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mal shall have been redeemed, to adjudge whether such animal was arrested in accordance with the provisions of this act, and if so, to make an order for the sale of such animal, and direct the same to such constable or marshal, whose duty it shall be to give notice of such sale by hand-bills containing such description of the animal to be sold, and the time, terms and place of sale, which hand-bills shall be put up by such constable or marshal at five of the most public places in the county, township, ward, town or city for which such constable or marshal may be acting, and deliver or send one to any person who such constable or marshal has reason to believe is the owner of such animal. Such sale shall be to the highest bidder for cash at public vendue, and so advertised, for at least four days before the same takes place. Such constable or marshal in the meantime shall securely keep such animal in some place provided by him for that purpose, and feed the same plentifully.

SEC. 3. Whenever any person shall claim such animal so held, and make application for the return of the same before sale, such justice, upon being satisfied that the person so applying is the owner of the same, shall make an order for the delivery of the same to the applicant upon the payment of the costs and expenses incurred, and such justice shall note on the margin of the description kept by him of such animal, the date of such order and to whom given, which entries shall be open for inspection at all times by any person free of charge.

SEC. 4. When such animal is redeemed at any time before sale, such constable or marshal shall give to the party redeeming the same a certificate of redemption, and include in the same a bill of all costs and charges upon such animal, which costs and charges shall be paid by the party redeeming the same, and when a sale shall have been made under this act, he shall give to the purchaser, upon payment of the amount bid, a bill of sale, in which shall be stated the amount of the costs and charges attending the proceedings, which bill of sale shall be in the following form: Sold this day of a domestic animal described as follows: (here copy description in notice) for the sum of dollars, the receipt of which is hereby acknowledged, said sale having been made in conformity with the stock law. Costs and charges, $ -; constable or marshal, and shall be prima facie evidence of the regularity of the proceedings and ownership of the animal, and the owner of such animal at the time the same was arrested shall be entitled to redeem the same any time within six months after the day of sale by paying to the purchaser all costs included in the bill of sale with ten per cent. per annum interest and the other costs, and a reasonable compensation to be determined by such justice for keeping the same; but before the purchaser shall deliver up to any applicant such animal, such applicant shall obtain from such justice a certificate, which shall be noted in like manner as an order to the effect that he is satisfied that such applicant is the owner of the same, and upon presentation of such certificate to such purchaser by such applicant, he shall have the right to redeem such animal, and no person purchasing at such sale shall sell such animal under six months from the date of such purchase under a penalty of double the value of such animal, to be recovered by the former owner in a civil action. And in all proceedings under the act any party demanding the same shall have the right of a trial by jury.

SEC. 5. After any such animal shall have been redeemed as aforesaid, the purchaser at such sale shall be entitled to the remainder of the proceeds of the sale of the same, after deducting the amount of the

costs and expenses paid to said officers, and the owner of such animal at the time the same was arrested shall be entitled to the remainder of such proceeds of sale after a like reduction, unless he shall elect to redeem the same.

SEC. 6. There shall be charged and collected by the officers charged with the enforcement of this act, the following fees; The constable or marshal shall receive for each head of horse, cattle, mule or ass arrested or received by him, as above provided, one dollar, and for each head of swine, sheep or goat, fifty cents, and for the impounding and keeping of each head of the former class, twenty-five cents per day, and the latter class ten cents per day, and a reasonable compensation, to be determined by such justice, for the food given the same, and for advertising and selling the same, the same fees as are allowed for selling under executions from justices' courts. Such justice shall charge and receive the sum of ten cents per hundred words and figures for all records had in the premises, and the same for any other act required to be done by him as may be allowed by law for similar services in other proceedings, and the officer for recording such notice, the same fees as for recording certificates of strays. And any constable or marshal who shall fail or refuse to perform any duty imposed upon him by this act shall forfeit his office, and the tribunal having power to fill such vacancy, shall remove him and appoint another in his place.

SEC. 7. The proceeds of all sales provided for in this act, after deducting the costs and charges herein allowed, shall be retained in the hands of the constable or marshal making such sale, and his successor in office, for the proper payment of which he and his bondsmen shall be responsible, which net amounts together with amounts paid to claimants shall be reported, giving dates of receipts and payments under oath or affirmation by him at the end of every three months, beginning on the first day of July, 1877, to the treasurer of public funds for his jurisdiction, and if such balance of proceeds of any sale remain in his hands for the period of one year, the same shall be paid by him to such treasurer for the use of the public schools, and any failure to pay over any such sum for a period of thirty days after the same shall have become payable by him, shall subject such constable or marshal and his sureties to the payment of the same, and interest at the rate of ten per cent. per month, and an action shall be prosecuted for the pay. ment of the same in the name of the State of Missouri for the use of such school fund.

SEC. 8. If any animal, the owner of which resides in a county adjoining St. Louis County, and keeps such animal in such adjoining county, strays over the southern or western boundary line of said county anywhere between the Mississippi and Missouri rivers, for a distance not exceeding one mile from such county line, the same may be arrested by any citizen as provided in the first section of this act; but no further proceedings shall be had in such case, and no costs or charges shall be enforced against such owner, unless upon notice given him in writing by the party having such animal in charge, that the same has been so arrested, and he fails or refuses for a period of two days after the service of such notice, to take such animal out of St. Louis County.

SEC. 9. This act shall take effect and be in force from and after its passage, the emergency for the same so taking effect and being in force, is that the citizens of said city and county, engaged in agricultural pursuits, may know early this spring whether they must keep up inclosures or make new ones.

Approved April 11th, 1877.

THIRTIETH GENERAL ASSEMBLY OF ILLINOIS.

AN ACT declaring certain animals and birds, feræ naturæ, to be personal property.

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That all birds and animals, feræ naturæ, or naturally wild, when raised or in domestication, or kept in inclosures and reduced to possession, are hereby declared to be objects of ownership and absolute title, the same as cattle and other property, and shall receive the same protection of law, and in the same way, and to the same extent shall be the subject of trespass or larceny as other personal property.

Approved April 10th, 1877.

AN ACT to amend section 168 of an act entitled "An act to revise the law in relation to criminal jurisprudence," approved March 27, 1874.

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That section 168 of an act entitled "An act to revise the law in relation to criminal jurisprudence," approved March 27, 1874, be and the same is hereby amended to read as follows, to wit: Sec. 168. Every person convicted of the crime of larceny, if the property stolen exceeds the value of $15, shall be imprisoned in the penitentiary not less than one nor more than ten years; if the value of the property stolen is $15 or less, he shall be confined in the county jail not exceeding one year and fined not exceeding $100.

Approved April 10th, 1877.

AN ACT to amend section 7 of article 7 of an act entitled "An act to revise the law in relation to township organizations," approved and in force March 4, 1874.

SECTION 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That section 7 of article 7 of an act entitled "An act to revise the law in relation to township organization," approved and in force March 4, 1874, be and the same is hereby amended so as to read as follows: "Section 7. The town shall supply a suitable ballot-box or boxes, to be kept and used in like manner as ballot-boxes in other elections. In incorporated towns or incorporated villages, whose limits are co-extensive with the limits of a town; or any organized town where the number of voters at the last preceding general election exceeded 300, the county board may require one or more additional ballot-boxes and places for the reception of votes to be provided, which place shall be selected with reference to the convenience of electors of the town, and shall designate at which of the polling places the town clerk shall act as clerk of the election; and such polling place, when so designated, shall be the place for transacting the miscellaneous business of the town. And when several places are so provided, the electors present shall choose from their number one assistant moderator and one assistant clerk, for each additional ballot-box, to receive the votes therein, who shall take the same oath and be subject to the same penalties as the moderator and clerk, and shall be under the direction of the moderator. At the closing of the polls all the said ballot-boxes shall be brought together at the polling-place where the town clerk acts as clerk of the election, and the votes shall be canvassed at the same time, and in the same manner, and return thereof made the same as if all the votes had been cast in the same ballot-box. When there shall be more than one polling place designated in such towns, the general meeting for the transaction of business shall be held at the time hereafter mentioned at the polling place where the town clerk acts as clerk of the town election; or, if there be no town clerk, then at such places as shall be designated by the county clerk. And it shall be the

duty of the town clerk, or if there be no town clerk, it shall be the duty of the county clerk to post up, in three of the most public places in the town, a notice of each of the places in the town where the county board have directed and required the election to be held: Provided, however, That in towns which lie wholly within the limits of an incorporated city, the common council of such city shall divide each of such towns into election precincts, and designate the voting place in each precinct; and any elector in such town shall be entitled to vote for town offices only in the precinct in which he may reside. The common council of such city shall also appoint three judges of election for each of such precincts, who may be the same persons as are appointed as judges for an election for city officers held on the same day. Such judges of election may choose two clerks of election for each precinct, and such judges and clerks shall take the oath of office now prescribed by the general election law of the state. The ballots cast at such election for town officers shall be deposited in a separate ballotbox, and shall be counted and canvassed by the judges of election separately from any other ballots that may be cast at any other election that may be held on the same day. Said judges of elections shall cause to be kept a separate poll-list which shall contain the names of all persons voting at such election for town officers, together with their residence. And immediately upon closing the polls they shall canvass the votes polled in the manner provided by the general election law of the state, and make a written statement or certificate of the number of votes cast at such election for each person voted for, and the office for which such person received such votes, and shall, within forty-eight hours thereafter, cause such certificate and poll-list, together with the ballots cast at such election, to be separately sealed up and transmitted to the clerk of the town. The supervisor, together with the assistant collector, shall, within five days thereafter, meet and canvass said returns, and declare the result of said election. The town meetings to be held in such towns for the transaction of town business, as now provided by law, shall be at 2 o'clock in the afternoon of said day, at such voting place in such town as the common council of such city may designate; at which meeting a moderator shall be chosen to preside by the electors present, and the town clerk shall act as clerk of said meeting, and keep a record of the proceedings thereof."

SEC. 2. Whereas, an emergency exists, by reason of the happening of town elections in April, 1877, this act shall take effect and be in force from and after its passage.

Approved March 9th, 1877.

NOTES OF RECENT DECISIONS.

INFAMOUS CRIME-PROCEDURE IN CRIMINAL CASES IN FEDERAL COURTS IN THE ABSENCE OF STATUTORY PROVISIONS-United States v. Block, United States District Court, District of Oregon. From original opinion of Deady, J. 1. The crime defined in sub-sec.6 of sec. 5132 of revised statutes, is not an infamous one within the meaning of that term at common law, and as used in the fifth amendment to the Constitution, and therefore a party committing it may be prosecuted by information. 2. In the absence of constitutional and statutory provisions the common law furnishes the rule as to the mode of procedure in criminal cases in the national courts. 1. This was a motion by the district attorney for leave to file an information against the defendant for "wilfully omitting property from the inventory of his estate, being a bankrupt, etc." The

defendant by his counsel contended that the crime charged in the information was "infamous," and therefore within the prohibition continued in the fifth amendment to the Constitution. Objection overruled. The term infamous—without fame or good reportwas applied to common law to certain crimes, upon the conviction of which a person became incompetent to testify as a witness. This was so, upon the theory that a person would not commit a crime of such heinous character, unless he was so depraved as to be altogether insensible to the obligation of an oath, and therefore was unworthy of credit. 1 Green. Ev. Sec. 372. These crimes are said to be treason, felony and the crimen falsi. Id. Sec. 373. 1 Phil. Ev. 28; Barker v. The People 20 John., 460. As to treason and felony the authorities are agreed; but as to what or whether all species of the crimen falsi are to be considered infamous, there is some apparent disagreement among them. The term is borrowed from the civil law, in which, as it implies, it included every species of fraud and deceit or wrong involving falsehood. But the better opinion seems to be that the common law has not used the term, in this connection, in so extensive a sense; and that therefore a crime is not infamous within the meaning of the prohibition contained in said fifth amendment, unless it not only involves the charge of falsehood, but may also injuriously affect the public administration of justice, by the introduction therein of falsehood and fraud. 1 Green. Ev. Sec. 373; 1 Phil., Ev. 28. The following have been determined to be such crimes: "Forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the absence of a witness, or other conspiracy to accuse one of a crime and barratry." 1 Green. Ev. 373. And upon the principle that "a receiver is as bad as a thief," it was held in Com. v. Rogers, 7 Met., 501, that a person convicted of receiving stolen goods, knowing them to have been stolen, was thereby rendered infamous. But in Utley v. Merrick, 11 Met., 302, it was held that obtaining goods by false pretenses was not an infamous crime; and in United States v. Sheppard, 1 Ab. U. S. R., the same rule was applied to the crime of smuggling goods into the United States, as defined by section 4 of the act of July 18, 1863, (14 Stat., 179.) In United States v. Waller, 1 Sawyer, 701, before Justice Field and Sawyer, Cr. J., the district attorney was allowed to file an information charging the defendant with introducing distilled spirits into Alaska, contrary to the statute. Indeed, the opinion in this case may be cited as authority for the proceeding by information in the cases of "misdemeanors committed against all laws of the United States." But it ought not to be so construed; and the expression quoted ought to be taken in connection with the case before the court. For it is certain that perjury, conspiracies and other infamous crimes were only misdemeanors at common law, (4 Black, 5, n. 5), and the fifth amendment prohibits any proceeding other than by indictment in all cases of "infamous" crimes, whether they are misdemeanors or not. The modern code definition of felony and misdemeanor, which makes the distinction between them rest upon the character of the punishment imposed for their commission has not yet been incorporated into the laws of the United States, and if it had, it is not perceived how it could affect the question. The word "infamous" as used in the fifth amendment must be taken in the sense in which it was used and understood at the common law from which it was taken. That is the sense in which it was used and understood by those who made and adopted the constitution and the amendments to it. Rains v. The Schooner, 1 Bald. 558. has been shown, at common law this term was only applicable to certain crimes which from their nature

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implied a total want of truth in the person committing them, without reference to the fact of whether they were otherwise distinguished as felonies or misdemeanors. Neither was it the punishment, but the nature of the act constituting the crime which made it infamous. Ex delicto, non ex supplicio,emergit infamia. 1 Green. Ev. Sec. 372, n. 1; Phil. Ev. 30; People v. Whipple, 9 Cow, 707; The People v. Herrick, 13 John., 84; U. S. v. Brokus, 3 Wash. C. C., 99. The crime charged in the information is created by statute, and was unknown to the common law. The punishment is "imprisonment, with or without hard labor for not more than three years." Section 5132 R. S. The section defining it does not declare it a felony or misdemeanor, but elsewhere in the same title (Bankruptcy; Sub. 10, Sec. 5,110 R. S.) it is referred to as a misdemeanor. The law having required the defendant to make an "accurate statement" of the estate of the bankrupts (Sec. 5,016 and 5,030 R. S.), and the charge being that he has wilfully and fraudulently ommitted a material portion of the same from the inventory, there is ground for saying that the crime involves the charge of falsehood. But as we said in Utley v. Merrick, supra, any falsehood does not make a party infamous, nor is a crime infamous because its commission involves a falsehood of any kind or degree. On the contrary, the nature and purpose of the falsehood must be such as makes it probable that the party committing it is void of truth and insensible to the obligation of an oath. And even this is not enough, it must also appear that the falsehood is calculated to injuriously affect the public administration of justice, as perjury or the suppression of testimony. Tried by this test this crime can not be considered infamous or within the catagory of the crimen falsi at common law. 2. Although there are no common law crimes in the United States, yet where Congress declares an act a crime, a person charged with the commission of the same may be prosecuted therefor according to the course of the common law, unless the constitution of Congress has otherwise provided. In discussing this subject, Conkling, in his treatise, says: "The national courts are unquestionably to look to the common law in the absence of statutable provisions, for rules to guide them in the exercise of their functions in criminal as well as civil cases." Conk. Tr. 3 ed., 167. And again at p. 613, he says: "While no resort can be had to the common law as a source of criminal jurisdiction, it nevertheless furnishes the proper, and as the state laws are here inoperative the only guide in the absence of constitutional or statutory relations, as as to the principles and rules of procedure in the exercise of this branch of jurisdiction." And such, is substantially the ruling of the Supreme Court in the U. S. v. Reid, 12 How. 365. A casual remark in Story's Com. (vol. 2, Sec. 1,786), to the effect that the proceeding by information is rarely used in America, and had not, in the case of mere misdemeanors, been formally put into operation by any positive authority of Congress, ought not to be considered as bearing materially upon the question.

NOTES OF RECENT ENGLISH DECISIONS.

PRINCIPAL AND AGENT-FACTOR-SALE IN AGENT'S OWN NAME-SET-OFF AGAINST PRINCIPAL OF DEBT DUE FROM AGENT EVIDENCE THAT AGENT SOLD WITH AUTHORITY OF PRINCIPAL.-In re Kelley. Court of Appeal, W. R. 105. The fact that a principal has intrusted an agent with the possession of goods for the purpose of selling them is, as between the agent and third parties buying the goods, prima facie evidence that the agent is authorized to sell them in his own name; and therefore, if the court is satisfied that

no limitation of the agent's authority was disclosed to buyer, a set-off of a debt due from the agent is a good defense to a claim by the principal against the buyer, notwithstanding that the agent, though so intrusted with the goods, was, in fact, under an agreement with his principal not to sell in his own name. Remarks of WILLES, J., in Semenza v. Brinsley, 13 W. R. 634, 18 C. B. N. S. 467, explained.

CHARTER-PARTY-LIABILITY TO CEASE ON LOADING.-French et al. v. Gerber et al. When a charterparty contains a clause to the effect that the charterer's liability is to cease on loading, then, if the words of the absolving part of the clause show clearly that all liability is to cease on loading, it will cease as to both antecedent and future breaches independently of any lien. But if the words are open to two constructions, liability as to antecedent breaches will cease only so far as an equivalent lien is given. The declaration alleged the making of a charter-party under which the plaintiffs let their ships to the defendants, the ship to proceed as directed by the freighters, and load a cargo of rice, and when loaded proceed with all dispatch to Queenstown or Falmouth for orders as to port of discharge, to be forwarded forty-eight hours after notice of her arrival, naming a good and safe port of discharge, certain lay days being allowed; and that by the charterparty it was agreed that the liability of the charterers should cease as soon as the cargo was on board, provided it was worth the freight at the port of discharge; but the owners of the ship should have an absolute lien on the cargo for freight, dead freight, and demurrage, which they were to be bound to exercise. The breach was for not giving orders as to the port of discharge. A second count charged as a breach that the orders were given for a port which was not a good and safe port. The fifth and sixth pleas set up the clause under which the liability was to cease on loading, but with different averments as to the cause of the breaches. In Ogilsby v. Yglesias, 6 W. R. 690, El. B. & El. 930, and in Milvain v. Perez, 9 W. R. 269, 3 E. & E. 495, the liability sued for occurred before or during the loading, but the clause was in terms applicable to all matters and things as well before as after the shipping of the cargo. It was, therefore, held that the charterers were by express terms absolved upon the loading in respect of all liabilities, whether they occurred before or after the loading. And this without reference to whether the liability was or was not transferred to the consignees by the medium of a right of lien given to the ship-owner. For, in the first case, the claim was for demurrage, but in the second, was for damages for not loading in regular turn or in a reasonable time. In Bannister v. Breslauer, 15 W. R. 840, L. R. 2 C. P. 497, the claim was for not loading with all dispatch, or within a reasonable time. The clause was, "the charterer's liability to cease when the cargo is shipped, provided the same is worth the freight on arrival at the port of discharge; the captain having an absolute lien on it for freight, dead freight, and demurrage," etc. The defendants were not said to be agents. The court held that the clause absolved the defendants, but it can not be denied that the case has since been doubted, on the ground that, apparently, no lien was given for the damages sued for. In Pedersen v. Lotinga, 5 W. R. 290, the clause was for delay in loading. The clause was that "the charter being concluded by the charterer on behalf of another party, it is agreed that all liability of the former shall cease as soon as he has shipped the cargo, the owners and master agreeing to rest solely on their lien on the cargo for freight and demurrage." The court held that the defendants were not absolved in respect of the liability for delay in loading, and that the clause absolved

only from future liabilities. In Gray v. Carr, 19 W. R. 1173, L. R. 6 Q. B. 522, the second part of the clause was in question. The action was against the consignee as upon a lien for dead freight and demurrage and detention at the port of loading. It was held that a lien was given for demurrage, but that no lien was given for damages occasioned by detention at the port of loading, beyond the demurrage days. The clause, therefore, as to the absolution of the charterer must be construed subject to such decision as to the limits of lien against the consignee. In Christoffersen v. Hansen, 20 W. R. 626, L. R. 7 Q. B. 509, the cause was for delay in loading. It was assumed that no lien was given for such delay. It was held that, consequently, the true construction was that the charterer-that, in fact, an agent, was only absolved from liability which might accrue after the loading, and was not absolved from liability for delay in loading. In Francesco v. Massey, 21 W. R. 440, L. R. 8 Ex. 101, the claim was against the charterers, as principals in fact, for five days' demurrage and damages for fourteen days' further detention at the port of lording. The liability for the detention was admitted, but it was argued that, because there was a lien for demurrage against the consignee, the true construction was that the charterer was absolved in respect of it, although it was antecedent to the loading. And the court held for the defendants. In Lister v. Van Haansbergen, 24 W. R. 395, L. R. 1 Q. B. D. 269, the claim was for delay in loading. It was held that the clausc did not absolve the charterers. In Kish v. Cory, in error, the claim was for demurrage at the port of loading. It was held that the clause absolved the charterer, though the principal in fact. The court approved of the decision in Francesco v. Massey, and held that the absolution applied to past liabilities, where a lien was given in respect of them. The inclination of many of the judges, in face of the increasing number of such charter-parties made in the ordinary course of business, seemed to be to extend the lien, rather than to diminish the absolution. In all the cases, then, it will be seen the dispute has been as to the extent of the absolution in respect of liabilities accruing before the loading; in every case it has been assumed or expressly declared that it is complete as to liabilities which might otherwise accrue after the loading. The words of the clause must necessarily absolve from all future liability, or mean nothing. Judgment for defendant.

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LIFE INSURANCE-EFFECT OF SIGNATURE TO APPLICATION-BURDEN OF PROOF-FRAUD OR MISTAKE - INSTRUCTIONS.-The voluntary signing of a written instrument (in this case an application for life insurance), after opportunity for examination, and then delivering it, are facts which raise the presumption that the signer knew and agreed to its contents. That the presumption may be destroyed by proof of mistake on fraud renders it more necessary that the legal rule should be regarded. This rule shifts the burden of proof to plaintiff, who alleges fraud or mistake. It is error for the trial-court to instruct the jury in the guise of a declaration of law, as to the weight of specific facts, offered in testimony to prove fraud or mistake. Judgment reversed. Opinion by HAYDEN, J. -Koenig v. Life Association of America.

INSTRUCTIONS-PREPONDERANCE OF TESTIMONY-OB. JECTIONS NOT RAISED ON MOTION FOR NEW TRIAL.-The

burden of proof being upon defendant to show payment, and the court instructing the jury that, unless they believe from the evidence that the note sued on was paid before it came to the possession of plaintiff, judgment should be for the plaintiff, it is not error to refuse an instruction for plaintiff, that the defendant must show such payment by a preponderance of testimony. In the absence of a record of the evidence, it is impossible to say whether there was testimony to support the facts mentioned in the instructions. The appellate court will not consider objections to which the intention of the trial-court was not called in the the motion for new trial. Judgment affirmed. Opinion by BAKEWELL, J.-Topeka Bank and Savings Institution v.

Jilz.

AMENDMENT OF JUDGMENT AFTER TERM-CONTRACTS OF MARRIED WOMEN, CHARGING SEPARATE ESTATE.—A nunc pro tunc order, made after the lapse of several terms of court, extending the lien of a judgment to a married woman's separate estate, is clearly illegal. When there is a written contract, the intention to charge the the separate estate must be gathered from the contract itself, and can not be proved by oral testimony. Where a note is executed by a married woman, and, on the same day, she gives the creditors an express lien upon a certain portion of her separate estate as security, the intention to charge her separate estate, beyond that expressly incumbered, will not be presumed. The inference from such facts will be, that she did not intend to charge the residue of her separate estate. [Citing 55 Mo. 254]. Judgment affirmed. Opinion by BAKEWELL, J.-Maguire v. Magwire.

EQUITY JURISPRUDENCE-SPECIFIC PERFORMANCE OF COVENANTS TO RENEW LEASE-ARBITRATION.-Where a suit in equity is brought for specific performance of a covenant to renew in a lease, praying also for injunction upon the lessor, to restrain him from prosecuting a suit for possession, and the covenant to renew contains a stipulation that the rent for the new term shall be a certain per cent. of the valuation of the property, and such valuation to be fixed by arbitration, which arbitration the defendant refuses to carry out; the court will neither attempt to enforce the agreement to submit the question in dispute to arbitrators, nor give relief in the shape of compensation, as the latter would not be consistent with the prayer of the bill. The proper course would be for the court to take testimony and enforce the contract, omitting the arbitration. [Citing Agar v. Macklew, 2 Sim. & Stu. 418; Milnes v. Gray, 14 Ves. Jr. 400; Story's Eq. Jur. § 1457; Jermey's Eq. Jur. 443; Gemlay v. Duke of Somerset, 19 Ves. Jr. 429, and cas. cit. in M. Summer's Notes; Lord Eldon in Wilkes v. Davis, 3 Mern. 508; Gregory v. Mitchell, 18 Ves. Jr. 328; Hall v. Warren, 9 Ves. Jr. 605; Jackson v. Jackson, 19 E. L. and Eq. 547: Dunnell v. Keteltas, 16 Abb. Pr. 205; Kelso v. Kelley, 4 Daly, 419; Parker v. Joswell, 2 DeGex. & J. 559; Norris v. Jackson, 3 Gifford, 396; Backus' Appeal, 58 Penn. St. 186, 193; Arnot v. Alexander, 44 Mo. 25.] Judgment reversed. Opinion by HAYDEN, J.-Strohmaier v. Zeppenfeld.

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MARRIED WOMEN-JUDGMENT ON NOTE.-A judgment taken against a married woman on a note executed by her during coverture, she being a party to the action and not setting up her coverture as a defense, can not be questioned collaterally. A defense which might have been pleaded to the action can not afterwards be set up against the judgment. Not having made the defense at the trial, she has no right to complain. Judgment affirmed. Opinion by BIDDLE, J.-Dandistel v. Bennighof.

PROMISSORY NOTE-GUARANTY-ORIGINAL PROMISE.Where the payee of a note indorsed it as follows: "For value received I assign this note to Edgar Henderson, and guarantee the payment of the same when due. M. Cody," and Henderson assigned the note to one Evans; held, the

guaranty of Cody was not a collateral, but a direct undertaking to pay the note when due, without any condition or contingency, and the assignment of Henderson transferred the obligation, in the same effect, to Evans. Judgment reversed. Opinion by BIDDLE, J.-Studebaker et al., Ez'rs, t. Cody.

ABSTRACT OF TITLE-SUFFICIENCY OF COMPLAINT.—A complaint which alleges that the plaintiff employed the defendant to examine the title to certain real estate, and that the abstract furnished by defendant failed to show 3 mortgage which was a lien on the real estate and which plaintiff was compelled to pay, is insufficient for not averring that plaintiff, relying upon the correctness of defendant's abstract, became the purchaser of the real estate and was compelled to pay the incumbrance thereon in order to protect his title. Judgment reversed. Opinion by NIBLACK, J.-Batty v. Fant.

ATTESTATION OF WILL.-Under the statute of Indiana a will must be attested and subscribed in the presence of the testator by at least two competent witnesses. In this case the will was signed and attested as follows: "Signed at Franklin, Tennessee, March 11, 1863. H. C. Ransom, Captain A. Q. M., U. S. Army. Witness, C. F. Wood.” On the back was the following indorsement: "Flint, Mich., October 21, 1867. The within is the basis on which I desire my affairs disposed of, should no other will be made by me. H. C. Ransom, Brevet Lt. Col. and Q. M.; F. F. Hyatt, witness." Held, that Hyatt did not subscribe the will at all, but merely the writing indorsed upon it, and even if he could be regarded as having attested the will, it would not be sufficient, because the statute contemplates that both witnesses shall see and attest the same transaction which would be impossible, where the attestations were separated by an interval of more than four years. Judgment affirmed. Opinion by WORDEN, C. J.-Patterson et al v. Ran

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APPEAL-ORDER AMOUNTING TO DISMISSAL OF COSTSFEES OF MASTER.-1. Where a guardian appeals from as order of the county court on citation, finding a certain SELL in his hands and ordering its payment to his wards, and be fore the appeal is decided his executrix moves the court to abate the proceeding, which the court sustains, the order will amount to a dismissal of the appeal only. 2. Where an appeal taken by a guardian from an order of the county court, on an accounting, is dismissed by his executrix, it is erroneous to render judgment against the wards for costs. The judgment should be against her. 3. Where legal proceedings by appeal in the circuit court abate by the death of the defendant who appealed, his personal representative is liable for the costs made by him. 4. The allowance of $150 to a master in chancery for thirty days' services in tak ing proof to state an account between parties, is error, and in violation of the statutory fees. Opinion by SHELDOS, C. J.-Harvey v. Harvey.

ADMINISTRATOR - RECEIPT OF ACTING ONE GOODSTRIKING ATTORNEY FROM ROLL-JURISDICTION OF COUNTY COURT.-1. The receipt of acting administrator of an estate under authority of law, regularly appointed by a court of competent jurisdiction, is a sufficient acquitance of a debt due the estate, and will bar any action for the recovery of the same subsequently brought, notwithstanding some irregularities may have intervened in the appointment of the administrator which would be fatal on appeal or writ of error. 2. The county court, though of limited, is not of inferior jurisdiction, and presumptions in favor of its jurisdiction will always be indulged. In all collateral pro ceedings it will be presumed to have had jurisdiction in all matters pertaining to the administration of estates, until

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