the injuries and wounds already above described, and that, by means of said drunkenness, and from the effects of said injuries, the said Edward became sick, lame and diseased, and so continued lingering in pain and sickness until the 13th day of March, 1874, when he departed this life in consequence of the injuries aforesaid, to the plaintiff's damage of $5,000, for which she prays judgment."

Second Paragraph: "The said plaintiff, further complaining of the said defendant, says that the said John Krach, on the 1st day of December, 1873, obtained a permit from the board of commissioners of the county of Vanderburg to retail intoxicating liquors, and henceforth has been engaged in retailing said liquors. And plaintiff says she was, on the 31st day of December, 1873, the wife of one Edward Heilman, and so remained until his death, and is now his widow; that said Edward Heilman, at the time of the happening of the injuries hereinafter set out, was a man of sober and temperate habits, and was not used to drink intoxicating liquors; yet the said defendants, on the 31st day of December, 1873, combined and confederated together to make said Edward Heilman drunk, and to that end said defendants pressed him to buy intoxicating liquors at the store of said Krach, and said defendants did then and there sell to said Heilman large quantities of peach brandy, whiskey and other intoxicating liquors, and induced him, by their persuasion, to buy and drink the same, which having done, the said Heilman became and was drunk, and entirely unable to take care of himself, and the said defendants put the said Heilman in his wagon, he being drunk and insensible, and procured another person, who was also drunk and was utterly incapacitated to take care of a drunken man, to drive said wagon to the home of said Heilman, distant four miles from said store; that defendant laid said Heilman in said wagon on his back, and placed a log of wood under his head, and directed said other person to haul him to his home; that, while so being hauled, and being utterly unconscious, a hoop of a barrel, which was then in said wagon, becoming unloosened from said barrel, impinged in and upon the head of said Heilman and entered the same behind one of his ears, and worked gradually into his head and continued to lacerate, tear and penetrate his head, until he was taken from said wagon, being a period of one hour, thereby making a large and dangerous wound and hole in the head of said Edward Heilman, from which injuries so received said Edward Heilman died, after languishing in great pain for a period of three months; and plaintiff says that she was compelled to nurse, take care of and attend to said Heilman during that time, and that her services in that regard were worth $500; that she had no means of support, except the labor of her said husband; that he was accustomed to and did labor on a farm, in order to support the plaintiff and their children, being seven in number; and that, by the death of her said husband, she has been damaged in the means of support in the sum of $3,500, and that said sums of money are still due and unpaid; wherefore she asks judgment for $5,000."

Error is assigned upon the ruling of the court upon the demurrer to each paragraph of the complaint, and we proceed to consider the questions thus raised.

The common law does not, on the facts alleged, give the plaintiff any right of action. Her right of action, if she have any, is based upon statute. The statute relied upon is the act of February 27, 1873, to regulate the sale of intoxicating liquors, etc. Acts 1873, Reg. Sess., p. 151. The eighth section of the act is as follows: "Any person or persons who shall, by the sale of intoxicating liquor, with or without permit, cause the intoxication, in whole or in part, of any other person, shall be liable

for and be compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, for every day he or she is so cared for, which sum may be recovered in an action of debt before any court having competent jurisdiction." The twelfth section provides that, "in addition to the remedy and right of action provided for in section eight of this act, every husband, wife, child, parent, guardian, employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name, severally or jointly, against any person or persons who shall, by selling, bartering or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person," etc.

The first paragraph of the complaint is not based at all upon the eighth section of the statute. Nor do we think the second paragraph makes out a case within that section. The section must be construed to authorize a recovery by a party, "who may take charge of and provide for such intoxicated person," only for the time during which such person may remain intoxicated. This is clearly implied from the language employed, and the nature and object of the provisions.

The allegation in the second paragraph, that for the period of three months, during which the deceased languished, the plaintiff was compelled to nurse and take care of him, does not bring the case within the eighth section; for it does not show that the intoxication continued during that time, or, indeed, any part thereof. Each paragraph, then, must stand or fall upon the provisions of the twelfth section. It can not, under the allegations, be claimed that the plaintiff was in any way injured by the intoxicated person; and it remains to inquire whether the allegations show that she was injured in person, or property, or means of support, "in consequence of the intoxication" of her now deceased husband.

The substance of the case, made by both paragraphs, is that the defendants furnished the deceased with intoxicating liquor until he became drunk and insensible and unable to take care of himself; that in going home, lying down in his wagon, in consequence of his intoxication, he received the injury from the barrel of salt, which injury he would not have received but for having been intoxicated, and from which injuries he died.

One of the objections made to the complaint, passing over others, is, in our judgment, fatal to both paragraphs. The rule of law is, that the immediate, and not the remote, cause of any event is regarded. We have seen that, if the plaintiff is entitled to recover, it is because she was injured "in consequence of the intoxication" of the deceased. The immediate cause of the injury to the plaintiff was the death of the deceased. The remote cause may have been his intoxication, which led to his injuries, which injuries, in their turn, led to his death. The plaintiff, therefore, was not immediately injured by the intoxication of the deceased. The rule of law above stated is well enough settled. The difficulty that usually arises is in its application. It is sometimes difficult to determine what is the remote, and what the proximate, cause of an event. But no difficulty of that sort arises.in the present case. Here, according to the allegations, it is clear that the intoxication of the deceased was only the remote cause of the injury to the plaintiff, while his death was the immediate cause of such injury. For such injury, we think, on principle and well-considered authority, the statute does not render the defendants liable to the plaintiff. The case of Tisdale v. Inhabitants of Norton, 8 Metc. 388, is in point. Here the town was obliged to

repair the highway, and an action was given by statute to any person who might receive an injury by reason of any defect or want of repair. A gully had been washed out in the highway, rendering it impassable, and the plaintiff, in passing along with his conveyance, had to drive off the highway and into a pond in order to pursue his journey. In passing through the pond, the plaintiff's conveyance was overturned, and he was thrown into the pond, in consequence of a hole in the bottom thereof. It was held that the case did not come within the statute, and that the plaintiff was not entitled to recover. The case of Marble v. The City of Worcester, 4 Gray, 395, is also in point. The case arose under a statute similar to that involved in the previous case. There was a defect in the way, and a man, with a horse and sleigh, undertook to drive through that part of the way in which the defect existed. The sleigh pitched into a hole in the ice, which constituted the defect, and the horse, taking fright, ran, threw out the driver, detached himself from the sleigh, except the shafts or thills, and, having run some fifty rods, ran against the plaintiff, who was then in the highway, and injured him, for which the action was brought. It was held that the plaintiff was not entitled to recover, on the ground that, though the defect in the highway was the remote cause of the injury to the plaintiff, yet it was not the immediate cause, that being the collision between the horse and himself. Shaw, C. J., in delivering the opinion of the court, said: "The rule, in jure causa proxima, non remota, spectatur, is of very general application in the law; and, although more frequently stated and illustrated in the law of insurance, yet it is frequently applied to other cases of like kind. The whole doctrine of causation, considered in itself metaphysically, is of profound difficulty, even if it may not be said, of mystery. It was a maxim, we believe, of the schoolmen, causa causantis causa est causati. And this makes the chain of causation, by successive links, endless. And this perhaps, in a certain sense, is true. Perhaps no event can occur which may be considered as insulated and independent; every event is itself the effect of some cause, or combination of causes, and, in its turn, becomes the cause of many ensuing consequences more or less immediate or remote. The law, however, looks to a practical rule, adapted to the rights and duties of all persons in society in the common and ordinary concerns of actual life; and, on account of the difficulty in unraveling a combination of causes, and of tracing each result, as a matter of fact, to its true, real and efficient cause, the law has adopted the rule before stated, of regarding the proximate and not the remote cause of the occurrence which is the subject of injury."

In Crain v. Petrie, 6 Hill, 522, it was said by Nelson, C. J., delivering the opinion of the court, that, "to maintain a claim for special damages, they must appear to be the legal and natural consequences arising from the tort, and not from the wrongful act of a third person remotely induced thereby. In other words, the damages must proceed wholly and exclusively from the injury complained of." The principle here involved was much considered in the case of Ryan v. New York Central Railroad, 35 N. Y. 210, which we cite, withholding any opinion as to whether it was correctly applied in that case. The case of Fairbanks v. Kerr, 70 Penn. 86, is in point. It was there held that, as a general rule, one is answerable for the consequences of his fault only so far as they are natural and proximate, and may therefore be seen by ordinary forecast; not for those arising from a complication of his fault with circumstances of an extraordinary nature."

66

The defendants, in causing the intoxication of the deceased, could not have anticipated that, on his way home, he would be fatally injured by the salt barrel.

That was an extraordinary and fortuitous event, not naturally resulting from the intoxication. Suppose, by way of illustration, that a person, by reason of intoxication, lies down under a tree, and a storm blows a limb down upon him and kills him, or that lightning strikes the tree and kills him; could it be said, in a legal sense, that his death was caused by intoxication? In the chain of causation the intoxication may have been the remote cause of his death, because, if he had not been intoxicated, he would not have placed himself in that position, and therefore would not have been struck by the limb or lightning. In the case supposed it may be assumed as clear, that the parties causing the intoxication would not be liable under the statute to the widow, as for an injury to her caused by the intoxication of the deceased. Yet there is no substantial difference between the case supposed and the real case here. See, on the subject of remote and proximate causation, the case of Kelly v. The State of Indiana (at the present term*); also Durham v. Musselman, 2 Blackf. 96.

The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the demurrer to the complaint.

*This case will be reported in 53 Ind. 311.

This admirable condensation of Austin's lectures contains substantially the matter comprehended within the two volumes of the original work, unabridged. It is avowedly written for the use of students. But-as students may, respecting a work of such a nature, be considered to include the inquisitive and studious practitioner-even in this form it is a proper and useful addition to the lawyer's library. While retaining the intrinsic value of the original, this edition is enriched by the notes and comments of Mr. Campbell. The labors of Mr. Campbell, as manifested in the work, have been quite successful. The ideas of Mr. Austin are presented with great clearness and brevity, making the book much more attractive than the original. It will prove what it was intended to be, just the thing for the student.

The importance of such a work in the curriculum of our law schools, and the place it should occupy in elementary instruction-remembering the innumerable books of reports, diverse statutes, and conflicting decisions, etc., extant-is thus stated in the language of the author: "To the student, who begins the study of the English [or American] law, without some previous knowledge of the rationale of law in general, it naturally appears an assemblage of arbitrary and unconnected rules. But, if he approached it with a well-grounded knowledge of the general principles of jurisprudence, and with the map of a body of law distinctly impressed upon his mind, he might obtain a clear conception of it (as a system or organic whole) with comparative ease and rapidity. With comparative ease and rapidity he might perceive the various relations of its various parts; the dependence of the minuter rules on its general principles, and the subordination of such of these principles as are less general or extensive, to such of them as are more general and run through the whole of its structure. In short, the preliminary study of the general principles of jurisprudence, and the mental habits which the study of these tends to engender, would enable him to acquire the principles of English [and American] jurispru

dence in particular, far more speedily and accurately than he possibly could have acquired them in case he had begun the study of them without the preparative discipline. There is (I believe) a not unprevalent opinion that the study of the science whose uses I am endeavoring to demonstrate might tend to disqualify the student for the practice of the law, or to inspire him with an aversion to the practice of it. That some who have studied this science have conceived a disgust for practice, is not improbably a fact. But, in spite of the seeming experience in favor of the opinion in question, I deny that the study itself has the tendency which the opinion imputes to it. A well-grounded knowledge of the general principles of jurisprudence helps, as I have said, to a well-grounded knowledge of the principles of English jurisprudence; and a previous well-grounded knowledge of the principles of English jurisprudence can scarcely incapacitate the student for the acquisition of practical knowledge in the chambers of a conveyancer, pleader or draftsman. Armed with that previous knowledge, he seizes the rationale of the practice which he there witnesses and partakes in, with comparative ease and rapidity; and his acquisition of practical knowledge, and practical dexterity and readiness is much less irksome than it would be, in case it were merely empirical; insomuch that the study of the general principles of jurisprudence, instead of having any of the tendency which the opinion in question imputes to it, has a tendency (by ultimate consequence) to qualify for practice, and to lessen the natural repugnance with which it is regarded by beginners." pp. 156, 157. And it is shown that these views have been followed in Prussia, and have Savigny's support. (Ibid.) Of Prussia, it is said, that it is "a country whose administrators, for practical skill, are at least on a level with those of any country in Europe." (Ibid.) A statement undoubtedly correct. It is further said: "The opinion I have expressed was that of Hale, Mansfield and others (as evinced by their practice), and was recommended by Sir William Blackstone, more than a century ago." p. 158.

These views must, it would seem, be concurred in by all who have realized the benefits of such instruction, and, if opposed, can only be so, with any show of reason, by those who are personally interested. Of course, the consequence of following them out in all strictness, will be to require a longer period of probation than heretofore to those who may desire to become lawyers; but, thereby, those who become lawyers will be fewer and better qualified, and the history of American jurisprudence, at least, will not disclose so much ignorance, crudeness and sophistry as it, at the present time, does. The American law is certainly no easier to acquire properly than is the English or German; yet the course which the English or German aspirant has to go through is far more difficult and critical than that required in any state in the American Union.

The contents of the book are not, it is true, beyond criticism; but it is not intended that it alone should constitute the fountain from whence principles of law should or might be gleaned. The notion of morality it expounds is condemned by noted and able men, among which Mr. Lecky, author of the History of European Morals, may be especially noticed for his able, exhaustive and partially successful criticism. Dr. Stirling, the profound author of the "Secret of Hegel" and other works and essays, in the last of four lectures delivered to the Juridical Society, Edinburgh, in November, 1871, inter alia has this to say of Mr. Austin, as judged by his work; that, though a worthy gentleman, he "is one of those finical, over-refined, almost female minds that, without power in themselves, attach themselves blindly to the guidance of another or others;

and his book is a work of infinite external verbal distinction, but it has not a vestige of internal thinking rationale." (The Philosophy of Law, p. 83; Soule, Thomas & Wentworth, St. Louis, Mo.. 1874.) This criticism, however, is somewhat pedagogical; it is too strong. It is even too severe for one who follows the system of Hegel, which Dr. Stirling, avowedly and manifestly, in the lectures alluded to, does. It ought not to be charged against Mr. Austin that he attached himself blindly to the guidance of others; there being much in the work that is original and profound. His distinction between law and morality is certainly more satisfactory to the practical mind, at the present day, than is Fichte's (Science of Rights), which Dr. Stirling would approve; and the system he has fashioned, and, unfortunately, only partially expounded, is far better fitted for practical requirements, even in universities, than is Fichte's or Hegel's. One who would attempt to acquire a practical proficiency in law would hardly be warranted in confining himself to Hegel or Fichte or Kant, and, if he did, would be in as bad a state when he finished his studies, as the chemist who would attempt to expound chemistry from the standpoint of transcendental idealism. A large portion of Mr. Austin's work, as far as completed, is devoted to the definition and explanation of terms, something which, although approved by the German philosopher, is hardly adhered to by him in practice. And the plan he had in contemplation would have gone far to clear away the inconsistencies and errors with which not only the American and English systems, but also the Continental systems, were and are pregnant. The fact is that Mr. Austin was of a different school of philosophers than Dr. Stirling, respecting the relative merits of which, respectively, the judgment of jurists, it appears, accords the more useful place to Austin and others of his school. It may be said that we can better dispense with Hegel's, Kant's or Fichte's exposition of law than Austin's; but, as it is not necessary to do so, neither need to be dispensed with.

The typography is exceptionally good in one respect, it shows fewer errors than is customary among American publications. The print, however, is too small; it is injurious to the eyes to read it. M. M. C.

RECENT LEGISLATION.

MISSOURI LEGISLATURE-SESSION OF 1877. AN ACT entitled An Act to dispose of the records and unfinished business of Common Pleas Courts abolished under Section 42, Article 6 of the Constitution. Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. All cases or suits at law or equity pending at the time of the expiration of the terms of office of the several judges of all courts now existing in this state, not named or provided for in the Constitution of this State, or abolished by said Constitution, and all of the business of said courts and records thereof, and papers thereto pertaining and within the control or custody of said courts, shall be transferred to the court or courts having jurisdiction thereof in the counties where said courts exist; and the courts to which said business, records, and papers are transferred, are hereby vested with full and entire jurisdiction thereof, and all writs, processes, complaints, petitions, libels, appeals, and proceedings which are made returnable or to be entered in any of said courts, which expire under the provisions of the forty-second section of article six of the Constitution of the State, shall be returnable to, entered, and have day in said court having jurisdiction thereof; and all judicial writs and processes and

copies founded upon the records of said courts expiring under the provisions of said section of the Constitution, shall issue under the seal of the court having jurisdiction thereof in like manner and with the same effect as the same might have issued by the courts from which they were transferred.

SEC. 2. This act shall take effect and be in force from and after its passage; the emergency existing for the immediate enforcement of this act being the pending of cases in Common Pleas Courts, that should be taken up at the next term of Circuit Courts. Approved February 23rd, 1877.

AN ACT to encourage the Destruction of Grasshoppers. Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Any person who shall gather, or cause to be gathered by any person in his employ, eggs of the mountain locust or grasshopper, at any time after they are deposited in the earth, in the autumn of any year, and before they are hatched the following spring, shall be entitled to a bounty of five dollars for each and every bushel of eggs thus gathered, or for any quantity less than one bushel, bounty at the same rate to be paid, one-half by the state and one-half by the county in which they are gathered.

SEC. 2. Any person who shall gather, collect and kill, or cause to be so collected and killed, young and unfledged grasshoppers in the month of March, shall be entitled to a bounty of one dollar for each bushel; and for the month of April, fifty cents per bushel; and for the month of May, twenty-five cents per bushel, to be paid in the same manner as in the preceding section. SEC. 3. Any person claiming bounty under this act shall produce the eggs and grasshoppers thus gathered or killed, as the case may be, before the clerk of the county court [of the county] in which such eggs or grasshoppers were gathered or killed, within ten days thereafter, whereupon said clerk shall administer to such person the following oath or affirmation: You do solemnly swear [or affirm, as the case may be], that the eggs [or grasshoppers, as the case may be], produced by you, were taken and gathered by you or by a person or persons in your employ or under your control, and within this county and state.

SEC. 4. The clerk shall forthwith destroy said eggs by burning the same, and give to the person proving up the same, under his hand and seal, a certificate setting forth in a plain handwriting, without interlineation, the amount of eggs or grasshoppers produced and destroyed by him, and the name and residence of such person producing the same, which certificate shall be in the following form:

State of Missouri, This is to certify that in the county

County of

of, A. B. did this day prove before me that he had gathered or caused to be gathered- of eggs hoppers, and is entitled to the sum of and

-grassdollars

Given under my hand and seal of my office this day of, A. D. 18—.

A. B., Clerk County Court. Which certificate shall be received and taken by the collector of revenue of the county in which the same was given, and such collector shall be allowed to pay out of the county and state treasury, one-half from each.

SEC. 5. Such clerk shall keep a register of all such certificates given by him, in a book which he shall keep for that purpose, in which he shall note down every certificate granted by him, the number and amount, and to whom granted, and transmit a certified copy of such register, under the seal of the court, to the treasurer of the state, who shall not allow and pay any certificate which does not correspond with such register.

SEC. 6. Such clerk shall receive for his services as aforesaid, one dollar for such certified copy of the register and the regular fee for the certificate and seal, and ten cents for each certificate granted under this act, all to be paid out of the treasury of his county.

SEC. 7. As the object of this act is the rapid destruction of the locust the ensuing spring, it shall take effect and be in force from and after its passage. Approved February 23rd, 1877.

NOTES OF RECENT DECISIONS.

BANKRUPTCY-WHAT CONSTITUTES PARTNERSHIP— PARTNERSHIP CREDITOR MAY PROVE AGAINST ESTATE OF INDIVIDUAL DEBTOR.-In re Jewett, United States District Court, Eastern District of Wisconsin, 15 N. B. R. 126. Opinion by HOPKINS, J.: 1. A party, by his neglect of an ordinary duty, as to look after his interest, for an unreasonable length of time, when he knows his property is in the hands of and being managed by a third person, may be presumed to have approved of the management of the person having it in charge, and by such gross neglect be estopped from denying the existence of the authority that the party claiming to represent him exercised. In such cases neither community of interest nor participation in the profits is. absolutely necessary. When a party holds himself out. as a partner, and thereby procures credit upon the strength of his supposed relation, he is, on principles. of natural justice, held to be such partner. But knowledge or notice of his being so held out must be brought home to him, or there must be proof of circumstances which will authorize a court to presume notice before he can be so charged. 2. Persons who have been adjudged bankrupt, as partners in one firm, may be subsequently declared bankrupts with another in another firm. 3. A good deal of discussion was had on the argument as to whether a partnership creditor could prove his debt against the estate of an individual. partner, and, if so, whether his discharge would relieve him from such debts. The authorities on that. point seem to be somewhat in conflict. But the court holds that the weight of authority is in favor of the view that such debts can be proven, and that, being provable, they are necessarily released by the discharge. Ex parte Crisp, 1 Atk. 133; Ex parte Elton,. 3 Ves. 238; Ex parte Clay, 6 Ves. 813; Ex parte Chandler, 9 Ves. 35; Ex parte Dalton, 3 Rose, 389; Tucker v.. Oxley, 5 Cranch, 34, opinion by Chief Justice Marshall, under act of 1800, which was substantially like the present law; In re Frear, 1 N. B. R. 660; Hudgins v. Lane, 11 N. B. R. 462; In re Melick, 4 N. B. R. 97;: secs. 5069, 5115, and 5118, Rev. Sts.

REMOVAL OF CAUSES-PROBATE COURT.-Craigie · et al. v. McArthur. United States Circuit Court, District of Minnesota, 1 Syllabi, 115. Opinion by Nelson, J.; Dillon, J., concurring. 1. A contest in regard to the distribution of the estate of a deceased person,. where the amount involved is sufficient, and the citizenship of parties such as would confer jurisdiction,. is a 66 controversy" that may be removed from the state to the federal courts, under the provisions of the act of March 3d, 1875. 2. Such removal, however,. must be before trial in a court of original jurisdiction, and can not be made from a court to which, after hearing, an appeal has been taken. The act of Congress authorizes a removal from a court of limited or general jurisdiction, and a controversy in a probate court involving the distribution of an estate between partieswho appear and submit to the jurisdiction and litigate therein, is certainly a suit of "a civil nature ✶ ✶✶ in equity." 45 Me. 571; 4 Penn. State R. 301; 22 N. Y...

421; 20 Minn. R. 247; 19 Wis. R. 200. The probate court of the State of Minnesota is a constitutional court of record, with a seal and regular terms fixed by law. Sec. 1, art. 6, Const. Minn.; 2 Bis. St. 739; 1 Bis. St. 672, § 169. Its decrees, orders and judgment are binding upon all persons, and the right of appeal is given to the district court, and finally to the supreme court of the state. Pleadings are not necessary; but all applications made to the court, orally or in writing, are embodied in its records. At the time when the proceedings in that court assume the form of a controversy between parties, and the conditions requisite exist, the suit is removable. Gaines v. Fuentes et al., 2 Otto, 14; 3 Cent. L. J. 373. But it is too late, after the determination of the litigated matters in the probate court, and an appeal taken to the district court of the state, to initiate steps for a removal. No such right, then, exists; and to entertain jurisdiction would be an attempt to exercise a revisory power over the judgment of the probate court, which is given by law to another tribunal. This court has entertained jurisdiction of the removal of a suit pending in a state court, on an appeal from commissioners appointed be that court to fix the value of property taken under the right of eminent domain by an incorporated company. 3 Dill. 165. But this appeal is of an entirely different character. In the former case the appeal was from an appraisement by commissioners authorized under the charter of the company, which provided for an appeal from the award to the district court, and, upon the appeal being taken, the clerk is authorized to set it down as a cause upon the docket of the court appointing the commissioners. A suit, then, for the first time, is instituted in a court. In this case the initiatory proceedings and contest were in a court recognized as one of the judicial tribunals of the State, and the appeal was from a decree of that court. The removal of a suit under the act of Congress of March 3d, 1875, must be from the court of original jurisdiction.

DAMAGE FROM EXCAVATION-NEGLIGENCE LAWFUL ACT NEGLIGENTLY EXECUTED-CAUSE AND EFFECT.-In an action for damages resulting from giving way of earth under the walls of plaintiff's house, caused by defendant's carelessness and negligence in making excavations near said walls, by plaintiff's failure to allege that the excavation was wrongful, he admits that it was lawful in itself, and to recover, must prove negligence in executing the work. That the excavation was made, and about the same time the walls cracked, does not tend to prove negligence. Mere synchronism does not tend to establish the relation of cause and effect. [Citing Holman v. C. R. I. & P. R. R., 62 Mo. 562.] It was not only necessary for plaintiff to prove that the excavation caused the injury, but that it was the result of the negligence of defendant or its employees in executing the work. Judgment affirmed. Opinion by HAYDEN, J.-Ward v. Andrews.

EVIDENCE-BOOKS OF ORIGINAL ENTRY — ACCOUNTS AGAINST DECEDENTS-TRANSFER OF DISHONORED PAPER. -In an action against the administrator of a decedent, the books of plaintiff are not competent evidence where it appears that they are not the books of original entry. Plaintiff will not be permitted to testify to the correctness of his own account against deceased, but merely to the handwriting and date of entry. Plaintiff was not entitled to recover for services rendered more than five years prior to service of notice of claim on administrator. [Citing Hale's Exrs. v. Ard's Exrs, 48 Penn. St. 22.] A negotiable note, by

reason of its dishonor, does not lose its negotiable character, so as to come within the provisions of § 8, p. 270 Wagner's Statutes, that the assignee of a bond, non-negotiable note or account may maintain an action against the assignor, upon failure to obtain payment from the obligor, maker or debtor, only in one of the following cases: Where he uses due diligence in the institution and prosecution of a suit against the obligor, maker or debtor," etc. [Citing Leavitt v. Putnam, 3 Comst. 494.] If originally negotiable, it may still pass from hand to hand after dishonor. The indorser will not be released by the insolvency of prior in. dorsers, so long as the holders remain passive. [Citing Sterling v. Marietta & S. T. Co., 11 Serg. & Rawle, 179; McLemore v. Powell, 12 Wheat. 554.] The transfer by indorsement of dishonored paper is in the nature of a sight or demand-draft on the original maker. [Citing Davis v. Francisco, 11 Mo. 575.] Demand and notice of non-payment is necessary as in other cases of negotiable paper. [Citing Hunt v. Wadleigh, 26 Me. 271; Greely v. Hunt, 21 Id. 455.] Insolvency of maker will not excuse demand and notice. [Citing Story on Prom. Notes, § 286.] Judgment affirmed. Opinion by LEWIS, C. J.-Morgner v. Bigelow.

CONSTITUTIONAL LAW-ACT LICENSING PEDDLERS.— The act licensing peddlers having been declared unconstitutional by the Supreme Court of the United States (Welton v. The State, U. S. Sup. Ct., 3 Cent. L. J., 116, on appeal from State v. Welton, 55 Mo. 288), a motion to quash an indictment found under that act ought to have been sustained. Opinion by SHERWOOD, J. (NAPTON, J., dissents.)-The State v. Rowland.

PROSECUTION for Keeping DRAM-SHOP-SUFFICIENCY OF AFFIDAVIT POWER of Court.-On a prosecution instituted by affidavit and warrant for keeping a dram-shop in violation of a city ordinance, this court can not pass upon the sufficiency of the affidavit, nor upon the constitutionality of the ordinance, neither of them being contained in the record on appeal. Opinion by SHERWOOD, C. J.— City of Carthage v. Harper.

APPEAL FROM JUSTICE OF THE PEACE-AFFIRMANCE FOR WANT OF NOTICE.-When the party appealing from the judgment of a justice of the peace fails to give notice of the appeal, as required by statute, before the second term of the appellate court after that to which such appeal is returnable, the judgment of the justice is properly affirmed. Rowley v. Hinds et al. 50 Mo. 403. Opinion by NORTON, J.-The Town of Brownsville v. Rembert.

MASTER AND SERVANT-NEGLIGENCE.-Where the plaintiff's servant worked for a sub-contractor of defendant in hauling rock with his team, but under the immediate direction and control of the defendant's superintendent, and the wagon and team were lost by the gross negligence of the defendant's superintendent, in ordering the servant to drive into a dangerous place, the defendant is liable for the damages caused by such negligence. Opinion by NAPTON, J.-Cook v. The Han. & St. Jo. R. Co.

PLEADINGS-ACTION ON SHERIFF'S BOND.-In an action on a sheriff's bond, for failing to account for taxes collected by him, although the averments of the petition are neither so explicit nor as orderly as they might have been," yet, if the petition substantially alleges that the defendant was duly elected sheriff, qualified and gave bond, and collected taxes as sheriff for which he failed to account, a demurrer ought not to be sustained on the ground that the petition does not show for what years the taxes were collected, and does not aver that the sheriff had received any credit in his settlements for the taxes not paid over. Opinion by HOUGH, J.-State to the use of Morgan Co. v. Lutman.

MORTGAGE-WHEN INSUFFICIENT TO PASS WIFE'S ESTATE. In a deed of mortgage, made by husband and wife,