physicial suffering may be considered by the jury in estimating damages, even where the negligence was not gross nor the injury so willful as to warrant the giving of what are termed exemplary damages."7

The report concluded by recommending a decree that the receivers pay the petitioner out of the funds in their hands, $500 and costs.

Exceptions were filed to the foregoing report by the receivers, and on those exceptions the cause was submitted to the court.

Glover & Shepley, for the receivers; A. R. Taylor, for the petitioner.

DILLON, Circuit Judge:

The only exception to the Master's report relied on by the counsel for the receivers, is that the Master erred in not finding that the parents of John Hagan were negligent, and that such negligence defeats the right of the infant to recover the amount of the damages sustained by the negligence of the receivers. In the excellent report of the Master, the principal cases upon the effect of the negligence of parents in defeating the right of action for a negligent injury to their child, are collected. They can not be entirely reconciled, although when the facts of the particular cases are considered, the discrepancy is not as great as at first it would appear to be.

Upon the facts in this case, we entertain no doubt that the petitioner is entitled to compensation for the injury he sustained. The deep, unguarded excavation in the street was not only a public nuisance, but a dangerous one. The receivers ought not to have permitted it to continue. The natural instincts and habits of children lead them to play, and it is scarcely possible, and certainly not practicable, to keep them entirely off the streets or under constant supervision. The injury here was not caused by any person or agency in the lawful

In McKinley v. Chicago & N. W. R. Co., 44 Iowa, 34, the plaintiff was forcibly and successfully resisted by a brakeman in attempting to enter a passenger car of the defendant. There is no statement of the evidence as to the loss of time incurred or actual injury received; but these appear to have cut no figure in the case. It was charged by the court below and held by the court above that it was not a case for exemplary damages. The discussion related to the propriety of an instruction that the jury might take into consideration and give damages for "the outrage and indignity" put upon the plaintiff. The instruction was held correct. Twelve thousand dollars damages were held to indicate passion and prejudice; but the court ordered the verdict to stand, if the plaintiff would accept a judgment for $7,000. Beck, J., however, thought $12,000 not too much, and Day, J., dissented, holding that outrage, indignity and mental suffering are not elements of co pensatory damages. (7.) Sedgwick on Damages, 6th Ed. 699, note 2; Indianapolis &c. R. Co. v. Stables, 62 Ill. 313; City of Chicago v. Langless, 66 Ill. 361. In City of Chicago v. Jones, 66 Ill. 349, an award of $1,000 to a servant girl for breaking her right arm was not deemed excessive. In Collins v. Council Bluffs, 32 Iowa, 324, $15,000 were awarded a married woman for the breaking of the bone of her left thigh, in consequence of ice accumulated on the sidewalk. It appeared that it made her a cripple for life. The court refused to disturb the verdict.


use of the street. What right has the Tunnel Company to leave a dangerous pitfall in the public way, and then to insist that all the children in the neighborhood shall be imprisoned or kept from the street? If the petitioner's parents had lived immediately upon or very near this excavation, and knowing the danger of permitting their child to go at large had actually permitted it to go to the place of danger, or suffered this to be done though actual negligence, the case might present more difficult questions than now arise. The Master does not find that the child was knowingly or even negligently permitted to go to or remain in the vicinity of the excavation. His parents lived over two blocks distant, and the finding is that he strayed away from home" and was injured while at play with other children. It is not shown that the child was in the habit of going there; and as the receivers' negligence is positive and actual, and was the direct cause of the injury, and as the onus to establish the defense of contributory negligence is on the receivers (Railroad Co. v. Gladmon, 15 Wall. 401), and they have failed to show such negligence, they are liable. It is not necessary, in this view, to go into the learning upon the subject of imimputable negligence of parents to children, for in this case it is not shown that the parents were at fault in the child being at the place of the accident, at the time when the accident happened. Some of the cases seem to make the liability depend upon the means of the parents, and to countenance a distinction as to contributory negligence between parents able to employ nurses or attendants and those who are not. This distinction may be doubted; for there is not, in this country, one rule of law for the rich, and a different rule for the poor. It extends its protecting shield over all alike. The common law is justly distinguished for its solicitude for the public safety, and any person or corporation that illegally imperils the lives, limbs or health of the people is liable. The Tunnel Company has no more right, by having a dangerous excavation in the public ways, unnecessarily to impose upon the rich the duty to employ an attendant for their children than to impose upon the poor the impracticable duty of never allowing their children to escape from sight, lest they may be injured by its wrongful and illegal act.

The exceptions are overruled and an order will be entered in conformity with the report of the Master.


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2. The contributory negligence which prevents recovery for an injury is that which co-operates in causing the injury-some act or omission concurring with the act or omission of the other parties to produce the injury (not the loss merely) and without which the injury would not have happened. A negligence which has no operation in causing the injury, but which merely adds to the damage resulting, is no bar to the action, though it will detract from the damages so far as the loss is solely attributable to such concurring cause.


CRIMINAL LAW DEGREE OF EVIDENCE NECESSARY TO SUPPORT ALIBI -DECLARATIONS OF COCONSPIRATOR.-Donnelly v. Com. Supreme Court of Pennsylvania, 6 W. N. 104. Opinion PER CURIAM1. When the fact proved by the Commonwealth is not defined distinctly in point of time, but may have taken place within or between certain periods, the alibi must cover the entire period in its proof, otherwise the evidence given in proof of the alibi may be true, and the fact proved by the Commonwealth may also be true. There is no contradiction unless the evidence supporting the alibi covers the whole period. 2. In a criminal conspiracy, the members of which are also members of the same criminal organization, the declarations of a fellow-member and co-conspirator are evidence against all the parties to the conspiracy.

NEGLIGENCE-MUNICIPAL CORPORATIONS-UNAUTHORIZED ACTS OF CITY OFFICERS-CONTRIBUTORY NEGLIGENCE. Saylor v. City of Harrisburg. Supreme Court of Pennsylvania, 6 W. N. 107. Opinion PER CURIAM. A city ordinance directed the construction of new water-works, and provided for the appointment of a committee whose duties were to advertise for proposals and make contracts, subject to the approval of the council, and to employ an engineer for the purpose of preparing necessary plans and specifications. The engineer, under the authority of this committee, and without the approval of the council, made a parol contract with a company to make a certain connection in the pipes by means of a casting. The work being negligently done, S was injured by an explosion and died: Held, that the city was responsible. 2. The question of contributory negligence is a mixed question of law and fact. When the facts are undisputed, the court should declare the law thereon.

CRIMINAL LAW-" POISONOUS AND NOXIOUS SUBSTANCES"-DEFINITION.-People v. Van Deleer. Supreme Court of California, 2 Pac. Coast L. J. 25. The defendant was charged with having administered "a poisonous and noxious substance" to the prosecuting witress, W. The section under which the indictment was framed is as follows: "Section 216. Every person who, with intent to kill, administers or causes or procures to be administered, to another, any poison or other noxious or destructive substance or liquid, but by which death is not caused, is punishable by imprisonment in the state prison not less than ten years." The court instructed the jury that if the defendant gave or administered to W "either a poisonous or noxious substance, with the intent then and there to kill him, as alleged in the indictment," they must find the defendant guilty. The court defined poisonous and noxious substances as follows: "A poisonous substance is one which has an inherent and deleterious property capable of destroying life. A noxious substance is not necessarily poisonous, but may be a substance which it hurtful and injurious." Per CURIAM "Accurate definitions of these terms can not be readily given, and, perhaps, are impossible, and proximate accuracy is all that may be required in the application of the statute in a given case; but the above definition omits some of the essential elements of the meaning of those terms, as employed in the statute. A poison is defined by Wharton & Stille (Med. Jur., § 493) as 'a sub

stance having an inherent deleterious property, which renders it, when taken into the system, capable of destroying life.' A definition stated in 2 Beck's Med. Juris., with approval, is as follows: 'A poison is any substance which, when applied to the body externally, or in any way introduced into the system, without acting mechanically, but by its own inherent qualities, is capable of destroying life.' The definition of a poison given by the court would include substances which act upon the system mechanically so as to destroy life. In that respect the definition was too broad; but such substances are, in our opinion, included within the meaning of the words of the statute,,'other noxious or destructive substance or liquid.' The noxious or destructive substance or liquid mentioned in the statute is not merely such as might, when administered, be hurtful and injurious, but, like a poison, it must be capable of destroying life. Pulverized glass or boiling water, when administered in sufficient quantities, would destroy life, but they are not poisonous. The purpose of the statute is to provide a punishment for attempts to kill, by the means therein mentioned; and in order to bring a case within the statute it must be proved that the substance or liquid which was administered was capable of destroying life. The intent to kill could not be inferred from the act of administering a substance which has not the capacity of destroying life. The omission of that quality or capacity from the definition of a noxious substance, as given at the request of the prosecution, rendered it erroneous."

EQUITABLE MORTGAGE-REFORMING MORTGAGECONSTRUCTIVE NOTICE FROM RECORDS.-Gale v. Morris.-New Jersey Court of Chancery, 29 N. J. (Eq.) 222. -1. An equitable mortgage may arise from non-payment of the purchase-money, from a deposit of title deeds, or from an unsuccessful attempt to make a valid mortgage deed. 2. One who acquires legal title, with notice that the equitable title is in some other person than his grantor, will be decreed to hold the legal title for the benefit of the equitable owner. 3. A deed or mortgage may be reformed against a subsequent purchaser or mortgagee who acquires his rights with notice of the equities of the person seeking reformation. 4. Constructive notice, flowing exclusively from matters of record, can never be construed to be more extensive than the facts stated on the record. The suit was to reform a mortgage and for foreclosure. The mortgagor admits he agreed to mortgage the fee, and that the conveyance of a less estate was a mistake. The contention is between the mortgagee and the second incumbrancer who insists that no decree should be made affecting her rights. She was informed, when her mortgage was delivered, of the prior mortgage, and that her mortgage, which was given to secure a preexisting debt, would be subsequent to that. The complainants, in their representative capacity, had loaned funds of the estate to the mortgagor, and in preparing the mortgage to them the word "heirs" was stricken from the printed form, and the word "successors" substituted. VAN FLEET, V. C. It is clear the complainants have no legal mortgage upon the fee. Their right to relief against the resisting defendant depends entirely, in my judgment, upon their ability to establish two propositions: First, that by their contract with the mortgagor they became mortgagees in equity of the fee; and second, that the defendant took her mortgage with notice of their equities. An equitable mortgage will arise from the non-payment of purchase-money, (1 Hill. on Mortg. 660); and it may also be created by a deposit of title-deeds (Griffin v. Griffin, 3 C. E. Green, 104; Brewer v. Marshall, 4 C. E. Green, 537); but a mere parol promise to make a mortgage for money lent will not create a lien. 4 Kent's Com. 154. It has also been held that an equitable mortgage may be created by an unsuccessful attempt to make a valid mortgage

deed, or to appropriate specific property to the discharge of a particular debt. 2 Story's Eq. Jur. § 1020, note, referring to Peckham v. Haddock, 36 Ill. 38, and McClurg v. Phillips, 49 Miss. 315; Lead. Cas. in Eq. (4th Am. ed.) 954. The soundness of this view seems to have been recognized by the Court of Errors and Appeals in Wheeler v. Kirtland, 6 C. E. Green, 552. The infirmity sought to be cured in that case was identical with that existing in this mortgage, but there being no proof showing that it had been agreed the mortgage should embrace the fee, the court declined to discuss how far an equitable lien might be established against creditors, but it was distinctly declared that an equitable mortgagee who pays full consideration when his mortgage is given, is entitled in equity to be regard ed as a bona fide purchaser. Phelps v. Morrison, 10 C. E. Green, 538. In my view, according to both authority and principle, the complainants are mortgagees in equity of the fee of the mortgaged premises. This brings us to the question, did the defendant accept her mortgage with notice of the complainants' equities? There can be no doubt about the effect of such notice. Justice will not permit a person acting with full knowledge of the true situation, to hold against another a hard advantage he has obtained on a point of strict law. A deed may be reformed against a subsequent purchaser or mortgagee who acquires his rights with notice of the infirmity sought to be cured. Rutgers v. Kingsland, 3 Halst. Ch. 178; S. C. on appeal, Ib. 658. Where the equitable and legal titles to land are held by different persons, a purchaser of the legal title, who purchases with knowledge of the rights of the equitable owner, will be decreed to hold the legal title for the equitable owner, and may be required to convey to him. If he pays anything for it, with notice that the equitable owner has already paid the purchase-money, agreed upon, he will be compelled to convey without reimbursement. Weller v, Rolason, 2 C. E. Green, 13. Having expended his money for a thing he knew had been purchased and paid for by another, he can make no just claim to indemnity. Waldron v. Letson, 2 McCart. 126. Mere constructive notice of the existence of a mortgage, with no notice of the estate conveyed by it, will not be notice that the mortgage embraces a fee, when, by its terms, it conveys a life estate. Constructive notice, flowing exclusively from matters of record, can never be construed to be more extensive or broader than the facts stated on the record. Wilson v. King, 12 C. E. Green, 374. But in this case the proof shows actual notice as extensive and full as language could convey it. The defendant took her mortgage with full notice of the complainant's equities, and they are, therefore, entitled to a decree of reformation against all the defendants.

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the purchase-money, such contribution must be a deffinitely ascertainable portion thereof, and the contract, specific performance of which is sought, must so far describe the premises claimed as that the court may be able to ascertain what they are. Opinion by WRIGHT, J.-Maud v. Maud.

VENDOR AND PURCHASER LICENSE TO ENTER LAND NOT AN INCUMBRANCE.-1, A written license, without seal and unacknowledged, to enter upon and imbed water pipes in the land of another, with privilege to enter and repair them, creates no interest in, nor incumbrance upon the land such as wili disable the owner thereof from making a good and sufficient deed conveying the title thereto. 2. A vendee of real estate protected as an innocent purchaser without notice, may not, at his option, elect to waive such protection, and rescind the contract of purchase for an alleged incumbrance not affecting the validity of the title. Judgment affirmed. Opinion by SCOTT, J. Day, J. and Wright, J., dissenting.— Wilkins v. Irvine.

MASTER AND SERVANT-COMMON EMPLOYMENT.Where a railroad company engaged in ballasting its road employed a hand to assist in loading and unloading a gravel train, and in the execution of this service it was necessary for him to ride on the train from the gravel pit to the place of unloading, the train being run under the direction of a conductor, and said hand having nothing to do with its management: Held, that such hand, while riding on the train, was a mere employee, and did not assume the character of a passenger; that he and the engineer of the train were engaged in a commou service, and that as he was not under the control or subject to the orders of the engineer, the railroad company can not be held liable for negligence of the engineer resulting in his death-if it was not guilty of negligence in selecting the engineer. Judgment affirmed. Opinion by SCOTT, J.-Kumler v. Junction Railroad Co.

PRESUMPTION FROM ABSENCE MARRIED WoMAN-EQUITABLE ESTOPPEL.-1. If a husband leaves his family and usual place of residence, and goes to parts unknown, or a distant state, and is not heard from for a period of seven years, a presumption arises that he is dead. 2. Where such presumption exists, and where the husband has abandoned his wife and minor children, without other means of support than the house and lot on which he resided before such abandonment, she may enter and contract as a feme sole. 3. If in fact the husband is not dead, yet, in such case, she is capable of binding herself, by way of equitable estoppel, by her acts and contracts as fully as if she were a feme sole. 4. And if she join with the children, who have come of age, in order to induce a sale of said real estate for their mutual benefit, in representing that he is dead, and thereby, and for value received, effects a sale of such real estate, and also joins them, as widow, in a conveyance in fee with covenants of general warranty, and the contract is fully executed by the purchaser: Held, that although the husband be living, and although such conveyance does not operate as a release of her inchoate right of dower, yet she is barred by way of equitable estoppel from treating her contract as a nullity, and from asserting her right to have dower assigned upon the actual death of her husband. 5. It is not necessary to constitute such equitable estoppel that a party should design to mislead: it is enough if the act or declaration was calculated to and did in fact mislead another who acted in good faith and with reasonable diligence. Judgment of district court reversed and that of the common pleas affirmed and cause remanded. Opinion by JOHNSON, C. J.Rosenthal v. Mayhew.

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IN A PROSECUTION of a WIFE for an assault upon her husband, he is a competent witness for the state. Judgment affirmed. Opinion by BOYNTON, J.-Whipp v. State.

FIRES CAUSED BY LOCOMOTIVES-Negligence.Where a railroad company is authorized to propel its trains and operate its road by the use of steam locomotives, no inference of negligence arises from the mere fact that an injury to adjacent property was caused by sparks emitted from such locomotives. Opinion by MCILVAINE, J.-Ruffner v. Cin., H. & D. R. R. Co.

CRIMINAL LAW - EXAMINATION OF DEFENDANT— PRIVILEGED COMMUNICATIONS.-Where the accused in a criminal trial becomes a witness in his own behalf, he can not be compelled, on cross-examination, to disclose the confidential communications between him-self and his attorney; nor can such disclosures be required of the attorney without the consent of the accused. It is the privilege of the accused to have such communications protected from compulsory disclosure, and the privilege is not waived by his becoming a witness. Judgment reversed, and new trial ordered. Opinion by WHITE, C J.-Duttenhofer v. State.


BURGLARY INDICTMENT CORPORATION. - 1. Where the charge is burglary by breaking into the car of a railroad company, designated by its corporate name, but the indictment contains no averment that the company was incorporated, the accused can not avail himself of the defect, if defect it be, in view of the code of criminal proceedure, 66 O. L. 301, sec. 90; 74 O. L. 334. 2. If it be alleged that a burglary was committed in the car of a railroad company, the corporate character of the company is sufficiently shown by proof that it was, at the time of the burglary, a corporation de facto. Judgment affirmed, Opinion by OKEY, J.-Burke v. State.

CRIMINAL LAW-CONVICT AS WITNESS-EVIDENCE. -1. In an indictment for burglary by breaking into the office of a railroad company, there was no allegation that the company was incorporated: Held, that this is not a sufficient ground for sustaining a motion to quash. Burke v. State, ante, followed. 2. Where a convict who has been in the penitentiary two years, it taken therefrom to testify as a witness, and does so testify, it is competent for the adverse party to prove that his reputation for truth aud veracity was bad, at the time of and previous to his conviction, at the place where he then resided. 3. In order to justify the reversal of a judgment on the ground that the court below refused to permit certain evidence to be given, it is incumbent on the party complaining to show affirmatively that he was entitled to offer such evidence for some purpose stated in or manifest from the record. 4. On the trial of a criminal case, it is error to permit the state to prove, by cross-examination of a witness called by defendant, that the accused stands indicted for other offenses. Judgment reversed and cause remanded for a new trial. Opinion by OKEY, J.-Hamilton v. State.





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Associate Justices.

CITY ORDINANCE--POWER TO REPEAL STREET RAILWAY.-Where the ordinance under which a street railway company has built and is operating a single track line of railway provided that it might lay double tracks if desired, the city council has no power to repeal or change such provision without the consent of the company; the ordinance constitutes a contract whereby the company is secured in the exercise of the powers conferred therein. Opinion by BECK, J.-City of Burlington v. Burlington Street Railway Co.

MECHANIC'S LIEN ESTABLISHED AFTER PAYMENT TO CONTRACTOR LIABILITY OF CONTRACTOR'S SURETIES.-The sureties on the bond of a building contractor can not be held liable for the amount of mechanics' liens established against the building after full payment to the contractor has been made, even though the latter represented that all claims had been paid; it was the duty of the owner of the building, for the protection of the sureties, as well as himself, to withhold payment until the time of filing liens had expired. Opinion by SEEVERS, J.-Lucas County v. Roberts.

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PRACTICE IN SUPREME COURT MOTION FOR A NEW TRIAL AND IN ARREST MUST BE INCORPORATED IN BILL OF EXCEPTIONS- OTHER POINTS OF PRACTICE RELATING TO APPEALS AND WRITS OF ERROR. This was an action of ejectment in which de fendant had judgment in court below, and plaintiff has brought the case here by writ of error. All the errors complained of arose at the trial, and the motion for a new trial is not incorporated in the bill of exceptions: Held, that a motion for a new trial is no part of the record proper, and unless it be incorporated in the bill of exceptions this court can not notice it. It will not do to refer to it as appearing elsewhere in the transcript. We can not, therefore, enter into any examination of the errors assigned, but must affirm the judg ment. Opinion by HOUGH, J.- Comstock v. Becket. Same principle, Feisley v. Simmons, per HENRY, J.

Comstock v. Parish, per HoUGH, J. And where there is nothing of record to show that the alleged bill of exceptions was ever filed, and there is no error in the record proper, the judgment must be affirmed. Opinion by SHERWOOD, C, J.-Riggs v. Uptegrove; Devault v. Uptegrove. And where the record does not show either an appeal or writ of error, the case will be stricken from the docket. Opinion by HOUGH, J. -Owen v. Davis. Same principle, Scott v. Harbold, per NORTON, J. Where plaintiff in error fails to file statement and brief as required by law, the writ of error will be dismissed. Opinion by HOUGH, J.-First Nat. Bank of Jefferson City v. Clark; Hardin v. Mackey.

MECHANICS' LIEN-CAN NOT BE ENFORCED ON LANDS OF RAILWAY COMPANY, CONSTITUTING ITS RIGHT OF WAY, FOR IMPROVEMENTS THEREON. Mechanic's lien, sought to be enforced by plaintiff against freight depot and grounds of defendant railway, for lumber furnished for construction of said depot, which was situated on the lands and lots of defendant, and between main track and side track of said railway, immediately adjoining up to said track, and on the 100 feet strip of land granted to said company as a right of way for a railroad. Plaintiff filed his lien and commenced his suit within the time required by law, and prior to passage of act of March 21st, 1873, entitled "An act to protect contractors, subcontractors and laborers in their claims against railroad companies and corporations," etc. Session Acts, pp. 60 and 61. The freight depot was destroyed by fire after suit was brought, but before trial of the cause. Verdict and judgment for plaintiff. Held, 1. It is not necessary to determine in this case whether the act above referred to allowed sales of detached portions of a railroad, or to require the entire road to be sold in any and every lien enforced under its provisions, as this case, having been brought prior to its passage, must be determined by the general law in regard to mechanic's liens. 2. The 100 feet strip upon which the building is situated having been granted to defendant railway company as a right of way for defendant's railroad, can not be made subject to a mechanic's lien. In Dunn v. N. M. R. R., 24 Mo. 493, the court evidently regarded it as against the policy of the state to allow detached portions of a railway to be sold under execution on a judgment enforcing a mechanic's lien. See, also, supporting the same view, McPheters v. Bridge Co., 28 Mo. 467; Proprietors v. M. & L. R. R. Co., 104 Mass. 9. The second section of the railroad corporation act (1 Wag. Stat. 297), provides that "such corporation shall have power to hold such voluntary grants of real estate and other property as shall be necessary for the construction and maintenance of its railway, but such real estate shall be held and used for the purposes of such grant only." It would seem that the general purpose of our statutes, as well as the construction of them by this court, would indicate that the mechanic's lien act was not designed to allow a railroad to be sold out in detached parcels. 3. In the present case, it is not necessary to determine the point whether the destruction of the building by fire, on which a lien is claimed, would destroy the lien, and it is therefore left for further adjudication. Reversea and remanded. Opinion by NAPTON, J.-Schulenburg v. M. C. & N. W. R. R. Co.

MORTGAGE TO COUNTY BY DELINQUENT COLLECTOR FOR INDEBTEDNESS TO COUNTY NOT INVALIDACCEPTANCE BY COUNTY DOES NOT, PER SE, RELEASE SUCH OFFICER'S SURETIES ON HIS OFFICIAL BOND.-The question in this case is whether a bond and mortgage to a county, taken to secure the delinquency of a sheriff and ex-officio collector, whose sur

eties on his official bond were, at the time, perfectly good and solvent, is of any validity. The county court had directed suit upon the sheriff's bond. and during pendency of such suit, accepted the bond and mortgage in question, and dismissed suit against officer and his sureties. County sued on the mortgage, obtained judgment of foreclosure, bought the land sold under execution, and received deed, which was duly recorded. Held, 1. That county had no power to exact such a mortgage, certainly none to substitute it for the original bond, and thereby discharge the sureties. But the bond and mortgage were voluntarily given to secure an indebtedness to the county. Is there any statute which prohibits this? In the Revised Code of 1845 is found this section: "All deeds, grants and conveyances made, acknowledged and recorded as other deeds, conveying lands, tenements or hereditaments to any county, etc., for the use and benefit of such county, shall vest in such county in fee simple all the right, title, interest and estate which the grantor in such deed had at the time of the execution thereof, in the lands conveyed." This section has been retained in the revision of 1855 and 1865, and is now found rather strangely in the present code under the head of "Uses and Trusts," 2 Wag. Stat. § 13, p. 1382. It may be that the intention of the county court in dismissing the suit against the officer and his sureties and taking the bond and mortgage was to release the sureties; and it may be that the effect of this proceeding, through lapse of time, has so resulted: but this does not destroy the title of county to the land conveyed to it to secure an indebtedness to the county. See Barry County to use of State Sehool Fund v. McGlothlin, 19 Mo. 307. The decisions of this court in regard to mortgages to secure the school funds, are not applicable to the facts in this case. Reversed and remanded. Opinion by NAPTON. J.-Turner v. Clark Co.

PAYMENT IN COUNTERFEIT MONEY DOES NOT DISCHARGE DEBT- OFFER TO RETURN SUCH MONEY WITHIN REASONABLE TIME-CREDITOR MAY MAINTAIN ACTION-REASONABLE TIME A QUESTION FOR JURY.-Plaintiff presented a draft at defendant bank which was cashed in currency, among which was a counterfeit United States treasury note for $50. Upon discovery of this fact, although at what time does not appear from the record, plaintiff offered to return to the bank the forged bill and demanded that the bank should redeem it and pay him good money in lieu thereof, which bank refused. Thereupon plaintiff brought suit, had judgment, and bank appeals. Held, 1. The reasonable doctrine, and one which undoubtedly agrees with the common sense of mankind is, that if a creditor receive by mistake anything in payment different from what was due, and upon the supposition that it was the thing actually due, the debtor is not discharged, and the creditor upon offering to return that which he received, may demand that which is due by the contract. Markee v. Hatfield, 2 Johns. (N. Y.) 458. Legal tender treasury notes are here on the same footing with gold guineas in England, but it is not expedient, in either case, to follow the loose dicta reported in some ancient English cases, and referred to by Judge Kent, even if there was no doubt of the genuinness and correctness of the report, instead of adopting the rules of the civil law and of the French code, conforming, as they do, to the common sense of mankind. 2. The general rule in regard to what is a reasonable time within which a party must perform a duty imposed on him by law, is that it is a question of law for the court, where the facts are undisputed; but there are exceptions to this rule, in which the whole matter is left to the jury. Howe v. Huntingdon, 15 Maine, 332; 16 Maine, 164; Cocker v. Franklin Man. Co., 3 Sumner, 580; Ellis v. Thompson, 3 M. & W. 445. A party who innocently pays away a counterfeit bill is not bound

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