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control posterity, as worthy the attention not only of lawyers, but of scholars of general literature, as authentic memorials of the customs and manners of the age in which they were composed. "Law reports," says Chancellor Kent, "are dramatic in their plan and structure. They abound in pathetic incident and displays of deep feeling. They are faithful records of those little competitions, factions and debates of mankind,' that fill up the principal drama of human life; and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-interest, the melancholy perversion of talent, or the machinations of fraud. They give us the skillful debates at the bar, and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interesting, because they contain true portraits of the talent and learning of the sages of the law."

The case which heads the table of cases of the first volume of this work, is so excellent an example of what we have quoted that, although there are many more of which the same might be said, we would fain devote a few lines to its history. It is the celebrated case of Ackroyd v. Smithson, so intimately connected with the name and fame of the greatest chancery lawyer of Great Britain during the first quarter of the present century. In the year 1780, when this case was decided, John Scott, a young lawyer, the son of a Newcastle coal dealer, after having been admitted to the bar, found himself in London without much acquaintance or any clients, and with a wife with whom he had eloped. How soon he would have succumbed to circumstances and left forever the profession which seemed to bring so poor rewards, had not fortune at this moment smiled upon him, it is perhaps not hard to imagine; for according to his biographer, he had felt too often that hope deferred which makes the heart sick. But one day he received a brief. The fee must have been a small one; for all he was retained to do was, to consent for one of the parties to a decree when the cause came on. The case was that of a testator who had directed his estate to be sold, and after the payment of his debts, the residue to be divided among fifteen persons named in the will. One of the fifteen died in the testator's lifetime, and a bill had been filed by the next of kin, claiming, among other things, this lapsed share, and Mr. Scott was instructed to consent for the heir at law of the deceased beneficiary. It was fortunate for the client that he chose a young lawyer who "had nothing then to do but to pore over the brief." The result of his examination of the law was to convince him that the lapsed share was to be considered as real estate, and belonged to his client. When the cause came on, Mr. Scott refused to consent, but claimed for the heir at law his portion of the lapsed share, and argued the matter at length before the Master of the Rolls. Here, though he was much complimented by the judge on his argument, a decree was rendered against his client. The case was then carried before Lord Thurlow, then Lord Chancellor; but so little confidence had any one in his chances of success, that an eminent barrister to whom the heir at law applied for advice wrote: "Do not send good money after bad; let Mr. Scott have a guinea to give consent, and if he will argue, why let him do so, but give him no more." It was when, a few days later, the case came before Thurlow, that the argument was delivered, which made the advocate's fortune, and which has decided all similar questions ever since; for the chancellor's judgment was but a repetition of the barrister's plea. As he left Westminster Hall, a solicitor came up to him and touched him on the shouider, saying: "Young man, your bread and butter is cut for life." And assuredly it was, and for life, too; for from

that day his good fortune never left him, till it had seated him on the woolsack, as Chancellor of Great Britain. Lord Eldon was fond of relating an anecdote of himself subsequent to the decision in this celebrated case. "In the chancellor's court of Lancaster," to give it in his own words, "where Dunning (Lord Ashburton) was chancellor, a brief was given me in a cause in which the interest of my client would oblige me to support, by argument, the reverse of that which had been decided by the decree in Ackroyd v. Smithson. When I had stated to the court the point I was going to argue, Dunning said: 'Sit down, young man.' As I did not immediately comply, he repeated: 'Sit down, sir, I won't hear you.' I then sat down. Dunning said: 'I believe your name is Scott, sir.' I said it was. Upon which Dunning went on: Mr. Scott, did you not argue the case of Ackroyd v. Smithson?' I said that I did argue it. Dunning then said: Mr. Scott, I have read your argument in that case of Ackroyd v. Smithson, and I defy you or any man in England to answer it. I won't hear you.'"

One, and perhaps not the least, cause of the permanence of these old cases as precedents, may be discovered in the manner in which they were argued and considered. In the common-law courts an important case, involving new questions of law, would be argued and re-argued term after term, and in court after court. Cases like these were not unfrequently first argued before a judge and afterwards in banc, then adjourned to another term and once more argued, again transferred to another court, and there again argued, perhaps by fresh counsel. Lastly, the cause would be discussed together by the judges, when a decision would be arrived at. It need hardly be said that a case which had gone through such an examination would, in the chancery courts, be considered to have been settled with dispatch. For, at the time when most of these decisions were rendered, the notorious case of Jarndyce against Jarndyce, we are confident, had more than one parallel. Suitors might come and go, but the court went on forever; yet though grinding slowly, it ground exceeding fine. While the clients hoped in vain, the lawyers argued, and the judges considered. Surely, to the memory of these ancient martyrs to the construction of the law some respect is due from us of to-day. Yet have they not their reward? For are not their names written imperishably in the reports? And who could ask a more enduring monument? The long and wearisome delays, the repeated and protracted arguments, the extended and oft-renewed discussions, placed the law on a solid and immovable foundation. They dissipated doubts, and united the opinions of the bench, and also, as has been remarked by a distinguished jurist, prevented that constant division among the judges which has so much weakened the authority of some American courts.

NOTES OF RECENT DECISIONS.

SLANDER EVIDENCE OF COMMON REPORT.-Pease v. Shippen. Supreme Court of Pennsylvania. 7 Pitts. Leg. Jour. 97. Opinion by WILLIAMS, J. In Pennsylvania, in an action for slander, evidence that when the words were uttered a general rumor or report existed in the neighborhood, that the plaintiff was guilty of the offense charged, is inadmissible. In England and in some of the states such evidence is admissible under the general issue in slander in mitigation of damages. Earl of Leicester v. Walter, 2 Campbell, 251; Wetherbee v. Marsh, 20 N. H. 561; Case v. Marks, 20 Conn. 248; Fuller v. Dean, 31 Alabama, 654; Galloway v.

Courtney, 10 Kirk (S. C.) Rep. 414; Calloway v. Middleton, 2 A. K. Marsh, 372; Henson v. Veatch, 1 Blackf. 369. In other states it has been held that general reports of the truth of the charges can not be given in evidence in mitigation of damages. Walcott v. Hall, 6 Mass. 514; Alderman v. French, 1 Pick. 17; Bodwell v. Swan, 3 Id. 376; Matson v. Buck, 5 Cowan, 499; Root v. King. 7 Id. 613; Cole v. Perry, 8 Id. 214; Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Wend. 602; Shehan v. Collins, 20 Ill. 325; Young v. Bennett, 4 Scam. 43; Anthony v. Stevens, 1 Miss. 254. But whatever, say the court, may have been at one time the rule in this state as to the admission of such reports, (Kennedy v. Gregory, 1 Binn. 85; Beehler v. Steever, 2 Whart. 313; Smith v. Stewart, 5 Barr, 372), it must now be regarded as the settled law of Pennsylvania, that they are not admissible for any purpose. Fitzgerald v. Stewart, 3 P. F. Smith, 343; Lukehart v. Byerly, 3 Id. 418; Long v. Brougher, 5 Watts, 439; Conroe v. Conroe and wife, 11 Wright, 201, and the cases cited.

BROKER'S COMMISSIONS.-Reed v. Reed. Supreme Court of Pennsylvania 34 Leg. Int. 49. Opinion by WOODWARD, J. 1. When a broker, authorized to sell at private sale,has commenced a negotiation, the owner can not, pending the negotiation, take it into his own hands and complete it either at or below the price limited, and then refuse to pay the commission. 2. Plaintiff's right to recover commission for making a sale is not affected by the fact that he was to be one of the purchasers if he acted openly and fairly. [Citing Kys v. Johnson, 18 P. F. Smith, 42; Edwards v. Goldsmith, 4 Harris, 43; Taylor v. Salmon, 4 Mylne & Craig, 139; Bollman v. Loomis, 15 Am. L. R. (N. S.) 75.]

SEWING-MACHINE SOLD ON CONDITION-REPUGNANT AGREEMENT-WHEN WRITTEN CONTRACT MAY BE VARIED BY PAROL EVIDENCE.-Domestic SewingMachine Co. v. Anderson. Supreme Court of Minnesota, 9 Ch. L. N. 163. Opinion by BERRY, J. 1. The rule forbidding the use of parol evidence to affect a written instrument, does not apply to a case in which a part only of the dealings between parties, in respect to a particular subject-matter is reduced to writing, except as respects such fact. 2. In case of an absolute sale and delivery of personal property, an agreement by the purchaser to pay the vendor for the future use of the same, or to deliver it up to him on demand, is repugnant to the contract of sale and is void. The receipt of the property by the purchaser furnishes no valid consideration for such agreement.

ACTION AGAINST CITY FOR FAILURE TO OPEN STREET -MANDAMUS THE PROPER REMEDY.-Webster v. City of Chicago. Supreme Court of Illinois. 9 Ch. L. N. 168. Opinion by DICKEY, J. An action of assumpsit will not lie against a city to recover damages alleged to have accrued to the owner of property by reason of the failure of the city to open a street within a reasonable time. The order for the opening of the street, it is to be presumed, was made because the street would be an accommodation to the public. From the delay in opening it, very many persons besides the plaintiff may be supposed to have experienced inconvenience and damage. To sanction this kind of an action, and thus expose the city to the numerous suits for damage which might be brought by persons who had sustained inconvenience and loss by reason of the delay in opening the street, would not seem to consist with sound principles. If the delay were without excuse, mandamus would be the proper remedy. Higgins v. The City of Chicago, 18 Ill. 276; Hall et al. v. The People, 57 Id., 307; Whiting v. Mayor and Aldermen of Boston, 106 Mass. 89.

WHEN ASSIGNEE OF NOTE MAY SUE IN FEDERAL COURT.-Gregg v. Weston et al. United States Circuit Court, District of Indiana. 9 Ch. L. N. 175. Opinion by GRESHAM, J. The plaintiff, a citizen of Ohio, sued defendants, both citizens of Indiana, on a note executed by W to S, and by the latter assigned to the plaintiff. The note was given in Indiana, payable to the order of S. Defendants demurred to the complaint on the ground of jurisdiction. The court said: "Under the judiciary act of 1879, the Circuit Courts of the United States have no cognizance of any suit on a promissory note, in favor of an assignee, unless a suit might have been prosecuted in such court, on such note, if no assignment had been made. It is admitted that the plaintiff insists that Congress contemplated all promissory notes negotiable at common law, or by the statute of Anne. I think, Congress means by this language notes having the qualities of promissory notes, negotiable by the law merchant, namely, notes which, in the hands of a bona fide purchaser for value before maturity, were subject to no equities in favor of the maker. The note sued on was given in Indiana, and payable in Indiana, but not at a bank in this state, so that, by the law of Indiana, whatever equities the maker was entitled to as against the payee, he may assert against any indorsee. That was the law of the contract. The statute of the state entered into and became a part of the note. Holloway v. Porter, 46 Ind. 62; Dundas v. Bowers, 3 McLean, 397; Brabston v. Gibson, 9 How. 263. The statute already cited makes all promissory notes negotiable, so far as to vest the property in each indorsee successively; but unless a note is made payable to order or bearer at a particular bank in this state, it can not be said to possess all the privileges or immunities of a note negotiable according to the law merchant. The statute of Anne has generally been adopted in this country, but has never been adopted in this state. This opinion has been submitted to my brother Drummond, and he concurs therein. The defendant's demurrer is sustained."

BANKRUPTCY AND ASSIGNMENT UNDER STATE LAWS -CONFLICTING RIGHTS OF CREDITORS.-Johnson, Ass., v. Rogers. U. S. District Court, Northern District of New York, 14 Alb. L. J. 421. Opinion by WALLACE, J. 1. A firm being solvent, but having actions pending against them, with the advice and consent of certain creditors made a general assignment of real and personal property, under the New York State law, without preferences. Thereafter several of the creditors obtained judgments, and the firm became bankrupt. In an action by the assignee in bankruptcy to set aside assignment and determine rights of creditors, held, (1) that assignment was void, under bankrupt law, as to existing creditors, and such creditors might, by judgment, obtain lien; (2) but it might be valid as to some creditors, and then judgments would not be liens, nor would they become so if assignment was set aside at the suit of the assignee in bankruptcy. 2. Among those who recovered judgments against the firm was B. He consented to the assignment. Held, that the assignment was valid as to the judgments, and they were not a lien. 3. S recovered judgment upon a demand, colorably transferred by a creditor consenting to the assignment. Held, that S stood in no better position than the creditor, and his judgment was not a lien. 4. R, who had assented to the assignment, recovered judgment upon a claim transferred to him by a creditor who had not assented. Held, that R stood in the place of the creditor, who could impeach the lien, was not concluded by his assent, and the judgment was a lien. The creditor had dealt with the assignees under the, assignment with respect to the firm property. Held, that this did not prevent him from impeaching the assignment. 5. V,

who did not assent to the assignment, had a judgment against a partner in the firm, individually, and had instituted proceedings in the nature of a creditor's bill thereon. Held, that by these proceedings V acquired a lien upon choses in action and equitable interests, etc., but not upon property subject to sale under execution. He acquired a lien in this action upon the equitable interest of the partner in the property of the firm not subject to levy. [Citing Chautauqua Co. Bank v. Risley, 19 N. Y. 369; Steel v. Brown, 1 Taunt. 381: Phillips v. Wooster, 36 N. Y. 412; In re Allen, 5 L. R. 322; Clark v. Rist, 3 McLean, 494; 2 Denio, 570; 3 Paige; 365; Isador v. Stewart, 1 N. B. R. 485; Becker v. Torrance, 31 N. Y. 637; Storm v. Waddell, 2 Sandf. Ch. 494; Edmonston v. McLoud, 16 N. Y. 543; Lynch v. Johnson, 48 Id. 27; Becker v. Torrance, 31 N. Y. 631.]

PAROL EVIDENCE TO VARY WRITTEN INSTRUMENT -WHEN ADMISSIBLE.-Lippincott v. Whitman et al. Supreme Court of Pennsylvania-3 Weekly Notes, 313. Opinion by PACSON, J. 1. Parol evidence is admissible to vary the terms of a written instrument (other than commercial paper) by showing that its execution was procured upon the express agreement that its terms should not be enforced, but should be qualified in accordance with a previous and contemporaneous parol agreement of the parties. 2. It is not necessary, in order to pave the way for the admission of such evidence, to show that the party procuring the writing was actuated by a fraudulent intent at the time of its execution; it is sufficient if he afterwards seeks to procure an unfair advantage by denying the parol qualification. 3. In a suit upon a mortgage, payable one year after date, the affidavit of defence averred that the understanding and agreement, at the time of the transaction, was that the mortgage should be payable in three years; that defendant, finding it was drawn payable in one year, remonstrated about it, but finally executed and delivered it, upon the plaintiff's assurance and agreement that "it should be considered as for three years, and would not be enforced before the expiration of that time." The court, having entered judgment for plaintiff, for want of a sufficient affidavit of defence; held (reversing the judgment of the court below), that the facts set forth in the affidavit constituted a sufficient defence, and the defendant should, have been afforded an opportunity to prove them before a jury. be, that parol evidence in such cases is of a dangerous character. We may concede it to be so. But the rule in this state is too well settled to be disturbed." [Citing Christ v. Dieffenbach, 1 S. & R. 464; Iddings v. Iddings, 7 Id. 111; Miller v. Henderson, 10 Id. 290; Parke v. Chadwick, 8 W. & S. 96; Clarke v. Partridge, 2 Barr, 13; Renshaw v. Gans, 7 Id. 117; Rearich v. Swinehart, 1 Jones, 233; Martin v. Berens, 17 P. F. Sm. 459; Kostenbader v. Peters, 2 Weekly Notes, 531; Fulton v. Hood, 10 Cafey, 365; Caley v. R. R. Co., 2 Weekly Notes, 313.

"It may

CRIMINAL LAW-DEFENCE OF INSANITY-REASONABLE DOUBT-Myers v. Commonwealth. Supreme Court of Pennsylvania. 7 Pitts. Leg. Jour. 90. Opinion by Agnew, C. J. The prisoner in this case was indicted for murder, and his counsel put in the plea of insanity. The court instructed the jury that they must be satisfied, beyond a reasonable doubt, that the prisoner was insane at the time the act was committed, and the jury found a verdict of murder in the first degree. Held, error. This statement is too stringent, and throws the prisoner upon a degree of proof, beyond the legal measure of his defense. That measure is simply proof which is satisfactory, such as flows fairly from a preponderance of the evidence. It need not be beyond doubt. A reasonable doubt of the fact of insanity, on

the other hand, is not sufficient to acquit upon a defence of insanity. This has been held in several cases, Ortwein v. Commonwealth, 26 P. F. Smith, 414; 22 Leg. Jour. 81; Lynch v. Commonwealth, 27 P. F. S. 205; Braun v. Commonwealth, 28 P. F. S. 122. Sanity being the normal condition of men, and insanity a defense set up to an act, which otherwise would be a crime, the burden rests upon the prisoner of proving his abnormal condition. But the evidence of this need be only satisfactory, and the condition such as fairly results from the evidence. Where the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind; yet the actual weight may be with the prisoner, and this should be considered satisfactory. In cases of conflicting evidence the preponderance must govern, there being no other rational means of decision. But if it is said in such a case, it must be satisfactory, beyond a reasonable doubt, it is evident the expression implies more than a mere preponderance. It is difficult to define the precise difference between the two measures; yet it is obvious that to be convinced beyond a reasonable doubt, is a severer test of belief than to be satisfied that the preponderance falls on that side. Probably the true reason of the difficulty in defining the difference lies in the inability to define a reasonable doubt. A reasonable doubt must be an honest and conscientious difficulty in believing, one not merely subtle or ingenious-it must arise out of the evidence, and not be fanciful, or be confined up to escape consequences. It must shake the mind with such force as to compel it to pause in yielding belief. These are characteristics, but do not define the measure of belief, which is beyond a reasonable doubt.

BIRDSELL'S PATENT FOR CLOVER HULLER-HAGERSTOWN DOUBLE-HULLER CLOVER MACHINE NOT AN INFRINGEMENT.—Birdsell v. Hagerstown Agricultural Implement Man. Co. United States Circuit Court, District of Maryland. From original opinion. Opinion by BOND, Circuit Judge, Giles, J., concurring: This was a suit brought upon re-issued letters patent for improvements in machines for hulling and threshing clover, granted John C. Birdsell, April 8th, 1862, as a re-issue of letters patent granted same, May 18th 1858, and extended seven years. A preliminary injunction had been granted, as reported in 6th Off. Gaz. 604. The defendants having made certain modifications in their machines, resumed their manufacture and sale. The machines thus sold by the defendants are known as "Double-Huller Patent Clover Machines." The complainant thereupon moved for an attachment for contempt. The motion was heard upon exhibits, affidavits and arguments of counsel. The court said: "The injunction in this case was to restrain the defendant from making, using or vending any combined machines for threshing and hulling clover seed, made in accordance with any of the inventions specified or claimed in any of the claims of the complainants, patents re-issue 1299, or such as they have heretofore made and sold. Petition now is for an attachment against defendant for violating this injunction, by making and selling machines containing a threshing and a hulling machine combined, as patented to complainant in the first claim of this patent. The defendant denies that it has done this, but that the machines made and sold by it are substantially different from what it made before the issuing of said injunction and from the machine described in complainant's patent No. 1299. This is largely a question of fact, and many affidavits have been submitted to the court by the counsel for the respective parties. The complainants have filed the affidavit of Frank Millwood (an expert), Jas. W. Dougall, Jno. C. Birdsell complainant, Hiram King

-four in all. The defendant has filed the affidavits of William C. Dodge, J. F. Reigart, S. W. Downin, Jacob Downin, Jacob W. Zentmyer, Jno. Weller, S. C. Downin, A. Miller-eight in all. In considering the question of a violation of an injunction, the court can not but regret, that they have not been furnished with models of the machine patented by Birdsell, and the machine which he alleges to be a violation of the first claim of his patent. The court can always best judge from models whether one machine differs in principle and mode of operation from another. In the absence of such evidence, the court must look to the testimony of the experts who have examined the two machines. Now, it is a rule governing courts of equity in such cases, that they will never attach a defendant for contempt, where the violation of the injunction is not plain and proved to the satisfaction of the court. So far from a violation being proved in this case, the evidence of the witnesses clearly shows to the court that the two machines are different in their mode of construction, and it is for the court to decide whether there is a substantial difference in the principle upon which they act. Now the expert produced by complainant, swears that they are substantially the same. But the two experts on behalf of defendants, Reigart and Dodge, both men of great experience in such matters, testify that the machines now made by defendant do not contain the feature of Birdsell's first claim. This the court thinks is fully sustained by the written evidence in the cause. Birdsell's patent is for a combination of a pure threshing cylinder, with a pure hulling cylinder. The defendant's machines contain a combination of two hulling cylinders, and although the upper cylinder may in some measure separate the straw from the heads by rubbing or crushing, it is not a pure threshing cylinder. This has been done in machines made and patented before the date of Birdsell's patent, as will be clearly seen by the diagrams T, K & L, attached to the depositions of Dodge, filed in this case. The court will therefore dismiss the motion for an attachment in this case."

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PRACTICE-MOTION FOR JUDGMENT ON THE PLEADINGS. -Where the allegations of the petition, in connection with the admissions of the answer, fail to show facts sufficient to warrant a judgment for the plaintiff, or if the allegations of the answer, in connection with the admissions of the reply, fail to show facts constituting a good defence, a motion for judgment by the party so failing will be overruled, notwithstanding the answer or reply may have admitted the allegations of the petition or answer. The facts substantially as in Borden v. St. Louis Mutual Life Ins. Co. Judgment reversed, and judgment entered for defendant (appellant). Opinion by HAYDEN, J.-Sherman v. The St. Louis Mutual Life Ins. Co.

ACTION FOR RENT-COVENANT TO REPAIR-SUIT BY ADMINISTRATOR-RECOUPMENT OF DAMAGES.-In an action for rent on a lease containing covenants to repair, the defendant (lessee) may recoup his damages for breach of contract to repair. [Citing Myers v. Burns, 35 N. Y. 269.] Though an action would not lie against personal representatives of deceased lessee for breach of covenant to repair, the lessee would have the same right of recoupment against the executor who sues for rent, as he would have had against deceased in his lifetime. [Citing 2 Pars. Cont. 744, and cases there cited.] In such case, lessee may recoup as well on account of injuries, on account of such failure to repair,

provided they are the proximate unavoidable consequences of such failure, as for the cost of repairs made by lessee. Judgment reversed. Opinion by BAKEWELL, J.-Green v. Bell.

DEMURRER TO EVIDENCE-FIRE INSURANCE-CONDITIONS OF POLICY-WAIVER.-Where there is an entire absence of evidence on the part of plaintiff, tending to prove material allegations in plaintiff's petition, it is error for the court to refuse an instruction, at the request of defendant, in the nature of a demurrer to the evidence. Where an insurance policy contains a provision that additional insurance, of which the insurer is not notified, and which is not endorsed upon the policy, shall render such policy void, and the policy offered in evidence bears no such endorsement, and the plaintiff offers evidence that the broker who effected the insurance for insured knew of the additional insurance, such evidence does not tend to prove a waiver of the conditions of the policy with reference to additional insurance, as the broker was the agent of the insured, and not of the insurer. Judgment reversed. Opinion by BAKEWELL, J.-Lange v. The Lycoming Fire Ins. Co.

LIFE INSURANCE-CONSTITUTIONAL LAW-LAWS IMPAIR. ING THE OBLIGATION OF CONTRACTS-RE-INSURANCE-ULTRA VIRES-JURISDICTION-PRACTICE.-The legislature, in the exercise of its powers of supervision over private corporations, may render the provisions of the "Act for the Incorporation and Regulation of Life Insurance Companies" applicable to a company organized under a prior special act, as was done by §§ 19, 20, 22 and 41 of the general law. Such an exercise of its powers by the legislature in no way impairs the obligation of a contract. [Citing Curtis v. Whitney, 13 Wallace, 68; Ochiltree v. Railroad Co., 21 Id. 249; State of Missouri v. Mathews, 44 Mo. 523; State, etc., v. King, Id. 283.] The statute divides companies subject to its provisions into two classes: 1. Those incorporated under the laws of this state; 2. Those doing business in this state, and not incorporated under its laws. The words, "doing business in this state," in the fourth line of § 41, have reference to companies not incorporated under the laws of this state. A life insurance company having re-insured all its risks in another company, and doing no new business, but still receiving premiums on its old policies, and paying losses, is transacting the business of life insurance, which may be the subject of injunction. The power to re-insure does not carry with it the power of the company to close its business, dispose of its assets and transfer its policy-holders over to a stronger company. The general rule is that a corporation can not transfer its entire assets against the will of a majority of its stockholders. There are exceptions to this rule. [Citing Buford v. Keokuk N. Line Packet Co., decided at this term; Treadwell v. Salisbury Manf. Co., 7 Gray, 404.] The state has an interest in the matter of this transfer. By acts of legislature, life companies are subjected to constant supervision, and to many restrictions. This excludes them from the class of companies that have power to sell or transfer all their property against the will of a minority. The contract by which respondent undertook to turn over its assets to another company, was, as against policy-holders, ultra vires and void. The court below had jurisdiction of the subject-matter, and if petition was defective, should have allowed plaintiff to amend. The court below committed error in dismissing the proceeding without allowing plaintiff to amend. Judgment reversed, and cause remanded. Opinion by HAYDEN, J.-Price v. St. Louis Mutual Life Ins. Co.

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debt asserted. Love v. Fairfield, 13 Mo. 300. And after such an assignment has been, in fact made without the consent of the debtor, it is still competent for the original claimant to make a compromise of the whole claim. Kendall v. United States, 7 Wall. 110. In this case the claim was a judgment. Opinion by SHERWOOD, C. J.-Burnett v. Crandall.

MARRIED WOMAN'S LAND-SEPARATE ESTATE.-A conveyance to a trustee for the sole and separate use of a married woman and her children, to the exclusion of the husband, during her natural life, and, upon her death, to her children in fee, with power in her to sell and convey through her trustee, and re-invest proceeds of sale in other lands, subject to like limitations, gives the married woman a separate estate, chargeable in equity with the payment of a note executed by her. Metropolitan Bank v. Taylor, 53 Mo. 444; Nat. Bank v. Robidoux, 57 Mo. 446; Metropolitan Bank v. Taylor, 62 Mo. 338. The court declines to express any opinion as to how far the reversionary (or present) interest of the children could be affected by judgment and sale. Opinion by HOUGH, J.-Burnley v. Thomas.

UNITED STATES REVENUE LAW-SEC. 10.-The sureties on the bond of a United States deputy collector, conditioned for the faithful performance of duty, etc., in a division constituted of Jackson county, are not discharged from liability thereon by the fact that, after the execution of the bond, this division was sub-divided into two divisions, numbered one and eleven. One mode of collecting the revenue is by a sale of stamps, and the sale of the stamp is a collection. As the deputy had no power to collect taxes assessed outside of the limits of his division, the securities on his bond can not be held for the value of stamps sold by him to persons doing business, and residing beyond the limits of his division, although the sales may have been actually made within the limits of his division. Opinion by NAPTON, J.-Schuster v. Foster et al.

VENDEE'S LIEN FOR PURCHASE-MONEY PREMATURELY PAID. A bought land of B, paid part of the purchasemoney, gave his notes for the balance, and received a bond for title. B transferred the notes to C, and A subsequently paid them off in full in C's hands. B never made any conveyance to A, nor was any demanded. Subsequently A wrote to B to "sell his farm for him at $10 per acre, or as much more as he could get." B sold the land to his son for $10 per acre, received the purchase-money in cash, and, being still the holder of the legal title, conveyed it to his son by deed of general warranty. The son had full notice of all the facts, and had seen the letter of A, requesting B to sell for him. B failed to pay over the purchase-money to A, who then brought suit against B and the son, to obtain judgment for the same, and have it declared and enforced as a lien on the land. Held, that A's direction to B to sell his land authorized B to make a valid contract of sale, but not to receive the purchase-money, nor to convey the land; and that B's son, having acquired the title without A's consent, and with notice of all of the facts, took it subject to A's hien for the purchase-money. Opinion by HOUGH, J.Stewart v. Wood et al.

VARIANCE BETWEEN PETITION AND EVIDENCE-WHEN ERROR TO EXCLUDE WITNESS FROM THE COURT-ROOM— COUNTS AT LAW AND IN EQUITY IN SAME PETITION-SEP. ARATE VERDICTS — OPINION EVIDENCE ON QUESTION OF INSANITY.-Where there is evidence of an issue, it is proper for the court to instruct the jury and leave them to judge of its weight. Where the petition sets forth one cause of action, and the evidence and judgment show that the recovery was had upon another cause of action not stated in the petition, the judgment will be reversed. It is error for the court to order a party out of the court room, during an examination of a witness for the other side, on the suggestion of counsel that the witness, who is a timid girl, is intimidated by the looks and gestures of the party. Where a count at law and a count in equity are stated in the same petition, there must be separate verdicts and separate judg ments. In this state the opinions of witnesses, accompanied by statements of facts on which the witnesses base them, are evidence in question of insanity, although the witnesses are not experts. Opinion by NAPTON, J.-Crow v. Peters. APPLICATION FOR CHANGE OF VENUE-PRESENCE OF DEFENDANT-HOMICIDE-EVIDENCE OF PREVIOUS THREATS -OF VIOLENT CHARACTER OF DECEASED-INSTRUCTIONS. -1. On application for change of venue in criminal cases, it is not necessary that the record should show the defend

ant was present in person when the application was heard, or when the change was awarded. 2. Whether threats made by the deceased against the defendant, prior to the homicide, are properly admissible in evidence, can not be determined by any general rule, but necessarily depends upon the circumstances of each case. In cases of doubt, for the purpose of showing that deceased made the attack, and, if so, with what motive, his prior declarations, even if uncommunicated to the defendant, are clearly admissible; but prior threats are not admissible, where it is proved that defendant sought the encounter. Where the homicide occurred under circumstances which leave it doubtful whether the killing was done maliciously, or done from a well-grounded apprehension of danger, evidence that the deceased wus of a turbulent, violent and desperate character is admissible on the question whether defendant had reasonable cause to apprehend great personal danger; but. this proof should not extend to particular acts, nor to the letting in of the opinions of witnesses as to what he would have been likely to do in given circumstances, but must be confined to his general character and reputation. It is error to instruct a jury that, "if they believe that any witnesses swore falsely, or were mistaken, they are at liberty to disregard the whole or any part of the testimony of such witnesses.' ."-State v. Elkins.

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ACTION FOR INJURIES RESULTING IN DEATH-CONTRIBUTORY NEGLIGENCE-JURY NOT CONFINED TO ONE ACTCROSSING RAILROAD TRACK-RULE WHEN BOTH PARTIES ARE GUILTY OF NEGLIGENCE-WHAT CONSTITUTES WANTON NEGLIGENCE.-1. An instruction which in effect ex cludes from the consideration of the jury any negligence of the deceased, except the fact of his being a trespasser upon the track of the defendant's railroad, in an action by his personal representative to recover damages for his death by being struck by an engine, where the proof tends to . show negligence on his part in other respects, is erroneous, as being calculated to mislead. 2. If the conduct of one killed while walking upon a railroad track amounts to gross negligence, no recovery can be had of the company, unless it was guilty of willful or criminal negligence. 3. In determining whether a person killed while traveling upon a railroad track was guilty of negligence contributing materially to the injury, and the degree of such negligence, as compared with that of the company, the court, in its instructions, should not confine the jury to the consideration of the fact that the deceased wss simply a trespasser, but they should also consider his each and every other act and omis sion proved, materially contributing to the injury. 4. Where a person walking along the track of a railroad in a city, without right, is struck by a train coming in, and killed at a place not a public crossing, and it appears he used no precaution to guard against danger, although he knew he was in a place of danger, not even looking back to see if a train was approaching, no recovery can be had, notwithstanding the company may have been guilty of negligence in running the train at a speed greatly in excess of that fixed by ordinance. 5. The fact that persons residing in the locality where an accident occurs have been in the habit of traveling upon the right of way of a railway company without any measures being taken to prevent such acts, will not change the relative rights or obligations of one injured while upon the track, or those of the company; such person will still be a trespasser. 6. It is the duty of persons. about to cross a railroad track to look about them and see there is no danger; not to go recklessly upon the track, but to observe the proper precautions themselves, to avoid acci. dent. 7. Although a recovery may be had by a party guilty of contributory negligence, when his is slight, and that of

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