v. Doe, 3 Scam. 238; Bruce v. Schuyler, 4 Gilm. 221; Mason v. Wait, 4 Scam. 127, and People v. Reynolds, 5 Gilm. 1, and coincide with the decisions of almost if not all courts. The act of June 18, 1883, requiring the operators of butter and cheese factories on the co-operative plan to give bonds, etc., is not in contravention of section 6, article 2, of the Bill of Rights, which declares that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall be inviolate." Such act is but a proper exercise of the police power of the State for the protection of persons intrusting their property to the manufacturer from fraud and wrong. A number of cases arising under city ordinances have been referred to by counsel as conclusive that this law is unconstitutional. In none of the cases referred to had the General Assembly, in express terms, granted to the municipality the powers that were exercised. Such was the case in City of Clinton v. Phillips, 58 Ill. 102. There the city authorized the sale of the liquor, but made it penal to fail to make a statement, at designated times, of sales, their purposes, the time, and the persons to whom sold. The case of Toledo, Wabash & Western R. Co. v. City of Jacksonville, 67 Ill. 39, was a city ordinance requir ing the useless act of the railroad company keeping a flagman at a crossing where there was no danger to persons. They are unlike this case. In none of the cases referred to was the law intended to protect the public from wrong and fraud, but the charters of those cities only conferred the power to adopt reasonable ordinances, and it was held they were not such, and were held inoperative for that reason. Nor had the Legislature required that such ordinances should be adopted. The corporate bodies in those cases were only empowered to pass reasonable ordinances, and they were in those cases held to be unreasonable, and therefore void. Hawthorn v. People. Opinion by Walker, J.

CONTRACT--MENTAL CAPACITY-BURDEN OF PROOF -EVIDENCE OF IMPROPER RELATIONS NUMBER OF WITNESSES.--(1) Although the mind of an individual may be, to some extent, impaired by age or disease, still if he be capable of transacting his ordinary busi, ness, if he understand the nature of the business in which he is engaged, and the effect of what he is doing, and can exercise his will with reference thereto, his acts will be valid. Meeker v. Meeker, 75 Ill. 266; Trish v. Newell, 62 id. 196; Pickerell v. Morss, 97 id, 220; Lindsey v. Lindsey, 50 id. 79. (2) On bill to set aside a conveyance of real estate made by his ward, on the ground of insanity of the grantor and undue influence of the grantee over him, the burden is upon the complainant to prove one or both of these allegations of his bill by a preponderance of evidence. Lilly v. Waggoner, 27 Ill. 395; Willemin v. Dunn, 93 id. 511, (3) The fact that a man is not the husband of a woman with whom he is on intimate terms and transacts business, but by some were supposed to be man and wife, is not sufficient evidence of illicit or adulterous intercourse between them, or of improper relations. (4). Mere numbers of witnesses alone, testifying to a state of facts, or as to the mental capacity of another to make a rational contract, will not control, where the less number are more intelligent, more reliable, or in any material respect superior as witnesses to the others. English v. Porter. Opinion by Scholfield, J. ADVANCEMENT-PRESUMPTIONS AS TO.-The general rule is, that a purchase of land by a parent in the name of a child, or of a husband in the name of the wife, is presumed to be an advancement and not a trust. Perry on Trusts, § 147, says: "Whether a purchase in the name of a wife or child is an advancement or not is a question of pure intention, though presumed in

the first instance to be a provision and settlement; therefore any antecedent or contemporaneous acts or facts may be received, either to rebut or support the presumption; and any acts or facts so immediately after the purchase as to be fairly considered a part of the transaction may be received for the same purpose." In Taylor v. Taylor, 4 Gilm. 303, where a parent purchased lands in the names of his two sons, and the question arose whether the purchase was an advancement, or whether they held in trust, it was held that "the presumption of law is, where a father purchases land in the name of his children, unaccompanied by any extraordinary circumstances, that it was intended as an advancement; but the presumption may be rebutted by circumstances." In Cartwright v. Wise, 14 Ill. 417, where a parent with his own money entered a tract of land in the name of his son, who was an idiot, this court took stronger grounds in sustaining the conveyance as an advancement than was done in the case last cited. In deciding the case it was said: "The question arises whether a father who purchases land with his own money, and takes the title to his idiot son, can file a bill for a resulting trust, and claim that he did not intend it for the benefit of his son, but for his own use. We are prepared to say that such a bill cannot be sustained. It must be held to be an advancement in favor of the child. The policy of the law requires that such an advancement thus made to such a party should be held to be irrevocable by the father." Maxwell v. Maxwell. Opinion by Craig, J.

RAILROAD-FENCING TRACKS-KILLING STOCK.-A statute of the State of Indiana gave the owner of stock killed on a railway a right of action against the company, without regard to the question whether such injury was the result of willful misconduct or negligence, or the result of unavoidable accident. It was however provided the act should not apply to any railroad securely fenced in, and such fence properly maintained by such company. Although this statute is general, and contains no exception, it was held in L. and Ind. R. Co. v. Shriner, 6 Ind. 141, the Legislature did not intend to authorize railroad companies to inclose streets in a town against the use of the public, and that a literal construction of the statute would lead to an absurdity. In that case the animal was killed within the corporate limits of the town of Lafayette, at a place where the railroad track crossed one of the streets of the town, and it was ruled it would not have been lawful to erect a fence at that point, and that the want of such fence was not the cause of such accident. In the case of Ind. and Cin. R. Co. v. Kinney, 8 Ind. 402, it was held under the same statute cited in L. and Ind. R. Co. v. Shriner, a railroad company would not be liable for stock killed or injured at a place on their road where a fence ought not to be erected, unless the injury was negligently or willfully done, and that an open space in front of a mill standing within fifty feet of the track is such a place. In the case of Ind. and Cin. R. Co. v. Parker, 29 Ind. 471,it was held, as in the other cases cited, the statute did not apply to injuries done at a point where it would be illegal or improper for the railroad company to maintain fences, such as road and street crossings, but that it was not every place within the corporate limits of a town or city that is within the exception. The excep tion allowed would be as to places where it would be improper to fence the track, whether within or without the corporate limits of cities or villages. In construing their own statute on the same subject, and which is not unlike the Indiana statute, in F. and P. M. R. Co. v. Lull, 28 Mich. 510, the court thought the rule established by the case last cited was a satisfac tory one, that it expressed the limits of the exceptions

arising under the statute accurately, and a track within the corporate limits of a city or town, at a point where no reason arising from public necessity existed for keeping it open, was as much within the statute as a track elsewhere. It seems the courts of Missouri and Iowa have followed closely the rule established by the cases ut supra, in construing similar statutes on the same subject. Lloyd v. Pacific R. Co., 49 Mo. 199; Davis v. B. and M. R. Co., 26 Iowa, 549; Cleaveland v. C. and N. W. R. Co., 35 id. 220. It is seen it is held by these courts, that notwithstanding the statute makes railroad corporations liable for injuries done to stock unless their tracks are inclosed with suitable fences, yet they are not bound to fence their tracks at places where it would be improper to do so on account of the great public inconvenience it would occasion, and hence are not liable because of the omission, unless guilty of negligence or willful misconduct in regard to the accident that caused the injury. The reason for the rule adopted in such cases is well stated in People v. Davenport, 91 N. Y. 574, where it is said, a "principle of construction of universal authority is that which requires the court to limit and restrict the operation of a statute, when its language, if applied in its literal sense, would lead to an absurdity or manifest injustice." The same rule of construction had been previously adopted by this court in Perry County v. Jefferson County, 94 Ill. 218. On the other hand the law is equally well settled that where no reason arising from public necessity exists for keeping it open at any given point, whether within or without the corporate limits of a city or village, all railroad corporations must conform to the statute, and fence their tracks, or answer for damages that may result from the omission of that duty. C., M. & St. P. R. Co. v. Dumser. Opinion by Scott, J.

IOWA SUPREME COURT ABSTRACT.

SALE-WARRANTY OF QUALITY — SEVERABLE CONTRACT-RIGHT TO RESCIND.-D. offered to sell W. & Co. 10 car-loads of barley like a sample sent him, for 70 cents per bushel. W. telegraphed and wrote D. that they would take 10 car-loads like the sample named, and D. answered that he would "turn out the 10 cars as fast as possible." One car-load was delivered, and D. drew for the price thereof; but as it did not come up to the sample in quality, W. & Co. refused to pay the draft, but retained the barley, and informed D. that they had given him credit for the value of the barley, which was five cents less than the agreed price, and would retain the amount until the other nine car-loads were delivered; but that D. might draw on them against future shipments. D. insisted upon payment for the load delivered, and refused to send more barley until payment was made, but offered to deliver the balance if payment was made. No more barley was delivered, and D. sued for the price of the one car-load. Held, (1) that there was an express warranty that the barley to be delivered should be equal to the sample, for the breach of which W. & Co. were entitled to damages; and (2) that the contract was severable, and the failure to pay for the carload delivered was not a rescission thereof, and did not entitle D. to rescind it, and that W. & Co. were entitled to damages for D.'s failure to deliver the remaining car-loads. Defendants having been induced to enter into the contract, and the delivery of the carload in question having been made, plaintiffs must be held to have warranted that the grain corresponded in quality with the sample. If there had been no warranty of the property, defendants, if they elected to keep it, would have been bound to pay the contract price. This is the well-settled rule in such cases. See

Reed v. Randall, 29 N. Y. 358; Gaylord v. Allen, 53 id. 515; Dounce v. Dow, 64 id. 411; Gilson v. Bingham, 43 Vt. 410; Allison v. Vaughn, 40 Iowa. 421. But it is equally well settled in this State that where there has been a warranty of the quality of the goods, and a failure of such warranty, the vendee may retain the property and sue on the warranty. Aultman v. Theirer, 34 Iowa, 272; Rogers v. Hanson, 35 id. 283; McCormick v. Dunville, 36 id. 645; King v. Towsley, 19 N. W. Rep. 859. The rule established by the de cided weight of authority, both in England and this country, is that rescission of a divisible contract will not be allowed for a breach thereof, unless such breach goes to the whole of the consideration. Freeth v. Burr, L. R., 9 C. P. 208; Mersey Steel & Iron Works v. Naylor, L. R., 9 Q. B. Div. 648; Simpson v. Crippin, L. R., 8 Q. B. 14; Newton v. Winchester, 16 Gray, 208; Winchester v. Newton, 2 Allen, 492; Sawyer v. Railway Co., 22 Wis. 403; Burge v. Cedar Rapids & M. R. Co., 32 Iowa, 101; Hayden v. Reynolds, 54 id. 157; S. C., 6 N. W. Rep. 180. See also the collection of authorities in the note to Norrington v. Wright, 21 Am. Law Reg. 395. Neyer v. Wheeler. Opinion by Reed, J.

[Decided Dec. 11, 1884.]

SLANDER- - CHARGE OF CRIME - JUSTIFICATION — PROOF BEYOND A REASONABLE DOUBT.-In an action of slander for charging plaintiff with the commission of a crime, when the defendant justifies be need not establish beyond a reasonable doubt that the plaintiff committed the crime in manner and form as pleaded. The court instructed the jury that the defendant must established beyond a reasonable doubt that the plaintiff did commit the crime of larceny in manner and form as the defendant had pleaded. This instruction is in accord with Bradley v. Kennedy, 2 G. Greene, 231; Forshee v. Abrams, 2 Iowa, 571; Fountain v. West, 23 id. 9; Ellis v. Lindley, 38 id. 461. Logically these cases were much shaken by Welch v. Jugenheimer, 56 Iowa, 11. It is logically impossible to say that one rule should obtain when an action is brought to recover damages caused by the commission of the crime of arson, and another in an action brought to recover damages for slander charging such crime, and when the defendant pleads justification. If an action had been brought to recover the value of the wood alleged to have been stolen in this case, the plaintiff in the action would be entitled to recover if he established the fact that the wood had been stolen by a preponderance of the evidence. Logically the same rule must apply when the same party asserts and relies on the same facts in any other civil action where the right of recovery or defense is asserted. Bradley v. Kennedy, 2 G. Greene, 231; Forshee v. Abrams, 2 Iowa, 571; Fountain v. West, 23 id. 9; and Ellis v. Lindley, 38 id. 461, overruled. Riley v. Norton. Opinion by Seevers, J. [48 Am. Rep. 673; 7 Abb. N. C. 357. -ED.]

[Decided Dec. 9, 1884.]

dor of the property, but he alleged that plaintiff took the notes subject to his counter-claim, and he sought to set off the amount of his damages against the notes in its hands. The burden was on him to establish the amount of damages which he sustained in consequence of the failure of the warranty, and this he has not done. The measure of his damages is the difference between the value of the property as it actually was, and what its value would have been had it been as warranted. Pitsinowsky v. Beardsley, 37 Iowa, 9; McCormick v. Vanatta, 43 id. 389. J. J. Case Threshing Machine Co. v. Haven. Opinion by Reed, J. [Decided Dec. 10, 1884.]

CONTRACT-PUBLIC POLICY — AGREEMENT NOT TO UPHOLD WILL.-An oral contract entered into by an heir and the father and grandfather of an infant legatee, providing that the heir shall pay the amount of the legacy if the others would not do any thing to uphold the will, and so defeat provisions made for other legatees, is without consideration, contrary to public policy, and void. Gray v. McReynolds. Opinion by Rothrock, C. J. [See 30 Am. Rep. 383.] [Decided Dec. 13, 1884.]

VENDOR AND VENDEE-LIEN

OF VENDOR-PRIOR

ITY OF JUDGMENT. Whether a judgment lien takes precedence of a vendor's lien, where the judgment creditors have taken judgment in ignorance of the vendor's lien, appears to be an open one in this State. It was held in Allen v. Loring, 34 Iowa, 499, that the lien of an attachment takes precedence of a vendor's lien, where the attaching creditor acquired his lien without notice of the vendor's lien; and Gilman v. Dingeman, 49 Iowa, 311, there is an intimation that the same rule would apply in favor of the holder of a judgment lien. In Porter v. City of Dubuque, 20 Iowa, 442, it was said: "The right to a lien in favor of a vendor, upon real estate sold to a vendee, is not based upon contract, nor is it properly an equitable mortgage; neither can it be regarded as a trust resulting to the vendor by reason of the vendee holding the estate with the purchase-money unpaid. It is a simple equity raised and administered by courts of chancery." In Allen v. Loring the court, in speaking of the vendor's lien, says: "It is never allowed to override or take priority of equities or rights of third persons which have attached in ignorance of such vendor's lien." In 3 Pom. Eq. Jur., § 1253, the author says: "Whether the grantor's lien is or is not superior to that of subsequent judgments recovered against the grantee, is a question upon which the American decisions are in direct conflict. On principle however, and especially when considered in connection with the universal system of registry, it seems to me clear that the subsequent judgment liens are entitled to precedence." See also Johnson v. Caw. thorn, 1 Dev. & B. 32; Roberts v. Rose, 2 Humph. 145; Gann v. Chester, 5 Yerg. 205; Gilmau v. Brown, 1 Mason, 192. While we do not regard the question presented as entirely free from doubt, we have to say that we think that the rule which subordinates a vendor's lion to a judgment lien acquired without notice is the better rule. A person who has a claim upon two funds as security cannot be required to exhaust one in preference to the other, except where it can be done without injustice to him. Clarke v. Bancroft, 13 Iowa, 320. Cutler v. Ammon. Opinion by Adams, J. [Decided Dec. 9, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

MECHANICS' LIEN-MUNICIPAL PROPERTY-WATERWORKS-PRIORITY-SUBCONTRACTOR AND SURETY OF

CONTRACTOR.-Section 3314, Rev. Stat. 1878, authorizing a mechanic's lien, does not extend to a building or machinery placed in a building constituting a part of the water-works of a municipal corporation. The public inconvenience which would result from having such machinery removed is too obvious and grave to require any discussion. The comfort, health, safety and property of the citizens would be greatly endangered by allowing the facilities for procuring water to be suspended, even for a short period. In view of the serious consequences which would result by allowing the lien to attach to machinery thus used, and which more than countervail any private advantage, we are inclined to hold that the provision does not apply in the case before us. True the city has paid into the court the price of the boilers; but suppose it had not done so; if the lien is given they might be removed. Consequently on grounds of public necessity and convenience, we must hold that the lien did not attach. The case stands upon the same ground as where material is furnished for a county court house, jail, public school building, or other public building, which are held to be exempt from the operation of mechanic's 'ien laws. See Phil. Mech. Lien, § 179, and cases cited in the notes; also Leonard v. City of Brooklyn, 71 N. Y. 498; 27 Am. Rep. 83; Board Com'rs v. Norrington, 82 Ind. 190; Board Com'rs v. O'Conner, 86 id. 531. In Burnham v. City of Fond du Lac, 15 Wis. 193; Buffham v. City of Racine, 26 Wis. 449; Merrell v. Campbell, 49 id. 535, it was held that a municipal corporation was not subject to the ordinary process of garnishment. In 1873 the Legislature enacted chapter 150, which is very nearly the same as section 3328, Rev. St. This section gives the subcontractor who has done work or furnished material to any principal contractor for the construction and repair of any building or machinery for any county, town, city, village or school. district an action therefor against such principal contractor, and such county, town, city, etc., jointly for the recovery thereof. "But no judgment shall be rendered against any defendant therein other than such principal contractor, for any amount greater than the amount due from it to such principal contractor at the time of the commencement of such action." On rendition of judgment in such action against the principal contractor, the court may also render judgment against the county, town, city, etc., for the amount due from it to the principal contractor, when the suit was commenced, or to a sufficient amount to pay the judgment recovered against the principal contractor, and payment thereof shall discharge its indebtedness to such principal contractor for the amount paid. In Klaus v. City of Green Bay, 34 Wis. 629, the remedy thus given was consid ered to be in the nature of a garnishment proceeding against the political corporation or municipality, where it could discharge its indebtedness to the principal contractor by paying the subcontractor the amount due him from such principal contractor. But the subcontractor is expressly limited in his recovery to the amount due from the municipal corporation to the principal contractor when the suit was com menced. In this case the court finds that the city of Madison was not indebted to the Libbeys at the time of the commencement of this action. The correctness of this finding is not questioned; therefore there could not be any recovery against the city in this case. Raduenz v. School Dist., 42 Wis. 397. Wilkinson v. Hoffman. Opinion by Cole, C. J. 33 id. 116.-ED.]

[Decided Dec. 16, 1884.]

[See 37 Am. Rep. 189;

STATUTE OF FRAUDS-CONVEYANCE BY FATHER TO SON. Where a father executes a deed of conveyance of his real estate, and a bill of sale of his personal