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laid down by high authority that a mere signature on the face of the bill, without any words of acceptance, may be an acceptance in writing within the statute (Selwyn's N. P., 11th ed., p. 348; Byles on Bills, 12th ed., 191); and, on the other hand, that words of acceptance without a signature, if intended as an acceptance, might suffice; Dufour v. Oxenden, 1 M. & Rob. 90, per Patteson, J.; see also Corlett v. Conway, per Parke, B., 5 M. & W. 655. By the 19 & 20 Vict. c. 97, s. 6, it was enacted " That no acceptance of any bill of exchange shall be sufficient to bind or charge any person, unless the same be in writing on such bill and signed by the acceptor or some person duly authorized by him.” In the present case it was contended that, inasmuch as before the statute a mere signature would have been a sufficient acceptance in writing within the 1 & 2 Geo. 4. c. 78. 8. 2, it was not the less so now, and that inasmuch as it was a signature of the acceptor, the bill was both accepted in writing and signed by the acceptor, within the meaning of the latter enactment. But, looking at the history of the law and of the enactments on the subject, we are of the opinion that the county court judge was right in holding that the statute had not been complied with. It is not for us to speculate upon the objects of the legislature, but if it were necessary to do so, we think it may well have been intendea by the enactment now in question to prevent ignorant persons from being too easily bound by a mere signing of their names, and that it was, therefore, purposely required that there should be upon the face of the bill some words indicating an intention to be bound by it as acceptor as wel as the mere signature of the party. Comparing the words of the later statute with those of the former, we think it is impossible that a mere signature of a name can be held to fulfil the double requirement that the acceptance shall be in writing on the bill, and signed by the acceptor.”

BRANCH BANKS- EVIDENCE- PROMISSORY NOTE -ESTOPPEL.-Prince v. Oriental Bank Corporation. English Privy Council, 26 W. R. 513. 1. Branch banks are merely agencies for the principal bank. 2. The erroneous cancellation of a promissory note as paid, corrected before any communication of payment to the maker or holders, and uncommunicated entries in the books of the bank, are ineffectual to charge the bank with the receipt of the amount of the note. De Bernales v. Fuller, 14 East, 590, explained.

MARINE INSURANCE SEAWORTHINESS-BURDEN OF PROOF-QUESTION OF LAW OR FACT.-Pickup v. The Thames and Mersey Marine Insurance Co. English High Court of Justice, Q. B. Div., 26 W. R. 477. In an action on a voyage policy, in which a question of seaworthiness arises, the question wbether the cir. cumstances under which a vessel becomes incapable of continuing a voyage are sufficient to raise a presumption that she was not seaworthy at the commencement of the risk, and to throw the onus of proving her seaworthiness on the owner, is a question of fact for tbe jury and not one of law for the judge.

BANKRUPTCY BILL OF SALE FRAUDULENT PREFERENCE. Ex parte Bolland. English Court of Bankruptcy, 26 W. R. 481. A lent money to B, the latter verbally promising to give A a bill of sale when required. No bill of sale was required during the life of A, but after her death and four years after the money was lent, her executor hearing rumors against the debtor's solvency asked for and obtained a bill of sale from the debtor, wbich comprised substantially the whole of his property. It was agreed that the executor should not put the bill of sale in force unless the debtor's other creditors were pressing him, and the debtor promised that if any legal process was issued against him he would give notice to the executor. Afterwards the debtor gave the executor notice of a process issued against him, and the executor thereupon seized and sold the goods by a forced sale advertised only three days before it took place. Held, that the giving of the bill of sale was a fraudulent preference, and that the proceeds of the sale must be paid to the trustee.

BILL OF EXCHANGE-ACCEPTANCE IN WRITINGSIGNATURE–19 & 20 Vic. C, 97, s. 6.-Hindhaugh v. Blakey. English High Court of Justice, C. P. Div., 26 W. R. 480.-1. The mere signature of a drawee's name on a bill of exchange is not a sufficient acceptance. There must also be an acceptance in writing. 2. The plaintiff drew a bill of exchange upon the defendant, who wrote his name across the face of the bill. Held, that the defendant was not liable as acceptor, the bill not being accepted and signed by him as required by 19 & 20 Vict. c. 97, s. 6. DENMAX, J.: “Before the statute of Geo. 2, c. 78, s. 2, it was not necessary that a bill should be accepted by any writing on the bill itself; it was sufficient if in any other document the acceptor used language showing his intention to be bound by the bill as acceptor; Wynne v. Raikes, 5 East, 514, and other cases. It was also sufficient be. fore that statute if the drawee verbally undertook to pay an existing bill; Lumley v. Palmer, 2 Str. 1000; Powell v. Monnier, 1 Atk. 611. Disapprobation of the law as it then existed was expressed by very learned judges (see per Lord Kenyon, in Johnson v. Collings, 1 East, 98, and per Lord Ellenborough, in Clark v. Cock, 4 East, 72) and it was one of the particulars in which the English law was at variance with the law of Scotland. In the year 1821, it was enacted by 1 & 2 Geo. 4, c. 78, 8.2, “That no acceptance shall be sufficient to charge any person unless such acceptance be in writing on such bill." Since this statute it has been

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INJUNCTION-SALE UNDER TRUST DEED-UNSETTLED ACCOUNTS.- A bill for an injunction to restrain a sale under a deed of trust, on the ground that the holder of the note secured by the deed of trust owes the petitioner on an unsettled account more than the amount due on the note, presents no equity, and is properly dismissed. The cestui que trust is not to be deprived of his special security on the ground that he owes the maker of the note on open account; and the chanceller, in such a proceeding, is not to try common law issues and settle the indebtedness between the parties. Affirmed. Opinion by HAYDEN. J.-Gregg v. Hight.

DIVORCE-DOMICIL-JURISDICTION.-1. The plaintiff in a divorce suit must be a resident of this state when the suit is begun, although the offense was committed within this state and whilst one party resided here. 2. In Missouri, the wife, when plaintiff in a divorce suit, can not sustain her action on her husband's domicil. 3. It is not enough, in a divorce suit, that jurisdiction appears from the whole record; the libel itself must allege every fact made necessary by statute to the granting of a divorce; when this is not done in substance, the bill should be dismissed. Where jurisdictional facts do not appear on the face of the petition for divorce, the court can take no valid step. Affirmed. Opinion by BAKEWELL, J.-Pate v. Pate.

MECHANICS' LIEN-EVIDENCE-DECLARATION OF are filled contrary to the agreement between the orig. CONTRACTOR.-1. The material man can enforce a lien inal parties. 4. A note expressed to be for a certain against a building only for materials which actually sum, " with interest at 10 per cent.," bears interest enter into its construction. 2. The declarations of a from date Affirmed. Opinion by BAKEWELL, J.contractor, when making his purchases, are no evi. Green v. Kennedy. dence whatever that the material was used in the build

PRACTICE – SUPPLEMENTARY MOTION - ASSIGNing: as against the owner, the declarations of the con

MENT OF JUDGMENT – FULL PAID STOCK - CERTItractor are mere hearsay. The old doctrine of the Su

FICATES.-1. A supplemental motion filed in a cause preme Court on this subject, as declared in Morrison

whose record is already before the court need not rev. Hancock, 40 Mo. 561, has been repudiated and is no

peat facts which are already matter of record. 2. longer the law, having been overruled in the later case

Every presumption is in favor of the propriety of an of Simmons v. Carrier, 60 Mo. 581. Reversed and re

order of substitution of parties in a suit. 3. The statmanded. Opinion by LEWIS, P. J.-Schulenburg v. ute providing a form for the assignment of judgments Hawley.

is cumulative, and does not prevent an equitable as. PRACTICE-BILL OF EXCEPTIONS-BOND UNDER signment being made in any other lawful way. 4. The SHERIFF'S ACT.-1. Where the bill of exception does not certificate of a corporation to a stockholder that his show that appellant's motion for new trial in the trial stock is “full paid stock,” is not conclusive against court, was actually overruled, but merely that it was to creditors of the corporation. The stock of the corpobe overruled at a future day, there is no cause for review ration is publicly pledged to all who deal with it, and in the appellate court. There can be no valid record can not be given away by the corporation, and one of what judgment a court proposes to render at a fu- who takes the stock from the corporation paying no ture time. 2. A clerical entry which comes after the legal consideration for it, and thus secures to himself judge's signature to the bill of exceptions, is a mere the enjoy ment of dividends, can not avoid his respon. nullity, and can not be noticed in the appellate court. sibility to the creditors of the corporation on the 3. The bond under the sheriff's act may be given to ground that he is the holder of unpaid stock. 4. the state. The amendatory act of March 14, 1859, Where there has been no transfer of stock by the aueffects no change of parties in the bond required. Af. thority of the stockholder, on the books of the corpo. firmed. Opinion by LEWIS, P. J.-State v. Lanham. ration, in accordance with the by-laws, the status of MUNICIPAL CORPORATIONS-NEGLIGENCE.-Where,

the stockholder remains unchanged. Affirmed. Opinin an action against a county for damages, it is appar. ion by LEWIS, P. J.-Andrew Wight Co. v. Steinke

meyer ent that the act complained of is either a negligent and wrongful way of repairing a county road, or an unanthorized trespass on private property, there can

ABSTRACT OF DECISIONS OF SUPREME be no recovery. In the latter case individuals only can be responsible, not the county. In the former the

COURT OF IOWA. county court was acting for the state and performing functions imposed by the general road laws. 2. Where

April Term (Dubuque), 1878. public duties are imposed by the state, and, in perform

HON. JAMES H. ROTHROCK, Chief Justice. ing such duties the officers act for the state, though

WM. H. SEEVERS, within particular districts, the district or municipality


Associate Justices. within which the work is done is not liable for dam

JOSEPH M. BECK, ages occasioned by the performance of the work. Re

AUSTIN ADAMS, versed and dismissed. Opinion by HAYDEN, J. Svineford v. Franklin County.

JUSTICE OF THE PEACE-JURISDICTION.-The fact REFERENCE-APPEAL FROM JUSTICE OF THE PEACE that in an information a crime is charged of which the -ASSIGNMENT OF JUDGMENT.-1. The fact that a justice has no jurisdiction will not, after judgment, cause was begun before a justice is no reason why it

be held to oust the justice of jurisdiction of a crime may not be referred to a referee when it reaches the of which he has jurisdiction. The former allegation circuit court on appeal. 2. In determining whether will be regarded as surplusage. Affirmed. Opinion an account is a proper subject for reference, it is not by SEEVERS, J.-State v. Silhofer. the number of the items so much as the multiplicity of IN AN ACTION FOR THE RECOVERY OF TAXES paid the issue that the court regards. 3. The power of ref.

by a tax sale purchaser, the statute of limitation comerence against the will of the parties must be cautiously

mences to run from the time of the payment, and not exercised, but the appellate court will not interfere

from the time when it was adjudged that the plaintiff with the action of the circuit court, unless there has

was not the owner of the land. 44 Ia. 368; 37 Ia. 452; been a clear abuse of its power, which is to some ex

41 Ia. 134; 45 Ia. 561. Opinion by ROTHROCK, C. J.tent discretionary in the matter. 4. The statutory

Secton v. Peck. method of assigning judgments is not exclusive. Affirmed. Opinion by HAYDEN, J.-Schmidt v. Rose.


when filed was not verified. The defendants did not PROMISSORY NOTE-LEX LOCI — NEGLIGENCE IN

verify their answer, and plaintiff filed a motion to LEAVING BLANKS-INTEREST.-In a suit on a note

strike it from the files. This motion was not pressed payable in this state, the contract is to be governed by

to a hearing, but was waived. Afterwards, the plainthe law of this state, and not by that of the state in

tiff, by leave of the court, verified the petition, and which the note was made and negotiated. 2. A preexisting debt, incurred by the payee of a negotiable

thereupon asked for a default and judgment, which note transferred before maturity, is a sufficient con

was granted. This action of the court was erroneous."

10 Ia. 590. Reversed. Opinion by SEEVERS, J.-Mal. sideration to support tke title; and, where the note was given, originally, in payment of the pre-existing

lory v. Sailing. debt, the person taking it before maturity takes it dis- PRACTICE-REQUISITE OF AFFIDAVIT OF DEFENSE. charged of any equities between the original parties to -An affidavit that the “defendant has a good and subthe paper. 3. Where blanks are carelessly left in a stantial defense to this cause upon the merits as depo. promissory note by the maker, and filled up by the nent verily believes from an examination of the recpayee before negotiating the note, this is no defense to ords and facts of this case,” is not a sufficient affidavit be note in the hands of a bona fide purchaser before of merits as required by section 2871 of the code. This maturity, who has no notice of the fact that the blanks is but a statement of opinion by affidavit. It should


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be a statement of facts that the court may determine therefrom the question of merits. Affirmed. Opinion by ROTHROCK, C. J.-King v. Stewart.

Tax SALES-DEED-RIGHT TO REDEEM.-Plaintiff, in October, 1872, purchased a tract of land at a tax sale. In October, 1874, the land was redeemed on application to the auditor, under the statute by one K. This action was brought against the county treasurer to set aside the redemption and compel the defendant to execute a tax deed to the plaintiff. Held, that the treasurer has no power to question the act of the auditor and to make a deed regardless of the redemption. Held, further, that the right to redeem can not be determined in an action against the treasurer. Affirmed. Opinion by ROTHROCK, C. J.-Hartman v. Anderson.


nant, 10 Cal. 249; Adams V. Adams, 2 C. E. Green, 324, 338. See, also, Yeatman v. Yeatman, L. R. 1 P. & D. 187; Lempriere v. Lempriere, L. R. 1 P. & D. 569, Opinion by GRAY, C. J.-Handy v. Handy.

TRUSTEES-ASSIGNEES IN BANKRUPTCY-PROMISSORY NOTES-CONSIDERATION.-1. At common law one of two or more co-trustees is not liable for the acts of his co-trustee in misusing or failing to account for moneys received under the trust. It is only when moneys have come to his own possession, or he has acted in or connived at the misuse of them by his associate, that he is held responsible. Ames v. Armstrong, 106 Mass. 15. 2. In the absence of express provision to the contrary, this principle applies to the case of co-assignees of bankruptcy, under the bankrupt law of the United States. 3. But when one assignee knows that his co-assignee has received funds wbich he has refused to deposit in one of the banks designated by the court, and has declined to state what disposition has been made thereof, he has the power, and it is his duty, in behalf of the creditors of the bankrupt, to institute proceedings which should look towards protecting their interest against the misconduct of his coassignee, and might result in his removal from office; and if, after instituting proceedings for this purpose, he refrains from pressing them to a result, in consid. eration of certain notes, signed by the co-assignee and indorsed by the surety, a jury would be warranted in finding he thereby so far assented to the acts of his co-assignee, and participated in his neglect of duty, as to make himself personally responsible for the moneys collected and received by him and not properly disposed of. 4. This would be a sufficient consideration to support an action upon the no‘es. Opinion by SOULE, J.-Abbott v. Fisher.

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November Term, 1877.

Hon. HORACE P. BIDDLE, Chief Justice.


Associate Justices.

MORTGAGE-ILLEGAL CONSIDERATION-REPLEVIN. -Where a defendant has taken possession of mortgaged property, in accordance with the terms of the mortgage executed to him by the plaintiff, the court will not assist the plaintiff to recover the property in an action of replevin upon the ground that the consideration of the mortgage was illegal. King v. Green, 6 Allen, 129. PER CURIAM-Dougherty v. Bouavia.

TRUST – MONEY DEPOSITED IN BANK. — The fact that money deposited by J. M, the plaintiff's intestate, was entered to the credit of "J. M. Trust.', is not conclusive evidence that be held it subject to a trust in favor of some other person, nor that some other person had any interest in it. Even if the deposit had been made and entered “In trust for A. B." it would have been open to proof by parol evidence that the money was, in fact, absolutely owned by the depositor, and thus deposited for convenience and without intent to give “A. B." any right or interest in it whatever. Brabrook v. Boston Five Cents Sav. Bank, 104 Mass. 228; Clark v. Clark, 108 Mass. 522. Opinion by SOULE, J.-Powers v. The Provident Inst. for Savings.

MASTER IN CHANCERY REPORTING THE EVIDENCE.-The duty of a master in chancery who is required to find and state facts in issue, or to state accounts between the parties, is discharged by a report of bis conclusions only, with a reference for details and items, if it be matter of account, to statements annexed. He may, when the rights of parties require it, state the facts regarded by him as sufficient to support his conclusions, in order to enable the court to judge of their correctness. But it is irregular without the order of the court to state the evidence at the request of either party. Adams Eq. 384. Opinion by COLT, J.- Nichols v. Ela.

DIVORCE — STATUTORY CAUSE — ADULTERY.-By Gen. Stats., ch. 107, $ 6, a sentence to imprisonment to hard labor in the state prison for five years or more is classed with adultery and other causes which are ground for a divorce from the bond of matrimony. When a man has been so sentenced, the right of his wife to apply for an absolute divorce is complete, and he is not entitled to a divorce for her subsequent. adultery. Hall v. Hall, 4 Allen, 39; Clapp v. Clapp, 97 Mass. 531; Nagel v. Nagel, 12 Mo. 53; Conant v. Co

DEED-PAROL AGREEMENT TO VARY. -1. A parol agreement that a deed, absolute on its face, shall stand only as security for a debt, is not void as being an at. tempt to create a trust by parol. 2. Where the grantee agrees to give a defeasance and after he has received the deed refuses to do so, chancery will relieve against the fraud and enforce the agreement. Opinion by PERKINS, J.-Butcher et al. v. Stultz et al.

MASTER AND SERVANT DISMISSED BEFORE ExPIRATION OF TERM.-Dismissal for cause before the expiration of the term does not operate as a rescission of the contract, so as to entitle the servant to sue upon a quantum meruit; but he must either sue upon the contract for the wages provided therein, or for damages for its breach, and in either event the limit of his recovery is the contract price, subject to such deduc. tions as the master is legally entitled to. Opinion by PERKINS, J.-Gazette Printing Co. v. Morse.

HUSBAND AND WIFE - UNRECORDED DEED. At common law the title to land passed by the delivery of the deed. Under the laws of Indiana the title passes by the delivery of the deed, subject to be divested by the negligence of the grantee in failing to have his deed recorded. The wife does not take title to real estate by a conveyance to her husband, but by operation of law through a conveyance to her husband; she must there. fore take it subject to all conditions and infirmities at.

taching to it in the hands of her husband. The conveyance is to him, and if, by failing to record it, his title is lost as against a bona fide purchaser from his grantor, the title of his wife must go with his. There would be no equity in giving him preference over such a purchaser. Opinion by PERKINS, J.-Alexander v. Herbert.



December Term, 1877.

[Filed May 15, 1878.]
Hon. W. W. JOHNSON, Chief Justice.


Associate Justices.

cause of action is alleged, some of whom are served in the county, and others reside and are served in another county than that where the suit is brought, the validity of the service of summons in such other coun. ty, and the jurisdiction of the court over the persons of the non-resident defendants depends upon the truth of the allegations of the petition. 3. Where the alle. gations of the petition upon its face make a case in which all the defendants are rightfully joined, and service is made on one or more in the county where suit is brought, and on the others in another county, the ques. tion of jursidiction of the court over the persons of the defendants served in such other county, must be raised by answer under sections 87 and 89 of the civil code. 4. Where the non-resident defendants file a motion to dismiss for want of jurisdiction over them, and support it by a verified answer, as provided by section 89 of the civil code, traversing the allegations of the petition by showing that such non-residents are not rightfully joined as defendants, the issue of fact thus presented, in an action for the recovery of a money judgment, is one which either party has a right to have tried by a jury. 5. In such a case it is error for the court without the assent of the parties to hear and determine this issue. Judgment reversed and cause remanded. Opinion by JOHNSON, C. J.-Drea o. Car. ington.



December Term, 1877.

[Filed May 14, 1878.) Hon. WILLIAM WHITE, Chief Justice.


Associate Justices. “ John W. OKEY,

TRESPASS INNOCENT PURCHASER— DAMAGES.Timber was cut from lands of B by trespassers, who, by their labor, converted it into cord wood and railroad ties, thus increasing its value three-fold. It was then sold to an innocent purchaser who was sued by B for the value of the wood and ties. Whatever might be the rule of damages, as against the wrong-doers, as against innocent purchasers, B can not recover the value of the timber as enhanced by the labor of the wrong-doers, after it was severed from the realty. Judgment reversed. Opinion by WRIGHT, J.-Lake Shore & M. S. R. R. v. Hutchins.

ASSIGNMENT FOR BENEFIT OF CREDITORS ACTION BY CREDITOR.-1. An assignment for the benefit of creditors devotes all the property covered by it to the creditors who have their claims allowed pursuant to the act regulating the administration of assignments, to the exclusion of those who do not. 2. In an action by a creditor whose claim has been duly allowed, on an assignee's bond for a failure to account for any of the property assigned, the amount of bis recovery can not be limited to an amount proportionate to the whole amount of the claims of all the creditors, including those not allowed as required by the statute; but the amount of recovery must be controlled by the proportionate amount of his claim to the whole amount of those only wbich have been presented and allowed pursuant to the statute. Judgment affirmed. Opinion by DAY, J.-Lahn v. Johnston.

PARTITION FENCE-LIABILITY TO REPAIR-STOCK KILLED BY RAILROAD.-1. Where a fence constructed by an individual land owner, serves as a partition fence between a railroad track and the enclosed fields of such individual owner, but not so divided that each owner is charged with maintaining in repair a distinct portion thereof, the railroad company and individual land ownerare each under equal obligations to keep and maintain the entire fence in repair until so divided. 2. If the land owner, knowing the partition fence to be out of repair, turns his stock into a field enclosed by such defective fence, and by reason of its insufficiency his stock goes upon the railroad track and is killed by a passing train run without negligence, such land owner is chargeable with contributory negligence, and can not recover for the loss. Judgment reversed. Opinion by ASHBURN, J.--Duyton & Mich. R. R. v. Miami Co. Infirmary.

ACTION FOR INJURY RESULTING IN DEATH-PRACTICE-DEFENDANT-RESIDENCE.-1. An action to recover damages under “An act requiring compensation for causing death by wrongful act, neglect or default” (2 S. & C. 1139), may be brought in any county in the state where the defendant or any one of the defendants resides or may be served. 2. In such case, where there are several defendants against all of whom good

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THE HUSBAND, AS BETWEEN HIMSELF and the creditors of the wife, is liable for her ante-nuptial debts, including partnership debts-the legislation of this state concerning the rights and liabilities of married women not having changed his common law liability in this respect. Opinion by GILMORE, J.-Alexander v. Morgan et al.

ATTACHMENT_RAILROAD COMPANY- TORT-GARNISHMENT.-1. An attachment will not be discharged on the ground that it appears from the answer of the garnishee that he is not indebted and has no property in his possession belonging to the defendant. 2. Where a railroad company agrees, for a consideration, to carry a passenger safely over its road, and by its negligence an injury results to the passenger, he may,

his election, sue upon the contract or in tort. 3. A railroad company incorporated under the laws of another state, operating a railroad in this state with the assent of the legislature, is liable to the process of garnishment prescribed by section 200 of the code of civil procedure, and such process may be served as upon domestic corporations. Opinion by BOYNTOX, J.-Pennsylvania R. R. v. People.

CHATTEL MORTGAGE-AFFIDAVIT. -1. The affidavit required by the statute, to be entered on a chattel mortgage need not be made in any particular form. If the aflidavit contains the requisite facts, the form in which they are stated is immaterial. 2. Where the affidavit refers to matters contained in the mortgage, the matters thus referred to are to be regarded as part of the affidavit. 3. A mortgage was given to secure i he mortgagee against his liability on a note as surety for the mortgagor; also, to secure the payment of a note held by the mortgagee against a third person. The affidavit showing the nature and amount of the liabil

D. M. VALENTINE, } Associate Justices.

ity of the mortgagee as surety as well as the amount Held, the taxation of costs in this case to Allen county due on the note held by him, and that the mortgage was erroneous. Opinion by HORTON, C. J. Reversed. was executed in good faith to secure the payment of All the justices concurring.-State v. Campbell. both notes. Held, that the affidavit is sufficient, although the statement "in dollars and cents, con

JURORS—MANNER OF EMPANELING.-1. While untained in the affidavit is the aggregate amount of both

der section 5 of chapter 104 of the laws of 1876, a court notes. Judgment reversed. Opinion by WAITE, C.J.

should require the attendance of a regular panel of at -Gardner v. Parmalee.

least twelve jurors, yet if by legitimate and proper excuse that panel be reduced slightly below that number,

the court is not compelled to delay the trial of any ABSTRACT OF DECISIONS OF SUPREME case until the requisite machinery can be set in motion COURT OF KANSAS.

and made effective for drawing and summoning the

deficient number, but may proceed under section 6 of January Term, 1878.

said act to supply the requisite jurors. 2. Where, unHon. ALBERT H. HORTON, Chief Justice.

der said section 6, the court, at the request of a party,

named certain jurors, and such jurors enter the jury J. BREWER,

box ready for service as jurors, a failure to issue a PRACTICE IN SUPREME COURT - CASE MADE.

formal venire to compel their attendance is no subWhere by amendments to a case made allowed by the

stantial error. 3. In naming jurors under said seccourt a certain series of instructions and certain doc

tion, the court is not bound to send for or examine the umentary testimony referred to, but not written out, are

assessment roll. Opinion by BREWER, J. Affirmed.. directed to be inserted, and such series of instructions

All the justices concurring.-Trembly v. The State. and testimony are not incorporated into the record are ADMINISTRATOR'S NOTE AND MORTGAGE.-1. D, the brought to this court, but in lieu thereof appears the head of a family, settled upon a quarter section of statement of the clerk that he can not find them: Osage land, intending to enter it, but died before payHeld, tbat upon a record so incomplete no error can be ment and final entry, leaving minor heirs. M was appredicated as to any ruling or decision which might in pointed administrator of the estate and guardian of any manner directly or indirectly be affected by such the heirs. As administrator he applied for and obabsent matter. Opinion by BREWER, J. Affirmed. tained from the probate court in order to borrow All the justices concurring.- Peifer 0. The Union

money by mortgage upon this quarter section to make Evangelical Church.

the payment. As adminsistrator he executed a note JUSTICE OF THE PEACE PRACTICE AMEND

and mortgage to C for the money which he borrowed. MENTS.-1. A justice of the peace has the power in the

and used in entering the land in the name of the heirs.. furtherance of justice to permit the amendment of a

Held, that such mortgage was without any legal aubill of particulars by striking out the name of a party

thority and void, and that in the absence of any alleplaintiff and substituting the name of another party as

gation of fraud, misrepresentation or mistake, no deplaintiff, and when the grounds of such amendment cree of foreclosure could be rendered thereon, and that are not disclosed in the record, no error lies on account

the heirs were not estopped to plead its invalidity by thereof. 2. A justice may correct the entry of judg.

reason of the benefit resulting to them from the purment by substituting the name of the party in whose

chase of the land. Opinion by BREWER, J. Affirmed.. favor the verdict was returned and in whose name the All the justices concurring.-Blach v. Jackson. proceedings are bad in place of another name errone- INFORMATION FOR SELLING LIQUOR — SEPARATE. ously entered therein. Opinion by BREWER, J. Al- OFFENSES.-1. Two complaints were filed charging firmed. All the justices concurring.-Hamlin v. Bax- defendant with selling liquor without license, to the ter.

same person at the same place, but on different days. PETITION-PRACTICE. -1. The function of a peti

about a week apart. He pleaded guilty to the first and tion is not the narration of the evidence, but a state- was sentenced, and then plead this conviction in bar ment of the substantive facts upon which the claim for

of the second prosecution. The prosecuting witness relief is founded, and a motion to make more definite was sworn, and, over defendant's objection, testified and certain the allegations of the petition can be sus

that there were the two sales on the two days named tained only when the precise nature of the charge is

in the complaints: Held, no error; that upon the face not apparent. 2. Whatever may have been the old of the complaints two separate offenses appear to be equity practice under the code in an action for relief charged, and that, while the matter of exact time may on the ground of fraud, the circumstances under be immaterial, so that under such complaint either which the fraud was discovered do not constitute any offense might be proved, and, in fact, in consequence part of the cause of action, and need not be stated in of the plea of guilty, no testimony was offered on the the petition, even where a discovery must be alleged trial of the first complaint, proof was admissible on the to avoid the apparent bar of the statute of limitations.

trial of the second of the exact time of the two offenses, Opinion by BREWER, J. Reversed. All the justices and the plea to the first will be considered as made to. concurring. Kas. Pac. Rly Co. v. McCormick.

the offenses committed on the very day named therein

and the conviction a bar to prosecution for only that Costs in CRIMINAL CASES.-1. Where A is arrested

offense. Opinion by BREWER, J. Affirmed. All the for a willful disturbance of the peace, under section

justices concurring.--State v. Shafer. 253, Gen. Stat. 373, on the complaint of B, and on the trial before a justice, A is convicted of the offense, and

PROCEEDINGS IN ERROR IMPROPER IN CRIMINAL thereupon appeals the case to the district court, and CASES.-1. In a criminal a. tion for assault and battery, afterwards the county attorney, with consent of the appealed from a justice's court to the district court, prosecuting witness, and by leave of the court, enters the district court adjudged, upon an acquittal of the a nolle prosequi in the case, and the defendant is dis- defendant that the prosecuting witness should pay the charge. Held, that B, the prosecuting witness, is not costs. No appeal was ever taken from the district liable for costs. 2. As costs are unknown to the com- court to the supreme court. But the prosecuting witmon law and are only given by statutory direction, ness made a case for the supreme court under the proand as there is no provision of the statute requiring visions of the code of civil procedure, and brought the the county, where the alleged offense is committed, to case to the supreme court on such “case made" and pay the costs or fees in a criminal action of the char- on petition in error. No appearance was ever made in acter above stated and disposed of as this one was: the supreme court by either the county attorney or the

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