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to the kind of tenement to which the one in question belongs, is waste. On counter-claim for abatement of rent for the period during which the premises were partly unfit for use and occupation: Held, that “inevitable accident” must be ejusdem generis with the accidents specified, and that the term did not apply to any thing arising from the acts or defaults of either of the contracting parties.

SLANDER-WORDS ACTIONABLE PER SE-SWINDLER AND ROGUE."-Black v. Hunt. Irish Court of Queen's Bench, 12 Ir. L. T. Rep. 24. The complaint alleged that the defendant falsely and maliciously spoke and published of and concerning the plaintiff the words following-that is to say, “You (meaving the plaintiff) are a swindler, a rogue, and a low tinker.” The defendant demurred thereto, on the grounds that the words complained of did not impute to the plaintiff the commission of any crime punishable by any temporal court of criminal jurisdiction; that it was not alleged in, nor did it appear from the said count that the said words, or any of them, occasioned or caused any special damage to the plaintiff; and that the said words were not actionable in themselves. Curtis, in support of the demurrer, cited Savil v. Jardine, 2 H. Bl.532; Starkie on Slander, 3rd Ed. 74. Houston, contra. This case is governed by Kinahan v. McCullagh, 11 Ir. L. T. Kep. 45, in which it is distinctly decided that, when words capable of imputing an indictable offense are spoken, they are actionable. Here the word “swindler" is capable of imputing an indictable offense-namely, the offense of obtaining money or goods by false pretenses. (MAY, C. J.-I am not aware of any case that sustains the proposition that the word “swindler” necessarily involves the imputation of an indictable offense. FITZGERALD, J.--The word “swindler” standing by itself is merely a term of general abuse.) It includes a charge of defrauding by means of artifice and false pretense which constitutes an indictable offense. (FITZGERALD, J.-A man may borrow from another money which he does not repay, and the creditor may call him a swindler, yet he may not have obtained the amount by any false pretence.) According to Kinahan v. McCullagh, ubi sup., if the words are capable of imputing an indictable offense, that would be enough. The slanderous words used by the defendant in this case did involve an imputation of the commission of indictable offenses. According to Webster's Dictionary a “swindler" is one who obtains money or goods under false pretences; and Johnson's Dictionary defines “swindling” to be premeditated imposition. MAY, C. J.-We are all of opinion that the demurrer must be allowed. The authorities go to the extent that words that do not impute to a party an actual crime which would forn the subject-matter of an indictment can not conconstitute a ground for an action of slander, and it is too late in the day to endeavor to establish a different doctrine. In Kinahan v. McCullagb, 11 Ir. L. T. Rep. 45, there were particular circumstances which distinguish it from the present case. O'BRIEN, FitzGERALD and BARRY, JJ., concurred. Demurrer allowed.

absolute property in chattels is with the possession, unless the loan or reservation of a use in property is evidenced by an instrument of writing duly recorded. Reversed and remanded. Opinion by BAKEWELL, J. -Moore v. Keep.

ACCOUNT-SET-OFF.-A sued B and C for a balance of account due A; at the same time A, together with his partner D, owed defendants on another account; they pleaded this account due by A and B as a set-off to the account due by B and C to A. Held, that the setoff was well pleaded. A firm indebtedness can be setoff against a claim by an individual member of the firm. By mutuality, in the statute of set-off, is meant that the indebtedness must be such as to entitle plaintiff to an action against defendant, and defendant to an action against plaintiff. Reversed and remanded. Opinion by BAKEWELL, J'- Weiss v. Wahl et al.

CRIMINAL LAW – EVIDENCE - TAMPERING WITH WITNESS- ORDER OF INTRODUCTION - CHARACTER. -1. It is not error for the court to let in evidence that witness has been tampered with, before the prisoner is connected with the attempt to corrupt the witness. If the prosecution fails to connect the defendant with the attempt, the testimony as to tampering with the witness should be taken from the jury by an instruction. But it is the duty of defendant's attorney to ask this instruction; and if he neglects to do so, and the court omits to give it, this is no ground for reversal. 2. The order in which evidence is introduced is not a matter for exception. Where evidence is introduced, as to a matter which can not be competent unless defendant is connected with it, the court can not see that it is not competent until that fact is developed by failure to introduce the connecting proof, and if the defende ant desires to exclude it, it is his duty to require the prosecuting attorney to state at the time for what purpose it is offered, and whether he expects to make it relevant by further evidence. 3. Where a witness has testified to the bad character of another witness for truth and veracity, it is proper to ask the impeaching witness whether he would believe the witness whose character is attacked under oath. But, where a witmess has been otherwise abundantly impeached, and two witnesses have been allowed to state that they would not believe him under oath, the case will not be reversed merely because the trial judge improperly refused to allow the question to be put to a third witness. 4. Where it is plain that the conviction is right, and the guilt of the accused is clearly made out by proper evidence so as to leave no room for reasonable doubt, the judgment will not be reversed for immaterial error which could not possibly have prejudiced the accused. Affirmed. Opinion by BAKEWELL, J.-State v. Rothschild.

PARTNERSHIP-DISSOLUTION-RIGHTS OF PARTIES. -1. Where a partnership was created for a joint undertaking, each partner to collect certain proceeds of the joint uudertaking, the entire receipts to be shared upon a basis fixed in the agreement, any claim preferred by one partner against the other for a share of the proceeds unfairly withheld, would be the proper subject for the taking of an account to ascertain the various items of receipt and disbursement by each partner, to compare them together, and strike the proper balance. But if the parties themselves have cast up the items and agreed upon the state of the account and struck the balance either way, there is no further accounting to be had, except on a suggestion of fraud or mistake, and the court cannot interfere with the result freely and deliberately settled by the parties. 2. In such a settlement, plaintiff, on the supposition that certain freights would be received, made to defendants an advance on profits anticipated on freights, but which were never realized, owing to the destruction of cargo; defendants deny the partnership. Such an issue of



(Filed March 26 and April 2, 1878.) Hon. EDWARD A. LEWIS, Presiding Justice.


Associate Justices.

EXCEPT AS BETWEEN THE PARTIES THEMSELVES it is not competent to show by oral testimony that a recorded bill of sale of chattels, absolute on its face, was not an absolute conveyance, but a mortgage. The

facts raises no question of account. Plaintiff is entitled to recover the whole amount said to be erroneously paid, or nothing. Certain other freights are claimed by plaintiff of defendant, the amount of which was ascertained in settlement, and, as to wbich, defendant is entitled to one-half or nothing. The prayer of the petition was for an account; but as the character of the claims in suit was such that they might be prosecuted under the appropriate counts for money had and received, and for account stated, held, that the issues were properly triable by a jury, and that the case was not one for a reference, or triable by the court. Affirmed. Opinion by LEWIS, P. J.-Silver v. St. Lu & 1. M. R. R.

PURCHASE OF LANDS-BROKER'S - COMMISSIONDEFENCE-DRUNKENNESS.-1. Where one employed a broker to purchase, of the person in possession, certain real estate, at a fixed price, the broker to receive for his commissions a certain percentage, to be deducted from the purchase money, and the broker effected the sale and obtained a gooa deed from the person named, with the usual covenants, which was rejected by the vendee, who refused to carry out the purchase on the plea that the whole thing was a joke, it was no error, in a suit against the employer by the broker for damages in depriving him of commissions by refusing to accept the deed and pay the purchase money, to refuse to go into the question of the title of the property and of the power of the one executing the deer to sell, and of the reasonableness of the price which dele idant had offered. 2. When the defense in such a case was want of mental capacity to contract, testimony as to the actual value of the ground could be competent only where the offer was to show that the price of. fered was not only above market value, but so exor. bitant as to be wholly inconsistent with good faith on the part of the broker accepting the contract of effect. ing a purchase. 3. That the written agreement to sell, obtained by the broker from the vendor, according to his instructions, might not have been sufficient in an action to enforce specific performance, is no defense to a suit by the broker for bis commissions where it ap. peared that there was a substantial compliance by the broker with the terms of bis contract, that the ambiguity in the memorandum of sale did not damage defendant, and that the memorandum, in fact, effected the purpose for which it was made, and tbat its terins were fully carried out according to the intention of the parties, by the persons to be bound by it. 4. An acceptance of an offer of parchase of real estate, which provides that the present occupant shall have reasonable time to vacate the premises, is not a counterproposition, or moditication of the offer, but an acceptance of the same thing in the same sense. 5. Meie excitement from the use of intoxicating liquors is not sur drunkenness as will enable a party to avoid his contracts; such excitement and drunkenness must be excessive and absolute, so as to suspend the reason and create impotence of mind at the time of entering into the contract. “ Absolute drunkenness," does not mean complete insensibility; and an instruction couched in the foregoing language, is not objectionable for the use of this phrase. It is an intelligible direction to the jury. Affirmed. Opinion by BAKEWELL, J.-Cavender v. Waddingham.

to set aside a judgment before rendered. The plaintif should have refused to proceed and suffered judgment to go against him if he desired to bring the action of the court in setting aside the judgment before the supreme court. 31 Mo. 258; 50 Mo. 431; 51 Mo. 459. Opinion by Hough, J.-State to use of Merrill v. Grant.

MASTER AND SERVANT. —Where a yard-master, whose business was 10 house and care for the engines on a railroad, at the round-house, mounted an engine which had been run into the yard by the engineer and left for the yard-master to take care of, and on his own errand ran the engine a mile or two up the track, on which run the plaintiff's mule was killed, the company is not liable. Mitchell v. Crossweller, 13 Com. Bench., 236. Opinion by Hough, J.-Cousins o. H. & St. Jo. R. R.

DAMAGES FOR BREACH OF CONTRACT OF HIRING. - The question whetter the plaintiff was wrongfully discharged is a question for the jury on proper instructions. In an action for a wrongful discharge brought before the expiration of the term, the damages can not exceed the contract price. In a $350 suit, where the jury allowed $100 damages, this court will not reverse, even if it should appear :hat the verdict covered an item of $2 50 to which plaintiff was not entitled. De minimus non curat lex. Opinion by Hough, J.Lambert v. Hartshorne.

EJECTMENT-PartiAL RECOVERY — AMENDMENT. -Plaintiffs (having failed to make some parties in interest parties to the suit) recovered judgment for fivesixths of the land, and it appearing that this was a larger part of the estate ihan those defendants who were sued were entitled to, they now seek by amend. ment in this court to add the names of the other heirs representing the excess of the recovery. This can not be done. Where a tenant in common exercises any such acts of ownership over the land as are consistent with his legal relation to the estate, no adverse possession arises from the possession which he might legally have held as tenant in common. Opinion by Hough, J.-McQuiddy et al. v. War et al.

MUNICIPAL Bonds.—Plaintiff's petition, in the nature of a bill in equity, prays that bonds issued by Franklin county, under the act of March 21, 1868, be delivered up to be cancelled, etc., etc. The only ground of the petition is the alleged unconstitutionality of the act of March 21, 1868. The act is constitutional, and the petition was properly dismissed. Steines el al. v. Franklin Co., 48 Mo. 167; Ritchie v. Franklin Co., 22 Wallace, 67. Opinion by Hough, J.-Bradley 0. Franklin Co.

(NOTE.-Sherwood, C. J., and Henry, J., do not concur in this opinion, holding that Steines v. Franklin Co. should not be adhered to.]

TRESPASS MUNICIPAL CORPORATIONS — TREBLE DAMAGES.- Where, to an action of trespass, defend. ant pleaded license given by a party in possession of the locus in quo, and there was a judgment for the plaintiff, there being no bill of exceptions in the case, the judgment must be affirmed. In this particular case the court holds tbat the damages should be single only, and the case is reversed with instructions to the circuit court to enter judgment for the amount of the verdict; but it is broadly intimated in the opinion that municipal corporations ought not to be held for treble damages in any case. 52 III. 256; 49 III. 241; Field on Damages, $ 80. Opinion by Hough, J.-Hunt v. City of Boonville.

EJECTMENT-ENTRY-EVIDENCE.—A forcible entry upon land in the possession of another does not prevent the statute of limitations from running against the intruder's title. The time that the intruder keeps possession will be added to the occupancy of the adverse claimant. 50 Mo. 19; Pella v. Schalt, 24 Iowa,

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the grantor to recover $5,000 damages. Opinion by CRAIG, J.-Jones v. King.

PRACTICE – STATUTE – APPEALS FROM COUNTY COURT.-1. Under the statute of July 1st, 1874, repealing the law of 1872, in reference to appea's taken from the county to the circuit court and requiring a trial de novo to be had on appeal in the circuit court, where a trial was had in the county court before the act of 1874 went into effect, but the appeal to the circuit court was not perfected before that time. Held, that the appeal was governed by the law in force, and a trial de novo must be had in the circuit court: 2. A party to a suit has no vested right in the rules of practice in force when the suit is brought, but it is competent for the General Assembly to repeal such practice and adopt another, and the practice would be governed by the latter. Opinion by WALKER, J.-Lucas v. Dunnington.

283. Those conveyances only are excluded from the operation of the 35th section of the statute on evidence, which are included in the 35th section of the statute on conveyances; and those included in the latter section are such only as have been executed and acknowledged out of this state and within the United States, according to the laws of the place where exeeuted. Tully v. Canfield, 60 Mo. The act of March 22, 1873 (Acts 1873, p. 44), was only a legislative interpretation of sections 35 and 36 of the statute on evidence. Opinion by HOUGH, J.-Ferguson v. Barthelow et al.

SWAMP LANDS-RAILROAD GRANTS-EVIDENCE.-A certificate of the commissioner of the general land office, dated December 30, 1873, that a certain list of swamp lands, including the land in controversy, was a true and literal copy of the original swamp land selections on file in his office, is not evidence that the proper officer had ever certified to this state the land in controversy to be swamp land, in pursuance of the swamp land act of September 28, 1850, or that any action had been taken in reference to such lands. If the lands in controversy were not in fact swamplands, and the secretary of the interior had not included them in any lists of Jands certified to this state to be swamp lands, even though they had been selected and reported to the register of lands by the county commissioners, and to the commissioner of the general land office by the surveyor general, the title to them did not vest in the state by the act of 1850, nor prior to the confirmatory act of March 3, 1857, which would have given the state the title if the lands were then vacant and unappropriated; and, therefore, in a controversy originating prior to the act of March 3, 1857, it need not be material to inquire whether the lands were in fact swamp lands, and parol testimony was admissible on that question. Where, therefore, the land in controversy did not pass to the state under the act of 1850, and prior to the act of March 3, 1857, had been legally appropriated to aid in the construction of railroads in this state, under the acts of June 10, 1852, and August 3, 1854, the confirmatory act of 1857 could not date back so as to extinguish a valid title acquired under other acts of Congress prior to the passage of the temporary act. Opinion by Hough, J,-Funkhouser v. Peck.

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October Term, 1877.--Filed Jan. 21, 1878.
Hon. John SCHOLFIELD, Chief Justice.


Chief Justices.
John M. SCOTT,

COMMON CARRIERS-WHEN CONSIGNOR MAY MAINTAIN SOIT AGAINST -- As a general rule, a suit against a common carrier for the loss of goods must be brought by the consignee. But where the goods are market “C. 0. D.," the contract of the carrier is not only for the safe carriage and delivery of the goods to the consignee, but he further contracts with the consignor that he will “collert on delivery," and return to the latter the charges due on the goods. Under such a contracts, if the carrier returns neither the goods nor the charges due thereon, on demand, the consignor may maintain an action for the loss. Opinign by HOWK, J.-U. S. Express Co. 0. Keifer et al.

PRINCIPAL AND AGENT-CONDITIONAL SUBSCRIPTION.- Where the agent wrote to his principal: “We are trying to get the local passenger, freight depot and machine shops of the Ft. W., J. & S. railroad to locate on the city park property north of the city," and the principal answered: “You may put me down for $400 provided you get the improvement you speak of," and the agent thereupon signed bis principal's name to a paper of the following purport: “In consideration that the Ft. W., J. & S. R. R. Co, locate their locafreight and passenger depots and such machine shops as may be required by them at Ft. Wayne," etc.; Held, the subscription was such an essential departure from the terms of the agent's authority as to render his action inoperative and void as to his principal. Opinion by PERKINS, J.-Drover v. Evans, et al.

MARRIED WOMAN'S SEPARATE ESTATE How CHARGED.-Contracts of married women, possessing separate property, may be divided into three classes: (1) General contracts not concerning their separate property and not expressing an intention of charging the same. (2) Such contracts as pertain to and concern their separate estate. (3) Contracts not concerning their separate estate, but in which they express an intention of charging the same upon their separate estates. Contracts of the first class are void, or at least voidable. Contracts of the second class are valid, and may be enforced against the separate property in relation to which they are made and performed. Contracts of the third class are valid, and payment of them may be enforced out of the income of their separate estates, and, perhaps, if necessary, out of the estates themselves. 20 Ind. 54. Where the contract in

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INDICTMENT-LIBEL-VARIANCE. – An indictment for libel which sets out the libel preceded by the words "as follows,” is sufficient under the Illinois statute. An objection on the ground of variance between the indictment and the libel, as proved, must be made in the trial of the cause, and cannot be first raised in the appellate court. Opinion by WALKER, J.-Clay v. The People.

EVIDENCE-DEPOSITIONS.-An objection can not be made in the upper court to the admitting in evidence of depositions taken, unless a motion was made in the lower court to suppress the depositions. In a suit to set aside a conveyance as fraudulent, it is competent to put in evidence the files of the circuit court in a certain case to prove that, at the time of the alleged fraudulent conveyance, suit had been brought against

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question was a note given for a piano, and was in the following words:

FOWLER, IND., December 10, 1874. One year after date I promise to pay to the order of E. D. Richards, out of my own separate estate, two hundred dollars.

MARY O'BRIEN." Held, the intention of the maker to charge the debt upon her separate estate was sufficiently manifested, and the court might properly order it to be paid out of the income thereof. Opirrion by PERKINS, J.-Richards v. O'Brien.

EFFECT OF RECORDING UNAUTHORIZED INSTRU. MENTS-CONSTRUCTIVE NOTICE.-The following entry was made in the recorder's office over against a certain mortgage duly recorded therein, of which Rebecca A. Etzler was the mortgagee: “The debt secured by this mortgage being fully paid and satisfied I hereby release and forever discharge the same from record this 14th day of July, 1870. Rebecca A. Etzler.” Afterwards John H. McClellan, the mortgagor, made the following entry immediately under the above: “The consideration for which this satisfaction was entered on this mortgage has wholly failed, and the same remains in full force and binding as fully as if there had been no acknowledgment of the payment of the same. July 31, 1870. John H. McClellan.” Held, that the entry made by McClellan, not being an instrument which the law authorized to be recorded, or in any manner entered upon the mortgage record, no one was bound to take notice of the matters contained therein. 4 Ind. 283; 32 Cal. 376; 40 Ill 535; 43 Vt. 462. Upon the entry of satisfaction on the mortgage record, the record ceased longer to be constructive notice of the existence of the mortgage, and therefore the mortgage, though still unpaid, stood on the same footing as an unrecorded mortgage. In order, therefore, to make the mortgage thereafter operative against any person claiming title to the mortgaged land, and not a party to the mortgage, it was necessary to show actual notice of the existence and non-payment of the mortgage. Opinion by NiBLACK, J.-Etzler, et al. v. Evans.

the state penitentiary is a competent witness in a civil action or proceeding: 3. In an action brought by S, against W. to recover moneys of the former alleged to have been stolen by the latter, an anonymous letter, received through the office by S, and admitted to have been written by W, and written in consequence mainly, as the latter stated in his testimony, of his hearing that S was charging him with the larceny, was admitted in evidence; Held, no error, although the letter was principally filled with mere matters of abuse, and contained no direct notice of the charge and only one expression which seems, and that not clearly, to have any reference to it. 4. A counsel in his argument to the jury should confine himself in his statements of fact to the matters in evidence. If he travel outside the case, and asset to be facts matters not in evidence, he is guilty of misconduct for which he may be punished personally. Sometimes also, the interests of justice require that the verdict returned in his client's favor shall be set aside on account thereof. But there is no absolute rule to this effect. All that can be safely laid down is that whenever, in the exercise of a sound discretion, it appears to the court that the jury may have been influenced as to the verdict by such extrinsic matters, however thoughtlessly and innocently uttered, or that the statements were made by counsel in a conscious and defiant disregard of his duty, then the verdict should be set aside. Opinion by BREWER, J. Affirmed. All the justices concurring.-- Winter o. Sass.

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

D. M. VALENTINE, } Associate Justices. JURISDICTION-EVIDENCE OF SERVICE-JUDGMENT -RECORDS.–1. A finding in the journal entry of a judgment of a court of record of due service of summons is prima facie evidence thereof. 2. Where this finding is in general terms and the record discloses one service and only one, the finding will be presumed to have reference to that service, and the validity of the judgment will turn upon the sufficiency of that service. 3. But where the record discloses that in fact two summonses were issued and two services made and the papers in the case, including the summonses, are all lost or destroyed, the prima facie evidence of service from the recital in the journal entry will not be overthrown by the fact that but one summons and one return are copied into the final record. 4. The final record, the journal and the appearance docket, are each records of the court, and the silence of the former does not negative the existence of a fact shown by either of the two latter. Opinion by BREWER, J. Affirmed. All the justices concurring.-Driscoll v. Soper.

PRACTICE-CONVICT A WITNESS-EVIDENCE-ARGUMENT OF COUNSEL.–1. The finding of the jury upon the conflicting evidence as to the facts in this case will not be disturbed by this court. A convict in


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


Associate Justices.
SON-CONSTRUCTION.--1. The provision of section 313
of the code, as amended March 2, 1871, which excludes
a party from testifying in a civil action where the ad-
verse party claims as “grantee” of a deceased person,
does not apply to the assignee of a chose in action.
2. In an action on a promisory note against one pur-
porting to be the maker, by an assignee of the note
from its original holder and owner who died after the
assignment, the defendant is a competent witness to
prove any fact material to the issue in the case, whether
it transpired before or after the death of the assignor.
Judgment reversed and cause remanded. Opinion by
DAY, J.-Elliott v. Shav.

STATUTE OF FRAUDS.-1. In order to take advantage of
error in the ruling of the Court admitting testimony, the
bill of exceptions thereto must be signed and filed as
part of the record at the trial term. 2. If, however, a
motion for a new trial is overruled, and a bill of excep-
tions taken embodying all the testimony and charge of
the Court, the whole record will be examined to ascer-
tain if the verdict is sustained by the law and the
evidence, although the bill was taken at the term when
the motion for a new trial was overruled, this being
subsequent to the trial term. 3. E contracts with Sto
build a house, and contracts with G to furnish labor
and materials. G refuses to furnish such labor and
materials, except upon a promise made to him by E
that he himself will pay the bill out of funds coming to
S; Held, to be a contract not within the statute of
frauds so as to make a writing necessary. 4. The work
being done, and it being agreed by all that E should
pay G, who was to give up his claim against S and look
to E alone for payment; this is such a contract as need

not be in writing under the statute. Judgment affirmed. Opinion by WRIGHT, J.--Estabrook v. Gebhart.

IMPLIED TRUST-HUSBAND AND WIFE.-1. A trust raised by implication of law may be proved by parol. 2. An implied or constructive trust may be established from the acts of a party who has obtained money upon the faith of his agreement to buy lands in the name of his wife, and having bought them takes the title to himself. 3. A husband so receiving money,which would not have been advanced except upon the agreement that it was for the wife's benefit, and to be invested in her name, is an agent for the wife, and by taking the deed to himself under such circumstances, makes himself a trustee ex maleficio. 4. If the husband is a participant in inducing the purchase for the wife's benefit, receives the money for that purpose to invest in her name, and then buys for himself, this is such a fraud as will create a trust, against him, and those claiming under him with notice. Opinion by WRIGHT, J.--Newton v. Jennings.

PARENT AND CHILD- WRONGFUL TAKING OF IN. FANT FROM CUSTODY OF GRANDFATHER-PRACTICE. -1. As a general rule the parents are entitled to the custody of their minor children. When they are living apart, the father is, prima facie, entitled to that custody, and, when he is a suitable person, able and willing to support and care for them, his right is paramount to that of all other persons, except that of the mother, in cases where the infant child is of such tender years as to require her personal care; but in all cases of controverted right to custody the welfare of the minor child is first to be considered. 2. The father's right is not, however, absolute under all circumstances. He may relinquish it by contract, forfeit it by abandonment, or lose it by being in a condition of total inability to afford his minor children necessary care and support. 3. Where the father and mother, living apart, by agreement transfer the care and cus: tody of their infant children to the grandfather of the children, in consideration that he will receive, care and provide for them, and in pursuance of such ayreement he does take them in charge, the custody of the grandfather is lawful, and he has legal capacity to maintain an action for damages against one who wrongfully takes, or causes them to be taken from his custody. 4. In such case the grandfather, being entitled to the custody of the minors, was also entitled to their services, and, in an action for damages against one who wrongfully took them from his possession, it is sufficient to allege, as to loss of services, that the wrongful taking was to deprive him of their “

possession and services,” without alleging actual loss of services. 5. In action for damages, arising from the wrongful act of a married woman, husband and wife must be joined as defendants. If in the commission of the tort she acted under marital coercion, and such fact does not appear on the face of the petition, her defense in that respect must be made by answer. Judgment reversed and cause remanded. Opinion by ASHBURN, J.-Clark v. Bager.

services in consideration of a home, clothing, etc. The court, after instructing the jury that plaintiff could not recover without showing an express contract of the kind alleged, further charged that if they found, from the preponderance of testimony, that defendant, on or about a day named, agreed with plaintiff to pay him for services afterwards to be rendered, and that plaintiff, in pursuance of such agreement, rendered such services, then he was entitled to recover; and that the burden of proof was on plaintiff to show both the contract and the value of his services by a preponderance of proof. Held, that the charge was erroneous in failing to point out the distinction between circumstances from which a contract may be implied, and circumstantial evidence of an express contract, and failing to inform the jury that an express contract of the kind alleged “must be established by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive.” Tyler v. Burrington, 39 Wis. 376, Opinion by COLE, J.- Wells v. Perkins.

PLEADING-DEMURRER TO COMPLAINT-STATUTE OF LIMITATIONS — TAX CERTIFICATE-AUTHORITY OF SUPERVISORS.-1. Where a demurrer is to the entire complaint for insufficiency of facts, it must be overruled if the complaint states one good cause of action. 2. Whether, where it appears from the complaint that the statute of limitations has run upon the cause of action, the defendant can avail himself of the statute by demurring to the complaint for insufficiency of the facts, discussed by (OLE, J., and in a separate opinion by RYAN, C. J., but not determined in this action. Howell v. flowell, 15 Wis. 55, as to the effect of a demurrer in such a case, examined. 3. Where a plaintitf sues as administrator, an averment in the complaint that a tas certificate counted upon “is now lawfully possessed and owned by said administrator and plaintiff'” is a sufficient averment that he claims to own it in his representative capacity. 4. In the case of an invalid sale of land for taxes in 1870, the purchaser, or his assignee of the certificate, might bring an action against the county at any time within six years from the date of the sale. 5. A special contract by the county board of supervisors at the time of tax sales, with the purchasers or their assigns, to refund on demand the moneys paid on such sales with interest, if, through the failure of the officers to comply with the law in the tax proceedings, the certiticates should be void, or an agreement to secure to such purchasers or their assigns a perfect title in fee simple to the lands, would be in excess of the authority conferred by law on the supervisors, and of no effect. Opinion by COLE, J.-Hyde, adm'r, v. Supervisors of Kenosha Co.



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


Associate Justices.

AUGUSTUS L. SOULE, MORTGAGE CONSTRUCTION DESCRIPTION OF PREMISES.-A mortgage is to be so construed as to give effect to the intention of the parties if this can be ascertained from the instrument. The conveyance is not to be restricted to the premises described in the deed referred to for a particular description, if the instrument contains another clear and unequivocal description embracing more than is described in the deed referred to. Melvin v. Locks and Canals, 5 Met. 15; Hastings v. Hastings, 110 Mass. 280. Opinion by

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