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those relations on my side, such as she thinks worthy of remuneration, but under no restriction to any stated property, but quite at liberty to give and distribute what, and to who, my dear wife may please;" Held, that such words did not create a precatory trust.
BANKRUPTCY-BILL OF SALE-ILLEGAL CONSIDERATION — STIFLING A PROSECUTION - CONCEALMENT OF FELONY – ACT OF BANKRUPTCY.-In Re Maplebacks. Court of Appeal, 25 W. R. 103. M wrote to B to the effect that he had forged B's name by putting it with his own to a bill of exchange for £100, which would become due in a few days. He implored B to meet the bill, and offered, if he would do so, to give him a bill of sale of all his property, to secure what he owed him. B, who was already an unsecured creditor of M for £100, paid the £100 bill and took a bill of sale of all M's property to secure £200, Three weeks later B entered and sold the property and satisfied his debt. The following month M was adjudicated a bankrupt; the act of bankruptcy alleged being the execution of the bill of sale. The trustee applied for an order that B should refund the proceeds of sale received by him, on the ground that the bill of sale was void, as being given only for a past debt, and as being the price of a bargain for the concealment of a felony. Held, that, the wrong done not being an offense against the bankrupt law, the trustee was in no better position than the bankrupt would have been, and that, the latter having been a party to the wrong, the maxim In pari delicto potior est conditio possidentis would have applied, and no action could have been maintained. Decision of BACON, C. J., reversed. Semble, that if B had not realized his security, the court would have refused an application by him to enforce it.
RESIDENCE OF JOINT STOCK COMPANY.-Cesena Sulphur Co, and Calcutta Jute Co. v. Nicholson. High Court of Justice, 25 W. R. 71. The Cesena Sulphur Company was formed to carry on the business of sulphur miners, etc., at Cesena, in Italy. It was incorporated under the Companies' Acts, 1862 and 1867, and was subsequently registered in Italy for all purposes. The company, so far as its affairs in the United Kingdom are concerned, is managed by a board of directors holding their meetings at the registered office of the company in England. The practical management of the company's affairs in Italy is carried on by a delegation consisting of two or three members of the board, one of whom is the managing director and resides at Cesena, where all the operations connected with the sulphur are carried on and the profits are earned. All the affairs of the company are under the control of the board, subject to the control of general meetings of the shareholders, which, by the articles of association, are to be held in London. About onethird of the shares are held in England, and the remainder by foreigners resident abroad. The only part of the profits which comes to the United Kingdom is that required to pay the dividends of the English share. holders.--The Calcutta Jute Mills Company was formed for the purpose of taking over the business of certain jute mills near Calcutta. It was incorporated under the Companies' Acts, 1862 nnd 1867, and was not registered elsewhere than in England. The memorandum oi association provided that the registered office of the company should be in England. There is, in fact, no such office; but one of the directors lends his own office for registration and for the purpose of holding meetings. The affairs of the company in the United King. dom are managed by a board of not less than five directors, by whom agents and a resident director at Calcutta having the entire control of the India business are appointed. All the practical part of the business is carried on exclusively in India, where alone the profits are earned. The compuny has no property in the United Kingdom, and nothing comes into the hands of the English directors except the money which is sent from India to defray the necessary expenses, and to pay the dividends of the English shareholders, who form about a third part of the whole body of share. holders. Held, that the companies are“ residing within the United Kingdom," within 16 & 17 Vict. c. 34, s. ? schedule D., and are liable to pay income-tax upon the whole of its profits, and not merely on such portion as is remitted to England for distribution among the Eng. lish shareholders.
RAILWAY COMPANY-CLOAK-ROOM - BAILMENTDEPOSIT-NOTICE TO DEPOSITOR-TICKET-CONDITION ON BACK.-Parker v. South Eastern R. R. High Court of Justice, 25 W. R. 97. Where one party reasonably supposes the contract to be a simple and ordinary one, notice of special and unusual conditions must be brought home to him, and assented to by him, or he will not be bound by them. Thus, where the plaintiff left his bag in the cloak-room at a railway station, and received a ticket which he supposed to be merely a voucher to identify the bag, or a receipt for the two-pence he had paid, and he never read or was aware of the special condition indorsed upon the back of it, and referred to on the front by the words“ see back;' Held, that there was no legal obligation upon him to make himself acquainted with the special condition, and therefore, as he never assented to it, it was no part of the contract. Held, also, that the judge was right in leaving it as a question for the jury, whether the plaintiff was, under the circumstances, bound, in the exercise of reasonable and proper caution, to make himself acquainted with the special condition. Authorities cited: Henderson v. Stevenson, L. R. 2 Sc. & D. 470; Van Toll v. South Eastern Railway Co., 10 W. R. 578, 12 C. B. N. S. 75; Stewart v. London and North Western Railway Co., 12 W. R. 689, 3 H. & C. 135; Zunz v. South Eastern Railway Co., 17 W. R. 1096, L. R. 4 Q. B. 539; Lewis v. McKee, 17 W. R. 325, L. R. 4 Ex. 58; York, Newcastle and Berwick Railway Co. v. Crisp, 2 W. R. 428, 14 C. B. N. S. 527; Kerr v. Willan, 6 M. & S. 150; Rowley v. Horne, 3 Bing. 2.
ABSTRACT OF DECISIONS OF ST. LOUIS
COURT OF APPEALS.
October Term, 1876.
HON. EDWARD A. LEWIS, Chief Justice.
ROBERT A. BAKEWELL, Associate Justices. 66 CHAS. S. HAYDEN,
USURY-ONCE PAID CAN NOT BE RECOVERED BACK-IN. TEREST-EVASION OF THE LAW.-Usurious interest once paid can neither be recovered back, nor set up by way of set-off or recoupment, in an action by the lender against the borrower. But where notes are given for usurious interest, the usury may be pleaded to an action on such notes, and plaintiff will only be allowed to recover the amount of legal interest, and that for the benefit of the school fund of the county. The law can not be evaded by receiving the excess in cash and taking notes for the amount which represents the lawful rate. Judgment reversed. Opinion by BAKEWELL, J.-Lisk v. Horton.
DOWER - CHILD'S PART AWARDED TO WIDOW-CON. STRUCTION OF STATUTE.--The section of the statute rela
INCOME-TAX_“ PROFITS OR GAINS ARISING OR ACCRUING TO ANY PERSON RESIDING WITHIN THE UNITED KINGDOM”-JOINT STOCK COMPANY INCORPORATED AND REGISTERED IN ENGLAND, BUT CARRYING ON BUSINESS AND EARNING ITS PROFITS ABROAD
ting to dower (Wag. Stat. 539, $ 4), which gives a widow a child's part of the personalty owned by the husband at the time of his death, will not be construed to mean that she shall take such portion discharged of her husband's debts, notwithstanding such section omits mention of such debts. The policy of the law does not favor the exhaustion of the property of decedents to the prejudice of creditors, and unless such intention is expressed or clearly implied in the statute, such intention will not be imputed to the legis. lature. Judgment affirmed. Opinion by HAYDEN, J.Cox v. Dnnn.
VARIATION OF WRITTEN CONTRACTS BY PAROL-ONE "SIDE OF A CONTRACT IN WRITING-PRACTICE IN COURT OF APPEALS-OBJECTIONS TO INSTRUCTIONS.-Where a ing upon which suit is brought is only one side of a contract, showing the obligation of the defendant, and the defendant can not show the obligation resting upon the plaintiff without evidence aliunde, the rule against parol variations of written contracts does not apply. That rule proceeds upon the basis that the parties have put their mutual obligations in writing. [Citing Rollins v. Claybrook, 22 Mo. 405; Horwitz v. Ins. Co., 40 Mo. 557-60; Moss v. Green, 41 Mo. 389; Bunse v. Beck, 43 Mo. 266; Life Ass'n, etc., v. Cravens, 60 Mo. 388). Appellant will not be heard to object here to instructions given without objection below. Judgment affirmed. Opinion by HAYDEN, J.-Brink v. Holtrate.
PARTNERS DEFENDANTS IN EXECUTION-SALE OF ONE PARTNER'S INTEREST TO THE OTHER-BOND TO INDEM NIFY.-An execution issued by a justice of the peace against partners in business was placed in the hands of the constable, and subsequently one partner sold out to the other. The execution was levied on the partnership property, and one of the partners claimed the same as his individual property, and the constable summoned a jury to try the right of property, and the jury having found the property to be the individual property of the one partner the plaintiff's gave a bond to indemnify, etc., and the con. stable sold. In an action on the bond, held, that the property was subject to the execution; that the bond was void, and that the trial by the constable's jury was a nullity, the property not having been claimed "by a person other than the defendant in execution.” Opinion by HOUGH, J.Pierce, to use, etc. v. Kingsbury et al.
HUSBAND AND WIFE-NOTE OF HUSBAND TO WIFE.Where a woman at the time of her marriage was possessed of personal property in possession (being money, mules, etc., not choses in action), and after her marriage, upon the husband's taking and using the same, she took his note for the amount thereof, secured by a deed of trust upon land and upon the personal property, in the ordinary form, not declaring any separate estate in the wife, the note so taken is not a pullity, but the transaction is valid, as a voluntary settlement as between the wife and the husband and his legal representatives. But if at the date of the transac. tion the husband was in debt, the trustee in the deed of trust can not hold the personal property against the creditor of the husband, nor as against the purchaser at an execution sale made under the judgment rendered for such indebtedness. Bishop's Law of Married Women, $$ 731, 123, 720; Story's Eq. $1373; Wood v. Warden's admrs., 20 Ohio, 518; Denny v. Williams, 26 Conn, 226; Maramon v. Maramon, 4 Metc. 84. Opinion by HOUGH, J.-Terry, Trust tee, v. Wilson.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF MISSOURI.
(October Term, 1876.
Hon. T. A. SHERWOOD, Chief Justice.
16 WM. B. NAPTON, 66 WARWICK HOUGH, Associate Justices. 16 E. H. NORTON, 46 JOHN W. HENRY,
ABSTRACT OF DECISIONS OF SUPREME
COURT OF NORTH CAROLINA.
January Term, 1877.
Hox. RICHMOND M. PEARSON, Chief Justice.
"WHERE 18 THE COURT-HOUSE"-JUDICIAL SALES.The place where a circuit court is actually held is presumptively the court-house, and the proceedings of the court are not void, even if its session was held at a place unauthorized by law. Kane v. M'Cown, 55 Mo. 198. Even where an act of the legislature provided that, “the seat of justice for P. County should be removed" to another town in said county, if the court actually sat at the old county seat, the validity of a judicial sale regularly made at the court-house door during its session, can not be questioned in any collateral proceeding. Opinion by HOUGH, J.Bouldin v. Ewart.
JUSTICES' COURTS-APPEAL FROM JUDGMENT BY DEFAULT.-Although the statute provides (Wag. Stat. Art. 9, Sec. 2,) that no appeal can be taken from a judgment by default in a justice's court, unless application shall have been made to set aside the judgment, and also provides that the justice shall not set aside a judgment by de. fault, except upon the payment of all costs then ac. crued (art. 6, sec. 17), yet it has been distinctly de. cided by this court that, where the motion to set aside a judgment by default has been overruled by the justice, no matter for what cause, there is a right of appeal (Beers v. A. & P. R. R., 55 Mo. 292: Palmer v. K. C.. St. Joe & c. R., 57 Mo. 249): and this decision is adhered to in this case, althongh the justice overruled the motion because the costs were not paid. Opinion by HOUGH, J.-Hooker v. A. f P. R. R.
GUARDIAN AND WARD-ANNUAL SETTLEMENTS-PAROL TESTIMONY.-The annual settlements of a guardian with the probate court are nothing more than mere exhibits of the guardian's statement of his account. And the entries of record in relation thereto are not, in any sense, judg. ments of the probate court, so that it is proper to admi parol evidence as to any charge made, or credit given, by such entries, although the original vouchers therefor may have been destroyed. Shutter v. Kirtley, 62 Mo. 417; In re J. L. Davis, Ex'r., 62 Mo. 453; Gibson v. Vaugh, 61 Mo. 418. In this case the credits claimed were for board, clothing, tuition and medical attendance, and the court held that no specific items or amounts need be identified, as the proof was that nothing should have been allowed on any of the several matters of account claimed as credits. Opinion by HOUGH, J.-Kidd and Wife v. Guibor, Guard.
STATUTE OF LIMITATIONS-TENDER.-To take a case out of the operation of the statute of limitations, the promise to pay, or the acknowledgment of the debt, must be made to the creditor himself. A tender of depreciated currency will not prevent the operation of the statute.-Parker v. Shaford.
MORTGAGE OF STOCK-MORTGAGOR REMAINING IN PosSESSION.-A mortgage of a stock of merchandise, containing the provision that the mortgagor is to remain in possession, and continue to sell the goods, approaches the verge of be. ing on its face fraudulent in law, but is not so. In such case the mortgage affords the strongest possible ground of presumption of fraud, and the burden of disproving the fraud is upon the party claiming under the mortgage.--Chartham v. Hawkins.
FRAUDULENT TRANSACTION JUDGMENT NON OBSTANTE VEREDICTO - Where an administrator loans money, be. longing to the estate of his intestate, to the husband of one of the next of kin, and takes a note with the understanding that it is to be accepted as part of the wife's distributive share on final settlement: Held, that there is no presumption of law that the transaction is fraudulent. The practice of granting judgment non obstante veredicto is very restrict. ed, and is confined to cases where a plea confesses a cause of action, and the matter relied upon in avoidance is insufficient.-Moye r. Petway.
CERTIFICATE OF DEPOSIT - WHEN NEGOTIABLE.- A certificate of deposit, when expressed in negotiable words, is negotiable and subject to the same rules, etc., which control other negotiable paper. To constitute a negotiable instrument, the promise must be to pay in money; therefore, where a certificate of deposit, given to A, and payable " in
current funds," came to be by several indorsements, Held, in an action by B against an intermediate indorser, that B was not entitled to recover. In such case B stands in the shoes of A, and his only remedy is against the person who issued the certificate.-Johnson v. Henderson.
BOUNDARIES OF LAND-CONFLICTING LINES - PAROL EVIDENCE.-A call for the line of another tract of land is “ a natural boundary," and controls course and distance. Such a call excludes the question, whether marked lines and corners, not called for, can control course and distance. In running the call, the line must be run straight, so as to strike the line called for, making as small a departure as may be from the course and distance called for in the grant. Where there are two lines answering the call, the jury, in determining which is meant, may consider the circumstances that lines were run by the surveyor and corners made at the time of the survey, leading to one of them. Marked line-trees and corners not called for may control an obvious mistake in regard to course; but distances may be run, unless controlled by a natural boundary. The terms of a written agreement can not be raised by parol evidence. The only exception is made in questions of boundary where, there being no natural boundary called for, parol evidence corroborated by natural evidence of trees marked at the time, although not called for, is allowed to correct or explain a mistake in the courses of a grant.-Graybeal t. Powers.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF INDIANA.
November Term, 1876.
ive, of the mortgage. But where there is no obligation on the mortgagee, and such advances or liabilities are merely optional with him, and he has actual notice of a subsequent incumbrance or conveyance of the mortgaged premises, before making the advances or incurring the liabilities, his lien is not good as against subsequent purchasers or in. cumbrancers. See Am. Law Reg. May, 1872, and authori. ties cited; 18 Mich. 380; 4 Kent. Com. 176. A, B and C, the owners of certain real estate, mortgaged it to D to secure the latter against any loss he might sustain by indorsing thereafter for C to the amount of $4,000, D agreeing, for å valuable consideration, to indorse for C to that amount. Afterwards conveyed his interest in the mortgaged premises to A and B, of which D had notice. After this, upon the demand of C, D indorsed for the latter to the amount of $4,000, most of which he was compelled to pay. Held, that there was a valid consideration for D's promise to indorse for C, and that he acquired a lien on the mort. gaged premises as against A and B, by virtue of his mort. gage. Judgment reversed. Opinion by WORDEN, C. J.Brinkmeyer v. Brownelles.
SURETIES-PAYEE NOT BOUND TO FOLLOW PRINCIPAL OUT OF THE STATE.-Under sections 672 and 673 of the In. diana code, which provide that any person bound as surety upon any contract in writing for the payment of money, etc., when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute an action on the contract, and that if the creditor or obligee fail to proceed within a reasonable time to bring and prosecute such action to final judgment, the surety shall be discharged, the payee of a note is not bound, under such notice, to follow the principal out of the state. If the creditor were bound to go out of the state, it would be hard to fix a boundary beyond which he would not be required to go. Besides, where the common law prevails, unmodified by statute, a judgment against one of several joint debtors merges the cause of action and the others can not afterwards be sued, and if the creditor were to follow the principal into another state and there obtain a several judgment against him, the judgment might bar an action against the surety, though the principal were utterly insolvent and the judgment never paid. The rule here laid down works no hardship on the surety; for he may pay the debt, follow his principal wherever he may go, and en. force his remedy against him. Judgment afirmed. Opinion by WORDEN, C. J.-Conklin v. Conklin.
FOREIGN CORPORATIONS-FAILURE TO COMPLY WITH STATUTE-ABATEMENT-PLEADING.-It is not necessary that the agent of the manufacturer of a patented article, by authority of the patentee, should comply with the atat. ute respecting foreign corporations before he can sell sucb articles in the state of Indiana; nor does the failure of such agent to comply with the requirements of said act render his contracts under the name and on behalf of the corpo. ration void. While the general rule is that a contract pro. hibited by statute is void, there are many exceptions, and the intention of the Legislature, as gathered from the en. tire act, must be the guide in determining whether a particular case should form an exception to the general rule. $6 Iowa, 546 : 64 MO. 400: 59 N. Y. 53. The act in question does not render such contracts, as that above mentioned, void; but it suit be instituted thereon, and an answer of noncompliance with the statute be filed, such answer will show that the suit is prematurely brought, and will operate, if true, to abate the action. That the right of action had
: accrued when the suit commenced may be pleaded in abatement, as when an action on contract is commenced before the time fixed for performance. Gould's Pleading, 269. Judgment reversed. Opinion by PERKINS, J.-Food Mowing and Reaping Machine Co. v. Caldwell.
HON. JAMES L. WORDEN, Chief Justice. " HORACE P. BIDDLE 16 WILLIAM E. NIBLACK, \ Associate Justices.
SAMUEL E. PERKINS, “ GEORGE V. HOWK,
ATTACHMENT - ANSWER IN DENIAL - PRACTICE.-The answer of the defendant in an attachment suit, denying the allegations of the complaint and the aflidavit, does not admit the truth of the affidavit because the answer is not verified. An answer in denial of the ground of attachment stated in the affidavit is in bar of the proceedings in attachment and need not be sworn to. Such an answer presents an issue to be tried with the other issues in the cause. The attachment is not an independent proceeding, but one in aid of the action in which it is issued. Judg. ment affirmed. Opinion by PERKINS, J.-McQuirk v. Cummings.
ACTION FOR WORK AND LABOR-VOID INDENTURE OF APPRENTICESHIP.-In a suit for the value of work and labor. the answer averred that the overseers of the poor of Carr township had bound plaintiff to defendant until he should be twenty-one years old, and that the work and labor sued for were done before he reached that age. Held, that the indenture of apprenticeship set out in the answer, not being in conformity with the statute, was illegal and void, and did not give the defendant any right to the services of the plaintiff during his minority. 6 Ind. 262; 25 Ind. 427. Judg. ment affirmed. Opinion by HOWK, J.-Hunsucker v. Elmore.
PRINCIPAL AND AGENT-ESTOPPEL.–Where the plaintiffs occupied a warehouse belonging to defendant who sold the same, but did not make a deed for six months after, and between the sale and the making of the deed the plaintiff's put necessary repairs on the building, and the defendant agreed to, and did collect the cost thereof from his vendee for the plaintiffs; held, in an action for said money, it was immaterial whether the plaintiffs were authorized to make such repairs at the expense of the landlord, or had any right of action therefor. The defendant, having collected the money for the plaintiffs, acted as their agent and is estopped now to deny their right to it. 22 Ind. 207; 36 Id. 361. Judgment affirmed. Opinion by WORDEN, O.J.- Reed v. Dugan et al.
MORTGAGE TO SECURE FUTURE LIABILITY-CONVEYANCE OF MORTGAGED PREMISES.—Where a mortgagee has bound himself to make advances or incur liabilities, such advances, when made, relate back, and the mortgage will be a valid lien for advances made against subsequent purchasers or incumbrancers with notice, actual or construct:
ABSTRACT OF DECISIONS OF SUPREME
COURT OF KANSAS.
January Term, 1877.
D. M. VALENTINE, ) Associate Justices. 66 D. J. BREWER, S
APPEAL - REGULARITY - COLLATERAL INQUIRY.-1. Where a right of appeal is given and it appears that this right was attempted to be exercised; that the appellate
tribunal took jurisdiction of the matter; that the parties tained; held, that the judgment will not be reversed thereinterested appeared and were heard before such tribunal; for, unless it be affirmatively shown that the error affects that no objection was made to its jurisdiction of the appeal; the substantial rights of the party complaining. 4. Where the regularity of the steps taken to perfect such appeal an attempt is made to introduce evidence to establish the will in any collateral inquiry be presumed. Opinion by fact that the plaintiff did not testify on a former trial of the BREWER, J.-Board of Education v. Campbell.
case; held, that the evidence is rightfully rejected by the WHERE A REPLY HAS STOOD UNCHANGED for nearly
court as tending to introduce an immaterial issue on the
trial. 5. In an action for replevin, in the absence of fraud, three years, and where during that time the parties have once consented to judgment in favor of the plaintiff, but malice, negligence, oppression, proof of the value of the through some oversight the same was not entered upon
use of the property, or of special damages, the measure
of the plaintiff's damage for the detention of the property the journals of the court; held, that there was no error in
by the defendant is the interest on the value of the propoverruling a motion to strike the reply from the files, because filed one day after the time. Opinion by BREWER,
erty for the time it was wrongfully detained. 6. In an J.-City of Burlingame v. Kansas Valley Nat. Bank.
action of replevin against a sheriff and under-sheriff
for property seized by them on attachment, where the ATTACHMENT-MOTION TO DISCHARGE ON ACCOUNT OF
plaintiff's in the attachment proceedings are not made parOWNERSHIP-CONVEYANCE OF LAND-TRUST.--1. It is not
ties defendant; held, that a judgment rendered jointly competent for a defendant to move the court to discharge against said officers and the attaching creditors is erronean attachment, or set aside a levy under an execution, on ous as to the parties to the suit. Opinion by HORTON, C. J. the ground that the property attached or levied upon does -Palmer et al. v. Meines. not belong to him, and it is error for a court to sustain such
PROMISSORY NOTE-BONA FIDE PURCHASER-USURYmotion. 2. When a convevance of land for a valuable con
INTEREST-BILL OF PARTICULARS.-1. Where a bill of parsideration is made by A to B, under the direction and with
ticulars, filed by a plaintiff in a justice's court, states, in the consent of C, and the consideration therefor is paid by
substance, that the plaintiff previously gave a promissory C, and no agreement is made that B is to hold the land, or
note to the defendant for money loaned to the plaintiffsome interest therein, in trust for C, no use or trust results
ote also including a certain amount of usurious inin favor of C, but the title vests in B, and, held, that has
terest-and that the plaintiff afterwards gave another note no interest in the land which he can legally enforce. Opin.
to the defendant in lieu of said first-mentioned note for ion by HORTON, C. J.-Mitchell v. Skinner et al.
the full amount of said first mentioned note and the interFIRES CAUSED BY RAILROAD-CONTRIBUTORY NEGLI est that had accrued thereon, and that afterwards he, the GENCE.-1. The question as to when judgment will be re plaintiff, paid said second note on execution; and said bill versed because of an insufficiency of the evidence to bus. of particulars does not state that said second no tain the verdict again considered, and the decision with negotiable, or that it was transferred before due, or was regard to such question as heretofore made by the supreme transferred to an innocent purchaser, or that it was transcourt re-affirmed. 2. A person who stacks his hay on the ferred at all; and does not state what amount the plaintiff open prairie near a railroad track, with dry grass all around paid on execution, or whether he paid any usurious interthe hay, and dry grass intervening all the way from the est or not; and does not state for what amount the judg. stack to the railroad track, without taking any means for ment was rendered on which said execution was issued, or the protection of his hay from fire, may be guilty of negli. whether said judgment was rendered for any usurious gence in not taking better care of his property so as to pro. interest; and does not state what, or whether any defenses tect the same from fire, and whether he is guilty of negli. were set up in the action in which said judgment was rengence or not is a question of fact for the jury, and not a dered; but simply asks upon the foregoing alleged facts question of law for the court to decide. Opinion by VAL that a judgment shall be rendered in favor of the plaintiff ENTINE, J.-K. P. R. R. v. Brady et al.
and against the defendant for the entire amount of in CRIMINAL LAW-PROSECUTION FOR MURDER-EVIDENCE
est, legal as well as usurious, which the plaintifr paid or OF POISONING-EXPERT.-1. In a criminal prosecution for
agreed to pay on the money, which he, the plaintiff, bor. murder in the first degree, where it is claimed the deceased
rowed from the defendant; held, that the court below did came to his death by poison, and that a chemical analysis
not err in holding that said bill of particulars did not set of his stomach subsequently made tends to show the same:
forth facts sufficient to constitute a cause of action against held, that where sufficient evidence is introduced on the
the defendant. 2. Presuming, (for the purpose of sustain. trial to prove beyond a reasonable doubt that the stomach
ing the decision of the court below, and all presumptions analyzed was the stomach of the deceased and that it had
must be construed in favor of such decision), that the said not been improperly tampered with, the analysis may itself
action on said second note was not brought by an innocent be considered by the jury. It is not necessary in such a
and bona fide purchaser before due of a negotiable pote. case, that the stomach should be kept continuously under
then the plaintiff in this action had, in that action, a perlock and key or continuously sealed up. The court itself
fect defense to said note (which note was given in 1870) to should first pass upon the preliminary proof, and if the
the extent of all the interest paid or agreed to be paid by court should hold the same to be sufficient, then the ques
the plaintiff (Gen'l Stats. 525, 526, sections 3 and 4; Jenness tion of its sufficiency should be passed upon by the jury
v. Cutler, 12 Kas. 500; Ayres v. Probasco, 14 Kas. 175). under proper instructions from the court. 2. A person who
And the judgment in that action is a bar to this action, is a chemist and taxicologist may testify as an expert con.
whether the plaintiff in this action set up the defense of cerning the effect of a certain poison upon the human sys.
usury in that action or not. Opinion by VALENTINE, J.tem, although he may not be a physician or surgeon. Opin
Hover v. Cockins. ion by VALENTINE, J.-State r. Cook.
PROVINCE OF JURY-EVIDENCE-ESTOPPEL-REPLEVIN -MEASURE OF DAMAGES.-1. It is the province of the jury
ABSTRACT OF DECISIONS OF SUPREME to weigh the contradictory and conflicting evidence, and
COURT OF NEBRASKA. also consider all the testimony introduced in determining the issue presented, and, held, it is not error for the court to refuse to instruct the jury to the effect," that if the evi
January Term, 1877. dence of the plaintiff impressed their minds as being so unreasonable as to remove a fair presumption of the truth
Hox. GEORGE B. LAKE, Chief Justice. of the statements made by the plaintiff, they should find
" DANIEL GANTT, Associate Justices. for the defendant." 2. Where M told T, an agent of cred
" SAMUEL MAXWELL, itors of Zz, that certain personal property belonged to Z, her son-in-law, after the claim of said creditors had ac.
FORCIBLE ENTRY AND DETAINER.-In a proceeding for crued against Z, and such creditors were not influenced or
forcible entry into property, the gravamen of the action is induced to part with their goods or any property, or to
the unlawful and forcible entry into and detention of real Z any extension of credit; held, that when said personal
property, in the trial of which title to real estate can not property was attached at the suit of such creditors subse. be drawn in question. Judgment reversed. Opinion by quent to the statement of M to their agent, M was not es.
GANTT, J.-Myers v. Koenig. topped thereby from asserting ownership of the property ALTERATION OF INSTRUMENT-BREACH OF WARRANTY.attached, although she had not derived title to the property
itle to the property 1. An alteration is an act done upon an instrument, by after the time of said statement. 3. Where a preliminary | which its meaning or language is changed. It is the duty of question is asked, and objections thereto improperly sus. | the court to determine, as a question of law, whether an
alteration is material or not? Where a party has knowledge of the inferior character of seed before he sows the same, the party furnishing the seed is not liable for damages re. sulting to either the crop or land, in conseqence of the use of such inferior seed. Judgment reversed. Opinion by MAXWELL, J.-Olliver v. Hawley.
PAYMENT BY NOTE-EVIDENCE-CONFLICT OF TESTIMONY.-1. A note taken for a pre-existing debt, will not discharge the original cause of action, unless it is by ex. press agreement taken in payment of said prior debt, and at the risk of the creditor. 2. Where the original debt is sued on, the plaintiff must produce the new note on the trial, or satisfactorily show it is lost or destroyed. 3. In case of contlict of testimony, the jury must judge of the credibility of the witnesses, and determine the weight due to that of each witness. Judgment affirmed. Opinion by GANTT, J.-Young v. Hibbs..
EVIDENCE OF FRAUD IN UMPIRE.-Where a building contract provides that the work shall be done under the direction and superintendence, and to the satisfaction of an architect, to be testified by certificate under his hand, such architect is thereby constituted sole arbiter between the parties, and the parties are bound by his certificate; but if the owner avers that such certificate was procured by collusion and conspiracy between the builder and the architect, to cheat and defraud him, then evidence is ad. missible tending to prove such conspiracy and fraud, and that the building is not erected according to the terms, plans and specifications of the contract, or in a good work. manlike manner. Judgment reversed. Opinion by GANTT, J.-School District v. Randall.
DEFENSE TO FORECLOSURE OF MORTGAGE-TAXES AS INCUMBRANCE,-1. In a foreclosure suit, an answer setting up a garnishment of the money in the hands of a mortgagor by a creditor of the mortgagee, and averring that an as. signment of such mortgage and note was collusive, with out consideration, and for the sole purpose of defrauding the creditor of the mortgagee, constitutes a good defense, if true. 2. Where it appears that a mortgage security was given in part payment of the land mortgaged, and that the same land was sold and conveyed to the mortgagor with covenants against all incumbrances thereon, unpaid taxes, due at the time of the sale, constitute an incumbrance on the land, and in a foreclosure suit may be pleaded as an offset pro tanto. Judgment reversed. Opinion by GANTT, J.-Nesbitt v. Campbell.
QUALIFICATION OF JURORS-TESTIMONY OF EXPERTSASSAULT WITH INTENT TO MURDER.-1. If, upon examination of a juror, it is shown that he has an opinion, founded upon rumor, newspaper reports, or hearsay, and it shall satisfactorily appear that the character of such opinion is such that it will not interfere with his rendering an im. partial verdict, it is not error to admit him to the jury. Loose and unguarded expressions, made by persons at the time the offense is committed, and not thought of afterwards, are entitled to very little, if any, weight as objec. tions to a juror. 2. In a prosecution for an assault with intent to murder, physicians and surgeons may be allowed to testify what, in their opinion, would be the natural and probable results of injuries inflicted by the accused upon the person assaulted. 3. Under the statute, an assault with intent to murder is but one offense; and if the indictment contain no other, a general verdict of guilty is good and valid. Judgment affirmed. Opinion by GANTT, J.-Curry v. State.
UNIVERSITY OF NEBRASKA.-The Regents of the University of Nebraska, as such corporation, may sue and be sued in matters over which express authority is given to such corporation. The creation of such public corporation by legislative authority is not repugnant to the constitution. Such public corporation is but part of the machinery employed in carrying on the affairs of state, and is subject to be changed, modified, restrained or de. stroyed, as the general interests and public exigencies may require, without infringing private rights. Under the leg. islative acts of 1869 and 1875, the state treasurer is made the custodian of all the university funds, to be disbursed by him upon warrants drawn by the state auditor. The University corporation acts simply by delegated authority and can exercise only such powers as are expressly given to it; and not having corporate power over the university funds, it has no authority to bring and maintain an action to recover such funds. Judgment aflirmed. Opinion by GANTT, J.-Regents of the University of Nebraska v. McConnell.
SERJEANTS'-INN and Hall were put up for auction last month. The bidding commenced at £40,000, and the property was ultimately knocked down to Mr. Serjeant Cox for £57,100.
LORD LYNDHURST dsed to maintain that it was one of the chief duties of a judge to render it disagreeable to counsel to talk nonsense.
An attorney can not act on both sides, even with the consent of the parties. Anon. 7 Mod. 47. The court committed an attorney to the Fleet, and struck him off the roll, for accepting a retainer on both sides. Simon Mason's Case, Freeman, 74.
THE standard of drunkenness varies considerably be. tween London and Edinburgh. A witness in a London court testified that" a man is properly drunk when he can not walk." An Edinburgh witness testified that "a man has na enough till he canna speak."
HON. ELON FARNSWORTH, the first chancellor of Michi. gan, died at his residence in Detroit on the 24th inst. He settled in that city in 1823, when there were but a few in. habitants in the then vast territory of Michigan. He was appointed chancellor in 1835. “The court," says Judge Campbell, in his History of Michigan, “under his presi dency acquired an enviable reputation for the justice and soundness of its decisions, and his opinions were plain and lucid statements of correct principles." He was succeeded on his resignation in 1812, by Randolph Manning who died in August, 1864, while holding the position of judge of the supreme court. The court of chancery was abolished in 1846 and its jurisdiction vested in the circuit courts.
A BILL introduced by the Canadian government against the use of fire-arms provides that persons found carrying a pistol without reasonable cause may be bound to keep the peace: that a person having a pistol in his possession when arrested for committing an offense, shall be liable on conviction to a fine of not less than $20 or more than $50, or to imprisonment for not less than three months, that a person having a pistol with intent to injure shall be liable to a fine of not less than $50 or more than $200, or to im. prisonment for not more than six months, such intent to be prima facie inferred from the carrying of the weapon. The pointing of a fire-arm, loaded or unloaded, at a person, is, moreover, an offense for which a fine of not less than $20 or more than $50 may be imposed, or a sentence of im. prisonment of not less than thirty days.
THE DUTIES OF RECEIVERS.-In an English court recently it appeared that the receiver in an estate in liquidation had prepared a statement of the debtor's affairs to be submitted to a meeting of the creditors. The judge com. mented strongly on the fact. The receiver, he said, had been intermeddling with matters that were no part of his duty. Mr. Wilkinson (the receiver's solicitor): Whose duty is it, then? His Honor: The debtor's. Mr. Wilkinson: If the debtor is unable to do tt? His Honor: Let him come to the court. Mr. Wilkinson: Then you would have an application every time a petition was filed. His Honor: The applications would be refused, unless sufficient reasons were given. The receiver is the last person to help the debtor. He is the officer of the court, to take possession of the things of the debtor, until his affairs come before his creditors. It is out of this that the abuses have arisee, which I hope will soon be corrected. Mr. Wilkinson: I hope so, and also that the result of these abuses will fall on the heads of the debtors. His Honor: And on those who assist them. The receiver has no right to make out the debtor's accounts for the purposes of his creditors. If the debtor can not do it himself, let him come to the court for assistance, and the court will then consider whether he is entitled to it or not. I am not speaking without some reason. Unfortunately, cases come before me in which re. ceivers make out accounts, swell the debts, diminish the assets, get an estate to show a small composition, and get a small composition accepted. That comes of the receivers making themselves the agents of the debtors. Mr. Wilkinson: There is no suggestion that the receiver - His Honor; I am not speaking of this case; but I say that the receivers have no right to assist the debtors in making out their statements. Mr. Wilkinson said he had no doubt that some receivers thought it was their duty to do so. His Honor: I don't know where they have got their impression from. Mr. Wilkinson hoped his honor's observations would have the desired effect.