each count of the petition, this court will not reverse, unless it appear from the record that the attention of the trial court was specifically called to such error by proper motion, especially where the judgment is for the right party. Opinion by SHERWOOD, C. J. Sweet's Admrs. v. Maupin.

EJECTMENT-LEGAL AND EQUITABLE DEFENSE.-Where defendant claims title under an administrator's sale, and it affirmatively appears that there was no order of the court authorizing the sale, a conveyance made upon such a sale is void, although all other proceedings were regular, and the legal defense can not be upheld. But where the suit is brought by heirs of the intestate, and it appears that the land sold for its full value, and that the heirs stood by without objection while the purchaser at the sale made improvements and conveyed the land in good faith to the defendant, who also for many years occupied and improved the same, and these facts were well pleaded, the equitable defense ought to have prevailed, and it was error in the court to disregard it. Jones v. Manly, 58 Mo. 559; Landrum v. Union Bank, 63 Mo. 48; Collins v. Rogers, 63 Mo. 515. Opinion by SHERWOOD, C. J.-Evans v. Snyder et al. EQUITY PLEADINGS.-Equitable aid can not be given unless sought in the usual way, and can not be invoked by motion to set aside a sale under execution on the ground of fraud, where the evidence is conflicting and no declarations of law are asked. Repeated decisions of this court have established that in law cases we will not weigh the evidence. 15 Mo. 191; 29 Mo. 340; 47 Mo. 322; 50 Mo. 398; 56 Mo. 479; 43 Mo. 122; 48 Mo. 376; 60 Mo. 72; 59 Mo. 172. The cases of Stewart v. Severance, 43 Mo. 322; Turner v. Adams, 46 Mo. 95, and Stewart v. Nelson, 25 Mo. 309, were proceedings in the nature of bills in equity, and contained the substance of a bill. In Nelson v. Bedwin, 23 Mo. 13, there was a rule to show cause why the sale should not be set aside, and an answer filed, and in effect an equitable proceeding, although irregular; and likewise in Burge v. Atkinson, decided at this term. In Worten y. Hinkle, 20 Mo. 290, there was a finding of facts, in the nature of a special verdict, and declarations of law, thus affording something which this court could review. 47 Mo. 322. In Stone v. Corbett, 20 Mo. 350, and Neal v. Stone, 20 Mo. 294, the point as to whether this court would weigh evidence in law cases was not raised, nor considered. And although the distinction in the mere form of law and equity pleadings has been abrogated by the code, the distinctive and salient characteristics of the two systems of law and equity remain as well pronounced as before. State v. St. Louis Circuit Court, 41 Mo. 574. Opinion by SHERWOOD, C. J.Holden v. Vaughn's Admrs.

APPEAL-PRESUMPTION.-On appeal from a judgment of nonsuit, if the bill of exceptions does not purport to contain all the evidence, and there are no exceptions to the rulings of the court on the trial, this court must presume that the evidence was such as to sustain the nonsuit. Greening v. Bishop, 39 Wis. 552. Opinion by LYON, J.Buckstaff v. Buckstaff.

BURDEN OF PROOF-CONTRIBUTORY NEGLIGENCE.-1. In the absence of any evidence on the part of a plaintiff who sues for injuries alleged to have been caused by defendant's negligence, tending to show that he was himself chargeable with contributory negligence, the presumption of law is that he was free therefrom, and the burden of proof as to such contributory negligence is upon the defendant. 2. If contributory negligence conclusively appears from plaintiff's own evidence, he will be non-suited; while, if the evidence merely tends to show negligence, the question will be for the jury. Opinion by LYON, J.-Hoyt v. City of Hudson.

DOG LAW-PLEADING.-1. If a dog has killed or worried sheep, and its owner has been notified of the fact for twenty-four hours, any person may kill the dog if there. after found ont of the inclosure or immediate care of its

owner or keeper; and a written notice to the owner is not required. 2. Where the question of the owner's knowledge of the dog's vicious acts, though not properly raised in the pleadings, has been fairly tried upon evidence received without objection, the defect will be remedied by amendment before or after judgment, and disregarded on appeal. Opinion by LYON. J.-Miller v. Spaulding et al.

LIQUOR LAW-PRESUMPTION.-1. The decision in Dillon v. Linder, 36 Wis., 344, that all rights of action given by, and all actions brought under, ch. 127 of 1872 (the “Graham Liquor Law") which had not proceeded to final judgment before the repeal of that act (by ch. 179 of 1874), fell with such repeal,-adhered to, and applied to an action upon the bond, under sec. 1 of that chapter. 2. Where the evidence is not preserved in the bill of exceptions, it will be presumed in favor of a judgment for the plaintiff, that the evidence sustained the complaint; but if the complaint does not state facts which constituted a cause of action when the judgment was rendered, it will not be presumed that other facts constituting a cause of action were proven. Opinion by LYON, J.-Farrell v. Drees et al.

INSURANCE CONTRACT.-If the agent of an insurance company, empowered to take risks and issue policies, knows, when he issues a policy, that there is other insurance upon the property, his failure to write the company's consent thereto in the instrument will not defeat an action thereon, although the policy itself declares that it shall be void in case the assured "shall have or shall hereafter make any other insurance upon the property without the consent of the company written herein;" and also declares that" the use of general terms, anything less than a distinct, specific agreement, clearly expressed and indorsed upon the policy, shall not be construed as a waiver of any printed or written restriction therein." Opinion by LYON, J.-Roberts v. Continental Insurance Co.

EVIDENCE.—1. The written declarations of a party upon the subject-matter of the controversy, which were made after the controversy had arisen and are in accord with his evidence at the trial, should not be admitted as evidence in his favor. But where such declarations are not of a character to strengthen the evidence in favor of such party, their admission is not a ground of reversal. 2. The rejection of evidence bearing only upon the amount of plaintiff's damages is not material error, where the jury find that plaintiff has no cause of action. 3. In an action for breach of warranty of a mare, where the plaintiff claimed that soon after the purchase the animal was found to have a bone spavin, defendant was permitted to testify that he did not think it possible that, when he sold her, she could have had a bone spavin without his knowing it. Held, no error. Opin. ion by LYON, J.-Finch v. Phillips.

RIGHT TO A NEW TRIAL AS MATTER of Right.-In actions to enforce specific performance concerning real estate, and to set aside conveyances as fraudulent, the losing party is not entitled to a new trial as of right under section 601 of the Code, (2 R. S., 1876, 352; 37 Ind. 514; 47 Ind. 534); and actions to foreclose mortgages upon, and to enforce liens against, real estate fall within the same rule. Judg. ment affirmed. Opinion by NIBLACK, J.-Shular v. Shular.

FAILURE OF WARRANTY - MEASURE OF DAMAGES.Where a horse is warranted to be sound and afterwards proves to be unsound, the measure of damages is the difference between the actual value of the horse at the time of the sale and the price paid, and not such difference, with the necessary expenses of finding and caring for the horse during his unfitness for use caused by such unsoundness, added thereto. 44 Ind. 490; 50 Ind. 303. Judgment reversed. Opinion by BIDDLE, J.-Trittipo v. Lacy.

PROMISSORY NOTE-PRINCIPAL AND SURETY-PLEADING.-When two parties are sued in the same action and one files a separate answer to the complaint, not in the nat

ure of a cross-complaint against his co-defendant, such co-defendant can not, under the code, demur or reply to, or join issue in any manner upon such separate answer; and in such a case the finding and judgment of the court on an issue joined on such separate answer by the plaintiff will not necessarily conclude or determine any of the merely relative rights of the defendants, as between them. selves. Where the principal and surety are sued on a joint note, and a joint judgment is taken against them, the principal having made default and the surety having pleaded his suretyship, the principal can not afterward claim that the surety is estopped by such joint judgment from maintaining an action against him. Judgment affirmed. Opinion by HowK, J.-Harvey v. Osborn.

RIGHT TO PURCHASE GOVERNMENT BONDS TO AVOID TAXES.-Any person has a right to exchange money on deposit in a bank for U. S. bonds at any time, though the express purpose in the transaction be to exchange money which is taxable for bonds which are not taxable. The money is taxable either in the hands of the depositor or in the hands of the bank, so that the revenue is not defrauded. And where a bank issued its receipt to a depositor, acknowledging the receipt for safe keeping of $14,500 in U. S. bonds, said bonds to be returned at any time when called for, such bank can not avoid its obligation to deliver the bonds according to the terms of the instrument, on the ground that the depositor fraudulently refused to list his money on deposit and thereby avoided paying the tax on it, even though the bank assisted him in the fraud. Judgment affirmed. Opinion by WORDEN, C. J.-Stilwell, Admx., et al. v. Corwin, Admr., etc.

WITNESSES-RIGHT OF HUSBAND OR WIFE TO TESTIFY WHEN PARTIES.-The Code provides (2 R. S., 1876, 132-133) that any person, party in a civil action, may testify in his own behalf, or in behalf of any other party or parties therein, and any one person or party in a suit may compel any other person or party therein to testify under the same regulations as other witnesses may be compelled;" and also, that "husband and wife, as to matters for or against each other, shall not, in any case, be competent witnesses." It is the duty of the courts, in cases where the rights of parties may depend upon the testimony of such husband or wife to any extent, to so construe the above recited provisions as to allow husband or wife to testify when called by such other parties as a witness in their behalf, even when such testimony of either husband or wife must necessarily affect, in some degree, the rights of the other. 38 Ind. 498; 46 Ind. 1; 52 Ind. 434. And where the husband, a party to the suit, had no interest in the suit, except such as a husband naturally has in the rights and property of his wife, who was one of the real parties in interest, the court erred in refusing to permit him to testify in behalf of the plaintiffs, both when he and his wife were plaintiffs, and when, in the course of the trial, they were subsequently made defendants. Judgment reversed. Opinion by HOWK, J.-Sutherland v. Hawkins.

ALLEGATION OF FRAUD-APPEAL IN EQUITY CASES.In order to rescind a contract on account of fraud, the particular and precise circumstances which constitute the alleged fraud must be set forth in the petition. 2. When a demurrer to a petition in a suit in equity is sustained in the district court, the cause may be taken by appeal to the supreme court. Stewart v. Carter, 4 Neb. 564, distinguished. Judgment affirmed. Opinion by MAXWELL, J.-Arnold v. Baker.

ASSESSMENT-OATH OF ASSESSOR.-1. A valid assessment is an essential pre-requisite to any exercise of the taxing power by the board of county commissioners. 2. The requirement of the law prescribing the oath to be taken and subscribed by the assessor, certified by the officer administering it, and attached to the assessment roll, must be substantially complied with; and without such compliance with the law, no jurisdiction can be conferred on the board of commissioners in the matter of the taxa

tion of property. Judgment reversed. Opinion by GANTT, J.-Morrill v. Taylor.

CONVEYANCE OF REAL ESTATE BETWEEN HUSBAND AND WIFE.-By the common law neither husband nor wife could convey lands to each other; and our law still regards them, in relation to each other, as one person, notwithstanding the statute enlarging the rights of the wife. But where it is apparent that a deed, given by the husband to the wife, of property purchased with the money of the wife, but taken in the name of the husband, has been made in pursuance of a valid antenuptial agreement, or upon a sufficient consideration, it may be sustained in equity. Judgment reversed. Opinion by MAXWELL, J.-Aultman et al. v. Obermeyer.

BONDS IN AID OF WORKS OF INTERNAL IMPROVEMENT.Precinct bonds may be issued to aid in building a public wagon-bridge across the Platte River, that being a work of internal improvement. Where the vote is regular in all other respects, it is not a valid objection to the bonds issued in pursuance thereof, that the proposition contained a provision for collecting tolls from persons crossing the bridge, especially after the bonds have passed into the hands of innocent persons. In voting aid to works of internal improvement, it is not necessary that the proposition shall contain a provision for the levy of a tax to pay the principal of the bonds, but simply to pay the interest as it falls due. As to the principal, it is made the duty of the proper officers to levy taxes to pay it independ. ently of any vote on that subject; but this can not be done until after the year 1880. Opinion by LAKE, C. J.-Fremont Building Association v. Sherwin.

DEFECTIVE HIGHWAY.-1. A town is bound to erect barriers or railings, when a dangerous place is in such close proximity to the highway as to make traveling in the highway unsafe. Stevens v. Boxford, 10 Allen, 25; Babson v. Rockport, 101 Mass. 93; Britton v. Cummington, 107 Mass. 347. 2. But it is not bound to do so to prevent travelers from straying from the highway, although there is a dan gerous place at some distance from the highway, which they may reach by so straying. Sparhawk v. Salem, 1 Allen, 30; Adams v. Natick, 13 Allen, 429; Murphy v. Glouces ter, 105 Mass. 470; Com. v. Wilmington, 105 Mass. 399; Warren v. Holyoke, 112 Mass. 362. Opinion by GRAY, C. J. -Puffer v. Orange.

TRUSTEE PROCESS-LEGACY IN HANDS OF EXECUTOR.1. A pecuniary legacy, payable to the principal defendant, is attachable by trustee process in the hands of the executor. 2. But if the legatee be indebted to the testator in a larger amount, the executor is entitled to retain the legacy in part satisfaction of the debt. Gen. Stats. ch. 142, § 26; Green v. Nelson, 12 Metc. 567; Blackler v. Boott, 114 Mass. 24. 3. A legacy of a fractional, undivided interest in a chattel, of which the executor is in no sense the keeper or holder, can not be attached by this process as the "goods, effects or credits" of the legatee in the hands of the executor. Opinion by AMES, J,—Nickerson v. Chase.

AUDITOR'S REPORT.—1. An auditor's report is prima facie evidence of the facts found by him, and, in the absence of other testimony, would be so controlling that the party in whose favor it is will be entitled to a verdict in accordance with its terms, unless its conclusions seem to be inconsistent, as matter of law, with other facts therein stated. Gen. Stats. ch. 121, § 46; Ropes v. Lane, 9 Alien, 502; Morrill v. Keyes, 14 Allen, 222. 2. The auditor is not bound to report the grounds of his conclusion, or all the evidence introduced before him. Any ambiguity or incom pleteness of the report in that respect could be taken advantage of only by motion to recommit it to the auditor. Thayer v. Manhattan Ins. Co., 112 Mass. 320. Opinion by GRAY, C. J.-Newell v. Chesley.

REMOVAL OF ACTION FROM STATE COURT TO UNITED STATES CIRCUIT COURT.-A petition for the removal of a cause from a state court into the Circuit Court of the United States must, by the terms of the Act of Congress of 1875, ch. 137, § 3, be filed "before or at the term at which said cause could be first tried, and before trial." The manifest purpose and effect of this legislation are that a party, who intends to remove a case from a state court to a federal court for trial, shall do so, not only before trial in the state court, but at the first term at which a case is at issue for trial and might be ordered to be tried there. By our Practice Act, an action at law is deemed at issue as soon as an answer is filed, and no further pleading is required, except by order of the court. Gen. Stats. ch. 129, §§ 23, 28. Cases may be, and often are, tried at the first term at which they are entered. And the rule of this court, which requires that at each term for the trial of cases by a jury a trial list shall be prepared on the first day of the sitting of the court, allows any case to be placed upon the list afterwards by order of the court. Rule 22, 104 Mass. 563. The present case was therefore at issue, and could, by the law and practice of this Commonwealth, have been tried at April term, 1875; and this petition for removal, filed at September term, 1876, comes too late. 2 South. Law Review, 311, note; Scott v. C. & S. R. R., 6 Bissell, 529, 536; Ames v. Col. C. R. R. 4 Dillon. Opinion by GRAY, C. J.— N. Y. Warehouse & Sec. Co. v. Loomis.

NOTICE OF PROTEST-SERVICE BY NOTARY-UNCONSTITUTIONAL ACT,-1. It is not the official duty of a notary public by the general law-merchant, or the statute of this state, to give notice of the protest or dishonor of a bill or note; and although it is usual and convenient for the notary to give the notice in such case, he is the mere agent of the holder or party authorized to give the notice. 2. Section (1) of chapter 110 of the laws of 1871, p. 270, is unconstitutional and void, because in conflict with section 16 of article 2 of the Constitution of the State, as the subjectmatter therein contained is not expressed in the title of the act. Judgment affirmed. Opiuion by HORTON, C. J. Valentine, J., concurring; Brewer, J., dissenting.-Swayze v. Britton.

JURISDICTION-RECEIVER. 1. Where the title of the plaintiff, according to the petition, rests upon his appointment as receiver by a court of another state, and the jurisdiction of the state is specially denied, and no testimony is offered as to its jurisdiction, and no record produced of its proceedings, and the court is one whose jurisdiction is not determined by the constitution of the state in which it exists, and there is nothing to show whether it was a court of general or limited jurisdiction, or in what manner or by what process it claimed to have acquired jurisdiction, or in what proceedings it made the appointment: Held, that a finding of the district court against the plaintiff will not be reversed in this court. 2. Section 121 of the Code of Civil Procedure, General Statute, page 652, applies only to the courts and officers of this state. Judgment affirmed. Opinion by BREWER. J.Kronsberg v. Elder et al.

SHERIFF'S SALE-CONFIRMATION.-1. Where it appears by the return of the sheriff, and the affidavits of the publisher and the foreman of the newspaper, that notice of sale was published in the several issues of the paper as required by law, such publication will be held sufficient, although the affidavit of a party is filed that he examined eight or ten copies of one of said issues and found that portion of said notice, including the description of the property, was illegible. 2. An affidavit to be used as evidence should state facts positively, and not merely upon belief. City of Atchison v. Bartholow, 4 Kas. 124. 3. An affidavit may be sworn to before a register of deeds. Gen. Stat. p. 598, section 1. 4. While it may be irregular for a court to make an order confirming a sale upon the filing of a certain affidavit, yet, if the affidavit is filed as required, the substantial rights of the defendant are not prejudiced.

All the justices concurring. Judgment affirmed. Opinion by BREWER, J.-Thompson v. Higinbotham.

REVISION OF STATUTES-RULE OF CONSTRUCTION-MECHANICS' LIENS ON RAILROADS REPEALED.-1. In the general statute the legislature intended to present a revision of all the laws of a general nature then in force in this state. 2. By section 1 of chapter 119 of the general statutes it prescribed what acts should form the general statute; and by section 2, it in terms repealed "all other acts of a general nature embodied or re-enacted, in whole or in part, in any of the statutes hereinbefore enumerated or repugnant thereto." 3. In determining the scope of this repealing clause, these rules obtain: (1.) No matter how many different subjects or sections are included in a prior act, if any one of them is embodied or re-enacted in the general statute, the entire act is repealed. (2.) It is not essential that the exact phraseology or the exact provision be retained. The idea is, that if the attention of the legislature was directed to the prior act, and if it took certain portions for incorporation in the general statutes, although in so doing it changed somewhat the phraseology or partially enlarged or restricted the provision, it thereby manifested its intention to drop from the laws all the remaining portions of that act. (3.) An act amending an act is to be taken as simply a portion of the amended act, and not as an independent statute. (4.) Chapter 45 of the laws of 1865, which purported to authorize mechanics' liens upon railroads, was repealed by the general statute. All the justices concurring. Judgment affirmed. Opinion by BREWER, J.— Burgess v. The M. C. & N. W. R. R. Co.

COSTS.-Where an action is commenced, as is claimed, under the act for contesting county seat and other elections, (Laws of 1871, page 190, et seq.), by certain electors of a certain school district against the members of the school board of such school district, to contest an election authorizing the issue of certain school district bonds and to restrain the issue of such bonds, and afterwards the defendants cease to be members of said school board, becoming merely private citizens of said school districts, and others who have been appointed to take their places issue said bonds, and afterwards still others, who are opposed to said election and to everything done thereunder or in pursuance thereof, are elected and become members of said school board: Held, that it is error for the court, against the objections of the said defendants, to allow the said plaintiffs to change their cause of action, setting forth new facts and making new parties, and to litigate, at the costs of the original defendants, the questions whether the county commissioners shall be restrained from levying taxes to pay said bonds, and whether the county clerk shall be restrained from putting such taxes on the tax roll. Judgment reversed. Opinion by VALENTINE, J. Brewer, J., concurring; Horton, C. J., not sitting.-Beyer et al v. Reed et al.

CONTEMPT-WRITING INSULTING LETTER TO JUDGE.— 1. For sneering, insulting and disrespectful language used by an attorney to a judge, before whom a matter is pend ing, concerning such matter and the judge's ruling thereon, the attorney may be punished by a fine, as for a contempt. 2. Such language as the following, coming from an attorney to a judge in a matter still pending before him: "The ruling you have made is directly contrary to every principle of law, and everybody knows it, I believe;" and that it is " my desire that no such decision shall stand unreversed in any court I practice in," is insulting and disrespectful. 3. It is immaterial whether this language is used in oral address in the hearing of others, or in a written communication to the judge. 4. An attorney, as an officer of the court, is under special obligations to be considerate and respectful in his conduct and communications to the court or judge. 5. A judge will wisely overlook any mere hasty, unguarded expression of passion or disappointment, even though disrespectful, or simply notice it by a reproof. But where an attorney insists upon a right to use such disrespectful language, or is in the habit of so using it, or fails, when his attention is called to it, to apologize therefor, it may become the clearest duty of the judge to punish him for contempt. 6. On an appeal from an order punishing for contempt, the mere question of the advisability of the court's action is not the matter of consideration; it is the question of power, and whether the act or word punished is in fact a contempt. All the justices concurring. Judgment affirmed. Opinion by BREWER, J.-In re Prim.

INSTRUCTIONS AMENDMENT AFTER VERDICT.- The principal issue made by the pleadings, and the principal

question litigated at the trial, was: What was the selling price per thousand of certain apple trees, at Quincy, Illinois, in the spring of 1870? Under the pleadings, the defendant was entitled to recover from the plaintiff one-half of the difference between the actual selling price of said trees and the price at which the plaintiff furnished said trees to the defendant. The defendant alleged in his answer that the actual selling price was $35.00 per thousand, and that the plaintiff furnished the trees to him at $50.00 per thousand. The evidence of the various witnesses at the trial showed that the selling price was from $32.50 per thousand up to $50.00 per thousand. The court instructed the jury to find what the selling price was in accordance with the evidence. The jury found generally for the defendant; but what they found that said selling price was, can not be told from the verdict. The defendant then, with leave of the court, amended his answer so as to allege that the said selling price of said trees was only $32.50 per thousand instead of $35.00, as he had formerly alleged. The court then rendered judgment in accordance with the verdict, and in favor of the defendant and against the plaintiff, for costs. Held, that no substantial error was committed by giving said instruction, or by allowing said amendment, or by any other ruling of the court. Judgment affirmed. Opinion by VALENTINE, J.—Baird v. Truitt et al.

NOTES.

ESTOPPEL AS APPLICABLE TO MARRIED WOMEN.-A correspondent in Logansport, Ind., writes: As pertinent to the subject of Estoppels, recently discussed by one of your correspondents, it may be of interest to call your attention to a decision of our own supreme court. In the case of King v. Rea et al., at this (May) term, the court held that, when a married woman joins with her husband in a conveyance of lands held in her own right, which purports to convey the entire estate therein, she is estopped from afterwards setting up any title to the lands so conveyed, whether it existed at the time of making the conveyance, or was subsequently acquired. Citing 7 Mass. 14; 4 Bibb, 433; 6 N. H. 17; 2 Hill, 554; 2 Head, 384; 11 How. 297; 52 Ind. 68.

A TAX of $50 upon all lawyers in this city has been suggested, and a bill has been introduced in the city council to that effect. If passed, it will probably have a good effect in excluding a class of lawyers who are no credit to the profession. It will perhaps be felt somewhat severely by the younger members of the bar, whose practice may not be able to stand so heavy a draft for a license fee. For this reason, while the principle of the tax is good, and the effect will no doubt be beneficial, both to the exchequer of the city and the personnel of the bar, it might be well to apportion the tax in some way, having regard to the number of years the person has been in practice.

A WASHINGTON dispatch says: United States District Attorney Howard, of Utah, has left for Salt Lake, after a full understanding with the President and Attorney-General, and with assurances that he will be supported in the prosecution of Brigham Young on any competent evidence implicating him in the Mountain Meadow Massacre. He has also been directed to prosecute the prophet on the charge of a misappropriation of government funds while he was an Indian agent, provided the alleged crime is not barred.

"THE plaintiff's solicitors" write to the London Times: "In a suit now pending it has taken just eighten months to get the first inquiry directed by the decree disposed of. This having been now decided by the court, we require an appointment to proceed on the other inquiries as directed by the Vice-Chancellor. On applying at chambers for an appointment before the chief clerk, we were informed that the earliest we could have was on the 5th of June. If this is the state of the business in chambers now, what will it be when the chamber work of the new judge has to be done among the present staff? We wish those in authority would appreciate how difficult it is for us, who have to meet our grumbling and anxious clients, to satisfy them of the cause or necssity of such delays."

On Tuesday last, in the case of State v. Bogardus, the St. Louis Court of Appeals rendered a decision, reversing a conviction in the court of criminal correction under the statute, for the prevention of cruelty to animals. The evidence in the court below, showed that at the Abbey Race Track a man threw up pigeons, two at a time, and that the

defendant, in the presence of a number of persons, shot the pigeons in the air with a gun, to show his skill; that the birds dropped dead when shot; that they were furnished by the owners to be shot at; that pigeons like these are eaten as food and bought and sold for that purpose, and that they were so eaten when shot. The statute under which the conviction was obtained, provided that if any person shall needlessly mutilate or kill any living creature, he shall be guilty of a misdemeanor. The court held that "in the present case there was no mutilation, or anything approaching to it. The birds were killed in a more humane way than by wringing their necks, which is an ordinary method of destroying life in pigeons, when they are killed merely with a view to their being eaten."

AT THE general term of the New York Supreme Court for the first department last week, on an appeal from an order of the special term directing a reference in an action to recover $60,000 for services as an attorney and counselor, the court reversed the order. Davis, P. J., delivering the opinion of the court, said: "There is no fixed rule which prevents the reference of an attorney's accounts for services to another attorney; and yet courts should be careful to avoid referring such cases to members of the same profession, when there appears upon the face of the claim good reason to suppose that the client's resistance on the ground of exorbitance and oppression may prove to be well founded. It is not because such referees will not do equal or full justice to the parties, but because of a general impression that on the question of compensation for legal services lawyers may not be-sometimes are not-unprejudiced in determining values. A physician is not chosen as a referee on physicians' accounts; nor are clergymen, when a pastor sues for the value of his services; and so also as to all other trades and professions; and in the popular mind it is, not without some show of reason, thought invidious, that lawyers only should be selected to determine the claims of lawyers. It is better for the profession and for the courts that this should not be so, and the honor and well-being of the profession requires that lawyers should not be thought to shrink from an examination of their charges by a jury, enlightened by the opinions of other lawyers as witnesses, and by the instructions of the courts."

CHINAMEN AS WITNESSES.-In the course of a trial in Baltimore last week, an interesting letter from Dr. S. Wells Williams of Yale, and Professor Gilman of Johns Hopkins University was read in relation to judicial oaths and their effect among the Chinese. Dr. Williams resided for many years in Cuba, and is well informed upon the subject. The question of a Chinese oath, he says in the letter, has been a perplexing one everywhere in China, whenever the natives there come into the Consular Courts, established at all the ports, and into those in Hong Kong and Macao. Knowing nothing of the true God, they can not have any oath referring to Him in their courts or anywhere else. He thinks that in the Consular Courts no effort is made to exact an oath, but the witnesses are simply warned that, if they are found out to have given false testimony, they are liable to punishment for lying. To settle a dispute among themselves, they often resort to a temple, wherein there is one of their natural Gods, and cut off a cock's head, smash a plate or make some other sign, as a token of what they wish to happen to themselves in case they do not do what is promised, or are guilty of the charge. This can not be done in their own courts where there are no idols. The witnesses are often tortured or threatened to make them say this or that. The witnesses in a native court in general give as fair an account of a transaction, as they give in their common intercourse with each other. By experience they have learned that, in order to get along in life, a certain degree of truth is necessary. Few, or none of them expect that an invocation or oath to or before an idol would have much weight or carry a conviction to make a man speak the truth when otherwise he would lie. The ceremony of killing a cock is rather an imprecation of like punishment to himself, than a call on a spiritual being, who knows the heart and whom he fears, to attest the truth of what he says. Consequently such ceremonies are not general, for they do not carry much weight. The experience in Consular Courts in China is favorable to the general credibility of the testimony. The witness is more afraid of the revenge of the defendants, if his testimony implicates them, than he is of the officer on the bench; for the family of the man may charge his defeat or execution to the testimony of the witness and take their revenge on him

SAINT LOUIS, JUNE 22, 1877.

CURRENT TOPICS.

WE UNDERSTAND the name of Wesley H. Manier, Esq., of Hancock County, Illinois, has been mentioned in connection with the judgeship in the Sixth Circuit, under the new Appellate Court bill. The people of that circuit will be fortunate if they secure the services, in that position, of so able a lawyer and excellent a gentleman.

MUCH AS may be said in favor of the skill, vigilance, and fidelity of the legal profession, things occasionally come to light, backed by statistics which do not lie, which are decidedly to the disadvantage of the fraternity. The reporter of the decisions of the supreme court of one of our Western states lately told the writer that one-half the decisions which were reversed by his court (and the reversals were rather numerous) were reversed on the ground of errors committed by the attorneys on questions of practice, many of them of a most simple and obvious character. Suppose a similar number of technical errors should be committed by architects, bridge-builders, or boiler-makers, what would be the result? It is obvious that the machinery of the criminal law would be put in operation to stop it, and the legal profession would reap a rich harvest out of it. Such blacksmithing in the practice of the law ought not to be tolerated, even in a new community. What makes it worse, the cost of these blunders is borne by innocent clients. Could a more potent argument be suggested in favor of the elevation of the standard of legal education?

WHETHER a court of equity will appoint a receiver of the property and income of a railway company, in aid of proceedings to foreclose a mortgage, is a question which rests so peculiarly upon the facts of each particular case, that decisions upon the subject are not apt to possess much value as precedents; but the opinion of Mr. Justice Miller, elsewhere printed, in the case of The Union Trust Co. of New York v. The St. L., I. M. & S. Railway Co., in which Dillon, J., concurs, is very instructive as determining the question that ch a receiver will not be appointed on the mere showing of a mortgage of property and income, a provision in the mortgage that upon default in the payment of interest the trustees may take possession, a default in the payment of interest, a demand by the trustees for possession, and a refusal. This is not sufficient to warrant a court of equity in exerting the extraordinary power of wresting such property from its owners and operating it by its own officers, pending suit, for the benefit of the mortgagees. The court must clearly Vol. 4.- No. 25.

tion of such aid the beneficiaries under the mortgage would experience ultimate loss. In this case, neither fraud nor mismanagement on the part of the railway company was shown. A showing of present and prospective earnings was made, sufficient to induce a reasonable hope that, with the aid of its credit, the company would be able to extricate itself from its present difficulties. The effect of the decision, as we understand it, is that under such circumstances, although a court of equity will feel bound to enforce the specific contract of the parties by foreclosing the mortgage, yet, pending the litigation, it will give the defendant an opportunity to extricate itself from its difficulties, if it can.

THE READING of a newspaper article in reference to the prisoner, by one of the jury in the bearing of the others during their deliberations in the jury room, was held in Commonwealth v. Landis, 34 Leg. Int. 204, a sufficient ground for the granting of a new trial. Compare, on this point, United States v. McKee, 3 Cent. L. J. 258. In Massachusetts, in Hox v. Drury, 5 Pick. 296, and in Whitney v. Whitman, 5 Mass. 405, where papers went to the jury by accident, the verdicts were set aside. And in Commonwealth v. Edgerly, 10 Allen, 184, where a letter of slight import was allowed to go to the jury, and which the judge instructed the jury to disregard, a new trial was granted. Bigelow, J.: "It is impossible to say if the jury might not have been so confused and misled as to have given sorry heed to the contents of the paper." Depositions of witnesses, although read in evidence, if allowed to go out with the jury, is good cause for a new trial, even in civil causes. And in Ohio, in the case of Farrer v. Ohio, 2 Ohio Rep. 54, n. 8, where a jury, without the knowledge or aid of any one, procured a part of a newspaper containing the charge of the judge in the cause, and used it to guide their deliberations, although the report was accurate, the verdict was set aside. The same rule was followed in Illinois, in Yates v. The People, 38 Ill. 527, where a new trial was granted because the jury, after retiring to deliberate, used the pistol, which was given in evidence on the trial, to experiment, whether the act, which was alleged to have been committed, could have been done in the manner as detailed by the evidence. The rule is that no paper or instruments, containing anything bearing either upon the law or the facts, except by permission of the court, to which exception can be taken, should be allowed to go to the jury. Lord Tenterden, in Burrows v. Unwin, 3 C. & P. 310, refused to let the jury look at Selwyn's Nisi Prius. In Rhode Island, in State v. Smith, 6 R. I. 33, a verdict was set aside because the jury consulted the Revised Statutes in their room. So in State v. Kimball, 50 Me. 409. In New York, in Neil v. Abel, 24 Wendell, 185, where the judge allowed the jury to use his minutes of the trial, a verdict was set aside.