SOME RECENT FOREIGN DECISIONS.

BRANCH BANKS- EVIDENCE- PROMISSORY NOTE -ESTOPPEL.-Prince v. Oriental Bank Corporation. English Privy Council, 26 W. R. 513. 1. Branch banks are merely agencies for the principal bank. 2. The erroneous cancellation of a promissory note as paid, corrected before any communication of payment to the maker or holders, and uncommunicated entries in the books of the bank, are ineffectual to charge the bank with the receipt of the amount of the note. De Bernales v. Fuller, 14 East, 590, explained. MARINE INSURANCE SEAWORTHINESS-BURDEN

OF PROOF QUESTION OF LAW OR FACT.—Pickup v. The Thames and Mersey Marine Insurance Co. English High Court of Justice, Q. B. Div., 26 W. R. 477. In an action on a voyage policy, in which a question of seaworthiness arises, the question whether the circumstances under which a vessel becomes incapable of continuing a voyage are sufficient to raise a presumption that she was not seaworthy at the commencement of the risk, and to throw the onus of proving her seaworthiness on the owner, is a question of fact for the jury and not one of law for the judge. BANKRUPTCY BILL OF SALE FRAUDULENT PREFERENCE. Ex parte Bolland. English Court of Bankruptcy, 26 W. R. 481. A lent money to B, the latter verbally promising to give A a bill of sale when required. No bill of sale was required during the life of A, but after her death and four years after the money was lent, her executor hearing rumors against the debtor's solvency asked for and obtained a bill of sale from the debtor, which comprised substantially the whole of his property. It was agreed that the executor should not put the bill of sale in force unless the debtor's other creditors were pressing him, and the debtor promised that if any legal process was issued against him he would give notice to the executor. Afterwards the debtor gave the executor notice of a process issued against him, and the executor thereupon seized and sold the goods by a forced sale advertised only three days before it took place. Held, that the giving of the bill of sale was a fraudulent preference, and that the proceeds of the sale must be paid to the trustee.

BILL OF EXCHANGE-ACCEPTANCE IN WRITINGSIGNATURE-19 & 20 VIC. c. 97, s. 6.-Hindhaugh v. Blakey. English High Court of Justice, C. P. Div., 26 W. R. 480.-1. The mere signature of a drawee's name on a bill of exchange is not a sufficient acceptance. There must also be an acceptance in writing. 2. The plaintiff drew a bill of exchange upon the defendant, who wrote his name across the face of the bill. Held, that the defendant was not liable as acceptor, the bill not being accepted and signed by him as required by 19 & 20 Vict. c. 97, s. 6. DENMAN, J.: "Before the statute of Geo. 2, c. 78, s. 2, it was not necessary that a bill should be accepted by any writing on the bill itself; it was sufficient if in any other document the acceptor used language showing his intention to be bound by the bill as acceptor; Wynne v. Raikes, 5 East, 514, and other cases. It was also sufficient before that statute if the drawee verbally undertook to pay an existing bill; Lumley v. Palmer, 2 Str. 1000; Powell v. Monnier, 1 Atk. 611. Disapprobation of the law as it then existed was expressed by very learned judges (see per Lord Kenyon, in Johnson v. Collings, 1 East, 98, and per Lord Ellenborough, in Clark v. Cock, 4 East, 72) and it was one of the particulars in which the English law was at variance with the law of Scotland. In the year 1821, it was enacted by 1 & 2 Geo. 4, c. 78, s. 2, "That no acceptance shall be sufficient to charge any person unless such acceptance be in writing on such bill." Since this statute it has been

laid down by high authority that a mere signature on the face of the bill, without any words of acceptance, may be an acceptance in writing within the statute (Selwyn's N. P., 11th ed., p. 348; Byles on Bills, 12th ed., 191); and, on the other hand, that words of acceptance without a signature, if intended as an acceptance, might suffice; Dufour v. Oxenden, 1 M. & Rob. 90, per Patteson, J.; see also Corlett v. Conway, per Parke, B., 5 M. & W. 655. By the 19 & 20 Vict. c. 97, s. 6, it was enacted "That no acceptance of any bill of exchange shall be sufficient to bind or charge any person, unless the same be in writing on such bill and signed by the acceptor or some person duly authorized by him." In the present case it was contended that, inasmuch as before the statute a mere signature would have been a sufficient acceptance in writing within the 1 & 2 Geo. 4. c. 78. s. 2, it was not the less so now, and that inasmuch as it was a signature of the acceptor, the bill was both accepted in writing and signed by the acceptor, within the meaning of the latter enactment. But, looking at the history of the law and of the enactments on the subject, we are of the opinion that the county court judge was right in holding that the statute had not been complied with. It is not for us to speculate upon the objects of the legislature, but if it were necessary to do so, we think it may well have been intended by the enactment now in question to prevent ignorant persons from being too easily bound by a mere signing of their names, and that it was, therefore, purposely required that there should be upon the face of the bill some words indicating an intention to be bound by it as acceptor as well as the mere signature of the party. Comparing the words of the later statute with those of the former, we think it is impossible that a mere signature of a name can be held to fulfil the double requirement that the acceptance shall be in writing on the bill, and signed by the acceptor."

INJUNCTION-SALE UNDER Trust DEED-UNSETTLED ACCOUNTS.-A bill for an injunction to restrain a sale under a deed of trust, on the ground that the holder of the note secured by the deed of trust owes the petitioner on an unsettled account more than the amount due on the note, presents no equity, and is properly dismissed. The cestui que trust is not to be deprived of his special security on the ground that he owes the maker of the note on open account; and the chanceller, in such a proceeding, is not to try common law issues and settle the indebtedness between the parties. Affirmed. Opinion by HAYDEN. J.-Gregg v. Hight.

DIVORCE-DOMICIL-JURISDICTION.-1. The plaintiff in a divorce suit must be a resident of this state when the suit is begun, although the offense was committed within this state and whilst one party resided here. 2. In Missouri, the wife, when plaintiff in a divorce suit, can not sustain her action on her husband's domicil. 3. It is not enough, in a divorce suit, that jurisdiction appears from the whole record; the libel itself must allege every fact made necessary by statute to the granting of a divorce; when this is not done in substance, the bill should be dismissed. Where jurisdictional facts do not appear on the face of the petition for divorce, the court can take no valid step. Affirmed. Opinion by BAKEWELL, J.-Pate v. Pate.

MECHANICS' LIEN-EVIDENCE-DECLARATION OF CONTRACTOR.-1. The material man can enforce a lien against a building only for materials which actually enter into its construction. 2. The declarations of a contractor, when making his purchases, are no evi dence whatever that the material was used in the building: as against the owner, the declarations of the contractor are mere hearsay. The old doctrine of the Supreme Court on this subject, as declared in Morrison v. Hancock, 40 Mo. 561, has been repudiated and is no longer the law, having been overruled in the later case of Simmons v. Carrier, 60 Mo. 581. Reversed and remanded. Opinion by LEWIS, P. J.-Schulenburg v. Hawley.

PRACTICE-BILL OF EXCEPTIONS-BOND UNDER SHERIFF'S ACT.-1. Where the bill of exception does not show that appellant's motion for new trial in the trial court, was actually overruled, but merely that it was to be overruled at a future day, there is no cause for review in the appellate court. There can be no valid record of what judgment a court proposes to render at a future time. 2. A clerical entry which comes after the judge's signature to the bill of exceptions, is a mere nullity, and can not be noticed in the appellate court. 3. The bond under the sheriff's act may be given to the state. The amendatory act of March 14, 1859, effects no change of parties in the bond required. Affirmed. Opinion by LEWIS, P. J.-State v. Lanham.

MUNICIPAL CORPORATIONS-NEGLIGENCE.-Where, in an action against a county for damages, it is appar ent that the act complained of is either a negligent and wrongful way of repairing a county road, or an unauthorized trespass on private property, there can be no recovery. In the latter case individuals only can be responsible, not the county. In the former the county court was acting for the state and performing functions imposed by the general road laws. 2. Where public duties are imposed by the state, and, in performing such duties the officers act for the state, though within particular districts, the district or municipality within which the work is done is not liable for damages occasioned by the performance of the work. Reversed and dismissed. Opinion by HAYDEN, J. Swineford v. Franklin County.

REFERENCE-APPEAL FROM JUSTICE OF THE PEACE -ASSIGNMENT OF JUDGMENT.-1. The fact that a cause was begun before a justice is no reason why it may not be referred to a referee when it reaches the circuit court on appeal. 2. In determining whether an account is a proper subject for reference, it is not the number of the items so much as the multiplicity of the issue that the court regards. 3. The power of reference against the will of the parties must be cautiously exercised, but the appellate court will not interfere with the action of the circuit court, unless there has been a clear abuse of its power, which is to some extent discretionary in the matter. 4. The statutory method of assigning judgments is not exclusive. Affirmed.

Opinion by HAYDEN, J.-Schmidt v. Rose. PROMISSORY NOTE-LEX LOCI-NEGLIGENCE IN LEAVING BLANKS-INTEREST.-In a suit on a note payable in this state, the contract is to be governed by the law of this state, and not by that of the state in which the note was made and negotiated. 2. A preexisting debt, incurred by the payee of a negotiable note transferred before maturity, is a sufficient consideration to support the title; and, where the note was given, originally, in payment of the pre-existing debt, the person taking it before maturity takes it discharged of any equities between the original parties to the paper. 3. Where blanks are carelessly left in a promissory note by the maker, and filled up by the payee before negotiating the note, this is no defense to he note in the hands of a bona fide purchaser before maturity, who has no notice of the fact that the blanks

are filled contrary to the agreement between the original parties. 4. A note expressed to be for a certain sum, "with interest at 10 per cent.," bears interest from date Affirmed. Opinion by BAKEWELL, J.— Green v. Kennedy.

SUPPLEMENTARY MOTION

--

ASSIGN

PRACTICE MENT OF JUDGMENT FULL PAID STOCK CERTIFICATES.-1. A supplemental motion filed in a cause whose record is already before the court need not repeat facts which are already matter of record. 2. Every presumption is in favor of the propriety of an order of substitution of parties in a suit. 3. The statute providing a form for the assignment of judgments is cumulative, and does not prevent an equitable assignment being made in any other lawful way. 4. The certificate of a corporation to a stockholder that his stock is "full paid stock," is not conclusive against creditors of the corporation. The stock of the corporation is publicly pledged to all who deal with it, and can not be given away by the corporation; and one who takes the stock from the corporation paying no legal consideration for it, and thus secures to himself the enjoyment of dividends, can not avoid his responsibility to the creditors of the corporation on the ground that he is the holder of unpaid stock. 4. Where there has been no transfer of stock by the authority of the stockholder, on the books of the corporation, in accordance with the by-laws, the status of the stockholder remains unchanged. Affirmed. Opinion by LEWIS, P. J.-Andrew Wight Co. v. Steinkemeyer

JUSTICE OF THE PEACE-JURISDICTION.-The fact that in an information a crime is charged of which the justice has no jurisdiction will not, after judgment, be held to oust the justice of jurisdiction of a crime of which he has jurisdiction. The former allegation will be regarded as surplusage. Affirmed. Opinion by SEEVERS, J.-State v. Silhofer.

IN AN ACTION FOR THE RECOVERY OF TAXES paid by a tax sale purchaser, the statute of limitation commences to run from the time of the payment, and not from the time when it was adjudged that the plaintiff was not the owner of the land. 44 Ia. 368; 37 Ia. 452; 41 Ia. 134; 45 Ia. 561. Opinion by ROTHROCK, C. J.— Sexton v. Peck.

PRACTICE - PETITION

DEFAULT.-"The petition when filed was not verified. The defendants did not verify their answer, and plaintiff filed a motion to strike it from the files. This motion was not pressed to a hearing, but was waived. Afterwards, the plaintiff, by leave of the court, verified the petition, and thereupon asked for a default and judgment, which was granted. This action of the court was erroneous." 10 Ia. 590. Reversed. Opinion by SEEVERS, J.—Mallory v. Sailing.

PRACTICE-REQUISITE OF AFfidavit of Defense. —An affidavit that the "defendant has a good and substantial defense to this cause upon the merits as deponent verily believes from an examination of the records and facts of this case," is not a sufficient affidavit of merits as required by section 2871 of the code. This is but a statement of opinion by affidavit. It should

be a statement of facts that the court may determine therefrom the question of merits. Affirmed. Opinion by ROTHROCK, C. J.-King v. Stewart.

TAX SALES-Deed-Right TO REDEEM.-Plaintiff, in October, 1872, purchased a tract of land at a tax sale. In October, 1874, the land was redeemed on application to the auditor, under the statute by one K. This action was brought against the county treasurer to set aside the redemption and compel the defendant to execute a tax deed to the plaintiff. Held, that the treasurer has no power to question the act of the auditor and to make a deed regardless of the redemption. Held, further, that the right to redeem can not be determined in an action against the treasurer. Affirmed. Opinion by ROTHROCK, C. J.-Hartman v. Anderson.

Associate Justices.

MORTGAGE-ILLEGAL CONSIDERATION-REPLEVIN. -Where a defendant has taken possession of mortgaged property, in accordance with the terms of the mortgage executed to him by the plaintiff, the court will not assist the plaintiff to recover the property in an action of replevin upon the ground that the consideration of the mortgage was illegal. King v. Green, 6 Allen, 129. PER CURIAM-Dougherty v. Bouavia. TRUST MONEY DEPOSITED IN BANK. The fact that money deposited by J. M, the plaintiff's intestate, was entered to the credit of "J. M. Trust.', is not conclusive evidence that he held it subject to a trust in favor of some other person, nor that some other person had any interest in it. Even if the deposit had been made and entered "In trust for A. B." it would have been open to proof by parol evidence that the money was, in fact, absolutely owned by the depositor, and thus deposited for convenience and without intent to give "A. B." any right or interest in it whatever. Brabrook v. Boston Five Cents Sav. Bank, 104 Mass. 228; Clark v. Clark, 108 Mass. 522. Opinion by SOULE, J.-Powers v. The Provident Inst. for Savings.

EVI

MASTER IN CHANCERY REPORTING THE DENCE. The duty of a master in chancery who is required to find and state facts in issue, or to state accounts between the parties, is discharged by a report of his conclusions only, with a reference for details and items, if it be matter of account, to statements annexed. He may, when the rights of parties require it, state the facts regarded by him as sufficient to support his conclusions, in order to enable the court to judge of their correctness. But it is irregular without the order of the court to state the evidence at the request of either party. Adams Eq. 384. Opinion by COLT, J.-Nichols v. Ela.

-

DIVORCE STATUTORY CAUSE ADULTERY.-By Gen. Stats., ch. 107, § 6, a sentence to imprisonment to hard labor in the state prison for five years or more is classed with adultery and other causes which are ground for a divorce from the bond of matrimony. When a man has been so sentenced, the right of his wife to apply for an absolute divorce is complete, and he is not entitled to a divorce for her subsequent. adultery. Hall v. Hall, 4 Allen, 39; Clapp v. Clapp, 97 Mass. 531; Nagel v. Nagel, 12 Mo. 53; Conant v. Co

nant, 10 Cal. 249; Adams v. Adams, 2 C. E. Green, 324, 338. See, also, Yeatman v. Yeatman, L. R. 1 P. & D. 187; Lempriere v. Lempriere, L. R. 1 P. & D. 569, Opinion by GRAY, C. J.-Handy v. Handy.

TRUSTEES-ASSIGNEES IN BANKRUPTCY-PROMISSORY NOTES-CONSIDERATION.-1. At common law one of two or more co-trustees is not liable for the acts of his co-trustee in misusing or failing to account for moneys received under the trust. It is only when moneys have come to his own possession, or he has acted in or connived at the misuse of them by his associate, that he is held responsible. Ames v. Armstrong, 106 Mass. 15. 2. In the absence of express provision to the contrary, this principle applies to the case of co-assignees of bankruptcy, under the bankrupt law of the United States. 3. But when one assignee knows that his co-assignee has received funds which he has refused to deposit in one of the banks designated by the court, and has declined to state what disposition has been made thereof, he has the power, and it is his duty, in behalf of the creditors of the bankrupt, to institute proceedings which should look towards protecting their interest against the misconduct of his coassignee, and might result in his removal from office; and if, after instituting proceedings for this purpose, he refrains from pressing them to a result, in consideration of certain notes, signed by the co-assignee and indorsed by the surety, a jury would be warranted in finding he thereby so far assented to the acts of his co-assignee, and participated in his neglect of duty, as to make himself personally responsible for the moneys collected and received by him and not properly disposed of. 4. This would be a sufficient consideration to support an action upon the notes. Opinion by SOULE, J.-Abbott v. Fisher.

MASTER AND SERVANT DISMISSED BEFORE EXPIRATION OF TERM.-Dismissal for cause before the expiration of the term does not operate as a rescission of the contract, so as to entitle the servant to sue upon a quantum meruit; but he must either sue upon the contract for the wages provided therein, or for damages for its breach, and in either event the limit of his recovery is the contract price, subject to such deductions as the master is legally entitled to. Opinion by PERKINS, J.-Gazette Printing Co. v. Morse.

TRESPASS INNOCENT PURCHASER-DAMAGES.Timber was cut from lands of B by trespassers, who, by their labor, converted it into cord wood and railroad ties, thus increasing its value three-fold. It was then sold to an innocent purchaser who was sued by B for the value of the wood and ties. Whatever might be the rule of damages, as against the wrong-doers, as against innocent purchasers, B can not recover the value of the timber as enhanced by the labor of the wrong-doers, after it was severed from the realty. Judgment reversed. Opinion by WRIGHT, J.-Lake Shore & M. S. R. R. v. Hutchins.

Ac

ASSIGNMENT FOR BENEFIT OF CREDITORS TION BY CREDITOR.-1. An assignment for the benefit of creditors devotes all the property covered by it to the creditors who have their claims allowed pursuant to the act regulating the administration of assignments, to the exclusion of those who do not. 2. In an action by a creditor whose claim has been duly allowed, on an assignee's bond for a failure to account for any of the property assigned, the amount of his recovery can not be limited to an amount proportionate to the whole amount of the claims of all the creditors, including those not allowed as required by the statute; but the amount of recovery must be controlled by the proportionate amount of his claim to the whole amount of those only which have been presented and allowed pursuant to the statute. Judgment affirmed. Opinion by DAY, J.-Lahn v. Johnston.

PARTITION FENCE-LIABILITY TO REPAIR-STOCK KILLED BY RAILROAD.-1. Where a fence constructed by an individual land owner, serves as a partition fence between a railroad track and the enclosed fields of such individual owner, but not so divided that each owner is charged with maintaining in repair a distinct portion thereof, the railroad company and individual land owner are each under equal obligations to keep and maintain the entire fence in repair until so divided. 2. If the land owner, knowing the partition fence to be out of repair, turns his stock into a field enclosed by such defective fence, and by reason of its insufficiency his stock goes upon the railroad track and is killed by a passing train run without negligence, sach land owner is chargeable with contributory negligence, and

can

not recover for the loss. Judgment reversed. Opinion by ASHBURN, J.-Duyton & Mich. R. R. v. Miami Co. Infirmary.

ACTION FOR INJURY RESULTING IN DEATH-PRACTICE-DEFENDANT-RESIDENCE.-1. An action to recover damages under "An act requiring compensation for causing death by wrongful act, neglect or default" (2 S. & C. 1139), may be brought in any county in the state where the defendant or any one of the defendants resides or may be served. 2. In such case, where there are several defendants against all of whom good

cause of action is alleged, some of whom are served in the county, and others reside and are served in another county than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the persons of the non-resident defendants depends upon the truth of the allegations of the petition. 3. Where the allegations of the petition upon its face make a case in which all the defendants are rightfully joined, and service is made on one or more in the county where suit is brought, and on the others in another county, the question of jursidiction of the court over the persons of the defendants served in such other county, must be raised by answer under sections 87 and 89 of the civil code. 4. Where the non-resident defendants file a motion to dismiss for want of jurisdiction over them, and support it by a verified answer, as provided by section 89 of the civil code, traversing the allegations of the petition by showing that such non-residents are not rightfully joined as defendants, the issue of fact thus presented, in an action for the recovery of a money judgment, is one which either party has a right to have tried by a jury. 5. In such a case it is error for the court without the assent of the parties to hear and determine this issue. Judgment reversed and cause remanded. Opinion by JOHNSON, C. J.-Drea v. Carington.

THE HUSBAND, AS BETWEEN HIMSELF and the creditors of the wife, is liable for her ante-nuptial debts, including partnership debts-the legislation of this state concerning the rights and liabilities of married women not having changed his common law liability in this respect. Opinion by GILMORE, J.—Alexander v. Morgan et al.

ATTACHMENT-RAILROAD COMPANY-TORT-GARNISHMENT.-1. An attachment will not be discharged on the ground that it appears from the answer of the garnishee that he is not indebted and has no property in his possession belonging to the defendant. 2. Where a railroad company agrees, for a consideration, to carry a passenger safely over its road, and by its negligence an injury results to the passenger, he may, at his election, sue upon the contract or in tort. 3. A railroad company incorporated under the laws of another state, operating a railroad in this state with the assent of the legislature, is liable to the process of garnishment prescribed by section 200 of the code of civil procedure, and such process may be served as upon domestic corporations. Opinion by BOYNTON, J.-Pennsylvania R. R. v. People.

CHATTEL MORTGAGE-AFFIDAVIT. -1. The affidavit required by the statute, to be entered on a chattel mortgage need not be made in any particular form. If the affidavit contains the requisite facts, the form in which they are stated is immaterial. 2. Where the affidavit refers to matters contained in the mortgage, the matters thus referred to are to be regarded as part of the affidavit. 3. A mortgage was given to secure the mortgagee against his liability on a note as surety for the mortgagor; also, to secure the payment of a note held by the mortgagee against a third person. The affidavit showing the nature and amount of the liabil

PRACTICE IN SUPREME COURT CASE MADE. Where by amendments to a case made allowed by the court a certain series of instructions and certain documentary testimony referred to, but not written out, are directed to be inserted, and such series of instructions and testimony are not incorporated into the record are brought to this court, but in lieu thereof appears the statement of the clerk that he can not find them: Held, that upon a record so incomplete no error can be predicated as to any ruling or decision which might in any manner directly or indirectly be affected by such absent matter. Opinion by BREWER, J. Affirmed. All the justices concurring.- Peiffer v. The Union Evangelical Church.

JUSTICE OF THE PEACE PRACTICE AMENDMENTS.-1. A justice of the peace has the power in the furtherance of justice to permit the amendment of a bill of particulars by striking out the name of a party plaintiff and substituting the name of another party as plaintiff, and when the grounds of such amendment are not disclosed in the record, no error lies on account thereof. 2. A justice may correct the entry of judg ment by substituting the name of the party in whose favor the verdict was returned and in whose name the proceedings are had in place of another name erroneously entered therein. Opinion by BREWER, J. Affirmed. All the justices concurring.-Hamlin v. Baxter.

PETITION-PRACTICE. -1. The function of a petition is not the narration of the evidence, but a statement of the substantive facts upon which the claim for relief is founded, and a motion to make more definite and certain the allegations of the petition can be sustained only when the precise nature of the charge is not apparent. 2. Whatever may have been the old equity practice under the code in an action for relief on the ground of fraud, the circumstances under which the fraud was discovered do not constitute any part of the cause of action, and need not be stated in the petition, even where a discovery must be alleged to avoid the apparent bar of the statute of limitations. Opinion by BREWER, J. Reversed. All the justices concurring. Kas. Pac. Rly Co. v. McCormick.

COSTS IN CRIMINAL CASES.-1. Where A is arrested for a willful disturbance of the peace, under section 253, Gen. Stat. 373, on the complaint of B, and on the trial before a justice, A is convicted of the offense, and thereupon appeals the case to the district court, and afterwards the county attorney, with consent of the prosecuting witness, and by leave of the court, enters a nolle prosequi in the case, and the defendant is discharge. Held, that B, the prosecuting witness, is not liable for costs. 2. As costs are unknown to the common law and are only given by statutory direction, and as there is no provision of the statute requiring the county, where the alleged offense is committed, to pay the costs or fees in a criminal action of the character above stated and disposed of as this one was:

Held, the taxation of costs in this case to Allen county was erroneous. Opinion by HORTON, C. J. Reversed. All the justices concurring.-State v. Campbell.

JURORS-MANNER OF EMPANELING.-1. While under section 5 of chapter 104 of the laws of 1876, a court should require the attendance of a regular panel of at least twelve jurors, yet if by legitimate and proper excuse that panel be reduced slightly below that number, the court is not compelled to delay the trial of any case until the requisite machinery can be set in motion and made effective for drawing and summoning the deficient number, but may proceed under section 6 of said act to supply the requisite jurors. 2. Where, under said section 6, the court, at the request of a party,. named certain jurors, and such jurors enter the jury box ready for service as jurors, a failure to issue a formal venire to compel their attendance is no substantial error. 3. In naming jurors under said section, the court is not bound to send for or examine the assessment roll. Opinion by BREWER, J. Affirmed.. All the justices concurring.-Trembly v. The State.

ADMINISTRATOR'S NOTE AND MORTGAGE.-1. D, thehead of a family, settled upon a quarter section of Osage land, intending to enter it, but died before pay. ment and final entry, leaving minor heirs. M was ap-pointed administrator of the estate and guardian of the heirs. As administrator he applied for and obtained from the probate court an order to borrow money by mortgage upon this quarter section to make the payment. As adminsistrator he executed a note and mortgage to C for the money which he borrowed. and used in entering the land in the name of the heirs.. Held, that such mortgage was without any legal authority and void, and that in the absence of any alle-gation of fraud, misrepresentation or mistake, no decree of foreclosure could be rendered thereon, and that the heirs were not estopped to plead its invalidity by reason of the benefit resulting to them from the purchase of the land. Opinion by BREWER, J. Affirmed.. All the justices concurring.-Blach v. Jackson.

INFORMATION FOR SELLING LIQUOR-SEPARATE. OFFENSES.-1. Two complaints were filed charging defendant with selling liquor without license, to the same person at the same place, but on different days. about a week apart. He pleaded guilty to the first and was sentenced, and then plead this conviction in bar of the second prosecution. The prosecuting witness was sworn, and, over defendant's objection, testified that there were the two sales on the two days named in the complaints: Held, no error; that upon the face of the complaints two separate offenses appear to becharged, and that, while the matter of exact time may be immaterial, so that under such complaint either offense might be proved, and, in fact, in consequence of the plea of guilty, no testimony was offered on the trial of the first complaint, proof was admissible on the trial of the second of the exact time of the two offenses,. and the plea to the first will be considered as made to the offenses committed on the very day named therein and the conviction a bar to prosecution for only that offense. Opinion by BREWER, J. Affirmed. All the justices concurring.-State v. Shafer.

PROCEEDINGS IN ERROR IMPROPER IN CRIMINAL CASES.-1. In a criminal a tion for assault and battery, appealed from a justice's court to the district court, the district court adjudged, upon an acquittal of the defendant that the prosecuting witness should pay the costs. No appeal was ever taken from the district court to the supreme court. But the prosecuting witness made a case for the supreme court under the provisions of the code of civil procedure, and brought the case to the supreme court on such "case made" and on petition in error. No appearance was ever made in the supreme court by either the county attorney or the