applies in favor of one who took a deed, by metes and bounds only, of land which afterwards constituted a distinct lot upon a plat subsequently made and recorded by his grantor." Woodman v. Spencer, decided in 1875, by the Supreme Court of New Hampshire, 14 Am. Law Reg. (N. S.) 411, is an equally strong case. It is there decided that, "where a conveyance of land describes it as bounded by a stream not navigable, or by a highway, whatever terms may be used in describing such boundary, it must be construed as extending to the middle of the same, unless there is a clear expression of an intention to limit it to the margin of such stream or way." And the reason is given for this rule, both in the opinion in the case and by Judge Redfield, in a note to it. Substantially the same reasons are assigned for the rule in Broxon v. Bressler, 64 Ill., on page 492. The rule is founded in public policy. "The peace of society," says Mr. Justice Thornton, "and the security of personal rights demand a legal recognition of ownership of the beds of the streams within the states as well as the waters. Wrongs and trespasses must often be committed. Contests and litigation

as to the rock, as in this case, and frequently as to the gravel and soil, must arise. The riparian owner should have a remedy against the wrong-doer. He gains by alluvion and loses by avulsion, and for his full security should have the right to protect the stream from individual trespasses. The opposite view vests the fee in the United States, and makes them the proprietor of every navigable stream in the United States. This interposition in the prosecution of trespassers would be an intermeddling with the policy of the state, and would be perilous to its sovereignty. The commonlaw rule would best subserve the public peace and protect from violence."

The above views of the Supreme Court of Illinois are expressed touching the ownership of the bed of the Mississippi, a known and admitted navigable stream. Their force is much greater when applied to a nonnavigable stream.

owners

Judge Redfield, in the note above referred to, speaking of the rule that extends the title of upon highways and streams, says: "Its chief object is to prevent the existence of innumerable strips and gores of land along the margins of streams and highways, to which the titles for generations shall remain in abeyance, and then, upon the happening of some unexpected event, and one, consequently, not in express terms provided for in the title deeds, a bootless, almost objectless litigation shall spring up to vex and harass those who, in good faith, had supposed themselves secure from such embarrassment."

In Grose v. West, 7 Taunton, 39, Gibbs C. J. says: "Prima facie a strip of land between a highway and the adjoining close belongs to the owner of the close; as the presumption also is that the highway itself ad medium filum viae does." Accord: Cox v. The Louisville, &c., Co., 48 Ind. 178.

Public policy dictates the private ownership of the bed of unnavigable rivers. The facts, then, that the bed of the river was not surveyed nor paid for, do not necessarily exclude it from the ownership of the adjoining proprietors; and, as to the fact, if it be so, that it was not paid for, we may observe that it is a circumstance of little importance. The government was not selling her public lands for the purpose of making money. She did not sell them for their value. She was selling them for an almost nominal price, $1.25 an acre, enough to cover the cost of survey and sale. Possibly a little more. Her object was to induce the settlement in the country of a hardy, land-owning people. Her surveys of the whole were more or less inaccurate. We know, as matter of general knowledge, that often sections exceed and often fall short of the quantity

paid for, to a greater extent than was produced by the mistake of the surveyor in this case, touching the fact of the navigableness of the stream. It could have produced a loss of but a very few dollars. On the other hand, we have the clearly expressed intention of the grantor, expressed by a solemn legislative enactment, that the title should pass to the thread of the stream. Public policy demands that it should so pass. And the mistake of the surveyor is not one of such pecuniary amount that it would be regarded as sufficient, affecting the fairness of a private contract, to vitiate it. We think the title of riparian proprietors on White River in Marion County, Indiana, extends to the thread of the stream.

The judgment is reversed with costs, and the cause remanded with instructions to proceed in accordance with this opinion.

BOOK NOTICES.

BOOKS RECEIVED.-Nevada Reports, vol. 11. A. L. Bancroft & Co., San Francisco.-Barton's History of a Suit in Equity. American Edition by James P. Holcombe. Robert Clarke & Co., Cincinnati.-Iglehart's Treatise on the Powers and Duties of Justices of the Peace and Constables in the State of Indiana. Robert Clarke & Co., Cincinnati. REPORTS OF CASES IN THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES FOR THE NINTH CIRCUIT. By L. S. B. SAWYER, Counselor at Law. Vol. III. San Francisco: A. L. Bancroft & Co. 1877. pp. 722.

This circuit comprises the states of California, Oregon and Nevada-in some respects one of the most important in the country. The Circuit Judge-the Hon. Lorenzo Sawyer-by whom most of the opinions in this volume were written, was well known to the country as a member of the Supreme Court of California before his appointment to the Circuit Court in 1869. He was, we believe, the Chief Justice of California at the time of his transfer to the federal bench. It was the ability and learning which he then displayed, that fitly led to this transfer. His opinions, recorded in this and the previous volumes of this series, mark him as a judge of great research, solid learning and sound judgment. This volume contains also several extremely valuable opinions by Mr. Justice Field, the judge of the Supreme Court assigned to this circuit, and by Judges Hoffman, Deady and Hillyer. We have not met with a case in the present volume which is not worth reporting, and it is full of cases relating to commercial and corporation law. It will be found as useful and valuable in the state as in the federal courts, and elsewhere as in the Pacific Circuit. The reported cases are brought down to and include those decided in 1876. The volume is handsomely printed, and is much larger than most of the Circuit Court Reports.

CORRESPONDENCE.

EFFECT OF RECORDING DEED WITHOUT IN

DEXING.

To the Editor of the Central Law Journal:

I have just received your issue of April 27th, and on page 387, I find an interesting discussion of the "Effect of Recording a Deed without Indexing as to Subsequent Purchasers." This discussion refers to a former article on the same subject, on page 340. It is acknowl edged in both these articles that the injured party may have redress by an action against the clerk. The question which party must sue the clerk, is the main one. I am more in accord with the reasoning and con clusions reached in the article on page 387, though the other is more in accord with the decision of my state in the case of Throckmorton et al. v.

own

Prince et al., reported in 28 Texas, 605. This was a suit for an injunction by a subsequent vendee, to restrain a prior trustee from selling the land; the trust deed had been previously filed for record, not recorded, and was on file when the records were examined, though the opinion does not notice this fact. The court say, Chief Justice Moore delivering the opinion: "There was no controversy about the facts. The evidence clearly shows that the deed of trust under which the appellants claim, though filed with the county clerk for record, and so endorsed by him some time prior to the date of the deed to the appellees, was not, in fact, recorded until after their purchase of the land. It is also unquestionably true, that all reasonable diligence was used in behalf of the appellees to ascertain whether the land was free from incumbrance, and that it was bought and paid for by them on the assurance of the county clerk that there was no evidence in his office of any conflicting right to it." So this case is brought clearly within the rule of Life Insurance Co. v. Dake, 4 Cent. L. J., 340. Our statutes are very strong on this subject. Paschal (Digest, Art. 5014), says: "Every such instrument of writing shall be considered as recorded from the time it was deposited for record," etc. And Art. 5015: "Each recorder shall provide and keep in his office a well-bound book, and make and enter therein an index, in alphabetical order, to all books of record wherein deeds, mortgages, etc., are recorded, distinguishing the books and pages in which every such deed or writing is recorded." Art. 5018 provides a penalty of $500, and makes the clerk liable to the injured party.

The court, in the case referred to, after quoting the statute on the subject, say: "If the clerk has neglected to comply with these plain, simple requirements of the statute, and appellees have been thereby misled to their injury, they can not claim redress for such injury from appellants, who have been in no default. The law did not impose upon them the responsibility of seeing that the duties prescribed by the statute for the protection and security of other parties were in fact faithfully discharged by the clerk." The court cite from Kentucky, Bank of Kentucky v. Haggin, 1 A. K. Marsh. 306; and from Connecticut, they cite Franklin v. Cannon, 1 Root; Hartmyer v. Gates, Ib.61; McDonald v. Leach, Kirby, 72; Judd v. Woodruff, 2 Root, 298; and also, McGregor v. Hill, 3 Stew. & P. (Ala.), 397. Our statute is almost identical with the statute of Iowa, and the conclusions are so very opposite, that I concluded to send you the above note, taken immediately after reading your last article. In the case before our court the deed was in the clerk's office all the time, but could not be found; and the clerk in effect certified that it was not there. Suppose the deed had been deposited for record, and had been entirely lost and never recorded; and suppose the party ⚫ who deposited it had proved conclusively that he did deposit it, at a certain time. Now, if we say this was notice to subsequent purchasers, we give the record an efficiency that it has not; we speak for the record what it does not say itself, and we have the anomaly of a record existing in parol. We think our court has gone too far. If the first vendee wants to establish what would be constructive notice, he must do it, and not trust to the clerk to create a benefit for him. In the case then before the court, both parties were innocent; one depended on the clerk to perfect his rights, and the other did not. "He who trusts most, where one of two innocent persons is to suffer, shall lose most." 13 Wend. 572; 4 N. H. Rep. 455; Kesler v. Zimmerschitte, 1 Tex. 56. F. H. P.

Calvert, Texas, May 1, 1877.

NOTES OF RECENT DECISIONS.

0.

ASSSAULT WITH INTENT TO COMMIT MANSLAUGHTER-UNLAWFUL INTENTION TO KILL-CONVICTION FOR DIFFERENT GRADE OF OFFENSE. State Throckmorton. Supreme Court of Indiana, 16 Am. L. Reg. 234. Opinion by Downey, J. 1. There may be an unlawful intention to kill, and yet the killing be only manslaughter, if it be without malice, as e. g., upon sudden heat or quarrel. Therefore, an indictment for assault and battery with intent to commit manslaughter is good. 2. Where a statute provides that upon an indictment for an offense, consisting of different degrees, the jury may find the defendant not guilty of the degree charged, but guilty of any degree inferior thereto; the jury, upon an indictment for assault and battery with intent to murder, may find a verdict of guilty of assault and battery with intent to commit manslaughter. Therefore, where an indictment charged in the first count an assault with intent to murder, and in the second, an assault with intent to commit manslaughter, and the court on motion quashed the second count on the ground that there was no such crime as an assault with intent to commit manslaughter, it was held that, although it was error to quash the second count, yet as the defendant might have been convicted of the offense therein charged under the first count, the judgment would not be reversed. Upon the first point the court says: "We are aware that many criminal lawyers of this state are of opinion that there can be no such thing as an assault, or an assault and battery, with intent to commit manslaughter. It is said by Judge Bicknell in his work on Criminal Law, that there can be no indictment for au assault and battery with intent to commit the crime of manslaughter, because the peculiarity of manslaughter is that it is free from unlawful intention to kill.' Bicknell's Crim. Prac. 292. It is a mistake to say that there can be no unlawful intention to kill in voluntary manslaughter: Murphy v. The State, 31 Ind. 511. Mr. Bishop, in his work on Statutory Crimes, sec. 508, expresses the opposite view to that taken by Judge Bicknell, and thinks such view contrary to the actual course of things in the other states, and not sound as general American doctrine.' In New Hampshire there was a statute providing 'that, if any person shall make an assault upon another, with intent to commit any crime described in this chapter, the punishment whereof shall be, &c., he shall be punished,' &c., and manslaughter was among the crimes described; it was held that this provision embraced among the rest an assault with intent to commit manslaughter. The State v. Collegan, 17 N. H. 253. In Murphy v. The State, supra, the court, in speaking of the instructions given, said: By these instructions the jury were told in effect, that there could be no purpose to kill in manslaughter, and that if such a purpose were shown to exist, the killing would be murder. This we think is not a correct exposition of the law. The killing may be unlawful and purposely done, and yet, if it is done without malice, in a sudden heat and transport of passion, caused by a sufficient provocation, it is only manslaughter. It was so held in Dennison v. The State, 13 Ind. 510.' A reference to the case in 13 Ind. will show that the question was there so decided. The case of Dennison v. The State is cited and followed in Hoss v. The State, 18 Ind. 349, and Long v. The State, 46 Ind. 582."

EASEMENTS-WAYS OF NECESSITY-GRANT OF PART OF LAND WITH AN EXISTING WAY UPON IT.-O'Rorke v. Smith. Supreme Court of Rhode Island, 16 Am. L. Reg. 205. Opinion by Durfee, C. J.-M. C., owning a

tract of land bounded North by a street, conveyed to D the west portion, whereon was a well, reserving a right to use the well by these words: "Excepting a privilege to the well of water on said lot, which I reserve for the use of my said homestead estate," this homestead estate being the remainder of the tract. Subsequently, M. C. devised to J in fee simple the land between the house and the lot conveyed to D, together with a tenement in the house, and to S the rest of the homestead estate. For a long period, but not for the time required to gain an easement by prescription, all the occupants of the homestead estate had crossed the land between the homestead and D's lot on their way to the well. In trespass quare clausum, brought by the grantees of J against S, Held, that the way across J's lot could not be claimed as a way of strict necessity. Held, further, that the way could not be implied from the circumstances of the case as one reasonably necessary. The law in regard to the creation of easements by implication, where estates have been united in a single ownership, which are severed by deed, will, or partition, is elaborately discussed in the third and last edition of Washburn on Easements and Servitudes, published in 1873. The cases there collected and collated are somewhat discordant, but they are very generally to the effect that, where the easement or quasi easement is continuous, apparent, and reasonably necessary to the beneficial enjoyment of the estate for which it is claimed, a grant thereof will be implied. The rule applies especially in favor of easements of air and light, lateral support, partition walls, drains, aqueducts, conduits, and water-pipes or spouts, all of these being continuous easements technically so called-that is to say, easements which are enjoyed without any active intervention of the party entitled to enjoy them. Ways are not in this sense continuous easements, but discontinuous or non-continuous, being enjoyed only as they are traveled. This distinction, however, between ways and the other easements mentioned has not been uniformly regarded, and there are cases, especially in Pennsylvania, in which it has been held that ways which are visibly and permanently established on one part of an estate for the benefit of another will, upon a severance of the estate, pass as implied or constructive easements appurtenant to the part of the estate for the benefit of which they were established. Kieffer v. Imhoff, 26 Penn. St. 438; McCarty v. Kitchenman, 47 Id. 239; Phillips v. Phillips, 48 Id. 178; Pennsylvania Railroad Co. v. Jones, 50 Id. 417; Cannon v. Boyd, 73 Id. 179; Thompson et al.lv. Miner, 30 Iowa, 386; Huttemeier v. Albro, 2 Bosw. 546; affirmed, 18 N. Y. 48. But in New Jersey the doctrine was held to be inapplicable to ways. Fetters v. Humphreys et al., 19 N. J. Eq. 471. And there are many English cases in which the application of the doctrine to ways has been denied. Pheysey et ux. v. Vicary, 16 M. & W. 484; Whalley v. Thompson et al., 1 Bos. & Pul. 371; Worthington v. Gimson, 2 El. & E. -618; Dodd v. Burchell, 1 H. & C. 113; Polden v. Bastard, 4 B. & S. 258, and affirmed, Law Rep. 1 Q. B. 156; Thompson v. Waterlow, Law Rep. 6 Eq. 36; Langley et al. v. Hammond, Law Rep. 3 Exch. 161; and see Pearson v. Spencer, 1 B. & S. 571, and affirmed, 3 B. & S. 761; Daniel v. Anderson, 31 L. J. N. S. 610, cited in Washburn on Easements, 3d ed., 59. If the grant of a way, existing previously de facto, can be implied from anything short of necessity, the party claiming the way should be required either to show, as in Pettingill v. Porter, 8 Allen 1, that without the use of the way he will be subjected to what, considering the value of the granted estate, will be an excessive expense; or to show, as in Thompson et al. v. Miner, 30 Iowa, 386, that there is a manifest and designed dependence of the granted estate upon the use of the way for its appropriate enjoyment; or to adduce some other indication

equally conclusive; and see Worthington v. Gimson, 2 El. & E. 618; Leonard v. Leonard, 7 Allen 277, 283.

CONSTITUTIONAL LAW-ACT OF LEGISLATURE PROVIDING FOR DECISION IN CASE OF AN EQUALLY DIVIDED BENCH.-Perkins v. Scales. Supreme Court of Tennessee. Opinion by Freeman, J. 1 Legal Reporter (N. S.) 15. I. It is not in the power of the legislature to direct what shall be the decision of the supreme court in case the judges are equally divided. 2. The act of March 6, 1875, provides substantially "that in all cases now pending in the supreme court, or hereafter brought thereto, in which the judges shall be equally divided, the judgment shall be determined as follows: If the case depend upon the constitutionality of any act of the General Assembly, then such judgment or decree shall be in favor of the validity of such act. In all other cases the judgment or decree of the court below shall be affirmed." Held unconstitutional. By the constitution the powers of the government are distributed among three departments: the legislative, executive and judicial, and no person or persons belonging to one shall exercise any of the powers properly belonging to either of the others, except in cases herein permitted or directed. Art. 2, secs. 1 and 2. By the schedule to the constitution of 1870, it was provided that six judges should compose this court, until there should be a vacancy occurring after the 1st of January, 1873. Sec. 2. The court thus constituted was the supreme judicial tribunal of this state. According to the genius of such an organization, a majority of the court would be required to render a decision; for if this was not the case, then a minority might. Whatever decree the court shall give must be the result of its own judgment in the performance of the functions assigned to it by the constitution. No other department has the right to indicate or dictate what that judgment shall be. This would be to usurp the judicial function confided exclusively by the constitution to the judicial department. Whether the legislature might have enacted a rule of this kind for the government of the court, applicable to future cases alone, may possibly be a different question, though it would seem difficult to distinguish in principle between this and an enactment operating on cases then pending. In either case, it is not to prescribe a rule of future conduct, but to dictate a judgment for the court, not based on the law and the facts, but upon a certain state of opinion held by the judges. If the legislature could declare a decision under such circumstances, they might adopt any arbitrary rule, prescribing how the decision of the court should be determined. Citing Mabry v. Baxter, MSS., (Knoxville, 1877).

NOTES OF RECENT ENGLISH DECISIONS.

PATENT-INFRINGEMENT-INTERIM INJUNCTION— MOTION TO COMMIT.-Plimpton v. Spiller, Court of Appeal, 25 W. R. 152. On a motion for an interim injunction, in an action to restrain the infringement of a patent, the usual practice of the court is to refuse the application, and to order the defendant to keep an account of profits until the hearing; but if it appears that under the circumstances this would be an inconvenient or ineffectual mode of compensating the plaintiffs, if in the right, and the balance of evidence appears in his favor, the court will grant the injunction, on the plaintiff giving an undertaking to abide by any order as to damages (if any) that may ultimately be made, and the court is the more ready to adopt this course where the business of the defendant is a newly established, than where it is an old established trade. Under such circumstances the Master of the Rolls granted an

interim injunction. The defendant appealed. The court (James, L. J., and Brett, J. A., Baggallay, J. A., dissenting) affirmed the decision.

SHIP GENERAL AVERAGE AUXILIARY STEAM POWER FOR PUMPING-USING SHIP'S SPARS FOR FUEL. Roberson v. Prince et al.-High Court Q. B. Dir. 25 W. R. 112. The owner of a cargo is entitled in time of peril to the use of all the appliances on board the ship which are adapted for the purpose of saving it; and if the ship is fitted with a separate engine for pumping, the owner of the ship must, before sailing, provide a reasonable supply of fuel for working such engine. Accordingly, if in time of peril it becomes necessary to burn part of the ship's furniture as fuel for the pumping engine, the owner of the ship is not entitled to general average against the owners of the cargo, unless at the commencement of the voyage there was on board the ship a feasonable supply of fuel for the pumping engine. During the argument the following authorities were cited: Harrison v. The Bank of Australasia, 20 W. R. 385, L. R. 7 Ex. 39; Wilson v. The Bank of Victoria, 15 W. R. 693, L. R. 2 Q. B. 203; Birkley v. Presgrave, 1 East, 220, 228; Plummer v. Wildman, 3 M. & S. 482; Johnson v. Chapman, 14 W. R. 264, 19 C. B. 563; Stewart v. West India Steamship Company, 21 W. R. 381, L. R. 8 Q. B. 88; also to 2 Arnould, Marine Insurance, 4th ed., p. 773; 2 Phillips, Marine Insurance, secs. 1270, 1299, 1400.

TIDAL

ΤΟ

RIVER--RIPARIAN OWNER--ACCESS WHARF PRIVATE RIGHT.-Lyon v. Fishmongers Co. House of Lords, 25 W. R. 165. The owner of land abutting on a tidal navigable river has, jure naturæ, a right of access to and from the stream wholly distinct from the right of navigation which he enjoys in common with the rest of the public. The Duke of Buccleuch v. The Metropolitan Board of Works, L. R. 5 H. L. 418, and The Metropolitan Board of Works v. McCarthy, 23 W. R. 115, L. R. 7 H. L. 243, followed. By the Thames Conservancy Act, 1857 (20 and 21 Vict. c. cxlvii.), s. 53, the conservators may grant (on such terms and conditions as they may think fit) to the owner or occupier of any land fronting and immediately adjoining the river, a license to make any dock, basin, pier, jetty, wharf, quay, embankment, wall, or other work immediately in front of his land, and into the body of the river. By section 179, nothing in the act is to extend to take away, alter, or abridge any right, claim, privilege, etc., to which any owner or occupier of land on the banks of the river was entitled at the passage of the act. The plaintiff was the owner of a wharf abutting towards the south upon the Thames, and towards the west upon an inlet from the river which was covered with water at high tide. There were stairs and doors on both the south and the west side, which had been used by the occupier of the wharf for the purpose of loading and unloading barges. The defendants, the owners of the land on the south of the inlet, obtained from the conservators a license to form an embankment in front of their land, which would have entirely filled up the inlet, and rendered it impossible for barges to reach the west front of the plaintiff's wharf. Held, that the plaintiff was entitled to a right in respect of land on the bank of the river within section 179, and that the defendants should be restrained by injunction from proceeding with the construction of the embankment. Per Lord Selborne.For the purpose of a riparian right, lateral contact with a stream is, jure naturæ, as good as vertical contact. Judgment of the Court of Appeal in Chancery (reported 24 W. R. 11, L. R. 10 Ch. 679), reversed, and decree of Malins, V. C., (reported 23 W. R. 689), restored.

TRUSTEE-BREACHES OF TRUST-LIABILITY OF TRUSTEE'S OWN BENEFICIAL INTEREST.-Fox v. Buckley. Court of Appeal, 25 W. R. 170. A trustee and executor, who took a life interest in his testator's residuary real and personal estate, misappropriated and wasted portions of the estates specifically devised and bequeathed, and subsequently became bankrupt. Held, that his estate in the residuary realty being legal, could not be applied in making good his breaches of trust. The appellants' counsel contended that the cases establish this proposition, that wherever a duty is imposed on a trustee, and by the same instrument a benefit is given him, if he accepts the benefit, he must perform the duty: Priddy v. Rose, 3 Mer. 86, 104; Jacubs v. Rylance, L. R. 17 Eq. 341, 22 W. R. Ch. Dig. 251. In Woodyat v. Gresley, 8 Sim. 180, the court interfered with the legal estate of a trustee, and actually applied a legal rent-charge in replacing certain stock that had been misappropriated by him. In Waring v. Coventry, 2 My. & K. 406, it was held that remainder-men had an equity against the income of a tenant for life in respect of a loss arising from a breach of trust by him. Egbert v. Butter, 21 Beav. 560, was the case on which the Vice-Chancellor relied; but they submitted it was not binding on the court, and, as there was a conflict of authority, ought not to be followed. Since the judicature acts, equity was to prevail over law, and the court must now adopt equitable rules with regard to legal estates. They also cited Coote v. O'Reilly, 1 J. & Lat. 455: Ex parte Barff De G. 613; and Hurst v. Hurst, 22 W. R. 939, L. R. 9 Ch. 762-JAMES, L. J: It had been said many times during the argument that there was a conflict of authority, but the only authority in point was that of Egbert v. Butter, which was directly against the appellants; all the other authorities cited had no bearing on the case. Woodyat v. Gresley was the case of a debt which the court thought, under the circumstances, ought to be paid out of a rent-charge; it was, in fact, a matter of contract. Coote v. O'Reilly, 1 J. & Lat. 455, depended on a covenant in a marriage settlement. Ex parte Barff was much nearer the present case, and there ViceChancellor Knight Bruce held that a debt due from a devisee to his testator's estate did not constitute any lien on the devised estate. The legal estate of which Buckley was in possession was, under no circumstances, under the control of the court. The moment the testator died it became absolutely his, and no one had the power to deprive him of it, because he subsequently became indebted to the trust estate. No doubt it was a hard case for the family, but there were other persons to be considered as well as the family. MELLISH, L. J., and BAGGALLAY, J. A., concurred.

RECENT LEGISLATION.

MISSOURI LEGISLATURE-SESSION OF 1877.

AN ACT to authorize Boards of Directors, Boards of Trustees and Boards of Education in the State of Missouri, to submit to the voters of their respective districts, in cities, towns, and villages and other districts, propositions to increase the annual rate of taxation for school purposes and for erecting school houses.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Whenever it shall become necessary in the judgment of the board of directors of any school district, or boards of trustees or boards of education of any city, town or village in the state, to increase the annual rate of taxation for school purposes, or when any five resident tax-payers of such district shall petition such board, in writing, that they desire an

increase in the rate of taxation, such board shall determine the rate of taxation necessary to be levied in such district, within the maximum rates prescribed by the Constitution for such purposes, and shall submit to the voters of said city, town, village or other school district, who are tax-payers of such city, town, village or other school district, at an election to be by such board called and held for that purpose, at the usual place of holding elections for members of such board, whether the rate of taxation shall be increased as proposed by said board; and if a majority of the voters who are tax-payers voting at such election shall vote in favor of such increase, the result of such vote and the rate of taxation so voted in such district shall be certified by the clerk or secretary of such board or district, to the clerk of the county court of the proper county, who shall on the receipt thereof proceed to assess and carry out the amount so returned on the tax-book, on all the taxable propoerty, real and personal of such city, town, or village or other school district, as shown by the last annual assessment for state and county purposes, including all statements of merchants, as provided by law.

SEC. 2. Such boards of education or school boards of any city, town or village, or board of directors of any school district in the state, shall, whenever it shall become necessary in their judgment, or be requested by a petition of two tax-payers of any school district, city, or town, or village, to increase the annual rate of taxation for the purpose of erecting school buildings in such district, determine the rate of taxation necessary to be levied within the maximum rates prescribed by the Constitution and as therein limited for such purposes, and shall submit to the voters of districts formed of cities, towns and villages, or other school districts, at an election to be by such board called and held for that purpose, at the usual place of holding elections for members of such board, whether the rate of taxation shall be increased as proposed by said board for erecting school buildings; and if two-thirds of the qualified voters of such school district, or of such city, town or village, forming a school district, voting at such election, shall vote in favor of such increase, for the purpose aforesaid, the result of such vote and the rate of taxation so voted, shall be certified by the secretary or clerk of such board to the clerk of the county court of the proper county, who shall, on the receipt thereof, proceed to assess the amount so returned for building purposes on all the taxable property, both real and personal, of such city, town, or village, forming such school district, or other school district, as shown by the last annual assessment for state and county purposes, including all statements of merchants, as is provided by law.

SEC. 3. The elections authorized in this act may be held at the same time and place, and in the manner now provided by law for holding elections for school purposes; but the propositions in that event submitted, must be voted upon separately, and certified as hereinbefore provided.

SEC. 4. Said boards of directors of boards of education, calling such election, shall cause at least fifteen days' public notice to be given of the time and place of holding such election or elections, and the purposes for which it is held, by publication in some newspaper published in such city, town or village forming such school dirtrict, or other school district; and if no newspaper is published in such school district, then by five written or printed hand-bills, posted in five of the most public places in such district. SEC. 5. There being no law by which the people may have the benefit of this act in holding school elections in the year 1877, an emergency exists for the immediate taking effect of this act; therefore, this act shall take

effect and be in force from and after its passage. Approved March 24th, 1877.

ILLINOIS LEGISLATURE-SESSION OF 1877.

AN ACT to establish Probate Courts in all counties having a population of one hundred thousand, or more, to define the jurisdiction thereof and regulate the practice therein, and to fix the time for holding the same.

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That there shall be established in each of the counties of this state, now created and organized, or which may be hereafter created and organized, and which have a population of one hundred thousand, or more, court of record to be styled, "The Probate Court of (name of) County." Such court shall have a seal and may, from time to time, as may be necessary, renew or alter the same. The expense of such seal, and of renewing and altering the same, shall be paid by the county.

SEC. 2. Said court shall be held in the court-houses of the respective counties in which they shall be established, or in the usual places of holding courts, or in suitable rooms provided therefor at the county seat.

SEC. 3. The judge of said court, in each county in which such court shall be established, shall be elected on the Tuesday next after the first Monday in November, at the same election at which the county judge is elected, and every fourth year thereafter, and shall enter upon the duties of his office on the first Monday of December after his election, and shall hold his office for a term of four years, and until his successor is elected and qualified, and shall be known as the Probate Judge of (name of) county.

SEC. 4. The Probate Judge of each county in which a Probate Court shall be established, shall, before entering upon the duties of his office, take and subscribe and file with the secretary of state the oath required by the Constitution.

SEC. 5. Probate Courts shall have original jurisdiction, in all matters of probate, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts, and in all matters relating to apprentices, and in cases of the sale of real estate of deceased persons for the payment of debts; and as soon as such court is organized in any county, the county court in such county shall turn over to the Probate Court all of its probate records and all files, books and papers of every kind, relating to probate matters, in such county court, and all records, files and papers in matters of guardianship and conservators; and the clerk of the Probate Court shall be authorized to demand and receive from the county clerk all such records, files, books and documents, and upon the receipt thereof, the Probate Court shall proceed to finish and complete all unfinished business relating to probate guardianship and conservator matters, in the manner provided by law.

SEC. 6. The terms of the Probate Court shall commence on the third Monday of each month during the year, and shall be always open for the granting of letters testamentary, letters of administration and guardianship, and for the transaction of probate business, and all other matters of which it has jurisdiction, and shall continue open from day to day, until all business before it is disposed of.

SEC. 7. The Probate Court shall have the power to impanel a jury for the trial of issues or matters of fact in any matter or matters pending before the court, and for such purpose the court may, at any time when it becomes necessary to have a jury, direct the clerk of