by the testimony of witnesses, but look for its definition in the dictionary. Whisky, according to Webster, is "a spirit distilled from grain;" and beer, according to the same authority, is "a fermented liquor made from any malted grain, with hops and other bitter flavoring matter." It is true that, to a limited extent, there are other kinds of beer, or of liquor called beer, such as small beer, spruce beer, ginger beer, etc.; but such definitions are placed as remote and special, and not primary or general. So it may be said of other substances having a common name and meaning, such as milk or tea. Milk, according to Webster, is "a white fluid secreted by female mammals for the nourishment of their young." There are other kinds of milk however such as "the white juice of plants," which is the remote definition; or milk in the cocoanut, or that in the milky-way. Tea is defined to be "leaves of a shrub or small tree of the genus Thea or Camellia. The shrub is a native of China and Japan." There are other kinds of tea, such as sage tea and cammomile tea, etc. The latter are the restricted uses of the word. When asked to take a drink of milk or cup of tea, it would not be necessary to prove what it meant. Why is it more necessary to prove what is meant by a glass or drink of beer? When beer is called for at the bar, in a saloon or hotel, the bartender would know at once, from the common use of the word, that strong beer - a spirituous or intoxicating beer was wanted; and if any other kind was wanted, the word would be qualified, and the particular kind would be named, as root beer or small beer, etc. When therefore the word "beer" is used in court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor, or such meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant.

When the witnesses in this case testified that the defendant sold to them beer, the prosecution had sufficiently proved that he had sold to them a malt and intoxicating liquor, for both qualities are implied in the word "beer." This as a logical conclusion and principle of law would seem to be well established by common reason, and we think it would be difficult to find a single good reason against it. As to decisions and authorities upon the question, it must be confessed it would seem that those which require proof that beer, or the liquor sold by that name, is intoxicating, have at least the weight of numbers. But there are many authorities, of the very highest judicial source, and based, as we think, on far the better reason, which hold the doctrine we have indicated. These we feel bound to follow.

In Parker v. Wheelock, 3 Parker Crim. 9, it is said in the opinion: "The word 'beer,' in its ordinary sense, denotes a beverage which is intoxicating, and is within the fair meaning of the words 'strong or spirituous,' as used in the statutes, and it was held that it was incumbent upon the defendant to show that the word was used in a restricted or qualified sense, such as to denote root beer, molasses beer," etc., and this is unquestionably the correct rule in such

cases.

In Commissioners of Excise, etc., v. Taylor, 21 N. Y. 173, it was held that "strong beer" was within the

statute.

In Rau v. People, 63 N. Y. 277, it is held that "strong beer" was within the statute.

In State v. Goyette, 11 R. I. 592, it is held that the court should take judicial cognizance, and without evidence, that "lager beer" is a malt liquor, and it is said in the opinion by Chief Justice Durfee: "Lager beer is, and has been for many years a familiar beverage in this country. Its constituents are enumerated not only in books of science, but in popular encyclopædias. It is a malt liquor of the lighter sort, and differs from ordinary beers and ales, not so much in its ingredients, as in its processes of fermentation. The government might almost as well be required to prove that gin, or whisky, or brandy, is a strong liquor, as to prove that lager beer is a malt liquor."

In Massachusetts, "strong beer and lager beer" are to be deemed to be intoxicating by statute, and that is conclusive. Commonwealth v. Anthes, 12 Gray, 29.

Many authorities to the same effect are referred to in the above cases, and many more might be cited. It is useless to cite or comment upon that large class of authorities which hold the other way, for we disapprove of them, and follow these, founded as we think in the better reason. The court is indebted for the above citations to the able brief of the learned coun-* sel of the State, and on the other hand the learned counsel of the defendant is entitled to great credit for the ability and industry shown in the brief of his side of the case. The learned counsel of the defendant complains of the peculiar manner and language of the court in ruling upon this question, and cites authorities that even the improper manner of a judge, which influences or prejudices the minds of the jury, may be assigned for error. But those authorities are only to the effect that a manner or emphasis or form of expression which may be reasonably interpreted to express a wrong opinion as to the law or facts, or to express an opinion of a fact which should be left wholly to the jury, may be assigned as error, the same as words of the same effect.

The rulings of the learned judge in this case as to this question were clearly correct, and if his peculiar manner gave them force by emphasis, that was not only proper but commendable. It is not a fault but a high merit in a judge to make his rulings clear and positive, so as not to be misunderstood, and the only question for this court is whether such rulings were correct as matters of law. His manners we have nothing to do with. That is a matter entirely personal, except when expressing error. We think the rulings of the Circuit Court on this question were clearly correct.

The learned counsel of the defendant claims that the judgment or sentence is void, because in default of payment of the fine and costs, the defendant is to stand committed not to exceed sixty days, and cites chapter 332, Laws 1882, which provides, that in lieu of a fine, the defendant may be punished by imprisonment not to exceed sixty days, nor less than twenty. The sentence is strictly according to section 4633, Revised Statutes.

The judgment of the Circuit Court is affirmed.

IOWA SUPREME COURT ABSTRACT.

ADVANCEMENT VOLUNTARY CONVEYANCE ΤΟ CHILD-GIFT.-A voluntary conveyance by a parent to his child is prima facie au advancement, and the burden of proof is upon the party claiming it to be a gift. McCaw v. Burk, 31 Ind. 56; Weaver's Appeal, 63 Penn. St. 309; Holliday v. Wingfield, 59 Ga. 206; Morris v. Morris, 9 Heisk. 814; Ray v. Loper, 65 Mo. 470; Tremper v. Barton, 18 Ohio, 418. Burton v. Baldwin. Opinion by Day, C. J.

[Decided June 12, 1883.]

INFANT CUSTODY OF SURRENDER BY PARENTHABEAS CORPUS.-The weight of authority sustains the position that a parent cau, by agreement, surrender the custody of his infant child so as to make the custody of him to whom he surrenders it legal. Tyler Inf. 283; Pool v. Gott, 14 Law Rep. 269; State v. Smith, 6 Greenl. 463; McDowle's Case, 8 Johns. 328; State v. Barrett, 45 N. H. 15: Dumain v. Gwynne, 10 Allen, 270; Com. v. Barney, 4 Brewst. 409; Com. v. Gilkeson, 1 Phil. 194; Chapsky v. Wood, 26 Kans. 650; Matter of Goodenough, 19 Wis. 274. When a parent has, either by abandonment or contract, surrendered his present legal right to the custody of a child, in all controversies subsequently arising respecting its custody, the matter of primary importance is the interest and welfare of the child. To this the right of the parent must yield. The return of a child to a mother who had surrendered it refused on habeas corpus. In Clark v. Bayer, 32 Ohio St. 299, it is said: "It sometimes happens that parents have abandoned their minor children, or by act and word transferred their custody to another. In such cases, where the custo.dian is in every way a proper person to have the care, training, and education of the infant, and the court is satisfied its social, moral, and educational interests will be best promoted by remaining in the custody of the person to whom it was transferred, or received when abandoned, the new custody will be treated as lawful and exclusive. After the affections of both child and adopted parent become engaged, and a state of things has arisen which cannot be altered without risking the happiness of the child, and the father wants to reclaim it, the better opinion is that he is not in a position to have the interference of the court in his favor. His parental right must yield to the feelings, interests, and rights of other parties acquired with his consent." Bonnett v. Bonnett. Opinion by Day, C. J.

[Decided June 9, 1883.]

EVIDENCE-EXPERT-STATEMENT THAT SIDEWALK IS IN REPAIR.-A statement in an affidavit that a sidewalk was in "good repair," is not the expression of an opinion, but of a fact discovered by the observation of the witness. Any person of ordinary intelligence is capable of observing the condition of a street or sidewalk, whether it be in good repair or bad condition. All persons living in or who frequent cities continually use the streets, and in passing along a sidewalk would ordinarily observe its condition. The testimony in question belongs to that class which relates to experience and observation as to affairs of every-day life, to which the attention of all are directed, and of which all are competent to speak. A witness, without a showing of his qualifications as an expert, may state conditions of the weather, the time of the day, the comparative distance which separates objects, the condition of the roads and streets, and the like, for the reason that matters of this kind are within the observation of all, and in speaking of them he does not express an opinion, but states facts learned from observation. Kelleher v. City of Keokuk. Opinion by [Decided March 22, 1883.]

Beck, J.

64

DEED-CONSTRUCTION OF CONVEYING PROPERTY IN FEE.-A deed conveyed property to C. as her own and indefeasible estate, to be owned, controlled, managed, and if desired, sold and conveyed, by her, or those who may act for her as her legal representatives or guardians, during her life-time." The deed provided that "whatever part or parcel of said premises that may be owned or held by the said C. at the time of her decease, or of which she may die seized, or in which she at that time may have any right, title, or interest, shall revert to, vest in, and again become the

*

absolute and indefeasible property of the grantor, or in case of his death, to his lawful heirs, to the absolute exclusion and inhibition of all other persons or heirs." Held, that the deed vested the fee-simple title absolute in the grantee. Any condition inconsistent therewith would, if enforced, defeat the deed. But the law will uphold the conveyance. The condition must therefore be imperative. As the fee-simple title absolute is conveyed by the deed, the condition caunot be enforced, for it is inconsistent therewith. This conclusion is supported by the following cases: McCleary v. Ellis, 54 Iowa, 311; Ide v. Ide, 5 Mass. 500; Jackson v. DeLancy, 13 Johns. 537; Attorney-General v. Hale, Fitzg. 314; Second Ref. Church v. Disbrow, 52 Penn. St. 219. Case v. Dwire. Opinion by Beck, J. Two judges dissenting. [Decided March 21, 1883.]

EVIDENCE-STATEMENT THAT HORSE WAS FRIGHTENED PERMISSIBLE.-It is competent for a witness to testify to his conclusion when the matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time. Accordingly, held, that a witness could testify that horses were frightened by water being thrown upon them. A witness may state his opinion in regard to sounds, their character, from what they proceed, and the direction from which they seem to come; State v. Shunborn, 46 N. H. 497; the correspondence between boot and foot prints; Com. v. Pope, 103 Mass. 440; and it is competent for a witness not an expert to testify to the condition of health of a person, and that he is ill or disabled, or has a fever, or is destitute. Earker v. Coleman, 35 Ala. 221; Wilkinson v. Mosely, 30 id. 562. A witness may give his judg ment whether a person was intoxicated at a given time. People v. Eastwood, 14 N. Y. 562; State v. Huxford, 47 Iowa, 16. Yahn v. City of Ottumwa. Opinion by Rothrock, J.

[Decided March 20, 1883.]

RHODE ISLAND SUPREME COURT

ABSTRACT.*

(2) An estate was platted into lots and partition of it was made by deeds conveying the lots. Certain of these lots bounded on W. street, and the deeds of these lots contained a provision that "The strip of land situate in front of lot No. as designated on said plat, which is intended to be used at some future time to widen W. street, is included in the above conveyance and may be improved by the grantee until it shall be laid out for a street; but no building can be erected thereon." Held, that this provision created a negative easement restricting the right to build. Hubbell v. Warren, 8 Allen, 173; Winfield v. Henning 21 N. J. Eq. 188; Western v. Macdermot, L. R., 1 Eq. 499, 507. (3) A. permitted and advised the erection of buildings on the strip in front of certain of these lots, and several years afterward filed a bill in equity to enjoin the owners of these buildings from building on the strip in front of another of the lots. Held, that A.'s conduct was a waiver and abandonment by him of the easement. Held, further, that A. was estopped by acquiescence and laches from maintaining his bill. "It is a rule of law that an easement whether acquired by known grant or by prescription may be extinguished, renounced or modified by a parol license granted by the owner of the dominant tenant and executed by the owner of the servient tenement." Morse v. Copeland, 2 Gray, 302. The reason for this rule is clearly stated by Shaw, C. J., in Dyer v. Sanford, 9 Metc. 395, 401. "If the owner of the dominant grants a license to the owner of the servient tenement, to erect a wall which necessarily obstructs the enjoyment of the easement and it is erected accordingly, it may amount to proof of an abandonment of the easement. It is not a release because it is by parol. But it results from the consideration that a license, when executed, is not revocable; and if the obstruction be permanent in its nature, it does, de facto, terminate the enjoyment of the easement. See also Steere v. Tiffany, 13 R. I. 568; Vogler v. Geiss, 51 Md. 407. Aldrich v. Billings. Opinion by Stiness, J.

[Decided July 14, 1883.]

FRAUD- -FALSE PRETENSE AS TO SOLVENCY. -Au action on the case for deceit will not lie against a person for obtaining credit by falsely and fraudulently representing himself to be "a person safely to be trusted and given credit to." To maintain such an action against a person obtaining credit by false representations of his solvency the false representations must consist of definite statements of fact as distinguished from expressions of opinion. The question is the same as that which was raised in Pasley v. Freeman, 3 Term Rep. 51, except that here the defendant is alleged to have made the representation in regard to himself, whereas, in that case, the defendant was alleged to have made it in regard to another person. In that case it was decided that the action would lie. In Jude v. Woodburn, 27 Vt. 415, the courts say in respect to a representation such as the one in the case at bar, that the representation "is to be regarded but as matter of opinion, and is no more than what every one, by implication, asserts when he asks to be trusted. You cannot predicate an action of fraud upon such a representation, and the plaintiff in giving credit should not have relied upon it." Lyons v. Briggs. Opinion by Durfee, C. J.

[Decided July 7, 1883.]

OHIO SUPREME COURT ABSTRACT.
JANUARY TERM, 1883.*

DEED-CONVEYANCE OF ESTATE IN FEE-OF MINING RIGHTS.-A deed containing apt words to convey an * To appear in 39 Ohio State Reports.

estate in fee must be held to have that effect, in the absence of other words showing clearly and unequivocally a different intention. The granting clause in a deed was as follows: "The first party has agreed to sell and does hereby give, grant, bargain, sell and convey" unto the second party, their heirs and assigns, "all the stone coal lying and being in, under and upon certain premises," in consideration of thirty cents per ton on all coal when mined, and the second party bound themselves to mine at least 3,000 tons annually. It was also stipulated that the second party "shall have the right to abandon the contract at any time when they shall determine, in their judgment, that said coal, in quantity, quality and condition, is no longer minable with economy and profit." Held, (1) All miuable coal in place passed absolutely to the grantees. (2) After such conveyance no interest in the minable coal remained in the grantor subject to be mortgaged as land. (3) A mortgage upon the remaining interest of the grantor in the land did not cover the purchase-money due or to become due from the purchasers of the coal. Edwards v. McClurg. Opinions by Okey and McIlvain, JJ.

PARTNERSHIP-CONSTRUCTION OF CONTRACT-FIRM AND INDIVIDUAL PROPERTY AND LIABILITY.-A., B. and C. agreed to engage in the shipment and sale of cattle as either might from time to time purchase on his own account, and offer to the others at cost for the purpose of shipment and sale on joint account, but it was provided that when the party purchasing delivered a lot of cattle at the place of shipment, the other parties had the option to take an interest in the same or to decline; if they accepted the lot so offered it became partnership property, and was shipped and sold on joint account; but if they did not, it remained the property of the buyer and was shipped and sold on his account. H., to whom this arrangement was unknown, sold a lot of cattle to A. on his individual credit, to be

paid for on his receiving return of sales; but he failed to pay as agreed. Held, that the lot of cattle did not become partnership property until it was delivered at the place of shipment, and was accepted to be shipped and sold on joint account; that at the time the cattle were sold and delivered to A. on his credit, B. and C., did not acquire an interest therein, independent of their consent, and they were not liable by operation of law for the debt thus contracted. The fact that they or either of them subsequently elected to take an interest in this lot of cattle under said agreement did not create a liability against them as partners on such purchase. Norwalk Bank v. Sawyer, 38 Ohio St. 339; Peterson v. Roach, 32 id. 374; Bevan v. Lewis, 2 Eng. Ch. 377; Harvey v. Child, 28 Ohio St. 339; Saville v. Roberts, 4 Durn. & East, 720; McGar v. Drake, 5 Report. 347 (Tenn. Sup. Ct.); Walls v. Fife, 37 Penn. St. 394; Hoare v. Davis, Doug. 371. Valentine v. Hickle. Opinion by Johnson, J.

SALE OF PERSONAL PROPERTY -DELIVERY BY ORDER ON CARRIER-TITLE TO PROPERTY BURNED.

A. sold to B. fifty barrels of flour out of a lot of one hundred barrels, all of the same braud and quality, stored by itself at a railroad depot. The carrier's charges had been paid, and the flour was in charge of the agent of the railroad company, as a warehouseman. Subsequently he sold to C. and D. twenty-five barrels each. He gave to each purchaser, in the order of sales, an order on the company's agent for the number of barrels purchased. B. sent his team and driver, with his order, to bring away part of his purchase. The driver presented the order to the agent, who received the same, and pointed out the lot of flour, from which the driver took 17 barrels, leaving the order and his receipt for the flour removed. After this, on the same day, C.

and D., each presented his order receipted for, and took away the flour they had purchased, leaving the 33 barrels due on B.'s order in store, which was destroyed by fire the ensuing night. It was the usage of the business with reference to which the parties contracted, that flour so received by rail and stored, was not removed by consignee to his possession but remained in the custody of the railroad company until sold, and that the owner sold in lots to such purchasers and gave to each purchaser an order on the company for the amount purchased, and upon presentation of such an order the agent would point out the lot from which the order was to be filled, and the purchaser would remove and receipt for the amount taken. Nothing remained to be done by the seller in contemplation of the parties to complete the sale. Held, that by such usage the flour called for by the order, after its acceptance by the railroad company, was the property of the purchaser, and he was liable to the seller for the price, though part of it was destroyed before being removed to his actual possession. Wood v. McGee, 7 Ohio, 467, distinguished. Steel Works v. Dewey, 37 Ohio St. 242; Young v. Miles, 23 Wis. 643; Cloud v. Monman, 18 Ind. 40; Horr v. Barker, 8 Cal. 489; Cushing v. Breed, 14 Allen, 376; Kimberly v. Patchin, 19 N. Y. 330; Waldron v. Chase, 37 Me. 414; Chapman v. Shepard, 39 Conn. 413; Whitehouse v. Frost, 12 East, 614; also notes to Hurff v. Hires, 17 and 18 Am. Law Reg. 17, 161, in which the whole subject is exhaustively discussed and the cases reviewed. Newhall v. Langdon. Opinion by Johnson, C. J.

MICHIGAN SUPREME COURT ABSTRACT. JUNE, 1883.

ATTORNEY-PRIVILEGE OF CLIENT AS TO COMMUNICATIONS. There is a privilege of secrecy as to what passes between attorney and client, but it is the privilege of the client and he may waive it if he so chooses. Chase's case, 1 Bland Ch. 206; Parker v. Carter, 4 Munf. 273; Foster v. Hall, 12 Pick. 89; Benjamin v. Coventry, 19 Wend. 353; Whiting v. Barney, 30 N. Y. 330; Riddles v. Aiken, 29 Mo. 453; Fowler v. Schriber, 38 Ill. 172; Stanton v. Hart, 27 Mich. 539; Duttenhofer v. State, 34 Ohio St. 91; Rowland v. Plummer, 50 Ala. 182. It is not the privilege of the court or of any third party. Pussmore v. Passmore. Opinion by Cooley, J.

not

DIVORCE-WRIT OF NE EXEAT WHEN NOT PERMISSIBLE IN.-The allowance of a writ of ne exeat in divorce case by an inferior judicial officer held permissible. In the English courts the jurisdiction has been jealously limited to cases where the default of the defendant is capable of direct measurement, and clearly made out, and where no other remedy is attainable. In Boehm v. Wood, 1 Turn. & R. 332, several questions were discussed, and the rules were laid down with much clearness. The necessity of an accurate ascertainment of the measure of the defendant's obligation was recognized, and of its present force as due. No English case has been found decided in modern times, where the probability of a future indebtedness, or a future default on an unmatured indebtedness, has been allowed to furnish ground for a writ. 3 Daniell Ch. Pr. 1932, and cases. The one exception to the rule confining the writ to equitable debts arose in the case of alimony, and was allowed because the ecclesiastical courts could not enforce its payment by any adequate means. 3 Daniell Ch. Pr. 1926. In Denton v. Denton, 1 Johns. Ch. 441, Chancellor Ken allowed the writ in a suit pending before alimony granted, and this case has been followed in New York. But the authorities which he relied on do not support any such doctrine, but it is distinctly re

pudiated. It is well settled that the writ cannot be allowed, except for arrears due and unpaid. Shaftoe v. Shaftoe, 7 Ves. 171; Dawson v. Dawson, id. 173; Haffey v. Haffey, 14 Ves. 261. In Coglar v. Coglar, 1 id. 95, Lord Thurlow suggested that the impossibility of ascertaining the proper sum at which to fix security was, in his judgment, an insurmountable obstacle. In Shaftoe v. Shaftoe, Lord Eldon declared his reluctance as a matter of principle, to allow the writ for alimony at all, even after judgment, and in denying it before judgment uses this language: "It is wrong that before that decree is made this court is to take it for granted that there will be a decree for alimony and separation, and to shut the husband up pending that suit for any sum it shall name, lest there should be such a decree. Suppose the plaintiff should miscarry in her suit, after this writ has issued, what recompense can be made to him? If the suit has effect, the difficulty is, for what sum to make the writ. The ground that the plaintiff would be without remedy will not do; for that would apply to a judgment at law, where the man cannot be taken on execution." In Dawson v. Dawson, referring to this case, he says: "In a late instance search was made, and no case could be found authorizing one to mark the writ for more than the sums actually due." The same eminent chancellor, in other cases, expressed himself strongly against the application of "this high prerogative writ" to any private cases except with great caution and jealousy, "and that its application to these purposes" can only be justified by usage and practice. Tomlinson v. Harrison, 8 Ves. 32; Etches v. Lance, 7 id. 417. For the same view of the caution required in avoiding its extension, see Howden v. Rogers, 1 Ves. & B. 132; Dick v. Swinton, id. 371; Hannay v. McEntire, 11 Ves. 54. In Chapter 37 of Daniell's Chancery Practice, the whole subject is fully treated, and the same results ascertained. In Street v. Street, 1 Term R. 322, the question arose concerning the application of the writ to temporary alimony, and it was held that it could not be applied to alimony pendente lite. This doctrine does not seem to have been departed from. The authority to issue this writ is properly regarded as an exercise of a very high judicial discretion, which cannot be vested except in those who exercise the ordinary judicial power of courts. It is very far removed from the domain of ordinary practice. Bailey v. Caldwell. Opinion by Campbell, J.

SALE OF REAPING MACHINE-WARRANTY-RIGHT TO RETURN-" IMMEDIATE NOTICE."-A condition in the warranty of a machine sold, that in order to be entitled to return the machine if it should not work well, the purchaser was required to give immediate notice to the selling agents. Held, that the provision for immediate notice does not mean the shortest time possible in which notice could be given. The terms must receive a sensible interpretation-an interpretation favorable to the general object and consistent with the surrounding conditions. It would be neces sary to make allowance for the engagements of the parties, the distance between them, the facility of communication, and any other incidents having a bearing. No greater dispatch would be implied than such as would be fairly just and reasonable in view of all the circumstances. Atwood v. Emery, 1 C. B. (N. S.) 110; Staunton v. Wood, 16 Q. B. 638; Roberts v. Brett, 11 H. L. Cas. 337; Toms v. Wilson, 4 Best & S. 442; Massey v. Sladen, L. R., 4 Exch. 13; Tennant v. Bell, 9 Q. B. 684; Spencely v. Robinson, 3 Barn. & C. 658; Thompson v. Gibson, 8 Mees. & W. 281; Waddell v. Reddick, 2 Ired. Law, 424. Wood Machine Co. V. Smith.

PARTNERSHIP-SHARE IN PROFITS DOES NOT MAKE PARTNER OF EMPLOYEE.-An agreement whereby an

employee receives a share in the profits for his compensation does not make him a partner. Ambler v. Bradley, 6 Vt. 119; Dry v. Boswell, 1 Camp. 330; 2 Greene (Iowa),574; Benjamin v. Porteus, 2 H. Bl. 590; Hall v. Edson, 40 Mich. 651; Beecher v. Bush, 45 id. 188. Hampers' Appeal. Opinion by Sherwood, J.

RECENT ENGLISH DECISIONS.

DISTRESS-PAYMENT NOT VOLUNTARY.-Where an animal distrained as damage feasant is impounded on private premises, and not in a common pound, a subsequent tender of sufficient compensation for the damage actually done is good, and if the distrainer by demanding an excessive sum for damages as the condition of his release of the animal obtains payment of such sum from the owner, such payment is not voluntary, and the sum paid may be recovered in an action for money had and received. Q. B. Div., May 1, 1883. Green v. Duckelt. Opinions by Denman and Hawkins, JJ. (L. R., Q. B. Div. 275.)

INSURANCE-MARINE POLICY-" CAPTURE AND SEIZURE."-In a time policy of marine insurance on ship, the ordinary perils insured against (including "barratry of the master") were enumerated, and the ship was warranted "free from capture and seizure and the consequences of any attempts thereat." In consequence of the barratrous act of the master in smuggling the ship was seized by Spanish revenue officers, and proceedings were taken to procure her condemnation and confiscation. In an action on the policy to recover expenses incurred by the owner in obtaining her release, held, affirming the decision of the Court of Appeal, that the loss must be imputed to " capture and seizure" and not to the barratry of the master, and that the underwriter was not liable. House of Lords, April 30, 1883. Cary v. Burr. Opinions by Lord Chancellor Selborne, Lords Blackburn, Bramwell and Fitzgerald. (L. R., 8 App. Cas. 393.)

LOTTERY-PRIZES IN PACKAGES OF TEA. By 42 Geo. 3, ch. 119, § 2, it is made an offense to keep any office or place to exercise any lottery not authorized by Parliament. The appellant erected a tent, in which he sold packets, each containing a pound of tea, at 28. 6d. a packet. In each packet was a coupon entitling the purchaser to a prize, and this was publicly stated by the appellant before the sale, but the purchasers did not know until after the sale what prizes they were entitled to, and the prizes varied in character and value. The tea was good and worth the money paid for it. Held, that what the appellant did constituted a lottery within the meaning of the statute. Q. B. D., May 10, 1833. Taylor v. Smitten. Opinion by Hawkins, J. (L. R., 11 Q. B. Div. 207.)

MARITIME LAW-ATTORNEY'S LIEN FOR COSTS. — In an admiralty action for wages the plaintiffs and defendants compromised the action by payment to each of the plaintiffs of a certain sum in discharge of the claim and costs. The plaintiffs left the country without paying their solicitor's costs. Held, by the Court of Appeal, reversing the judgment of Sir R. J. Phillimore, that as there was no evidence that the parties bad made the settlement with the intention of depriving the plaintiffs' solicitors of their lien for their costs, the defendants ought not to be ordered to pay the plaintiffs' taxed costs. Brunsdon v. Allard, 2 E. & E. 19: Sullivan v. Pearson, Ex parte Morrison, L. R., 4 Q. B. Div. 153, approved. Court of App., June 7, 1883. The Hope. Opinions by Brett, M. R., and Lindly, L. J. (L. R., 8 P. D. 144.)

NEGLIGENCE-FOOT PASSENGER CROSSING RAILWAY TRACK. — The defendant's railway crossed a public

footway on the level. About half-past four o'clock in the afternoon on the 29th of March, the plaintiff, a foot passenger, while crossing from the down side to up side of the railway, was knocked down and injured at the crossing by a train of the defendants on the up line. Owing to the position of certain buildings which stood by the line it was impossible for any one crossing from the down side to see a train coming until he got within a step or two from the down line, but a person standing on the down line or the six foot had a clear and uninterrupted view up and down the line for several hundred yards. The plaintiff stated that before crossing he looked to the right along the down line, but he admitted that he did not look to the left along the up line, and that if he had looked he must have seen the train coming. The engine-driver did not whistle. There was a servant of the company employed as a gate-keeper at the crossing, standing near the crossing, but he gave no warning to the plaintiff that a train was coming. The plaintiff having brought an action against the company to recover compensation for his injuries, was nonsuited on the above facts being proved at the trial. Held, by Lord Coleridge, C. J., and Denman, J. (Manisty, J., not assenting), that the nonsuit was right, on the ground that the undisputed facts of the case showed that there was no negligence on the part of the defendants, and that the plaintiff's own want of caution was the sole cause of the accident. Q. B. Div., June 22, 1883. Davey v. London and South Western Railway Co. Opinions by Lord Coleridge, C. J., and Denman, J. (L. R., 11 Q. B. Div. 213.)

USAGE-LOCAL AS TO TENANT'S RIGHT TO FLINTS ON LEASED LAND.-A farm was let under a written agreement reserving to the landlord "all mines and minerals, sand, quarries of stone, brick, earth and gravel pits." A local custom (which, it was suggested, had grown up within the last thirty or forty years) allowed tenants of such farms, let with a similar reservation, to take away the flints that were turned up in the ordinary course of good husbandry and to sell them for their own benefit. If the flints were not turned up and removed such farms could not be properly cultivated. Held, affirming the decision of the Court of Appeal, that the custom was reasonable and valid; and when read into the written agreement was not inconsistent with the reservation, even assuming (but without deciding) that the reservation of "mines and minerals" included such flints. House of Lords, June 15, 1883. Tucker v. Linger. Opinions by Lords O'Hagen, Blackburn and Fitzgerald. (L. R., 8 App. Cas. 508.)

FALSE PRETENSE-REPRESENTATION AS TO DRAFTVARIANCE.-The defendant was charged in the indictment with having falsely pretended that a certain draft was a good and valuable draft, and that he had funds in the National Bank of Wooster, Ohio, to pay it. The evidence was that he said that there was money in the hands of his partner, E., who lived in Wooster, Ohio, to pay the draft, and that it was a good draft. Held, that there was a fatal variance. On the trial of an indictment for obtaining money or chattels by false pretenses, a variance between the indictment and the evidence in respect to the pretense used is fatal. The specific pretense charged in the indictment must be proved to have been made. It is not sufficient to prove some other pretense, no matter how false it may be, or how nearly resembling in its general character the one laid in the indictment. Thus where the indictment charged that the defendant pretended