be good in metaphysics. It is certainly bad in law.

In another part of the opinion an attempt is made to establish the proposition that we must search for a fault or negligent act in order to find the cause of the injury in the case of fires set out by locomotives. If this position be sound, which, for the purpose of this case, I may here admit, we find the fault, as I have above shown, in the negligence presumed by the law when fires occur from passing trains. But I confess to little satisfaction in these speculative metaphysical inquiries into causation. All I care to know is this: The statute declares that the railroad company shall be liable for property burned by fires set out by its engines. I do not see that the corporation could be relieved of liability if we should conclude that the wind had a hand in the work of destruction. I have so little respect for metaphysics that I am very sure it could not satisfy my mind that in such a case the fire was not "set out or caused" by the engine operated upon the road. The simple fact remains that fire was used in operating the engine; that it did escape and burn the property. I care nothing about the agencies which spread the fire. The source of injury was the engine which set it out, and caused the destruction. In just such a case the law declares that the corporation is liable, and right there discussion ought to end.

An argument of the majority opinion is based upon the importance and public character of railroads. They are, it is true, constructed and operated for public purposes. This court holds that the people may be taxed to aid in their construction. The legislature may control their operation. If in the operation of these public agents, the property of the citizen is destroyed, the law ought to provide for compensation. This is in accord with justice and the spirit of our constitution. Such compensation ought to be rendered by the public agent, the railroad company destroying the property. To provide for such an eminently just and constitutional remedy, the statute in question was enacted.

Common carriers have always been charged by the common law with liability for all losses of goods transported by them except as may be caused by the act of God or the public enemies. They become the insurers of the goods they carry. This rule is based upon public policy and the public nature of the employment of carriers. I have never heard complaints of it. So favored is it by the law that it cannot be waived by express contract. As the law makes carriers insurers of the subjects of transportation, why may it not impose the same obligation as to other property exposed to peril by the means used in the prosecution of their public employment? I know of no reasou why it may not.

In another part of the opinion of my brothers, it is, in effect, admitted that railroad companies do insure against risk of fires set out by their trains, and render compensation in advance by payments made for the right of way for their roads. If the companies do, in this way, pay for such risks, as is claimed by the majority, their arguments against

liability, it seems to me are overthrown by the admission. It is surely competent for the legislature to so provide that the railroad companies shall render compensation for actual losses by fire set out by their engines, rather than pay for the risk of such losses. Their liability for such risk being admitted, it cannot be denied that legislation may substitute therefor liability for the actual loss.

But this court had decided that the future risk of fire from trains, cannot be considered an element of damages for which the land owner may claim compensation upon condemnation of the right of way. Such risk to buildings and property which may be put upon the land after the construction of the railroad, is not to be considered in estimating damages. Fleming v. C. D. & M. R. Co., 34 Iowa 353. The doctrine announced in the majority opinion seems to me to be in direct conflict with this decision.

It is insisted by my brothers that the doctrine I contend for, would impose the necessity upon railroad corporations of increasing their charges in order to enable them to pay the damages that would be assessed for losses by fire, and that the burden would thus be made to fall upon the community at large. If this position be admitted, I am unable to discover that it presents an objection to the construction of the statute for which I contend. I think that if the public wants or convenience demand that the property of the citizen be put at hazard, the public ought to render him compensation if it be destroyed. But I think this objection is purely imaginary. The statute in question was enacted more than five years ago; the interpretation I contend for has, I think, been regarded as correct by the profession and the nisi prius courts. I may certainly say that the contrary interpretation has not had the approval of the professional mind of the State. But during this period I have never heard it intimated that the charges imposed by railroad companies have been in the least degree affected by the existence of the

statute.

It is also insisted by the majority of the court that the construction of the statute for which I contend would render a railroad company liable in case the owner of the property burned contributed to its destruction by his own negligence. This is denounced by my brothers as an outrage. I am not required to examine the correctness of the proposition, for I am very clear that the question is not in the case. Indeed, I do not understand that it is so claimed, but the doctrine condemned is announced for the purpose of bringing discredit upon the construction of the statute contrary to the views of the majority. It is a manner of argument hardly admissible in judicial decissions, and is the prolific mother of dicta which have given courts and the profession so much trouble. When a case involving this question comes before the court, it will be the time to consider it; until then it cannot be decided.

The construction adopted by the majority of the court takes all the life out of the statute. It is in effect that railroad corporations are relieved of liability under the enactment when absence of neg

ligence is shown. They were so relieved of liability before, and without the statute. Its enactment was, therefore, vain.

But it is said that under this construction of the statute, want of negligence may be shown as a defense; that by the statute the burden of proof as to negligence is changed. A brief consideration of this position will, I think, show that it is not supported by reason and legal principles.

The rule of law relating to the rights of the parties, as laid down in the majority opinion, is this: A person whose property is burned by fire communicated by a railroad train may recover, if it was set out through negligence of the employees operating the train. Let the rule be stated briefly in other words. Plaintiff may recover if defendant set out the fire and if defendant was, in the act, negligent. Two things, it would seem, must exist to fix defendant's liability: 1. Setting out the fire. 2. Negligence. One of these things is just as necessary as the other to support the right of the defendant to recover. So far we have stated the rights of the parties. We will now inquire as to the remedy, under the view just stated that the statute changes the burden of proof.

In an action to enforce the liability, the onus rests upon plaintiff to show the setting out of the fire. Here he may rest, of course. If defendant introduces no evidence may plaintiff recover? The theory we are now considering requires the double answer, no and yes. No, for the right to recover rests upon negligence, and that has not been shown. Yes, for the burden of showing absence of negligence rests upon the defendant, which he has not established.

The rules of the law require a plaintiff to establish his right to recover, and the onus rests upon him to show every fact necessary to support that right. In the case before us, as it is regarded by my brothers, the absence of negligence would not be a defense, for the existence of negligence is a necessary ingredient to create a right to recover, and must be shown to establish such right. The defendant, then, is not required to prove a negative, and to show the non-existence of a necessary fact supporting plaintiff's right to recover. No such course of pleading and practice has ever prevailed in courts under the common law. Yet such a rule of pleading is the necessary consequence of the construction of the statute in question which I am resisting. It cannot be possible that the legislature intended to establish a practice and course of pleading so utterly in conflict with the principles of our jurisprudence, so destitute of support from reason, and never before heard of in this land. If the legislature wanted simply to change the burden of proof, as is claimed by my brothers, surely language would have been employed which would have expressed that intention with reasonable clearness and certainty, and not the language of the statute in question, from which such intention can be gathered, if at all, by strained construction, based upon speculative and abstruse reasoning.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, January 25, 1879.]

PRACTICE - INDICTMENT CHANGE OF VENCE FROM COUNTY TO CIRCUIT COURT.- This was an information filed in the County Court of Knox County against the defendants for an alleged violation of the dram shop act, in selling liquors without a license. The defendants filed there petition for a change of venue, alleging the prejudice of the judge of the county court, and also the prejudice of the circuit judge of the eighth judicial circuit. Thereupon the venue was changed against the defendants objection to the Circuit Court of Henry County. In the Henry Circuit Court the defendants objected to the courts' assuming jurisdiction, which was overruled, and a trial had, resulting in the conviction of defendant, who appeals, and assigns for error, that the circuit court could not acquire jurisdiction by change of venue. The court say: "The section of the statute relating to a change of venue in eriminal cases provides that when a change of venue is granted, it may be to some other court of record of competent jurisdiction in the same county, or in some other convenient county, to which there is no objection. Rev. Stat. 1874, 1095. § 19. Inasmuch as this proceeding was commenced by information in the county court, and could be so commenced only in that court, the statute providing that all offenses cogniza ble in the circuit court shall be prosecuted by indictment, a majority of the court are of opinion that as the proceeding could not originally have been commenced and prosecuted by information in the circuit court, so neither could there be prosecuted in that court a case commenced by information in the county court, on change of venue from the latter court; that the circuit court was not in this instance a court of record of competent jurisdiction within the meaning of the provision of the statute cited, and that it was error to grant a change of venue to the circuit court." Reversed Swanson v. People.

INSOLVENT DEBTORS - PROCEDURE APPEAL BOND-WHETHER APPEARANCE ON APPEAL MUST BE PERSONAL OR BY ATTORNEY.-H a creditor of M caused the latter to be arrested as his debtor, charging him with fraud and with a refusal to surrender his property in satisfaction of process for the collection of H's debt. M made application for a discharge. Issue was formed, and M tried by a jury. He was found not guilty of fraud, but "guilty of a refusal to surrender his estate for the payment of judgment against him and in favor of H," and the county court ordered M to be remanded to the custody of the sheriff. From this judgment defendant appealed and gave bond. The cause then pending in the circuit court was called for trial, when M. appeared by attorney; but H., by his attorney, objecting that M. was not present in person, caused him to be called, and he then not appearing, his security on the appeal bond was then called, but did not make his appearance. Thereupon H. moved that the appeal be dismissed for want of prosecution in person by M. The court sustained the motion. From this judgment M. appeals to this court. DICKEY, J., says: "It is insisted by appellee that the failure of M. to appear in person and prosecute the appeal in person was a sufficient ground for the dismissal of the appeal. In support of this position, reliance seems chiefly to be had upon the statutory provision as to the condition of the bond, which says 'he will appear before and abide whatever decision the circuit court

shall make in the premises.' An examination of the entire sentence, however, will show that this undertaking to appear and abide is conditional. The language of the condition is that 'in case the appeal is dismissed or the order or judgment of the county court is affirmed, in whole or in part, he will perform the same, and will appear before and abide,' etc. This does not require a personal appearance before the court until the case has reached a stage at which it is the province of the circuit court to make a decision requiring the appellant to perform it." Reversed' SCHOLFIELD and WALKER, J.J., dissent. Maher v. Hewitt.

REPLEVIN-TITLE TO PERSONAL PROPERTY-HUSBAND DOING BUSINESS WITH SEPARATE PROPERTY OF WIFE. This was an action of replevin brought by appellant to obtain possession of certain goods distrained for rent by appellee as the property of I. S. Robinson and Abraham Robinson, the husbands of appellants. The only quest on in the case is whether the title to the property was in appellants or their husbands, and in determining this question it is claimed that the court erred in instructing the jury. BAKER, J., says: "The 3d, 4th, 8th and 9th instructions given for appellee are based upon the law as announced by this court in Wilson v. Loomis, 55 Ill. 352, to the effect that if a married woman advance her own separate money and place the same in the hands of her husband for the purpose of carrying on any general trade, although in the wife's name, and the husband by his labor and skill in that undertaking increase the fund, the entire capital embraced in the enterprise, together with the increase, will not constitute the separate estate of the wife, but will be liable for the debts of the husband. To the same effect are the cases of Elijah v. Taylor, 37 Ill. 247, and Worthan v. Price, 47 Ill. 22. See also Bromwell v. Dixon, 37 Ill. 198. The cases of Dean v. Bailey, 50 Ill. 481; Blood v. Barnes, 79 Ill. 437. and Primmer v. Clabaugh, 78 Ill. 94, are entirely consistent with those above cited; and in Dean v. Bailey, and Blood v. Barnes, the marked differences between the two classes of cases are pointed out and commented upon." Affirmed.-Robinson v. Brews.

PRACTICE AMENDMENT-CHANGING NAMES OF PLAINTIFFS AFTER SUIT BROUGHT. This was an action brought by Daniel and Asher Townsend for the use of W. and Z. Torm, and against appellant. When the case was reached for trial, and after a jury was impanelled, plaintiff moved the court for leave to strike out the names of the Townsends as plaintiffs and to permit the suit to progress in the name of W. and Z Torm, which was allowed. Judgment went against defendant. The only ground urged for a reversal is that the court permitted a change of plaintiffs. WALKER, J., says: "The correctness of this decision depends upon the construction of the 24th section of the practice act, allowing of amendment. These provisions are broad and comprehensive, and were no doubt adopted to obviate the hardship that was experienced from the earlier decisions of this court refusing to allow such amendments. This section allows any and all amendments in form or substance in any process, pleading or proceeding which may enable the plaintiff to sustain his action on the claim upon which it was intended to be brought, or the defendant to make a legal defense. The amendment in this case clearly falls within the provisions of the section, and the court committed no error in allowing it. The same question was before us in 79 Ill. 22, and it was there held that the suit might be dismissed as to the plaintiff who brought the suit, and the parties entitled to sue might be substituted as plaintiffs. That case is decisive of this." Affirmed.-McDowell v. Torm. EQUITY-BILL FOR A DEED TO LAND TENDER OF UNPAID BALANCE OF PURCHASE MONEY.-D, the

appellant, being the owner of certain lands, contracted to sell them to P for a certain sum, to be paid in installments. Upon P giving D security for the purchase-money, D gave P a contract for the sale of the land. Between that time and the bringing of the suit payments were made by P to D, most of which were indorsed on the contract of sale. D obtained possession of the contract of sale, upon which were the indorsements, and destroyed it. This bill was filed by P claiming a certain balance still due from him to D, and that he had tendered that amount and demanded a deed, asking for relief. The court below decreed that the balance which they found to be more than P acknowledged should be paid into court for the use of D, and that D should execute a deed to P. Defendant appeals. DICKEY, J., says: "The first objection made to this decree is that the tender made before the filing of the bill was less than the court found due. It is undoubtedly true that when the balance of the purchase-money can be ascertained, the complainant is not entitled to a conveyance without an offer on his part of the purchase-money; and it is true that in such case the offer should be made before the bill is filed, but in this case the evidence of the payments which were indorsed upon the back of the original contract was destroyed by the wrongful act of defendant himself. When the court is satisfied that the party complainant under such circumstances has tendered or offered what he believed to be the true amount, and when he offers to pay whatever amount the court may find to be due, a party is not to be turned out of court because he was unable to tender the exact amount. See 27 Ill. 219." Affirmed.-Downing v. Plate.

MEASURE OF DAMAGES OCCASIONED BY BUILDING OF RAILROAD TRACK NEAR RESIDENCE.-Appellee, as owner of a lot of ground in the city of Chicago, and which he occupied as a residence, sued certain railroads for damages claimed to have been incurred by laying their tracks near his dwelling, the running of cars, etc., by which smoke and cinders were cast into his house and lot, etc. Verdict and judgment below for plaintiff. Defendant appeals, and assigns for error the refusal of the court below to give the following instruction: "The plaintiff can not recover any damages occasioned by the use of the defendant's roads, or either of them, such as damages occasioned by smoke, ashes or cinders, deposited upon the plaintiff's premises, except for the time laid in and covered by the declaration; that is, from the time of the construction of the tracks to the commencement of this suit, to wit: on the 2d day of December, 1875, and such damages, if any, you must find from the evidence, and such damages do not include and are not measured by the depreciation of the market value of the property." WALKER, J., says: "This instruction asserts a correct legal principle in all but the last clause. The measure of damage is the loss sustained by the nuisance, the injury from the jarring of the building, the throwing cinders, ashes and smoke upon appellee's premises. The depreciation of the value of property by these causes may be considered general depreciation in value from other causes, but not mere inconvenience in approaching or leaving the property, or the noise or confusion in the vicinity. This court has repeatedly held that damages to property not taken for public use, must be real and not speculative, and it must depreciate the price as to its use. And the depreciation is determined by comparing its value before and after the structure is made which produces the injury. 70 Ill. 238; Id. 324; 82 Ill. 333; 83 Ill. 535." For other reasons, however the judgment was reversed.-C. M. & St. P. R. Co. v. Hall.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

February, 1879.

SLANDER-REPETITION BY OTHER PERSONS.-One who utters a slander is not responsible, either as on a distinct cause of action, or by way of aggravation of damages of the original slander, for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control, and who thereby make themselves liable to the person slandered; and such repetition can not be considered in law a necessary, natural or probable consequence of the original slander. Ward v. Weeks, 4 Moore & Payne, 796; s. C., 7 Bing. 11; Tunnecliffe v. Moss, 3 Car. & K. 83; Barnett v. Allen, 1 F. & F. 125; Dixon v. Smith, 5 H. & N. 450; Oarkin v. Scott, 1 H. & C. 153; Derry v. Handley, 16 L. T. (N. S.) 263; Stevens v. Hartwell, 11 Met. 542, 550; Terwilliger v. Wands, 17 N. Y. 54. Opinion by GRAY, C. J.-Hastings v. Stetson.

EQUITY CERTIFICATE OF STOCK WRONGFULLY ISSUED PARTIES.-Where, without any negligence or authority of the plaintiff, a certificate of five shares owned by her in the defendant corporation, with a forged power of attorney endorsed thereon, was presented and surrendered to the corporation,and the corporation thereupon issued a new certificate for these shares to a third person named in the forged power of attorney, who claims to hold the same, equity will compel the defendant to issue a new certificate of shares to the plaintiff and pay the dividends thereon; and the plaintiff's right to maintain a bill for that purpose against the defendant is wholly independent of the question whether it has also made itself liable to such third person upon the certificate issued to him, and whether it can maintain any action against him by reason of his having obtained that certificate by means of a forged paper, and such third person is not a necessary party to the plaintiff's bill. Pratt v. Taunton Copper Co., 123 Mass. 110; Salisbury Mills v. Townsend, 109 Mass. 115. Opinion by GRAY, C. J.-Pratt v. Boston & Albany R. Co.

NUISANCE-DAMAGES-MASTER'S REPORT.-A bill in equity was brought by the owner of a wharf and dock in the city of L, for a nuisance in discharging filth through a common sewer, constructed by the defendant city, into said dock, and thereby partially filling it up and rendering it unfit for navigation. The bill prayed for an injunction and for damages. A channel had been dug along the dock and across certain flats belonging to other persons, who had granted no right therein to the plaintiff. Held, 1. That the plaintiff was only entitled to damages for the filling up of the channel within the limit of her ownership, the filling beyond that limit producing injuries not differing in kind from those suffered by other persons owning lands bounding on the harbor or navigating over the flats, and remediable by indictment. 2. The matter having been referred to a master to report whether a peremptory injunction should be granted, and whether and by what other means or scheme the injury to the plaintiff's estate might be remedied, it was error for the master to decline to pass upon or report propositions offered by the defendant for the sole reason that they all involved the exercise of the right of eminent domain on the part of the city. 3. The increased expenses, on account of the filling, to the partnership, of which plaintiff was a member, in doing business at the dock and wharf, and the consequent loss of profit to the plaintiff, who was to receive a rent proportioned to the amount of the business, can not be taken into account as due to the plaintiff individually, nor in any way reckoned as an item of damage to her estate. Opinion by GRAY, C. J.-Breed v. Lynn.

PROMISSORY NOTE "PAYABLE AFTER DEATH."The defendant's intestate, who was seriously ill with heart disease, made a promissory note, in terms "pay. able after death," to the order of the plaintiff, to whom he was engaged to be married, and delivered it to her in a sealed envelope, with the request that it should not be opened until after his death, at the same time telling her there was something which would provide for her in case anything should happen to him, and that if they were married, he wanted it given up, to which she consented. The plaintiff claimed that at that time the intestate was indebted to her for services rendered. Held, that these circumstances, wholly inconsistent with the theory that the instrument was given as a statement of account, as well as the terms of the instrument itself, were conclusive evidence that the intestate was attempting to make a provision for the plaintiff out of his estate, in case he should die without marrying her; and that the note being without consideration was void. It was not valid either as a gift causa mortis or as a testamentar disposition of property. Parish v. Stone, 14 Pick. 198; Hulse v. Hulse, 17 C. B. 711. Opinion by SOULE, J.-Warren v. Durfee.

SUPREME COURT OF MISSOURI.

October Term, 1878.

[Filed March 10, 1879.]

HOMESTEAD-MOTION TO QUASH SHERIFF'S RETURN SETTING OFF EXEMPTION THE PROPER PROCEEDING, WHEN THE EXEMPTION CAN NOT BE CLAIMED AGAINST JUDGMENT ON WHICH THE EXECUTION ISSUED.-This was an appeal from the judgment of the court below refusing to sustain a motion to quash that portion of a sheriff's return, relating to the setting off the homestead of the execution debtor. The debt which was the basis on which the execution issued was contracted prior to the acquisition of the farm whereon the execution was levied. Held, that defendant therefore was not entitled to a homestead in the land levied upon (Francis v. Quigley, 57 Mo. 284), and the motion to quash was an appropriate way of reaching the unwarranted exemption. 2. And there was an additional reason why the land claimed as a homestead was not exempt from execution; the note on which plaintiff obtained judgment was given by defendant in part payment for a farm bought of plaintiff, and exchanged by him for the farm on which he now claims s homestead; and as he could not have asserted against the debt of plaintiff a homestead right in the first farm, no more could he assert such right in the second farm. 1 W. S. p. 699, sec. 8. Reversed and remanded. Opinion by SHERWOOD, C. J.-Creath v. Dale.

PRACTICE VARIANCE BETWEEN ALLEGATIONS AND PROOF-IF ADVERSE PARTY IS MISLED, THIS FACT CAN ONLY BE ESTABLISHED BY AFFIDAVIT— ACCOUNT ANNEXED TO PETITION CAN BE MADE DEFINITE AND CERTAIN ON MOTION FOR THAT PURPOSE.-Action for mechanic's lien, on an account for work done on house and materials furnished therefor. Defendant denied allegations of petition, and alleged that plaintiff had contracted to do the work for a much less sum, which she had fully paid, etc. Judgment for plaintiff, and defendant appeals. Held, 1. If there was any variance between the allegations of petition and evidence of in support thereof, and defendent was thereby misled, she should, under the statute (2 W. S. 1033, sec. 1), have set forth in what re

pect she was misled, and such affidavit is the only statutory test of that fact. Fischer v. Max, 40 Mo. 404; Turner v. Railroad, 51 Mo. 501; Clements v. Maloney, 53 Mo. 652: Wells v. Sharp, 57 Mo. 56; Ely v. Porter, 58 Mo. 158. As the affidavit of defendant was not filed, the conclusion is warranted that she was not misled. 2. The statute requires the items of the accounts to be either set forth in the pleading, or a copy of such account to be attached thereto (2 W. S. 1020, sec. 38), or else no evidence can be given respectihg such items. This was substantially complied with in this case, and if those items were not set forth with sufficient particulars, defendant could have moved that the petition be made more definite and certain. 2 W. S. 1018, sec. 20. Affirmed. Opinion by SHERWOOD, C. J.-Meyer v. Chambers.

COURT OF APPEALS OF KENTUCKY.

January Term, 1879.

INNOCENT PURCHASER FROM A LUNATIC BEFORE INQUEST ESTOPPEL OF WIFE.-1. If an innocent purchaser from a lunatic, without knowledge of his insanity, can not be put in statu quo, the conveyance of the lunatic should not be set aside, at the suit of the lunatic or his personal representative. Chitty on Con. 310; 1 Parsons on Con. 386: 1 Hilliard on Con. 310; Metcalf on Con. 80, 81; Wiley v. Weakley's Estate, 24 Ind.; Musselman v. Cavins. 47 Ind, 2. The wife of a lunatic knowing his insanity is estopped from making complaint in her own right in this case, wherein she joined with him in the conveyance of eighty acres of her land in part payment for a steamboat purchased by him, by concealing his insanity and assisting him in making repairs on the boat, and acquiescing in the purchase, until the boat was seized for repairs, etc., when it was too late for the other party to be put in statu quo in consequence of the insolvency of her husband. 3. Coverature will not be invoked and used as a cloak for fraud. Davis v. Tingle, 8 B. Mon. 542; Barby v. Bainbridge, 11 B. Mon. 115; Wright v. Arnold, 14 B. Mon. 643; Connally v. Branstler, 3 Bush, 752. Reversed. Opinion by HINES, J.-Rush v. Fenton.

PURCHASER

MISTAKE IN WRITTEN CONTRACT UNDER EXECUTION SALE-REVERSAL OF DECREECOMMISSIONER'S SALE.-1. Proof of mistake in a written contract must be clearly established. When a contract is reduced to writing and is treated by all the parties as the contract for nearly eleven years, without any discovery of a mistake as to its terms, proof only of admissions of one of the parties, with other proof contradicting its terms, can not be held sufficient to authorize the chancellor in holding that the mistake has been clearly established. 2. When the officer in whose hands the execution is placed can justify his acts under it, the purchaser of the property sold by virtue of the execution will acquire a valid title as against the execution defendant. 3. Reversal of judgment or decree, under which a sale is made, does not affect the title acquired by the purchaser at the sale. The reversal is no ground for quashing the sale. 4. This rule applies when the purchaser is plaintiff in the reversed judgment the same as if he were a stranger. Parker's Heirs v. Anderson's Heirs, 5 Mon. 445; Amos v. Stocton, 5 J. J. Mar. 638; Clerk v. Farrow, 10 B. Mon. 446; Bumingfield v. Reed, 8 B. Mon. 102; Gossom v. Donaldson, 18 B. Mon. 236. 5. The chancellor or court rendering the judgment of sale becomes the vendor of the property, and the commissioner or sheriff is but the agent of the chancellor or court. When a commissioner's sale is confirmed, the chancellor loses all power over it, except during the term at which the or

der of confirmation is made, and the only remedy is by appeal from that order. Reversed. Opinion by PRYOR, C. J.-Yocum v. Foreman.

SUPREME COURT OF INDIANA.

November Term, 1878.

Suit

INSURANCE POLICY CONSTRUCTION OF. upon policy of insurance on a dwelling-house. The policy was for one year, upon a house occupied at the time the policy was issued, by tenants. The policy did not prohibit a change of tenants, but provided that the policy should cease to operate in the event of the house becoming "unoccupied," so long as the non-occupancy should continue, and revive upon the house being re-occupied. The house was unoccupied at the time it was burned, and had been so for about four days. It was to be occupied as soon as it should be repaired. Held, that the company was not liable on the policy. Judgment reversed. Opinion by PERKINS, J.-Etna Ins. Co. v. Myers.

SUITS ON GUARDIAN'S BONDS- CONCLUSIVENESS OF SETTLEMENTS.-This was a suit against Anton Bescher, guardian of his ward Charles Hammons, on the bond of the former. There was judgment below for the plaintiff. PERKINS, J.: "Appellant claims that this suit is prematurely brought; that it will not lie till there has been a settlement of the estate, or the guardian removed, and that the sister of plaintiff, a younger ward of the same guardian, and still a minor, is a necessary party. The statute authorizing such suits dispenses with the necessity of having previously established such claim, and there was no necessity that the guardian should have been removed before bringing the action. The right of the two wards was not a joint but a several one. If the guardian's accounts have not been kept so as to protect him, he must answer to the wards severally at the proper time for the amounts due them. 60 Ind. 316; 47 Ind. 319. Current settlements, prior to the final settlement made by a guardian with the courts, are not conclusive in a suit upon his bond. 51 Ind. 96; 59 Ga. 212. It is not error in such a suit to admit testimony to prove that the vouchers filed in the current settlements of the guardian, prior to the final settlement, were incorrect. A guardian is not entitled to be credited on his account with the amount of worthless notes he has received and charged himself with as cash. He takes them at his own risk. 57 Ga. 226; 20 Iowa, 388; 46 Ala. 600 Judgment affirmed." Bescher v. State.

SUPREME COURT OF OHIO.

[Filed March 4, 1879.]

PRINCIPAL AND AGENT-PRINCIPAL MUST REPUDIATE VOIDABLE CONTRACT OF AGENT WITHIN REASONABLE TIME - CORPORATIONS.-1. Where a contract made by an agent is voidable at the election of his principal, such election must be made within a reasonable time after full knowledge is acquired by the principal of the circumstances under which the contract was made, otherwise it will be binding upon him. 2. Where, upon full knowledge of all the factsaffecting his liability, the principal promises to pay an account stated of the amount appearing to be due from him under a contract previously voidable at his election, he thereby ratifies the contract. 3. A contract made between two corporations through their respect