implied warranty that the machinery is in good repair or of sufficient capacity to do the work for which the premises were let.

7. Parties executed a lease in writing under seal, of a certain factory building which was then in use for manufacturing purposes; in the building were an engine and boiler for driving the machinery; the premises were rented for the purpose of manufacturing ivory buttons; the lease contained no covenant as to the condition or capacity of the machinery, the engine and boiler being out of repair and incapable of doing the work for which the premises were rented, the tenant sued the landlord to recover damages on an allegation of a breach of warranty. Held (1) That oral testimony was inadmissible to prove that the landlord during the negotiations for the lease, guaranteed that the engine and boiler were in thorough repair, and would furnish sufficient steam power for the business; and (2) that no such warranty was implied from the letting.

CALIFORNIA.

(Supreme Court.)

PEOPLE, ETC.,.v. E. V. SPENCER.

··

ber 21. 1882.

Septem

re

Suspension of Attorney-District Attorney.In the year 1874, respondent, as District Attorney of Lassen County, drew up an indictment against one Harris, which was turned to the County Court by the Grand Jury, endorsed a true bill." In 1881, Harris appeared in the Superior Court, and respond ent, as his counsel, moved to set aside the indictment. The motion was granted. In preparing for and making the motion-which was based upon the omission of certain formis -respondent was not assisted by information received by him in his capacity of District Attorney; and when the motion was made, he had no usual knowledge of the statutory provision which made his act a misdemeanor. (Penal Code, Sec. 162.) Held, independent of the statute, there can be no doubt that the conduct of respondent was reprehensible. By appearing both for plaintiff and defendant in the same action, he was guilty of " a violation of his duty as an attorney," for which it is the duty of this court to remove or suspend him. (C. C. P. 287.) Neither his ignorance of the laws, nor the crudity of his notions of professional ethics, can excuse an offense against professional propriety by one whose duty it is to assist in the administration of justice. The degree of turpitude involved in the breach of his duty as an attorney, however,

must appear in the circumstances of each case. The punishment which should follow an inadvertant or ignorant departure from professional propriety-no seriously evil consequences having resulted--should be less severe than where the offeuse is a deliberate or corrupt violation of official oath.-Pacific Coast Law Journal.

(U. S. Circuit Court.)

IN THE MATTER OF LOW YAM CHOW, ON
HABEAS CORPUS.

Chinese Merchants.-The first article of

the treaty with China of November 17th, 1880, provides that, "Whenever, in the opinion of the Government of the United States, the coming of Chinese laborers to the United States, or their residence therein affects or threatens to affect the interests of that country or to endanger the good order of the said country or of any locality within the territory thereof the Government of China agrees that the Government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it," declaring at the same be reasonable, and shall apply only to Chinese time that the limitation or suspension shall who may go to the United States as laborers, other classes not being included in the limitations." The second article further declares that "Chinese subjects, whether proceeding to the United States as travelers, students, merchants, or from curiosity, together with their body or | household servants, and Chinese laborers who are now in the United States shall be allowed to come and go of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation." The Act of Congress of May 6th, 1882, passed pursuant to the authority of this treaty, suspends the coming of Chinese laborers to the United States for ten years, and prohibits the master of vessels from bringing them from any foreign port, but excepts those who were here previously to November 17, 1880, or who may come before the expiration of ninety days from the passage of the Act, and who shall produce certain prescribed certificates of identification. The sixth section of the Act provides that, in order to the faithful execution of the provisions forbidding the coming of Chinese laborers, any other Chinese person entitled to come to the United States shall be identified by a certificate of the Chinese Government, stating among other things his former and present occupation and place of residence in China: Held, 1, that the certificate

of the Government required for others than laborers coming to the United States from China was intended to facilitate proof of their not being within the prohibited class, and not as a means of restricting their coming; 2, that the certificate is not required from merchants and others not laborers domiciled out of China when the Act of Congress was passed, and coming from the foreign jurisdiction; and 3d, proof of the occupation of such person may be made by parole.

The language of the Act of Congress should be construed, if possible, in harmony with the object of the treaty. It will not be inferred that Congress intended to disregard its stipulations.-Pacific Coast Law Journal.

ILLINOIS.

(Supreme Court.)

JOHN JENKINS v. ELIZABETH JENKINS. Sept.

1882.

1. Separate Maintenance-Living Apart must be without Wife's fault. In order to authorize a decree against a husband for the separate maintenance of his wife, she must show that her living apart from him is "without her fault." Where the wife had been fighting her husband for twelve years, subjecting him to vexatious suits on groundless charges of extreme cruelty, and to another on à groundless charge of adultery, and while the latter suit was still pending, she voluntarily went to his house with a party of her friends and he ordered her and her friends to leave, refusing to give her supper, and forbidding her to enter a bedroom, saying she could not stay that night, and this was all the evidence to show her living apart from her husband was without her fault. Held, That the evidence, under the circumstances, was not sufficient to justify a decree of an allowance for a separate maintenance.

2. After such a state of affairs and course pursued by the wife, she should have distinctly told her husband that she proposed to abandon the litigation against him and live in peace with him. and have given him. the opportunity of considering her proposal to return, before she could put him in default.

WHITE V. WHITE.

Equity-Affirmative relief on Answer-Necessity of Cross-Bill.-Affirmative relief cannot be granted to a defendant in chancery upon his mere answer to the bill. To obtain such relief, the defendant must file a cross-bill praying for the relief he seeks.

159. Dill Chapman, et al v. Samuel Sollars, et al. Appeal. Reserved in District Court of Highland County. MCILVAINE, J, Held :

1. A purchaser at a tax sale of land delinquent for the non-payment of assessments under the Two Mile Road Improvement Law, after the same has proved invalid on account of a defective description of the lands upon the tax duplicate may prosecute an action against the owner to recover the amount of taxes, interest and penalties due at time of sale, interest subsequently aceruing and all legal taxes by him afterwards paid, under authority of section 32 of the act relating to county auditors (S. & C. 104) and section 106 of the tax law of 1859, (S. & C. 1478).

2. In such case, parol evidence is adinissible in connection with the duplicate to identify the lands actually assessed.

3. The fifty per cent. penalty imposed upon the owner who redeems his lands from a sale for taxes, cannot be recovered in this action.

Cause remanded to district court for trial and final judgment.

120. The Board of Education of Stock Township, Noble County, Ohio, v. Stephen Mills. Error to the District Court of Guernsey County.

JOHNSON J., Held.

1. By the proviso to the 55th section of the School Law. (70 O. L. 210-211), township boards of education are required, when the cost of building a school-house, or other improvement exceeds five hundred dollars, to advertise, and let the same to the lowest responsible bidder, unless in case of urgent necessity, or for the security and protection of school property. This is a duty imposed upon the board, in its corporate capacity and cannot be delegated to the local directors of the sub-district in which the school-house or other improvement is to be made.

2. In an action by a contractor against a township

board of education, to recover damages for its refusal to allow him to perform a contract made in its behalf by the local directors, for the building of a school-house, the cost of which exceeds five hundred dollars, where the validity of such contract is in issue; it must appear that the township board advertised and let the work in accordance with said proviso, unless it affirmatively appears that it was a case of urgent necessity, or was for the security r protection of school property.

3. Upon such an issue, the record and proceedings of the local directors showing that it duly complied with said proviso is incompetent, as the focal board is not authorized to advertise, open bids and award the contract.

4. Where incompetent evidence, which is material to the issue, is allowed to go to the jury in favor of a prevailing party, against the objection of the other party, error to his prejudice will be presumed. In such case it is not necessary, in order to reverse the judgment, to show that the jury was in fact influenced thereby.

Judgment reversed and cause remanded.

147. Rosina Dick Adm'rx v. The Indianapolis, Cincinnati and Lafayette R. R. Co. Error to the District Court of Hamilton County.

JOHNSON, J., Held.

1. A motion to arrest the testimony from the jury and a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court, but if there is evidence tending to prove each material fact put in issue, and indispensable to a recovery, it should be submitted to the jury under proper instructions.

2. As between employes of a railroad company, whose duty it is to repair its track, while trains are using the same, and the company and its representatives, who are engaged in running trains over the same where the trackmen are so einployed, it is the duty of the latter, as far as is practicable, to adopt such precautions as will guard its employes on the track from dangers incident to their employment.

3. Where the liability of a railroad company for injury to one of its track repairers, by the careless manner of running a train, is in issue, evidence tending to show that the train causing the injury was in charge of a conductor and engineer, and was at the time engaged in a race at a high and dangerous rate of speed with a train on a parallel road, over several public crossings, on a curve on which the track repairer was at work, in a city limits, and where trains should be run with care, corresponding with the circumstances, without sound of bell or whistle or slack of speed, or any other precaution to warn the men engaged at work on the track of approaching danger,is competent to go to the jury, and should be submitted to it under proper instructions upon the issue joined, and it was error in the court to grant a nonsuit on the assumption. that the negligence and carelessness causing the injury was that of a co-employe in the same service, and not that of the company.

Judgment reversed and cause remanded.

105. George Davis et al. v. Charles E. Harness. Error to the District Court of Ross County.

WHITE, J., Held:

1. A party entering into a contract in his own name may sue or be sued upon it, whether he be in fact agent or principal.

2. Where a landlord with the consent of his tenants sold their share of a crop of corn with his own, and afterward brought an action against the purchaser for not accepting the corn, the fact that the landlord did not own all the corn, neither constitutes a defense nor operates to diminish the damages. If the acceptance of the corn by the purchaser would have invested him with a good title, it s not material whether the landlord owned all the corn or not. Judgment affirmed.

95. Mortley & Pinkerton v. A. C. Flanagan and others. Error to the District Court of Guernsey County.

OKEY, C. J.

Where the members of a firm, acting in good faith, dissolve the partnership, and one member sells his interest in the partnership property to the other, the latter will not be deprived of the right to hold such property exempt from the payment of a debt thereafter asserted against him, on the ground that such debt was a partnership debt due at the time of the dissolution; nor will the fact that the partners knew the firm to be insolvent, at the time of such dissolution make any difference. Gaylord v. Imhoff, 26 Ohio St. 317, distinguished.

Judgment affirmed.

144. James L. Jones v. James Booth and another. Error to the District Court of Guernsey County. OKEY, C. J.

1. A party will not be deprived of his appeal to the district court by a refusal of the court of common pleas to fix the amount of the undertaking therefor. Hubble v. Renick, 1 Ohio St., 171, followed.

2. The court of common pleas having erroneously held that a case was not one for appeal to the district court,and refused to fix the amount of the undertaking for such appeal, fixed the amount of an undertaking for a second trial, at the request of the party who had demanded the appeal, which undertaking was given, and on the second trial judgment was rendered against the party who had taken such second trial: Hell, that the right of appeal was waived, and that the judgment rendered on such second trial was not invalid for want of jurisdiction of the subject matter or parties.

3. A contract under seal for the purchase of real estate, where possession has not been delivered, may be rescinded by verbal agreement; but if the rescission is obtained by the fraudulent representation of the purchaser, no effect will be given to it; and it will make no difference that such fraudulent representation was a verbal proposition to purchase lands not enforceable under the statute of frauds.

Judgment of the district court reversed and that of the common pleas affirmed.

90. John F. Schroder v. Rutger Van B. West. Error to the District Court of Wood County. Leave to file answer in 30 days granted.

106. George Davis et al v. Daniel R. Harness. Error to the District Court of Ross County. Judgment affirmed on authority of No. 105, Davis, et al v. Charles Harness, above reported.

137. Eugene Tompkins et al v. Theodore B. Starr. Error to the District Court of Cuyahoga County, Passed for proof of service of printed record and printed brief on defendant in error.

145. F. and D. K. Hollenbeck v. Arnold McMahon. Error to the District Court of Wood County. Leave granted to plaintiff in error to file brief in 30 days.

152. L. Umbstaetler et al. v. Charles Burnside. Error to the District Court of Cuyahoga County Judgment affirmed. No penalty. There will be no further report.

154. Simeon C. Kane v. Wilson & Hughes Stone Co. Error to the District Court of Cuyahoga County. Passed for proof of service of record and brief on defendant in error.

161. Charles A. Crumb et al. v. Justina Freiber. Error to the District Court of Cuyahoga County. Judgment affirmed with penalty of five per cent. and an attorney fee of $25.00. There will be no further report.

163. Newhall, Gale & Co. v. Solomon Langdon & Co. Error to the District Court of Hamilton_County. Dismissed for want of prosecution, under Rule 4, at costs of plaintiffs in error.

165. Henry N. Raymond et al. v. Philo Elmer. Error to the District Court of Madison County. Dismissed for want of prosecution, under Rule 4, at costs of plaintiffs in error.

169. William Gray v. The State of Ohio. Error to the Common Pleas Court of Ashtabula County. Judgment affirmed on authority of Eldridge v. The State, 37 Ohio St. 191. There will be no further report.

173. Otto Witte v. Philip Lockwood et al. Error to the District Court of Lorain County. Dismissed for want of prosecution, under Rule 4, at costs of plaintiff in error.

176. William Burns v. The City of Springfield. Error to the District Court of Clark County. Dismissed at costs of plaintiff in error, under Rule 4, for want of prosecution.

177. Mary Dunbar v. Moses W. Dunbar. Error to the District Dourt of Cuyahoga County. Passed for proof of service of record and brief on defendant in

error.

178. William J. Birely v. Conrad Laver. Error to the District Court of Darke County. Dismissed at costs of plaintiff in error, under Rule 4, for want of prosecution.

195. Horace N. Howland v. Columbus and Toledo Railway Company. Error to the District Court of Lucas County. Dismissed by agreement of parties at costs of plaintiff in error.

216. John E. Matthews v. James R. Davies. Error to the District Court of Erie County. Leave granted defendant in error to file answer within 20 days.

444. William D. Henkle v. Salem Manufacturing Co., et al. Error to the District Court of Columbiana County. Death of plaintiff in error suggested, and Catharine A. Henkle, his administratrix, made party plaintiff in error on her motion.

713. Cyrus H. Coy v. Philip W. Smith. Error to the District Court of Erie County. Dismissed at costs of plaintiff in error for non-compliance with former order as to parties.

MOTION DOCKET.

153. Rosina Dick, Administratrix v. The Indianapolis, Cincinnati & Lafayette Railway Co. Motion to dismiss cause No. 147 on the General Docket for want of perfect printed record. Motion overruled.

157. In the matter of the assignment of C. Newkirk. Motion to dismiss cause No. 1213 on the General Docket for want of printed record and countermotion to extend time for filing the same. Motion to dismiss overruled, and motion to extend time granted, printed record to be filed on or before January 1, 1883.

167. Kuhns v. McGeah. Error to District Court of Franklin County.

170. Calvin, late Sheriff v. Bruen et al. District Court of Hamilton County.

Wednesday, Dec. 6.

Error to

171. Brewer et al. v. Maurer. Error to District Court of Cuyahoga County.

180. Peters v. Caswell et al. Error to District Court of Erie County.

Thursday, Dec. 7.

192. Pittsburgh, Cincinnati and St. Louis Railway Co. v. Chipman, Administrator. Error to District Court of Darke County.

197. Sowers v. Cyrenus et al. Error to District Court of Lorain County.

Wednesday, Dec. 14.