force the reversioner to submit to the judgment and will of the tenant in a matter touching his estate. In such case it is proper for the tenant to rebuild the barn, because it is necessary to his convenience, and it is right that he should pay for it out of the increase of the farm, but not by committing waste upon it. Judgment reversed. Opinion by PERKINS, J.-Miller v. Schields et al.

ROAD SUPERVISOR-LIABILITY FOR ACTS DONE.-A road supervisor acting within the scope of his authority in good faith is not liable to an action in his natural capacity for acts done in his official capacity; and when a party injured declines to avail himself of the statutory mode of recov ering his damages, but elects to sue the supervisor and hold him personally liable, the burden rests upon him of showing that the supervisor did not act in good faith, but corruptly, maliciously and without reasonable care. The supervisor is bound to act upon his own judgment in matters, some of which are quasi judicial, and it would be unjust and against public policy to hold him liable for mere errors of judgment. Judgment reversed. Opinion by PERKINS, J.-McOsker v. Burrell.

CIVIL AND SCHOOL CORPORATIONS-RIGHT TO SUE AND BE SUED. The statute (1 R. S. 1876, 780, sec. 4) makes each incorporated town and city of the state a distinct municipal corporation for school purposes, and the school corporations thus created can contract and be contracted with, sue and be sued, etc.; and where suit is brought for services rendered as school trustee, it is the "school city,' and not the municipal city, against which the action must be brought. The city in its general character has nothing to do with the erection of school houses, and can not be made liable for any services rendered in building them. Judgment reversed. Opinion by NIBLACK, J.-City of Huntington v. Day.

DEMURRER TO EVIDENCE-FRAUD-CONVEYANCE FROM HUSBAND TO WIFE.-On a demurrer to evidence everything will be taken against the party demurring, which the evidence tends to prove, including every fair inference to be drawn therefrom. But fraud will not be presumed, and must be proved by the party alleging it. And where the action is to set aside a conveyance from a husband to his wife on the ground of fraud, and the plaintiff does not show that there was no valuable consideration for the transfer, nor that the husband's intent was to defraud his creditors, nor that the wife had notice of such intent, nor that the husband was insolvent at the time of the conveyance, the plaintiff has failed to prove fraud and a demurrer to the evidence will be sustained. Judgment affirmed. Opinion by WORDEN, C. J.-Egan v. Downing et al.

MARRIED WOMAN'S NOTE-VALIDITY OF JUDGMENT RENDERED THEREON.-The note of a married woman is void, and her silence, admission or affirmance of it in any way can not make such a note valid; but her silence, admission or affirmance, when she is sued and has the power to speak, will transmute her void note into a valid judg ment, for two reasons: 1. Because she is estopped by the judgment thus admitted and can never afterwards gainsay it; 2. Because the public faith, for the security of person and property, requires that all judgments sufficient on their face shall import absolute verity. Where a married woman had notice of suit on her note and let judgment go by default and stood by till the land was sold on execution and purchased by the judgment plaintiff, held, she was estopped years afterwards, to assert the invalidity of the note and judgment. Judgment affirmed.-Burk et al. v. Hill.

*

breed Osage Indian. On August 3d, 1867, the occupying claimant in this case procured his title to said land from said half-breed Indian, and paid him therefor $350. Said occupying claimant then took possession of said land, and has been in possession ever since. On February 3d, 1872, the successful party in this case procured his title to said land from said half-breed Indian. On February 7th, 1872, this action was commenced. On March, 26th, 1874, an act of the legislature, which was passed March 7th, 1874, took effect, which act provides, among other things, as follows: "That when in any case any of said [Indian] lands are held by any person who has purchased the same in good faith and for a valuable consideration from the Indian or Indians to whom the same were allotted under such treaty * such purchaser shall not in any case be evicted from such lands by any other person or persons who may have subsequently acquired an adverse title to the same, until such purchaser shall have been repaid the full amount of his or her purchase money, with lawful interest thereon." Laws of 1874, p. 129, sec. 2. Afterwards judgment was rendered in this case in favor of the second and subsequent purchaser for the land, but the first purchaser was allowed to recover said purchase money with interest, amounting to $460.25. Held, that the court below erred in allowing said purchase money; that said act can not have the effect to require the second purchaser, under the circumstances of this case, to pay said purchase money. Opinion by VALENTINE, J.Lemert v. Barnes.

LIABILITY OF CONTRACTORS.-1. When a railroad is being constructed, and is in the exclusive possession of and operated by a contractor for its construction, and the railroad company, at the time the injuries complained of are committed, has no control thereof, such company is not liable for the damages resulting from the operation of such railroad; and, held, in such case the maxim respondeat superior does not apply. 2. In an action to recover damages for personal injuries to F, a boy about twelve years of age, caused by a turn-table used in the operation of a railroad, which was neither enclosed, guarded or locked, and where such railroad is being constructed under a contract to equip and construct the same by a constructing corporation organized under the laws of Pennsylvania with power to contract to build, construct, maintain or manage any works, public or private, and supply and furnish all needful materials, laborers, implements and instruments and fixtures of any and every kind whatsoever; and such railroad, when partly finished, and while in possession of and operated by the corporation contracting to construct the road, is used and controlled by the constructing corporation for carrying passengers and freight; held, that an instruction to the effect that if the jury find that, at the time of the injuries, the turn-table and the road was in the possession of and operated by the corporation, constructing and equipping the same, for the purposes of construction only, the railroad company was not liable therefor; but if the said constructing corporation had possession of the road and was operating it for general purposes, the railroad company was not relieved from liability for the injuries, is erroneous, as liable to mislead the jury to the prejudice of the railroad company. Judgment reversed. Opinion by HORTON, C. J., Valentine, J., concurring, Brewer, J., dissenting. The Kansas Central Railway v. Fitzsimmens.

DEMURRER TO EVIDENCE-MENTAL INCAPACITY-ACTUAL AND CONSTRUCTIVE NOTICE OF UNFITNESS OF EMPLOYEE.-1. Where a party demurs to the evidence of a plaintiff on a trial, which demurrer is overruled by the district court, and afterwards both parties proceed with the case and produce other evidence, and sufficient evidence is introduced to make out a case for the plaintiff, and, on the verdict of a jury, judgment is rendered in favor of the plaintiff, the supreme court will not reverse the ruling of the district court overruling such demurrer, and, also, held, that the court does not err in overruling such demurrer, whenever there is testimony, which, although weak and inconclusive, yet fairly tends to prove every essential fact and is sufficient to justify a court in overruling a motion to set aside a verdict based thereon. Simpson v. Kimberlin, 12 Kas. 579; Kansas Pacific Rw'y Co. v. Couse, 18 Kas. Where a party executes a paper, purporting to be a written release discharging his right of action against a railroad company for injuries complained of, and at the said time he is so much under the influence of drugs and opiates, taken to alleviate his pains, caused by a broken thigh, that he is mentally incapacitated to contract; held, that such a release is voidable and not a defense to his cause of ac

tion; and, held, also, that in this case it was not necessary for him to pay back nor offer to pay back the money received at the time of signing said paper, as a condition precedent to his right to sue on his claim for damages. On the trial, the jury had the right to give the company credit for the money paid at the time the release, so called, was signed. 3. In an action by an employee against his employer for injuries caused by the negligence of a fellowservant, an allegation that the employer knew of the latter's unfitness and recklessness is sustained by proof that such incompetency ought to have been known by the defendant. Where the employee is so grossly and notoriously unfit, that not to know of his unfitness is negligence, the law presumes notice to the employer. All the justices concurring. Judgment affirmed. Opinion by HORTON, C. J.-Chicago, Rock Island and Pacific R. R. v. Doyle.

EQUITABLE INTERESTS IN LANDS.-Where O, the owner of real estate injured by the flowing back of water resulting from the height of a mill-dam constructed by R across a river on his own land, obtains a judgment against R restraining him from maintaining a dam above the height of thirty inches from the forebay or flume of his mill-race, requiring its abatement to that height, and authorizing execution to carry the judgment into effect; and afterward C makes a contract to sell the real estate affected by such dam to M and B, and causes a title bond to be executed therefor to the purchasers conditioned to be void and of no effect if its provisions be not complied with; and M and B take possession of the real estate, pay one-fourth of the purchase-money and execute their notes for the deferred payments, and while thus in possession give R the right to raise his mill-dam above said height of thirty inches, which is done, and thereafter M and B, the purchasers, make default in the payment of their notes given for the installments named in the title bond, and, by consent of all parties to the contract of purchase and notes, the contract is rescinded, the notes and title bond canceled, and the possession of the premises delivered back to C: Held, in an action brought by the grantee of R against C, and the sheriff in whose hands the execution to reduce the height of the dam had been placed, to restrain them from enforcing the judgment to abate the dam to the height authorized by the judgment of C against R, that the court below erred in rendering judgment perpetually enjoining C and the sheriff from abating or reducing the said dam below the height established by R. Judgment reversed. Opinion by HORTON, C. J.-Palmer et al. v. Moore.

RIGHTS OF Owners of LAND TO THE FLOW OF WATERIMPROPER DIVERSION OF A STREAM-CONSENT OF GUARDIAN NO ESTOPPEL OF MINOR.-1. Every man through whose land a stream of water runs is entitled to the flow of that stream without diminution or alteration. 2. The Council Grove Peerless Mill Company in 1874, with the assent of an upper riparian owner, dug a channel through the lands of such owner from a point on the Neosho river to its mill, and thereby diverted from its natural channel through the land now belonging to plaintiff in error a portion of said stream, and this without the assent of the then owner of said plaintiff in error's land. Held, that thereby the mill company acquired no right to continue said diversion or to restrain plaintiff in error from remov. ing any obstruction, natural or artificial, in the bed of said river on his lands. 3. Where at the time of digging said channel the lands now belonging to plaintiff in error were the property of a minor held by said minor under a will, and where no legal proceedings were had to acquire the right to the use of any portion of the stream, and no conveyance or permission obtained from the executor of said will and guardian of said minor, the mere knowledge on the part of said executor and guardian that said company was engaged in digging said channel, and failure on his part to object to said work or to take measures to prevent it, will work no estoppel upon the minor, or prevent said minor from afterwards asserting her right to the flow of the entire stream in its natural channel. 4. The right to the use of the flow of water in its natural course is connected with and inherent in the property in the land, and passes by a conveyance of the land. Hence a deed of the land made by the executor and guardian, under orders of the probate court, conveyed to plaintiff in error the right to the flow of the entire stream in its natural channel, as before the digging of said artificial stream. Judgment reversed. Opinion by BREWER, J.-Shamleffer v. The Council Grove Peerless Mill Co.

HOMICIDE-SELF-DEFENSE.-Where one commences an

altercation with another, and strikes his adversary with his hand with no purpose or design to kill or cause great bodily injury to him, and his adversary repels such assault with a deadly weapon, and after the assailed has shot and wounded the assailant, and has retired behind a wall, and the assailant ceases to follow, but has neither retreated nor attempted any abandonment of the conflict; held, that the assailant is not justified in taking the life of the other, even if the assailed attempts at the time to shoot the assailant. Judgment affirmed. Opinion by HORTON, C. J.-State v. Rogers.

Associate Justices.

VACATING JUDGMENT PETITION FOR LIEN.-1. It is error for the circuit court to vacate a judgment as to one of several defendants, for mere irregularities not affecting the jurisdiction, more than a year after the rendering of the judgment. Fornette v. Carmichael, 38 Wis., 236. 2. A petition for a lien may be amended, after filing, by adding another party thereto. Brown v. Gas Light & Coke Co., 16 Wis., 556. 3. The jurisdiction of the county court over an action commenced therein to enforce a lien is not affected by the fact that the petition for the lien was wrongly addressed to the clerk of the county court instead of the clerk of the circuit court. Opinion by COLE, J.-Challoner v. Howard.

PARTNERSHIP-AGENCY.-1. After the dissolution of a firm one of its members can not act as the agent of a creditor of the firm in holding obligations due the firm as collateral security for a note due from the firm to such creditor, and taking a conveyance of land in settlement of such an obligation; and in such a case the creditor, in an action on the firm note, is not bound to account for the value of such land or of such alleged collaterals, where it appears that they were never in his possession, that he never authorized such alleged agent to hold them for him, and never received any payments thereon, and that the land was not conveyed to him, but to such alleged agent. 2. Such con. veyance to one of the former partners on settlement of a debt due the firm may inure to the benefit of the firm, but does not inure to plaintiff's benefit. Opinion by COLE, J. -Bray v. Morse.

CORPORATION-GARNISHMENT.-1. A proceeding in garnishment may be maintained under Gen. Stats. 1566, sec. 103, where the judgment-debtor is a corporation. 2. Where the judgment-debtor appears by attorney at the examination of the garnishee and does not object to the proceed. ing on the specific ground that he has not been notified of it, he thereby waives his right, if he had any, to such notice. 3. Money received by the cashier of a railroad company from its agents along the line of its road as proceeds of the sale of tickets and for freight, and held by him as such ca shier, though collected for other connecting companies and credited to them on his company's books, is still the money of his company and subject to a judgment against it; the connecting companies having no specific interest therein. 4. The cashier or other oflicer of a railroad company is subject to garnishment for money or property of the company in his possession as such, under the statute. Opinion by Cole, J.-Everdell et al. v. S. & F. du L. R. R. Co. and Ewen, Garnishee, etc.

WHERE COURT WILL NOT INTERFERE -CHARGE TO JURY.-1. This court will not disturb a judgment merely on the ground that it is contrary to the weight of evidence. 2. Where the court had instructed the jury that a watercourse is a stream of water flowing in a regular channel; had pointed out, in the language of this court, the distinction between such a stream which is dried up at certain seasons and those occasional bursts of water which, in times of freshet, descend from hills; and had charged that, in case of mere surface water caused by rain or melting snow, the proprietor of land over which the same may naturally flow has a right to turn it away from such land; it was not error to further charge that surface-water without a spring, when it has flowed in a certain direction for such a length of time as to have naturally formed a bed

and banks and well-defined stream of flowing water, even though it may sometimes be dry at the place where it has formed such banks and bed, is still a water-course at that point. Opinion by COLE, J.-Ulrich v. Richter.

LIBEL-MITIGATION OF DAMAGES-PLEADING.-1. Where words complained of as libelous allege a habit of committing a certain kind of unlawful acts, as well as a specific instance of the same, defendant may plead in defense or mitigation other specific instances of the same kind of act of which plaintiff has been guilty. 2. In libel for words which, besides charging plaintiff (a member of Congress) with taking money for using his influence in procuring the appointment of B as postmaster, also described him as "a man who makes appointments a source of personal revenue," the answer, after justifying as to the specific case mentioned, alleged, as a further defense and in mitigation of damages, that plaintiff had agreed to procure the appointment of T as a postmaster in consideration of T's paying, or procuring to be paid, a mortgage outstanding upon land of plaintiff's brother-in-law. Held, that the allegations were relevant. 3. In answer to such a complaint, allegations to the effect that plaintiff, as a candidate for re-election to Congress, spent large sums of money in corrupting the electors of his district and delegates to the nominating convention, to induce them to vote for his renomination, are irrelevant; as are also allegations charging plaintiff generally with incompetence for the office of representative in Congress. Opinion by COLE, J.-Kimball v. Fernandez et al.

INDICTMENT-ALLEGATIONS.-1. In an indictment for a conspiracy to do a lawful act by criminal means, the means must be particularly set forth. But if the conspiracy be to do an act in itself unlawful, the means by which it was to be accomplished need not be stated. 2. Thus, where the object of the conspiracy, as charged, was to obtain money from a certain person "by false pretences and by false and privy tokens and subtle means and devices," it was not necessary to state more specifically such pretences, tokens or devices; the obtaining money on false pretences being a crime by statute. 3. In such a prosecution, if it appears that the transaction on the part of the person from whom the money was obtained, or from whom defendants conspired to obtain it, would have been unlawful in case the representations had been true, there can be no conviction. 4. Thus, where money was paid by A to certain conspirators to get possession of boxes, falsely represented by the latter to contain counterfeit money, with a view to uttering the same; and a further sum was paid to one of the con federates, who was a constable, to prevent a threatened arrest of A for having such counterfeit money in possession (the boxes, in fact, containing only sawdust), the confederates can not be convicted upon these facts of a conspiracy to obtain money of A upon false pretences. Opinion by LYON, J.-State v. Crowley et al.

MUNICIPAL TAXES-LIMITATIONS.-The taxes of a municipal corporation are public in their character, being in the nature of a public trust; and a suit brought for their recovery is not affected by the statute of limitations. Opinion by TURNEY, J.-Memphis v. Looney.

INDORSEMENT-EVIDENCE-FRAUD.-1. In a suit against an indorser, evidence is competent to show that it was agreed between the parties at the time, on sufficient consideration, that the indorser should not be bound as such by his indorsement. Such is always the rule where to hold him bound would operate as a fraud. Citing 1 Daniel's Neg. Inst., §§ 720, 722; Hill v. Ely, 5 Serg. & Rawle, 366. 2. J., to secure a note, held a mortgage on real estate, on which M. had foreclosed a prior mortgage, and had purchased the property, when J. indorsed his note to M. Held, a merger

of the debt and an extinguishment of it as to J. Citing 1 Hilld. Mortg. 203 et seq. Perry on Trusts, §§ 318, 351. Opin. ion by SNEED, J.-McCollum v. Jobe.

BILLS AND NOTES-USURY.-1. Where a bill of exchange on its face appears to have been made in Mississippi, and bears a rate of interest lawful there, but which is illegal and usurious under the laws of Tennessee, where the contract is in fact made, as appears by the proof, it is not void on its face; and a recovery may be had upon it for the amount of the debt with legal interest under the laws of Tennessee. Criticising Thompson v. Collins, 2 Head, 444. 2. Under the Act of 1869-70, sec. 1,944a, Thomps. & St. Code, the forfeiture in such a case will be for only the excess of interest over six per cent. 3. Such excess is not a simple penalty, but it is still usury, though it be expressed to be payable only after maturity of the note. Opinion by FREEMAN, J.-Richardson v. Brown.

MORTGAGE-WAIVER OF LIEN-ATTACHME NT OF MORT GAGED PROPERTY.-1. A party holding personal property by virtue of a mortgage or pledge, may waive his claim under such mortgage or pledge and attach the property in a suit to recover the debt for which the mortgage or pledge was given. Buck v. Ingersoll, 11 Metc. 232. 2. Such attachment is, in itself, a waiver of the claim under the mortgage. The liens respectively created by attachment and mortgage on the same property are essentially different and can not co-exist. 3. In this commonwealth the equity of redemption of personal property is not attachable. The only mode by which a mortgagor's interest in mortgaged personal property can be reached is that pointed out in Gen. Stat. ch. 123, sec. 62-71. Opinion by LORD, J.-Evans v. Warren.

PROMISSORY NOTE-PRINCIPAL AND AGENT-VERDICT. -In an action upon a promissory note, indorsed by A, the signature of the maker of which was a forgery, and which had been sold by the defendant, a note-broker, to the plaintiff, the burden of proof is upon the latter to show that he dealt with the defendant under such circumstances as to render him liable as warrantor of the signature of the maker; and he must prove this by a preponderance of evidence against all the evidence which tends to show that A was the real party to the sale, and that defendant acted merely as his agent. 2. In such a case, evidence that defendant had declared to a third person that he had bought the note himself was competent as an admission of his ownership. 3. When a jury have returned a finding that is incomplete and defective, they may be sent out again to correct the error, even though they had separated after their first finding before they came into court. Com. v. Carrington, 116 Mass. 37; Pritchard v. Hennessey, 1 Gray, 294. 4. After a general finding for the plaintiff, without an assessment of damages, they may be sent out again for the purpose of making such assessment. And this may be done, although there may have been an adjournment of the court in the mean time. Chapman v. Coffin, 14 Gray, 454; Winslow v. Draper, S Pick. 170; Lawrence v. Stearns, 11 Pick. 501. Opinion by AMES, J.-Mason v. Massa.

BREAKING AND ENTERING.-It is provided in Gen. Stat. ch. 161, sec. 12, that whoever breaks and enters a building in the night time with intent to commit the crime of larceny shall be punished by imprisonment in the state's prison not exceeding twenty years; and in sec. 14, that such offense committed in the day time shall be punished by imprisonment in the state's prison not exceeding five years, or by fine and imprisonment in jail. The breaking and entering with intent to commit larceny must be alleged in an indictment found under either section. To convict under sec. 12, the indictment must allege that it was done in the night time; for, that being an aggravation of the

crime, and subjecting the party to the severer penalty, the crime with the aggravation must be charged and established. Hopkins v. Com., 3 Metc. 460. But if the general crime is charged without the aggravating circumstance, it is a good indictment under section 14, and it is not necessary to negative the aggravating circumstance. The words "in the day time" in section 14 are not intended to give character to the offense, but to distinguish it from the higher grade of the same offense committed in the night time. Devre v. Com., 1 Metc. 258; Com. v. Hamilton, 15 Gray, 480; Learned v, Com., 12 Metc. 240, 243. A conviction on such an indictment will be a bar to any subsequent indictment for the same offense with the aggravating circumstance. Com. v. Burke, 14 Gray, 100. Opinion by ENDICOTT, J.— Com. v. Reynolds.

NOTES.

IN the St. Louis Circuit Court this week, a lawyer named James A. Beal was suspended from practice for the space of one term. His offense was that, during several months in the year 1873, he had published in the St. Louis GlobeDemocrat the following advertisement: "Divorces obtained without exposure, and money advanced on lawsuits. Address Lawyer, box 47."

IN a recent case in Philadelphia, Roserie v. Kiralfy Brothers, reported 34 Leg. Int. 185, it was held that, where theatrical managers engage a dancer in a certain position, but afterwards they give her a lower position, she can not be compelled to take the part, but may consider the contract forfeited, and sue the managers for whatever loss she may have sustained.

THE Supreme Court reporter of Indiana, until the late session of State Legislature, was required, without any salary, to publish and sell his volumes at $3.00 per copy. His only compensation was the profits on his books at that price. Without any salary from the state it was found that the reports could not be published at that price. The law has been amended, so that Black's as well as Martin's Reports will be hereafter sold at $3.50 per volume.

A CANADIAN correspondent has forwarded to an English law journal a postal card, which shows, he says, how the bar in the Dominion is descending. On the back of the card is the address of a "Solicitor in Chancery and Surrogate Court, Attorney and Conveyancer," and the following statement of the various functions of this versatile gentleman: Farms bought and sold; Loans negotiated on all kinds of property; Marriage Settlements, Wills, Trusts, and Insolvency made specialties. Houses and Lots rented and to rent, bought and sold. Stocks: Dominion and Banks. Funds: Current and Uncurrent. Debentures: Dominion and Municipal. Insurance; On Life and against Fire. All dealt in a shade above central rates. Agent for Foreign Bequests and Claims in all parts of the world, especially the United Kingdom." And the announcement winds up: "N. B.-Agent for Bunker's Deep Well and Force Pumps."

OFFICIAL CORRESPONDENCE.- The following correspondence of an official character explains itself.

RETREAT, Jackson County, Ind.

Mr. E. HENDERSON, Dear Sir:-Will you please give me your instruction in regard to the listing of a spayed bitchwhether it should be listed as a male or female. I have some trouble on this point. Plsase instruct me immediately. Yours respectfully,

WILLIAM M. BROOKS, Assessor Vernon Township, Jackson County, Indiana. Respectfully referred to the Hon. C. A. Buskirk, Attorney-general. E. HENDERSON, State Auditor.

INDIANAPOLIS, May 23rd, 1877. Hon E. HENDERSON, State Auditor. Dear Sir:-As "Sunshine broken by the hill, Though turned aside, is sunshine still," just so in legal contemplation, for purposes of dog taxation, whether a male or female, which? a bitch though spayed is still a bitch.

Respectfully, etc.,

C. A. BUSKIRK,

Attorney-general. THE general term of the Supreme Court of New York in the first department decided, on the 21st ult., a point of considerable interest to the holders of policies in insolvent life insurance companies. Rebecca L. Miller's husband, whose life was insured in the Security Life Insurance and

Annuity Company for $6,000, died November 26, 1876. On December 14, 1876, the company passed into the hands of a receiver. Mrs. Miller applied by petition to have her claim, as a death claim, paid out of the funds before the payment to the living policy-holders of their return premiums. The court below denied the petition, and the general term, Judge Daniels giving the opinion, affirmed this decision, holding that under the charter the reserve premium or shares of premiums to which an insurer is entitled on the insolvency of a company form a debt, and on the appointment of a receiver the insurers become creditors of the company. The act under which the receiver was appointed gives no preferences to any class of debts except debts to the United States and judgment liens.

A WASHINGTON dispach of last week, has the following: Several days ago a letter was received by the President, purporting to be from J. R. Lewis, Chief Justice of Washington Territory, resigning that position, and concluding with the remark that on retiring to private life he was in full accord with the reconciliation policy of the President. Yesterday, at the cabinet meeting, Associate Justice Green of the same court, was selected to fill the vacancy, and Judge Lewis was informed by telegraph that his resignation was accepted. This morning Secretary McCrary received a dispatch from Judge Lewis asking for an expla nation, and saying that he had sent no resignation, and that, if one had been received here, it was a forgery. Secretary McCrary went at once to examine the letter of resignation at the Department of Justice, and being familiar with Judge Lewis' manuscript, saw that neither the signature nor the body of the letter was his. The facts were laid before the President, who recalled the appointment of Judge Green. The strangest part the affair is, that when Judge Lewis was Chief Justice of Montana, three years ago, his resignation was received in a similar way and in the same handwriting. The forgery was not discovered for several weeks, and not until his successor had been confirmed by the senate and was on his way to Montana. The case was investigated, and President Grant immediately made Judge Lewis Chief Justice of Washington Territory. This for gery will be investigated, and the perpetrator, who is evidently an enemy, will be punished.

IMPORTANT CHANGES IN THE ILLINOIS COURTS.-One of the most important bills passed by the late session of the Illinois Legislature was the act creating a new court in that state-or rather reconstructing the present circuit court, to some extent destroying its identity by giving it new power and jurisdiction. The number of circuits is reduced one-half, while the number of judges is increased one-third. Contiguous circuits are consolidated, making thirteen where formerly there were twenty-six. In each new circuit thus created, an additional judge is to be elected on the first Monday of August next, to hold office for two years, when the terms of the judges of the original circuits expire. Then three are to be elected for each circuit, and the judges are to arrange among themselves as to the counties over which they shall preside. The Chief Justice of the Supreme Court may assign any circuit judge to duty, when not occupied in his own circuit, to any other county in the state where his services may be needed. The bill also provides for a system of appellate courts to be held at four different points in the state-Chicago, Ottawa, Springfield and Mt. Vernon, and the state is divided into four districts for that purpose. The appellate court is to be composed of one circuit judge from each of the circuits in any one of the individual districts or divisions. For instance, the southern division will be composed of thirtysix of the counties in southern Illinois. It will lose three circuits under the new law. One judge from each of the circuits will compose the appellate court to meet at Mt. Vernon in February and July of each year. The Chief Justice of the Supreme Court selects from the circuit judges one who shall act as a member of the appellate court. The appellate courts are to have jurisdiction in appeals only; two of the judges shall constitute a quorum, and the concurrence of two of them shall constitute a decision. The judgment of the appellate court shall be final in all cases where the amount involved does not exceed $1,000, and is also conclusive in all matters of fact in controversy. The object of the new appellate court is to lighten the burdens of the Supreme Court, which have become, it is claimed, very heavy, and also to furnish to appellants a chaaper court than the Supreme Court. The circuits now presided over by Judges T. B. Tanner and James C. Allen are consolidated into the second circuit.

SAINT LOUIS, JUNE 15, 1877.

CURRENT TOPICS.

THE St. Louis Bar Association held a meeting on Saturday last for the purpose of considering the state of the docket of the supreme court. Although nothing definite was agreed upon, the meeting having adjourned without any formal action, the mover of a resolution which was discussed at considerable length presented some figures which show conclusively that some remedy is necessary. In 1870, the supreme court disposed of 299 cases on its docket; in 1871, of 326 cases; in 1872, of 396 cases. To the close of 1872 the supreme court consisted of three judges. In 1873 the number was increased to five judges, and the five judges in that year disposed of 461 cases; in 1874 they disposed of 529 cases, and in 1875 of 427 cases, and last year they got through 316 cases. For the April term of the present year 850 cases were on the supreme court docket, awaiting a hearing. This is an exceedingly unsatisfactory state of affairs. The block in our supreme court is almost as bad as in the Supreme Court of Illinois; but the legislature of the latter state has adopted a bill creating intermediate courts of appeal throughout the state, while our legislature has just adjourned for two years without having taken any action upon this subject. The root of the evil, we apprehend, consists in allowing appeals in unimportant cases, and in hearing arguments upon points and exceptions which are devoid of merit. Much time and labor would be saved to the judges, if the Practice Act were so amended as to allow a peremptory decision of alleged errors in the court below, in some such manner as under the English practice on an application for a rule nisi.

IN THE Supreme Court of the United States, during the past term, in the case of Loyd v. The State, the following case was brought up on error to the Supreme Court of the State of Alabama: The defendant, having been indicted under a statute of Alabama for carrying on a lottery without legislative authority, claimed in defense a right to carry on the lottery in question under a subsequent statute passed on the 10th of October, 1868; this latter statute was repealed in March, 1871. It was admitted on the trial that the acts charged against the defendant were done under that statute, and would be legal if the statute were constitutional and had not been repealed. The requirements of the statute had been carried out by the defendant. Under a previous indictment against the same defendant for a similar offense, the supreme court of the state had held that the statute in question constituted a contract. and that the repealing act was Vol. 4.- No. 24.

before the court was the meaning of the statute; its constitutionality was not called in question. On the trial of the case at bar, the defendant relied upon that decision of the court, but he was, nevertheless, convicted and sentenced. On appeal to the supreme court of the state, the judgment was affirmed, the court deciding that the statute of October 10th, 1868, was unconstitutional. The Supreme Court of the United States held that the previous adjudication of the court upon the meaning of the satute,-that it constituted a contract between the defendant and the state,-did not estop the state from denying its constitutionality in the present case, nor conclude the court upon that question, although the point might have been "We raised and determined in the first instance. are not prepared to admit," say the court, “that it is competent for any one legislature, by any contract with an individual, to restrain the power of a subsequent legislature to legislate for the public welfare, and to that end to suppress any and all practices tending to corrupt the public morals." See Moore v, State, 49 Miss. 147; Metropolitan Board of Excise, 34 N. Y. 663.

THAT the Indian judges are not independent of the executive has been decided by the English Secretary of State in a minute which has recently been laid before Parliament, and which has called forth a protest from the bench of India, and much opposition from the press of Great Britain. A Mr. Fuller was charged before an Indian magistrate with causing the death of a native servant by striking him on the head with a cane. A post-mortem examination proved that the man had died from rupture of the spleen; and the magistrate, being of opinion, on the evidence, that the act of Mr. Fuller did not come within that class of acts specified in the Indian Penal Code as amounting to the offense of culpable homicide, convicted the prisoner of "causing hurt" merely, and fined him thirty rupees, with the alternative of fifteen days' imprisonment. At the instance of the governor-general, the local government called the attention of the high court to the case, and obtained from them an intimation that, though the sentence awarded by the joint magistrate was, in their opinion, "perhaps inadequate, yet that it did not seem to the court to be specially open to objection, and therefore did not call for interference." Thereupon the governor-general wrote to the magistrate, expressing his "regret that the high court should have considered that its duties and responsibilities were adequately fulfilled by the expression of such an opinion," severely reprimanded the magistrate for "his great want of judgment and judicial capacity," and directed that he should not be employed in any higher office for at least a year. The high court protested against this interference with their judgment, and the matter being appealed to the English government, the latter approved and confirmed the action of the gov