estopped, or such gross negligence on his part as to amount to constructive fraud, by which another has been misled to his injury. "In all this class of cases," says Story, "the doctrine proceeds upon the ground of constructive fraud or of gross negligence, which in effect implies fraud. And, therefore, when the circumstances of the case repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief. It has been accordingly laid down, by a very learned judge, that the cases on this subject go to this result only, that there must be positive fraud or concealment, or negligence so gross as to amount to constructive fraud." 1st Story's Equity, 391. To the same purport is the language of the adjudged cases. Thus it is said by the Supreme Court of Pennsylvania, that "the primary ground of the doctrine is, that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up." Hill v. Epley, 31 Penn. St., 334; Henshaw v. Bissell, 18 Wall. 271; Biddle Boggs v. Merced Mining Co., 14 Cal. 368; Davis v. Davis, 26 Id. 23; Commonwealth v. Moltz, 10 Barr, 531; Copeland v. Copeland, 28 Me. 539; Delaplaine v. Hitchcock, 6 Hill, 14; Hawes v. Marchant, 1 Curtis C. C. 136; Zuchtmann v. Roberts, 109 Mass. 53. And it would seem that to the enforcement of an estoppel of this character with respect to the title of property, such as will prevent a party from asserting his legal rights, and the effect of which will be to transfer the enjoyment of the property to another, the intention to deceive and mislead, or negligence so gross as to be culpable, should be clearly established.

There are undoubtedly cases where a party may be concluded from asserting his original rights to property, in consequence of his acts or conduct, in which the presence of fraud, actual or constructive, is wanting; as where one of two innocent parties must suffer from the negligence of another, he through whose agency the negligence was occasioned will be held to bear the loss; and where one has received the fruits of a transaction, he is not permitted to deny its validity whilst retaining its benefit. But such cases are generally referable to other principles than that of estoppel, although the same result is produced; thus the first case here mentioned is the affixing of liability upon the party who from negligence indirectly occasioned the injury, and the second is the application of the doctrine of ratification or election. Be this as it may, the general ground of the application of the principle of equitable estoppel is as we have stated.

It is also essential for its application with respect to the title of real property, that the party claiming to have been influenced by the conduct or declarations of another to his injury, was himself not only destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge. Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. Crest v. Jack, 3 Watts, 240; Knouff v. Thompson, 4 Harris, 361.

Tested by these views, the defence of estoppel set up in this case entirely fails. The decree of the circuit court must be reversed, and the cause remanded for further proceedings in accordance with this opinion; and it is so ordered.

NOTE.-The foregoing opinion lays down the doctrine of estoppel in pais with more clearness and precision than have characterized some of the opinions of that able court on that subject. In our opinion, the limits prescribed in this case can not safely and justly be exceeded. Within proper bounds, the doctrine of equitable estoppel is most wise, just and equitable; but, carried too far, it becomes

harsh, unjust and inequitable to the last degree, and may well be characterized as odious. Some courts seem to regard the term "estoppel in pais" as a sort of patent medicine for nearly all the complicated ills the law is heir to. It is frequently applied to the ratification of an invalid sale by the acceptance of the purchase-money, a case as wholly destitute of the essential elements of an estoppel in pais as can well be imagined. The doctrines of ratification and estoppel are so radically different, that it is surprising that they should have been so often confounded by courts of learning and ability. The same may be said of the maxim so often applied in such cases, that, where one of two innocent persons must suffer, he shall suffer who, by his acts, occasioned the confidence and loss. The indiscriminate application of this maxim, as equivalent to an estoppel in pais, has led to much confusion and uncertainty, both in the application of the maxim and of the doctrine of estoppel in pais. They are properly applicable to a very different class of cases, and are in no proper sense equivalent. The very essence of an estoppel in pais is the culpability of the party estopped. It can not arise between two innocent parties. It is not essential to the estoppel that the party intended to deceive or mislead; but, in the absence of positive fraud or concealment, there must be negligence so gross as to amount to constructive fraud. One who asserts the existence of a fact without having reasonable grounds to believe in its existence, knowing that another may act upon such assertion, stands in no better position, should the assertion prove untrue, than one who knowingly asserts a falsehood. But mere negligence, not showing a reckless disregard of the rights of others, is not sufficient to create an estoppel. A certain degree of negligence is a luxury that all are licensed to enjoy, and for which every man must make allowance in his dealings with other men.

In a recent article on "Estoppel by Conduct as Affecting Title," 2 Southern Law Review, N. S. 644, it is strongly urged that the rule laid down by Lord Eldon in Evans v. Bicknell, 6 Ves. 182, and followed in this country in Dezell v. Odell, 3 Hill, 215, confined the estoppel within too narrow limits. We think both cases are entirely in harmony with the doctrine stated in the principal case. We do not understand those cases to hold that there must be "some active personal influence used by one party to induce the other to act." There is a homely old maxim that silence sometimes speaks louder than words. He who keeps silent when, in good conscience, he ought to speak, is as much guilty of fraud as one who willfully speaks falsely. It is contended by the same writer that "the idea of some fraudulent intent in the mind of the party, when the representation or admission was made on which another acted, has pervaded the cases," and that "this has produced, in many places, a confusion in the minds of many regarding this kind of estoppel." And it is further said that "this idea was prominent in the elaborate decision of Field, J., in California, in the case of Boggs v. Merced Mining Co., 14 Cal. 279;" but it is contended that Mr. Justice Field abandoned this doctrine in Henshaw v. Bissell, 18 Wall. 271, where he said, referring to an estoppel in pais: "For its application, there must be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as to amount to constructive fraud." This remark is not only consistent with the doctrine of Boggs v. Merced Mining Co., but it is almost in the very language used by Lord Eldon in Evans v. Bicknell, where it was said: "If, then, the cases go to this only, that there must be positive fraud or concealment, or negligence so gross as to amount to fraud, is there in this case evidence resting upon that high degree of probability upon which the court, guided by its conscience, must act, that this trustee had a fraudulent purpose? If not, is there negligence so gross as to amount to constructive fraud?as Chief Justice Eyre expresses it in Plumb v. Fluitt, 2 Anstr. 432, such evidence of fraud, that he shall not be heard, in a court of justice, to say there was no fraud?"

In the article in the Review before referred to, it is said that "it is not so much the intention of the party estopped, as the effect upon the party setting up the estoppel." And again: "There is no doubt that, as the authorities now are, there need not necessarily be fraud, or bad faith by the party estopped; the main test is, would it work a fraud, if the estoppel were not upheld?" The soundness of the first proposition may well be questioned. It is only material in such an inquiry to ascertain that the party setting up the estoppel has been or would be damaged, without fault upon his part; that is the effect, and only effect, requisite. But

it must also be made to appear that the injurious effect was the proximate result of some culpable action upon the part of the party against whom the estoppel is sought to be enforced. The effect of a given act can not, without more, make it wrongful. Only wrongful acts resulting in injury to another, who is himself without fault contributing thereto, create an estoppel. A right action has never yet been held to raise an estoppel. As to the latter of the propositions above cited, it seems to us that the "main test" is no test at all. It may well be admitted that the estoppel should be upheld, where it would work a fraud not to uphold it. But the fraud must certainly be upon the part of him whose act creates the estoppel. The real inquiry, it seems to us, is, can the party repudiate his statement, or the natural inference from his conduct, without showing that he has been guilty of deceit, or of negligence so gross as to raise a presumption that he was regardless of the rights of others? If he can not, and damage would result to one who might rightfully rely upon such statement or course of action, on account of such confidence, then he should be estopped from making such denial.

It is not necessary to the creation of an estoppel, however, that there should, in fact, have been an intent to deceive; for the party may have acted innocently through mistake of law; but that will be his misfortune. Public policy forbids that he should be permitted to say that he did not know the law. And this is not confined to one party alone. The party who sets up the estoppel must himself know the law, at his peril. But it seems that an act done in submission to supposed legal authority can not work an estoppel. Jersey City v. State, 30 N. J. L. 521. See, however, The Town of South Ottawa v. Perkins, 4 Cent. L. J. 132. In Snyder v. Studebaker, 19 Ind. 462, where a party had conveyed land to a corporation, which had in turn conveyed it to a third party, it was held that the party who conveyed to the corporation was estopped as against its grantee to set up that the corporation was not duly organized, although it was said that he might show that there was no valid law which authorized the supposed corporation; and, as it appeared that there might have been an organization under the act which created the corporation, before the taking effect of a constitutional provision making the act void, if it had not been accepted before that time, the party so conveying to the corporation would be estopped to say that the grant of power to organize had not been accepted in time to keep it in force. It has often been said that one who contracts with a corporation, as such, is estopped to set up the invalidity of the corporation in a suit on an obligation so created, even as against the corporation itself. But it would seem that the doctrine of equitable estoppel has no application to a case of this kind. It can not be properly said that one who deals with a corporation, as such, in any way misleads the corporation or its members as to the regularity or validity of its creation or organization. This class of decisions is clearly right in the result reached; but other and better reasons might be assigned to support them. In a case where the validity or invalidity of the corporation would affect any substantial right of the other contracting party, we think he should be permitted to show that the corporation is not legally in existence. In all other cases the inquiry should be left to the state. An estoppel can never properly be invoked in aid of oppression or fraud, or where it would work injustice.

The rule, that one claiming to have been misled to his injury by the conduct or statements of another must show that he was himself without knowledge on the subject, was enforced with much strictness in all the earlier cases; and, while the modern cases have generally conceded the rule, it has sometimes been practically ignored. In Pasley v. Freeman, 3 T. R. 51, Lord Kenyon, referring to representations respecting the title to real-estate, said: "A person does not have recourse to common conversations to know the title of an estate which he is about to purchase; but he may inspect the title-deeds; and he does not use common prudence if he rely on any other security."

M. A. L.

IN Manby v. Scott, (1 Sid. 109; 2 Smith L. C. 422, 6th London, Ed.), among the reasons for the second "point there established," it is said: "In the Spiritual Court such bad women as have violated their vows shall have such provision as clerks' convicts (Staunforde, 140), and shall be fed with the bread of affliction and the water of adversity."

BOOK NOTICES.

PROFFATT ON PRIVATE CORPORATIONS.-The Law of Private Corporations, under the civil code of California, with the recent amendments and statutes, and annotations in reference to the decisions of the Supreme Court of California and of other states, on analogous provisions; also an introductory chapter on the History of Private Corporations, and an appen dix with forms, by JOHN PROFFATT, LL. B., author of "Curiosities and Law of Wills," "Jury Trial," etc. San Francisco: A. L. Bancroft & Co. 1876. pp. 227.

The growth of corporate effort in the United States, says the author in his introduction to this work, is truly marvelous; nothing is too trifling for its object, nor anything too vast for its undertaking. From the manufacture and sale of a simple attachment to a lockspring, to the mighty enterprise of uniting the waters of two oceans, men combine their efforts and capital, under the protection and powers of a corporation. Interests and privileges that were formerly confined to a select and limited number, are now so generally extended that there are but few business men who are not in some way interested in a corporate undertaking, and among whose assets may not be found some kind of an interest in a corporation solid or chimerical. Corporations, though not to the extent which they have developed in modern times, have existed from a very early period. The existence of bodies possessing these corporate attributes and powers were known both in Greece and Rome, and the incorporated trading associations of early England still exist in that country, in the names and customs of their guilds, if in nothing else. But the corporations of modern times differ from these in both their influence and extent, and it is on this account that the law of private corporations has taken so conspicuous a place in our statutes and decisions. The weightiest matters that come before our tribunals, as the author rightly observes, are for the most part connected in some way or another with corporate rights or relations. The courts of this country are daily invoked to apply the preventative or remedial measures of the law as between the stockholders and the corporation, and the corporation and the public.

There are probably few states in which corporate undertakings are more frequent, and where the laws relating to corporations are so uniform as in the state of California. Three-fourths of the amendments passed at the last session of the state legislature had reference to corporations; the code placing all bodies of this description under one general provision. An annotated edition of the chapters governing these institutions, it will therefore be seen, will be of no inconsiderable value, both to the profession of the Pacific Slope and the practitioner at large. Although the present volume is a small one, it contains the decisions of the various courts outside of that state, construing provisions similar to those which are found in the California code. The introductory chapter on the History of Private Corporations can not be read without profit, and the whole work is a credit to its author, who is known to the profession of the whole country through his larger works.

MAINE REPORTS. VOL. LXV. Reports of Cases in Law and Equity, determined by the Supreme Judicial Court of Maine. By JOSEPH D. PULSIFER, Reporter to the State. Portland, Me.: Dresser, McLellan & Co. 1876.

This is a well-printed and neatly bound volume of over six hundred pages, exclusive of the index, table of cases reported, and table of cases cited. The judges of the supreme judicial court, during the time of these reports, were Hon. John Appleton, Chief Justice, and

Hons. Chas. W. Walton, Jonathan G. Dickerson, Wm. G. Barrows, Charles Danforth, Wm. Wirt Virgin, John A. Peters and Artemas Libby, Associate Justices. The present volume contains over one hundred cases, some of which are of more than ordinary interest and importance. In several of them, which we append, the questions considered have been discussed in an exhaustive manner, and at considerable length.

VOID MARRIAGE-ACTION FOR DECEIT-SURVIVAL.— Withee v. Brooks, Adm., p. 15. Opinion by DANFORTH, J. An action on the case is maintainable by a woman against a man for his deceit, by which she is led into a void marriage with him, and such action, being an action of trespass in the case within the meaning of the statute, survives against his administrator. Fellows v. Emperor, 13 Barb. 92; Hutchinson v. Ham, 1 Smith, 242; Lady Cox's case, 3 P. Wms. 389; Hovey v. Page, 55 Me. 142.

ADULTERY-INTENT.-State v. Goodenow, p. 30.-Opinion by PETERS, J. Where a man and woman are jointly indicted for adultery, the female defendant, having a lawful husband alive, can not set up in defense that such nusband had been married again, and that, on that account, they supposed they could lawfully marry, and that they were so advised by the magistrate who married them, they relying upon the opinion of the magistrate in good faith. It was urged, on the part of the defendants, that these facts showed the absence of a guilty intent. The court said that it was true that the crime of adultery can not be committed without a criminal intent; but the intent may be inferred from the criminality of the act itself. Lord Mansfield states the rule thus: "Where an act, in itself indifferent, becomes criminal if done with a particular intent, there the intent must be proved and found; but where the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and, in failure thereof, the law implies a crim inal intent." In this case the accused had intentionally committed an act which is in itself unlawful. In excuse for it they pleaded their ignorance of the law. But ignorance of the law excuses no one. The law, which the respondents are conclusively presumed to have known as applicable to their case, is well settled, and free from all obscurity or doubt. They are bound as if they knew the law. Late cases furnish some interesting discussion upon this subject. Cutter v. State, 36 N. J. 128; U. S. v. Anthony, 11 Blatch. 200; U. S. v. Taintor, Id. 374; 2 Green's Crim. Law Rep. 218, 244, 273, 589; Black v. Ward, 27 Mich. 191, s. C., 15 Am. Law Rep. 162, and note 171. The rule, though productive of hardship in particular cases, is a sound and salutary maxim of the law. Nor can the gross ignorance of the magistrate excuse them. They were guilty of negligence in taking his advice. They were bound to know or ascer tain the law at their peril. See Com. v. Elwell, 2 Metc. 190; Com. v. Farren, 9 Allen, 489; Com. v. Goodman, 97 Mass. 117; Com. v. Emmons, 98 Mass. 6; Com. v. Mash, 7 Metc. 472; Com. v. Thompson, 6 Allen, 591, 11 Allen, 23.

EVIDENCE-TESTIMONY OF EXPERTS.-State v. Watson, p, 74.-Opinion by BARROWS, J. Upon the trial of an indictment for arson of farm buildings, where it was a material question whether fire was communicated from one building to another, it was held, 1, that the opinion of an experienced city fireman upon the question whether, under all the circumstances, the fire would be thus communicated, is not competent evidence; 2, that the defendant has no cause of complaint because he is not allowed to ask such witness whether or not it is a common occurrence for fire to be communicated from leeward to windward across a space greater than that which separated the buildings burned; 3, that such witness can not be asked whether, in his expe rience, large wooden buildings or large fires make their own currents, frequently eddying against the prevailing wind. There is nothing in the knowledge or experience of a city fireman, as to the influence of the wind in directing the course of a fire from one building to another in an open country, or as to fires creating their own currents, that qualifies him to give evidence as an expert. In the class of cases where the opinion of a witness is competent evidence, it becomes so, not because the witness may be supposed, when compared with the jury, to possess superior powers of perception, intuition and judgment, or superior ability to draw correct inferences from proved facts, but because the nature of the question at issue is such that men of ordinary experience and intelligence must be supposed to be incapable of drawing conclusions from the facts in evidence, without the assistance of some one who has special

skill or knowledge in the premises. Jefferson Ins. Co. v. Cotheal, 7 Wend. 73. Hence it follows that, where an infer. ence is to be drawn respecting matters which may be presumed to be within the common experience of all men of common education moving in the ordinary walks of life, there is no room for the evidence of opinion; it is for the jury to draw the inference. N. E. Glass Co. v. Lovell, 7 Cush. 319. Accordingly, in the last-named case, where it became material to determine whether certain packages of glassware were stowed on or under the deck of a vessel which was stranded on Hart Island, and the plaintiffs offered evidence to show that, if they had been stowed under deck, they or the remains of them would have been found there, and the defendants offered evidence tending to show that they might have been washed out, the opinion of a witness who had been acquainted with the navigation about there for thirty years, and had been stranded there, and had been employed in saving and getting off wrecked vessels, and was near the place at the time of the wreck, upon the question whether, taking into view all the circumstances, the goods could have been broken to pieces in the hold, or washed out of the hold, as the defendant contended, was held inadmissible. In Jefferson Ins. Co. v, Cotheal, supra, witnesses long and familiarly acquainted with the business of insurance, were not allowed to give their opinion as to the materiality of a representation or concealment, nor whether the risk had been increased by the erection of a boiler-house adjoining the premises covered by the insurance. In Joyce v. Maine Ins. Co., 45 Me. 168, and Cannell v. Phoenix Ins. Co., 59 Me. 582, the opinions of witnesses, who had had large experience in the business of insurance, as to the comparative risk upon occupied and unoccupied dwelling-houses, and their testimony as to the fact that rates of insurance were increased when dwellinghouses were vacant, and as to the relative number of losses upon occupied and unoccupied buildings, were all held inadmissible. On the argument, the counsel cited the following cases where the opinion of experts had been admitted: An observer of the habits of certain fish, in overcoming obstructions in the ascent of rivers-Cottrill et al. v. Myrick, 12 Me. 222; a seaman, as to the proper storing of a cargo— Price v. Powell, 3 Comst. 322; a mason, as to the time requisite for the walls of a house to become so dry as to become safe for human habitation-Smith v. Gugerty, 4 Barb. 614; a master engineer and builder of steamboats, as to the manner of a collision-18 Ohio, 375; a practical surveyor, as to whether piles of stones and marks on trees were monuments or boundaries-Davis v. Mason, 4 Pick. 156. NUISANCE-REMOVAL OF-DESTRUCTION OF BY MOB.Brightman v. Inhabitants of Bristol, p. 426.- Opinion by APPLETON, C. J. This was an action under the statute to recover three-fourths of the value of a porgy oil factory, which had been burned and destroyed by a mob. On the trial, the defendants' counsel offered to show that strong and offensive odors arose from the plaintiff's factory, and that it was a public nuisance to all residing in the vicinity; but evidence of this was excluded. On appeal, the ruling was affirmed. The court held that, when an erection itself constitutes a nuisance, as a building in a public street, obstructing its safe passage, its removal or destruction may be necessary for the abatement of such nuisance; that when the nuisance consists in the wrongful use of a building, harmless in itself, the remedy is to stop the use; that when the act done, or the thing complained of, is only a nuisance by reason of its location, and not in and of itself, the court will not order the destruction of what constitutes the nuisance, but will require its removal, or cause its use, so far as such use is a nuisance, to cease; but no law sanctions its destruction by a mob. A smith's forge, in Bradley v. Gill, Lutw. 29; a tobacco mill, in Jones v. Powell, Hut. 136; a manufactory for spirits of sulphur, in White's case, 1 Burr. 333; a distillery, in Smith v. McConathy, 11 Miss. 517; a slaughter-house, in Brady v. Weeks, 3 Barb. 157; a livery stable, in Coker v. Birge, 10 Ga. 336; a melting-house, Peck v. Elder, 3 Sandf. 126; a gaming-house or grog-shop, in State v. Paul, 5 R. I. 185; a powder magazine, in Cheatham v. Shearon, 1 Swan, 215; a blacksmith's shop, in Norcross v. Thoms, 51 Me. 503; a tallow factory, in Allen v. State, 34 Tex. 230; a tannery, in Rex v. Papineau, 1 Strange, 686, have been declared nuisances because of their unsuitable location; but that will not justify a riotous mob in burning and destroying them. A tomb erected on one's own land is not necessarily a nuisance; but it may become such from its location. Barnes v. Hathorn, 54 Me. 125. But it is not, therefore, to be destroyed. Its use may be prohibited. The plaintiff's porgy oil factory stood upon the same

ground. These views are sustained by an almost unbroken line of decisions. In Rex v. Papineau, supra, the defendant was indicted for a nuisance by reason of his tannery, and fined £100. A writ of error was brought, and one of the reasons given for its reversal was, "that the judgment was erroneous for want of an adjudication that the nuisance be abated." ""But," said Lord Raymond, "regularly the judg. ment ought to be, to abate so much of the thing as makes it a nuisance. * * * If a dye-house or any stinking trade were indicted, you shall not pull down the house where the trade was carried on." In the same case, Reynolds, J., says: "Roasting of coffee was formerly thought a nuisance, and yet nobody ever imagined the house in which it was roasted should be pulled down." Then, referring to the tannery, he adds: "I should think it would have been going too far, if they had adjudged the whole erection to be abated for a particular abuse of it in dipping some skins." See also Barclay v. Commonwealth, 25 Penn. 503. In Welch v. Stowell, 2 Doug. (Mich.) 332, an action of trespass was brought for the destruction of a house of ill fame by the city marshal of Detroit, acting in pursuance of a city ordinance authorizing him to proceed with sufficient force and demolish the same. "It is said," said Whipple, J., in delivering the opinion of the court, "that the house was a nuisance. This may be very true; but it was a nuisance in consequence of its being the resort of persons of ill fame. That which constitutes or causes the nuisance may be removed; thus, if a house is used for the purposes of a trade or business by which the health of the public is endangered, the nuisance may be abated by removing whatsoever may be necessary to prevent the exercise of such trade or business; so a house in which gaming is carried on to the injury of the public morals, the individuals by whom it is occupied may be punished by indictment, and the implements of gaming removed; and a house in which indecent pictures are exhibited is a nuisance which may be abated by a romoval of the pictures. Yet, in this and the other cases stated, it will not be contended that a person would be justified in demolishing the house, for the obvious reason that, to suppress the nuisance, such an act was unnecessary. So, in the case before us, the nuisance was not caused by the erection itself, but by the persons who resorted there for the purposes of prostitution." In Moody v. Supervisors of Niagara County, 46 Barb., 659, an action was brought for the destruction of a bawdy-house which was likewise the resort of thieves, robbers and murderers, aud it appeared that, immediately before its destruction, one of the police was murdered by the people congregated there. It was held that the fact that the house is kept as a house of public prostitution renders it a common nisance, but that a house can not be lawfully destroyed by a mob because, for the time being, it is devoted to a purpose which the law characterizes as a common public nuisance; when it is the unlawful use of a building that constitutes a nuisance, the remedy is to stop such use and not to tear down the building. In Gray v. Ayres, 7 Dana, 375, the court expressed a like opinion. In Ely v. Supervisors of Niagara Co., 36 N. Y. 297, a similar case of the destruction of a house of ill fame came before the court. "The property of the plaintiff was not beyond the pale of the law's protection," said the court, "by her detestable and criminal conduct. She still had the right to expect and rely implicitly upon the zeal and ability of the proper officers to defend her house and furniture against the unlawful efforts of any public indignation her evil practices might provoke." The same views are fully sustained in Massachusetts by the opinion of Shaw, C. J., in Brown v. Perkins, 12 Gray, 89, and in Rhode Island, by that of Ames, C. J., in State v. Paul, 5 R. I. 185. In Underhill v. Manchester, 44 N. H. 214, a suit was brought by a saloon-keeper against the defendant town for damages caused by the destruction of plaintiff's property by a mob. The court held that he could not recover because his business led to drunkenness and disorder; and, by the provisions of the act making cities and towns liable for damages caused by mobs or riots, it was provided that no persons were entitled to recover, the destruction of whose property was caused by their illegal or improper conduct. Its decision is placed entirely upon the peculiar language of the statute. Doe, J., in his opinion, however, says that "the rioters are liable to the plaintiff for the damage done by them. His property, though solely used in violation of law, could not be lawfully destroyed except under process of law. Brown v. Perkins, 12 Gray, 89; Woodman v. Hubbard, 25 N. H. 67." In Spalding v. Preston, 21 Vt. 9. an action of trover was brought for counterfeit coins partly finished, against the sheriff by whom they

had been seized under process, and detained to be used as evidence upon the trial of an indictment against the person in whose possession they were found, and likewise to prevent their being put in circulation; but the court held that the action was not maintainable. "Such property," remarks Redfield, J., "so to speak, is outlawed, and is common plunder." Counterfeit money is per se unlawful, but porgy oil is an article of commerce, and its manufacture an honest and lucrative industry. In Meeker v. Van Rensselaer, 15 Wend. 397, the destruction, by individuals, of a dwelling-house during the prevalence of the Asiatic cholera, which was cut up into small apartments inhabited by poor people in a filthy condition, and calculated to breed disease, was sanctioned on the ground that it was a nui sance, and "that there was no other way to correct the evil but by pulling down the building." But this case has been doubted in Welch v. Stowell, 2 Mich. 332, and in a subsequent case in New York the court say that it can only be sustained upon the ground, that in no other way could the safety of the people be preserved. In Lord v. Chadbourne, 42 Me. 429, a suit was brought for the value of liquors kept for sale in violation of the statutes of the state; and it was held not maintainable, among other reasons, because by statute the status of the liquors was illegal. Not so in this case. The plaintiff was engaged in a lawful business. If the place of his manufacturing was improper, that was to be determined by a jury, not by a mob of men in disguise. And, see Sherman v. Fall River Iron Works, 5 Allen, 213.

PREVIOUS CONVICTION AS EVIDENCE OF INTENT— DOCKET ENTRIES. State v. Neagle, p. 488. Opinion by WALTON, J. Upon the trial of one charged with having in his possession intoxicating liquors, with intent to sell the same in violation of law, the record of a previous convietion of a similar offense is admissible in evidence upon the question of intent. State v. Plunkett, 64 Me. 534. And the docket entries may be read to the jury, when a more extended record has not been made. Leathers v. Cooley, 49 Me. 337; Pierce v. Goodrich, 47 Me. 173; Longley v. Vose, 27 Me. 179; Read v. Sutton, 2 Cush. 115; Pruden v. Alden, 23 Pick. 184.

RAILROAD-KILLING ANIMALS-FENCES-NEGLIGENCE -PAROL AGREEMENT.-Wilder v. Maine Central R. R., p. 332.-Opinion by DICKERSON, J. 1. The statute requiring railroad corporations to enclose the land, taken for their road, with fences, is a police regulation, designed to secure the safety of the public travel and transportation, and is obligatory as such upon all railroad corporations, whether chartered before or after its passage. State v. Noyes, 47 Me. 189; Ind., etc., R. R. v. Townsend, 10 Ind. 28; 1 Red, on Railways, 493, 494. 2. A parol agreement for the removal or discontinuance of a fence on the line of a railroad, between the owner of the land and the railroad company, does not run with the land, and can not therefore bind his grantee. Gilman v. Eur. & N. A. R. R. Co., 60 Me. 35; St. L. & A. R. R. Co. v. Todd, 36 Ill. 409. 3. Where a horse escaped from his owner's land to an adjoining railroad track and was killed by the company's locomotive; held, that the mere fact of his turning his horse upon the land where there was no fence between it and the railroad, when it was the legal duty of the railroad company to build it, was not proof of contributory negligence on his part. The owner of land has a right to use it in a natural and ordinary way for the purposes for which it is fit. This right does not depend upon the performance or non-performance of any duty or obligation enjoined by law upon another in respect to his land. He has a right to expect that the requirements of law will be complied with, and to act accordingly; nor does his knowledge that they have not been, affect his right of use, one way or the other. If it did, the neglect of another to obey the law might operate to prevent him from the lawful use of his own property. The common law made it the duty of the owner of the land to guard against the escape of his cattle therefrom; but the statute devolves this duty upon the railroad company in the case under consideration, and the rights of the parties must be determined in accordance with this change. To hold the land-owner to the same care of his cattle as the common law required, would be to disregard the statute, and render it inoperative. It was for the defendants to use the necessary care to prevent the escape of the plaintiff's horse on account of their neglect to build the fence. Shear. & Red. on Neg. § 471. In Rogers v. Newburyport R. R. Co., 1 Allen, p. 17, which was tort for the loss of a colt run over by the defendants' cars, the court say: "The plaintiff had a right to place his colt in his pasture to feed,

and was under no obligation to the defendants to use any care to prevent escape by reason of their neglect to main. tain the fence. It was for them to use the necessary care to prevent such an escape." Gardner v. Smith, 7 Mich. 410. In McCoy v. Cal. & Pac. R. R. Co., 40 Cal. 532, the line of the road was not fenced where it passed through the field occupied by the plaintiff, and the live stock of the plaintiff running in this field strayed on to the road and were killed by the defendants' train; and the court held that these facts made out a prima facie case against the defendants, and also, that the plaintiff was not guilty of contributory negligence from the fact that he knew that the road was not fenced when he turned his cattle into the field. Kellogg v. Ch. & N. W. R. R. Co., 26 Wisc. 223.

MISNOMER-WRIT OF ATTACHMENT.—Dutton r. Simmons, p. 583.-Opinion by PETERS, J. The certificate by an officer to the register of deeds of the attachment of the real estate of Henry "M." Hawkins, when the name of the defendant in the writ is Henry "F." Hawkins, is such a misdescription of the person sued as will render the attachment void. Formerly, but one Christian name was known to the law. The omission or insertion of a middle name or its initials was regarded immaterial. Such is probably the law of the Supreme Court of the United States, and of many, if not most, of the state courts in this country at the present day. Games v. Stiles, 14 Pet. 322; People v. Collins, 7 Johns. 549. But there has been a growing dissatisfaction with the doctrine of the ancient cases upon this subject; and in this state and Massachusetts the old doctrine must be regarded by the precedents and practice as overruled. In Bishop's Crim. Law, Misnomer, may be found cited many cases upon the question pro and con. The English courts have also long since departed from the old rule, under the influence of some of their statutes of amendment. In Com. v. Hall, 3 Pick. 262, "Charles" Hall and "Charles James" Hall, are regarded as different names. Com. v. Shearman, 11 Cush. 546, decided that "George" Allen and "George E." Allen are not the same name. "Nathan " Hoard and "Nathan S." Hoard, are not the same name. Com. v. McAvoy, 16 Gray, 235. There are many more Massachusetts cases either directly or indirectly supporting the same view. In Maine, State v. Homer, 40 Me. 438, and State v. Dresser, 54 Me. 569, are to the same effect. It is also with us well settled that a person's middle name may be represented by its initial letter, instead of writing the name in full. This is almost a universal practice. There was a distinction in some of the English cases depending on the fact whether the middle initial was a vowel or not. If it was, it was regarded as a name of itself. But if a consonant, it was not a name. This nice distinction was grounded upon the idea that a vowel can be sounded by itself, but that a consonant can not be sounded without the aid of a vowel. But this attempted distinction did not receive much recognition in the courts of that country, and has received none in the American courts, that we are aware of. Arbouin v. Willoughby, 1 Marsh. (E. C. L.), 477; Lindsey v. Wells, 3 Bing. N. C. 777; Reg. v. Dale, 17 Ad. & E. 63; Kennersley v. Knott, 7 M. G. & S. 980; Reg. v. Avery, 18 Ad. & E. 576; Kelly v. Laws, 109 Mass. 395. It was claimed in this case that the name was described in the return with substantial correctness, and that the error was one of inaccuracy only, and not fatal to the validity of the attachment. Had the error been in the omission of the middle letter (as if written Henry Hawkins), or if only the initial of the Christian name had been written, but correctly given (as H. F. Hawkins), the omission might have been supplied by parol proof. A person may have different names by reputation. Proceedings have been sustained in important cases where a person was described in either one or the other of the above ways. State v. Taggart, 38 Me. 298; Hubbard v. Smith, 4 Gray, 72; Collins v. Douglass, 1 Gray, 167; Com. v. Gleason, 110 Mass. 66; Reg. v. Avery, supra. But those are cases where the description of the person is said to be inaccurate or incomplete only. Campbell, C. J., in one of these cases, says: "It may be said, initials are a short way of stating the Christian name." But the description of Hawkins in the officer's return was not a diminished one, correct as far as it went, and inaccurate merely, but it was essentially and positively false. It may have been caused by a slip of the pen; but as there is no power of amendment in the case, there is no remedy; it is not a misdescription so patent upon the face of the papers as to correct itself. Nye v. Drake, 9 Pick. 35; Litchfield v. Cudworth, 15 Pick. 23; Slasson v. Brown, 20 Pick. 436; Com. v. Mehan, 11 Gray, 321; Frost v. Paine, 12 Me. 111.

DEFECTIVE WAY-WHEN TOWN LIABLE FOR DAMAGES CAUSED BY FRIGHT OF HORSE AT OBSTRUCTION.—Card v. City of Ellsworth, p. 547.-Opinion by PETERS, J. The plaintiff, a female, was driving along the highway, when her horse became frightened at a large rock, dug out of the earth by the town and left in the traveled way in a situation calculated to frighten horses passing by. In attempt. ing to dismount from the wagon, she fell and was injured. Held, 1, that if (according to the plaintiff's version) she was dismounting to prevent upsetting while the horse was restless and unmanageable from the fright, the defect in the way was the proximate cause of the injury; citing Lund v. Tyngsboro, 11 Cush. 563; Page v. Bucksport, 64 Me. 51; Bigelow v. Reid, 51 Me. 325; Lake v. Milliken, 62 Me. 240; but, if (according to defendant's version) the horse was unmanageable, and the plaintiff was dismounting to lead it by, when it started and threw her down, but not on account of any fright at that moment at the rock, the defect in the way could not be considered as the proximate cause of the injury. 2. A second and important question in the case was, whether the defendants were liable for an injury occurring from the fright of the horse at the rock-neither the horse nor the carriage coming in collision or contact with the rock. Upon this point, say the court, the weight of authority is with the plaintiff, in New Hampshire, Vermont, Connecticut, and several other states. Bartlett v. Hooksett, 48 N. H. 18; Morse v. Richmond, 41 Vt. 435; Dimock v. Suffield, 30 Conn. 129; Ayer v. Norwich, 39 Conn. 376; Foshay v. Glen Haven, 25 Wis. 288; Red. & Shear. on Neg. 81; Angell on Highways, 261. The inclination of the Massachusetts courts, as exhibited in the earlier cases, was apparently favorable to the same view. In Howard v. North Bridgewater, 16 Pick. 189, the court say: "But there may be such obstructions out of the traveled path as will render the road unsafe, such, for instance, as would frighten horses." But, in the later cases, the opinion of that court upon the exact question presented here, as well as upon other questions more or less like it, has been most unequivocally the other way. In Keith v. Easton, 2 Allen, 552, it was decided that an incumbrance "upon the side of a way" was not a defect in the way, merely because it exposes the traveler's horse to become frightened by the sight of it, or by sounds or smells issuing from it. In Kingsbury v. Dedham, 13 Allen, 186, the application of the same doctrine was extended to a case where the object at which the horse took fright was in the traveled way, and was of a nature calculated to frighten horses, but was not per se an actual defect or incumbrance in the way of travel. In Cook v. Charlestown, 98 Mass. 80, it was held that the town was not liable, even though the incumbrance at which the horse became frightened was in the traveled part of the way, and was of itself an obstruction and defect therein. There was in that case no collision with the obstruction itself, and the accident occurred at a point in the road where there was no defect. Cook v. Montague, 115 Mass. 571, is to the same effect. Still, individuals who leave or maintain upon the highways obstructions which caused fright in horses, are held, in Massachusetts, responsible to travelers for injuries occasioned thereby. Barnes v. Chapin, 4 Allen, 444; Jones v. Housatonic Railroad Co., 107 Mass. 261. And in the same state it has been held that a town may be answerable for damages where an injury is caused by a horse shying at one defect, and the carriage hitting the same or some other defect upon the highway. Bigelow v. Weston, 3 Pick. 267; Bly v. Haverill, 110 Mass. 520; Woods v. Groton, 111 Mass. 357. In Maine there are but few cases where the question is touched. Cobb v. Standish, 14 Me. 198, is a novel case, where the proposition under discussion is reversed. There the horse was ensnared into a miry pit, instead of being frightened from it. The town was held liable, because the indications of danger were concealed from the notice of the traveler and his horse. It was decided in Merrill v. Hampden, 26 Me. 234, that if a hole in the road was filled up with stones before the accident, so as to be safe for the horse and carriage to pass over, the fact that the horse was frightened at its appearance would not render the town liable for an injury happening on that account. But there it is intimated that there might be conditions in the highway for which a town would be responsible, where an injury is caused by a horse taking fright at the appearance of the road. In Lawrence v. Mt. Vernon, 35 Me. 100, the horse took fright at a pile of shingles on the side of the road, outside the traveled way, and the jury were instructed that, if the shingles were of a character likely to frighten horses, they were a defect in the public way. The court above held that the instruction