RECENT CASES. 487 the record could not remember it. Held, error. The court, following previous decisions, were of opinion that the witness should be allowed to read the record if her memory failed. People v. Brow, 35 N. Y. Supp. 1009. While not quarrelling with the court's decision that witness might read the attested record, there is another obvious and fundamental objection to the admission of this evi- dence. The teacher was not one in a position to give direct evidence on the point in issue, and whatever she might say would be purely hearsay, and so assuredly inad- missible. A case much like the present in its facts, and correctly decided the other way, is Brain v. Preece, ii M. & W. 773. Evidence — Sabbath-Breaking — Burden of Proof of the Necessity of THE Act. — On an indictment for Sabbath-breaking in working a pump and a fan in a mine on Sunday to keep it free from water and gas, it was held that the burden is on the defendant to prove that the work is one of necessity. Shipley v. State, 33 S. W. Rep. 107 (Ark.). The case seems to proceed on the ground that it is a fact peculiarly within the knowledge of the defendant ; if this were a general principle, a criminal would usually have to prove his own innocence. The true ground would seem to be that the duty of going forward with evidence is cast upon the defendant in order to rebut the natural inference that this is not a necessary operation. Jurisdiction of Supreme Court on Appeal from a State Court. — In an action for damages for ejection of plaintiff from a car, the conductor refusing to receive a worn ten-cent piece in payment of the fare, the jury found a verdict for the plaintiflf. Judgment was affirmed by the Supreme Court of New Jersey. Defendant now appeals to the United States Supreme Court, contending that his right to do so is secured by Rev. Sts., § 709, providing that where any title, right, etc. is claimed under the Constitu- tion or laws of the United States, and the State court decides against such title, right, etc, a writ of error lies to the United States Supreme Court. Held, contention of de- fendant that the coin was not legal tender under the laws of the United States is not a claim to any right under such laws, but a denial of such claim ; therefore the decision of the State court against the defendant is not against such a right so as to authorize a review by the Supreme Court of the United States. Jersey City S' B. P. Co. v. Morgan, 16 Sup. Ct. Rep. 276. It is to be noticed that a coin worn merely by natural abrasion is legal tender. The jury found the ten-cent piece to have been so worn. Defendant, though he denied that the coin was legal tender, did not set up any right under a United States law in ref- erence to the reduction in weight of silver coin by natural wear and tear. As he did not, he could not be said to have been denied any right under the laws of the United States. Municipal Corporations — Liability for Defective Waterworks. — Held, that a municipality which maintains a public system of waterworks under a power con- ferred by the State, is not liable for loss of property by fire caused by defective condition of the waterworks. Springfield Ftre &= Marine Instirance Co. v. Village of Keeseville, 42 N. E. Rep. 405 (N. Y.). See Notes. Partnership — Goodwill — Right of Retiring Partner to Solicit Cus- tomers OF the Old Firm. — The defendant, on becoming a partner in plaintiff's firm, agreed that the goodwill of the business should remain the property of the plaintiff. Held, that plaintiff was entitled, on defendant's retirement from the firm, to an injunction restraining the defendant, his partners, servants, or agents, from applying privately by letter, personally, or by a traveller to any person who was, prior to the dissolution of the firm, a customer of the firm, asking such customer to continue after dissolution of the firm to deal with the defendant, or not to deal with the plaintiffs. Trego V. Hunt, 12 The Times Law Rep. 80. See Notes. Persons — Damages Recoverable in Tort by Married Woman. — v%/^, that, in an action of tort brought by a married woman for personal injuries, her impaired capacity to labor may be considered by the jury in estimating damages. Harmon v. Old Colony P. Co., 42 N. E. Rep. 505 (Mass.). See Notes. Persons — Married Women — Statute of Limitations. — In an action for personal injuries to a married woman where the husband has to be made a nominal party, it was hell that the action was not barred, though the statutory time had elapsed, since married women are expressly given a longer time by the statute. Fink v. Camp- bell, 70 Fed, Rep. 665. This case presents an example of the effect of the removal of the disabilities of married women, without at the same time giving them the corresponding burdens. 2 Wood on Lim. § 240. 64
