It

hibition as to make an act, which is innocent and valid where performed, an offense when he returns to this State, and himself a criminal for performing it. Every presumption is against such intention. The respondents rest their case upon the general words of the statute. These, taken in their natural and usual sense, would undoubtedly embrace the case of this appellant. "No second * ** * marriage shall be contracted by any person during the life-time of any former wife of such person." Every such marriage shall be absolutely void." "No defendant convicted of adultery shall marry again until the death of the complainant." Equally broad are the provisions of the criminal law declaring the punishment of the offender. They would comprehend every second marriage wherever celebrated, and take in the citizen of every State. cannot be denied that they are subject to explanation and restraint. Mosher v. The People, supra, and the principle upon which it rests, shows the criminal law to have no application to a marriage out of the State. The same rule was applied in Sims v. Sims, 75 N. Y. 466, where, after a very full discussion of the question involved, it was decided that the provision of the Revised Statutes (2 R. S. 701, § 23) declaring a person sentenced upon a conviction for felony to be incompetent as a witness, does not apply to a conviction in another State; that it has reference only to a conviction in this State. The conviction was in Ohio; it was assumed that the convict would have been incompetent as a witness in that State. Suppose a judgment here followed his evidence, and it was afterward prosecuted in Ohio, would it be competent in defense to show that it was obtained upon evidence inadmissible by the laws of Ohio? Clearly not. And the reason is stated in the case cited: "The disqualification is in the nature of an additional penalty following and resulting from the conviction, and cannot extend beyond the territorial limits of the State where the judgment was pronounced." He was therefore a competent witness in the State of New York. There is in principle a close analogy between the case I have supposed and the one before us. In each there is a personal disqualification; in one to marry, in the other to testify. In neither case does the disqualification arise from any law of nature or of nations, but simply from positive law. Each deprived the offender of a civil right. Now in case of the witness, his testimony in New York results in a judgment, a contract of record, to which, when it reaches Ohio, full effect must be given, and for its enforcement the machinery of the law of that State put in motion. In the other case-- - that in hand -a contract is entered into by the offender, which is a good contract under the laws of the State where made. If so, it should also follow that to each party thereto and to their issue every right and privilege growing out of the relation so established must attach. When, therefore, they return to this State with the evidence of that contract, can the courts do more than in the other case? Are they not limited to the inquiry whether the contract was valid in the State where made? And if it was, how can they deny to the child its inheritance? Let me go a little further. Suppose, on the day the decree of divorce was granted, Barker had also been convicted and sentenced for a felony. He would then have been subject not only to the statutes above cited but to that other which declares "that no person sentenced upon a conviction for felony shall be competent to testify in any cause." 2 R. S., 701, § 23. Disqualified therefore to marry or to testify, he does both in Connecticut, brings back to this State the judgment record and the marriage contract. If the first cannot be impeached because of his sentence, neither, as it seems to me, can the other because of his "conviction." And for the same reason, viz.: that stated by Greenleaf as the result of the weight of modern opinion, sanctioned by this court in Sims v.

Sims, supra, but personal disqualifications, arising not from the laws of nature but from positive laws, especially such as are of a penal nature, are strictly territorial and cannot be enforced in any country other thau that in which they originated.

Second. Nor are we, in the absence of express words to that effect, to infer that the Legislature of this State intended its laws to contravene the jus gentium under which the question of the validity of a marriage contract is referred to the lex loci contractus, and which is made binding by consent of all nations. It professedly and directly operates on all. To impugn it is to impugn public policy. And while each country can regulate the status of its own citizens, until the will of the State finds clear aud unmistakable expression, that must be controlling. "Where," says Marshall, C. J. (U. S. v. Fisher, 2 Cranch, 389), "rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects."

Our conclusion is that as the marriage in question was valid in Connecticut, the appellant Rose Van Voorhis is a legitimate child of Barker, and as such entitled to share in the estate of the testator.

The judgment should be reversed and a new trial granted, without costs to the plaintiffs or Sarah A. Brintuall, but with costs to the appellant Rose Van Voorhis and the respondents Ella and Elias, to be paid out of the estate.

All concur, except Folger, C. J., not voting.

NEGOTIABLE INSTRUMENT MADE BY CORPORATION.

MAINE SUPREME JUDICIAL COURT, Jan. 18, 1881.

SIMPSON V. GARLAND.*

Upon a note reading 1000, Carmel, April 22, 1877, for value

received, we, the subscribers for Carmel Cheese Manufacturing Co., promise to pay William Simpson, or order, one thousand dollars in six months from date with interest. F. A. Simpson, Rufus Work, A. S. Garland."

Held, that the note was the note of the Carmel Cheese Manufacturing Co. and not that of the signers, it appearing that the signers were directors of the company and authorized to make the note for the company and that it was given for money appropriated for the use of the company. SSUMPSIT upon the promissory note hereinafter mentioned.

A

Whereupon the defendants submitted to a default, with an agreement of parties that the case be reported by the defendants, and if in the opinion of the law court the presiding judge erred in his ruling or opinion, the default to be taken off and the case to stand for trial; otherwise the default to stand.

A. L. Simpson, for the plaintiff.

W. H. McCrillis and Chas. P. Stetson, for the defendants.

LIBBEY, J. The question involved in this case is, whether the note in suit is the note of the defendants or of the Carmel Cheese Manufacturing Company.

The common-law rule, as declared by the earlier decisions upon this question, has been to some extent modified by our statute (R. S., chap. 73, § 15), and the more recent decisions of the courts. In Nobleboro' v. Clark, 68 Maine, 87, this court, after an examination of decided cases and our statutory provisions, declared the rule as follows: " Applying the principles settled by the courts, and the provisions of our statutes to the question under consideration, we think the true rule in this State is, that where a deed is executed by an agent or attorney, with authority therefor, and it appears by the deed that it was the intention of the parties to bind the principal or constituent, that it should be his deed and not the deed of the agent or attorney, it must be regarded as the deed of the principal or constituent, though signed by the agent or attorney in his own name. In determining the meaning of the parties, recourse must be had to the whole instrument, the granting part, the covenants, the attestation clause, the sealing and acknowledgment, as well as the manner of signing. If signed by the agent in his own name, it must appear by the deed that he did so for his principal. This may appear in the body of the deed, as well as immediately after the signature."

This rule applies with full force to simple contracts, as well as to deeds; and applying it to the note in suit it remains to be determined whether it appears by the terms of the note that it was the intention of the parties to bind tho Carmel Cheese Manufacturing Company, and not the defendants. In determining this question we must assume that the defendants were duly authorized to make the note for the company. They offered to prove it, and as the statute cited makes the authority of the agent an essential element to be considered, we think the evidence offered to prove the authority was admissible. Nobleboro' v. Clark, 68 Maine, 93; Draper v. Mass. Steam Heating Co., 5 Allen, 339.

The defendants sign their own names only; but in the body of the note they say, "we, the subscribers, for the Carmel Cheese Manufacturing Company, promise to pay." If the words "for the Carmel Cheese Manufacturing Company," had been omitted from the body of the note, and had been written against the defendants' signatures, the authorities are quite uniform that the note would bo the note of the company, and not of the defendants. Sturdivant v. Hull, 59 Maine, 172; Atkins v. Brown, id. 90; Sheridan v. Carpenter, 61 id. 83; Winship v. Smith, id. 121; Ballou v. Talbot, 16 Mass. 461; Tucker Manufacturing Co. v. Fairbanks, 98 id. 101; Morrell v. Codding, 4 Allen, 403: Draper v. Mass. Steam Heating Co., 5 id. 338. By the rule laid down in Nobleboro' v. Clark, supra, the words used in the body of the note tending to show the meaning of the parties, should have the same force and effect as if following, or written against the defendants' signatures. Their meaning is as siguificant in the one case as in the other. We are aware that the Massachusetts court in Morrill v. Codding, supra, held differently, and in discussing the question of the effect of the language used in the body of the

note, say: "Had these words immediately preceded or followed the names of the signers, with the 'by or 'for,' it would have been the promise of the Baptist Church of Lee;" but it was held that they did not have the same effect in the body of the note. This case in this respect is neither in harmony with the later decisions in Massachusetts nor with our own. Carpenter v. Farnsworth, 106 Mass. 561; L. & G. Manufacturing Co. v. Russell, 112 id. 387; Chipman v. Foster, 119 id. 189.

for

In the note the defendants say: "We * ** the Carmel Cheese Manufacturing Company, promise." "For his principal" are the words used in our statute above cited, in regard to the proper execution of a contract by an agent; and "for" when so used, means "in behalf of." Ballou v. Talbot, and Tucker Manuf g Co. v. Fairbanks, supra. The language used discloses the name of the principal, and is equivalent to a declaration by the defendants that they promise in behalf of their principal, and not for themselves; and we think both parties must have so understood it. Upon the evidence reported, the defendants are not personally liable.

Default off. Action to stand for trial.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

ALTERATION

DUCING

APRIL, 1881.

MEMORANDUM ON BACK OF NOTE REINTEREST NOT, AND DOES NOT RELEASE SURETY. A promissory note with sureties, by its terms bore interest at the rate of 7% per cent. The owner wrote on its back this: "Rate of interest to be 6% per cent from October 10, 1876." Held, not an alteration affecting the validity of the note or a change in the contract discharging the sureties thereon, if made without their consent. In the cases where it has been held that a material alteration of a note or other contract avoids it, there has been some change by erasure or interlineation in the paper writing coustituting the evidence of the contract, so as to make it another and different instrument and no longer evidence of the contract which the parties made. The ground of the decision is that the identity of the contract is destroyed. Wade v. Withington, 1 Allen, 561; Commonwealth v. Emigrant Savings Bank, 98 Mass. 12; Hewins v. Cargill, 67 Me. 554. But in the case at bar it is clear that using the word in this sense there has been no alteration of the note. The original note remains intact. It is in no respect altered or made different. The memorandum on the back is evidence of an independent collateral agreement, and has no more effect than if it had been written on a separate paper. Stone v. White, 8 Gray, 589. It is clear that if a creditor makes any agreement with the principal debtor, or does any other act which is prejudicial to the rights of the surety, the latter is discharged from his liability. Hunt v. Bridgham, 2 Pick. 581; Agricultural Bank v. Bishop, 6 Gray, 317; 1 Story's Eq. Jur., § 325. In the case at bar, the new agreement was that after a day named the interest on the principal sum lent by the plaintiff should be at the rate of 61⁄2 instead of 7% per cent. It was clearly not the intention of the parties to discharge the note and substitute a new contract in its place. There is no rule of law which requires the court to defeat the intention of the parties by holding that this operated to discharge the original contract in whole. It is also clear that the change in the original contract by reducing the rate of interest could not be prejudicial to the sureties, but was necessarily beneficial to all parties bound by it. The sureties were not discharged, even if they had no knowledge of the change. Cambridge Savings Bank v. Hyde. Opinion by Morton, J.

--

FORMER ADJUDICATION — EFFECT OF. — It is settled that a fact directly put in issue by the pleadings is conclusively established by the verdict and judgment in all future litigation between the same parties. Arnold v. Arnold, 17 Pick. 7, 14. And this estoppel by former judgment extends to all facts which were necessarily within the issue then presented and without proof of which the judgment could not have been rendered. Burlen v. Shannon, 99 Mass. 202; Eastman V. Simonds, 108 id. 569. In an action in the nature of trover by E. for eggs claimed to be converted by M. the judgment established that E. was entitled to the immediate possession of the goods and had title thereto. Held, that an action of tort for the conversion of the eggs would not lie in favor of M. against E. Morse v. Elms. Opinion by Colt, J.

MECHANICS' LIEN LABOR PERFORMED AWAY FROM BUILDING.Labor performed away from the premises upon which a building is being erected, upon material intended for use in the building and which is actually used therein, held, to give a right to a mechanics' lien upon the building. The case differs from Manchester v. Searle, 121 Mass. 418. The labor was not performed on the premises, but was done on material which was designated as intended for use in the buildings on the premises and was in fact so used. It has been held that a lien may be maintained for work thus done away from the premises, in preparing material which is intended for use and actually used in the construction or repair of a building. Dewing v. Wilbraham Congregational Society, 13 Gray, 413. See, also, Jones v. Keen, 115 Mass. 170. Wilson v. Sleeper. Opinion by Soule, J.

MUNICIPAL CORPORATION - LIABILITY FOR PERSONAL INJURY IN CITY BUILDING LET FOR PROFIT. — A city let its city hall, a building erected for municipal purposes, for profit, to an exhibition society. With it the services of the janitor to light and care for the building were let. While the building was so let, plaintiff, who was rightfully therein and using due care, was injured by falling through a trap-door negligently left open by the janitor. Held, that the city was liable for such injury. A city or town is not liable to a private citizen for an injury caused by any defect or want of repair in a city or town hall or other public building erected and used solely for municipal purposes, or for negligence if its agents in the management of such buildings. But when a city or town does not devote such building exclusively to municipal uses but lets it or a part of it for its own advantage or emolument, by receiving rents or otherwise, it is liable while it is so let, in the same manner as a private owner would be. Oliver v. Worcester, 102 Mass. 344. The defense of ultra vires in the letting held not available as a defense in the case. French v. Whitney, 3 Allen, 9. Worden v. City of New Bedford. Opinion by Morton, J.

MAINE SUPREME JUDICIAL COURT AB-
STRACT.*
JANUARY, 1881.*

LIBEL IN A NEWSPAPER ARTICLE.-In a declaration for publishing a libellous article in a newspaper it is not necessary to aver that the publication was made to divers persons or to any third person; it is enough to aver that the libel was printed and published in a newspaper. To publish is to make public. A publisher is one who makes a thing publicly known. Had the allegation been merely that the defendant "printed a libel, that would not have been enough. But to aver that a defendant" published" a libel does declare that *To appear in 72 Maine Reports.

he circulated it or caused it to be circulated "among divers and sundry persons." The degree of notoriety given to the publication is matter of proof and not of pleading. Commonwealth v. Blanding, 3 Pick. 304; Commonwealth v. Varney, 10 Cush. 402; State v. Barnes, 2 Me. 530; Rex v. Burdett, 4 Barn. & Ald. 95; Bailey v. Myrick, 50 Me. 171. Sprout v. Pillsbury. Opinion by Peters, J.

IN SETTLEMENT

LIMITATION MUTUAL ACCOUNT ITEM OMITTED BY MISTAKE. When parties make out what they believe to be a correct itemized account of their mutual dealings, and the balance is thereupon ascertained and paid, the items can no longer be considered unsettled, although one item was omitted by mistake. And if in such case, six years thereafter, on discovering the omission, an action declaring on the entire account is brought to recover the real balance, the statute of limitations will bar the recovery. The leading English case upon the subject of mutual accounts between parties other than merchants is Catling v. Skoulding, 6 T. R. 189, in which it was held that if there be a mutual account of any sort between the parties for any item of which credit has been given within six years, that is evidence of acknowledgment of there being such an open account current between them and of a promise to pay the balance, so as to take the case out of the statute. Lord Kenyon, C. J., said: “Here are mutual items of account; and I take it to have been clearly settled, as long as I have any memory of the courts, that every new item and credit in an account given by one party to the other is an admission of there being some unsettled account between them, the amount of which is to be afterward ascertained; and any act which the jury may consider as an acknowledgment of its being an open account is sufficient to take the case out of the statute. Daily experience teaches us that if this rule be now overturned it will lead to infinite injustice." The Massachusetts court cited and followed that decision (Cogswell v. Dolliver, 2 Mass. 217), and the court in this State adopted the same doctrine, citing the above cases and calling it a reasonable judicial construction of the statute. Davis v. Smith, 4 Me. 337. See, also, McLellan v. Crofton, 6 id. 307; Therbold v. Stinson, 38 id. 149; Dyer v. Walker, 51 id. 104. The settlement changes the character of the account. The items become discharged by the payment of the agreed balance which resulted from setting off against each other the counter items. The discharge of the items is a consideration to sustain a promise to pay the balance. May v. King, 12 Mod. 538; S. C., 1 Ld. Raym. 680; Callander v. Howard, 10 C. B. 290. And if one of the items of the account was overlooked, the settled account, after six years, can afford no aid in taking it out of the statute of limitations. Union Bank v. Knapp, 3 Pick. 96. Lancey v. Maine Central Railroad Co. Opinion by Virgin, J.

NEGLIGENCE -BURDEN OF PROOF.- - The burden is on the plaintiff, in an action on the case for an injury resulting in death arising from the negligence or want of care of the defendant, to show that deceased was in the exercise of ordinary care, or that the injury was in no degree attributable to want of proper care on his part. If the deceased so far contributed to the misfortune by his own negligence or want of care and caution, that but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened, the plaintiff cannot recover. Dickey v. Maine Telegraph Co., 43 Me. 496. The plaintiff must show that he was in the exercise of due care, or that the injury was in no degree attributable to any want of common care on his part. Murphy v. Deane, 101 Mass. 455. Benson v. Titcomb. Opinion by Appleton, C. J.

MARYLAND COURT OF APPEALS ABSTRACT.*

ACKNOWLEDGMENT-PRESUMPTION WHERE CERTIFICATE OF ACKNOWLEDGING OFFICER

DISPUTED.

Where, in a proceeding to obtain an injunction against the sale of mortgaged premises under a decree, on the ground that the mortgage, though regular on its face, was not acknowledged as it purported to be before a justice of the peace, and the justice being examined as a witness and looking at the original mortgage filed in the case, identified his signature as a witness, aud said he saw each of the parties sign the same, and identifying his signature as a justice of the peace to the certificate indorsed on the mortgage, said he took the acknowledgment of the mortgagors, husband and wife, at their house on a certain street, naming it, and the mortgagors denied that the justice was ever at their house, and the mother of the wife corroborated them, credit should be given to the justice rather than to those who would repudiate their own acts. In some of the earlier cases where the question arose it was held that no evidence could be received to invalidate the acknowledgment of a deed. Bissett v. Bissett, 1 H. & McH. 211. In Ridgely v. Howard, 3 id. 321, where it appeared by the certificate of acknowledgment that the grantor on a particular day appeared before two justices of the peace and acknowledged the same, parol evidence to prove that the justices took the acknowledgment separately, at different times and places, was held inadmissible. See, also, Gitting's Lessee v. Hall, 1 H. & J. 14; Miles v. Knott, 12 G. & J. 455. In more recent cases the rule has been relaxed, still great sanctity must be attached to official acts essential to the validity of all deeds of real and personal estate (with few exceptions) and the indispensable preliminary to registration. In Sarlouis v. Fireman's Ins. Co., 45 Md. 241, it is said that the affirmative testimony of a public officer, acting in the regular routine of his duty without any motive to misrepresent, sustained by contemporaneous entries in his own hand, must be preferred to the negative evidence of others, from public policy as well as upon the rules of probability. Ramsburg v. Campbell. Opinion by Bowie, J.

MINNESOTA SUPREME COURT ABSTRACT.

LIMITATIONS CREDITOR'S BILL DOES NOT EXTEND TIME OF LIEN OF JUDGMENT. - An action in the nature of a creditor's bill brought to reach property of a judgment debtor, and to have the same applied in payment of the judgment does not operate to extend the lien of the judgment beyond the statutory term. Such an action is not in any proper sense an action brought upon the judgment as a cause of action in order to obtain a new judgment, but simply an action ancillary to and for the purpose of obtaining satisfaction of an existing judgment. It has been repeatedly held that a pending levy of an execution made during the life of a judgment will not operate to continue the life or lien of a judgment beyond the statutory period; that a judgment creditor must sell the property levied on within the statutory period of the life of the lien of the judgment; that a levy during that period neither creates a new lien nor extends the judgment lien; that nothing but a renewal within the life of the judgment will continue the lien of the judgment; that if an execution is issued at so late a day that a sale cannot be made within the life of the judgment, it should be accompanied by a scire facias or renewal. Tenney v. Hemenway, 53 Ill. 97; Gridley v. Watson, id. 186; Isaac v. Swift, 10 Cal. 71; Bagley v. Ward, 37 id. 121;

* To appear in 54 Maryland Reports.

Rogers v. Druffel, 46 id. 654; Dickinson v. Collins, 1 Swan, 516; Davis v. Ehrman, 20 Penn. St. 256; Rupert v. Dantzer, 12 S. & M. 697: Bierne v. Mower, 13 id. 427; Graff v. Kip, 1 Ed. Ch. 619; Tufts v. Tufts, 18 Wend. 621; Little v. Harvey, 9 id. 157; Roe v. Swart, 5 Cow. 294. Newell v. Dart. Opinion by Mitchell, J. [Decided Aug. 5, 1881.]

MUNICIPAL CORPORATION GENCE IN BUILDING SEWER.

LIABILITY FOR NEGLIA ravine leading from

a hilly back country toward a river in a city in southern Minnesota was the natural channel for draining a certain extent of territory. It was about three rods wide. On each side of it was a bluff fifteen or twenty feet high, and through it ran a water course or channel six or eight feet wide and four or five feet deep. Water in the times of rains or melting snow flowed through this channel and passed to the river, this being its only means of escape. Sometimes there was a large and rapid stream. The city authorities obstructed this channel in the construction of a street, constructed a dam across it, and built a sewer to carry the water flowing through it, three and a half feet wide and nearly five feet high. The result of these acts of the city was that in case of heavy rains more water came down the ravine than could pass through this sewer, and accumulated at the mouth of the sewer, and then ran down upon and along the whole length of the street, and being prevented from re-entering the natural channel by reason of the dam, flowed down upon the premises of plaintiff, in large and destructive quantities, and produced injury, for which he brought action against the city. Held, that the city was bound to exercise reasonable care in the construction of the sewer, and if it did not, to the injury of plaintiff, it was liable for the injury. Held, also, that there was evidence of negligence in the construction of the sewer to go to the jury. It is not important whether this was a "natural water-course," or mere "surface' water, under the legal definitions of these terms. If it be surface water, the general common-law doctrine that neither the retention nor repulsion of surface water is an actionable injury must necessarily be materially modified in such cases. In a broken and bluffy region of country, like that part of south-eastern Minnesota adjacent to the Mississippi river and its tributaries, intersected by long, deep ravines, surrounded by high, steep hills or bluffs, down which large quantities of water from rain or melting snow rush with the rapidity of a torrent, often attaining the volume of a small river, and usually following a well-defined channel, it would be manifestly inappropriate and unjust to apply the rules of common law applicable to ordi. nary surface water. In many respects such streams partake more of the nature of natural streams than of ordinary surface water, and must, at least to a certain extent, be governed by the same rules. Bowlsby v. Speer, 31 N. J. Law, 351; Grand Junct. Can. Co. v. Shugor, L. R., 6 Ch. App. 483. The true rule in such cases is that no one has a right to obstruct or divert such waters so as to cast them upon the property of others to their injury. This is not a mere omission to exercise a duty, nor a mere incidental injury resulting from a work which defendant had a right to perform. but a case of an injury accomplished by what amounts to an actual invasion of another's premises. The authorities nowhere recognize in municipal authorities exemption from liability, where the injury which the individual has received is a direct injury, accomplished by a corporate act which is in the nature of a trespass upon him. If a corporation sends men to dig upon a man's lot, it is guilty of a trespass. But it is no more liable in such a case than it would be if it poured upon his land a flood of water by damming up a natural channel, or by diverting it into an artificial channel in such a way that the flooding will be a neces