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report showed he did sell the land, and received the cash payment, and it appears that his report was duly approved by the court, held, in an action on the bond of the sheriff against him and his sureties thereia, brought by the plaintiff, who the record showed had a certain interest in the property, that he thereby established a prima facie case against the sheriff and his sureties, and is entitled to recover from them bis portion of the cash payment, though no further order of distribution has been made by the court after the sale. State ex rel. 0. Frazier, S. C. Mo., Nov. 15, 1886; 1 S. W. Rep. 739.
injuries, the petition charges a failure of duty on the part of defendant to furnish a sufficient number of servants in conjunction with plaintiff to carry on the business, that defendant was duly notified of the insufficient help, and by reason thereof plaintiff was injured without contributory negligence on his part, it states a cause of action. The rule stated in Thompson on Neg. p. 1050, held to be supported by cases not in accord with the Missouri rule. Petty v. H. & St. J. R. R. Evidence examined and held to support substantially the allegations in the petition that plaintiff's hand was injured by the collision of the cars, that the help was insufficient, that the testimony establisbes a legal connection between the injury to the plaintiff and defendant's negligence. Where a plaintiff remains at work with insufficient help to properly discharge the duties imposed upon him and his co-laborers, as where engaged in switching cars with only three men, when four should have been provided, he is not thereby, chargeable with negligence, if the danger or risk is not such that as a prudent man he was bound not to assume it, and refuse to continue in the service: Shearm. & Red. Neg. (3d ed.) p. 125; Wood's Ry. Law. p. 1460; Wood's Master and Servant, p. 761; Snow v. Housatonic R. R., 8 Allen, 450; Patterson v. R. R., 76 Pa. St. 113; Tiler v. R. R., 49 N. Y. 50; Clarke, v. · Holmes, 7 H. & N. 942. If the defect and insufficiency in the appliances is so great that obvi. ously with the use of great caution the danger was imminent, then, as a matter of law, the servant who incurs the risk is guilty of contributory negligence and cannot recover; but if upon this question there is substantial doubt it is one of fact for the jury, and a nonsuit or demurrer to the evidence is not permissible.. Wood's Ry. Law p. 1460; Wood's Master and Servant, p. 761; Conroy v. Vulcan Iron Works, 62 Mo. 39. Thorpe v. Mo. Pac. R. R. Co ,
$. C. Mo. Nov. 15, 1886. 31. SALE-Purchaser's Rights and Remedies-Dam
ages-Recoupment.-When an article is sold, accompanied with a warranty, direct or implied, and it proves defective or unfit for the use intended, the purchaser may, without returning or offering to return it, and without notifying the vendor of the defects, bring his action for the recovery of damages; or, if sued for the price, may set up and have such damages allowed him by way of recoupment from the sum stipulated to be paid. Buffalo, etc. Co. v. Phillips, s. C. Wis., Nov. 3, 1886; 30 N. W Rep. 295.
Writ of Execution-Informality-Failure to Sell and Make Return-Liability-Failure to Return Process--Instructions from Plaintiff's Attorney.-When a sheriff has accepted a writ of execution, and levied upon it, but has failed to make a sale and return within the time specified by law, it is no defense to an action against him for such failure that the clerk of the court had affixed a name other than his own to the writ, the error being matter of form, and amendable. If a sheriff is misled by the advice of plaintiff's attor. ney, so that he postpones the date of sale beyond the lifetime of a writ of execution, this, although it may furnish a satisfactory reason for not selling, and for not baving the money to tender to the plaintiff, is no defense to an action by plaintiff for his failure to return the proces within the time limited by law. Jett v. Shinn, S. C. Ark., Oct. 16, 1886; 1 S. W. Rep. 693.
32. SHERIFF-Action Against for Failure to Serve
Writ of Attachment — Defense that Assignment had been Made-Bond of Assignee.-In an action against a sheriff for damages on account of his failure and neglect to serve a writ of attachment, when the defense is set up that the property upon which he was directed to levy had been transferred to an assignee by assignment for the benefit of creditors, it is incumbent upon the defendant to show that a bond had been filed by the assignee within the time required by statute, or that creditors had intervened to enforce the assignment. Beard v. Clippert, S. C. Mich., Nov. 17, 1886; 30 N.
W. Rep. 323. 33. Partition Sale, Failure to Pay Over Pro
ceeds--Record - Prima Facie Evidence.-Where the record showed in a partition suit that the property was ordered to be sold by the sheriff, and the proceeds divided among the parties, according to their interests, and the sheriff's
35. STATUTES-Repeal-New Provisions-Implica
tion - Substitute - Criminal Law - IndictmentStatutory Offense- Words of Equivalent Import - Construction.-Where an act con.ains no repealing clause, and makes no reference to an earlier one, but covers the whole subject and embraces new provisions, it will be held to be intended as a substltute for the first, and to operate as an implied repeal. An indictment upon a statute must state all the circumstances which constitute tbe statutory offense; no case being brought by construction within a statute unless it is completely within its words, or words of equivalent import. Wood v. State, S. C. Ark., Oct. 30, 1886; 1 S. W.
Rep. 709. 36. TRUSTS Constructive Trust – Purchase at
Mortgage Foreclosure. The only question in this case being one of fact, as to whether the defendant, a creditor of an estate under administration, purchased certain property of the estate sold under a mortgage, as trustee, and for the exclusive benefit of the widow and heirs of decedent, or for his own benefit, to satisfy his claim against the estate, and defendant having testified denying any such understanding, or personal acquaintance with defendants, and it appearing from the report of the commissioners that the profit he had made out of the land did not amount to his claim against the estate, and a balance was still owing to bim, and on the evidence generally, held, that defendant was in no way proved to have acted as trustee for the widow and heirs. Ball v. Gajf, Ky. Ct.
App., Nov. 13, 1886; 1 S. W. Rep. 724. 37 VENDOR AND VENDEE-Lien-Payment in Per.
sonal Services-Bill to Enforce-Answer-ReplySet-Off and Counter-Claim-Decree-PleadingPractice.- Where land is sold for a specific price in money, which it is agreed may be paid in personal services, the lien may be enforced if the services are not rendered. Where a bill was filed
for the foreclosure of a vendor's lien, and the answer contained a set-off and counter-claim, to which no reply was filed, the defendant may move for judgment upon the undenied plea; and if he fails to do so, and goes to trial as if the issue was made up, he cannot afterwards object that the decree against him was wrong, on the ground that the failure of the plaintiff to reply was a practical confession of the set-off and counter-claim wbich he had pleaded and claimed in the answer. Where P executed a note to F for a certain sum of money payable on a specified day, but to be discharged in fees as attorney, provided F's business amounted to so much, otberwise to be paid in currency, held, on bill in equity to collect the note, that as F had paid P for services already rendered, and had not withdrawn his business until after the maturity of the note, P could not plead, as a set-off, claims in his hands for collection, on which his fees would have amounted to so much if F had not withdrawn them. Winters v. Fain, s. C. Ark., Oct. 39, 1886; 1 $. W. Rep. 711.
38. Ways-Public Highway-Uses-Vacant Land
Prescription-Possession by Public Authorities.Where land is vacant and unoccupied, the mere fact that individuals travel over it and use it as a road for more than fifteen years, is not sufficient
constitute it a public highway. Where a road has been traveled for more than fifteen years, but has not been established under the statutes of the State, and has not been expressly dedicated nor impliedly dedicated, unless by prescription or limitation, and the land over which it runs was for several of the first years vacant and unoccupied, held, that such road is not a public highway by prescription or limitation, unless the public by its constituted authorities, took the possession of the road, and used it and maintained it as a public bighway for at least fifteen years. State v. Horn, $. C. Kans., Nov. 6, 1886; 12 Pac. Rep. 148.
QUERIES AND ANSWERS.
Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be. -Ed.]
Query No. 34. Sec. 458, Rev. Stat. Mo. (attachment act) says, in all cases where'property, etc., sball be attached the defendant may file a plea in the nature of a plea in abatement, verified by affidavit, putting in issue the truth of the facts alleged in the affidavit on which the attachment was sued out. Section 3521 (practice in civil cases) provides the answer for the defendant shall contain, first: A general or special denial of each material allegation of the petition controverted by defendant, or any knowledge or information thereof sufficient to form a belief,etc. On this state of the law, ought a plea in abatement, which "denies each and every allegation contained in the affidavit for the attachment,” verified by affidavit, be held sufficient on a motion in arrest?
A TREATISE ON THE LAW OF COMMERCIAL PAPER,
containing a full statement of existing American and Foreign Statutes, together with the Text of the Commercial Codes of Great Britan, France, Germany and Spain. By Joseph F. Randolph, of the New Jersey Bar. In Three Volumes, with Appendix. Jersey City, N. J. Frederick D. Linn & Co.
Law Publishers and Booksellers, 1886. We have received the first and second volumes of this work (the third will, we learn, be issued within a month or two), and have examined them with much care and interest. In the first place, we may say that the arrangement and orderly division and subdivision of the subject leave nothing to be desired; the typography is exeellent; each volume is complete in itself, with tables of cases and index, the latter of which is 'unusually large and exhaustive. In short, the book, as law book, is perfect.
As to matters of substance, this book bears unmis. takable evidence of great labor and research, faithfully performed. As its title page indicates,it includes not only the law, controlling the subject, of the United States, but also the “commercial codes of Great Britain, France, Germany and Spain," and is, therefore, practically cosmopolitan, a compendium of the law relating the commercial paper of nearly the whole civilized world. The effort is certainly ambitious, but it is only fair to say that the performance is commensurate with the dignity of the undertaking. Of the magnitude of the subject some idea may by obtained by reflecting that, from the necessity of the case, the writer must treat of commercial paper, as affected by the relations and disabilities of parties, as alien, enemies, lunatics, drunkards, infants, femes cutert, corporations, principals and agents, partners, execu. tors, etc., to say nothing of the infinite variety of the irregular modes of transferring the tide from one holder to another, and the effect and operation of insolvency and bankrupt laws.
All these subjects the author has treated with great care and in a singularly lucid style. Returning to matters of arrangement, we are impressed by several improvements upon the usual style of getting up law books. The index refers to the number of the sections, and that fact appears in the head-line of each page of the index; the citations of State codes, revised statutes, etc., bear the date of the publication of the volume, and in all citations of American cases appears the year of the Lord ir which the decision was rendered. These may seem at first blush, to be small matters, but a little reflection will demonstrate that they are worthy of consideration, especially when applied to a subject, of wbich time is so much of the essence. In no branch of the law is the "modern instance” more potent than in that relating to commercial paper.
Take it altogether, we think the work before us is a very valuable addition to the literature of commercial law, and well worthy of a favorable reception by the profession.
JETSAM AND FLOTSAM.
SCENE IN CIRCUIT COURT.-Counsel-" What was the number of the locomotive engine?” Witness“616.” “How do you know?” “I saw it." "How" “What are my eyes for?” “Where was the number “On the engine.” “On what side of the engine?” “On the outside.” And being fully answered, we presume the counsel had no more to say.
INDEX 10 VOL. 23.
Besides the customary abbreviations, the following are used in this Index: ann. cas.-annonated
nomestead, dig. 309, see husband and wife, 310.
See ejectment, dig. 235; plea in, see criminal law, dig.
20; pleading, dig. 334.
author of errors in advocacy, 223.
of defendant, see criminal law, dig. 547.
lessor and lessee, feral naturae, natural gas, R. D.
of admitted balance, see accord and satisfaction,
dig. 260; charitable uses, dig. 307; contract, dig. 139;
of proposal, see insurance, dig. 427; sale, dig. 286.
See master and servant, dig. 381.
See equity, dig. 378.
See witness, dig. 576
acceptance of admitted balance, condition, dig. 260;
see will, dig 70.
See Agency, dig. 474, 569.
See chancery practice, dig. 283.
See evidence, dig. 212.
sce guardian and ward, dig. 141; joint tenants, and
dig. 238; partnership, dig. 359; pleading, dig. 286.
See partnership, dig. 142.
381; against sheriff, see sheriff, dig. 599; by tenants
see nuisance, dig. 574.
slander, dig. 334.
of legacy, see will, dig. 527.
of logs, see insurance, dig. 333.
See executors, dig. 236, 285, 332, 357, 379.
See mortgage, dig. 310.
official bond, surety, liability of, dig. 161; stranger
paying debt, dig. 142.
See criminal law, dig. 523; evidence, dig. 43, 309, 332,
524 ; assignment, dig. 260; trial, dig. 238.
future, see mortgage, dig. 190, 549.
See deed, 91, 523; limitation, 142, 190, 406; title, 286;
trust, 408; real estate, 119; quiet tenants, 43, eject-
See vendor and vendee, dig. 69.
See parent and child, dig. 141.
some common errors in, article by A. B. M., 223.
See partition, dig. 21.
settlement with cestui gue trust, probate, evidence,
See practice, dig. 454.
See agency, dig. 210; partnership, dig. 21, 476; wit.
ness, dig. 431.
See deed, dig. 261, 451.
former acquittal, see criminal law, dig. 451, 475.
number of. See deed, dig. 403.
See carrier, dig. 211.
ejectment, dig. 497; against executor, see execu.
See criminal law, 235; railroad, 477.
agent transcending authority, sale below prescribed
count, usage, dig. 569.
authority of, see insurance, dig. 597; carrier, dig.
516; of corporation, see commercial law, dig. 547;
see replevin, dig. 560; railroad, dig. 477; of seller,
570; taxation, dig. 214; trover and conversion, dig.
lien of agister on foreclosure of chattel mortgage,
dig. 356; to recovery, see trust, dig. 287; verbal, see
fraud, dig. 427.
See malicious prosecution, dig. 285.
See criminal law, dig. 125, 163.
See rule in Shelley's case, dig. 69.
author of note to Missouri, etc. Co. v. Maltby, ann.
assignment of, see husband and wife, dig. 118; con-
tempt, dig. 187; husband and wife, dig. 333, 524.
ann. cas. 111.
See easement, dig. 357.
See res judicata, case in full, 328.
of note, see Sunday, dig. 429; of policy, see insur-
ance, dig. 597.
service of process, J. and F. 96.
salaries of, dig. 41.
in building contract, see evidence, dig. 379; com-
mercial law, dig. 235; res judicata, case in full, 328.
of award, see ways, dig. 575; deed, dig. 261; divorce,
dig. 235; execution, dig. 452, 524; landlord and ten.
sheriff's return, see bill to quiet title, R. D. 171.
leading article, by William L. Scruggs, 196.
C. E. 1. 217, 241.
vol. 5, review of, 431.
review of, 312, 335.
review of, 71.
review of, 192, 408.
domestic, see domestic animals, R. D. 243; cruelty
to, C. E. 73; replevin, dig. 69.
legacy, trust, trustee, dig. 19; tables, see evidence,
See sale, dig. 503.
J. and F. 312.
See carrier, dig. 594; covenant, dig. 547; criminal law,
dig. 425, 450, 523, 570; estoppel, dig. 189; evidence,
See estoppel, dig. 571.
See fire insurance, dig. 118; of payments, see notes,
See pleading, dig. 477; trust, dig. 408, 526.
See corporation, dig. 378; mortgage, 406; interest, dig.
See execution, dig. 452.
See master and servant, dig. 310.
See deed, dig. 523.
Submission, award, what may be submitted, con.
tract, boundary, dig. 622; see insurance, dig. 333 :
ARMES, C. H.
author of "Cases Summarily Desposed of on Mo.
See judgment, dig. 476.
unlawful, see criminal law, dig. 20; false imprison.
ment, dig. 357.
See constitutional law, dig. 234 ; criminal law, dig.
425, 451, 475.
on officer, see criminal law, dig 570; with intent, see
criminal law, dig. 356.
mutual, see sale, dig. 286.
See banks, dig. 116;corporation, dig. 450 ; equity, dig.
571; municinal corporation, dig. 116; ways, dig.
allowance of claims, res adjudicata, dividend, when
not barred, dig. 546; liability of, insolvency, dig.
See fraud, dig. 405.
remedy, validity, acceptance of conditions of deed,
notes to different parties, see mortgage, 573.
voluntary, see charity, dig. 330.
See agency, dig. 283; covenant, dig. 425; limitations,
dig. 236; tenants, dig: 407; vendor and vendee, dig.
430 ; vendor and vendee, dig. 238.
of debt by vendee, see mortgage, dig. 428.
claimant, equitable title of, bona fides of sale, evi.
dence, dig. 402; champerty, maintenance, attorney,
452; sheriff, dig. 214, 599,
good faith, dig. 139.
See assignment, dig. 260; deed, dig. 357; contract
with client, onus, good faith, termination of the
dower, partition, dig. 425; see jury, dig. 14.
insuflicient, see railroads, dig. 311.
See agency, dig. 161, 307, 377.
See arbitration dig. 522.
author of leading article on “Liability of Married
Women for Improvement on Iler Separate Es.
etc. Co. v. Dennis, 18.
of sale, see attachment, dig. 402.
loss of, see carriers of passengers, R. D. 147.
recognizance, defective recognizance, common law
bond, dig. 356; recognizance, forfeiture, dig. 115.
See tax collector, dig. 22.
for hire, negligence, question for jury. Kinchelo v.
Priest, case in full, 258.
case in full, 304.
commercial law, certified check, negligence of col-
lecting bank. Drovers’ Bank v. Anglo-American,
article on, C. E. 25.
See trust, dig. 455.
assignment, stockholders, assessment, dig. 116; see
evidence, dig. 571; criminal law, dig. 570; national
struction of, dig. 594.
personal liability of, leading article by L. K.
author of “Dramshop Licenses—Validity on Quo
BURDEN OF PROOF.
See contributory negligence, dig. 162; mortgage, dig.
165; payment, dig. 525; ratification of lease, estop-
pel, judgment by default, R. D. 314; will, dig. 527.
See criminal law, dig. 65, 139.
Mr. Butler's address, C. E. 217.
the judiciary, C. E. 121, 169, 193.
See taxation, dig. 69.
of testator, see wills, dig. 238; testamentary, see will,
dig. 334, 335.
standard of, see negligence, dig. 93
leading article by A. Donner, 79.
through contract, beyond terminus, bill of lading,
negligence, dig. 453.
leading article upon, 127.
review of, 456.
See ways, dig. 575; cavear emptor, see sale, R. D. 292.
deed, power, reverter, Second, etc. Society, v. Dugan,
case in full, 229; trust, dig. 408.
See pleading, dig. 286.
See banking, 182.
See deed, dig. 451; of stock, see shares of stock, 3.
of juror after passing list, see criminal law, dig. 570
See attachment, R. D. 434.
Lord Chancellor of England, C. E. 169.
accounts, judicial sales, trust deeds, dig. 283.
proof of, see criminal law, dig. 595; good character,
see criminal law, dig. 235; of witness, see witness,
See will, dig. 478.
words, Maught y. Getzendanner, ann. cas. 278;
will, dig. 166.
C. E. 78.
See corporations, dig. 450.
leading article by Joseph A.Joyce, 364 ; subscription,
acceptance, dig. 307; Mr. Tilden's will, 217, will,
dig. 26, 214.
repeal of, see constitutional law, dig. 81; corporation,
dig. 450, 498; insurance, dig. 358; construction of,
see municipal corporation, dig. 212.
ann, cas, 374.
See American Bar Association, C. E. 1.
See criminal law, dig. 117.
author of “New Trials and Appeals," 383.
See insurance, dig. 285.
See insurance, dig. 380.
beneficiary a stranger, dig. 162; corporations, dis.
cipline, disfranchisement of members, by-laws,
supposed legal title, dig. 283.
illegil, see will, dig. 479.
See carrier, diy. 211.
of the Supreme Court of the United States, J. & F.
See criminal law, dig. 523.
acceptance of, see commercial law, dig. 547.
to enforce lien, see vendor and vendee, dig. 599.
See carrier, dig. 211; common carrier, dig. 19.
execution sale of land, sheriff's return, amendment
of, notice, boundaries, evidence, R. D. 111.
See sale, dig. 454, 502.
common law bond, see bail, 356; bond and con.
vendor, dig. 575.
See equity, etc., case in full, 232.
See arbitration. dig. 522; bill to quiet title, R. D. 171 ;
deed, dig. 403. 451; fraud, dig. 161; highway, evi.
dence, injunction, irreparable injury, dig. 450.
vol. XVIII, review of, 216.
See criminal law, dig. 331, 332.
of contract, see mortgage, dig. 453; covenant, dig.
231; of covenant, see trover, dig. 407; mortgage,
See libel, R. D. 267.
See agency, dig. 41; wagering contracts, R. D. 196.
author of “Proceedings," etc. 576.
landlord and tenant, landlord's lien, voluntary as-
signment, R. D. 530; see assignment, dig. 186;