« AnteriorContinuar »
by reason of prejudice against the defendant, the coroner of the county was the only officer designated by the statute to act in this behalf in the place of said Sheriff. Secs. 3893, 3894, 3895, Rev. Stat. 1879.
This motion was overruled, and this action of the court is assigned and urged here as error.
At common law, the coroner was authorized to perform the duties devolved on the sheriff in summoning a jury, whenever the sheriff was incompetent to act, and in this event the process of the court was directed to the coroner instead of the sheriff. If it was suggested or made to appear that the coroner was also disqualified, then the court appointed persons of its own nomination, called elisors, to act in that bebalf.
Said elisors were particular officers of the court, acting under its special authority.
Sec. 3894, Rev. Stat., provides that "every coroner within the county for which he is elected or appointed shall serve and execute all writs and precepts and perform all other duties of the sheriff, when the sheriff shall be a party, or when it shall appear to the court out of which process sball issue,or to the clerk thereof in vacation, that the sheriff is interested in the suit related to or prejudiced against any party thereto, or in any wise disqualified from action."
Sec. 3895 authorizes the coroner to perform the duties of the office of sheriff whenever the same shall be vacant by death or otherwise, until another sheriff shall be appointed and qualified.
In the case at bar, it was not made to appear, or even suggested, that the coroner of said county was under any disability to act in the matter of summoning the jury, and, under this state of facts,the sheriff being thus disqualified and removed, the coroner was the proper officer, both at common law and under the statute, to act in that behalf.
We have been referred to a class of cases bolding, in effect, that the capacity of an officer, such as a sheriff, duly commissioned and acting as such cannot be inquired into collaterally upon a motion to quash the venire; but these cases are, we think, not applicable.
The plain purport of the statute is to substitute the coroner for the sheriff, in respect to the duties of such officer, whenever the contingencies contemplated arise; and where the law thus devolves the performance of such duties upon a designated officer, they are not authorized to be performed by anotber officer, or any different person, without, at least, some suggestion of disability on his part, except in the cases and upon the terms provided in section 3893, Rev. Stat.
In executing the special venire, the officer exercises the power of selection confided to the sheriff at common law, and the character of the officer performing this duty is important and material, and if such duty is performed by an officer not authorized, this is, we think, a good ground of challege to the array. Thompson and Merriam on Juries, p 115; State v. Newhouse, 29 La. p 824.
As one of the contingencies contemplated by the statute had arisen, and the court upon that ground had removed the sheriff, the special venire should, we think, have been directed to the coroner of the county, as provided by the statute, in the absence at least of any suggestion of inability on his part for any cause to act in that behalf. Another error complained of is, that the defendant was not present in court whilst the jury was being innpaneled and examined as to their qualifications to sit as jurors in the cause. The facts in this behalf, as the same appear in the record before us, are as follows:
The defendant was not in court, except by his counsel, when the venire facias was issued, nor when it was returned by said James, nor when the jury was examined on the voir dire, nor at any time during the proceedings in said cause, till the jury was called to try the same on the 8th, day of February 1884, at one o'clock p. m., which was four days after the venire was issued, and forty-eight hours after said jnry was examined on the voir dire; but at the expiration of the fortyeight hours from the time the copy of the list of jurors was served on the defendant, and before the State or the defendant was required to make challenges, the said panel of jurors being present in the court, and the defendant in person also being present, and his attorney also, the court then informed defendant and his counsel that they now had an opportunity to make such further examination of the jurors as they migbt deem proper; whereupon defendant's attorney said they would then demand an additional forty-eight hours before making their challenges, which the court refused to give, and defendant's counsel thereupon declined to make such further examination of the jurors. Before exercising his rigbt of peremptory challenges defendant filed his motion to quash the panel upon said ground of his absence as aforesaid, which the court overruled, and defendant excepted. The question thus presented involves a construction, in connection with this state of facts, of section 1891, Rev. Stat., wbich provides that: “No person indicted for a felony can be tried unless he be personally present during the trial, *** that in all cases the verdict of the jury may be received by the court and entered upon the records thereof in the absence of the defendant, when such absence on his part is willful and voluntary; *** and that when the record in the appellate court shows tbat defendant was present at the commencement or any other stage of the trial, it should be presumed, in the • absence of all evidence in the record to the contrary, that he was present during the whole trial."
At common law, if the accused was in such cases absent, either in person or by escape, there was, by reason of his said absence, a want of jurisdiction over the person, and the court could not proceed with the trial or receive the verdict or give judgment. Cooleys Const. Lim. p. 390.
But, under the statute, if the absence of the de
fendant is willful and voluntary, the court is authorized to receive and enter the verdict, and this by the express terms of the statute, the only action the court is authorized to take “during the trial," where the same is for a felony, unless the accused is personally present."
In other words, the statute means, we think, that in all cases of felony it is necessary that the defendant should be personally present in court at each and every material step taken during the trial up to the time when the verdict is to be received, when the particular steps mentioned in the statute, of receiving and entering the verdict may be taken during his absence, if the same is willful and voluntary.
Impaneling and examining the jury is, we think, manifestly a material, substantive and important step “during the trial,” within the meaning of this section. As was said in the case of Hopt v. People, 18 Cent. L. J. p. 271, which involves, we think, the same principle and question as the one at bar, “the prisoner is entitled to an impartial jury composed of persons not disqualiti d by the statute, and his life and liberty may depend upon aid which his presence he may give to counsel and court in the selection of jurors. The necessity of defense may not be met by the presence of his counsel only. For every purpose involved in the requirement that defendant shall be personally present where the indictment is for a felony, the trial commences at least from the time when the work of impaneling a jury begins."
In the case at bar, the accused was out on bond and not in prison or custody; but this, we think, under the statute, makes no difference, even if we must infer, as suggested by counsel, that his said absence was voluntary on his part. As already said, if his absence is willful and voluntary the verdict may be received and entered of record, for the reason that these steps during the trial are expressly authorized by the statute, but the expression of authority thereon to do these particular acts must be held to exclude all authority to take any other step "during the trial,” unless the accused is personally present. This requirement of the statute is one he cannot waive. It is not made for his benefit only, and his rights are not all that is involved or contemplated in said enactment. In the case already cited, the court further says: “We are of the opinion that it is not within the power of the accused or his counsel to dispense with the statutory requirements as to bis personal presence. The argument to the contrary proceeds upon the ground, that he alone is concerned as to which he may be deprived of, life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well of the relation which the accused holds to the public as of the end of human punishment ***. The public has an interest in his life and liberty. Neither can be lawfully taken excep' in the mode prescribed by law. That which the law makes essential in pro
ceedings involving the deprivation of life or liberty can not be dispensed with or affected by his consent of the accused, much less by his mere failure when on trial and in custody to object to unauthorized methods. *** Such being the relation which the citizen holds to the public and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life is involved in a prosecution for felony that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the constitution."
To the same effect is the line of cases to which we have been referred, decided in the supreme court of Arkansas. See Osborne v. State, 24 Ark. 629; Brown v. State, 24 Ark. 620; and earlier cases in same court cited in cases just mentioned. But it is contended for the State that this omission is cured by the subsequent offer of the trial court when the case was called for the purpose of making peremptory challeng and proceeding with the trial, to allow the accused to then examine the jury as to their qualifications, and that as he declined to do so at this time none of his substantial rights were affected prejudicially.
But this view is, we think, not satisfactory for a variety of reasons. In the first place, examine the jurors when the accused was not personally present, was not merely an irregularity in the mode and process of impaneling the jury, as to which a large discretion is allowed the trial court, and whose action it is said will not as to such irregularities be reviewed, unless some actual prejudice to the defendant is made to appear; but on the contrary, the examination conducted in his absence, as we have seen, was a breach and infringement of the statute requiring the accused to be personally present at this step during the trial, and this in and of itself, and as a matter of law, sufficiently shows the prejudice, or, in other words, prejudice to the rights of the accused, is under such circumstances, presumed, without any showing in that behalf.
The court upon discovering the absence of the accused during said examination, doubtless thought it could give the defendant the full benefit of his substantial rights by permitting bim to then and there examine the jurors as to their qualifications, without discharging the entire panel, or without allowing any further period of time as demanded by defendant, before requiring the exercise by the parties of their peremptory challenges.
But the examinations of jurors as to their qualifications as such does not, we think, consist altogether or exclusively in their examination in said respect by the accused, or his counsel, which is the extent of said offer so made by the court. Their examination by the prosecution attorney, or by the court, or both, as to their qualifications under the statute, and such further examination, if any, became necessary or proper in the examination of the case, as to other cause of disqualification than those mentioned in the statute, and such other examination made by the State's attorney, if any, with a view to the exercise of his peremptory challenges, all constitute a part, or may do so, of the examination and trial of the jurors in this behalf. The opportunities for observing the conduct and bearing and manner of the juror throughout the whole examination, as well that by the State as that on his own behalf, may be of great value to the accused.
The accused has opportunities thus afforded for inquiry and for comparison, and for inspection of the jurors personally as they thus undergo the examination as a whole. The practice at common law required the examination of the jurors singly, so that the accused should not be confused “by looking upon a multitude of faces at once,” but might have opportunity to scan the countenance and observe the demeanor of each separately. But whether this practice prevails or not, it is the intention and aim of the law to provide liberal facilities and opportunities for securing a fair and impartial jury.
Even if the time and facilities intended to be provided by the law for the selection of the jury were not in fact abridged by this action of the court, there has been an infringement of the statutory requirement that the accused should be personally present during the trial,ior the jury had been in part examined touching their qualification during his absence. This was, we think, a ground of challenge to the array, and as the defendant was insisting upon his rigbt under the statute to be personally present during this part of the trial, bis said motion should have been sustained upon this ground.
For the ressons above stated, we are of the opinion that the trial court erred in overruling defendant's motion, above complained of, and for that reason its judgment is reversed and the cause remanded for further proceedings, in conformity thereto.
All concur, except HENRY, C. J. not sitting.
who could have lawfully executed it. The rule is very clear that it is essential not only that legal process shall be issued by competent authority and for a lawful purpose, but must also be directed to the proper official person who alone can perform the duty either himself or in proper cases by his lawful deputy. And the rule applies to every variety of precept or process issuing from a court in civil, and a fortiori, in criminal cases.
In the principal case, therefore, it is very obvious that the trial court exceeded its authority in passing over the coroner and issuing its precept to a private person, it not appearing that the coroner was disqualified or unable to discharge the duty which devolved upon him by reason of the disqualification of the sheriff.
If, therefore, the trial court erred in issuing the venire to an unsuitable person, it is manifest that the panel should have been quashed in accordance with the motion of the defendant, and that the jury so summoned by that private person in accordance with the void process so issued was simply no jury at all.
The law of Missouri provides that no person indicted for a felony can be tried unless he is personally present during the trial. To this rule some exceptions are made by the statute as where his absence is willful, but the rule itself is in full accord with the general law prevalent elsewhere. The prisoner must be present at the arraignment, and indeed throughout the triai. “ In indictments and informations," said Eyre, J., " no judgment can be given unless the defendant
In cases of misdemeanor, it is true, the rule is less rigid, but in felony cases the personal presence of the defendant is required, even when minor and incidental matters are under consideration. A motion for a change of venue may be made and decided in the defendant's absence, in Missouri;? in Alabama such an order cannot be made unless the defendant is present. The court says: “ This right” (to be heard by himself and counsel)" is without any limit and without any exception when the step is not one of mere discretion in the court, such as a motion for a continuance, when the accused fails to be present, and orders of a like character. This is a constitutional provision in his favor and cannot be disregarded by the court."9 And, in Mississippi, it has been held that uponja motion to quash an indictment for felony, the record must show affirmatively the personal presence of the defendant.10
In some States it has been held that the counsel of the defendant cannot waive his right to be present during his trial or at the rendition of the verdict for a felony;11 and, further, that the right of the defendant to be present on the occasion is “inherent and inalienable," or, in other words, that he himself cannot waive that right. There is a similar ruling in Alabama.12 In a Virginia case, the language is very positive on this subject: "No principle is supposed to be better settled, and, in all criminal trials of the grade of felony, more rigidly adhered to than in all such trials the prisoner has a right to be present in every stage from the arraignment to the rendition of the verdict. It is held to be a right of whlch he cannot be deprived and which
NOTE.-The proper practice in summoning juries in case of the incompetency of the sheriff, duly ascertained by the court, is at common law very clearly settled, and the Missouri statute in effect merely reproduecs and restates the rule. The only ministerial duty of the coroner is to act in proper cases as the substitute, not the deputy, of the sheriff, and to execute all auch process as it would have been the duty of the sheriff to execute if he were competent to do so. The coroner cannot execute process directed to the sheriff.1 Upon the same principle an ex-sheriff cannot act upon a writ directed generally to "the sheriff,” 2 or by name to his successor,3 although the subject-matter and the character of the process be such that it might well have been directed to the ex-officer,
41 Rev. Stat. Mo. (1879) $ 1891.
9 State v. Hughes, 2 Ala. 102; Henry v. State, 33 Ala. 102; Hall. v. State, 40 Ala. 698.
10 Long v. State. 52 Miss. 23. See also Stubbs v. State, 49 Miss. 724 ; Scaggs' Case, 8 Smed. & U. 726; Price's Case, 36 Miss. 512.
11 Price v, Commonwealth, 18 Penn. St. 103. 12 Waller v. State, 40 Ala. 325.
he cannot waive. So imperative is the rule that no part of the trial can proceed without him.” 13 In Tennessee, 14 the court ays: “In criminal cases of the grade of felony
he (the accused) has the right to be present, and must be present during the trial and until the final judgment.” In Georgia, it is said that it is the legal right and privilege of the defendant to be present in court, and he must be considered as “standing on all his legal rights, waiving none of them.” 15 In Wisconsin, the rule is somewhat less rigid than hereinbefore stated. It is conceded that the defendant in felony cases has a right to be present throughout the trial, but it is held that he may waive that right, either explicitly or by his willful absence. The court argues, that as he may waive any trial at all by pleading guilty he may waive, as well as the greater, any minor right that he may possess.16 In Ohio, it is held that it is not error to permit a verdict to be rendered in the absence of defendant, unless that absence is caused by imprisonment or other improper means. 17 And in Indiana the court decides that the constitutional and legal right of the prisoner to be present throughout the trial confers a privilege which he may waive. The court says: "He can waive a trial altogether, and plead guilty. He can waive the constituional and legal privileges of trial by jury. 13
Upon a review of the whole subject, it is manifest to us that the weight of authority. is with the supreme court of Missouri in the principal case.—[EDITOR CENT. L. J.
13 Jackson v. Commonwealth, 19 Gratt. 656, 668, 664.
14 Andrews v. State, 2 Sneed, 550. See also Witt v. State, 6 Cold. 11.
15 Wade v. State, 12 Ga. 25. See also People v. Perkins, 1 Wend. 91; Rex v. Streek, 2 Carr. & P. 413.
16 Hill v. State, 17 Wis. 675.
17 Wilson v. State, 2 Ohio St. 319. See also Rose v. Ohio, 20 Ohio, 33.
18 McCorkle v. State, 14 Ind. 39.
nothing for his services. On December 9, 1884, defendant made to F. J. Mackey a written application, which, so far as here important, is as follows: "I * hereby apply to F. J. Mackey to act as my agent to procure for me a loan of $367.50, for one month, with interest at ten per cent. per annum, to be secured hy chattel mortgage on personal property owned by me, and described in a certain chattel mortgage executed by me, and bearing even date herewith; and I agree to pay same F. J. Mackey, for acting as my agent in procuring such loan, and for examining said property, and drawing the necessary papers to perfect such loan, if he is able to procure the same, the sum of $17.50. He is to charge me nothing for examining said property, or for his services of any kind, unless he procures said loan for me."
An agent or broker who undertakes to procure a loan for a borrower of money, may charge and receive from him a reasonable sum for commissions, as well as for services in the examination of the property by which the debt was secured, and, although such broker be also the agent of the lender to lend the money, the commissions, etc., so received by the agent cannot be regarded, as against the lender, as an usurious addition to the interest, unless it appears that the sum so charged was paid to him by such broker.
Pursuant of the application, F.J. Mackey made a loan to defendant, taking his note, payable to plaintiff, for $367.50, and as security for the same a chattel mortgage upon furniture and fixtures belonging, as we infer, mostly, if not altogether, to a Turkish bath establishment; banding to plaintiff $350 of said sum in casb, and retaining for his own personal benefit $17.50. The court finds that “the said F. J. Mackey charged the defendant a commission of $17.50 for procuring the loan, examining the property on which the security was to be given, drawing papers and i he like, which commission it was agreed was to go to, and which did go to, the said F.J. Mackey personally, and none of it went to plaintiff; nor did he (the plaintiff) know anything about it, or how the said F. J. Mackey remunerated himself for expense and time in his business as a loan broker, the said plaiutiff never at any time receiving over 10 per cent. on his loans.”
Upon the foregoing state of facts we agree with the trial court that the note and mortgage are not shown to be usurious. The sum of $17.50 does not appear to have been taken for the loan and forbearance of the $350, but as a commission for services performed for the borrower. There is no evidence and no finding by the trial court that the commission was an excessive or unreasonable charge for the services performed for the bor
See Bonus v. Trefz, 2 Atl. Rep. 369. No part of it went to the plaintiff—the lender of the money—but it was not contracted for, charged, and taken by F. J. Mackey for his own exclusive
These facts appear to bring the case within Acheson v. Chase, 28 Minn. 211, s. C., 9 N. W. Rep. 734, and to distinguish it from Avery v. Creigh, ante, 154, (April term, 1886).
VANDERBURGH, J. (concurring): I agree that, upon the facts found, the case may fall within the rule laid down in Acheson v. Chase. At the same time it seems to me that it leaves the door open for a practical evasion of the usury law in many cases. But it would be better, undoubtedly, that a rule which has been recognized and acted on should be changed by legislation, which would, of course, relate to future contracts only, than
BERRY, J., delivered the opinion of the court:
The plaintiff, Safford Mackey, who resides in Wisconsin, was in the habit of sending money to F. J. Mackey, a loan broker doing business in St. Paul and Minneapolis, to be loaned out by him, and under his direction, at ten per cent. interest. The loans were made in plaintiff's name, and for him, but plaintiff paid F. J. Mackey
that an attempt should now be made to change it by the courts. I therefore concur in the opinion.
Nore.-Where one person authorizes another to act as his agent in securing a loan and contracts to pay such agent for his services what they are reasonably worth, or a bonus in addition thereto, and such person, acting solely as the agent of the borrower, secures the loan and exacts from the borrower a sum sufficient to make the total rate of interest paid more than the highest legal rate, the contract with the lender is not usurous when the amount to be received by him is within the legal rate, and he does not share in the amount paid the agent.)
A contract by which the borrower is to pay his agent for his services what they are reasonably worth, though in addition to the highest legal rate of interest to be paid the lender, is not usurious. And that the borrower's agent divides his commission with the lender's agent will not, it has been said, taint the lender's contract with usury.3 In one case it was held that the fact of the borrower's agent having divided his commission with the lender would not necessarily have such an effect.4
It has been held that, where the lender or his agent is put to expense in collecting the means for making the loan or in traveling to examine the security, and the borrower agrees to pay for such services in addition to the highest legal rate of interest on the loan, the taking of a fee for such services, when reasonable, will not render the contract usurlous.5
Whether the taking from the borrower by the lender's agent of a commission or bonus in addition to the highest legal rate of interest to be paid the lender will taint the transaction with usury, is not very well settled. If, at the time of making the loan, the lender has knowledge of the bonus paid his agent, doubtless the transaction should be declared usurious. But it is in cases where the lender's agent, without the knowledge or authority of his principal, receives such a bonus, of which the lender receives no part, that the greatest contrariety of opinion prevails. In Palmer v. Call,? McCrary, J., said: “It is well settled that to make a loan usurious there must be an intent on the part of the lender to take more than the legal rate of interest.
Doubtless in general the intent of an agent, acting within the scope of his authority, may be imputed to the principal. But it is settled beyond question, that if any agent in good faith makes a loan for another and without the knowledge or authority of his principal and for the agent's own benefit exacts more than legal interest, the loan is not thereby rendered usurious. In such case the law does not impute the knowledge and the intent of the agent to the princi
pal.” The above opinion seems to be the one prevailing. 8
On the other hand, the supreme court of Nebraska, in New England Mtge. Security Co. v. Hendrickson, said. “It is said, however, that the principal is not bound by the acts of the agent when he exceeds his authority—that is, when he charges more than lawful interest or retains a portion of the principal, as in the case as a bonus. It is a sufficient answer to this objection to say that the agent is selected by the principal for the purpose of loaning its funds. The principal may require such security and impose such conditions upon such agent as it sees fit, and has the means at hand to protect itself from the illegal acts of its own employer."
And, again, in Cheney v. Eberhardt,10 the same court declared: “We hold it to be a salutary rule, and one that should be rigidly applied in all proper cases, that where one who is intrusted with the business of loan. ing money exacts for its use, either diractly or indirectly, by whatsoever shift or device, interest in excess of the rate permitted by statute, the transaaction is usurious, and will be judged accordingly.”
The latter doctrine appears to have found favor with other courts, though it cannot be aaid to prevail.11
Where it is the duty of the agent to examine the security and title, and he is intrusted with the interests of the lender in the transaction, and is responsible to the lender for mistakes, he is the agent of the lender; and when he secures for his principal the highest legal rate of interest with the understanding that he is to look elsewhere for compensation, the lender should be held bound to know of the acceptance by his agent of a bonus and the loan be declared usurious;12 and a mere recital in the application for a loan that the agent acts as the agent of the borrower, and not of the lender, will not change the real character of the transaction. 13
In applying the doctrine that a lender is bound to know whether his agent accepts a bonus in addition to legal interest, a distinction has been made in some eases between a special agent engaged in making a particular loan, for whose action outside his authority the principal is not liable, and a general agent for the purpose of making loans, for whose actions in taking more than a legal rate of interest the loan will be declared usurious.14
CHAS. A. ROBBINS. LINCOLN, Neb. 8 Rogers v. Buckingham, 33 Conn., 81; Payne v. New. comb, 100 Ill. 611; Smith v. Wolf, 55 Iowa, 555; Gokey y. Knapp, 44 Id. 32; Brigham v. Myers, 51 Id. 397; Acheson v. Chase, 28 Minn. 211; Strait v. Frary, 33 Id. 194; Jordan v. Humphrey, 31 Id. 495; Muir v. Newark Savings Inst., 16 N. J. Eq., 537; Conover v. Van Mater, 18 Id. 481; Condit v. Baldwin, 21 N. Y. 219; Bell v. Day, 32 Id. 165; Estevez V. Purdy, 66 Id. 447; Guardian Mut. Life Ins. Co. v. Kashaw, Id. 544; Van Wyck v. Watters, 81 Id. 352; Algur v. Gardner, 54 Id. 360; Barretto v. Snowden, 5 Wend., 181; North v. Sergeant, 33 Barb. 350; Fellows y. Commissioners, 36 Id. 655; Elmer v. Oakley, 3; Lansing 34; Cog. ter v. Dilworth, 8 Cow., 299; Hopkins v. Baker, 2 P. & H., (Va.) 110; Dagnell v. Wigley 11, East. 43; Solarte v. Mel. ville, 7 B. & C., 429; Tyler on Usury, 156 et seq. 9 13 Neb. 157.
10 8 Neb. 423. 11 Austin v. Harrington, 28 Vt., 130; Phiio v. Butterfield, 3 Neb. 256; Cheney v. White, 5 Id 261; Cheney v. Wood. ruff, 6 Id. 151; Courtuay v. Price, 12 Id. 188; Olmstead v. New England, Mtge. Security Co., 11 Id, 487. And see Payne v. Newcomb, 100, 11. 611.
12 Payne v. Newcomb, 100, Ill. 611.
13 Olmstead v. New England Mtge. Security Co., 11 Neb. 487.
14 Baxter v. Buck, 10 Vt. 548; Austin v. Harrington, 28 Id. 130. And see Rogers v. Buckingham, 33, Conn. 81.
1 Beadle v. Munson, 30 Conn. 175; Hutchinson v. Hog. mer, 2 Id. 341; Eddy v. Badger, 8 Bissell, 238; Wyllis v. Ault, 46 Ia. 46; Dickey v. Brown, 56 Id. 426; Ballinger v. Bowland, 87 Ill. 513; Philo v. Butterfield, 3 Neb. 256; Cheney v. Woodruff, 6 Id. 151; Gray v. Blareom, 29 N. J. Eq. 454; Nichols v. Osborn, 3 Atl. Rep. 155; Fisher v. Porter, 23 Fed. Rep. 162,
2 Wyllis v. Ault, 46 Ia. 46. 3 Dickey v. Brown, 56 Ia. 426; Jordan v. Humphrey, 31 Minn. 495.
4 Eslava v. Crampton, 61 Ala. 507. 8 Smith v. Wolf, 55 Ia. 555; Acheson v. Chase, 28 Minn 211; Thurston v. Cornell, 38 N. Y. 281; Eaton v. Alger, 2 Keyes, 41; Kent v Phelps. 2 Day, 483.
6 Payne v. Newcomb, 100 Ill. 611; Gokey v. Knapp, 44 Ia. 32; Demarest v. VanDenberg, Atl. Rep. 69 Bonus v. Trefz, 2 Id. 369. 7 2 McCrary C. C. 522; 8. C., 7 Fed. Rep. 737.