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formed. Acting upon that, it seems to me very reasonable and right in this case to say that Messrs. Dicks should pay the costs occasioned by their claim. I do not know in what way it would be phrased here, but the effect would be that they would get the costs of the counterclaim, which I suppose are far and away more important, but that such costs as are occasioned by their claim they should pay.

JAMES, L. J.-The plaintiffs should have the costs of the defendants' counterclaim, and the defendants the costs of the plaintiffs' claim; and probably the best thing would be to agree that there should be no costs on either side. so as to avoid the taxation, for it would be very difficult to apportion the costs.

BAGGALLAY, L. J., concurred.

Ultimately it was agreed between the parties, with the sanction of the court, that both claim and counterclaim should be dismissed without costs either below or on appeal, any costs already paid on either side to be repaid.

JAMES, L. J.-The vice-chancellor seems to have thought that Mr. Dicks was guilty of some very improper conduct in what he had done; but I desire to say, and I have the authority of the lords justices for saying it, that they agree with me in acquitting Mr. Dicks of any wrong doing either legally or morally.

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

September, 1880.

HUSBAND AND WIFE-STATUTES-EXTRA-TERRITORIAL VALIDITY.-1. Statutes concerning the relations of husband and wife, or their respective rights, duties and obligations, will not be construed as extending to husbands in good faith domiciled without the State, though their wives may come into the State and subject themselves to the duties and liabilities imposed by law, unless it shall be clearly apparent by the words of the statute that it was intended to apply to such husband; and if such intention is clearly manifested by the statute, it must be determined by the particular circumstances of each case as it arises, whether the statute can operate so far extra-territorially as to bind one not residing within the limits of this State, and who has never authorized or ratified the dealings in relation to which he is sought to be charged. 2. Therefore, the stat. of 1862, c. 198, providing that a married woman proposing to do business on her separate account, shall tile a certificate in the clerk's office of the city or town, setting forth the name of the husband, the nature and place of the business, etc.; and that unless such certificate be filed, any property employed in such business may be attached on mesne process or taken on execution by any creditor of the husband, and the husband shall be liable upon all contracts lawfully made in the prosecution of such business in the same manner as if made by himself, does not apply where a husband is lawfully domiciled in another State, and his wife car

ries on business here on her own account. Opinion by LORD, J.-Hill v. Wright.

RECEIPT.

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SALE-STATUTE OF FRAUDS - ACCEPTANCE AND - In an action to recover the price of lot of calf-skins, it appeared that on Wednesday, November 6, 1872, said lot was piled, apart from other goods, in the plaintiffs' warehouse, when one of the defendants came in with one K (a currier who was to curry the skins when the defendant bought them), and made an oral agreement with one of the plaintiffs to purchase the entire lot, at a certain price per pound for the merchantable skins, and two-thirds that price for the "culls," or damaged skins, and then told K, "I have bought this lot of skins, and I want you to stay and see them put up, but I don't wish you to take them away before Friday or Saturday, because in the meantime I want to ascertain in regard to my insurance." K said he would send his team and take the skins on Saturday. K remained and assorted about half the skins, throwing them over and separating the merchantable from the damaged skins, and then went away, and the plaintiffs assorted the rest of the lot. The expression "putting up" means assorting, bundling and weighing, and the plaintiffs put up this lot of skins in the usual way, the weights then being entered on their books, and the whole lot of skins set apart by itself in bundles, and marked with the defendants' initials. On the following Saturday K came to said warehouse, and was told the skins were ready for him to take, and was asked if his team would be there soon, and answered that it would not. Nothing further took place, and during the following night the skins were destroyed by fire. Held, that there had been no such acceptance and receipt as to satisfy the statute of frauds. Safford v. McDonough, 120 Mass. 290; Atherton v. Newhall, 123 Mass. 141. Opinion by GRAY, C. J.-Rodgers v. Jones.

DONATIO CAUSA MORTIS-SAVINGS-BANK BOOKACTION-INTEREST-TRUST.-1. The delivery of a savings-bank book without a written assignment or order, is sufficient to constitute a valid gift causa mortis, and the donee may maintain an action against the bank for the amount of the deposit, in the name of the administrator, without his consent. 2. In such an action, if the bank has agreed to pay a lower rate of interest than the legal rate, it is error for the court to include in its judgment interest at the legal rate from the time of the verdict. 3. A donee cauSA mortis takes his title to the property subject to the right of the administrator to reclaim it, if required for the payment of debts. Mitchell v. Pease, 7 Cush. 350; Chase v. Redding, 13 Gray, 418. 4. But where such donee is the only creditor, the bank can not resist payment on the ground that the estate has been represented insolvent by the administrator. It would be an idle ceremony to have the bank deposit paid over to the administrator, in order that he should deduct from it the claim of the donee, pay him, and also return to him the balance. 5. Where the gift consisted of a sealed package containing money and bank books, accompanied by directions of the donor as to the disposition of the same, it was held, that the donee held the same in trust, upon the terms and limitations prescribed by the donor. Clough v. Clough. 117 Mass. 83; Sheedy v. Roach, 124 Mass. 472; and that it was immaterial that the donee did not know the amounts due upon the books, or the names of the banks which held the several deposits. Davis v. Ney, 125 Mass. 590. One opinion in both cases, by ENDICOTT, J.-Pierce v. Boston Five Cents Savings Bank and Turner v. Estabrook.

SUPREME COURT OF IOWA.

October, 1880.

OFFICIAL BONDS SURETIES RE-ELECTION OF OFFICER. Where an officer charged with the custody of public funds is re-elected one or more times, and serves two or more terms, the sureties upon a subsequent bond become prima facie responsible for any balance on account of the previous term charged to the principal, as such principal is, in the absence of anything to the contrary, presumed to have such balance on hand; and in an action upon such bond, all that is necessary to show, prima facie, is what amount ought to have been on hand at a particular time, and it will be presumed that it was on hand. This rule is not affected by sec. 690, Code, providing that a settlement shall be had with a re-elected officer for the matters of his old term before approval of his bond for the new, nor by any failure to have such settlement. Reversed. Opinion by ADAMS, C. J.-District Tp. v. McCord. 6 N. W. Rep. 224.

MECHANIC'S LIEN-INCHOATE RIGHT TO, NOT ASSIGNABLE.-An inchoate right to a mechanic's lien before completion of the work or filing the claim, is not assignable. As to the assignability of a mechanic's lien, independently of a statute specially authorizing it, there is a conflict of authority. The following authorities hold that the lien of a mechanic or material-man is a personal right and can not be assigned: Caldwell v. Lawrence, 10 Wis. 33; Pearson v. Tincker, 36 Me. 384; Rollin v. Cross, 45 N. Y. 766. The following authorities hold that where the contractor has completed his contract and filed his claim for a lien, he may assign both the debt and the lien: Tuttle v. Howe, 14 Minn. 145; Skyrme v. Occidental Mill etc. Co., 8 Nev. 219; Davis v. Bilsland, 18 Wall. 659; Young Stone Dressing Co. v. Wardens' St. James Parish, 61 Barb. 489. In Iæge v. Bossieux, 15 Gratt. 83, the contractor assigned his contract before the completion of the work, and it was held this assignment entitled the assignee to the contractor's lien. We have been cited to no case, nor have we found any, where it has been held that the assignment of an instalment due before the completion of the work carried with it to the assignee the right to file a claim for and to enforce a lien. The law in force at the time this assignment was made was ch. 8 of tit. 14 of the Code, as amended by ch. 44, Laws Fifteenth General Assembly. The amendment is to sec. 2142, and provides that the lien herein given shall be transferable and assignable." The right to a lien arises when the labor is done or the material is furnished. But this right the laborer or material-man may waive; he may not desire to insist upon it and enforce it. Sec. 2133 provides what a sub-contractor must do, and sec. 2137 provides what every other person must do, who wishes to avail himself of the provisions of the chapter conferring the lien. If this is not done, the lien continues to be of an inchoate and contingent character. Now the provision above cited from the amendment of the statute, that "the lien herein given shall be transferable and assignable," refers, we think, to the lien perfected by the filing of a claim therefor, and not to the mere inchoate right to a lien. But, however this may be, we feel clear that the mere assignment of an instalment before the contract is completed does not carry with it, under this statute, the right to file a claim for a lien. Affirmed. Opinion by DAY, J.-Merchant v. Ottumwa Water Power Co.

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matters to arbitrators is a decision from which an appeal will lie. The case of Bryan v, Brannon, 7 How. Pr. 359, contra, was given but little consideration and can not be regarded as authority. Smith v. Dodd, 3 E. D. Smith, 348, also contra, was put upon the ground that when the action is referable in its nature, an order or reference is a matter in the discretion of the judge, and not appealable. But suppose the question to be whether the action is referable in its nature, in what manner can that question be determined unless an appeal is allowable? Suppose a court should, in an ordinary action at law, upon motion of one of the parties, order a reference, must the other party submit to the unlawful mode of trial and wait until a final judgment is rendered against him before he can prosecute an appeal? In McMartin v. Bingham, 27 Iowa, 234, an appeal was taken from an order referring an action by ordinary proceedings without the consent of the parties. No question was made as to the right to entertain the appeal, and the order was reversed. In Callanan v. Shaw, 19 Iowa, 183, it was directly held that an appeal lies from an order appointing and refusing to appoint a receiver. In Kain v. Delano, 11 Abb. Pr. (N. S.) 29, it was held that a right of trial by jury is a substantial right, and that where an order of reference is made, in a case not properly referable, the order is appealable. The same doctrine is recognized in Welsh v. Darragh, 52 N. Y. 590. 2. It is error to recommit a case to arbitrators, one of whom has been guilty of acts indicative of partiality. The court should simply have rejected the award, and left the parties to resort to the ordinary tribunals for the settlement of their difference. In re-submitting the matter to the same arbitrators the court erred. Reversed. Opinion by DAY, J.-Brown v. Harper.

SUPREME COURT OF ILLINOIS.

September, 1880.

DEDICATION-CONVEYANCE-COVENANTS

STRUCTION.

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1. The purchaser of land subject to a deed of trust has no power to lay out the land into town lots, and thereby dedicate the streets and alleys to the public, so as to affect a purchaser at a sale under the trust deed. A sale under the trust deed will avoid and vacate such a plat. 2. Where a deed remising and releasing premises contains a covenant that the grantor and his heirs shall warrant and defend the title to the premises to the grantee, his heirs and assigns forever, against all lawful claims of all persons claiming under the grantor, and the habendum clause provides that the grantee, his heirs and assigns, shall have and hold the premises, etc., forever, it will be a conveyance of the fee, and not a simple release, so that a title subsequently acquired by the grantor will inure to the grantee, unless it is derived from sale under an incumbrance assumed by the grantee. 3. Where a conveyance of land recited that the grantor and wife, in consideration of $4,000, with incumbrance thereon to him paid by the grantee, the receipt whereof was acknowledged, did remise, quit-claim, etc., it was held that the evident intention was that the consideration of the deed was the payment of $4,000, and the grantee's undertaking to pay the incumbrances on the land to the holders thereof, and that the grantee took the land subject to all incumbrances. 4. Where a conveyance of land is made subject to the incumbrances thereon made by the grantor, a covenant to warrant and de

fend against the claims of all persons claiming under the grantor applies only to the equity of redemption, which is all that such a deed purports to convey. Affirmed. Opinion by DICKEY, J.-People v. Herbel. REAL ESTATE, WHAT CONSTITUTES MINERALS LIEN LICENSE COVENANT. 1. Coal and other mineral in a mine and under the soil are real estate, and as such are capable of being conveyed like any other real estate, and when once conveyed by deed may pass by inheritance or deed of conveyance. 2. Where the owner of land by deed bargains, sells and conveys to another, his heirs and assigns, all the coal, limestone, iron ore, rock oil and other mineral in, upon or under the land, with an express license to the grantee, his heirs and assigns and laborers to enter and search for said minerals, and to dig, mine, explore and occupy with the necessary structures, etc., and to mine and remove the coal, etc., for which grant the purchaser agrees to pay to the grantor a stipulated price per ton for the various minerals removed, payable quarterly, the grantor will have a vendor's lien on the coal and mineral not mined and removed, for the purchase money, which he may enforce by a sale of the coal and mineral not taken from the ground. In such case the amount of the purchase money falling due each quarter depends upon the quantity of coal, etc., mined and removed from the land during the three months next preceding. The price agreed to be paid per ton is only a mode of ascertaining the amount of purchase money to be paid for the conveyance of the coal, ete., in the mine. 3. If a deed conveying coal and other mineral in the ground on a credit, to be paid for quarterly, as the same are mined and removed, authorizes the sale of the coal, etc., before payment is to be made, that will only be a waiver of the vendor's lien pro tanto for what is thus removed, but not for the coal, etc., still in the mine. 4. A mere license in writing, to mine, remove and sell coal, etc., the product of such mining to be paid for at a given price per ton, is not transferable, either by assignment or deed, so as to pass any legal right or title. 5. A covenant in a conveyance of mineral in the ground, by the grantee to the grantor, to pay the latter a certain sum per ton for the mineral removed, is not a collateral covenant, but is a covenant to pay the purchase money for the sale of all the mineral in the manner specified. Affirmed. Opinion by WALKER, J.-Manning v. Frazier.

SUPREME COURT OF MICHIGAN.

October, 1880.

REPLEVIN IN STATE COURT FOR GOODS WRONGFULLY SEIZED BY UNITED STATES MARSHAL. Where a United States marshal seizes the property of a stranger to the execution in his hands, the latter may maintain replevin in the State court. Reversed. Opinion by CAMPBELL, J, COOLEY, C. J., dissenting says: "My brethren may be right in their view that the later decisions of the Federal Supreme Court have in effect overruled Buck v. Colbath, 3 Wall. 334; but I prefer to await an authoritative declaration to that effect by the court itself."-Heyman v. Covel.

PRINCIPAL AND AGENT-AUTHORITY TO DRAW DRAFTS-POST-DATED DRAFTS.-An authority in an agent to draw sight or time drafts in the name of his principal does not include an authority to draw postdated drafts. A general agent and stockholder in charge of a mine in Michigan had general authority to draw sight and time drafts in the name of the company upon

its treasurer in New York. He drew a post-dated draft, and discounted the same, giving at the same time a collateral draft for the same amount, to be used only in case he should die before the post-dated one came due. There was then no occasion for post-dating drafts for the business of the mine,though drafts of that kind had been drawn, used and assented to some eight years previous, when the mine was in a less prosperous condition. Held, that post-dating, under the circumstances, was a circumstance sufficient to put the bank discounting the paper on special inquiry as to authority to so draw the same. Reversed. Opinion by COOLEY, J.-New York Iron Mine v. Citizens Bank. 6 N. W. Rep. 131.

LIFE INSURANCE-SURRENDER OF POLICY-MISTAKE OF LAW-FRAUD-RELIEF IN EQUITY.-Plaintiff, who held a policy of insurance on his life for the benefit of his wife in the defendant company, was induced by the agent of the company,by representations that it was forfeited in law, and that a paid-up policy for its value would be issued, to surrender the same. The policy was not legally forfeited. Held, that equity would relieve. The doctrine which makes parties bear the consequences of mistakes of law is a hard one in many cases, and can only be maintained on grounds of general policy. It is undoubtedly expected of persons that they will act with prudence. But the rule is not so universal as to hold parties beyond relief for all cases-however hard-when mis take of law is an important element. When it is only one of various elements and is combined with fraud or misconduct, the courts will not refuse to do justice in all cases. In Pusey v. Desbouvrie, 3 P. Wms. 315, a release of an orphanage share of a freeman's daughter in London, made as a condition of obtaining a legacy, was set aside as made improvidently, though without fraud, where the legatee reposed faith in her brother, the executor, for knowledge of her rights under the custom, and he had innocently failed to enlighten her. In commenting on the case Judge Story (1 Eq. § 118) justifies it both on grounds of confidence and also as really involving surprise connected with facts. In Evans v. Llewellyn, 1 Cox, 333, there was no ignorance of facts, and it was held there was no actual fraud, yet on the ground of surprise and action taken suddenly without due caution, a conveyance was set aside as improvidently made. The cases are quite common in which relief is given where a person has been surprised into doing what it is inequitable to hold him to, where fact and law are blended, or where the mistake of law is so mixed up with other things that it can not be regarded in the view of good sense just as it would be if it were a deliberate blunder made without haste or artifice. See Story Eq. { 134, and generally §§ 117-139, Affirmed. Opinion by CAMPBELL, J.-Tabor v. Michigan Mut. Ins. Co.

SUPREME COURT OF MISSOURI.

June, 1880.

CRIMINAL LAW- PRACTICE MISCONDUCT OF PROSECUTING ATTORNEY AND JURORS-RIGHTS OF ATTORNEY EMPLOYED TO ASSIST THREATS.-1. The attorney employed to assist in the prosecution was permitted to open the case to the jury against the objection of defendant. Held, proper under Rev. Stat. sec. 1908. Such employmont has been held law. ful. State v. Hays, 23 Mo. 287. Hence, the person employed becomes for the purposes of the trial a prosecuting attorney. 2. Statements of the prosecuting attorney in his speech to the jury, that defendant “had

gone to the Indian Territory, where all rascals go," the evidence showing that he had fled there; that defendant was a "strong, robust man, and one whom very few persons would like to encounter in a personal quarrel," such facts not being material; and adverse comments on the failure of defendant to prove his good character, for which defendant's counsel had laid the foundation by remarking on the failure to prove his bad character: Held, not to be such misconduct on the part of the prosecuting attorney as to justify a reversal. 3. After the case was given to the jury, one of the jurors asked the bailiff if they could find a verdict and let the court fix the punishment, and requested him to see the judge, to which the bailiff made no reply, nor did he see the judge; but he did tell the prosecuting attorney, who was shown to have been examining the law on the point. Nothing further occurred. Held, not such misconduct as to justify a reversal, as defendant could not have been prejudiced thereby. 4. Evidence of threats made by one Hiram Webb, son of the party assaulted, against the life of defendant, were excluded: Held, not to be error. No conspiracy having been shown, the threats of the son stand in the same relation as if made by a stranger. 5. On a conviction for an offense not capital, the record need not show the formal address of the judge asking the prisoner if he has anything to say why sentence should not be pronounced against him. State v. Ball, 27 Mo. 324. Affirmed. Opinion by HENRY, J.-State v. Stark.

PRACTICE - INJUNCTIONS-MOTIONS TO STRIKE OUT-COMPETENCY OF PARTIES AS WITNESSESRELIEF IN EQUITY-NOTICE.-1. The probate court, having the necessary jurisdiction, granted the injunction and ordered the clerk of the circuit court to issue the writ, for which reason it was contended that the writ was void: Held, the objection was without force, as the proceedings appealed from were had in the circuit court, and the initiatory steps were unimportant. 2. Parts of defendant's answer were stricken out as immaterial. The bill of exceptions did not show any exceptions to this action of the court; nor did the reeord proper show what parts were stricken out, as it was only described as being in brackets, and no brackets appeared in the record. Held, not subject to review. Penroe v. McIntyre, 29 Mo. 423. 3. The heirs of the grantor in the deeds in controversy were admitted as competent to prove the execution of the deed. The action was originally commenced by the ancestor, who subsequently died, and the heirs were substituted as parties. The grantee in this deed, who was an original party to the action, died after the first trial of the case. On these facts it was contended that the heirs of the grantor were not competent witnesses to prove the execution of the deed: Held, that as these heirs were competent witnesses at the time of the first trial, when the grantee was alive, the death of the grantee since that trial did not render them incompetent. They were not parties to the contract, and do not come within the letter or reason of the statute. The death of the grantor, their father, whereby they became parties to the action, did not disqualify them, nor did the death of the grantee. 4. The cestui que trust knew a year before the deed was made that a part of the land in the deed of trust was in the possession of and being improved by plaintiff's ancestor: Held, conceding such cestui que trust to have been a purchaser for value which is doubted, the possession was sufficient to put him upon inquiry. 5. Admitting plaintiff's deed to have been established, and that the cestui que trust had notice of it, it was contended that their title was a purely legal one, and as a sale under the deed of trust would convey no title, there were no grounds for equitable interference. Held, that a pur

chaser at the trustee's sale would obviously occupy a different position from the present defendant, and embarrassing questions might arise, the deed under which plaintiffs claim not being acknowledged or recorded. Besides, the contingency of the death of witnesses might render proof of the conveyance established in this case impracticable. It is one of the peculiar branches of equitable jurisdiction to anticipate such difficulties, to prevent future litigation and thus remove a cloud upon title. Vogler v. Montgomery, 54 Mo. 577; Harrington v. Utterback, 57 Mo. 519. Affirmed. Opinion by NAPTON, J. Martin v.

Jones.

GUARDIAN AND WARD-PURCHASE OF LAND BY GUARDIAN FOR WARD-FINAL SETTLEMENT OF FORMER ESTATE.-1. The guardian. at the request of his ward, and for his accommodation, purchased a tract of land at partition sale; had the deed made to the ward; gave his own note for the purchase money, which he finally paid. The ward took possession of the land, improved it, rented it out, tried to sell it and treated it as his own for five years, two of which were after his majority. In his final settlement, the guardian claimed credit for the amount of the purchase money and accrued interest, which the ward resisted on the ground that the relations existing between them rendered the transaction voidable. The probate and circuit courts allowed the credit. Held, that the credit was properly allowed. The case presented is not like those cited, in which the wards had sold, given to, or purchased from the guardian, and the guardian had thereby derived some advantage, and the ward had acted promptly on arriving at age. Here there was no sale, gift or purchase; and the guardian made no profit but acted in good faith for the benefit of the ward. 2. On the settlement, the ward offered to prove that the guardian had received $1,878.33 as administrator of the estate of the ward's father, which he had failed to account for in his settlements of that estate, or as curator of the ward's estate. The trial court rejected the evidence on the ground that the final settlement was conclusive. Held, erroneous. As to strangers, the settlement was conclusive; but as to the ward the curator was bound to collect his ward's share of the money in question. Reversed and remanded. Opinion by HENRY, J.-In re Wood.

COURT OF APPEALS OF KENTUCKY.

September, 1880.

STATUTE OF LIMITATION PROCEEDINGS FOR MANDAMUS SALARIES OF PUBLIC OFFICERS.-The appellee was elected Commonwealth attorney for the fourteenth judicial district in August, 1868, for a term of six years. During the year 1873, without any neglect of duty on his part, a Commonwealth attorney pro tempore was appointed by the circuit court of his district, and an allowance was made to the latter, which was certified to the auditor and paid, and the same was deducted from appellee's salary for that year. In June, 1880, appellee filed his petition in the fiscal court praying for a mandamus. The auditor pleaded the statute of limitations. The court sustained a demurrer to the answer, and awarded the writ, commanding the auditor to draw his warrant upon the treasurer for eighty dollars. The auditor has appealed. The attorney-general contends that the case fails within that clause of Gen. Stats., ch. 71, art. 3, sec. 2, which prescribes a limitation of

five years to "an action upon a liability created by statute." Counsel for appellee contend that this statute does not apply, because: 1. The proceeding for a mandamus is a motion and not an action, and, 2. The salaries of public officers are held by the officers of the Commonwealth as trustees. Held, that the word "action," as used in the statute of limitations, is not restricted in its signification to that which is technically an action, but includes all civil proceedings in courts of justice for the enforcement of legal or equitable rights, whether by action, suit or special proceedings. The statute applies to the case presented by the plaintiff, Appellee was entitled to his salary only because the statute gave it to him, and the duty of the auditor was also created by statute. Hence, this is a proceeding on a liability created by statute, and, unless as contended by appellee, the auditor is a trustee, appellant is not precluded from pleading the statute. That the auditor is not a trustee is quite clear. He is in a certain sense for the State, but certainly not for the creditors of the State, any more than an individual debtor is a trustee for his creditors. Wherefore the judgment is reversed and the cause remanded, with directions to overrule the demurrer to the answer. Opinion by COFER, C. J.— Auditor v. Halbert.

MISFEASANCE IN OFFICE-INTOXICATION.-Appellee was indicted for the offense of misfeasance in office, i. e., intoxication while engaged in the discharge of official duties as county judge. The indictment was based on sec.1 of an act entitled "an act to prevent intoxication of county officers in this Commonwealth," approved April 9, 1878, which reads as follows: "That it shall be deemed misfeasance in office for the judge of any county court, justice of the peace, etc., while engaged in the discharge of his official duties, to be in a state of intoxication produced by the use of spiritous, vinous or malt liquors." The only penalty denounced by the statute is removal from office. Held, that the Constitution having designated the offenses for which certain officers (of whom the county judge is one) may be removed from office, the Legislature has no power to prescribe removal from office as a penalty for offenses not so designated. Nor can it, by declaring that a given offense shall be deemed one of a class of offenses for which an officer may be removed, make it of that class and authorize or require the removal of an officer upon conviction of such offense. "Misfeasance in office," had at the time of the adoption of the Constitution, a definite and well understood legal meaning. It described an offense which consisted in the wrong-doing of an official act, and it is for the courts, and not the legislature, to decide what acts constitute the offense denounced by the Constitution; and if being in a state of intoxication did not constitute the offense without the aid of the statute, the statute is unconstitutional as to such of the officers named in it as are also named in the Constitution, sec. 36, art. 4. Misfeasance in office means the improper doing of an official act; and conduct, however immoral, which does not relate to the official action, constitutes no ground for an officer's removal. 1 J. J. Mar. 160. No complaint is made that appellee did not faithfully, honestly and correctly discharge all his duties as an officer. Judgment aflirmed. Opinion by COFER, C. J.-Com. v. Williams.

CURRENT TOPICS.

The admission of photograpic copies of documents has come to be allowed in the courts in many cases. A decision of the New York Court of Appeals in Hynes v. McDermott, decided last month, shows however that they are not admissible for all purposes. A witness was on the stand for the purpose of proving handwriting by comparison; but the original documents being in the possession of the person who controlled them, and who lived beyond the seas, and who refused to give them up, they had been photographed, and these copies were offered by which to make the comparison. The trial court refused to allow the comparison with the photographed handwriting, and this ruling was upheld on appeal. There was no proof" said Folger, C. J., "of the details of the process by which they were taken, nor as to the accuracy of the work. We think that a comparison of a signature in dispute with such photographic copies of other writings, for the purpose of allowing an opinion from an expert as to the character of the signature as real or feigned, when the originals from which the copies are made are not brought before the jury. and may not be shown to other witnesses, ought not to be permitted. Photographs that have been taken of persons found dead have been admitted in evidence in this State in aid of other proofs of identity, but not alone. They were characterized as slight evidence in addition to other and more reliable testimony. Ruloff v. People, 45 N. Y. 213. A photographic picture was more unreservedly admitted as evidence upon the question of identity of person in Udderzook v. Commonwealth, 76 Pa. St. 340; and in another case, when the genuine signature and the disputed signature were both brought into court, magnified photographic copies of each, together with the originals, were submitted to the inspection of the jury, and it was held not to have been error (Marcy v. Barnes, 16 Gray, 162); but copies of letters in a letter book, produced by impress or by a machine, have been rejected. Conner v. Eastman,1 Cush. 189. It would be carrying the matter much farther to permit an expert to compare photographic copies of signatures, and therefrom to testify as to the genuineness of a disputed signature. We may recognize that the photographic process is ruled by general laws that are uniform in their operation, and that, almost without exception, a likeness is brought forth of the object set forth before the camera. Still, somewhat for exact likeness will depend upon the adjustment of the machinery, upon the atmospheric conditions and the skill of the manipulator; and in so delicate a matter as the reaching of judicial results by the comparison of writings through the testimony of experts, it ought to be required that the witness should exercise his acumen upon the thing itself which is to be the basis of his judgment; and still more, that the thing itself should be at hand to be put under the eye of other witnesses for the trial upon it of their skill. The certainty of expert testimony in these cases is not so well assured as that we can afford to let in the haz ard of error or differences in copying, though it be done by howsoever a scientific process; besides, as before said, there was no proof here of the manner and exactness of the photgraphic method used." The general rule as to comparison appears to be that the expert in handwriting, when speaking as a witness, ouly from a comparison of handwriting-that is, with two pieces of it in juxtaposition under his eyeshould have before him in court the writing to which he testifies and the writings from which he testifies; else there can be no intelligent examination of him either in chief or cross, nor can there be fair means of

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