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back to them in payment of the calls on the shares for which he had subscribed the memorandum of association. I think, therefore, that Mr. Coates is not liable to pay anything on these shares." The case was one in which the official liquidator of the company which had become insolvent sought to enforce the alleged liability of Mr. Coates by having him placed on the list of contributories for 2,500 shares in the company for wbich he had signed the articles of association.

Without pursuing the subject more at length, we are of opinion that the direction to the jury was right, and that the motion for a new trial must be overruled.

TREAT, J., concurs.

LIFE INSURANCE REPRESENTATIONS ON APPLICATION.-1. One whose life had been insured in a company at Newark, New Jersey, but who had failed to keep up the premiums, so that the policy lapsed, applied for a reinstatement of the policy to the agent at Washington, D. C., on the first of October. He paid the premium, and gave his certificate of health to the agent on that day, and the physician of the company signed his certificate of examination, all of which were forwarded at once to the company. On the 12th of October the company returned its renewal receipt, dated back to the time of the lapsing of the policy, and this receipt was, on the 14th, given to the insured, who made no statement as to his health then. In an action on the policy, it was claimed by the company that between the 1st and 14th of October there was a change in the health of the insured that would have caused a rejection of the policy, and the court was, at the trial, asked to charge that the representation as to health was a continuing one up to the 14th, which request was refused. Held, that such refusal was no error. The jury would have been warranted in finding that the contract was understood and intended by the parties to take effect by relation to the 1st of October, and the question was proper for submission to the jury. 2. Where the disposition of a subject by a judge can work no legal injury to the party objecting to it, there is no error.-Mulual Benefit Life Ins. Co. v. Higginbotham. In error to the Supreme Court of the District of Columbia. Opinion by Mr. Justice HUNT. Judgment affirmed. Reported in full 17 Alb. L. J. 52.



October Term, 1877. REVENUE LAW-COMMISSIONS OF COLLECTORS.The act of July 20, 1868, does not change the rule established by the act of July 13, 1866, concerning commissions to collectors of internal revenue on taxes collected upon articles transferred from one district to a bonded warehouse in another district.- United States 0. Wilcox. Appeal from the Court of Claims. Opinion by Mr. Justice STRONG. Judgment affirmed.

REVENUE LAW-RIGHT OF OFFICER TO EXAMINE BANK CHECKS.-Section 3177 of the revised statutes does not authorize a revenue officer to enter a place of business to examine bank checks, unless it is alleged and proved that such bank checks were not duly and sufficiently stamped at the time they were made, signed and issued.United States v. Mann. In error to the Circuit Court of the United States for the District of Minnesota. Opinion by Mr.Justice CLIFFORD. Judgment affirmed.

REVENUE LAW-NEGLECT OF DISTILLER TO KEEP Books.-The offense of neglecting and refusing to keep the books which the law requires a distiller to keep, attaches primarily to the distillery, and the real and personal property used in connection with it. The owner of property who suffers it to be occupied and used as a distillery can not save his property from forfeiture by pleading innocence of personal misconduct or responsibility.-Dobbins v. United States. In error to the Circuit Court of the United States for the District of Iowa. Opinion by Mr. Justice CLIFFORD. Judgment affirmed.

EFFECT OF WAR ON LIFE INSURANCE CONTRACTS. -S., residing at Petersburg, Virginia, before the war, procured a policy of insurance upon his life in the New York Insurance Company, located in New York. The policy was conditioned to be void if the premiums were not paid when due. The premiums were, up to the commencement of the war, paid to an agent of the company who resided at Petersburg, who was authorized to receive them, and who was furnished re. ceipts for such a purpose. After the war commenced 8. tendered the premiums to the agent, who refused to receive them, and tender was also made after the close of the war to him with like result. Held, that the war suspended the contract of agency between the company and its agent, in the absence of an agreement to the contrary, and the agent had no authority to receive the premiums, and a tender to them did not avail to save the rights of S. under the policy.—New York Life Ins. Co.v. Davis. In error to the Circuit Court of the United States for the Eastern District of Virginia. Opinion by Mr. Justice BRADLEY. Judgment reversed. Reported in full 17 Alb. L. J. 49.

COMMON CARRIERS-SPECIAL PROPERTY IN GOODS. HELD FOR TRANSPORTATION-LIEN FOR FREIGHTLIEN LOST AFTER DELIVERY OF GOODS-REPLEVIN. -Lake Shore & M. S. R. R. v. Ellsey, Supreme Court of Pennsylvania, 4 W. N. 548. Opinion by STERRETT, J. Replevin can not be maintained without showing either a general or special property in the plaintiff, and a right of immediate possession as against the defendant. Where a railroad company, upon receipt of its charges for freight, etc., voluntarily delivered property to the consignee, who received it in good faith: Held, that their lien was discharged, and that they could not afterwards maintain replevin for the goods, though it appeared that conditions precedent to the delivery had not been complied with. Semble, that where the consignee obtains possession by fraud, the rule is different.

MARRIED WOMAN-POWER OF TO CONTRACT HOMESTEAD ESTOPPEL. Spafford v. Warren, Supreme Court of Iowa, 11 West. Jur. 643. Opinion by BECK, J. 1. Under the statute of this state the wife is clothed with the same property rights, and charged with the same liabilities as the husband. Indeed, it can not be said that, as to her property, she is deprived of any rights which her husband enjoys that relate to his, or that any remedy is denied her, or any liability removed from her which are possessed by or imposed upon the husband. She can control her own property, vindicate her own individual rights, and bind herself by contract as fully and to the same extent as her husband. 2. When the law will imply a contract binding the husband, under the same circumstances it will one against the wife. In short, the statute bestowing upon her equal property rights with the husband imposes. upon her the same obligations he has, and the wife may ratify a defective and void conveyance of the homestead in all cases where the husband could ratify such an act. 3. Where the husband or wife executes a deed for the homestead which, by reason of defects of form, is void, the same may be ratified by the assent, contract or conduct of the wife, the same as by the husband. There is nothing in the character of the property which deprives the parties of the right to ratify their void deed therefor. 4. Where the husband and wife executed a deed for the homestead, which was void by reason of defects in its form: Held, that where the wife had full knowledge of her rights, but voluntarily surrendered her property, made no objection to the grantee's title when he offered to sell it, and permitted him to quietly hold possession for more than three years, and during that time to make improvements thereon and discharge encumbrances upon it, such acts will amount to a ratification of the deed by the wife, and estop her from claiming title to the property thereafter.


SOLICITOR AND CLIENT-RETAINER OF New SoLICITOR-RIGHT OF OLD SOLICITOR TO KEEP CLIENT'S LETTERS AND COPIES OF His LETTERS TO CLIENT.-Re Wheatcraft, High Court, Chy. Div., 26 W. R. 69. W., having handed over all other documents relating to the business on wbich he had been employed to his client's new solicitors, claimed a right to keep her letters to him, and the copies in his own letter book of his correspondence with her as his private property. Held, that he was entitled to do so.

SPECIFIC PERFORMANCE- MISTAKE – COMPENSATION.-Mckenzie v. Hesketh, High Court, Chy. Div. 26 W. R. 189. Where a tender for a lease of a farm was accepted, under the mistaken impression that the quantity of land inserted therein by the person making the tender was the same as that intended to be let, and it was subsequently discovered that the quantity of land inserted in the accepted tender was of larger amount than was intended to be let: Held, that as the mistake was one which related to quantity only, it did not touch the essential terms of the contract, and that specific performance could be granted with an abatement.

ORDER BY CONSENT-UNDERTAKING-MISTAKE OF FACT, TIME. – Attorney-General v. Tomline, High Court Chy. Div. 26 W. R. 188. A defendant in an action had undertaken by his counsel at the hearing to make certain payments, which had been agreed upon as the measure of damages. After the order had been passed and entered, i. e., at least two weeks after the judgment, the defendant moved to be discharged from the undertaking, on the ground of its having been given under a misapprehension of facts. Held, that the application came too late, the defendant having had ample time between the delivery of the judgment and the drawing up of the order in which to as.certain the facts.

LIBEL-PRIVILEGED COMMUNICATION – MALICEBURDEN OF PROOF-PROPER DIRECTION TO JURY.Clark v. Molyneux, Court of Appeal, 26 W. R. 104. When, in an action for libel and slander, the judge has ruled that the communications in question were made upon privileged occasions, it is for the plaintiff to make out malice in fact in the defendant, such as to take him without the reason of the privilege. It is an improper direction for the judge, after ruling that the communications were privileged, to tell the jury that the defendant must show them that he was actuated by proper motives in what he wrote or said. The proper direction is to tell the jury that, unless they are satisfied the defendant used the privileged occasions for an improper purpose, they ought to find for the defendant.

COMPANY— DIRECTOR — PRINCIPAL AND AGENTFALSE REPRESENTATION NEGLIGENCE. - Weir v. Barnett, High Court Exch. Div. 26 W. R. 147. Di. rectors, when acting for the interests of a company,

are not principals but intervening agents, and, consequently, are not personally liable for the fraud of those they employ, even though they personally receive ultimate pecuniary benefit, which is not the immediate and direct result of the fraud. An agent employed by the directors of a company does not act in the course of the directors' business, within the meaning of the rule laid down in Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, so as to make them personally liable for his frandulent acts. Even if there is negligence on the part of the directors, they individually, in the absence of fraud, are not liable to the indiual members of the company, but only to the company.

SOLICITOR AND CLIENT-MISTAKE OF SOLICITOR Costs.-Clark v. Girdwood. Court of Appeal, 26 W. R. 91. In the absence of fraud, the court has no jurisdiction to make a solicitor pay the costs of an action rendered necessary by his mistake or carelessness. The client's remedy is by an action for damages. In this case, reported 25 W. R. 575, Malins, V. C., had ordered that certain marriage articles drawn by the defendant Girdwood, a solicitor, on the instructions of the defendant Clarke, should be rectified; and that, on account of Girdwood's improper conduct in drawing the articles without communicating with the plaintiff, and in refusing to produce them when asked hy the plaintitf and the defendant Clark, he should pay all the costs of the suit if Clark was unable to pay them. On appeal the order was reversed.

GUARANTY - CONSTRUCTION-PAST DEBTS –CONSIDERATION.-Morrell v. Covan, Court of Appeal, 26 W. R. 90. A guaranty was given by a married woman entitled to separate estate to a trader, who supplied her husband with goods in the course of business, in tbe following words: “In consideration of you, the said M., having, at my request, agreed to supply and furnish goods to C., I do hereby guarantee to you, the said M., the sum of £500. This guarantee to continue in force for six years and no longer.” C. was, at the date of the guaranty, indebted to M. for goods supplied, and, in consequence of a bill given by C. in respect of such goods having been dishonored, M. had declined to supply any further goods without security. Held, that the guaranty only extended to payment for goods supplied subsequently to its date. Decision of FRY, J., reported 25 W. R. 808, L. R. 6, Ch. D. 166, reversed.

INSURANCE COMPANY-POWERSOF COMPANY-GENERAL INSURANCE-FIREINSURNACE-ULTRA VIRES.Re Norwich Provident Insurance Society. High Court, Chy. Div., 26 W. R.55. Tbe ileed of settlement of the N. P. Insurance Society, originally registered under the Industrial and Provident Societies Acts, and established primarily for the purpose of effecting insurances against sickness and infirmity, and also insurances on lives, &c., after stating the objects of the society to be as above-mentioned, concluded as follows: “Generally to make and effect insurances against all and every kind of risk, special or general, which may be effected according to law, * * and upon such terms and conditions as may be reasonable and expedient, having due regard to the business of an insurance society.” The society after confining its operations to life, &c., insurance for twelve years, commenced a fire insurance business in a separate department, the capital of which was supplied by a series of B. sbares. Afterwards, on the supposition that this was ultra vires, the fire business was made over to another company, the B. sbares were cancelled, and the B. shareholders compensated with equivalent shares in the corapany to which the fire business was transferred. The assets of the N. P. Insurance Society in liquidation being insufficient for the payment of a claim arising out of a transaction which took place when the B. sharehold

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ers were on the register of the society: Held, that the carrying on of a fire business was not ultra vires the society, but that the issuing of the B. shares was a valid transaction, and that the B. shareholdors were still liable as contributories.

REPLEVIN-LAW AND FACT.-In an action of replevin where the plea is that the property had been levied upon by the Sheriff at the suit of a creditor who had already received other property equal in value to the judgment debt, it is a question of fact for the jury whether such property had been received, and whether the value of it was equal to the debt, and the jury having passed upon that question, this court will not disturb their verdict where there was any evidence to sustain it. In such cases, where the plaintift being in possession of the property, fails in his suit, the judgment must be for the return of the property, or payment of the assessed value, at the option of defendant, and the fact that the execution on which the property was seized was for $517, and that the jury assessed the value at $800, does not furnish any ground for setting aside the judgment. Opinion by NORTON, J.-Schulenberg v. Boothe, et al.




October Term, 1877.
HON. T. A. SHERWOOD, Chief Justice.


Associate Justices. JOHN W. HENRY, JURISDICTION.-As to the sum necessary to give jurisdiction, it must be ascertained from the amount claimed in the petition, and where there are several counts, if the aggregate is sufficient, the court has jurisdiction. Smith v. Clark Co., 54 Mo. 58; 54 Mo. 2:27. Opinion by NORTON, J.-Hunt v. Hopkins et al.

SPECIAL CITY Taxes.-Where the act of incorporation authorizes the mayor and city council to provide by ordinance for grading, paving, etc., the streets, and to make the cost of work done a charge on adjacent property, etc., a petition, is properly held bad on demurrer if it pleads an ordinance passed. etc., by the city council alone, or by the mayor alone, or if it fails to show the concurrent action of both mayor and city council. Saxton v. Beach, 50 Mo. 488. Opinion by NORTON, J.Irvin v. Devvis.

ADMINISTRATION-ACTION ON BOND.-A petition which avers that two were administrators, that the letters of one had been revoked, and that plaintiff had been appointed in his place, is bad on demurrer for failing to show that the letters bad been revoked as to both administrators, or that in some way both had ceased to be administrators before the appointment of the plaintiff. State ex rel. v. Rucker, 59 Mo, 24. Opinion by Norton, J.-State to use of Ranney o. Green, et al.

JUDICIAL SALES-RESPONSIBILITY OF OFFICER.Where a sheriff, on proceedings in partition which authorize the sale of an undivided half of eighty acres, advertised and sold the whole tract, he was guilty of neglect, or misleasance, or both, and a purchaser who, without notice of his want of authority to sell the whole, suffers loss by reason of his purchase, can recover on a proper petition, to the full extent of such loss. 51 Mo. 432; 1 Mo. 408; 1 Wag. $ 66, p. 617. Opinion by NORTON, J.-Lusk v. Briscol et al.

CRIMINAL LAW-SELF-DEFENSE.-It is well settled that one who seeks and brings on a difficulty, and voluntarily engages in it, can not avail himself of the right of self-defense in order to shield himself from the consequences of killing his adversary, however imminent, the danger in which he may have placed himself in the progress of the affray. The right of self-defense does not give the right to attack, nor the right to provoke a difficulty. A killing in a combat begun by mutual consent, is murder. 57 Mo. 40; 38 Mo. 270; 52 Mo. 40. Opinion by Norton, J.-State v. Christian.

CRIMINAL LAW-FELONIOUS ASSAULT-PRACTICE. -In a case where the state's evidence showed clearly an unprovoked, felonious assault, and the defendant's evidence showed as clearly a case of self-defense, the court admitted evidence of the arrest of the defendant upon another and different charge, and also permitted the state to read the indictment in evidence (it had already been read in the opening statement) in connection with proof that defendant had forfeited his recognizance and fled the state, without explaining to the jury that it was only admissible for that purpose. Hell, ihat this was error. Opinion by HENRY, J.State v. Hart.


March Term, 1877.
HON. HORACE GRAY, Chief Justice.


Associate Justices.

AUGUSTUS L. SOULE, CONTRACT-POWERS OF SCHOOL COMMITTEE.-In an action of contract against a town, to recover a balance of salary, by a teacher who had been employed by the school committee to teach its school for a year, and who had been discharged before the expiration of the year in pursuance of a vote of the committee to close the school and discharge the teacher, it was held that, under Gen. Sts., Ch. 38, $ 25, the committee were not authorized to bind the town to pay for the services of a teacher after his discharge by them, and that the power to discharge was without exception or qualification. Under Gen. Sts., Ch. 18, § 20, and Ch. 38, $ 16, the board of school committee is subject to some change annually during the months of February, March and April, and if it is competent for them, as is this case, to make a contract extending beyond the time when the board may be changed and the new board deprived of their power over and responsibility in the employment of satisfactory teachers, it is difficult to say what is the limit or power of school committees to make special contracts. Opinion by LORD, J.-Wood v. Inhabs. of Medfield.

HOUSE OF ILL-FAME-CONSTRUCTION OF STATUTES.-By the Rev. Sis. as amended in 1849, it was provided that every person who shall keep a house of ill-fame, resorted to for the purpose of prostitution or lewdness, shall be punished by imprisonment in the jail, not more than two years. Rev. Sts. Ch. 30, § 8; St. 1819, Ch. 84. The St. 1855, Ch. 405, $$ 1, 2, provided that all buildings, places or tenements, used as houses of ill-fame, resorted to for prostitution, lewdness, or for illegal gaming, or used for the illegal sale or keeping of intoxicating liquors, shall be common nuisances, and persons keeping or maintaining any such common nuisance shall be punished by a fine not exceeding $1,000, or by imprisonment in the jail not more than one year. It was held in Com. v. Davis, 11 Gray, 48, that the St. 1855 repealed by implication the provisions of the Rev. Sts. above cited. But in the revision of 1860 the Legislature re-enacted the St. 1855, Ch. 405, $$ 1, 2, without any material change. The words, "used as houses of ill-fame" were omitted, but the words "resorted to for prostitution or lewdness" were title to the mortgage and the land to the plaintiff, leaving in the mortgagees only an equitable interest, the extent of which must be determined by the construction of the assignment. Prima facie the assign. ment to the plaintiff to secure him for money advanced operates as security for the whole amount; and there is nothing to show in this assignment that it was intended to have more restricted operation. See Bryant v. Damon, 6 Gray, 564. The plaintiff is entitled to have his note paid in full, out of the proceeds of the mortgaged property. Opinion by MORTON, J.-Poley v. Rose.

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retained, and the meaning is plainly the same as if the omitted words had been retained. Gen. Sts., Ch. 87, $$ 6, 7. The Gen. Sts., Ch. 165, $ 13, also provides “whoever keeps a house of ill-fame, resorted to for purposes of prostitution or lewdness, shall be punished," etc., thus re-enacting the provisions of the Rev. Sts. as amended by St. 1819. The fair inference is that the Legislature intended that the keeper of a house of ill-fame might be proceeded against either by indictment under the Gen. Sts., Ch. 165, or by complaint or indictment under Ch. 87, as a keeper of a common nuisance. See Com. v. Lambert, 12 Allen, 177, and Com. v. Ring, 111 Mass., 427. It appears that the indictment in this case was intended to be brought under Gen. Sts., Ch. 87. It follows substantially the words of the statute, except that it contains the words bused as a house of ill-fame," which words do not alter the sense, and do not create any doubt of the pleader's intention to allege an offense thereunder. See Com, v. Kimball, 7 Gray, 328. Opinion by MORTON, J.Com. v. Ballou.

PROMISSORY NOTE-JUDGMENT-PREFERENCE.-In an action of contract upon two promissory notes given by the P. J. Association to the defendants, and by them indorsed to the plaintiffs, it appeared that the plaintiffs had obtained two judgments against the P. I. & M. Co., a corporation in whfch both plaintiffs and defendants were stockholders; that the plaintiff's prevai upon the defendants, as directors ration, to agree that the sum for which the larger judgment was obtained should be entered for the plaintiffs, by which they were enabled to obtain priority over other creditors of the corporation, upon the prop.erty on which they levied; that the plaintiff's, at the time said notes were given, represented to the defendants that if they would buy the judgments they would be enabled to acquire a title to all the property of the corporation by a legal early sale thereon, and exclude all other stockholders from any interest therein, and prevent other creditors from collecting their claims; and tbat the defendants then indorsed the notes in question to the plaintiffs, and took assignments of the judgments. Held, that the evidence does not show any fraud upon the part of the plaintitts. They were pursuing their legal remedies against the corporation. The representations were merely statements that they had acquired certain legal priorities and advantages over the other creditors and stockholders, which, by assignment of the judgments, would pass to the defendants. Opinion by MORTON, J.-Cole v. Boardman.

MORTGAGE-ASSIGNMENT.-In an action of contract to recover a balance of purchase-money due upon a conveyance of land described in a mortgage-deed to certain trustees, to secure the payment of two promissory notes payable to the trustees—one for 1,000 and the other for $2,000—the agreed statement of facts showed that on December 23, 1873, the trustees indorsed the note for $1,000 to the plaintitf, and executed an assignment whereby they “ do hereby assign, transfer : and set over unto the said Jeremiah Foley and his heirs and assigns the said mortgage-deed, the real estate thereby conveyed, so far as the same is security for said . note of $1,000, thereby secured.” On April 26, 1876, the trustees indorsed the note of $2,000 to the defendant, and assigned the mortgage to him by an assign,ment of like tenor. The mortgagor made default in the payment of interest on both notes, and the plaintiff duly sold, under a power of sale in the mortgage. the premises on September 15, 1876, to the defendant, who still held the $2,000 note, for $2,010, and duly executed to bim a deed of the premises. The defendant paid to the plaintiff all he claimed of the net amount of the purchase-mouey, except the balance in dispute. Held, that the assignment to the plaintiff by the mortgagees, who then held both notes, transferred the legal



[Filed at Ottawa, January 21, 1878.] HON. JOHN SCHOLFIELD, Chief Justice.


Associate Justices.
John M. SCOTT,

ALFRED M. CRAIG, EFFECT OF CITY CHARTER UPON GENERAL LAW. -A charter which confers exclusive jurisdiction upon municipal authorities, operates to repeal the general law on the same subject within the municipality; not so when, as in this case, the charter confers concurrent authority. Original jurisdiction, under such circumstances, is not withdrawn from the circuit court, wbich bas, in such matters, concurrent jurisdiction with the police court of the city. Opinion by SCHOLFIELD, C. J.-Seebold v. The People.

CAUSE TAKEN UNDER ADVISEMENT-AVERMENT OF AFFIRMANCE OF JUDGMENT-PRACTICE-AFFIDAVIT OF MERITS.-1. When a cause was taken at September term, 1873, and held under advisement, an averment that the judgment was affirmed January 30, 1874, shows the steps taken in the case were in conformity to the statute. 2. The appeal-bond upon which the action was brought, was a contract for the payment of money. As plaintiff filed with his declaration an affidavit of claim, the appellant was bound to file with his pleas an affidavit of merits; because he failed to do this, the court did not err in striking the pleas from the files. Opinion by CRAIG, J.-Coursen v. Browning.

Right To HAVE SALE SET ASIDE-LACHES—The court gave the railroad company its option, to let the sale stand and have an accounting up to the time of the making of the master's deed, or to take measures to have the sale vacated, and the company came into court of its own motion, and petitioned the court not to set aside the sale; this must be regarded as a waiver of its right to have the sale vacated. Moreover, for nearly two (2) years after its rights were understood, and it was known that the circuit court was bound to entertain a motion to vacate the sale, the company did not invoke the aid of the court. Held, that by delay and inaction the right had been lost. This case was before the court in 1868, in 49 Ill. 331, where all the facts appear. Opinion by CRAIG, J.-Racine & Miss. R. R. v. Farmers Loan & Trust Co.

OBJECTION TO SHERIFF- CHANGE OF VENUEREQUISITES OF PETITION.-1. The sheriff who was directed to serve a special venire for jurors being the son of the prosecuting witness, the defendant had a right to require the appointment of the coroner as a special bailitf for that purpose. The statute (R. S. 1874, sec. 13, p. 633) provides that on objection to the sheriff' by either party, the court shall appoint a special bailiff. 2. A petition for change of venue need contain a statement of the cause of the application and prayer for change of venue only. If the cause for change of venue is the prejudice of the judge, the petition must be accompanied by the affidavits of two (2) respectable persons, etc., and the fact that they are respectable may be made to appear from their own affidavits, as well as from the statements of the petition. Opinion by Scott, J.-Hanna v. The People.

EFFECT OF DEMURRER-NUL TIEL RECORD-RECITALS IN WRITS.–1. In scire facias on a recognizance, a demurrer to the first plea-nul tiel récord-was overruled, and sustained as to the second plea, that defendants entered into no such recognizance. Defendants claimed the demurrer should have been carried back to the scire facias. It is the well settled doctrine of this court, that when a plea of the general issue is filed, a demurrer to a subsequent plea can not be carried back to the declaration. The writ of scire facias here sup. plies the place both of summons and declaration, and the plea of nul tiel record amounted to the general issue. 2. The recital in the scire facias the principal was required to answer, was "for the crime of selling liquor without a license.” This is sufficient. The same particularities and technical accuracy are not required in warrants, mittimusses and recognizances, as in indictments. This language in an indictment itself would have been insufficient. Opinion by SHELDON, J.-Compton v. The People.



November Term, 1877.
HON. HORACE P. BIDDLE, Chief Justice.


Associate Justices. SAMUEL E. PERKINS, COUNTY AUDITORS' FEES.-By the act of March 12, 1875 (1 R. S., 1876, 471), county auditors are entitled, as fees for managing the school fund of the county, to one per cent. on the whole amount of the permanent funds in their hands, and not only to one per cent on the sums actually loaned, but the words school fund of the county" do not include the fund arising from other sources, denominated “the school revenue for tuition," and on this they are not entitled to any fees. Opinion by BIDDLE, C. J.-Board of Comrs. of Green Co. v. Stropes.

REFORMATION OF DEED-ADEQUACY OF CONSIDERATION.-The cases in which it has been held that a correction of a deed will not be made in favor of volunteers, are cases in which there was no valuable consideration paid whatever. Mere inadequacy of consideration is no ground for withholding such relief, and, where the consideration expressed in the deed was "$1, and natural love and affection,” there was a sufficient valuable consideration to support the action. Especially was this the case where the grantee took possession under the deed, and made valuable improvements in the land. Opinion by WORDEN, J.-Mason et al. o. Mouldon.

CLAIMS AGAINST DECEDENT'S ESTATE.-An administrator has the right to insist that any claim against his decedent's estate shall only be brought before the court for trial in accordance with the provisions of the decedent's act. But he may waive this right, and if, when the claim is sued on, he appears fully to the action and demurs or answers, he thereby waives any objection on the ground that the claim was not filed por placed on the appearance docket. A demurrer to the claim, on the ground that it had not been so filed or placed on the appearance docket and transferred therefrom to the issue docket for trial, as showing that the court had no jurisdiction of the subject-matter of the action or of the person of the administrator, would not be available to defeat the action, for the reason that these matters do not appear on the face of the

complaint. The case of Stanford v. Stanford (42 Ind., 485) is overruled. Opinion by Howk, J.-Morrison, Adm'r., etc., v. Kramer.

SURETYSHIP NOTICE TO CO-DEFENDANTS ON Cross-COMPLAINT.-The statute (2 R. S. 1876, 277.) that in any action on contract, against two or more defendants, “the surety may, upon a written complaint to the court, cause the question of suretyship to be tried and determined, upon the issue made by the parties, at the trial of the cause, or at any time before or after the trial; or at a subsequent term.” It never was intended, by this provision, that, in such an action, one of the parties might appear and file the so-called cross-complaint, and, upon the default of the other parties in the original action, in their absence and without any notice to them of such so-called crosscomplaint, have the same “ tried and determined,” and a valid and binding judgment rendered thereon. In such a case the complaint of the surety, not his crosscomplaint, is a new and original proceeding, and is independant of the proceedings of the plaintiff in his action on such contract. The principle is fundamental that a party shall not be bound by adverse proceedings without notice and opportunity to be heard (25 Ind., 458.) In this case the record given in evidence by the appellee, in so far as the proceedings and judgment on his so-called cross-complaint were concerned, was void on its face for want of any notice to appellants thereof. Opinion by HOWK, J.-Joyce et al. v. Whitney et al.

PARTITION OF REAL ESTATE-STATUTE OF LIMITATIONS-REFORMATION OF DEED.-1. Where several persons own lands as tenants in common, a cause of action for partition exists from the date of the tenancy, but a failure to assert the rights for a period of twenty years will not bar an action for partition. 2. Where one is a tenant for life adverse possession can not begin to run against the remainderman until the expiration of the life during which the estate was held. 3. Up to 1853 the common law doctrine prevailed in this state that words of inheritance were necessary in a deed in order to show that an estate of inheritance was intended to be conveyed; and in a suit to reform a deed, alleging the omission of such words, the complaint must aver that at the time of the execution of the deed the grantors and grantees were ignorant that the word "heirs” was omitted therein. A mistake, to be available for reformation, must be mutual, and it either party knew, at the time of such omission, there could have been no mistake on the part of such person. Opinion by HOWK, J.-Nicholson et al. v. Caress.



December Term, 1877Filed January 22, 1878.
Hon. JOHN WELCH, Chief Justice.


Associate Justices. " W. W. BOYNTON, MASTER AND SERVANT.-The master is liable for an injury to a servant, resulting from the negligence of a superior servant, while the latter is discharging the duties of one under his control, to the same extent as if the act causing the injury had been committed by an inferior servant under his direction. Opinion by BoynTON, J.-Berea Stone Co. v. Kraft.

CONSTITUTIONAL LAW, POWER OF SENATE TO TRY CONTESTED ELECTIONS.-1. The authority conferred on the senate to try contested elections is not judicial power within the meaning of sec. 1, art. 4 of the constitution, which requires the judicial power of

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