doctrine of the cases that have been cited, that this court will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is, in many cases, as strong as using terms of encouragement. Still, it must be put upon the party to prove the case by strong and cogent evidence, leaving no reasonable doubt that he acted upon that sort of encouragement. It is upon the plaintiff to prove, not merely to raise a probable conjecture, but to show, upon highly probable grounds, a case of bad faith and bad conscience against the defendant." Lord Romilly, as master of the rolls, had the question before him repeatedly, and thus states the law: "The principle on which the defendants rely is one often recognized by this court, namely: that if one man stand by and encourage another, though but passively, to lay out money under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the court will not permit any subsequent interference with it by him who formally promoted and encouraged those acts of which he now complains, or seeks to obtain the advantage. "This is is the rule," he adds, “laid down in Dana v. Spurrier, 7 Ves. 231; Powell v. Thomas, 6 Hare, 300, and many other cases, to which it is unnecessary to refer, for the principle is clear." Rochdale Canal Co. v. Sling, 16 Beav. 634; Duke of Devonshire v. Eglin, 14 Beav. 530; Duke of Beaufort v. Patrick, 17 Beav. 75; Mold v. Wheatcroft, 27 Beav. 510. Two of these cases involved the carrying of water across the land of another, and the last the running of a tramway and railroad across the land; and, in the cases in 16 and 17 Beavan, the bills were filed after recovery at law. To the same effect is Somersetshire Coal Canal Co. v. Harcourt, 2 De G. & J. 608. “A party," says Lord Cottenham, may so encourage that which he complains of as a nuisance, as not only to preclude himself from complaining of it in equity, but to give the adverse party a right to the interposition of a court of equity in the event of his complaining of the nuisance at law.” Williams v. Earl of Jersey, Cr. & Ph. 97.

66

66

The American authorities are in accord, so that the editors of the American Leading Cases feel themselves justified in thus condensing the result: "A writing is indispensably requisite under the provisions of the statute of frauds, whenever an estate or interest in land is to be affected, unless the circumstances are such that a refusal to execute the agreement would operate as a fraud. 2 Amer. Lead. Cas. 558. And the American cases have announced two conclusions in the matter of licenses, touching realty, which commend themselves to our sense of morality and justice. The first is that expressed by Judge Gibson in Swartz v. Swartz, 4 Barr, 358: "When the revocation of a license would operate as a fraud, a chancellor will turn the licensor into a trustee ex maleficio for the licensee, on principles analogous to those which apply when the owner of land stands by and allows another person to make improvements on it, under the belief that he will be allowed to reap

IMPLIED WARRANTY ON SALES OF
CHATTELS.

"The maxim of the common law, caveat emptor, is the general rule applicable to sales, so far as quality is concerned. * So far as an ascertained specific chattel, already existing, and which the buyer has inspected, is concerned, the rule of caveat emptor admits of no exception by implied warranty of quality." Benj. on Sales, sec. 644.

The application of the foregoing rule to sales of stock, municipal bonds, etc. (if it is applicable), is a matter of some interest to the profession. It is not easy to formulate a rule, but we would call attention to the following cases: Otis v. Cullom, 92 U. S. 447, was a case of this character. The city of Topeka issued bonds, some of which were purchased by a bank in that city. The bank sold some of these bonds to Otis, and received payment. Afterwards, it was decided that the bonds. were invalid, the city having no authority to issue them. Whereupon, Otis sued the bank for the consideration paid by him for the bonds purchased as aforesaid. The court held: (1) that, as the bank gave no warranty, it can not be charged with a liability it did not assume; (2) that the vendor of such securities is liable ex delicto for bad faith, and ex contractu there is an implied warranty on his part that they belonged to him, and are not forgeries. Where there is no express stipulation, there is no liability beyond this.

Glass v. Reed, 2 Dana (Ky.), 168, was a case where the plaintiff recovered a judgment, and sold and assigned it, the purchaser giving his note for the price agreed on. Afterwards, the defendant in the case had the judgment reversed. The purchaser attempted to resist payment of his note, because of the reversal of the judgment; but the court held there was no implied warranty that the judgment was irreversible.

The same principle has been applied in sales of patents for inventions. The rule there is, that a bare assignment of territory implies only that the assignor has a patent in due form, issued by the proper officers of the government, not that. the patent is a valid one. Curtis on Patents, sec. 184; Benj. on Sales, sec. 632; Cansler v. Eaton, 2 Jones Eq. (N. C.) 499.

In cases where the note of a third party is ex

changed for other property, there is no implied warranty that the maker of the note is solvent. Burges v. Chapin, 5 R. I. 225 and 230. The same rule applies in sales of stock in a corporation. Beeker v. Hasting, 15 Mich. 47; Renton v. Marryatt, 21 N. J. Eq. 123.

We take it for granted that these cases are decided upon the principle in the law of sales, that, generally, the law implies no warranty by the seller of the quality or character of the thing sold. The application of this principle, however, to franchises, like patents, and to municipal bonds, as in Otis v. Cullom, may be said to be new to the profession W. C. Jr.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1877.

FIRE INSURANCE-LOSS CAUSED BY PETROLEUMCONDITION IN POLICY.-Action upon two policies of insurance against fire, issued by the defendants to the plaintiffs below, an express company, and covering goods, wares, and merchandise in their care for transportation, while on board cars, or other conveyances, including water and stage routes, embracing the entire routes of the company designated on a map specified. The policies, though differing in the sums insured, were alike in all other particulars, and contained the following clause: "It is a further condition of this insurance, that no loss is to be paid in case of collision, except fire ensue, and then only for the loss and damage by fire. And that no loss is to be paid arising from petroleum or other explosive oils." By a collision between a disabled train containing petroleum and an express train, upon which the express company had goods, the petroleum was ignited and burned, and with it the goods. The petroleum did not belong to the company, and was not under its control. Held, that the loss of the goods was caused by the petroleum, and the insurance company was, under the clause in the policy, exempted from liability therefor. Imperial Fire Ins. Co. v. Fargo. In error to the Circuit Court of the United States for the Southern District of New York. Opinion by Mr. Justice STRONG.-Judgment reversed.

OF

CORPORATIONS - EVIDENCE OF OWNERSHIP STOCK-EVIDENCE-RECORD OF BANKRUPT COURT.Where the name of an individual appears in the stockbook of a corporation as stockholder, the prima facie presumption is, that he is the owner of the stock. In a case where there is nothing to rebut the presumption, and in an action against him as stockholder, the burden of proving that he is not such is cast upon the defendant. Hoagland v. Bell, 36 Barb. 56; Turnpike Road v. Van Ness, 2 Cranch, C. C. 451; Mudgett v. Morrell, 83 Cal. 29; Coffin v. Collins, 17 Me. 442: Merrill v. Walker, 24 Id. 237; Plank Road v. Rice, 7 Barb. 162. The receipt of dividends is conclusive evidence of ownership. Records of a bankrupt court in the Northern District of Illinois, authenticated in conformity with the provisions of the bankrupt act, held admissible in an action in the United States District Court in Maryland, by the assignee of a bankrupt corporation, against a stockholder, for contribution to pay the debts of the company. It is not necessary that the record of a judgment should be authenticated as provided by the act of Congress passed in pursuance of article 4, section 1, of the Federal constitution, to render it admissible in the courts of the United States; and the District Court of the United States, even out of the state composing the district, is to be regarded as a domestic and not a foreign court, and the records of the court may be proved

by the certificate of the clerk, with the seal of the court, without the certificate of the judge. Adams v. Way, 33 Conn. 430; Michener v. Payson, 13 N. B. R. 50; Mason v. Lawrason, 1 Cranch, C. C. 190. Turnbull v. Payson, Assignee. In error to the Circuit Court of the United States for the District of Maryland. Opinion by Mr. Justice CLIFFORD.-Decree affirmed.

CONSTITUTIONALITY OF STATUTE PRESCRIBING MODE OF SERVICE OF PROCESS UPON A CORPORATION.-"The single question presented by this record is, whether a statute which prescribes a mode of service of judicial process upon the Cairo and Fulton Railroad Company different from that provided for in its charter, is void because it impairs the obligation of a contract. The regulation of the forms of administering justice by the courts is an incident of sovereignty. The surrender of this power is never to be presumed. Unless, therefore, it clearly appears to have been the intention of the legislature to limit its power of bringing this corporation before its judicial tribunals to the particular mode mentioned in the charter, the subsequent legislation upon that subject was not invalid. The provision of the charter relied upon is in these words: 'Process on said company shall be served on the president by leaving a copy to his address, at the principal office of the corporation, in the hands of any of its officers. The said corporation shall have power to establish a principal office at such place as they may see fit, and the same to change at pleasure.' As against the government, the word 'shall,' when used in statutes, is to be construed as 'may,' unless a contrary intention is manifest. Here no such intention appears. The largest latitude is given the company in respect to the location of its principal office, and it can hardly be supposed that the legislature meant to deprive itself of the power of providing another mode of service if that specified was found to be inconvenient or unwise. The provision is one which evidently belongs to remedies against the corporation and not to the grant of rights. As to remedies, it has always been held that the legislative power of change may be exercised when it does not affect injuriously rights which have been secured.Sturgis v. Crowninshield, 4 Wheat. 200." Cairo and Fulton Railroad v. Hecht, et al. In error to the Supreme Court of Arkansas. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.

PROMISSORY NOTE INDORSEMENT OF BY STRANGER BEFORE DELIVERY.-1. When a promissory note, made payable to a particular person or order, is first indorsed by a third person, such third person is held to be an original promisor, guarantor or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. (a) If he puts his name in blank on the back of the note at the time it was made and before it was indorsed by the payee, to give the maker credit with the payee, or if he participated in the consideration of the note, he must be considered as a joint maker of the note. Schneider v. Schiffman, 20 Mo. 571; Irish v. Cutler, 31 Me. 537. (b) But if his indorsement was subsequent to the making of the note, and to the delivery of the same to take effect, and he put his name there at the request of the maker, pursuant to a contract of the maker with the payee for further indulgence or forbearance, he can only be held as guarantor, which can only be done where there is legal proof of consideration for the promise, unless it be shown that he was connected with the inception of the note. (c) But if the note was intended for discount and he put his name on the back of the note with the understanding of all the parties that his indorsement would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser, in the commercial sense, and

as such would clearly be entitled to the privileges which belong to such an indorser. 2. The presumption, where such an indorsement is made in blank, is, that the party is liable as maker or guarantor. 3. Where the party is held as a promisor or a second indorser, it is not necessary to allege or prove any other than the original consideration, but if it is attempted to hold him as guarantor, a distinct consideration must appear. Good v. Martin. In error to the Supreme Court of the Territory of Colorado. Opinion by Mr. Justice CLIFFORD. Judgment affirmed.

LIFE INSURANCE CONDITION IN POLICY SUICIDE-INSANITY—“ JUST CLAIM."-1. By a clause of a policy of life insurance, which was conditioned to be void if the one whose life was insured should die by his own hand, it was provided that, before demanding payment in case of death, due and satisfactory proof should be made to the company of death and of the just claim of the assured. Held, that the "just claim" of the assured had reference to the title or claim to the policy, and not to the justness of the cause of action thereon, and proof that death had occurred by suicide did not render the proof unsatisfactory. The following instruction, as to the degree of insanity, which will excuse a suicide so as to make the company liable, held correct (following Life Ins. Co. v. Terry, 15 Wall. 580). "It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable; to do this, the act of self-destruction must have been the consequence of insanity, and the mind of the deceased must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act which he was about to do, the company is liable. On the other hand, there is no presumption of law, prima facie or otherwise, that selfdestruction arises from insanity; and you will remember a great many jurors were excused from the panel because they thonght the law was otherwise; therefore you will bear in mind that there is no presumption, prima facie or otherwise, that self-destruction arises from insanity; and if you believe from the evidence that the deceased, although excited, or angry, or disturbed in mind, formed a determination to take his own life, because in the exercise of his usual reasoning faculties he preferred death to life, then the company is not liable, because he died by his own hand, within the meaning of the policy. If the insured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches and there can be no recovery; that is, he did die by his own act. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, and when his reasoning faculties are so far impaired that he shall not be able to understand the moral character or the general nature, consequence, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not in the contemplation of the parties to the contract, and the insurer is liable." 3. If there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and indeed could not properly take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon. The judge may express his opinion on the subject, and in cases where the jury are likely to be influenced by their prejudices, it is well for him to do so; but it is

entirely in his discretion. Drakely v. Gregg, 8 Wall. 242; Hickman v. Jones, 9 Ib. 197; Barney v. Schneider, Ib. 248; Brown v. Lozalere, 44 Mo. 383; Roustong v. Railroad Co., 45 Ib. 236; McFarland v. Bellows, 49 Ib. 311; Consequa's Case, Peters' C. C. Rep. 225; McLanahan v. Ins. Co., 1 Pet. 170; Tracy v. Swartwout, 10 Pet. 80; Gaines v. Dunn, 14 Pet. 322; Mitchell v. Harmony, 13 How. 131; 9 Pet. 541; 2 Pet. 137. Charter Oak Life Ins. Co. v. Rodel. In error to the Circuit Court of the United States for the Eastern District of Missouri. Opinion by Mr. Justice BRADLEY. Judgmeut affirmed.

COMMON CARRIERS DELIVERY TO CONNECTING CARRIER.-There is a complete delivery to a connecting carrier when the goods are deposited within the control of the carrier. The facts in this case were as follows: The G. railroad company, under a contract, occupied for the unloading of goods brought by it to D. a section of a depot owned by the M. railroad company, a connecting carrier. The goods were handled by the employees of the M. railroad company, clerks of the G. company merely keeping tally. When goods were designed for delivery to the M. company, they were placed in a specified part of the section, a transcript of their description was taken by the M. company's clerk from the way-bills of the G. company, and they were thereafter cared for by the M. company. Held, to constitute delivery to the M. company, and the G. company were not thereafter liable for their loss. If the liability of the succeeding carrier had attached, the liability of the defendant was discharged. Ransom v. Holland, 59 N. Y. R. 611; O'Neil v. N. Y. Central, 60 Ib. 138. The question, therefore, is, had the duty of the succeeding carrier commenced when the goods were burned? The liability of a carrier commences when the goods are delivered to him or his authorized agent for transportation and are accepted. Rogers v. Wheeler, 52 N. Y. 262; Grosvenor v. N. Y. Central, 59 Ib. 34. If a common carrier agrees that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit amounts to notice and is a delivery. Merriam v. Hartford R. R. Co., 24 Conn. 354; Converse v. N. & N. Y. Tr. Co., 33 Ib. 166. The liability of the carrier is fixed by accepting the property to be transported, and the acceptance is complete whenever property thus comes into his possession with his assent. Illinois R. R. Co. v. Smyser, 38 Ill. 354. If the deposit of the goods is a mere accessory to the carriage, that is, if they are deposited for the purpose of being carried, without further orders, the responsibility of the carrier begins from the time they are received, but when they are subjected to further order of the owner, the case is otherwise. Ladere v. Griffith, 25 N. Y. 364; Blossom v. Griffin, 13 Ib. 569. Wade v. Wheeler, 47 Ib. 658; Michigan R. R. v. Schurlz, 7 Mich. 515. The same proposition is stated in a different form when it is said that the liability of a carrier is discharged by a delivery of the goods. If he is an intermediate carrier, this duty is performed by a delivery to the succeeding carrier for further transportation, and acceptance by him. Merriam v. Hartford R. R. Co. and Converse v. N. & N. Y. Tr. Co., supra, are in point. In the latter case a railroad company and a steamboat company had a covered wharf in common, at their common terminus, used as a depot and a wharf, and it was the established usage for the steamboat company to land goods for the railroad, on the arrival of its boats in the night, upon a particular place in the depot, whence they were taken by the railroad company, at its convenience, for further transportation, both companies having equal possession of the depot. There was no evidence of an actual agreement that the goods deposited were in the possession of the railroad company, and the goods in question had not been in the manual possession of the railroad company when

they were destroyed by fire on the Sunday afternoon following their deposit on the previous night. It was held that there was a tacit understanding that the steamboat company should deposit their freight at that particular spot, and that the railroad should take it thence at their convenience. The delivery to the succeeding carrier was held to be complete, and a recovery against the first carrier for the loss of the goods was reversed. In Merriam v. Hartford, it was held that, if a common carrier agree that property intended for transportation by him may be deposited in a particular place without express notice to him, such deposit alone is a sufficient delivery; and that such an agreement may be shown by a constant practice and usage to receive property without special notice. Pratt v. Grand Trunk R. R. In error to the Circuit Court of the United States for the Eastern District of Michigan. Opinion by Mr. Justice HUNT. Judgment affirmed.

NOTES OF RECENT DECISIONS.

PURCHASE OF NOTES BY NATIONAL BANKS.-First National Bank of Rochester v. Pierson. Supreme Court of Minnesota, 16 Alb. L. J. 319. Opinion by CORNELL, J. The purchase of a promissory note by a national bank, for purposes of speculation, is ultra vires, and the bank acquires no title to and cannot recover on a note so purchased. Farmers and Mech. Bank v. Baldwin, 4 Cent. L. J. 119, followed.

MUNICIPAL CORPORATIONS-NO RECOVERY CAN BE HAD BY A CONTRACTOR ON A QUANTUM MERUIT.Addis v. City of Pittsburg. Supreme Court of Pennsylvania, 4 W. N. 529. Opinion by SHARSWood, J. Where the law requires that all municipal work of a certain character shall be performed under contract let to the lowest and best bidder after due advertisement, no recovery can be had for work done in any other manner; and neither the municipality nor its subordinate officers can make a binding contract for such work except in compliance with the requirements of the law.

PROMISSORY NOTES-AUTHORITY OF PARTNER TO BIND THE FIRM FOR AN INDIVIDUAL DEBT.-Riegel v. Irvin. Supreme Court of Pennsylvania, 4 W. N. 537. PER CURIAM. A. B. C. & D., being in partnership under the firm name of "A. B. & Co.," became indebted to R. Subsequently I. purchased the interest of B. & C., and the firm continued under the name of "A. I. & D." A. paid the indebtedness to R. with a note drawn to the order of the old firm, adding in his own handwriting the endorsements of both firms. In an action by R. against A. I. & D., in which judgment by default was obtained against A. and D, held, in the absence of evidence of I.'s assent to the second indorsement, that R. could not recover against him.

EMINENT DOMAIN-MEASURE OF DAMAGES FOR LAND TAKEN ADVANTAGES ACCRUING TO ADJOINING BUT SEPARATE TRACT BELONGING TO THE SAME OWNER, NOT AN ELEMENT OF COMPUTATION.-Harrisburg & Potomac Railroad v. Moore. Supreme Court of Pennsylvania, 4 W. N. 532. PER CURIAM.In the computation of damages for land taken by a railroad company, the law has regard only to the tract of land through which the railroad is located, considered as a whole, and not to the person of the owner. Advantages accruing to an adjoining but separate tract, owned by the same person, but not cut by the railroad, can not be taken into consideration in assessing damages for the property actually taken.

LIABILITY OF CARRIERS OF ANIMALS.-Mynard v. S. B. & N. Y. R. R. New York Court of Appeals, 16 Alb. L. J. 471. Opinion by CHURCH, C. J. 1. Plaintiff shipped animals by railroad under a contract whereby he agreed to release and discharge the railroad com

pany "from all claims, demands and liability of every kind whatsoever, for or on account of or connected with any damage or injury to or loss of said stock, or any portion thereof, from whatsoever cause arising." Held, that the contract did not release the company from liability for loss resulting from the negligence of its servants. 2. A carrier of animals is excused from liability for loss caused by the inherent tendencies or qualities of the animals, but beyond this the commonlaw liabilities exist against him the same as against the carrier of any other kind of property.

BOOK NOTICE.

A Digest of the Law of Trade-Marks, as Presented in the Reported Adjudications of the Courts of the United States, Great Britain, Ireland, Canada and France, from the earliest Period to the Present Time, etc. By CHARLES E. CODDINGTON, Counselor at Law. New York: Ward & Peloubet. 1878.

The law relating to trade-marks is decidedly modern, and the decisions of the courts few in number. Although the first reported case arose near the middle of the sixteenth century, for over a hundred and fifty years, only six cases are to be found reported. After the year 1805, the number of decisions reported during each decade, in Great Britain and the United States, is as follows: From 1805 to 1815, inclusive, 3; 1815 to 1825, 5; 1825 to 1835, 6; 1835 to 1845, 13; 1845 to 1855, 46; 1855 to 1865, 104; 1865 to 1875, 168. From this, it will be seen that, although the first trade-mark case was decided nearly three hundred years ago, ninetenths of the decisions upon this topic have been made within the last thirty years, and more than half of them since the year 1865. Up to the date of the publication of this volume, there have been reported 170 cases decided in the Courts of Great Britain, Ireland and Canada, 178 in the Courts of the United States, and about an equal number in the French courts.

The ground on which the courts protect trade-marks is, that they will not permit a party to sell his own goods as the goods of another. Instead, it is now said, of being founded upon the theory of protection to the owner, it is supported to prevent frauds upon the public. If the use of any words, numerals or symbols is adopted for the purpose of defrauding the public, the courts will interfere to protect the public from such frauds, even though the person asking relief may not have the exclusive right to the use of such words or symbols. This is broadly the ground on which courts take jurisdiction in these cases. To this rule there are the limitations laid down in Delaware & Hudson Canal Co. v. Clerk, 13 Wall. 311, where it is said that no one can claim protection for the exclusive use of a trademark, which would practically give him a monopoly in the sale of any goods, other than those produced or made by himself. Nor can a generic name, or a name merely descriptive of an article of trade, or of its qualities, ingredients or characteristics, be employed as a trade-mark, and the exclusive use of it be entitled to legal protection.

A casual examination of the cases contained in this digest would show a conflict apparently unintelligible. The reason for this, is the ground stated in the previous paragraph, and the fact that what is proper for the court to order depends in each case upon its circumstances. This, and this only, explains why the court, in Newman v. Alvord, 51 N. Y. 189, extended its protection to the geographical name "Akron," applied to cement, while in Iron Co. v. Uhler, 75 Penn. St. 467, it refused its protection to the geographical name "Glendon," applied to iron; why it protected "Worcestershire" applied to sauce, in Rea v. Wolf, 15 Abb. Pr. 1, and "Glenfield," as applied to starch, in Wotherspoon v. Currie, 27 L. T. (N. S.) 393, while it

refused to protect "Lackawanna," as applied to coal, in Delaware & Hudson Co. v. Clark, 13 Wall. 31; why it protected the word "St. James," when applied to cigarettes, in Kinney v. Basch, and would not protect the word "Durham," when applied to tobacco, in Blackwell v. Wright. And this, also, makes a digest of the cases on this subject of great value, perhaps of more value to the practitioner than a treatise.

The volume contains over 500 pages, with a table of cases and a good index. The digest of French decisions, has been prepared by Francis Forbes, Esq., of the New York bar. An appendix contains the United States Statutes; the treaties of the United States concerning trade-marks, and the rules and forms of the United States patent office for their registration. The recent treaty between Great Britain and this country is, however, not given, having been signed since this volume went to press. Its provisions have been referred to in this journal, and will be found in 6 Cent. L. J. 20. The only criticism which we can make on the author's work is, that in several instances we find cases digested and referred to us as "not yet reported," which are to be found in previous volumes of this and other legal periodicals.

ALTHOUGH THERE BENO APPEARANCE for a defendant charged with crime, in this court, upon appeal or writ of error, the Supreme Court will examine the record in the cause. Opinion by SHERWOOD, C. J.-State v. Smith.

INDICTMENT-Writ of ERROR.-In criminal prosecutions, the state is not entitled to a writ of error in any case, and is only entitled to appeal in the manner and subject to the restrictions imposed by the statute. The State v. Newkirk, 149 Mo. 472, and The State v. Peck. 51 Mo. 111, are expressly overruled. Opinion by SHERWOOD, C. J.-State v. Copeland.

TOWNSHIP ORGANIZATION ROAD LAW. - The power of a road-overseer in the matter of taxation for road purposes, is limited by law, and by the amount of tax assessed by the township board of directors. The overseer has no power to incur debts for the township, or collect any additional amount either in work or money, beyond the amount so limited. Opinion by SHERWOOD, C. J.-Ewell v. Virgil Township.

DOWER-PARTIES-PRACTICE.- Where a widow brought suit for assignment and admeasurement of dower against a purchaser of part of the land, who acquired it from the husband and against her children as to the other portion in the same suit, it is too late, after verdict and judgment, on a motion in arrest, to raise the objection that the petitioner states two distinct causes of action, one of which is against the purchaser, and the other against the heirs. 2 Wag. Stat. 1015, § 1012; Daily v. Huston, 58 Mo. 361; Pomeroy v. Benton, 57 Mo. 531; Pac. R. R. Co. v. Watson, 61 Mo. 57. Nor does the fact that the widow married again before judgment entered, and that the same was entered in her name without joining the husband, affect the rights of defendant, or necessitate a reversal of the judgment. W. S., p. 1034, § 52; W. S., p. 1067, § 33. Opinion by SHERWOOD, C. J.-Mead v. Brown.

ACTION ON OFFICIAL BOND OF COAL OIL INSPECTOR FOR DAMAGES OCCASIONED BY EXPLOSION OF COAL OIL LAMP.-The statute requires the inspector's bond to be "conditioned for the faithful performance of the

duties imposed by the act," and such bond is "for the use of all persons aggrieved by the acts or neglect of such inspector." The petition averred that the inspector in default and breach of the conditions of his official bond, branded 100 empty casks as "approved,” that the casks belonged to Cobb & Co., who afterwards filled them with oil below test; that the inspector refused to inspect the same; that Cobb & Co. sold one of these casks to O'Connell, a grocer, who sold a gallon of the oil to the relator's family, and that a lamp filled therewith, exploded, causing the death of relator's wife, etc. To this petition a demurrer was sustained, we think, improperly. The petition states a good cause of action against the inspector and the sureties on his official bond, which is not affected by the fact that the manufacturers, Cobb & Co., were also liable under sec. 4 of the same chapter, and the judgment is reversed and the cause remanded. Opinion by SHERWOOD, C. J.-The County Court of St. Louis County to the use of Jenks v. Fassett, et al.

INVALID JUDGMENT-RATIFICATION.-A judgment by confession entered without the knowledge or consent of the judgment-creditor, is invalid for all purposes, either as a lien, an estoppel, or a merger of the demand, unless ratified by such creditor. But if he afterwards accepts and ratifies it, it then becomes valid and attended with all the results incident to other judgments. Opinion by BIDDLE, J.-Haggerty et al. v. Juday.

DURESS-USURIOUS INTEREST-RECOUPMENT.-1. A certain degree of duress may excuse what would otherwise be a criminal act; a less degree may be cause for avoiding a contract. But where a creditor gave to his debtor, laboring under pecuniary embarrassment, the alternative of being sued in a legal mode for a debt, or giving his notes and mortgage for it, and the debtor so gave his notes and mortgage, there was neither duress nor fraud. 2. Where ten per cent. interest is charged for the use of money, there being no express contract, the excess over six per cent. may be recouped under the statute. Opinion by PERKINS, J. Snyder et al. v. Braden. WILL-DESCENT.-Palmer died in April, 1875, leaving a will which devised to Mary Prather, his grandchild, certain real estate. The devisee, Mary, died two months prior to the death of said Palmer, leaving a husband and son surviving her. The husband claimed one-third of the property, under sec. 13 of the statute of wills, and sec. 22 of the statute of descent. Held, the real estate never vested in Mary, but remained Palmer's until his death, when, by virtue of the will, it passed to the descendants of Mary Prather. As the title to the property never vested in Mary Prather, her husband could not take any part of it as her heir or husband, and as he was not a descendant from her, he could take no part under the will. Opinion by PERKINS, J.-Prather v. Prather.

USURIOUS INTEREST-RECOUPMENT.-The act of March 9th, 1861, repealed by implication so much of the act of March 7th, 1861, as prohibited the recoupment of usurious interest; but the prohibition, in the latter act, of a direct action for the recovery back of usurious interest voluntarily paid, has not been repealed, and is still a part of the law. And where an action