who receives secret instructions qualifying or restricting an apparently absolute power. Jarvis v. Rogers, 15 Mass. 389; Pickering v. Burk, 15 East, 38: Fatman v. Loback, 1 Duer, 354; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 31. One or more innocent parties must suffer by the fraud of C. Under similar circumstances courts have repeatedly held that the party must suffer who has exhibited the greatest degree of negligence. The leading case on the indorsement of bills of lading, Lickbarrow v. Mason, 2 T. R. 63, is an authority on this point. See also Lobdell v. Baker, 3 Met. 469; Polhill v. Walter, 3 B. & Ad. 114. The bank is precluded from setting up the fact of the forgery of the instrument, because it would be a wrong on its own part, and an injury to others whose conduct had been influenced by the acts and omissions of the bank. Swayne, J., in Merchants' Bank v. State Bank, 10 Wall. 645, says: "Estoppel in pais presupposes an error or a fault, and implies an act in itself invalid. The rule proceeds upon the consideration that the author of the misfortune shall not himself escape the consequences and cast the burden upon another." Clifford, J., recognizes this principle in his dissenting opinion in that case: "If a bank may be held liable in any case upon a certificate of their cashier that a check is good, when they have no funds of the drawer, it is not because the cashier is authorized to make such certificate, but because the bank is bound by his representation, notwithstanding it is false and unauthorized." An estoppel is a salutary rule which prevents a man from proving that to be false, which he has once represented to be true, when others have acted on the faith of his representation.

NOTES OF RECENT DECISIONS.

TEACHER AND PUPIL-POWER TO INFLICT CHASTISEMENT ASSAULT AND BATTERY-WAIVER BY PUPIL. -State v. Mizner, Supreme Court of Iowa, 2 West. Jurist, 91. Opinion by DAY, J. 1. Where, upon an information charging a teacher with assault and battery, the prosecuting witness testified that on entering the school, about the 10th day of November, 1874, she told the defendant she was twenty years of age, and that in fact she was twenty-one on the 25th day of that month, and that on the 22d day of December, 1874, while she was a pupil in defendant's school, the defendant whipped her in a manner which, from the testimony, appeared to be unreasonable and immoderate: Held, that the court erred in refusing to allow the defendant to show that such whipping was reasonable chastisement of the prosecuting witness for misconduct as a pupil. 2. Where, in such case, the court instructed the jury that, "if you find from the evidence that the defendant committed an assault and battery upon the prosecutrix, and you further find from the evidence that at the time of the assault the prosecutrix had attained the age of twenty-one years, you are instructed that the defendant had not the lawful right to make the assault and battery as a punishment for disobedience of the orders of the teacher, or of the rules of the school": Held, that such instruction was erroneous. 3. There can be no doubt of the correctness of the general doctrine, that a teacher may, for the maintenance of his authority and the enforcement of discipline, legally inflict reasonable chastisement upon a pupil. Nor in such case would a teacher be liable to prosecution for assault and battery, for inflicting reasonable and moderate chastisement upon a pupil a few months older than twenty-one years, or a few months younger than five years, for conduct tending to destroy the order of the school, and lessen the means of imparting instruction to others, when such pupil is admitted into the school upon misrepresentation as to age, or by mere sufferance. 4. A person over twenty-one years of age becomes a pupil only by his own voluntary act. If he does so, and of his own free will creates the relation of teacher and pupil, he thereby waives any privileges which his age confers. These views were sustained by the case of

Stevens v. Fassett, 27 Me. 266, where the court say: "But it is insisted that, if such is the authority of the teacher over one who is in legal contemplation a scholar, the same can not apply to the case of one who has no right to attend the school as a pupil. It is not necessary to settle the question, whether one living in the district, and not being between the ages of four and twenty-one years, can with propriety require the instruction of town schools. If such does present himself as a pupil, is received and instructed by the master, he can not claim the privilege and receive it, and at the same time be subject to none of the duties incident to a scholar. If disobedient, he is not exempt from the liability to punishment, so long as he is treated as having the character which he assumes. He can plead his own voluntary act, and insist that it is illegal, as an excuse for creating disturbances, and escape consequences which would attach to him either as a refractory, incorrigible scholar, or as one who persists in interrupting the ordinary business of the school."

NEGOTIABILITY OF NOTE ISSUED BY BUILDING ASSOCIATION-LIABILITY OF INDORSERS-REQUISITES OF SEAL. Jackson v. Meyers. Court of Appeals of Maryland, 4 Am. L. T. Rep. 13. Opinion by ALVEY, J. A building association was organized in August, 1871, under the act of 1868, ch. 471, the general incorporation law of the state, and by the 9th and 11th articles of its association, it was provided that its board might issue promissory notes on mortgages only, and that such notes should always be drawn to the order of the mortgagor, who should in all cases indorse the note thus drawn. The president, secretary, treasurer and three directors were authorized to sign all promissory notes issued by the association. Under the authority of these articles the association issued its note to the appellees instead of money, for which a mortgage was given. The note was strictly in form a promissory note, payable to the order of the appellees. It was drawn at sixty days' time, and payable at a certain named bank; and was signed by the officers designated in the articles of association to execute promissory notes. In one corner of the face of the note there was the type or emblem of what was alleged to be the seal of the corporation; this alleged seal consisted simply of an emblem or symbol printed by the printer at the time when the printed blank note was struck. The note was indorsed by the payees, and by them negotiated, and at maturity was duly presented for payment, and was dishonored and protested, and notice given by the notary to the said indorsers, and payment duly demanded of them. Suit was brought on the note by the indorsees against the indorsers, who contended that they were not liable by reason of their indorsement, because the instrument sued on was a single bill. Held: 1. That the note sued on was a negotiable promissory note, and by the indorsement thereof in the ordinary way, the indorsers became liable. 2. That the nature of the transaction itself, the objects and purposes to be subserved by the issue of the note, as well as its form, indicated that the parties must have understood that the note was negotiable, and that it would be so accepted and dealt with by the commercial community. 3. That the symbol or printed representation of the seal, if it be conceded to be a sufficient seal, was not printed on the note to restrain its negotiability, or to change it into a specialty, but rather as a mark of genuineness. The authorities mainly relied on by the appellees in support of the position that, because there was a seal, or the representation of a seal, on the note, therefore the note must be a specialty, were the cases of Trasher v. Everhart, 3 Gill & John. 234; Stabler v. Cowman, 7 Gill & John. 284, and Gist v. Drakeley, 2 Gill, 330 The first two of these cases presented no

question as to what constituted, or as to the effect of printing a representation of a corporate seal on an instrument executed by a corporation; but were cases where the instruments involved were executed by individuals, using the scrawl at the end of their names as seals. The law settled by those cases we in no manner design to disturb. The latter case, however, is quite distinguishable from the present. There, the two notes executed by the corporation, though in the ordinary form of promissory notes, bore upon their face such evidence of design as to leave no doubt of their real character. They bore the regular impress of the seal, attested by the signature of the president; the notes concluded with the words: "Witness the seal of the company, attested by the signature of the president." The seal was the only real evidence of execution, the signature of the president being added to attest the affixing of the seal to the instruments. Not so in the execution of the note here. The note in no manner depended upon the seal for its validity, but derived its entire authenticity from the signatures of the officers authorized to execute it. This view of the subject is fully sustained by the recent cases of Dinsmore v. Duncan, 57 N. Y. 573, and Vermilye v. Adams Express Co. 21 Wall. 138, involving the consideration of the nature and qualities of the United States treasury notes, issued under the seal of the treasury, as authorized by the Act of Congress of March 3, 1865.

NOTES OF RECENT ENGLISH DECISIONS.

MARRIED WOMAN WILL SEPARATE ESTATE.— Bishop v. Wall. High Court of Justice, 25 W. R. 93. By marriage settlement, personalty of the wife was settled upon trust for her for life for her separate use, and after her death if her husband should survive her to pay him so much of the income as she should appoint, and subject thereto for the children of the marriage; in default of children, and if the wife should survive her husband, for the wife, her executors, administrators, and assigns, for her separate use; if she should not survive him, for such of the descendants of her parents as she should, notwithstanding coverture, by deed or will appoint. There were no children of the marriage, and the wife survived her husband. Held, that the limitations in the settlement gave the wife, in the events which happened, the whole of the property for her separate use, and that accordingly it passed under a will executed by her during the coverture and not republished after her husband's death.

INJUNCTION-ULTRA VIRES-COMPANY BUYING UP ITS OWN SHARES-CLAUSE OF FORFEITURE OF SHARES IN EVENT OF SHAREHOLDER PROCEEDING AGAINST THE COMPANY.-Hope v. The International Financial Society. High Court of Justice, 25 W. R. 67. 1. A large proportion of the shareholders in a company being dissatisfied and anxious to withdraw, the directors recommended that part of the company's assets should be applied in buying their shares; and at a general meeting of the company it was resolved that this recommendation should be carried into effect. The company's articles contained no power to buy up its own shares. Held, that the scheme was ultra vires, being for the reduction of the capital of the company, and the directors were restrained by injunction at the instance of a shareholder from carrying it into execution. 2. One of the clauses in the articles of association provided that, in the event of a shareholder commencing any legal proceedings against the company or the directors, the company might forfeit his shares on paying him the market price for the same. Held, that such clause was inoperative as against a shareholder, who

sought to restrain the directors from doing an illegal act.

WAGERING CONTRACT-WINNER OF LAWFUL SPORT OR PASTIME-DEPOSIT OF MONEY TO DEPEND ON HORSE TROTTING AGAINST TIME.-Batson v. Newman, Court of Appeals, 25 W. B. 85. The plaintiff and H deposited £50 each with the defendant, and agreed that the whole sum of £100 should be paid by the defendant to H, if H's horse trotted eighteen miles in an hour; and if not, then to the plaintiff. The horse trotted the distance within the time and the defendant paid over the money to H. But before the payment the plaintiff had demanded the money back. Held (affirming the decision of the Common Pleas Division), that the transaction was a simple wager, and was not protected by the proviso in 8 & 9 Vict. c. 109, s. 18, as a contribution towards a sum of money to be awarded to the winner of a lawful game, sport, pastime, or exercise; and that consequently the agreement was void, and the plaintiff was entitled to demand his money back from the defendant. For the defendant it was contended that the case came within the proviso of the section of the statute above set out; for the stakes were contributions to a 66 sum of money to be awarded to the winner of a lawful sport, pastime, or exercise." This was a lawful pastime, and it was immaterial that only two persons contributed: Batty v. Marriott, 5 C. B. 818; Varney v. Hickman, 5 C. B. 271; Aubert v. Walsh, 3 Taunt. 277; Evans v. Pratt, 3 M. & G. 759; and Brown v. Overbury, 4 W. R. 252, 11 Ex. 715. JAMES, L. J., said that the transaction was a plain, simple bet and nothing else. There was no contribution to a prize or sum of money to be awarded to a winner, and the proviso in the 8 & 9 Vict., c. 109, s. 18, had no application whatever-MELLISH, L. J.: I am of the same opinion. In Batty v. Marriott, where two persons contributed a sum of money to be awarded to such one of them as was the winner in a footrace, it was held the case came within the proviso. We are asked to go further, and say that the proviso applies, although only one person is to do anything. In my opinion all the persons capable of winning must be persons engaged in the sport or pastime, and the winner must be the winner of that. But here, if the horse does not succeed, the money is to be awarded to a person who is the winner of nothing but a sum of money. That is a simple wager.

ACTION FOR MONEY HAD AND RECEIVED-FAILURE OF CONSIDERATION-FRAUD-SALE OF PRETENDED PATENT RIGHT-KNOWLEDGE ON PART OF PURCHASER -PAYMENT FOR FRAUDULENT PURPOSES.-Begbie v. Phosphate Sewage Co. Court of Appeals, 25 W. R. 85. The defendants, an English limited company, being possessed of a patent (taken out and valid in England, but not valid in Berlin) for the process of utilizing sewage, agreed to sell to the plaintiff for £15,000 the sole and exclusive right to use and exercise the patent process in Berlin. The plaintiff was really acting on behalf of H, a large shareholder and director in the English company, and his object was to form a company for using the process in Berlin, and to induce persons to take shares in the Berlin company, under the belief that that company, having bought the right sold to the plaintiff by the defendants, would be entitled to the exclusive use of the process in Berlin. The scheme was carried out in the following manner: The plaintiff conveyed his interest to L for £30,000. L then conveyed his interest so acquired for $30,000 to M, a clerk in H's office, as trustee for the intended company at Berlin. The £30,000 was in fact paid to H and not to the plaintiff. The plaintiff and H and L all knew, but the English company did not know, that by the law existing at Berlin no exclusive right to use the

process there could be obtained. The plaintiff brought an action to recover the £15,000 from the defendants, on the ground that, as there was no exclusive right to use the process in Berlin, the consideration had failed. Held, that no action could be maintained (1) because the plaintiff had in fact obtained that for which he had paid the £15,000, namely, an ostensible grant of the exclusive right, in order to float the Berlin company; and (2) because the plaintiff had paid the money for the purpose of defrauding the shareholders of the intended company at Berlin. Decision of the Court of Queen's Bench (reported 24 W. R. 115, L. R. 10 Q. B. 491) affirmed.

PRACTICE AND PLEADING — DEMURRER-WHEN THE COUNTY NECESSARY PARTY.-When lands, mortgaged to secure the loan of school funds of a township, are sold, they may be bid in by the county for the use of the township. Acts 1874, § 62, p. 161. In an action of ejectment brought in the name of the county to use of the township, to recover possession of lands so purchased, it was error to sustain a demurrer to the petition upon the ground of a misjoinder of parties, and for the further reason that the county had no power given by statute to sue, or to take and hold lands. A county is a quasi corporation and may sue and be sued. [Citing Wag. Stat. p. 408, § 5.] Demurrer should have been overruled. Judgment reversed. Opinion by BAKEWELL, J.-Lincoln County v. Magruder.

LIABILITY OF MUNICIPAL CORPORATION FOR LOSSES FROM CHANge of GradE OF STREETS-CONSTRUCTION OF CHARTER OF ST. LOUIS-REPEAL BY IMPLICATION.-Upon general principles, no liability attaches to a municipal corporation for losses resulting from a change of grade in the streets. But section 1, art. XII, of the charter of the City of St. Louis, makes the city liable to owners of real estate having permanent buildings thereon, for changes of grade by which such property is injured, and the city can not escape liability by reason of technical infirmity in the ordinance by which the new grade was declared, so long as the work was within the general scope of the corporate powers. [Citing Thayer v. Boston, 19 Pick. 511; City of Pekin v. Newell, 26 Ill. 320.] By Sec. 9, Art. VIII of the charter, when the mayor and council deem it necessary, the council shall, by ordinance, cause the grading of the streets, alleys, etc. The provision of sec. 3, art. III of the charter, that prior general ordinances shall not be repealed by subsequent special ordinances, by implication, does not prevent the repeal of special ordinances by implication. It is no defense to an action against the city for injuries to permanent buildings by change of grade, that the work of grading as prescribed by ordinance was never completed. Judgment affirmed. Opinion by LEWIS, C. J.-Schumacker v. City of St. Louis.

MUNICIPAL CORPORATION-RIGHT TO CONTROL STREETS -RAILROAD TRACKS ON STREETS-POWERS UNDER CHARTER OF R. R. Co. TO BUILD RAILROAD LINES-TITLE TO HIGHWAY-CHANGE OF TERMINUS-RES ADJUDICATA.— Where a railroad track is laid down or maintained on a street of the City of St. Louis, without authority, it is the right and duty of the city to remove it; and in order to have the city perpetually enjoined from removing such track and restoring such street to the uses of ordinary travel, it would be necessary for the owners of such track to show a clear right to maintain and operate the same. Highways being universally the property of the state are subject to its absolute control. [Citing Philadelphia and Trenton R. W. Co., 6 Mort. 44.] The use of a street by a railroad is not a perversion of the highway from its original purpose. [Citing Loter v. N. M. R. R., 34 Mo. 128.] In the absence of a preventive legislative enactment, municipal corporations may regulate the means of propelling cars in

the corporate limits, and may prohibit the use of steam cars altogether, or regulate their speed. [Citing Dill. Munic. Corp. § 565; 5 Hill, 209.] The ordinary power to regulate streets will not empower the city to authorize the construction of street railways to be traversed by steam cars. [Citing Dill. Munic. Corp., §§ 578, 559.] In this state steam, as a means of locomotion over the streets of a city, is prohibited by acts 1855, p. 185, § 28, par 5, and by the Constitution of 1865, art. IV, sec. 27; Const. 1875, art. XII, sec. 20, except where the consent of the local authorities is first obtained. The location of a road "from" a city does not authorize the road to enter it, and where it is provided that the road may cross streets, etc., it means streets of such towns and cities as the road is authorized to pass through. [Citing N. E. R. R. Co. v. Payne, 8 Rich. 177.] The road, having selected its terminus in the city and maintained the location for twenty years, will not be permitted to change the same. [Citing Bukly v. Cent. R. R. Co. & Brooklyn City R. R. Co., 32 Barb. 358.] The right to build lateral can not be construed into a "roving commission, and is exhausted at the expiration of the time within which it is required by its charter to build its road." [Citing Att'y Gen'l v. West Wis. R. R. Co., 36 Wis. 466; M. & E. R. R. Co. v. Central Road, 31 N. J. 207.] The company that built the road could give to their grantee no greater rights than it had itself, and it had no right to maintain a railroad in the streets of the city which it constructed under a temporary license without the consent of the local authorities. The question is not res adjudicata, which has never proceeded to final judgment. Judgment reversed, and injunction dissolved. Opinion by BAKEWELL, J.-A. & P, R. R. Co. v. City of St. Louis.

UNLAWFUL DETAINER-JUDGMENT FOR RENT.-In unlawful detainer a judgment for money due for rent, without a judgment for possession of the premises, is erroneous. The judgment should be for possession and for damages.-Opinion by HOUGH, J.-Farwell v. Easton et al.

TRESPASS-INTEREST ON DAMAGES.-In an action against a railroad company for damages caused by negligent escape of fire from a locomotive, it is error to allow interest on the damages awarded, (Kenry v. Han. & St. Joe R. R., decided May 15, 1876, not yet reported), and judgment will be reversed when the court gave an instruction directing the jury to allow interest on damages from the date of the injury. Opinion by HOUGH, J.-Atkinson v. A. & P. R. R.Co.

COLOR OF TITLE-STATUTE OF LIMITATIONS-ADVERSE POSSESSION.-Color of title may arise from possession under a verbal contract of sale, or under a deed which is void on its face. Where the sheriff conveyed to A by a Ideed which was void (not being under seal), and A conveyed to B who took possession and claimed the land as his own, either deed gave color of title. When the possession originates in a mere mistake as to the boundaries of the lands, in the absence of any fiduciary relation between the parties, the possession may be adverse to the real owner. The plea of an adverse possession is not defeated by three years' actual absence from the land, when the absence is caused by military force, and the possession is re-asserted in a reasonable time after the cause of absence has ceased to operate. Opinion by NAPTON, J.Hamilton v. Bozzess.

OBJECTION TO PETITION, FOR WANT OF PARTIES, MUST BE MADE IN COURT BELOW-CONSTRUCTION OF CONTRACT -PAROL EVIDENCE.-A & B conveyed to the wife of C land said in the deed to be a tract" containing in all, including said lots, thirty acres, more or less." A only brought suit, alleging that, at the time and prior to the delivery of the deed to C's wife, on a contract of sale made with C, it was agreed that the land should be conveyed to C.'s wife at $35 per acre; that, if there should be more than thirty acres, C was to pay for all in excess of that quantity

at the same rate, and if less than thirty acres, A & B were to refund at the same rate for the deficit, and that $1,050 was paid; that, on a survey of the land, there was found to be 34 74-100 acres, and that Ĉ paid to B his part of the excess ($135.45), and refused to pay A for his part, wherefore he brings suit. Held, The objection that B was not joined as a party plaintiff is not available in the supreme court, since the objection was apparent on the face of the petition, and not being demurred to, was thereby waived; and that, although B was a party to the contract, it was not necessary to make him a party to the suit, because the petition alleges that he had been fully paid off, and had no interest in the controversy. Nor is the petition demurrable on the ground that, the deed having been made to a married woman, the contract could not be enforced against her because the petition avers a contract with the husband, nor on the ground that the verbal agreement was within the statute of frauds. The contract was not for the sale of lands, but is a demand for money arising out of that contract. Wilkinson v. Scott, 17 Mass. 249; Bowen v. Bell, 20 Johns. 338. And, the plaintiff having performed the contract entirely, the defendant can not take refuge behind the statute. Suggett's Adms. v. Cason's Adms., 26 Mo. 221, and cases cited. It is not permissible to control or vary the operative words of a deed by parol so as to defeat the conveyance; but the exclusion extends no further, and it is no longer an open question in this state, whether parol evidence is admissible as to contemporaneous verbal agree. ments (executed by plaintiff). McCrea v. Purmort, 16 Wend. 460, and cases cited; Laudman v. Ingram, 49 Mo. 212; Dickson v. Anderson, 9 Mo. 156; Rabsuhl v. Lack, 35 Mo. 316; Fontaine v. Boatman's Sav. Inst., 57 Mo. 561; Hollocher v. Hollocher, 62 Mo. 267. Opinion by SHERWOOD, C. J.-McConnell v. Brayner.

Associate Justices.

CONSTITUTIONAL LAW ACT ESTABLISHING SPECIAL COURT IN TOWNS AND CITIES-JURISDICTION OF SUPERIOR COURT. The act of the General Assembly, (Laws of 1871'72, chap. 195) establishing special courts in cities and towns, is constitutional. The superior courts have exclusive jurisdiction of misdemeanors, where the punishment is not limited to a fine exceeding fifty dollars, or imprisonment not exceeding one month. Municipal ordinances and by-laws must be in harmony with the general laws of the state, and whenever they come in conflict with such general laws, must give way. Therefore, where an act is a criminal offense indictable in the superior courts, an ordinance of a city or town, making such act a criminal offense punishable by fine and imprisonment, is void.-Town of Washington v. Hammond.

SUIT AGAINST ADMINISTRATOR FOR AN ACCOUNT-PROCEDURE PLEADING.-1. A special proceeding by a creditor against an administrator or executor for an account must be by summons and complaint in the first instance. Any other creditor coming in need not file a complaint, unless his claim is denied; but such claim must be verified, unless it is a judgment or some writing signed by the deceased. 2. When, in such proceedings, the plaintiff file. memoranda of the evidence of debt, but no complaint, and the defendant answered, and thereupon the plaintiff replied: Held, that the pleadings were irregular, and the court below committed no error in remanding the cause to the clerk in order that the plaintiff might file a complaint. -Isler v. Murphy.

STATUTE PRESCRIBING PENALTY AGAINST TOWN CONSTABLE FOR REFUSING TO QUALIFY, CONSTITUTIONAL— WHEN FACTS FOUND IN JUSTICE'S COURT CONCLUSIVEPRACTICE. The provisions of chapter 111, section 25, Battle's Revisal, prescribing a penalty of $25 against any person who is duly elected or appointed town constable and who refuses to qualify, etc., are not in conflict with art. 1,

sec. 17, of the Constitution. The facts found on a trial in a justice's court, where the judgment is for $25, or less, are conclusive upon an appeal to the superior court. In such case the justice should not include in the record sent up a statement of the evidence, unless there were exceptions to its admission in his court. In an action in a justice's court for a penalty it is sufficient, if the warrant states the amount due and how claimed.-London v. Headen.

STATUTE OF FRAUDS.-In a suit on promissory notes, the defendant answered that the plaintiff agreed, in consideration that the defendant would forbear to issue execution on a judgment against A. B., that the plaintiff would pay the same, by crediting the amount thereof on the notes sued on. Held, that this was a promise to answer for the debt of another and was within the statute of frauds; that, no copy being set out, the promise must be presumed to have been by parol. Judgment affirmed. Opinion by WORden, C. J.-Krutz v. Stewart.

SET OFF-WHEN IT MAY BE PLEADED.-Only such facts as constitute a cause of action on which a personal judgment could be recovered against the plaintiff can be pleaded as a set-off in an answer to a complaint. Where the answer alleged that the defendant held a vendor's lien on a lot which the plaintiff had purchased with notice of the lien; held, not a good set-off; because the plaintiff would have his election to pay off the lien or suffer it to be enforced against his property, but the defendant could only foreclose her lien and would not be entitled to a personal judgment against the plaintiff. Judgment reversed. Opinion by PERKINS, J.-Brake v. King et al.

CONTINUANCE-ABUSE OF JUDICIAL DISCRETION.-APplications for continuances are addressed to the sound discretion of the court, and, when made on account of the absence of a witness merely, certain formal and necessary facts must be shown by affidavit; but in other cases good cause only need be shown. Where an affidavit for continuance of a cause, before trial, averred that the defendant was detained at his home in Michigan by the dangerous illness of his wife; that he had a meritorious defense, setting out the substance thereof; that the defendant would testify to the facts set out, and that there was no other witness by whom said facts could be proved; held, that in the exercise of a proper judicial discretion the cause should have been continued. The defendant was more than a mere witness, and his application was not within any strict statutory rule. Judgment reversed. Opinion by NIBLACK, J.-Welcome v. Boswell.

INCONSISTENCY BETWEEN GENERAL AND SPECIAL VERDICT. In a suit for damages against a railway company for personal injuries, the jury gave the plaintiff a general verdict for $8,750, and at the same time returned a special verdict by which they found that the plaintiff, on approaching the railroad crossing, saw a freight train standing across the highway, which was parted in the middle, leaving a passage some ten feet wide between the cars, through which the plaintiff attempted to drive; that plaintiff knew it was dangerous to attempt to cross between the cars; and further, that the evidence did not show that the cars, which were inside the boundary lines of the highway, were placed there by defendant. Held, that the special findings were inconsistent with the general verdict, and that the law (2 R. S. 1876, 172) is imperative that in such cases the former shall control the latter; that, to justify the jury in their general verdict, it was necessary to find that the plaintiff sustained the injuries complained of without fault on his part (47 Ind. 43; 46 Ind. 25), while the facts found in their special verdict showed contributory negligence on his part. Judgment affirmed. Opinion by Howк, J.-Thompson v. The C. L. & C. R. R. Co.

JUDGMENT OF JUSTICE OF THE PEACE IN CRIMINAL CASE-JURISDICTION OF DISTRICT COURT.-1. The judgment of a justice of the peace in a criminal case can not be reviewed on petition in error in the district court. 2. The district court has no jurisdiction of a criminal case removed on petition in error to it from the judgment of a justice of the peace. Opinion by HORTON, C. J.-State v. Lofland.

BLOWING STEAM WHISTLE-WHEN NEGLIGENCE.-1. The blowing of a steam whistle and the letting off of steam are not per se acts of negligence or evidence of wrongful conduct on the part of those in charge of a railroad train. But when those acts are done carelessly, heedlessly and without any necessity therefor, they may become acts of negligence, and the railroad company be responsible for injuries caused thereby. Opinion by BREWER, J.-Culp v. A. & N. R. R. Co.

EFFECT OF VERDICT OF "NOT GUILTY."-1. In a criminal prosecution where the defendant has pleaded "not guilty" to the charge, and where the case is submitted to a jury and a verdict is rendered, and the court enters judgment that the defendant be discharged and go hence without day; held, that such verdict and judgment are conclusive, and that this court can not on an appeal set aside or reverse the verdict or judgment. Opinion by HORTON, C. J.-State v. Crosby.

DECREE OF FORECLOSURE-RECEIPT OF SURPLUSWAIVER.-1. A party holding the fee in mortgaged premises, and against whom a decree of foreclosure is entered, can not, after voluntarily taking the surplus arising from the sale of said premises upon such decree, maintain a proceeding in this court to set aside the decree of sale. The receipt of such surplus is a waiver of any errors, if errors there be, in the proceedings. Babbitt v. Corby, 13 Kan. 612. Opinion by BREWER, J.-Hoffmire v. Holcomb.

LIMITED PARTNERSHIP-LIABILITY OF PARTNER-ACCEPTANCE OF NOTE OF ONE OF SEVERAL JOINT-DEBTORS. -1. Where a partner claims that his liability to creditors of the firm is restricted by a special contract between the partners, and no proceedings have been had under the limited partnership act, it is incumbent on him to prove notice to or knowledge by the creditors of such contract limitation, or he will be liable equally with the other partners for the entire debts of the firm. 2. The acceptance of a note by the creditor, of one of several joint-debtors, does not have the effect to discharge the other debtors without agreement to receive it in payment or satisfaction. Opinion by BREWER, J.-Yetter v. Soper.

CORPORATE FRANCHISE-TAX-PAYERS AS JURORS.-1. An act providing for the incorporation of a city must be accepted as a whole; and the city in accepting the benefits derived therefrom must perform the duties required by law. The corporate franchise is a valuable privilege, and is a sufficient consideration for the duties which the law imposes. 2. The mere interest of a taxpayer and resident of a city is not of itself, under ordinary circumstances, sufficient to disqualify him from acting as a juror in a case in which the city is interested. Judgment affirmed. Opinion by MAXWELL, J.-City of Omaha v. Olmstead.

ATTACHMENT AMENDMENT.-1. An affidavit for the issuance of an attachment may be amended, by leave of the court, even after a motion to quash the proceedings

is filed, because of that particular defect. 2. It is not error for the court to permit the officer, before whom the affidavit was made, to attach a venue, according to the fact, even after a motion has been filed to dismiss the attachment on. the ground of its omission. Judgment affirmed. Opinion by LAKE, C. J.—Struthers v. McDowell.

STATUTE OF LIMITATIONS-MORTGAGE.-1. When it appears on the face of the petition that the cause of action arose at such a period, that under the statute of limitations no action can be maintained thereon, the defendant may demur to the petition, on the ground that the facts stated therein are not sufficient to constitute a cause of action. 2. The proviso to section seventeen of the code of civil procedure, that the absence from the state, death, or the disability of a non-resident, shall not operate to extend the time within which actions in rem shall be commenced by and against such non-resident, applies to actions to subject mortgaged property to the payment of the mortgage debt. If action upon a note secured by mortgage is barred by the statute of limitations, an action for foreclosure of the mortgage is also barred. Judgment reverséd. Opinion by MAXWELL, J.-Peters v. Dunnell.

PLEADING-RELEASE OF SURETY-EXTENSION OF TIME TO PRINCIPAL.-1. When an answer contains an allegation, that one of several defendants, joint makers of a promissory note, was in reality only a surety thereon, to which allegation there is no reply, it will be taken as true; and if the court, on request, refuse to instruct the jury to this effect, it is error. Yet the judgment will not be reversed, unless the error appear to have been prejudicial to the party seeking to take advantage of it. 2. When the defense depended upon showing, in addition to the fact of suretyship, the fact of an extension of the time of payment to the principal, which was alleged but not proved; the refusal of the court to instruct as above stated is no ground for reversal of the judgment. 3. An extension of time to the principal for payment will not have the effect to release the surety, unless the agreement to extend the time be such as will bind the holder of the note, and bar his action against the principal for some definite time. A mere voluntary forbearance on the part of the creditor, enlarging the time of payment without consideration, will notwork a discharge of the surety. Judgment affirmed. Opinion by LAKE, C. J.-Dillon v. Russell.

NOTES.

THE San Francisco Common Council has passed a special bill permitting a certain Chinaman to carry a pistol three months, because his life is threatened by persons against whom he has testified.

IN the marginal notes to Mr. Jacob Bright's Woman's Disabilities Bill, there is one to the effect that the masculine gender should include females. Is not "include " here a misprint for " embrace ?"-Yorick.

CHIEF JUSTICE MOSES of the Supreme Court of South Carolina, died at Columbia last week. He was seventy-two years of age.Ex-Governor Washburn, of Massachusetts, well known as the author of several legal treatises of great merit, died on Monday last.

THE North Carolina Legislature has, passed an act placing the price of the reports of the State at $3 per volume, and paying the official reporter a salary. Heretofore, the reporter has had the profits on their sale at the rate of $8 per volume. Hon. W. T. Faircloth is the junior justice of the supreme court of this state. His predecessor, Judge Settle, has been appointed United States District Judge of Florida.

THE VALUE OF A DEFINITION-The Lord Chief Justice of the English Common Pleas, (in Twycross v. Grant, January 24, 1877): All arguments, at least when conducted in the English language, have to commence with a definition. It depends on what is your definition of "consequence." In one sense I quite agree with you; but in another sense it was a consequence of the fraud that the purchaser obtained a worthless thing.-Baron Cleasby in the Exchequer Division (in Attorney General v. Gasquet, January 23, 1877): I do not pretend to give any definition of "domicile" myself, because it has been said that, though so many great minds had applied themselves to it, there is no universally-accepted definition, no agreed on enumeration of its ingredients. I rather agree with the dictum: In jure civili omnis definitio periculosa."—[Daily Register (N. Y.)