a public officer from tearing down fences and attempting to open a highway through the plaintiff's premises where no legal highway has been established, and the solvency of such officer is no defense to the action. Opinion by BREWER, J. Affirmed. All the justices concurring.-Poirier v. Fetter.

SUIT BY MINOR-PRACTICE.-1. A minor must sue by his next friend or guardian, and security for costs will not obviate the necessity of such next friend or guardian. 2. A defendant in an action before a justice of the peace, moved to dismiss because the plaintiff was a minor, and the action was not brought in the name of the minor by his next friend or guardian; the motion was overruled, a bill of exceptions duly taken, showing that it was proved on the hearing of the motion that the plaintiff was a minor, and judgment was thereafter rendered upon trial in favor of the plaintiff. On error, Held, that such motion ought to have been sustained, and that in consideration of the record the reviewing court should ignore a statement made on the docket of the justice prior to the entry of the motion, but not brought on by bill of exceptions, and not connected with any order of the justice, to the effect that defendant waived all objections to being sued by a minor. Opinion by BREWER, J. Reversed. All the justices concurring.-Sutton v. Nichols.

BILLS OF EXCEPTIONS-CASE MADE.-The office of a bill of exceptions and of a case made is very dissimilar. The object of the former is generally to bring upon the record for review a decision of the court upon a matter of law, which the record would not otherwise show, and it must be reduced to writing, allowed, signed and filed at the term the decision complained of is made. After being signed, filed and made a part of the record of an action, it can be presented to the supreme court in the transcript of the case. The object of a case made is to present to the supreme court, complete in itself, a statement of so much of the proceedings and evidence, and other matters in the action, as may be necessary to bring to the notice of this court the errors complained of. It must embrace and include all that is necessary for a full understanding of the questions submitted for decision, regardless of the fact whether the exceptions are entered of record. It may be settled, signed and filed beyond the trial term, and in vacation. The M., K. & T. Co. v. Palmer, 20 Kan. Opinion by HORTON, C. J. Dismissed. All the justices concurring.-Shumaker v. O'Brien.

PROCEEDINGS IN THE NATURE OF AUDITA QUERELA.-1. On October 6th, 1875, one M recovered judg ment in a replevin action against H for a return of the specific personal property in controversy, or for $858, in case a return could not be had. Upon the failure to obtain the property under the judgment, and the execution being returned nulla bona, M commenced an action against B, one of the signers to the undertaking in replevin, given in pursuance of section 178, chapter 80, Gen. Stat. The original case of M against H was taken upon error to the supreme court by H for review, and before it was disposed of M obtained judgment against B on the replevin undertaking; soon after, the supreme court reversed the judgment in the case of M against H in replevin, and awarded a new trial, and at the same term of court at which M obtained his judgment against B, a motion was made by B to set aside, vacate, and annul the judgment against him, because since the rendition of the judgment the supreme court had reversed the judgment in replevin, on which latter judgment the judgment against B was based, which motion was sustained, and the judgment on the replevin bond was vacated. Held, not erroneous. Where facts have arisen since a judgment is entered, of such a nature that it is clear the judgment ought not to be executed, relief against

the judgment may be given upon motion to vacate the same at the term at which the judgment is rendered if the facts are undisputed, and also, held, that a party is not to be charged with neglect because he omits or fails to give a supersedeas bond on suing out a writ of error, and that it would be very onerous to deny the moving party relief under the circumstances, because he did not apply for and obtain an order staying proceedings in the case of M v. B, as the granting of such an order would have rested largely in the discretion of the court. Opinion by HORTON, C. J. Affirmed. All the justices concurring. McMillan v. Baker.

PARENT AND CHILD-CONTRACT FOR SERVICES.— If the parent of a minor child make a contract with a third person, whereby the child is to serve such person and receive the pay therefor, the parent precludes himself from recovering for the services so rendered by such child. Such an agreement, therefore, though inoperative as an indenture of apprenticeship, and not binding on the minor, is valid as between the parent and such third party, and under it the minor could sue for the value of his services. Opinion by WORDEN, J.-Kerwin v. Wright.

PROPERTY CONDEMNED FOR STREETS-FORMER JUDGMENT LIENS.-When a city condemns real estate for street purposes, and pays the owner thereof, it takes the property discharged from the lien of previous judgments. 47 N. Y., 157. The law which gives a judgment creditor a lien on the real estate of the debtor relates solely to the remedy and there can be no vested right in a remedy, When mortgaged property is condemned for street purposes by a city, the mortgagee is entitled to be paid out of the money allowed the mortgagor as damages. 19 Wend. 659. There is no reason why a judgment creditor, having a lien on the property condemned, should be less favored. As between him and the party who holds the money so paid, his rights are entitled to protection. Opinion by WORDEN, J. Biddle, C. J., dissenting, holding that the previous liens on the land were vested rights, which could not be taken without just compensation assessed and tendered. Niblack, J., doubted.Gimble v. Stolte, Admx. etc.

MALICIOUS PROSECUTION-ACTING BY ADVICE OF COUNSEL. In an action for malicious prosecution, the court gave the following charge: "If you believe from the evidence that the defendant consulted an attorney, and made a full and fair representation to him of the facts; that said attorney advised the prosecution, and that the defendant acted in good faith, on such advice, then you should find for the defendant. If, however, the defendant consulted counsel as a means of covering malice and did not believe the advice given him, or that the plaintiff was guilty of the crime charged against him, but commenced prosecution as a means to get rid of the liability on the note in question, then the fact that he consulted counsel can not avail him." Held, the charge was right. The advice of an attorney may be given in evidence on such a trial, not as an absolute justification of the prosecution, but as a fact tending to rebut the presumption of malice and the want of probable cause. Opinion by Howk, J.— McCarthy v. Kitchen.

GUARDIAN'S BOND-PLEADING.-A guardian's bond is not" an instrument for the payment of money only," within the meaning of sec. 24, ch. 125, R. S.; and, in an action on such bond, it is not enough to set it out in hæc verba, and allege that a certain sum is due thereon, but a breach must be distinctly assigned. Opinion by COLE, J.-Carrington v. Hodges et al., imp.

VERDICT IN EQUITABLE ACTION-REVIEW OF EVIDENCE ON APPEAL-RIGHT UNDER PAROL LEASEDISMISSAL OF COMPLAINT ON REVERSING JUDGMENT FOR PLAINTIFF.-1. In an equitable action a verdict has not the same conclusive weight as in an action at law; and, on appeal from a judgment to such verdict, this court reviews the evidence. 2. One who claims an exclusive right to mine on a tract of land by virtue of an alleged parol lease, and seeks a perpetual injunction restraining others from mining thereon, though the latter do not interfere with his development of his own range, must establish such right by clear and satisfactory evidence. 3. No probability appearing that the evidence would be materially different on a new trial, this court, on reversing a judgment for the plaintiffs, directs a dismissal of the complaint. Opinion by COLE, J.-Clegg et al. v. Jones et al.

AGENCY-HUSBAND AND WIFE-VICIOUS DOGPROOF.-1. In this state a wife who has acted as her husband's agent is a competent witness for him to prove any act done by her, or fact occurring, within the scope of such agency. 2. After evidence showing that the wife of a party acted as his agent in respect to the matter in litigation, a general objection will not lie against her competency as a witness; but if she is asked any question relating to a matter not fairly within the scope of her agency, specific objection should be taken on that ground. 3. Testimony of a party that, on leaving home for three months he left his farm and everything on it, including his stock, in charge of his wife, with directions to take care of everything as he would if at home: Held sufficient to show her agency in the care of the stock. 4. One whose dog, while trespassing upon the farm of another, kills a domestic animal of the owner of the farm, is liable to pay full compensation for the whole injury, though he had no previous knowledge of any vicious propensity of the dog. 5. The fact that the complaint in such a case alleges not only the trespass and killing, but also a previous vicious propensity of the dog known to the defendant, will not prevent a recovery upon proof of the former averments alone. Opinion by COLE, J.-Chunot v. Larson.

Kansas reads: "The governor and all other officers under this constitution shall be subject to impeachment for any misdemeanor in office. But judgment in all such cases shall not be extended further than to removal from office," etc. Does a member of the legislature fall within the above provision, and is he liable to impeachment for misdemeanors in office? K.

25. RECEIVERS' CERTIFICATES-FRAUDULENT ISSUE-BONA FIDE HOLDER.-I read with pleasure and profit the case of Cromwell v. The County of Sac, published in a late issue (6 Cent. L. J. 209), concerning municipal bonds, and also the extensive and valuable note upon the points discussed in the opinions The validity of such securities in the hands of bona fide holders should be by this time pretty well settled by the highest judicial tribunal in this country. I would like to inquire if the principles there announced govern that class of securities known as "receivers' certificates." These are so often issued by receivers appointed for insolvent corporations, under the orders of the courts, that they have become very common instruments of commerce. 1 do not find legal authority or adjudicated cases bearing directly upon the question. Suppose, in such a case, the receiver should exceed the amount ordered by the court, or should misapply the proceeds realized from the sale of such certificates, would the innocent holders of such certificates for value be protected? Have there been any adjudications upon the question, and by what courts? C.

BOOK NOTICE.

A MANUAL OF CRIMINAL LAW, including the mode of procedure by which it is enforced. Especially designed for the use of students. By EMORY WASHBURN, L. L. D., author of "A Treatise Upon the American Law of Real Property," etc. Edited with notes by MARSHALL D. EWELL, author of " A Treatise on the Law of Fixtures," etc. Chicago: Callaghan & Co., 1878.

It was but fitting that he whose life had been for so many years devoted to the Instruction of the students of this land, should leave behind him, as a legacy, a work like the one now before us. The great treatises on the criminal law-those of Chitty, Wharton, Bishop and Russell-are not for the student. They are the tools of the skilled workman, and the novice, if he meddle with them, does so at his own risk. They-but more especially the works of her native authors-contain the criminal laws of this country, classified, discussed and expounded in a manner to which the treatment of the other branches of the law by authors equally eminent hardly presents a parallel. But in how many of our law schools are they studied; and what proportion of the students who yearly leave those institutions know anything at all about the law of crimes and punishments? Yet on the just administration of our criminal laws, does not our liberty as citizens depend, and upon their rigid enforcement does not our safety as a people rest? Criminal law is not taught in our law schools as it should be taught-therefore, with but few exceptions, the educated and better portion of the profession avoid the criminal courts-therefore the criminal practitioners have come to be looked upon as the Ishmaelites of the profession.

The book before us is but an outline of the subject of which it treats. It traces a criminal prosecution from its incipient stage, a complaint before a magistrate, to its final judgment and sentence. The first chapter discusses the elementary principles of criminal law; the second treats of crimes and their classification, and the third of criminal procedure. We cordially recommend to the student this little book of less than 300 pages.

NOTES.

IN the Supreme Court of the United States the following order was entered on the 22d ult: There having been an associate justice of this court appointed since the commencement of this term, it is ordered that the following allotment be made of chief justice and associate justices of said court among circuits, agreeably to act of Congress in such case made and provided, and that such allotment be entered on record, viz: For the First Circuit Court, Nathan Clifford, associate justice; for the Second Circuit Court, Ward Hunt, associate justice; for the Third Circuit Court, William Strong, associate justice; for the Fourth Circuit, Morrison R. Waite, chief justice; for the Fifth Circuit, Joseph P. Bradley, associate justice; for the Sixth Circuit, Noah H. Swayne, associate justice; for the Seventh Circuit, John M. Harlan, associate justice; for the Eighth Circuit, Samuel F. Miller, associate justice; for the Ninth Circuit, Stephen J. Field, associate justice.

The Senate bill to repeal the bankrupt act as amended and passed by the House of Representatives last week by a vote of 206 to 39 is as follows: That the Bankrupt Law approved March 2, 1867, title No. 61 of the Revised Statutes, and an act entitled "An Act to amend and supplement an Act to establish a uniform system of bankruptcy throughout the United States, approved March 2, 1867, and for other purposes," approved June 22, 1874, and all acts in the amendment or supplementary thereto, or in explanation thereof, be, and the same are hereby repealed: provided that such repeal shall in no manner invalidate or affect any case in bankruptcy instituted and pending in any court prior to the day when this act shall take effect; but, as to all such pending cases and all future proceedings arising thereunder, the acts hereby repealed shall continue in full force and effect until the same shall be fully disposed of in some manner, as if said acts had not been repealed.

A CORRESPONDENT of the Pall Mall Gazette, writing from Valencia, says: There still survives in this city a very ancient tribunal which has exercised jurisdiction without a break for nearly a thousand years. Just outside of the city, extending eastward to the Mediterranean and southward to the Lake of Albufera, is the plain known as the Huerta de Valencia. This plain, which covers nearly ten square miles, was at one time covered by the sea, but since the time of the Arabs it has been reclaimed, and has been converted by means of irrigation into one of the most fertile spots on the peninsula. The Huerta is traversed by eight main canals (acequias), which have an infinite number of small branches; and by this means the land is provided with an abundant supply of water. There are appointed times for the supply of water to each district, the signal for opening and closing the dykes being given by the great bell in the cathedral tower of Valencia. Agents are appointed to see that these arrangements are strictly carried out, and any infraction of them is brought before the tribunal to which I referred above. This tribunal, known as the "Tribunal of the Waters," is composed of eight members, who are elected by the eight divisions of the Huerta, and holds its sittings at noon every Thursday under the porch of Valencia Cathedral, the chapter of which is bound to provide it with a bench. All disputes which may have arisen during the past week are laid before the tribunal by word of mouth, neither the complainant nor the defendant being allowed to em

ploy counsel, and so great is the respect felt for its decisions that since its institution by the Arabs in 920 no instance has been recorded in which the defeated party has appealed from it to the ordinary jurisdiction of the country. I may add that Huerta contains sixty-three villages and hamlets, with a population of nearly eighty thousand.

THE bill recently passed permitting the examination of accused persons in criminal trials in Great Britain contained a provision that it should not apply to Scotland. Very recently the Faculty of Advocates appointed a committee of its members to consider whether it was expedient to introduce a similar bill for Scotland. This committee has reported in its favor, and it may therefore now be said that all the countries that are governed by the common law have decided that one of its oldest and distinguishing rules must be abolished. The Scotch committee in considering the English bill, say: "They are unable to see why a person accused of crime, and who, until proved guilty, is presumed to be innocent, should be prevented from giving evidence on a matter so nearly affecting him. They are not insensible to the danger of an unseemly wrangle occasionally arising between a too zealous judge and a prisoner, but that could not extend, as it does in French causes, beyond the special charge under trial; and they have confidence in the good sense of Scotch judges, and in the effective protection afforded against any temptation to abuse by the presence of the jury and the assistance of the prisoner's legal advisers. They can also have no doubt that, if such abuse occurred once, the comments of the public press would render a second instance extremely unlikely. It has been suggested that the prisoner is sufficiently protected by his judicial declaration, or by the right to lodge a special defense, and by himself or his counsel to make the last statement to the jury; but the special defense and the counsel's speech are not evidence in the panel's favor, and both must be founded on the proof adduced, while the declaration, even if made evidence, may be given at a point of the case when the circumstances which may require the explanation and evidence of the prisoner are not yet brought out, and when the panel, without the opportunity of advice, must, in most cases, be in a condition of confusion and mental excitement entirely unfitting him for giving a clear statement of the facts. The majority of the committee are satisfied that the proposed change would lead to the more certain conviction of prisoners when guilty, and at the same time give additional protection to the innocent. They agree with the minority in thinking that, if it be introduced, it shall be incumbent on the prisoner who wishes to give evidence, to include his own name in his list of witnesses." The committee also approved of section 10, of the Enlish act, which declares that the failure of the prisoner to give evidence shall create no presumption against him; but they were divided upon section 11, of which the majority disapproved. The latter section makes the prisoner liable to prosecution for perjury in the event of his giving false evidence; and they considered that it may, in the case of the acquittal of the prisoner, lead to abuse on the part of the public prosecutor, while, if he is convicted, the sentence inflicted by the judge will probably be an adequate punishment. On the other hand, it was thought by those members who were in favor of the clause that the jury would pay little attention to the mere statement of a prisoner, made by him on a different footing from that of other witnesses, and without any fear of consequences in the event of untruth.

SAINT LOUIS, MAY 10, 1878.

CURRENT TOPICS.

IN Pullman v. Upton, decided by the Supreme Court of the United States during the present term, it was held that an assignee of corporate stock, who has caused it to be transferred to himself on the books of the company, and holds it as collateral security for a debt due from his assignor, is liable for unpaid balances thereon to the company, or to the creditors of the company, after it has become bankrupt. That the original holders and the transferrers of the stock are so liable was decided by the same court in Upton v. Treblecock, 91 U. S. 45; Sanger v. Upton, 91 U. S. 56, 3 Cent. L. J. 721, and Webster v. Upton, 91 U. S. 65, 3 Cent. L. J. 402. This ruling follows the English cases. In The Newry, &c., R. R. Co. v. Moss., 14 Beav. 64, it was said that only those persons who appear to be shareholders on the register of the company are liable to pay calls. In Hoare's case, 2 Johns. & Hem. 229, it appeared that certain shares had been settled upon Hoare and others as trustees in a marriage settlement. The trustees had no beneficial interest, but they were registered as shareholders, with the word trustees" "added in the margine of the register, and they receipted for dividends as trustees. It was held by Vice Chancellor Wood that they were liable as contributories to the full extent, and not merely to the extent of the trust estate. It was said, "a person who is a shareholder is absolutely liable, although he may be bound to apply the proceed of the shares upon a trust." In The Empire City Bank, 8 Abb. N. Y. 192, 18 N. Y. 200, the Court of Appeals held persons responsible as stockholders in respect to the stock standing in their names on the books of the bank, though they held the stock only by way of hypothecation as collateral security for money loaned, and they were held liable for an amount equal to their stock for the unsatisfied debts of the bank. See also Ad

66

derly v. Storm 6 Hill, 624. In Holyoke Bank v. Burnham, 11 Cush. 183, it was decided that a transfer of stock on the books of the bank, intended to be held merely as colVol. 6.-No. 19.

bank debts. It was said that the creditor is to be considered the absolute owner, and that his arrangement with his debtor cannot change the character of the ownership. And in Wheelock v. Kost, 77 Ill. 296, the doctrine was asserted that when shares of stock in a

banking corporation have been hypothecated and placed in the hands of the transferee, he will be subjected to all the liabilities of ordinary owners, for the reason that the property is in his name, and the legal ownership appears to be in him.

THE opinion of the Supreme Judicial Court of Massachusetts has just been filed in the case of Locke v. Lewis, which presents an interesting phase of the law of partnership. It was an action of replevin for three carriages. It appeared by the evidence that, in September, 1870, a copartnership previously existing between the plaintiff and I. R. and D. R. in the business of manufacturing carriages at Nashua, in the state of New Hampshire, was dissolved, the plaintiff left the firm, and I. R. and D. R. gave him their promissory note for the balance of his unpaid interest therein, and formed a new firm under the style of I. R. & Son, and continued the business at the same place. In October, 1870, I. R. and D. R. formed a limited partnership, under the laws of New Hampshire, under the name of I. R. & Co., with C. P. and G., in which I. R. and D. R. were general partners, and the other three were special partners, In February, 1871, I. R. and D. R. sold the carriages in question to the plaintiff in payment of their note to him, and he gave up the note to them. The plaintiff testified to the effect that he bought the carriages in good faith; that he thought two of them were the same that the old firm had on hand when he sold out to I. R. and D. R., and that he did not know that the limited partnership existed, or was carrying on business, or that any one but I. R. and D. R. had any interest in the carriages sold to him. The defendant, a deputy sheriff, afterwards attached the carriages on mesne process against all the partners in the limited partnership. The report assumes that the carriages were part of the stock in trade of this partnership; and the single question reserved for the decision of the court was the cor

rectness of the ruling under which a verdict was ordered for the defendant, and which was, in substance, that the sale by the two general partners, in payment of their own debts, of goods which were in fact goods of the partnership, but were not known to the creditor to be such, was void as against the partnership and its creditors.

The opinion, as delivered in the case, being too long to be reported in full, we give an abstract of it. GRAY, C. J.: As between the partners themselves, one partner has no right to bind the partnership except within the scope of the business of the firm. He has no right to give a note or other obligation of the partnership, or to release a debt due to the partnership, or to appropriate property of the partnership in payment of a private debt of his own, without the assent of his copartners. But their right to avoid the transaction as against the creditor depends upon the question whether the latter had knowledge or notice of the true state of the case; whether there was fraud or negligence on his part, and whether the copartners held out the active partner as authorized to deal with the property as his own. If one partner deliver a promissory note or bill of exchange of the partnership in payment of his private debt, the very form of the note or bill usually gives the creditor notice that it is a security of the partnership, and throws upon him the burden of showing that the other partners authorized or assented to what, without proof of such authority or assent, appears to be a misappropriation of the partnership funds. So if one partner release a debt of the partnership in payment of a private debt of his own, the other party has like notice. So if property, applied by one partner in payment of his private debts, is known by the creditor to belong to the partnership, such creditor can not hold it, against the partnership, without proof that the other partners authorized or ratified such appropriation. But if the private creditor has no knowledge that the property belongs to the partnership, and the partnership has intrusted its property to one partner in such a manner as to enable him to deal with it as his own, and to induce the public to believe it to be his, then the other partners fall within the rule that when one of two innocent persons must

suffer, that one must suffer who by his acts or conduct afforded the means of committing the fraud. It is like the case of a person entrusted with goods as agent, who sells them to one who has no knowledge that he is agent, but is led to believe, from the manner in which he has been allowed to deal with the goods, that they are his, and who is therefore entitled to set-off against the principal a debt of the agent. Rabone v. Williams, 7 T. R. 360, note; George v. Clagett, 7 T. R. 359; Senenza v. Brinsley, 18 C. B. (N. S.). 467; Turner v. Thomas, L. R. 6 C. P. 610, 613; Ex parte Dixon, 4 Ch. D. 133; Kelly v. Munson, 7 Mass. 319, 324; Lime Rock Bank v. Plimpton, 17 Pick. 159; Calais Steamship Co. v. Scudder, 2 Black. 372. The same rule has been applied in a series of English decisions to partnerships, whether for general business or in a single venture. To hold a sale or contract by the ostensible partners to be absolutely void for abuse of authority by them, so as to confer no title and rights upon a person dealing with them in good faith, within the apparent scope of their authority and right, with no knowledge of any abuse thereof, would be to apply to parties having both title and authority ample for the purpose, a stricter and narrower rule than is applied to an ordinary agent exercising a bare authority without interest. For these reasons the jury should have been instructed that if the plaintiff, by the manner in which the general partners dealt, and had been allowed by the special partners to deal, with the property sold to him, was induced to believe that it was the property of the general partners only, and acting on such belief bought it in good faith, and with no knowledge that the special partners, or any person than the general partners, had any interest therein, he was entitled to maintain this action. Verdict set aside.

THE status of the product of property exempt under the exemption law was considered by the Supreme Court of North Carolina, in Citizens Notional Bank v. Green, 17 Alb. L. J. 329, where it was decided that the fact that property is the product of or increase from exempt property does not render it exempt. A homestead in land to the maximum value allowed by law, had been allotted to one G, who was insolvent. A crop of cotton was