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'the rule that an admitted or clearly established mis Louis, and employed by defendant in that capacity for apprehension of the law does not create a basis for the seven inonths, does not imply that there was a special interference of courts of equity, resting on discretion, contract for a year. The time for which he was bired, and to be exercise I only in the most unquestion : and the question of the power to discharge, are still ble and flagrant cases is certainly more in consonance open. And, where plaintiff was hired by a special with the best considered and best reasoned cases upon 1 agent with limited powers, the burden is on plainlift the point, both Englieh ard American.' The same to show the special contract, and the authority of the author suys: "We trust the principle, that cases may agent to make it. 2. The issue as to the authority of and do occur where courts of equity feel compelled to the special agent to employ general agents for a year grant relief, upon the mere ground of the misappre could not be affected by testimony as to a custom of hension of a clear rule of law, which has so long employing general agents of insurance companies. maintained its standing among the fundamental rules Evidence of a custom to employ such agents for one of equity jurisprudence, is yet destined to afford the year and more was erroneously admitted against the basis of many wise and just decrees, without infring. objections of defendant. 3. The construction of the ing the general rule that mistake of law is presumpt by-laws of a corporation is for the court, not for the svely no sufficient ground of equitabıle interference.' jury. 4. Evidence of a recognition of plaintiff by deIn the case under consideration the alleged mistake is sendant as its general agent did not tend to prove that proven to the entire satisfaction of the court. It is he was employed by the year, or for a year. Reversed equally clear that the assent of Keith to the insurance and remanded. Opinion by HAYDEN, J.-Bougher 0. being made in his name was superinduced by the rep Maryland Life Ins. Co. resentation of the company's agent, that insurance, in that form, would fully protect the interest of the firm

APPEAL-REHEARING-PRINCIPAL AND SURETY. in the cotton. Assuming, as we must from the evidence,

-1. One of several parties to a suit, though on the same that this representation was not made with any inten

side, may appeal without the concurrence of his cotion to mislead or entrap the assured, it is, however, parties. 2. A motion for rehearing may be filed when evident that Keith relied upon that representation, exceptions to the report of a referee are overruled, and, not unreasonably, relied also upon the larger and such motion has all the etfect of a motion for a new experience and gr ater knowledge of the insurance trial in an ordinary case, and suspends the judgment agents in all matters concerning the proper mode of

until its decision. 3. Where sureties engaged for the consummating, by written agreement, contracts of in faithful discharge of the duties of a book-keeper of a surance according to the understanding of the parties. city bank, and the principal in the bond was employed He trusted the insurance agents with ihe preparation in the double capacity of book-keeper and teller withof the written agreement which should correctly ex out the knowledge of the sureties, and whilst thusem. press the meaning of the contracting parties. He is ployed he made false entries in the books of the bank, not chargeable with negligence because he rested in by which erroneous payments of money made by him the belief that the policy would be prepared in con as teller were concealed, or in consequence of which formity with the contract. As soon as he had a reasona they were made and loss accrued to the bank, it is im. ble opportunity to consult counsel he discovered ihe material whether the loss of the bank was caused by mistake, and insisted upon the rights secured by the the wrong-doing of the employee as book-keeper, or original agreement. A court of equily could not deny by his wrong-doing as teller. In neither case, can the relief under such circumstances, without enabling the i sureties be held, where it is found as a fact in the case insurance company to obtain an unconscionable ad.

that the offices of book-keeper and teller are quite disvantage through a mistake for which its agents were

tinct, and that those of a teller are more responsible, chiefly responsible. In all such cases, there belng no and that, as teller, the employee was afforded oppor. laches on the part of the party in discovering and al tunities and exposed to temptations to take money of leging the mistake, equity will lay hold of any addi

the bank, which, as book-keeper, he would not have tional circumstances, fully established, which will jus.

had. The change imposed upon the sureties a risk tify its interposition to prevent marked injustice

wbich they did not undertake, and exonerated them being done. Wheeler v. Smith, 9 How. 82. In

from all liability on the bond. 4. To accept a surety deciding, therefore, as we do, that the complain

known to be acting on a belief that there are no upuants are entitled to have the policy reformed in ac

su:) circumstances by which his risk is materially in. cordance with the original agreement, it is not per

creased, whilst the party thus accepting him knows ceived that we enlarge or depart, in any just sense,

that there are such circumstances, and withholds tbe from the general and salutary rule that a mere mistake

knowledge from the surety, is a legal fraud by which of law, stripped of all other circumstances, constitutes

the surety is discharged. Reversed and remanded. no ground for the reformation of written contracis."

Opinion by Bakewell, J. Home Savings Bank t. Snell 0. Atlantic Fire and Marine Ins. Co. Appeal

Traube. from the Circuit Lout of the Uuited States for the Northern District of Illinois. Opinion by Mr. Justice FIRE INSURANCE-CONDITION "KEEPING OR STORHARLAN, Decree reversed.

ING."-1. A clause in an insurance policy against “keeping or using camphene, spirit gas, burning fluid, or chemical oils," is not violated by using a buruing

fluid not in its nature like campbene or spirit gas. 2. ABSTRACT OF DECISIONS OF ST. LOUIS

The burthen of proof to show the character of the fluid COURT OF APPEALS.

used, and its similarity to those named in tbe same

clause of the policy, is on the insurance company. 3. [October Term, 1878.]

Keeping a burning fluid, the use of which is not, by

tbe express terms of the policy prohibited, as a light ju Hon. EDWARD A LEWIS, Presiding Justice.

moderate quantities, to fill the lamps used on tbe pren. ROBERT A. BAKEWELL, Associate Justices.

ises from day to day, is not "keeping or storing" the CHAS. S. HAYDEN,

oil in a sense intended to be prohibited by those terms,

nor was it "80 using the premises as to in. AGENT-HIRING FOR A YEAR – CUSTOM -- Evi: | crease the risk ” within the meaning of the pole DENCE.-1. Admission in tbe pleadings that plaintiff icy. 4. The case being tried, both on the pleadings was hired by defendant as its general agent in St. I ånd evidence, on the theory that there was a violation

of one special clause in a policy, it is too late to contend were not to be removed from Caldwell county. Plaintiff in the appellate court that there was a violation of oth furnished the cattle, delivered them to defendant, who er clauses not relied upon at the trial, Affirmed. Opin fed and took care of same, and threatening to remove ion by BAKEWELL, J. Wheeler v. American Cent. Ins. and dispose of the cattle, was enjoined by plaintiff Co.

from so doing, which injunction was by the trial court on the bearing dissolved and plaintia's petition dismissed. From this judgment plaintiff appeals, and

the main and controlling question in the case was, ABSTRACT OF DECISIONS OF SUPREME

whether the agreement as above stated entered into

between plaintiff and defendant constituted them COURT OF MISSOURI.

partners. Held, in the recent case of Donnell v.

Harshe, 67 Mo. 170, the subject of partnerships and October Term, 1878.

what constituted them was examined at some length as well as numerous authorities referred to, and the

court there held that an agreement whereby the tenant [Filed December 2, 1878.]

was to cultivate the farm of his landlord on sbares, the

Jandlord and tenant each defraying one moiety of the HON. T. A. SHERWOOD, Chief Justice.

expenses attendant on such cultivation, and sharing “ WM. B. NAPTON,

equally in the profits thereof, did not constitute a part* WARWICK HOUGH, \ Judges.

nership. The only difference between that case and “ E. H. NORTON,

the present one is, that here, with money furnished by “ JOHN W. HENRY,

plaintiff, cattle are purchased to eat the produce raised

on the farm. This fact does not distinguish it in prin. CRIMINAL LAW – RECORD MUST Show TWELVE ciple from the one just cited. A mere participation in JURORS PRESENT WHEN VERDICT IS RENDERED profit and loss does not necessarily constitute a partINDICTMENT FOR EMBEZZLEMENT-SUFFICIENCY OF nership. In this case the agreement does not confer AVERMENTS-FACTS TAKING CASE OUT OF STATUTE on each party power to manage the whole business and OF LIMITATIONS SHOULD BE STATED, - In 1876 de dispose of the whole property. The property in the fendant Myers was indicted under sec. 35, art. 2, ch. cattle remained in plaintiff, and no right to dispose of 42, Wag. Stat., for embezzleing certain United States them was conferred by the contract on defendant, nor bonds, charged to have been received by him as agent to reinove them from plaintiff's farm without his conof one Zumbro, and was convicted at February Term, sent, and the case falls within the rule announced by 1878, of Newton Circuit Court, to which venue bad Shepley, C. J., in Dwinel v. Stone, 30 Mo. 384. Rebeen awarded. It appears from the record that only versed and remanded. Opinion by SHERWOOD, C. J. eleven jurors were present when the verdict of the -Musser v. Brink. jury was received by the court. Held, 1. Tbis was a falal defect, and the judgment must be reversed. State v. Mansfield, 41 MO. 470. 2. The bonds were described in the indictment as "certain United States ABSTRACT OF DECISIONS OF SUPREME five-twenty government bonds, which are valuable securities of the value of five thousand dollars.”


This is sufficient; a more particular description not being required by the statute. Wag. Stat., 1091, secs. 28, 30.

December Term, 1878. Neither was it necessary to set out in detail the nature and purpose of the agency, the agency and the receipt

[Filed December 11, 1878.) of the bonds by the defendant in his capacity of agent being distinctly averred. The contract between de

Hon. W. W. JOHNSON, Chief Judge. fendant and owner of the bonds need not be set out,

JOSIAH SCOTT, but such contract when proven must establish an

46 D. T. WRIGHT, į Judges. agency within the meaning of the statute under which

LUTHER DAY, he was indicted, and not an ordinary bailment. 3. It

46 T. Q. ASHBURN, ) appears from the record that the indictment was found more than three years after commission of offense charged, although the indictment alleges commission

ACTION- LAND CONTRACT - FINAL JUDGMENT.of otřepse within tbree years. The better practice in

In an action to recover the balance due on a land consuch cases is to allege the time of commission of of.

iract, and to subject the land to sale for the payment

thereof, the defendant, by cross-petition, set up an alfense, and set forth the facts which avoid tbe bar of the statutes of limitations as an excuse for not having pre

leged cloud on the plaintiff's title to the land. The

court, on the trial, made an entry, finding that the ferred the indictment sooner, though it has been held

cloud had been removed; that the plaintiff had deposthat the offense may be alleged to have been committed

ited with the clerk of the court deeds conveying a clear within the time fixed by the statute, and that the facts

title; the amount due on the contract; and adjudging which suspend the running of the statute may be

the defendant to pay the amount to the clerk within proved at the trial. Reversed and remanded. Opinion

thirty days, and in default tbereof that execution issue by Hougu, J.-State v. Myers.

therefor; and on payment by lefendant that the deed LANDLORD AND TENANT — WORKING LAND OR be delivered to him. The land was sold, and for the PASTURING CATTLE FOR AN EQUAL SHARE OF palance remaining due au execution was issued on the PROFITS DOES NOT MAKE TENANT A COPART judgment and levied on other lands of the defendant, NER WITH LANDLORD.-Plaintiff leased to defendant | which were claimed by another party under a lien aca farm, and by the contract of renting it was agreed quired after the rendition of said judgment. Held, that plaintiff was to furnish money sufficient to pur that the entry so made was a final determination of the chase stock enough to eat up the grain and produce rights of the parties to the action, and was, therefore, raised by defendant on said farm, and that when any a judgment within the meaning of section 370 of the

a judgment within the meaning of section sale of such stock was made plaintiff' was to be refund code; and, being a final judgment against the debtor ed the purchase price of same, and the balance was to for the payment of money, under section 421, became be divided equally between the parties. The cattle ' a lien on his lands in the county where it was render

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The Central Law Journal. I wen non-disclosure of principal does not render agent



Acceptance of merchandise not presumed from refusal

to take it at present, and a promise to send for it when

needed, 419.
Nor of machinery put up for trial, from allowing it to

sland for a timu and occasionally using it. Ibid.
What amounts to “total disability" to transact busi-

ness, 15.
What is “immediate notice" required by policy, 15.


If action be brought on special contract, there can be no

recuvery on quantum merui , 77.
Will not lie against a person for suborning a witness to

swear falsely in a cause in another state, in conse.
quence of which a judgment was given against the de.
fendant in the latter state, contrary to the truth and
justice of the case, 139,
On proinise to pay "when able" can not bo maintained

without proof of ability to pay, 178.
Will lie ag iinst pirties who entice a person into an.

other state where he is arrested on civil process,

though debt justly due, 203.
No right of action arises from void contracts of county

court, 216.
Actions for harboring a wife, 230.
Can not be maintained for a constructive assault by in.

fecling plaintity with venereal disease where she con.
sented to the unlawful connection. Hegarty v. Shine,

Will lie against two or more persons who fraudulently

induce plaintiff to leave his home and travel into an.

other state, 376.
Survival of causes of, 481.


Construction of United States statute of 1851. ch. 43. ex.

empting ship owners from liability for loss by fire, 376.

Statement by plaintiffs in petition in bankruptcy against A

that latter owed them debt sued on, not conclusive
against their right to sue A's subsequently-discovered

principal, 18.
Liability of agent to principal for negligence in execut.

ing orders, 22.
An agent has no right, as against his principal, to pledge
his principal's property as security, or to transfer the
same for goods bought for himself. Victor Sewing
Machine Co, v. Heller, 86.
A person who deals with an agent knowing him only
as agent to sell, without other powers, and receives
the principal's property from the agent, will have no

right to keep the same as against the principal. Ibid.
The provisions of the Winconsin statute as to factors,

etc. (L. 1863, ch. 91, sec. 3) construed, and a person
who barters with an agent, held, not to be protected by

its provisions. Ibid.
Liability of directors of company for fraud of agent, 194.
Agent has no authority to receive payment in anything
but money, 194.

Vol. 7 No. 26.

When non-disclosure of principal does not render agent

liable, 231.
Authority conferred by acts of principal, 233.

Construction of authority to receive payment, 271.



Executions against trust funds and annuities, 483.
[As to appeals from Justices of the Peace, see JUSTICE

Motions and instructions are not a part of the record, on-

less incorporated in the bill of exceptions, and a bill of
exceptions which, instead of containing the motion
passed upon by the court, has memoranda for the clerk,
such as, where insert it," or, "see page - of the re.
cord,” is a mere skeleton, and insufficient to bring the
motion to the notice of the appellate court. City of

Jefferson v. Opel. with note, 46.
Oriticism and discussion of this case, 229.
Wuere trial was had before pro tem. judge, latter proper

party to sign and soitle "case made,” 117.
Where motion for non-suit has been granted for ingafl

cient reasons, if the record discloses any sufficient

ground for it, non-suit will not be disturbed, 160.
Appeal in probate proceedings nt severable, 179..
Abstract required by supreme court (III.), 214. .
When cause is remanded by supreme court with specific

directions, new trial on merits cannot be had, 217.
Defective recital in or departure from statutory form of

appeal bond, does not render it void, 257.
Costs expended in perfecting an appeal are costs of the

supreme court, 26).
Duty of judge as to signing bill of exceptions; mandam-

us, 295.
Some points of practics relating to appeals and writs of

error, 316.
Motion for a new trial and in arrest must be incorpora -

ted in oill of exceptions, 316.
In mandamıls proceeding objection that there was no de-

mand or refusal cannot be first made on appeal, 319.
Effect of appeal by party not summoned, 319.
Applicant may Alle his petition in error in district court

without leave, 378.
Proceedings for modifying judgment (Ohio), 398. .
Bill of review and petition for rehearing under Ohio

code, 393.
BAbstract of evidence required in supreme court, 416.
Objection that case is not triable de novo, and that no er-
rors have been filed by appellant, must be urged on
subinission of case, and not ground for dismissing ap -

peal, 416.
Order of probate court when not appealable (Ohio), 435.
Appeal by stranger to record, 438.
When a court erroneously grants a new trial, a party

duly excepting to such order may refuse to take part
in subsequent proceedings, and, after final judgment
against him, take advantage of such error in an appel-

late court. Blanchard v. Wolf, 4+5.
When such party participates in & subsequent trial, al-

though it may have been granted erroneously, he
thereby waives his right to coinplain of such error
thereafter. Ibid.
These principles apply as well to the rulings of an inter-
mediate appellate court (e. g., the general term) er.
roneously granting a new trial, as to the rulings of

the trial court proper. Ibid.
Objections to evidence not embodied in motion for new
trial, not noticed on hearing of appeal or writ of error,

One of several parties to a suit, though on the same side,

may appeal without concurrence of co-parties, 498.
A promise to pay in sawing and lumber will be appor.

tioned equally where the parties cannot agree and

neither hits the right to fix the proportion, 419.
Arbitrators have power, under a general submission, to

award costs, including their own fees, 375.
Assessment of value of leasehold improvements by arbi-

trators, 456.
A: arrest is not justified by the manner and appearance
of a person on being accused of a crime, 419.

eby Waives biso been granted agent trial, al.


the ground of

was not aware the lime he gave

What is an, 162.
Ip indictment for assault with deadly weapon, intent need

not be alleged, 198.
Party pointing loaded pistol at trespasser guilty of, 275
Constructive assault; action arising ex turpi causa; ac-

tion for infecting with venereal disease, 291.
Sufficiency of indictment for assault with a dangerous

weapon, 356.
If, in the transfer of negotiable paper, an endosement is

omitted, through accident, mistake or fraud, a good

title will pass in eqnity by mere delivery, 1.
Equitable assignment: order on prospective debtor to

pay money to become due on Contract; advances by
prospective debtor to enable contract to be completed,


When not effectual against non consenting creditors, 235.
Giving of bond does not prevent traverse of afidavit for

attachment. Lehman v. Berdin, 269.
It attachment be not sustained, plaintiff, though he re-

cover judgment, can noi resort to bond to compel pay.
mont. Ibid.
Practice in proceeding for, under Ohio Code, 377.
Attorney not liable for fees of sheriff for services rend.

ered for client, 6.
Illinois statuts authorizing parties to appear before jus.

tices of the peace, and conduct suits by their agents,
does not ender such agents attorneys at law, so as to
make privileged, communications made between a
buitor and such agent, 101,
The lien of a lawyer on land for professional services,
declared by order of the court in the case in which the
services were rendered. is entitled to priority of
satisfaction over the lien of a judgment.creditor of
client acquired by subsequent decree of the chancery
court, sale thereunder, and purchase of the land, where
the bill to enforce the lawyer's Jien is filed before the

sale is confirmed. Bi
Communications between attorney and client inadmissi-

ble unless offered in evidence by client, 196.
The measure of value of legal services, 302.
Privilege of accused to have communication made to at-
torney protected from disclosure, not waived by be.

coming a witness in his own behalf, 316.
Liability of attorney for loss occasioned by disregarding

instructions of ciient, 342.
Where judgment is confessed by attorney it will be good,

though attorney did so without authority, 343.
Suspension of attorney from practice; appeal does not

restore him to rights of attorney during its pendency,
Employment of attorney by state, not valid unless ex-

pressly authorized by law, 379.
Written agreements of attorneys, or those entered into

in open court, will be enforced; oral agreements, made
out of court, will not, 379.
Attorney's lien on land for services, when not allowed,

A client is entitled to the personal services of his attor.
ney upon the argument of his case. But the retainer
of one member of a firm is a retainer of all, and, unless
otherwise stipulated, the cause may be argued and

conducted by any one of them, 419.
An attorney may be disbarred for wrongfully appropri-
ating to his use money of a town, received by him as
collector of taxes, 440.
Though a client may change his solicitor whenever he

pleases, subject to the solicitor's lien, the lien doo- not
enable the solicitor to stay or delay the proceedings in

the suit, 481.
Selling withont disclosing name of owner liable upon an

implied warranty of title, 192.

Horse hired to go to G, but driven further; loss; liabil.

ity, 231.
A composition in bankruptcy, under the act of June 22,

1874, does not operate as a satisfaction of debts fraudu:
lently contracted, 1.
Powers of revocation and appointment to be exercised
by the bankrupt, do not pass to the assignee under $$
5014 and 5046 of the act. Jones v. Clifton, 89.

of value of les communicationaired by be.

Assis nee in bankruptcy may sue a national bank for
double the amount of usurious interest received by it
from the bankrupt, an assignee in bankruptcy being
within the term "Tegal representatives," as used in the
301h section of the bankrupt act, and the right of action
given by said section being a "claim" or "debt,"
which passed to the assignee under the bankrupt law,

Where a resolution of composition provides that the in.
stallments shall be secured by the notes of the debtor,
a creditor who has proved his debt can not sue for
his original debt in a state court, although the debtor
has made default in payment of one of the install-
menis. Deford v. Hewlett, with note by O. F. Bump,

Esq., 149,
Lien of judgment destroyed by discharge in bankruptcy

of judgment-debtor. Withers v. Stinson, 224.
Creditor who has refused consent to discharge can not
afterwards impeach the discharge on the ground of
fraud, unless, at the me he gave such consent, he
was not aware of the fraud, 262.
Debts not discharged by, 298.
Discharge in bankruptcy can not be collaterally attacked,

The word "assembled," in bankruptcy amendment act,

includes every creditor who appears at any session of
the meeting and proves his claim, though when yote is

taken he is not present, 435.
National bank located in New Jersey, but receiving de.

posits at office in Philadelphia, not liable to taxation in

latter state, 21.
Jurisdiction of state courts in suits against national

banks, 61.
A national bank is entitled to the same privileges, in re-
gard to charging interest, as is extended to tate bauks
of issue in the states in which it has been located, 96.
Power of national banks to take mortgages on real es.

tate, 97.
A mortgage to president of bank is a mortgage to the

bank. Ibid.
Liability of national bank for taking usurious interest, 122.
Liability of bank for payment of forged check, 137.
Bank acting as collecting agent of another bank liable for

loss which is the result of want of due diligence; illus-
tration. First Nat. Bk. of Trinidad v. First Nat. Bk, of
Denver, 170.
Power of banks to purchase notes (Kas.), 218.
A bank acung as the collecting agent of another bank,
has, in absence of special authority or usage, no right
to receive in payment anything but money, if it re.
ceives the check of he debtor on another bank, this is a
conditional payment oply, and it becomes the agent of
the drawer of the check lo receive the money thereon,
and until the money is received the payment is not

conaplete. Levi v. National Bank of Missouri, 249.
Effect of certification of check; failure of collecting

bank; right to collect and credit after suspension. Ibid.
A national bank may, in Massachusetts, sue on promis.
Bory note purchased by it. National Pemberton Bk. v.

Porter, 324,
National banks not liable for special deposits, 342.

Bank barred by representations of president, 379.

[See WILLS.)




Abbott's United States Digest, Vol. 8, 39.
Abridgment of New Jersey Laws, Honeyman, 40.
American Decisions, Vol. 3, 138; Vol. 4, 202; Vol. 5, 342.
" Law, Hilliard, 480.

" Introduction to, Walker's, Force, 399.
Baxter's Tennessee Reports, Vol. 3, 280.
Bay's Bench and Bar of Missouri, 359.
Bellinger's Oregon Reports, Vol. 6,379.
Bench and Bar of Missouri, Bay, 359.
Berry's Missouri Appeal Reports. Vol. 3, 240.
Bispham's Principles of Equity, 399.
Blickensderfer's Law Students Review, 40.
Bradwell's Examination Questions, 79.
Brandt's Law of Suretyship and Guaranty, 299.
Browne's Short Studies of Great Lawyers, 200.
Brown's Nebraska Reports, Vol. 7, 879.
Chaney's Michigan Reports, Vol. 34, 119.
Code of Civil Procedure, Iowa, Stacy, 220.

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