nus.

Such ruling would, in effect, repeal the law. It would change the plain, unambiguous language of the statute fixing the highest rate of interest allowed in any case, so as to impose no restriction whatever, because, if loans made by an agent are not restricted or controlled by the statute, all that is necessary to evade the law is to employ an agent to make the loan. It is said, however, that the principal is not bound by the acts of the agent where he exceeds his authority; that is, where he charges more than lawful interest, or retains a portion of the principal, as in this case, as a boIt is a sufficient answer to this objection to say that the agent is selected by the principal for the purpose of loaning its funds. The principal may require such seeurity and impose such conditions upon such agent as it sees fit, and has the means at hand to protect itself from the illegal acts of its own employes. In this case it is claimed that the agent of the lender was the agent of the borrower for the purpose of procuring the loan; that is, that Hendrickson made the Corbin Banking Company his agent for the purpose of procuring the loan. The loan seems to have been effected through A. W. Ocabock, who appears to have been an agent of the Corbin Banking Company, and the banking company seem to have been acting as agent of the plaintiff. We are aware that there are strong denials of those facts in the testimony, but the conduct of the parties is conclusive on these points. In conclusion, we hold that where an agent is engaged in the business of loaning money for his principal at the highest rate allowed by law, and contracts for a bonus or commissions from the borrower in excess of lawful interest, the contract will be tainted with usury. The whole transaction is but one contract, and, being within the scope of the agency, the lender is bound by it. Olmsted v. N. E. Mfg. Sec. Co., 11 Neb. 487; s. c.; 9 N. W. Rep. 650; Cheny v. Woodruff, 6 Neb. 185; Cheny v. White, 5 Neb. 256; Philo v. Butterfield, 3 Neb. 259.

The judgment of the district court is clearly right, and is affirmed.

1. ADMINISTRATION - TRUST FUND FOR PAYMENT OF DEBTS.

Where property was conveyed to defendant under a contract binding him to pay the debts of intestate and hold the balance of the proceeds of the property for the children of the deceased, or any one of them, such balance in the hands of the defendant would be a trust fund for the use of such children or child, and plaintiff, administrator of deceased could recover no part of it, unless it ba shown that there were existing debts against the estate of deceased. Griffith v. Parton, S. C. Iowa, June 18, 1882, 12 N. W. Rep, 739.

2. ALTERATION OF WRITTEN INSTRUMENTS-MATERIALITY-GOOD FAITH AND HONEST INTENTIONS. Whenever a note or other instrument is executed by

two or more parties, any alteration in it without the consent of all, rendering the recourse of the party who has not assented more difficult and expensive, and where this is so it does not matter that the alteration was enttrely honest and with no fraudulent intent, it will be deemed a material alteration. Craighead v. McLoney, S. C. Pa., 39 Leg. Int. 280.

3. ATTORNEY AND CLIENT-SUBSTITUTION OF ATTORNEYS LIEN ON JUDGMENT FOR COMPENSATION.

An agreement was entered into by plaintiffs, by which a party, since deceased, was employed to prosecute their claim against the Government for alleged illegal exactions of duties and fees, which, during his life-time, he proceeded to do, employed attorneys, instituted the suit, and paid all the expenses of the proceedings, and, after death, his executrix assumed control, substituting attorneys and paying all expenses, and finally recovered judgment in favor of the plaintiff. Held, that the services of the deceased were in the nature of attorney's services, and that the long acquiescence of 13 years in the control of the proceedings by deceased and his executrix entitles the executrix to a lien on the judgment, and that plaintiff's motion to substitute their attorney be granted on payment to the executrix of one-half of the amount of the judgment, the amount specified in the contract. Dodge v. Schell, U. S. C. C., S. D. N. Y., June 15, 1882, 12 Fed. Rep. 515.

4. COMMON CARRIER-RAISED BILL OF LADING NEGLIGENCE.

The fact that the shipper was allowed to fill the bill of lading in his own handwriting, and leave a blank which afforded apportunity for increasing the statement of the number of bales shipped, will not render the common carrier liable for loss occasioned by the forgery of the shipper in raising the bill of lading. Lehman v. Central R. Co., U. S. C. C., M. D. Ala, 1882, 12 Fed. Rep. 595. 5. CONTRACT BANK STOск. N entered into a verbal contract with D, a director and the president of a national bank, to buy of the latter one hundred and fourteen shares of stock in the bank at $140 per share, upon the condition that he should be made cashier of the bank. Afterwards D notified N that he could not and would not comply with the contract. Thereupon N brought his action to recover damages for breach thereof. Held, the consideration of the contract being against public policy, the contract is void, and N not entitled to recover damages. Noel v. Drake, S. C. Kan., July, 1882, Judge's Headnotes.

- PUBLIC POLICY PURCHASE OF

OPTIONAL DELIV

6. CONTRACT-SALE OF GOODS ERY-WAGERS. The option as to the delivery of merchandise purchased is not illegal if there be an agreement to make actual delivery. The optional contracts which are void are such as do not contemplate the actual delivery of the commodity purchased, but rather contemplate that the subject of the contract is not to be delivered. Gregory v. Wattowa, S. C. Iowa, June 13, 1882, 12 N. W. Rep. 226. 7. EXEMPTION-INSTRUMENTS USED IN CALLING. A resident of Kansas, not married and not the head of a family, carried on his sole business, that of 'an insurance agent and abstractor of titles." and in doing so used the following articles of property: One iron safe, and one set of abstracts, and one cabinet and table." Held, that under subdivision 3, of section 4, of the exemption laws (Comp. Laws of 1879, p. 438). the above mentioned articles are "instruments," within the meaning of said subdivision 3, and are exempt from execution. Davidson v. Sechrist, S. C. Kan., July, 1882, Judges' Headnotes. 8. FEDERAL JURISDICTION

MENT.

COLLUSIVE ASSIGN

Where the plaintiff obtained the legal title to coupons sued on in order to enable him to bring the action, and pretended to pay for them by a check, which was not paid, and plaintiff in fact had no real interest in the coupons: Held, that the plaintiff is improperly and collusively made a party, and it is the duty of the court to dismiss the suit. Fountain v. Town of Angelica, U. S. C. C,, N, D. N. Y., April, 1882. 14 Rep. 71. 9. FEDERAL PRACTICE

-

PROCEEDINGS SUPPLE

MENTARY TO EXECUTION. The examination of a judgment debtor to enable the creditor to discover property to be applied to the payment of his judgment may be directed by statute, and will be a legal remedy; and the Federal courts will follow the statute in ordering the examination. Ex parte Boyd, U. S. S. C.. April, 1882, 14 Reporter, 65.

10. GUARDIAN AND WARD UNEXPENDED PROVISION FOR EDUCATION.

A fund was left by a testator to the testamentary guardian of his infant son, to be expended in the education of his son, in such sums and in such manner as the guardian in his judgment may think right and proper. A large part of the fund remained in the hands of the guardian unexpended, when the infant attained his majority, and was claimed by the infant, by residuary legatees, and also by next of kin of the testator. Held, that any part of the fund remaining in the hands of the guardian unexpended, belongs to the ward on his arrival at age. Nyce v. Nyce, Md. Ct. App., 8 Md. L. Rec., Aug. 5, 1882.

11. HOMESTEAD-VALIDITY OF HOMESTEAD LEGISLATION-WIFE MUST JOIN IN CONVEYANCE. Under the title of an act to exempt homesteads from judicial sale," it is competent for the legislature to provide that a conveyance or encumbrance by the owner is of no validity, unless the husband and wife, if the owner is married, concur in and sign the same joint instrument,” and a mortgage upon the homestead, signed by the husband alone, is void. Bonorden v. Dressen, S. C. Neb., June 21, 1883, 12 N. W. Rep. 831.

12. HUSBAND AND WIFE-CONVEYANCE OF LAND TO WIFE.

Where a husband conveys land to his wife, in an ac

A man formally married a woman who, because of her insanity, which he discovered soon afterwards, was incapable of entering into the marriage contract, and continuing thereafter voluntarily to cohabit with her as his wife, is under a legal obligation to support her; and having furnished such support, he can not, upou a decree of separation on the ground of the invalidity of the marriage, make the same a charge against her separate estate. Gerholdn. Wyss S. C. Neb., June 21, 1882, 12 N. W. Rep. 811.

14. HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE -LIABILITY ON COVENANT.

A certain sum of money was paid to a husband and wife, and in consideration thereof they covenanted to support one A B during the remainder of her natural life. Held, that the wife's interest in the sum was her separate estate, and that she, as well as the husband, was liable on the covenant. Houghton v. Milburn, S. C. Wis., April. 1882, 14 Rep. 96.

15. INSOLVENCY-COMPOSITION-FAILURE OF DEBTOR TO COMPLY WITH ITS TERMS.

In case the debtor fails to cemply with the composi tion, his liability on the debt again becomes active, and suit may be brought in any court in which it might have been brought had no bankruptcy proceedings been commenced, and the question of performance is there subject to trial. Whitmore v. Stevens, S. C. Mich., June 21, 1882, 12 N. W. Rep. 858.

16. INSURANCE, FIRE-WHAT IS A LOSS BY FIRE— PROXIMATE CAUSE.

The plaintiffs' goods, being insured by the defend. ants against fire, were upon a steamboat at the time of its collision with another vessel; fire at once broke out on the steamboat and rendered it impossible to run the engine or pumps to extinguish the fire, or to pump out the water flowing in through the breach caused by the collision. After some time the steamboat sank, carrying down the plaintiffs' goods, which were not burned nor actually touched by the fire. Held, that it was for the jury to decide, upon all the circumstances of the case, what was the proximate cause of the loss sustained by the plaintiffs, and whether it was the result of the fire. New York, etc. Express Co. v. Traders' and Mechanics' Ins. Co., S. Jud. Ct. Mass., March, 1882, 14 Rep., 83. 17. JURY TRIAL-CHALLENGE OF JUROR FOR CAUSE

-COMPETENCY.

The defendant was prosecuted, convicted and sentenced for murder in the first degree. While im panneling the jury one of the jurors stated on his voir dire that he was convinced that the deceased was dead and that the defendant had killed him, and that it would require a great deal of evidence to remove this conviction. The defendant challenged the juror for cause, but the trial court overruled the challenge. It appeared from the questions asked by the defendant's counsel to

other jurors before this challenge was overruled, that the death of the deceased and the killing of him by the defendant, were conceded. Also, immediately after the jury was impanneled the defendant's counsel stated to the jury that it would appear from the evidence that the defendant had killed the deceased, but that it would be shown that the killing was done in self defense; and the evidence did, in fact, show, beyond all doubt, that the deceased was killed by the defendant; and the record of the case also contains the following concession made by the defendant's counsel after the trial of the case, to-wit: "It is conceded by counsel for defendant that the verdict is sustained by the evidence and justified by the testimony." And the verdict of the jury was undoubtedly right. Held, that the trial court did not commit any material or substantial error in overruling the defendant's challenge of the juror for cause. State v. Wells, S. C. Kan., July, 1882. Judges' Headnotes.

18. JURY TRIAL-INCOMPETENCY OF JUROR-BIASCHARACTER OF OPINION FORMED AND EXPRESSED. The formation and expression of an opinion are not alone the test of a juror's competency; but the nature of the opinion may be inquired into; and, if found to be only a transitory inclination of the mind, based upon rumor or newspaper report, etc., the truth of which the juror does not inquire, nor judge, it is not a disqualifying opinion. To work a disqualification there must be an abiding bias of the mind caused by substantial facts in the case, in the existence of which the juror believes; an opinion upon the merits of the case upon the guilt or innocence of the accused of the charge laid in the indictment upon the evidence substantially as expected to be presented on trial. State v. Meaker, S. C. Vt., Reporter's AdVance Sheets.

19. NEGLIGENCE-MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE.

When the master or another servant standing toward the servant injured in the relation of superior or vice-principal, orders the latter into a situation of danger, and he obeys and is thereby injured, the law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. Miller v. Union Pac. R. Co., U. S. C. C., D. Colorado, June, 1882, 12 Fed. Rep., 600.

20. NEGLIGENCE-MASTER AND SERVANT-NEGLIGENCE OF FELLOW-SERVANT.

Plaintiff's intestate, while working as fireman on an engine on defendant's road, was killed by a sudden plunge of the engine into a raceway, caused by a misplaced switch. It appeared that defendant had reduced the force at the depot and put extra work on the switchman, who was an old man; but it also appeared that the failure to close the switch was the result of sheer carelessness on the switchman's part. Held, that the switchman was a coservant of intestate, and that no recovery could be had unless some neglect of defendant as principal also contributed to produce the injury; that it was immaterial what fault defendant may have committed in reducing the force or putting extra duties on the switchman, as it did not appear that such fault contributed to produce the injury. Harvey v. New York, etc. R. Co., N. Y. Ct. App., April 11, 1882, 1 N. Y. Con. Rep., 332.

21. NEGLIGENCE-OVER DRIVING HIRED HORSE-Ev

IDENCE.

The acceptance of a bill of exchange, unconditional on its face, will bind the acceptor as against the payee, notwithstanding the payee's knowledge that the bill has been accepted on the faith of a consignment to be made to the acceptor, which consignment is prevented by the payee's attaching the goods for other claims against the drawer. Bockov n v. National Mechanics, etc. Bank, S. C. Pa., January, 1882, 11 W. N. C., 570.

24. NEGOTIABLE PAPER-UNCERTAINTY. A promissory note in the ordinary form contained the following clause immediately preceding the signature: "If this agent does not sell enough in one year, one more is granted." Held, that such provision rendered the note non-negotiable. Miller v. Poage, S. C. Iowa, 11 Am. L. Rec., 32. 25. PARTNERSHIP-ASSIGNMENT FOR BENEFIT CREDITORS-POWERS OF PARTNERS. One partner can not make a general assignment for the benefit of creditors, except in the absence of the other partner or partners, or when from some valid reason there can be no consultation had. Lieb v. Pierpont, S. C. Iowa, June, 1882, 14 Rep., 77.

OF

26. POST OFFICE-REMEDY FOR REFUSAL OF POST MASTER TO DELIVER MAIL MATTER.

Where the post master refuses to deliver registered letters and letters containing money orders, and other matter addressed through the mail, on which postage has been prepaid, the remedy of the aggrieved party is by mandamus or replevin, and not by injunction. Boardman v. Thompson, U. S. C. C., D. Ky., July 18, 1882, 12 Fed. Rep., 675. 27. RECORD-MORTGAGE-LIEN-FAILURE OF RE

CORDER TO INDEX.

Where a mortgage is left for record and actually recorded, its lien will not be postponed to a subsequent judgment, by reason of the fact that the recorder has failed to enter the same on the book of entries, or upon the index. Wyoming National Bank's Appeal, S. C. Pa., March 27, 1882, 11 W. N. C., 567.

28. REMOVAL OF CAUSE-TIME OF APPLICATION. After a cause in the State Court has been brought to trial and a decree entered from which an appeal has been prosecuted to the Supreme Court of the State, where the decree of the lower court has been reversed and the cause remanded with directions to enter a decree in accordance with the opinion of the Supreme Court as to the rights of the parties, it is too late to remove the case to the Federal Court under the act of Congress in rela

tion to removal of cases, approved March 2, 1867. Darst v. Peoria, U. S. C. C., N. D. Ill., 14 Ch. Leg. N., 383.

29. SALE FAILURE OF CONSIDERATION -- OVERISSUED STOCK.

The rule that a party selling as his own, personal property of which he is in possession, warrants the title to the thing sold, and that if, by reason of defect of title, nothing passes, the purchaser may recover back his money, though there be no fraud or warranty on the part of the vendor, does not apply to the case of a bona fide vendor of overissued stock of a corporation; as he has a title which he can transfer and a remedy against the corporaton. People's Bank v. Kurtz, S. C. Pa., 39 Leg. Int., 288.

30. WITNESS-PRIVILEGE FROM ARREST.

Parties and witnesses attending in good faith any legal tribunal, with or without a writ of protection, are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning; and this immunity extends to all kinds of civil process, and affords ab solute protection. Larned v. Griffin, U. S. C. C., D. Mass., July 6, 1882, 12 Fed. Rep., 590.

RECENT LEGAL LITERATURE.

LAW OF STOCK BROKERS. A Treatise on the Law of Stock Brokers. By Arthur and George Biddle. Philadelphia, 1882: J. B. Lippincott & Co.

This work is compactly written and is but little in excess of the convenient size of four hundred pages. The subject matter, being to a very considerable extent made up of the customs and usages peculiar to a certain craft, it follows as a consequence that few of the profession are familiar with the transactions in which the principles discussed are applied. The busy lawyer, to whom the slang of the stock exchange is a barbarous jargon, who is suddedly called upon to consider some of the numerous intricate questions arising from dealings on "Change," will not only find this work a boon and a mine of fresh information, but we apprehend will be particularly pleased to find it in such compact and available shape. The work is well and clearly written, and will be a most valuable addition to the library of those members of the profession having occasion to investigate the questions treated.

TEXAS PLEADING AND PRACTICE. The Rules of Pleading and Practice in the Courts of Record of the State of Texas. By John Sayles and B. H. Bassett. Third Edition. St. Louis, Mo., 1882: The Gilbert Book Company.

The object of this work is not to offer to the profession a new treatise on the subject of pleading and practice in general. But, assuming a familiarity on the part of the reader with the works of Chitty, Story, Gould, Stephen and Mitford, the authors confine themselves to an at

tempted arrangement under appropriate headings of the provisions of the statute of Texas and the rules of decisions of its courts. In other words, its sphere is supplemental to the body of the literature on this topic, and as such it can not fail to be very valuable to the Texas practitioner, to whom, especially, it is addressed. The citation from Texas authorities is very abundant, but we think that a mistake was committed in adopting the plan of citing cases by the volume and page merely, without giving the titles of the cases. In the system pursued, no practicable amount of care in verifying citations, will prevent the occurrence of frequent errors.

SIXTH SAWYER. Reports of Cases Decided in the Circuit and District Courts of the United States for the Ninth Circuit. Reported by L. S. B. Sawyer. San Francisco, 1882: A L. Bancroft & Co.

The mechanical execution of this work is excellent. The character of the cases reported is the same in all substantial particulars as in its predecessors. The opinions have not, in many instances, the merit of brevity, and consequently it is fortunate that the reporter has devoted but hittle space to statements of case and the arguments of counsel.

MANUAL FOR ASSIGNEES. A manual for Assignees, Insolvent Debtors and others affected by Assignments in Ohio, in Trust for the Benefit of Creditors, or to avoid Arrest, with Forms, Notes of Decisions and Practical Suggestions. By Florien Giaque. Cincinnati, 1882: Robert Clark & Co.

The design of this work, as stated by the author, is to furnish a convenient, reliable and labor saving guide to all who are interested in assignments in trust for the benefit of creditors in Ohio, either as probate jgdges, as members of the bar, as parties to such assignments, or as creditors of insolvent debtors, etc. The work seems carefully and honestly done. The style is clear, and, as should be the case in a book intended, to some extent, for non-professional readers, free from technicalities. For the same reason, too, the text is not encumbered with a superabundant citation of authority. The forms are scattered through the body of the work, under the appropriate headings, a much more convenient and logical arrangement, it seems to us, than the plan usually pursued, of bunching them together, in a sort of appendix at the end of the volume, after the plan pursued by the unfortunate editor who, tortured with the conflicts and doubts arising from discordant rules for punctuation, withdrew the troublesome points altogether from the body of the volume, and printed at the end several pages of commas, semicolons, periods, etc., with a short note suggesting that the reader distribute them wherever theory or fancy should suggest.

15. Under sec. 5408 Rev. Stat. 1879, and sec. 6750 same, can tax payer pay all of the following taxes in county warrants, to-wit: county revenue, county special, county sinking, county judgment? If not, give authorities. And are not the following taxes illegal, to wit: county revenue, $1.25 on hundred; county special, 60 cts.; county sinking, 20 cts.; county u dgment, 40 cts., over and above 50 cts. for the first, and all of second, it being for county expenses, and all of fourth, not required to pay valid bonded indebtedness? TAX PAYER.

Gainesville, Mo.

16. A sold land as follows: An undivided one-fourth to B, C and D, in the proportion of one-half of the one-fourth to B, and one-half of the one-fourth to C and D. At the time of the sale, a recorded judgment of foreclosure was outstanding against the entire undivided one-fourth sold. The grantees, B, C and D, agreed jointly and severally to assume and pay said judgment as a part of the purchase money. Band C subsequently became financially embarrassed, and D was obliged to pay the whole amount of the judgment. What are D's rights and remedies as against his cograntees, B and C ? D. E. W. Oshkosh, Wis.

17. The Illinois reports are full of dicta to the effect that the action of forcible entry and detainer is purely

possessory; that it is maintainable only for injury to the plaintiff's actual (not constructive) possession: and that title can not be tried therein, nor (in most cases) evidence of title submitted; but that the relation of landlord and tenant must be first established. On Jan. 1, 1881, A leased an unimproved lot in Illinois to B for one year. During the tenancy B erected a frame house on the lot and sold the house to C. At the expiration of the tenancy, B moves out, leaving the premises for a few days unoccupied. Thereupon, and before A has taken actual possession, C, claiming the house, moves in without A's knowledge, and so remains in possession of the premises after due demand by A. Under the Illinois statute, can A maintain forcible entry and detainer against C? If so, must he not first establish his legal title to the premises? Are there any Illinois authorities on this point? Chicago, Ill. W. R.

19. A, being indebted, executed to B, in 1875, in Missouri, his promissory note for $50, payable six months after date. At that time A was insolvent, and remained so until recently, when B called upon him for payment and threatened suit, stating, at the same time, that he had long since destroyed the note under the supposition that it would never be worth anything. How can B collect his debt? Can he recover under sec. 2852 Rev. Stats. Mo., providing for the institution of suits on instruments lost or destroyed, or does his voluntary destruction of the note amount to a cancellation thereof? JAMBON.

St. Louis, Mo.

20. A sued and obtained judgment against B in the 10th Judicial Circuit. B appealed to the Supreme Court, and died while the cause was pending in that court, leaving no estate. Now, as there can be no administrator where there is no estate to administer, and consequently there is no one to be made a party defendant as the representative of B, and the court can not render judgment against the deceased, how can A enforce his judgment? Can he collect of the securities on the appeal bond? JAMBON. St. Louis, Mo.

21. Section 3, chap. 57, Gen. Stats. Ky., provides: If the life of any person, or persons, is lost or destroyed by the wilful neglect of another person, or persons, company, or companies, corporation, or corporations, their agents, or servants, then the widow, heir, or personal representative of the deceased, shall have the right to sue such person, etc." 1. Under this statute does a right of action accrue (a) jointly to all the persons named; or (b) separately to each of them; or (c) only to the one who sues first; or (d) primarily to the widow, and if none, or if she refuses to sue, then to the heirs, etc., in the order named? 2. May a compromise with the widow be pleaded in bar of an action brought by the heirs or personal representative? B. & S.

Lexington, Ky.

QUERIES ANSWERED. Query 9. [15 Cent. L. J. 78.] A makes the following provisions in her will: 1st. My funeral expenses shall be paid first of all; next, all my