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to be allowed the set-off which is claimed; and my verdict was entered for the plaintiffs, but a rule opinion is founded on the difference between the nisi to enter it for the defendant was granted, on characters of factor and broker, and on the plain the authority of Stewart v. Aberdein, 4 M. & W. distinction between the cases cited and this. For 211, and some other cases. In showing cause it even admitting it to be true that where two per was argued for the plaintiff, on the authority of sons equally innocent are prejudiced by the deceit Russell v. Bangley, 4 B, & Ald. 398, that if the asof a third, the person who has put the trust and gured can, upon all the facts of the case, be shown confidence in the deceivers should not be the loser, to have been cognizant of the usage of settling I think the defendants are the persons who have losses in account at the time he procured the inin this case placed more than usual confidence in surance to be effected, he is bound by it, but not Coles and Co.,' the plaintiff's brokers.
otherwise; that, in short, the cases proceed not The decision of the Court of Exchequer in Stew upon the usage of the particular market, but upon art v. Aberdein, 4 M. & W. 211, in the year 1839; the presence or absence of knowledge. On the other has been considered an authority for the proposi
hand, it was argued that Graves v. Legg, 2 H. & N. tion that the above usage is binding without notice.
210, is conclusive to show that one who employs an That, however, is not so, for it was there assumed
agent to make a contract in a particular market, that the usage was known and assented to by the
must be taken to authorize him to make it subject assured. In delivering the judgment of the court,
to all the incidents of a contract entered into in that too, Lord Abinger was careful to point out that it
market, and that the true principle to be deduced was not to be considered that by its decision the
from the cases is, that if the usage be general, the court meant to overrule any case deciding that
party is presumed to know it; but that, if it be a where a principal employs an agent to receive
particular or local usage, his knowledge of it must be money, and pay it over to him, the agent does not shown by evidence. In discharging the rule, the thereby acquire any authority to pay a demand of
court, whilst admitting that while the policy rehis own upon the debtor, by a set-off in account
mained in the hands of the brokers, the plaintiff was with him.
estopped from saying that it was not in his hands "The court is of the opinion," said his Lordship,
with authority to collect, held that Scott v. Irving, 1 “that where an insurance broker or other mercan
B. & Ad. 605, applied. In dealing with the case of tile agent has been employed to receive money
Graves v. Legg, supra, Mr. Justice Williams obseryfor another in the general course of his busi
ed that he was not inclined to dispute the proposiness, and where the known general course
tion that, when a broker is employed to buy in a parof business is for the agent to keep a
ticular market, he is authorized to buy according to running account with the principal, and to
the usage of that market, but pointed out that Gabay credit him with sums which he may have received
v. Lloyd, 3 B. & C. 793, 6 is a distinct authority by credits in account with the debtors, with whom
that the usuage at Lloyds is not such a general he also keeps running accounts, and not merely
usage as to bind a person not acquainted with its with moneys actually received, the rule laid down
existence.” “It is not disputed,” observes Mr. in those cases can not properly be applied; but it
Justice Byles, - that the general rule of law is, must be understood that where an account is bona
that an authority to an agent to receive money fide settled according to that known usage, the orig
implies that he is to receive it in cash. If the inal debtor is discharged, and the agent becomes
agent receives the money in cash, the probability the debtor according to the meaning and intention,
is that he will hand it over to his principal; but if and with the authority of the principal.” It is
he is to be allowed to receive it by means of a setvery clear from the judgment that the court was
tlement of accounts between himself and the debtor, fally of opinion that there was evidence that the
he might not be able to pay it over; at all events assured was aware of the custom. Hence, however
it would very much diininish the chance of the much this decision may appear to differ from any
principal ever receiving it; and upon that principle other, the principle upon which it turned is at one
it has been held that the agent, as a general rule, with the ratio decidendi of the authorities upon the
can not receive payment in anything else but cash. subject.
Unless, therefore, there is some usage to control The effect of the above usage was again dis
it, payment to the agent must be made in money." cussed by the Common Pleas in Sweating v. Pearce,
His Lordship thought that the usage relied on was 7 C. B. N. S. 449, which was decided in 1859. There
the usage of a particular place, or of a particular the plaintiff, a ship-builder in London, employed
counting-house, and therefore could not be bindone W., an insurance broker, to effect a policy upon
ing without notice. a ship at Lloyds, and, after the happening of a loss,
In the most recent case upon the subject, viz., gave the ship's papers for the purpose of enabling Pearson v. Scott, 38 L.T.N.S. 747, no attempt was him to adjust the loss with the underwriters. The made to impugn the principle that an agent, to repolicy was effected in W.'s name, and he had re ceive payment, must receive it in cash, but it was tained possession of it. An adjustment having
contended that the defendant had no express notaken place, the loss was settled in accordance with tice of agency, and that, without such express the above usage. It was admitted that the usage notice, he was entitled to make payment by a setwas not known to the plaintiff, who had merely tlement in account between himself and the agent. left the policy in W.'s hands for safe custody; but
In that case the plaintiffs were executors. They the jury found that it was generally kríown to mer instructed a solicitor to sell some stock and shares. chants and ship-owners effecting insurances. The | He employed the defendant, a stock and share broker, with whom he had at tbe time a current | not be regarded as affecting 'any change in title, account for differences upon private speculative
either in the legal sense, or according to the ordinary transactions on the Stock Exchange. The defend
and popular understanding. 'In legal acceptation,' says ant sold the property, paid a part of the proceeds
Allen, J., in S. F. & M. Ins. Co. V. Allen, 43 N. Y. 389,
| title has respect to that which is the the subject of to the solicitor, and, by the latter's directions,
ownership, and is that which is the foundation of placed the balance to his credit in the current ac
ownership; and with a change of title the right of count. The balance was never paid to the plain
property, the ownership, passes.' As applied to real tiffs. The solicitor was a member of a firm. Duir estate, it is defined to be “the means whereby the ing the transaction the firm wrote to the defend owner of lands or other real property has the just and ant, informing him that they had made the trans legal possession and enjoyment of it;' the lawful fers in the name of certain of the plaintiffs. The
cause or ground of possessing that which is ours.' main question for the court was whether this letter
Burr. Law Dict., vol. 2, p. 986. In this sense, which is
also the ordinary and popular one in which the word is and the other circumstances put the defendant
used, a change in title is a change in ownership, upon inquiry. Mr. Justice Fry, by whom the case
which carries the legal right of possession and propwas heard, having gone through the authorities, erty,'—and it is in this sense we must understand the dwelt upon that of Bridges v. Garrett, L. R. 5 word as having been used in this clause. Although, C. P. 451, where a fire, to which the plaintiff was
within the meaning of the registry laws, a mortgage of entitled as lord of the manor, was paid to the dep
real estate is defined to be a conveyance, yet under our uty steward by a check drawn by the surrenderee
laws it is not deemed a conveyance in the sense of
passing any estate or interest in lands, or transferring on the surrenderee's bankers, and paid by the dep
any legal title thereto. The only interest which a uty steward into his own bank to which he owed
mortgagee acquires is a lien upon the land in the way money. There, however, the mode of receiving of security, which, prior to the foreclosure of the right payment was within the agent's authority. It was of redemption, is treated as personal property that also contended by the defendant in Pearson v. goes to the administrator or executor, and not to the Scott, that this mode of payment by a settlement
heirs. The legal title, with the right of possession, rein account with the broker was sanctioned by the
mains with the mortgagor until a completed foreclo
sure is had by sale, and the same becomes absolute by usage of the London Stock Exchange; but his
the expiration of the period of redemption. Until this Lordship, on the authority of the cases which have
time expires, the purchaser at the sale has only a chatbeen already considered, held that such a usage tel and equitable interest. He has no legal title to the was illegal in the absence of notice.-Law Times, lands, nor any conveyable estate therein. The charac.
ter of his interest is the same as that of a mortgagee before foreclosure sale. Gen. Stats., p. 373, sec. 11;
Ib., p. 540, sec. 11: Donnelly y. Simonton, 7 Minn. 167; NOTES OF RECENT DECISIONS.
Horton v. Miffitt, 14 Minn. 290. Neither is a foreclosure by advertisement 'legal process,' or a “judicial de
cree.' The proceedings in this kind of a foreclosure DISTRIBUTION OF ESTATES-ADVANCEMENT-POL
are carried on wholly outside of court, and without the ICY PAYABLE TO CHILD.-Rickenbacker 0. Zimmer. į
aid of its process or decree. It is obvious, then, that man. Supreme Court of South Carolina, 11 Ch. L. N.
neither the giving of the mortgage nor the sale of 3. A policy of life insurance made payable to a child
the premises on foreclosure, the time for redemption of the intestate should, in the distribution of the es
not having expired, effected any change in title or pos. tate, be considered an advancement to that child session, in respect to the property insured, and did of the value of the policy at the death of the in
not therefore avoid the policy." testate, the premiums paid subsequent to the first being considered, in the valuation of such policy, as ad
CORPORATIONS — LIABILITY OF STOCKHOLDERS – vancements of so much money.
SURÉTYSHIP - DISCHARGE.-Hanson v. Donkersley,
Supreme Court of Micbigan, 6 Rep. 368. The liability FIRE INSURANCE — CONSTRUCTION OF TERMS “ANY
of a stockholder for labor done for the corporation is CHANGE IN TITLE"-"LEGAL PROCESS OR JUDICIAL
not primary as is that of a principal, but is contingent DECREE.”- Loy v. Home Ins. Co. Supreme Court of
as is that of a surety; therefore, where the debtor acMinnesota, 7 Ins. L. J. 763. Respondent held a policy cepts the note of the corporation, thereby extending of insurance given by appellant upon her dwelling
the time of the payment of his claim, the liability of house and other property therein, containing the fol
the stockholder is extinguished. The case was this: lowing clause: "If the property be sold or transferred,
The Morgan Iron Co. owed Hanson for labor and he or any change take place in title or possession (ex took its note, thereby extending the time of payment. cept by reason of the death of the insured), whether
He afterwards recovered a judgment on the note, and by legal process or judicial decree, or voluntarily trans
execution being returned unsatisfied, he brought this fer or conveyance at * * this policy shall be void.”
action against D as a stockholder, under Comp. L. 8 Held, 1. The policy was not avoided by a mortgage 2852, which imposes upon stockholders an individual upon the property after the issuance of the policy. 2. liability for labor done for the corporation, and allows The foreclosure of such mortgage by advertisement it to be enforced after return of execution unsatisfied, and a sale of the mortgaged premises on such fore or after the corporation has been declared bankrupt. closure, the period for redemption not having expired The court below instructed the jury that, in suing the and no change having taken place in the possession, company on the note, the plaintiff treated the note as did not operate as “ a sale, transfer, or change in ti. payment of the original claim, and he was thereby pre. tle," within the meaning of the policy, so as to defeat cluded from recovering against the stockbolders and a recovery for a loss accruing after the foreclosure sale, directed a verdict for defendant. CAMPBELL, J. Tbis and before the expiration of the time of redemption. case is certainly not free from difficulty. But it seems CORNELL, J.: “In our judgment nothing short of a to me that the liability of the individual members of complete transfer of the legal title comes within the corporations for their debts, under the statute upon prohibition of this stipulation. The mere creation of a wbich this suit was brought, can pot, in any just lien or incumbrance upon the property insured can sense, be called a primary liability. The debts which
they are called on to pay are in fact--as they are ex- ) farming implements, it is exempt from an execution pressly regarded in the Constitution-debts of the cor issued on a judgment rendered on a promissory note poration. The statute is clear that the private given for the purchase money of such reaper and parties shall not be called upon unless the corporation mower. Opinion by VALENTINE, J. Affirmed. All has failed to pay and legal remedies are exhausted, the justices concurring.- Voorhees v. Patterson. either by unsatisfied execution or by bankruptcy le
ASSAULT- UNAUTHORIZED PAPERS WITH JURY.gally adjudged. The right of recovering contribution
1. If one deliberately points and cocks a loaded pistol by legal action is only given where the payment made
at another, who is a mere tres passer upon his lands, by the suing party is compulsory. He has no right to
within a distance which the pistol will carry, and commake payment without necessity, and, if he does so,
pels such trespasser, through fear of personal violence he must seek redress in some other way. Comp. L. S
from the deadly weapon aimed at him, to leave the 2852. The corporation is in law a different person
premises, he is guilty of an assault, 2. If the jury, in from any of its members. A promise by a stockholder
a prosecution for an assault, carry with them on retirto pay a corporation debt is in every sense a promise to
ing to consider of their verdict a paper having writing pay the debt of another. The case can not be different
thereon, which is folded accidentally with the instrucmerely because the obligation is statutory. It may be
tions in the case, and it is not shown that such unauthat the statute could be so framed as to create a joint or
thorized and detached paper has produced any ima joint and several responsicility which could be legis
proper influence on the jury, nor is it apparent from lated into a primary obligation. But where the corpo
its conients that it could have influenced the finding ration is not put into such relations, and the stockholder
of the jury, nor prejudiced the rights of the defendant: can not be called on until the remedy against tbe cor- í Held, not error for the district court to overrule a moporation has been tried and exhausted, it is entirely
tion for a new trial based upon the reception and peplain that they are not both original debtors, and that
rusal of the paper by the jury. Opinion by HORTON, one is only collaterally liable, and is therefore in law a
C. J. Afirmed. All the justices concurring.–State mere surety. It is still plainer where, as here, he has
v. Taylor. no right to pay in the first instance. The Constitution,
OFFICER'S RETURN-AMENDMENT,-An officer's reby making stockholders “individually liable” for labor debts, does not thereby necessarily make them prima.
turn on a writ is, to say the least, as against him prima rily liable. Bank corporators are made “individually
facie correct, and he should not be allowed to amend liable" for bank debts contracted during their connec
it until he makes it clear that there is error in it, espetion with the banks. Originally this was unlimited.
cially when the effect of the amendment is to diminish Now it is limited. It would be impossible to regard
his own liability, and more especially when the party this limited responsibility as a primary debt of the
in whose favor the return was made, resting upon the stockholders. It requires peculiar legislation to reach
faith of such return, would suffer loss by the amendsuch cases at law at all. If the Constitution could be
ment. 2. An officer is presumed to follow the law and regarded as making them primary debtors, the remedy
obey the orders of the court, and this presumption could not be euforced except in equity, unless in very
| will often turn the scale in a matter of conflicting tes
timony. Opinion by BREWER, J. Affirmed. Valenpeculiar cases, if it could be at all. Here the plaintiff sued expressly under a statute which treats the stock
tine, J., concurring: Horton, C. J., not sitting, having holder in all respects as a several surety, and he must,
been of counsel in the case.- Smith v. Martin. I think, be so treated in determining his responsibility. PLEADING-COMMON COUNT8.-1. After full perIt can not be denied that if defendant is a surety, he formance by the plaintiff of the terms of an express Was discharged from the debt for labor by taking the contract, and when nothing remains unexecuted but corporate note and giving time. In my view of the the defendant's obligation to pay, the former may frame case no other question arises, and the judgment should his cause of action upon the express stipulation of the be affirmed. MARSTON, J., dissented. He thought contract, or he may rely upon the implied promise to the stockholder primarily liable as a principal for all make such payment, and to that end may resort to a labor performed for the corporation; the liability was petition identical with the ancient common counts. 2. not in any sense contingent. 33 Mich. 261; 14 Cal. 265;
In the latter case, notwithstanding the petition presents 34 Ib. 504; 39 Ib, 646; 2 Denio, 119; 57 Barb. 484. but a claim for the value of the work done, resort may Judgment affirmed.
be had to the contract as conclusive evidence of such value. 3. So also if changes are made by mutual con
sent from the original plan, the contract controls so far ABSTRACT OF DECISIONS OF SUPREME as it can be traced. Opinion by BREWER, J. ReverCOURT OF KANSAS.
sed. All the justices concurring.- Enslie v. City of Leavenworth.
EVIDENCE-IRREGULARITY.-1. In a criminal prosJuly Term, 1878.
ecution, where a letter, previously written and sent by
the defendant to bis wife, is not in the custody or conHon. ALBERT H. HORTON, Chief Justice.
trol of either the defendant or bis wife, nor in the cus1 D. M. VALENTINE, Associate Justices.
tody or control of any agent or representative of either, 46 D. J. BREWER,
but is in the custody and control of a third person who is the prosecuting witness jp the case, such letter
may be used as evidence in the case by the prosecution FORFEITED RECONIZANCE.--An action upon a for
against the defendant. 2. In a criminal prosecution, feited recognizance can be commenced only after the
where the couit cbarges the jury in writing, but inadadjournment of the court at which the forfeiture is ta
vertently fails for fifteen days to sign some of the inken. Opinion by BREWER, J. Reversed. All the
structions embodied in the charge, and fails to file the justices concurring.-Moorehead v. State.
same among the papers in the case, but puts them in a CHATTEL EXEMPTION - MEANING OF “ FARMING safe place, and fifteen days afterwards produces them UTENSIL.” – A McCormick Advance Reaper and for the defendant to copy into a bill of exceptions, and Mower” is a "farming utensil." within the meaning of the defendant so copies them into said bill of excepsubdivision 6 of section 3 of the act relating to exemp tions, and the bill is then allowed and signed by the tions (Gen.Stats. 474), and in the hands of a farmer who judge, and the defendant then brings the case with is the head of a family and has less than $300 worth of said bill of exceptions to this court: Held, that al
though it was wrong for the court to neglect for fifteen ! Thos. McCracken, deceased. Defendant claimed undays to file said instructions among the papers in the der clause of last will of said Thomas, giving him the case, yet that neither that nor the failure of the judge land in controversy, to be his absolute property after to sign such instructions for that length of time was a death of testator's wife, conditioned that defendant fatal error under the circumstances. Opinion by should support testator's son Miles, during bis natural VALENTINE, J. Afirmed. All the justices concur life. Testator died in 1859, and his widow in 1870. De. ring:-State v. Buffington.
fendant bad lived on the land some years prior to his father's death, and widow lived on farm till her death. Defendant took care of his parents in their lifetime, and
of his brother Miles till his death. Defendant offered ABSTRACT OF DECISIONS OF SUPREME testimony, which was excluded, showing that at death COURT OF MISSOURI.
of father each of plaintiffs had received some property
from his estate, and that after death of father the deApril Terin, 1878.
fendant had made valuable improvements on the land
to amount to $1,500. Held, 1. The evidence relating Hon. T. A. SHERWOOD, Chief Justice.
to advancements made to heirs and improvements 6 WM. B. NAPTON,
made by defendant was inadmissible under the general ) 16 WARWICK HOUGH, Į Associate Justices.
issue, and was properly excluded. To be made avail. 66 E. H. NORTON,
able in this action, for any purpose, these facts should “ John W. HENRY,
have been pleaded. 2. As defendant was in possession
under his father until his death, and as he claimed ti. EJECTMENT-ADVERSE POSSESSION-WHEN SUIT tle under the will after his death, he had no possession MUST BE BROUGHT AFTER REMOVAL OF DISABIL which could be considered adverse to plaintiffs until ITY.-This was an action of ejectment. Judgment for after death of his mother in 1870. 3. It is conceded defendant, and plaintiff brings his writ of error. On plaintiffs are pretermitted heirs, but it is urged they trial defendant admitted plaintiff had good paper title, can not maintain ejectment, but must proceed under and to defeat a recovery relied solely on statute of lim
the 47th section of statute of wills, or by bill in equity itations. Defendant's adverse possession began Janu
for contribution. There is no fixed rule in this state uary 1st, 1865. Plaintiff at that time was a minor, and
on this subject. Ejectment has been maintained by became of age January 10th, 1870. Suit instituted Oc pretermitted heirs for shares of land of which their tober 18, 1875. Whether on facts stated, plaintiff was
father died seized, in McCourtney v. Mathes, 47 Mo. barred by statute of limitations, is the only question 533, and Pounds v. Dale, 48 Mo. 270. The remedy af. presented by the record. The first section of the stat
forded by the 47th section would be appropriate, perute of limitations (C. 191, Gen. Stat.) provides that all
haps, in all cases, but it is not appareut why, under actions for recovery of lands, etc., shall be brought
certain circumstances, ejectient, partition or a bill in within ten years after right accrues, and the fourth
equity for contribution might not also be resorted to. section provides that persons laboring under the disa
See Hill v. Martin, 29 Mo. 78; Wetberall v. Harris, 51 Mo. bilities therein named (infancy being one) when cause
65: Schneider v. Koeste«,54 Mo. 500. The present case of action accrues, may bring such action after the time
was an ordinary action of ejectment between tenants so limited, and within three years after the disability is
in common. Petition was in usual form and answer a removed: provided, no action shall be maintained after simple denial. The only question to be tried was legal twenty-four years after cause of action accrued. Held, rights of plaintiffs to be admitted to joint occupancy the fourth section must be construed in connection with with defendants of the land in dispute. There was no the first; and while the language employed is not as question of advancement, or improvements in the full and precise as it might be, the true meaning may case. Defendant may recorer for his improvements, fairly be declared to be, that when a right of action ac under provisions of statute regulating ejeciment. Afcrues to any person laboring under the disabilities firmed. Opinion by Hough, J.-McCracken u. Mcmentioned, the period during which such disabilities Cracken. continue, though more than ten years, shall not con
PROMISSORY NOTE — CONTEMPORANEOUS PAROL stitute a bar; but such persons may, within three years
AGREEMENT – UNSETTLED PARTNERSHIP ACCOUNT after removal of disability, and within twenty-four
CAN NOT BE SET-OFF BY ONE PARTNER IN ACTION years after cause of action accrued, bring suit. If dis
ON HIS NOTE.-This was an action on a promissory ability has existed for a period of less than ten years, such person must institute suit within three years after
note against defendanis as makers. Defendants an
swered, jointly setting out that prior to the time of the removal of disability, unless said three years, together with the period of such disability, are less than ten
making of the note, plaintiff and the defendant (Shaw) years; in which event such person is entitled to unex
entered into a co-partmership, and that plaintif, to
start the business, advanced to the defendant (Shaw) pired portion of ten years. When a party has the three
the sum for which the note was given, which defendyears given by the fourth section, and the whole period
ant, with large sums of his own, paid out in the partof ten years given by the first section, the right of ac
nership business, and that it was understood that said tion is barred. In other words, when ten years have
sum should be left with said defendant as a permanent elapsed since the right of action accrued, and three
fund for said partnership, until it was finally settled of those years have been free from disability, the right
Answer further averred that, on the day of the date of of entry is barred. A like construction has been given
said note, plaintiff requested defendant (Shaw) to exeto a similar statute in New York. Smith v. Burtis, 9
cute said note as a memorandum of the amount plain. Johns. 180; Jackson v. Johnson, 5 Cowen, 93 and 94;
tiff had advanced, and that said note was executed at Wilson v. Betts, 4 Denio, 208-9. Affirmed. Opinion
that time, not as an evidence of absolute indebtedness by Hough, J.-Gray v. Yates.
of defendant (Shaw), but as evidence of a contingent EJECTMENT PROPER REMEDY FOR PRETERMITTED indebtedness, in event the said co-partnership should HEIRS TO RECOVER SHARES OF ANCESTOR'S Es. turn out prosperously; that the partnership was disTATE-CLAIM FOR IMPROVEMENTS BY ADVERSE OC astrous and unprofitable, and there had never been OUPANT NOT ALLOWED UNDER A GENERAL DENIAL. any settlement of the same; that after the execution -Ejectment instituted in 1872 and judgment for plain of said note, defendant (Cranchler), at the request of tiffs. Answer of defendants was a general denial. plaintiff, signed the same as security, in the event that Plaintiffs claimed as pretermitted heirs of their father, there should be anything coming to plaintiff on a final settlement between him and defendant (Shaw), and statute provides that such instruments shall be acplaintiff was to bold the pote simply and solely as se- knowledged before a justice of the peace, etc. It also curity for the amount in the event aforesaid; that de provides that if made by a resident of tbis state, the fendant (Shaw) had paid $700 more than his share of justice shall enter on his docket a memorandum of the losses of the firm; that plaintiff was not entitled to re- acknowledgment, and the certificate is required to cover on said note until the settlement of the co-part state that the instrument was acknowledged and “ennership, and asked that the $700 be set-off against the tered by me.' The fourth section provides that when note. Defense was stricken out, on motion, and judg the instrument is acknowledged as therein provided, it ment for plaintiff for the amount of the note and in may be admitted to record, etc. Is, then, the entry of terest. Defendants appeal. Held, (1.) The note sued this memorandum in the justice's docket a part of the on was an absolute and unconditional promise to pay acknowledgment, or if not, is it an essential requirethe sum of money therein specified, and defendants ment oi the statute. The form of the justice's certificould not be heard to allege that, by a prior or con cate in which he says "and entered by me,' would seem temporaneous oral agreement, the note wis, in a cer to be conclusive that the general assembly intended tain contingency, not to be paid. To permit defend the entry to constitute an essential part of the acants to show a contemporaneous parol agreement that knowledgment. This enactment was intended to prothe note was only to be paid in event the affairs of the vide a means of permitting the mortgagor to retain co-partnership should prove to be prosperous, would possession of the property. * * * We presume the be to violate the well-established rule that parol evi general assembly intended to protect third persons dence is inadmissible to vary or contradict the terms from the leady means such possession by the mortgagof a written instrument. Smith v. Thomas, 29 Mo. or afforded him for perpetrating frauds, by selling or 307; Bunce v. Beck, 43 Mo. 266. It is conceded that pledging the property. Hence, they endeavored to afwhere a part only of an entire contract is reduced to ford ample facilities to acquire notice of any incumwriting, the remainder may be proven by parol. Life brances that might exist. * * * To hold that the Association v. Cravens, 60 Mo. 388. But in all such entry in a justice's docket is not essential would be a cases the parol contract must be consistent with, and virtual refusai of the requirement. We are, therefore, not contradictory of, the written one. Bunce y. Beck,
of the opinion that appellee's mortgage was invalid as supra. Here defendants seek to contradict the writ to appellant's claim." Reversed.-Koplin v. Andering, and to convert an absolute promise into a condi son. tional one. (2.) Nor can the note in suit be treated as
ADMINISTRATOR'S SALE – BILL TO SET ASIDE an escrow. In order to give it such effect, delivery
DUTY OF ADMINISTRATOR TO BE PRESENT-LACHES must be made to a third person, and not to payee.
OF COMPLAINT.-This was a bill in equity to set aside Massman y. Holscher, 49 Mo. 87; Henshaw v. Dutton,
a sale of a certain piece of land made by an adminis59 Mo. 139. (3.) An alleged indebtedness of a partner
trator of an estate. On the first hearing of the cause, to his co-partner upon a settlement of co-partnership
the court decreed that the sale should be set aside, affairs, can not be pleaded as a set-off or counterclaim. Leabo v. Renshaw, 61 Mo. 292. One partner can not
which was reversed by this court on appeal, 77 Ill.
47. In the original bill the only objection urged against be said to be indebted to his co-partner, on partner
the sale was that the administrator entered into an unship account, until there has been a settlement of co
lawful combination with two persons who attended the partnership affairs. Fenney v. Turner, 10 Mo. 207. (4.)
sale, which prevented competition in bidding; but alNeither insolvency of plaintiff, nor any other ground
ter the cause was remanded, the bill was amended, and for equitable relief, was alleged, and defendant (Shaw)
complainant set up as a further ground of relief that neither stated nor prayed an account of co-partnership
the sale was made in the absence of an administrator affairs, so as to warrant the court below in depriving
by an agent. CRAIG, J., says: “The law is well setplaintiff of his right to a judgment, until such rights
tled that the authority given an administrator to make could be ascertained and settled. Pope v. Solsman,
sale of lands to pay debts is a personal trust which the 35 Mo. 362. Besides, the answer was a joint one, and
administrator has no power to delegate to another. He defendant (Cranchler) had no interest in co-partner
has the right to employ any auctioneer to make the ship of plaintiff, and his co-defendant (Shaw). Af
sale, but it is his duty to be present and direct, superfirmed. Opinion by Hough, J.-Jones v. Shaw.
intend and control the sale. 72 III. 232; 40 Ill. 368. Had the objection now urged been made within a reasonable time, it might have been regarded with more
favor; but the sale was reported to the court, approved, ABSTRACT OF DECISIONS OF SUPREME and the administrator executed a deed conveying the COURT OF ILLINOIS.
premises to the purchaser, no objection having been made by complainant. The sale was made as early as
1861, but the complainant made no objection to it un. [Filed at Springfield, July 24, 1878..)
til 1869, when he tiled the original bill; and even then
he does not attack the sale for the reason that the adHon. JOHN SCHOLFIELD, Chief Justice.
ministrator was not present. No objection of this SIDNEY BREESE, T. LYLE DICKEY,
character is heard until 1876, when the bill is amendBENJAMIN R. SHELDON, Į Associate Justices.
ed. A delay of fifteen years after the sale was PICKNEY H. WALKER.
made and confirmed before relief is asked of a JOAN M. SCOTT,
court of equity is such inexcusable laches as must ALFRED M. CRAIG,
condemn complainant's claim. See 23 11. 503.” Al
firmed.-Kellogg v. Wilson. CHATTEL MORTGAGE-ACKNOWLEDGMENT-STATUTORY REQUIREMENT-ENTRY BY JUSTICE. – The ORDINANCE LICENSING PACKING HOUSES-Pow. facts of this case are sufficiently stated in the follow ER OF POLICE RESTRAINT OUTSIDE CITY LIMing abstract of the very full opinion by WALKER, J.: Ir$.—The city of Chicago adopted an ordinance pro"This record presents the question whether the omis hibiting any person, company or corporation within the sion of a justice of the peace, in taking the acknowl. city, or within a mile of the city limits, from engaging edgment of a chattel mortgage, to make a memoran in the business of slaughtering animals for food, or dum of the property mortgaged in his docket renders packing them for market, or rendering the offal, bones, the mortgage invalid as to other lien-holders. The etc., of any dead animal matter, etc., . ... until