66

"The

in affirmance of such judgment, any record, etc., by adding or striking out the name of a party, or a mistake in any other respect," and prohibits such judgment from being "reversed or annulled therefor." The preceding section (5), also, commands the trial court, "in every stage of an action," to "disregard any error or defect, etc., which shall not affect the substantial rights of the adverse party," and prohibits a judgment from being reversed or affected by reason of such error or defect." And section 19 of the same statute (2 W. S. p. 1036), after prohibiting a judgment from being "stayed, reversed, impaired or in any way affected" by reason of a great number of enumerated mistakes, proceeds to enter a like prohibition against such reversal for "any informality in entering a judgment, or making up the record thereof," or "for any other default or negligence of any clerk or officer of the court, or of the parties, or of their attorneys, by which neither party shall have been prejudiced." The ample provisions of the last section are followed by those of section 20 (2 W. S., p. 1037), which provides: omissions, imperfections, defects and variances in the preceding section enumerated, and all others of a like nature, not being against the right and justice of the matter in suit, and not altering the issue between the parties on trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error or appeal." If the sections we have quoted are not sufficiently broad to permit either a trial or an appellate court to amend at a subsequent term a judgment by striking therefrom the name of a party, it is difficult to conceive of a statute comprehensive enough to give such authority. It is obvious that an appellate court could only amend the judgment at a term subsequent to that at which the judgment was rendered; but under the statute, the trial court has the same power of amendment as the appellate court-the sole condition of the exercise of such power in either court being that it is not "against the right and justice of the matter of the suit," and "does not alter the issue between the parties on the trial."

In Weil v. Simmons, supra, this statute, as well as the earlier case of Cruchon v. Brown, 57 Mo. 38, were relied on as furnishing ample authority for striking out the name of Mrs. Simmons, against whom, together with her husband, a judgment in personam had been rendered, upon a written waiver of service of process, and consent for the rendition of such judgment.

In that case, the amendment which the supreme court ordered to be made would appear fully within the purview of the statute, since striking out the name of Mrs. Simmons neither altered "the issues between the parties on the trial," nor was against the right and justice of the matter of the suit."

66

But we undertake to say that the decision in Weil v. Simmons was right, independent of the statute referred to; and this we are ready to verify.

In Green v. Beals, 2 Caines, 252, application was made before a trial-court at a subsequent term to

set aside a judgment and execution. The warrant of attorney for confessing judgment was executed by one partner in the name of himself and co-partner, but without authority from the latter, and the judgment was allowed to stand as to the defendants, who executed the power; but an order was made that no execution issue as to the other defendant. This was tantamount to amending the judgment. So, also, in Matteaux v. St. Aubin, 2 W. Black. 1133, in the trial court, the name of an infant was stricken from the warrant of attorney, and the judgment allowed to stand as to the other defendants.

A trial-court in Gerard v. Bosse, 1 Dall. 119, amended a judgment confessed by warrant of attorney by one partner in the name of both, by striking out of the judgment the name of Bosse, who did not sign, as a nullity, and letting the judgment stand as to the partner who did sign the warrant of attorney.

Whether, in the two cases just cited, the amendments occurred at a subsequent term, the report does not show, but the rule is so familiar that courts of record, during the term at which they are rendered, may correct their judgments, that it may not unfairly be presumed that such occurrence, during the term, would have excited no remark; and, therefore, gives ground for the belief that the amendments spoken of were made at a subsequent term.

The trial court, on motion, at a subsequent term, in Brittin v. Wilder, 6 Hill, 242, struck the name of Mrs. Wilder out of the warrant of attorney, set aside the judgment and execution as to her, granting leave to amend the record nunc pro tunc, so as to permit the judgment to stand against the husband alone. In another case, a man and his wife signed a paper authorizing judgment to be confessed without action; judgment was accordingly entered against both; but this judgment was, at a subsequent term, set aside as to both defendants. On appeal being taken, the court of appeals being of opinion that the judgment against the wife was erroneous, but valid as to the husband, and that the trial-court should have amended the record as to the wife, and set aside the judgment as to her, but should not have set aside the judgment as to the husband-reversed the judgment as to the husband, but affirmed it as to the wife. Watkins v. Abrahams, 24 N. Y. 72. That case certainly seems to yield a full support to that of Weil v. Simmons; to be directly in point, and as nearly identical in circumstances as could be desired.

The premises considered, what is to be thought of the flippant assertion contained in the February-March number of the Southern Law Review, p. 883, that, "in Weil v. Simmons, a dangerous doctrine is suggested that trial courts may amend judgments at a term later than that at which they

are rendered?"

The exceedingly amiable and learned critic (what` private griefs he has, alas! we know not), who penned the above profoundly erudite and luminous criticism, would seem not very familiar either with our statute of jeofails, or with cases adjudi

cated elsewhere. For certainly what is good law in England, Pennsylvania and New York, should not be held very bad law even in the latitude of Missouri, especially as the statute of jeofails only announces the same principle as that contained in the cases cited.

If the law in Weil v. Simmons is correctly declared, the language in which the opinion is couched is a matter of trivial and minor importance; an affair of mere taste, and concerning that, "De gustibus," &c. Sometimes, however, exaggeration is the most fit way of illustrating a truth, or of refuting an error. Shakespeare was evidently cognizant of this, when, in his Seven Ages of Man, he says:

"His youthful hose well saved, a world too wide, For his shrunk shank."

And it would seem not altogether unseemly or inappropriate to employ hyperbole when attacking an error,

Gross as a mountain,"

such as that into which the learned critic has so helplessly and conspicuously fallen. And it might not, perhaps, be received as a "dangerous doctrine," were it suggested that in future it would better become him who assumes to criticise others, if his own productions displayed somewhat more of learning, and somewhat less of malignancy.

UNREPORTED OPINIONS.

MORTGAGE-ENTRY OF SATISFACTION BY MORTGAGEE AFTER TRANSFER-INNOCENT PURCHASER.— A mortgagee of certain property transferred the mortgage and certain notes which it was given to secure for a valuable consideration to C, and afterwards entered satisfaction of the mortgage upon the proper record. On the same day, but after the entry of the satisfaction, the mortgagor conveyed the property covered by the mortgage to A for a valuable consideration, A at the time he received the conveyance having no knowledge that C held the mortgage and notes, nor that the mortgagee had no authority to enter the satfsfaction on the record. Held, that the rights of C were not lost by the unauthorized act of the mortgagee and the conveyance of the mortgagor.- Catherwood v. Burrows. Indianapolis Superior Court, General Term. Opinion by ELLIOTT, J.: "The facts necessary to a proper understanding of the legal question presented may be summarized as follows; David A. Wood conveyed to Asa Burrows certain real estate; part of the purchasemoney was paid in cash, part in notes, payable in bank, the notes secured by mortgage. After the execution of the notes, Wood sold them for a valuable consideration to Catherwood, who received them as a bona fide holder, without notice and before maturity, and with the notes the mortgage was also delivered to Catherwood. After the delivery of the notes and mortgage to Catherwood, on the 18th day of January, 1876, Wood entered upon the proper record satisfaction of the mortgage he had previously delivered to Catherwood. On the same day, but after the entry of satisfaction by Wood, Burrows conveyed the real estate covered by the mortgage to Charles H. Abbett in consideration of $7,000, which was the fair value of the real estate. Abbett paid Burrows by cancelling a preexisting debt amounting to $2,000. by paying $2,000 in cash, and by contracting to pay, upon a prior mort

gage, the remaining $3,000. Abbett had no actual knowledge at the time he received the conveyance that the plaintiff, Catherwood, held the notes and mortgage executed by Burrows, nor that there was any want of authority on Wood's part to enter satisfaction of record, but, on the contrary, believed that the entry of satisfaction by Wood was regularly and properly made. The controlling question presented is both important and difficult. Prior to the case of Ayres v. Hayes, 60 Ind. 452, the law of this State unquestionably was that a mortgagee of real estate having parted with all rights to the notes and mortgage, had no authority to defeat the rights of the holder by entering of record a satisfaction of the mortgage. In McCormick v. Digby, 8 Blackf. 98, it is said: 'After a mortgagee has assigned the mortgage, he can not discharge any part of the premises from the mortgage.' In Lapping v. Duffy, 47 Ind. 51, it was expressly and squarely decided that 'a mortgagee who has assigned the note secured by the mortgage can not, by his entry of satisfaction of the mortgage upon the mortgage-record, affect the rights of an assignee of the note.' In Dixon v. Hunter, 57 Ind. 278, the same doctrine was again emphatically affirmed. So strong was the opinion of the court in that case that Howk, J., speaking for all the members of the court, said: 'It is a clear proposition, too plain for argument.' In Sample v. Rowe, 24 Ind. 208, the same doctrine is maintained, for it is there held that the assignee of notes secured by mortgage is protected to the same extent as a bona fide purchaser. In Hasselman v. McKernan, 50 Ind. 443, it was held that as no law provided for the recording of the assignment of a mortgage, the assignee could not be charged with negligence in failing to put his assignment on record. The doctrine of McCormick v. Digby has received the approval of the text-writers. 2 Wash. R. P. 129; 1 Hill Mort. 561; 1 Jones Mort. sec. 814. These writers cite many cases sustaining the text, and which will well repay examination. The doctrine of McKernan v. Hasselman remains, as yet, unchallenged; so far from being impugned it has been repeatedly approved. It must, therefore, be conceded that the failure of the indorsee of notes secured by mortgage, or of the assignee of a mortgage, to place his assignment on record is not negligence. It is difficult, if not utterly impossible, to perceive how it can be logically held that he who has been guilty of no negligence shall be deemed to have lost rights which his assignment gave him. No rule of logic will warrant any such conclusion, and it can not be reached without trampling upon well settled principles of law. The law, until Ayres v. Hayes, had been considered so well settled that, as I have shown, our supreme court declared the proposition previously announced to be too plain for argument. Under the cases decided before Ayres v. Hayes, and upon principle, it does seem to me that the doctrine of that case ought not to be extended. There is a clear distinction between a case where the notes are not payable in bank, and one where the notes possess the character of commercial paper. In the former case, the holder knows, or at least is bound to know, that the notes are not to be protected in his hands against latent infirmities; but with commercial paper it is far otherwise, the holder has a right to presume that he will be protected against all latent defenses. Over and over again our court has decided that the note evidencing the debt is the principal, the mortgage the mere incident, and that the assignment of the note carries with it the mortgage. If the note is the principal, and is as all commercial notes are-protected in the hands of a bona fide holder, how is it possible to deny the incident that which the principal possesses? It is a fundamental rule of logic that 'what the principal possesses so, also, does the incident.' To deny this rule is to destroy the only foundation upon which reason can possibly proceed. Upon principle it must be

Car

held that a mortgage securing a commercial note, being but an incident, is within the protection the law casts about the principal-the promissory note. But authority is not wanting. The highest court in the nation has expressly decided that a mortgage securing a negotiable note is protected in the hands of a bona fide holder to the same extent as the note itself. penter v. Longen, 16 Wall. 271: Kennicott v. Supervisors, 16 Wall. 452. A like rule has been declared and ably maintained in many of the States. In Wisconsin, this question has been many times carefully considered, and the law, as declared in Carpenter v. Longen, applied to mortgages securing commercial paper. Fisher v. Otis, 3 Chand. 83; Martineau v. McCollum, 4 Id. 163; Croft v. Bunster, 9 Wis. 503; Banger v. Flint, 25 Wis. 544. Missouri, overruling an earlier case, has declared a like rule in Logan v. Smith, 62 Mo. 455. In New York, in Leantt v. Pell, holds the same principle to be correct. In Taylor v. Page, 6 Allen, 86. the Supreme Court of Massachusetts declares the same rule, and so, also, the Nebraska court, in Webb v. Hazleton, 4 Neb. 308. The same question has received the same solution by the courts of Michigan in the case of Jones v. Smith, 22 Mich. 380; and Dalton v. Ives, 5 Mich. 515. The doctrine of these cases is fully approved by the text-writers. 1 Jones Mort. secs. 834, 840, 475; 1 Daniels' Neg. Int. sec. 834; White v. Tudor's Lead. Cas., Vol. II, pt. 1. p. 56. The question which this record presents was carefully considered in the recent case of McKean v. Morris, 4 Iowa, 550. In that case, the court held that the note was the principal, and carried with it the mortgage, which was but the incident saying: It would, therefore, seem necessarily to follow, if the title and right of the assignee to obtain judgment on the note exists, so must his right to have a foreclosure of the mortgage given as security for the payment of the note. It is certainly true, if the maker of the note and mortgage receives value for them, the assignment of the note carries with it the mortgage and all the rights attached thereto. The right of the assignee to avail himself of the mortgage exists through the transfer of the note, and does not depend upon the question of consideration. The rule adopted by the circuit court gives more potency and force to the incident than the principal. The note remains in full force and vigor, but the mortgage, which makes the note of practical value or a something more than an empty show, void.' This question was before the Supreme Court of the United States in Carpenter v. Longen, 16 Wall. 273, in deciding which the following language is used: "The assignee takes the mortgage as he takes the note free from the objections to which it is liable in the hands of the mortgagee. With great deference to the learned courts which have ruled differently, we think this the better rule, and therefore adopt it.' In a still more recent case, Farmers' Bank v. Fletcher, 44 Iowa, 256, this doctrine is approved. In a more recent case than those reported in 16 Wallace, the Supreme Court of the United States has reiterated the doctrine of those cases in a strong opinion written by Justice Swayne. Vide Prickett v. Sawyer, 19 Wall. 146. The argument of the learned judge in the case last cited is, it seems to me, entirely unanswerable. Practically the same result as that reached in the cases I have cited is arrived at by the courts of other States, by holding that the indorsee of the note, or the assignee of the mortgage, is to be regarded as a grantee and protected as a purchaser. Vide Pierce v. Faunce, 37 Mo. 507; Prior v. Wood, 31 Pa. St. 142. In his work on Corporate Securities, Mr. Clemens distinctly affirms the doctrine of Carpenter v. Longen, and says: "The bonds and mortgage securing them are inseparable; the former as essential, the latter as incident.' This is, as I have shown, the opinion of our own court. If the note is the essential, then it must surely extend its protecting influence over all its incidents, it is, in

truth, impossible to conceive the opposite. In support of the doctrine of Ayres v. Hayes, two cases only are cited; one of these, Dixon v. Hunter, 57 Ind., to which I have already referred. It seems to me, and I submit it with all possible deference that the case of Dixon v. Hunter is in direct and irreconcilable conflict with that of Ayres v. Hayes. One or the other must give way if we are to take the latter in the broad scope claimed for it. The other case cited is that of Fox v. Wray, 56 Ind., and this case can have no possible application to the case under consideration, for it was there expressly conceded that the entry of satisfaction was a valid one. In that case, the court said: 'It is substantially admitted that a valid entry of satisfaction had been made on the record.' There is an important fact in the present case, distinguishing it from Ayres v. Hayes, and that is the fact that the mortgage was delivered to Catherwood. When the original mortgagee indorsed the note he delivered with it the mortgage, and had no longer in his possession the evidences of his authority to enter satisfaction of the mortgage. There is this important difference between the condition of Catherwood and Abbett; the former could not by any imaginable possibility have done more than he did do, while Abbett might and ought to have inquired whether Wood had any power to satisfy the mortgage disclosed by the record. The note which it secured was protected as commercial paper, and this knowledge the record itself imparted, and with this knowledge I think Abbett was put on inquiry. The mortgage by which the notes indorsed to Catherwood were secured showed on its face that the notes were payable in bank. Purchasers of the mortgaged premises were, therefore, bound to know that if the mortgagee had indorsed the notes before maturity to a bona fide holder, he, the mortgagee, had no authority to satisfy the mortgage. They were bound to ascertain whether the mortgagee still held the notes, these, and these only, were the evidences of his authority to satisfy the mortgage. On the other hand, Catherwood could not possibly have done more than he did do. He received into his possession the notes and the mortgage. He could not have placed any notice on record, for no law, until the act of 1877, permitted any record to be made. It was not possible for him to have been more careful or more diligent. If we are to treat both the litigants as equally diligent and honest, then we must, under the familiar equity doctrine, rule favora bly to Catherwood for his rights were prior in point of time. White & Tudor's Lead. Cas. Vol. 2, pt. 1, 31. 45, 50. I am for affirming the judgment of the special term." BURNS and HOLMAN, J.J., concur.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1878.

CONSOLIDATION OF CORPORATIONS - TAXATIONJUDGMENT OF STATE COURT.-1. By the statutory code of Georgia, which came in force January 1, 1863, it was enacted that private corporations were subject to be changed, modified or destroyed at the will of the creator, except so far as the law forbids it, and that in all cases of private charters thereafter granted the State reserved the right to withdraw the franchise, unless such right is expressly negatived in [the charter. Two railroad corporations created prior to 1863, each of which enjoyed by its charter a limited exemption from taxation, were consolidated by an act of the legislature passed on the 18th of April, 1863, which authorized a consolidation of their stock, conferredjupon the consolidated companies full corporate powers, and continued to it the franchises, privileges and immuni

ties which the company had held by their original charter. Held, (1). That by the consolidation a new corporation was created and the original companies were dissolved. (2.) That the new corporation became subject to the provisions of the code, which reserved the right of the legislature to withdraw its charter, or to change, modify or destroy it. (3.) That a subsequent legislative act taxing the property of the corporation as other property in the State is taxed, was not prohibited by that provision of the Constitution of the United States, which denies to a State the power of passing a law impairing the obligation of contracts. 2. The judgment of the highest court of a State, that a statute has been enacted in accordance with the requirements of the State constitution, is conclusive upon this court, and it will not be reviewed. -Atlantic, etc. R. Co. v. State. In error to the Supreme Court of the State of Georgia. Opinion by Mr. Justice STRONG. Judgment affirmed.

PARTNERSHIP-RIGHTS OF CREDITORS IN PROPERTY-RIGHT TO APPLICATION OF PROPERTY TO PAY FIRM DEBT.-Partnership creditors have a standing in equity to enforce the application of partnership property to the payment of partnership debts only so long as the property remains in the firm; after it has been conveyed in good faith and for a good consideration to one of the partners or to third persons, the creditors have no such rights. Ex parte Ruffin, 6 Vesey, 119; Kimball v. Thompson, 13 Metc. 28; Allen v, Centre Valley Co., 21 Conn. 130; Ladd v. Griswold, 4 Gilm. 25; Smith v. Edwards, 7 Humph. 106; Robb v. Mudge, 14 Gray, 534; Baker's Appeal, 21 Penn. St. 76. Individual partners have the right as between themselves to have firm property applied to the payment of firm debts, and this right inures to the benefit of the firm creditors, but exists and can be enforced only when it exists in and could be enforced by the individual partner. It is practically a subrogation to the equity of the individual partner to be made effective only through him. Hence, if he is not in a condition to enforce it, the creditors of the firm can not be. Rice v. Barnard, 20 Vt. 479; Appeal of the York County Bank, 32 Penn. St. 401. But so long as the equity of the partner remains in him, so long as he retains an interest in the firm assets as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity and enforce through it the application of these assets primarily to the payment of the debts due them whenever the property comes under its administration. It is, however, indispensable to such relief when the creditors are simple contract creditors that the partnership property should be within the control of the court and in the course of administration brought there by the bankruptcy of the firm, or by an assignment, or by the creation of a trust in some mode. -Case v. Beauregard. Appeal from the Circuit Court of the United States for the District of Louisiana. Opinion by Mr. Justice STRONG. Decree affirmed. 19 Alb. L. J. 299.

MUNICIPAL BONDS-MANDAMUS TO COMPEL PAYMENT-WHEN COURTS CAN not Grant.-Although when the legislature of a State authorizes a city or county to issue bonds, authority will, in the absence of some express limitation in the act or in the general law, be inferred to levy taxes necessary to pay such bonds, yet, where such limitation exists when the bonds were issued, the purchaser thereof takes them subject to such limitation. Every purchaser of a municipal bond is chargeable with notice of the statute under which the bond was issued. If the statute gives no power to make the bond, the municipality is not bound. So, too, if the municipality has no power, either by express grant or by implication, to raise money by taxation to pay the bond, the holder can not require the municipal authorities to levy a tax for that purpose. Thus where cer

tain counties in Missouri were prohibited from imposing a tax for general purposes beyond one-half of one per cent., and the statute authorizing the bonds in question contained a provision for a tax of one-twentieth of one per cent.: Held, that the holder of the bonds was not entitled to a mandamus to compel the county to levy a tax beyond that amount. "If there had been nothing in the act to the contrary it might, perhaps, have been fairly inferred that it was the intention of the legislature to grant full power to tax for the payment of the extraordinary debt authorized to an amount sufficient to meet both principal and interest at maturity. This implication is, however, repelled by the special provision for the tax of one-twentieth of one per cent., and the case is thus brought directiy within the maxim expressio unius est exclusio alte rius." "We have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize. We can not create new rights or confer new powers. All we can do is to bring existing pow ers into operation. In this case it appears that the special tax of one-twentieth of one per cent. has been regularly levied, collected and applied, and no complaint is made as to the levy of the one-half of one per cent. for general purposes. What is wanted is the levy beyond these amounts, and that, we think, under existing laws, we have no power to order.- United States v. County of Macon. In error to the Circuit Court of the United States for the Western District of Missouri. Opinion by Mr. Chief Justice WAITE. Judg. ment affirmed. 19 Alb. L. J. 298.

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January-March, 1875.

ACTION BY LESSEE AGAINST ASSIGNEE.-A lessee can only maintain an action for the rent of leased premises against his assignee after he has paid the lessor for breach of the covenants of the lease by the assignee. If he is a surety, then he must pay the debt for which he is liable before he can recover of the principal. Hoyt v. Wilkinson, 10 Pick. 31. If it is a debt imposed upon him by the default or act of the assignee, it must, of course, be discharged before the liability of the assignee accrues. Opinion by ENDI COTT, J.-Farrington v. Kimball.

PARTNERSHIP FALSE REPRESENTATIONS EQUITY.-Where the defendant, by false and fraudu lent representations, as to the extent of his business, induced the plaintiff to enter into a partnership with him for a definite period, which would make the plaintiff liable to creditors as a partner, it was held that, as against such liability by reason of the defendant's fraud, a court of law could afford the plaintiff no adequate remedy, and, therefore, equity has jurisdiction to order the partnership articles to be cancelled, and to restrain the defendant from using the plaintiff's name as a partner, and having obtained jurisdiction for that purpose may administer complete relief in the same suit by ordering the defendant to repay the sums advanced or expended by the plaintiff on account of the partnership. Pillans v. Harkness, Colles, 442; Ex parte Broome, 1 Rose, 69; Rawlens v. Wickham, 3 De G. & J. 304: Jauncey v. Knowles, 29 L. J. (N. §.)

Ch. 95: Story Part. § § 232, 285. Opinion by GRAY, C. J.-Smith v. Everett.

SURETY

BOND TO INDEMNIFY- CONSTRUCTION. In an action against one of the sureties in a bond given to the plaintiff in which D was principal, conditioned to secure the faithful performance of all duties incumbent on him as deputy sheriff, and to save the plaintiff as sheriff harmless against all liabilities consequent upon the appointment of D, it was held, that in order to render such surety liable for acts committed previous to the execution and delivery of the bond, the bond must clearly show that such was the intention; and that the subsequent recovery of judgment against the sheriff for such acts is not a breach of the bond. The condition to save harmless from all judgments, etc., means judgments recovered for acts of misconduct occurring after the execution of the bond, and against which it was the intention of the bond to protect the plaintiff. Opinion by COLT, J.-Thomas v. Blake.

INSURANCE-MISREPRESENTATIONS.-In an action upon a valued policy of insurance upon several oil paintings in the plaintiff's dwelling-house, it appeared that at the end of a written application for insurance, given to one B, an insurance broker, and exhibited by the latter to the president of the defendant company, was a written statement that the original of one of the paintings was by Leonardo de Vinci; that it was then in the Vatican, or in one of the churches of Rome, under the care of the Pope, and could not be bought for a large sum, which was named; that this copy by Pinnol de T. Salos was the only one in America, and no other copy could ever be allowed by the Pope. The policy contained a stipulation that the application contained a just and true statement of all the facts in regard to the value of the property insured, and material to the risk, and that the policy should be void if any material fact or circumstance should not have been fairly represented. Held, that any instruction to the jury that the representations as to the origin and character of the painting referred to, were material to the risk, and if falsely and fraudulently made, and if relied on by the insurer and found to be untrue, would avoid the policy, though mere expressions of opinion and belief were not to be taken as misrepresentations, was sufficiently accurate. Opinion by COLT, J.-Wood v. Firemen's F. Ins. Co.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, January 25, 1879.]

PROCEDURE FIVE DAYS' RULE IN TRIAL OF CAUSE NOT CONSISTENT WITH GENERAL PRACTICE ACT.-This was a suit brought in the Superior Court of Cook County by the plaintiff as indorser of a promissory note made by the defendant. Defendant pleaded the general issue, having attached to it his affidavit of his non-residence in Cook county at the time of the commencement of the suit. Afterwards, the plaintiff moved the court for a speedy trial of the cause under what is known as the "five days' rule" of that court, submitting an affidavit of plaintiff's attorney of his belief that the defense was made only for delay, etc. To this proceeding, the defendant objected, on the ground that the rule named was contrary to the statutes of this State, and therefore void. The court overruled this objection, and defendant appealed. SHELDON, J., says: "This court has in a number of instances passed upon the validity of this same 'five days' rule' in question and pronounced it void and of no effect, as

being inconsistent with the general practice act in force July 1, 1873, and that it was error to take up and dispose of a case out of its order on the docket under that rule against the defendant's objection. 73 Ill. 35; Id. 38; Id. 412; 79 Ill. 449." Reversed.-Braidwood v. Weiller.

PROCEDURE-SERVICE OF PROCESS ON A FOREIGN CORPORATION AGENT TEMPORARILY IN THE COUNTY. - This was an action on the case brought by plaintiffs in the Superior Court of Cook county against the defendant corporation to recover for a loss they met with from making advances as commission merchants, on bills of lading issued by the defendant, & railroad company The sheriff of Cook county

made a return of service by delivering a copy of the writ to "J. N. C., general superintendent of said company, the president of said company not being found in my county." A plea in abatement was filed by defendant, in which it is averred that the railway company was a corporation existing and doing business under the laws of Nebraska, with its principal office in the city of Lincoln, Nebraska, and that at the time of said service of summons J. N. Converse was not general superintendent of the road and was temporarily in Cook county. SCOTT, J., says: "The decision of this case depends mainly on the construction that shall be given to that section of the statute that provides for obtaining service of process upon corporations. It was held, in 22 Ill. 9, the act of 1853, on this subject, which is the same in substance as the section cited, was not confined by its terms to domestic corporations, but was designed to, procure service upon railroad companies having their offices and offcers in foreign States, and yet do business and have their agents and their property in this State. Conceding the correctness of the rule stated, as we do, it has no application to the case in hand. Defendant had no agents in this State. It was certainly never intended that service could be had on a foreign corporation by leaving a copy of the process with any officer or agent that might chance to pass through the State on his private business." Reversed.-Midland Pac. R. Co. v. McDermid.

SUPREME COURT OF WISCONSIN.

March 1879.

MONEY HAD AND RECEIVED

ILLEGAL CONTRACT. -If A obtains money from B as for the purpose of paying it for B, to X, upon their agreement with X, and does not so pay it, but converts it to his own use, he can not retain it, as against B, on the ground that the contract with X was illegal. Opinion by ORTON, J.-Kiewert v. Rindskopf.

FRAUDULENT REPRESENTATIONS.—In an action to set aside a contract with defendant upon the ground that it was obtained by his false and fraudulent representations, plaintiff can not recover if defendant believed the representations to be true, and plaintiff had equal opportunity with him of ascertaining their falsity, or had the means of ascertaining it by the the exercise of reasonable diligence, and was not prevented from doing so by any artifice of the defendant. Opinion by ORTON. J.-Mamlock v. Fairbanks.