pointment is not unconstitutional. Fish v. Morse, 3 Mich. 34; Clark v. Davis, 32 Id. 157; Streeton v. Paton, 7 Mich. 347. A court in the constitutional sense is a permanent oaganization for the administration of justice, and not a special tribunal for a particular exigency. 2. The term officer in the constitution (art. 18, § 1) applies to the occupant of an office that has some permanence, and is not created by a temporary nomination for a transient purpose. Underwood v. McDuffee, 15 Mich. 366. 3. The conclusion reached by the commissioners, if within their power and not appealed from, is final. All claims for or against the estate must be passed upon by the commissioners, and can not be withdrawn for adjudication elsewhere. People ex rel. Green v. Probate Judge, 40 Mich. 244. The objection that a claim is barred should be raised before the commissioners on an appeal, and can not properly be considered in an action. Opinion by MARSTON, J.-Shurbun v. Hooper.

CONFLICT OF JURISDICTION EXEMPTIONS IN BANKRUPTCY.-An assignee in bankruptcy of a partnership took possession of the stock, and the question arising whether each of the two partners was entitled to an exemption of $250 in value under Comp. L. 1871, § 6101, clause 8, he refused to allow more than one exemption to the two partners, and proceeded to make sale. One partner claimed the full exemption in his own behalf, and the wife of the other brought action under Comp. L. § 4805 which permits the wife to sue in her own name for property which the law exempts as against her husband's debts. Held, 1. The bankruptcy court has exclusive jurisdiction of suits to determine an assignee's right to property where the exemption is disputed under the exemption clause of the bankrupt law (Rev. Stat. U. S, § 5045). This is so, at least where a selection or valuation is necessary for setting apart the exempted property. See Voorhies v. Frisbie, 25 Mich. 476, on the question of jurisdiction. 2. An assignee in bankruptcy, like a sheriff levying execution, is entitled to at least temporary control of exempted property until it can be set apart from the rest. 3. When the assignee has sold property his authority as assignee ceases, and his neglect to deliver it is a personal breach of duty, not official. 4. Where no recovery can be had under the bill of particulars, a new trial is not granted on reversal. Opinion by COOLEY, J.-Sheldon v. Rounds.

quence of any unusual risk due to his master's negligence, the master has the burden of showing that the servant knew of the increased danger. Cooley on Torts, 661, et seq. 6. When the fact of contributory negligence depends on the credibility of witnesses, or upon inferences in which inteliigent persons may honestly differ, it is a question for the jury. Conely v. McDonald, 40 Mich. 150, 8 Cent. L. J 229; R. R. v. Slatterly, 39 L. T. (N. S.) 266. 7. Contributory negligence presumes a careless act or omission. 8. The age, intellegence and experience of one who has suffered from an injury, help determine whether he has been guilty of contributory negligence. Reed v. Northfield, 13 Pick. 94; Whittaker v. West Boyleston, 97 Mass. 273. 9. Where a workman employed in a saw mill to carry slabs from the gang-plank, while pulling backwards at one that was too heavy for one man to carry, slipped on some wet bark and fell against some cog wheels that caught his pantaloons and injured him-he not having been warned and not knowing that the wheels were uncovered-the question whether he was guilty of contributory negligence should have been left to the jury. Opinion by MARSTON, J.-Swoboda v. Ward.

SUPREME COURT OF OHIO.

[Filed June 24, 1879.]

DYING DECLARATIONS WHEN ADMISSIBLE ABORTION.-1. The general rule of evidence is that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. 2. Upon an indictment for unlawfully using an instrument upon the person of a woman with an intent to destroy a vitilized embryo, in consequence of which she died, her dying declarations are inadmissible. Exceptions overruled. Opinion by GILMORE, C. J.-State v. Harper.

BOND-FRAUD IN EXECUTION.-Four persons, including the defendant, agreed to execute a bond to the plaintiff. One of the persons who was to execute the bond, by fraud procured a bond to be executed and delivered by the defendant, in which the names of two of the persons who were to join the execution were omitted: Held, 1. That the fraud constituted no defense to a suit on the bond, where the plaintiff had no notice of the fraud at the time he accepted the same and parted with the property in consideration of which the bond was given, 2. That the plaintiff might have required the bond to be executed by all the parties, but he was not bound to do so. He might waive his right to require the bond to be thus execu ted by all the parties; and the fact that the bond presented to the plaintiff and accepted by him, was the bond of the two parties only, is no evidence to charge him with notice of the fraud praeticed in its procureOpinion by WHITE, J.-Dagler v. Baker. EMBEZZLEMENT WHO IS AN "EMPLOYER" CONSTITUENTS OF CRIME.-1. Upon a trial, under an indictment containing a single count charging the defendant with the embezzlement of moneys, where it appears that the moneys were the proceeds of several notes placed in his hands by his employer at different times and collected by him from different persons and at different times, such facts alone do not constitute a ground for requiring the prosecutor to elect upon which of the sums so collected the State will rely for conviction. 2. A person, having in his possession certain promissory notes as indorsed, who employs an agent to collect the same and account to him for the proceeds, is an employer, within the mean

ing of the act against embezzlement; and upon the trial of the person so employed for the embezzlement of the proceeds, it is no defense to show that his employer was bound to account to another for the moneys. 3. When a person, not engaged in the business of collecting moneys for others as an independent employment, is employed to collect money for another, subject to his direction and control, the relation of principal and agent is thereby created. And in such case the agent may be guilty of embezzlement, although he was to receive for his services a percentage of the moneys collected. 4. When an agent is prosecuted for the embezzlement of his employer's money, in a certain county wherein he had possession of the money and in which it was his duty to account to his employer upon demand being made, it is no defense to show that he had expended the money for his own use in another county. 5. Under an indictment for embezzlement which charges the offense to have been committed after the act of May 5, 1877 (74 Ohio Laws, 249, sec. 11), took effect, the defendant can not be convicted for an offense committed before the taking effect of said act, notwithstanding the right of the State to prosecute for the violation of a former statute (66 Ohio Laws, 29,) which was repealed by the act May 5, 1877), was saved by the act of February 19, 1866 (S. & S. p. 1.) Judgment reversed and cause remanded for a new trial. Opinion by MCILVAINE, J. -Campbell v. State.

AVOIDS IT AGAINST PARTIES INTERESTED-ON APPEAL FROM JUSTICE OF THE PEACE NON EST FACTUM MAY BE PLEADED IN CIRCUIT COURT.-Action before justice of the peace on a promissory note. Judgment for plaintiff. The facts sufficiently appear from the opinion. 1. It was perfectly competent for defendants to file plea of non est factum for first time in circuit court since the trial in that court was de novo. Phillips v. Bliss, 32 Mo. 427. 2. The payee of the note had no right to alter the note in the slightest particular, without consent of all who were interested; and such unwarranted alteration rendered note null in his hands, no matter how pure his motive in making the alteration. Haskell v. Champion, 30 Mo. 136; Evans v. Foreman, Id. 449; Bank v. Armstrong, 62 Mo. 59; Bank v. Dann, Id. 29. 3. Judgment for plaintiff must be reversed, because there was no evidence to sustain it, his own testimony showing that he altered the note. Under such circumstances the court interferes, regardless of declarations of law given or refused. Hart v. Leavenworth, 11 Mo. 629; Robbins v. Phillips, Oct. T. 1878. Opinion by SHERWOOD, C. J.-Moore v. Hutchinson.

TRUSTEE'S SALE OF REAL ESTATE-TRUSTEE MUST BE PRESENT DURING PROGRESS OF SALE TO RENDER IT BINDING ON PURCHASER FROM AUCTIONEER.Action for specific performance of purchase of real estate at trustee's sale. The sale took place at court house, the auctioneer or crier standing in the door, and bidders inside the hall. Trustee was present at the court house door before the sale began and after it ended, but during the sale was not at the court house, but in a saloon on the opposite side of the street, and was not present at the sale. The circuit court found for defendant, which judgment the Court of Appeals affirmed, and plaintiff brings the case here by writ of error. Counsel for plaintiff contended that such an ab

sence from the place of sale, as testified to by trustee, would not avoid the sale; that he was present at its conclusion to do all that he might have done had he been present at the actual crying of the sale. Held, that it was the duty of the trustee to be present during the crying of the sale, to observe the progress thereof, protect the interests of all parties concerned, to reject fraudulent bids made to frustrate the sale, and, if necessary, to adjourn the sale. Graham v. King, 50 Mo. 22; Bales v. Perry, 51 Mo. 452; Vail v. Jacobs, 62 Mo. 130; Perry on Trusts, §§ 779, 780; Gray v. Viers, 33 Ind. 18. If the auctioneer may lawfully make sale in the absence of the trustee, and should, during his absence, accept a bid, and declare the person making the same to be the purchaser, and, by proper memorandum in writing, complete the sale, it would be out of the power of the trustee to set such sale aside. White v. Watkins, 23 Mo. 427; and in this way the trustee might substitute the auctioneer for himself in the exercise of that very discretion which the law declares is a personal trust, and can not be delegated. The trustee should be present to sanction the acceptance of any bid by the auctioneer, before any binding memorandum of sale can be made. Affirmed. Opinion by HOUGH, J.—Brickenkamp v. Reis.

BOOK NOTICE.

CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OF TEXAS during the latter part of the Tyler Term, 1878, and the early part of the Galveston Term, 1879. Reported by JACKSON and JACKSON. Vol. 5. St. Louis: F. H. Thomas & Co. 1879.

This series, as is pretty generally known, consists exclusively of criminal cases-the State of Texas having two appellate courts of last resort, one with jurisdiction only in civil cases, the other with jurisdiction only in criminal cases. A natural consequence of this, or rather a result which one would ordinarily look for from these circumstances, should be that the decisions of each court would be more carefully and knowingly rendered than under a system which imposes upon a number of judges sitting on appeal the decision of questions arising in every one of the many branches of the law. A glance at the volume before us serves in part to confirm this impression. Almost every case is a reversal. In turning over the pages it is impossible to repel the thought that if the trial judges whose rulings in the cases reported in this volume, so seldom receive the approbation of the Court of Appeals, were a little more learned in the law of crimes and its procedure, it would be much better for that justice which not only in Texas but in Missouri loses half its terrors by loosing all its swiftness. It is true nevertheless that the publication of the rulings of the highest court, in the present style and form, will do much to remedy this evil. The present volume, like the former, is carefully prepared, well printed and bound. It contains 705 pages, and reports 120 cases.

QUERIES AND ANSWERS.

QUERIES.

4. SALE OF GOODS FOR IMMORAL USE.-If A, the keeper of a house of ill-fame, purchases goods upon credit from B, a merchant, and informs him at the time of such purchase that she intends to use said goods in her business as the keeper of such house, can B afterwards maintain an action against A for the price of said goods? J. B.

St. Louis, Mo.

ANSWERS.

No. 2.

[9 Cent. L. J. 19.]

1. In order for a married woman to convey her lands, or release potential dower in the lands of her husband, she must join in a deed containing apt words of grant or release. 4 Kent. 65. Signing, sealing and acknowledging an instrument in which the husband alone is grantor, is insufficient to pass the wife's estate, or bar her dower. Bank v. Rice, 4 How. 241; Hatcher v. Andrews, 5 Bush. 561; Hedger v. Word, 15 B. Mon. 106; Prather v. McDonell, 8 Bush. 46. 2. The weight of authority establishes the rule that married women are not estopped by matters in pais, unless their conduct has been fraudulent. See Bigelow on Estoppel, p. 473-490, where the authorities are fully collected and the doctrine discussed. In Glidden v. Strupler, 52 Penn. St. 400, a married woman conveyed by deed, signed by her alone, the purchaser took possession and made improvements, with her knowledge and encouragement. He paid her a part of the purchase money. It was held that she was not estopped. Louisville, Ky.

No. 1.

[9 Cent. L. J. 19.]

L. McQ.

"A person habitually insane has the power of contract in a lucid interval." Toser v. Saturlee, 3 Grant, Pa. 162; Jones v. Perkins, 5 B. Monr. 222; Hall v. Warren, 9 Ves. 605; Lilly v. Waggonner, 27 Ill. 395. It is the duty of the party who contends for a lucid interval to prove it; for a person once insane is presumed to be so until it is shown that he has a lucid interval, or has recovered. Swin. 77; Coke Litt., 185 N.; 3 Brown, ch. 443; Const. So. C. 225; 1 Pet. 163; 1 Litt. (Ky.) 102. Inquisitions of lunacy may be read, but they are not generally conclusive against persons not actually parties. Sergeson v. Sealy, 3 Atk. 412; Den v. Clark, 5 Halst. 217, per Ewing, C. J.; Hart v. Deamer, 6 Wend. 497; Faulder v. Silk, 3 Campb. 126; 2 Madd. Chan. 578. Where a court has power to grant letters of guardianship of a lunatic, the grant is conclusive of his insanity at that time, and of his liability, therefore, to be put under guardianship against all persons subsequently dealing directly with the lunatic, instead of dealing, as they ought to do, with the guardian. Leonard v. Leonard, 14 Pick. 280. It seems clear that a lunatic is liable upon an executed contract for articles suitable to his degree, furnished by a person who did not know of his lunacy, and practiced no imposition upon him. Smith on Couts. (5th ed.), p. 343 and note 1, and authorities there cited. But it would seem to be the better opinion that an executory contract entered into by a lunatic of non-sane mind at the time he entered into it, can not be enforced against him; sed quaere. Ib. 347. St. Louis, Mo. M. THOMPSON.

NOTES.

Every State in the Union, with one exception, that of Louisiana, has a Sunday law on its statute books, in each case following, in its main features, the statute of Car. II (1876), known as the Lord's Day Act. They prohibit labor on the first day of the week, commonly called Sunday (except works of necessity or charity) the transaction of ordinary mercantile business (except the selling of medicines), the keeping open of dram shops, and traveling for business or pleasure, with exceptions in favor of ferrymen and mail carriers. In some of the Southern and Western States there are special provisions against the besetting sins of the region. Arkansas punishes Sunday indulgence in "brag, bluff, poker, seven-up, three-up, twenty-one, thirteen cards, the odd trick, forty-five, whist i

or any other game of cards," by a fine of from $25 to $50. California charges from $50 to $500 in the shape of a fine for attending any "bull, bear, cock or prize fight, horse race or circus," or for keeping open any gambling house, "or any place of barbarous or noisy musement, or theater where liquors are sold." Florida, for disturbing any congregation of white persons, provides a fine not to exceed $100, or that the offender shall be "whipped not to exceed thirty-nine stripes, South or imprisoned not exceeding six months." Carolina alone of all the States, sticks to the old notion of compelling attendance upon divine worship. Her statute still provides that all persons" having no reasonable or lawful excuse, on every Lord's day shall resort to some meeting or assembly of religious worship, tolerated and allowed by the laws of the State, and shall there abide, orderly and soberly, during the time of prayer and preaching, on pain of forfeiture, for every neglect of the same, of the sum of $1." The Illinois Sunday law is much milder than the laws of most of the other States. It only prohibits the keeping open of tippling houses, and disturbing the peace and good order of society by unnecessary labor, or amusement or diversion, with exceptions in favor of watermen and railroad companies.

THE Constitutionality of the Indiana law prohibiting the sale of railroad tickets by "scalpers," has been affirmed by the Supreme Court of that State.—Under the new Constitution of California, the judges of the superior courts are to be mulcted of their monthly salaries, unless they can make an affidavit that no suit has remained undecided during three months.-According to the Scottish law (following the Roman law), the right to rent upon a lease of land, or the eatage of land, may be extinguished by the total destruction of the subject let; and a deduction for rent may be claimed where "the sterility or vastation" is not total; provided it be what is termed "plus quam tolerabile." What degree of sterility or vastation will make a loss that can not be borne is, says Erskine, nowhere defined; "but by common opinion, the tenant is liable for the rent if the produce of the crop exceed the expense of the seed and tillage"-a doctrine, which, however, has been doubted by Lord Cairns in Gowan v. Christie, L. R. 2 Sc. 283. In a recent case the defendant had taken the winter eatage of a farm at a rent of £25. It appeared from the evidence that the defendant's flock of sheep had actually had only one week's keep on the farm, and that owing to the extraordinary severity and duration of the snow storm, they could not possibly have lived more than one month or five weeks on the herbage of the farm. In spring the defendant called on the plaintiff and paid him £12 10s., refusing to pay the other half of the rent, on the ground that in the exceptional circumstances he was not able to avail himself of the eatage. The plaintiff sued him for the balance of rent, and the sheriff held that although," in the absence of a stipulation to the contrary, the losses which lessees of eatage incur from bad weather and such causes in an ordinary season, must fall on themselves, the law had been frequently recognized that where the subject let is totally destroyed or rendered entirely unavailable to the tenant by causes which could not have been within the contemplation of the parties to the contract, the claim for rent ceases; and that if there is partial but substantial injury to, or diminution of the subject, there must be a corresponding deduction from the rent. The snow storm which covered this district for several months last winter, was in intensity and duration perhaps the most severe that had ever been experienced, even by the oldest inhabitants, and could not have been in the contemplation of the pursuer or defender when the contract was made;" and under the circumstances he held that the payment which the deendant had made was sufficient.

SAINT LOUIS, JULY 18, 1879.

CURRENT TOPICS.

That the signature to a contract within the statute of frauds need not be in writing, but is sufficient if printed, was decided in the English High Court of Justice on May 31st, in the case of Torret v. Crupps. The defendant wrote and sent a letter to the plaintiff containing an offer of a lease, and sufficiently stating the terms. He did not, however, sign the letter in writing, but the letter was written on a sheet of memorandum paper, at the head of which the following words were printed, "From Richard L. Cripps," with his address. The plaintiff accepted the offer, but the defendant did not grant the lease, and the plaintiff then commenced an action for specific performance. The defendant pleaded that there was not a sufficient memorandum in writing under the statute of frauds to bind him. HALL, V. C., said: "Having regard to the authorities, that was, perhaps, a fair point to submit to the court. But although it was not necessary in any of the cases referred to to decide the exact point, the principle is clearly laid down, and it is a reasonable principle. The case of Schneider v. Norris, 2 M. & S. 286, before Lord Ellenborough, shows the principle to be that, where a party desiring to sell (as was the case of the defendant) sends the party desiring to buy a document containing the name of the former party, though it may be in print, yet in such a way as to show that the sender recognized it to be his own name, and the document contains the the terms of a contract, that is a sufficient note in writing to charge the sender. The contention which has been addressed to me that it is necessary to show that there was a custom or habit would

lead to difficulties. What would be regarded as amounting to a habit for that purpose? Here it is not an issue that the document upon which the defendant is charged was actually sent by him; it contains his name, and it is not disputed that the document with that exception is in the defendant's own handwriting. That document constitutes, so far as regards Vol. 9-No. 8.

well as according to the ordinary understanding."

IN Churchill v. Welsh, recently decided by the Supreme Court of Wisconsin, the defendant, who held certain notes and a mortgage as trustee, through mistake as to his duty and power, refused to surrender them on demand. In an action for the conversion, he, disclaiming all personal claim, brought them into court to be given to the party entitled thereto. The Supreme Court, overruling the lower court, held that the plaintiff was only entitled to nominal damages. It has been a well-established rule in the courts of England for more than a century, that in actions of trover, the court will, under certain circumstances, permit the defendant, after suit brought, to bring the property claimed into court for the defendant, with the costs up to that time, and the court will then order a stay of proceedings, or permit the plaintiff to proceed with the action at the risk of having the costs finally adjudged against him, unless he be able to show that he has been specially damaged by the conversion of the property by the defendant in addition to its value at the time of its return. Or the court will, in a proper case after verdict, upon a tender of the property, reduce the verdict to nominal damages, This rule has been followed in Vermont to its full extent as practiced in the English courts, and has been recognized as a proper exercise of the power of the court in special cases in the courts of Maine, New York, Massachusetts and other States. The cases in which this rule has been acted upon by the courts are mostly cases for the conversion of bills, notes, bonds, and other contracts for the payment of money. The rule was first definitely defined by the Court of King's Bench, in 1762, in the case of Fisher v. Prince, 3 Burrows, 1364. In that case Lord Mansfield and Justice Wilmot concurred in the following rule:

"That where trover is brought for a specific chattel of an ascertained quantity and quality, and unattended with any circumstance that can enhance the damages above the real value, but that its real and ascertained value must be the sole measure of damages, then the specific thing demanded may be brought into court." Justice Wilmot said: "This was the more reasonable, as this action of trover comes

in the place of the old action of detinue": "Where there is an uncertainty either as to the quantity or quality of the thing demanded, or there is any tort accompanying it, that may enhance the damages above the real value of the thing demanded, and there is no rule whereby to estimate the original value, then it shall not be brought in. It ought

to be done; because at the trial, when the thing remains in the same condition, there generally is a rule to deliver it.' An estimated value is a precarious measure of justice compared with the specific thing." Previous to this, the decisions of the courts had not been uniform, as will be seen by a reference to the cases of Harding v. Wilkin, Sayer, 120, and Catling v. Bowling, East, 26. Since the decision in the case of Fisher v. Prince; the practice has been uniform in the English courts. The reasons for the rule, and the considerations which should govern courts in its appli cation, are very briefly but most clearly stated by the learned chief justice in that case. Pickering v. Trustee, 7 Term, 53; Brinsden v. Austin, Tidd's Pr. 571; Tucker v. Wright, 3 Bing. 601; Earle v. Holderness, 4 Bing. 462; West v. Taunton, 6 Bing. 404-408; Whitten v. Fuller. 2 W. Bl. 902; Cook v. Holgate, Barnes, 281; Royder v. Batty, Id, 284; Moon v. Raphas, 5 L. J. N. S., 262; Gibson v. Humphrey, 1 Crompt. & Mees, 544; Loosemore v. Radford, 9 M. & Wel. 657, 659' Alsager v. Close, 10 M. & Wel. 576-584; Cook v. Hartle, 34 E. C. L. R. 528; Buller's Nisi Prius, 49 a and notes. These cases show under what circumstances the rule established in Fisher v. Prince should be applied. In R. R. Co. v. Bank of Middlebury, 32 Vt. 639,

which was an action of trover to recover for the conversion of certain railroad bonds, the court held, after a full discussion of the English authorities, that the rule of the English courts upon this subject was a just rule, and the defendant was permitted to bring the bonds into court, and in the absence of any evidence showing any special damage beyond the value of the bonds, the court directed a verdict for the plaintiff for nominal damages. In Hart v. Skinner, 16 Vt. 138, the rule was also discussed and recognized, but the right of the defendant to bring proper proofs into court in that case, was denied, because the defendant did not bring his case within the rule. In Rodgers

v. Crombie, 3 Greenl. 274, the rule was recognized, but it was held that is was discretionary with the judge trying the case, whether the defendant should be permitted to surrender the property in mitigation of the damage, and that the Supreme Court would not reverse the judgment of the trial court upon a question which rested in the discretion of that court. In Traver v. Good, 1 Clark (Pa.), 472, the court recognized the rule, but refused to permit the return of the property under the facts of the case. These cases are the only ones in which the English authorities upon this question have been considered and acted upon by the courts of this country; but that such right exists in proper cases, is recognised in the following cases: Shotwell v. Wendover, 1 Johns. 65; Stevens v. Low, 2 Hill, 132, 134; Thayer v. Manley, Hum. 550. The last case was an action by the maker of three promissory notes, to recover damages against the payee, for obtaining said notes by fraudulent representations; it was held, if the defendant returned the notes or destroyed them before the judgment, the plaintiff wonld only be entitled to judgment for nominal damages. See also Sedgwick on Damages (6th Ed.) 614, and note.

ATTEMPTS.

I.-UNSUITABILITY OF MEANS.

Whether to an attempt it is necessary that the means selected should be suitable has been the subject of animated controversy among foreign jurists; and to its discussion several learned treatises have been devoted. Among those who maintain the affirmative, a distinction has been taken between means which are "absolutely unsuitable," i. e. means which under no circumstances could produce the intended effect; and means "relatively unsuitable," i. e. means which are in themselves suitable, but which are applied in insuffient quantity or in an ineffective way.

As to this distinction, it may be observed that there is no agency of which it can be absolutely said that it will produce necessarily the intended effect; there is no cup between which and the lip there may not be a slip. There can be no certainty that the means will