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their places. Defendants agreed to promote the interests of the company, to furnish the means necessary for carrying on its business, of which they were to have the entire control, and to make up accounts and divide profits every six months. In an action to compel an accounting for payment of profits, held, that in the absence of proof to the contrary the presumption was that the contract was authorized by the proper officers of the company, and was entered into for its benefit and advantage; also that it had power to make the same. In the absence of proof showing a want of authority or a violation of the plaintiff's charter, the claim that the contract was ultra vires cannot be upheld. Every presumption is in the contrary direction. Another complete and perfect answer to the objection urged is that the defendants, having reaped the benefits arising from the contract, cannot uuder the plea of ultra vires seek to defraud the other parties. Even although it may have been made without express authority, the contract must be allowed to stand as the plainest rules of good faith demand. Castle v. Lewis, 78 N. Y. 131. The rule is well settled that the plea of ultra vires should not, as a general rule, prevail, whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong. Whitney Arms Co. v. Barlow, 63 N. Y. 62. See also Atlantic State Bank v. Savery, 82 id. 291. Under the authorities cited, it is very manifest that the defendants cannot avail themselves of the plea of ultra vires. Some of the decisions also hold that this plea can only be interposed by a corporation and not by an individual dealing with such corporation. Bissell v. Mich. South. R. R., 22 N. Y. 258; Davis v. Old Colony R. R., 131 Mass. 258. But inasmuch as the defendants cannot interpose such a plea on the ground already referred to, it is not necessary to determine the last point. The doctrine is well settled that where joint contractors are sued, a recovery against one discharged the liability of the others, and no action will lie afterward against the party now included in the first suit (Candee v. Smith, 93 N. Y. 349); and upon no principle can it be held that the plaintiff was bound to sue each one of the defendants individually to recover moneys not accounted for, which were received by reason of their joint liability. Rider Life Raft Co. v. Roach. Opinion by Miller,


[Decided Nov. 25, 1884.]

PLEADING-CONSTRUED AGAINST PLEADER-DENIAL "ADMITTED, QUALIFIED OR DENIED"-ADMISSIONANSWER IN ANOTHER SUIT.-It was formerly the settled rule to construe doubtful pleadings most strongly against the pleader, but this rule has been so far modified by the Code as now to require them to be liberally construed with a view to substantial justice between the parties. This modification has however been held to extend only to matters of form aud not to apply to the fundamental requisites of a cause of action. Spear v. Downing, 34 Barb. 522; Cruger v. Hudson R. R. Co., 12 N. Y. 190; Bunge v. Koop, 48 id. 225. A construction of doubtful or uncertain allegations in a pleading, which enables a party by thus pleading to throw upon his adversary the hazard of correctly interpreting their meaning, is no more allowable now than formerly; aud when a pleading is susceptible of two meanings, that shall be taken which is most unfavorable to the pleader. Bates v. Rosekraus, 23 How. Pr. 98. Plaintiff's complaint alleged that defendants excavated a pit in a city street and left the same unguarded, in consequence whereof plaintiff's wife, while passing along the street, fell into the pit and was injured. The answer contained three defenses, separ- In an action for personal injury caused by reason of a ately stated. The first alleged that the injuries complained of were caused and contributed to by the in


*Appearing in 21 Northwestern Reporter.

jured party. The second set up a settlement and com-
promise of plaintiff's claim. The third denied "each
and every other allegation" in the complaint not be-
fore specifically "admitted, qualified or denied."
Held, that the answer did not put in issue the allega-
tions of the complaint that defendants made the ex-
cavation which caused the injury, or that the same
was in a public street, and that plaintiff was not re-
quired to prove the same on the trial. It was held in
the case of Allis v. Leonard, reported in memorandum,
46 N. Y. 688, and more fully, 22 Alb. L. J. 28, that an
answer which admitted the execution and delivery of
a promissory note, and denied every fact not expressly
admitted, did not concede the truth of an allegation
in the complaint stating a transfer upon good consid-
eration of such note by the payee to the plaintiff. The
facts of that case however leave no question as to
what was admitted or claimed and do not bear upon
the questions raised here. But there seems much rea-
son for saying in this case within the principle stated
in Potter v. Smith, 70 N. Y. 300, and People v. North-
ern R. Co., 42 id. 227, that the implied admission con-
tained in the first and second counts of the answer
may be construed as coming within the description of
facts excepted from the effect of the general denial as
having been theretofore specifically admitted. Under
the second defense defendants introduced in evidence
the record in an action brought by plaintiff's wife
against defendants to recover damages for the same
injury. In the answer in that action defendants ad-
mitted that the place of the accident was a public
street, and that defendants caused the excavation.
Held, that the admission so made, unexplained, must
be taken as an admission in this action, and aside
from the question of pleading, justified a refusal to
nonsuit. Clark v. Dillon. Opinion by Ruger, C. J.
[Decided Nov. 25, 1884.]


INSURANCE-MASONIC AID ASSOCIATION-BY-LAWS ALLOWING CHANGE OF BENEFICIARY-WILL DOES NOT CHANGE.-R. S. became a member of the Northwestern Masonic Aid Association, and received a certificate providing that if he was a member at his death the association would pay to his wife, R., four-fifths of $2,500, and to his daughter, M. A. D., oue-fifth. The by-laws provided that any member might change the name or names of the beneficiaries in his certificate upon application in writing to the secretary, stating to whom he desired such benefits paid, whereupon the secretary, upon surrender of his old certificate, should change upon the record the name of such beneficiary, and issue a new certificate of the same number as the old one. S. made a will, in which he bequeathed to his sons, T. S. and J. F. S., and his daughter, M. A. D., $2,500, the proceeds of his life insurance, in equal shares. Held, that the beneficiaries could only be changed in the manner designated in the by-laws; that the will was not effectual for that purpose; and that the fund should be divided as stated in the certificate. McClure v. Johnson, 56 Iowa, 620; S. S., 10

N. W. Rep. 217; Kentucky Masonic Mutual L. Ins.
Co. v. Miller's Adm'r, 13 Bush, 489; Foster v. Gile, 50
Wis. 603; S. C., 7 N. W. Rep. 555. Supreme Council v.
Priest, 9 N. W. Rep. 481, distinguished. Stephenson v.
Stephenson. Opinion by Seevers, J. [See 22 Eng.
Rep. 702.]

[Decided Oct. 21, 1884.]

car door falling upon plaintiff while he was standing on a street where a freight train of defendant containing the car was passing, where it does not appear how the door happened to fall except that the fastenings had become insufficient, probably by wear or breakage, mere proof of the accident and its attending circumstances does not raise a presumption of negligence on the part of the defendant, and cast the burden of rebutting such presumption upon it, but plaintiff must prove that the defect causing the "accident came to the knowledge of defendant, or existed for such a length of time that knowledge should be presumed. Gandy v. C. & N. W. R. Co., 30 Iowa, 420; McCummons v. C. & N. W. R. Co., 33 id. 187; Aylesworth v. C., R. I. & P. R. Co., 30 id. 459; Perry v. Railroad Co., 36 id. 102; Davis v. C., R. I. & P. R. Co., 40 id. 292; McCormick v. C., R. I. & P. R. Co., 41 id. 193; Losee v. Buchannan, 51 N. Y. 476; Garrison v. New York, 5 Bosw. 497; Hall v. Manchester, 40 N. H. 410; Hart v. Brooklyn, 36 Barb. 226; Thomp. Neg. 1227. Case v. Chicago, etc., R. Co. Opinion by Adams, J. [Decided Oct. 22, 1884.]


NEGLIGENCE-CAUSE OF ACTION ASSIGNABLE-MAINTENANCE-DEPRIVING OF RIGHT TO REMOVE TO FEDERAL COURT.—An action for a tort is assignable so as to vest in the assiguee a right of action in his own name. In Weire v. City of Davenport, 11 Iowa, 49, it was held that a right of action for a tort could be sold and transferred at common law, and in Gray v. McCallister, 50 Iowa, 497, it was held that a claim for a personal tort, which dies with the party, could be sold or transferred like any other cause of action. See also Small v. Railroad Co., 50 Iowa, 338. We are not disposed to depart from the rule established in these cases, therefore the assignment in this case is valid under the law of this State. J., who was injured by the negligence of defendant railroad company, assigned his claim for damages to V., and V. executed the following agreement: In consideration of the assignment to me by J. of his claim for damages against the Chicago & Northwestern Railway Com. pany, resulting to him by reason of an injury received by him on or about the 31st day of August, 1881, on said railway, I hereby agree to dispose of the entire amount realized on said claim as follows: For my own compensation in and about the prosecution of said claim, and for the use of any advances of money I may make I am to retain thereof the sum of $50; I am also to retain all sums of money that I may advance in the prosecution of said claim; next, I agree to pay out of the proceeds of said recovery the reasonable fee of the attorneys and agents employed to prosecute said claim on such fee therefor, as may be agreed upon, if any agreement for a specific amount shall be agreed upon, and the balance of said recovery I agree to pay to the said J." Held, that the cause of action was assignable; that the assignment and agreement did not constitute barratry, champerty or maintenance; and that V. was entitled to maintain an action for damages against the railway company in his own name. Conceding that the object of the assignment was to deprive the defendant of the right to remove the action to the Federal court, yet it had the effect to vest the legal title to the claim in the plaintiff. He legally owns and controls it, and if the action is tried on the merits the judgment is conclusive against the world. There is no law which prohibits the assignment. Clearly the act of Congress does not do so. It cannot therefore be a fraud on the rights of the defendant. At most the defendant has been deprived of a right in a manner not prohibited by law. The assignment does not have the effect to cut off any defeuse the defendant may have. This case is clearly distinguishable from Browne v. Strode, 5 Cranch, 303, and McNutt v. Bland, 2 How.

10. It has been held that when trustees are personally qualified by citizenship to bring suit in the Federal courts the jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified. Coal Co. v. Blatchford, 11 Wall. 172; Knapp v. Railroad Co., 20 id. 123. The converse of this proposition must be true. The results of the litigation belong to the parties beneficially interested. The trustees in one sense are mere conduits; but as they control the litigation, and are legally the owners of the cause of action, they are entitled to maintain the action. We do not understand Jones v. League, 18 How. 76, conflicts with the foregoing views. In that case the question was whether there had been a change of citizenship, so that the Federal courts had jurisdiction. The court said: "The change of citizenship, even for the purpose of bringing suit in the Federal court, must be with the bona fide intention of becoming a citizen of the State to which the party removes." This case recognizes the right of a party to change his residence, although it may be done for the express purpose of affecting the jurisdiction of the Federal courts. The motive or intent therefore of the change is immaterial. Vermont v. Chicago, etc., R. Co. Opinion by Seevers, J.

[Decided Oct. 21, 1884.]


MARRIAGE-WIFE'S PROPERTY - ACQUISITIONS BY PURCHASE-- BY GIFT ACT OF 1875. The married woman's act of 1875 (now § 3296, Rev. Stat. 1879) iu nowise interfered with the right of married women to acquire, or in the manner in which they might acquire a separate estate in personalty by gift or purchase, as it previously existed. The act was designed to enlarge the operation of the right, to simplify the proof of the existence of the estate, and to afford protection, especially against the effects of the husband's reducing the property to possession by providing that no such reduction should be effectual unless evidenced by writing signed by her. The purchases of a married woman protected by that act are those made with her separate money or means, and those only. The act protects gifts as well as purchases; and where a married woman by her pleading claimed property by vir tue both of gift and purchase, and there was evidence tending to show that she acquired it in consideration partly of love and affection and partly of money paid, held, that it was error so to instruct the jury as to permit a verdict for her only in case they found the money paid was her separate means. She might fail to show this, and consequently so far as the acquisition was a purchase it might be without the pale of the act, and yet so far as it was a gift be protected; and the possible difficulty of ascertaining the exact extent of her interest would not warrant the court in withholding the question from the jury. Held, also, that where a married woman had such an undivided interest, if a person claiming through her husband appropriated the property to his exclusive use, and denied her right altogether, that was in law a conversion and entitled her to maintain an action against him as in trover for damages to recover her interest. Wiles v. Maddox, 26 Mo. 77; Watson v. King, 4 Campb. 272; Wilson v. Reed, 3 Johns. 175; Holcomb v. People's Savings Bank, 92 Penit. St. 338. McCoy v. Hyatt. Opiuion by Philips, Com'r.

EVIDENCE-AGENT'S DECLARATIONS.-The declarations of au agent are admissible as evidence against his principal only when made while transacting the

*To appear in 80 Missouri Reports.

business of the principal and as a part of the transac tion which is the subject of inquiry. Hence where the baggage-master of a railroad company, while away from the baggage-room of the company and engaged in the transaction of his private business on his own premises, gave directions to a stranger with reference to the delivery of baggage, held, that they were not binding on the company. Adams v. Railway Co., 74 Mo. 554. City of Chillicothe v. Raynard. Opinion by Norton, J.

DEED-MARRIED WOMAN-MISTAKE IN CANNOT BE REFORMED.—As against a married woman a court of equity has no power to compel specific performance, to reform a deed, or to do any thing else which will divest title to land out of her. Hence where there were two deeds of trust executed by husband aud wife, and both intended to cover the same land, but by mistake the earlier deed described a different tract, and because the holder of the later deed had notice of the mistake, the court decreed that the first deed should be reformed and enforced as a first lien against the true land. Held, that this decree was correct so far as it related to the husband's interest, but erroneous so far as it related to the wife's, and as to her interest the second deed must remain the first lien. Shroyer v. Nickell, 55 Mo. 264; 7 Cent. L. J. 182; Atkison v. Henry, 80 Mo. 151. Meier v. Blume. Opinion by Sherwood, J.

MARRIAGE-HUSBAND AND WIFE'S JOINT ESTATECONVEYANCE OF-TITLE BOND-EQUITY.-Where a husband and wife are seised in entirety the husband may without joining his wife couvey his legal or equitable estate, subject to her right of survivorship. But where the husband alone executed a title bond for such land, held, that the wife's estate could not be divested by reason thereof, although she afterward received from her husband part of the purchase-money, and thereupon expressed satisfaction with the sale. Hall v. Stephens, 65 Mo. 670; Shroyer v. Nickell, 55 id. 264; 7 Cent. L. J. 182; Devorse v. Snider, 60 Mo. 235; Baldwin v. Suowden, 11 Ohio St. 203; Ackert v. Pultz, 7 Barb. 386; Purcell v. Goshorn, 17 Ohio, 105; Pilcher v. Smith, 2 Head, 208; Martiu v. Develly, 6 Wend. 9. Atkison v. Henry. Opinion by Sherwood, J.

ASSIGNMENT-CAUSE OF ACTION FOR TORT.-A cause of action against a railroad company arising under the 43d section of the Railroad Law, for double damages for the killing of live stock, cannot be assigned so as to invest the assignee with the right to sue. Citing Wallou v. Railway Co., 74 Mo. 521, and distinguishing Smith v. Kennett, 18 id. 154. Snyder v. Wabash, St. Louis & Pac. Ry. Co. Opinion by Norton, J.

CONSTITUTIONAL LAW-INTERMARRIAGE BETWEEN WHITES AND NEGROES.-The act making intermarriage between white persons and negroes a felony (Rev. Stat., § 1540) is no violation of the 14th amendment of the Constitution of the United States. Neither is that olause of the act which provides that the jury trying a party accused of such a marriage may determine the proportion of negro blood in either party to the marriage from the appearance of such person, a violation of that clause of section 53, article 4 of the Constitution of Missouri, which provides that "the General Assembly shall not pass any local or special law regulating the practice or jurisdiction of or changing the rules of evidence in any judicial proceeding." "The privileges and immunities of citizens of the United States" protected by the 14th amendment are such as are secured to them by the Constitution of the United States and laws enacted in pursuance thereof, and the right of unrestricted marriage is not among these. The Slaughter House cases, 16 Wall. 36; Minor v. Happer

sett, 21 id. 162; State v. Gibson, 36 Ind. 389; S. C., 10 Am. Rep. 42; 1 Bish. Marr. & Div., § 87; State v. Kenuedy, 76 N.C. 251; S. C., 22 Am. Rep. 683; Ellis v. State, 42 Ala. 525; Burus v. State, 48 id. 195; S. C., 17 Am. Rep. 34; U. S. v. Stauley, 109 U. S. 3. State v. Jackson. Opinion by Heury, J. [See 32 Eng. Rep. 7.]

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CONTRACT-PERSONAL LIABILITY OF AGENT.-The defendants gave the plaintiff a note reading: "$1,000. Carmel, April 22, 1876. For value received, we, the subscribers for the Carmel Cheese Manufacturing Company, promise to pay William Simpson, or order, one thousand dollars in six mouths from date, with interest. F. A. Simpsou, Rufus Work, A. S. Garland." Held, that an action upon the note could not be maintained against the signers, as it did not purport to be their promise, but the promise of their principal, aud if given without proper authority the agents may be liable in another form of action. Nor could an action of money had and received be maintained against them where they received the money as agents, aud disposed of it for the benefit of their principal before the commencement of the suit, aud without notice to withhold it. The note does not contain the promise of the defendants. There are in it no apt words to bind them, but the promise is expressly made for the corporation. The testimony introduced has no tendency to fasten that promise upon them, nor would that or any other having that tendency be competent for the purpose. So far as the action is founded upon that contract, it must stand or fall with it. Any proof offered, whether in writing or otherwise, must correspond to the allegations in the writ. If they have signed a note purporting to bind a principal without authority, the note is simply void. The agent thus doing may be liable in another form of action, but certainly not in a suit upon a contract into which he never entered. This seems to be clear upon priuciple, and is supported by a decided preponderance of authority. It may be considered as well settled law in this State and Massachusetts. In New York, while the earlier decisions were opposed, the later are in favor. It is not necessary to cite all the cases or discuss them in detail. The following will give all the light necessary: Harper v. Little, 2 Me. 14; Stetson v. Patten, id. 358; Noyes v. Loring, 55 id. 408; Ballou v. Talbot, 16 Mass. 461; Abbey v. Chase, 6 Cush. 54; Jefts v. York, 4 id. 371; S. C., 10 id. 392; Bartlett v. Tucker, 104 Mass. 336; Bray v.Kettell, 1 Allen, 80; 1 Pars. Cout. 68, and note. Thus it is evident that the defendants cannot be holden upon the note declared upon, even though they had no authority to bind the principal; nor can they be holden upon the count for money had and received; for whatever money they had was received as agents, and disposed of for the benefit of their principal before the commencement of the suit, and without notice to withhold it. Simpson v. Garland. Opinion by Danforth, J. [See 47 Am. Rep. 818.]

FRAUD-RESCISSION OF CONTRACT-OFFER TO RESTORE-DAMAGES.-To rescind a contract of sale of merchandise, which has been delivered, on the ground of fraudulent representations of the seller, the buyer must restore the goods to the seller, if they are of any value, or to offer to restore them under such circumstauces as to show an existing intention and ability to deliver them into the possession of the seller, or if he

*To appear in 76 Maine Reports.

elects, to accept them. When such a contract has not been rescinded the buyer is liable for the contract price, less the damages occasioned by any fraud that was practiced upon him in the sale. Sharp v. Ponce. Opinion by Walton, J. [See 27 Alb. L. J. 218, 375. -ED.]

ELECTION--ELECTOR DISFRANCHISED--UNREASONABLE ACT OF ELECTION OFFICERS-REV. STAT., CH. 4, § 63DAMAGES.—(1) The action of selectmen in refusing to permit a legal elector to vote on the ground that his name was checked; that another man had falsely personated him and voted under that name, is unreasonable, and renders them liable to an action under R. S., ch. 4, § 63. (2) It appears to us that the question was one upon which men of common intelligence, acting fairly and without bias, could not be expected to take opposite sides. The defendants claim that they were justified in their action, because two gentlemen present, who were lawyers, declared that the plaintiff should not be permitted to vote, as it would invalidate the election; and fearing that effect, they refused the vote. We cannot conceive how two lawyers, giving their opinions upon their responsibility as such, could express such an opinion. It must have been inspired by political interest or bias rather than by legal learning. The idea that because a fraudulent ballot had been put into the ballot box, which, if it would change the result, any tribunal having power to determine the election would reject, the reception of the honest, legal ballot would invalidate the whole election, is, to say the least, unique. No elector can be legally disfranchised by being falsely personated by another as in this case. The defendants were so advised by several lawyers, among them the solicitor for the town, whose opinion was given at the request of the chairman of the board, and that they ought to permit the plaintiff to vote. (3) Where the act of the selectmen in refusing to permit a legal elector to vote is unreasonable, but not corrupt, punitive damages will not be awarded in an action against them by such elector. Pierce v. Getchell. Opinion by Libbey, J.

MASTER AND SERVANT EVIDENCE AS TO FITNESS OF EMPLOYEE-JURY CANNOT DECIDE FROM SIGHT.-(1) In an action for personal injuries alleged to have been caused by the negligence of the employer in retaining the services of a fellow servant who was careless, and whose carelessness caused the injury, a witness testified that he considered the fellow servant slow and lazy, and not fit for the service, he was so slow, and witness had so informed the agent of the employer; and in answer to a question, if the fellow servant was competent and careful in the performance of his duties, witness testified: "Yes, he was always careful about his work." Held, that this evidence was not sufficient to establish the negligence of the employer. (2) The jury is not authorized to decide that a person is unfit to be employed as a brakeman on a railroad, on account of what they saw or supposed they saw, or could read in his face and manner while testifying be-fore them as a witness, and determine from that alone

that the railroad company was negligent in employing such a person. Corson v. Maine Cent. R. Co. Opinion

by Walton, J.

MONEY HAD AND RECEIVED-TRUST-SALE OF NOTE. -C. and G. were tenants in common of a parcel of real estate. C. conveyed his party to G. and took G.'s note therefor. Both parties agreed that the sale was one only in form, that C. was to continue the actual owner of one-half and that G. should not be required to pay the note. G. sold and conveyed a part of the land and paid to C. a portion of the purchase-money received therefor. C. then in violation of the under

standing sold the note, and G. was compelled to pay it, principal and interest, to the purchaser. Held, that by the sale of the note C. violated a trust, and thereby. forfeited his right to retain that portion of the purchase-money received from G., and that assumpsit for money had and received was a proper form of action in which to recover it. Moore v. Marshall. Opinion by Walton, J.

INJUNCTION-JUDGMENT NOT ENJOINED-RES ADJUDICATA.—A court of equity never enjoins a judgment except upon some distinot equitable ground which neither was nor could have been set up as a defense to the action at law. An issue once tried in a court of law is never retried by a court of equity. The parties have had their day in court, and they must abide by the result. The rule was correctly stated by Chief Justice Marshall in Marine Ins. Co. v. Hodgson, 7 Cranch, 332. It is that any fact which clearly shows it to be against conscience to execute a judgment at law, and of which the complainant could not have availed himself at law, or which he was prevented from availing himself of by fraud or accident, unmixed with any fraud or negligence of himself, or his agent, is ground for enjoining the judgment; but a legal defense, actually made at law, is not ground for enjoining the judgment, though the court may think it ought to have prevailed. "It is now, I apprehend well settled," said Redfield, J., in Emerson v. Udall, 13 Vt. 477, "that a court of equity will not examine into the foundation of a judgment of a court of law, upou any ground which either was tried, or might have been tried in the court of law. The judgment of a court of law is conclusive upon all the world as to all matters within its cognizance. If a party fail by not presenting his defense, when he should have done it, he can have no redress in a court of equity. Much less can he expect relief in a court of equity, when he has had a full trial at law upon the very grounds which he now wishes to urge anew.' To the same effect is 2 Story Eq., § 894, and High on Inj., §96. Bachelder v. Bean. Opinion by Walton, J.



VERDICT-RECEIVING IN ABSENCE OF DEFENDANT -RIGHT TO POLL JURY-SUNDAY NOT COURT DAYERROR.-The jury returned their written verdict in a criminal case to the judge of the court on Sunday, in the absence of the defendant and his counsel, and without either of them being called or notified. The judge received the verdict, and discharged the jury from further consideration of the case. At the opening of the court on the next day (Monday), the defendant asked the court to recall the jury, and allow. him the opportunity of having the jury polled in his presence; but the court denied the application. The defendant also moved that the verdict be set aside and stricken from the files; that the jury be recalled, and directed to return a proper verdict; all of which motions, as well as the motion for a new trial, were over

ruled. Held, that neither the defendant nor his coun

sel, in the absence of notice, were bound to be in at tendance upon the court on Sunday on the coming in of the jury; and held further that on account of the action of the court in discharging the jury, and refusing to poll the jury in the presence of the defendant, the judgment must be reversed and & new trial granted. When a verdict is announced the defendant may require that the jury be polled. A party has, in all cases, the right to know whether the supposed verdict is the verdict of each juror, or only one of the jury; and examining the jury by the poll is the only

recognized means of ascertaining whether they were unanimous in their decision. This right is equally applicable to civil and criminal cases. The appellant therefore had the legal right to poll the jury, and he cannot be deprived of that right without his consent. Cr. Code, § 208; Civil Code, § 283; Maduska v. Thomas, 6 Kans. 159; Munkers v. Watson, 9 id. 668-673; James v. State, 55 Miss. 57; 30 Am. Rep. 496, and notes; State v. Hughes, 2 Ala. 102. If it be urged that the appellant was voluntarily absent from the court-room on the coming in of the jury, and thereby waived his right to have the jury polled, it is sufficient to answer that neither he nor his counsel, in the absence of notice, were bound to be in attendance upon the court on Sunday. Dies dominicus non est juridicus-the Lord's day is not a court day. While it is lawful for a court to receive a verdict on Sunday, yet as the parties have the right to poll the jury, the court ought not to make such disposition of the case, in the absence of the parties and counsel, as to prevent the exercise of this right. Stone v. Bird, 16 Kans. 488; Norvell v. Deval, 50 Mo.272; Reid v. State,53 Ala. 402; Stewart v. People, 23 Mich. 63; James v. State, supra; 1 Bish. Cr. Pro., §§ 270, 272. Sup. Ct. Kans. State v. Muir. Opinion by Horton, C. J. (32 Kans. 481.) [See 4 Neb. 86; 28 Am. Rep. 484; 67 N. C. 283; 88 Penn. St. 189; 49 Cal. 41.]



PREPONDERANCE BELIEVING CERTAIN WITNESSES.-If a doubt is raised as to the paternity of a bastard child by reason of the complainant's connection with other men at about the time it was begotten, other facts may be shown sufficient to satisfy the jury that the accused is the father. State v. Pratt, 40 Iowa, 631. In other words, the jury are to determine from all the evidence before them whether or not the acoused is the father of the child. The first instruction therefore was properly refused. The second instruction also was properly refused. The proceeding is essentially a civil one, and the rules of evidence governing civil actions are applied. Carter v. Krise, 9 Ohio St. 402; Glenn v. State, 46 Ind. 368; State v. Evans, 19 id. 92; Byers v. State, 20 id. 47; State v. Brown, 44 id. 329. In this State a preponderance of evidence is all that is required in civil actions, even in cases of fraud. Patrick v. Leach, 8 Neb. 538; Search v. Miller, 9 id. 30; Kopplekom v. Huffman, 12 id. 101. In Patrick v. Leach, p. 538, it is said: "In a civil action the law does not require the jury to be satisfied beyond a reasonable doubt, as in criminal cases." The court did not err therefore in refusing to give the instruction. Sup. Ct. Neb., Nov. 18, 1884. Altschuler v. Algaza. Opinion by Maxwell, J. (21 N. W. Rep. 401.)

PRACTICE-ASSAULT WITH INTENT TO KILL-REVERSAL-SECOND TRIAL FOR ASSAULT-CHALLENGE.-When a party has been convicted of an assault with intent to kill, and on appeal such conviction has been reversed on the ground that the evidence would not sustain such charge, he can only be tried a second time on the same information for the offense charged therein, and if the court put him on trial for a simple assault, and restrict the number of his challenges of jurors to five, a conviction for the assault will be reversed, and the accused discharged. Sup. Ct. Mich., Nov. 20, 1884. People v. Comstock. Opinion by Champlin, J. (21 N. W. Rep. 384.)

LARCENY · EVIDENCE PRISONER'S POSSESSION OF BURGLARS' TOOLS.-On a trial for larceny from a dwelling-house, it appeared that defendant was arrested in the vicinity of the locus delicti immediately after the commission of the larceny, under suspicious circumstances tending to connect him with the crime.

It also appeared that divers rooms, closets and drawers in the house were ransacked; but there was no evidence that burglar's tools had been used to effect the entry or to open inner doors or drawers. Held, that evidence that the defendant, when arrested, had such tools in his possession was nevertheless admissible. People v. Winters, 29 Cal. 658. State v. Davis. Opinion by Hough, C. J. (80 Mo.)


FIRE-LOSS-LOCATION OF GOODS.-Where a policy of fire insurance in one clause insures household goods, furniture, clothing, etc., contained in a "two-story frame dwelling-house aud additions, occupied as a · residence," and in another clause insures "horses, buggies, hay, etc., and barn tools," the insured cannot recover for the loss of the household goods by burning of the baru into which they had been removed on account of a previous fire in the dwelling-house. Hartford Ins. Co. v. Farrish, 73 Ill. 166: Annapolis, etc., R. Co. v. Baltimore Fire Ins. Co., 32 Md. 37; S. C., 3 Am. Rep. 112; and Bryce v. Lorillard Ins. Co., 55 N. Y. 240. Sup. Ct. Mich., Nov. 19, 1884. English v. Franklin Fire· Insurance Co. Opinion by Cooley, C. J. (21 N. W. Rep. 340.)

FIRE-FORM OF POLICY-WAIVER OF PROOFS OF LOSS. In the absence of averment as to the form of an insurance policy agreed to be issued, it will be assumed that the form stipulated for was the form then in use by the company, and that the terms of such policy were embraced by implication in the contract. Hubbard v. Hartford Ins. Co., 33 Iowa, 325. See also De Grove v. Insurance Co., 61 N. Y. 594. Acts or omissions relied upon as a waiver of preliminary proof should, to constitute such waiver, take place before action is brought if not before the time has expired within which the insured has a right, under the terms of the contract, to supply such proof. Beatty v. Lycoming Co. Mut. Ins Co., 16 P. F. Smith, 9; Fland. Ins. 593, note. Besides in this case no waiver was pleaded. Lumbert v. Palmer, 29 Iowa, 104. Sup. Ct. Iowa, Oct. 24, 1884. Smith v. State Ins. Co. Opinion by Adams, J. (21 N. W. Rep. 145.)


FIRE ·PREMISES "VACANT OR UNOCCUPIED. Where the owner of a dwelling, who after a tenant has vacated the premises, moves his furniture into and cleans up the house with an intention of making it his residence, but during that time does not actually occupy it at night, subsequently leaves it temporarily on business, and puts a party in possession until his return, the house cannot be considered as vacant or unoccupied," within the meaning of a clause in the policy providing that if the insured building shall "be or become vacant or unoccupied" the policy shall be void unless consent in writing is indorsed thereon, and he will be entitled to recover for a loss occurring during such temporary absence. In contemplation of law her occupation of the house would have been continuous. Stupetski v. Translantic Fire Ins. Co., 43 Mich. 373; S. C., 5 N. W. Rep. 401; Cummings v. Agricultural Ins. Co., 67 N. Y. 260; Herrman v. Merchants' Ins. Co., 81 id.184; Phoenix Ins. Co. v. Tucker, 92 Ill.64; Dennison v. Phoenix Ins. Co., 52 Iowa, 457; S. C., 3 N. W. Rep. 500. The only question then is whether the fact that for the few days she remained at home before starting on the business trip she did not sleep in the house or take her meals there should make any difference. Under the circumstances we think not. The insured had taken possession of the house, as the jury must have found, for the purposes of permanent occupancy. She had moved in her household furniture

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