the state to be vested in the courts. 2. Under section 43 of the act to regulate the election of state or county officers, the right to contest an election before the senate is not limited to the first regular session of the general assembly occurring after the election. If the general assembly is convened after the election, and after the result has been declared, the contest may be instituted irrespective of whether the meeting of the general assembly is at a regular session, or in pursuance of the call of the governor, or at an adjourned session. 3. Where an election is contested under the statute, the public, as well as the parties, are concluded by the decision. Judgment of ouster, and of induction. Opinion by WHITE, J.-State v. Harmon.

JURY-PROOF OF SIGNATURE TO CONTRACT-RAILROADS-FENCES.-1. Where a jury of twelve men was selected and summoned for the trial of a cause before a justice of the peace, under the act of March 30, 1875 (72 Ohio Laws, 159), and before the day set for trial this act was repealed by another (73 Ohio Laws, 14), which provided for a jury of six men for such trials, held, that the act in force at the time of the trial governed, and that the justice erred in submitting the cause to a jury of twelve men. 2. Where a contract is attested by a witness, such witness must be called, or his absence accounted for, before the testimony of other witnesses can be received to prove that the maker's signature is genuine, or was admitted by him to be genuine. 3. Under the act of April 18, 1874 (71 Ohio Laws, 85), an action will not lie in favor of a land-owner against a railroad company, to recover the cost of building a fence along the line of a railroad, where a former owner of the land, for a consideration, released the right of way for the railroad over the lands, and agreed to build and keep up fences on both sides of the line of the road. Opinion by GILMORE, J.-Warner v. Baltimore and Ohio R. R.

GAMING-INDICTMENT.-An indictment under the seventh section of "An act for the prevention of gaming" (1 S. & C. 676), which charges that the defendant "did unlawfully play at a certain game called 'poker,' for a large sum of money, to-wit: for the sum of two dollars, by means of a certain gaming device, to-wit: a pack of cards," is sufficient, without stating the name or names of the persons with whom he played. Davis v. State, 7 Ohio, 204, and Buck v. State, 1 O. S. R., 61, distinguished. Judgment affirmed. Opinion by JOHNSON, J.-Roberts v. State.

EXTENT OF GUARANTY.-1. A letter addressed to a lumber merchant in the following language: "Please send my son the lumber he asks for, and it will be all right," is a guaranty that the lumber sold and delivered to the son, at the time of its presentation, will be paid for. 2. But such guaranty is not continuing, so as to make the guarantor liable for lumber subsequently purchased by the son from the same merchant. And payments made afterwards by the principal, on account, will be applied in satisfaction of the first purchase, and consequent discharge of the guarantor's liability. Judgment of court of common pleas affirmed. Opinion by SCOTT, J.-Birdsall v. Heacock. CONTINUANCE-CONTRACT-BREACH-EVIDENCE.1. Whether or not the continuance of a cause shall be

granted or refused is a matter of judicial discretion, and error can not be predicated of the action of the court in that behalf, unless in case of an abuse of that discretion. 2. P. sued D. for merchandise, claiming the contract to be that the merchandise was deliverable on the cars at R., the beginning of the railroad route, while D. claimed it was deliverable at M., the end of the railroad route. D. having received and paid for three car loads denied having received any more. In this state of the case it is competent for D. to show that only six car loads, in all, had been shipped to him from R. to M. during the time, and that three of the six were shipped by a party other than P. Judgment reversed. Opinion by WRIGHT, J.-Diebold v. Powell.

LIQUOR LAW-SALE TO MINORS-INDICTMENT.-1. By section 1, of the act of April 5, 1866 (S. & S., 748), it is made unlawful for any person to furnish intoxicating liquor to a minor, knowing him to be such, with intent that the minor shall drink the intoxicating liquor, unless given, or ordered to be given, by a physician in the regular line of his practice. 2. On the trial, under an indictment charging the defendant with furnishing spiritous liquor to a minor, to be drank by such minor, knowing him to be a minor, a written order from the father of the minor to the defendant, directing him to sell beer to his minor son until forbid den by him, is not competent testimony for the defense. 3. Where the transaction amounts to a sale of intoxicating liquor not to be drank by the minor, and the indictment is under the act of May 1, 1854, for a sale to a minor, such written order would be competent testimony for the defense. Judgment affirmed. Opinion by ASHBURN, J.; Johnson, J., dissenting from second and third points.-Grepel v. State.

LIABILITY FOR TORTIOUS CONDUCT.-1. O. hired to A. a horse and buggy. During the bailment A. let W. take the property. While in his possession and in the absence of A., through his reckless driving the horse ran away, and both horse and buggy were injured. Held, that W. was to the property a wrong doer, and that for the injury caused to the property by his tortious conduct, O., the owner, could maintain an action against him. Opinion by BREWER, J. Reversed. All the justices concurring. O'Riley v. Waters.

AMENDMENTS OF PLEADINGS ON TRIAL.-It is error for a court to allow a pleading to be amended in a material respect and then to render judgment thereon in the absence of the adverse party and without any notice to him; and therefore, where a plaintiff brought suit in a justice's court, and claimed in his bill of particulars $25.00 as attorney's fees, and afterwards the case was appealed to the district court, and there the plaintiff only appeared, and the court allowed the plaintiff to amend his said bill of particulars, (which was the only pleading filed in the case), so as to claim $40.00 for attorney's fees instead of $25.00 as first claimed, and the court then rendered judgment upon such amended bill of particulars, in the absence of and without any notice to the defendant: Held, That the action of the court, in allowing said amendment and in rendering said judgment without any notice to the defendant, was erroneous. Opinion by VALENTINE, J. Reversed. All the justices concurring. The L. L. & G. R. R. Co. v. Van Riper.

TAXATION-MOBILIA SEQUUNTUR PERSONAM.—1. Persons residing in this state are not subject to assess

582.

ment of taxation in respect to business or interests beyond the territory and jurisdiction of the state, and which the laws of the state cannot in any way reach or protect. 2. The maxim of the common law, mobilia sequuntur personam, does not always, nor absolutely apply for the purpose of taxation to intangible perSonal property. Wilcox v. Ellis, 14 Kan., 3. Where, prior to 1875, F., of Rush county, sold and conveyed certain real estate in Iowa, and received in part consideration from the vendee four promissory notes, amounting in the aggregate to the sum of $1,800, and the notes were secured by a mortgage on the real estate conveyed by the vendor, and the contract was made in Iowa between the parties, the notes and mortgage were made payable in that state, and left there by the owner for collection, and never were in Kansas; Held, that an attempt to list and tax said notes in 1875, by the officials of Rush county, was unauthorized and illegal. Opinion by HORTON, C. J. Reversed. All the justices concurring. Fisher v. Commissioners of Rush County.

2.

LOAN AND BUILDING ASSOCIATIONS-MEMBERSHIP -INTEREST-PRACTICE IN SUPREME COURT.-1. Where a loan and building association, organized under the laws of the state, loans its funds on a note and mortgage executed by persons not members of the association. Held, that the loan is not exempt from the provisions of the statute regulating interest on money, and the association can not recover in any court more than twelve per cent. interest thereon per annum. Where T. and wife obtain from a loan and building association, incorporated under the laws of the state, the sum of $765 on a note given for $1,500, secured by mortgage on real estate, and such parties are not members of the association, and there are no recitals in the note or mortgage of any membership, and the makers thereof are entitled to a return of the note and mortgage on payment of the amount due on the note: Held, that such association is bound to surrender up the note and mortgage to the makers thereof on a tender being made to it of the money actually obtained with interest thereon at the rate of twelve per cent. per annum. 3. In a suit where the main question of fact at issue is, whether the makers of the note and mortgage are members of the corporation, and where it appears they have signed no writings, estopping them from denying such membership, the controversy is to be settled like any other issue of fact, and where the court finds upon the evidence that such persons are not members of said association, and there is evidence to sustain the finding although the preponderence of evidence is otherwise: Held, that this court will not disturb a judgment based upon such finding of fact. Opinion by HORTON, C. J. Affirmed. All the justices concurring. St. Joseph & Kansas Loan and Building Association v. Thompson.

DEMURER TO EVIDENCE-EXEMPTION LAWS CONSTRUED.-1. Upon a demurrer to the evidence, the court must presume that all the evidence demurred to, and upon which the party resisting the demurrer relies, is true, except in cases where evidence of a weaker kind is contradicted by evidence of a higher kind, and where the court could say as a matter of law that the weaker evidence should not be considered at all, but should be excluded. A court can not upon a demurrer weigh conflicting evidence. That is the province of the jury. 2. Articles of merchandise bought by a merchant to be sold again on speculation, are not exempt in his hands from attachment and execution under the eighth subdivision of section 3 of the exemption law. (Gen. stat. 474.) 3. A lamp and other articles kept by a watch-maker and jeweler would be exempt from attachment and execution under said exemption law as "tools and implements," provided such articles were necessary for his use in carrying on

the business of making and repairing watches and jewelry. 4. Watches and jewelry manufactured by a watch-maker and jeweler, whether manufactured for particular customers upon special orders or for customers generally and for sale to any person who might wish to purchase, whether completed or not completed, as well as the raw materials kept by such watch-maker and jeweler from which to manufacture watches and jewelry, are, in the hands of such watchmaker and jeweler, exempt from attachment and execution, as "stock in trade," under said exemption law, provided, that the aggregate amount in value of the articles exempted as "stock in trade," does not exceed $400. Opinion by VALENTINE, J. Reversed. All the justices concurring. Bequillard v. Bartlett.

LIFE INSURANCE-PRACTICE-MOTION FOR NEW TRIAL-CASE MADE-FORFEITURE OF POLICIES-ASSURED MISLED BY A CIRCULAR OF THE COMPANY AND STATEMENTS OF LOCAL AGENT-WAIVER OF PAYMENT OF PREMIUM.-1. This case was tried by the court without a jury. Afterwards and on July 26, 1875, the court made special findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of the plaintiffs and against the defendant. On the same day the defendant filed a motion for a new trial, but on the same day the court adjourned sine die without taking any action upon said motion for a new trial. Held, that said motion did not become defunct by reason of said adjournment, but was continued to the next term of the court. 2. A case may be made for the supreme court and served upon the opposite party at any time within three days after an order is entered overruling a motion for a new trial, although such order may not be entered at the same time that the judgment in the case is rendered, nor even until the next term thereafter, and the court may on entering said order extend the time still further for making and serving a case for the supreme court, (laws of 1871, page 274; laws 1873, page 168.) 3. The decision in the case of Life Insurance Co. v. Twining, 12 Kansas 475, re-affirmed and followed. 4. Where an insurance company publishes that, in order to prevent forfeitures and to save policies from lapsing it has adopted two methods of insurance, between which policy-holders may choose; and T. procures from the said company an insurauce on his own life for the benefit of his heirs, and in doing so takes and receives a policy given to him the benefit of one of said methods and not of the other; Held, that T. in taking and holding said policy, chooses one of said methods, and that his heirs cannot after his death abandon that method and choose the other. 5. Where the local agent of an insurance company adopts the custom of receiving premiums due his company, at any time up to the first of the month next after they become due; and T. at the time holds an incorrect policy in said insurance company; and the agent in order to induce T. to take a corrected policy from the company informs T. of such custom and tells him that if he takes such new policy and pay his annual premiums at any time up to the first of the month next after they become due, it will be sufficient; and also gives to T. a circular published by the company stating that "Thirty days grace allowed in payment of premiums; " and T. takes such new and corrected policy by the terms of which the annual premiums become due on the 15th of October of each year, and on said policy is an indorsement stating in effect that the agents of the company have no authority to waive anything for the company, and this particular agent does not in terms have any such authority, and said agent again and after said second policy is issued, makes the same statement to T. that he did, prior thereto, with regard to said custom, and with regard to receiving said premiums after they became due; and also thereafter gave T. other copies of said circulars; and the insured dies on October 24th, just nine days

after the second annual premium becomes due, and said second annual premium is never paid. Held, that it must be presumed that the insurance company has knowledge of said custom of its agents and adopted the same as its own custom, and therefore that the company itself waived the payment of premiums within the strict time prescribed by the policy, and therefore that as the insured died before the first of the month next after said premiums became due, that the beneficiaries may now recover the amount of the insurance less the amount of said second annual premium. Opinionby VALENTINE, J. Affirmed. All the justices concurring. Mound City Mutual Life Ins. Co. v. Twining. et al.

FOR INJURIES CAUSED BY THE NEGLIGENCE OF FIREMEN, appointed and paid by the city, when engaged in their line of duty, the city of Louisville, being required by law to establish and maintain a fire department, is not liable. Opinion by COFER, J. Affirmed.-Greenwood v. Louisville.

MUNICIPAL CORPORATIONS-LIABILITY FOR ACTS OF POLICEMEN.-1. For wilful negligence of policemen appointed by the city, in making arrests upon charges of felony, the city of Louisville is not responsible. 2. Policemen, in making arrests for felonies, act as the officers of the commonwealth, and not as the agents or servants of the city. Dillon on Mun. Corp. sec. 773. 3. A municipal corporation represents the commonwealth, and municipal officers, while engaged in those duties which relate to the public safety and the preservation of public order, are the servants of the state. Opinion by COFER, J. Affirmed.-Pollack's adm'r v. City of Louisville.

NOTES.

IN the Supreme Court of New York last weck, in a case where an injunction had been asked for to restrain the performance of a dramatic performance called "The Danicheffs," and the plaintiffs had afterwards discontinued the suit, the defendant made a motion for costs. The plaintiffs' counsel in reply stated that the plaintiff's had been successful in every stage of the case, but that it was found impracticable to proceed further, because, when a commission was sent to France to take the testimony of Alexander Dumas, fils, he had refused to be sworn, on the ground that his word must be taken in an American court as to the authorship of the play, as it would be taken in a French court, and he would not humiliate himself by swearing to his statement. As there was no way of compelling M. Dumas to testify, except in the round-about and expensive method of letters rogatory, which, in the end, might be ineffectual, the plaintiffs thought it advisable to discontinue the action.

THE Pall Mall Gazette says that the law recently promulgated by the German government, establishing courts to inquire into accidents at sea happening in German waters, will come into force on the 1st of January next. Two courts are created by the new regula tions-the one for the Baltic, the other for the North Sea. The president of each is to be a lawyer, and he is to be assisted by four assessors, two of whom are to be captains of merchant vessels in actual employment,

to be selected on each occasion by the president of the court from a list prepared every year by the Chambers of Commerce. In certain cases, also, the president may nominate a naval officer as one of the four assessors. The court, thus composed, has power to suspend for any length of time the certificate of the captain or pilot of any vessel, into the conduct of which inquiry is being made, or even to prohibit them altogether from following their profession at sea; but the Chancellor of the Empire, to whom appeal may be made from the decision of the court, may remit the sentence pronounced by it at the end of a year. The provisions of this law have been warmly discussed in the papers of the German seaport towns since it was promulgated. The prevailing opinion appears to be that the sentences to be awarded are much too severe, and that the fear of incurring the punishment prescribed will cause captains and pilots to adhere rigidly to the regulations, even in cases where the only chances of avoiding a disaster would be to manoeuver boldly and promptly in opposition to the rules laid down. The admission of a naval officer as an assessor is also warmly protested against, even in cases in which a man-of-war is concerned-unless, indeed, the officer appointed shall have previously served as a captain in the merchant service.

SOME curious reasons seem to have been given for rejecting the proposal, which has recently been revived at Washington, that measures should be taken for the recovery by the United States from the Bank of England of balances remaining to the credit of the Southern Confederacy at the time of its collapse. The grounds of objection are stated to be: first, that the United States Minister is not willing to ask any favor of the British Government, such as the right to sue in the English courts, and, next, that when inquiries were made into the matter during the administration of General Grant, the "representatives of the British Government" expressed themselves as perfectly willing to recoguize the United States as the successor of the defunct Confederacy, and to turn over to it all balances formerly belonging to the Confederacy held in Great Britain, provided the United States would assume its liabilities to British subjects. The first objection seems absurd. No "favor" of the British Government is needed to enable the United States to sue in our courts. As a matter of fact, the United States itself has been more than once admitted to sue as a matter of right; and in numerous cases, such as The King of the Two Sicilies v. Wilcox, 1 Sim. N. S. 301, where the plaintiff recovered ships bought by a revolutionary government out of his own despoiled treasury; and Emperor of Austria v. Day,9 W. R. 712, where the plaintiff prevented the issue of bank notes by M. Kossuth, foreign states have had justice done them in our courts without fear or favor. As to the second objection, we do not see what our Government has to do with the matter; and we imagine the reference intended must be not to any declaration of the representatives of the British Government," but to the doctrine laid down in the case of United States of America v. McRae, 17 W. R. 764, L. R. 8 Eq. 69, in which Lord Justice James, then Vice-Chancellor, expressly distinguished between property coming to the restored Government of the United States as successor of the Confederacy, and property coming to it by virtue of its right as a restored Government. It was there held, dismissing a bill for an account against an agent for the Confederate Government, that money voluntarily contributed to the Confederate Government could only be recovered from an agent of that Government to the same extent, and subject to the same rights and obligations as if the Confederate Government had not been displaced,,and was itself proceeding against the agent.-Solicitors Journal.

The Central Law Journal.

SAINT LOUIS, FEBRUARY 15, 1878.

CURRENT TOPICS.

IN Re State Insurance Co., determined in the United States District Court in this city this week, it appeared that the vice-president of the bankrupt corporation had bought up claims against it at a discount and reduced them to judgment. He now asked to prove for the full amount of the judgment. It was held by Treat, J., that this could not be allowed. "A person occupying the relation of trustee will not be allowed to speculate out of the subject-matter of his trust." He was allowed to prove for the amount of money actually expended, with interest.

IN Hannibal & St. Joseph R. R. v. Husen, the Supreme Court of the United States, during the present term, declared the Missouri statute known as the Texas cattle law to be unconstitutional, reversing the decision of the state supreme court. The statute in question prohibited the driving or bringing into the state of any Texas, Mexican or Indian cattle between the first days of March and November in each year. The grounds upon which the opinion of the court rests, are, that such a statute is not a legitimate exercise of the police powers of a state; that the latter can not be exercised over a subject such as inter-state transportation of subjects of commerce, confided exclusively to Congress by the Federal Constitution; that while a state may enact sanitary laws, while, for the purpose of self-protection, it may establish quarantine and reasonable inspection regulations, while it may prevent persons and animals suffering under contagious or infectious diseases from entering the state, it can not interfere with transportation into or through its borders, beyond what is absolutely necessary for its self-protection; that neither the unlimited powers of a state to tax, nor any of its large police powers, can be exercised to such an extent as to work a practical assumption of the powers conferred by the Constitution upon Congress. We are in receipt of some communications upon this decision, which we will endeavor to publish at an early date.

Vol. 6. No. 7.

On the 1st inst. Mr. Justice Bradley of the Supreme Court of the United States in Re Wells, et al., 17 Alb. L. J., 111, delivered a lengthy opinion on the question of the right to remove causes to the federal courts under the civil rights law. The petitioners, the members of the Louisiana Returning Board, who were under indictment in the state courts for acts done in their official capacities, applied to the Circuit Justice for a certiorari to transfer the proceedings to the Federal Courts under § 641 of the Revised Statutes. A statute of Louisiana, of March 13, 1877, prescribing the mode of selecting and drawing jurors, provides for the appointment, by the judges of the principal courts in New Orleans, of the commissioners, whose duty it is made to select impartially, from the citizens of the parish qualified to vote, the names of not less than one thousand good and competent men to serve on juries. These names are placed in a box, and from them is to be drawn the general panel for each term. The petitioners charged that the statute was intended to operate in favor of white and against colored citizens; that the machinery of the law was being manipulated by the state officers for the purpose of depriving them (two of the petioners being colored men) of a fair and impartial trial, etc. The learned judge held that the jury law was not in conflict with the Federal Constitution, and that the fact that its provisions might be taken advantage of so as to procure a jury prejudiced against the petitioners, did not furnish a ground for the removal of a criminal proceeding to the federal court, under § 641 of the Revised Statutes. "The fourteenth amendment, which guarantees the equal benefit of the laws," said the learned judge, "only prohibits state legislation violative of said right. It is not directed against individual infringements thereof. The Civil Rights bill of 1866 was broader in its scope, undertaking to vindicate those rights against individual aggression, but still only when committed under color of some law, statute, ordinance, regulation or custom. And when that provision in this law, which is transferred to § 641 of the Revised Statutes, gave the right to remove to the United States courts a cause commenced in a state court against a person who is denied and can not enforce any of the rights secured by the act, it has reference to a denial of those rights or

our states.

from some state law, statute, regulation or custom. It is only when some such hostile state legislation can be shown to exist, interfering with the party's right of defense, that he can have his cause removed to the federal courts." Though refusing the writ, Mr. Justice Bradley suggested that, after final judgment in the state court, the petitioners should carry the case to the Supreme Court of the United States.

A very novel action-a suit by a life insurance company against a person who had wilfully caused the death of one whose life it had insured, was disposed of during the present term of the Supreme Court of the United States in Mobile Life Ins. Co. v. Brame, the court holding that no cause of action arose, even though the company had, in consequence of the death of the insured at the hands of the defendant, been forced to pay the loss. The court first consider the case as affected by the rule of the common law, that no civil action lies for an injury which results in death, and state that "it is impossible to speak of it as a proposition open to question," citing Baker v. Bolton, 1 Camp. 493; Conn. Ins. Co. v. N. Y. & N. H., 25 Conn. 265; Kramer v. Market, 25 Cal. 235; Indianapolis v. Kealy, 23 Ind. 133; Hyatt v. Adams, 16 Mich. 180; Shields v. Young, 15 Ga. 349; Peoria v. Frost, 37 Ill. 333; Hubgn v. N. O. & C. R. R. R., 6 La. Ann. 496; Herman v. Carrolton R. R. Co., 11 La. Ann. 21; and say: "The only cases that tend to the contrary of this rule, so far as we know, are those of Cross v. Guthery, 2 Root, 90, of Plummer v. Webb. Weare, 75, and of Ford v. Monroe, 20 Hurd, 210. These cases are considered by the New York Court of Appeals in the case of Green v. The Hudson R. R. Co., 2 Keyes, 300, and compared with the many cases to the contrary, and are held not to diminish the force of the rule as above stated. By the common law, actions for injuries to the person abate by death, and can not be revived or maintained by the executor or by the heir. By the act of Parliament of August 21, 1846 (9 and 10 Victoria), an action in certain cases is given to the representatives of the deceased. This principle, in various forms and with various limitations, has been

串

IN REGARD to the remoteness of the injury, the court say: "The relation between the insurance company and McLemore, the deceased, was created by contract between them. But Brame was no party to a contract. The injury inflicted by him was upon McLemore, against his personal rights; that it happened to injure the plaintiff was an incidental circumstance, a remote and indirect result, not necessarily or legitimately resulting from the act of killing. In Rockingham Ins. Co. v. Mosher, 39 Me. 253, where an insurance company brought suit against one who had wilfully fired a store upon which it had a policy of insurance, which it was thereby compelled to pay, it was held that the loss was remote and indirect, and that the action could not be sustained. In Ashley v. Dixon, 48 N. Y. 430, it was held that if A is under a contract to convey his land to B, and C persuades him not to do so, no action lies by B against C. against C. So a witness is not liable for evidence given by him in a suit, although false, by which another is injured. Grove v. Brandenburg, 7 Blackf. 234; Dunlap v. Gledden, 31 Me. 435. And in Anthony v. Slaid, 11 Metc. 290, a contractor for the support of town paupers had been subjected to extra expense in consequence of personal injury inflicted upon one of the paupers, and brought the action against the assailant to recover for such expenditure. The court held the damage to be remote and indirect, and not sustained by means of any natural or legal relation between the plaintiff and the party injured, but simply by means of a special contract between the plaintiff and the town. Some authorities of text-writers are referred to as holding a difierent view, but we are not cited to any case in this country or Great Britain where a different doctrine has been held." The case which most nearly resembles the present is, we believe, that of Connecticut Mutual Life Ins. Co. v. N. Y. & N. H. R. R. 25 Conn. 265. This differs from the case at bar only in this, that the death was caused by the negligence of the defendant. The court held that the company could not recover.