uses the language of the appellate court, saying:

An agent is liable to his principal only for mere breach of his contract with his principal; but he must have due regard to the rights and safety of third persons. He cannot in all cases find shelter behind his principal. If, in the course of his agency he is intrusted with the operation of a dangerous machine to guard himself from personal liability, he must use proper care in its management and supervision, so that others, in the use of ordinary care, will not suffer in life, limb, or property. Suydam v. Moore, 8 Barb. 358; Phelps v. Wait, 30 N. Y. 78. It is not his contract with the principal which exposes him to, or protects him from, liability to third persons, but his common

law obligation to so use that which he controls as not to injure another. That obligation is neither increased nor diminished by his entrance upon the duties of agency; nor can its breach be excused by the plea that his principal is chargeable. Delaney v. Rochereau, 34 La. Ann. 1123. If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use a reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot escape this duty by abandoning its execution midway, and leaving things in a dangerous condition, by reason of his having so left them without proper safeguards. Osborne v. Morgan, 130 Mass. 102. A number of authorities charged the agent, in such cases, on the ground of misfeasance, as distinguished from non-feasance. Mechem, in his work on Agency, § 572, says: "Some confusion has crept into certain cases from a failure to observe clearly the distinction between non-feasance and misfeasance. As has been seen, the agent is not liable to strangers for injuries sustained by them, because he did not undertake the performance of some duty which he owed to his principal, and imposed upon him by his relation, which is non-feasance. Misfeasance may involve, also, to some extent, the idea of not doing, as where the agent while engaged in the performance of his undertaking, does not do something which it was his duty to do under the circumstances,-does not take that precaution, does not exercise that care, which a due regard for the rights of others requires. All this is not doing; but it is not the not doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law, as a responsible individual, in common with all other members of society. It is the same not doing which constitutes actionable negligence in any relation." To the same effect are Lottman v. Barnett, 62 Mo. 159; Martin v. Benoist, 20 Mo. App. 263; Harriman v. Stowe, 57 Mo. 93; Bell v. Josselyn, 3 Gray, 309. A case parallel to that now in hand is Campbell v. Sugar Co., 62 Me. 552, where agents of the Portland Sugar Company had the charge and management of a wharf belonging to the company, and rented the same to tenants, agreeing to keep it in repair. They allowed the covering to become, old, worn, and insecure, by means of which the plaintiff was injured. The court held the agents were equally responsible to the injured person with their principals. Wharton, in his work on Negligence, § 535, insists that the distinction, in this class of cases, between non-feasance and misfeasance can no longer be sustained; that the true doctrine is that when an agent is employed to work on a particular thing, and has surrendered the thing in question into the principal's hands, then the agent ceases to be liable to third persons for hurt received by them from such thing, though the hurt is remotely due to the agent's negligence, the reason being that the casual relation between the agent and the person hurt is broken by the interposition of the principal as a distinct center of legal responsibilities and duties, but that, even where there is no such interrupting of causal connection, and the agent's negligence directly injures a stranger, the agent having liberty of action in respect to the injury, then such stranger can recover from the agent damages for the injury. The rule, whether as stated by Mechem or Wharton, is sufficient to charge appellants with damages, under the circumstances disclosed in this record. They had the same control of the premises in question as the owner would have had if he had resided in Chicago, and attended to his own leasing and repairing. In that respect appellants re

mained in control of the premises until the door fell upon the deceased. There was no interruption of the causal relation between them and the injured man. They were, in fact, for the time being, substituted in the place of the owner, so far as the control and management of the property was concerned. The principle that makes an independent contractor, to whose control premises upon which he is working are surrendered, liable for damages to strangers caused by his negligence, although he is at the time doing the work under contract with the owner (Whart. Neg. § 440), would seem to be sufficient to hold appellants. The owner of cattle who places them in the hands of an agister, is not liable for damages committed by them while they are under control of the agister. It is the possession and control of the cattle which fix the liability; and the law imposes upon the agister the duty to protect strangers from injury by them. Ward v. Brown, 64 Ill. 307; Ozburn v. Adams, 70 Ill. 291.

A question of implied covenants in the lease of a furnished house, came before the Court of Appeals of New York in Franklin v. Brown, 23 N. E. Rep. 126. There it was held that a letting of a furnished house for a year does not raise an implied covenant against noxious gases which render the house uninhabitable during part of the year, which gases originated outside the demised premises, and were unknown to the lessor when the lease was executed. The court says:

But it is argued that the letting of household goods for immediate use raises an implied warranty that they are reasonably fit for the purpose, and that, when the letting includes a house furnished with such goods, the warranty extends to the place where they are to be used. This position is supported by the noted English case of Smith v. Marrable, 11 Mees. & W. 5, which holds that, when a furnished house is let for temporary residence at a watering place, there is an implied condition that it is in a fit state to be habited, and that the tenant is entited to quit upon discovering that it is greatly infested with bugs. This case has been frequently discussed, and occasionally criticised. It was decided in 1843, yet during that year it was distinguished and questioned by two later decisions of the same court. Sutton v. Temple, 12 Mees. & W. 52; Hart v. Windsor, Id. 68. It was approved and followed in 1877 by Wilson v. Finch Hatton, L. R. 2 Exch. Div. 336, in which, however, there was an important fact that did not appear in the earlier case, as before the lease was signed there was a representation made in behalf of the landlord that she believed "the drainage to be in perfect order," whereas it was in fact defective, and the contract was promptly rescinded on this account. The principle that there is an implied condition or covenant in a lease that the property is reasonably fit for the purpose for which it was let, as laid down in Smith v. Marrable, has been frequently questioned by the courts of this country, and has never been adopted as the law of this State. Edwards v. Railroad Co., 98 N. Y. 248; Howard v. Doolittle, 3 Duer, 475; Carson v. Godley, 26 Pa. St. 117; Dutton v. Gerrish, 9 Cush. 89; Chadwick v. Wooodward, 13 Abb. N. C. 441; Coulson v. Whiting, 14 Abb. N. C. 60; Sutphen v. Seebass, Id. 67; Meeks v. Bowerman, 1 Daly, 99. We have been referred to no decision of this court involving the application of that principl