itself contains no express limitation upon the powers of a State or the jurisdiction of its courts. If there be any limitation in either of these, it grows out of the implication arising from the fact that Congress has defined a crime committed within the State, and made it punishable in the courts of the United States. But Congress has done this, and can do it, with regard to all offenses relating to matters to which the Federal authority extends. Does that authority extend to this case?

It will be seen at once that the nature of the offense (murder) is one which in most all cases of its commission is punishable by the laws of the States, and within the jurisdiction of their courts. The distinction is claimed to be, that the offense under the statute is committed by an Indian, that it is committed on a reservation set apart within the State for residence of the tribe of Indians by the United States, and the fair inference is that the offending Indian shall belong to that or some other tribe. It does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.

It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States-dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this court, whenever the question has arisen. In the case of Worcester v. State, 6 Pet. 515, it was held that, though the Indians had by treaty sold their land within that State, and agreed to remove away, which they had failed to do, the State could not, while they remained on those lands, extend its laws, criminal and civil, over the tribes; that the duty and power to compel their removal was in the United States, and the tribe was under their protection, and could not be subjected to the laws of the State and the process of its courts. The same thing was decided in the case of Fellows v. Blacksmith, 19 How. 366. In this case, also, the Indians had sold their lands under supervision of the States of Massachusetts and of New York, and had agreed to remove within a given time. When the time came a suit to recover some of the land was brought in the Supreme Court of New York, which gave judgment for the plaintiff. But this court held, on writ of error, that the State could not enforce this removal, but the duty and the power to do so

was in the United States. See, also, the case of the Kansas Indians, 5 Wall. 737; New York Indians, 5 Ib. 761. The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. We answer the questions propounded to us, that the ninth section of the Act of March 3d, 1885, is a valid law in both its branches, and that the circuit court of the United States for the District of California has jurisdiction of the offense charged in the indictment in this case.

NOTE.

The relations between the United States and the Indian tribes within their borders have always been anomalous, and especially have the powers of the Federal Government been circumscribed in the matter of criminal jurisdiction. Until the passage of the act of Congress, under which the indictment in the principal case was found, Federal courts had no jurisdiction whatever of crimes committed by one Indian against another Indian within the "Indian country." That country was defined by act of Congress of June 30, 1834,3 but the section of the act so defining it, not being included in the Revised Statutes, was repealed by their enactment but were referred to by the Supreme Court in deciding what was Indian country. In Crow Dog's case (1883), the court held that the term applies to all the country to which the Indian title has not been extinguished, within the limits of the United States, whether within a reservation or not, and whether acquired before or after the passage of the act of 1834. It is noteworthy that, before these cases were decided, it was held by the United States Circuit Court for the Ninth Circuit, that the act of Congress of June 30, 1834, which defined the limits of the Indian country,5 was simply a local act, and applied only to the territory described in it, and then within the sovereignty of the United States. And upon the same principle in the Circuit Court of the United States for Oregon, the court held in a criminal case, that Alaska was not Indian country, notwithstanding the sweeping definition of that term in Crow Dog's Case.8 The court seems to have regarded the dictum in the CrowDog Case as obiter, not being necessary to the decision of the case, and therefore not binding upon the circuit

court.

The act under which this indictment is found closes all controversy, so far as the crimes enumerated in it are concerned, committed by one Indian on or against another Indian, no matter where; unless, indeed, it infringes the right of a State in which a reservation inhabited by Indians is situated. In the principal case the court holds that the whole subject of criminal ju

1 Act of March 3, 1885; Sess. Acts of 1885, p. 385.

2 Rev. Stat. U, S. § 2146.

34 U. S. Stat. at Large, p. 729.

4 109 U. S. 556; See also, Bates v. Clark, 95 U. S. 204. 54 U. S. Stat. at Large, 729.

6 United States v. Seveloff, 2 Sawy. C. C. 311; See also, Re Carr, 3 Sawy. 317; Waters v. Campbell, 4 Sawy. C. C. 121; United States v, Stephens, 8 Sawy. C. C. 117.

7 Kie v. United States, 27 Fed. Rep. 351 (May 1, 1886). 8 109 U. S. 556.

risdiction is within the control of Congress, because the Indians are the "wards of the nation." A better reason is that the Indian tribes, whether at large or upon reservations, are quasi independent powers, whose relations with the State or Federal governments can only be maintained through Congress; that the States cannot make treaties with them; that, under the Constitution, the Federal government only can deal with them as tribes, and regulate commerce with them as individuals; that holding an occupancy title to the lands included in the reservation, the State can acquire no rights over the reservation, inconsistent either with that title, or such supervision of Congress as may be necessary to the exercise of its constitutional functions respecting either public lands or Indian tribes.-ED. CENT. L. J.

1. ATTORNEY AND COUNSELOR. Unauthorized Attorneys-Dower-Partition by Widow.-Where proceedings in partition were instituted by an attorney in this State, who received his authority from another attorney residing in another State, who claimed to have been employed by plaintiff, but which authority she denied: Held, there being no proof of knowledge of the pendency of the proceedings on the part of the plaintiff, or proof of authority to bring the action, a sale under the partition would be set aside. In this State a widow is entitled to dower, or the use during her natural life of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof. A mere dower interest is not sufficient to authorize the person entitled thereto to institute a suit in partition, and cause the estate of the heirs to be sold. Hurste v. Hotaling, S. C. Neb., Sept. 29, 1886; 29 N. W. Rep. 299. 2. COUNTIES.-Township Organization-ChangeUnauthorized Election-Change iu Government.The question of adopting township organization was submitted to the legal voters of R. county at the general election in 1883, and was adopted by a majority of the legal voters of said county voting at said election, but no organization of the board of supervisors has yet taken place. Held, that township organization is in force in R. county, to be completed upon the organization of the board of supervisors as provided by law. An election to discontinue township organization, unless authorized by statute, is of no avail, and votes cast thereat are nullities. In a county which has adopted

township organization, the board of county commissioners continue to act until the board of supervisors have met and organized. State, ex rel. v. Kinzer, S. C. Neb., Sept. 29, 1886; 29 N. W. Rep. 307.

3. COVENANTS.-Running with the Land-Mortgagor of Leasehold Liable on-Assumpsit-Use and Occupation-Assignee of Lease.-A mortgagor in possession is so far the owner of the mortgaged property that he is liable upon the covenants that run with the land, and therefore the assignee of a lease for 999 years is liable upon the covenant for rent during the time he holds the lease, notwithstanding he gave a mortgage back to his assignor upon receiving the assignment. Assumpsit for use and occupation will not lie against the assignee of a lease as such. Trustees of Donations v. Streeter, S. C. N. H., July 30, 1886; 5 Atl. Rep. 845.

4. CRIMINAL LAW.-Assault and Battery-IntentStriking with a Pistol-Self-Defense-Ejectment from Gambling-Room.-An assault committed by striking with a pistol is, under the law of Texas (Pen. Code, arts. 46, 496), simple assault, notwithstanding the person assaulted was wounded by the accidental discharge of the pistol used in the assault, unless it is shown that a pistol was, when used in such a manner, a deadly weapon; or that by means of such use of it serious bodily injury had been inflicted, or that the assault was committed with premediated design, and by the use of means calculated to inflict great bodily injury. Held, that the facts in the case were such that the trial justice should have charged upon the law of self-defense as set out in Pen. Code, arts. 570, 572. The law knows no reasonable rules for the protection of a gambling-room or games played in violation of law, and hence a gambler on trial for as. sault cannot justify on the ground that the assault was committed in ejecting the person assaulted from a gambling-room, for disorder. Pierce v. State, Texas Ct. App., June 28, 1886; 1S. W. Rep. 463.

5.

False Pretenses-False Statement by Lodger Food Supplied Subsequently — Rea*sonable Inference for Jury.-Prisoner went to the house of prosecutrix and requested to be taken in as a lodger. After having lodged with her for a day or two, he stated that he had come from another lodging where he had left some of his clothes, and requested to be furnished with board as well as lodging, for which he promised to pay. The prosecutrix, believing his statement as to his clothes, agreed to supply him, and did supply him with meat and drink as a boarder. A few days after the prisoner decamped without paying for his accommodation. At the trial of an indictment for obtaining goods by false pretenses, the jury were directed that they must be satisfied that the pretense was false; that it was acted upon by the prosecutrix in supplying the articles in question; and that it was made by the prisoner with intent to defraud. The jury having found a verdict of guilty, the question was reserved for this court, whether upon facts the prisoner was entitled to an acquittal. Held, that the direction was substantially accurate; that upon the evidence the jury might fairly infer that the prosecutrix had acted on what she believed; and that from the facts stated it was to be inferred that the jury meant she so acted because she believed to be true the statement of the prisoner, which was in fact false. Regina

6.

7.

8.

v. Burton, Eng. Ct. App., London L. T. Rep., Vol. 54, p. 765; Oct. 9, 1886.

False Pretenses - Passing BankCheck- Evidence - Appeal — Admission of Evidence-By whom Error Assigned.-On the trial of an information for obtaining property under false pretenses, an instruction that, to convict, it must be found that defendant said he had money in bank to pay a check given in payment for the property, would be error. A bank-check is a false token, if the drawer knows when he gives it, payable to a person other than himself, that he has neither funds to meet it, nor credit at the bank on which it is drawn. Evidence admitted in a party's favor cannot be assigned as error by him. People v. Donaldson, S. C. Cal., June 30, 1886; 11 Pac. Rep., 681.

Homicide-Justifiable Homicide— Defendant Aggressor · Technical Trespasser Test of Self-Defense-Danger of Life-Opinion of Reasonable Man.-A person who, being on the land of another, is ordered off by the land-owner, and assaulted and threatened with death by him as he is obeying, may, if he kill the land-owner, prove the circumstances to sustain the plea of self-defense, notwithstanding that he was technically a trespasser, unless it is shown by the prosecution that he knew previously that the trespass would provoke a violent conflict with the land-owner. The question whether a reasonable man, in the situation of defendant at the time of the killing, would have conceived his life in danger at the hands of deceased, is no test of justifiable homicide. State v. Archer, S. C. Iowa, October 6, 1886; 29 N. W. Rep. 333.

Trial-Evidence-Animus of Prosecuting Witness-Bills of Exception — Refusal to Grant Time to Prepare-Assault and BatteryMutual Combat.-The animus-the motive or the ill will-of a prosecuting witness, is never a collateral or irrelevant question in a criminal case; and it is error to reject testimony tending to show such bias, on the ground that the defense, by asking such witness on cross-examination, "Are you not unfriendly to the defendant?" had made the witness its own witness, and was bound by his answer in the negative. It rests with counsel to determine whether or not the exceptions he desires to have saved are of importance; but it is not reversible error to refuse time for the proper preparation of such exceptions, unless it is made to appear that injury resulted to the accused from such refusal. It is error in the trial of an indictment for assault with intent to commit murder, to charge upon the subject of mutual combat, when it appears from the evidence that either the accused or the prosecuting witness provoked or brought on the conflict. Roseborough v. State, Texas Ct. App., June 25, 1886; 1 S. W. Rep. 459.

9. DEED. Easement - Mistake.- Where a deed is accepted by the purchaser and the price paid, under the belief that it includes the conveyance in fee of a certain easement over adjoining land, which had been included in the contract of sale, the purchaser is not precluded, by the acceptance of the deed, from recovering from the vendor the value of the easement, the mistake, although one as to the legal effect of the deed, having in it a sufficient element of fact. The facts that the grantor in the deed reserves therein a right to connect

with a sewer on adjoining land owned by him and another as tenants in common, leading from the deeded premises, an easement in which had been contracted for but was not included in the deed, and subsequently, together with his co-tenant, conveys such right on the sale of said adjoining land to a third person, do not, under the facts of the case, raise an implication that said adjoining land is subject to an easement in the purchaser of the land first conveyed. Butterfleld v. McNamara," S. C. Conn., August, 1886; 2 N. Eng. Rep. 751.

10. DEED.-Marriage a Consideration.-Marriage is a valuable consideration for a deed; and a deed executed for such consideration will not be set aside in behalf of existing creditors, unless it appears that both parties to the deed intended by the conveyance to delay the creditors of the grantor, or at least unless the grantee knew that the grantor so intended. Pierce v. Harrington, S. C. Vt., Aug. 25, 1886: 7 East. Rep. 75.

11. EQUITY-Judicial

12.

Term, to Restrain Collection of Bond for Purchase Money.-A purchaser of land sold under decree of court, who has neither resisted the order confirming the sale, nor attempted, during the term, to have that order set aside, may, after the term has closed, institute a suit to enjoin the collection of a bond given by him for the purchase money, where the title to the land is not good, and the description is so vague that it cannot be identified, and he has been led by the conduct of the parties in the sale proceedings to postpone a motion to have the order ratifying the sale, set aside until after the term of court has come to a close. Morrow v. Wessell, Ky., Ct. Appl. Sept. 23, 1886; 1 S. W. Rep. 439.

Jurisdiction — Injunction — Decree — Party Deprived of Defense.-A court of equity having obtained jurisdiction of a cause, will retain it for all purposes, and render such decree as will protect the rights of the parties before it, and thus avoid unnecessary litigation. Where a decree has been improperly obtained, and a party defendant has been deprived of his defense by the conduct of the successful party, who had no cause of action, and whose rights had been adversely adjudicated in another suit, he will be enjoined from enforcing such decree. See Buchanan v. Griggs, 24 N. W. Rep. 452. Buchanan v. Griggs, S. C. Neb. Sept. 29, 1886; 29 N. W. Rep. 297.

13. EVIDENCE.-Bill of Sale Absolnte on its Face is Conditional-Estoppel-Lex Loci-Estoppel.— In a suit between a vendor and a creditor of the vendee, parol evidence is not admissible to prove that a sale is conditional, when it is evidenced by a writing that imports an absolute sale, where the creditor made his attachment relying upon the writing, and the vendee's representations that the sale was as the writing showed it to be. But a conditional sale not evidenced by a writing, valid in New Hampshire, will be held valid in Vermont, if the vendor has done nothing by which he is estopped. Dixon v. Blondin, S. Vt. 7. East Rep. 66.

14. EXECUTORS-Curators-Grant of Servitude in Land Without Order of the Court-Injunction— Continuing Trespass-Multiplicity of Suits.Under sections 21, 22, art. 1, c. 39, Gen. St. Ky., a curator has no right to the possession of the real

estate of a decedent, unless such possession is vested in him by order of court; and where the land contains stone valuable for fences, he has no power to contract with the tenant, authorizing him to remove the stone, whether lying loose on the surface or imbedded in the ground. Injunction will lie, at the suit of a purchaser of land sold by an executor, to restrain the tenant in possession from removing stone therefrom, where it appears that, if the writ is denied, there will result a continuing trespass and a multiplicity of suits. Ellis v. Wren, Ct. Appl. Ky. Sept. 23, 1886; 1. S. W. Rep. 440.

15. FRAUD-Statute of Frauds-- Verbal Agreement to Sell Horses-Delivery.-A verbal agreement to sell a number of unbroken horses at a price exceeding $200, there being no delivery of them except that part of the number were corralled, broken, and turned into the vendor's pasture, and no part of the purchase money being paid, is a contract within the statute of frauds, and void. Terney v. Doten, S. C. Cal. Aug. 12, 1886; 11 Pac. Rep. 743. 16. HIGHWAY.-Pent Roads-Presumption-Agency Estoppel-Evidence-Judicial Notice.-The judgment of the county court in establishing a highway will be sustained unless substantial injustice has been done, or a writ of certiorari would be granted; and this writ is often denied where there is no injustice, though some formal legal error has been committed. The selectmen laid a highway two rods wide in a village, and on petition the county court appointed commissioners, who reported that they adopted the survey of the selectmen and recommended that the highway be established as laid by them; this report was confirmed by the court, and the petitioners excepted because the road was laid less than three rods in width. The record did not designate whether it was an open road, a cross-road, or pent road; and by statute some roads must be laid three rods wide and some may be two rods. Held (1), that the presumption is, that this is such a highway as may be legally established of the width of two rods; (2) and it was not error that permission was not given for the erection of gates and bars, as it does not appear that there was any necessity for them. The highway was laid across land owned by the Methodist Episcopal Society, whose stewards had agreed with their grantors that the church lot should remain open and unobstructed, but without any vote of the quarterly meeting conference, as required by R. L., § 1961, and the society had acquiesced in the acts of its stewards for more than twenty years; $250 were allowed as damages if the agreement was still binding, and $300 if it was not. held, that the society, by retaining the benefit of the acts of its agents, is now estopped from denying their validity. The commissioners properly took judicial notice of the statutes and geography of the State in their finding that Barre was not an incorporated village. French v. Town of Barre, E. C. Vt. Aug. 21, 1886; 7 East Rep. 807. 17. INSURANCE Life Acceptance of ProposalAccident before Payment of Premium.-An insurance company wrote accepting a proposal by C. to insure his life, his declaration as to his being then in good health, &c., to be the basis of the contract. At the bottom of the letter there was a note, "No assurance can take place until the first premium is paid." Before the time for payment of the premium, C. met with an accident, of which he afterwards died: Held, that there was no com

18.

plete contract, and the risk having changed before tender of the premium, the company was entitled to refuse completion. Canning v. Farquhar, Eng. Ct. Appls. London Law Times Rep. Vol. 54, p. 350. Oct. 9, 1886.

-Life-Want of Insurable InterestWagering Policies-Recovery of Premiums.—J. H. effected with the defendant company two policies of insurance on the life of his father J. H., in which he had no insurable interest; according to the policies, the premiums were to be paid in weekly payments. J. H., the son, continued to make these weekly payments for some years. J. H., the father, had at first no knowledge of the insurance effected on his life, but when he became aware of them he objected to their being continued, and gave notice to that effect to the company. J. H. the son, then gave notice to the defendants that the policies were at an end, and claimed the return of the amount of the premiums. The defendants refused to pay, and J. H., the son, brought his action for their recovery, and the County Court judge gave judgment for the plaintiff. The defendant appealed. Held, on appeal, that, under the circumstances of the case, the policies were wagering policies, and consequently the premiums paid in respect to them could not be recovered. Howard v. Refuge, etc. Society, Eng. Ct. Appl. London Law Times, Rep. Vol. 54, p. 644, Oct. 9, 1886.

19. INTOXICATING LIQUORS. Pleading Abatement of Nuisance-Lawful Business-Iowa Statute of 1885-Constitutionality of-Constitutional Law-Due Process of Law-Proceeding in Equity-Trial by Jury-Constitution of the United States-Trial in State Courts.-A pleading which alleges that a building was erected and used "as a place for the sale of beverages such as the law at that time authorized," and that the defendant purchased the property for the purpose of using it in "a business at that time authorized by the laws of said state," is bad, as stating a conclusion of law rather than matter of fact. In a suit in equity to enjoin a saloon keeper from selling intoxicating liquors, and to have his establishment abated as a nuisance, before it can be said that defendant has been unlawfully deprived of his property without compensation, it must be made to appear that such property was owned by him, or by those under whom he claims, prior to the enactment of the statute of Iowa of 1885 declaring such an establishment a nuisance. A proceeding in equity is due process of law. The constitution of the United States has no bearing upon the question of the right of trial by jury in the state courts. McLane v. Leicht, S. C. Iowa, Oct. 5, 1886; 29 N. W. Rep. 327, 328.

20. LIMITATIONS.-Statute of Limitations.-Where the statute of limitations would be a bar to a direct proceeding by the original owner, it cannot be defeated by indirection within the jurisdiction where it is law. Hence, where certain counters were attached to premises, and in the adverse possession of the owner of such premises, sufficiently long to satisfy the Statute of Limitations, they cannot be recovered by the original owner in a replevin suit. A purchase from one against whom the remedy is barred entitles the purchaser to stand in as good a position as his vendor. Hence, a purchaser at a foreclosure sale of the premises will be protected by the statute. Chapin v. Freeland, S. J. Ct. Mass., Sept. 8, 1886; 2 N. Eng. Rep. 732.

21. LIMITATIONS-Statute of Limitations-Mortgage-Debt - Foreclosure Evidence Notes Limitations.-The Act of 1869, by extending the period of limitation of mortgages of real estate to ten years, necessarily extended the limitation of the debt secured by the mortgage, where it is sought to enforce a sale of the mortgaged premises in satisfaction of said debt, to the same period as the mortgage. In an action to foreclose a mortgage of real estate given to secure certain promissory notes, the note may be set out as the evidence of the debt, even if the action is brought but a few days before the expiration of ten years from the time the cause of action accrued. For the purpose of foreclosure, the notes continue as evidence of the debt until the mortgage is levied. Cheney v. Woodruff, S. C. Neb. Sept. 22, 1886; 29 N. W. Rep. 275.

22. MASTER AND SERVANT-Safe Machinery-Duty of Master-How Affected by Servant's Knowledge of Defects.-An employer, being in duty bound to provide safe machinery for use by his employes, cannot divest himself of liability by intrusting the performance of such duty to a servant. A master's liability for injuries to a servant caused by defective machinery does not apply to a case where the servant, knowing, or having the means of knowing, of the defects, and knowing of the perils to which they exposed him, pursued his employment in spite of them. Sanborn v. Madera, etc. Co., S. C. Cal. July 28, 1886; 11 Pac. Rep. 710. 23. MORTGAGE-Assumption by Vendee-Payment -Subrogation-Estoppel.-To secure his note for $2,000, E. mortgaged certain land, which, subject to a mortgage to S., was owned by him, to H. The collection of the note was guarantied by G. and R. E., by warranty deed, conveyed the land to W., subject to both mortgages; W., in the deed, and as part of the consideration thereof, assuming to pay both. W., by warranty deed, conveyed the land to M., subject to both mortgages; M., in the deed, and as part of the consideration thereof, assuming to pay both mortgages. Subsequently the S. mortgage was duly foreclosed, and on the next day after the expiration of the period of redemption the purchaser at the foreclosure sale executed to M. a quitclaim deed of the land. E. having failed to pay the guarantied note at maturity, G. and R., the guarantors, immediately after his default, paid to H. the amount due thereon, and some six years afterwards, and after the commencement of this action, took an assignment of the mortgage from H. Six hundred and eightyfive dollars and seven cents of the amount of the H. note and mortgage has not been paid to G. and R. Held, (1) that M. is estopped to set up the title acquired by him through the foreclosure as against the H. mortgage; (2) that G. and R., as sureties, had the right to pay the H. note, after it fell due, for their own safety and protection, and without reference to whether H. could collect of E. or not, and upon such payment they were immediately entitled to be subrogated to the securities held by H., and, among others, to the H. mortgage, and M.'s obligation to pay the same; (3) that the fact that the right of action of G. and R. against E. is barred by the statute of limitations does not extinguish the lien of the H. mortgage, against which the statute has taken effect, or take away their right of subrogation to it. Connor v. How, S. C. Minn. Sept. 30, 1886; 29 N. W. Rep., 314.

24. MORTGAGE-Chattel Mortgage-Description of Property Identification - Evidence Evidenca Admissible-Right of Mortgagee-Conversion by Stranger.-A chattel mortgage of "all that certain stock of one-inch seasoned lumber, being one car load of about 12,000 feet," and further describing the property as being at a particular place in the clty of M., may, as between the parties, or as to a subsequent purchaser with notice, or a stranger, be shown by evidence to be applicable to a carload of such lumber standing at a different place in the city from that named in the mortgage. Evidence showing that the parties understood that the property was to be removed to the place designated in the mortgage would be admissible to apply the mortgage to property otherwise correctly described. A mortgagee, having the right of possession, may recover the full value of the property even in excess of his debt, in an action against a stranger who shows no right to the property. Adamson v, Peterson, S. C. Minn. Oct. 1, 1886; 29 N. W. Rep. 321.

25.

Debt Secured-Forged Notes.-To secure the price of a harvester, O., as principal, and J., the plaintiff, as surety, executed three notes, and delivered them to defendants' agents, by whom the harvester waf sold to 0. Afterwards, and before the notes were handed over to defend ants, the agent permitted O. to take up the notes, and substitute for them three others, purporting to be signed by him and J., but upon which the signatures of J. were forged; the agents knowing that they were not written by J. The agents forwarded the notes to defendants, who had no notice of any facts affecting their genuineness till about the time of the commencement of this action, before which time, acting in good faith, and without any notice or knowledge that the notes forwarded to them were not the original notes given by O. and J., defendants, through their attorney, took from plaintiff three other notes executed by him, and secured by mortgages of his real estate, which notes and mortgages were taken ostensibly to secure the notes upon which plaintiff's signature was forged, but which both parties supposed to be the original notes; so that, in the intention of the parties the mortgages and notes secured by them, were in fact taken to secure the indebtedness evidenced by the original notes. Held giving effect to the intention and common purpose of the parties, that the mortgages, and notes secured by them, must be taken and treated as given and received to secure the original indebtedness. Egan v. Fuller, S. C. Minn. Sept. 30, 1886; 29 N. W. Rep. 313.

26. NEGLIGENCE-Evidence-Prima Facie Case Contributory Negligence-Prudence Required in Danger.-Where a plaintiff shows that she was injured by the overturning of a coach, caused by the breaking of one of its wheels while it was being driven round a curve, down grade, on a mountain road, where one side of the track was about a foot lower than the other, she has made out a prima facie case; and if no evidence is given to show that there was no defect in the wheel, and that the defendant was not guilty of negligence, she is entitled to recover. It is error for the court to instruct the jury "that a coach proprietor is never responsible for the imprudence of his passengers." The real question is whether, assuming the person injured to be ordinarily reasonable and pru. dent, the circumstances were so alarming as to de