In 1824 an act was passed by the territorial legislature "for the support and regulation of mills," with the following preamble: "Whereas the erection and support of mills to accommodate the inhabitants of the several parts of the territory ought not to be discouraged by many doubts and disputes, and some special provisions are found necessary relative to flowing adjacent lands, and relative to mills held by several proprietors; therefore be it enacted," etc. The statute then proceeds to authorize steps to use lands in all cases where necessary to raise water to a suitable head for any mill whatever; and the parties damaged were compelled to become moving plaintiffs, and required to have their damages assessed by an inquest made once or oftener as they should choose. This law was repealed in 1828. From that time up to 1850 very many special acts were passed authorizing particular dams to be made and prescribing such locks, sluiceways, or other conveniences as might prevent obstructions to the use of the streams for other purposes. Among all these there were only two which provided for any flowing without the consent of land-owners. Those two were passed in 1834 and 1835, concerning certain dams on Fox and Manitoowoc rivers, in what is now Wisconsin. L. 1834, p. 32; L. 1835, p. 55. The state of Michigan never gave any authority to flow lands without consent, until it was attempted, in 1865, by the law superseded by that of 1873 now in controversy.

The original enactment, as well as the repeal of the law of 1824, can be readily understood when considered in the light of the condition of the times of which we must take judicial notice. The territory was then in a state of almost complete isolation. Until the Erie Canal was completed, the expense of bringing steam machinery so great a distance would have been ruinous, and in the condition of the local roads it would have been impracticable. Emigrants were coming in rapidly, and mills were necessary for their existence. Towns could not be maintained, or even built without them. Water-mills were the only ones of any utility in such communities, and their necessity was urgent. They were undoubtedly as indispensable as roads, and in fact very commonly preceded them. The judgment of the legislature was in complete accordance with the facts. The condition of the then remote region of Wisconsin was not entirely different. The fact that the two statutes referring to that country differ so completely from all the rest adopted at the same time, is of itself evidence that there was some peculiar exigency which called for them. It is also to be remarked that the right to build dams on the Fox and Manitoowoc rivers was not in either case the sole purpose of the statutes, which seem to have contemplated them as but part of a system of improvements for the benefits of navigation and the establishment of business at the places named. The dams were only subsidiary.

The declaration of necessity in 1824 was no more significant than the finding that no further necessity existed in 1828, and this was no doubt owing to the introduction of steam. Any stream which is capable of furnishing water-power is still more capable of furnishing water for running steam-machinery, and any one who has the right to use running water at his steam-mills is independent of riparian owners above him. Inability to get a right of flowage by means of a dam may destroy the value of land for a water-mill, but does not even diminish it for any other purpose; and the community can not only get adequate milling facilities without it, but the location of mills can be made much more conveniently than where they could only be placed at certain points on the streams which were not always adapted for towns or easy of access. When the constitution of 1850 was adopted, there had

been, for more than twenty years, a consistent series of legislative declarations that no compulsory flowage was necessary. Such was the universally received doctrine in this state, and any statute to the contrary would have been questioned. In considering the uses which are to be subserved by various improvements, we must regard their public character referred to in the constitution, as it had been practically settled. There is no public necessity for accomplishing unnecessary results. The increase of settlements, and the improvements in machinery, are constantly diminishing the old difficulties instead of increasing them. The choice between steam and water power is now one purely of private economy. The public can be supplied adequately, at all events, and the occasional refusal of individuals to sell the right of flowage can not drive any community into distress. Any ruling which would now uphold the enforced servitude of private property to water-mills, would be in direct opposition to what was evidently meant when the constitution was adopted.

BOOK NOTICES.

PRACTICE, PLEADING AND EVIDENCE, in the Courts of the State of California, in General Civil Suits and Proceedings: Being the Code of Civil Procedure of California, as amended up to the close of the twentyfirst session of the legislature (1876): with full crossreferences, and annotations from the Reports of the various Courts in the United States; and adapted to all States that practice under a Code. By E. F. BUTTEMER HARSTON, of the San Francisco Bar. San Francisco: A. L. Bancroft and Co. 1877.

The Codes of California came into force on the first of January, 1873. The last edition of an annotated practice act appeared in 1868, and consequently the present work will, we are sure, be heartily welcomed by the profession of the Pacific Coast. The author claims to have taken the Code of Civil Procedure, as it now stands, as a basis, and to have embodied the results of an entirely independent perusal and study of the codes and other laws, and of the reports of the decisions of the courts of California, and other states. In addition, notes containing the practice in divorce, on habeas corpus proceedings, etc., and the rules of the supreme court, with notes of the decisions thereon, and the law relating to, and rules of, the San Francisco justices' courts, have been inserted. The arrangement is somewhat similar to that of "Wait's New York Annotated Code," but with references to and quotations from the other codes, cross references and a great variety of headnotes "catch-words." The work contains over seven hundred pages, and is divided into four parts, entitled Courts of Justice, Civil Actions, Special Proceedings and Evidence. The first part embraces twenty-two chapters, under five titles, viz: Organization, jurisdiction and terms of courts; judicial officers; persons specially invested with powers of a judicial nature; ministerial officers and persons specially invested with ministerial powers. The remaining parts are equally full; the entire volume evincing great labor and study in its preparation.

or

WAIT'S ACTIONS AND DEFENSES. By WILLIAM WAIT. Albany: William Gould & Son. 1877. This is the first volume of a work of a very comprehensive scope. The purpose of the author is to present the general principles of the law, both legal and equitable, particularly in relation to their application to Actions and Defenses, both at law and in equity, equally adapted to the Code System, and in which the titles are arranged in alphabetical order. After a brief general description of Rights and Remedies, of the general

principles of Contracts and of Torts in Suits in Equity, the author commences with the title of Accident, as viewed in a court of law and in a court of equity (in which, by the way, the leading principles are concisely stated and the leading adjudications, English and American, collected); and this is followed by chapters on Accounting, Adultery, Advancement, Agency, Ancient Lights, Animals, Annuities, Application of Purchase-Money, Assault and Battery, Assets-Administration of, Assignments, Assumpsit, Attorneys, Auctioneers, Audita Querela, Bailments, Banks and Banking, Bills of Lading, Bills and Notes, Bills of Peace, Quia Timet, To Remove Clouds on Title, Bonds, Boundaries, Breach of Marriage Promise, Bridges and Canals. The scheme of the work contemplates several additional volumes to complete, though each is complete in itself, and separately indexed.

The work, though useful to students, is designed for the active practitioner, and is intended to cover the whole domain of practical law. It has been prepared upon the theory that what the lawyer wants and needs in his daily practice is a work which contains nearly every important title in the law, in which the leading principles pertaining to it are stated and arranged and supported, and illustrated by reliable authorities. In this view, and especially to the practitioner who is not equipped with a full library, the work is, in a sense, a substitute, and justifies the statement of the author in his preface, that "it furnishes the young lawyer with a working library." This is sufficient to indicate the general character of Mr. Wait's present work, and we believe it is one which will be found useful to all classes of professional men, but chiefly to those who have not a full library of text-books, digests and reports. Mr. Wait's experience and care and great industry are well known from his previous productions. D.

SELECTIONS.

PAYING THE LAWYERS.-It is frequently asserted that one of the results of the panic and of the protracted hard times has been a marked reduction in the price of all commodities, the necessaries and luxuries of life having alike experienced the effects of the poverty and enforced economy of the people of this country. It is true that the price of whiskey has not perceptibly weakened, that a fiftycent book is still sold for $2, and that a twenty-five-cent package of tobacco is no larger than of yore; true, also, that flour and bread, and meat and coal, and vegetables and milk, tea, sugar and coffee are still sold at the old rates; but, with these trifling exceptions (and some others), the cost of all commodities, needs and services has shrunk so much that it is asserted that, with economy and self-denial, a man may live on one-third less than it cost him during the flush times after the war.

There is one commodity, however, which seems to reverse the general law of poverty, and to rise only the higher on the waves of adversity, and this is the fees demanded by the members of the bar for their valuable services in cases where the fees are paid out of the pockets of the people. Of course, we have nothing to do with the fees paid by individuals for the conduct of their private litigation, if they are paid voluntarily; but in cases where the fees are fixed by order of a court, in cases where estates and minor heirs are victimized, and especially in cases where a city, county, state, or other public corporation is plaintiff or defendant, it has grown to be the custom for the lawyer to estimate his fee, not according to the work required, nor according to the service rendered, but rather according to the rule of the three-card-monte man, who always leaves his victim enough to get his supper with.

We published, the other day, the story of an estate in New York, valued at over a hundred thousand dollars, which was wholly swallowed up in the fees of legal sharks who obtained a warrant of the court to prey on it. Our readers are, doubtless, all familiar with the famous case in

this county in which a young attorney obtained a contract for some $50,000 for something less than a month's work. A week or so ago three members of the St. Louis bar succeeded in convincing the county court that they ought to receive $1,000 apiece as a retainer in a case which will not interfere with their ordinary practice,.their fee in the case doubtless being provided for after the manner of Dodson & Fogg, on spec." For being an amicus curia the charge is $1,500, and we presume that a lawyer, who was called in as a referee to decide whether $1,500 was an excessive fee for an amicus curia, would never dream of taking less than that amount for expressing his opinion.

After we have paid these bills, the amusing part of the performance comes in, in the reflection that nearly all of the lawyers who get fat fees from official politicians (paid out of the sweat and toil of every worker in the community) are themselves politicians, and, when not engaged in pleading before the courts, are never weary of economizing and saving public money by cutting down the salaries of those who work all the year round. A Congress of lawyers has been for some time trying to prove that the chief magistrate of this country ought not to get more than $25,000 a year though no lawyer would think that any one of the counsel in the electoral arbitration would be overpaid, if he should receive that amount for giving his attention to the elec toral question for a week or two. The lawyer who accepts $1,000 as a retainer, places in the charter of the city a provision that no municipal officer whatever shall receive more than $5,000 for his whole year's labor, and that he shall earn this by remaining in his office from 8 a. m. to 5

p. m.

There is no other country in the world, and no other profession, in which such absurd and preposterous demands prevail. If an engineer should demand a fee of $50,000 for building a $700,000 bridge, he would be laughed at; if a doctor should demand a percentage of the millionaire's wealth for saving his life, he would be hooted out of the profession. A great outcry is made whenever an able, learned and devoted divine receives a salary of $5,000 a year, and a railroad president becomes at once a money king and a monopolist on a salary of $10,000. In England the late Queen's Counsel, Hawkins, now promoted to the bench, was reported to make $60,000 a year by his practice, which was looked on as something fabulous; and in France the famous lawyers, who are kept busy all the year round and employed from one end of the country to the other, never aspire to a larger emolument. As we have said, it is no public concern what fees are paid in private litigation; but at a time when every relief from taxation is so eagerly sought, we have a right to demand that these outrageous and inexcusable extortions shall cease, and that the judges who have sanctioned them, the officials who have awarded them, and the distinguished lawyers who have pocketed them, shall be brought up very sharply before the bar of public opinion, and straightway restrained within the limits of reason.-[St. Louis GlobeDemocrat.

TRUSTS AND Trustees-WHEN EQUITABLE FOLLOWS LEGAL ESTATE-FRAUDULENT TRANSFERS-PARTIES IN PARI DELICTO-EVIDENCE.-When stocks are transferred by one person to another, in the absence of any evidence tending to prove that such stocks were assigned in trust, for the benefit of others, such a trust will not be presumed; but it will be presumed that the equitable follows the legal title. "A transfer, either of real or personal property, made with a view to defraud the creditors of the grantor, although the grantee has participated in this intent, is good between the parties and void as against creditors only, or, to speak accurately, is voidable by creditors at their election." [Quoting from Harvey v. Varney, 98 Mass. 120.] A conveyance can not be impeached by the administrator or by the heirs. [Citing McLaughlin v. McLaughlin, 16 Mo. 242; George v. Williamson, 26 Mo. 190; Merry v.

Fremon, 44 Mo. 518.] Appellants apply to a court of equity for affirmative relief in the establishment of a trust in favor of plaintiffs, as against defendant, Lyle, in relation to stocks originally assigned to defraud creditors. Held, no error to exclude evidence of conversations held by alleged trustee some months after the transfer of the stock. Nor in excluding a release, by alleged cestuis que trust of certain notes given for the stock, when the same was delivered to alleged trustee. Plaintiff not having established the trust, is not entitled to relief asked. Judgment affirmed. Opin. ion by Hayden, J.-Crawford et al v. Lyle.

RULES OF COURT-FRAMED ISSUES-SEPARATE ESTATE OF FEME SOLE-CONTRACTS OF MARRIED WOMAN-LEASE -SEALS.-When the rules of circuit court require framed issues for submission to the jury in chancery cases, to be presented to the judge two days before the trial, it is not error for the court to refuse to submit issues of fact to a jury in a case where this is not done. The courts may, in certain cases, submit such issues to a jury; but it is a mistake to suppose that they must do so. In reference to her separate estate, a married woman is treated as a feme sole, and the making of a written contract by her raises the presumption that she intended to bind such estate. A contrary intention must appear by the instrument itself, and can not be shown by parol. [Citing Met. Bk., St. Louis v. Taylor, 62 Mo. 338.] A lease need not be under seal; and when there is a seal, it may be treated as surplusage. Parol authority or ratification is sufficient for the execution of a lease by an agent. [Citing Shuetze v. Bailey, 40 Mo. 75.] A deed to a married woman, in which the habendum clause is "to her, for her sole and separate use, benefit and behoof, separate and apart from her said husband, and for her heirs and assigns forever, with powers by her deed duly executed and joined in by her said husband to encumber, sell," etc., gives her complete power of disposition, with or without her husband joining. [Citing Kimm v. Weippert, 46 Mo. 535.] Judgment aflirmed. Opinion by BAKEWELL, J.-Gay v. Ihm.

TRUSTEE IN DEED OF TRUST-SUBSTITUTION OF SHERIFF -DISCRETION OF COURT-CONSTRUCTION OF STATUTE— WAG. ST., P. 1347, § 1.—Upon affidavit filed and proofs adduced under § 1 of the act relating to trusts and trustees, (Wag. St., p. 1347), the circuit court made an order substituting the sheriff as trustee in a certain deed of trust in lieu of appellant, who had refused to act. Motion filed by the trustee so removed to set aside the order, denying his refusal, but that disputes had arisen in regard to the validity of the deed; that before he had learned of the substitution, he had filed a petition in court, asking directions in the execution of the trust, which matter was still pending; that no notice had been given appellant of intended substitution. Upon hearing the motion to set aside the order, the same was overruled, and appeal taken to this court. The question as to whether this is an order from which appeal will lie, is not raised, but question submitted on its merits. Held that, conceding the facts to be as stated by appellant in his petition, it was not the duty of the court below to pass upon any such matters. The statute does not contemplate a trial as to equities in a proceeding for substitution, and no notice is requisite, as no substantial rights are to be adjudicated. There is no duty imposed upon a trustee in a deed of trust to intervene in such a proceeding; and if he does so, he can not call upon the court to settle equities between the parties beneficially interested. The law has provided ample remedies for the preservation of their rights. He is a trustee of a naked trust, and may be removed at the discretion of the court, in the exercise of its equity powers, and, except in case of gross abuse of power, its action is not the subject of review. [Citing Ex Parte Knust, 1 Bailey S. C. Ch. 489; Rowley v. Van Benthuysen, 16 Wend. 369; Howard v. Waters, 19 Md. 529.] Judgment affirmed. Opinion by HAY DEN, J.-In the matter of Chamberlain.

IN a late case, Edington v. Mutual Life Ins. Co., New York Court of Appeals (Nov. 14, 1876), it is held that under the statute of that state, forbidding a physician from disclosing any information he may receive necessary to enable him to prescribe for a patient; the evidence of several physicians, including defendant's medical examiner, who had attended the insured professionally, and which was offered to prove that he had numerous diseases, their information in regard to which being obtained while in attendance upon the insured, was properly excluded.

REQUISITES OF RECORD IN CRIMINAL CASES.-In criminal cases the record must show that there was an arraignment of the defendant and a plea to the indictment before the jury was sworn, or the judgment will be reversed; and the omission of the arraignment and plea can not be cured by a subsequent arraignment and plea, and a nunc pro tunc entry of the fact, after the jury has been sworn.-State v. Montgomery.

PLEA IN ABATEMENT-SECOND INDICTMENT.-Where a plea in abatement to an indictment avers in direct and positive terms that the indictment on which defendant is tried is a first indictment, and that a second indictment has been found for the same matter charged in the first, it is error to overrule the plea, and the judgment of conviction thereon must be reversed. The first indictment is suspended by the second, and should be quashed.-State v. Cheek.

COMMON CARRIERS.-When goods intrusted to a railroad company (as fruit trees) are frozen and injured by unnecessary delay on the part of the carrier in transporting and delivering them, the owner is entitled to recover the value thereof. Testimony of a witness in regard to the trees, that "if they had been shipped that evening, as promised by the agent, they would have gone through all right," is not a mere opinion of the witness, but is the statement of a fact.-Vail v. Pacific Railroad.

INSTRUCTIONS WHICH ARE CONTRADICTORY OF EACH OTHER, OR OF THE REcord, Ground for REVERSAL.When the instructions given by the circuit court are manifestly contradictory, or antagonistic, the judgment will be reversed. Where the record states that the parties offered evidence tending to sustain their respective sides of the issues made, and one of the issues was whether there was an agreement to give bond, an instruction that "there is no evidence that the bond was mentioned," is a good ground for reversing the judgment.-Boynton v. Miller.

LANDLORD AND TENANT-ACTION FOR RENT AND FOR POSSESSION-JURISDICTION.—The complaint set forth a leasing of mineral lands, the rent reserved being one-fourth of the mineral taken out: 32,000 pounds of mineral were taken out, one-fourth of which belonged to plaintiff, and none was paid over. Held, that this was a sufficient statement of "the exact amount of rent due"; and, that plaintiff's case was improperly dismissed in the circuit court on the ground that the amount demanded exceeded the justice's jurisdiction, as there was no proof offered of the value of the 8,000 pounds of mineral claimed by plaintiff as rent.Cook v. Decker.

STATUTE OF LIMITATIONS-DEED TO VOLUNTARY ASSOCIATION.-In computing the ten years, which are a bar to real actions under our statute of limitations, four years must be deducted from the actual time, in the case of one who was a resident of the state of Arkansas during the war; and where the bar of twenty-four years is set up, the title of the owner draws with it the legal possession, if the land remains unoccupied, and there need be no entry of the owner, and no formal assertion of title, while the land remains unoccupied. A deed to a voluntary association of persons (who have never been incorporated), or to the "board of directors" of such an association, passes no title, and such a deed does not constitute an outstanding title. Opinion by NAPTON, J.-Douthell v. Stinson.

SHERIFF-ACTION FOR FALSE RETURN-DEFENSE NOT PLEADED NOT ADMISSIBLE.-In an action against a sheriff for false return, and for releasing property taken in execution, defendant answered that the property levied upon belonged to "a person other than the defendant in the execution"-the execution-debtor's wife. On the trial it was proved that all of the property of both the defendant in execution and his wife was worth less than $150, and judgment was rendered for defendant on the ground that the

property levied on and released was exempt from execution. The judgment is reversed because, to make this defense available, it must have been set up in the answer, and made an issue in the pleadings.-Kiskaddon v. Jones.

COUNTY WARRANTS-STATUTE OF LIMITATIONS.— The treasurer of Barton county applied for a mandamus to compel the justices of the county court to await and allow on his settlement certain county warrants which the collector had received for taxes of the holder and paid over to the treasurer. Defendant answered that the warrants were more than ten years old when the collector took them for taxes, and were barred by the statute of limitations. Held, that the taking up of the warrants by the collector for taxes, and the handing of them over to the treasurer, was a payment of the warrants; that, under the statutes of this state, the collector and treasurer had no power to refuse to take the warrants for taxes, and that the mandamus asked for should have been answered. (Quære.) Whether the statute of limitations is a good defense to a suit against the county on warrants until there is money in the treasury to pay them? Opinion by NAPTON, J.-Logan v. Justices of the Co. Court.

AMENDMENT ON APPEAL-CHANGE OF CAUSE OF ACTION-VERBAL PROOF OF WRITTEN CONTRACT.-On ap. peal from the probate court to the circuit court, the appellate court may properly allow any amendment that does not change the cause of action; and, where plaintiff bought land from defendant's intestate, on a contract to pay $250 per acre for 17 acres, and at that rate for all over 17 acres, and was to receive back, at the same rate, if there should be less than 17 acres, and on a survey it was found that there was 2 14-100 acres less than the 17 acres paid for, and the claim was expressed in the probate court to be for 2 14-100 acres at $250 per acre, an amendment made in the circuit court, which stated the claim to be for money overpaid on the purchase of the land, owing to the deficit of 2 14-100 acres, was not a change of the cause of action. On proof that the written contract had been deposited with a young, unmarried man, occupying the same office with defendant's intestate, and that the young man had died, and that it was not known where the contract was, the court properly admitted proof of its contents.-Hunt v. Boulton's Adm.

EJECTMENT-EQUITABLE DEFENSE-LIS PENDENS.— A died, seized of real estate, which was sold in partition, and upon such sale the deed was made to B for the premises. Other heirs of A brought suit to set aside the decree in the partition suit, and cancel the deed to B, on the ground of fraud, and a demurrer was filed to this petition, which demurrer was sustained in the court below and judgment rendered thereon for B and the other defendants, from which judgment appeal was taken to the supreme court, where the judgment was reversed and remanded, and, in due course of law, a decree was rendered setting aside the first decree of partition, and to cancel the deed made to B, and for partition, and under this decree the sheriff sold and conveyed to the defendant's grantor. After the judgment on demurrer had been reversed in the supreme court, and while the case was still pending in the court below, A executed a deed of trust upon the premises under which there was a sale, at which the plaintiff bought the land, or rather the title of B, and then instituted this suit in ejectment. Held, that plaintiffs acquired by purchase under the deed of trust only such title as B had, and that the effect of the pendency of this suit, altered by the fact that, upon the reversal of the judgment on demurrer, the mandate of the supreme court did not reach the lower court until several days after the execution of the deed of trust by B. O'Rielly v. Nicholson, 45 Mo. 160; Turner v. Babb, 60 Mo. 342. Nor is it any objection that the land-court not only set aside the decree and canceled the deed to B, but proceeded, without the appointment of commissioners, to ascertain the rights of the parties, and decree a sale and distribution of proceeds. For the land-court possessed equitable powers, and the doctrine is too well settled to be called in question, that when a court of equity once acquires jurisdiction of a cause, it will not relax its grasp until it shall have avoided a multiplicity of suits, by doing full and complete justice in the premises. Besides, the equity jurisdiction in partition cases is an ancient one, and is not curtailed nor ousted by the statute of partition, since the act contains no words in exclusion of equity jurisdiction. [Corby v. Bean, 44 Mo. 379; Rozier v. Griffith, 31 Mo. 171; Keeton v. Spradling, 13 Mo. 321; Primm et al. v. Raboteau, 56 Mo. 407; McDaniel v.

Lee, 37 Mo. 204; 1 Story Eq. Jur., § 64, K. 71; Russell v. Clark, 7 Cranch, 69; Armstrong v. Gilchrist, 2 Johns., cas. 424; Lerdy v. Veeder, 2 Cain. Cas. in Err. 175; Smith v. Sutton, 24 Gratt. 191; 1 Story Eq. Jur. § 658 and cases cited; 1 Story Eq. Jur., § 646, and cas. cit.; 1 Story Eq. Jur., § 64, 1, 80; Stewart v. Caldwell, 54 Mo. 536; Pratt v. Clark, 57 Mo. 189]. Opinion by SHERWOOD, C. J.-Real Estate Savings Inst. v. Colloricus.

ATTACHMENT JUDGMENTS ENTITLED TO SHARE IN DISTRIBUTION OF PROCEEDS OF PROPERTY ATTACHEDPROCESS, WHEN RETURNABLE.-1. The statute that all judgments in attachments against the same defendant returnable at the same term, etc., shall share pro rata in the proceeds of the property attached, either in the hands of a garnisher or otherwise, applies to a suit by attachment commenced within ten days of the same term to which the other writs are returnable. 2. Where ten days do not intervene between the commencement of a suit, whether by attachment or summons, and the first day of the next term of the court, the plaintiff has his election to have the process made returnable to the next term or to the succeeding term; but if it is made returnable to the first term, the cause will be continued. Opinion by ScoгT, J.-Mechanics' Savings Institution v. Givens et al.

MANDAMUS TO COMPEL COUNTY BOARD TO BUILD JAIL.-1. If a county board should fail and refuse to provide any kind of a jail in which to confine prisoners, and it is made clearly to appear that the finances of the county are such as to justify the construction of one, the duty enjoined on the board by statute may be enforced by mandamus; but the court can not interfere with the discretion vested in the board as to the kind of a jail to be provided. 2. The county board, under the statute, have the sole power to determine the size, cost and quality of the materials of which county jails shall be constructed. In this, and various other respects, they are invested with a discretion as to which the courts have no power to interfere. 3. When a board of supervisors have provided a county jail, the court, on an application for a mandamus, can not inquire into the fact whether it is suitable or in suitable repair; but this is a question for the board to decide. Opinion by CRAIG, J.— People v. Supervisors of La Salle County.

NEGLIGENCE OF A CITY IN PROVIDING HITCHINGPOSTS-WHEN RECOVERY MAY BE HAD.-1. If there be any duty resting upon a city in regard to the sufficiency of hitching-posts it may provide, it is not bound to see that absolutely safe posts are set, and no more than ordinary care in the selection and setting of them is required. If they are such as would be reasonably sufficient, under all ordinary circumstances, for the purpose intended, the city will not be liable for injury caused by the breaking of one by a team fastened to it, and its running over a person. 2. When a horse with a cutter became frightened and ran away, and in passing where a team was hitched to a post, set by a city for a hitching-post, frightened the team and caused them to break the post and run, and they, after running some distance, ran over a person in the street and injured him, it was held, in an action by him against the city, that the injury was too remote and was not the proximate consequence of the defect in the post, and that the city was not liable. Opinion by SHELDON, C. J.-City of Rockport v. Tripp.

MARRIED WOMAN-POWER TO CONVEY MORTGAGE WITHOUT HUSBAND JOINING-LIEN IN EQUITY UPON HER SEPARATE ESTATE.-1. The laws relating to the conveyance of real-estate not being changed by the Married Woman's act of 1861, a mortgage given by a married woman

living separate from her husband, upon her real estate, to secure the payment of the purchase-money of other property bought by her, her husband not uniting therein, as a conveyance is void. 2. The execution of a mortgage by a married woman alone upon her separate property, may furnish a satisfactory ground upon which a court of equity may properly establish a lien upon it; but if this is done, the lien will have no retroactive operation, so as to affect prior rights acquired after the execution of the mortgage. The lien will operate upon the property in its condition at the date of the decree. 3. When a married woman, without her husband, executed a mortgage upon her real estate, and afterwards the same was sold under a proceeding to enforce a mechanics' lien for improvements thereon, it is error, on foreclosure of the mortgage, to declare it the prior lien. Opinion by DICKEY, J.-Lewis v. Graves.

PRACTICE TRIAL WITHOUT SIMILITER POSTPONEMENT-SECONDARY EVIDENCE. 1. The similiter to a negative plea can be added by the defendant, if he chooses, and there is no error in proceeding to trial without it. Going to trial without objection is a waiver of the right to insist upon its being added. 2. When a defendant is summoned, it is his duty to be present when his case is called for trial in its order, without further notice, and an affidavit for a postponement of the trial on account of his absence, which shows no just reason for his absence, and fails to show that there are any facts that can be proved by him, which can not be by other witnesses, is wholly insufficient. 3. When a postponement of a trial was asked until a certain hour, to procure the attendance of the defendants as witnesses in their own behalf, and refused, and the trial extended beyond the hour, and one of the defendants arrived after the hour and testified, it was held no error in refusing the request. 4. There is no error in refusing parol evidence of the contents of a letter when the preliminary proof does not clearly show it is either lost or destroyed, and not in the power of the party to produce it. 5. When a verdict is authorized by the evidence, and any other would be unwarranted, a judgment on it will not be disturbed for error in the instructions. Opinion by SCHOLFIELD, J.-Lundy t. Pierson et. al.

TROVER-RIGHT OF ACTION-LEASE-PROOF OF CONVERSION-MORTGAGE.—1. In trover it is essential that the plaintiff, at the time of the alleged conversion of the property, have not only the right of property in the chattel, but also the right to its immediate possession. 2. If at the time of an alleged conversion, by refusal to give possession, the property is leased to a third party, whose term has not expired, even the owner can not maintain trover, as he has no right to possession. 3. When the proof fails to show that the defendant ever had the actual possession of a chattel, or in any way prevented the plaintiff from using the same, but shows that, while it was leased by the plaintiff, the defendant purchased the same at a sale for taxes, and before the lease had expired, the defendant refused to part with his claim, this will not establish a conversion. 4. If the plaintiff in trover claims title to an undivided half of a mill under a chattel mortgage, and has never made any demand for one-half the property, or for common possession as owner of a half interest, but has demanded the whole before his mortgage became due, and when he had no right of possession, he can not recover. 5. While, as against the intervening rights of purchasers and incumbrancers, complete possession in an officer levying upon personal property for taxes is necessary before the sale, yet as to the party against whom the officer holds the warrant, or any one claiming under him by purchase before the levy or after the sale, possession in the officer is not essential to a valid sale by him. Opinion by DICKEY, J.Forth v. Persley.

COURT TRIALS

ASSESSMENT OF BENEFITS-WRIT OF ERROR TO COUNTY APPEAL SPECIAL ASSESSMENTS - SEPARATE PROCEDURE.-1. In 1874, there being no appeal authorized from the judgment of the county court to the circuit court from the assessment of benefits for public imrovement by cities and towns, a writ of error lies from this court to review the same. 2. An appeal can only be orosecuted from an inferior to a superior court, pursuant to he provisions of some statute expressly conferring the right, and prescribing the terms and conditions upon which it shall be exercised. 3. Sec. 3 of the act to increase the jurisdiction of county courts, in force July 1, 1872, providing for appeals to the circuit court, has reference only to cases in which the county court is given jurisdiction by section 1. 4. Section 44 of the act of 1872, relat

ing to towns and cities, declaring that the laws relating to the collection of taxes, etc., shall be applicable to proceedings to collect special assessments, has no application to a proceeding to condemn property. 5. In a proceeding by a city to levy special assessments upon property benefitted by a public improvement, it is proper to submit the several questions raised by the several objectors to the same jury. 6. The mode to be pursued in selecting a jury in a special assessment case against various lots, is similar to the practice in criminal cases, where several are jointly tried. In such case, each defendant has a right to an equal number of challenges, which he may, if he thinks proper, fully exhaust, as well as the benefit of the challenges of his co-defendant. 7. The plaintiff holding the affirmative in a proceeding to assess benefits, should first pass upon the jury; and this as often as new ones are called to fill the places of those excused, leaving the defendant an opportunity to object as often as new jurors are presented, until their right of peremptory challenge is exhausted. Opinion by SCHOLFIELD, J.-Fitzpatrick et al. v. The City of Joliet.

INSURANCE-CONSENT TO REMOVAL OF GOODS-WAIVER -ESTOPPEL-PRACTICE.-1. It is not indispensable to a recovery for a loss of goods insured, after their removal to a different place, that consent should be first obtained for the removal; a subsequent ratification of the act, with a full knowledge of all the facts, is equivalent to a precedent consent. 2. When the local agent of an insurance company is informed that goods insured have been removed long before any loss occurs, and the company does not elect to cancel the policy and give the assured an opportunity of again insuring, it will be liable for the loss. 3. It would be inequitable to permit an insurance company to maintain that its policy was not binding upon it, and still retain the balance of the unearned premium, when it had positive knowledge of that which it insists effected the forfeiture. 4. A policy of insurance does not become absolutely void on a breach of the implied warranty as to the location of the property embraced in it, as the company may waive any restriction made for its benefit; and when such waiver distinctly appears, the insurer will be estopped from insisting upon that which is inconsistent with what he has said and done and which affects the rights of others. 5. When an insurance company refuses to pay a loss, placing its refusal upon its non-liability in any event, it can not insist, in defense of an action, that the preliminary proof was insufficient. 6. Although a policy of insurance may contain a clause prohibiting a suit for a certain time after loss, yet if the company positively refuses to pay under any circumstances, claiming that it is not liable at any time or in any event, the assured may bring suit at once, as the refusal will render the limitation clause nugatory. 7. When a case is fairly submitted and justice done, the judgment will not be reversed for error in excluding evidence that would not have tended to change the result. Opinion of SCOTT, J.-Williamsburg City Fire Ins. Co. v. Cary.

ASSIGNMENT FOR BENEFIT OF CREDITORS-VOID UNTIL RECORDED.-The act of 1859 (I R. S. 1876, 142) requires that such assignments shall be recorded within ten days after their execution, and shall convey no interest to the assignee until so recorded. Under this statute the assigned property may be legally taken on execution after the date of the assignment, but before the same is recorded. Judgment affirmed. Opinion by PERKINS, J.-Forkner v. Shafer et al.

CRIMINAL PRACTICE-EVIDENCE-INTENTION.-The defendant is a competent witness to testify as to the intention with which he committed the alleged criminal act, and the interest of the defendant goes only to his credibility and not to his competency. It is error to exclude the defendant from stating what his intention was in the commis