When the court has jurisdiction of the case and of the party, and the warrant is sufficient to justify the officer, and the prisoner has no special privilege or exemption, his imprisonment is legal; and the law does not allow the authority of the judge, by whom the court was held and the warrant issued, to be disputed in a summary manner by writ of habeas corpus.

HABEAS CORPUS to release the petitioner from imprisonment by virtue of a warrant of commitment issued by the Police Court of Lynn.

Wm. H. Niles, for petitioner; Chas. R. Train, Attorney-general, for the Commonwealth.

282

GRAY, C. J., delivered the opinion of the court: The petitioner, not denying the jurisdiction of the police court of Lynn, rests his claim to be discharged upon the disqualification of Mr. Hawkes (who, as a special justice of that court, passed the sentence and ordered the commitment), by reason of the eighth article of amendment of the Constitution, which declares no judge of any court of this Commonwealth (except the court of sessions) shall at the time have a seat in the Senate or House of Representatives. But if Mr. Hawkes, upon taking his seat in the House of Representatives, ceased to be a justice de jure, he was by color of the commission which he still assumed to hold and act under, having the usual signs of judicial office,-sitting in the court, using its seal, and attended by its clerk, and no other person having been appointed in his stead, a justice de facto. Upon well-settled principles, it would be inconsistent with the convenience and security of the public, and with a due regard to the right of one acting in an official capacity under the color of, and a belief in, the lawful authority to do so, that the validity of his acts as a justice should be disputed, or the legal effect of his election and qualification as a representative be determined, in this proceeding to which he is not a party. The appropriate form of trying his right to exercise the office of justice is by information in behalf of the Commonwealth, or perhaps by action against him by the person injured. Fowler v. Bebee, 9 Mass. 231, 235; Com. v. Fowler, 10 Mass. 290, 301.

The rule extends to all offices, executive or judicial, and applies alike to questions of the validity of the original election or appointment, and to questions whether the commission or authority has expired by its own limitation or by the acceptance of an incompatible office. Of the great number of cases in the books, it will be sufficient to cite some of those most nearly resembling the case before us.

Judicial acts done in a court-baron by a steward not duly appointed, or by an under-steward who kept court as steward without authority of the lord or of the high steward, or even by a clerk holding a court without disturbance by the lord, were held good, as done by color of authority, the lawfulness of which the suitors were not compellable to examine or inquire into. Harris v. Jays, Cro. Eliz. 699; Vin. Ab. Steward of Court, G.; Com. Dig. Copyhold, C. 5.

In Milward v. Thatcher, 2 T. R. 81, 87, Mr. Justice Buller, speaking of early cases in which writs of error were unsuccessfully brought to reverse judgments, by

the records of which the same persons appeared to have acted as judges and as bailiffs, said: "In such cases, the question whether they be properly judges or not, can never be determined; it is sufficient if they be judges de facto." See, also, Andrews v. Linton, 2 Ld. Raymond, 884, 885; Clark v. Com., 29 Penn. St. 129. In Cocke v. Halsey, 16 Pet. 71, 87, which concerned the validity of an act done by a clerk pro tempore after the close of the term of court at which he was appointed, the Supreme Court of the United States expressed a decided opinion that, assuming that the appointment was, by the Constitution and Laws of the State, limited to the term, yet he was clerk de facto, acting colore officii, and his acts must therefore be deemed valid as regarded third persons interested in them. So acts done by a justice of the peace or a constable, after his commission has expired, but while he is commonly reported to hold his office, are valid. Brown v. Lunt, 37 Maine, 425; Petersilea v. Stone, 119 Mass. 465.

The Constitution of the State of Vermont declares that "no person, holding any office of profit or trust under authority of Congress, shall be eligible to any appointment in the Legislature, or of holding any executive or judiciary office under this state." In McGregor v. Balch, 14 Vt. 428, a plea to the jurisdiction of a justice of the peace, that, at the time of signing the writ and at the time of the trial, he was a postmaster under the authority of Congress, and as such was ineligible to the office of a justice of the peace, and unauthorized to take cognizance of the action, was adjudged, upon full consideration, to be bad, because he was a justice de facto, and the question whether, on the one hand, upon accepting and qualifying as a justice, he resigned the office of postmaster, and became a justice de jure, or, on the other hand, continued to hold the office of postmaster, and therefore could not legally hold the office of justice also, could not be tried and determined in an action to which he was not a party. That case has more than once been cited with approval by this court. Com. v. Kirby, 2 Cush. 577, 581; Fitchburg R. R. v. Grand Junc. R. R., 1 Allen, 552, 558.

In Com. v. Kirby, the defendant, being indicted for assaulting and obstructing a constable in the execution of his office, introduced evidence that the only authority of the constable was a warrant issued by a person who, after having been appointed and qualified as a justice of the peace, had been duly appointed and qualified as a constable, and held this office when he, as a justice, issued the warrant in question. This court, while expressing the opinion that the acceptance of the office of constable did not, by the Constitution of Massachusetts, disqualify him to act as a justice of the peace, further declared that, if this were more doubtful, and if, in an action instituted against a justice of the peace for issuing his warrant without authority, this ground of the incompatibility of the two offices would avail, yet that, holding a commission as justice of the peace, and having been legally qualified to act as such, and continuing to act in that capacity, with full power, unless for the objection now taken, he would, as against third persons, be considered as a justice of the peace de facto, and his warrant would justify the officer to whom it was directed in making service of the same.

In Fitchburg R. R. v. Grand Junc. R. R., which was an action to recover a portion of the expense of building a bridge at a junction of the tracks of several railroad corporations, according to the award of a commissioner appointed by the Governor, upon the application of the plaintiff, under a statute for the purpose, it was held that it was not open to the defendant to show that the appointment was in violation of the

Constitution of the Commonwealth, for the reason that the commissioner held at the same time two other offices.

The case of this petitioner being within the jurisdiction of the police court, the warrant of commitment, under the seal of the court and signed by its clerk, was a complete justification of the jailer to whom it was addressed. When the court has jurisdiction of the case and of the party, and the warrant is sufficient to justify the officer, and the prisoner has no special privilege or exemption, his imprisonment is legal, and the law does not allow the authority of the judge by whom the court was held and the warrant issued to be disputed in a summary manner by writ of habeas corpus. Com. v. Lecky, 1 Watts, 66; State v. Bloom, 17 Wis. 521; Ex parte Strahl, 16 Iowa, 369; Ex parte Strang, 21 Ohio St. 610.

PRISONER REMANDED.

BOOK NOTICES.

BOOKS RECEIVED.-United States Digest, vol. 7. 1876. Boston: Little, Brown & Co. 1877.-Indiana Reports, vol. 53. Indianapolis: Indianapolis Publishing House. 1877.-Rowell's American Newspaper Directory for 1877. New York: Geo. P. Rowell & Co. 1877.

REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF NEVADA, during the year 1876. Reported by CHAS. F. BICKNELL, Clerk of Supreme Court, and HON. THOMAS P. HAWLEY, Chief Justice. Vol. XI. San Francisco: A. L. Bancroft & Co. 1877.

This is a handsomely printed and well bound volume of 500 pages, containing the opinions of the Supreme Court of Nevada, delivered during the year 1876. Over sixty cases are reported, one of which, Duffy v. Phelps, as to the proper allegation in bringing a suit upon a judgment recovered in a sister state, has already been reported in this journal in extenso. See ante, p. 318. Among the decisions here reported are several of considerable interest, full abstracts of which we append:

REASONABLE DOUBT.-State v. Rover, p. 343. Opinion by HAWLEY, C. J. The court below, in defining reasonable doubt, gave the following instruction: "By reasonable doubt is ordinarily meant such a one as would govern or control you in your business transactions or usual pursuits of life." Held, error; overruling State v. Millain, 3 Nev. 481. Citing Com. v. Webster, 5 Cush. 320; State v. Nash, 7 Ia. 385; State v. Ostrander, 18 Ib. 458; Arnold v. State, 23 Ind. 170; State v. Crawford, 34 Mo. 201; People v. Ash, 44 Cal. 289; State v. Dineen, 10 Minn. 416; State v. Shettleworth, 18 Minn. 208; Bray v. State, 41 Tex. 561; Jane v. Com., 2 Met. 33; State v. Oscar, 7 Jones, 305.

DUTY OF COURT TO DECIDE UPON ITS JURISDICTION, THOUGH SUCH QUESTION NOT RAISED BY THE PARTIES-CONTEMPT OF COURT-WHEN PROCESS IS CIVIL AND WHEN CRIMINAL-APPELLATE JURISDICTION.-Phillips v. Welch et al., p. 187. Opinion by BEATTY, J. 1. It is the duty of a court to decide in limine the question of jurisdiction, although the parties before the court are willing to concede jurisdiction for the purpose of obtaining an opinion upon the matters in controversy. Every court is bound to know the limits of its own jurisdiction, and to keep within them. Though it is true that the question of jurisdiction is often difficult of solution, and that argument of counsel is as essential to its proper determination as it is in any other class of questions; still, if a doubt is suggested as to the court's authority to decide a case, if counsel decline to argue it, the court is bound to determine it without the aid of argument. Especially is this so, where all the parties to be affected by the deci

sion are not before the court. 2. If a contempt consist in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not punitive, but coercive. But if the contempt consist in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by a penalty of fine or imprisonment, or both, which is purely punitive. 3. This court has no appellate jurisdiction in cases of contempt, where the proceeding is purely criminal. Citing B. & O. R. R. v. Wheeling, 13 Gratt. 57; Ludlow v. Knox, 7 Abb. Pr. 416; Erie R. R. v. Ramsay, 45 N. Y. 642; People v. O'Neil, 47 Cal. 109; Batchelder v. Moore, 42 Cal. 413; Crosby's Case, 3 Wilson, 188, Yates' Case 4 Johns. 370; Ex parte Kearney, 7 Wheat. 38; Williamson's Case, 26 Penn. 20.

ATTEMPT TO COMMIT RAPE-ASSAULT.- State v. Pickett, p. 255. Opinion by BEATTY, J. An attempt to commit rape does not constitute an assault when the female actually consents to what is done, whether she be within the age of twelve years or not. There can be no assault upon a consenting female, though, in the case of a child under the age of twelve years, there may be what the statute designates a rape. The common-law definition of rape is "the carnal knowledge of a woman forcibly and against her will." The same definition is adopted by the statute of this state. Comp. Laws, sec. 2350. Under this definition an assault is a necessary ingredient of every rape or attempted rape. But is not a necessary ingredient of the crime of carnally knowing a child under the age of twelve years, with or without her consent, which is defined in the latter part of the section, and which is called rape. These are two distinct crimes, though called by the same name. To one, force and resistance are essential ingredients, while to the other they are not essential. As an assault implies force and resistance, the crime last defined may be committed, or at least attempted, without an assault, if there be actual consent on the part of the female. This is well settled in England, where, under the provisions of several statutes, the carnal knowledge of a female under ten years of age, with or without her consent, is made a "felony." The statutory crime is not there denominated "rape;" and the English judges have escaped the confusion of ideas which, in this country, has no doubt arisen from the fact that two essentially different crimes have been called by the same name; leading our courts, in some instances, to attribute to the statutory rape all the qualities of common-law rape. Thus in Hays v. The People, 1 Hill, 352, where the precise question here involved was under discussion, Judge Cowen, delivering the opinion of the court, said: "The assent of such an infant being void as to the principal crime, it is equally so in respect to the incipient advances of the offender. That the infant assented to, or even aided in, the prisoner's attempt, can not, therefore, as in the case of an adult, be alleged in his favor any more than if he had consummated his purpose." And this construction was afterwards adopted by the Supreme Court of Michigan, in People v. McDonald, 9 Mich. 150. The New York case was decided in 1841, and no reference was made to several cases then recently decided in England, by which a different construction had been given to a statute substantially the same as that of New York. The court was probably unaware of these decisions. The Michigan case was decided twenty years later; but the court took no notice of the English decisions, though they were referred to in the argument. On the other hand, in a still later case, decided by the Supreme Court of Ohio (Smith v. State, 12 Ohio, 466), an opposite conclusion is reached after a

full discussion of the question and an elaborate review of the authorities. The reason of this decision is most satisfactory, and is sustained by the authority of some of the most eminent of the recent English judges. See Reg. v. Martin, 9 C. & P. 213; Reg. v. Meredith, Reg. v. Banks, 8 C. & P. 589, 575; Reg. v. Read, 2 Car. & Kir. 937; 1 Dennison's Crown Cases, 377, and note to page 379.

DISCHARGE OF UNCHALLENGED JUROR BY COURTEVIDENCE-CREDIBILITY OF WITNESS-CHARACTER FOR CHASTITY.-State v. Larkin, p. 314. Opinion by HAWLEY, C. J. 1. Upon the trial of this case, a juror testified upon the voir dire that he was not a citizen of the United States. The court thereupon excused him; neither party having challenged him. Held, no error. The court, in the exercise of its discretion, has the right of its own motion to discharge a juror at any time before he is sworn. If there is an abuse of this discretion, it might perhaps be subject to review, although there are but few cases reported where the judgment of the court has ever been disturbed upon this ground. The authorities all agree that, for any good cause shown, the court may, without challenge from either party, excuse a juror before he is sworn. People v. Arceo, 32 Cal. 44; Lewis v. State, 9 S. & M. 118; McGuire v. State, 37 Miss. 376; State v. Marshall, 8 Ala. 304; Jesse v. State, 20 Ga. 164; Pierce v. State, 13 N. H. 354; Montague v. Com., 10 Grat. 767; Com. v. Hayden, 4 Gray, 119; Stout v. Hyatt, 13 Kas. 241; Atlas Mining Co. v. Johnston, 23 Mich. 39. The true rule, applicable to criminal as well as civil cases, is, in our judgment, clearly and correctly stated in the case of Atlas Mining Co. v. Johnston, supra, as follows: "And although it would be ground of error for the court to admit a juror who is challenged and ought to have been rejected, it is no ground of error for the court to be more cautious and strict in securing an impartial jury than the law actually required; and that for this purpose the court may properly reject a juror on a ground which would not be strictly sufficient to sustain a challenge for cause; or, in other words, when the refusal to sustain the challenge would not constitute error. So long as an impartial jury is obtained, neither party has a right to complain of this course by the court, and especially when, as in this case, no objection was taken by either party to the competency or impartiality of the jury which was obtained." 2. There was no error in the court below overruling the instruction asked by defendant's counsel, that "the jury may, and it is their duty to, take into consideration the chastity or want of chastity of any witness for the state, in determining the credibility due such witness." That want of chastity is sufficient to destroy the credibility of a witness, is not true as a general proposition. A witness may be unchaste, and yet be truthful; may be chaste, and yet be untruthful. The law affords ample remedies for testing the credibility of witnesses, without introducing testimony of specific acts of immorality, and, in particular instances, allows greater latitude than in others, owing to the special facts and circumstances that surround each individual case. There are exceptional cases where it might be proper to show the utter depravity of the moral character of a witness, in order to establish the fact that such a witness is not entitled to credit. But the general rule, as recognized by a majority of the decided cases, is that evidence of bad character for chastity, where such character is collaterally, not directly, in issue, is not admissible for the purpose of impeaching the credibility of a witness. People v. Islas, 27 Cal. 630; Gilchrist v. McKee, 4 Watts, 380; Jackson v. Lewis, 13 Johns. 505; Bakeman v. Rose, 14 Wend. 110; Ford v. Jones, 62 Barb. 484; Spears v. Forrest, 15 Vt. 435; Kilburn v. Mullen, 22 Ia. 502; Rudsill v. Slingerland, 18 Minn. 381.

PRACTICE, CIVIL-SETTING ASIDE JUDGMENTS AFTER THE TERM.—A judgment may be set aside for irregularities, on motion made within three years after the term at which such judgment was rendered. [Citing Wag. St., p. 1062, § 26; Downing v. Still, 43 Mo. 309]. The term "irregularity" does not include trifling informalities or those which are of no legal significance. [Citing Tidd's Pr. 513; Harbor v. Pacific R. R., 32 Mo. 423; Branstetter v. Rives, 34 Mo. 318; Stacker v. Cooper Circ. Ct. 25 Mo, 401; Smith v. Rollins, 25 Mo. 408; Downing v. Still, supra.] The taking judgment by default in a case which had been regularly appealed from the Justice's Court to the Circuit Court and then docketed in the usual form with its number, but omitting the name of one of the defendants, which the defendant's counsel failed to discover on the docket, shows no such irregularity as would justify the court below in setting aside the judgment after the term at which it was rendered. Judgment reversed. Opinion by HAYDEN. J.-Tackett v. Currill.

BOND AND MORTGAGE-SURETIES RELEASED BY FORECLOSURE AND SALE-COSTS IN BANKRUPTCY PROCEEDINGS.-Where a bond and mortgage was given to secure the payment of certain school moneys, and subsequently the mortgagor became bankrupt, and the bankrupt court, on the petition of the mortgagee and the assignee, ordered the sale of the property to satisfy the debt secured by the mortgage, and the property upon being sold brought sumcient to pay the debt thereby secured, together with the ordinary costs of foreclosure and sale, the sureties of the mortgagor are released from further liability notwithstanding the fact that a considerable portion of the proceeds of said sale is appropriated by order of the bankruptcy court for the payment of costs of proceeding in that court. To hold differently would be to hold the sureties bound for the costs incurred in bankruptcy, which would be an obligation they never assumed. Judgment reversed. Opinion by BAKEWELL, J.-Mills v. Watson.

RAILROAD NEGLIGENCE · -KILLING WAYFARER-CONTRIBUTORY NEGLIGENCE-STREET RAILROAD-CHILD OF TENDER YEARS-INSTRUCTIONS-EVIDENCE.-In an action for damages for the killing of plaintiff's child, of the age of three years, by running over it with one of defendant's street cars, held, that there could be no contributory negligence on the part of a child of that age. Burden of proof is with plaintiff, as negligence will not be presumed from the fact of an accident resulting in death. [Citing Schutz v. Pacific R. R.] The questions of ordinary care and negligence are for the jury. [Citing P. R. R. v. Hummell, 44 Pa. St. 379]. Therefis no presumption that the track of a street railroad will be clear, because the use of such track is not exclusively for its owners, and in the streets of a large city children of tender age are constantly on the streets. It is the duty of drivers to look out and foresee collisions. So, where the facts as presented by the evidence were that the child was running across the street as fast as he could, and the mules attached to the car were traveling at a moderate trot, and the driver did not see the child until it was four feet from the track and six feet in front of the car, when it was impossible for him to stop the car in time to save the child, there was sufficient evidence of negligence to go to the jury, though it further appeared that the driver was sober at the time, and there was evidence tending to prove that he was ordinarily careful. [Citing Phila. & R. R. R. Co. v. Spearen, 47 Pa. St. 305]. Instructions asked on abstract questions not raised in the case are properly refused. After the jury had been plainly instructed that plaintiff could not recover unless the act was one of negligence,

MALICIOUS PROSECUTION - PROBABLE CAUSE.-The mere belief that a person has been guilty of a crime is not sufficient to authorize a criminal prosecution against him. In addition to such belief there must be reasonable and probable cause for instituting the criminal action. Judg. ment affirmed. Opinion by Howk, J.-Graitu v. Williams. WILLS-INCAPACITY OF TRUSTEES-UNCERTAINTY AS TO BENEFICIARIES.-A county is capable of holding real estate as trustee for charitable purposes (Craig et al. v. Secrist, decided at the present term); and where a testator devised all his real estate to the commissioners of the county in trust for the use and benefit of the orphan poor and for other destitute persons of the county, the beneficiaries under such will were not so uncertain as to defeat the execution of the same. See De Bruler et al. v. Ferguson, at this term. Judgment reversed. Opinion by PERKINS, J.—Board of Commissioners of Lagrange Co. et al. v. Rogers et al.

CREDIBILITY OF WITNESS-PARTIES TO SUIT AND THEIR KINSMEN.-In Indiana the interest of a witness in the result of an action, whether as a party or as a kinsman of a party, does not disqualify him from testifying, and such interest may or may not detract from the weight his evidence is entitled to. The question of the weight of evidence of the different witnesses is one solely for the consideration of the jury, and it is not the province of the court to dictate to the jury what weight should be given to the evidence of this or that witness. Where the court instructed the jury that " the evidence of parties to the action, and those related to them, as their sons and daughters, is not entitled to as much weight as the evidence of disin. terested witnesses," held, not a proper charge. Judgment reversed. Opinion by HowK, J.-Nelson v. Vorce.

PROMISSORY NOTE-AUTHORITY TO FILL BLANKSCONTINUANCE.-Where a party signs his name to a blank note, and then trusts it to another for delivery or negotiation, he thereby clothes the latter with an implied author. ity, which he is estopped to deny, to fill up the blanks as the latter may choose in order to make it a complete note. 32 Ind. 202. But this rule has its exceptions and reasonable limitations, especially between the parties to the note, who are acquainted with the facts relating to its execution. Where the blanks in a note were all filled except the date when the note was signed and intrusted to the principal for delivery, the latter was authorized to fill the blank with the true date of the execution of the note, but not with a date long previous to the time of such execution. And an . affidavit, setting forth that an absent witness would testify to such antedating of the note, was sufficient ground for a continuance. Judgment reversed. Opinion by HOWK, J. -Emmons v. Meeker.

BILLS OF EXCHANGE-RIGHTS AND LIABILITIES OF ACCEPTOR-BREACH OF WARRANTY.-1. By the acceptance of a bill, although accepted for the accommodation of the drawers, the acceptor becomes a principal debtor and not a surety for the drawers, and is bound by his acceptance, whether he has funds in his hands of the drawers with which to pay the bill or not. 2 Blackf. 137; 6 Cow. 484; 7 Wend. 227; 26 Vt. 19; 20 Ill. 11; 22 Ill. 330. 2. Where property has been unconditionally sold, with a warranty, in the absence of fraud the purchaser can not, because of a breach of the warranty, rescind the contract without the consent of the seller and recover back the purchase money, as money paid on a consideration which has failed, or de

fend against the collection of the purchase-money upon the ground of a want or failure of consideration. The remedy in such a case is an action for the breach of the warranty, and the remedy may be enforced, in a proper case, by way of recoupment or counter-claim. 16 Vt. 536; 12 Wheat. 183; 10 Penn. 107; 2 Hill, N. Y., 288. But where such damages are not due to the acceptor, but to the drawers of the bill, the acceptor can not set them up as a defense when sued upon the bill. Judgment affirmed. Opinion by WORDEN, C. J.-Marsh v. Low.

WARRANTY ON SALES.-There is no implied warranty of soundness in the sale of a horse. Representations are not a warranty unless intended and understood to be so. Where the defendant said the mare "was a good mare," and it proved afterwards that she had had the "hocks," and that her eyes were defective, the declaration that she "was a good mare" is not a warranty of soundness, and plaintiff can not recover for such a defect. Foster v. Estate of Colewell, 18 Ver. 180; M'Farland v. Newman, 9 Watt. 56; Parsons on Contracts, vol. 1, p. 580; House v. Fort, 4 Blackford, 291; Ender v. Scott, 11 Ill. 35; Humphreys v. Comline, 8 Blackford, 516. Opinion by HENRY, J.-Mattock v. Myers.

EXEMPTION LAWS-PARTNERSHIP ASSETS.-Where judgment is obtained against partners, or an attachment levied upon partnership property, neither the partners jointly, nor any of them severally can claim the partnership effects as exempt from execution or attachment under the statute, although the partners may be the heads of families and not possessed of property which the law allows them; and an officer, who releases partnership effects to the partners upon their claim to the same under the exemption law, is liable therefor at the suit of the creditor. Pond v. Kimball, 101 Mass. 105; In re Handlin, 3 Dillon, 290; Bonsall v. Comly, 44 Penn. 447; Guptil v. M'Fee, 9 Kas. 30. Opinion by HENRY, J.-State ex rel. Billingsly v. Spencer et al.

SPECIAL TAX-BILLS FOR GRADING AND PAVING STREETS.-Where the charter of a city authorizes the improvement of streets and side-walks and a special tax-bill chargeable against adjacent property according to its frontage on the streets, it is error to instruct a jury that there can be no recovery if the tax-bill was based upon a computation and apportionment of the cost of grading both sides of the street, and not upon the cost of grading only the side upon which the property charged fronts. The First Nat. Bank of Kansas City v. Amoloson, October Term, 1876; Newman v. Smith, 60 Mo. 292. Opinion by HENRY, J. -First Nat. Bank of Kansas City v. Nelson.

RAILROADS-NEGLIGENCE-INJURY TO ONE ON THE PLATFORM WHO WAS NOT A PASSENGER.-The plaintiff was standing on the platform at a depot when a freight train arrived, and was struck and injured by a piece of timber which projected out from a car loaded with lumber. Held, that the company was liable for the injury. One who is not a passenger, nor at the depot with intent to become a passenger, does not occupy the same relation to the company that a passenger does; yet he is not a trespasser, and, if injured by the negligence of the company's servants without negligence on his part directly contributing to the injury, may recover damages. Gillis v. Penn. R. R., 59 Penn. 129, cited and disapproved; Herwhacker v. C. C. & C. R. R., 3 Ohio, 175; Isabel v. H. & St. J. R. R., 60 Mo. 475. Opinion by HENRY, J.-Hicks v. P. R. R.

WHEN the Farmers' Bank of Missouri obtained judgment against a debtor, sold real estate, and at the sale became the purchaser thereof, the sale was not made void by the fact that the sheriff who levied the execution, and also the sheriff who made the sale, were stockholders in the bank; and although at the date of the judgments there was an outstanding deed of trust on the property to secure a debt which was due and unpaid, only the mortgagee, or

trustee, or one claiming under him could make that defense, and not a stranger holding adversely to the mortgage; and the purchaser at the sale made upon said judgments can recover in ejectment against the purchaser at a subsequent sale made by the debtor's assignee in bankruptcy. Opinion by HENRY, J.-Hardwick v. Rickards et al. INDICTMENT-CRIMINAL PRACTICE.-It is not error in a court to refuse defendant a copy of the indictment in a murder case, when the record shows that such copy had already been furnished. A plea that one of the grand jurors which returned the indictment was not a freeholder or householder in the county where the indictment was found, and that defendant was in custody when the jury was sworn and had no opportunity to challenge the juror, or the array; and a plea that the record fails to show that the county court selected the grand jurors or either of them, and that five of the eighteen were not selected by the court, and five others who had been selected were not sworn on the jury, or discharged by the court, are not good pleas in abatement. State v. Welch, 33 Mo. 33; State v. Blakey, 18 Mo. 428; State v. Connell, 49 Mo. 282. The declaration of a little girl, nine years of age, made after the killing, and in presence of the body of deceased, that "Mr. Long (the deceased) had a knife in his hand," is inadmissible on the trial of defendant. It is not res gestæ, and the child is a competent witness. Where the jury boarded at the house when the homicide was committed, and were seen looking at the ground on which it occurred, this was no misconduct on the part of the jury, there being no evidence offered to show that they were looking at the ground with a view of understanding how the killing was done, nor that they conversed among themselves in regard to the ground. Opinion by HENRY, J.-State of Missouri v. Brown.

ABSTRACT OF DECISIONS OF SUPREME COURT OF KANSAS.

January Term, 1877.

HON. ALBERT H. HORTON, Chief Justice.

66

D. M. VALENTINE, Associate Justices. 66 D. J. BREWER,

PROMISSORY NOTE-WHAT IS SUFFICIENT NOTICE OF PROTEST.-Before an indorser can be held upon a note, it must appear that sufficient notice of protest was duly served upon him; and a finding that a notice, the contents of which are unknown, was served is not equivalent to a finding that a notice of protest, much less a sufficient notice of protest, was served. Opinion by BREWER, J.-Couch v. Sherrill.

TAX LEVY-EXCESSIVE-EFFECT OF SUBSEQUENT ACT. -1. Where the county commissioners of Sedgwick County, in levying taxes for the year 1874, levied for current expenses a tax of one per cent., which tax was all that they had any power to levy during that year for that purpose, and then, in addition to said tax, and apparently without any authority, they levied another tax of eight mills on the dollar to meet a deficit in the county revenue of the preceding year; Held, that the levy of said eight-mill tax was and is illegal and void. 2. Afterwards, on March 6. 1875, the legislature passed an act entitled "An act to legalize a certain levy of taxes," which act provides "that all levies of taxes heretofore made by the board of county commissioners of Sedgwick County, Kansas, in the year 1874, be and the same are hereby legalized." Laws of 1875, p. 6. Held, that said act does not make valid said eight-mill tax; that even after the passage of said act said eight-mill tax is not sustained or upheld by any law which distinctly states the object of the tax. Constitution, art. 2, sec. 4. Opinion by VALENTINE, J.-A., T. & S. F. R. R. v. Woodcock. VOID DEED CONSIDERATION FOR AGREEMENT. — 1. Where H, a councilman and head man of the Ottawa Indians, makes a warranty deed to K, for $1,300, to certain lands patented to H under the first clause of article 3 of the treaty with said Indians, proclaimed July 28th, 1862, which deed is null and void at the time of its execution, and the said H, after he has become a citizen of the United States by the terms of the treaty, executes a quit-claim deed to C of the same land for the consideration of $200, and thereafter C delivers to H, voluntarily and without any consideration, a written agreement to the effect that he will notify certain parties, who claim to have title to said lands from H, that he has the same, and that he will offer to per

fect their title thereto, but if said parties refuse and neg. lect to purchase the title of C within sixty days, then C is to be released from any obligation to convey the title to said parties: Held, that such agreement is a promise for which there is no consideration, and that it can not be enforced at law. Held, also, that such agreement, under said circumstances, is no defense to an action brought by C against the grantee of K to recover the possession of the real property deeded to C by H. Opinion by HORTON, C. J. -Clark v. Libbey.

The appeal of a part

APPEAL-CHANCERY PRACTICE. of the defendants in a chancery cause does not bring up the cause as to other defendants, whose interests are distinct. Citing and following Young v. Young, (MS.), April term, 1874. Opinion by MCFARLAND, J.-Nelson v. Trigg.

ADMINISTRATION-SITUS OF PERSONALTY.—An executor or administrator acquires, by his qualification in Tennessee, no right to personalty situated in another state; and if he bring such assets into Tennessee, his sureties there are not liable therefor. Opinion by MCFARLAND, J. — Nelson v. Trigg.

REBELLION-BELLIGERENT RIGHTS-VOID CONTRACT.— A contract made July 5, 1864, between R., a citizen of Missouri, and T., a citizen of Louisiana, for the sale of cotton by T. to R., was null and void by reason of the war then flagrant; and a mortgage given contemporaneously by T. to R., to secure the delivery of the cotton, or the refunding of the money paid therefor, is also void. Opinion by McFARLAND, J.-Ruby v. Trigg.

ADMINISTRATION-REAL ASSETS-DOWER-DESCENT.1. The widow of an heir or devisee of realty can not have dower in such realty, where the creditors of the ancestor have instituted proceedings against it, as assets, before the death of the heir. The filing of a bill to reach lands as assets for the payment of debts makes them such assets. 2. Semble, that until the debts of the ancestor are in fact paid, the heir or devisee of the realty does not so far become owner thereof as to give his widow dower therein. Opinion by MCFARLAND, J.-Nelson v. Trigg.

MUNICIPAL TAXES - RECOVERY OF, WHEN ILLEGALLY EXACTED CONFLICT OF JURISDICTION.-1. Municipal taxes, illegally exacted, may be recovered back by the taxpayer, if the municipal corporation acknowledged the same as a debt for which it is liable. 2. But the tax-payer will not, by the state courts, be allowed to set off such debt against a renewed assessment for the same tax, ordered to be collected in cash by the corporation, by a mandamus from the United States Circuit Court, even though the corporation be insolvent. Opinion by DEADERICK, C. J.Lea v. City of Memphis.

DECEIT-BANK-CASHIER.-1. The essence of the liability of the defendant, in an action of deceit by representations as to the solvency of another, by reliance on which the plaintiff was injured, is the purpose to influence the action of the latter by such representations, regardless of their truth. 2. It is questionable, if it would be the duty of the defandant to notify the plaintiff in case of a change in circumstances as to the third party's solvency, where all reside in the same town or city. 3. A bank is not liable for the act of its cashier in making such representations, unless it has authorized him to do such acts. Citing Barwick v. Eng. Joint Stock Co., 2 Law Rep. 265; Swift v. Jewsbury, Law Rep. (1874) 314. Opinion by FREEMAN, J.-Horrigan v. First National Bank of Memphis.