withdrew from the jury the determination of a question of fact. In Davis v. Bangor, 42 Me. 522, it was decided that a tree standing upon a cart upon a public way was not an incumbrance for which the town was answerable to a traveler whose horse became frightened and ran away. In that case no notice was taken of any distinction on account of the injury being caused by the fright of the horse at, instead of by a collision with, the supposed defect. Jewett v. Gage, 55 Me. 538, was a case where an individual was held liable for an object in the highway which caused an injury to the traveler by frightening his horse. In Clark v. Lebanon, 63 Me. 393, it was decided that a town is liable where the injury was caused by a horse running away on account of a fright produced by the carriage, to which the horse was attached, coming into collision with a defect in the way. That case strongly resembles the case at bar. There the horse became alarmed through the sense of touch; here through the sense of sight. Each case must depend upon its peculiar facts; and whether a road is or is not out of repair, is a question generally for the jury. But there are certain conditions of a road which can not legally be regarded as defects; such as, because the road is hilly, or not all wrought, or because crowded with persons or teams; and there are other classes of cases where no liability can exist. Illustrations of many such are given in Keith v. Easton, supra. It is not, however, true that a recovery can be had in no case where the injury is caused by the fright of a horse at an object upon a highway. Fear is not a despicable quality in the character of man or beast. "Fear has many eyes.' "Early and provident fear is the mother of safety." It was fear that impelled the traveler in Lund v. Tyngsboro, supra, to leap from his carriage to avoid a dangerous defect in the way, when his safety really depended upon his remaining in the carriage. The passenger who jumped from a coach through fear of his safety, and therefore received an injury, made the same mistake. Ingalls v. Bills, 9 Metc. 1. But in those cases the defect was regarded as the responsible cause of the injury. How far the court would be inclined to admit the doctrine adopted in this discussion, beyond the facts in the case before it, is not now decided. But in no case like this can liability on the part of the town exist, unless the object of fright presents an appearance that would be likely to frighten ordinary horses, nor unless the appearance of the object is such that it should be reasonably expected by the town that it naturally might have that effect, nor unless the horse was, at least, an ordinarily gentle and safe animal, and well broken for traveling upon the public roads.

RECENT LEGISLATION.

MISSOURI LEGISLATURE-SESSION OF 1877.] AN ACT to Provide for the Publication of Notices of Intention to Apply to the Legislature, for the Enactment of Local and Special Laws, and to Provide for the Exhibition of the Evidence of such Publication. Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. No local or special law shall be passed by the legislature of Missouri, unless notice of the intention to apply therefor shall have been published as hereinafter provided.

SEC. 2. Notice of intention to apply for the enactment of local or special laws shall be published in each county or incorporated city or town to be affected by such local or special law, by advertisement in some newspaper, if there be one published in such county or incorporated city or town; and if there be no newspaper published in such county or incorporated city or town, by posting ten written or printed hand-bills in ten public places in said county or incorporated city or town, one of which shall be posted on the court-house door.

SEC. 3. Such notice shall state the substance of the contemplated law, shall be signed by ten householders of the county or incorporated city or town where the same is published, and shall be inserted in four separate publications of such newspaper, the first insertion

of which shall be at least thirty days prior to the introduction of the contemplated bill. Notice given by hand-bills shall be posted at least thirty days prior to the introduction of the contemplated bill; which notice shall be recited in the bill according to its tenor.

SEC. 4. The proof of the publication of such notice shall be made by the affidavit of the publisher of the newspaper in which the same is published, to which shall be attached a copy of the notice. The proof of notice published by hand-bills shall be made by the affidavit of some person who signed the same, to which shall be attached a copy of such notice.

SEC. 5. A copy of the notice required by this act, duly authenticated and proved as herein set forth, shall be attached to the bill before its introduction, and shall be once read in the senate and house of representatives before the bill is put upon its passage.

SEC. 6. The constitution of the state of Missouri, requiring notice of the introduction of local or special bills to be given, and the evidence thereof to be exhibited in the General Assembly before the passage of such bills, and there being no law providing for the publication and proof of such notices, creates an emergency that requires this act to take effect from and after its passage.

SEC. 7. This act to take effect and be in force from and after its passage.

Approved February 7th, 1877.

QUERIES AND ANSWERS.

1. POSSESSION AS NOTICE OF TITLE-MISDESCRIPTION IN DEED.-The article in your issue of the 9th inst., on "Possession of Real Estate as Notice of Adverse Title," suggests this question: In states whose registry laws invalidate unrecorded deeds against subsequent purchasers without notice, what would be the effect of possession under a deed (either recorded or unrecorded), in which the land was totally misdescribed. For instance, A sells to B, misdescribing the land. B records the deed and goes into possession; A subsequently offers to sell the same land to C. The latter, examining the title-books of the county, discovering that A owned and had never conveyed the land, and not knowing that B was in actual possession, makes the purchase. In such a case, can equity reform and correct the mistake in favor of B against C? If so, the registry laws have acted as a snare. Possession is notice of title; but it must be of such title only as the occupant has, and in the case supposed, he has no (legal) title to the land occupied. Possession is also notice of equities; but can it have that effect against the positive provisions of the registry statutes, since, as to the land occupied, no deed has been recorded, nor has the party any such deeds? He is simply occupying without a deed.

[If B's possession was open, notorious, and exclusive, it would seem that C's ignorance thereof was voluntary. The presumption is, that a man of ordinary prudence, in purchasing land, will look not only at the records, but at the land, or, at least, will seek some knowledge as to whether it is occupied or unoccupied. Such inquiry would lead inevitably to the knowledge of the possession of B. After this, to fail in making inquiry as to the nature of B's claim on the land, would be negligence in C. Were the facts of the case, that C knew that B occupied a piece of land in the neighborhood, and being misled by the false description in the deed which B had placed upon record, supposed it to be a different tract from that of which A was the apparent owner, the case would be different. They would have equal rights, and the

POSSESSION OF PERSONALTY-FALSE RETURN.-Where an agent takes wrongful possession of personal property for his principal, and for the purpose of collecting rent due his principal, and when suit is brought by the owner of the property for its possession against the principal, the officer serving the writ finds the property upon the principal's premises, held for the rent by the agent, it is not a false return of said writ, that he has taken the property from the possession of said principal. Judgment affirmed. Opinion by LEWIS, C. J.-Continental Bank v. Lidwell.

CRIMINAL JURISPRUDENCE-HOMICIDE-SELF-DEFENSE -EVIDENCE.-In a prosecution for homicide, where there is evidence tending to show deceased the aggressor, defendant should be allowed to show the violent and dangerous character of deceased. A blow may be repelled before it is received, and may be struck in self-defense when the person is threatened. [Citing State v. Keene, 50 Mo. 357.] Evidence of facts occurring at a time and place distinct from that of the homicide, should have been excluded from the consideration of the jury. Judgment reversed. Opin. ion by BAKEWELL, J.-State v. Freeman.

CONSEQUENTIAL DAMAGES DAMNUM ABSQUE INJURIA.-An action will not lie against a municipal corporation for consequential damages for injuries resulting from the insufficiency of a sewer, or the peculiar manner in which a street is graded, provided there is neither negligence nor carelessness in the execution of the work. [Citing St. Louis v. Gurno, 12 Mo. 415; Schattner v. City of Kansas, 53 Mo. 162; Imler v. City of Springfield, 55 Mo. 119; Wegmann v. City of Jefferson, 61 Mo. 55; Mills v. City of Brooklyn, 32 N. Y. 489; Child v. City of Boston, 4 Allen, 41; McCarthy v. City of Syracuse, 46 N. Y. 94; Carr v. The Northern Liberties, 35 Pa. St. 324; Dill. on Munic. Corp. vol. 2, § 801.] Judgment affirmed. Opinion by HAYDEN, J.-Steinmeyer v. City of St. Louis.

CONSTITUTIONAL LAW-DIFFERENT PUNISHMENT FOR SAME CRIME-CONSTRUCTION OF ACT OF MARCH 5, 1869— HABEAS CORPUS.-That part of the act of March 5, 1869, amendatory of acts establishing a court of criminal correc tion in St. Louis County, which prescribes a different term of punishment for the misdemeanor of criminal abortion than that in the general law, is unconstitutional. Constitution of 1865, 1, 18. The term of imprisonment for the same offense must be the same in all portions of the state. The general law provides imprisonment in the county jail for one year or less, or fine of $500 or less, or both such fine and imprisonment. The special law provides for imprisonment not to exceed six months in the work-house. When a person is imprisoned upon conviction, under the general law, in the county jail for one year, and is released on habeas corpus before the expiration of such term, by a judge of the circuit court, for the reason that his term of imprisonment exceeds that prescribed by the special law, such release is void; and the prisoner is properly in custody under the original commitment, and will be remanded to jail. So ordered. Opinion by BAKEWELL, J.-In the matter of Jilz.

ACTION FOR INJURIES TO WIFE-INSTRUCTIONS BASED UPON EVIDENCE-CONTRIBUTORY NEGLIGENCE OF HUSBAND OF WIFE-EVIDENCE-DUTY OF MUNICIPAL CORPORATIONS AS TO PUBLIC BUILDINGS.-In an action by husband and wife for injuries to the latter, it is not error to refuse instructions asked by the defendant as to contributory negligence of the wife, when there is an entire

absence of evidence upon that point; neither is it error to refuse instructions, correct in themselves, but which are given in another form in other instructions. The husband being merely a formal party, and the action being for injuries to the wife, contributory negligence on the part of the husband would not bar a recovery. Rights of action, growing out of a violation of the personal rights of a feme covert, are her separate property. [Citing Acts 1875, p. 60.] It is not error to refuse an instruction in the nature of a demurrer to the evidence, where there is any evidence tending to support a verdict for plaintiff. The fact that the husband occupied a portion of the falling building, by which the wife was injured, imposed upon her no duty of inquiry into its safe condition. The evidence that defendant occupied the defective building as a market-house was material. It is the duty of the city to maintain its public buildings in a reasonably safe condition. Evidence of the former condition of the portion of the roof not blown off, was competent where the entire roof was connected, and the portion blown off was in a similar condition, when such testimony would tend to prove notice to the city of the unsafe condition of the building. Judgment affirmed. Opinion by BAKEWELL, J.-Flori and Wife v. City of St. Louis.

JUSTICES' COURTS-JURISDICTIONAL FACTS.-The jurisdiction of courts of limited and inferior powers must somewhere appear on the face of their proceedings, or their acts are void. In an action against a railroad for killing cattle, it must appear in what township and county the killing was done, and this jurisdictional fact can not be supplied by amendment in the appellate court. Opinion by SHERWOOD, C. J.-Haggard v. A. & P. R. R. Co.

FORCIBLE ENTRY AND DETAINER-VERBAL LICENSE TO ENTER. - Where plaintiff in possession gave defendant. license to enter, in order to make repairs, and a key to the door, plaintiff can not hold defendant as for a forcible entry by barricading the door, before the repairs were completed, and before a reasonable time for the completion thereof had elapsed, even if the defendant entered by force, the license being unrevoked. Opinion by SHERWOOD, C. J.-Seifert v. Wittington.

PLEADINGS-PETITION MUST SHOW SOME INTEREST of PLAINTIFF IN THE CONTROVERSY, OR LEGAL RIGHT TO USE HIS NAME.-A petition in the name of the State of Missouri ex rel. John Wilson, public administrator, is bad on demurrer, when it fails to show that the state, in whose name the suit is instituted, has any interest, as trustee of an express trust or otherwise, in the controversy, and fails to show that the obligation, on which suit is brought, is one which the law requires to be made payable to the state. [19 Mo. 369; 21 Mo. 112.]-Opinion by NORTON, J.-State to the use of Wilson v. Dodson.

NUISANCE-ACTION FOR DAMAGES.-Where a husband, with his wife and family, occupied a house near a railroad track, and the company, by its engine, killed a horse, and suffered it to remain unburied, in hot weather, until the carcass became offensive and injurious to the occupants of the house, for which the husband might have maintained an action of damages; held, that upon the death of the husband the cause of action did not survive, and that his widow could not maintain the action even for the injury done to herself and children during the husband's lifetime. Opinion by NORTON, J.-Ellis v. St. Joe, K. C. & C. B. R. R.

LIABILITY OF CITY FOR INJURIES FROM STREETS OUT OF REPAIR-CONTRIBUTORY NEGLIGENCE.-It is error to declare, as a matter of law, that the city is bound to keep the whole of a street in repair. The duty of the city in this respect does not arise solely from the existence of the power to repair, but from considerations of public conven

ience and necessity also; and, although a street was partially obstructed, yet, if defendant's negligence was known to plaintiff, and he failed to use ordinary care to avoid injury therefrom, the city is not liable. [Brown v. Mayor and City of Glasgow, 57 Mo. 157; Howard v. Bridgewater, 16 Pick. 189; Smith v. St. Joseph, 45 Mo. 449; Smith v. Union R. R. Co., 61 Mo. 588]. Opinion by HOUGH, J.-Craig v. Sedalia.

SECURITY FOR COSTS - DISCRETION OF THE TRIAL. COURT. Whether plaintiff in any given case shall be required to give security for costs, rests largely in the discretion of the trial-court. But this rule is not without excep tions, and there is a limit to the exercise of this discretion by the trial-court. The theory upon which security for costs proceeds is the ultimate liability and the ultimate inability on the part of the plaintiff to pay them. Where there was an interlocutory decree in favor of plaintiffs, and a reference, from which it appeared that plaintiffs were entitled to $3,658, and the referee had charged them with $3,492, and exceptions to the charges were filed and undetermined when the motion for costs was sustained; held, that the action of the court, in sustaining the motion, was not an exercise of a sound or judicial discretion. Opinion by SHERWOOD, C. J.-Whitsett et al. v. Blumenthal et al.

A SHERIFF APPOINTED TO EXECUTE THE PROVISIONS OF A DEED OF TRUST ACTS IN HIS OFFICIAL CAPACITY— DISCRETION.-Where an act, establishing a court of common pleas, provides that such court "shall have concurrent jurisdiction with the circuit court in all civil actions," such court has power to appoint a sheriff, to carry out the provisions of a deed of trust, under secs. 1 and 2, p. 1347,. Wag. Sts; and when the sheriff is so appointed, he acts officially. A sale made by his deputy is valid; and the sureties on his bond are responsible for his action. Tatum v, Holliday, 59 Mo. 422. Where a motion for a new trial, supported by affidavits (counter-affidavits being also filed), is overruled, this court will not interfere with the discretion of the circuit judge, unless a strong case is made, and it plainly appears that such discretion has been arbitrarily exercised, and injustice done thereby. Opinion by NORTON, J.-State to the use of Reed v. Griffith.

WITNESSES-VERBAL TESTIMONY-JOINT OR SEVERAL DEBT.-The defendants, for a valuable consideration, gave to A a written promise and agreement to pay off and discharge certain enumerated debts owing by A, in which enumeration part of the indebtedness was stated as follows: "And due to B. F. Hinds and J. J. Amonett, amounting, principal and interest, to about $12,000." The plaintiff, Amonett, sued to recover two notes made to him by A, averring that the same were part of the indebtedness provided for by said contract. Held, that the court could not declare, as a matter of law, whether the words abovequoted imported a debt or debts due to Hinds and Amonett jointly, or meant debts due to B. F. Hinds and J. J. Amonett severally, amounting to about $12,000, and that it was proper to show the truth by verbal testimony; and that plaintiff Amonett was a competent witness, although A was dead, the contract having been made between A and the defendants, and not between A and Amonett. Opinion by HOUGH, J.-Amonett v. Montague et al.

ADMINISTRATOR'S SALE-APPOINTMENT OF ADMINIS

TRATOR

DE BONIS NON, TO CORRECT ERROR IN THE DEED-PURCHASE BY THE ATTORNEY OF THE ADMINISTRATOR.—No particular form is prescribed by statute for, and no formal entry is required to be made of, the approval of an administrator's sale of real estate. When the entry in reference to such a sale was "that the report was received, and ordered to be spread upon the record," and no subsequent order of sale was made, and the administrator, in several subsequent annual settlements, was charged with the money arising from the sale, and the whole of the subsequent business of the estate was conducted on the theory that the sale had been approved, an approval will be presumed. Jones v. Manly, 58 Mo. 559. After a final settlement and the discharge of the administrator, the probate court has no power to appoint an administrator de bonis non, for the purpose of having a deed made to correct an error in a former deed made by the administrator; but such a correction is within the remedial power of courts of equity. Houx v. Bates Co., 61 Mo. 392. An attorney of the administrator is not prohibited from purchasing the real estate sold by the administrator under orders of the probate or county court. Opinion by NAPTON, J.-Grayson et al. v. Weddle.

LEX LOCI GOVERNS IN CONSTRUCTION OF CONTRACT ONLY-STATUTE OF LIMITATIONS-GARNISHMENT-EXEMPTION EXTENDS TO NON-RESIDENTS.-1. The lex loci governs in determining the validity and in the construction of contracts, but in respect to the time, mode and extent of the remedy, the lex fori governs. 2. Statutes of limitation fixing the time within which an action may be brought, laws providing for a set-off, and statutes exempting property from levy and sale for debt, or exempting wages from garnishment, relate to the remedy only, and such laws of a state where a debt is contracted can not be invoked where the remedy is sought to be enforced in a different state. 3. The statute of this state exempting twenty-five dollars of wages due a party, who is the head of a family, and resides with the same, from garnishment, is not confined to resi dents of this state, but applies also to wages due a nonresident. Opinion by CRAIG, J.-Mineral Point R. R. t. Barron et al.

TAXES-WHO MUST APPLY FOR JUDGMENT — REPORTNOTICE-HOW COMPLAINTS MAY BE HEARD-EFFECT OF IRREGULARITIES AND OMISSIONS - PRESUMPTIONS AS TO VALIDITY OF TAX.-1. In counties under township organization the county collector, and not the sheriff, is the proper person to make application for judgment against delinquent lands for taxes. 2. A collector's report on application for judgment, which states that it contains the list of lands, etc., upon which remain due and unpaid the amounts levied and assessed for the year 1873, and, also, which remain due and unpaid for which the property was forfeited to the state for the unpaid taxes for the year 1871 and 1872, with interest at ten per cent. and costs, and upon which remain due and unpaid the taxes and special assess ments for the year 1870, together with the names of the owners as far as known, and the total amount due and unpaid on each tract, and which also states that the figures in the column headed, "Total tax," represent the total taxes due thereon respectively, is a sufficient compliance with the statute, as stating the total amount of taxes claimed to be due. 3. The collector may apply for judgment against lands for taxes at the May term, and if from any cause it is not made, or the judgment recovered, at the term, he may apply at any subsequent term, and he may fill the first blank in his notice given in section 182 of the revenue law, with the term to which he makes the application, and the second blank with the Monday on which the sale is to be made. 4. A county board may hear and determine individual complaints against an assessment for taxation through a committee of its members to whom such matters may be referred. And if such committee give notice of the time and place of their meeting to receive complaints and report their action, which is approved by the board, this will be a sufficient compliance with the law. 5. The failure to give the notice, or hold a meeting, by the assessor, supervisor and town clerk, to hear complaint against assessments for taxes, or any other error or informality in the proceedings of any of the officers connected with the assessment, levy or collection, not affecting the substantial justice of the tax itself, will not, under the statute, in any manner vitiate the tax or assessment. 6. In the absence of proof to the contrary, it will be presumed that an assess ment of property for taxation has been properly made, and the tax levied is just and proper, and this especially where no complaint by the party assessed has been made to the township board of review, or to the county board. Opinion by WALKER, J.-Beers v. The People.

SCIRE FACIAS ON RECOGNIZANCE-AMENDMENT-PLEAS OF NIL DEBET AND DENYING JURISDICTION NOT PROPERPLEA OF DURESS-OF PRINCIPAL NOT GOOD AS TO SURETYFALSE REPRESENTATIONS-EVIDENCE UNDER NUL TIEL

RECORD-WHEN RECOGNIZANCE GOOD WITHOUT CAPIASWHAT RECORD SHOULD CONTAIN-JUDGMENT.-1. A scire facias on a recognizance,being both process and declaration, is subject to the same rules of amendment as declarations in other cases. The proceeding is not criminal in its nature, but to enforce the payment of money due on a contract. 2. When a recognizance is returned to and filed in the office of the clerk of the circuit court, it becomes a record of that court, and, therefore, pleas to a scire facias issued thereon, that the defendants did not make and execute the recognizance, and nil debet, are not proper. 3. If the sureties in a recognizance plead to a scire facias thereon that there is no return of nihil indorsed on the writ as to the principal, the court may allow an amendment of the return, and thereby obviate the plea. 4. A plea to a scire facias upon a recognizance that at the time of entering into the recog nizance the principal was not in the legal custody of the sheriff taking the same, upon any indictment, or upon any process of capias ordered to be issued against the principal, by authority of law, is bad on demurrer, as no order is required for issuing a capias against one indicted, and as not showing wherein the imprisonment by the sheriff was unlawful. 5. A surety can not plead the duress of his principal in a recognizance as a discharge of his own liability. 6. A plea by the sureties to a scire facias on a recognizance that the principal and sureties entered into the same under the false and fraudulent representations of the sheriff that the principal was then in his legal custody, and confined in jail under due process of law, whereas such was not the fact, negativing the truth of the representations, is manifestly insufficient, as the representations relate to a legal question of which the defendants are required to judge for themselves. 7. Under the plea of nul tiel record to a scire facias on a recognizance, if the recognizance of record and a judgment of forfeiture is given in evidence, this will be sufficient to authorize a judgment for the people. 8. Where an indictment is found and the amount of bail fixed, and the accused voluntarily comes before the sheriff, without his having a capias, and enters into a recognizance for his appearance, the recognizance will be good and binding. 9. If a sheriff, in a criminal proceeding, takes recognizance for a larger sum than is fixed by the court, it will be a nullity. But this fact 'must be shown in defense. 10. If the clerk copies into the transcript of a proceeding by scire facias the bail fixed by the court on the back of an indictment, it will constitute no part of the record, without being incorporated into the bill of exceptions. 11. The proper course on default in the performance of the conditions of a recognizance is to enter a judgment declaring the same forfeited. It is not required that it should be for the recovery of any sum of money whatever. Opinion by SHELDON, C. J.-Peacock v. The People.

TENANT BY THE COURTESY-PARTITION.-A court has no power to order a sale of land for partition, when one of the defendants interested therein is tenant by the courtesy. -Parks v. Siler.

USURIOUS CONTRACT-HOW TREATED BY COURTS OF EQUITY.-A court of equity is as much bound by the stat ute of usury, as a court of law, and will not allow the lender to enforce his usurious contract. When called upon by the borrower for assistance to protect him, it will give it, but will require him to do equity, by paying the principal money and legal interest.-Beard et al. v. Bingham et al.

CRIMINAL LAW-WHEN CONFESSIONS ADMISSIBLE.— Confessions only which come of penitence, and are voluntary, ought to be allowed to convict. If there be threats of harm, or promises of favor, inflictions of pain, or demonstrations of violence, then the confessions are attributed to such influences, and are not admissible.-State v. Hous ton.

VERDICT RENDERED IN ABSENCE OF DEFENDANT.—A verdict returned by the jury to the clerk, in the absence of the defendant and while the court was taking a recess, was properly set aside on motion of defendant. It was within the power of the court, mero motu, to set aside a verdict so rendered.-Epps' case.

EXTENT OF POWERS OF NOTARIES PUBLIC.-The authority of notaries public residing out of the state is confined to the authentication of commercial paper and to the protesting of bills of exchange and the like. Chapter 76, Battle's Revisal, is confined to notaries resident in the state; those residing out of the state have no authority to verify affidavits to be used in our courts.-Hall v. Hall.

RAPE-FRAUD-INSTRUCTION.-Upon a trial for an assault with intent to commit rape, it is error for the presiding judge to charge the jury "that, before they could find the defendant guilty, they must be satisfied that his intention was to ravish the prosecutrix, to have illicit connection with her by force and against her will, or that he intended to do so by committing a fraud upon her, by falsely personating her husband." The jury should have been instructed to consider whether the defendant's intention was to accomplish his purpose by force, if necessary, or by exciting and soliciting her consent without force, or by fraud in personating her husband, and that in the first view he was guilty, but in either of the others, he was not guilty.-State v. Brooks.

DIVORCE -EVIDENCE-STATUTE CONSTRUED.- Under the statute (2 R. S. 1876, 326, sec. 7) the bona fide residence of the petitioner in the state for two years, and in the county where the petition is filed for at least six months, immediately preceding the filiug of such petition, is a jurisdictional fact which ought to be averred in a petition for divorce, and which must be proven to the satisfaction of the court by at least two resident freeholders and householders of the state, before such court will have any authority to decree a divorce; and the proper averments in the petition, without evidence to sustain them on the trial, are not sufficient to support the decree. Judgment reversed. Opinion by HOWK, J.-Powell v. Powell.

CITY ATTORNEY'S FEES-CITY NOT LIABLE TO PAY DOCKET FEES WORKED OUT.-Under the statute providing that the city attorney "shall prosecute all actions in favor of the city, and defend all actions brought against such city for any cause, but in no case shall the city be liable for costs," the docket fees are to be charged up as costs against defendants in such prosecutions; and when defendants in such prosecutions before the mayor are adjudged to, and do work out the fine and costs, the city does not become equitably bound to the city attorney for the docket fees thus worked out for the city, and an action for their recovery can not be maintained. Judgment aflirmed. Opinion by WORDEN, C. J.-Tuley v. City of Logansport.

EMPLOYER AND EMPLOYEE — CONTRIBUTORY NEGLIGENCE — IMPEACHMENT OF WITNESS.-An employer is bound to give persons of tender years, whom he employs, due caution, explanation and instruction, when he puts them to work in a dangerous and hazardous place, and the mere fact that the employee could have seen that such place was hazardous and dangerous by exercising his faculty of sight, is not sufficient of itself to hold him accountable for contributory negligence; but that is a question for the jury to determine from all the facts. In laying the foundation for the impeachment of a witness, upon the ground that he has made statements out of court different from his testimony, the time when, the place where, and the person to whom such statements were made, must be clearly pointed out. Judgment affirmed. Opinion by BusKIRK, J.-Hartman v. Gust.

WRITTEN DOCUMENT-EXTRINSIC EVIDENCE.-It is not necessarily a fatal objection to the admission of a writing, that, considered by itself and without explanation from extrinsic matters, it is wholly unintelligible. If such extrinsic matters interpret its meaning and show its bearing upon the controversy, it may not only be competent and relevant, but absolutely decisive of the case. Opinion by BREWER, J.-Walters v. Van Derveer.

APPEAL WHEN JUDGMENT WILL BE AFFIRMED WITHOUT ARGUMENT.-Where every legal question involved in a case has already been passed upon by the supreme court in other cases, and when the court below has committed no error for which the judgment of such court can be reversed, such judgment will be affirmed without any discussion of any of the questions involved in such case. Opinion by VALENTINE, J.-Betiman v. Richardson.

FORCIBLE ENTRY AND DETAINER-WHEN AND WHAT NOTICE NECESSARY.-A party desiring to commence an action of forcible entry and detainer should, at least three days before commencing his action, notify the adverse party by a notice in writing, to leave the premises in dispute (Gen. Stat. 810, sec: 161); and if he should not do so, he could not maintain the action. And this notice should show clearly who claims to be entitled to the possession of the premises, and who makes the demand therefor; and then no one, but the person who thus claims the premises and makes the demand, can maintain the action under such notice. Opinion by VALENTINE, J.-Nason v. Best.

ACTION ON RECOGNIZANCE-INFANCY OR PARDON NO DEFENSE.-1. An action on a forfeited recognizance may be maintained against a person who executed the same to procure his own personal liberty, although such person may have been a minor at the time he executed the same, having a guardian for his property, and although he may have executed the same without the consent of his guardian. 2. And such action may be maintained, although the governor may have pardoned the defendant after sentence in the criminal action and before final judgment on the forfeited recognizanee. Opinion by VALENTINE, J.-Weatherwax v. The State.

ACTION ON PROMISSORY NOTES DEFENCE UNDER LIQUOR ACT-EVIDENCE.-1. Where an action is brought upon three promissory notes, and the only defense made is that the notes were given for liquors sold in this state without a license, and the evidence does not tend to prove the defense; held, the court below committed no error in instructing the jury to return a verdict for the principal and interest of the notes sued on. 2. The cases of McCarty v. Gordon, Gill v. Kaufman & Co., 16 Kas. 35, 571, Haug v. Gillett and Williams v. Feiniman, 14 Kas. 140, 288, cited as decisive of the question presented in the case. Opinion by HORTON, C. J.-Snider v. Kæhler.

CONSTRUCTION OF STATUTES DRAM-SHOP ACT.-1. Statutes are not considered to be repealed by implication, unless the repugnancy between the provision of the new and the former statutes is plain and irreconcilable, and, held, that the statute authorizing cities of the third class to license the sale of intoxicating liquors does not repeal the provisions of the dram-shop act of 1868. 2. Different statutes relating to the same subject-matter are to be construed together. 3. Cities of the third class have the power to license persons to sell intoxicating liquors within their limits, subject to a compliance with the provisions of the dram-shop act of 1868. 4. The presentation of a petition to the city council by a person applying for a dram-shop license, as required by section 1 of the dram-shop act of 1868, is an essential condition precedent to the validity of a license to sell intoxicating liquors within the limits of a city of the third class; held, that a license granted by the corporate authorities of a city of the third class, in violation of the provisions of said act, is no protection to the license and is null and void. Opinion by HORTON, C. J.— State v. Young.

ACTION ON PROMISSORY NOTE-DEFENSE of UsURY— ENDORSEE.-Where H executes a promissory note payable to S or order, and afterwards R commences an action thereon against H, alleging that he, R, purchased said note before due for a valuable consideration, and that he is now the owner and holder thereof, but does not allege or show in his petition or elsewhere that said note was ever indorsed or was ever transferred by indorsement, and the defendant sets up in his answer and afterwards proves on trial that said note was given for usurious interest; held, that said defendant set up and proved a good defense to the note; that a note payable to order can be transferred freed from all equities only by indorsement; and that a transferee of such note must allege and prove that the note was transferred by indorsement, if he desires to avoid such equities or defenses as may be set up against it. Opinion by VALENTINE, J.-Hadden v. Rodkey.

NOTES.

ONE BY ONE the thieves of the whiskey-ring are receiving full pardon from the government they so basely betrayed. One by one, with equal certainty and regularity, the gʊvernment officials who faithfully-too faithfully, it would seem-performed their sworn duties in prosecuting those thieves and conspirators, are being removed from office. Not to put it too strongly, this course of action is getting considerably monotonous. Hon. J. S. Botsford, U. S. Dis. trict Attorney for the Western District of Missouri, is the last victim of this singular scheme of rewards and punishments. It will be a serious blow to the public service, when it comes to be fully understood, that to do one's duty zealously, fearlessly, and with effect, will bring down certain and condign punishment upon his head. Such, we confess with sorrow and shame, seems now to be the rule.

WE ARE sorry to have received a notification from the Philadelphia post-office of the suspension of that valuable weekly law journal, the Legal Gazette. The lesson of the failure of the Gazette, to our minds, is this: that, in order to succeed, a law journal must either be first-class in point of merit, and really worthy of the support of the profes sion, or else it must be supported by a heavy list of local advertising. The Legal Gazette had neither of these advan tages. It was a tolerable case reporter; but its value was confined chiefly to Pennsylvania lawyers; and when Messrs. Kay & Bros. started The Weekly Notes of Cases, it became evident that some of the Philadelphia law journals must give way before a superior publication. The Legal Gazette, although being a better publication than its competitor, the Legal Intelligencer, it seems, was the first to succumb, owing, doubtless, to the fact that it was not backed by the court advertising, which appears to have been the chief support of the latter journal.

COTTON TIES.-An interesting decision was rendered lately in the United States Circuit Court for the Southern District of Georgia, in the case of the American Cotton Tie Company v. Groover et al. The case arose on a motion for injunction to restrain the defendants from selling what are known as "Arrow ties." The plaintiff's own the patents for making these ties. It was stated that the defendants had been engaged in selling cotton ties which had been originally sold by the plaintiffs with a stamp on them; that they were "licensed for use once only," which ties had been used once. It was alleged that the parties from whom the defendants obtained their ties were engaged in gathering ties so stamped which had been used once, and then piecing the old band so as to fit them to be used again. It was contended by plaintiffs that this was in violation of plaintiffs' right under their patents. It was also contended that arrow ties, not having these words stamped upon them, were frequently made to counterfeit plaintiffs' ties, and that they were liable to be counterfeited by any one, and that, if defendants sold unstamped arrow ties, they should be required to show that they had been legally pur chased of the plaintiffs, his licensees or vendees. Judge Woods granted the motion asked for, and an injunction was issued ordering that "the defendants be enjoined from selling ties known as the 'Arrow tie,' unless said ties be purchased directly from the complainant or his duly au thorized licensees or their vendees, or vendees of vendees; and from selling ties stamped with the words 'licenses to be used once only,' or words of similar import, after said ties have been used once."