It

the evidence is not legally sufficient to serve as the foundation of a verdict for the plaintiff.' This practice has in many of the States superseded the ancient practice of a demurrer to evidence. answers the same purpose and should be tested by the same rules. A demurrer to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom.''

In Drakely v. Gregg, 8 Wall. 268, Mr. Justice Davis said: "The only question with which we have to deal at the present time is, whether the evidence in this record tended to prove the position assumed by the plaintiffs in error; for if it did, the learned court should either have submitted the evidence on this point to the consideration of the jury, or if, in the opinion of the court, there were no material extraneous facts bearing on this question, and the contract relied on must be determined by the commercial correspondence alone, then to have interpreted this correspondence and informed the jury whether or not it proved the contract to be of the character contended for by the plaintiffs in error." The evidence in this case consisted of a voluminous correspondence, and some parol proof explanatory of the conduct of the parties, and the duty of the court in reference to a construction of the written correspondence, and of the jury as to the extraneous facts were clearly distinguished.

In Hickman v. Jones, 9 Wall. 201, the court instructed the jury to acquit the defendants. Mr. Justice Swayne said: "There was some evidence against both of them. Whether it was sufficient to warrant a verdict of guilty was a question for the jury under the instructions of the court. The learned judge mingled the duty of the court and jury, leaving to the jury no discretion but to obey the direction of the court, Where there is no evidence, or such a defect in it that the law will not permit a verdict for the plaintiff to be given, such an instruction may be properly demanded, and it is the duty of the court to give it. To refuse is error. In this case the evidence was received without objection, and was before the jury. It tended to maintain, on the part of the plaintiff, the issue which they were to try. Whether weak or strong, it was their right to pass upon it. It was not proper for the court to wrest this part of the case, more than any other, from the exercise of their judgment. The instruction given overlooked the line which separates two separate spheres of duty. Though correlative, they are distinct, and it is important to the right administration of justice that they should be kept so. It is as much within the province of the jury to decide questions of fact as of the court to decide questions of law. The jury should take the law as laid down by the court and give it full effect. But its application to the facts -and the facts themselves-it is for them to determine. These are the checks and balances which give to the trial by jury its value. Experience has approved their importance. They are indispensable to the harmony and proper efficacy of the system. Such is the law."

In Insurance Co. v. Rodel, 95 U. S. 238, Mr.

Justice Bradley said: "It is hardly necessary to say that, if there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and indeed could not properly, take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon. The judge may express his opinion on the subject, and in cases where the jury are likely to be influenced by their prejudices, it is well for him to do so; but it is entirely in his discretion."

Assuming that the English rule as already stated, which was followed and approved in Commissioners v. Clark, 94 U. S. 284, means just what is said, that a scintilla of evidence would not justify the judge in leaving the case to the jury, I can fully concur therein. Such a rule would be no more than what has repeatedly been followed in this State. In Kelly v. Hendrie, 26 Mich. 256, it was said: "If, upon any point essential to a recovery, the evidence bearing on it is open to but one meaning, and that meaning is plainly and necessarily adverse to the plaintiff, then he has no ground of complaint" if the court takes the case from the jury. There may be a "scintilla," in other words, a "spark" or "the least particle" of evidence in a case, and yet fall far short of what is essential. It frequently happens on the trial of a cause that proof of one fact has of itself a tendency to prove others which are material and necessary to establish the cause of action, while in other cases each fact is so separate and distinct that proof of one raises no presumption whatever in support of another.

As was said in Perrott v. Shearer, 17 Mich. 54, whether evidence bearing upon a certain point tends to establish it or not, may depend not alone upon that particular item of evidence, but upon that considered in its relation to other evidence which may so far qualify and explain it that it shall have no tendency whatever to prove the position for which it was offered, and which if it were the sole evidence in the case it might appear to establish. The duty to examine, weigh and compare in these cases is not entrusted to the judge; these are matters lying within the peculiar province of the jury.

In Gaines v, Betts, 2 Doug. (Mich.) 98, it was held that a judgment should not be reversed on the ground that the verdict of the jury was against evidence, unless it appeared there was a total want of testimony to sustain the finding.

In Berry v. Lowe, 10 Mich. 15, where the question came up upon writ of error, it was said: "If the alleged error is a total want of evidence to prove some fact necessary to sustain the judgment, the court will look into the testimony to see whether there was such evidence or not. If there was, it will not weigh it, or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, and it appears all the testimony before the justice has been returned, the judgment will be reversed on the ground that the justice erred, in law, in rendering the judgment he did without such evidence." Or, as was said in Hyde v. Nelson, 11 Mich. 357, where the ques

tion came up on certiorari: "It is only when there is an entire absence of proof upon some material fact found, that such finding becomes erroneous as a matter of law."

The doctrine laid down in these cases has always been strictly adhered to in this State. In addition to the cases already cited, see Blackwood v. Brown, 32 Mich. 107, and authorities there referred to; Maas v. White, 37 Mich. 130, and Elliott v. Van Buren, 33 Mich. 52, where it was said to be "not in the province of an appellate court to consider of the amount of the verdict, or the weight of the evidence. The court of trial may set aside a verdict which violates justice, and it is to that tribunal that parties must apply for relief against excessive damages or any other of the wrongs for which it may be right to grant a new trial. We are bound in all cases to assume that the jury have done no legal wrong when acting within their province."

It seems to me that this is the only safe rule. Under our system of jurisprudence, the jury is called to pass upon the facts.

It is not only their privilege but their right to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case on trial. The credibility of witnesses, the strength of their testimony, its tendency and the proper weight to be given it, are matters peculiarly within their province. The law has constituted them the proper tribunal for the determination of such questions. To take from them this right is but usurping a power not given. The jury should be left entirely free to act according to their own judgment. Where there is a total defect of evidence as to any essential fact, or a spark, the least particle, a scintilla, as it is termed, the case should be withdrawn from the consideration of the jury. Where, however, the evidence introduced has a legal tendency to make out a proper case in all its parts, then, although it may in the opinion of the trial court or the appellate court be slight, inconclusive, and far from satisfactory, yet it should be submitted to the jury, whose proper province it is to consider and determine its tendency and weight.

When there is a total want of evidence upon some essential fact, but the jury nevertheless find such fact, the finding is erroneous as matter of law, but when there is slight evidence in support thereof a finding thereon would be one of fact, upon which men might differ in opinion, but for a court to attempt the correction thereof upon writ of error would be but a correction of errors in fact and not in law, a power which this court does not possess.

As already said, it was conceded on the argument that there was some testimony given in this case tending to prove the issue. True it referred to a period some time prior to the time of making the will, yet that did not render it incompetent, but rather went to the effect, or weight and importance to be attached to it. It was proper to be considered by the jury with all the other evidence introduced in the case bearing upon that question. Much other testimony was introduced-testimony that was clearly admissible as bearing upon the issue made. It was argued, however, that much of

it had no tendency whatever to support the issue; that the irritable disposition and profane language used by the testator did not tend to prove incapacity. There are many people who habitually indulge in the use of profane language, and should they abstain therefrom for any definite length of time, it would be considered as something remarkable indeed, while there are others of a mild, gentlemanly disposition, who were never heard to utter a profane word or supposed by any to harbor an unclean thought. Should such an one become irritable, morose, and addicted to the use of profane language, and especially at times and on occasions when no cause or provocation had been given, would not such a change be considered passing strange indeed, and might it not when considered in the light of other circumstances, indicate quite clearly a deranged state of mind?

All these things were proper arguments to be addressed to and considered by the jury. The same facts which might in one case tend to prove insanity might in another have no such tendency, and no court could lay down or would attempt to lay down a rule that should govern all such cases, as to what did or did not tend to prove insanity.

We are of opinion that there was evidence in this case which tended to prove the issue made. The weight and effect thereof was rightly left to the jury under proper instructions, and their finding we have no power to review.

The proceedings must be affirmed. The cause, however, was properly brought into this court, and the costs should be paid out of the estate in all the courts. It must be certified accordingly to the circuit and probate courts.

The other justices concur.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF MISSOURI.

October Term, 1878.

[Filed December 23, 1878.]

AGENCY-SALE BY SAMPLE BY AGENT DOES NOT AUTHORIZE PAYMENT BY PURCHASER TO AGENT, IN ABSENCE OF AUTHORITY OF AGENT TO RECEIVE PAYMENT. Defendant purchased a bill of goods of plaintiff through their traveling agent, who sold by sample, on four months' time. The agent was not intrusted with possession of the goods, and was restricted by terms of employment from recovering for goods sold. Six days after sale defendant paid to the agent a part of the purchase-money, and when the bill became due paid to plaintiff balance, and refused to pay the amount already paid to agent. This action was for recovery of such balance, and defendant had judgment. Held, that where the principal has clothed his agent with the indicia of authority to receive pay. ment, as by intrusting him with possession of the goods to be sold, the purchaser is warranted in paying the price to the agent; but when the agent has not possession of the goods, or other indicia of authority and is only authorized to sell, if the purchaser pays

the price to the agent he does so at his peril, and it devolves upon him, in a suit for the purchase price by the principal, to prove that the agent was also authorized to receive payment. A declaration by the court that authority to receive payment might be implied from the authority to sell was incorrect. Seiph v. Irvin, 30 Penn. St. 513; Law v. Stokes, 32 N. J. (Law), 249. Reversed and remanded. Opinion by HENRY, J.-Butler v. Dərman.

RESULTING TRUSTS-CONVEYANCE BY INSOLVENT HUSBAND TO WIFE OF LANDS PURCHASED IN HIS NAME WITH SEPARATE ESTATE OF WIFE NOT IN FRAUD OF CREDITORS.-This was an equitable proceeding to set aside conveyance of land made by defendant to a trustee for benefit of defendant's wife. The evidence was conflicting, and the court below decreed for defendant. It appeared that the land in controversy was entered by defendant in his own name with money belonging to wife's separate estate, and patent issued to defendant. Afterwards, and when defendant was greatly embarrassed in his pecuniary circumstances, defendant executed the deed to trustee. Held, that as the money used to enter the land was that of wife's separate estate, it was defendant's duty to transfer the land thus acquired to a trustee for his wife's benefit, and the fact that he was embarrassed at the time of the transfer in nowise changed his duty in the premises, a duty which demanded that the trust fund committed to his care should not be divested from its originally intended purpose, a matter with which his creditors had no concern whatever. Affirmed. Opinion by SHERWOOD, C. J.-Payne v. Twyman.

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ADMINISTRATION - WIDOW'S RIGHT TO ALLOWANCE IN PERSONAL ESTATE OF DECEASED HUSBAND MUST BE CLAIMED BEFORE DISTRIBUTION.Plaintiff, as widow of her intestate husband, deceased, administered upon his estate, and received proceeds of sale of personal estate, which, upon her re-marriage, she paid over on settlement to the administrator de bonis non, who, in 1871, applied the sum thus received to payment of classified debts. Afwards the administrator de bon. non, in due course of administration, sold real estate, from the proceeds whereof there remained, after payment of all debts, about $700. The widow, prior to her settlement with the county court, had received, under sec. 35, p. 88, 1 Wag. Stat. 228, personal property, and this suit was instituted against administrator de bon. non by her, and her present husband, in 1874, to obtain residue of $400 allowed her under said sec. 35, in which they had judgment. Held, that the right of the widow in such cases is purely statutory, and she must apply for such allowance before the personal property shall have been distributed or sold, otherwise her claim must be separate. 1 Wag. Stat. p. 88, secs. 36, 37. Nor is her status altered, or in the least bettered, because the administrator has a surplus of money in his hands arising from the sale of real estate. That money belongs to the heirs, and she having failed to make application in the time she was told by the law to apply, can not now make her loss good in violation of the statute, and of the vested rights of others. Reversed and remanded. Opinion by SHERWOOD, C. J.-Drowry v. Bauer.

SUPREME COURT OF KANSAS.

January Term, 1879.

DISMISSAL OF ACTION-COUNTERCLAIM.-An action to foreclose a mortgage may be dismissed without prejudice to a future action, before the case is

called for trial, notwithstanding the defendant has filed an answer amounting to a counterclaim, but such defendant has the right of proceeding to the trial of his claim, regardless of the dismissal. Opinion by HORTON, C. J. Affirmed. All the justices concurring.Amos v. H. L. Association.

ATTACHMENT-POSSESSION.-1. A person in actual possession of real estate under an unrecorded deed is, as against all persons who have actual notice of such deed, the legal and absolute owner of such real estate, and, as against all other persons, he is the equitable owner. 2. All persons are bound to take notice of all equitable interests which any person may have in real estate of which he is in actual possession. 3. An attachment can not be made to operate upon a merely legal title, as against the equitable owner of real estate, where the parties claiming under the attachment have (at the time the attachment is levied), or are bound by law to take notice of the paramount outstanding equitable title. Opinion by VALENTINE, J. Affirmed. All the justices concurring.-Tucker v. Vandermark.

VERIFICATION.

SUMMONS SURETY 1. A summons directed to the sheriff of the county in which the action is brought, is not void or voidable because made returnable in two days. Clough v. McDonald, 18 Kas. 114. 2. An action may be maintained against the surety in a recognizance alone, and without joining the principal as defendant. Jenks v. School District. 18 Kas. 356. 3. Where an answer tendered out of time is not verified, and there is no showing by affidavit or otherwise that the matters set forth in the answer are true, and where the party, though not served, filed a motion to set aside the summons, which was overruled, and thereafter a demurrer, which was also overruled: Held, that no error appears in refusing to grant leave to file the answer. Neitzel v. Hunter, 10 Kas. 221. 4. Interest begins to run on a recognizance from the time of forfeiture. Opinion by BREWER, J. Affirmed. All the justices concurring.-Swendsfeger v. State.

VERDICT-AFFIDAVITS OF JURORS.-1. Where five of the jurors who tried a cause made an affidavit discrediting their verdict, and afterwards one of such jurors made another affidavit stating that he did not understand when he made his first affidavit that he discredited the verdict, and also stating that what he and the other four jurors stated in said first affidavit was not true; and afterwards five others of the jurors who tried said cause made an affidavit stating that what was stated in the first affidavit was not true, and stating that the verdict was fairly found after due deliberation and discussion, and the court below sustained the verdict: Held (without deciding whether said affidavits were properly received or not), that the preponderance of the evidence was in faver of the verdict and that the ruling of the court below sustaining the verdict will be affirmed. 2. Where the jury, after deliberating upon what their verdict should be, agreed that each juror should mark what he believed it should be, and each juror did so mark-some marking a large amount for the plaintiff, some a small amount, and others nothing, and then they added all the several sums so marked together and divided the aggregate amount by twelve, but at no time did they agree that the result of such marking, aggregation and division should be their verdict; but afterwards, and upon due deliberation and consultation, they agreed upon a different amount which they returned as their verdict, and the court below sustained such verdict: Held, that the ruling of the court below sustaining said verdict must be affirmed. Opinion by VALENTINE, J. Affirmed. All the justices concurring.— Bailey v. Beck.

PRACTICE IN SUPREME COURT-LIBEL.-1. A case

is brought to the supreme court on a petition in error and case made for the supreme court. Such case made shows upon its face that the case was settled and signed by the judge of the court below five days before the time had arrived for so settling and signing such case; and the case made does not show whether the case was ever served upon the opposite party or his attorney had any notice thereof, or whether the opposite party or his attorney was present at the time when such case was settled and signed; but evidence was introduced in the supreme court satisfactorily showing that the case was properly served upon the attorney of record of the opposite party, who then said it was "all right," and who was afterwards present when the case was settled and signed and made no objection thereto: Held, that such case will be treated as a valid case made for the supreme court. 2. The defendant, Daniel R. Anthony, published in a newspaper called the Leavenworth Daily Times, an article concerning the plaintiff, Edward Russell, which article contains, among other things, the following: "Who is Ed. Russell, in whose eyes swindling is no crime? He is secretary of the bankrupt Kansas Insurance Company. Less than two years ago he was State commissioner of insurance, and certified under his oath of office that this bankrupt concern was a sound and solvent insurance company, while he knew it was at that very time hopelessly bankrupt. He was forced to leave the office of commissioner of insurance because the Leavenworth Times exposed his official 'crookedness,' and compelled him to disgorge eight thousand dollars of the State's money." The words "State commissioner of insurance," as used in said article, were intended and understood to mean the office of "superintendent of insurance" for the insurance department of the State of Kansas. Held, that said article, if false, and if published without any sufficient excuse, is libelous, and that it will be presumed to be false, and published without any sufficient excuse until the contrary is shown, and that the burden of proving the contrary rests upon the defendant. And it makes no difference that the plaintiff had left the office of superintendent of insurance and was not in office when the article was published; nor does it make any difference that the plaintiff alleged in his petition, in addition to what was necessary to be alleged, that said article charged him with committing the crimes of perjury and embezzlement, when in fact it did not so appear. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Russell v. Anthony.

PARTNERS-FORECLOSURE OF MORTGAGE.-H and M as partners owned certain personal and real property M, by a written contract, sold all his interest therein to to H, H agreeing to pay therefor all the partnership debts and $1,500 to M. H took immediate and exclusive possession of all the property, and M abandoned the same. H then mortgaged the real estate to Z, and to secure a partnership debt. Afterwards Z obtained a judgment against H on the mortgage and for the said debt and for the sale of the mortgaged property to pay said debt. Afterwards S became the owner of said judgment and all Z's interest therein. Afterwards S, in order to preserve his own lien on said mortgaged property, paid certain taxes thereon, which taxes were a lien thereon. Held, that although the legal title to said mortgaged property may have been and may still be in H and M conjointly, yet, that H when he mortgaged said property, was the undoubted equitable owner thereof; that he had a right to mortgage the same to secure the payment of said partnership debt, and that the plaintiff, S, may now have judgment against both H and M, decreeing that said mortgaged property be sold to pay said partnership debt, and also to pay said taxes. Opinion by VALENTINE, J. Reversed. Horton, C. J., concurring.-Seamen v. Huffaker.

PRINCIPAL AND SURETY-EVIDENCE.-1. In an action against the principal and surety on a joint and several obligation, an admission or declaration of the principal, after there has been a breach of the contract on which the surety is liable, is not admissible against the surety, as a recovery may be had in the action against the principal alone, or against both. 2, Where L was to act as agent of B & Co., to sell goods and merchandise placed by them in his possession, and H, J & C signed a written obligation with L, conditioned that if L should well and truly do all things in and about the management of the said business honorably and faithfully and account for all the goods and merchandise delivered to him and return the goods and merchandise to B & Co. when demanded, and pay all differences, should any occur, with twelve per cent. interest from the time of demand the said obligation to be void, and thereafter in an action against L and his sureties upon the said undertaking, the trial court admitted the declarations of L concerning his disposi tion of property and indebtedness to B & Co. after the property had been sold and the proceeds converted by L to his own use, and after repeated demands: Held, error, as such subsequent declarations had no direct connection with his preceding acts so as to bind his sureties. Opinion by HORTON, C. J. Modified. All the justices concurring.—Lee v. Brown.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January, 1879.

MARRIED WOMAN-CONTRACT MADE IN ANOTHER STATE. A contract made in another State by a married woman residing here, which a married woman is allowed by the law of that State to make, but is not under the law of this Commonwealth capable of making, will sustain an action against her in our courts. Opinion by GRAY, C. J.-Millikin v. Pratt.

INDICTMENT- PLEA IN BAR- COMPLAINT. The defendant, who was indicted in the superior court for larceny, filed a plea in bar alleging that a complaint for the same offense had been made against him in the municipal court, which was subsequently dismissed. To this the government demurred, and the court sustained the demurrer. Held, that such ruling was correct. The effect of dismissing a complaint without a trial is like that of quashing or entering a nolle pros. of an indictment. By neither of these is the defendant acquitted of the offense charged against him, but is only exempted from liability on that complaint or indictment. Opinion by MORTON, J.-Com. v. Bressant.

DEMAND CONVERSION— MITIGATION OF DAMAGES.-1. It is not necessary to constitute a good demand that the interest should be computed and added to the principal sum. Jones v. Richardson, 10 Met. 481. 2. When the plaintiff in making his demand claimed less interest than that which was due him by virtue of the mortgage under which he claimed, it was held that the demand was not thereby invalidated. 3. When an officer is sued by a mortgagee of personal property for a conversion by attaching the same, and has failed to restore the property to him within the time limited by the statute, or to pay the amount due upon the mortgage on demand, evidence of a subsequent restoration is not admissible in mitigation of damages. See Forbes v. Parker, 16 Pick. 472; Howe v. Bartlett, 8 Allen, 20; Alden v. Lincoln, 13 Met. 204, Opinion by COLT, J.-Robinson v. Sprague,

DIVORCE-INTOXICATION- EVIDENCE.-The statute which makes gross and confirmed habits of intoxication a ground of divorce, does not undertake to define these terms; and where the evidence showed that for a period of twelve or fifteen years the libellee had as often as three or four times a year yielded to an impulse to drink to excess; that on such occasions he became grossly intoxicated, continuing in that condition a week or ten days; that at such times he was sent or went to the inebriate asylum; that when the desire for drink came upon him he could not resist, and that a single glass would bring on excessive drinking; and that no improvement had been shown: Held, that the judge was justified in finding the charge in the libel to be true. Opinion by AMES, J.Blaney v. Blaney.

TRUSTEE LIABILITY FOR INVESTING TRUST FUNDS.-The English rule which requires trustees to invest in public funds only has never been recognized here; and where the trustee invested in railroad bonds and in a promissory note of an individual secured by a pledge of twice its amount of such bonds, it appearing that the roads were in the management of men who possessed in a high degree the confidence of the community for integrity and business ability, and that the bonds were regarded as a first-class investment, and were purchased by persons of reputed good judgment for permanent investment: Held, that the trustee acted with the sound discretion which the law required of him; and that neither the fact that the railroad was outside the Commonwealth, nor the fact that the money applied in this investment was derived from the sale of bonds of the United States, was sufficient to control the effect of the other facts reported. Opinion by GRAY, C. J.-Brown v. French.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, January 25, 1879.]

MECHANICS' LIEN- MATERIALS FURNISHED FOR CURBING, GRADING AND PAVING STREET IN FRONT OF LOT. This was a petition under the mechanics' lien law to establish a lien on the premises described for materials and labor furnished and performed under a contract with the owner for "curbing, grading and paving" the street in front of the lot owned by defendant. Petition alleges that defendants "promised, contracted and agreed" that petitioner might have a lien on the premises described, which is on an abutting lot. Demurrer interposed, which was sustained and bill dismissed. SCOTT, J., says: "There was no error in dismissing the petition. The statute has by no express terms given any lien in such cases, and we have no right by judicial construction to enlarge its provisions.

Under the statute upon which suit is brought, the contract must be with the owner of the property, and must be for the building, altering, repairing or ornamenting of any house or other building or appurtenance thereto on such lot, or upon any street or alley' before the mechanics or material men can have a lien upon the premises for their labor or materials furnished. What is meant by the phrase 'upon any street or alley' may not be readily understood, but it is clear that the petition in this case does not show the labor and materials furnished were for the 'building, altering, repairing or ornamenting any house or other building or appurtenance thereto,' but the same were for work in curbing, grading and paving' the street-a work wholly disconnected with the buildings, if there was any on the

lot against which the lien is sought." Affirmed.Smith v. Kennedy.

ASSUMPSIT-IMPLIED CONTRACT-STATUTE OF LIM ITATIONS- WHEN IT BEGINS TO RUN ON IMPLIED CONTRACT. This was an action of assumpsit brought by plaintiff to recover of defendant for cast and wrought iron work delivered for a building which defendant had undertaken to erect. The declaration contains only the common counts, to which defendant pleaded the general issue and the statute of limitations. Plaintiff claims that he had an express contract with defendant. The latter denies this. A large quantity of iron was furnished for the building but not all called for by the contract when the building was destroyed by fire on the 9th day of October, 1871. SCOTT, J., says: "The evidence is so conflicting that the court was not warranted in believing that any iron work for any purpose was in fact delivered about the first of October previously to the destruction of the building. This action was not commenced until the 25th of September, 1876, and a period of more than five years having elapsed since the delivery of any of the iron work, it seems the statute of limitations interposed would constitute a complete bar to the action. Even if it be conceded that some articles were delivered within a period of five years, counsel does not, as we understand him, insist it is such a running account as would withdraw the other items of iron work from the operations of the statute of limitations. The right of recovery is not based upon a running account, nor upon any express contract, but upon an implied contract which counsel insists arose and took the place of the express contract on the 9th day of October, 1871. When the law affords a remedy in case of the partial performance of the contract,it is not upon the original contract, but it is upon the quantum meruit, upon an implied promise to pay so much as the material and labor were reasonably worth, when delivered on account as though no contract had ever existed. 1 Gil. 92; 5 Gil. 298. It is plain, if the original agreement was abandoned, on the destruction of the building, in an incomplete state and before plaintiffs had fulfilled their contract, there could be no recovery for what was done, except upon an implied agreement to pay so much as the materials were worth, and evidently the statute of limitations will begin to run from the date of furnishing the materials." Affirmed. WALKER and DICKEY, J.J., dissenting.-Schello v. McEcan. INDICTMENT DISTRIBUTING OBSCENE LITERATURE-FAILURE TO SET OUT THE OBSCENE MATTER COMPLAINED OF.-This was a prosecution upon an indictment for having in possession and giving away an obscene and indecent pamphlet. A motion was made in the court below to quash the indictment, but was overruled. A trial had resulted in a verdict of guilty, and defendant appeals, and claims that the indictment is defective in not setting out what is claimed to be the obscene matter. On the other hand it is claimed that the indictment is good and entirely sufficient under the 408 section of the criminal code, which provides that an indictment shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. WALKER, J., says: "The 223d section of the criminal code, under which this prosecution is had, is of recent adoption in our State. and has not been previously before us for construction. Whilst the 408th section is broad and comprehensive, a majority of the court are of the opinion that, under this section, it was necessary to set out the supposed obscene matter in the indictment, unless the obscene publication is in the hands of the defendant, or out of the power of the