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execution of the trust deed, as is required by the homestead act (R. S., 1868, p. 386) in case of mortgages executed after the property is claimed as a homestead, that the trust deed was executed against the provisions of law. Having reference to the condition of the property, at the time the trust deed was made, Benson alone was a necessary grantor, even if a trust deed is to be considered as a mortgage within the meaning of that word as used in the homestead act. Drake y. Root. 2 Col. 689.

The subterfuge adopted by making the entry of " homestead on the record on the very day that Benson and family vacated the premises, can not be held to invalidate the trust deed. The deed from Benson and wife to the defendant in ejectment was subject to the encumbrance contained in the deed of trust, and must yield to any title legally deduced under it. Taylor v. King, cited supra. .

Wells having purchased with the record notice of the trust deed, occupies no better position than his grantor. The source of title in both appellant and appellee is the same. The court did not err in excluding the deed from Benson and wife to Wells. As we discover no error in the record, the judgment of the court below must be affirmed.




Prior to the bankruptcy law of 1867, there had existed in the United States two similar laws. One became a law and went into practical operation April 4, 1800; the other on the 19th day of August, 1841; the former was repealed in less than three, and the latter in less than two years from the date of their passage. The former law seems to have largely favored the creditor, while the latter law went to the opposite extreme, and favored the debtor.

Although the words bankrupt and insolvent are now used in this country almost as convertible terms or as being equivalent to each other, under the law of 1800, the word bankrupt seems to have been used and understood in quite the technical sense it bore under the English law. The word bankrupt occurs for the first time in the title of the statute 34 and 35, Henry VIII, ch. 4, against such persons as do make bank rupt-a literal translation of the French idiom qui font banque route.

The broad distinction between a bankrupt law and an ordinary law is: The summary and immediate seizure of all the debtor's property; the distribution of it pro rata among the creditors in general; the discharge of the debtor from future liability for debts then existing.

It is evident, from the speeches made and proceedings taken, that the bankruptcy law of 1867 was passed with the view and intention of throwing off the commercial gyves from myriads of unfortunate debtors, and to open to the honest insolvent or bankrupt the door of freedom from his debts, and to give him a new lease of business life.

It was supposed and intended that, under this bankrupt law, the debtor and the creditor class would unite on the common ground of obligation and duty. But whether or not the practical operation of the law has yielded that protection to the creditor, or even to the debtor class, as was at first anticipated it would do, or whether the measure was fraught with beneficence to all, may be reasonably questioned. It will not, we think, be reckoned harsh to apply to our bankrupt law the terms which are generally applied against the German law based upon a similar system—" that it has been, and is, subject to much delay, expense, fraud and abuse."

By section thirty-nine of the bankrupt law, as amended by the supplementary act of 1874, it is declared what shall be deemned acts of bankruptcy, among which are: Departing from the state, or remaining absent therefrom, with intent to defraud creditors, or concealing or removing his property to avoid its sequestration; or making any assignment, gift, sale, conveyance, or transfer of his estate or property, with intent to delay, defraud or hinder his creditors; or disposing of any property, rights or credits, with the intent to give a preference; or who, being a bank, banker, broker, merchant, trader, manufacturer or miner has fraudulently stopped payment and not resumed payment, within forty days, of his commercial paper, (made or passed in the course of his business as such), or who, being a bank or banker, shall fail for forty days to pay any depositor upon demand of payment lawfully made, shall be deemed to have committed an act of bankruptcy, and shall be adjudged a bankrupt on the petition of one or more of his creditors, who shall constitute one-fourth thereof in number, and at least one-third in amount of the debts provable under the law. Creditors whose respective debts do not exceed two hundred and fifty dollars in amount shall not be reckoned in such number. If the provable debts exceed the said sum, and constitute one fourth in number of the creditors holding provable debts exceeding said sum, the requirement as to the number of petitioning creditors is held to be satisfied In re Hymes, 10 N. B. R. +33, Blatchford, J. Those debts only are to be counted which are not secured by liens and the like. In re Frost, 7 Chic. L. N. 42, Blodgett, J. The debtor is entitled to have a copy of the petition served upon him personally or left at his usual place of abode. Service may, in certain cases, under direction of the court, be made by publication. On the return-day the court may hear the allegations of the petitioner and the answer of the debter, or may adjourn the proceedings for good cause shown for that purpose to a future day. Section 41 as amended: The court may, at the request of the debtor, award a venire facias to the marshals, returnable within ten days thereafter, for the purpose of having the allegatiors set out in the petition tried. All proceedings in bankruptcy may be discontinued on reasonable notice and hearing, with the approval of the court. As amended by section 14, act of June 22, 1874: That if the facts set forth in the petition are proved to be true, or if default be made by the debtor, the


court may adjudge the debtor to be a bankrupt, or as to the amount due to creditors; but if incorand a warrant may issue and the property of the rectly stated, may be corrected at a meeting of the debtor be taken thereunder. If the debtor fails to creditors. Re Asten, 14 N. B. R. 7; Re Morris, appear in the proceedings,a certified copy of the ad- 11 Id. 443; Re Trafton, 14 Id. 507; Re Reiman, 13 judication shall forth with be served on him, as pro- Id. 128. vided for in the service of the order to show cause. Much difficulty has, at times, been experienced

In case of an abandonment of the bankruptcy upon the question as to whether payment under a proceeding by the creditor as well as by the debtor, composition, in indorsed notes, was valid under it is held that any other creditor may intervene, the law; and by several well considered cases, Re and upon proper application may proceed to an Hurst, 13 N. B. R. 255, Re Reiman, 11 Id. 21, it adjudication. In re Lacey, 10 N. B. R. 488, Wood- has been held that such payments are valid, but ruff, J. And such intervention may be made at that the debtor is not entitled to his discharge unany time to which the matter has been adjourned less the amount agreed upon is actually paid. It for the purpose of showing cause.

has also been conclusively held that a resolution As to Composition wilh Creditors.-Under section of compromise does not affect an attaching credforty-three, as amended June 22d, 1874, § 17, the

itor, whose attachment is less than four months provisions of which seem to have been based upon

old, unless an assignee has been elected and an $126 of the English bankrupt law of 1869,

assignment been made of the bankrupt's effects. 32 and 33 Victoria, Ch. 71, it is declared, that

Re Clapp, 14 N. B. R. 191; Re Shields, 15 N. B. R. the creditors of a bankrupt may, upon ten days'

532. See an exhaustive opinion on this subject in notice of the time, place and purpose of the

Re Scott, 13 N. B. R. 73. The composition is held meeting, resolve that a composition proposed by

to be in itself a discharge (Re Becket, 12 N. B. R. the debtor be accepted, in satisfaction of his debts. 201) of the debtor. And this section of the law Such resolution must be passed by a majority in applies to copartnerships and corporations. Re number and three-fourths in value of the creditors

Weber Furniture Co., 13 N. B. R. 529; Pool v. assembled at such meeting, which provision is held

McDonald, 15 N. B: R. 560. to be mandatory (In re Spades, 13 N. B. R. 72), Section forty-four,, as amended, provides that, and must be confirmed by the signature thereto of if the bankrupt shall, after the commencement of the debtor and two-thirds in number and one-half proceedings in bankruptcy, secrete any property in value of all the creditors of the debtor. The belonging to his estate, or part with, destroy, alter, confirmation need not be presented to the register. mutilate, or falsify any book or document relatRe Spillman, 13 N. B. R. 214. Those whose debts ing thereto, or cause any of those acts to be done, amount to sums exceeding fifty dollars may be or removes the same, or any part thereof, out of reckoned in the majority in value, but not in the the district, to prevent the same coming to the majority in numbers to pass and confirm the report. assignee, or make any payment, gift, sale or transRe Spades, 13 N. B. R. 72; Re Wald, 12 Id. 491. The fer of property belonging to his estate with like resolution, as passed and confirmed ( Re McDow- intent, or shall spend any part in gaming; or, ell, 6 Biss. 193, 15 N. B. R. 73), shall be presented shall, with intent to defraud, willfully and fraudto the court, and if found to have been passed in ulently conceal from the assignee or omit from accordance with the law, it may direct and cause his schedule “any property or effects whatever," the resolution to be recorded. The terms of the or shall attempt to account for any of his property composition may be subsequently varied in the by fictitious losses or expenses; or, within three same manner as the original resolution was months before the commencement of proceedings passed, without any prejudice to any persons in bankruptcy, under false color and pretense of taking interest under such provisions who do not carrying on business and “dealing in the ordinary assent to such addition or variation. It has been course of trade," obtain on credit from any perheld that the decision of the majority of the son any goods or chattels with intent to defraud; creditors is conclusive as to the amount of the or shall, within said time, pawn, pledge or discompromise being for the best interests of all par- pose of, otherwise than by bona fide transactions ties. Re Morris, 11 N. B. R. 443. Such proceed- in the ordinary way of his trade, any of his goods ings shall be binding upon all creditors whose or chattels which have been obtained on credit and names, addresses and the amounts of the debts remain unpaid for, he shall be deemed guilty of a due to whom, are shown in the statement of the misdemeanor, and, upon conviction thereof, in debtor produced at the meeting at which the res- any court of the United States, shall be punished olution was passed. Compositions made in pur- by imprisonment with or without hard labor, for suance of the bankrupt law may be enforced by a term not exceeding three years. While section the court, and the same may likewise be set aside forty-four and other provisions of the bankrupt in consequence of legal difficulties, or for any suf- law, would seem to throw around the debtor quite ficient cause shown. Re Weber F. Co., 13 N. B. a network of acts, the conviction of either one R. 529; Re Whipple, 11 Id. 524. The proceedings of which being sufficient to make him answerable for composition may be taken whether an adjudi- to the crime of misdemeanor, it is a notorious fact, cation has been had or not, and this feature of the that very few cases appear in the reports where a law has been affirmed as constitutional. In the bankrupt has been found guilty of either one of matter of Reiman, 13 N. B. R. 128.

them. Notwithstanding the fact that cases freThe composition is held not to be vitiated by a quently occur where the bankrupt has disposed of mistake on the part of the debtor as to his assets, goods otherwise than by bona fide transactions " in

the ordinary way of his trade," the proof requisite and the application was by C. to inspect documents to to a conviction in such cases is, that the creditor which privilege attached in the former action. must show that the goods in question were disposed of within “three months;" and further,

NOTES OF REJENT DECISIONS. the creditor has the onus upon him of showing that the goods claimed to have been so sold MASTER AND SERVANT- LIABILITY OF CORPORAwere the identical goods that remain unpaid for; TION TO SERVANT-DEFECTIVE APPLIANCES-NEGand such identity must be absolutely proved, noth- LIGENCE-NOTICE.- Oak Bridge Coal Co. v. Reed. ing being left to inference, in a proceeding of that

Supreme Court of Pennsylvania, 5 W. N. 3. Opinion

PER CURIAM. 1. A master is not liable to his servant character. And thus, the creditor being held to

for injuries occasioned by the use of defective applistrict proof, can in hardly any case obtain a con- ances furnished by the master, if such defects are so viction.

obvious that no prudent man would use the appliances, While the present bankrupt law is in many re- and the servant gives no notice to the master that such spects a great improvement on either of the two defects exist. But where such appliances, though in former laws, there is evident need of amendment

fact dangerous, are not obviously defective, and the in many particulars before the law will work that

servant, in the execution of his employment, notwith

standing the exercise of skill and caution in their use, beneficence to the commercial interests of the

is injured by reason of defects in the appliances, the country that the advocates of it at the outset

master will be held liable. 2. The plaintiff was empromised and assumed. One general benefit and ployed by the defendant as a brakeman; his duty readvantage, however, is vouchsafed by the bank- quired him to couple cars while on a trestle work, rupt law over all other laws, and that is, it pre

and, while so engaged, he was injured by reason of an vents a creditor from gaining an undue advantage

alleged defect in the construction of this trestle work.

The court below submitted to the jury the question of by action at law, as, where a debtor finds that he

fact as to the defective character of the trestle work, is being sued and judgment is likely to go against and instructed them that if the plaintiff, in obedience him, he may file his petition in bankruptcy and to the requirements of the defendant, incurred the risk enjoin the creditor from proceeding in his action. of the alleged insufficiency of the trestle work, and it Creditors may also unite and put the debtor into was reasonably probable that the trestle work could bankruptcy for the purpose of effecting a similar

be used without danger by the exercise of ordinary result.

care, and the plaintiff did in fact exercise such care, It is evident, on all hands, that the merchants

and was, nevertheless, injured by reason of the defect

of the trestle, then the defendant was liable. Held, and the monied interests of the country take the not to be error. proper and wise view of the matter in insisting ASSAULT WITH INTENT TO MURDER-PRESUMPupon either a repeal of the bankrupt law, or that TION-INDICTMENT-INSTRUCTIONS—CRIMINAL REit shall be so amended as to better protect the SPONSIBILITY OF ONE WHO SETS OUT SPRING GUNS. creditor class.

- Simpson v. State. — Supreme Court of Alabama. J. F. B. From original opinion of BRICKELL, C. J.-1. Section

3670, of the Revised Code, which punishes assaults,

with certain intents, as felonies, was designed for SOME RECENT FOREIGN DECISIONS. the punishment of several distinct offenses, elements

of each being an act done, which, of itself, may be inRAILWAY COMPANY-LUGGAGE OF PASSENGERS

dictable, yet is aggravated by the intent attending it and DELIVERY CONTRIBUTORY NEGLIGENCE. Pat

the higher offense contemplated. 2. Each of these ofscheider v. Great Western R. R. English High Court,

fenses, though not recognized at common law as sepEx. Div., 26 W. R. 268.—Taking a passenger's luggage

arate, distinct, technical offenses, was an offense known out of the van and putting it on the platform, does not

to the common law, and indictable and punishable as constitute a delivery by a railway company to the pas

a misdemeanor; and our statute not declaring the senger. The company are bound to give the passenger

constituents of the offenses, resort must be had to the

common law to ascertain the facts, which must conreasonable time for claiming it and taking it away before their liability ceases.

cur to constitute tbe felonious assault or attempt. 3.

Indictments, under the statute, as at common law, CONFLICT OF LAWS-ADMINISTRATION-INTEREST

charging one offense, can not be supported by proof -LEX FORI.--Hamilton v. Dallas. English High of another offense; and as the gist of the offense Court, Chy. Div., 26 W. R. 326.-In an administration by charged in assault with intent to murder is an asthe court of the assets in this country of a testator who sault with intent to murder the person named in had a foreign domicil at the time of his death, although the indictment, there can be no conviction of the of. the property will be distributed according to the law fense charged if the intent was to murder some other of the place of domicil, the payment of interest will be

person or to commit some other offense, though there governed by the practice of this court.

may be of the minor offense of an assault, or an asDISCOVERY AND INSPECTION OF DOCUMENTS sault and battery. 4. The specitic intent to murder PRIVILEGE-COMMUNICATIONS BETWEEN SOLICITOR the person named in the indictment must be proved as AND CLIENT IN A FORMER ACTION.-Bullock v. Corne. a matter of fact, the jury ascertaining its existence from English High Court, Q. B. Div., 26 W. R. 330.- all the facts and eircumstances in the evidence. 5. Anact Communications between solicitor and client, to which done with a particular specitic intent is the offense at privilege once attaches, are always privileged, whether which the statute aims; the doctrine of an intent in law they have been made with reference to the existing different from the intent in fact, has no just applicaaction, or to a previous one; a fortiori are they priv- tion, and it the real intent shown by the evidence is ileged when the question in dispute is the same in the not that charged, there can be no conviction of the agsecond action, as in the former one. So held, where gravated offense charged. 6. Whatever may be said of a A., having failed in an action brought against him by charge "that if a han shoots another with a deadly B., brought an action for indemnity against C., who weapon, the law presumes that by such shooting he was under the same obligation to him as he was to B., intended to take the life of the person shot,” when

given on a trial for murder, it is manifestly erroneous when given on a trial for an assault with intent to murder; for if it had any force it converts the material element of the offense, the intent to murder a particular person, into a presumption of law drawn from the nature of the weapon, and the act done with it, whereas the intent is a fact to be ascertained by the jury, in view of all the facts and circumstances of the case; the weight to be given to the character of the weapon and the manner of its use being facts to be considered along with the other evidence. 7. The common law rule once prevailing in England, allowing the owner of property to set spring guns to protect it against trespassers, is inconsistent with our customs and institutions, and has never been in force in the state. 8. While the owner may use necessary force to prevent a trespasser from taking property, the rule is subject to the qualification that he must not, except in extreme cases, endanger human life or great bodily harm; and if, in order to prevent a bare trespass, life is taken with a deadly weapon, the killing is murder; wbile if the weapon used is not a deadly weapon, and is suited rather for alarm or chastisement, and there was no intent to kill, the killing will be manslaughter. 9. The owner can not, because he inflicts injuries by means of spring guns which can not harm the trespasser without his concurring unlawful act, lawfully inflict other or greater harm to the person of the trespasser, to deter or frighten him, then he could, if personally present, directing or doing the shooting himself; and the principle is not different because the tresspasses are repeated, secret and under cover of darkness, by persons unknown to the owner. 10. On the trial of an indictment for an assault with intent to murder, instructions that if death had ensued from the wounding of the prosecutor by spring guns, placed by defendant to protect his own property from trespassers, the killing would have been murder, it follows that the defendant was guilty of an assault with intent to murder, is erroneous. 11. So, also, instructions that the defendant was guilty of an assault with intent to murder, if the spring gun wounding the prosecutor was set with the specific intent to kill him, the defendant suspecting him to be the trespasser and bearing malice against him, although there was also a general intent to kill whoever was the trespasser, are erroneous in such a case. 12. Setting a spring gun on a man's own premises, to prevent or shoot trespassers, is not an assault; and where a person trespassing there is wounded by it, although it was set to kill him, the defendant suspecting him to be the trespasser and having malice toward him, it is not an assault with intent to murder, under the statute. 13. Whether, where a gun is set with intent to kill a particular person who is injured by it, it is not an attempt to commit murder by means not amounting to an assault, indictable under another section of the statute, is a question not presented by this case. Reversed and remanded.

cumbrances. Rehearing denied. Opinion by BAKEWELL, J.-Walker v. Deaver.

JURY-COURT REFUSING TO RECEIVE VERDICTMANDAMUS.-1. The court instructed the jury that, under the pleadings and evidence, the plaintiff was not entitled to recover. Plaintiff refused to take a nonsuit; the cause was then submitted to the jury, who found a verdict for the plaintiff for $4,300, in due form; the court refused to receive the verdict, and directed the jury to retire and return a verdict for defendant, which was done, and judgment entered thereupon. Held, in a proceeding for a mandamus to compel the trial judge to receive and record the first verdict, that the petition setting forth those facts set forth no sufficient grounds for issuing the writ. 2. The giving of the above instruction was equivalent to sustaining a demurrer to the evidence, and when a demurrer to the evidence is sustained, the jury has nothing to do with the facts; their act in returning a verdict is then merely formal; the judge alone is responsible for the verdict, and the jury are as much bound to render it as they are to obey any other lawful direction of the judge. Demurrer sustained. Opinion by HAYDEN, J.-State ex rel. Griswold v. Thayer.

LARCEXY-COFFIN – VALUE.-1. A coftin used to cover a corpse may, after burial, be the subject of larceny. 2. The property may be said to be in the person who bought the coffin for the purpose of interment. 3. Articles which have no market value, may, nevertheless, have a value which the law will recog. nize. It is competent for a jury, in case of larceny of a coffin, to arrive at the value of the coffin at the time it was stolen, from the fact that the coffin was new, and from the price shown to have been paid for the coffin when bought. And, where it was shown that the coffin cost thirty-five dollars, they might well, under the circumstances, find the offense grand larceny, under an instruction that, to so find, they must find the coffin to be worth more than ten dollars. Affirmed. Opinion by HAYDEN, J Per LEWIS, P. J., concurring. -In a buried coffin containing a corpse there is no ownership that can be asserted by one person against another in a civil action; but an ownership of a character sufficient to support a charge of larceny will be taken to exist somewhere. It is not necessary for the purposes of the criminal law to fix this ownership, and an indictment is sufficient which charges that the cof. fin is the property of some person to the jurors unknown.-State v. Doepke.





[Filed March 19, 1878.]
Hon. EDWARD A. LEWIS, Presiding Justice.




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


Associate Justices. John W. HENRY, EJECTMENT — EQUITABLE ANSWER— PRACTICE.Where an answer in eject ment admits the plaintiff's legal title, and sets up facts which constitute an equitable defense, but does not constitute an estoppel or bar to the action, the answer should contain a prayer foran account, and that the amount found to be due defendant be declared a lien on the land, 64 Mo. 518; 58 Mo. 563. Opinion by Hough, J.-Sims et al. v. Gray.

ENDORSEE AND ENDORSER-PAROL TESTIMONY.In an action by the endorsee of a promissory note against the endorser, who was payee thereof, verbaltestimony is not admissible to show that the payee signed in any capacity, or assumed any liability except that which the law attaches to bis signing. 42 Wis. 56; 3 N. H. 132; 29 Barb. 489; 6 Black. 509; 29 Ind. 271; contra, 19 Penn. St. 396. Opinion by Hough, J.Rodney v. Wilson, adm'r.

} Associate Justices.

A COVENANT THAT A GRANTOR" shall and will warrant and defend said lot of ground unto the said party of the second part and his heirs an'l assigns forever, against all persons, claims, liens, titles and encumbrances whatsoever," is a covenant of general warranty, and includes a covenant against encumbrances, and a recovery may be had upon it as on a covenant against en

RAILROAD-KILLING STOCK.-Under section 43 of the railroad law, there can be no recovery for injuries resulting from negligent management of the train. 60 Mo. 209; 64 Mo. 255. The opinion comments on Lloyd v. P. R. R. Co., 49 Mo. 199; the 6th section of the damage act; Ellis v. P. R. R., 48 Mo. 231; Parks v. St. L. & I. M. R. R., 58 Mo. 45; Carey v. R. R., 60 Mo. 209; Wood v. R. R., 58 Mo.; and the conclusion drawn from all the cases is that under section 43 the action is not based upon negligence; that section 5 of the damage act was designed as an inducement to railroads to fence the track where the law did not require it to be done, but where it might be properly fenced; and that the action in this case being for the killing of hogs within the limits of the town of New Cambria, but outside of the part of the town laid off into and crossed by streets and alleys, ought to have been brought under section 5. Opinion by Hough, J.-Edwards v. H. & St. Jo. R. R.; also Eliot v. H. & St. Jo. R. R.

DEED-DELIVERY.-Delivery is essential to make a deed effective, and must be made actually or constructively during the life-time of the grantor. 12 Wend. 407; 12 Johns.421; and the constructive delivery must be made by someone holding the deed in escrow or as trustee. 2 Mass. 447; Greenl. Ev. Vol. II, S 297; 34 N. H., 460, 476. The test of the delivery of a deed is the fact that the grantor bas divested himself of control over it. Where a father made a deed to his son and retained the custody of it himself, keeping it in a chest to which the son had access, and it was the grantor's intention that the son should have it after his own death, there was no delivery. Opinion by Hough, J.-Henry v. Henry.

defendant. While the suit was pending D purchased of the widow her dower and homestead interest, paying therefor $1,500. D then dismissed the bill as to B and made E defendant and offering to permit him to share in the benefits of the purchase by contributing her proportion, prayed that if she refused, he be reimbursed one third of the outlay by decree of court. The lower court granted a partition and decreed that E pay to D one-third of the cost of purchasing the dower and homestead. To this E excepted on the grounds that dower and homestead are not such incumbrances on property as one tenant in common may compel a co-tenant to contribute to, and because a person cannot create another his debtor without the consent of the other. Held, that if E claims and holds an equality of benefit from the purchase of dower and homestead, she must submit to an equality of burthen, and that in equity the rule as to the making of a person a debtor without his consent, has always had an exception where tentants in common hold property encumbered. Opinion by WALKER, J.-Wilton v. Tazewell.




October Term, 1877.- Filed Feb. 7, 1878.
Hon. JOHN SCHOLFIELD, Chief Justice.


Chief Justices.

ALFRED M. CRAIG, PRACTICE-SUIT FOR DELINQUENT TAXES.-An application for judgment for delinquent taxes is a summary proceeding and governed by the revenue act and the act in relation to trial by jury has no application to such a case, and the refusal of a jury in such a case held not error. Opinion by BREESE, J.-Mix 0. The People.

EVIDENCE-EXPERT – REAL ESTATE. – In proving the value of property the rule does not confine it to experts, but any erson having a knowledge, general or specific, may testify to its worth. Nor can the court determine as to the extent of the witness's knowledge before he can testify, or after having testified, determine what weight his evidence shall receive by excluding it, unless it fails in its tendency to prove the issue. The jury are presumed to be able to determine the weight that should be given to it, and if the means of information are limited, the jury should give his evidence slight if any weight. In proving values some latitude from the very nature of the question must be given as to the person who shall testify. Opinion by WALKER, J.— The Chicago, Rock Island & Pacific R. R. v. Jones.

CONTRIBUTION–TENANTS IN COMMON — REMOVAL OF INCUMBRANCE.-A died seized of lands, leaving B, bis widow, and C, D and E, bis children and heirs at law. In 1874 C sells to D his interest in the lands and he thereby becomes owner of two-thirds, the premises still being subject to the dower and homestead interest of the widow. In September, 1874, D and E filed theirfpetition for partition against their mother as


December Term, 1877Filed March 20, 1878.
Hon. W. W. Johnson, Chief Justice.


Associate Justices.

T. Q. ASHBURN, GRAND JURORS-QUALIFICATION, LIQUOR LAWS.1. That a person has subscribed funds for the purpose of legitimately suppressing crime, does not disqualify him from sitting on the grand jury; nor is it ground of disqualification that he has evinced a desire and purpose to enforce the laws. 2. The fact that township trustees caused one of their number to be returned as grand juror, does not disqualify him from serving as such. 3. In an indictment for selling intoxicating liquors, in violation of law, the time of the alleged offense is immaterial, and proof of a number of sales about the time alleged in the indictment and prior to the finding thereof, is sufficient to warrant conviction. Judgment afhrmed. Opinion by WRIGHT, J.-Koch v. State.

RAILROADS–NEGLECT OF CONDUCTOR TO EJECT UNRULY PASSENGER.-1. It is not only the right of a conductor to expel from a train a drunken, unruly, boisterous passenger, but when such a person endangers, by his acts, the lives of people, it is the duty of such conductor to remove such passenger in order to protect others from violence and danger. 2. But this right must be reasonably exercised, and not so as to inflict wanton or unnecessary injury upon the offending passenger, nor so as to needlessly place him in circumstances of unusual peril. 3. If having exercised reasonable prudence, considering the time, place and circumstances, as also the condition of the drunken man himself, the conductor expels such passenger, who is afterward run over and killed by another train not in fault, the expulsion itself is not such proxi. mate cause of the death as will make the company liable. Judgment reversed. Opinion by ASHBURN, J. Scott, J., being absent, did not sit.-Pits., Ft. Wayne & Ch. R. R. v. Valleley.

MARRIED WOMAN-CONTRACTS.-1. An indebted. ness incurred by a married woman, for the benefit of herself or her separate property, and upon its credit, and the giving of a note or other obligation therefor, are facts from which a court of equity may imply and enforce a charge against such property. 2. But an intention to charge such property will not be implied merely from the giving of a note or other obligation

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