NEGLECT TO DELIVER TELEGRAM - DAMAGES PLEADING.-1. In case of a breach of contract, actual damages not being proved, nominal damages may be recovered. 2. In case of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties at the time the contract was made. 3. If the telegraph company is in default, but their default is made mischievous to a plaintiff only by operation of some other intervening cause, such as the dishonesty of a third person, the rule "causa proxima non remota spectatur" applies, and the company can not be made responsible for the loss occasioned by the act of such third person. 4. Defendant having filed an answer to the petition, and plaintiff thereupon filing an amended petition, to which defendant answers without making the original answer part of the second answer, the case stands for trial upon the amended pleadings, and the original pleadings are disregarded. Judgment reversed. Opinion by WRIGHT, J,—First Nat. Bank of Barnesville v. W. U. Tel. Co.

ASSESSMENT-CONSTRUCTION OF ROADS - COVENANT IN DEED.-1. An assessment upon lands, made under the provisions of the act of March 29, 1867, 64 O. L., 80, authorizing county commissioners to construct roads, etc., becomes a lien upon the land from the time the assessment is made against the land. 2. When a deed, executed subsequent to such assessment, and whilst a part thereof remains unpaid, contains a covenant "against all claims whatsoever," such assessment is an incumbrance on the land conveyed by the deed, within the scope of the covenant, and for such breach an action will lie. 3. In an action by the vendor against the vendee, to foreclose a mortgage given to secure a balance of purchase money, the vendee may set up as a defense in such action, by way of counterclaim, under section 557 of the Code, as amended April 18, 1867, 67, O. L., 116. an unpaid assessment, made under the provisions of the act of March 29, 1867, upon the land at the time of the execution of the deed to the vendee, and have the amount remaining unpaid, with interest, deducted from the unpaid purchase money. Judgment reversed, and the cause remanded. Opinion by ASHBURN, J.-Craig v. Heis.

LEASE OF PUBLIC WORKS.-1. Under section 18 of "An Act to provide for leasing the public works of the state," passed May 8, 1861, S. & S. 61, the state reserved to itself the right, as against the lessees of the public works, to grant to the city of Cincinnati permission to enter upon and improve as a public highway and for sewerage purposes, that part of the Miami and Erie canal which extends from the east side of Broadway, in said city, to the Ohio river. 2. The rights acquired by the lessees of the public works, under the provisions of said act of 1861, to the surplus water connected with said section of the canal, or appertaining there to, and owned by the state, for the purpose of being used therewith, and also the right to "additional surplus water," were held by said lessees, subject to be divested by the exercise of the power reserved to the state by the 18th section of said act, to make such grant to the city for a public highway and for sewerage purposes. 3. The right to surplus water and to lease the same for private uses, is an incident of the public use of the canal for purposes of navigation. The canals of the state were authorized, contracted and maintained for public purposes, and not to afford water power, to be leased or sold, for private use. The latter use is subordinate, and the right to the same may be terminated whenever the state, in the exercise of its discretion, abandons or relinquishes the public use. 4. By the act of March 23, 1863 (1 Sayler Stat. 379) the state exercised the power reserved to itself by the 18th

section of the act of 1861, and thereby granted authority and permission to said city to enter upon, improve and occupy forever, as a public highway and for sewerage purposes, said portion of the canal, according to a plan of improvement to be approved by the board of public works. This act provided that said grants should be subject to all outstanding rights or claims, if any, with which it may conflict; that it shall not extend to the revenues derived from water privileges; that the city, in the use of the same, should not obstruct the flow of water through the granted portion nor injure the present supply of water, and should do no work until the plan for the improvement by the city should be approved by the board of public works. Held, that these reservations and conditions, annexed to the grant to the city, were not intended to reserve to the state, nor to the lessees of the public works, the right, after that part of the canal had been abandoned, and after the title had vested in the city, and it was in possession, engaged in making the intended improvement according to an approved plan to create new water rights not therefore existing. 5. This grant and the construction, by the city, of an avenue and sewer along the line of the land, upon a plan of improvement, approved by the board of public works, in such manner that the canal could no longer be used for purposes of navigation, was an abandonment of it by the state for the public uses for which it was held; and this, by operation of law, was a surrender, by the state, of the incidental right to the surplus water along the part so abandoned, not expressly saved, as outstanding rights or claims, under contracts existing at the time of such abandonment under the reservation and conditions of the act of March 24, 1863, Sayler's Stat., vol. 1, p. 379. 6. Hence a conveyance by the state and the lessees of the public works of such water-power, made after the grant to the city, took effect, and after the state had abandoned that part of the canal for purposes of navigation, could not operate, to vest in the grantee a right to the same, paramount to that of the city to convert the part abandoned into a public highway and a sewer, upon a plan approved by the board of public works, which involved the destruction of such water-power. Judgment affirmed. Opinion by JOHNSON, J.-Little Miami Elevator Co. v. City of Cincinnati.

AGREEMENT TO PAY TAXes-Statute OF FRAUDS -A conveyed land to B by quit-claim deed, and at the same time agreed by parol to pay all back taxes then due on said land, as a part of the purchase price of certain other land conveyed by B to A. Held, that the promise was not within the statute of frauds, as being the promise to pay the debt of another, and did not need to be in writing. It was virtually but the promise of A to pay a part of his own debt by the payment of such taxes. Opinion by Howk, J.- Headrick v. Wiseheart.

INDIVIDUAL LIABILILY OF A COUNTY OFFICER FOR MONEY RECEIVED.-If a person receive money from one person to pay to a third, the promise, express or implied, inures to the benefit of such third person, who may maintain an action for the money; and where the clerk of a court received money which the law did not authorize him to receive in his official capacity, he received the money in his individual capacity, and in that

capacity was liable to the person to whom it belonged. Opinion by PERKINS, C. J.-Hunt v. Milligan.

MUNICIPAL CORPORATIONS-LIABILITY FOR NEGLIGENCE OF THIRD PERSONS.-Where a ditch has been dug along or across a street or alley, within the corporate limits of a town or city, and has been left in an unsafe condition, such municipal corporation can not escape liability for the damages occasioned by such ditch, upon the plea that the ditch was dug or left by a third party without its license or authority. It is the duty of the municipal corporations, in such a case, to put the street or alley in a safe condition for its ordinary use by the public, and if in so doing it incurs expense, such third party should be held liable to such town or city for the reasonable expenses thus incurred. Opinion by HowK, J.-Town of Centreville v. Woods et al.

STATUTE OF LIMITATIONS CONCEALMENT OF CRIME.-The words "conceals the facts of the crime," in the statute must be held to mean the concealment of the fact that a crime has been committed, unconnected with the fact that the accused is the perpetrator; and the concealment must be the result of some positive act of the accused, calculated to prevent a discovery of the commission of the offense with which he stands charged. And where an indictment for fornication charged the concealment of the crime, by the defendant publicly acknowledging and claiming the said Mary Watson to be his wife," the allegation did not show any such positive act of concealment as would take the case out of the statute of limitations. Opinion by BIDDLE, J.-Robinson v. The State.

66

BOND FOR PAYMENT OF MONEY-CONDITIONAL TENDER.-Suit on a bond, against the maker thereof. The bond provided that in consideration of two shares in the capital stock of the G. R. & I. R. R. Co., to be delivered upon payment of the sum specified, the maker would pay the bearer $200, as the work on the road-bed of said railroad should progress, according to monthly estimates, the whole sum to be due when the road-bed should be ready for the rails. Held, that if the action had been brought to recover any of the monthly installments, no tender of the stock would have been necessary, because the stock was to be delivered only upon payment of the whole sum, but as the action was for the whole sum it could not be maintained without a tender of the stock, on condition of payment, before the commencement of the suit. Opinion by WORDEN, J.-Clark v. Continental Improvement Company.

MANDATE-ESTOPPEL-WHEN PRIMA FACIE PRESUMPTION MAY BE DENIED BY PLEA.-1. A mandate will be awarded in favor of a railroad company requiring a city council to pass an ordinance for the issue of bonds to such company, in compliance with the petition of a majority of the resident freeholders of such city. 2. In such a suit an answer of the city, alleging that a majority of the freeholders had not signed the petition, was held bad on demurrer, on the ground that the answer contradicted the record of the city council, which showed that a committee of the council had reported the petition to be properly and sufficiently signed, but failed to show that the report had been adopted or in any manner acted on by the council. Held, 1. That if this was a suit by a bona fide holder of an issued bond, the presumption might arise that the council had concurred in the report of the committee, but in a suit to compel the issue of the bonds, the presumption at most was only a prima facie one, and might be denied by plea or answer. Held, 2. That the city council was not estopped to deny the fact alleged in the answer, because such an estoppel could only arise in favor of a party who had acted in good

tion 38 of the probate court act, (S. & C. 1218), an undertaking in appeal signed by sufficient sureties is good without the signature of the appellant thereto. 2. Where the undertaking is defective in omitting, by mistake, some of the conditions required by the section, the court of common pleas has power to allow an amendment of the undertaking. Opinion by GILMORE, J.-Johnson v. Johnson.

ACTION AGAINST EXECUTOR EVIDENCE.-In an action against an executor to recover for goods sold to the testator, the defense was that the testator's wife owned a stock of goods and carried on business on her own account, and that the goods in controversy were sold to her on her sole credit. Held: That it was not competent for the executor, as against the plaintiff, to prove that the widow took what was left of the stock at the death of the testator, and appropriated the same to her own use. Opinion by WHITE, J.-Johnson v. Hawkins.

LEVY OF ATTACHMENT-POWER OF SALE.-1. The levy of an attachment in an action against a devisee, will not defeat or prevent the execution of a power of sale, given by the testator to his executor, nor will such levy affect the title of the purchaser at the executor's sale. 2. A testator devised his estate to his five children in equal shares, and authorized and empowered his executor to sell and convey all the real estate of which he died seized. A creditor of one of the devisees caused an attachment to be levied on an undivided fifth part of said real estate. Afterward the executor, in execution of the power, sold and conveyed all said real estate. Held: That the purchaser acquired title to the land conveyed, unaffected by the levy of the attachment. Opinion by BOYNTON, J.-Smyth v. Anderson.

CORPORATION-SUBSCRIPTION TO STOCK-LIABILITY.-E. subscribed for 40 shares of $50 each of the capital stock, consisting of $2,000,000 of the S. T. & P. R. R., agreeing to pay the amount subscribed in such installments as might from time to time be required by the directors of the company, under the provisions of the charter of said company and the laws governing the same, providing, however, that such subscription should not be binding until the aggregate sum of $800,000 in bona fide subscription should be taken to the capital stock between S. & T. was assumed. Subsequently by agreement between E. and the company, the sum of $700,000 was substituted for the $800,000. Held, that upon the bona fide subscription of $700,000 to the capital stock of the company between S. & T., E. became liable to assessment on the sum by him subscribed. Opinion by BOYNTON, J.-Emmit v. S. T. & P. R. R. MANUFACTURING POWERS OF

CORPORATIONS

UNDER STATUTE.-1. A statute should not receive a construction which makes it conflict with the Constitution, if a different interpretation is practicable. 2. By the act of March 25, 1870, entitled "An act to authorize manufacturing corporations to issue preferred

stock," vol. 67 O. L., p. 26, the legislature did not intend to authorize the creation of additional stockholders, and to exempt them from individual liability to creditors, but to enable such corporations, upon the terms in the act provided, to borrow money and guarantee its repayment, with the option on the part of the lenders to become stockholders. 3. Such corporations have power to borrow money for the prosecution of their legitimate business, and to secure its repayment by mortgage, independent of, and without any aid from, the provisions of said act. 4. Where a manufacturing corporation, professing to act under the provisions of said act, issued certificates of preferred stock, 80called, certifying that the corporation guaranteed to holders, the payment of four per cent. semi-annual dividends, and the final payment of the entire amount at a specified time, with the right to convert the preferred stock into common stock, and the company at the same time executed and delivered to a trustee its bond and mortgage to secure the holders of such certificates. Held: That the holders of the certificates did not thereby become stockholders or members of the corporation, but its creditors, and that as such creditors they had a lien upon the mortgage property superior to that of general creditors of the corporation, or of its assignees. Judgment affirmed. Opinion by WELCH, C. J.-Burt, ass. v. Rattle.

TRUSTEE PROCESS-ASSIGNMENT OF WAGES. Where the wages of the principal defendant, which the plaintiff seeks to hold by trustee process, have been assigned to the treasurer of a corporation, by an instrument in writing, the sole object of which was to secure the corporation for goods which it had previously sold, and which it might afterwards sell to the defendant, which assignment was duly recorded under St. 1865, c. 43, § 2, there being no excess in the hands of the alleged trustee over the amount due the corporation at the time of service of process, he can not be charged as trustee. Opinion by MORTON, J.-Giles v. Ash.

TRUSTEE PROCESS-ASSIGNMENT OF EARNINGS.Where, in a trustee process, it appeared that the assignment, upon which the adverse claimant founded his title to the fund, was made without fraudulent purpose as security to the claimant for goods already furnished, and for such as should thereafter be furnished to the principal defendant by the claimant, there being no agreement by said defendant to buy goods to any specified amount, nor by the claimant to sell goods to any specified amount, it was held that the assigment was held "only as security for a debt," within the meaning of statute of 1865, c. 43, § 1, and that the plaintiff was entitled to hold the balance in the hands of the trustee, above the amount due the claimant at the time of the

service of the writ, in the same manner, and with the same effect as if no assignment had existed. See Darling v. Andrews, 9 Allen, 106. Opinion by SOULE, J.Warren v. Sullivan.

MILL ACT-PLEADING EVIDENCE.-1. Upon a complaint under the mill act, every matter which shows that the complainant can not maintain his suit, except the question whether he has sustained any damages, must be pleaded in bar, and decided by the court before the issue of the warrant for a sheriff's jury. Gen. Sts., c. 149, § 8; Charles v. Porter, 10 Met. 37; Howard v. Proprietors of Locks and Canals, 12 Cush. 259; Darling v. Blackstone Manfg. Co., 16 Gray 182; Fitch v. Stevens, 4 Met. 426, distinguished. 2. Upon the trial of such complaint, one of the deeds referred to in the plaintiff's petition as the source of her title to the property alleged to have been damaged, was produced and read, and it appeared that it conveyed to the complainant a parcel containing about 55 acres, but gave no boundaries, but referred to the other deeds for a description of the premises therein granted, neither of which deeds were produced or read. The complainant called her husband, who testified, under objection, that he knew what land was conveyed in said deeds; that it was a parcel containg 55 to 60 acres, and extended to and was bounded by the middle of Mill river on one side, and was overflowed and damaged by the respondent's dam. Held, that the testimony of complainant's husband was admissible to identify the land overflowed. Opinion by GRAY, C. J.-Hadley v. Citizens' Sav. Inst. of Woonsocket.

ABSTRACT OF DECISIONS OF SUPREME COURT OF KANSAS.

July Term, 1877.

HON. ALBERT H. HORTON, Chief Justice.
D. M. VALENTINE, Associate Justices.
66 D. J. BREWER,

EXEMPTION LAW.-1. Section 6 of the exemption law of 1868, (Gen. Stat. 474), which provides that none of the personal property mentioned in this act shall be exempt from attachment or execution for the wages of any clerk, mechanic, laborer or servant," is constitutional and valid. Opinion by VALENTINE, J. All the justices concurring, Affirmed.-McBride v. Ritz.

ATTORNEY'S FEES.-1. A mortgage contained a stipulation that upon default in payment of the debt the mortgage should be "subject to foreclosure according to law, and that an attorney's fee of fifty dollars for foreclosure, with costs of suit and accruing costs, should be taxed against the mortgagor." Held, that where after suit brought, but before decree, the mortgagor paid the debt, interest and costs, the court committed no error in refusing to render judgment in favor of the mortgagee and against the mortgagor for fifty dollars' attorney fee or any part thereof, or in dismissing the action. Life Association v. Dale, 17 Kansas, 185, distinguished. Opinion by BREWER, J. All the justices concurring. Affirmed.—Jennings v. McKay. VOLUNTARY APPEARANCE JURISDICTION.-1. In an attachment proceeding before a justice of the peace, F. interposed a claim for the attached property. A jury was demanded and trial commenced, but before any verdict was returned the parties by written consent stipulated that the jury might be discharged, no further proceedings had before the justice and the matter certified to the district court for trial. The papers and records were transmitted to the district court, the parties appeared, a jury was empanneled and thereupon S. the attaching party, objected that the district court had no

Jurisdiction. Held, that as the parties voluntarily appeared and submitted themselves to its jurisdiction, as no objection was made to the form of the proceedings, and as the question of the title to personal property is within the scope of its jurisdiction, the district court committed no error in overruling the objection. Opinion by BREWER, J. All the justices concurring. Affirmed.-Shuster v. Finan.

OFFICIAL TOWNSHIP BOND EVIDENCE.-1. In April, 1871, N. was a justice of the peace of Franklin township, in Jackson County, and gave an official bond, with W. & S. as sureties. In June, 1872, in certain proceedings had before said N., as justice of the peace of Netawaka township, money was received by him which was not paid over to the party entitled. Held, in an action on said bond to recover such money, that in the absence of testimony, this court could not presume that there had been simply a change in the name of the township, and that the justice in June, 1872, held the same office as that for which he gave the bond in April, 1871, and that a judgment against the sureties must be reversed. 2. In an action against a justice to recover money received by him from a constable and not paid over to the party entitled thereto, the receipt given by the justice to the constable, and signed by the justice with his official title, is competent evidence to charge the justice, and admissible without further proof of its execution. Opinion by BREWER, J. All the justices concurring. Modified and reversed.Neal v. Keller.

JURISDICTION.-1. M. brought an action against B. before a justice of the peace to recover the possession of personal property valued at fifteen dollars. Upon a jury trial judgment was rendered in favor of B., the defendant. Plaintiff appealed to the district court. In that court the parties appeared, a jury trial was had and upon that judgment was rendered in favor of the plaintiff. At the next term of the court the defendant moved to set aside the judgment and dismiss the appeal on the ground that under the statute no appeal could be taken from the judgment of a justice of the peace in cases tried by a jury, in which "neither party claimed in his bill of particulars a sum exceeding twenty dollars." No reasons were given for not raising the question of jurisdiction and former judgment at the trial. The motion was sustained. Held, that waiving the question as to the right of appeal in such cases, the court erred in sustaining the motion, and that the defendant was too late in presenting his objection. Shuster v. Finan, ante. Opinion by BREWER, J. All the justices concurring. Reversed.-Miller v. Bogart.

ABSTRACT OF DECISIONS OF SUPREME
COURT OF COLORADO.
April Term, 1877.

HON. HENRY C. THATCHER, Chief Justice.

EBENEZER T. WELLS, }

66

66

SAMUEL H. ELBERT,

Associate Justices.

WRIT OF ERROR VARIANT FROM RECORD-ERROR NOT GROUND FOR QUASHING WRIT.-1. A writ of error does not lie to the determinations of a court acting in a summary proceeding not according to the course of the common law. 2. The writ of error must not be variant from the record. The decree and proceeding below must be recited, according to the facts, and the character in which the plaintiffs in error sue, as heirs or otherwise, may be asserted in the ad injuriam clause. Under sec. 12 of the statute of amendments, the writ may, in these respects, be amended here if counsel desire. 3. What may be sufficient to reverse the judgment can never be cause to quash the writ of

error. Opinion by WELLS, J.-Vance's Heirs v. Rockwell et al.

CHANCERY PLEADINGS-EFFECT OF REPLICATION TO PLEA-RES JUDICATA-IDENTITY OF SUITS.-1. When a plea is interposed in a chancery suit, the complainant should, if he would question the sufficiency of the plea in its form or substance, have the plea set down for hearing as to its sufficiency. By filing a replication to a plea he admits its sufficiency; and if the issue upon the plea is found for the defendant, and the plea goes to the whole bill, the bill must be dismissed. 2. The defendant filed the plea of res judicata, and upon inspection of the records of the two suits we find that the parties were the same, the right litigated was the same, the relief sought was the same in both suits. The only difference was that the acts complained of, in the second suit were a repetition of the same acts complained of in the first suit, but they were alleged to have been committed after the filing of the first bill. This can make no difference as to the right that was litigated. If the first act was not wrongful, or gave the complainant no right to relief, a repetition of the same act could not have a different effect. The renewal of the threats to invade the same right of the complainant, does not in any legal sense afford a distinct or different ground of action. A contrary doctrine would destroy the stability of all decrees granting or denying injunctive relief, and litigation upon adjudicated points in such cases would never cease. 3. Both bills presents the same issue, involving the same enquiry, viz: the right of the complainant to enjoin the city from occupying and using a certain lot for street purposes. The right or title of the complainants to the relief sought, being the issue determined by the allowance of the demurrer to the former bill, can not be re-litigated by bringing another bill. Opinion by THATCHER, C. J.-City of Denver v. Lobenstein.

AGENCY-INSURANCE.-Where an insurance company appoints an agent authorized to take risks, issue policies and represent the company in effecting insurance, and the agent by his acts or declarations, known and acquiesced in by the company, induces the public to believe he is vested with power necessary to do the act or waive the condition, the company is bound by the acts of such agent. Opinion by COLE, J.-Fleming v. The Hartford Fire Ins. Co.

VACATING JUDGMENT-NOTICE OF APPEAL.-1. The power of the circuit court to relieve a party from a judgment for mere irregularities not affecting the jurisdiction is limited to one year after notice of the judgment, R. S. Ch. 125, § 38. 2. Under § 9, Ch. 264, Laws of 1860 2 Tay. Stats. 1865, the right of a party to appeal from an order of court, is not cut off until the expiration of thirty days after the service upon him of a written notice of the making of such order. Opinion by COLE, J.-Rosenkrans v. Kline.

HIGHWAY TAX-DUTY OF OVERSEER.-1. Our statute Sec. 41, ch. 19, Tay. Stats. makes it the duty of the overseer of highways to give at least three days notice of the time when and place where one must appear and pay his highway tax in labor. 2. A tax due in labor can not be converted into a tax payable in money, without the refusal or neglect of the person from whom it is due to appear and work at the time and place specified in the notice by the overseer. 3. The overseer

has no right to return a tax as unpaid, and the town clerk has no right or power to enter a tax as delinquent, where the proper notice to appear and work has not been given. Opinion by COLE, J.-Biss v. The Town of New Haven.

RIPARIAN RIGHTS-TITLE TO LAND BEYOND ORIGINAL BOUNDARY-DAMAGES-PRACTICE.-1. A riparian proprietor who has lawfully intruded into the water for the construction of a breakwater can not thereby acquire title in fee to the land occupied by such breakwater beyond his original boundary; nor can he, in a proceeding for compensation for the alleged taking of such land, recover for any injury done to the breakwater. 2. Time under rule 20 of this court (relating to motions for a rehearing) can be enlarged by order of the court only, and not by mere stipulation. Opinion by RYAN, C. J.-Diedrich v. N. W. Union Railway Co. [On motion for a rehearing. See 5 Cent. L. J. 268.]

TAXATION-TAX DEED-DEFENSE TO ACTION BY GRANTEE.-1. Without a 'air and equal assessment made in compliance with the statute there can be no valid tax. 2. In an action under § 35, Ch. 22 of 1859, by the grantee in a tax deed, to bar the title of the former owner, any defense, though not enumerated in § 38, which goes to the groundwork of the tax, is admissible, without the deposit required by the latter section. If it were held otherwise, said sec. 38 would be invalid. 3. Thus, such an action may be defended, without any deposit, upon the ground that the assessor did not value defendant's lands, nor any considerable portion of the lands in his town, from actual value, and did not inform himself in any manner of the actual or relative value of the lands, but valued them arbitrarily, and did not make and annex to the tax roll the affidavit required by the statute nor sign or certify said roll. opinion by RYAN, C. J.-Philleo v. Hiles et al.

EQUITY CASES-JURY TRIAL.-1. Under the Constitution and Statutes of the State of Nevada, an equitable defense to an action can not be pleaded in a justice's court. 2. When the district court, in the trial of an equity case, calls a jury to decide specific issues, and the jury also find a general verdict; Held, that the presumption is that the court only called the jury as advisory; that until the verdict has been sanctioned by the court it is no proof that it was actually rendered in the case, and that the party against whom the verdict is found is entitled to ten days after the findings are filed by the court in which to give the notice to move for a new trial. Opinion by LEONARD, J., reversing. Duffy v. Moran.

APPEALS FROM ORDERS MADE AFTER FINAL JUDGMENT.—1. An appeal from a special order made after final judgment must be taken within sixty days after the order is made. 2. In taking an appeal from orders based upon affidavits, no statement on appeal is required. It is only necessary to annex the affidavits to the orders and have them properly certified. 3. The fact that the orders are embodied in a bill of exceptions allowed by the judge, is not sufficient to prevent a dismissal of the appeal, unless the affidavits are annexed to the orders and a certificate given as required by section 1401, vol. 1, Compiled Laws. See Comp. L.,

secs. 1393, 1398, 1251, 1671, 1401. Appeal dismissed. Opinion by BEATTY, J.-Weinrich v. Porteus.

MANDAMUS-CERTIFICATES OF MINING STOCKS.Where relator claims that he is the owner of and entitled to certain certificates of mining stock which the trustees of a corporation refuse to issue him; Held, that mandamus is not the proper remedy, as he has a plain, speedy and adequate remedy at law by an action against the company for the value of the stock claimed, and for the further reason that a mandamus ought not to be issued to compel the trustees of a corporation to issue certificates of stock to relator where it clearly appears from the petition and answer that the stock is claimed by other parties, who have not the opportunity in this proceeding to assert and defend their rights. Mandamus denied. Opinion by LEONARD, J. — Elliott v. Guerreno.

NOTES.

A BILL has been presented to the British Parliament for the establishment of a High Court of Criminal Appeal. The bill, as drafted, provides that the court shall consist of the Lords Chief Justices of the Queen's Bench and Common Pleas, three senior judges, and the Home Secretary, five to be a quorum. The court shall be entitled to take up any case on which there has been a capital conviction on an appeal from the person condemned, and counsel will be heard both for the prosecution and for the prisoner, the expenses of the appeal to be borne by the crown. The judgment of this court must be affirmed by a majority of two-thirds, the execution of the sentence to be stayed until the determination of the court is known.

THE Great Law Case-James Johnson v. St. Andrew's Church, by R. D. McGibbon. Montreal: Dawson Bros. 1877, is the title of a pamphlet of 100 pages, which has been laid upon our table. It is a complete history of a lawsuit which caused considerable comment in Canada, and ininvolved the right of a pew-holder to his pew after notice to surrender it had been given to him by the trustees of the church. The case went to three courts, and it is likely to be taken to another-the English Privy Council. The Superior court dismissed the plaintiff's action for damages for ejection; its decision being affirmed by the Queen's Bench, Donlin, C. J., and Ramsey, J., dissenting. On appeal to the Supreme Court of Canada this judgment was reversed, and a judgment in his favor for $300 damages and costs entered, Richards, C. J., and Strong, J., dissenting.

A CORRESPONDENT writes: "Your publishing in a recent issue the story of the dismissal from the British Navy of an engineer convicted on the 'testimony' of a parrot, leads me to say, that while that story probably exaggerates the weight given to the parrot's 'testimony,' yet it is not such a travesty upon the frequent course of proceedings of naval courts martial as land-lubbers' may suppose. In a recent case, falsifying accounts was proved against an officer by means of copies made by another party. The originals which had been figured on by several persons, were not allowed to be introduced, but the copies containing the maximum of errors of 'falsifying' done by the various hands, was proof conclusive to the minds of the learned members of the court of the guilt of the accused officer. I ought to add that the Navy Department did not sustain the court. I have been Judge Advocate of a number of Naval Courts-Martial, and know whereof I speak."

THE library of the Chicago Law Institute contain, according to a report just published, 9,493 volumes, composed of Text Books, 1,493 volumes; American Reports, 2,618; English, Scotch and Irish Reports, 1,628; Canadian Reports, 110; Leading Cases, 116; Statutes, American, 308; Statutes, English, 153 Digests, American and English, 266; Session Laws, American, 791; Canadian Statutes and Session Laws, 62; Bound Periodicals, 353; 'Trials, 110; American State Papers, 651; Civil and Constitutional Law, 188; General Jurisprudence, Histories, Biographies, Speeches, Reports of Law Commissioners and Law Tracts, 272; Encyclopedias, Dictionaries and Political Statistics, 87; Catalogues, 27; Directories, 42; Ordinances, etc., 31; Proof Sheets, 38; Da. plicates 119. It is also in receipt of 32 law periodicals. But one volume has been lost during the year, although the rules of the institute allow members to take books to their offices.