the debtor not served with process in the first suit, and a plea of nul tiel record, interposed by the defendant, is a good plea in bar of the action: Frothingham v. Barnes, Ib., 474.

9. Whether such a judgment, as against the debtor not served with process, can be sued in the State where it has been recovered, quære. It is certainly not a judgment in the sense of the constitution and laws of the United States, and can not be enforced as a judgment by virtue thereof, outside of the State where it was recovered: Ib.

10. An incorporated city is responsible for all damages that accrue in consequence of the action of mobs within its corporate limits, whether such damages are loss of property or injury to life and limb, and it makes no difference whether the loss of property, or the injury to life and limb, by such action of mob, might have been prevented or not; and it makes no difference whether any of the participants in such mob reside in the city or not: City of Atchison v. Twine, 9 Kan., 350.

11. An action for the conversion of property does not lie against the administrator or executor of the wrong-doer: Cherry v. Hardin, 4 Heiskell, 199.

12. A suit brought in the name of the payee of a note which ought to have been executed to another, may, by proper replication and proof, be shown to be prosecuted for the benefit of the person interested in the note: Barbee v. Williams, Ib., 522.

ADMINISTRATION.

1. An administrator selling property in January, 1863, on a credit of twelve months, taking notes payable in Tennessee Bank notes; that course being advised by one of the distributees, and that currency being regarded by prudent men as the safest attainable:

Held, not guilty of a devastavit: Bradshaw v. Cruise, 4 Heiskell, 260.

2. Where a note was made to an executrix in her representative capacity, her administrator, in the event of her death, may sue on the note in his own name: Black v. Dorman, 51 Mo., 31.

3. In proceedings in equity to set aside an allowance by the County Court of sundry demands against the estate of a deceased person on the ground that the same were obtained by collusion between the claimants and the administrator: 1. It is not necessary that the latter should be joined: 2. The bill would not be multifarious where the matters charged were part of the same general transaction in which all participated, and in the results of which all were interested: Mayberry v. McClurg, Ib., 256.

4. An administrator is not an insurer of the property of the decedent. He is liable for loss thereof, only where he fails to exercise that care and diligence which a prudent man would exercise in the management of his own property: Fudge v. Durn, Ib., 264.

5. In suit brought by a public administrator, the body of the petition should show his authority to bring the action. Matters set forth in the caption will not obviate defects in that regard. The caption is simply a descriptio persona, and forms no part of the statement, required in the petition: Headle v. Cloud, Ib., 301.

ADMINSTRATORS AND EXECUTORS.

1. An executor, who, by the will of his testator (probated in 1853, and by which a solvent estate of more than $200,000 is committed to his hands), is directed to move a slave to a free State, to be there manumitted, and to invest for such manumitted slave, on his arrival at age, which occurs in 1862, $3,000, can not, after refusing to execute the bequest of his testator until the close of the war, free himself

from liability by showing that the estate has perished on his hands from the results of the war and other causes: Anderson v. Green, Executor, 45 Ga., 361.

2. Where land is "regularly advertised and sold at administrator's sale" (the record states no more), and is afterwards levied on under a judgment obtained against the intestate in his life-time, and the Court decides that the administrator's sale divests the judgment lien-to which judgment, exception is taken-the plaintiff in error, must show affirmatively, that the estate was solvent, and the order of sale was not granted for the payment of debts, but for distribution only, in order to entitle him to a reversal of the judgment, even if this would do so, and as to this, we reserve our opinion: Carhart et als. v. Vann, Ib., 389.

ADVANCEMENTS.

In a transaction between father and child, a sale from the father will not be treated as an advancement merely because the price paid was inadequate : Merriman v. Lacefield, 4 Heiskell, 209.

AGENCY.

1. Where a married man owning property covered by a fire insurance policy, was absent from home for fourteen months before a loss occurred, and continued to be absent at the time of the trial of an action upon the policy (nearly three years after his departure), and was totally ignorant of the loss and the circumstances attending it:

Held, that there arose er necessitate an authority in the wife, as his agent, to make the proofs and do other acts required by the assured: O'Conner v. Hartford Fire Ins. Co., 31 Wis., 160.

2. Testimony of the wife that the husband had told her "to care for the place and property," "to take care of it the same as himself," until he returned, would also tend to show an express delegation of power to her to act as his agent in the matter of such loss: Ib.

3. An objection that the policy required "the assured" to give the notice, and verify the proofs by his oath, can not avail, where, in the permanent absence of the assured, the notice has been given and the proofs verified by his agent left in charge of the property: 1b.

4. The wife, who has acted as her husband's duly authorized agent in such a case, is a competent witness as to facts within her knowledge, connected with such

loss: Ib.

5. But the defendant company was not entitled to show by the testimony of the wife, that plaintiff did not hold the legal title to the land, but only an executory contract therefor; such fact not being one which had occured within the scope of her agency, or with which she was connected as such agent: Ib.

6. In an action by a clerk against his employer on an agreement whereby the former was to receive as compensation a certain portion of the net profits of the business, where it appeared that plaintiff kept the books and managed the business, the books would be proper but not conclusive evidence on either side. Defendant might show that plaintiff had introduced false or fraudulent entries into the books of the concern. The rule of ascertaining damages in such cases is precisely the same as that which applies to partnership accounts: Wiggins v. Graham, 51 Mo., 17.

7. The officers of a corporation, unless prohibited by the charter, may confer authority upon its agent to draw and execute bills of exchange on behalf of the company. No action in writing on the part of the board of directors is necessary in

order to vest such authority in the agent: Preston v. Missouri and Pennsylvania Lead Co., Ib., 43.

8. Where an agent of a bank, by means of false representations as to his authority to employ attorneys for his principal, secured professional services for the bank in sundry attachment proceedings, and on suit brought against the bank by the attorney for the value of his services, it turned out that the agent had no such authority as represented, and so the bank could not be made responsible:

Held, that the attorney had his action against the agent personally for the value of his services. And that his petition would not be held bad on demurrer, for misjoinder, because it included counts for services in the different attachment suits; said suits appearing to have been brought under the same employment. And the measure of his damages would be the reasonable value of his services as attorney, together with the actual amount of his costs incurred in the suit against the bank: Wright v. Baldwin, Ib., 269.

9. A draft drawn by A. upon B., by inadvertance of the collector was presented to C., and paid by him, under a mistaken impression as to his liability, and remitted to A. by the collector before the mistake was discovered:

Held, that as the money was paid by C., and received by the collector under a mutual mistake as to the facts, the latter would be liable to the former in an action for money paid. In such a case it makes no difference that the plaintiff had the means of knowing of the error, and might, by diligence and care have avoided the payment: Koontz v. Central Bank, 1b., 275.

AGENT.

1. Where by contract a citizen of this State became the agent of a citizen and resident of the State of Virginia, in 1857, and the agency continued:

Held, that the fact that the principal was a rebel, and within the Confederate lines in 1863, did not of itself put an end to the agency: Fisher v. Krutz, 9 Kan., 501.

2. An agent with whom notes are left for collection, without special authority, could not receive payment in Confederate Treasury notes: Clark v. Thomas, 4 Heiskell, 419.

ALIEN.

1. G. H., a citizen, agreed to buy, and bought, a lot of land for J. W. H., an alien, furnished the money, entered into possession, and died, leaving a widow, and infant son. He remained an alien up to the time of his death. Upon the filing of a bill in equity to compel a conveyance of said estate by G. H. to the infant son of J. W. H., as his heir at law:

Held, that the infant son of J. W. H. had no claim to a decree of the Court to direct a conveyance to him; neither could G. H. be compelled to convey it for the benefit of the administrator, to enable him to pay out of his estate the debts of the deceased: Haigh v. Haigh, 9 R. I., 26.

2. The statute of 11th and 12th Wm. III., chapter 6, held inapplicable to the present case. Upon the death of an alien, his estate ipso facto escheat, he having no inheritable blood by which it can be transmitted: 1b.

3. It is a rule of construction, that a statute, unless it appears distinctly that it is intended to operate on a case already pending, does not operate upon any such case. Therefore, chapter 709 of the statute, which provides that if an alien die thereafter, his estate shall be transmitted to his heirs:

Held, not to effect the case at bar, the bill having been filed before the passage of the act: Ib.

ALTERATION.

1. A material alteration of a promissory note, such as for instance, changing it to a negotiable note without the knowledge or consent, either express or implied, of the promissor, vitiates it, although it may be in the hands of an innocent holder: Morehead v. Parkersburg Nat. Bank, 5 W. Va., 74.

2. It lies upon the party seeking to enforce a bill or note, to account for any alteration that appears on the face of the instrument: Piercy's heirs v. Piercy, Executor, Ib., 199.

AMENDMENT.

1. Neither the common law, nor the statutes of this State, allows the plaintiff, in an action of trover, to amend his writ by inserting the names of other plaintiffs: Ayer v. Gleason, 60 Maine, 207.

2. Thus, where the defendant was summoned in action of trover to answer to James C. Ayer, and of, etc., co-partners, under the style and firm name of James C. Ayer & Co., an amendment by inserting the names of the other members of the firm, is not allowable: Ib.

ANCIENT LIGHTS.

An implied grant of an easement of light will be sustained only in cases of real necessity; and will be denied or regretted in cases where it appears that the owner claiming the easement can, at a reasonable cost, have, or substitute, other lights to his building: Powell v. Sims, 5 West Virginia, 1.

APPEAL.

1. From Justice's Court. On appeal from justice's court, where the cause is triable de novo at the Circuit, either party may be allowed to enlarge his demand of damages beyond the amount of which a justice has jurisdiction: Heath v. Heath, 31 Wisconsin, 223.

2. To Supreme Court. The objection that the complaint does not state a cause of action is not waived by failing to demur on that ground, or to appeal from an order overruling such a demurrer, but may still be urged against a judgment in plaintiff's favor: Armstrong v. Gibson, Ib., 61.

3. If there is any evidence to sustain the facts found by a referee, his conclusion, if the facts are capable of the interpretation given to them by him, is final so far as this Court is concerned; but where his conclusion is predicated in part upon facts not proven, which may have had some influence, the judgment will be reversed; as it can not be determined whether those assumed facts might not have had a controlling influence. Thus, where a referee finds various facts, from which he finds an intent to evade the usury laws, and some of the material facts are unsupported by evidence, or are against evidence, it is an error of law, which is fatal to the judg ment, although usury may have been predicated upon facts proven: Matthews v. Coe, 49 New York, 57.

4. Where a witness, in answer to a proper question which is objected to, gives testimony not called for by it, which is incompetent, but no objection is made to the answer or motion to strike it out, it can not be objected to upon review: Crippen v. Morss, Ib., 63.

5. This Court is not authorized to review a judgment and reverse it for an alleged error which does not appear upon the record, and is only shown by expressions in the opinion of the Court below: Laning v. N. Y. C. R. R., Ib., 521.

6. An appellant will not be heard to allege as error that which was inserted in a judgment at his own instance: Proestler v. Kuhn, Ib., 654.

ARBITRAMENT AND AWARD.

1. An award having been made the judgment of the Court, without objection, equity will not interfere to set it aside on account of fraud in the original cause of action, or of fraud in obtaining the complainant's consent to the arbitration, where all the facts were known at the time of the motion to make the award the judgment of the Court: Clark et al. v. Thurmond, 46 Georgia, 97.

2. If a submission contain no provision in relation to the rules of evidence that shall govern the referees, they are not restricted to the rules of the common law, but may receive the statements of parties without requiring them to be first sworn: Sadborn v. Paul, 60 Maine, 325.

3. To an action on a common law award based upon the breach of a written contract, it is no defense that the contract before the referees was not identified so long as they had the right one: Ib.

ASSAULT AND BATTERY.

1. In an action for assault and battery, compensatory (as distinguished from punitive) damages are of two kinds: (1). Those which may be recovered for the actual personal or pecuniary injury and loss; the elements of which are, loss of time, bodily suffering, impaired physical or mental powers, mutilation and disfigurement, expenses of surgical and other attendance, and the like. (2). Those which may be recovered for injuries to the feelings, arising from the insult or dignity, the public exposure and contumely, and the like: Wilson v. Young, 31 Wisconsin, 574.

2. Compensatory damages of the first kind are to be determined without reference to the question whether defendant was influenced by malicious motives in the act complained of; and, on the other hand, evidence of threatening or aggravating language, or malicious conduct on plaintiff's part (not constituting a legal justification of defendant's act), can not be considered in mitigation of such damages: lb.

3. Compensatory damages of the second kind depend entirely upon the malice of defendant; and as evidence of such may be given to increase that kind of damages, so evidence of threatening or milicious words or acts on plaintiff's part, just previous to the assault, though not constituting a legal justification, should be admitted to mitigate or even defeat such damages: Ib.

4. Dixon, C. J., is of opinion that proof of words and acts of provocation on plaintiff's part, immediately previous to the assault and constituting a part of the res gesta, should be considered in mitigation of compensatory damages in general, adhering to the view expressed in Morley v. Dunbar, 24 Wis., 183: Ib.

ASSESSMENT AND TAXATION.

1. Assessors are not personally liable for errors or mistakes in the assessment where they have jurisdiction and act within the scope of their authority, but if they exceed their powers and act within authority, and in contravention of the statute prescribing and regulating their duties, they are civilly liable to any person injured by their action: Clark v. Norton, 49 New York, 243.

2. Assessments must be made by the 1st of July, and of property and persons in respect to the liability as it exists upon that day. An individual, not liable upon that day, can not be placed upon the assessment roll thereafter, nor can a person, whose name is properly upon the roll, be assessed for property subsequently acquired. After the deposit of the roll for examination, the assessors can not add names thereto, or add to the assessment of individuals other property, or change the character of the property assessed. Where the roll is completed, the duty of the assessor is fully performed, except in the matter of a review of the assessment as made and as permitted by statute.