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equal footing in the proof of claims against the fund or estate chargeable in equity with the payment of such claims. So manifestly unjust would it be, to unsecured creditors, to allow a creditor holding a lien upon property to which, in the absence of such lien, all creditors might, according to established principles of equity, equally resort, to prove his entire debt and at the same cime hold his security, that the law was so framed as to forbid it. The distinction, however, between joint and individual estates, is in no manner affected. That distinction is inherent, must be always maintained, and is fully recognized in its application to partnerships by the bankrupt law itself. Sec. 5121 Rev. Stat.

Now it is settled that where the property of a third person is pledged to secure the bankrupt's debt, the creditor holding such security may, without relinquishing it, prove his whole debt. In such case the security does not diminish the estate to which creditors must look, and, moreover, the court would have no authority over property constituting the security, and held by a stranger to the bankruptcy proceedings. The case, in event of such security, would not be within the statutory provision

The question then recurs, in view of the statute, its terms and object and the established inherent distinction between joint and separate estates, may the creditor of a firm, holding security upon the separate property of one of the partners, prove against the joint estate, without releasing his security? The strength of the argument against it in the case at bar, seems to lie in the claim, that the bankrupt, Sivyer, whose individual estate constitutes the security, owes no individual debts, and that, therefore, that estate is chargeable with the partnership debts equally with the joint estate-a claim which will be considered after first noticing such authorities as can be found bearing upon the general proposition.

The case of Plummer, 19 E. Ch. R. 55, was referred to on the argument.

In that case the creditor of a firm took from the firm security for the payment of certain indebtedness. He also received from the debtors joint and several covenants in writing to pay his demands. The question was whether he was entitled to prove his whole debt against their separate estate, and hold his security upon their joint estate. The Lord Chancellor held that he could. Here was the case of a separate creditor, having a security upon the joint estate, seeking to prove against the separate estate without surrendering his security. The Lord Chancellor, in his opinion says, that, “in administration under bankruptcy, the joint estate and separate estate are considered as distinct estates; and, accordingly, it has been held that a joint creditor, having a security upon the separate estate, is entitled to prove against the joint estate without giving up his security, on the ground that it is a different estate;" and he holds one case the converse of the other, and that the same principle applies to both.

In ex parte Peacock, 2 Glyn &. Jamison 27, which was a case decided first by Sir J. Leach, and af

terwards by Lord Eldon, a joint creditor, who held security from one of the joint debtors, was allowed to prove his debt against the joint estate without a sale or surrender of his security; and this case is cited as authority In re. Plummer.

In Ex parte Parr, 18 Ves. 65, the facts were that a house in Demarara drew upon another house in Liverpool, and the draft was accepted by the latter house. The Demarara house, at the time of drawing the draft, gave to the creditor other security. The house at Liverpool was partner with the Demarara firm. The acceptors became bankrupt and it was held that the creditor could prove his debt against them, without deducting the value of his security, on the ground that, although the two houses were partners, the drawers and acceptors still constituted different firms.

In the case of Howard, Cole & Co., 4 N. B. R. 571, the court, in speaking of the 36th section of the bankrupt act, and upon the distinction between joint and separate estates, makes this statement: “ It has, therefore, been held that a joint creditor, having a security upon the separate estate, is entitled to prove against the joint estate without giving up his security." Counsel, in argument, claim that this language, in the opinion of the court, is altogether obiter; and perhaps it was an observation not essential to a decision of the question under consideration in that case; but it is stated as a proposition, from which is deduced a principle influencing the conclusion of the court on the question before it, which was one relating to the proof of a claim against both joint and separate estates.

In Ex parte Whiting; In re. Dow et al., 14 N. B. R. 307, Judge Lowell observes that, “ when one partner has pledged his shares for the debt of the firm, proof may be made in full against the assets of the firm, because it is only when the proof is against the same estate which furnished the security, that a sale and application of the security is required by the bankrupt law."

In the matter of Holbrook & Co., 2 Lowell's Decisions, 261, the bankrupts were the firm of F. F. Holbrook & Co., and the property assigned as security, was owned by Holbrook alone. Judge Lowell says:

“ The statute only requires the property to be renounced, sold, or valued when it is the property of the bankrupt. If the goods or estate of any third person have been pledged for the bankrupt's debt, equity does not require that the general creditors of the bankrupt should have the advantage of this security; on the contrary, the equity is that the estate of the volunteer should be exonerated.

Whether the creditor have security by indorsements, or in any other way that has not diminished the general assets, he has a right to prove it.

This rule applies to partnerships when the estate of one partner has been pledged or mortgaged for a debt of the firm, and for the same reason that the full proof should be made against that estate which is the principal debtor;" citing Story Partn., § 389; Ex parte Parr., 1 Rose 76; Ex parte Plummer, 1 Phillips 56; Wilder v. Keeler, 3 Paige 167; Besley v. Lawrence, 11 id. 581; Ex parte Peacock, 2 Glyn & J.


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27. In the case of Wilder v. Keeler, supra, the Plummer, supra, rests the proposition that a joint chancellor says, “a creditor of the joint estate is creditor may prove against the joint estate withalways entitled to whatever he can obtain out of out relinquishing his security upon the separate that fund in the hands of the surviving partner, estate, is that the two estates are different. And, without relinquishing his security against the sep- In re, Holbrook & Co., supra, Judge Lowell, speakarate estate of the deceased partner."

ing of partnerships and partnership liabilities, reThese are the cases bearing upon this question fers to the joint estate as the principal debtor, and which have come to the attention of the court, and as, therefore, the estate against which the debt is it is claimed that so far as they touch the precise proven. Then, if the joint estate is the primary point under consideration, they are little more fund for the payment of partnership debts, can it than dicta. It is true that they do not discuss the be said that any other than that estate is the one question, but rather assume the proposition to be against which the claim in question is proved, and settled. Nevertheless I think they are not to be dis- can it be said that this creditor has security upon regarded as wanting in application to the present that joint estate? I think not. case or in authoritative character, as insisted by There is a class of cases in which it has been counsel.

held that where a creditor holds notes signed by a Looking at the question in the light of principle, | firm, and signed or indorsed also by an individual we encounter at once the distinction between joint member of the firm, he may prove against both and separate estates, which the law recognizes, estates and receive dividends from both. In re. and which, as has been remarked, is inherent. The Farnum, 6 Law Rep. 21; Mead v. National Bank, 2 primary fund for the payment of partnership N. B. R, 173; Emery v. Canal National Bank, 7 debts is the joint estate. It is true that, after ex- N. B. R. 217. These cases establish a rule ophausting that estate, ultimate recourse may be had posed to the old rule on the subject in England, upon the separate estate for the payment of part- and the principle thus settled, seems to reach out nership debts, if such separate estate is not ab- to the question involved in the case at bar. The sorbed by individual debts. But this possible re- scope of these decisions is, that when an individual sult does not rub out the line of separation between member of a firm, as such becomes surety upon or joint and separate estates, which the law has es- indorses an obligation of the firm, he thereby gives tablished, and which makes them, in fact, differ- what is in the nature of security upon his separate ent estates. It is contended that, as the schedules estate to the firm creditor; and by reason of the of the bankrupt, Sivyer, do not show individual individual liability superadded to the joint oblidebts, his individual interest in the lands mort- gation, he places the firm creditor in a position gaged must, of necessity, fall into the joint estate, where he can go against the individual as well as as part of the fund for the payment of joint liabil- the joint estate. Thus it results that, without the ities. Undoubtedly these schedules may 'be re- indorsement or individual signature of one of the sorted to as evidence that Sivyer does not owe in- firm, the firm creditor would have no right to dividual debts; but they are not to be regarded as claim against the individual assets, until indiconclusive evidence. And the question is, even if vidual creditors had been first satisfied. But holdit be true that he has no individual liabilities, so ing the individual indorsement or signature, the that, as an ultimate result, partnership creditors firm creditor may, in the first instance, prove may, if need be, have recourse to his separate es- against the separate as well as the joint estate. Now tate, can or ought that circumstance to affect the

such separate liability would seem to be at least application of the recognized distinction between in the nature of security, though differing radijoint and separate estates. In other words, does cally, it is true, in character and in form, from the enforcement of that distinction depend only that of a mortgage; and yet double proof by the upon a state of case involving a marshaling of as- firm creditor in such case may, without any abatesets, because of the existence of joint and individ- ment of advantage which his diligence has seual liabilities; or is it a distinction which must cured, be made. The principle which sanctions have recognition ex necessitate, even though ulti- such a rule, seems to lend support to the view mately, the joint creditor may have a right to taken of the question involved in the case at bar, pursue the separate estate? As I have in sub- and, on the whole, my opinion is, that the Nashostance said, the primary estate for the payment of tah House has the right, as a creditor of the firm joint liabilities of Thomas & Sivyer, is the part- of Thomas & Sivyer, to prove its debt against the nership fund. That is the estate against which joint estate, without valuation or surrender of its partnership debts are proven. Even in the ab

security upon the separate property of Sivyer, sence of individual debts, each of the partners has and may therefore participate in the election of an equitable right to insist that the primary fund

an assignee with other firm creditors. be exhausted before coming upon their separate estates for the payment of firm debts. In view of the considerations thus suggested, I think it is

CHARLES BRADLAUGH and Mrs. Berant, convicted not accurate to say that the interest of the bankrupt,

last summer of publishing and circulating an obSivyer, in the lands mortgaged, belongs to or is

scene book, “ Fruits of Philosophy," have had their part of the estate against which partnership debts

sentence quashed by the Court of Appeals. After

their conviction, they raised the objection that the inare proven, though it should be that, ultimately,

dictment was insufficient, because it did not set out the partnership creditors might reach it. The ground whole of the contents of the book. This the court has upon which the Lord Chancellor, in the case of just decided was fatal, and they have been discharged.

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PROMISSORY NOTE-MEASURE OF RECOVERY. Where one becomes an innocent purchaser of a note, without notice and before maturity thereof, the amount paid by him for such note is not the measure of his recovery, but the full amount due upon the note; and the fact that he paid but a nominal consideration does not afford even a partial defense to a suit upon the note. Opinion by HOWK, J.-Murphy v. Lucas.

RAPE-ASSAULT AND BATTERY.-1. Every charge of rape necessarily includes a charge of assault and battery, and under a charge of rape the jury may find a defendant not guilty of that offense, and guilty of an assault and battery. 52 Ind. 187. 2. A woman may consent to sexual intercourse, yet the man who performs it may treat her so roughly, and in so rude and insolent a manner, and so abuse her in the performance of the act as to commit thereby an assault and battery. Opinion by BIDDLE, C. J.--Richie v. The State.

LARCENY-PosSESSION OF STOLEN PROPERTY.The court erred in instructing the jury that, in the absence of a satisfactory explanation of the possession of stolen property, the law will presume the defendant has stolen it; such presumption being an inference of fact merely, and not amounting to a rule of law. Evidence in explanation of such possession may fall short of a satisfactory explanation, and yet be sufficient to acquit. If it creates a reasonable doubt, it practically rebuts the presumption of guilt. Opinion by NIBLACK, J.-Smith v. The State.

PARTNERSHIP_DIVISION OF PROFITS.-Where A, the owner of premises, let them to B, who had obtained a license to retail liquors therein, under an agreement by which B was to furnish and keep up the stock and materials for a saloon, and to employ A as a clerk to carry on the business-A to have as compensation for his services and for the use of the premises, all the profits of the business except two dollars a day, which B was to receive and retain. Held, the arrangement did not constitute a partnership. 15 Ind. 469; 38 Ind. 372; 10 Met. 303; 5 Gray 58; 24 How U. S. 536. And B having a license to sell, and A acting merely as his agent, the latter was erroneously convicted of selling without a license. Opinion by WORDEN, J.-Keiser v. The State.

seized them for non-payment, the mortgagor may show that the notes secured by the mortgage are in part made up of usurious items. Opinion by MARSTON, J. -Gardner v. Matteson.

WRITTEN MISREPRESENTATIONS DO NOT EXCLUDE ORAL ONES.-On a bill to rescind an exchange of land on the ground of fraudulent misrepresentations, held, that the fact that some of the false misrepresentations were put in writing and delivered to the party defrauded, does not exclude proof of parol ones previously made and relied on. Whether anything outside of the writings was considered as misrepresentations still standing and relied on should be decided upon a view of all the circumstances. Opinion by GRAVES, J.-Match v. Hunt.

CONSTITUTIONALITY OF INCORPORATING ACT – TERRITORIAL RESTRICTION.- A constitutional provision requiring corporations other than municipal to be incorporated under general law, not by special act, is not violated by an act providing for the incorporation of “Slack water navigation companies for the improvement of rivers" in certain designated counties. Confinement of the special work or business of the corporation within a given district, when natural restrictions prevent such work from being carried on elsewhere, is not forbidden by the constitution. Opinion by GRAVES, J.-Attorney-General ex rel. Nelson v. McArthur.

PLEADING-HOMESTEAD ON TENANCY IN COMMON. -On bill to set aside a sheriff's sale of premises claimed as a homestead, held, 1. That an allegation that complainants “ have their residence in the buildings on said lot, and occupy the same as a homestead,” is equivalent to a distinct averment that there is a dwellinghouse on the premises. 2. That a homestead can be owned and occupied by busband and wife as tenants in common. See McKee v. Wilcox, 11 Mich. 358; Orr v. Shraft, 22 Mich. 261; Bunker v. Paquette, 5 Cent. L. J. 275; McClary v. Bixby, 36 Vt. 257; Thorn v. Thorn, 14 Iowa 49; Horn v. Tults, 39 N. H. 478. Opinion by MARSTON, J.-Lozo v. Sutherland.

STATUTORY FORECLOSURE OF MORTGAGE UNDER POWER OF SALE-NOTICE OF SALE-MISNOMERAVERMENT OF DISCONTINUANCE OF FORMER PROCEEDINGS-PRECISE DATE OF RECORD-PROOF OF SALE.-1. A notice of sale giving the mortgagor's Christian name as Emma instead of Ermina, invalidates the sale. 2. A mortgagee who bid in the premises under foreclosure by advertisement, and conveyed part of them, supposing his foreclosure to have been valid, may foreclose anew in his own name, his grantees, of course, being entitled to resort to equity to pre-vent any action on his part to their prejudice. 3. Notice of sale is not defective because not showing the commencement and discontinuance of previous and similar foreclosure proceedings. 4. Such a notice need not aver the hours and minutes of record of the mortgage. 5. Proof of a mortgage sale need not be perpetuated in the record. 6. Foreclosures under power of sale are sales by contract; and while every statutory requirement must be adhered to, intendments are not to be made against them, nor are unreasonable restrictions to be laid upon them. Opinion by CAMPBELL, C. J.-Lee v. Clary.

CONVEYANCE DESCRIPTION RECORD IN ONE COUNTY OF DEED COVERING LANDS IN Two--REGISTER'S SIGNATURE ON RECORD OF DEED-EVIDENCE OF STATUTES OF ANOTHER STATE.-1. Where a deed describes the lands conveyed by section,township,range and county, there being, however, no township of that number and range in said county, the description is not void for uncertainty. The more general description, the county, may be rejected, as without this a perfect description of the lands remains. Ives v. Kimball, 1 Mich. 313; Boardman v. Serree, 6 Peters, 345; Anderson v. Baughman, 7 Mich. 69; Slater v. Rogers, April



January Term, 1878.
HON. J. V. CAMPBELL, Chief Justice.


ISAAC MARSTON, Associate Justices.

B. F. GRAVES, EVIDENCE-NON-OWNERSHIP OF NOTE.-In suit on a promissory note payable to bearer, evidence of the plaintiff's want of ownership when the suit was brought is admissible under the general issue. Per CURIAM.Reynolds v. kent.

USURY-CHATTEL MORTGAGE-REPLEVIN.-1. If a new security includes sums for unpaid usurious items, it is to that extent without consideration, and liable to abatement. 2. The mortgagee of chattels does not become absolute owner upon breach of condition. 3. In replevin against the mortgagee of chattels who has

term. 2. Where a deed covers lands in different counties, and is recorded in one only, such record enures to constitute a record throughout the state of the parcels situated beyond that county. Leazure v. Hillegas, 7 Serg. & R. (Penn.) 313; Wheeler v. Winn, 53 Penn, St., 132; McKeen v. Delancy, 5 Craneh. 22. 3. The fact that the register has not signed the record of a deed, does not render a certified copy inadmissible in evidence, 4. A printed volume purporting to contain the statutes of another state, “printed by order of the governor,” is admissible in evidence. Being published by the authority of one of the co-ordinate branches of the government, it meets the statutory requirement, (2 Comp. L. 1871, $ 5935), that it should purport to be published under the authority of the government of the state. Opinion by MARSTON, J.-Wilt v. Cutler.

the same offense. Judgment affirmed. Opinion by JOHNSON. J.-Commrs. of Hancock County v. First Nat. Bk. of Findlay.

PRACTICE -OPENING AND CLOSING CASE-ASSESSMENT OF COMPENSATION TO LAND – EVIDENCE OF ENGINEER.-1. Under the provisions of the statute authorizing a municipal corporation to appropriate land to a public use, such corporation must secure an “inquiry into and assessment of compensation,” by a jury, to the owner of the property sought to be appropriated, which inquiry and assessment must be, not merely nominal, but actual, and made upon proof of the value of the property, or the corporation may be defeated in the appropriation; it is, therefore, not such error as will warrant the reversal of a judgment, for the court before which the inquiry is held, lo permit such corporation to open and close the evidence and argument to the jury. 2. When a question is asked of a witness which is objected to, and the objection is sustained, the ruling will not be reviewed on error, unless the exception taken shows what it was proposed to prove. 3. On an inquiry before a jury for the assessment of compensation to the property owners for land sought to be appropriated for a public use, a civil engineer testified that he had computed the quantity contained in each of the lots described in the application for the appropriation, and had noted the square feet contained in each lot, on a copy of the plat contained in the application, which paper the court permitted to be given to the jury as a memorandum of the quantity of land contained in each one of the lots, as testified to by the witness-Held, not to be error. Judgment affirmed. Opinion by Day, C. J.-Nejf 0. City of Cincinnati.



December Term, 1877-Filed January 30, 1878.




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


Associate Justices.

HON. LUTHER DAY, Chief Justice.

Josiah SCOTT,

Associate Justices. T. Q. ASHBURN, ESTATE BY COURTESY RIGHTS OF HUSBANDABANDONMENT.–1. A husband, surviving his wife, has a vested estate by courtesy in the separate property of his wife, of which she died seized. 2. Where it appears that a deceased wife, at the time of her death, owned land in her own right, and no state of facts then existed that would bar the surviving husband's right to the courtesy therein, and the land is in the possession of another, the surviving husband has a right of action to recover possession thereof. 3. One claiming the benefit of the rule, that a court of equitable jurisdiction will consider as executed that which in equity should have been executed, must show, either, that he has performed, has offered to perform, or bas been at all times ready, willing and able to perform on his part. 4. Where the conduct of the parties in relation to a contract has been such as to show a mutual abandonmont thereof, or where it has been so treated by them that neither of them could successfully invoke the aid of a court of equitable jurisdiction to enforce a specific performance, the rule that equity will consider that done which should have been done, will not operate as an estoppel to the assertion of a clear legal right. Judgment affirmed. Opinion by ASHBURN, J. -Hall v. Hall.

STATUTE CREATING NEW OFFENSE AND PRESCRIBING SPECIFIC REMEDY-CONSTRUCTION.-1. Where a statute creates a new offense by prohibiting and making unlawful, anything which was lawful before, and provides a specific remedy against such new offfense (not antecedently unlawful) by a particular sanction and method of proceeding that method of proceeding and none other must be pre erved. 2. By section 15 of “An act to establish an independent treasury of the state of Ohio," any person advising, aiding or participating in the loaning of the public moneys, is, with the public officer who makes such a loan, guilty of embezzlement, and, on conviction, is subject to imprisonment and to a fine in double the amount so embezzled. Such fine is a judgment in favor of the party whose funds are so embezzled to be collected as other judgments at law, and can only be satisfied or released by such party. Held, that for a violation of said section, by advising, aiding or participating in lending the public moneys, this section provides for a new offense, and gives a specific remedy to the injured party in the judgment therein provided for, and such remedy is exclusive of a civil action for

CREDITOR'S BILL ASSIGNEE IN BANKRUPTCY. Where no execution has been taken out upon a judg. ment, the judgment creditor, by filing a bill in equity within the period of four months before the beginning of bankruptcy proceedings by the defendant, under Statutes 1875, Ch. 235, to apply in payment of the debt land conveyed by the judgment debtor with intent to defraud bis creditors, can not obtain a lien on such land as against the assignee. Morgan v. Campbell, 22 Wall. 381. Opinion by GRAY, C. J.-Trow v. Lovett

REPAIRS OF HIGHWAYS–LIMIT OF DAMAGES.-The right to compensation for damage sustained by the raising, lowering or other act done, for the purpose of repairing a highway or town way, is confined to the owner of land adjoining the street which is repaired. There is no right to compensation beyond what the statute gives, and no damages can be had for injury occasioned by repairing other streets. Gen. Stats., Ch. 44, $$ 19, 20; Jamaica Pond Aq. Co. v. Brookline, 121 Mass. 5: Castle v. Berkshire, 11 Gray, 126. Opinion by COLT, J.- Wilbur v. Taunton.

SALE - EVIDENCE EXCEPTIONS.-1. Upon the issue whether the plaintiff's sold certain goods to de. fendant upon her sole credit, the fact that the plaintiffs brought a prior suit for the same against the defendant and her husband jointly, which has been discontinued is competent; but the plaintiffs may explain this by showing that the husband was joined through an error of their attorney. 2. It is the duty of a party taking exceptions to the admission of testimony to show by his bill of exceptions that the testimony objected to is incompetent and prejudicial to him. Opinion by MORTOX, J.-Andrews v. Matthews.

LIABILITY OF OWNER OF DANGEROUS ANIMALS. RIGHTS OF TRESPASSERS. – 1. One who knowingly keeps a vicious and dangerous animal, is liable to any person who, without contributory negligence on his part, is injured by such animal, and he can not exonerate himself by showing that he used due care in keeping and restraining the animal. He takes the risk of keeping him safely, so that he shall not injure others. May y. Burdett, 9 Q. B. 101; Popplewell v. Pierce, 10 Cush. 509; Card v. Case, 5 Man. Gr. & Scott, 622. 2. But, as in all actions for negligence, the plaintiff can not recover if his own negligence contributed to produce his injury. Munn v. Reed, 4 Allen, 431; Lyons v. Merrick, 105 Mass. 71. 3. The mere fact that the plaintiff was upon the defendant's land without his consent would not defeat the right of action. The unlawful character of his act did not contribute to his injury, or affect the defendant's negligence. Spofford v. Harlow, 3 Allen, 176; Smith v, Gardner, 11 Gray, 418. Opinion by MORTON, J.-Marble v. Ross.

TAX SALES — EFFECT OF NON-COMPLIANCE WITH STATUTE REQUIREMENTS.-Gen. Stats., Ch. 12. $$ 28, 29, require that the tax collector shall give fair notice of the time and place of sale of real estate taken for taxes, by an advertisement to be published in a newspaper of the county in which the estate lies, and that “the advertisement shall contain a substantially accurate description of the several rights, lots or divisions of the estate to be sold, the amount of the tax assessed on each, the names of all owners known to the col. lector, and the taxes assessed on their respective lands." These requirements are conditions precedent to the validity of the sale, and unless substantially followed the sale is invalid. Alexander v. Pitts, 7 Cush. 503; Farnum v. Buffum, 4 Cush. 260. The collector's advertisement in this case gives notice to "the owners and occupants of the following described parcels of real estate,” that the taxes on said real estate assessed for the year 1872 remain unpaid, and “that said parcels of real estate, or such undivided portions thereof as may be necessary, will be offered for sale at public auction” at the place and the time named. A collector, by Gen. Stats., Ch. 12, $ 33, is authorized, if the taxes are not paid, to sell the whole land; or, if it is capable of division, any part of it, or the rents and profits of the whole estate. But he is nowhere given any authority to sell an undivided interest in the land, so as to constitute the purchaser a tenant in common with the owner, and as the advertisements assert an intention to sell the whole of the land," or such undivided portions thereof as may be necessary,” it was not a due execution of the statute power, and no title passes by the collector's deed. Crowell v. Goodwin, 3 Allen, 535. Opinion by MORTON, J.-Wall 0. Wall.

JURISDICTION OF MAGISTRATES.--Except in cases of affray, threats or other misconduct in his presence, a magistrate has no power under the statute to require any one to give bonds to keep the peace unless a written complaint be first made. Opinion by BREWER, J. Reversed. All the justices concurring.–State o. Coughlin.

DEDICATION OF LANDS-INDIAN TITLE.-1. An Indian under disability to convey his lands without the consent of the secretary of the interior can not, of himself, make a valid dedication of a portion of said lands to the public for use as a highway; nor can any dedication be presumed as against him by any user of the public of the highway, or his acts and conduct in preference thereto. Opinion by BREWER, J. Reversed. All the justices concurring.--State v. O'Laughlin.

KILLING STOCK-EVIDENCE-COMPARATIVE VALUES.–1. In an action brought by the owner of a colt, under the provisions of Ch. 94, laws of 1874, p. 143, 144, to recover damages from a railroad company for wounding the animal on the line of its road, where the plaintiff has other and better evidence at hand as to the value of the colt, for which damages are claimed, Held, error to allow proof, against the objections of the railroad company, that the injured colt compared in appearance with the colts of another person, and against like objection to admit proof of the value of such other colts, to fix and determine the value of the colt injured by the railroad company. Opinion by HORTON, C. J. Reversed. All the justices concurring.-A. & N. Ry. Co. v. Harper.

SKELETON CASE MADE-ERECTION OF TELEGRAPH LINE ON RIGHT OF WAY.-1. In determining the validity of a skeleton “case made,” the same general rules apply as in the case of a skeleton bill of exceptions. 2. A railroad company may, for its own use, in operating its road, construct a telegraph line over and along its right of way, and in so doing, cut down, if necessary, trees standing upon its right of way, without subjecting itself to any additional claim of the original land owner for compensation. 3. If such line of telegraph is built by the railroad company and another party at their joint expense, and for their joint use, the latter is only responsible to the land owner for the damages caused by the additional burden, if any there be, cast upon the easement by its use of the telegraph line. Opinion by BREWER, J. Reversed. All the justices concurring.-W. U. Tel. Co. v. Rich.

ERRONEOUS SENTENCE-CONVICT Not A COMPETENT WITNESS IN A CRIMINAL CASE.-1. The defendant was charged with the offense of robbery in the first degree. The jury rendered the following verdict: “We the jury find the defendant guilty as charged.” There was not sufficient evidence to sustain a verdict for robbery in the first degree. The court overruled the defendant's motion for a new trial and sentenced the defendant for grand larceny. Held, that the court committed error; that the court should have granted the new trial; that the offense of robbery in the first degree does not necessarily include grand larceny, and that said verdict does not necessarily establish the fact that the defendant was guilty of grand larceny. 2. A person convicted of grand larceny, and sentenced to imprisonment in the penitentiary, is not a competent witness in a criminal case while the sentence remains unrevoked and such person not pardoned. Opinion by VALENTINE, J. Reversed. All the justices concurring.–State v. Howard.

DIVORCE-ALIMONY- PRACTICE.-1. A judgment rendered by a probate court of Utah territory, at tempting to dissolve the marriage relation, existing between a husband and wife who had neither of them ever resided there or been within the territory, and be

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January Term, 1878.
HON. ALBERT H. HORTON, Chief Justice.


Associate Justices. KILLING STOCK-DEMAND.-1. To sustain an action, under chapter 94, of the laws of 1874, against a railroad company for the killing of stock, there must be a proof of a demand in accordance with the provisions of section 2 of the act. Opinion by‘BREWER, J. Reversed. All the justices concurring.-Kan. P. Ry. Co. 0. Ball.

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