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I shall presently have to consider the authority of Regina v. Bennett, and the applicatian of the principle that fraud vitiates consent," to such a case as that now before us. It seems to me, however, to be necessary to determine whether an action for a constructive assault, arising out of such transactions as the plaintiff has deposed to, can be maintained to recover pecuniary damages, or can in any shape receive the sanction of the court. "Ex turpi causa non oritur actio" is a maxim of the law and a rule of public policy, and its due application tends, if not to repress, at least to discourage vice and crime. To constitute “causa turpis" it is not necessary that the transaction should amount to a crime or to a breach of the positive law-immorality is sufficient. No court should lend its ald to a plaintiff whose claim is founded on his or her own immoral act. In the case of Pearce v. Brooks, L. R. 1 Ex. 218, Pollock, C. B., says: "Nor can any distinction be made between an illegal and an immoral purpose. Whether it is an immoral or an illegal purpose in which the plaintiff has participated, it comes equally within the terms of the maxim, and the effect is the same. No cause of action can arise out of either the one or the other."

Then, does the plaintiff's supposed cause of action spring from her own immorality? What is it? It is that, at some period in the course of a longcontinued prostitution of her person to the lust of the defendant, he suppressed from her the fact that he had contracted and was affected with venereal disease, and he communicated that disease to her. The judge and a jury were occupied for at least two days in investigating this case, and we have had the time of the court taken up for a considerable period in examining into its loathsome details, in order that the plaintiff should recover damages for results arising from her own immorality. The language of the judgment-seat has been: "You shall not stipulate for iniquity," and " no polluted hand shall touch the pure fountains of justice." Per Wilmot, C. J., in Collins v. Blantern, 2 Wils. 341. The policy of the law demands that for public protection the parties to illegal or immoral transactions shall have no redress against each other in a civil court for consequences flowing directly from their illegal or immoral actsNemo ex turpi causa consequitur actionem. The dignity of the court requires that it should not be called on to investigate such transactions at the instance of either of the guilty participators, save where the public interests are involved in the repression of crime.

The authorities on the subject are very numerous, but I shall allude to a few only, commencing with one of doubtful genuineness-Everett v. Williamsoften referred to, and given in the note to Pothier, by Evans, vol. 2, p. 3. There, though disguised in language, the suit turned out to be a bill for an account of the proceeds of property procured by highway robbery. The suit was stopped at once by the judge, who refused further to hear it, committed the solicitor, and fined the counsel who signed the bill. Walker v. Perkins, 3 Burr. 1568, is a representative case. It appeared there that the bond,

the subject of the action, had been given by William Perkins to the plaintiff, Sarah Walker, and recited "that they had agreed to live together." Lord Mansfield was peremptory and concise: "It is the price of prostitution, and illegal and void.” The cases which follow Walker v. Perkins are too numerous for quotation, and assume every shape and form. In Pearce v. Brooks, which I have before referred to, it was held that the plaintiffs, coach builders, could not recover from the defendant, a prostitute, the hire of a brougham supplied to her with the knowledge that she was a prostitute, and would use the brougham as part of her professional display. The Chief Baron says, the plaintiffs can derive no cause of action from such a bargain. In Taylor v. Chester, L. R. 4 Q. B. 309, where the plaintiff deposited the half of a £50 note as a security for suppers supplied by the defendant, the keeper of a brothel, to be consumed by the plaintiff and certain prostitutes in a debauch, it was held that, as the plaintiff could not recover the note without showing the true character of the transaction, he was precluded from obtaining the assistance of the law; for the court will not assist an illegal transaction in any respect. Lord Mansfield puts the matter on its true foundation in Holman v. Johnson, Cowp. 343, where he says: "It is not for the defendant's sake that the objection that the transaction is immoral or illegal is ever allowed, but it is founded in general principles of policy, which the defendant has the advautage of. The principle of public policy is this, ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action on an immoral or on an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted." They will not lend their aid to such a plaintiff. Stockdall v. Onwhyn, 7 D. & Ry. 625, is also a representative case, followed in an infinity of others. It was an action for an infringement of copyright in a work, " Memoirs of Harriett Wilson." Plea-Not guilty. The work appeared to be immoral, and the learned judge, at the trial, held that the plaintiff was not entitled, in respect of it, to the protection of a court of law, and non-suited. And Abbott, C. J., says, p. 631: "The sale of such a book is a criminal offense in itself; and it is not to be imagined that we, the judges of a court of law, can recognize that as a right in one form, which we know to be punishable as a violation of the law in another. To do so, would be to outrage every principle of common law, of common sense, and of common justice; and therefore, I for one am of opinion, that we want no judicial authority for deciding, that this action is not maintainable." Fivaz v. Nicholls, 2 C. B. 501, is also deserving of attention. The pleadings are too long to be brought in here. The action arose out of an illegal agreement to pass a bill to be given to defendant in consideration of his abstaining from prosecuting C., who was charged with embezzlement; and it was held, that inasmuch as the plaintiff could not make out his case except through the illegal transaction to which he was a party, the

action could not be maintained, Maule, J., saying, p. 514: "As soon as it had been shown by plea that the transaction out of which the plaintiff's right to recover, if any, arose, was illegal, the action would have been answered."

It was urged, however, before us by the plaintiff's counsel, that this question does not arise on the record, as there is no defense relying on the immorality of the transaction. It seems to me, however, that the question is quite open and that it does not lie with the plaintiff to say that it is not. The plaintiff complains that the defendant assaulted her-that is to say, that he committed a forcible offense against her person. The defendant traverses the assault. Upon the evidence it appears that the use of the plaintiff's person, of which she complains, took place with her consent. and was, therefore, prima facie, no assault. She calls on us, however, to inquire further into the transaction-to ascertain whether, at the time of the particular act by which she alleges disease was communicated to her, the defendant was diseased, and knew that he was so, but suppressed the fact from her; and she asks us to determine and adjudge that, although she consented to the long course of concubinage or prostitution, and did in fact consent to the particular act of sexual intercourse in which disease was communicated to her-yet that her consent was null and vitiated by the suppression of the defendant, and that she is entitled to treat the particular act of sexual intercourse as an assault. It seems to me that the whole matter is open on the defendant's plea denying the assault, and that the moment it appeared, on the plaintiff's evidence, that the transaction itself was an immorality to which the plaintiff assented, there was an end of the action, so far as it related to the assault. Probably the more correct course for the judge at the trial would have been to have declined to enter on the inquiry which plaintiff's counsel demanded, and have non-suited the plaintiff-inasmuch as no action can be countenanced by the court which springs ex turpi causa.

But as the decision at the trial rested on Regina v. Bennett, 4 F. & F. 1005, it becomes necessary to consider that case. Mr. Justice Willes there assumes that the prosecutrix, being capable of consenting, had consented to sexual intercourse with the prisoner, but would not have done so if she had known he was diseased; and then, applying to the case the rule that fraud vitiates consent, held that the prisoner was guilty of an assault in the act of sexual intercourse. I may observe on the case that it is the great repute of the judge which alone entitles it to consideration.* The ruling of the judge is uncalled for by the facts. There was no consent to the prisoner's act. The girl stated that she fell asleep immediately on going to bed, and recollected nothing. She was not aware that sex

*See, as to the authority of nisi prius cases, Rowe v. Young, 2 B. & B. 185; Tompkins v. Wiltshire, 1 Marsh. 116; Johnson v. Lawson, 2 Bing. 86; Calcraft v. Thompson, 15 W. R. 387; and per Bayley, J., in 1 Chit. R. 121. As to Foster and Finlason, see Harvey v. Mayne, 6 Ir. L. T. Rep. 131; Re Connor. 8 Ir. Jur. N. S. 325.

ual intercourse had taken place, but a week afterwards was found to be infected with disease. The prisoner was undefended and no question was reserved. The case resulted in a correct verdict if, as appears, there was no consent in fact to the sexual intercourse. Assuming, however, that there was evidence of consent, and taking the proposition as stated, which the judge intended to decide, it seems to me that it was a mistake to apply the principle to such a case, and that the consequence of doing so would be most serious. There is no doubt that fraud may vitiate consent; or, to apply it more familiarly, every contract implies consent, and no valid contract can be founded on a fraud. Fraud nullifies a contract; and if an action is instituted to enforce a supposed contract, it is a good answer that the defendant's assent to it was obtained by fraud; or a suit may be instituted to rescind a contract on the ground that the plaintiff was induced to enter into it by fraud. But Regina v. Bennett, is the first instance in which the maxim was applied to an agreement for immoral sexual intercourse. I have always understood that the whole of a contract for an immoral purpose was absolutely void. If the maxim is to be so applied, where are we to stop? We must necessarily apply the rule" suppressio veri" in favor of the common prostitute, who chooses to allege that some one of the people who have used her for pay has communicated disease to her. Respect for the court prohibits me from following out the numerous and graphic illustrations put by the defendant's senior counsel. I may point out that Regina v. Bennett rests not on the vitiation of consent, but on the aggravated results. Thus, the judge says that it was the fraud practised on the girl in concealing the fact of the prisoner's diseased state, which vitiated her consent to sexual intercourse; but, would the indictment lie for an assault if it had not been for the subsequent result? Regina v. Bennett is, in truth, a case in which a familiar maxim was strained and misapplied to reach a person who had, undoubtedly, been guilty of a great moral offense.

We must not confound Regina v. Bennett with a class of well-decided cases where the female, having submitted to particular treatment, was fraudulently subjected to sexual intercourse, such as Regina v. Flattery, 13 Cox. C. C. 388. Rape on Lavina Thompson, aged nineteen; the prisoner professing to give medical advice, had sexual connection with the girl, having fraudulently induced her to believe that he was treating her medically, and to submit to his treatment because she so believed. The court held (lamenting the decision in Regina v. Barrow, 11 Cox. C. C. 191) that there was no evidence of consent. The prosecutor submitted to a surgical operation for her cure. The prisoner fraudulently did another thing. She never consented or knowingly submitted to sexual connection. So, in Regina v. Lock, 2 Cr. Ca. R. 10, it was held that mere submission by one who does not know the nature of the act to be done can nct be consent. The case of Regina v. Case, 1 Den. C. C. 580, was an indecent assault on Mary Impett, a girl of fourteen, under pretense of med

ical treatment.

She submitted, believing it was medical treatment. Per Curiam-She consented to one thing; he did another materially different. PATTERSON, J. The argument confounds active consent with passive non-resistance. PLATT, B. Here non-resistance was caused by fraud, and he is therefore criminally responsible. In the case before us the plaintiff actively consented to the very thing that is to say, to sexual intercourse, with full knowledge and experience of the nature of the act. If Regina v. Bennett is law, the statute 12 & 13 Vict. c. 76, s. 1-re-enacted 24 & 25 Vict. c. 100, s. 49-was not necessary. By this enactment it is provided that whoever shall, by false pretences, false representations, or other fraudulent means, procure any woman or girl under the age of twenty-one years to have illicit intercourse with any man, shall be guilty of a inisdemeanor. Regnia v. Bennet derives no weight from Regina v. Sinclair 13 Cox. C. C. 28, save the acquiescence of the judge in the maxim that consent will be vitiated by deceit. It was admitted in that case that there was no evidence of such an amount of resistance as would justify a conviction for rape, but the girl did resist, and there was nothing from which consent could be inferred. The prisoner was convicted of an assault doing actual bodily harm, and I am not quite able to see how that verdict could be sustained in the particular case where the case failed as a rape. In Regina v. Bennett it seems to have been forgotton that, as a general rule, an indictment does not lie for a mere private injury, unless it, in some measure, concerns the Crown, as representing public interest, or is accompanied by circumstances which amount to a breach of the peace. It was urged for the defendant that, even though Regina v. Bennett was well decided, yet that it did not follow that a civil action to recover damages will lie in respect of the same transaction. This is one of the difficuties which flows from Regina v. Bennett. An assault is properly defined to be the commission of, or an attempt to commit, a forcible crime on the person of another; and if the transaction amounts in law to a criminal assault the logical result would seem to be that an action for damages may be maintained. But, as an indictment lies only in the public interest, and not for a mere private injury, so there are many cases in which an indictment may be sustained, and yet no action lies for civil redress by any of the parties to the illegal transaction. In my opinion, even if the ruling in Regina v. Bennett was correct, I should be prepared to hold that no action for an assault could, under the circumstances, be maintained. Fraud may vitiate consent, even in such a case, for the purposes of criminal justice, though I may doubt its applicability where there has been no breach of the public peace. But can such suppression as is here alleged confer a right of action. In my opinion it can not.

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plaintiff should be set aside and a non-suit entered if there has been a reservation at the trial, Although one can not fail to have commiseration for the unhappy plaintiff, yet I am not unwilling by this decision to endeavor to relieve this court from assuming the active guardianship of prostitution, or the duty of enforcing the rule uberrimæ fidei in immoral contracts or transactions. BARRY, J., concurred.

Conditional order made absolute.

NOTE.-It had been long a moot question of criminal law as to whether such an act as was committed in this case constituted an assault; but, although doubt had been frequently expressed as to whether it could amount to a criminal offense, still there were decisions to which we shall presently refer which would seem to point in that direction. But it had never yet been contended that such an assault could constitute a cause of civil action. The principal case relied on for the plaintiff was Regina v. Bennett, 4 F. & F. 1005, where the law is laid down by Mr. Justice Willes in the broadest possible way, as follows: "An assault is within the rule that fraud vitiates consent, and, therefore, if the prisoner, knowing that he had a foul disease, induced his niece to sleep with him, intending to possess her, and infected her, she being ignorant of his condition, any consent which she may have given would be vitiated, and the prisoner would be guilty of an indecent assault." Nothing could be more explicit than this, and if it were law it would have established the case of the plaintiff to a considerable extent. But we must consider what the circumstances of the case were which drew from that very eminent judge this strong expression. There the prisoner was indicted for indecent assault upon his niece, a child of thirteen years. It appeared he had given liquor to her before she went to bed, and that she had fallen asleep, and while so asleep the act of intercourse was committed. Of course such an act, committed under these circumstances, plainly amounted to an assault; there had been no consent on the girl's part of any kind, and the fact that she had acquired a venereal disease in consequence, though no doubt an aggravation of the offense, did not constitute in any way the offense itself, which was complete quite apart from any such circumstance. It will be seen that the observations of the learned judge we have quoted were entirely extra-judicial. At best his decision was only a nisi prius one, and not entitled to the respect always due to the fully considered decisions of Mr. Justice Willes. The only other case cited as bearing out this doctrine was Reg. v. Sinclair, 13 Cox C. C. 28, where Mr. Justice Shee acquiesced in the maxim that in such a case fraud may vitiate consent; but there was abundant proof in that case of absence of consent, in fact, of positive resistance, although not enough to justify a conviction for rape. That case loses some weight in consequence of its not having been reported for several years after its decision, and as the dictum of the learned judge was unnecessary to the decision of the case, it is not entitled to more consideration than Bennett's case. These two cases are virtually the only ones to be found on the subject, for the class of cases where a woman consented to intercourse under the impression that she was submitting to a medical operation, induced by the fraud of the prisoner, as in Rex. v. Flattery, 13 C. C. C. 385; 46 L. J. M. C. 130, are plainly distinguishable. In that case, which Sir J. F. Stephen observes "has thrown much uncertainty over the law" (Dig. Cr. L. 171), the female consented to one thing and the prisoner did another in its very nature different, while in the present case the woman was a consenting party to the immoral act. The Lord Chief Justice, however, was

of opinion, differing from the majority of the court, that the action lay. He observed: "It is not difficult to suggest cases of a less unpleasant character than that immediately before the court. If a patient submits to the performance of an operation by a surgeon, he can not treat that as an assault nor complain of injurious consequences; but supposing that the operator used in the operation a poisoned instrument, knowing the injurious consequences that would follow, could not the person injured sustain an action of assault, as for a trespass committed on the person without his consent? Could he not establish that to such an operation involving such consequences he did not consent, though he did permit an operation of a different character?" A contrary view was, however, taken by Mr. Justice Barry and Mr. Justice Fitzgerald, the former observing: "In the present case the plaintiff deliberately and knowingly consented to the act of sexual intercourse which is the assault relied on. The alleged fraud was the concealment from her, not of the act of assault, but of the danger of a physicial consequence of her willful act of immorality; and I do not think she ought to be heard either in, a civil or criminal court to allege that the act was done against her will so as to constitute an assault. Volenti non fit injuria.” This view of the case was also taken by Mr. Justice Fitzgerald, who further observed, and in our opinion most properly, that such causes of action were unfit for the dignity of a court of justice, and that no person whose hands were unclean should be suffered to approach the temple of justice. On this point, and on the application of the doctrine ex turpis causa non oritur actio, as well as the act complained of did not constitute an assault, the court decided against the action, refusing to follow R. v. Bennett. We have no doubt the decision was a sound one, and trust this unsavory cause of action will never again be brought in our courts. That a transaction directly involving a violation of established rules of decency and morality, even though not forbidden by the common law under penalties, comes within the meaning of the turpi causa, we have no doubt whatever. In the words of Bramwell, B., “ A thing may be unlawful in the sense that the law will not aid it, and yet that the law will not immediately punish it." Cowan v. Milbourn, L. R. 2 Ex. 236. And while we fully agree with Mr. Justice Fitzgerald in this respect, we also agree with him in holding, on the authority of Fivaz v. Nicholls, 2 C. B. 501, 513, that the maxim is not confined to causes of action ex contractu. At the same time we can not but share in the natural reluctance expressed by the Lord Chief Justice to allow a wrong-doing defendant to escape under cover of that doctrine; but we must remember that, in the words of Lord Mansfield, "it is not for his sake that the objection is ever allowed, but it is founded in general principles of policy which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff by accident, if I may say so. The principle of public policy is this: Ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then, the court says, he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it; for, where both are equally in fault, potior est conditio defendentis." Holman v. Johnson, Cowp. 343. But, on the other hand, as regards consent to the assault complained of, it must be borne in mind that the plaintiff is in the better posi

tion; for so jealous is the law of such a defense being set up (as where a school-master takes liberty with a female scholar, R. v. Nichol, Russ & R. 130; or where a doctor pretends that it is necessary to strip a female patient; R. v. Rosinski, 1 Moody, C. C. 19), that it is incumbent on the defendant to show in the clearest manner that the act was committed with complete, and not merely simulated consent, otherwise the presumption will be against him. Weaver v. Ward, Hob. 134; Dickenson v. Watson, T. Jones, 205.-[ED. IR. L. T.

NOTES OF RECENT DECISIONS.

TRIAL BY JURy of Minor OFFENSES.-People v. Justices of Special Sessions. New York Court of Appeals, 18 Alb. L. J. 254. Opinion by CHURCH, C. J. 1. The constitutional provision that "the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever," does not apply to petty offenses triable before a court of special sessions. 2. Relator, who was charged before a police justice in New York city with an assault and battery, elected to be tried by the special sessions, gave bail to appear at such court for trial, appeared and was tried by the court without a jury without objection, and was convicted. Held, 1. That relator had not a right to a jury trial which could not be waived. 2. That by giving bail the court did not lose jurisdiction; and 3, that his trial and conviction were not error.

BILL OF EXCEPTIONS-DUTY OF JUDGE- MANDAMUS.-Page v. Clopton. Supreme Court of Appeals of Virginia, 2 Virginia L. J. 560. Opinion by BURKS, J. 1. On the 22d of March, 1878, a judge in court, imposed a fine on P, an attorney, for alleged contemptu. ous behavior in the presence of the court, and, at the same time, a motion was made by another attorney to remit the fine, which motion was continued until a further day. On the 25th of the same month, the court overruled the motion to remit the fine, and ordered the sergeant to take P in custody, and detain him until the fine was paid. P was in court on both of these days, and no exception was taken to the action of the court. On the 27th of the same month, and during the same time, P, who had paid the fine under protest, appeared in court, and offered to except to the judgment imposing the fine, and moved the court to certify the facts on which the judgment was ordered, and that witnesses be called to testify to these facts, which, for reasons stated by the court, was refused. No bill of exceptions appeared to have been tendered on this day, but on the 30th day of the same month, the last day of the term, P tendered three bills of exceptions to the judgment and rulings of the court, which the judge refused to sign, and P applied for a mandamus to compel him to sign the same. Held, (1.) The writ of mandamus will lie to compel the judge to sign bills of exceptions in this case, if "the truth of the case be fairly stated therein." (2.) When a bill of exceptions is tendered, which does not fairly state the truth of the case, it is the duty of the judge, with the aid of the counsel, to settle the bill, and when settled to sign it, and if he refuses to do this, mandamus will lie to compel him. 2. The usual practice is to give notice of the exception at the time the decision is made, and reserve liberty to draw up and present the bill for settlement and signing, either during the trial, or after the trial, and during the term, as may be allowed by the court, but it must be signed during the term at which final judgment is rendered; and it will be disregarded in the appellate court if signed after the end of such term, although signed pursuant to a previ ous order allowing it, unless, perhaps, such order be

made by consent of parties. 3. The office of the writ of mandamus is to compel corporations, inferior courts, and officers, to perform some particular duty, incumbent upon them, and which is imperative in its nature, and to the performance of which the relator has a clear legal right, without any other adequate specific legal remedy to enforce it; and even though he may have another specific legal remedy, if such remedy be obsolete or inoperative, mandamus will lie. The remedy is extraordinary, and if the right is doubtful, or the duty discretionary, or there be any other adequate specific remedy in use, the writ will not be allowed.

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EJECTMENT LIMITATION ACT PAYMENT OF TAXES FOR SEVEN YEARS.-This was ejectment originally brought by A, but he having died, L as his devisee was permitted to prosecute as plaintiff. There was a trial by jury and a verdict for plaintiff as to one-fifth of the premises and for defendant for four-fifths. from which plaintiff appealed. The plaintiff made out a clear title from the Government and rested. The defendant claimed to defend under the first section of the limitation act of 1839. He succeeded in showing color of title and payment of taxes for seven successive years, and possession taken. BREESE, J., who delivered the opinion, says: "The infirmity of his (defendant's) case rests in this that his first payment of taxes to make seven years was not seven years before suit was brought. Suit was brought December 18, 1875. Taxes were first paid by defendant February, 1868. Under the limitation act the concurrence of three things is required before the limitation is complete, namely, color of title, possession and payment of taxes. And, further. the payment of the taxes for seven years, coupled with color of title and possession is not alone sufficient to create the bar. A period of seven years must have intervened between the day when the first payment of taxes was made and the day of the commencement of the suit. See 45 Ill. 478, and 46 Ill. 519. There not being the requisite concurrence to support defendant's claim, judgment should have been rendered for the plaintiff for the land." Reversed. Lyman v. Smilie.

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CONTRACT CERTIFICATE OF QUALIFICATION -POWER OF SCHOOL DIRECTORS TO CONTRACT WITH TEACHERS. Plaintiff brought suit against school directors of district No. 1, on a contract to teach school for the term of nine months, alleging that he was ready and offered to teach the school, but was prevented from so doing by the school directors. On the trial he offered in evidence an instrument of writing tending to prove the making of a contract. This was excluded. He also offered to prove that when he was on the way to the school-house he was met by two directors and requested to delay commencing the school for one week on account of bad roads, which he agreed to, and that before that time he was notified that his services were not needed. This was also excluded. Judgment was rendered for defendants, and

the only question is, whether the court erred in excluding this evidence. SCHOLFIELD, C. J., who delivered the opinion, says: "It does not appear from the abstract that appellant proved, or offered to prove, that when the contract was made or when the school was to have been commenced he had a certificate of qualification as teacher obtained under the provisions of the statute. But waiving this objection, how

ever, we are of opinion that the court properly excluded the evidence offered of the written contract, because school directors have no power to make contracts for the employment of teachers for terms to commence beyond the expiration of the current school year. The law provides that * * it is

the duty of this (school) board to establish and keep in operation for at least five months in each year, etc. It is here seen that power is given alone with reference to the current year. The rule is familiar that the powers of school directors are limited to those expressly granted, or such as result by necessary implication from those granted. We think the spirit and intent of the law is clearly repugnant to the idea that one board of directors may, by contract wholly to be carried out in the future, divest future boards of directors of the power to select the teachers they shall desire for the terms to be commenced after their organization." Affirmed.-Stevenson v. School Directors.

REPLEVIN-LEVY OF EXECUTION-CLAIMING OF EXEMPTION.-This was an action of replevin for corn standing in the field, which had been levied upon by the defendant as constable, under execution against the plaintiff. Plaintiff had raised the crop as tenant, and was to have three-fifths of it. The property was claimed by plaintiff under the 9th clause, 13th section, Rev. Stats. 499, in relation to property exempt from execution, which is as follows: "Ninth.-One hundred dollars worth of other property, suited to his or her condition in life, selected by the debtor." Plaintiff claimed and replevied the whole crop. The testimony showed that such three-fifths was worth more than $100. The court below refùsed this instruction, asked by defendant: "The court instructs the jury that, before the plaintiff in this case can recover the corn in question, he must show that he demanded and claimed it as exempt, and selected it as exempt before levy, or as soon as he had notice of such levy; yet, if the jury believe that his interest in said corn was worth more than $100, then plaintiff could not select it as exempt wthout specifying a portion thereof, not exceeding in value $100; and, unless they believe such selection was so made, the law is for the defendant on this point, and the jury will so find." The court say: "The instruction should have been given. The statute requires the debtor to make the selection, and it should be done at the time of the levy, or when the execution debtor has notice of it, to afford an opportunity to levy upon other property, or resort to other means for the collection of the execution." Held, also, that an instruction to the jury that "it is their duty, under the law, to construe the exemption law liberally towards the plaintiff," is erroneous. Reversed.-Amend v. Smith.

PRACTICE AFFIDAVIT OF MERITS-LEAVE TO AMEND.-This was an action of assumpsit upon a promissory note. Plaintiff filed with his declaration an affidavit of claim. Defendant pleaded the general issue, and filed therewith an affidavit of merits, which was sworn to before a notary, who had failed, however, to affix his official seal. The plea was stricken from the file, and judgment rendered for the plaintiff. When the motion was made to strike the plea from the files for want of a sufficient affidavit, defendant did not abide by the affidavit, but asked leave to amend it. This the court refused, unless defendant would show a meritorious defense. Appellant then asked for time

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