average legal mind into a wilderness of speculation and doubt, from which it is fortunate if he escape without a severe headache. Malice is a condition of the mind; and whether that condition of the mind existed at the time of the killing is a question of fact, and may be proved by direct evidence, as by a witness who heard the slayer express his purpose, or by circumstantial evidence, as by proving the means employed, the weapon used, or other facts which tend to show the intent and purpose with which the act was done, just like any other fact in the case may be proved, by proving the circumstances preceding and accompanying the act. Mr. Wharton, in his valuable work on Homicide, 2d ed., section 30, says: "When one person kills another with a sedate, deliberate mind and formed design, malice is said to be express. Of this the usual evidence is circumstantial; such, for instance, as lying in wait, antecedent menaces, former grudges and concerted schemes to do the party some bodily harm." "But even though no circumstances, prior in date to the fatal act, are in evidence from which malice may be inferred, yet the character of the injury often supplies means from which such inferences may be made."

Again, in speaking of intent, section 32, Mr. Wharton says: "No human gauge existing by

which duration of intent can be measured, we are obliged to resort for this purpose to the same probable reasoning by which the existence of intent is proved. A shoots B in the public streets, without authority and without provocation. As reasonable beings usually premeditate any important step they take, we infer that A premeditated this shot; and this inference is sufficient proof, in the lack of all other evidence, of premeditation." Again, in section 33, he says: "From the very fact of a blow being struck, we have a right to infer (as a presumption of fact, but not of law) that the blow was intended prior to the striking, although it may be at a period of time inappreciably distant." Again, the same authority, section 664, says: "No case can arise in which there is not some distinctive incident capable of either strengthening or weakening the proof of malicious intent." In section 669, of the same authority, it is said: "In several of the opinions which have just been cited occurs the expression, that when the mere act of killing is proved, without anything more, malice is to be presumed. This, however, is an axiom handed down to us from the scholastic jurisprudence, and has no application to any case that can arise in a court for the trial of real causes * * * What the law punishes, is not killing, but particular modes of killing, and those must be averred and proved. Now these modes, when proved, form facts from which intent is to be inferred or negatived. It is, therefore, announcing a proposition purely speculative and irrelevant to tell a jury that an abstract killing involves, as a matter of law, an abstract intent. It is perfectly proper, however, to tell a jury that, from certain circumstances-e. g., a deadly weapon, repeated and dangerous wounds, threats-intent and malice may be rightly inferred as inferences of fact. When we

*

* *

apply this test, the apparent conflict between the opinions of American courts vanishes."

3. The learned judge in the case before me, in adopting the doctrine of a conclusive presumption of intent to kill, from proof of an intent to commit a collateral felony, adopts the earliest view of the subject, and one which can not be supported by reason or the weight of modern authority. When all felonies were punished with death, it was a matter of indifference to the offender whether he was hung for robbery or for murder committed in attempting to rob. The reason of the rule was claimed to be that, if a man has a felonious intent, and when executing this intent, he commits a felony different from the one intended, then the felonious intent may be tacked to the unintended felony. Whar. on Hom, see 59. I think the learned judge will not find authority, even in the old rule, for his conclusive legal presumption of intent to kill from intent to commit a collateral felony.

"Yet, peremptory as has been the assertion of this principle, there is reported no modern conviction of common law murder in a case in which there was no evidence of malicious intent towards the deceased, and in which the felonious intent proved was simply an intent to commit a collateral felony. And that an intent to commit larceny cannot be now used to prove an intent to kill is emphatically declared by a learned English judge, (Blackburn, J.) in his testimony, in 1874, before the Homicide Amendment Committee, as given in a note to this paragraph."

In the testimony of Judge Blackburn, referred to, I find Mr. Russell Gurney put this question to the judge: "There is not a single text-book, is there, where it is not laid down to be murder if you cause death in the prosecution of a felony?" Judge Blackburn replied: "I think that, in all of them, they do lay it down; they cite that statement of Lord Coke's, and that later case, and they all say that there it is put down; but I do not think that there will be found any instance in which that has ever been acted upon, and I am confident it would not be acted upon now." See also Whar. on Hom, 2d ed., secs. 57-63.

When the intent to kill upon sudden impulse, but without lawful provocation, is executed the instant it is conceived, or before there has been time for the passion to subside, it is said to be murder in the second degree. As to the correctness of this proposition, there need be no controversy. In respect to deliberation, it is said in the opinion: "A purpose to kill may be conceived and deliberately executed, although but a very brief time elapse between the conception and the execution of the purpose." In State v. Hays, 23 Mo. 287, the instruction upon this subject was: "The deliberation and premeditation necessary to constitute murder in the first degree may be inferred from the circumstances of the killing; and if they existed for a moment as well as for an hour or a day before the killing, it is sufficient." Here, then, is the distinction finely drawn. If the intention to kill is executed the instant it is conceived, it is murder in the second degree. If there is a moment

for deliberation and premeditation it is enough, and the offense is murder in the first degree. Here we have human life hanging upon the distinction in point of time between an instant and a moment, and the court, as a matter of law, determines as to which degree the instructions ought to be limited. I agree that "the law assigns no limits within which the cooling time may be said to take place,” and that "every case must depend on its own circumstances."

Under the facts, Wieners was clearly guilty of murder; but, to my mind, the law does not know in which degree. The jury were forced to the alternative of finding him guilty in the first degree or of acquitting him. Perhaps public sentiment would stoutly have opposed an acquittal. If so, his conviction in the first degree may not have been the absolute conviction of the minds of the jury. If the proposition laid down by the court narrow the final distinction between the two degrees of murder to the difference of time between an instant and a moment, I insist, that whether the facts proved constitute the one degree or the other is not a question of law for the court, but of fact for the jury, which they can not rationally determine without instructions as to both degrees.

I would never hang a man for killing another in an altercation under our law as it now stands, except where the proof clearly showed that the altercation was brought on by the accused as a mere pretext, and for the purpose of preparing an excuse to kill, unless the law as to murder in both degrees had been substantially stated to the jury, and they had been left untrameled to determine from the evidence whether the killing was on the impulse and in a passion, or deliberate and premeditated. J. H. S.

ABSTRACT OF DECISIONS OF SUPREME

COURT OF THE UNITED STATES. REVENUE LAWS-UNSTAMPED SPIRITS-FORFEITURE.-Where a rectifier or wholesale liquor dealer knowingly omits to cause packages of distilled spirits containing more than twenty gallons each, on his premises, to be gauged, inspected and stamped, in accordance with section 25 of the act of July 20, 1868, the property is liable to forfeiture under section 57 of the act, but the forfeiture imposed by section 96 does not apply. And it can not be made to apply by any rules which the commissioner of internal revenue prescribes under section 2 of the act. United States v. Two Hundred Barrels of Whiskey. Appeal from the Circuit Court of the United States for the District of Louisiana. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.

INSOLVENCY-FRAUDULENT PREFERENCE-REASONABLE CAUSE.-The Merchants National Bank of Cincinnati, plaintiff in error, advanced to one H., who was a banker, on his check, $10,000, less the usual charge of 1-8 per cent. On the afternoon of the same day, H. placed in an envelope, addressed to the bank a note in which he said: "A disappointment gives us reason to fear that our check of this date may not be paid. I leave with you the enclosed as security." Held, that the securities were transferred with a view to give a fraudulent preference, and that the bank had reasonable cause to believe that H. was insolvent when it received and appropriated the securities presented to it."It is scarcely necessary to discuss the author

ities as to the meaning of the words 'having reasonable eause to believe the party to be insolvent.' When the condition of a debtor's affairs are known to be such that prudent business men would conclude that he could not meet his obligations as they matured in the ordinary course of business, there is reasonable cause to believe him to be insolvent. Knowledge is not necessary, nor even a belief, but simply reasonable cause to believe. Toof v. Martin, 13 Wall. 50; Buchanan v. Smith, 16 Wall. 277; Wager v. Hall, ib. 584. There is nothing in the subsequent decisions of this court to vary these principles, and it is not worth while to go through the English cases founded upon a statute containing different language from our own." Merchants Nat. Bk. of Cincinnati v. Cook et al. Appeal from the Circuit Court of the United States for the Southern District of Ohio. Opinion by Mr. Justice HUNT. Judgment affirmed.

PRE-EMPTION OF LAND CLAIMED UNDER MEXICAN TITLES.-1. Under the Mexican law, when a grant of land is made by the government, a formal delivery of possession to the grantee by a magistrate of the vicinage is essential to the complete investiture of title. This proceeding, called in the language of the country the delivery of judicial possession, involves the establishment of the boundaries of the land granted when there is any uncertainty with respect to them. A record of the proceeding is preserved by the magistrate and a copy delivered to the grantee. 2. Unless there is something in the decree of the tribunals of the United States confirming a claim to land under a Mexican grant otherwise limiting the extent or form of the tract, the boundaries thus established should control the officers of the United States in surveying the land. Graham v. United States, 4 Wall.; Pico v. United States, 5 id. 3. A survey of a claim thus confirmed made by a surveyor-general of the United States is inoperative, if contested, until finally approved by the land department at Washington. 4. Where a quantity of land in California was granted by the Mexican government within boundaries embracing a larger amount, in the possession of which larger amount the grantee was placed, he is entitled to retain possession of the entire tract until the quantity granted is segregated by the officers of the government and set apart to him, and he may maintain ejectment for the entire tract or any portion of it against parties claiming possession under the pre-emption laws of the United States. 5. Lands claimed under Mexican grants in California are excluded from settlement under the pre-emption laws, so long as the claims of the grantees remain undetermined by the tribunals and officers of the United States. Cornwell v. Culver, 16 Cal. 429; Riley v. Heisch, 18 ib. 198; Mahoney v. Van Winkle, 21 ib. 552. Van Reynegan v. Bolton. In error to the Circuit Court of the United States for the District of California. Opinion by Mr. Justice FIELD. Judgment affirmed.

APPEAL BY PARTY NOT INJURED BY DECREE.One Strang brought an action in the Federal court to foreclose a mortgage upon a railroad. Subsequently the N. & S. A. R. R. was, upon its own application, made a defendant in the foreclosure suit, it claiming to hold a mortgage prior to that of Strang. Thereafter, one Young, holding a statutory lien upon the same property, commenced an action in the United States Circuit Court to enforce the statutory lien, and Strang, the trustees under the Strang mortgage, and the N. & S. A. R. R. were made parties, and the latter in its answer claimed priority to the other incumbrances. Subsequently the Strang suit was transferred to the United States Circuit Court. The suits were heard together, and a decision was made-in favor of the N. & S. A. R. R., and subsequently, upon the application of that company, there was a sale ordered and a direction given to first pay the company's claim from the

proceeds. From this order the complainants in the two suits appealed. The next day after the appeal was taken the circuit court again considered the cause, and, upon the application of those holding claims adverse to that of the company mentioned, ordered a consolidation of the two suits and directed a sale of the property subject to the lien of the company. From this decree the company prayed an appeal to operate as a supersedeas, offering the proper bond. The circuit court refused to grant the appeal or accept a supersedeas bond, being of the opinion that the company had no right to appeal or to give bond to supersede the execution of the decree. The S. & N. A. R. R. thereupon petitioned the supreme court for a mandamus requiring the circuit court to grant the appeal and accept a good and sufficient supersedeas bond. Held, that the petition should be granted. The Court said: "This application is resisted upon the general ground that the S. & N. A. R. R. can not appeal, because its rights are not injuriously affected by the de

cree.

That company was a party to each of the suits consolidated for the purposes of the decree. It was, therefore, a party to the suit as consolidated, and entitled to be heard upon the pleadings as they stood before the consolidation, since no change in that particular was ordered or deemed necessary by the court. Among the pleadings in the Strang suit, thus brought into the consolidated suit, was the cross-bill of this company praying affirmative relief in the final determination of the cause. It matters not that at a former day in the term a special decree had been rendered upon the subject-matter of the cross-bill, and that an appeal from that decree had been taken, for " a crossbill is a mere auxiliary suit and a dependency of the original." Cross v. Duval, 1 Wall. 14; Ayres v. Carver, 17 How. 595. * A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subjectmatter of the action. 2 Daniel's Ch. 1548. The S. & N. A. R. R. deemed it necessary for the protection of its rights in the mortgaged property, that in any sale which was ordered, provision should be made for the payment of its claim out of the proceeds, insisting for that purpose that its lien was prior in time to that of either of the other mortgage creditors. To accomplish this, a cross-bill was necessary, and it was accordingly filed. The decree upon this bill being under the ruling in Ayres v. Carver, supra, interlocutory only, was superseded by that of July 6, which finally disposed of the cause in a manner entirely inconsistent with its provisions. It is clear, therefore, that the decree, as rendered, did, in effect, deny the company the relief it asked, and that, if there were nothing more in the ease, redress might be had by an appeal." Ex parte The North and South Alabama Railroad. Opinion by Mr. Chief Justice WAITE. Application granted.

NOTES OF RECENT DECISIONS.

BANKRUPTCY OF CORPORATION. WHEN POLICYHOLDERS CORPORATORS.-Re Atlantic Mutual Life Ins. Co. United States District Court, Northern District of New York, 16 Alb. L. J. 453. Opinion by WALLACE, J. A mutual life insurance company in which the policy-holders were entitled to vote for trustees, and to share in the profits, was placed in the hands of a receiver under the state laws. Subsequently, a trustee of the company filed a petition in bankruptcy in the name of the corporation, and it was adjudged bankrupt. The receiver applied to have the adjudication set aside. Held, (1) that the receiver had a standing in court to make the motion; (2) that the question of the solvency of the company could not be examined on the motion, and (3) that the policy-holders of the company were corporators within the meaning of sec

tion 122, chap. 6, title 61 of the United States Revised Statutes, and an adjudication in bankruptcy could not be made against the corporation, without giving them an opportunity to be heard.

NEGLIGENCE-PROXIMATE OR REMOTE CAUSE INTERVENING AGENCY-WHEN PROXIMITY OF CAUSE NOT A QUESTION FOR JURY-UNDISPUTED FACTS.— Hoag v. L. S. & M. S. R. R. Supreme Court of Pennsylvania, 4 W. N. 552. Opinion by PAXSON, J. 1. In a case of injury arising from alleged negligence, it is generally the province of the jury to determine the proximity of the cause to the injury complained of; where, however, the presence of an intervening agency is obvious, arising upon undisputed facts, it is not error for the court to withhold the case from the jury. 2. Defendant's railroad ran along the bank of Oil Creek; by reason of a land-slide, unseen by the engineer, an oil train was thrown from the track, the tank cars burst, and the burning oil floated down the stream, causing the destruction of plaintiff's buildings by fire, several hundred feet distant from the place of the railroad accident. Held, that the burning of plaintiff's buildings was not such a natural and probable consequence of the negligence of defendant's engineer (if negligence there was) as ought to have been foreseen by him as likely to flow from his act, and, therefore, plaintiff could not recover. Held further, that the facts being undisputed, the evidence was properly not submitted to the jury. Penn. R. R. Co. v. Hope, 2 W. N. 285, and Raydure v. Knight, 2 W. N. 713, and 3 id. 109, distinguished. Penn. R. R. v. Kerr. 12 Sm. 353, followed.

POWER AND AUTHORITY OF CASHIER-INDORSEMENT OF PAPER BY HIM-WHEN BANK BOUNDOFFICERS MAY BORROW MONEY OF THE BANK.-Blair v. First Nat. Bk. of Mansfield. United States Circuit Court, Northern District of Ohio. 10 Ch. L. N. 84. Opinion by WELKER, J. Held, 1. That a note payable to" McMann, cashier," is a note payable to the bank. 2. That McMann, as cashier, had authority to assign the note. The court states at some length the power and authority of bank cashiers. 3. That McMann being the cashier of the defendant bank, the presumption is, that the note payable to him in the form above stated was the property of the bank, and if the cashier indorsed it as such and sent it to the savings bank, in an official letter for discount, it would be the same thing as requiring the savings bank to discount it on behalf of the defendant bank; and if the savings bank discounted such note and sent the proceeds to the defendant, that was a transaction within the scope of the duties of the cashier, and for which the bank is liable, and it does not make any difference what the defendant did with the money thus received. 4. That the president, cashier or director of a National Bank may borrow money of the bank. 5. The fact that paper has not been authorized by a discounting committee to be discounted, does not in any way affect outside parties who are bona fide indorsees of the paper before maturity. 6. That a cashier has no authority to indorse accommodation paper, not passing through his bank in its usual line of business, so as to bind his bank to the indorsee.

LOSS WHEN OWNER REPAIRS SUING AND LABORING CLAUSE.-Lohre v. Aitchison, High Court, Q. B. Div. 26 W. R. 42. Where an insured ship is damaged and the owner elects to repair, the measure of loss between the owner and the underwriters is the cost of repairs, less one-third new for old; and this rule holds even when it throws upon the underwriters a heavier loss than if the owner had abandoned. Where the loss, thus measured, exhausts the policy, the assured can not recover any further sum under the suing and laboring clause.

EVIDENCE · PRESUMPTION AS TO CONTENTS OF LETTER.-Re National Fund Assurance Co., High .Court, Chy. Div. 26 W. R. 41. S. had agreed to take shares in N. Company and place them among his friends. He did so, and never paid anything on them himself. They were registered in his name, a fact which he alleged he was not aware of till a call was made on him. He then wrote, saying he had never actually been a shareholder, and desiring to have his name removed, but took no further steps. The company was wound up, and S. made a contributory, and it was proved that a letter had been sent to S. on the day the allotments were sent round, which the secretary believed did contain a notice of the allotment of the shares to S. Held, that the presumption was that it did contain such a notice, and that S. could not now escape his liability.

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PATENT-SPECIFICATION · IMPROVEMENT - PROTECTION OF SUBORDINATE COMBINATION-LICENSEE -ESTOPPEL-EVIDENCE-EARLIER INVENTIONS.Clark v. Adie, House of Lords, 26 W. R. 45. The specification of a patent for an improvement in a machine, which consists of various subordinate combinations, must distinctly show for what particular part of the whole combination the patent is granted, otherwise only the complete machine will be protected, and not any subordinate invention. Judgment of the Lords Justices of Appeal, reported 23 W. R. 898, L. R. 10 Ch. 667, affirmed. The licensee of a patent is estopped from denying the licensor's title to the patent, the novelty or the utility of the invention, and the sufficiency of the specification; but he may show that any articles which he has manufactured were not covered by the patent, and that he had a right to manufacture them as a member of the public. He may also refer to the state of the manufacture at and before the date of the grant of the patent; and, Semble, that specifications of earlier patents would be admissible in evidence in proceedings between the patentee and a licensee. Judgment of the Court of Appeal, reported 24 W. R. 1007, L. R. 3 Ch. D. 134, affirmed.

INDICTMENT-FORGERY.- On indictment for forgery, an averment that the forged instrument was a note made by Absom Turner and James C. Orr, etc., for sixty dollars, sixty days after date, etc., is not sustained by proof of a note signed "Absom Turner, J. C. Orr," for $60,"with 10 per cent. interest," etc., and such a note is improperly admitted in evidence. 31 Mo. 120; 39 Mo. 592; Sherwood v. State, May Term, 1877. Opinion by NORTON, J.-State v. Fay.

PUBLIC ROADS-OBSTRUCTION-ABANDONMENT.— Where the public has required title to a public road, in the manner provided by the statutes, the defendant, on indictment against him, can not plead that the pub

lic had abandoned the easement by non-user, unless such non-user shall have continued twenty years. Angell on Highways, 366; State v. Young, 27 Mo. 259: 2 Wag. St, sec. 7, p. 917. Opinion by NORTON, J.— State v. Culver.

WRITTEN CONTRACT-EXTRA WORK—AGENCY.→ Where plaintiff entered into a written contract with a city council about the macadamizing of a street, etc., and the committee elected a person to superintend the work, and notified plaintiff that his agent's business was to see that the work was done in accordance with the contract, and that the city would pay for no extra work: held, in a suit upon this contract, extra work done by the orders of the agent beyond the terms of the contract, either as to quantity or as to value, does not furnish a cause of action against the city. 2 Parsons Cont. 501; 13 Mo. 252; 42 Mo. 391. Opinion by NORTON, J.-Leathers v. City of Springfield.

INDICTMENT - CONTINUANCES- CONSTITUTIONAL LAW-SPECIAL JUDGE-DEAD WITNESS.-In a criminal case which has been long pending, an application for a continuance by defendant, on the ground of absence of witnesses, must affirmatively and clearly disclose the facts that due diligence had been used to obtain the testimony, and in such a case, "due diligence" means the utmost degree of diligence. The act of the legislature authorizing the members of the bar present at the time of an application for change of venue in a criminal case, to elect a "special judge " to try the same (Laws of Mo. 1877, p. 357), is authorized by sec. 29, of art. 6 of the constitution of Missouri, and is a constitutional enactment. Where a witness has once testified in any case, civil or criminal, and has subsequently died, his testimony may be proved before the jury in any subsequent trial of the same case, either by proving up his testimony, as contained in proceedings before a committing magistrate, or as contained in a former bill of exceptions filed in the same cause, or by oral proof of what he stated at the mouths of those who heard him testify, and in this state, the proof need not be made in the very words of the dead witness but the substance of his testimony may be proved. State v. McO'Blenis, 24 Mo. 402: U. S. v. Macomb, 5 McLean C. C. 285; Cornell v. Greene, 10 Searg. & Rawl. 14; Chess v. Chess, 17 S. & R. 409; Gildenstein v. Conway, 10 Ala. 260; Wagers v. Dickey, 17 Ohio, 439; Marshall v. Adams, 11 Ill. 37; Caton v. Lennox, 5 Rand. 36; State v. Hooker, 17 Ves. 459; Kendrick v. State, 10 Hump. 10; Sloan v. Somers, 1 Spence. (N. S.), 66; Bollinger v. Barnes, 3 Den. 460; Young v. Dearborn, 3 Fos. N. H. 372. Opinion by NORTON, J.-The State v. Able.

EAST ST. LOUIS CITY COURT.-The City Court of East St. Louis, established under the private laws of 1865 and 1867, has ceased to exist by virtue of the constitution of 1870, and a general law approved March 20, 1874, and in force July 1st, 1874, which provides

*Ten opinions were filed at Mt. Vernon on the 16th. Only six were deemed by our reporter of sufficient interest to abstract; the remaining four deciding questions of no general interest or importance. We will supply our readers with abstracts of opinions filed at Ottawa and Springfield, as soon as possible.

for the establishment of city courts of concurrent jurisdiction with circuit courts, except as to treason and murder. These courts are as substitutes for, and not in addition to city courts previously existing. Reversed and remanded. Opinion by DICKEY, J.— Frantz v. Fleitz et al.

APPEAL BOND-AMOUNT.-In fixing the amount of an appeal bond, only the costs incurred up to that time are to be taken into consideration. Reversed and remanded. Per CURIAM.-Brennan v. Academy of the Christian Brothers.

CONTRIBUTORY NEGLIGENCE.-When a plaintiff has been guilty of negligence contributing to the injury, he can not recover unless the negligence of the defendant is gross-and not then, unless the negligence of the plaintiff is slight in comparison with that of the defendant. Reversed and remanded. Opinion by DICKEY, J.-Ills. Cent. R. R. Co. v. Hammer.

EFFECT OF ANTE-NUPTIAL AGREEMENT UPON "WIDOW'S AWARD."-It is not the mere execution of the papers of an ante-nuptial agreement, which provides that the woman shall receive a certain sum of money in lieu of all her claims on the estate of her husband, that cuts her off from claiming the "widow's award," etc.; but it is the payment of the sum provided for which constitutes the bar. Her right to the widow's award" remains unaffected by the ante-nuptial agreement, until the sum provided for shall have been paid or tendered to her. She is under

no obligation to take the place of an ordinary creditor, and take the hazard of the solvency of the estate, or to await the delay of its administration. Reversed and remanded. Opinion by DICKEY, J.- Brenner v. Gauch, Exr.

NEGLIGENCE-DE

MUNICIPAL CORPORATIONS FECTIVE BRIDGES.-It is not always the duty of a municipal corporation to make such bridges as are within its corporate limits absolutely secure, or to fully protect the public from injury. It is the duty of such corporation to exercise ordinary prudence to accomplish such results. What is ordinary prudence depends upon so many considerations, that no iron rule can be laid down upon the subject, and it should be submitted as a question of fact to the jury. If the corporation has been guilty of gross negligence, then the plaintiff need not show that he was entirely free from negligence contributing to the injury; but to recover in such cases, it is sufficient for him to show that his negligence was slight in comparison with that of the corporation. Reversed and remanded. Opinion by DICKEY, J.-The Town of Grayville v. Whitaker.

RELIGIOUS CORPORATION-TRUSTS.-The trustees of a religious corporation, in the absence of a declared or clearly implied trust, hold the property for the use of the particular society or congregation of which they are officers, and not for any church in general, or for the benefit of any peculiar doctrines or tenets of faith and practice in religious matters. The property belongs to the society or congregation so long as the corporation exists, and when it ceases to exist the property belongs to the donors or their heirs. The society or congregation appoints the trustees, and may remove them and fill vacancies. It may adopt such rules and regulations in the management of its estate as the members may deem proper. In these respects it is not subject to the supervision or control of any ecclesiastical authority whatever, the only restriction imposed being that its rules and regulations shall not be inconsistent with the constitution and laws of this state or of the United States. Affirmed. Opinion by SCHOLFIELD, C. J.Calkins et. al. v. Cheney et al.

A Chinaman has been admitted to the English bar in Hong Kong.

PROCEEDINGS SUPPLEMENTARY TO EXECUTION.The written answer of a bank, verified by the oath of its president, is not competent evidence, in a proceeding supplementary to execution, to show that the bank has funds of the defendant on deposit. The defendant has a right and must be given an opportunity to crossexamine the president of the bank. Opinion by HƆWK, J.-O'Brien v. Flanders.

BREACH OF PROMISE OF MARRIAGE.-There is no reason why an action may not be maintained for the breach of a marriage contract, in our court, according to the principles of the common-law. Besides, the statute has recognized the right to bring such action by giving the circuit court jurisdiction thereof. A promise to marry need not be in writing. The statute of frauds applies to promises in consideration of marriage; not to promises to marry. Opinion by WORDEN, J.Short v. Stotts.

LIEN OF MORTGAGE ON PROPERTY REDEEMED FROM SALE. When a sale is had on a foreclosure of a mortgage, and the property sells for less than the judgment, and, afterwards the property is redeemed by the mortgagor, the mortgagee is not bound to take his execution against other property, but may have a second sale of the same property. The redemption of the property left the title in the mortgagor subject to the lien of the mortgage for the balance unpaid, and the right of sale must be co-extensive with the lien, unless there is some circumstance which would authorize a court to control it. Opinion by PERKINS, J.-Canthorn v. I. & V. R. R. Co.

PARTNERSHIP-EFFECT OF DISSOLUTION.-Plaintiff gave defendants the exclusive sale, for five years, of the works manufactured by plaintiff. Defendants claimed damages for a breach of this agreement. Answer by plaintiff that the firm had ceased to exist, and thereby had abandoned the contract. Held, that an abandonment of the contract was not the necessary legal effect of a simple cessation of the partnership. The contract was a continuing one, and there could be no cessation of the partnership as to it. All the parties to the contract were bound to see it executed whether they remained partners in other business or not, and, so long as the contract was observed by them, there was no abandonment of it. The demurrer should have been sustained. Opinion by PERKINS, J.-Dickson v. Indianapolis Mfg. Co.