NOTE ON THE SUBJECT OF DRUNKENNESS AS AN EXCUSE FOR CRIME.-In determining what is the exact doctrine regarding the defense of drunkenness for a criminal intent, courts have met with no little difficulty. In cases of the kind under consideration it is supposed to be always remembered that the doctrine that "a man shall not be permitted to privilege one crime with another" has a special application; and therefore it has come to be a well established rule, and has been decided by the courts of last resort in almost every State in the Union,-that temporary insanity produced immediately by intoxication does not destroy responsibility, where the patient, when sane and responsible, made himself voluntarily intoxicated. And, although drunkenness can not be said to aggravate a crime in a judicial sense, yet it forms no defense or excuse for any crime committed whilst a man is in that condition. There is no question as to this. Drunkenness, so long as it does not prostrate the faculties, cannot be distinguished from any other kind of passion. If a man fires into a crowd of people with no specific intent to kill any particular individual,but only in obedience to a gross sensual indulgence, and death ensues, it is murder at common law.2 On the same principle, it would seem that a man, who voluntarily puts himself in a state of mind which causes him to take the life of another, is guilty, by construction, of the common law crime of murder.3 And this is true, although the party might not have contemplated the crime when sober.1

The difficulty is in applying this inflexible rule to the different individual cases as they arise. It appears, however, that when the state of drunkenness is such that any civil act would be void, the accused may still be held criminally responsible for a crime like murder. Some judges, indeed, have admitted a plea of exculpation when the crime was committed in a state of frenzy arising from habitual drunkenness; but this is not general. If the drunkenness has produced a diseased state of the mind, then a criminal act perpetrated by the person admits of exculpation, either on the ground of actual insanity, or of the want of sane consciousness of the act. And a fixed habitual madness which is the result of long continued habits of drunkenness will excuse; but insanity or a want of reason which is the immediate result of intoxication, affords no excuse for crime. Where it is shown that the defendant's mind has been so far destroyed by drunkenness as to render him mentally incompetent for the intelligent commission of a crime, although intoxicated at the time the act was perpetrated, this mental incapacity is considered a sufficient defense. And settled insanity produced by intoxication affects responsibility in the same way as insanity produced by any other cause.8

Drunkenness may be said to have two degrees in its effects upon the memory and discretion. The one of these is mere intoxication. No degree of this will palliate or excuse, where it is the effect of the voluntary

1 Wharton's Crim. Law, § 49; People v. Rogers, 18 N. Y. 9; Pirtle v. State, 9 Hump. (Tenn.) 665; Stuart v. State, 1 Baxter (Tenn.) 180; Schaller v. State, 14 Mo. 502; Harlow v. State, 21 Mo. 446; People v. Lewis 36 Cal. 531; Mercer v. State, 17 Ga. 146; Golden v. State, 25 Ga. 527.

21 Hawk. P.C. c. 31, 5, 18; 1 Hale, P.C. 451; 4 Black Com. 199.

3 Taylor's Med. Jur. 712.

4 Regina v. Reeves, Derby Winter Assizes, 1814.

5 Taylor's Med. Jur. 709.

6 Cornell v. State, M. & Y. (Tenn.) 149; Pirtle v. State,

9 Hum. (Tenn.); Stuart v. State, 1 Bax. (Tenn.) 180.

7 Bailey v. State, 26 Ind. 422; Chuck v. State, 40 Ind. 263.

8 Whart. Crim. Law. § 48.

act of, the defendant.9 The other effect of drunkenness is mental unsoundness, brought on by excessive drinking, which remains after the intoxication has subsided. This latter mental unsoundness, if it exists to such an extent that the accused loses the government of his reason, may be interposed as a palliation or excuse.10 If a man commits any criminal act while laboring under a fit of delirium tremens or mania a potu he cannot be made responsible; he in fact receives the same consideraiion from the courts as that given to any other species of insanity. The only reason for assigning a higher degree of responsibility in cases of crimes committed by persons while their minds are thus dethroned, is that it is the natural consequences of their own acts. To this, however, it may be answered that delirium tremens is not the intended result of drink, as drunkenness is, but is shunned rather than courted by the patient, and is impossible to be assumed in order to cover guilt." The test seems to be that if the party who commits a criminal act while in a state of mania a potu, which is so confirmed as not to allow the defendant to know the nature of the act, or whether it was wrong or not, he is not responsible, although such insanity is produced by the voluntary use of intoxicating liquors.12 A different rule prevails however in these cases from other cases of insanity. It is an established rule that where insanity is once shown to exist its continuance is presumed until the contrary is proved. But where delirium tremens is set up as a defense the prisoner must show that he was under a delirium at the time the act was perpetrated, there being no presumption of its existence from antecedent fits from which he has recovered.13 So much weight is given to the plea of mania a potu that acquittals have even taken place where there was deliberation, as well as an apparent motive for the crime.14

While intoxication per se is no defense to the fact of guilt, still, when the nature and essence of a crime is made to depend by law upon the peculiar condition of the criminal's mind at the time and with reference to the act done, drunkenness as a matter of fact affecting such condition of the mind is a proper subject for consideration by the jury.15 If the existence of a specific intent is essential to the commission of a crime, drunkenness which so beclouds the intellect as to render the criminal incapable of forming that particular intent, will excuse him from that particular crime. In those States where murder is resolved into two degrees, making murder in the first degree depend upon a premeditated design, proof of drunkenness becomes material. If the intoxication is such as to preclude the inference that the criminal was capable of premeditation and of forming a specific intent to take life, it will excuse him; and, in the absence of any circumstances indicating premeditation, the offense will be reduced to that of murder in the second degree, or of manslaughter. The question in such cases is, whether

9 State v. Bullock, 13 Ala. 413; 50 Ala. 152.

10 13 Ala. 413; 50 Ala. 152; U. IS. v. Drew, 1 Lead. Cr. Cases, 115 and notes.

11 4 Black. Com. 26; Bailey v. State, 26 Ind. 422; Chuck v. State, 40 Ind. 263; Bennett v. State, M. & Y. (Tenn.); 133; Beasley v. State, 50 Ala. 149; Stuart v.State, 57 Tenn. 178; Rogers v. People, 19 Mich. 401.

12 U. S. v. McGlue, 1 Cranch C. C. 1.

13 State v. Sewell, 3 Jones, (N. C.) 245.

14 Taylor's Med. Jur. 711.

13 Pirtle v. State, 9 Humph. (Tenn.) 664; Lancaster v. State, 2 Lea, (Tenn.) 576; Mc Intyre v. State, 38 Ill. 514; People v. Williams, 42 Cal. 344.

16 State v. Johnson, 41 Conn. 584; Jones v. Com. 75 Penn. St. 403; Rafferty v. People, 66 Ill. 118; Pirtle v.

the defendant was capable of a specific intent to take life. But a drunken man may commit wilful and premeditated murder.17 If he do it by poison knowingly administered, or by lying in wait, these facts are as conclusive against him as if he were sober; or if it appear from any other circumstances that the murder was deliberate and premeditated, the fact of drunkenness will make no difference in the verdict. The same considerations apply to all other questions of intent. Where a statute makes an offense to consist of an act committed with a particular intent, which act and intent constitute substantially an attempt to commit a higher offense than that accomplished, if the criminal was so intoxicated at the time the crime was perpetrated as not to know what he was doing or why he was doing it, he will be acquitted of the offense.18

On the charge of passing counterfeit money, the fact of drunkenness may be taken into consideration by the jury in determining whether the defendant knew the bill to be counterfeit.19 To a charge of perjury also drunkenness may be a good defense.20

If a person is so susceptible to stimulants, from constitutional peculiarities, that even a slight indulgence provokes virtual insanity, and he is aware of this tendency, no temporary insane condition produced by this cause will excuse; but if he does not know of this peculiarity of his constitution, he will not be held responsible for the intoxication nor its consequences; and, a fortiori, where the stimulant is given through the mistake or misconduct of others.21

One who has given but a casual glance to the decisions of courts in this country on this subject, may well conclude, therefore, that the law does not make the drunkard's path one of roses.

1. APPELLATE PROCEDURE. [Amendment of Pleadings.]-No Reversal to Allow Amendment Enlarging Prayer for Relief.-Where the court grants relief consistent with the facts proven, without directing the complaint to be amended to pray for such relief, the want of amendment will not be ground for reversing the judgment. [In the opinion of the court by Taylor, J., it is said: "Section 2886, Rev. St. 1878, reads as follows: "The relief granted to the plaintiff, if there be no answer, cannot exIceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.' The relief granted in the case at bar was consistent with the case made by the complaint. The case made by the complaint showed that the plaintiff

was entitled to a strict foreclosure of the defendant's rights and interest in the land, and that was the relief granted by the court. It is true, the relief was not granted upon the facts stated in the amended complaint; but it was granted upon the facts proved, and other facts admitted by the answer of the defendant, which the plaintiff had the right toavail himself of, as evidence showing himself entitled to the relief he obtained from the court. There could certainly be no objection to amending the complaint so as to make it state the case as admitted by the defendant's answer, and ask relief consistent with the case so stated. In the case at bar the court granted the relief upon such a state of facts, without directing the complaint to be amended. In such case the want of an amendment of the complaint is no ground for reversing the judgment; for the purpose of sustaining the judgment it will be deemed amended. The following cases support the practice in the case at bar: Leonard v. Rogan, 20 Wis. 540; Stroebe v. Fehl, 22 Wis. 337; Hopkins v. Gilman, Id. 476; Brook v. Chappell, 34 Wis. 405410; Sage v. McLaughlin, Id. 550-557; Amory v. Amory, 26 Wis. 152-161; Emery v. Pease, 20 N. Y. 62-64; Boyd v. Dowie, 65 Barb. 241; Getty v. Spaulding, 1 Hun, 115; Hier v. Staples, 51 N. Y. 136."] Forcy v. Leonard, S. C. Wis., June 1, 1885; 24 N. W. Repr. 78.

2. ASSIGNMENT. [Draft.] - When Draft on Assignment of Debt.-A drew a draft on B, payable thirty-six days after date, for the amount due from him for merchandise sold by A, attached the account thereto, and had the draft discounted by a bank. Subsequently suit was instituted against A, and B garnished, whereupon the bank intervened and claimed the amount due from B. Held, that the draft amounted to an assignment of the debt, and that the amount due by B was not subject to garnishment by A's creditor:. [In the opinion of the court, Cooley, C. J., says: "In the recent case of Grammel v. Carmer, 54 Mich. —; 8. C., 21 N. W. Rep. 418, the question whether a draft was an assignment of the fund in the drawee's hands, to the extent of the sum drawn for, was considered and decided in the negative. That, however, was the case of a banker's draft, and it was not drawn for the whole fund in the drawee's hands. Many cases were cited in the opinion filed in that case, and the following, not then cited, are to the same effect: Shand v. Du Buisson, L. R. 18 Eq. 283; Lewis v. Traders' Bank, 30 Minn. 134; 8. C., 14 N. W. Rep. 587; Jones v. Pacific Wood, etc. Co., 13 Nev. 359: Rosenthal v. Masten Bank, 17 Blatchf. 318; Dolsen v. Brown, 13 La. Ann. 551; Sands v. Matthews, 27 Ala. 399. But this case differs from Grammel v. Carmer in the fact that the draft now in question was drawn for the exact amount of a sum claimed to be due from the drawees to the drawer for a bill of merchandise, and that the account was attached to the draft, evidently for the purpose of being sent forward with it. When thus sent forward, it would explain to the drawees the account on which it was drawn; but it must also have been understood to serve a further purpose, namely, to be evidence in the hands of the drawees that the account was paid when the draft was taken up by them. There could be no sufficient reason for attaching it at all, unless it was understood that payment of the draft would be payment of the account as well. By the general commercial law, as was said in Grammel v. Carmer, the purchaser of a draft is supposed to take it in reliance upon the re

sponsibility of the drawer, and he has no other reliance until it is accepted. This is the general rule. But if the draft is for the whole amount of a fund, the draft may, in connection with other circumstances, tend to show an intent that it should operate as an assignment. First Nat. Bank of Canton v. Railway Co., 52 Iowa, 378; s. c., 3||N. W. Rep. 395. And whereas, in this case, the draft is for the amount of an account, and the account is attached, the purpose to assign appears on the papers themselves, and they need no support from collateral circumstances. The payee, then, in taking the draft has a right to understand that, in addition to the responsibility of the drawer, he has such security for payment as may be supplied by the account, and that he may collect the account for the satisfaction of the draft. The drawer, by the papers, in effect, says to the drawee: "This is my bill against you, which I have sold to the payee by this draft, and you are requested to make payment of it to him.' This is what a business man would have a right to understand from them. The draft with the bill thus attached is not an ordinary bill of exchange, but it is an order that the debtor shall pay the amount of his debt to the person to whom it is delivered. The fact that the draft is negotiable in form is of no importance. It does not at all tend to rebut the evidence of intent on the part of the creditor to assign the demand."] Moore v. First Nat. Bank, S. C. Mich., June 10, 1885; 23 N. W. Repr. 800.

3. ASSIGNMENT FOR CREDITORS. [Interpretation.] Whether Deed Interpreted as an Assignment for Creditors or as a Mortgage.-Where an insolvent makes a conveyance of his property for the benefit of a portion of his creditors, the question, whether such conveyance should be regarded as an assignment for the benefit of creditors or a mortgage for the security of particular debts, is to be determined by the intention of the parties as it may be ascertained from the circumstances of the transaction. [In the opinion of the court by Reed, J., it is said: "This court has frequently heretofore had occasion to determine the legal effect of transactions in which insolvent debtors have made conveyances of all of their property for the benefit of a portion of their creditors, and it is settled by the cases that the question whether such conveyance should be regarded as an assignment for the benefit of creditors, or a mortgage for the security of particular debts, is to be determined by the intention of the parties as it may be ascertained from the circumstances of the transaction. If the conveyance is to a trustee, and the debtor intends to divest himself, not only of the title to the property, but of all control over it; if it is intended as an absolute conveyance of all of his property, and is made for the purpose of securing a distribution of its proceeds among his creditors, or a portion of them,-in legal effect it is an assignment for the benefit of creditors, no matter what name or designation the parties may have given it. On the other hand, if the intention of the debtor is merely to secure his debt to one or more of his creditors, and the conveyance is not intended as an absolute disposition of his property, but he reserves to himself a right therein, the conveyance will be treated as a mortgage, even though the debtor is insolvent at the time, and it covers all of his property, and but a portion of his debts are secured by it. Fromme v. Jones, 13 Iowa, 480; Lampson v. Arnold, 19 Iowa, 479; Farwell v. Howard, 26 Iowa, 381; Kohn v. Clement, 58 Iowa, 589; s. C., 12 N.

W. Rep. 550."] Cadwell's Bank v. Crittenden, S. C. Iowa, June 3, 1885; 23[N. W. Repr. 646. 4. CHAMPERTY. [Collateral Proceeding.]-Question of, Cannot Arise Collaterally.-If a conveyance of an undivided interest in land in the adverse possession of others is made under a champertous agreement, the adverse claimants can not avail of the champerty as a defense to a proceeding by the grantee for a partition. The question of champerty cannot properly arise except in a controversy between the parties to the alleged champertous agreement, or their privies. [In the opinion of the court by Mulkey, J., it is said: "While the cases are not all in accord on this question, we think the decided weight of authority sustains the position that champerty cannot be made available as a defense in a mere collateral proceeding, as is sought to be done here. Fetrow v. Merriwether, 53 Ill. 275; Boone v. Clules, 10 Pet. 219; Hillon v. Woods, L. R. 4 Eq. 432; Knight v. Bowyer, 2 DeG. & J. 444; Coleman v. Billings, 89 Ill. 187. This question cannot properly arise except in a controversy between the parties to the alleged champertous agreement, or their privies."] Torrence v. Shedd, 112 Ill. 466 (adv. sheets).

5. CONSTITUTIONAL LAW. [Liberty of Speech.] Statute against Malicious Threats not Violative of Guaranty of Liberty of Speech -The act No. 64 of the Legislature of Louisiana of 1884, defining and punishing malicious threats, etc., does not violate art. 4 of the Constitution of Louisiana guaranteeing the liberty of speech. State v. Goodwin, S. C. of La., Opelousas, July, 1885.

6.

[Retroactive Lars-"Legalizing Acts."]— Acts Legalizing Formal Defects, Valid though Retroactive.-A statute legalizing formal defects in the execution of powers is valid, though retroactive. So held concerning the Iowa "act relating to conveyances of real estate by foreign executors and trustees, and to amend § 2352 of the code." Iowa Acts of 18th Gen. Assem., ch. 162. [In the opinion of the court, by Adams, J., it is said: "It was not for the court to set up its judgment in regard to the value of the property as against the judgment of the executors. Creditors are not complaining, and the court at most could only see that the sale was made in accordance with the provision of the will. Nor could the court have properly refused to make an order of sale. The right to sell was not dependent upon any showing in regard to the condition of the estate. The right was absolute. Whatever there was omitted, if anything, which ought to have been done, was under the circumstances of the case a mere formality, and the only operation of the legalizing act is to effectuate the intention of the parties. In Schenley v. Com., 36 Pa. St. 29, the court speaking of formal defects, says: "That such defects may be cured by retroactive legislation, need not be argued.' See, also, in this connection, Lessee of Watson v. Bailey, 1 Bin. 477; Underwood v. Lilly, 10 Serg. & R. 101; Barnet v. Barnet, 15 Serg. & R. 72; Watson v. Mercer, 8 Pet. 88; Carpenter v. Pennsylvania, 17 How. 456; Davis v. State Bank, 7 Ind. 316. In Cooley Const. Lim. 369, note, the author says: 'Undoubtedly the legislature may dispense with mere matters of form in proceedings, as well after they have been taken as before.' In State v. Norwood, 12 Md. 195, a bond had been held invalid for want of a revenue stamp. The case was appealed. Between the time of the rendition of the judgment below and the hearing in the appellate court, an act was

passed legalizing instruments theretofore invalid for want of a stamp. It was held that the act had the effect to legalize the bond sued on, and that, too, notwithstanding the fact that the judgment below was rendered before the act was passed. The moral obligation of the makers of the bond was unquestionable. The defense had been merely technical, and, such being the fact, it was thought that congress might take away the defense, and that it was not too late so long as the case had not been finally disposed of. In the case at bar, the defendant, Callaghan, bought the land in good faith, so far as the petition shows, and paid the agreed price to the executors for the plaintiffs' benefit. That money, we must assume, has been received by them, or is held by the executors for them; and now they ask a court of equity to quiet their title as against him, setting up mere technical defects in the proceedings. That such defects may be cured by a legalizing statute seems to us clear. Possibly it might be thought that a contrary rule was held in Lucas v. Tucker, 17 Ind. 41, but a careful examination of the case, we think, will show otherwise. The sale in that case was of real estate in Indiana. It was made by persons who had been appointed executors in Ohio, but who were not reappointed in Indiana. It was thought that such sale could not be legalized. The difficulty was that the persons assuming to act as executors could not be recognized as such in Indiana. That difficulty does not exist in the case at bar,-Hunt and Cowdry were re-appointed in this State."] Smith v. Callaghan, S. C. Iowa, June 12, 1885; 24 N. W. Repr. 50.

7. CONTRACT [Consideration]-Agreement to Pay Sub-contractor in Consideration of His not Filing Lien, Valid.-A promise to pay the amount due a subcontractor in consideration of his not filing a lien made by the former owner of the land on which the building had been erected, who, before that time, had conveyed the land to a third party, with covenants against incumbrances, is valid. [In the opinion of the court, by Orton, J., it is said: "This condition of things raises the following important question: Was such promise of the defendant to the plaintiff, made under such circumstances, supported by a sufficient consideration? It was not at that time ascertained whether the defendant owed Calway anything or not, for he had a suit pending with him concerning it; and it had not then been ascertained whether he was not personally liable for the claim of the plaintiff. In that interview with Chubb, the agent of the plaintiff, when he promised to pay the claim, he did not deny or question that the plaintiff had a valid lien on the building for it. When asked to pay it, he only asked and stipulated for time; and when threatened with a lien upon the building, he only asked that it be not filed or enforced. Is it unreasonable to say that he was, at least, in doubt whether the plaintiff had a valid lien or not, and that he made the promise, and asked for the surrender of the lien on the supposition that it was valid? But it is very clear that the plaintiff honestly believed and supposed that he had a valid lien, and that he intended to enforce it, and would have filed and attempted to enforce it, if the defendant had not promised to pay the claim. The contention of the learned counsel of the appellant is that, if the plaintiff had no valid lien upon the building, there was no consideration for the promise to pay the claim; and this contention is enforced with great ability and much plausibility.

But I am unable to see that this precise question is not decided in Young v. French, 35 Wis. 111, and that this case is not ruled by that. In that case it was assumed that it was a benefit and advantage to the promisor to have the lien forborne, and not enforced upon the logs in his possession, and such was consideration enough to support the promise. So, here, the filing of this mechanic's lien upon the building as an incumbrance, and its attempted enforcement in court, involving him in the expense and trouble of at least a doubtful litigation, would have damaged the defendant, and caused him to suffer pecuniary loss. To avoid these consequences was certainly of great benefit and advantage to him. It was claimed in that case that the promisee had no valid lien to forbear, but the present chief justice said in his opinion: 'But it is unimportant whether the plaintiff in fact had a valid lien or not. The defendant treated with him on the assumption that he had such a lien, and chose rather to buy him off than to contest its validity.' The only reason given by the learned counsel of the appellant why that case is not authority in this, is that the defendant in this case had no interest in the property. But he had an interest, as we have seen, in discharging it from such a lien, even if about that time he had it deeded to his sister; for the presumption is that there were covenants against incumbrances. Besides this, there was scarcely evidence sufficient, by the defendant's own testimony and the deed itself, to make it certain he did not own the property notwithstanding the deed. There being no change of possession or proof of consideration, and the defendant himself having caused the deed to be executed to his sister, so far as appears, without her knowledge or consent, and the deed never having been delivered except to an attorney at law for her, are circumstances of suspicion which make it at least very questionable whether the property did not belong to the defendant when the promise was made. He, at least sub silentio, treated it as his own when he bargained with the plaintiff to release his lien upon it, and should now be estopped from saying that the property was not his, after inducing the plaint⚫iff to forego his lien upon it, upon the assumption that it was. In Griswold v. Wright, 61 Wis. 195; S. C., 21 N. W. Rep. 44, it is said, by Mr. Justice Cassoday: "The compromise of a doubtful claim is a good consideration of a promise to pay money, and it is no answer to an action brought upon such promise, to show that the claim was invalid;' and the following cases are cited by him to sustain this doctrine: Crans v. Hunter, 28 N. Y. 389; McKinley v. Watkins, 13 Ill. 140; Draper v. Owsley, 57 Amer. Dec. 218. The same principle is sanctioned in respect to the compromise of doubtful claims, and a promise to pay, in Kercheval v. Doty, 31 Wis. 476. In Cook v. Wright, 1 Best & S. 559; s. C., 30 Law J. Q. B. 321, work had been done in paving streets, and the expense charged to the abutting lots, according to the provisions of an act of parliament; and, in an interview between the defendant, who was only the agent of the non-resident owners of the lots, and the commissioners, he objected both to the amount and nature of the charges, and denied that he was the owner of the lots, and stated who was. He was told that if he did not pay, legal proceedings would be taken against him, and thereupon he promised to pay a less amount than the claim. It was said, in the opinion by Blackburn, J.: 'It appeared on the evidence that he [the defendant] believed himself not to be liable, but he knew that the plaintiffs thought

him liable, and would 'sue him if he did not pay; and, in order to avoid the expense and trouble of legal proceedings against himself, he agreed to compromise;', andlit was held that there was sufficient consideration to support the promise. The case of Callisher v. Bischoffsheim, L. R. 5 Q. B. 449, is closely in point with this case, for the agreement or consideration was that legal proceedings should be postponed. It appeared afterwards that the claim against the defendant was wholly unfounded. That such a promise is not within the statute of frauds has been held by this court in Weisel v. Spence, 59 Wis. 301; s. c., 18 N. W. Rep. 165, and in many other cases, and is well established by authority elsewhere. See on this question, as well as on the above question also, Cowenhoven v. Howell, 36 N. J. Law, 323; Train v. Gold, 5 Pick. 380; Hubbard v. Coolidge, 1 Metc. 84; Alger v. Scoville, 1 Gray, 391; Walker v. Penniman, 8 Gray, 233; Wood v. Corcoran, 1 Allen, 405; Wills v. Brown, 118 Mass. 137; Hoppock v. Wicker, 4 Biss. 469; affirmed in 6 Wall. 94; Townsley v. Sumrall, 2 Pet. 170. The cases cited by the learned counsel of the appellant are very different in their facts, and not applicable. The plaintiff asserted his claim against the defendant in Iperfect good faith; and, relying on his promise to pay it, forbore filing and prosecuting his lien on the building which he honestly believed he held. This case is stronger and clearer than most similar cases for the application of the principle."] Hewett v. Currier, S. C. Wis., June 1, 1885; 23 N. W. Repr. 884:

8. CORPORATION. [Delegation of Ponoers]-Local Board of Health cannot Delegate Power to Employ Physician.-A township board of health cannot delegate the power to employ a physician to treat persons affected with small-pox to a committee none of whom are members of the board; nor can the members of such board, by their separate acts and declarations ratify the acts of the committee appointed by them, and thus render the county liable for the expense incurred. In the opinion of the court by Rothrock, J., it is said: "It will be observed that this statute provides that local boards of health shall appoint a competent physicion to the board, who shall be the health officer within its jurisdiction. And the board is authorized to regulate all fees and charges of persons employed by them in the execution of the health laws, and of their own regulations. The evidence shows that the plaintiff was not employed by the board of health; he was employed by a committed appointed by a majority of the board. We are therefore required to determine the question whether the board of health could delegate the power to employ a physician to a committee, none of whom were members of the board. We think it is very clear that the discretion as to what physician shall be employed, must be exercised by the board, and that it cannot be delegated to a committee. And although the plaintiff, after he entered upon the employment, saw two of the trustees, who as individually directed him to attend the small-pox patients, and do what appeared to be necessary in the premises, we do not think this can be regarded as an employment by the board. In Herrington v. District Tp. of Liston, 47 Iowa, 11, it is said: "The question is here presented whether a corporation whose business is transacted by a board of directors, can be bound by the assent of a majority of the directors to a contract expressed otherwise than at a duly convened meeting. We are of opinion that it cannot. While it is

9.

10.

true, a majority of the board will govern in the absence of a provision by statute, or in the articles of incorporation, requiring the concurrence of a greater number, yet their determination is valid only after the minority have had an opportunity to be heard. A board must act as a unit and in the manner prescribed. The determination of the members individually is not the determination of the board;" citing McCullough v. Moss, 5 Denio,577; Livingston v. Lynch, 4 Johns. Ch. 596; Rice v. Plymouth Co., 43 Iowa, 136. And see Taylor v. District Tp. of Wayne, 25 Iowa, 447. Our conclusion is that the plaintiff, not having shown an appointment by the board of health, cannot recover in this action. The facts show that this determination works an apparent hardship in this case. But we cannot allow hardships in individual cases to lead to the establishment of a rule which would work a great mischief to the public at large. If we were to overturn what we regard as a well established rule to prevent hardship in this case, we would turn loose upon the local school boards and other local bodies in this State all sorts of solicitors, who could obtain the individual assent of members of the boards to all manner of contracts and expenditures which could not be obtained from the boards acting as a unit. The statute providing for a board of health provides for meetings of the board at any time that the necessities of the health of their respective jurisdictions may demand, and the board in this case should have met as a board when it was known the plaintiff's services were required, and made the proper appointment as a board. They could not by their separate acts and declarations ratify the act of the committee appointed by them. They should have ratified it as a board of health before the service was performed."] Young v. County of Blackhawk, S. C. Iowa, June 9, 1885; S. C. 23 N.W. Repr. 923.

[Stockholder]-Motion for Execution under Mo. Statute does not Abate with Death, etc.Though in the statutory proceeding under § 736 R. S., of motion for execution against a stockholder in a corporation no formal decree or judgment is entered, but simply an order for execution for such balance, after allowing such payments and offsets as may be found to be due on his stock, it is in the nature of a pending action, and does not abate by reason of the death of the stockholder if commenced against him in his lifetime.

[ Sheriffs Return]-Conclusive of Corporate Insolvency.-Such motion will only be sustained upon the showing by the sheriff's return that the execution had been levied on the goods and chattels of defendant corporation, and that still a balance remained unsatisfied. Where a garnishee is summoned who is conceded to have been indebted to the corporation, and released by plaintiff, the execution will be credited with the amount due by such garnishee as if it were paid. Marks v. Hardy, S. C. Mo., June 8, 1885.

11. CRIMINAL LAW. [Larceny]-Procuring Money by Sham Bet and Legerdemain with Cards, when Deemed Larceny.-S introduced himself to B as a traveler for a tea-dealing firm in Cincinnati, and told him that one of the means used for getting custom in a new place was offering purchasers a chance, by drawing cards, to get fifty pounds free, in addition to the purchase, if they drew the winning card. In order to carry out the scheme, he wanted B to accompany him, and showed him how to draw the lucky card, by a little dot on the back.