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say that it seems to be fully authorized by sections 21 and 25 of the general railroad act, and the cases of Lansing v. Smith, 8 Cow. 140; s. c. on appeal, 4 Wend. 9; Gould v. Hudson River R. Co., 6 N. Y. 524; and In re New York Cent. & H.R.R. Co., 77 N. Y. 248.

It is also proper to say tbat the enactment of congress, during its last session, of a bill authorizing the contracting parties hereinbefore referred to to build a railroad bridge or viaduct across Arthur's kill, has apparently removed any legal objection to such a structure, and rendered it quite certain that the connections contracted for between such parties will be made, and the property sought to be obtained by this proceeding devoted to the purposes alleged in the petition.

The order should be affirmed, with costs.
All concur'except MILLER, J., absent.

to deviate from its present bed line, to subserve private interests, as well as its own.5

The Supreme Court of the United States has held that a steam grist mill is not a work of internal improvement, within the statute of Nebraska, so as to authorize the issuance of county bonds in its aid, nor a fortiori the condemnation of private property to subserve its interest. A wagon bridge across a river is held by the Supreme Court of the United States to be so far a public work as to authorize, under the Nebraska statute, the levy of a tax for its construction. And it may safely be added that the right of eminent domain can only be exercised in cases in which the purpose is so manifestly for the public benefit that, under appropriate circumstances, a tax might be levied or county or municipal bonds issued in aid of the enterprise.-[ED. CENT. L, J.

Chicago, etc. Co. v. Town of Lake, 71 Ill. 333; South Chicago, etc. Co. v. Dix, 109 III. 237; Dunlap v. Mount Sterling, 14 Ill. 251; St. Louis, etc. Co. v. Trustees, 43 III. 306; Chicago, etc. Co. v. Dunbar, 100 Ill. 129; Smith v. Chicago, etc. Co., 105 Ill. 511; In re New York Cent., etc. Co., 77 N. Y. 218; Eldridge v. Smith, 34 Vt. 384; Bradley v. New York, etc. Co., 21 Conn. 305.

5 Currier v. Marietta, etc. Co., 11 Ohio St. 228; Young v. McKenzie, 3 Ga. 44; Buffalo v. Brainard, 9 N. Y. 103.

6 Osborne v. County of Adams, 106 U. S. 181; 8. C, 1 Sup. Ct. Rep. 168; 8. C. (on rehearing), 3 s. C. Rep. 150. See also Township of Burlington v. Beasley, 94 U. S. 310.

7 United States v. County of Dodge, 3 S. Rep. 590.



Supreme Court of Iowa, October 27, 1886.

NOTE.-It will be observed that, in the principal case, the court excluded from its consideration, as not within the scope of the orders made in the case, a number of interesting questions, and confined itself to the question whether, under the right of eminent domain, a railroad company could take land not required for present use, but supposed to be essential to the prospective future exercise of its franchise.

It is very fully settled that, neither the State nor any corporation under its authority, can, by virtue of the right of eminent domain, take private property for any other than a public use. The question naturally arises: What is a public use? In California, it was held last April,that to take water to supply"farming neighborhoods” (for irrigation purposes) was a public use, for which the right of eminent domain might well be exercised. This ruling, it will be remembered, agitated the Pacific slope all last summer with the vehemence of an average earthquake. It would hardly seem to be within the rule to invade the property of private persons, in order that other private persons might raise crops on their private property, but the peculiar climate of the country will probably justify the ruling. In an earlier case, in the same State, it is held, upon better reason, that private property may be taken under the right of eminent domain to supply with water the inhabitants of an incorporated city.8

In Illinois, it is held that the right of eminent domain cannot be exercised for a branch railroad to the works of a private company, although the road is intended as a feeder to the public railroad. The court says that the right to condemn lands for public purposes is legislative, and the only judicial function which the courts can exercise in the matter, where the power has been delegated to a corporation, is to prevent its abuse, and regards it as a manifest abuse of the power to condemn lands in order to build railroads to private industrial establishments, and this, although the interests of the corporation would be subserved thereby and the volume of its business increased. That fact will not authorize a railroad thus

1. In a civil action for damages for an assault, the record of the conviction of the defendant for the same assault, upon criminal process, is admissible to prove the fact of the assault.

2. The explanation of the defendant upon pleading "guilty” before the justice is not part of the justice's record nor of the res gesta, and is inadmissible.

3. In such a case matters in aggravation, as of the mode, place, time, or severity of the assault, may be giyen in evidence by the plaintiff.

4. A jury may be properly instructed that, in ad. dition to compensatory damages, they may, if they find that the defendant was actuated by malice, award to the plaintiff vindictive damages.

1 Cole v. City of La Grange, 5 S. C. Rep. 416; St. Louis Co. Ct. v. Griswold, 58 Mo. 175, 193; Agawam v. Hamp. den, 130 Mass. 528, 534; City of Los Angelos y. Waldron, 8 Pac. Rep. 890.

2 Lux v. Haggin, 10 Pac. Rep. 674.

8 Lake Pleasant, etc. Co. v. Contra Costa, etc. Co., 8 Pac. Rep. 501.

4 Chicago, etc. Co. v. Wiltse, 6 V. E. Rep. 49. See also

Action for damages for assault and battery.

The facts appear sufficiently in the opinion of the court.

REED, J., delivered the opinion of the court:

1. Defendant was prosecuted criminally for the assault and battery charged in the petition. He pleaded guilty, and judgment imposing a fine was entered against him. On the trial of this cause in the district court plaintiff offered in evidence the records of defendant's plea in the criminal case. Defendant objected to the introduction of

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the record, on the ground of irrelevancy and ineompetency; and on the cross-examination of the justice of the peace, who was sworn for the purpose of identifying the record, he sought to prove an explanatory statement made by bim when he entered the plea. His objection to the record was overruled, and on plaintiff 's objection the evidence of said statement was excluded. We think these rulings are correct. Defendant's plea of guilty was an admission by him that he had committed the assault and battery charged in the information. That such admission was admissible against him on the trial of this cause cannot be doubted. The entry in the docket of the justice was the judicial record of the plea made at the time it was entered, and was competent evidence to prove the plea. Defendant was not entitled to prove his statement with reference to the transaction made when he entered his plea. The plea was an unqualified admission that he was guilty of the offense charged. No accompanying statement or explanation could change its character in that respect. If there were any circumstances of mitigation in the transaction, his statement at that time, with reference to them, would no more be competent than his statement at other times would have been. The case in this respect does not fall within the rule prescribed by section 3650 of the Code, which provides that “when part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other." The statement in question was no part of the plea of guilty, and was clearly not admissible as explana

fect, that if they found for plaintiff they should award him such sum as compensatory damages as they believed, from the evidence, would be a just compensation to bim for the physical and mental pain be had suffered in consequence of the assault, and for the insult and indignity he had been subjected to, and the shame and humiliation he had suffered; and that, if the assault was maliciously committed, they might, in addition to the compensatory damages, award a sum as vindictive or punitory damages. And the instructions told the jury that damages of the latter class were awarded by way of punishment for the wrongful act committed, and for the purpose of restraining wrong-doers from a repetition of like wrongs; and that the amount which should be awarded for those purposes was left very largely to their sound discretion. Counsel for appellant takes exception to these instructions. It seems to us, however, that his argument is in the nature of a criticism of the language of the charge, rather than an attempt to refute the real doctrine expressed in it. It may be that the district court used a redundancy of words to express the thoughts intended to be expressed; but, when fairly considered, the instructions expressed no more than is stated above as their effect. The doctrines embodied in them were approved by this court in Hendrickson v. Hingsburg, 21 Iowa, 379, and Ward v. Ward, 41 Iowa, 686. Affirmed.

tory of it.

2. The transaction in question took place in the lower hall of the court house. Plaintiff was permitted, against defendant's objection, to prove that the circuit court was in session at the time, in the court-room, which is in the second story of the building, and that a great number of people from different parts of the country were in the court-room. The parties were entitled to prove all the circumstances surrounding and attending the transaction. The assault was not committed in the immmediate presence of the court, and it does not appear that either the court, or the people in the court-room, were disturbed by it. The fact, however, that it was committed in a public place, and under such circumstances that the officers of the court and the people in the room would soon hear of the transaction, tended to aggravate the offense. An insult or indignity which is suffered in the presence of others is more humiliating than the same wrong would be if perpetrated in private. If it is perpetrated under such circumstances that it must soon become known to many, it may not be as degrading as it would have been if perpetrated in their immediate presence; but it is certainly more so than a 'like offense committed under circumstances of greater privacy would be. The evidence was properly admitted.

3. The district court instructed the jury, in ef

NOTE.—This case presents two questions, one of which is so clear that it can hardly be called a question at all. It is manifest that if a defendant in pleading guilty can add to his plea, and make part of the record, statements tending to exculpate him, and which would be admissible in a subsequent proceeding between him and the prosecutor, he can make evidence for himself to an indefinite extent. The ruling of the court that the plea of guilty was a full response to the charge made in the information, and that nothing further was admissible as part of the record in the criminal case is manifestly correct.

The other question relates to the measure of damages. It is well established law that in all actions for torts exemplary damages may be awarded, and to that end matters of aggravation may be given in evidence.1 “They are given in enhancement *** of the ordinary damages on acccount of the bad spirit and wrong intention of the defendant.2 In Illinois, the causes justifying such damages are held to be malice,wilfulness, wantonness or corrupt motives. And there need not be shown actual malice. Such damages may be awarded when there is violence, oppression and wanton recklessness. “Criminal indifference " has been held sufficient cause for such damages. There must be some wrong motive inducing the act complained

1 Hawes v. Knowles, 114 Mass., Mass. 518.

2 Headley v. Watson, 45 Vt. 289; McWilliams v. Bragg, 3 Wis. 424.

3 Clevenger v. Dunaway 84 III. 367; Stillwell v. Barrett, 60 III. 210; Cutler v. Smith, 57 Ill. 252; Smalley v. Smalley, 81 m. 70.

4 Graham v. Pacific R. R. Co., 66 Mo. 536; Raynor v. Nims, 37 Mich. 34.

5 Baltimore, etc. Co. v. Boone, 45 Md. 344.

of. But it has been held in numerous cases that gross negligence will authorize a verdict for exemplary damages. They will not be given, however, when the act complained of was the result of a mutual mistake.8 Nor will such damages in any case be awarded by a court of equity. And if a plaintiff applies to such a court he waives all claim to exemplary damages.10-[ED. CENT. L. J.

remedy of an assignee under an assignment for benefit of creditors for fraudulent transfers, made prior to the date of his assignment, is an action in equity to avoid the same, and subject the property fraudulently transferred, so far as may be necessary, to the execution of the trusts of the assignment, and his rights are limited to that neces. sity. Kloeckner v. Bergstrom, S. C. Wis., Nov. 3, 1886, 30 N. W. Rep. 118.

6 Scott v. Bryson, 74 Ind. 420; Becker v. Dupree, 75 Ill. 167.

7 Taylor v. Grand Trunk,etc. Co., 48 N.H. 304; Memphis, etc. Co. v. Whitfield, 44 Miss. 466; Kalb v. Bankhead, 18 Tex. 228; Byram v. McGuire, 3 Head (Tenn.),530; Cochran v. Miller 13 Iowa, 128.

8 Walker v. Fuller, 29 Ark. 1-18; Jackson v. Schmidt, 14 La Ann. 818.

9 Sanders v. Anderson, 10 Rich. Eq. (S. C.) 232. 10 Bird v. W. & M. etc. Co., 8 Rich. Eq. (S. O.) 46.


Validity Accession to Conditions of Deed Discharge of Claims -- Time of Acceptance of Provisions Surrender of Debts Closure of Trust Supervision of Assenting Creditors.--A deed of assignment for the benetit of creditors of all the debtor's goods not exempt from execution, and containing no directions for the disposition of any surplus after satisfying the creditors who acceded to the terms, but containing the condition that no creditor should participate in the assets unless he will accept his share in full satisfaction of his claims, is vitiated by such a condition. A deed of assignment for the benefit of creditors which specifies no time within which creditors are to accept the provision made for them and surrender their debts, is void. A provision in a deed of assignment for the benefit of creditors that the trust shall be administered and closed up under the supervision of the creditors who assent to it, is fatal to its validity. Collier v. Davis, s. C. Ark., Oct. 16, 1886; 1 S. W. 684.

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1. ASSIGNEE-Assignee's Allowance of Claims Res

Adjudicata - Recovery of Judgment Against Estate no Bar to Right to Dividend.-1 When the assignee of an insolvent passed upon a claim against the estate and allows it, the question involved therein becomes res adjudicata, the decision is final, such judgment having all the force, effect or conclusive attributes of any other judgment. Where, after the assignee has allowed a claim against the estate, the claimant recovers judgment in the courts for the amount of his claim against the estate, and then attempts to collect it by legal process, he is not estopped from demanding his dividend of the assignee. Eppright v. Kaufman. S. C., Mo. Nov. 15, 1886.

4. CARRIER-Of Passengers-Injuries to Passenger

-Degree of Care and Skill-Vegligence-Several Injuries One Not Caused by Accident INstructions.-In an action for damages against a railway company for injuries received while riding in one of its cars, an instruction to the jury that the company must show that it used all reasonably practical care and precaution to prevent the injury, is erroneous. A carrier is bound to exercise the highest degree of care and skill to preserve the safety of its passengers. Where, in an action for damages against a railway company, the plaintiff alleged several specitied injuries, and the court instructed the jury to the effect that, if they found that one specified injury was not caused or aggravated by the accident, then they sho'ıld find for the defendant, held an erroneous instruction, although in other instructions the jury were told that if they found for the plaintiff they should award damages sufficient to compensate him for all the injuries received. Moore v. Des Moines, etc. Co., S. C. Iowa, Oct. 11, 1886; 30 V. W. Rep. 51.


Actions by Assignees Fraudulent Mortgages Laws Wis, 1882, Ch. 170-Fraudulent Transfers-- Equitable Remedy.-An assignee under an assignment for the benefit of creditors cannot bring an action at law to recover the value of goods, the title to which had passed from his assignor prior to the date of his assignment, no matter how fraudulent the transfer may have been. Chapter 170, Laws Wis., 1882, has in no way changed the effect of an assignment for the benefit of creditors under the statute so as to give any title or right of possession to the assignee in property fraudulently transferred by his assignor prior to the date of the assignment to him. The proper


Luggage - Agent Negligence Contributory Crossing Trestle with Muddy Feet. – Where a passenger attempts to board a passenger car with a gun, and, on being directed to place the gun in the baggage car, delivers it to a person there, who demands and receives 25 cents for the service, the passenger may recover damages for the carriage of the gun beyond his destination, though the person to whom the gun was actually delivered might have been the agent of an express company. A passenger who was carried beyond his station, and put off at one end of the trestle, his gun, which he had placed as directed in the baggage car, being put off at the , other end, cannot recover damages for personal injuries received by him by falling on the trestle while crossing with his gun, which he had gone to get, when he attempted to make the passage back

with muddy and slippery feet. International, etc. Co.v. Folliard, S. Ct. Texas, Oct. 22, 1886; 1 S. W. Rep. 624.

6. COMMERCIAL LAW-Bill of Exchange-Accept

ance by Agent of Corporation. The drawee of a bill of exchange, drawn by the “Kanawha & Ohio Coal Co.," was described in the bills as "John A. Robinson, Agt.," and it was accepted by him as “John A. Robinson, Agent K. &0. C. Co.Held, that the acceptance so made was the personal obligation of John A. Robinson, and that in a suit upon the acceptance by an indorsee against him parol evidence was not admissible, in the absence of fraud, accident, or mistake, to show that the defendant so accepted the bill intending to bind the drawer as his principal, and that this fact was known to the plaintiff at the time it became the owner and holder of it. Robinson v. Kanauha, etc. Bk., S. C. Ohio, Oct. 19, 1886; 8 N. E. Rep. 583.

7. CONTRACT-Ececutory Sale-Use of Material in

Specified Place-Rescission.-Where fthe owners of a tract of land, who are also interested in a tannery, enter into a contract with the firm owning the tannery for the sale of all the bark growing upon the tract of land, the bark to be used in the tannery in carrying on the same to be paid for before removal from the land, and to remain the property of the vendors until paid for, the provi. sion in the contract in regard to the use of the bark in the tannery is not such a condition or limitation as will entitle the vendors to insist upon the use of the bark within the tannery alone, and to rescind or terminate the contract, in the event of its destruction by tire. Lyonjo. Hersey, N. Y. Ct. App., Oct. 5, 1886; 8 N. E. Rep. 516.


Restraint of Trade-Contract Divisible and Reasonable.-A, by a contract, for a valuable consideration, agreed with B.that he would not hereafter engage in the business of manufacturing ocher “in the county of Lebigh or elsewhere." He subsequently went into the business of manufacturing ocher in Lehigh county, and upon a bill for injunction to restrain him from continuing the same being filed by B, he answered that bis contract was in restraint of trade, and therefore contrary to public policy. Held, that the contract was divisible as to place; that, while lit was void outside of Lehigh county, it was good within the county; that it was competent for A to make the contract; and that it was reasonable and not oppressive. Smith's Appeal, S. C. Penn., Oct. 4,

exception of an existing mortgage, will not bar the grantee from interposing any defense to the mortgage that the mortgageor might have interposed. A restriction in one covenant of a deed has by reason of that fact, no effect on an independent covenant in the same deed. Questions determined on a former appeal will not be re-examined on a subsequent one. Bennett v. Keehan, S. C. Wis., Nov. 3, 1886; 30 N. W. Rep. 112.

1886; 6 Atl. Rep. 251. 9. CORPORATION- Municipal Corporations-Dam

ages from Surface Water, Etc.- A person who has occupied and improved property outside of a city has a right to be reimbursed in damages, where the city has subsequently extended its limits, and, in grading a street made necessary by such extension, has knocked down his fences, and caused surface water to overflow his property, and injure his cellar, walls, and shrubbery. Gray v. Knox

nlle, 8. C. Tenn., Sept. 1986; 1 S. W. Rep. 622. 10. COVENANT-Deed-Covenant of Warranty

Covenant Against Incumbrances- Effect of Exception-Restriction in One Covenant Affecting Another Estoppel - By Matter of Record

Judgment Subsequent Appeal. The fact that, in a deed with full covenants of ty, the covenant against incumbrances contains an


Warranty-Pleading-Necessary Averments of Complaint-Effect of Judgment and Eviction--Evidence--Parol Testimony to Show Consideration of Deed--Assumption by Purchaser of Widow's Outstanding Estate--Deed-- Acknowledgment Necessary for Record, but Not as Between Parties-- Pleading-Filing Cross-Complaint After Issues Closed--Discretion of Trial Judge.-A complaint in an action for breach of covenants of warranty need not aver that the covenantor was required to defend; it is sufficient if it shows a judgment and an eviction under it. Where an action to recover possession of land is brought by one claiming to be the owner, and the grantee duly notifies his grantor of the fact, tbe latter will be bound by the judgment in which the action results; and where the grantor does not appear and defend, the grantee, after judgment rendered, may yield possession without taking an appeal. Under the statutes of Indiana the interest of a wile in her husband's lands is more than an incumbrance; it is an estate in the land itself. In an action for breach of covenant of warranty the grantor cannot introduce parol evidence to show that a deed with full covenants of warranty was taken by the grantee with the knowledge of a widow's outstanding rights in the land conveyed, and that the grantee assumed and agreed to pay off the "incumbrance” created by her estate. An acknowledgment is essential to entitle a deed to go upon record, but it is not essential to give effect to the deed as between the parties. After the issues are closed, and the cause set for trial, permission to file a crosscomplaint is in the sound discretion of the trial court, and an order refusing permission to do so will not be set aside, unless it is shown that that discretion has been abused. Bever v. North, S. C.

Ind., October 5, 1886; 8 N. E. Rep. 576. 12. CRIMINAL LAW-Defendant's Presence-Sheriff Disqualified, Coroner Must Summon the JuryWhen--Defendant Absent when Jury Impannelled -Out on Bail--Defendant to be Present at Each Step, Ercept Voluntarily Absent at Time of Receiving Verdict .--When the sheriff of the county is disqualified from acting in summoning the jury by reason of his prejudice against defendant, the court errs in selecting another person, other than the coroner, to summon the jury, where it is not suggested that the latter is disqualitied. Upon a trial for a felony, it is error to permit the jury to be selected in absence of defendant, although his counsel was present, and although the defendant was voluntarily absent, being out on bail, and although when the trial was called the court gave defendant an opportunity to further examine the jurors. Under $ 1891, R. S. Mo., 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 the verdict is to be received, when the verdict may be received and entered in his absence if it is willful and voluntary. State v.Crockett, s. C. Mo., Nov. 15, 1886.


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Indictment -- Number of CaseNuisance - Duplicity -- Negativing ExceptionsTrial-Evidence-Limiting Number of Witnesses --New Trial-Misconduct of Juror--Presumption

Knowledge of Party Failure of City to Provide Drainage. When the record shows that an indictment was returned by the grand jury, and the proceedings appear to be founded on such indictment, it is immaterial that the number of the case as stated on the indictment is different from that stated elsewhere in the record. An indictment which charges that the accused create a nuisance by doing all of the acts prohibited by the single section of the statute defining a nuisance is not bad for duplicity. An indictment for creating a nuisance is not bad for failing to aver that the acts done by the accused were not authorized by a city ordinance passed under the proviso in section 2066, Rev. St. Ind. Where it is not shown what facts a question propounded to a witness is expected to elicit, no available error is committed in refusing to permit the question to be answered. A reasonable limitation of witnesses is within the discretion of the court, and a limitation to seven is not an abuse of discretion in a prosecution for nuisance, in a case where the court gives notice in advance of the limitation. Where a new trial is sought upon the ground of misconduct on the part of a juror, it must be made to affirmatively appear that there was actual misconduct, and that it was not known to the party until after verdict. It is no defense to a prosecution for creating a nuisance by discharging offensive substance into an artificial water-course, that a municipal corporation has failed to provide adequate drainage. Mergentheim 0. State, S.C. Ind. Oct. 7, 1886; 8 N. E. Rep. 568.

15. DOWER- Assignment - Distributive Share

Creditors' Petition to Set Aside. – Whether a court of equity would, at the instance of a creditor of a widow, cause her distributive share in her husband's estate, under the Iowa Code, to be set aside, so that an execution could be levied upon it, quære; but, in any event, the petition in such an action should show that the real estate sought to be distributed is all the real estate of which the husband died seized, and the court must have before it all the parties in interest. Getchell 0. McGuire, S. C. Iowa, Oct. 27, 1886; 30 N. W. Rep. 7.

16. ESTOPPEL- Stutements to Third Purty

Subsequent Employment by Defendant.-In an action to recover the amount of a bond and mortgage, statements by the plaintiff to a third party, not made to be communicated to the defendant, to the effect that a certain party was authorized to act as her agent, do not, in a question with the defendant, estop the plaintiff from denying the authority of such alleged agent, even though the person to whom the statements were made came into the defendant's employ afterwards. MaGuire v. Selden, N. Y. Ct. Appls, Oct. 5, 1886; 8 X E. Rep. 515.


Wife-Part Payment by Husband - Creditor's Claim Paid Out of the Property. Property bought and put in a wife's name should not be subjected to the claim of creditors of the husband, on the ground that it was partly paid for by the husband, there being no actual, as distinguished from constructive, fraud, if money was afterwards raised by mortgage on the property, and as much of the creditors' claim as was owing when the property was bought was paid therefrom; especially if part of the money paid by the husband on the purchase price went to one of the firm of creditors seeking to subject the property. McChord v. Noe, Ky. Ct. Appls., Oct. 19, 1886; 1 S. W. Rep. 644.


Obtaining Money by Cheat Form of Indictment under $ 1561, R. 8.1879 of Mo.-Common Law Forn- Where Names of Victime Unknown. Under the provisions of $ 1561, R. S. 1879, of Missouri, an indictment is not in sufficient form, if it fails to state the name of the person or corporation upon whom the fraud was committed in obtaining, etc.,the money or property by means and use of cheat, or where it does not aver that the name or names of such person or persons are not given because they are unknown to the grand jury, but only avers that a more particular description of said persons, firms, and corporations is unknown. Thus, where the indict. ment charges that the defendant did obtain by means of a trick, etc., money or property “from certain persons, firms and corporations then and there composing a voluntary association, known as the 'Brewers' Association of St. Louis and East St. Louis,' a more particular description of which said persons, firms and corporations and of said association, is to the jurors unknown,” does not comply with the statutory form and is insufficient. State v. Fansher, 71 Mo. 461; Morton v. People, 47 III. 468. Under the ruling of State v. Fansher. 71 Mo. 361, where the name of the person or persons from whom money or property is sought to be obtained by the device named in the statute is unknown, the statutory form cannot

be resorted to in preferring the indictment, but it must be drawn according to the rules of the common law. Under the principles of the common law, the indictment must set forth with particularity “the trick or deception or false or fraudulent representations,” etc., as well as the name of the person sought to be de

18. INJUNCTION - Damages Party Enjoined in

Contempt by Disregarding Injunction-Rights of Innocent Stockholder.-Where an injunction has been granted against the treasurer of a corporation, restraining him from collecting any royalties or div. idends of stock due the corporation, and such royalties and dividends are afterwards paid into its treas. ury, the treasurer and corporation are alike guilty of contempt, and, upon a dissolution of the injunction are not entitled to recover damages for detention of the fund. Where a corporation has been restrained by injunction from collecting the dividends due to its stockholders, and the injunction is afterwards dissolved, the stockholders may recover simple interest thereon from the time the dividends were declared, pending the injunction, up to the period of the dissolution thereof. Heck

v. Bulkley, S. C. Tenn., Sept. 21, 1886. 19. JUDGMENT-Revival-Presumption of Payment

-Burden of Proof-Jurisdiction of County Court

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